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A
■ • : ► •:
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 0 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,
0 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 0 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, 0 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-
circumstances 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.
0 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.
0 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.
0 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 covenants to keep the buildings insured against fire,
and, if they are burned, to reinstate them with the insurance-
1 Steph. on Plead, p. 888. In an action by an assignee, his title is set forth as in
the following precedent of a declaration by a grantee of the reversion^ against the lessee
of his grantor, for non-payment of rent : —
" In a plea of covenant. For tbat whereas heretofore, to wit, on the — >- day of
— -— , one J. 3. was seised in his demesne as of fee of and in the following described
messaaffe, land, and tenements, situated in [here describe the premises]. And being
so seis^, on the same day, by a certain indenture made between him of the one part
and the defendant of the other part, one part whereof, sealed with the seal of the said
defendant, the plaintiff now here brings into court [or, which indenture, being in neither
part in the possession, custody, or control of the plaintiff, he cannot produce in court],
the said J. o. demised the same nremises to the defendant [here proceed, mutatis mutan'
dis, as far as this mark {*)iathe preceding fortn]. And a^r the making of said inden-
ture, to wit, on the day of—, the said J. S., beiufi; seised of the reversion of said
estate, by his deed of bargain and sale [or, if in any other form of conveyance, state it\
duly executed, acknowledged, and reconled, and now here by the plaintiff produced in
court, for a valuable consideration therein mentioned [baraained, sold], and conveyed the
said reversion of and in the said premises to the plaintiff, to have and to hold the same
with the appurtenances to the plaintiff and his heirs and assijpis for ever ; by virtue of
which deed the plaintiff thereupon became seised of the said reversion according to
the tenor of the same, and has ever since continued to be so seised thereof. Now the
plaintiff in fact says that after the making of said deed [of bargain and sale] and during
the said term [conclude as in the preceding form'],**
3 Milnes v. Branch, 5 M. & S. 411*; Roach v, Wadham, 6 East, 289 ; 2 Susnl.
Vend. 479, 489-491 ; Randolph v. Kinney, 3 Rand. 894 ; Beardsley v. Knight, 4 vt
471. The action for breach of a covenant real lies only for him who held the land at
the time of the breach. A mesne covenantee or owner has no right of action for damages,
until he has paid them to those who have come in under himself. Chase v. Weston,
12 N. H. 418.
* Piatt on Covenants, p. 63 ; Shop. Touchst. 171 ; Spencer's Case, 5 Co. 16 ; Nor-
man V. Wells, 17 Wend. 186 ; Nesbit v. Nesbit, Cam. & Nor. 324 ; Slater v, Rawson, 1
Met. 450. The nature of covenants real is discussed in 4 Cruise's Dig. tit. 82, c 26^
§ 28, n. (Greenleafs ed.).
« Piatt on Cov. 65, 267 ; Louffher «. Williams, 8 Lev. 92 ; Demarest v. Willard, 8
Cow. 206; Norman v. Wells, 17 Wend. 148 ; Pollard v. Shaaffer, 1 Dall. 210 ; Shelby
V. Heame, 6 Yei^. 512 ; Kellogg v. Robinson, 6 Vt 276 ; Sampson v. Easterby, 9 B.
& C. 605.
PART IV.] COVENANT. 289
money.^ (2.) To continue the relation of landlord and tenant,
Ac. ; such as to pay rent ; * to do suit to the lessor's mill,^ or to^
grind the tenant's com ; * and for renewal of leases.^ (3.) To
protect the tenant in the enjoyment of the land. Of this class
are, the covenant to warrant and defend the premises, to him and
his heirs and assigns, against all lawful claims and demands ; ^ to
make further assurance ; ^ to remove incumbrances ; ^ (a) to release
suit and service;^ to produce title-deeds in any action, in support
or defence of the grantee ;^^ for quiet enjoyment ;^^ never to
claim or assert title to the premises ; ^^ to supply the premises
with water ;^ to open a street on which the land granted is
bounded ; ^^ not to establish or permit another mill on the same
stream which propels the mill granted ; ^^ not to erect a building on
grounds dedicated by the covenantor to the public, in front of lands
conveyed by the covenantor to the assignor of the plaintiff ; ^® (6)
or to use the land in a particular manner, for the advantage of
1 Vernon v. Smith, 5 B. & Ad. 1, per Best, J. ; Piatt on Coy. 186 ; Thomas v. Von
KapfT, 6 6. & J. 872.
* Stevenson v. Lombard, 6 East, 575 ; Holford v. Hatch, 1 Doug. 188 ; Hnrst v,
Eodney, 1 Wash. C. C. 875.
* This is a real covenant as long as the lessor owns both the mill and the reversion.
Vivyan v. Arthur, 1 B. & C. 410 ; 42 E. III. 8 ; 5 Co. 18.
* Dunbar v. Jumper, 2 Yeates, 74 ; Eimpton v. Walker, 9 Vt. 191.
* Spencer's Case, Moore, 159 ; Piatt on Cov. 470 ; 12 East, 469, per Ld. Ellen-
borough ; Isteed v, Stonely, 1 And. 82.
« Shep. Touchst. 161 ; Marston v. Hobbs, 2 Mass. 488 ; Withy v. Mumford, 5
Cow. 187 ; Van Horn v. Crain, 1 Paige, 455.
^ Middlemore v. Goodale, Cro. Car. 508.
8 Sprague v. Baker, 17 Mass. 586. But a covenant that the land is not incumbered,
is personal only. Clark v. Swift, 8 Met. 890.
* Co. lit. 884 b,
1^ 4 Cruise, Dig. 898, tit. 82, c. 25, § 99 (Greenleafs ed.) ; Barclays. Baine, 1 Sim.
ft Stn. 449 ; Piatt on Cov. 227 ; 10 Law Mag. 353-857.
u Noke V. Awder, Cro. £1. 873, 436 ; Campbell v. Lewis, 8 B. & Aid. 892 ; Piatt
on Cov. 470 ; Markland v. Cnimp, 1 Dev. & Bat. 94 ; Heath v, Whidden, 11 Shepl.
388 ; Williams v. Bnrrell, 1 M. 0. & S. 402.
^ Fairbanks v, Williamson, 7 Greenl. 97. And if the subject of the conveyance be
an estate in expectancy, by an heir or devisee, and the conveyance is lawful, it attaches
to the estate wnen it comes to the grantor, in whose hands it instantly enures to the
benefit of the grantee, and thereupon the covenant becomes a covenant real. Trull
V, Eastman, 8 Met 121 ; Somes v. Skinner, 8 Pick. 52.
1^ J ordain v. Wilson, 4 B. & Aid. 266. So a covenant by the grantor of a mill-iK>nd
nnd land, to draw off the water six days in a year, upon request, is a covenant reaL
Morse v. Aldrich, 19 Pick. 449.
M Dailey V. Beck, 6 Penn. Jaw Jour. 888.
» Norman v. Wells, 17 Wend. 186.
u Watertown v. Cowen, 4 Paige, 510. And see 8. p. Mann v. Stephens, 10 Jur.
650.
(a) Or a oovenant against incum- lands. Georgia Southern By. Ca v.
teances. Cole v. Kimball, 52 Vt 639. Reeves, 64 Oa. 492. Cf. Gawtry v, Le-
(6) Or to erect a building on certain land, 81 N. J. £q. 885.
240 LAW OF EVIDENCB, [PABT IT.
the grantor ; ^ and the like, (a) When any of these covenants are
broken, after the land has been conveyed to the assignee, the
general rule is, that he alone has the right to sue for the damages;
but if, by the nature and terms of the assignment, the assignor is
bound to indemnify the assignee against the breach of such cove-
nants, it seems that the assignor may sue in his own name.^
§ 241. Covenant of Misin. To prove a breach of the covenant
of seisinj it is necessary to show, that the covenantor was not
seised in fact ; for this covenant is satisfied by any seisin in fact,
though it were by wrong, and defeasible.^ But though the cove-
nantor was in possession of the land at the time of the convey-
ance, yet if he did not exclusively claim it as his own, the
covenant is broken.* (J) So, if there was a concurrent seisin by
another, as tenant in common ;^ or, if there was an adverse seisin
of a part of the land, within the boundaries described in the
deed.^ But if the possession by a stranger was .not adverse, it
is no breach.^ (c)
§ 242. Freedom from inonmbranoes. The covenant of freedom
from incumbrances is proved to have been broken, by any evi-
dence, showing that a third person has a right to, or an interest
in, the land granted, to the diminution of the value of the land,
^ Hemminway v. Fernandez, IS Sim. 228.
* Griffin v. Fairhrother, 1 Fairf. 81 ; Bickford v, Paige, 2 Mass. 460 ; Kane «.
Sanger, 14 Johns. 89 ; Niles v. Sawtel, 7 Mass. 444.
> Marston v. Uobbs, 2 Mass. 433 ; Bearce v, Jackson, 4 Mass. 408 ; TwombW v,
Henley, Id. 441 ; Prescott v. Truemaii, Id. 627 ; Chapel v. Bull, 17 Mass. 213 ; Wait
V. Maxwell, 6 Pick. 217 ; Wheaton v. East, 5 Yerg. 41 ; WUlard v. Twitchell, 1 N. H.
177 ; Backus v, McCoy, 8 Ohio, 220. But see Richardson v. Dorr, 5 Vt. 21 ; Lack-
wood V. Sturdevant, 6 Conn. 385. And see, as to this covenant, 4 Cruise's Dig. tit.
82, c. 26, § 48, n. (Greenleafs ed.). If the grantor's seisin is alleged to have heSa de-
feated by an official sale for the non-payment of taxes, the plaintiff most prove the
yalidity of the assessment and sale, with the same strictness as if he were the purchaser
under the sale, enforcing his title in an ejectment. Kennedy v, Newman, 1 Sandf.
187.
« Wheeler v. Hatch, 8 Fairf. 389.
^ Sedgwick v, HoUenback, 7 Johns. 876.
* Wilson V. Forbes, 2 Do v. 30. But it is not necessary to proye an eviction. Bird
V. Smith, 8 Eng. 368.
7 Commonwealth v. Dudley, 10 Mass. 408.
(a) In National Union Bank «. Segor, as to warranty. Smith v. Lloyd, 20 Mich.
89 N. J. L. 173, it is said that a covenant 382.
which confers an immediate, permanent, (c) A deed of land recitiiu^ a peenniaiy
and beneficial effect on the uses to which consideration, and to take effect after the
real estate is put will run with the land. death of the grantor, upon condition of
(b) Where a grantor covenants against certain services to be rendered him,
incumbrances for his heirs, but not for amounts to a covenant to stand sdaed to
himself, as the covenant is broken as soon the grantor^s use, though there is no rela-
as made, he must be taken to have cove- tionuiip of blood or marriage between the
nanted for himself. Otherwise, perhaps, parties. Trafton v. Hawea, lOS Mass. 630.
PAST r7.] COVENANT. 241
though consistent with the passing of the fee by the deed of con-
yeyance.^ Therefore a public highway over the land ; ^ (a) a claim
of dower;' a private right of way;* (6) a lien by judgment,^ or
by mortgage, made by the grantor to the grantee,^ or any mort-
gagee, unless it be one which the covenantee is bound to pay ; ^
or any other outstanding elder and better title,' (c) — is an incum-
1 Prescott V. Trueman, 4 Mass. 627, 629, per Parsons, C. J. See, as to this coye-
nant, 4 Cruise's Dig. tit 82, c 26, § 69, n. (Greenleaf s ed.).
> Kellogg V, iDgersoU, 2 Mass. 97, 101 ; Pritchard v. Atkinson, 8 N. H. 835 ;
Hubbard v. Norton, 10 Conn. 481.
* 4 Mass. 680. Eren though inchoate only. Porter v. Noyes, 2 GreenL 22 ;
Shearer «. Ranger, 22 Pick. 447.
« Harlow v. Thomas, 15 Pick. 68 ; Mitchell o. Warner, 5 Conn. 497.
* Jenkins v. Hopkins, 8 Pick. 846 ; Smith v, M'CampbeU, 1 Blackf. 100 ; Hall v.
]>ean, 18 Johns. 105.
* Bean v. Mayo, 5 GreenL 94.
V Watts V, Welman, 2 N. H. 458 ; Tufts v. Adams, 8 Pick. 547 ; Funk v. Yoneida,
11 S. & R. 109 ; Stewart v. Drake, 4 Halst. 189 ; Wyman v. Ballard, 12 Mass. 804.
8 Prescott «. Trueman, 4 Mass. 627 ; Chapel v. Bull, 17 Mass. 218, 220 ; Potter v.
Taylor, 6 Vt 676 ; Garrison v. Sandford, 7 Halst. 261.
The declaration by a graniee, by a deed of baigain and sale, against his grantor for
breach of the eovenatU of freedom from incum^branoe, by the existence of a paramount
title, is in this form : —
*• in a plea of covenant ; for that the said defendant, on the day of , by
his deed [if by indsrUure it skovXd be so set forth], duly executed, acknowled^^, and
recorded, and by the plaintiff now here produced in court, for a yaluable consideration
therein mentioned, bargained, sold, and conveyed to the plaintiff [here describe the
prtimisesX to have and to hold the same with the appurtenances to the plaintiff and Ms
neirs and assigns for ever ; and therein, among otner things, did covenant with the
plaintiff (*) that the said premises were then free from all incumbrance whatsoever.
Now the plaintiff in fact says that, at the time of making the said deed, the premises
aforesaid were not free from all incumbrance ; but, on the contrary, the plaintiff avers
that at the time of making said deed one £. F. had the paramount ana lawful right
and title to the same premises ; by reason whereof the plaintiff has been obliged to ex-
pend, and has expended, a great sum of money, to wit, the sum of , in extinguish-
ing the said paramount and lawful right and title of the said £. F. to said
premises.'*
(a) Beach v. MiUer, 51 HI. 206 ; Burk v. Hughes, 50 Wis. 620, it is held that
«. Hill, 48 Ind. 52. Contra, Jordan v. Eve, the grantee in such a case is presumed to
81 Gratt. ( Va. ) 1. Cf. Cincinnati v. Brach- know of the incumbrance, and there is no
man, 85 Ohio St. 289. And so is an as- breach of the usual covenants. Cf. Des-
seasment for betterments on account of vergers v. Willis, 56 Ga. 515. An attach-
the widening of a street, although at the raent or an assessment for betterments, or
time of the conveyance the grantee had a tax, if a lien on land, is within the cove-
only constructive notice of the widening, nant agaiust incumbrances. Kelsey «.
Blackiev. Hudson, 117 Mass. 181. Remer, 48 Conn. 129; Barlow «. St.
(Jb) And this is so, although the exist- Nicholas Nat Bank, 68 N. Y. 899 ;
enoe of the way was well known to the Briggs v. Morse, 42 Conn. 258 ; Carr v.
grantee at the time of the purchase. Dooley, 119 Mass. 294 ; Blackie v, Hud-
utler V. Gale, 27 Vt 789. So a right son, 117 Mass. 181. A stipulation in a
to flow the land. Patterson v. Swee^ 8 deed-poll that the grantee, nis heirs and
HL App. 550. assigns, shall erect and perpetually main-
{e) Sheets v. Longlois, 69 Ind. 401. tain a fence between the granted premises
If land partlv occupied by a railroad is and the land adjoining, does not create an
conveyed with the usual covenants, the incumbrance on the granted premises,
covenant against incumbrances may be Parish v. Whitney, 8 Gray (Mass.), 516 ;
broken, but not that against seisin. Plymouth v. Carver, 16 Pick. (Mass.)
Kellogg V. Mabin, 50 Mo. 496. In Smith 188.
TOL. II. 16
242 LAW OF BVIDBNCB. [PABT IV,
brance, the existence of which is a breach of this covenant. In
these and the like cases, it is the existence of the incumbrance
which constitutes the right of action ; irrespective of any knowl-
edge on the part of the grantee, or of any eviction of him, or of
any actual injury it has occasioned to him. If he has not paid
it off, nor bought it in, he will still be entitled to nominal dam-
ages, but to nothing more ; ^ (a) unless it has ripened into an inde-
feasible estate ; in which case he may recover full damages.^ It
is not competent for the plaintiff to enhance the damages by
proof of the diminished value of the estate, in consequence of the
existence of the incumbrance, as, for example, a prior lease of
the premises, unless he purchased the estate for the purpose of a
resale, and this was known to the grantor at the time of the
purchase.8
§ 243. Quiet enjoyment The covenant for quiet enjoyment goes
to the possession and not to the title; and, therefore, to prove a
breach, it is ordinarily necessary to give evidence of an entry
upon the grantee, or of expulsion from, or some actual disturbance
in, the possession ; * (6) and this, too, by reason of some adverse
right existing at the time of making the covenant, and not of one
subsequently acquired.^ But it will not suffice to prove a demand
^ Ibid. ; Delavergne v. Nonis» 7 Johns. 858 ; Stanard v, Eldridge, 16 Johns. 254 ;
Bean v. Mayo, 5 Oreenl. 94 ; Wyman o. Ballard, 12 Mass. 304.
> Chapel «. Bull, 17 Mass. 213.
* Batehelder v, Stiirgis, 8 Cush. 201.
* Frannces's Case, 8 Co. 89 ; Anon., 1 Conn- 228; Waldron v, HcCarty, 3 Johns.
471 ; Kortz v. Carpenter, 5 Johns. 120 ; Webb v. Alexander, 7 Wend. 281 ; Coble v,
Welborn, 2 Dev. 388. And see Safford v, Annis, 7 Oreenl. 168 ; 2 Sugd. Vend. 514-
522 (10th ed.) ; 4 Craise's Dig. tit 32, c. 26, § 51, n. (Greenleafs ed.).
A Ellis V. Welch, 6 Mass. 246 ; Tisdale v. Essex, Hob. 34 ; Hard v. Fletcher,
1 Doug. 43 ; Evans v. Vaaghan, 4 B. & C. 261 ; Spencer v. Marriott, 1 B. & C. 457.
The declaration by a grantee against his grantor, for breach of the general coveMoiU
(a) Norton t*. Colgrore, 41 Mich. 544 ; this covenant will not support this action.
Bundy v. Ridenour, 63 Ind. 406. The Connorv. Bemheimer, 6Daly(N. Y.), 295.
amonnt recovered cannot in any case ex- But if the grantee is kept out of possession
ceed the consideration of the deed, or the by a superior title, and fails in legal meas-
amount paid to buy in the incumbrance, ures to obtain possession, it is enough.
Andrews v. Appel, 22 Hun (N. Y.), 429 ; Shattnck v. Lamb, 65 N. Y. 499. It is
Lowrance v. Kobertson, 10 S. C. 8. The sufficient proof of a breach if there is a
covenant against incumbrances is broken dispossession by one having superior title,
at the time it is made, if an incumbrance although the entry is not made under
exists at that time, and the statute of limi- process. Parker v. Dunn, 2 Jones, Law
tations begins to run from that date. (N. C), 203 ; McOary v. Hastings, 39 Cal.
Chapman «. Kimball, 7 Neb. 899. 360. But proof of a molestation caused
(o) Moore «. Frankenfeld, 25 Minn, by wrongful acts of strangers to the title
540 ; Ware v. lithgow, 71 Me. 62. Proof will not support an action for the breach
that the city authorities tore down as of this covenant. Moore v, Weber, 71
unsafe the house on land conveyed with Pa. St. 429.
PABT IV.] COVENANT. 248
of possession, by one having title ;^ nor a recovery in ejectment,*
or in trespass ; ^ unless there has also been an actual ouster. If,
however, the covenantor himself enters tortiously, claiming title,
it is a breach.^
§ 244. Wairanty. The covenant of warranty extends only to
lawful claims and acts, and not to those which are tortious;^
and it is restricted to evictions under titles existing at the date
of the covenant.* (a) A breach of this covenant is proved only by
for quiet er^'oyment, recites the oonveyances, as in the preceding form, as far as this
nuirk (*}, and proceeds as foUows: —
— "that the plaintiff, his heirs and assigns, should and might at all times for ever
thereafter, peaceably and quietly have, hold, possess, and enjoy said premises, without
let, suit, denial, hindrance, molestation, or interruption by any person lawfully claim-
ing any right, title, or interest in the same. Now the plaintiff in fact says, that he
has not been permitted so to possess and enjoy the said premises ; but, on the contra^,
he avers, that, after the making of said deed, to wit, on the day of , one £. F.,
who, at the time of making said deed, had, and ever since, until the molestation of the
plaintiff hereiuafter mentioned) has continued to have, lawful right and title to said
premises, did enter into the same, and did thence eject, expel, and remove the plaintiff,
and hold him out of possession of the same, contrary to the form and effect of the cove-
nant aforesaid," &c.
1 Cowan V. Silliman, 2 Dev. 46. Nor a mere forbidding to pay rent. Witchcot
V. Nine, 1 Brownl. 81. And see Hodgskin 9. Queensborough, WUles, 129.
* Kerr i^. Shaw, 13 Johns. 286.
* Webb V. Alexander, 7 Wend. 281. And see Cushman v. Blanchard, 2 Greenl.
266.
* Sedgwick v. Hollenbock, 7 Johns. 876 ; 2 Sngd. Vend. 512 (10th ed. ). But not
if the entry was without claim of title. Seddon v. Senate, 18 £ast» 72 ; Penn v,^
Glover, Cro. El. 421.
A 4 Cruise's Dig. tit* 82, c. 26, § 51, n. (Greenleaf s ed.); Vaugh. 122; 2 Sngd. Vend.
610, 511 (10th edO ; Dudley v. Follett, 8 T. R. 587.
« Ellis V. Welch, 6 Mass. 246.
Where the assignee of the grarUee sues the grantor for a breach of the covenant of
warranty, by an eviction, the declaration will be in this form : *' In a plea of covenant ;
for that the said defendant heretofore, to wit, on the day of , by his deed, by
him duly executed, acknowledged, and I'ecorded, which deed, not being in the posses-
sion, custody, or control of the plaintiff, he is unable to produce in court, for a valu-
able consideration therein mentioned, bargained, sold, and conveyed to one J. S. a
certain parcel of land [describing U\ to hold the same with the appurtenances, to him
the said J. S., and his heirs and assigns for ever ; and in and by said deed the said de-
fendant, among other things, covenanted with the said J. S., and his heirs and assigns,
to warrant and defend the same premises to the said J. S. and his heirs and assigns for
ever, against the lawful claims and demands of all persons. And the said J. S. after-
wards, on the same day, lawfully entered into said premises, and by virtue of said deed
be«ime lawfully seised of the same ; and being so seised, the said J. S. afterwards, to
wit, on the day of , by his deed, by nim duly executed, acknowledged, and
recorded, and now here by the plaintiff produced in court, for a valuable consideration
therein mentioned, baigained, sold, anu conveyed the same premiBes to the plaintiff,
to hold the same, with the appurtenances, to the plaintiff, atad his heirs and assigns
for ever ; by force of which aeed the plaintiff, afterwards and the same day, lawfully
entered into the same premines and became lawfully seised thereof accordingly. But
the plaintiff in fact says, that the said defendant has not warranted and defended the
aaid premises to the plainliiff, as by his said covenant he was bound to do ; but, on the
contraiy, the plaintiff avers that one £. F., lawfully claiming the same premises by an
(a) And this does not warrant against main by the government after the convey-
the exerdse of the right of eminent do« ance. Lewis v, Woodfolk, 58 Tenn. 25.
244 LAW OP BVIDBNCE. [PABT IT.
evidence of an actual ouster or eviction ; (a) but it need not be
with force; for if it appears that the covenantee has quietly
yielded to a paramount title, whether derived from a stranger or
from the same grantor, either by giving up the possession, or by
becoming the tenant of the rightful claimant, or has purchased
the better title,^ it is sufficient. (6) So, if he has been held out of
possession, by one in actual possession under a paramount title, at
the time of sale, it is said to be a breach.^ So, a formal entry by
a mortgagee, for foreclosure, though made imder a statute, which
does not require that tlie possession of the mortgagee should be
continued, is a breach.^ (er) And if the grantor covenants against
all incumbrances, except a certain mortgage, which he engages
elder and better title, afterwards, by the consideration of the justices of the — — coort,
b^gun and holden [hisn describe the term^ Asc,], recovered judgment against the plaintiff
for his seisin and possession of said premisea, and for his costs ; and afterwards, to wit,
on the day of ^ under and by virtue of a writ of execution duly issued upon
said judgment, the said E. F. lawfully entered into said premises, and thereof evicted
the plaintiff, and still lawfully holds him out of the same."
The breach may be assigned more generally, as an ouster, in the following form :
" But, on the contrary, the plaintiff avers that one E. F., lawfully claiming the same
premises by an elder and better title, afterwards, to wit, on the day of , law-
fully entered into the same prenuses, and ousted the plaintiff thereof, and still lawfully
holds him out of the same."
1 Emerson v. Prop's of Minot, 1 Mass. 464; Kelly v, Dutch Church of Schenectady,
12 Hill (N. Y.), 105; Hamilton o. Cutts, 4 Mass. 849; Sprague v. Baker, 17 Mass. 686;
Ckrke v. McAnulty, 3 S. & R. 864; Mitchel v. Warner, 5 Conn. 497 ; Stewart v.
Drake, 4 Halst. 189 ; Rickert v. Snyder, 9 Wend. 416 ; Tufts v, Adams, 8 Pick. 547 ;
Bigelow V, Jones, 4 Mass. 512. See further, 4 Kent, Comm. 471 ; 10 Ohio R., by Wil-
cox, pp. 330-882, n. If the covenantee yields peaceably to a dispossession, the burden
of proof is on him to show that the dispossession was by one naving a better tiUe.
4 Mass. 349.
« Witty V. Hightower, 12 S. & M. 478.
• White V. Whitney, 8 Met. 81. See also Burrage v. Smith, 16 Pick. 56 ; Norton
«. Babcock, 2 Met 510 ; Ingersoll v, Jackson, 9 Mass. 495.
{a) Scott t7. Kirkendall, 83 IlL 465 ; his grantor. Gilman «. Haven, 11 CnaL
Green v, Irving, 54 Miss. 450 ; Anshutz (Mass.) 330. The right of action accrues
V. Miller, 81 Pa. St. 212; Jones v. Warner, when substantial damage is suffered. Post
81 111. 348. So it is held that a grantee «. Campau, 42 Mich. 90.
in a deed cannot maintain an action upon {h) Allis v, Kininger, 25 Minn. 525 ;
a covenant of warranty therein, unless Hauck v. Single, 10 Phila. (Pa.) 551; Ken-
there has been an actual eviction, or what ney v. Norton, 10 Heisk. (Tenn.) 884. It
is, in law, equivalent thereto. Thus, is held in some States that^ proof that the
where a grantee in a deed containing a covenantee has been obliged to pajr off a
covenant of warranty immediately mort- superior claim or buy in the title is not
gages back the estate to his grantor, and enough to support an action on the war-
afterwards gives him possession under the ranty. Dyer v. Britton, 53 Miss. 270.
mortga^ TOComing his tenant, he cannot When one vields to paramount title, with-
maintain an action on the covenant of out judicial proceedings, the title must be
warranty in the deed to himself, on ac- paramount not only to his grantor, but
count of an entry and ouster by one having also paramount to the tide of any other
an older and better title than his grantor, person. Cmm v, Collenbangh, 47 Ind.
because such entij and ouster are not 256.
against his possession, but against that of (c) Fomas «. Duigin, 119 Mass. 500.
PAST IT.] COYBNANT. 245
to discharge, and also covenants generally to warrant the prem-
ises against the lawful claims of all persons, he is liable on the
latter covenant, if the grantee is obliged himself to remove this
incumbrance.^ A judgment in ejectment, recovered hj a stran-
ger, against the covenantee, and an entry under it, with proof
that the covenantor had due notice of the pendency of the action,
and was requested by the covenantee to defend it, is also suffi-
cient evidence of a breach of this covenant.^ (a) So, if the grantor
subsequently conveys to a stranger, who enters without notice
of the prior deed, it is a breach.^
§ 245. Covenant not to assign. A covenant by a lessee, against
aligning and underletting^ is not broken by any involuntary
transfer of the possession; as, if it be sold by a sheriff, on
execution, or by assignees in bankruptcy, or by an executor;^
unless the assignment is effected by fraud of the lessee, as, by
confessing judgment, to the intent that the creditor may seize
the premises in execution.^ Ordinarily, therefore, the plaintiff
must prove a transfer of the possession by some voluntary act of
the defendant Evidence of the mere fact, that a stranger is in
possession of the land, is not alone sufficient proof of a breach of
1 Bemis v. Smith, 10 Met 194.
* Hamilton v. Oatts, 4 Mass. S49 ; Prescott v. Troeman, Id. 627 ; Ferrell v. Alder,
8 Humph. 44. In such case, an actual ouster by writ of possession has been held im-
materifd. Williams v. Weatherbee, 1 Aiken, 288. The notice of the suit may be
verbal. CoUingwood v, Irwin, 8 Watts, 806; Miner v, Clark, 15 Wend. 426.
After which, it seems the coTenantee is not bound to defend. Jackson v. Manh,
5 Wend. 44.
* Curtis V, Deering, 8 Fairf. 490. The covenantee is not bound to buy in an out-
standing paramount title or incumbrance, though it is offered to him on moderate
terms. Miller v. Halsey, 2 Green (N. J.), 48 ; Clarke v. McAnulty, 8 S. Ic R. 864.
« Doe V. Carter, 8 T. R. 57. Doe v. Beavan, 8 BL & S. 858; Seers v. Hind, 1 Vet.
295 ; Great Pond Co. v. Buzzell, 89 Me. 178.
^ Doe V. Carter, 8 T. R. 57. And see, on this covenant, Piatt on Gov. c. 12, pp.
404-448.
(a) To have the effect of depriving the v. Chapman, 66 Me. 557 ; Tiemay v.
warrantor of the right to show title, the Whiting, 2 CoL T. 620. It has been held,
notice, should be from the warrantee, that where by statute, if a plaintiff gets a
should be unequivocal, should reauest the venlict in an action of ejectment, he may
warrantor to defend, and should oe given olect whether he will take the premises sued
in time to enable him to prepare for de- for, or the valuation of them which is
fence. Knowledge of the action and a stated in the verdict, proof of such an
notioe to attend the trial are not enocurh. election to take the vi^uation will not sup-
Somen v. Schmidt, 24 Wis. 417 ; Collins port an allegation in an action by the person
V. Baker, 6 Mo. Apn. 588. Bnt if such compelled to pay the valuation against his
notice is not ^ven, uie bnrden of proof is covenantor, that he had been by due pro-
OD the plaintiff to show that the title of cess of law ejected by a person lawfully en-
the recovering party is superior, that the titled to the premises. Long «. Sinclair,
actions were reasonably defended, and that 88 Mich. 90.
the costs were fairly incurred. Ryerson
246 LAW OF EVIDENCE. [PABT lY.
this covenant; ^ but if the stranger claims to hold as under-tenant
of the defendant, it has been held sufficient, prima faeiej to main-
tain the allegation on the part of the plaintiff.^
§ 245 a. Covenant to repair. Upon a covenant to repair^ and
issue joined on a general traverse of the breach, the plaintiff must
prove the actual state of the premises, so as to show that they
were substantially out of repair; and in doing this, he will be
confined to the matters expressly alleged as constituting the
breach. If the covenant is general, to repair and keep in repair,
the tenant is not obliged to put in new floors, or the like, but
only to repair the old ; and it is sufficient if, by a timely expen-
diture of money, he keep the premises in substantial repair, and,
as nearly as may be, in the same state in which they were at the
time of the demise.* He is bound, however, under a general
covenant, ^^to repair, uphold, and maintain" a house, to keep up
the painting of inside doors, shutters, &c,;^ and also to rebuild
it if destroyed by fire, unless such casualty is excepted in the
covenant, either expressly or by implication.^ Besides proving
the want of repair, the plaintiff should also prove the damages
thereby sustained ; which is usually done by the evidence of sui^
veyors, carpenters, &c., who have examined the premises, and
estimated ^e cost of putting them into the state in which the
tenant ought to have left them.^ And the jury may also allow
the owner some compensation for the actual loss of use or profit
of the premises, while they were undergoing such repairs.^
§ 246. Proof under plea of non est fiiotiun. The plea of non est
faetumy to a declaration on an indenture of lease, is an admission
of the plaintiff's title to demise.* And generally under this plea
the defendant may prove that the deed was fraudulent ; * or, that
it was delivered as an escrow ; ^^ or, may show any personal inca-
pacity, such as lunacy ,^^ or coverture ; ^ and after production of a
1 Doe V, Payne, 1 Stark. 86. > Doe v. Rickarby, 5 Esp^ 4.
• Soward v, Leggatt, 7 C. & P. 618 ; Harris v. Jones, 1 M. & BoK 178 ; Stanley
V. Towgood, 8 Bing. N. C. 4 ; Oatteridge v. Munyard, 7 C. k ¥. 12»; 1 U. k Bob.
834.
• Monk V. Noyes, 1 C. k P. 266.
• BQllock V, Dommitt, 6 T. R. 660 ; Digby v, Atkinson, 4 Campb. 266 ; Fhillins
V. Stephens, 16 Mass. 238 ; Fowler v, Bott, 6 Mass. 68 ; Weigall «. Waters, 6 T. B.
488 ; Loader v. Kemp, 2 C. & P. 376.
• Penley v. Watts, 7 M. A W. 601. ^ Wood v. Pope, 1 Bing. N. C. 467.
• Friend v. Eastabrook, 2 W. BL 1162. • Anon., Lofit, 467.
» Stoytes V. Pearson, 4 Esp. 266. n Fanlder v. Silk, 8 Campb. 126.
^ Lambart v. Atkins, 2 Campb. 272.
PABT lY.] OOVBNAirr. 247
eounterparty executed by all the plaintiffs, he may produce the
demising part, to prove that it was not executed by them all.^
§ 247. Under plea of pexf ormanoe. Where issue is joined on a
plea of petformancej the defendant assumes the burden of proof,
and therefore is ordinarily entitled to open and close the case.^
1 WilMD V. Woolfryes, 6 M. & W. 841.
> ScoU r. HuU, 8 Conn. 29d. And see ante, vol. L § 7i.
248 LAW OF ETEDKNCB. [PABT lY.
CUSTOM AND USAGE.
§ 248. DefinitloiL Custom is unwritten law, established by
common consent and uniform practice, from time immemorial;
and it is local, having respect to the inhabitants of a par-
ticular place or district. It differs from Prescription^ in this,
that prescription is a personal right, belonging to one or a few
persons, by particular designation, as, for example, the owners of
a certain parcel of land. The term Usage^ in its broadest sense,
includes them both ; but is ordinarily applied to trade ; designat-
ing the habits, modes, and course of dealing, which are generally
observed, either in any particular branch of trade, or in all mer-
cantile transactions.
§ 249. How proved. We have already seen,^ that, in general,
when a local custom, of a public or general nature, is once estab-
lished by a judgment, the judgment is competent evidence of the
existence of the custom, in all other cases, though the parties may
be different. Hence no person is a competent witness to prove a
local custom, stated on the record, who would derive a benefit
from its establishment.^ (a) But in regard to the proof of usages
in any particular trade, persons employed in the particular trade
are held competent witnesses, as standing indifferent ; the usage
in question generally affecting alike both their rights and their
liabilities. These usages, also, when once put in issue and found
by a jury, are afterwards recognized on production of the record ;
and after having been frequently proved, in the course of succes-
sive legal investigations, they are taken notice of by the courts,
without further proof.* They are not, however, permitted to have
effect, when they contravene any established general rule of the
law ; and therefore evidence, in proof of any such usage, is ordina-
1 AfUe, vol. L S 405. > Ibid.
* AnU, vol. L § 5 ; Smith v. Wright, 1 Gaines, 48 ; Gonaeqna v. Willing, 1 Pet
C. C. 280 ; Thomas v. Graves, 1 Const 160 [308].
(a) Since the statates of the Tarioos cnstoms can be proyed byl these persons,
states have taken away the incompetency See anU^ vol. i. § 886, it mq, and notes
of witnesses by reason tji interest^ such to Chapter II. Pt 111.
PAST IT.] CUSTOM AND USAGE. 249
rilj inadmissible.^ The general law-merchant, being part of the
common law, is recognized by the courts without proof .^
§ 250. Iiooal onstoin. In proof of a local custom, it must be
shown to have existed from time immemorial ; to have continued
irithout any interruption. of the right, though the possession may
have been suspended ; to have been peaceably acquiesced in ; and
to be reasonable, certain, consistent with law and with other ac-
knowledged customs, and compulsory on all.^ The existence of a
custom in one place is not admissible in proof of its existence in
another; unless where the custom has respect to some general
subject common to them both, to which it is merely an incident,
such as a general tenure, and the like.^ But where the question is
npon the manner of conducting a particular branch of trade at one
place, evidence of the manner of conducting the same branch at
another place is admissible ; being deemed to fall within the ex-
ception to the rule, as it concerns a matter, in its nature common
to both places.^ So, evidence as to the profits of mines, or the
right to dig turf in fenny lands, in one manor, has been admitted
in proof of the same right claimed in another, the subject being
the same.^
§ 251. Usage of trade. But in regard to the usage of trade, it
is not necessary that it should have existed immemorially ; it is
sufficient if it be established, known, certain, uniform, reasonable,
and not contrary to law.^ (a) These usages, many judges are of
1 Edie V. East India Co., 2 Barr. 1216, 1222 ; Homer v. Dorr, 10 Mass. 26, 29 ;
Lewis V. Thacher, 15 Mass. 431 ; Higdns v. Livermore, 14 Mass. 106 ; Bandall v,
Rotch, 12 Pick. 107 ; Eager v, AtlasTns. Co., 14 Pick. 141 ; Perkins v. Franklin
Bank, 21 Pick. 488 ; Bryant v. Commonwealth Ins. Co., 6 Pick. 181 ; The Reeside, 2
Smnn. 668 ; Bolton v. Colder, 1 Watts, 860 ; Newbold v. Wright, 4 Bawle, 196 ;
Stoever v. Whitman, 6 Binn. 417 ; Brown v. Jackson, 2 Wash. C. C. 24 ; Prescott v,
Hubbell, 1 McCord, 94.
* 2 Barr. 1216, 1222.
* 1 BL Comm. 7^78. And see Freary v. Cook, 14 Mass. 488; Clayton v, CorW, 8
Jnr. 212; 2 Ad. & £1. n. s. 818; Carr v, Foster, 8 Ad. & El. N. a. 681; Hilton v. E. of
Granyilley Dav. & Mer. 614; 6 Ad. & EL N. s. 701; Elwood v. Bollock, 6 Ad. & El. N. s.
883.
^ Foxneanz «. Hntchins, Cowp. 808; D. of Somerset v, France, 1 Stra. 664, 661,
662.
* Noble V. Eennoway, 2 Doug. 610.
* Dean, &c of Ely v, Warren, 2 Atk. 189, per Ld. Hardwicke.
Y 1 Bl. Comm. 76; Todd «. Reid, 4 B. & Aid. 210; CoUincs v. Hope, 8 Wash. 160;
Bapp V. Palmer, 8 Watts, 178; Trott v. Wood, 1 GalL 443; Stultz r. Dickey, 6 Binn.
287; Winthrop v. Union Ins. Co., 2 Wash. C. C. 7; United States v, M'Daniel, 7 Pet.
1; Lowry v. Russell, 8 Pick. 860; Parrott v. Thacher, 9 Pick. 426; Stevens v, Reeyes*
Id. 198; Thomas «. Orayes, 1 Const 160 [308]; Desha v. Holland, 12 Ala. 618.
(a) Commonwealth v. Doane, 1 Cush. sued in the name of one as trustee, and by
6, 11. Eyidenoe that stock certificates is- him transferred in blank, are constantly
260 LAW OF EVIDBNCB. [PABT IT.
opinion, should be sparingly adopted by the courts as rules of law,
as they are often founded in mere mistake, or in the want of en-
larged and comprehensive views of the full bearing of principles.^
Their true office is, to interpret the other?rise indeterminate in-
tentions of parties, and to ascertain the nature and extent of their
contracts, arising not from express stipulation, but from mere im-
plications and presumptions, and acts of a doubtful and equivocal
character ; and to fix and explain the meaning of words and ex-
pressions of doubtful or various senses.^ On this principle, the
usage or habit of trade or conduct of an individual, whidi is
known to the person who deals with him, may be. given in evidence
to prove what was the contract between them.^ (a)
1 2 Samn. 877, Stoiy, J.; Hone v. Matoal Safety Ina. Ok, 1 Sandf. S. C. 187.
' The Reeride, 2 Samn. 569; Macomber v. Parker, 18 Pick. 182; Shaw 9. Mitch-
eU, 2 Met. 65; Goit o. Commercia] Ins. Co., 7 Johna. 885; Harria v, Nicholas, 5 Mnnil
488; Allesre o. Maryland Ins. Co., 2 6. & J. 186. See also ante, voL l § 292; Pow-
ley r. Waaker, 5 T. B. 878; Boe v. Chamock, Peake's Gas. 5; Bex v. Naveetoek, 6
Bnrr. 719 (Set. Gas.). Evidence of nsafle is also admissible to establish a rifht above
and beyond the contract, even though the contract is by deed. Wigglesworth v. Dal-
lison, 1 Doug. 201.
* Loring v. Gumey, 5 Pick. 15; Naylor v. Semmes, 4 Q. & J. 274; Koble v. Kenno-
way, 2 Doug. 510.
sold in the market, is inadmissible, as Cases (ed. 1844), 405 (*300), and notes,
contrary to a rule of law. Shaw v. Spen- The usages of any particular trade, such
oer, 100 Mass. 882. as are uniform or general, are presumed to
(a) Turner v. Yates, 16 How. (IT. S.) be familiar to all persona having transac-
14; Barrett v. Williamson, 4 McLean, 597; tions in that traae or business; and all
Baxter v. Leland, 1 Blatch. Gt. Gt. 526; narties makinja; contncts upon any subject
Hunt V. Carlisle, 1 Gray, 257; Fisher v. leave such incidents as are presumed to be
Saraent, 10 Gush. 250; Warren Bank v, familiar to both parties, and in regard to
Suffolk Bank, Id. 586; Potter v, Morland, which there cannot ordinarily be any
8 Gush: 884; Clark v. Baker, 11 Met 188; misunderstanding, to implication merely.
Mixer v, Cobum, Id. 559; Putnam v. But where the nsage or custom is resorted
Tillotson, 18 Met 517; Macy v. Whaling to for the purpose of controlling the gen-
ius. Co., 9 Id. 854; Baker v. Atlas Bank, eral principles and obUgations of the law
Id. 182; Mussey v. Eagle Bank, Id. 806; of contract, there is no doubt of the neces-
Ghicopee Bank v. Eager, Id. 583; Brad- sity of showing its notoriety, as well as its
ford V. Drew, 5 Id. 188; Perkins v. Jor- reasonableness and justice. The latter
dan, 85 Me. 23; Famsworth v. Chase, 19 Qualities are generally supposed to be suf-
N. H. 584; Knowlee v. Dow, 22 N. H. ficiently shown by the general acquies-
887; Id. 71; Nichols v. De Wolf, 1 B. I. cence of the public in the nsage. 2 Red-
277; Leach v, Beardslee, 22 Conn. 404; field on Railways, 118-121. Though
Cutwater o. Nelson, 20 Barb. 29 ; Wall plasterers may show that it is customaTy
V, East River Ins. Co., 8 Duer (N. Y.), to include windows and other blank spaces
264 ; Steward v, Scudder, 4 Zabr. 96 ; in their measurements, the defendant may
Meighen «. Bank, 25 Penn. St 288 ; Id. show that he did not know it Walls v.
411 : Foley v. Mason, 6 Md. 87 ; Merch- Bailey, 49 N. Y. 464. See also /» rv
•ntef, kc, Ins. Co. v. Wilson, 2 Id. 217; Matthews, L. R. 1 Ch. D. 501. A usage
Fulton Ins. Go. v. Milner, 28 Ala. 420 ; among manufacturing corporations to give
Inglebriffht v. Hammond, 19 Ohio, 837 ; an honorable dischaige to an operative who
Campbell v, Hewlitt, 12 Eng. Law ft Eq. has worked faithfully with them for twelve
875 ; Moure v. Campbell, 26 Id. 522 ; months, and has given a fortnight's notice
Cuthbert v. Gumming, 80 Id. 604 ; Wig. of an intention to leave, whereby such
gleeworth v. Dallison, 1 Smith's Treading operative may obtain employment in other
PABT IT.] CUBTOM AND USAOB. 261
§ 252. Opfnloii not «vid«&oe. Both customs and uss^s must be
proved by evidence of facte, not of mere speculative opinions ; and
by witnesses who have had frequent and actual experience of the
milla at the same place, does not oblige v. Lovely, 26 Vt. 128; Swampscott Machine
those oorporationB to give «ich discharge Co. v. Partridge, 25 N. H. 869; Wadsworih
in all cases where such conditions are com- v. AUcott, 2 Selden (N. Y.), 64; Dixon
plied with. The givins of sach a dis- v, Dunham, 14 III 824. In the case of
charge is a matter of judgment and Humfrey v. Dale, 7 £L & BL 266, in re-
discretion with the corporation. Thorn- gard to the necessity of relaxing the rule
too V. Suffolk Man. Co., 10 Cnsh. 876. of the admissibility of oral evidence to ez-
A policy of insurance which describes plain the import of commercial terms and
the nsk as a "machine-shop, a watchman memoranda in written contracts between
kept on the premises," does not reouire a merchants and business men, Lord Camp-
watchman to be kept there constantly, but bell, C. J., said: '*The only remaining
only at such times as men of ordinary question is, having stated a purchase for a
care and skill in like business keep a tnird person as pnncipal, is there evidence
watchman on their premises; and the on which they themselves can be made
usage of similar establishments, in this liable? Kow neither collateral evidence,
respect, may be shown to explain what is nor the evidence of a usage of trade, is re-
ordinary care and skill. Crocker «. Peo- ceivable to prove anything which contra-
ple*s, &c. Ins. Co., 8 Cush. 79. diets the terms of a written contract; but
A usage at an inn for the guests to subject to this condition, both may be re-
leave their money and valuables at the bar ceived for certain puiposes. Here the
or with the keeper of the house, aa a con- plaintiff did not seek, by the evidence of
dition precedent to the liability of the usage, to contradict what the tenor of the
innkeeper for the loss thereof, is not bind- note primaril}' imports; namel}^ that this
ing upon a guest, unless he has actual was a contract which the defendants made
knowledge or notice of it; and whether as brokers. The evidence, indeed, is based
h0 has such knowledge or notice, is a on this. But the plaintiff seeks to show
question of fact for the jury. Berki^ixe that, according to the usa^ of the tradsg
WooUen Co. v. Proctor, 7 Cush. 417. and as those concerned in the trade under-
A usage which shows when a voyage stand the words used, they imported some-
is teiminated so £ur aa relates to the pav- thing more; namely, that if the buying
ment of premium notes, is not applicaue broker did not disclose the name of his
to ahow when a voyage terminates with principal, it might become a contract with
referanoe to the payment of losses. Meigs him ii the seller pleased. The principle
«. Mutual, ftc. Ins. Ca, 2 Cush. 489. Nor on which evidence is admissible is, that
can a usage among the owners of vessels the parties have not set down on paper the
at particular ports to pay l^s, drawn by whole of their contract in all its terms,
masters for supplies furnished to their ves- but those only which were necessanr to be
sds in foreign ports, bind Uiem aa ac- determined in the particular case by spe-
eeptors of such bills. Bowen o. Stoddard, dfic clement, and which of course might
10 Met 876. Nor can a general usage, vai^ infinitely, leaving to implication and
and not the usage of any particular place, tacit understanding sL those general and
or trade, or class of dealers, or course of unvaryiuff incidents which an uniform us-
dealing, be slven in evidence to control a^e woula annex, and according to which
the rules of law. Strong v. Bliss, 6 Met they must in reason be understood to con-
808. No usage and no agreement, tadt tract, unless they expressly exclude them.
or express, of the parties to a promissory To fall within the exception, therefore, of
note» as to presentment, demand, and no- repugnancy, the incident must be such as,
tioe, will accelerate the time of payment, if expressed in the written contract, would
and bind the maker to pay it at an earlier make it insensible or inconsistent It is
day than that which is fixed by the law the business of courts reasonably to shape
that applies to the note. Mechanics' these rules of evidence so as to make them
Bank, kc v. Merchants' Bank, Ac., 6 suitable to the habits of mankind, and
Mete 18; Adams v. Otterbaok, 15 How. such as are not likely to exclude the ac-
(U. S.) 589; Bowen v. Newell, 4 Selden tual &cts of the dealings between parties
(N. Y.X 190; 2 Duer, 584. Nor can cus- when they are to determine on the con-
torn or usage ever be given in evidence, *troversies which grow out of them." See 1
to vaiy or control an express contract Redfleld on Railways, 127-129.
Evans v. Myers, 25 Peon. St 114; Linaley
252 LAW OF ETIDENCB. [PABT lY.
custom or usage, and do not speak from report alone.^ The wit-
nesses must speak as to the course of the particular trade ; they
cannot be examined to show what is the law of that trade.^ And
though a usage is founded on the laws or edicts of the govern-
ment of the country where it prevails, yet still it may be proved
by parol.* It has also been held, that the testimony of one wit-
ness alone is not sufficient to establish a usage of trade, of which
all dealers in that line of trade are bound to take noticed (a)
1 Edie 9, E. Ind. Co., 2 Boir. 1228, per Wilmot, J.; Sayill v. Baichard, 4 Esp. 54,
per Ld. Kesyon ; Austin v, Taylor, 2 Ohio, 282.
' Kuan V, Gardiner, 1 Wash. C. C. 145; Winthrop v. Union Ins. Co., 2 WasL C.
C. 7; Anstin v, Taylor, 2 Ohio, 282.
* Liyingston v. Maryland Ins. Co., 7 Cranch. 500, 539; Drake v, Hudson, 7 H.
k J. 899.
* Wood V, Hickok, 2 Wend. 501; Panott v. Thacher, 9 Pick. 426; Thomas v. Qnm,
1 Const. 150 [3081 The testimony of one witness is proof of commercial us^e, if he
has full means of knowledge, and his testimony is explicit and satisfactoiy. Sy Foot»
J. Vail V. Rice, 1 Selden (N. Y.), 155. The testimony of one of the directors of an
insurance company as to the practice of the company in regard to (dving consent to
second insurances, so far as his knowledge went, is not sufficient to oind the insured
who has no knowled^ thereof. Goodall v. New Eng. Fire Ins. Co., 25 N. H. 169. In
Bissell V. Ryan, 23 111. 566, it was held that a custom or usage cannot he established
by the testimony of a single witness.
(a) The law is now settled in Massachn- Mass. 585. Cf. Yafl v. Bioe, 1 SekL (N.
setts that onewitness is competent to testify Y.) 155; Robinson v. United Stately It
to a custom or usage, and that the fact that WalL (U. 8.) 863. See 1 Sm. L. On.
only one witness testifies is only matter of (7th ed.) 782.
comment to the jury. Jones v. Hoey, 128
PABT IT.] DAMAQEB. 268
DAMAGES.
§ 258. Defiiiitlon. Damages are given as a compensation, rec-
ompense, or satisfaction to the plaintiff, for an injury actually re-
ceived by him from the defendant. They should be precisely
commensurate with the injury, neither more nor less ; ^ and this
whether it be to his person or estate.^ Damages are never given
1 Co. Lit. 257 a; 2 Bl. Comra. 488 ; Rockwood v, Allen, 7 Mass. 256, per Sedg-
wick, J. ; Bossy v. Donaldsoii, 4 Dall. 207, per Shippen, C. J. ; 8 Amer. Jur. 257.
' Since ^e first edition of this volume, Mr. Sedgwick has ffiven to the profession a
Talaable treatise on the Law of Daniaffes, in which ne denies the soundness of the gen-
eral rale here stated; and lays down the broad proposition, that, ** wherever the ele-
ments of fraud, malice, groes negligence, or oppression mingle in the controversy, the
law, instead of adhering to the system, or even the language of compensation, adopts
a wholly different rale. It permits the jury to give what it terms punitory, vindictive,
or exemplary damages; in other words, blends together the interest of society and of
the aggrieved individual, and gives damages, not only to reeonipenae the auferer, but to
punm the offetuUr," Sedgwick on Damages, p. 89. However this view may appear
to be justified by the general lauffuage of some judges, and by remarks gratuitously
made in delivering judgment on other questions, it does not seem supported to that ex-
tent Ir^ any exffresa decision on the point, and is deemed at variance not only with ad-
judged cases, but with settled principles of law. This will be apparent from an
examination of the authorities on which the learned author relies.
In the first case cited in support of his position, that of Huckle v. Money, 2 Wils.
205, which was an action to try the Icffalitv of an arrest under a general warrant issued
by the Secretary of State, the jury round a verdict for £800, which the defendant
moved the court to set aside as excessive. But the motion was denied, on the ground
that the damages were pro{>erly left at large to the jury, with instractions that they
were not bound to any certain rale, but were at liberty to consider all the circumstances
of oppression and arbitrary power by which the great constitutional right of the plain-
tiff was violated, in this attempt to destroy the lioerty of the kinsdom. All which the
jury were thus permitted to consider were circumstances going in aggravation of the
injury itself which the plaintiff had received, and so were admissible under the rale aa
stated in §§ 266, 272, of the text The case of Tullidge v. Wade, 8 Wils. 18, was of
the same class. It was trespass for breaking and entering the plaintiff's house and de-
bauching his daughter; and the jury were instracted to take into consideration the
plaintiflTs loss of ner service, and the expenses of her confinement in his house. The
verdict, which was for £50, was complained of as excessive; but the court thought
otherwise, **the plaintiff having received the inetUt in hie own houae, where he had
civilly received the defendant, and ))ermitted him to make his addresses to his daugh-
ter." And it was observed by Bathurbt, J., that, '* in actions of this nature, and of as-
saults, the eireumstaneea of time and place, when and where the inauU is given, require
different damages, as it is a greater insult to be beaten upon the Royal Exchange than
in a private room." It thus appears that in this case the damages were limited to the
extent of the injury received by the plaintiff; and that the remark of Wilmot, C. J.,
relied on by the leaned author, was altogether gratis dictum. In Doe v. Filliter, 18
M. & W. 47, which waa trespass for mesne profits, the only question was, whether in
estimating the costs of the ejectment, as part of Uie plaintiff's damages, the plaintiff
was confined to the costs taxeid, or might oe allowed the costs as between attorney and
client. The remark of Pollock, 0. B., respecting what are called "vindictive dama-
ges," though wholly gratuitous, is explained by himself to mean only that the jury
may ** take all the drcurmtanees into their consideration," namely, the circumstances
264 LAW OF BVIDENCB. [PABT IT.
in real actions ; but only in personal and mixed a(^tion8. In some
of the American States, the jury are authorized by statutes to
of the injury inflictedt so far as they affected the plaintiff. The like may be observed
of what Mr. Justice Washington said in Walker v. Smith, 1 Wash. C. U. 152, which
was an action against the plaintiff's factor, to recover the balance due to the plaintiff
for goods which the factor had sold without taking collateral secnritv, in violation of
orders, the purchaser provine insolvent, and partial payment only having been ob-
tained. The question was, whether the jniy might assess damages in their discretion,
for less than the plaintiff's actual loss, taking into consideration all the favorable cir-
cumstances on the defendant's part; or whether they were bound to give the plaintiff
the precise sum which he had lost by the violation of his orders. And the jnd^ in-
structed them that the latter was the sole measure of damages; remarking, passingly,
that in suits for vindictive damages the jury acted without control, because there was
no legal rule by which to measure them. His meaning apparently was, that in actions
** sounding in damaffes," the court bad no control over the sound discretion of the jury;
but that where the damages were susceptible of a fixed and certain rule, the jury were
bound by the instructions of the court. The case of Tillotson v, Cheotham, 3 Johns.
56, is also relied upon. This was case for libel; in which the jury were instructed by
Kent, C. J., '* that the charae contained in the libel was calculated not only to injure
the feelinge of the plaintiff, out to destroy all confidence in him as a public officer; and
in his opinion demanded from the jury exemplary damages, as weU on account of the
nature of the offence charged against the plaintiff, as for tne protection of his character
as a puMic ojficer, which he stated as a strong circumstance for the increase of dama-
ges; " adding, ** thxLt he did not accede to the doctrine that the jury ought not to pun-
ish the defendant, in a civil suit, for the pernicious effects which a publication of this
kind was calculated to produce in society." Here the grounds of danis^es positively
stated to the jury were expressly limited to the degree of injury to the plaintiffs either
in his feelijigs or in his character as a public officer. The rest is mere negation. The
jury were not instructed to consider any other circumstances than those which affected
the plaintiff himself; though these^ they were told, demanded exemplary damages. In
this view, all damages, in actions ex dkieto, mav be said to be exemplary^ as having a
tendency to deter otners from committing the like iniuries. These instructions, there-
fore, were in accordance with the rule already stated. In support of them, the Chief
Justice relies on Huckle v. Money and Tullidge v. Wade. He also refers to Pritchard v,
Papillon, 8 Haig. St. Tr. 1071; 8. c. 10 Howell, St. Tr. 319, 370, which was essentially a
controversv between the crown and the people, before " the infamous Jeffries," who told
the jury that '* the government is a thing that is infinitely concerned in the case that
makes it so popular a cause; " and pressed them, with disgraceful zeal, to find large dam-
ages for that reason; and for their compliance in finding £10,000, which was the amount
or the ad damnum^ he praised them as men of sense, to be greatly commended for it.
The ruling of that judge, in favor of the crown, will hardly be relied upon at this day
as good authority. But in Tillotson v. Cheetham, the learned Chief Justice, in saying
that the actual pecuniary damages in actions for tort are never the sole rule of assess-
ment, probably meant no more than this, that the junr were at liberty to consider all
the danu^s accruing to the plaintiff from the wrong aone, without being confined to
those which are susceptible of arithmetical computation. The remark of Spencer, J., '
beyond this was extrarjudicial. In Woert v, Jenkins, 14 Johns. 852, which was tres-
pass for beating the pUintiff's horse to death, with circumstances of great barbarity,
the jury were told that they *'had a right to give smart-money;" by which nothing
more seems to have been meant than that they might take into consideration the cir-
cumstances of the cruel act, as enhancing the injury of the plaintiff by the laceration
of his feelings. In Boston Manufacturing Company v. Fiske, 2 Mason, 119, the
only question was, whether, in case for infringing a patent, the plaintiff might recover,
as part of his actual damag^, the fees naid to his counsel for vindicating his right in
that action. The observations of the learned judge, quoted by Mr. Sedgwick, were
made with reference to the practice in admiralty, in cases of marine torts and prize,
where a broader discretion is exercised than in courts of common law, the court fre-
quently settling in one suit all the eouities between the parties in regard to the subiect-
matter. The next case adduced Ib tnat of Whipple v, Walpole, 10 N. H. 130, which
was a case against the town of Walpole to recover damages for an injury arising from
the defective state of a bridge, whica the defendants haa grossly neglected to keep in
PABT lY.] DAMAGES. 266
assess, in real actions, the damages, which by the common law are
given in an action of trespass for mesne profits; but this onlj
converts the real into a mixed action.
reptir. The bridge had broken down while the plaintiff's sta^ coach was passing
over, in consequence of which his horses were destroyed. The jary were instructed,
** that for ordinuy neglect the plaintiff could not recover exemplary damages, but that
such damages might be allowed in the discretion of the Jury, in case they believe there
had been gross neffligence on the part of the defendants." The Question seems in fact
to have been, whether the jury were confined to the value of the horses, or might take
into consideration all the circumstances of the injury. The sole Question before the
court in bank was, whether the above instruction was correct; ana they held that it
The remark that the jury might give " damages beyond the aetiuU injury sus-
tained, for the sake of the example," though gratuitous and uncalled for, seems qualified
by the subsequent observation, that the jury, in cases of gross neglieence, " were not
boond to be very exact in estimating the amount of damages; " and probably the learned
judges meant to say no more than uiat in such cases the court would not control the dis-
cretion of the jury, but would leave them at liberty to consider all the circumstances of
the injury, and award such damages as they thought proper. See, to the same effect,
Kendall v, Stoue, 2 Sandf. S. C. 269; Tifit v. Culver, 8 Hul, 180. In linsley v. Bush-
nell, 15 Conn. 225, which was a case for an izgury to the plaintiff's person, occasioned
by an obstruction left in the highway by the wanton negligence of the defendant, the
question was, whether the jury, in tne estimation of damages, were restricted to the
KMS of the plaintiff's time, and the expenses of his cure, £&., or might also allow, as
part of his damages, the necessaiy trouole and expenses incurred in tne prosecution of
his remedy by action. And the court held that these latter were fair subjects for their
consideration. " The circumstances of ag^vation or mitigation," said the court; ** the
bodily pain; the mental anguish; the injury to the plaintiff's business and means of
livelihood, past and prospective, — all tnese and manv other circumstances may be
taken into consideration by the jury, in guiding their discretion in assessing damages
for a wanton personal ii^my. But these are not all that go to make up the amount of
damase sustained. The bill of the surgeon, and other pecuniary charges, to which
the plaintiff has been necessarily subjected by the misconduct of the defendant, are
equally proper subjects of consideration." And it is in express reference to the pro-
priety or allowing the trouble, and expense of the remedy, that the observation respect*
ing vindictive damages, or smart-money, quoted by Mr. Sedgwick, seems to have oeen
made. For the learned judge immediately cites, in support of his remark, certain
anthorities, which will herea&r be mentioned, not one of which warrants the broad
doctrine which is now under consideration; and he concludes by Quoting from one of
them, with emphasis, the admission, that *" where an important rignt is in question, in
an action of trespass, the court have given damages to indemnify the party for the ex-
pense of establishing it," This is conceived to be the extent to which the law goes, in
civil actions for damages, beyond the circumstances of the transaction.
The learned author further observes, that the doctrine he lays down has been fully
adopted by the Supreme Court of the United States; and cites Tracy v. Swartwout, 10
Peters, 80. That was an action of trover against a collector of the revenue, for cer-
tain casks of syrup of sugar-cane, which the importer had offered to enter and bond at
the rate of fifteen per cent ad valorem, but the collector, acting in good faith, required
bond for a datv of three cents per pound. The importer refusing to do this, the goods
remained in tne hands of the defendant for a long time, waiting the decision of the
Secretary of the Treasury; who being of opinion that the lighter duty was the legal
one, they were accordingly delivered up to the importer at that rate of duty; but, in
the mean time, had become deteriorated by growing acid. The judge of the Circuit
Court instructed the jury, that the circumstances of the dispute ought not to subject
the collector to more than nominal damages; to which exceptions were taken. The
sole question on this subject was, whether tne plaintiff was entitled to the damages he
had actually sustained; and the Supreme Court held that he was so entitled. It was in
reference to this question only that the terms exemplary and compensatory damages
were used; the question whether, in any case, damages could be given by way of pun-
ishment alone not appearing to have crossed the minds either of the jnd^ or the
counsel.
The last case cited by the author is that of the Amiable Nancy, 8 Wheat. 546, which
266 LAW OP BVIDBNCB. [PART IV.
§ 254. Must result from injury complained of. All damages must
be the re9ult of the injury complained of ; whether it consists in the
was a libel for a marine tort, brought by neutrals against the owners of an American
privateer for illegally capturing tbeir vetisel as a prize, and for plundering the goods on
board. The question was, whether the owners of the privateer, not having in any re-
spect participated in the wrong, were liable for any damages beyond the prime cost or
value of the property lost, and, in case of iiguty, for the diminution in its value, with
interest thereon; and the court held, that they were not; and accordingly rejected tho
claim for all such damages as rested in mere discretion. To what extent the immedi-
ate wroug-doers might have been liable was a question not before the court; yet it is to
be noted, that in the passing allusion which the learned judge makes to their liability,
he merely says that, in a suit against them, it might be proper to go yet farther, in the
8ha|)e of exemplary damases, but does not say that it would be; for his attention was
not necessarily drawn to that point.
The case also of Grable v. Mai^prave, 8 Scam. 872, has been elsewhere adduced in
support of the rule now controverted. It was an action upon the case, for seduction
of the nlaintiff' s daughter; in which the judge ])ermitted the plaintiif to offer evidence
both of his own poverty and of the necuniary ability of the defendant; to which ruling
the defendant took exception. And the court held the ruling right, observing, that
the father was entitled to recover not only for the loss of service, and the actual ex-
penses, but for the dishonor and disgrace ctist upon him and hia family, and for the
loss of the society and comfort of his daughter. Clearly this decision was in perfect'
consonance with the doctrine in the text, § 269; but the remark of the learned iudge
who delivered the opinion of the court, that, "in vindictive actions, the iuiy are always
permitted to give damages, for the double purpose of setting an example, and of pun-
ishing the wrong-doer," was uncalled for by the case in judgment, and therefore cannot
be imputed to the court. In Cook v, Ellis, 6 Hill (N. Y.), 466, the question seems to
have been between actual and exemplary damages, in the popular sensd of those words.
It was an action of trespass, for an assault and battery. The defendant had already
been indicted and fined $250 for the act; and he insisted that this was a bar to all further
claim of the plaintiff, "beyond actual damages;" but the judge told the jur^, that
"these proceedings did not prevent them from giving exemputry damages, if they
chose; though the fine and payment were proper to be considend, in fixing the amount
to be allowed the plaintiff.' The judgment is reported in a per curiam opinion; but
it appears that the motion of the defendant for a new trial was denied; and the court
are reported as saying, among other things, that ** smart-money allowed by a jury, and
a fine imposed at the suit of the people, depend on the same pnnciple. Both are penal,
and intended to deter others from the commission of the like crime. The former, how-
ever, becomes incidentallv oompejuatory for damages, and at the same time answers the
purposes of punishment' From this and other expressions, it may well be inferred,
that by actual damages the court meant those which were susceptible of computation;
and tnat by exemplary damages, or smart-money, they intendea those damages which
were given to the plaintiff for the circumstances of aggravation attending the injury
he had received, and going to enhance its amount, but which were left to the discretion
of the jury, not being susceptible of any other rule. But as a decision, the case ex-
tends no further than this, that in an action for trespass to the person, the payment of
a fine, upon a criminal conviction for the same offence, cannot go in mitigation of the
damages to which the plaintiff is entitled. The case of Johnson v. Weedman, i Scam.
495, sometimes also cited, is still less to the point. It was trover for a horse, bailed to
the defendant for agistment, and used by him without leave, but under circumstances
entitling the plaintiff to no more than nominal damages. And the jury having found
for the defendant, the court refused to disturb the verdict. To these may be added
the case of McKamara v. King, 7 III. 432.
From this examination of She authorities, adduced in support of the position, that,
in the cases alluded to, damages may be ^piven purely by wajr of punishment, irre-
spective of the degree and circumstances of injury to the plaintiff, it is manifest that
it has not the countenance of any express decision upon the point, though it has the
apparent support of several obiter duia, and may seem justified by the terms " exem-
piaiT damage,'* " vindictive damages," " smart-money," and the like, not unfrequently
used by judges, but seldom defined. But taken in the connection in which these terms
have been lued, they seem to be intended to designate in general those damages only
•
1
PAST lY.] DAMAGES. 257
withholding of a legal right, or the breach of a duty legally due
to the plaintiff. Those which nee€%%ar%ly result are termed general
which are incapable of any fixed nile, and lie in the discretion of the inir ; sach as
damages for mental anguish, or personal indignity and disgraee, &c., and these, so for
only as the sufferer is himself affected. If more than this was intended, how is the
party to be protected from a double punishment f For after the jury shall have con-
sidered the iiguiT to the public, in assessing damages for an aggravated assault, or for
obtaining goods by false pretences, or the lue, the vrrong-doers are still liable to indict-
ment and nne, as weU as imprisonment, for the same offence. See Warren v. Austin,
4 Cush. 273.
This view of the true meaning of those terms was taken by Smith, J., in Churchill
V. Watson, 5 Day, 144. It was trespass de bonis cuportcUiSf committed with malice,
and with circumstances of peculiar aggravation, to prevent the plaiutiff from oomplet-
iog a contract for buildiuff a vessel. And the question was, whether the jury were
confined to the value of .the property taken, and presumptive damages for the force
only ; or whether they might consider all the aggravating circumstances attending the
trespass, and the plaintifi^s actual damage sustained by it. The court held the latter.
The learned judge renuirked, that, " in actions founded in tort, the first object of a
J'niy should be to remunerate the ix^jured party for all the real damage he has sustained.
M doing this, the value of the article taken or destroyed forms one item ; there may
be others, and in this case I think there were others." He then mentions the inter-
ruption and delay which occurred in building the vessel, as of the class of damages to
wrhich he alludes, and adds, that he shall not attempt to draw the line between conse-
quences which may properly influence a jury in assessing damaces, and those which are
8o far remote and depetutentupon other eauaes^ that they eawnolhe taken into considera-
tion. ** In addition," he observes, *' to the actual damage " (meaning, doubtless, from
the connection, the direct pecuniary damage above alluded to) *' which the party sus-
tains in actions founded in tort, the iury are at liberty to give a further sum, which
is sometimes called vindictive, sometimes exemplary, and at other times presumptive,
damages. These, from their nature, cannot be governed by any precise rule, but are
assessed by the jury, upon a view of all the circumstances attending the transaction^"
He afterwards says : ** Indeed, I know of.no such thing as presumptive damages for
force. It is a wrong, for which the law presumes damages, and the amount will depend
on the nature, extent, and enormity of Uie lorong ; but force partakes not of the nature
of light or wrong, in such a manner that the law can raise any presumption." A
similar view of the rule of damages in torts had previously been taken by the court in
Edwards v. Beach, 8 Day, 447, which was trespass for destroying a tavem-keeper^s
aign ; the plaintiff claiming damages commensurate with the injury, and the defendant
resisting all but the value of the sign. So, in Dennison v, Hyde, 6 Conn. 508, which
was trespass for carrying awaj' the plaintiff's vessel, the rule was held to be, that, in
tort, " not only the direct damage, but the probable or inevitable damages, and those
which result from the aggravating circumstances attending the act, are proper to be esti-
mated by the jury." So, in Treat v. Barber, 7 Conn. 274, which was trespass, the de-
fendant naving broken open the plaintiff's chest, containing her wearing-apparel, and
used langua|;e, in relation to the contents of it, that wounded her feelings, it was held,
that these circumstances were proper to be considered by the jury, as aggravating the
tHJury and so increasing the damages. In Merrills v. Tariff Manuf. Co., 10 Conn. 884,
which was an action on the case, the court referred to the malice, wantonness, and spirit
of revenge and ill-will, with which the act was done, and observed, that " these circum-
stances of aggravation may, with great propriety, be considered in fixing the remunera"
iian to which the plaintiff is entitled,*' The same view of the true meaning and limit
of the term ** vindictive damages" was taken by Lord Abinger, C. B., in Brewer v.
Dew, 11 M. & W. 625, which was trespass for groundlessly seizing and taking the
plsintiff^s goods, per quod he was annoved and injured in his business, and believed to
be insolvent, and certain lodgers left his house, &c. The defendant nleaded the bank-
ruptcy of the plaintiff in bar of the action ; to which the plaintiff demurred ; thus
raising the question, whether the damages passed to the aasi^ees. And the Lord
Chief Baron said : "The substantial ground on which this case is to be decided is this,
— whether, on this declaration as it stands, the judse could give vindictive damages
for the seizina and taking of the goods beyoTid their value. For the breaking and fnter^^
ta^ it is admitted they might give damages beyond the amount of the actual iiynry "
VOL. II. 17
258 LAW OP EVIDENCE. [PABT IV.
damages J being shown under the ad damnum^ or general allegation
of damages, at the end of the declaration ; for the defendant must
(evidently meaning, beyond the injury to the property), "Kow I think that under
thia declaration the plaintilf might give evidence to ehow that the entering and the
seizure of goods were made under a false and unfounded pretence of a legal clum, and
that thereby the plainliff vxu greatly annoyed and disturbed in canying on his busi-
ness, and was believed to be insolvent, and that, in cKmsequenoe^ his lodgers left him.
Might not the jury then eive vindictive damages for such an iruury, beyond the mere
value of the goods f" Here it is plain, that by "vindictive damages" the learned
judge intended only the damages which the plaintiff had sustained, beyond the value
of his goods; and not those, if any, for any supposed injury to the public at large. Such
also was plainly the sense in which Mr. Justice Story used this term in Whittemore
». Cutter, 1 Gall. 488. "By the terms 'actual damage,'" said he, "in the statute
(referring to the patent act), are meant such damages as the pUdntiffiB can actually
prove, and have in fact sustained, as contradistinguished to mere imaginary or exem-
plary damages, which, in personal torts, are sometimes given. In mere personal torts*
as assaults and batteries, defamation of character, &c., the law has, in proper cases,
allowed the party to recover not merely for any actual injury, but for the mental anxi*
ety, the public degradation and tooundxt sensibUUy, which honorable men feel at viola-
lions of the sacredness of their persons and characters" It ssems superfluous to state at
larve the peculiar cases in which a similar rule has been laid down. It was emphati-
cally but briefly stated by Williams, C. J., in Bateman v, Goodyear, 12 Conn. 580,
which was trespass for an aggravated forcible entry, in these words : " What then
is the principle upon which damages are given in an action of trespass t The party
is to be indemnifiea for what he has actnally suflered ; and then all those circumstances
which give character to the transaction are to be weighed and considered." He cites
the above case of Churchill v. Watson, and refers to Braceffirdle v. Orford, 2 M. & 3.
77, where the circumstances of the entry into the plaintiff's house, namely, upon a falsa
charge of concealment of stolen goods, to the injury of her reputation, were held proper
for the consideration of the jury ; Le Blanc, J., remarking, " tnat it is always the practice
to give in evidence the circumstances which accompany and give a character to the tree-
pass.'* The party is to be indemnified; nothing more. But every circumstance of the
transaction tending to his injury is to be considered. At this limit the jury are to stop,
— a limit carefuUv marked by the court in Coppin v. Braithwaite, 8 Jur. 875. They
may weigh every fact which goes to his ii^'ury, whether in mind, body, or estate; but
are not at liber^ to consider facts which do not relate to the iigury itself, nor to its
consequences to the plaintiff. In other words, they cannot go beyond the issue; which
is the ffuilt of the defendant, and the damage it did to the plaintiff ; for thia only did
the defendant come prepared to meet Such plainly was the principle of the decision
in the cases already cited ; as it also was in Hall v. Conn. R. Steamboat Co., 13 Conn.
320, which was case for an inhuman injury to a passenger ; in Southard v. Rexford, 6
Cow. 264, which was for breach of a promise of marriage; in Miyor v, PuUiam, 3 Dana,
592, which was trespass qunre clausum fregit ; and in Kockwood v. Allen, 7 Mass. 254,
which was case for the default of the sheriff's deputy. In all these cases there were
circumstances of misconduct and gross demerit on the part of the defendant, richly de-
serving punishment in the shape of a pecuniary mulct, and fairly affording a case for
damages on that ground alone ; yet in none of them do the court intimate to the jury
that they may assess damages for the plaintiff to any amount more than commensurate
with the injury which he sustained. See also Matthews v. Bliss, 22 Pick. 48.
The most approved text-writers, also, justify this rule of damages. Thus Blackstone^
2 Bl. Couim. 438, defines damages as the money " given to a man by a jury as a com"
pensation or satisfaction for some injury sustained ; as for a battery, for imprisonment,
for slander, or for trespass." Hammond, Law of Nisi Prius, p. 83, limits the remedy,
by an action of trespass, to the recovery of "a compensation for the ininry sustained,**
Id. pp. 43-48. And it is worthy of remark, that Ch. Baron Comyns, in treating ez-
pressiy of damages, nowhere intimates a power to assess them beyond this. 8 Com.
Dig. Damages, £. The same opinion was entertained by Lord Denman, who observed,
that "the principle on which actions are maintainable is not the punishment of guilty
persons, but compensation to innocent sufferers." Filliter o. Phippard, 12 Jur. 202,
204 ; 11 Ad. It £1. K. s. 356. Dr. Rutherforth, also, defines " damages " with equal
strictness. " By damage, we understand every loss or diminution of what is a masCt
PABT IT.] DAMAGES. 259
be presumed to be aware of the necessary consequences of his con-
duct, and therefore cannot be taken by surprise in the proof of
own occasioned by the fkult of another." 1 Buthf. Inst. b. 1, c. 17, § 1, p. 885 (Phila.
ed.), 1799. He follows Grot de Jur. BeL lib. 2, c. 17, | il This chapter of Ruther-
forth is a precise and luminous statement of the principles on which damages ought
to be computed ; but nowhere countenances the position of Mr. Sedgwick. In the
only passage which he has cited, as looking that way, viz., a paragraph in § xiv. p.
400, the author is speaking of the rule of reparation where there is no malice ; and in
stating the degree of fault, he thinks that the grossest faults may well deserve punish-
ment ; but he does not there intimate how the punishment should be inflicted. The
whole passage is as follows : '*The obligation to make rejiaration for damages done by
our means is not confined to those actions only which are criminal enough to subject us to
punishment. Though there is no decree of malice in an action l^ which another is in-
jured, yet it may arise from some faulty neglect or impmdence in him who does it, or
IS the occasion of its being done ; and when any person has suffered damsge, for want
of his taking such care as he ought to have taken, the same law which obliged him, as
far as he was able, to avoid doing harm to any man, cannot but oblige him, when he
has neglected this duty, to undo, as well as he can, what harm he has been the occa-
sion of ; that is, to make amends for the damage which another has sustained through
his nadsct.
" Those faults which consist in neglect are sometimes divided into three degrees :
a great fault, which is such a neglect as all men may well be supposed and ought to
guard against ; a small fault, which is such a n^lect as discreet and diligent men are
not usually guilty of ; and the smallest fault, which is such a neglect as the most exact
and most prudent take care to avoid.
*' Indeed, in many instances of gross faults, it is so difficult to distinguish between
the mere neglect and a malicious design, that, besides the demand of reparation for
damages done, some punishment may reasonably be inflicted upon the person so of-
fending.
"Sometimes, and especially in what may seem faults of the lower degrees, the
damage which arises from our supposed neglect will be found upon inquiry to have
rather been owing to the neglect of the person who suffers it; and then we are not only
clear from all guilt that may subject us to punishment, but from all blame that might
oblige us to make reparation." See Sedppxrick on Damages, p. 488, n.
On the contrary, I)r. Rutherforth, a little farther onward, in the same book, c. 18,
expressly denies uie right of the party iigured to anything more than compensation
for the damages he has sustained. He saj's : ** As the heirs of the criminal have no
claim to such goods as he loses in the way of punishment, so neither has the injured
person anv, considered merely as the injured person. He has, indeed, a riffht to so
much of the criminal's goods as will make him amends for the damage which he has
suffered; but no reason can be given why he should have a right to more ; unless some
positive law has given him such a right The ends which justify punishment will by
no means extend his claim any faxiher than this. The criminal, by suffering in his
goods, may be discouraged or prevented from offending again ; but a design to dis-
courage or prevent him from ofiendinff again can he no ground for that person whom
he has injured by offending once to claim property in the goods which he is deprived
of. The ends of punishment may be answered by takinff the criminaVs eoods from
bim; but these enos do not require that the property which he loses should be vested in
the person whom he has izgured." See 1 kutherforth's Institutes, b. 1, c. 18, § xiv.
p. 434.
It was solely upon this ground of compensation to the plaintiff for the injurv to his
feelings by the very insulting conduct of the defendant, that the verdict was held good
in Merest v. Harvey, 5 Taunt 442. Lord Eenyon has sometimes been quoted as hav-
ing said, that though a plaintiff may not have sustained an injury by adultery, to a
S'ren amount, yet that large damages, for the sake of public example, should be given.
nd this supposed opinion of his was alluded to in tne case of Markhara v, Fawcett.
But Mr. Erddne, who was for the vlairUiff in that action, protested that "he never
said any snch thing." '* He said ttiat every plaintiff had a right to recover damages
up to the extent of Vie injury he had received ; and that public example stood in the
way of showing favor to an adulterer, by reducing the damages below the sum which
the jury would otherwise consider as the lowest compenaaiion for the icrong.** 2 £rs-
262 LAW OF EVIDENCE. [PABT IT.
quences of the act complained of, are not the neeeMary result of
it, thej are termed special damages ; which the law does not imply ;
inflame the damages." Why not, if it was "an offence against morals f " For it certainly
most have been deemed such an offence. And in Rose v. Story, 1 Barr, 190, 197, in
trespass de, bonis tujfortaiis, where the jury had been allowed, in addition to the value
of the property, to give such further damages as *' under all the eireumttanees of the aue,
as argued oy the counsel, they might think the plaintiff entitled to demand;" the same
court held the instruction wrong, as giving the jury ''discretionarv power without
stint or limit, highly dangerous to the rights of the defendant,'* and ** leaving them
without an^ rule whatever."
The subject of vindictive damages has recently been before several other American tri-
bunals. In the Circuit Court of the United States, in Taylor v. Carpenter, 10 Law Re-
porter, 35, 188 ; 2 Woodb. & Minot, 1, 21, which was case for counterfeiting the plaintiffs
marks on goods of the defendant, in which Sprague, J., had instructed the jury to give
exemplary damsij^es, for the sake of pubUc example, the verdict was allowed to stand,
as it appeared that the jury had not given more dama^ than, upon computation, the
plaintiff had actuallv sustained. But Woodbury, J., in giving judgment, referred to
the doctrine as statea in the text of this work, and in 8 Am. Jur. 287-308, without dis-
approbation ; and Spra^e, J., with great candor declared, that he had become satisfied
tnat his ruling upon this point, at the trial, was wrong. And it is worthy of note, that
in a similar case, namely, an action on the case for counterfeiting the plaintiff's trade-
marks, recently determined in England, it was held, that the proper rule of damages
was the actual ii^'ury sustained bv the plaintiff ; and it was observed by Coltman, J.,
that it would not have been at all unreasonable for the jury to have found damages to
the amount of the profit made by the defendant upon the transaction in question. But
there was no iutimation that it was in any view of the case lawful to go further. Rod-
gers V, Nowill, 11 Jur. 1039. So, in a later case, which was trespass against two^ one
of whom had acted from bad motives, and the other had not, it was held that the dam-
ages ought not to be assessed with reference to the act and motives of the most guilty
or the most innocent, but according to the whole injury which the plaintiff' had ntstain^
from the joint trespass. Clark v, Newsam, 1 Exch. 131. In the Supreme Court of
New York, in Whitney v, Hitchcock (see 10 Law Rep. 189, since reported in 4 Denio,
461), which was case, by a father, for an atrocious assault and battery upon his young
daughter, the question directly in judgment was, whether, in the case of a wrong
punishable criminally, by indictment, the plaintiff, in a civil action for the wrong,
was entitled to recover greater damages than he could prove himself to have sustained;
and the court, having &fore it such of the foregoing discussions as were published in
the Law Rep. vol. ix. pp. 629-^42, decided that he was not. The point was also inci-
dentally ruled in the same manner by Cushing, J., in Meads v. Cushing, in the Court
of Common Pleas in Boston. See 10 Law Rep. 238. In Austin v. Wilson, 4 Cush.
273, which was an action on the case for a libel, the judge in the court below instructed
the jury that this was not a case in which exemplary or punitive damages could be
fliveu ; to which the plaintiff took exception. Tlie opinion of the Supreme Judicial
Court on this point was delivered by MetcalT, J., in the following terms: " We are of
opinion that the jury were rightly instructed that the damages, in this case, must be
limited to a compensation for the injury received. Whether exemplary, vindictive, or
punitive damages — that is, damages beyond a compensation or satiiBfaction for the
plaintiff's injury — can ever be le^ly awarded, as an example to deter others from
committing a similar injui^, or as a punishment of the defendant for his malignity, or
wanton violation of social dutv, in committing the injury which is the subject of the
suit, is a Question upon which we are not now required nor disposed to express an
opinion. The arguments and the authorities on both sides of the question are to be
found in 2 GreenL on Ev., tit. Damages, and Sedgwick on Damages, 39 ei seq. If
such damages are ever recoverable, we are clearly of opinion that they cannot be recov-
ered in an action for an injury which is also punishable by indictment; as libel, and
assault and battery. If they could be, the defendant might be punished twice for the
same act. We decide the present case on this single ground. See Thorley v. Lord
Kerry, 4 Taunt. 356 ; Whitney v, Hitchcock, 4 Denio, 461 ; Taylor v, Cupenter, 2
Woodb. k Min. 132."
The obscurity in which this subject has been involved has arisen chiefly from the
want of accuracy and care in the use of terms, and from a reliance on casual expressions
PAttT IT.] DAMAGES. 268
and, therefore, in order to prevent a surprise upon the defendant,
thej must be particularly specified in the declaration, or the plain-
and obiler dicta of judges, as deliberate expositions of the law instead of looking only
to the point in judgment. In most of the cases in which the terms ** vindictive dam-
ages," *' exemplary damages," and ** smart-money " have been employed, they will be
foand to refer to the dreumttancea which actually aooompanud the wrongful act, and
were part of the res gestoe, and which, therefore, though not of themselves alone consti-
tuting a substantive ground of action, were proper subjects for the consideration of the
jury, oecause injurious to the plaintiff. When the language used by Judges in this
connection is laid out of the case, as it ought to be, the [losition, that cnminal punish-
ment may be inflicted in a civil action, by giving to the plaintiff a compensation for an
injury he never received, and which he does not ask for, will prove to have little coun-
tenance from any iudicial decision. The contrary is better supported, both by the
principle of many decisions, and by the analogies of the law. (a)
|a) See Chubb v. Gsell, 84 Penn. 114. whole subject of exemplary damages, and
It 18 held by a majority of the court in especially this controversy between Profes-
Taylor v. Church, 8 N. Y. 460, an action sor Greenleaf and Mr. Sedgwick is very
for libel, that instructions to the jury, that elaborately and very ably discussed by Fos-
if they were satisfied that the defendant ter, J., who favors the doctrine maintained
was influenced by aeliuU malice, or a de- by the author. See Brown v, Swineford,
liberate intention to injure the plaintiff, 44 Wis. 282 ; Boyer v. Barr, 8 Neb. 68;
they may give, in addition to a full oom- Kiff v. Youmans, 20 Hun (N. Y.), 128.
pensation, "such further damages as are There is a large class of cases, i.e., actions
suited to the aggravated character which against railroad companies for ix^uries in-
tbe act assumes, and as are necessary as an flicted by them, in wnich the language of
example to deter from the doing of such the courts at least seems to uphold the
injuries," were correct And the principle view of Mr. Sedgwick. The underlying
is said to be well established in English principle is, perhaps, that the only way to
and American courts, that the jury may secure safety for passengers is to mulct the
give damages, " not only to recompense companies so heavily when accidents occur,
the sufferer, but to punish the offender." that it will be for their interest to use all
In Hunt V, Bennett, 19 N. Y. 174, where possible precautions to avoid such acci-
the court below chaiged the jury that dents, and in this roundabout way to pro-
" the plaintiff was not only entitled to duce a public benefit. Thus, it has been
recover to the full extent of the iniury held that exemplary damages against the
done him, but a jury might go furtner, company will be given when the act of the
and, if the circumstances of the case war- servant is wilful and malicious (Goddard
ranted it, increase the amount of damages v. Grand Trunk R. R. Co., 57 Me. 202) ;
aa a punishment to the slanderer," tne or wrongful (Palmer v. Railroad, 8 S. C.
oonnsel for the defendant was stopped by 580) ; especially if the master knew of the
the court, and informed that the question servant's unfitness, and still retained him
had been settled against him in that court in his employ (Cleghorn v. N. Y. Cent.
in unreported cases, the last of which R. R. Co., 56 N. Y. 44. See also Een-
(Keezeler v. Thompson) was decided in nedy v. K. M. R* R. Co., 86 Mo. 351 ;
December, 1857. The whole court con- Eountz v. Brown, 16 B. Mon. (Kv.) 577 ;
curred in deeming the question at rest. Wiley v. Keokuk, 6 Kan. 94, where the
In Hopkins v. Atlantic k St. Lawrence prevailing rule is well stated to be, that
Railway, 86 N. H. 9, an action by the whenever either fraud^ malice, gross negli-
hnsband for an injury to Uie wife through gence, or oppression b an element in the
^e negligence of the companv, it was held case against the defendant, the jury may
that the jury maj give exemplary damages, find exemplary damages. The negligence
in their discretion, where the mjury was should be so gross as to amount to wanton-
caused by the gross negligence of the com- ness. Leavenworth R. R. Co. v. Rice, 10
pany in the management of their trains. Ran. 426. And the employment of a
See also to the same point, ante, §§ 89, drunken driver by a stage proprietor
282 b; post, §§ 275, 575. Exemplarv or amounts to that. Sawyer v. Saner, 10
punitive damages are not recoveraole for a Ran. 466. See also Welch v. Ware,
tort which may be punished criminally. 82 Mich. 77. In an action against
Fay V, Parker, 58 K. H. 842, where the a railroad company for the negligence of
264 LAW OP EVIDENCE. [PABT IV.
tiflf will not be permitted to give evidence of them at the trial.^ (a)
But where the special damage is properly alleged, and is the nat-
ural consequence of the wrongful act, the jury may infer it from
the principal fact. Thus, where the injury consisted in firing guns
so near the plaintiff's decoy-pond as to frighten away the wild
fowls, or prevent them from coming there ; or, in maliciously fir-
ing cannon at the natives on the coast of Africa, whereby they were
prevented from coming to trade with the plaintiff ; these conse-
quences were held to be well inferred from the wrongful act.^
§ 255. Damages question for Jury. In trials at common law, the
jury are the proper judges of damages; and where there is no
certain measure of damages, the court, ordinarily, will not disturb
their verdict, unless on grounds of prejudice, passion, or corrup-
tion in the jury.* (6) If they are unable to agree, and the plain-
tiff has evidently sustained some damages, the court will permit
him to take a verdict for a nominal sum.* (c) Generally, in actions
upon contract, where the plaintiff fails in proving the amount due,
1 1 Chitty on Plead. 328, 846, 847 (4th ed.) ; Baker v. Green, 4 Bing. 317 ; Pindar
V. Wadsworth, 2 East, 154 ; Armstrong v. Percy, 5 Wend. 538, 539, per Marcy, J. ; 2
Stark, on Slander, 55-58 [62-66], by Wendell ; Dickinson v. Boyle, 17 Pick. 78. lu
an action for breach of a special agreement respecting the assignment of a certain lease
and fixtures, under the allegation that the plaintiff ''had been necessarily put to ereat
expenses/' he was permitted to gire evidence of charges which he had become liaUe to
pay an attorney, and a value for work done in respect to the premises in question,
though the charges were not paid until after the action was commenced. Richardsoa
V. Ohassen, 34 1^. Obs. 883.
2 Carrington v. Taylor, 11 East, 671 ; Keeble v, Hickerini?ill, Id. 674, n. ; 11 Mod.
74, 130 ; 3 Salk. 9 ; 8. c. Holt, 14, 17, 19 ; Tarleton v. McGawley, Peake's Cas. 205.
8 Gilbert v. Birkinsham, Lofft, 771 ; Cowp. 230 ; Day v. Holloway, 1 Jur. 794 ;
Kendall v. Stone, 2 Sandf. S. C. 269.
* Feize v, Thompson, 1 Taunt. 121.
its servants, to justify punitive or ezem- in the dedanition. Phillips v, Hoyle, lb.
plary damages, mere must be some wilful 571.
misconduct, or that entire want of care {b) Or unless it evinces partiality, or a
which would raise the presumption of a mistake in principle. Treanor v, Donahoe,
conscious indifference as to consequences. 9 Cush. (Mass.) 228. It is the practice,
Milwaukie, &c. R. R. Co. v. Arms, 91 U. 8. in some courts, where the jury have given
489. such excessive damages that the Court feel
(a) In an action of tort against a cor- bound to set aside the verdict, to allow the
poration for a personal injunr by their plaintiff the option of reducing the verdictt
locomotive engine, the plaintiff's occiipa- to the sum which the Court considers rea-
tion and means of earning support are not sonable, and if he thus remits the excess,
admissible in evidence to mcrease the dam- the Court will deny a motion for a new
ages, if not specially averred in the decla- triaL Sedgwick on Damages (7th ed.),
ration. Baldwin v. Western R. R. Corp., p. 655 ; Diblin v. Murphy, 8 Sandf.
4 Gray (Mass.), 383. Whether such evi- (N. Y.) 19 ; Guerry v. Kerton, 2 Rich,
dence would be admissible in any form of (S. C.) 507 ; Toung v. Englehard, 1 How.
declaration, quaere. Ibid. In an action (Miss.) 19.
by a father for the seduction of his daugh- (c) Bond v. Hilton, 2 Jones, Law (N. C,\
ter, damages to the plaintiff*s feelings may 149 ; Owen v, O'Rielly, 20 Mo. 603.
be recovei'ed, though not specially alleged
PABT IV.] DAMAGES. 266
or the precise quantity, he can recover only the lowest sum indi-
cated by the evidence. Thus, where delivery of a bank-note was
proved, but its denomination was not shown, the jury were rightly
instructed to presume it to be of the lowest denomination in cir-
culation.^ So in assumpsit by a liquor merchant, where the
delivery of several hampers of full bottles was proved, but their
contents were not shown, the jury were directed to presume that
they contained porter, that being the cheapest liquor in which the
plaintiff dealt.^
§ 256. Moat be natural and proximate oonaequenoe. The damage
to be recovered must always be the natural and proximate conse*
quenee of the act complained of. This rule is laid down in regard
to special damage ; but it applies to all damage.' (a) Thus, where
the defendant had libelled a performer at a place of public enter-
tainment, in consequence of which she refused to sing, and the
plaintiff alleged that by reason thereof the receipts of his house
were diminished, this consequence was held too remote to furnish
ground for a claim of damages.^ (5) So, where the defendant as-
^ Ijawton v. Sweeney, 8 Jur. 964. * Clunnes v. Pezzj, 1 Campb. 8.
* See Sedgwick on Dainaces, c. 8.
* Ashley v. Harrison, 1 £sp. 48; 2 Stark, on Slander, pp. 64, 65. And see Arm«
strong V. Percy, 5 Wend. 688, 539, per Marcy, J. ; Grain v. Petrie, 6 Hill (N. Y.), 522;
Downer v. Madison Co. Bank, Id. 648.
(a) Post i 261 ; Marble v. Worcester, 4 into in consequence and on the faith of the
Gray (Mass.), 895; Miller t». Butler, 6 principal contract, then they are too un-
Cush. (Mass.) 71; Watson v. Amben;ate certain and remote to be taken into con-
Bailway Co., 3 Eng. Law & £q. 497. Upon sideration as a part of the damages occa-
this subject, see a carefully prepared article sioned by the biW;h of the contract." By
in the Southern Law Review for January, Bigelow, J., in Fox v, Harding, 7 Oush.
1876. (Mass.) 522; Masterton v. Brooklyn, 7
(5) "The rule has not been uniform or Hill (N. Y.), 61; Chapin t». Norton, 6 Mo-
Teiy clearly settled as to the right of a Lean, C. C. 500. In Hadley «. Baxen-
party to claim a loss of profits as a part of dale, 9 Exch. 841, a fading case in
the damages for breach of a special con- England, the rule was laid down as follows
tract. But we think there is a distinction by Alderson, B. : ** Where two parties
by which all questions of this sort can be have made a contract which one of them
easily tested. If the profits are such as has broken, the damages which the other
woiold have accrued and grown out of the party ouffht to receive in respect of such
contract itself, as the direct and immedi- oreach of contract should be such as may
ate results of its fulfilment, then they fairly and reasonably be considered either
would form a just and proper item of arising naturally, i, e. according to the
damages to be recovered against the de- usual course of things, from such breach of
linquent party upon a breach of the agree- contract itself, or such as may reasonably
ment. These are part and parcel of the be supposed to have been in the contempla-
contract itself, and must have been in the tion of both parties at the time they made
contemplation of the parties when the the contract, as the probable result of the
agreement was entered mto. But if ^hey breach of it." In this case the plaintiffs, the
are such as would have been realizedi by owners of a flour-mill, sent a broken iron
the party from other independent and shaft to an office of the defendants, who
ooUatenil undertakings, although entered were common carriers, to be conveyed by
266 LAW OP EVIDENCE. [PABT IV.
serted that the plaintiff had cut his master's cordage, and the plain-
tiff alleged that his master, believing the assertion, had thereupon
dismissed him from his service, it was held, that the discharge
was not a ground of action, since it was not the natural conse-
quence of the words spoken.^ (a) So, also, it has been held that,
in assumpsit for breach of a promise to marry, evidence of seduc-
tion is not admissible, in aggravation of damages.^ (5) And in
trespass qiiare clausum fregitj for destroying the plaintiff's fences,
it was held that the measure of damages was the cost of repairing
the fences, and not the injury resulting to the subsequent year's
crop from the defect in the fences, long after the plaintiff had
knowledge of the fact.^(<?)
1 Vickars v. Wilcocks, 8 East, 1. This case, however, is said to have been doubted,
8 Jur. 876, per Parke, B. See also 1 Smith's Leading Cases, pp. 203-804, and cases
there cited; 1 Stark, on Slander, p. 205.
3 Weaver v. Bachert, 2 Penn. St 230. And see Hay v. Graham, 8 W. & S. 27.
> Loker v. Damon, 16 Pick. 284.
them; and the defendants' clerk, who at- the wheat and thatching it, and for the
tended at the office, was told that the mill cost of kUn-drying it, bnt not for loss by
was stopped, that the shaft must be de- a fall in the market-price of wheat. See
livered immediately, and that a special also post, § 260. As to what circumstances
entry, if necessary, must be made to hasten would lead to the inference that the par-
its delivery ; and the delivery of the ties contemplated exceptional damages,
broken shaft to the consi^ee to whom it see Horn v. Midland R. R. Co., L. £ 7
had been sent by the plaintiffs, as a pat- C. P. 583.
tern by which to make a new shaft, was (a) Nor, in an action for assault and
delayed for an unreasonable time; in con- battery, is the loss of a position to which
sequence of which the plaintiffs did not the plaintiff was about to be appointed an
receive the new shaft until after the time element of damages. Brown v, Cummingay
they ought to have received it, and they 7 Allen (Mass.), 507.
were consequently unable to work their (6) Contra, Sauer v. Schulenbeig, 83
mill from want of the new shaft, and Md. 288; Kelley v. Riley, 106 Mass. 339;
thereby incurred a loss of profits. Held, Cover v. Davenport, 1 lieisk. (Tenn.) 368.
under the circumstances, such loss could That plaintiff, since the commencement
not be recovered in an action against the of the action, has said she had no affection
defendants as common carriers. Kecogniz- for the defendant, and would not think of
ing Hadley v, Baxendale as the leading marryinff him but for his money, is not
authority, it was held in the Queen's admissive in mitisation of damages.
Bench (Smeed v. Ford, 5 Jur. N. s. 291), Miller v. Hays, 84 Iowa, 496. Loss of
where the plaintiff, a fanner, contracted time and expenses incurred in prepare-
with defenaant, an agent for the sale of tions for marriage are grounds of damage
thrashing-machines, for the purchase of a directly incidental to a breach of promise
thrashing-machine, to be delivered on the of marriage; but they are strictly inci-
14th of August, and defendant was aware dental, and are not grounds of special
of the particular purpose for which it was damage. Smith v, Sherman, 4 Cush.
ordered, and the machine was not de- (Mass.) 408. The length of l^e engage-
livered on that day, and plaintiff, being ment is an element of damage. Grant v.
led by the promises of the defendant to Willey, 101 Maas. 355.
expect that it would be delivered from day (c) A person who puts a libel in circn-
to day, abstained from hiring it elsewhere, lation is liable to all the natural and proba*
that plaintiff was entitled to recover, in ble consequences of so putting it in
an action against defendant, for loss sus- circulation. Miller v. Butler, 6 Cush.
tained by ii^jury to his wheat by a fall of (Mass.) 71. Where a horse dnwinff a
rain, and for expenses incurred in carting vehicloi and driven with due care, oe-
PABT IV.] DAMAGES. 267
§ 257. In oontraot In cases of contract, if the parties them-
selves have liquidated the damageSj the jury are bound to find the
amount thus agreed. But whether the sum stipulated to be paid
upon breach of the agreement is to be taken as liquidated damages,
or only aa a penalty, will depend upon the intent of the parties, to
be ascertained by a just interpretation of the contract. And here
it is to be observed, that the policy of the law does not regard
penalties or forfeitures with favor ; and that equity relieves against
them. And therefore, because, by treating the sum as a mere
penalty, the case is open to relief in equity, according to the actual
damages, the sum will generally be so considered ; and the burden
of proof will be on him who claims it as liquidated damages, to
Bhow that it was intended as such by the parties.^ This intent
is to be ascertained from the whole tenor and subject of that
agreement ; the mere use of the words " penalty," " forfeiture," or
'* liquidated damages," not being regarded as at all decisive of the
question, if the instrument discloses, upon the whole, a different
intent.* (a)
^ Tayloe v. Sandiford, 7 YTheat. 17, per Marshall, C. J. Mr. Evans seems to have
lieeii of the contrary opinion. 2 Poth. Obi. 71, 82, 86, by Evans. Wherever there is
an agreement to do a certain thing under a penalty, the obligee may either sue in debt
for the penalty, in which case he cannot recover more than the penalty and interest,
hat may upon a hearing in equity recover less; or he may sue in covenant, upon the
agreement, for the breach thereof, disregarding the penalty; in which case he may gen-
erally recover more, if he has suffered more. Harrison v. Wright, 18 East, 842; Bird
V, Randall, i Doug. 873; Winter v. Trimmer, 1 Bl. Rep. 895; Astley v, Weldon, 2 B.
k P. 846. If the sum is claimed as liquidated damages, it must be sued for in debt, or
indebitatus tuntmpait. Davies v, Penton, 6 B. & C. 221; Bank of Columbia v. Patter-
80D, 7 Cranch. 803.
* Davies v, Penton, 6 B. & 0. 224, per littledale, J.; Kimble v, Farren, 6 Bing.
141; 2 Story on £q. § 1818.
comes frightened and excited by the strik- In such a case, the proper measure of dama-
ing of the vehicle against a defect in the ges would seem to be the value of the
highway, frees himself from the control of labor and materials in making the plau
his driver, turns, and, at the distance of and model, and not the chance of obtain-
fifty rods from the defect, knocks down a ing the prize, this being too remote a
person on foot in the highway, and usinff ground for damages, Watson v. Amber-
reasonable care, the city or town obligea gate, &c., Railway Co., 8 Eng. Law & Eq.
by law to keep the highwav in repair is 497.
not responsible for the injury so occa- (a) The following principles are given
sioned, though no other cause intervene by Mr. Sedgwick, in his work on the
between the defect and the injury. Marble Measure of Damages, as governing these
V. Worcester, 4 Gray (Mass.), 896. A cases:
prize was offered for the best plan and (1) That the langusge of the agreement
model of a certain machine, the plans and is not conclusive and that the effort of the
models intended for the competition to be tribunal will be to get at the true intent of
aent by a certain day. The plaintiff sent a the parties, and to do justice between
plan and moilel by a railway company, them.
which by negligence did not deliver the (2) That when the agreement is in the
plan, &c., until after the appointed day. alternative, to do some particular thing or
268 LAW OP EVIDENCE. [PABT lY.
§ 258. Pttudties. Tho ca$e8 in which the sum has been treated
as a penaUy will be found to arrange themselves into five classes,
furnishing certain rules by which the tntention of the parties is
aseertained. (1.) Where the parties, in the agreement, have eo>-
pressly declared the sum to be intended as a forfeiture, or penalty,
and no other intent is to be collected from the instrument.^ (2.)
Where it was doubtful whether it was intended as a penalty, or
not ; and a certain damage, or debt, less than the penalty, is made
payable, on the face of the instrument.^ (8.) Where the agree-
ment was evidently made for the attainment of another object, to
which the sum specified is vfhMy collateral. This rule has been
applied where the principal agreement was, not to trade on a cer-
tain coast ; ^ to let the plaintiff have the use of a certain building,^
or of certain rooms; ^ and not to sell brandy within certain limits;^
but the difiPerence between these and some other cases, which have
been regarded as liquidated damages, is not very clear. (4.) Where
the agreement contains several matters of different degrees of tm-
portanccy and yet the sum named is payable for the breach of any,
even the least. Thus, where the agreement was to play at Covent
Garden, and conform to all the rules of the establishment, and to
pay one thousand pounds for any breach of them, as liquidated
1 Astley V. WeldoD, 2 B. & P. 846, 850; Smith v. Dickinson, Id. 680; Tayloe o.
Sandiford, 7 Wheat. 14; Wilbeam v. Ashton, 1 Camph. 78; Orr. v. ChurchUl, 1 H.
Bl. 227; Stearns v, Barrett, 1 Pick. 461; Dennis v. Cuniminj^ 8 Johns. Gas. 297; Brown
V. Bellows, 4 Pick. 179.
* Astley V. Weldon, 2 B. & P. 350, per Ld. Eldon. And see the ohservationa of
Best, C. J., in Crisdee v. Bolten, 8 C. &P. 240.
s Perkins «. Lyman, 11 Msss. 76. ^ MerriU v. Merrill, 15 Mass. 488.
* Sloman v. Walter, 1 Bro. C. C. 418. • Hardy v, Martin, 1 Bro. C. C. 419.
a a given snm of money the Court wiU penalty. Consequently, whenever the sum
i me party foiling to have had his stipulated is to be paid on the new pay-
election, and compel him to pay the ment of a less sum made payable by the
money. same instrument, it wiU always be lield a
(3) That in case of an agreement to do penalty,
some act, and upon failure to pay a sum of (5) That when, independently of the
money, the Court vdll look into the intent stipulation, the damages would be wholly
of the parties, that no particular phrase- uncertain, or incapable or very difficult
ology wiU be held to govern absolutely, of being asoertainiKl, except by mere con*
but that although the term " liquidated jectnre, there the damages will be usodlj
damages** will not be conclusive, the considered liauidatedifthey are so denomi*
phrase *' penalty" generally is so, unless nated by the mstrument. Sedgwick, Meaa>
controUed by some other veiy strong con- ure of Damages, 7th ed., pp. 244-249. Sea
aideration. also, on this subject, Sconeld v. Tompkins,
<4) That if the sum is evidently fixed 95 IlL 190; Daly v. Maitland, 88 Pa. St
to evade the usury laws or any other 884; De Lavallette v. Wendt, 75 N. T.
statutory provision, or to cloak oppression, 579; Williams v, Vance, 9 S. C. 844.
the courts will reUeve by treating it as a
PART IV.] DAMAGES. 269
damages, and not as a penalty, it was still held as a penalty only.^
(5.) Where the contract is not under 9edl^ and the damages are
capable of being certainly known and estiinated ; and this, though
the parties have expressly declared the sum to be as liquidated
damages.^
§ 259. liquidated damages. On the other hand, it will be in-
ferred that the parties intended the sum as liquidated damagesj
(1.) Where the damages are uncertain, and are not capable of be-
ing ascertained by any satisfactory and known rule ; whether tlie
uncertainty lies in the nature of the subject itself, or in the par-
ticular circumstances of the case. This rule has been applied,
where the agreement was to pay a certain sum for each week's
neglect to repair a building ; ^ for each year's neglect to remove a
lime-kiln ;^ for not marrying the plaintiff ; ^ for running a stage on
a certain road, in violation of contract ;^ for breach of a contract
not to trade, or practise, within certain limits ; ^ and for not re-
signing an office, agreeably to a previous stipulation.^ (2.) Where,
from the nature of the case, and the tenor of the agreement, it is
apparent that the damages have already been the subject of actual
and fair calculation and adjustment between the parties.^ Of this
sort are agreements to pay an additional rent for every acre of
land which the lessee should plough up ; ^ not to permit a stone
weir to be enlarged, ** under the penalty of double the yearly rent,
1 KemUe v. Farren, 6 Bing. 141; Boys v. Ancell, 5 Bing. N. C. 890; 7 Soott, 864;
Carrington v, LaiDg, 6 Bing. 242. There are, however, some cases in which it has
been said that, where the parties expressly declare that the sum is to he taken as liani-
dated damages, it shall ho so taken. See Hashronck v. Tappen, 15 Johns. 200; Slos-
son V, Beale, 7 Johns. 72; Beilly v. Jones, 1 Bing. 802; Goldsworthy v, Stnitt, 35 Leg.
Oba. 540. Bnt this rule, it is conceived, ouj^t to he applied only where the meaning
is not otherwise discoTerahle; since it runs counter to the general policy of the law of
equity, and to the statutes which provide for relief against forfeitures and penalties in
the ooorts of common law.
s Pinkerton v. Caslon, 2 a & Aid. 704; Davies v. Penton, 6 B. & 0. 216; Randall
V. Everest, 1 M. & Malk. 41; Barton v. Glover, 1 Holt, Gas. 48; Spencer v, Tilden, 5
Cow. 144; Graham v. Bickham, 4 Dall. 150.
» Fletcher r. Dyche, 2 T. R. 32.
« Huhand v, Grattan, 1 Alcock & Kapier, 889.
* Lowe V, Peers, 8 Burr. 2125; Cock v. Richards, 10 Yes. 420.
* I^ighton V. Wales, 8 M. & W. 545; Pierce v. Fuller, 8 Mass. 228.
^ Noble V. Bates, 7 Cow. 809; Smith v. Smith, 4 Wend. 468; Crisdee v. Bolton, 8
C. k P. 240. In this case, the sum was declared by the parties to be liquidated dama-
ges. Goldsworthy v. Strutt, 85 L^. Obs. 540.
8 Legh V. Lewiis, cited 2 Poth. Obi. 85, by Evans.
* See observations of B^ C. J., in Crisdee v, Bolton, 8 C. & P. 240; 2 Story on
Eq. Jurisp. § 1818; Leland v. Stone, 10 Mass. 459, 462.
w Bolfe V. Peterson, 6 Bro. P. C. 486; Birch «. Stephenson, 8 Taunt 478; Farrant
V. OlmiuB, 8 B. & Aid. 692; Jones v. Green, 8 Y. & J. 298; Aylet v. Dodd, 2 Atk. 288;
Woodward v, Giles, 2 Yem. 119.
270 LAW OP EVIDENCE. [PABT IT.
to be recovered by distress or otherwise ; ** ^ to convey land, or,
instead thereof, to pay a certain sum ; ' to pay a higher rent, if the
lessee should cease to reside on the premises;' that a security
should become void, if put in suit before the time limited in a
letter of license granted to the debtor ; ^ and to pay a sum of
money in goods at an agreed price.'^
§ 260. Precise amount or value need not be proved. In the
proof of damages, the plaintiff is not confined to the precise num-
ber j euniy or valucj laid in the declaration; nor is he bound to
prove the breach of a contract to the full extent alleged. Thus,
though he cannot recover greater damages than he has laid in
the ad damnum at the conclusion of his declaration, yet the jury
may find damages for the value of goods tortiously taken, beyond
the value alleged in the body of the count.^ So, under a count
for a total loss of property insured, it is sufficient to prove an
average or partial loss.^ And in covenant, or aesumpsitj proof
of part of the breach alleged is sufficient to entitle the plaintiff
to recover.'
§ 261. Measure of damages. The measure of damages will, ordi-
narily, be ascertained by reference to the rule already stated;
namely, the natural and proximate consequences of the act comr
plained of. Thus the drawers and indorsers of bUh of exchange^
upon the dishonor thereof, are ordinarily liable to the holder for
the principal sum and the common mercantile damages, such as
interest, expenses, re-exchange, £c., consequent upon the dis-
honor of the bill. For, having engaged that the bill shall be
paid at the proper time and place, the holder is entitled to expect
the money there ; and if it is not paid accordingly, he is entitled
to re-draw on them for such a sum as, at the market rate of ex-
change at the place, would put him in funds to the amount of
^ Gerrerd p. O'ReUly, 2 Connor k Lawson, 165.
* Slosson v. Beale, 7 Johns. 72. And see Hasbronck v. Tappen, 15 Johns. 200;
BeiUy v. Jones, 1 Bing. 802; Knapp «. Maltby, 13 Wend. 507; Tingley v. Cutler, 7
Conn. 291; Mead v, Wheeler, 18 N. H. 851.
* Ponsonby v. Adams, 6 Bro. P. C. 418.
* White V. Dinffley, 4 Mass. 488. And see "Wafer v. Mocato, 0 Mod. 113.
* Brooks V. Hubbard, 8 Conn. 58. If the agreedprice is unconscionable, the cooit
will not adopt it as the rule of damages. Cutler v. How, 8 Mass. 237; Cutler v, John-
son, Id. 266; Baxter v. Wales, 12 Mass. 865.
^ Hutchins v. Adams, 8 Greenl. 174; Pratt v. Thomas, 1 Ware, 147; The Jonge
Bastiaan, 5 Rob. 822.
7 Gardiner v. Croasdale, 2 Burr. 004; 8. o. 1 W. Bl. 198; Nicholson v. Croft, 8
Burr. 1188, per Ld. Man86eld.
> 1 Chitty on PL 297; Sayer, Law of Dam. p. 45; Van Rensselaer «. Platner, 8
Johns. 18.
PABT IV.] DAMAGES. 271
the dishonored bfll, and interest, with the necessary incidental
expenses.^ Upon a contract to deliver goods , the general rule of
damages for non-delivery is the market value of the goods at the
time and place of the promised delivery, if no money has yet
been paid by the vendee ; ^ (a) but if the vendee has already paid
the price in advance, he may recover the highest price of such
goods in the same place, at any time between the stipulated day
of delivery and the time of trial.^ (i) If, in the latter case, the
1 Story on Bills, §S 899, 400; 8 Kent, Comm. 116, 116.
* Gainsford v. Carroll, 2 B. & C. 624; Boorman v, Naah, 9 B. & C. 145; Shaw v.
Nadd« 8 Pick. 9; Swift v. Barnes, 16 Pick. 194, 196; Shepherd v. Hampton, 3 Wheat.
200, 204; Douglas v. McAllister, 8 Cranch, 298; Chitty on Contr. 862, n. (2), hy
Perkins; Dey v. Doz, 9 Wend. 129; Bank of Montgomery v. Reese, 26 Penn. St.
143.
» Clark V. Pinney, 7 Cow. 681; Chitty on Contr. 852, n. (2), by Perkins. But in
Massachusetts the (Utmaffes are restricted to the value at the agreed time of delivery.
Kennedy v. Whitwell, 4 Pick. 466; Saivent v. Franklin Ins. Ca, 8 Pick. 90. Also m
Pennsylvania, White v, Tompkins, 52 Penn. St. 363. In an action for breach of con-
tract ror the sale of goods, it has been held that the measure of damages is not merely
the amount of difference between the contract price and the price at which the goods
oonld have been bought at the moment when tne contract was broken, but likewise a
compensation for such profit as might have been made by the purchaser had the con-
tract been duly performed. Dunlop v. Higgins, 12 Jur. 295; 1 H. L. Ca. 881. But
where the contract was for the sale of real estate, which the vendor was unable to per-
form, for want of a flood title in himself, a distinction has been taken between the
cases of good and bad faith in the vendor; it bein^ held, that, where no fi-aud appears
on his jMTt, but all has been b<ma fide, the plaintiff can recover only the money paid
and interest, or his actual damages out of pocket; but that, if the vendor is chaigeable
with mala fides, the plaintiff may recover for the loss of his baigain; namely, the
actual value of the ]and, at the time when it ought to have been conveyed. Flureau
V. ThomhiU, 2 W. Bl. 1078; Bitner v. Brough, 1 Jones, 127. Ideo qtuere,
(a) Cahen v. Piatt, 69 N. Y. 848. If Reed, 18 Gray (Mass.), 680. And what
there is no market for the goods at the the market price is may be proved by
place where they are to be delivered, and price lists stating what price a manufactu-
Ihe buyer refuses to receive them, the rer will sell for, or the statements of deal-
measure of the selWs damage is the con- en in answer to inquiries, or by offers to
tnwt price agreed upon, less the expense sell as well as by actual sales. Cliquot*s
of carrying the goods to the nearest market Champagne, 8 Wall. (U. S.) 148; Lush v.
and the price they would sell for there. Druse, 4 Wend. (N. Y.) 818; Harrison v.
Barry v. Cavanafh, 127 Mass. 894; Brown Olover, 72 N; Y. 451.
V. Gumore, 92 Pa. St 40. The measure {h) Barbour t». Nichols, 8 R. 1. 187. A
of damages in the case of a breach of a carrier who at first wron^ully refuses to
contract to deliver goods at a specified deliver, but afterwards delivers, goods con-
time is the difference between the con- signed to a manufacturer, is not liable for
tract price and the market price at the consequential damages arising from delay
time m the breach of the contract, or the to the consignee's works caused by such
price for which the vendee had sold; but refusal, or for a loss of profits from the
the purehaser cannot recover, as special same cause; but he is liable for the ex*
damage, the loss of anticipated profits to pense of sending to the carrier's office a
be msAt by his vendees. Peterson v. Ayre, second time for the goods. Waite v. Gil-
24 Eng. Law ft Eq. 882. See Waten v. bert, 10 Cush. (Mass.) 177. In Hamlin
Towers, 20 Id. 410. In an action for the v, Gr. North. R. R. Co., 26 L. J. Ex. 28,
price of goods, it is not competent for the Mr. Baron Alderson, and in Hobbs v. Lon.
plaintiff to show their value for a specific It S. W. R. R. Co., L. R. 10 Q. B. Ill,
purpose, but only their market value at Mr. Justice Blackburn, adopted as a rule,
the time and place of delivery. Bouton v. that, if the party bound to perform a con-
272 LAW OF EVIDENCE. [PABT IV.
market price is lower at the stipulated time of delivery than at
the date of the contract, the measure of damages is the money
advanced, with interest.^ (a) So, upon a eantraet to replace stoekj
1 Clark V, Pinney, 7 Cow. 681; Chitty on Contr. 852, n. (2), by Perkins; Bush v.
Canfield, 2 Conn. 486.
trsct does not perform it, the other party eamings, not merely specnlatiTB, have
may do so for him as reasonably and as been allowed as damages m cases of death
near as may be, and chai^ him for the from injuries so received, to the extent of
reasonable expense incurred in so doing, what the deceased party would probably
This nile was approved in the Common have earned during the rest of his life in
Pleas Division in a case where a passenger his business or profession. This rule, of
on board a train, findinff that he was be- course, includes the admissibility of evi*
hind time according to the tables, hired a dence tending to show what that business
special train to take him through on time, is. Railroad Co. v, Butler, 57 Penn. St.
and sought to recover the expense of the 8S5; Pa. R. R. Co. v. Dale, 76 Penn. St.
railroad company. But the Court of Ap- 47. So profits proved to be reasonably
peal reversed the judgment. One of the certain. Griffin v. Colver, 16 N. Y. 489;
conditions of the time-tables was as fol- Williamson v, Burnett, 13 How. (U. 8.)
lows : '*£very attention will be paid to 100. But see Winslow v. Lane, 63 Me.
insure punctuality; but the directors give 161. In H. S. TeL Co. v. Wenger, 55
notice that the company do not undertake Penn. St. 262, where the company delayed
that the trains shall start or arrive at the forwarding a despatch for the purchase of
time specified in the bills, nor will they be stocks, they were held liable for the ad-
accountable for any loss, inconvenience, or vance in price between the time when the
injury which may arise from delavs or de- message should have arrived and the time
tention." Le BJanke t^. L. & N. W. R. R. when the stock was purchased under
Co., 34 L. T. N. 8. 25. In the case of another order. And in l^^er v. West. Un.
Hamlin, &c.,9Uj9ra, the damages were held Tel. Co., 60 III. 421, where by a mistake
to include expenses during the necessary in the telegram, 1,000, instead of 100,
delay, and extra fare; and m C-ollier el ux. shares were directed to be sold, the plain-
ly. D. W. It W. R. R. Co., 8 Ir. L. T. 24, tiff was allowed to recover the advance on
where the husband sued for the detention 900 shares, which he was obliged to pur-
of his wife, whereby he was deprived of chase in order to fill the contract. As to
her society, he was allowed to recover only damages in telegraph cases, see also Leo-
nominal damages, it being shown that he nard v, N. Y., Al. & B. Tel. Ca, 41 N.
was not at home, so that he could not Y. 544; Squires v. West. Un. TeL Co., 98
have enjoyed her society if she had not Mass. 232; Rittenhoase v. Ind. TeL Ca,
been detained. See further, as to detain- 44 N. Y. 268; Baldwin v. U. S. Tel. Co.,
ing passengers, ante, § 232 a, n. Where a 45 N. Y. 744.
pi^y orders by telegram the purchase of a (a) Barnard v. Conger, 6 McLean,
commodity, and the company neglect to (C. C.) 497; Halseys v. Huid, Id. 102;
forward the despatch, they are liable only Dana v. Fiedler, 2 Reroan (N. Y.), 40;
in nominal damages, or such sum as may Clark v. Dales, 20 Barb. (N. Y.) 42. It
have been paid them for the transmission; is to be noticed tihat when interest accrues
but they are not liable for the expected on a breach of contract as damagea from
profit on a purchase and subseq^nent sale, the date of the writ, if the defendant who
which might have been made if the de- so owes the damages is summoned as tru$'
spatch hiu been duly transmitted, Hib- tee of the plaintiff, in other suits, interest
bard v. West. Un. Tel. Ca, 37 Wis. 558; will not bedeemetl to accrue in the prind-
on the ground that the loss of such profit pal suit, during the pendency of the
was not the natural result of the failure to trustee processes. Huntress v. Burbank,
transmit, nor could it reasonably be sup- 111 Mass. 213; Smith v. Flanders, 129
posed to be within the contemnlation of Mass. 322.
the contending parties; citing Hadley v. The whole subject of the allowance of
Baxendale, 9 Exch. 841. See also Baker interest as damages^ and tibe contradictory
V, Drake, 53 N. Y. 211, overruling Mark- state of the authorities, is reviewed in
ham «. Jandon, 41 N. Y. 235; Benson v. White v. Miller, 78 N. Y. 898. Of. Bar-
M. & M. Gas Light Ca, 6 Allen (Mass.), nard v. Bartholomew, 22 Pick. (Mass.)
149; anUf § 256. But probable future 291; Amee v, Wilson, 22 Me. 116; Par-
PABT IT.] DAMAGES. 278
the measnre of damages is the price or value on the day when it
ought to have been replaced, or at the time of trial, at the option
of the plaintiff. But if afterwards, and while the stock was ris-
ing, the defendant offered to replace it, the plaintiff cannot recover
more than the price on the day of tender.^ (a) In an action for a
breach of warranty upon the sale of goods, the measure of dam-
ages is the difference of value between the article in a sound and
in an unsound state, without regard to the price given.^ (i) And
generally, in other cases of special contract, where one party
agrees to do a certain thing, or to perform specific services, for a
stipulated sum of money, as, for example, to perform a piece of
mechanical work for an agreed price, or to occupy a tenement for
a certain time at a specified rent, and deserts the undertaking
before it is completed, or is turned away and forbidden to pro-
ceed by the other party, the measure of damages is not the entire
contract price, but a just recompense for the actual injury which
the party has sustained.' Qc) And in all cases of breach of such
^ Shepard v. Johnson, 2 East, 211; McArthur v. Lord Seaforth, 2 Taunt. 257;
Rarrison v. Harrison, 1 C. & P. 412. But in Maasachusetts the rule is confined to the
price at the agreed day of transfer, and is not extended to any suhsequent period.
Gnw V. Portland Bank, 8 Mass. 890.
' Cothers v. Keerer, 4 Barr, 168.
s Clark v, Marsiglia, 1 Denio, 817; Wilson v. Martin, Id. 602; Spencer v. Hahted,
Id. 606.
Tott 9. HoiisatonicB.R.Co., 47 Conn. 575. &c. Canal Co.'8 Ap|)eal, 81* Pa. St.
The difference between interest proper and 19. Where a corporation refuses to give
interest as damages is this ; — interest to an owner of shares therein certificates
proper arises whenever money is lent, with of such shares on demand, or to recognize
an nnderstanding that an eouivalent shall him as the owner thereof, and sells the
be given for its use. In sucn case the rate shares to a third person, it is liable to pay
ofiiitere8ta^0e(iupan,or, if none be agreed the owner the value of the shares at the
vpoii, then the rate existing by law, is the time of his demand, and interest thereon
rate to be paid until the return of the from the time of the demand. Wyman v,
money. This rate being jpart of the con- American Powder Co., 8 Cush. (Mass.)
tract, any statutory change m the legal rate 1 68.
of interest wiU be unconstitutional so fur (b) Post, § 262; Moulton v, Scruton, 89
as it affects this interest. But when agree- Me. 287; Forman v. MiUer, 5 McLean (C.
ments other than those for lending money C), 218.
are broken, a different rule prevails, for in (e) Mon;an v, Hefler, 68 Me. 181. Cf.
those cases, as well as in cases of torta, Sausser v. Steinmetz, 88 Pa. St. 824. And
damagesj not interest, is to be administered, the party turned away or forbidden may
No rerd interest is due in such cases, but sue for breach of the contract, without a ten-
damages have been incurred, and the law der of further performance. Cort v. Am-
takes the legal rate of interest as the fair bergate, &c. R R. Co., 6 £ng. L. & £q.
measure of damages, on the theory that if 230; 8. c. 16 Jur. 807. So upon a refusal
the money had come to hand, it might ever to marry after a promise, action lies
have been invested, presumably at that at once. Frost v. Knight, 22 L. T. Ex.
rate. Jersey City «. O'Callaghan, 41 N. Ch. 77. Where there is a special contract
J. L. 849. to do a piece of work, as to build a dam,
(a) Huntingdon, kc, R. R. Co. v. Eng- and the person agreeing to do the work
lish, 86 Pa. St. 247. Cf. West Branch, builds a dam in good faith and with an
VOL. u. 18
274 LAW OF BTIBENCB. [PABT 17.
specific contracts, it is to be observed, that if the party injured
can protect himself from damages at a trifling expense, or bj
any reasonable exertions, he is bound so to do. He can charge
the delinquent party only for such damages as, by reasonable
endeavors and expense, he could not prevent^ (a)
§ 261 a. Contraoti for pieoe-work; and tUnA oontrmott. A dis-
tinction, however, has been taken between contracts for specific
work by the piece, and the like, and contraoti for the hire of
clerks, agents, laborers, and domestic servants for a year or
shorter determinate period ; and it is held in the latter class of
cases that, if the person so employed is improperly dismissed be-
fore the term of service is expired, he is entitled to recover for the
whole term ; unless the defendant, on whom the burden of proof
lies, can show, either that the plaintiff was actually engaged in
other profitable service during the term, or that such employment
was offered to him and rejected.^ The same principle has also
1 Miller v. Mariner's Church, 7 GreenL 57. So in trespass. Loker v. Damon,
17 Pick. 284. See, etndra, Heaney v, Heeney, 2 Denio, 625.
' Ck)8tigan v. M. & H. Railroad Co., 2 Denio, 609. In this case, which was for
a full year s salary, where the plaintiff had been improperly dismissed after two months'
service, the law was thus stated by Beardsley, J. : " As a general principle, nothing
is better settled than that upon these facts the plaintiff is entitled to recover full pay
for the entire year. He was ready during the whole time to perform his agreement,
and was in no respect in fault. Tne contract was in full force in favor of the plsintifl^
although it had been broken by the defendants. In general, in such cases, the plain-
tiff has a right to full pay. The rule has been applied to contracts for the hire of clerks^
agents, and laborers, lor a year or a shorter time, as also to the hire of domestic ser-
honest intention of fulfilling the contract, compensation which inll leave him as well
though not according to the contract, the off as he would have been had Uie eon-
damages are found by deducting from the tract been fully performed." In that case
contract-price so much as the dam built is the contract of tiie defendant was to build
worth less than the dam contracted for. a house on the plaintiff's land. The house
Gleason v. Smith, 9 Cush. (Mass.) 486. was nartially built, but not completed. It
Where there is a deficiency in the work, was held that the plaintiff might recover
the measure of damages is the amount re- as much as would put him in as good a
quired to be paid to complete the work ac- plight as if the house had been finished,
cording to the contract. Ibid.; Snow o. t. e, the difference in value between the
Ware, 13 Met (MasH.) 42; Wade v. Hay- house as it stood on the day the contract
cock, 25 Pa. St. (1 Casey) 882. In Kidd called for its completion, and the house as
V. McCormick, 83 N. Y. 391, Folger, C. it would have been completed.
J., speaking of the rule of damages in (a) If cattle are only injured, not
actions on contract says: " I am aware that killed, the owner must take care of them,
there has not been harmony in the expres- so as to make the loss as little as may be.
sions of the learned judges in passing upon 111., &c. B. R. Co. v. Finnegan, 21 IlL
the question of the measure of damages. 646. But, if killed, he is not bound to
I apprehend, however, that it has been dispose of them for the best advantage,
principally in pointing out the kind of but may abandon to the defendant, and re-
testimony by which the amount of dama- cover the full value. Ohio, &c R. R. Co.,
ges was to be got at, rather than in the v. Hays, 85 Ind. 178. See, however,
rule that was to govern. Stated in its Toledo, &c R. R. Co. v, Parker, 49 lU.
broadest form, the plaintiff is to have that 885.
PAST IT.] DAMAGES. 275
been applied in suits for the recovery of dead freight, where the
"faDtB, where Uie eontract may usually be detennined by a month's notice, or on pay-
ment of a month's wages. The authorities are full and decisive upon this subject.
Chitty on Contr. 6th Am. ed. 575-581 ; 1 Chit Gen. Pr. 72-88 ; Browne on Actions
at Law, 181-185, 504, 505 ; Beeston v, Collyer, 4 Bine. 809; Fawcett v. Cash, 5 Barn.
ib Ad. 904 ; Williams v. Byrne, 7 Ad. & EL 177 ; French v. Brookes, 6 Bing. 354 ;
Gandell v. Pontigny, 4 Campb. 875 ; fiobinson v. Hindman, 8 Esp. 285 ; Smith v,
Kingsford, 8 Scott, 279 ; Smith v. Hayward, 7 Ad. k £1. 544. The rule of damages
against the employer for the breach of a contract to perform mechanical work by the
luflce is different. See Clark v, MarsigUa, 1 Denio, 817. In no case which I have
neen able to find, and we were referred to none of that character, has it ever been held,
or even ur;^d by counsel, that the amount agreed to be paid should be reduced, upon
the supposition that the person dismissed might have found other employment for the
whole or some pait of the unexpired term during which he had engaged to serve the
defendant. And yet this objection might be taken in every such case, and in most of
them the presumption would be much more forcible than in the case at bar. The en-
tire novelty of such a defence affords a very strong, if not a decisive, argument a^inst
its solidity. The Duke of Newcastle v. CUrke, 8 Taunt 602. Nor do I find any
case in which it was proved that other employment was offered to the plaintiff after
his dismissal, and that his recovery was defeated or diminished because ne refused to
accept of such proffered employment.
"It has, however, been held, and rightly so, as I think, that where a seaman,
lured for the outward and return voyage, was improperly dismissed by the captain be-
fore the service was completed, a recovery of wages by the seaman for the whole time
was proper, deducting what he had otherwise received for his services after his dismis-
sal and during the time for which his employer was bound to make payment. Abbott
OfC Shipp. 4th Am. ed. 442, 443; Hoyt v. Wildfire, 8 Johns. 518 ; Ward v, Ames, 9
Id. 138 ; Emerson v. Howland, 1 Mason, 22, 51.
" And upon the same principle, where a merchant engages to furnish a given quan-
tity of freignt for a ship, for a particular voyage, and fails to do so, he must pay dead
freight, to the amount so agreed by him, deducting whatever may have been received
from other persons for freignt taken in lieu of that which the merchant had stipulated
to furnish. Abbott, 277, 278, Puller v. Steniforth, 11 East, 232; Puller v. Halliday,
12 Id. 494 ; Kleine v. Catara, 2 Gall. 66, 78. Upon this princij^e, as I understand,
the case of Shannon v. Comstock, 21 Wend. 457, was decided. The defendants there
engaged to pay the plaintiffs fifty-five dollars for the transportation of a certain num-
ber (» horses on the canal from Whitehall to Albany, but failed to comply with their
ttgnement. An action was thereupon brought to recover the fifty-five dollars, and,
the contract and its violation having been shown, 'the defendants offered to prove that
the damliges sustained by the plaintiffs did not exceed five dollars.' What facts were
offered to be given in evidence in order to establish this result cannot be collected with
abaolute certainty from the report of the case, but it does not appear that any objection
was made to the form of the offer, and the report shows that the evidence tvae objected
io and excluded, I infer, then, that the offer of the defendants was to show by com-
petent evidence that the plaintiffs took other freight on board their boat instead of
their horses, so that their loss, by the violation of this contract, was but small. Upon
the ground already stated, that loss was the amount the plaintiffs were in law and
justice entitled to recover. So this court held, and, as the evidence had been rejected
in the court below, the judgment was reversed. The views of the Chancellor, as
stated in the case of Taylor v. Read, 4 Paige, 571, are to the same effect, and the pro-
priety of the rule seems to me too apparent to admit of doubt.
" In these cases it appeared, or was offered to be shown, that the plaintiffs had in
fiEict performed services for others, and for which they had been paid, in lieu of those
they had bound themselves to perform for their defendants, and which the latter had
refiised to receive. In Heckscher v. McCrea, 24 Wend. 304, the court went a step
farther. That case arose in the Superior Court of the city of New York, where McCrea
was plaintiff. It was an action for dead freight, which the plaintiff claimed under
a special contract with the defendants. They had agreed with the plaintiff to furnish
a given number of tons of freight, at a certain price, for a return cargo from China to
Tiew York, in the plaintiff's ship. A part of the freight was furnished by the defend-
ants, as agreed, but they fell short about one hundr(»d and thirty tons. The agents
for the defendants at Canton, where the ship then was, having no more freight to put
276 LAW OF EVIDSNCE. [PABT IT.
quantity agreed to be put on board bj the shipper has not been
furnished.^ (a)
§ 262. VTarranty of goo6tL In assumpsit upon the tffarranty of
goods J the measure of damages is the difference between the value
on board for the defeDdants, offered to supply the deficiency from the goods of other
persons in their hands, which the agents were authorized to ship to the United States;
such shipment to be made at a reduced, although the then current, rate, but with an
express agreement that receiving this freight on such reduced terms should not inter-
fere with the original agreement between the parties to this suit. This offer was de-
clined, and to the extent of this deficiency the ship came home empty. The action was
to recover for this deficient freight. The court held that the nlaintiff ^ould have taken
the freight offered, although at a rate below what the defendants had agreed to paj ;
that so Tar it would have relieved the defendants, without doins injury to the plaintiff,
and by which about two thirds of the amount now claimed might have been saved.
'* In all the cases I have cited, the facts on which the dehnquent party sought to
bring the amount to be recovered below the sum agreed to be paid were proved or
offered to be proved on the triaL Nothing was left to inference or presumption, and
it was virtually conceded that the ontu of the defence rested on the defendant. They
are also cases in which the plaintiffs had either earned and received money from others,
during the time when they must have been employed in fulfilling their contract with
the defendants, or in which they might have earned it in a business of the same char-
acter and description with that which they had engaged with the defendants to
perform.
" The principles established by the cases referred to seem to me just, and, although
I have found no case in which they have been applied to such an engagement as that
between these parties, still I should have no hesitation, where the fadbs would allow
it to be done, to apply them to such a case as this.
'* But, first of all, the defence set up should be proved by the one who sets it up.
He seeks to be benefited by a particular matter of fact, and he should therefore prove
the matter alleged by him. Tiie rule requires him to prove an affirmative fact, whereas
the opposite rule would call upon the plaintiff to prove a negative, and therefore the
proof^ should come from the defendant. He is the wrong-doer, and presumptions be-
tween him and the person wronged should be made in favor of the latter. For this
reason, therefore, the onus must in all such cases be upon the defendant
** Had it been shown, in the case at bar, that the plaintiff, after his dismissal, had
engaged in other business, that might very well have reduced the amount which the
defendants ought otherwise to pay. For tnis the cases I have referred to would furnish
sufficient authority. But here it appeare that the plaintiff was not occupied during
any part of the time ftt)m the perioa of dismissal to the close of the year.
'* Again, had it been shown on the trial that employment of the same general nature
and description with that which the contract between these parties contemplated had
been offered to the plaintiff, and had been refused by him, that might have furnished
a ground for reducing the recovery below the stipulated amount It should have been
business of the same character and description, and to be carried on in the same region.
The defendants had agreed to employ the plaintiff in superintending a railroad from
Albany to Schenectady, and they cannot insist that he should, in oroer to relieve their
pockets, take up the business of & farmer or a merohant Nor could they require him
to leave his home and place of residence to engage in business of the same character
with that in which he had been employed by the defendants."
1 Abbott on Shipp. by Shee, p]>. 242-245 ; Sedgwick on Damages, p. 377 ; Hecka-
cherv. McCrea, 24 Wend. 804; Shannon v. Comstock, 21 Wend. 457.
(a) Where goods are wrongfully taken the ship-owner is bound by contracts with
from a vessel by the shipper before she has other shippers to perform the propoeed
broken ground on the voyage, the ship- voyage, and does perform it, the measure
owner is not entitled to the stipulated of damages is the stipulated ^ight, less
freight as such, but to an indemnity for the substituted freight actually made, or
the breach of the contract. And if the which might have been made by reason-
vessel is a general ship, and the goods re- able diligence. Bailey v, Damon, 3 Gray
moved form only part of her cargo, and (Mass.), 92.
PABT IT.] DAMAGES* 277
of the goods at the time of sale, if the warranty were true, and
the actual value in point of f act.^ (a) If goods are warranted as fit
for the particular purpose which they are asked for, the purchaser
is entitled to recover what they would have been worth to Jiini had
they been so.* K they have been received back by the vendor,
the plaintiff may recover the whole price he paid for them; other-
wise, he may resell them, and recover the difference between the
price he paid and the price received.^ And if, not having dis-
covered the unsoundness or defects of the goods, he sells them
with similar warranty, and is sued thereon, he may recover the
costs of that suit as part of the damages he has sustained by
breach of the warranty made to himself, if he gave seasonable
notice of the suit to the original vendor.^ (()
§ 268. Debt on bond. In debt an lond^ interest, beyond the
penalty may be recovered as damages.^ If the damages actually
sustained are greater than the penalty and interest, the only
remedy is by an action of covenant, which may be maintained
where the condition discloses an agreement to perform any spe-
cific act; in which case, if it be other than the payment of money,
the jury may ordinarily award the damages actually sustained,
without regard to the amount of the penalty.
'§ 264. Covenant In an action of covenant upon any of the
covenants of title in a deed of conveyance, except the covenant of
warranty, the ordinary measure of damages is the consideration-
money, or the proper proportion of it, with interest.® (c) But for
1 Caswell V. Goaie, 1 Taunt. 666 ; Fielder v, Starkin, 1 H. BI. 17 ; Curtis v. Han-
nay, 8 Esp. 83; Buchanan v. Pamsbaw, 2 T. R. 745; Egleston v. Macauly, 1 McCord,
879 ; Armstrong v, Percy, 5 Wend. 589.
s Bridge V. Wain, 1 Stark. 504.
* Caswell V. Coare, 1 Taunt. 566; Buchanan v. Pamshaw, 2 T. B. 745 ; Woodward
«. Thacher, 8 Am. Law Jour. N. s. 228.
* Lewis V. Peako, 7 Taunt. 158 ; Armstrong v, Percy, 5 Wend. 585.
* Lonsdale v. Church, 2 T. R. 888 ; Wilde v. Clarkson, 6 T. R. 808 ; McClure v.
Dnnkin, 1 East, 486 ; Frands «. Wilson, Ry. & M. 104 ; Harris v. Clap, 1 Mass. 808;
Fitto V. Tilden, 2 Mass. 118 ; Warner v. Thurlo, 15 Mass. 154.
* 4 Kent, Comm. 47^ 475 ; Dimmick v. Lockwood, 10 Wend. 142.
(a) Tnttle v. Brown, 4 Qray (Mass.), the fair value of a crop that could have
460 ; Reggio v. Bra^otti, 7 Cush. (Mass.) been raised had the seed been as warrant-
166 ; Goodwin v. Morse, 9 Met (Mass.) ed. Van Wyck v. Allen, 69 N. T. 61.
278 ; Cothers v. Keever, 4 Barr (Pa.), (h) He may recover his taxable costs
168. The measure of damages is the same (Coolidge «. Brigham, 5 Met (Mass.) 72) ;
in an action for a deceit in the sale, but not counsel fees. Reggio v. Braggiotti,
Stiles V. White, 11 Met (Mass.) 856 ; 7 Cush. (Mass.) 166.
Tnttle V. Brown, 4 Gray (Mass.), 460 ; (c) Frazer v. Peoria, 74 111. 282. But
Clare p. Maynard, 7 Car. k P. 748. So, this limitation does not apply when an
when the action is for a breach of warranty action is brought on covenants of seisin
of a kind of seed, the rule of damages is and quiet enjoyment, and it is shown that
278 LAW W EVIDENCB. [PABT IV.
breach of the covenant of warranty^ though in some of the United
States the same rule prevails as in covenants of title, yet, in
others, the course is to award daLmages to the value of tiie land
at the time of eviction. In the former States, the courts regard
the modem covenant of warranty as a substitute for the old real
covenant, upon which, in a writ of toarrantia ehartce^ or upon
voucher, the value of the other lands to be recovered was com-
puted as it existed at the time when the warranty was made ;
and accordingly they retain the same measure of compensation
for the breach of the modem covenant. But in the latter States,
the courts view the covenant as in the nature of a personal cove-
nant of indemnification, in which, as in all other cases, the party
is entitled to the full value of that which he has lost, to be com-
puted as it existed at the time of the breach.^
§ 265. Groimdfl of damages. In general, as we have already
seen, damages are estimated by the actual injury which the party
has received* But to this rule there are some exceptions. For,
if the plaintiff has concurrent remedies, such as trespass and
trover, he may elect one which, by legal rules, does not admit of
the assessment of damages to the extent of the injury. Thus,
if he elects to sue in trover, he can ordinarily recover no more
than the value of the property, with interest; whereas, if he
should bring trespass, he may recover not only the value of the
^ The consideration-money and interest is adopted as the measure of damages in
New York (Staato v. Ten Eyck, 8 Caines, 111; Titcher v. Livingston, 4 Johns. 1; Ben-
nett V. Jenkins, 13 Johns. 50) ; and in Pennsylvania (Bender v. Fromberger, 4 DalL
441) ; and in Virginia (Stoat v. Jackson, 2 Rand. 132) ; and in North Carolina (Phillips
V. Smitli, 1 N. C. Law Repos. 475 ; Wilson v. Forbes, 2 Dev. 80) ; and in South Caro-
lina (Henning t;. Withers, 2 S. C. 684 ; Ware t;. Weathnall. 2 McCord, 413) ; and in
Ohio (Backus V. McCoy, 3 Ohio, 211, 221); and in Kentucky (Hanson v. Buckner, 4
Dana, 253; Cox v. Strode, 2 Bibb, 272); and in Missouri (Tapley v. Lebeaume, 1
Mo. 552; Martin v. Long, 8 Mo. 391); and in Illinois fBuckmaster v. Gnmdy, 1 Scam.
310). In Indiana, the question has been raised, witnout being decided. jBlackwell
V. Justices of Lawrence Co., 2 Blackf. 147.
The value of the land at the time of eviction has been adopted as the measure of
damages in Massachusetts (Gore v. Brazier, 3 Mass. 523 ; Caswell v. Wendell, 4 Maaa.
108 ; Bieelow v, Jones, Id. 512 ; Chapel v. Bull, 17 Mass. 218) ; and in Maine (Swett
V, Patrick, 8 Fairf. 1) ; and in Connecticut (Sterling ». Peet, 14 Conn. 245) ; and in
Veimont (Drury v. Strong, D. Chipm. 110 ; Park v. Bates, 12 Yt. 481) ; and in Loui-
siana (Bissell V. Erwin, 13 La. 143). See also 4 Kent, Comm. 474, 475; Bawle on
Covenants of Title, pp. 263-280.
the vendor sold land to which he had not uairs the value of the premises and cannot
a i)erfect title, and agreed to complete and be removed by the purchaser as a matter
i>erfect the title. Taylor v, Barnes, 69 of right, the damages will be measured bj
K. Y. 480. In an action on a covenant the ai7n.inu^e2«a/u« of the premises there*
against incumbrances, if the incumbrance bv occasioned. 2 Washb. Keal Prop. (2d
is of a permanent character, such as a ed.)730; Sedgwick on Damam (6th ed.),
right of way, or other easement which im- 199 ; MitchoU v. Stanley, 44 Conn. 812.
PAST IT.] DAMAOES. 279
goods, but the additional damages occasioned by the unlawful
taking. And if he waives the tort, and brings agmmpwt for
money had and received, he can recover only what the goods
were actually sold for by the defendant, though it were less than
their real vsdue.^ (a) So, if the plaintiff sue in debt for the escape
of a debtor in execution, he will recover the whole amount of the
judgment and costs, if he recovers at all, though the debtor were
insolvent; whereas, if he sue in trespass on the case, he vnll
recover only his actual damages.^ (i)
§ 266. AggraTatloii and mitigatioii of damages. It is frequently
said, that, in actions ex delicto^ evidence is admissible in aggror
V€Uionj or in mitigcUdon of damages.^ But this, it is conceived,
means nothing more than that evidence is admissible of facts and
circumstances which go in aggravation or in mitigation of the
injury itself. The circumstances, thus proved, ought to be those
only which belong to the act complained of. The plaintiff is not
justly entitled to receive compensation beyond the extent of his
injury, nor ought the defendant to pay to the plaintiff more than
the plaintiff is entitled to received Thus, in trespass on the case
for an escape, the actual loss sustained by the plaintiff is the
*
1 See 8 Amer. Jnrist, p. 288 ; Lindon v. Hooper, Cowp. 419 ; Parker v. Norton,
6 T. R. 695 ; Lamaine v. Borrell, 2 Ld. Kaym. 1216 ; Laugher v. Brefitt, 6 B. & Aid.
762 ; Bull. N. P. 32 ; Jacoby v. Lausatt, 6 S. & R. 800; Pierce v. Benjamin, 17 Pick.
856, 361 ; Barnes v, Bartlett, 16 Pick. 78 ; Otis v. Gibbs, MS., cited 16 Pick. 207 ;
Whitwell V. Kennedy, 4 Pick. 466 ; Johnson v. Summer, 1 Met. 172; Rogers v. Crom-
bie, 4 Greenl. 274.
> Bonafoos v. Walker, 2 T. R. 126 ; Porter v. Sayward, 7 Mass. 377 ; 3 Am.
Jur. 289.
' What is here said on the snbject of evidence in amavation or mitigation of
damages is chiefly drawn from a masterly discussion of this subject by Mr. Justice
Metcalf, in 3 Amer. Jur. pp. 287-313.
* " There would seem to be no reason why a plaintiff should receive greater damages
from a defendant who has intentionally injured him, than from one wno has injured
him accidentally, his loss being the same in both cases. It better accords, indeed,
with our natural feelings, that the defendant should suffer more in one case than in the
cither ; but points of mere sensibility and mere casuistry are not allowable to operate
(a) In Kirkpatrick v. Downing, 68 Mo. actually sustained by the judgment credit-
82, it ?ra8 held that, where a vendee takes or ; and evidence is competent of the pe-
posDCOsion under a contract of sale, and cuniary condition of the debtor three
the vendor afterwards sells to another, the monthis before he was liable to be taken
rule of damages is the natural loss to the in execution. Dan forth v. Pratt, 9 Gush,
vendee ; that is, the difference between (Mass.) 318 ; 9 Met. (Mass.) 664. In case
whst he owes on the land at the time of for an escape, the measure of damages is
the sale, and what the land is then worth, the value of the custody of the debtor at
The case is an instructive one upon the the moment of escape, and no deduction
general subject, and well worthy of pe- should be made for what the creditor
maal. might have obtained by diligence after the
(() In an action for takin||[ insufficient escape. Ardeu v. Ooouacre, 6 Eng. L. &
bail, the measure of damages is the injury £q. 436.
280 LAW OF EVIDENCE. [PABT TV.
measure of damages, whether the escape were volantarj or negli-
gent ; and in cases of voluntary trespass, the innocent intentions
of the party cannot avail to reduce the damages below the amount
of the injury he has inflicted.
§ 267. Damages for Injnriea to person and reputation. Injuries
to the person^ or to the reputation^ consist in the pain inflicted,
whether bodily or mental, and in the expenses and loss of property
which they occasion. The jury, therefore, in the estimation of
damages, are to consider not only the direct expenses incurred by
the plaintiff, but the loss of his time, his bodily sufferings, and,
if the injury was wilful, his mental agony also ;^ (a) the injury
to his reputation, the circumstances of indignity and contumely
in judicial tribunals ; and, if they were so allowed, still it would be difficult to show
that a plaintiff ought to receive a compensation beyond his injury. It wonld be no less
difficult, either on principles of law or ethics, to prove that a defendant ought to pay
more than the plaintiff ought to receive. It is impracticable to make moral duties and
l^gal obligations, or moral and legal liabilities, coextensive. The same principle will
apply to the mitigation of damages. If the law awards damages for an iigury, it woald
seem absurd (even without resortins to the definition of damages) to say that they
shall be for a part only of the injury?' 8 Amer. Jur. 292, 293.
^ If the act were not wilfully done, it seems that the mere mental suffering result-
ing from it forms no part of the actionable injury. Flemington v. Smithers, 2 C. ft P.
292. And see Canning v. Williamstown, 1 Cush. 451.
(a) Damages have been not unfre- & Eq. 437. In an action to recover dam-
quently given for mental pain, where the ages for a personal injury, the plaintiff
injury was not wilful. Smith v. Overly, mav introduce evidence to show the kind
80 Ga. 241 ; Masters v. Warren, 27 Conn, and amount of mental and physical labor
298 ; Memphis, &c. R. R. Co., 44 Miss, which he was accustomed to do before re-
466; West v. Forest, 22 Mo. 844; Stewart ceiving the iiriury, as compared with that
V. Kipon, 88 Wis. 684. The question has which he has been able to do since, for the
sometimes been raised, whether in addition purpose of aiding the jury to determine
to the rule that mental agitation, &c., may what compensation he should receive for
be given in evidence as an aggravation of his loss of mental and physical capacity,
personal ii^uries, they may not also be Ballon v. Famum, 11 Allen, 73. See, on
proved as a distinct cause of action. The this subject. Wade v. Leroy, 20 How. 43 ;
rule is probably that they may not, unless Nebraska City «. Campbell, 2 Black, 590,
they are produced by physical injury of potAf § 268, a, n.
some kind. Thus, in Wyman v, Leavitt, In an action for seduction, injury to the
71 Me. 227, it was held that where the plaintiff's feelings is an element in com-
action was for trespass in throwing rocks puting the damages, as being a natural
upon plaintiff's land bv blasting, he could consequence of l£e principal ii^ury, and
not prove the anxiety he had &en caused need not be separatelv averred in the dec-
for fear of his own and his child's safety, laration. Phillips v. Hoyle, 4 Gray (Mass.),
See also Canning v, Williamstown, 1 Cush. 568.
(Mass.) 451 ; Johnson v. Wells, 6 Nev. So, when the action is based on some
224; Lynde V. Knight, 9 H. L. 577, p. indignityofferedtothepersonof the plain-
598. Where an action is brought under tiff (Tyler «. Pomeroy, 8 Allen (Mass.),
a statute (9 & 10 Vict. c. 98), by the per- 480 ; Fillebrown v. Hoar, 124 Mass. 580),
sonal representatives of a deceased person, or personal injury (Indianapolis, &c. R.R.
to recover damages for his deatn, the Co. v. Stubbs, 62 lU. 818). But it was
damages must be confined to injuries of held not an element of damages in a suit
which a pecuniary estimate can be made, to recover for a personal injury caused by
and they do not include the mental suffer- the employment of an incompetent servant,
ing caused to the survivors by his death. Joch v. Dankwanlt> 85 UL 831.
Blake v. Midland R. Co., 10 £ng. Law
PART IT.] DAMAOES. 281
under which the wrong was done, wd the consequent public
disgrace to the plaintiff, together with any other circumstances
belonging to the wrongful act, and tending to the plaintiff's dis-
comfort.^ (a) And, on the other hand, they are to consider any
circumstances of recent and immediate misconduct on the part of
the plaintiff, in respect to the same transaction, tending to diminish
the degree of injury which, on the whole, is fairly to be attributed
to the defendant.' Thus, if the plaintiff himself provoke the
assault complained of, by words or acts so recent as to constitute
part of the res gestcB ; ' or if the injury were an arrest without
warrant, and he were shown to be justly suspected of felony;^
or, in an action for seduction, if it appear that the crime was
facilitated by the improper conduct or connivance of the husband
or father ; ^ these circimistances may well be considered as re-
ducing the real amount of the plaintiff's claim of damages, (i)
§ 268. Natural reanlts. Contract It seems, therefore, that, in
the proof of damages, both parties must be confined to the prin-
eipal transaction complained of, and to its attendant circumstances
and natural results; for these alone are put in issue, (c) But where
1 Conpin v. Braitbwaite, 8 Jur. 876.
< This principle is freely applied in actions on the case for negligence, where the
role is, that, though there may nave been negligence on the part of the plaintiff, yet,
unless he might, by the exercise of ordinary care, have avoided the consequence of the
defendant's negligence, he is entitled to recover ; but if, by ordinary care, he mi^ht
have avoided them, he is the author of his own wrong. Bridge v. Grand Junction
Railway Co., 3 M. & W. 244, per Parke, B. ; ButterfieM v, Forrester, 11 East, 60 ;
Holding V. Liverpool Gas Co., 10 Jnr. 888 ; Kennard v. Burton, 12 Shepl. 89; New
Haven Steamboat Co. v. Yanderbilt, 16 Conn. 420. See §§ 220, 280. This rule was
ably and faUy discussed and explained by Bedfield, J., in Robinson v. Cone, S. C. Yt^
Feb. Term, 1850. See 8 Am. law Joum. n. & 818.
* Lee V. Woolsey, 19 Johns. 829 ; Frnser v, Berkley, 2 M. & Rob. 8; Aveiy v, Ray,
1 Masa. 12.
« Chinn v. Morris, Rv. & M. 24; Simpson v. McCaffk«y, 18 Ohio^ 508.
* See iupra, tit. AdaLtery, | 51.
(a) So, when a passenger was expelled that they were iU. Fillebrown v. Hoar,
from the cars wrongfully by the conductor, 124 Mass. 580.
it was held that he might recover damages (6) So, in an action for breach of
for the indignity suffered, and the injury to promise of marriage, any previous unchas-
liis feelings. If, however, in such a case, tity of the woman, though it may have
the jury give a verdict which is plainly been known to the defendant at the time
excessiTe, it wiU be set aside. Quigley v. the promise was made, is stiU admissible
C. P. B. R. Co., 5 Sawy. C. Ct. 107. in mitigation of damages, e, g, that she
So, in an action for a wrongful ejection has previously had an illegitimate child
from a house by the landlord, the injuries (Denslow v, van Horn, 16 Iowa, 476), or
received from indignities may be included, sexual intercourse with some other person
but it is held that the plaintiff cannot re- than the defendant during the engapment
cover for any injury to his health which (Burnett v. Simpkins, 24111. 264; Sheahan
resalted from exposure attendant on the v, Barry, 27 Mich. 217).
prooeedinos, or contracted hf attending his (c) BiUmeyer v Wagner, 91 Pa. St.
fiunily while ill, or resoltmg from grief 92.
282 LAW OF EVIDENCE. [PABT IT.
the act complained of was done in the executiim of a contract
with the State, for a work of public benefit, as, for example, the
taking of stone and gravel from the plaintiff's laud, to build
a lock on a public canal, which the defendant had undertaken to
construct, the defendant is entitled to stand in the same position
as the State would, in the estimation of damages, and to set off,
against the direct value of the materials taken, any general and
incidental benefit resulting to the owner of the land from the
work to which they were applied.^ (a)
§ 268 a. Natural raaulta. Tort The natural results of a wrong-
ful act are understood to include all the damage to the plaintiff
of which such act was the efficient cause, though in point of time
the damage did not occur until some time after the act done.
Thus, in trespass qiuire dauBum fregit^ where the defendant had
broken and dug awaj the bank of a river in the plaintiff's close,
the jury were properly directed to assess the damages occurring
three weeks afterwards by a flood, which rushed in at the breach,
and carried away the soil.^ So, where the trespass consisted in
pulling down the plaintiff's fence, whereby his cattle escaped and
were lost, it was held that the defendant was liable for the value
of the cattle, as the natural consequence of the trespass.^ And
it is further to be observed, that the proof of actual damages may
extend to all facts which occur and grow out of the injury, even
up to the day of the verdict; excepting those facts which not only
happened since the commencement of the depending suit, but do
of themselves furnish sufficient cause for a new action.* Upon
this general principle it is that interest is computed up to the
1 Hay V. KornhaoB, 9 Watts k Serg. 121.
* Dickinson v. Boyle, 17 Pick. 78. See supra^ §§ 56, 66. In an action of aasomp-
sit, for the breach of an agreement, whereby "the plaintiff has been unnecessarily put
to great expenses,'* it was held competent for the pUuntiff, under this allegation, to
prove and recover for the amount of bills which he had become legaUy liable to pay,
though he had not yet paid them. Richardson t>. Chassen, 34 Leg3 O'bs. 888; 11 Jur.
890. And see Dixon «. Bell, 1 Stark. 387. But in trespass for seizing the plaintiirs
goods under c»»lor of a judgment, by means whereof he was forced to pay lai^ye coats in
setting aside the judgment, it was held, that these costs were not recoverable. HoUo-
way p. Turner, 9 Jur. 160; 6 Ai & El. N. 8. 928. So, counsel fees have been rejected.
Young V. Tustin, 4 Blackf. 277.
* Damron v. Roach, 4 Humph. 184.
* Wilcox V. Plummer. 4 Pet 172, 182 ; 8 Com. Dig. 848, tit. Damages, D. Seo
infra, § 273; Sedgwick on Damages, pp. 106-108; Johnson v. Perry, 2 Humph. 572.
(a) If a plaintiff, by reason of not prop- wrong, and which he would otherwise haT«
erly declaring on his cause of action, is de- recovered, he cannot sue on these as a
prived of some damages which are the separate cause of action. Morey v. Kin^
natural consequences of the principal 51 Vt. 883.
PAST lY.] DAMAGES. 288
time of the verdict, in an action for the non-payment of a sum
of money. And, on the like principle, in actions of trespass and
actions on the case, the jury are sometimes instructed, in their
estimate of damages, to include the plaintiff's extra trouble and
expenses in prosecuting his suit.^ (a)
§ 268 i. ProspectiTe damages. The damages may also in a
certain sense be prospective beyond the time of trial. Thus, in
trespass for breaking the plaintiffs leg, it was held proper to
show the probable future condition of the limb ; but not the con-
sequences of a hypotlketical second fracture.^ (6) So, in an action
by the members of a commercial firm for a libel concerning their
trade, it was held that the jury might estimate the damages
likely to result to tlieir trade as the probable consequences of the
slander.^ (<?)
I linsley v. BusliDell, 15 Conn. 225, 286 ; Allen v. Blunt, 2 Woodb. & M. 121 ;
Wilt V. Vickere, 8 Watts, 227, 235 ; Rogers v. Fales, 5 fiarr, 159. See wiUra, Good
V. Mylin, 8 Barr, 51, oyerraling the last two cases.
* Lincoln v. Saratoga Railroad Co., 23 Wend. 425; Johnson v. Perry, 2 Hnmph. 572.
' Gregory «. Williams, 1 C. & E. 568. And see Ingram v. Lawson, 9 C. db P.
139, 140, {ler Maule, J. ; 8. c. 8 Scott, 471, 477, per Bosanquet, J. ; Hodsall v. Stall-
brass, 9 C. & P. 63.
(a) If A sells B one kind of turnip-seed action was limited to damages which ac-
as and for another kind, whereby a less crued prior to the commencement of that
valuable crop is raised, the rule of damages suit, aud the second action is brought ex-
would be the difference between the pressly to recover for loss of service and
market value of the crop actually raised, other damages sustained subsequent to
and the same crop from the seed ordered, that time. Hopkins v. Atlantic & St.
Wolcott V. Mount, 36 N. J. 262 ; Passin- Lawrence Railw., 36 N. H. 9 ; 2 Redfield
ger V. Thorbum, 34 N. Y. 634. And if he on Railways, 220. But where the injury
sells him a cow, warranted free from disease, was the loss of tools with which the plain-
and she proves to have a disease, which tiff earned his living, it was held that
she communicates to other cows of B, the special damages for the loss of earning
loss of the other cows may be assessed as which he might have made, had not the
damages, if A had reason to believe that the tools been lost, could not be recovered.
cow he sold would be put with other cows. Brock v. Gale, 14 Fla. 523. Where a
Smith V. Green, L. R. 1 C P. D. 92. father sues for the care, expense, and loss
(b) Curtis V. Rochester & S. B. R. Co., of service of his minor son, by death
20 Barb. (N. Y.) 282 ; Passenger R. R. caused by the defendant's negligence, it
Co V. Donahoe, 70 Pa. St. 119. The has recently been held in Kcntuclyr, con-
Taine of the plaintirs business is an ele- trary to the rule laid down in Ford v.
ment to be considered in estimating dam- Monroe, 20 Wend. (N. Y.) 210, that he
aires in an action for an iiy'uiy which is only entitled to recover for the loss of
Ssables the pkintiff from pursuing it. service between the injury and the death,
yinU § 89, n. See also Baldwin v. West, and not at all after. Cov. St. R. R. Co.
R. R. Co., 4 Gray (Mass.), 334; anU, v, Parker, 9 Bush (Ky.), 455. But see
V267, n. In Whitney v. Clarendon, 18 Ihl v. Forty-second St., &c R. R. Co., 47
t. 252, it was held that a recovery in an N. Y. 817. Prospective damages need
action of trespass on the case, brought by not be s|>ecifically claimed by the nlaintiff
the father to recover damages sustained hy in his writ They are the natural conse-
biraseir in consequence of personal injuries quences of the wrong, and will be allowed
to his son, is a bar to a second action by without such mention. Bradbury v. Ben-
the father to recover for damages sustained ton, 69 Me. 194. . r, r<
in consequence of the same iiyury, not- (c) See also Pennsylvania R. R. Co. v.
withstanding the recovery in the first Dale, 76 Pa. St. 47.
284 LAW OF EVIDENCE. [PABT IT.
§ 269. Gharaoter, rank, Ao. The character of the parties is im-
material ; except in actions for slander, seduction,^ or the like,
where it is necessarily involved in the nature of the action. It
is no matter how bad a man the defendant is, if the plaintiff's
injury is not on that account the greater ; nor how good he is,
if that circumstance enhanced the wrong. Nor are damages to
be assessed merely according to the defendant's ability to pay;
for whether the payment of the amount due to the plaintiff, as
compensation for the injury, will or will not be convenient to
the defendant, does not at HI affect the question as to the extent
of the injury done, which is the only question to be determined.
The jury are to inquire, not what the defendant can pay, but
what the plaintiff ought to receive.' (a) But so far as the defend-
ant's rank and influence in society, and therefore the extent of the
injury, are increased by his wealth, evidence of the fact is per-
tinent to the issue.' (i)
§ 270. Intention. Whether evidence of intention is admissible,
to affect the amount of damages, will, in like manner, depend on
its materiality to the issue. In actions of trespass vi et armisy the
secret intention of the defendant is wholly immaterial. For if the
act was Yoluntarily done, that is, if it might have been avoided,
the party is liable to pay some damages, even though he be an
infant, under seven years of age, or a lunatic, and therefore legally
incapable of any bad intention.^ And where an authority or
1 See tn/ro, § 274.
< See Lofit, 774, Ld. Mansfield's allosion to Berkeley v, Wilfoid. See also Stoat
V. Pnll, Coxe (N. J.), 80 ; CoryeU v. Colbaugfa, Id. 77, 78 ; 6 Conn. 27 : wpra,
I 265.
* Bennett v. Hyde, 6 Conn. 24, 27 ; Shute v. Barrett, 7 Pick. 86, per Parker, a J.
See supra, §§ 56 n., 89 ; tn/Vo, |§ 424, 579 ; Grabe v. Maigrave, 8 HoEun. 872 ; Reed
V, Dayis, 4 Pick. 216 ; McNamara v. Eing, 2 Gilm. 482 ; McAlmont v. McClelland,
14 S. & B. 859 ; Lamed v, Buffington, 8 Mass. 546 ; Stanwood v. Whitmore, 68 Me.
209.
^ Weaver v. Ward, Hob. 184 ; Besaey v, Olliot, T. Raym. 467 ; Gilbert v. Stone,
Aleyn, 85 ; s. c. Sty. 72 ; Sikes v. Johnson, 16 Mass. 289 ; Bingham on Infaney, pp.
110, 111 ; 8 Com. Dig. 627, tit. JBn/ant, D. 4 ; Macpherson on infants, p. 481 ; Sh^-
ford on Lunatics, p. 407; Stock on Non Compotes Mentis, p. 76; 3 Am Jar. 291, 297.
[But see anU, § 89.]
(a) And plaintiff*s rank and condition professional man sues for iignries lesolt-
in life are also admissible on the question mg in a loss of time, Uie plaintiff may
of damages. Klump v, Dunn, 66 Penn. show what his time is worUi, by testifying
St. 141 ; Gand^ «. Humphreys, 85 Ala. what he had previonsly been receiying for
617. So are his earnings and expenses, such time near the time of the iignries
and his surroundings generally. Welch complained of. Nash v. Sharpe, 19 ' Hon
». More, 82 Mich. 77. (N. Y.), 865. Cf. Clifford v. Dam, 44
(ft) So, it has been held that when a N. Y. Super. Ct 891.
PABT lY.] DAMAGES. 285
license is giren by law, and the party exceeds or abuses it, though
without intending so to do, yet he is a trespasser ab initio ; and
damages are to be given for all that he has done, though some
part of it, had he done nothing more, might have been lawful.^
His secret intention, whether good or evil, cannot vary the amount
of injury to the plaintiff. So it is, if one set his foot upon his
neighbor's land, without his license or permission ; or if he injure
him beyond or even contrary to his intention, if it might have been
avoided.' And where, to an action of trespass, a plea of per inform
tunium was pleaded in bar, it was held bad, on demurrer, the
court declaring that damages were recoverable '^ according to the
hurt or loss." ^ In all such cases of voluntary act, the intent is
immaterial, the only question being, whether the act was injurious,
and to what extent.^
§ 271. Same ftnbjeot In certain other actions, such as case
for a malicious prosecution^ or for false representations of another
person's credit in order to induce one to trust him,^ or for slander^
the intention of the defendant is of the gist of the action, and must
therefore be shown to be malicious ; not to affect the amount of
damages, but to entitle the plaintiff to recover any damages what-
ever. Thus, in an action for a libel, either party may give evidence
to prove or disprove the existence of a malicious intent, even
though such evidence consist of other libellous writings ; but if
they contain matter actionable in itself, the jury must be cautioned
not to increase the damages on account of them.^
§ 272. Same anbjeot. But where an evil intent has manifested
itself in acts and circumstances accompanying the principal trans-
action, they constitute part of the injury, and, if properly alleged.
1 Six Carpentera' Caae, 8 Co. 146 ; Bagshaw v, Gaward, Telv. 96 ; SacMder v.
McDonald, 10 Johns. 253, 256 ; 3 Am. Jur. 297» 298 ; Eerbey v. Denby, 1 M. J( W.
836.
s RusseU V. Palmer, 2 Wils. 825 ; Yarill v. Heald, 2 Greenl. 92, per Mellen, C. J. ;
Brooks V. Hoyt, 6 Pick. 468 ; Bacon's Elements, p. 31 ; 2 East, 104, per Ld. Kenyon.
» Weavers. Ward, Hob. 184.
* Underwood ». Hewson, 1 Stra. 696 ; 1 Chitty on Plead. 120 ; Weaver v. Ward,
Hob. 184 ; Taylor v. Rainbow, 2 Hen. k Munf. 423 ; Wakeman v. Robinson, 1 Bins.
213. The rule is, that, under the general issue, any evidence is admissible which
tends to show that the accident resnUed entirelv from a superior agency ; for then it
was no trespass ; but that any defence which admits that tne trespass complained of
was the act of the defendant must be specially pleaded. Hall v. Fearnley, 3 Ad. k EL
K. a. 919.
' » 1 Chitty on PI. 405 (7th ed.); Sutton v. Johnstone, 1 T. R 493, 546; 8 Am. Jur.
295 : Stone v. Crocker, 24 Pick. 81, 83 ; Grant 9. Duel, 8 Rob. (La.) 17.
* Vernon v. Eeyes, 12 East, 632, 636 ; Young v. Covell, 8 Johns. 23.
7 Pearson v. Lemaitre, 5 M. & O. 700 ; 7 Jur. 748.
286 LAW OF EVIDENCE. [PABT lY.^
may be proved, like any other facts material to the issne. Thus in
trespass for taking goods, besides proof of their value, the incon-
venience and injury occasioned to the plaintiff bj taking them
away, under the particular circumstances of the case, and the
abusive language and conduct of the defendant at the time,^ are
admissible in evidence to the jury, who may give damages accord-
ingly. And evidence of improper language or conduct of the de-
fendant is also admissible, imder proper allegations, in an action
of trespass on the case, or of trespass qwire chtusum fregit^ as
constituting part of the injury.* And, generally, whenever the
wrongful act of the defendant was accompanied by aggravating
circumstances of indignity and insult, whether in the time, place,
or manner, though they may not form a separate ground of action^
yet, being properly alleged, they may be given in evidence, to show
tlie whole extent and degree of the injury.^ Thus, in an action
upon an agreement to carry the plaintiff to a certain place, assign-
ing a breach in causing him to be disembarked at an intermediate
place, in a disgraceful manner and with contemptuous usage and
insulting language, whereby he sustained damage, it was held that
the allegation was proper, and that evidence of such circumstances
was rightly received.* So, also, where to an action of trespass for
false imprisonment the defendant pleaded, by way of justification,
that the plaintiff had committed a felony, but abandoned the plea
1 Churchill «. Watson, 5 Day, 140 ; Tilden v. Metcalf, 2 Day, 259 ; Johnson v.
Courts, 3 Har. & McHen. 510 ; Ratliff v. Huntley, 5 Ired. 645 ; Wilkins v. OilmOre,
2 Humph. 140 ; Huxley v. Berg, 1 Stark. 98 ; Curtis «. Hoyt, 19 Conn. 154, 170 ;
Huntley v. Bacon, 15 Conn. 267, 273.
^ Bracegirdle «. Orford, 2 M. & S. 77 ; Coppin f . Braithwaite, 8 Jur. 875 ; Cox «.
Dougdale, 12 I'rice, 708, 718 ; Merest v, Harvey, 5 Taunt. 442. In this case, Gibhs,
C. J., expressed himself in these terms : " I wish to know, in a case where a man dis-
regards every principle which actuates the conduct of gentlemen, what is to restrain
him except large damages ? To be sure, one can hardly conceive worse conduct than
this. What would be said to a person in a low situation of life, who should behave
himself in this manner ? I do not know upon what principle we can grant a rale in
this case, unless we were to lay it down that the juiy are not justified in giving more
than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentle-
man has a paved walk in his paddock, before his window, and that a roan intrudes
and walks up and down before the window of his house, and looks in while the owner
is at dinner, is the trespasser to be permitted to say, ' Here is a half-penny for yon,
which is the full extent of all the mischiefs I have done ' f Would that be a compen-
sation ? 1 cannot say that it would be.*' 5 Taunt. 443. In trespass for entering the
plaintiff's house, evidence may be given of keeping the plaintiff out, for that is a con-
sequence of the wrongful entry. Sampson v. Coy, 15 Mass. 498. So, in trespass for
destroying a mill-dam, damages may be recovered for the interraption of the use of the
mill. White v, Moseley, 8 Pick. 356.
* Sears v. Lyons, 2 Stark. 282 [317] ; 8 Am. Jur. 803, 312 ; 3 Wils. 19, per Bath-
urst, J.; Woert v. Jenkins, 14 Johns. 352 ; Pratt v. Ayler, 4 H. & J. 448 ; Jennings
V, Maddox, 8 B. Monr. 432; Duncan «. Stalcup, 1 Dev. & Batt 440.
^ Coppin V. Braithwaite, 8 Jur. 875. And see Eeene 9. Lizard i, 8 La. 33.
PABT IT.] DAMAGES. 287
at the trial, and exonerated the plaintiff from the charge, it was
held that the jury might lawfully consider the putting of such
a plea on the record as persisting in the charge, and estimate
the damages' accordingly .^ So, where in an assault and battery
the defendant avowed an intent to kill the plaintiff.^ And, on the
other hand, the defendant may show any other circumstances of
the transaction, in mitigation of the injury done by his trespass.
Thus, where the defendant shot the plaintiff's dog soon after he
had been worrying the defendant's sheep, this fact, and the habits
of the animal, were held admissible in evidence for the defendant
in the estimation of damages.^ And in trespass de bonis asporta-
tisy he may show that the goods did not belong to the plaintiff,
and that they have gone to the use of the owner ; ^ or that, be-
longing to the plaintiff, they have lawfully gone to his use.^ So,
where the defendant had seized and destroyed the plaintiff's game-
cocks, under a warrant to search for gaming implements, it was
held, that the jury might consider, in mitigation of the injury, the
good motives of the defendant, and his belief that he was acting
in the due execution of legal process ; in which case the measure
of damages was the actual value of the animals, as articles of
n^erchandise.^
§ 273. Treftpasft. Aggravation. It may here also be remarked,
that if the defendant, while he is an actual trespasser in the plain-
tiff's house or close, commit ant/ other acts of trespass against
the person of the plaintiff, his wife, children, or servants, these
acts and their consequences may be alleged and proved in an ac-
tion of trespass qtiare clausum fregity as matter in aggravation of
the in jury .7 It is* on this ground that the plaintiff, in an action of
trespass for breaking and entering his house, has been permitted to
allege and recover full damages for the debauching of his daughter
and servant. It makes no difference that the plaintiff may have
a separate action for these additional wrongs, provided it be an
action of trespass, or of trespass on the case ; and not a remedy
in another form. If he sues in trespass, and alleges the debauch-
1 Warwick v, Fonlkee, 12 M. ft W. 507. But see contra, post, § 426.
« Pratt V. Ayler. 4 H. A J. 448. » Wells v. Head, 4 C. & P. 668.
^ Sqaire v. Hollenbeck, 9 Pick. 551. And see Pierce v. Benjamin, 14 Pick. 861.
» Kaley v. Shed, 10 Met. 817. See infra, §§ 276, 685 a; Anthony v. Oibbert, 4
Blackf. 848.
* Coolidge V. Choate, 9 Law. Rep. 205; 11 Met. 79. See also Reed v. Bias, 8 Watts
k Sera. 189; Conard v. Pacific Ins. Co., 6 Pet 262, 282.
7 Bennett v. Alcott, 2 T. R. 166; Shafer v. Smith, 7 H. & J. 68.
288 LAW OP EVIDENCE. [PABT IV.
ing of his servant in aggravation, the breach and entry of the
house, being the principal fact complained of, must be proved, or
the action will not be maintained.^ And so it is in regard to any
other consequential damages alleged in an action of trespass ; for
wherever the principal trespass, namely, the entry into the house
or close, is justified, it is an answer to the whole declaration.^ (a)
§ 274. Trespasft. Mitigation. But, though the plaintiff may
generally show all the circumstances of the trespass tending in
aggravation of the injury, it does not therefore follow, that the
defendant may^ in all cases, show them in mitigation ; for he may
preclude hirMelf by his mode of defence, as well as the plaintiff
may, as we have already seen, by his election of remedy. Thus,
it is a sound rule in pleading, that matter which goes in complete
justification of the charge must be specially pleaded, in order that
the plaintiff may be prepared to meet it ; and cannot be given in
evidence imder the general issue, for this would be a surprise upon
him.^ If, therefore, the defendant pleads the general issue, this is
notice to the plaintiff that he has nothing to offer in evidence
which amounts to a justification of the charge; and hence no
evidence of matter which goes in justification will be received,
even in mitigation of damages. (&) Thus, in trespass for an a,^-
1 Bennett v, Aloott, 2 T. B. 166; Beam v. Bank, 3 a & B. 215; 2 Stark. Er. 818;
8 Am. Jur. 298; Dean v. Peale, 6 East, 45; Woodward v. Walton, 2 New B. 476; 1
Smith's Lefiding Caties [219] (Am. ed;) notes. See 48 Law Lib. 828, 880. Any other
consequential damage to the plaintiff may be alleged and prayed as matter of aggrava-
tion. 1 Chitty on JPlead. 847, 848; Anderson «. Buckton, 1 Stra. 192; Heminway «.
Saxton, 8 Mass. 222; Sampson v. Coy, 15 Mass. 498. But the proof must be restricted
to damages resulting to the plaintiff alone, and not to another, nor to himself jointly
with another. Edmonson v. Machell, 2 T. B. 4. See supra^ § 268.
a Taylor v. Cole, 3 T. B. 292; 1 H. Bl. 555; Bennett v. Alcott, 2 T. B. 166; Mon-
priyatt v. Smith, 2 Campb. 175; Phillips v. Howgate, 5 B. & Aid. 220; Bopes v. Bar-
ker, 4 Pick. 289.
» Co. Lit. 282 h, 288 a; 1 Chitty on Plead. 415; Trials per Pais, p. 408 (6th ed); S
Amer. Jur. 801; "Watson «. Christie, 2 B. & P. 224, and n. {a).
{a) The rule exists in actions of libel, ed. p. 148. As regards the action for
and for breach of promise of marriage, that bi*each of promise of mai-riage, this rule is
if a plea of justification is set up and is an exception to the general principles upon
not proved, this fact is admissible to ag- which damages are given in an action ex
gravate the damages. Thorn v. Enapp, contractu. As was said by Ingraham, J.,
42 N. Y. 474; Davis v, Slagle, 27 Mo. 600. in Kniffen v. McConnell, sup., " It is an
This has been said to rest on the ground anomaly, in an action for a breach of con-
that the iustification is placed on the tract, to hold that setting up matters to
record and will remain there, as a con- excuse such breach in an answer, the proof
tinual reiteration of the charge a^nst the of which fails, is an aggravation of the
Slaintiff, and that therefore a tnflins ver- damages.*' Sedgwick onDamages, 7th ed.
ict would not show that "such charge p. 149.
was unfounded." Kniffen v. McConneU, (h) It has been held that if a defendant
80 21. Y. 285; Sedgwick on Damages, 7th in an action for negligence suffer a defaulti
PABT IT.] DAMAOBS. 289
sault and battery, where the defendant, under the general issue,
offered to prove that the beating was inflicted by way of correcting
the misconduct of the plaintiff, who was a seaman on board the
ship of which the defendant was master, the evidence was held
inadmissible ; and the jury were instructed, that they could neither
increase the damages beyond a compensation for the injury actually
sustained, nor lessen them on account of the circumstances under
which the beating was given.^ And in trespass by an apprentice
against his master, for an assault and battery, the defendant can-
not, under this issue, give evidence of an admission by the plain-
tiff, that his master had beaten him for misconduct.^ So, in an
action of slander, the defendant cannot, under the general issue,
give the truth of the words in evidence, even in mitigation of
damages ; ^ nor can he, for this purpose, show that the plaintiff
has for a long time been hostile to him, and has proclaimed that
he did not wish to live with him on terms of peace.^
§ 275. Slander. In actions of slander j it is well settled that the
plaintiff's general character is involved in the issue ; and that there-
fore evidence, showing it to be good or bad, and consequently of
much or little value, may be offered on either side to affect the
amount of damages.^ (a) But whether the defendant will be per-
mitted, under the general issue, to prove general suspicions^ and
common reports of the guilt of the plaintiff, in mitigation of dam-
ages, is not imiversally agreed.® It seems, however, that, where
1 Watson V. ChrUtie, 2 B. & P. 224; Bull. N. P. 10; 1 Salk. 11, per Holt, C. J.
* Pujolas V, Holland, 1 Longf. ft Towns. 177.
* Underwood v. Parkes, 2 Stra. 1200; MuUett «. Hulton, 4 Esp. 248; 1 Cfaitty on
Plead. 483; Shepard v. Merrill, 13 Johns. 475. Nor can the plaintiff prove the speak-
ing of other slanderous words, in aggrayation of the damages ; thonch he may offer
such evidence, in proof that the woi^ charged were spoken maliciously. See 8 Am.
Jut. 293, 294; 2 Stark, on Slander, pp. 48-61 [64-57] (Wendell's ed.).
* Andrews v. Bartholomew, 2 Met. 509.
» 2 Stark, on Slander, pp. 77-86 ("88-97], by Wendell ; 3 Am. Jur. 294, 296 ; Wolcott
9. Hall, 6 Mass. 614, 618. If the aeclaration states that the plaintiff had never been
suspected to be guilty of the crime imputed to him, the defendant, under the general
issue, may show that he was so suspected, and that in consequence of such suspicions
his relatives and acquaintance had ceased to visit him. Earl of Leicester v. Walter, 2
Campb. 261.
* In England, and in Connecticut, Pennsylvania, Maryland, Kentucky, and South
Carolina, such evidence is admissible. In Massachusetts, New York, and Virginia, it
is not See 2 Stork, on Slander, p. 84 n. (1), by Wendell; Wolcott v. HaD, 6 Mass.
614; Alderman v. French, 1 Pick. 1; Bodwell t>. Swan, 8 Pick. 876; Root v. King, 7
he may, on a hearing to assess damages, (a) It is held, in Burnett v, Simpkins,
show that he was not guilty of negligence, 24 111. 264, that the previous bad conduct
in order to reduce the damages. Mowry of the woman may be shown in evidence
V. Shumway, 44 Conn. 494. in mitigation of damages for breach of
promise of marriage.
yoL» n. 19
290 LAW OP EVIDENCE. [PABT IV.
the evidence goes to prove that the defendant did not act wantonly
and under the influence of actual malice, or is offered solely to
show the real character and degree of the malice, which the law
implies from the falsity of the charge, all intention of proving
the truth being expressly disclaimed, it may be admitted, and of
course be considered by the jury.^ (a) Evidence of any misean-
duct of the plaintiffs giving rise to the charge, such as an attempt
by him to commit the crime? or opprobrious language addressed by
him to the defendant, either verbally or in writing, contempora-
neously with the charge complained of, or tending to explain its
meaning, may also be shown in mitigation of damages.^ So, if,
through the misconduct of the plaintiff, the defendant was led to
believe that the charge was true, and to plead in justification ac-
cordingly, this may be shown to reduce the damages.^ And If the
charge was made under a mistake^ upon discovering of which the
defendant forthwith retracted it in a public and proper manner,
and by way of atonement, this also may be shown in evidence, for
the same purpose.^ So, the extreme youth or partial insanity of
the defendant may be shown, to convince the jury that the plaintiff
has suffered but little injury.®
§ 276. TroTer. In trover j the value of the property at the time
of the conversion, if it has not been restored and accepted by the
plaintiff, with interest on that amount, is ordinarily the measure
Cowen, 613; Matson v. Buck, 6 Cowen, 499; McAlexander v. Harris, 6 Hunf. 465.
See also Boies v, McAllister, 3 Fairf. 310; Bigden v. Wolcott, 6 6. & J. 418. See
also post, S 424.
1 2 Stark, on Slander, p. 88 n. (1), by Wendell; Root v. King, 7 Cowen, 613; Oil-
man V. Lowell, 8 Wend. 682; Mapes v. Weeks, 4 Wend. 659, 662.
' Anon., cited arg. 2 Campb. 254; 2 Stark, on Slander, p. 83, n. (1), by WendelL
* Hotchkiss V, Lathrop, 1 Johns. 286; May v. Brown, 3 B. & C. 113; Wakley v.
Johnson, Ky. & M. 422; Child v. Homer, 13 Pick. 503; Lamed v, Buffington, 3 Mass.
553; Watts «. Frazer, 7 Ad. & £1. 223; Beardsley v. Maynard, 4 Wend. 336; 7 Wend.
560; Gould v. Weed, 12 Wend. 12; Davis v, Griffith. 4 G. & J. 342.
^ Lamed «. Bnffington, 8 Mass. 546. But see Alderman v, French, 1 Pick. 1, 19.
The fact of the defendant's taking depositions to prove the trath of the words, and
aftei^wards declining to justify them, is inadmissible in evidence for the plaintiff, to en-
hance the damages. Boswell v. Osgood, 3 Pick. 379. See also Bradley v. Heath, 12
Pick. 163 [wmL, § 420, n.].
^ Lamed v. Buffington, 3 Mass. 546, as qualified in 1 Pick. 19; Mapes v. Weeks, 4
Wend. 663; Hotchkiss v, Oliphant, 2 Hill (N. Y.), 515; 2 Stark, on Slander, p. 95, n.,
by Wendell; O'Shaughnessy «. Hayden, 2 Fox & Sm. 329.
* Dickinson v. Barber, 9 Mass. 225, 228; 8 Am. Jur. 297. Bat the defendant will
not be permitted to offer, in mitigation of damages, any evidence impeaching his own
character for veracity. Howe v, rerry, 15 Pick. 606.
(a) Express malice or ill-will on the emplaiy or punitive damages. Snyder «»
part of the defendant is a ground for ex- Folton, 84 ind. 128; amUy § 254, n.
PABT IT.] DAMAGES. 291
of dami^es.^ (a) It has been further held, that the jury may, in
their discretion, find the value at a subsequent time. Thus, in
trover for East India Company's warrants for cotton, where the
value at the time of the conversion was sixpence the poimd, but
it afterwards rose to upwards of tenpence, the jury were left at
liberty to find the latter price as the value ; for though the plain-
tiff might witli money have replaced the goods at the former price,
yet he might not have been in funds for that purpose.' And in
England, the plaintiff is permitted to recover any special damage
which he may allege and be able to prove as the result of the
wrongful act of the defendant. Thus, under a count in trover
for the conversion of tools, by means whereof the plaintiff was
prevented from working at his trade of a carpenter, and was
greatly impoverished, they being the implements of his trade, it
was held that the special damage directly flowing from the deten-
tion of his tools was recoverable.^ But in the United States, upon
consideration of the rule, it has been held safer to adhere to the
value at the time of the conversion, with interest. But if the
defendant has enhanced the value of the goods by his labor, as,
for example, if he has taken logs, and converted them into boards,
the plaintiff is permitted to recover the enhanced value, namely,
the value of the boards, and is not confined to the value of the
material, either at the place of taking, or of manufacture.* Where
the subject is a written security, the damages are usually assessed
to the amount of the principal and interest due upon it.* If
the plaintiff has himself recovered the property, or it has been
restored to him and accepted, the actual injury occasioned by the
conversion, including the expenses of the recovery, will form the
measure of damages; •(J) and if the property in whole or in
part has been applied to the payment of the plaintiff's debt or
1 8 GampK 477, per Ld. EUenborotigb; Pierce v. Benjamin, U Pick. 366, 861;
Parks r. Boston. 16 Pick. 198, 206, 207; Stone v, Codman, Id. 297, 800; Greenfield
Bank v. Lcavitt, 17 Pick. 1; Hepburn v. SeweU, 6 H. & J. 212. See Sedgwick on
Damagea, c. 19.
s Greening v. Wilkinson, 1 C. & P. 626.
« Bodley v. Reynolds, 10 Jur. 810. See also Davis «. Oswell, 7 C A P. 804.
* Greenfield Bank v. Leavitt, 17 Pick. 8; Baker v. Wheeler, 8 Wend. 606; Bice •.
Hollenbeck, 19 Barb. 664.
* Mercer f\ Jones, 8 Campb. 477.
* Gieenfield Bank v. lieavitt, 17 Hck. 8; Hepburn v. SeweU, 6 H. & J. 12.
(a) Wehle v. Haveland, 69 N. Y. 448; (b) Bates v. CUrk, 96 U. a 204. .
Tilden v. Johnson, 62 Yt 628.
\
292 LAW OF EVIDENCE. [PABT lY.
otherwise to his use, this may be considered by the jnrj as dimin-
ishing the injury, and consequently the damages.^ (a)
§ 277. Joint torts. In all actions for a joint torty against several
defendants^ the jury are to assess damages against all the defend-
ants jointly, according to the amount which, in their judgment, the
most culpable of the defendants ought to pay.* (6) And if several
damages are assessed, the plaintiff may elect which sum he pleases,
and enter judgment de melioribm damnisj against them all.^ But
if several trespasses are charged in the declaration, and the de-
fendants plead severally, and are found severally guilty of distinct
trespasses^ the damages ought to be severed and assessed for each
trespass against him who committed it.^ (<?)
§ 278. Alia enormia. The averment of alia enormia^ at the end
of a declaration in trespass, seems to have been designed to enable
the plaintiff to give evidence of circumstances belonging to the
transaction which were not in themselves actionable, and which
could not conveniently be put upon the record. And it has fre-
quently been said, that, under this aveiment, things may be proved
which could not be put upon the record because of their indecency;
Pierce v. Benjamin, 14 Pick. 856, 361; Kaley v. Shed, 10 Met. 817.
s Brown v. AUen, 4 Esd. 158; Lowfield v. Bancroft, 2 Stra. 910; Bull. N. P. 15;
Ansten v, Willward, Cro. £1. 860; Heydon's Case, 11 Co. 5; Onslow v. Orchard, 1 Stra.
422; Smithson v. Garth, 8 Lev. 324; 3 Com. Dig. 848, tit Damages, £, 6; £lliot«.
Allen, 1 M. G. & S. 18.
s Heydon's Case, 11 Co. 5; Headley v. Mildmay, 1 Roll. 895, pL 17; 8. c. 7 Vin.
Abr. 308, pL 5; Johns v. Dodsworth, Cro. Car. 192; Donne v, Estevin de Darby, 44
E. Ill, 7; F. N. B. [107] E; Walsh i;. Bishop, Cro. Car. 243; Rodney «. Strode, Carth.
19; 2 Tidd's Pr. 896 (9th ed.); Halsey v. Woodruff, 9 Pick. 455.
* Prop'rs of Kennebec Purchase v, Bolton, 4 Mass. 419. Where an ii^jmywas
done by two docs jointly, who belonged to several owners, it was held that each owner
was liable only for the mischief done by his own dog. Buddington v. Shearer, 20 Pick.
477; Russell v. Tomlinson, 2 Conn. 206.
(a) In aii action of trorer, if the de- (6) When damage results from two dif-
fendant at the time of the conversion had ferent causes, for only one of which the
a lien on the goods to a certain amount, defendant is responsible, the burden of
the rule of damages is the value of the proof is upon tiie plaintiff to show the
goods, deducting the amount of the lien extent of the damage occasioned by the
and adding interest on the balance, cause for which the defendant is liable.
Fowler v. Gibuan, 13 Met. (Mass.) 267. Priest i;. Nichols, 116 Mass. 401. See also
So if a plaintiff in a suit makes an illegal anle^ vol. i. § 48, n.
attachment of goods, and a few days after- (c) In an action of trover against two,
wards makes a legal attachment and gets one of whom is defaulted, and^ the other
judgment and takes the goods on execu- found guilty by the jury, there is but one
tlon, if he is sued for a conversion in mak- assessment of damages, and the judgment
ing the first attachment, the measure of is joint. Genish v. Cammings, 4 Gush,
damages is only the loss caused to the (Mjrss.) 891; Gardner «. Field, 1 Gray
owner of the goods by the original attach- (Mass.), 151.
ment and detention. Lazams v, Ely, 45
Conn. 504.
PABT lY.] DAICAQEB. 298
and that, therefore, in trespass for breaking and entering the plain-
tiff's house, he might under this averment prove that the defend-
ant, whilst there, debauched his daughter. When this doctrine
was first advanced, it was generally understood that no action
would lie for this latter injury, unless as an aggravation of the
former ; and hence, the judges may have been led to find a special
reason for admitting this evidence. But since it is well settled,
and has become the ordinary course, to sue especially for this in-
jury to a daughter and servant, as well as for criminal conversa-
tion with a wife, and to allege the main facts upon the record, no
reason is perceived for retaining this anomaly in practice.^ There
is no injury, however indecent in its circumstances, but may be
substantially stated with decency on the record ; the law permit-
ting and even requiring parties, as well as witnesses, to state in
general terms, and with indirectness, those things which cannot
otherwise be expressed with decency ; and to this extent, at least,
every party is entitled, by the settled rules of pleading, as well as
by the reason of the thing, to be informed of that which is to be
proved against him. The circumstances and necessary results
of the defendant's wrongful act may be shown without this aver-
ment; and as to those consequences which, though natural, did
not necessarily follow, they must, as we have seen,^ be specially
alleged.^
1 [Port, §§ 571 rt 9eq.]
* See mprUf § 258.
* See the obaervations of Mr. Peake, Eyid. p. 606, by Norris; Mr. Phillips, 2 PhiL
Erid. 180; Id. p. 186 (2d Am. ed.); and Mr. Starkie, 2 Sterk. Evid. 815; 1 Chitty on
PL 412 (7th ed.); Chitty's Precedents, p. 716, n. {k); BalL N. P. 89; Lowden v.
Goodrick, Peake's Ou. 46; Pettit p. Addington, Id. 62.
294 LAW OF EYIDENCE. [PABT TV.
DEATH.
§ 278 a. Proof of death In oMl and criminal oases. The amount
of evidence required to establish the fact of death is somewhat
affected by the nature of the case in which the question arises.
In trials for homicide^ this is, of necessity, to be proved at the
outset, in the most satisfactory manner, and beyond any reason-
able doubt ; such being the rule of evidence in the criminal law. ^
This, therefore, is the highest degree of proof demanded of this
fact. In eivU eases it is ordinarily sufficient to prove it by the
mere preponderance of evidence ; and yet here there is a differ-
ence in the amount of proof required, according to the materiality
of the fact to the subject in controversy. Thus, in a claim of
title by descent or succession, or of the right of administration,
the party is held to a more strict proof of the death of the ances-
tor, than in cases where the question arises incidentally and col*
laterally in the proceedings, as for example, on a motion to read
the deposition of a witness, or to give evidence of his testimony
at a former trial, on the ground of his subsequent decease ; for
these are cases addressed to the discretion of the court, in which
the consequences of mistake are comparatively of not much im-
portance, and are without difficulty retrieved.*
§ 278 b. When proof is required. In the United States, the
proof of deathy in cases not criminal, is required in claiming title
to land by descent, as heir, against a stranger ; or as dowress,
against any tenant of the freehold ; or, in the probate courts^ in
an application for letters testamentary, upon the probate of a
will ; or of letters of administration ; or, in a claim of the insur-
ance-money y upon a policy on the life of another, by the party to
whom it was made payable at his death ; or in a claim of tpages
or pension or bounty-money ^ by the widow or chUd of one entitled
under the laws regulating the military ^ land, or TMval service.
§ 278 c. Direct proof. The direct and most satisfactory proof
of the death of a person is the testimony of those who saw him
die, or who, having known him when living, saw and recognized
1 Seejpose, vol. iiL {§ 80, 180-132. * Canington v. Cornock, 2 Sim. (67.
PABT lY.] DEATH. 295
his body after his decease. In the former of these cases, if the
circumstances were of a nature to leave the fact in any degree
doubtful, as for instance, in apparent sudjlen death, whether
from the inhalation of noxious gases, or other accident, the testi-
mony of a medical person is desirable, and, if possible, should be
obtained.
§ 278 d. Indirect proof. The indirect evidence of death is either
documentary or oral. Among the documentarif instruments of
proof which have been received may be enumerated Parish and
other Registers, where such are required by law to be kept;^
Muster Bolls and Returns, in the military and naval service;^
Coroners' Inquests ; ^ Probate of the will of the deceased, or the
grant of administration on his estate ; ^ (a) the assignment of the
widow's dower upon writ, or other legal proceedings; previous
litigation respecting the estate of the deceased, terminated in
favor of those claiming as heirs. The identity of the person is,
prima faeie^ inferred from the identity of the name; except where
the place of residence was in a large city or town, in which case,
proof of some additional circumstances seems to be necessary.^
§ 278 e. Oral evidence. The oral evidence^ indirectly proving
death, consists of those circumstances from which the death of
the person may reasonably be inferred; such as long absence,
without any intelligence respecting him, reputation in the family,
and their conduct thereupon, and other circumstances, (i) In
regard to long absence^ this alone, without the aid of other facts,
has been said not to furnish any presumption of the party's death;
1 See arUe, vol L §§ 483-485, 498 ; Bull. N. P. 247 ; Doe v. Andrews, 15 Ad. &
£L N. B. 75d. A consurs certificate u not evidence of the death of a penon. Morton
V. Barrett, 1 Applet. 109.
« Ibid.
* Ibid. ; Sergeeon v. Sealey, 2 Atk. 412 ; 1 Saand. 862, n. (1), by Willianu.
* Infira, §§ 855, 698 ; arUe, vol. i. § 550.
* Hubback on Succession, pp. 108, 464, 465 [ante, vol I §§ 88, 512, 575].
(a) In some cases, althoogh holding hend the presumption would be vriraa
that the absence of a person from the State faeU in favor of tne decease if a plea in
without being heard from for any period abatement were interposed, but open to
short of seven years is not sufficient to proof that the testator is still living. 2
raise a l^gal presumption of his death, it Kedfield on Wills, 2 ; Lancaster v. Wash-
has been considered that where letters of ington Life Insurance Co., 62 Mo. 121 ;
administration had been granted after an Tisdale v. Connecticut Insurance Co., 26
absence of Uiree years, and a suit had been Iowa, 170. But it is denied in Ins. Co. v.
brought upon a promissory note payable Tisdale, that letters of administration are
to the intestate without any plea in abate- even prima facie evidence of death. Ante,
ment being interposed, a conclusive pre- vol. L § 550, n.
sumption of the death of the intestate (b) Connecticut Insurance Co. v, Tis-
arose from the above ikcts. Newman v. dale, 26 Iowa, 170.
Jenkins, 10 Pick. (Mass.) 515. We appro-
296 LAW OP EYIDENCB. [PABT IV.
on the ground of another rule, namely, that the last-proved state
of things is presumed to continue ; and that, therefore, the exist-
ence of a living person being once shown, he is presumed to con-
tinue alive, and the bui*den of proof is upon the party asserting
his death. This presumption is held by the civilians to continue
for a hundred years ; ^ and it has been applied in courts of com-
mon law to almost as great an extent.^ But it is conceived that
the presumption of continuance can justly be applied only until
a contrary presumption is raised, from the nature of the subject.'
It would surely be unreasonable to presume that an orange,
proved to have existed fresh ten years ago, is still sound ; a con-
trary presumption having arisen, from the ascertained average
duration of that fruit in a sound state. On the same principle,
the average duration of human life, after any given age, being
now ascertained and stated in well-authenticated tables, which
have been recognized by the courts as safe rules in the calcula-
tion of the value of annuities, and in other similar cases, no good
reason is perceived why the same tables may not be resorted to
as furnishing ground legally to presume the death of a person,
after the lapse of the period of the probable duration of his life,
in the absence of any evidence to the contrary.^
§ 278/. Presumption as to death. But however this may be,
as a mere presumption of law, the rule is now settled, for most
judicial purposes, that the pre9umptian of life^ with respect to
persons of whom no account can be given, ends at the expiration
of seven years from the time they were last known to be living ;
after which, the burden of proof is devolved on the party assert-
ing the life of the individual in question.^ (a) The issue, in such
1 ** Vivere etJAm nsqae ad oentnm annos quilibet pnesumitor.'* Corpus Juris Glos-
satum, torn. ii. p. 718. And see Mascardus, De Probat voL L concL 103, n. 5 ; Id.
vol. iii. cond. 1075, n. 1, 1078, n. 6.
* In Atkins v. Warrington II Ch. PI. 258], it is said that the Court of Queen*s Bench
refused judicially to presume that a person, alive in the year 1084, was not living ia
the year 1827. See Best on Presumptions, § 139. And in Benson v. Olive, 2 Stra.
920, when the deposition of a witness, examined in 1672, was offered to be read at «
triid had in 1731, on the presumption that the witness was dead ; Reynolds, C. B.,
refused to admit it, without proof of proper but ineffectual search and ioquiiy after
him. See also Hubback on Succession, pp. 167, 168.
< See anU, vol. L § 41; 2 Cruise's Dig. tit 16, c 1, § 25; Id. c 3, §§ 8-10 (GreeaL
ed.) [2d ed. 1856] ; Fearne, Rem. pp. 21-23.
* See Hubback on Succession, pp. 171, 172. But see /» re Hall, Wallace, Jr. 85,
A See anUj voL i. § 41 ; Best on Presumptions, § 140 ; Hubback on Succession.
(a) For the presumption of death, see the death even after the seven years have
oti^, vol. i. ch. 4, note on Presumptions. elapsed. The party who relies on the oc-
There is no presumption of the daU of correnoe of the death at any particuliir
PABT lY.] DEATH. 297
cases, is an issue of fact ; and the jury are at liberty to find the
fact of death within the period of seven years, upon the circum-
stances proved in the case.^ Among the circumstances material
to this issue are, the age of the party, his situation, habits, em-
ployment, state of health, physical constitution ; the place or
climate of the country whither he went, and whether he went by
sea or land ; the facilities of communication between that country
and his former home ; his habit of correspondence with his rela-
tives ; the terms of intercourse on which he lived with them ; in
short, any circumstances tending to aid the jury in finding the
fact of life or death, (a) There must also be evidence of diligent
inquiry at the place of the person's last residence in this country,
and among his relatives, and any others who probably would have
heard of him, if living ; and also at the place of his fixed foreign
residence, if he was known to have had any.^
§ 278 g. Reputation in family. Reputation in the family and
family conduct admissible in cases of pedigree^ which have been
treated in the preceding volume, are also admissible in proof of
the death of a member of the family.^ (i)
§ 278 A. Eridenoe less strict in special oases. It may be added,
that where the subject of the claim is paramount, so that no
injury to the absent owner can result from any mistake in re-
pp. 170-178 ; Thorne v. Rolff, Dyer, 185 a; Gilleland v. Martin, 8 M'Lean, 490 ; Doe
17. JeeaoD, 6 East, 86.
1 Ibid. ; White r. Mann, 18 Shepl. 861.
* See Habback on Succeaaion, pp. 17'2-174 ; McCartee v. Camel, 1 Barb. Ch. 455 ;
Doe V. Andrews, 15 Ad. & El. n. b. 756.
* Ante, vol. i. §§ 108-106 ; Cochrane v. Libby, 6 ShepL 89.
time mntt give evidence tending to prove to the contrary. 2 Redfield on Wills, 8.
that it occnrred at that time. In re Phe- A mere failure to hear from a person for
ne'e Trosts, L. R. 5 Ch. \%9\ Re l/cwes's seven years, residing, when last heard
Trusts, L. R. 11 Eck 286 ; Corbishley's from, in a distant city, does not raise the
Trusts, L. R. 14 Ch.I). 846; Spencer v. presumption of death. McRee v. Oopelin,
Boper, 18 Ired. (N. C.) 888 ; McCartee v. Cir. Ct St. Louis Co., Mo., 2 Cen. L. J.
Carroel, 1 Barb. (N. Y.) Ch. 455 ; State 818.
9. Morse, 11 Ired. (N. C.) 160; Hancock (a) Matter of Ackermann, 2 Redf.
V. American life Insurance Co., 62 Mo. (N. T.) 154 ; Hancock v. American life
26 ; Emerson v. White, 9 Foster (N. H.), Insurance Co., 62 Mo. 26 ; Sheldon v.
482 ; Whiteside's Appeal, 28 Pa. St. 114. Ferris, 45 Barb. (N. Y.) 124; Whiteside's
The general rule is, tnat the presumption Appeal, 28 Pa. St. 114.
of the continuance of life from absence or (6) See aiUe^ vol. L § 108-108, notes.
other cause is re^puxled as mere presump Reputation may also be proved by charts,
tion of fact, to m weighed by the jury m tables, registers, Ac., or births, deaths,
connection with tiie attending circumstan- Ac., kept in the family, tombstones, &c.
oes. But, for convenience, the period of Shrewsbury Peerage Case, 7 H. of L. C. 1 ;
■even years has been fixed as the limit of Haslam v. Cron, 19 W. R. 968 ; Eastman
the prima faeU nresumption of death, in v. Martin, 19 N. H. 152.
the ab«noe of aU drcnmstances tending
298 LAW OP EYIDENCB. [PABT FT.
gard to his death ; as, for example, real property, in an action
for the mere posBession ; death may be presumed from circum-
stances much less weighty and persuasive than will be required
where the subject may be irretrievably lost to the right owner,
by payment or delivery to the wrong person. Thus, in an action
on a policy of insurance on the life of the assured, payable to the
plaintiff on his death. Lord Mansfield instructed the jury, that
if the evidence left the time of the death so doubtful in their
minds that they could not form an opinion, they ought to find for
the defendant.^
^ Patterson v. Black, Park, Ins. 438, 484 (2d Am. ed.). And aee Hasten «. Cook«
son, 2 Eq. Cas. Abr. 414 ; Doe v. Deakin, 4 B. & Aid. 438 ; Hubback on Sacceesion,
pp. 176-179. For the case of eammarienUa, or persons perishing in the same adami^,
see atUe, vol. L §§ 29, 80 ; Hoehring v. Mitchell, 1 Barb. Ch. 264.
PART lY.] DEBT. 299
DEBT.
§ 279. I>«bt lies for avm oertain. The action of debt lies for a
sum certain; whether it have been rendered certain hy contract
between the parties, or by judgment, or by statute, as when this
remedy is given for a penalty, or for the escape of a judgment
debtor.^ (a) Where the contract is by a specialty, the execution
1 The common eonaolidaUd eounl in debt is as follows: " For that the said idefendairU^f
on was indebted to the plaintiff in — — dollars, for [here uttUe what the debt is for,
a$ in AsKumptit, which see], which moneys were to be paid to the plaintiff npon re-
qnest ; whereby, and by reason of the non-payment thereof, an action hath accrued to
the plaintiff to demand and have from the said {defendant) the sums aforesaid, amount-
ing in aU to the sum of . Yet the said {defeTtdant) has never paid the same," kc.
On a promisaory note^ between the original parties, the declaration is as follows ;
" For that the said {defendant), on , made his promissory note and delivered the
same to the plaintiff, and thereby, for value received, promised the plaintiff to pay
him the sum of in months, [as Uie ease may be], and, by reason of the non-
payment thereof, an action hath accrued to the plaintiff, to demand and have from the
said (defendant) the sum aforesaid. Yet," &c.
In debt on a judgment, the count is thus : *' For that the plaintiff, at the court
Ihert dewaribe the court by its proper title], begun and holden at within and for the
county or district] of , on [here stale the day appointed by law for holding the term\
>y the consideration of the justices of said court, recovered judgment against the said
{defemdanCj for the snm of debt or damage, and the further sum of for costs of
suit, as by the record thereof in the same court remaiuing appears ; which said judg-
ment remains in full force, unreversed and unsatisfied ; whereby an action has accrued
to the plaintiff, to demand and have from the said (de/endamt) the sums aforesaid,
amounting to the sum of . Yet the said (defendani) has not paid the same [nor
any part thereof],** &c.
The following is the usual count in debt upon a bond : '* For that the said (defend-
ant) on , by his writing obligatory of that date, which the plaintiff here pix)duce8
in court, bound and acknowledged himself indebted to the plaintiff in the sum of
to be paid to the plaintiff on demand. Yet the said (defendani) has not paid the
aame," &c.
In dMfoT rent, founded upon the defendant's occupancy, and not upon the inden-
tare, the count is as follows : *' For that the plaintiff on demised to the said (d^
fendanf) a certain messuage and premises, with the appurtenances, situate in , to
have and to hold the same to the said (drfendant) for the term of thence next en-
soing, yielding and paying therefor to the plaintiff, during the said term, the yearly
rent of , to be paid [here insert the times ofpayme7U\ by equal portions ; by virtue
of which demise the said (defendani) entered into said demised premises, and was pos-
sessed thereof thenceforth and until the day of , when a laige sum of money,
to wit, the sum of of the rent aforesaid, accruing up to the day last aforesaid, was
due and payable from said (defendant) to the plaintiff ; whereby an action has accrued
to the plaintiff to demand and have from the said (defendani) the said sum last men-
tioned. Yet the said (defendani) has never paid the same," &c.
(a) Knowles v. Eastham, 11 Cnsh. ties, penalties, and forfeitures imposed by
(Mass.) 429 ; Allen v. Lyman, 1 Williams statute, and where no form of action is
<Vt), 20 ; Addison v. Preston, 10 Eng. given. Com. v. Davenger, 10 Phila. (Pa.)
Law ft Eq. 489. Debt wiU lie for UabiU. 478 ; Vaogjian v. Thompson, 15 IIL 89 ;
800 LAW OP EVIDENCE. [PABT IV.
of the deed is put in issue by the plea of ncn est factum^ which, as
it may also be made in an action of covenant, will hereafter be
considered under the title of Deed. The liability of an heir, on
the bond of his ancestor, will be treated under the title of Heir.
§ 280. iru debet, when proper plea. When this action is brought
upon a parol contract, or for an escape, or for a penalty given by
statute, the general issue is nil debet; under which, as it is a
traverse of the plaintiff's right to recover, he must prove every
material fact alleged in the declaration. And, on the other hand,
as the defendant alleges that he does not owe, this plea enables
him to give in evidence any matters tending to deny the exist-
ence of any debt, such as a release, satisfaction, arbitrament, non-
delivery of goods, and the like. And, generally, when the action
is upon a matter of fact, though the fact be proved by a specialty,
or by a record, the plea of nil debet is good, and will open the whole
declaration, as well as admit the defendant to make any defence
showing that he is not indebted. But if the specialty is itself
the foundation of the action, though extrinsic facts be mixed
with it, the rule is otherwise. Thus, in debt for rent, due by in-
denture, the action is founded on the fact of occupation of the
premises, and pernancy of the profits by the defendant, the lease
being alleged only by way of inducement; and, therefore, the
plea of nil debet puts the plaintiff upon proof of the whole decla-
ration ; and, under it, the defendant may give in evidence a re-
lease ; payment ; or, that possession was withheld by the lessor ;
or, that he was subsequently ousted or evicted by the lessor,
Portland Dry Dock, &c Co. v. Portland, discharged in notes or bonds due on good
12 B. Mon. 77; Strange v. Powell, 15 Ala. solvent men residing in the connty of
452. It will not lie to recover dues payable Randolph, Virginia.'* Butcher v. CarlUe,
out of a particular fund. Insane Hospital 12 Qratt. (Va.) 520. Such an action will
V, Higgins, 15 III. 185. An action of debt lie upon the decree of a court of equity for
is not maintainable upon an agreement the payment of a specific sum, whenever
that the defendant would carry certain it can be brought upon the judgment of a
goods for the plaintiff, in consideration court of law. The records of both courts
that the plaintiff would car^ a like ouan- are of equal authority. Pennington v. Gib-
iity for the defendant. Bracegirdte v. son, 16 How. (U. S.) 85.
Hincks, 24 Eng. Law k £q. 534. But to An action of debt may be sustained
support the action there must be some upon an instrument under seal, for a sum
promise, exi>Tess or implied, to pay the certain payable at a certain time, and to
money. So it will not fie on a mortgage a specified person ; and any recitfd of the
which contains no promise to pay the consideration for which it was given may
money due. Larmon v. Carpenter, 70 IlL be rejected as surplusage. Nash v. Naah,
549; Fidelity, &c. Insurance Co. v. Miller, 16 IlL 79. See also Smith «. Webb. Id.
89 Pa. St. 26. 105 ; Dunlap v. Buckingham, Id. 109 ;
An action of debt may be sustained on Tumey v. Paw, Id. 485; Gilmore «. Lo^^tfi,
an obligation to pay a certain sum of 80 La. Ail Pt II. 1276.
money with interest, " which sum may be
PABT IV.] DEBT. 801
or by a stranger having a better title. If the onster or eviction
was by the lessor, and was of only a part of the premises, it will
bar the whole action, for, being a wrong-doer, no apportionment
will be made in his favor ; but if it were by a stranger, the rent
will be apportioned. So, in debt for an escape, upon a devantavit,
the judgment is but inducement, the action being founded on the
fact of the escape or of the waste .^ (a)
§ 281. Debt for rent Pleading. Bvldenoe. In debt for rent^
founded upon a demise by deedy if the defendant pleads nil habuit
in tenementisy the plaintiff may estop him by replying the deed ;
but if, instead of so doing, he takes issue upon the plea, the deed
is no estoppel, and the jury may find according to the truth,
upon the whole matter. And if he pleads nil debet^ he cannot,
under this issue, give in evidence that the plaintiff had no inter-
est in the demised premises ; because, if he had pleaded it spe-
cially, the plaintiff might have replied the deed by way of
estoppel; of which right he shall not be deprived, but by his
own laches.^ Nor can the defendant, under this plea, give evi-
dence of any disbursement for necessary repairs, where the
plaintiff is bound to repair; for his remedy is by an action of
covenant.' But if it be part of the covenant that the tenant
may make repairs out of the rent, the evidence is admissible.^
§ 281 a. Debt on parol contract. In debt upon a parol contract y
also, the suit being founded upon the facts of the transaction,
whether the contract be express or implied, the plaintiff must
allege, and under the general issue must prove, all the material
facts from which the obligation arises; the proof being generally
the same as in an assumpnt for the like causes of action.^ And
1 Steph. on Plead. 177; 1 Chitty on Plead. 428; Tyndal v. Hutchinson, 8 Ler. 170;
Bullia V, Giddens, 8 Johns. 83 ; Minton v, Woodworth, 11 Johns. 474 ; Jansen v. Os-
tnnder, 1 Cowen, 670 ; Stilson v, Tobey, 2 Mass. 521; 2 Saand. 187 a, n. (2), by Wil-
liams. See, as to apportionment, Woodfall's Landlord & Tenant, p. 801, (6th ed.), by
Wollaston ; VanRhan v. Blancbard, 1 Yeates, 175; Gilb. Evid. 288, 284 ; BuU. N. P.
197; Bredonv. Hannan, 1 Stra. 701.
« Bull. N. P. 170; Tuevivan V.Lawrence, 1 Balk. 277.
* Bull. N. P. 176, 177; Taylor v. Beal, Cro. El. 222.
* Clayton v. Kynaston, 1 Ld. Raym. 420, per Holt, C. J.
* See aupm^ tit. Assumpsit, §§ 112-129.
(a) Matthews V. Redwine, 28 Miss. 288; Zabr. (N. J.) 188. NU debet cannot be
King «. Ramsay, 18 111. 619. To an action pleaded to an action on the judgment of a
on a oovenant not to do a certain thing, the Oourt of another State. Buchanan v. Port,
condition being set out and the bribes 6 Ind. 264 ; Henzley v. Force, 12 Ark.
•sidgned in the declaration, nU debet is not 756.
a good plea. Hogencamp v, Ackeiman, 4
802 LAW OP KYIDENCB. [PABT IT.
the defendant, as before stated, may be admitted to any defence
which shows that the plaintiff never had a cause of action ; such
as infancy, mental incapacity, coverture, duress, want or illegality
of consideration, release, or payment before breach, term of credit
unexpired,^ or the like ; and may also show many matters which
go in discharge of his liability which once existed, such as pay-
ment, accord and satisfaction, release, and other matters already
noticed in the action of assumpHt.^
§ 282. statute of limitations must be apeoially pleaded. The
Statute of limitationa cannot be given in evidence under the plea
of nil debet; it must be specially pleaded. Nor can a farmer
recovery by another person be given in evidence under this plea,
when pleaded to an action of debt for a penalty given by statute ;
for if it could be so shown, the plaintiff might be deprived of the
opportunity of pleading nui tiel record^ or of proving that the re-
covery was by fraud.* But in debt upon a parol contract, under
the plea of nil delete the defendant may take advantage of
the statvte of frauds; for the plaintiff, under that issue, is bound
to prove his case by such evidence as the statute requires.^
§ 288. Debt for penally. Bvidenoe. In debt for a penalty given
by statute, and in every other case, where a criminal omission
of duty is charged, whether official or otherwise, we have already
seen that tlie allegation, though negative in its character, must
be proved by the plaintiff.^ But if the action is founded on the
doing of an act without being duly licensed or qualified, the
burden of proving the license or qualification lies on the de-
fendant, because it is a matter lying peculiarly within his own
knowledge.* (a)
§ 284. PlainttiTe oaee. The plaintiff in such action^ besides
proving the corpus delicti as alleged, must also show that the
action has been regularly commenced within the limited time,
if the statute has made this essential to his riglit to recover;
1 Broomfield v. Smith, 1 M. & W. 542.
s See t^pni, §§ 135, 136 a, 280.
• Ball. N. P. 197; Bredon v. Hannan, 1 Stra. 701.
* Frickcr «. Thomlinson, 1 M. & G. 772. So, in assumpflit, the same defence is open
under thejzeneral issue. Buttemere v. Hayes, 5 M. & W. 456; Eastwood v, Kenyon,
11 Ad. 9l £L 438.
« AvU, vol. L §§ 78, 80. • AnU, voL i. { 79.
(a) But if the license Ib to he given hy it was not givso. Ahney v, Austin, 6 SL
the plaintiff himself, he must prove that App* 49.
PART nr.] DEBT. 808
and in the right connly, if any is designated bj law.^ (a) If the
time of the commencement of the action does not appear on the
record, it may be shown by the writ, or, aliunde^ by any other
competent evidence.^ And if part of the penalty is given to the
town or parish where the offence was committed, or to the poor
thereof, it must be proved that the offence was committed in that
town or parish.^
§ 285. Defenoe. The defenidcmt^ in a penal action^ may, under
the general issue, avail himself of any statutory provision exempt-
ing him from the penalty, whether it be contained in the same
statute on which the action is founded, or in any other.^ He
may also, under this issue, take advantage of any variance be*
tween the allegation and the proof on the part of the plaintiff ;
for, as we have already seen, the plaintiff is held to the same
strictness of proof in a penal action or in an action founded in.
tort, where a contract is set forth, as in an action upon the con-
tract itself.^
§ 286. I>«bt for bribery. In an action of debt for bribery at an
election, the material fact is that the pariy was bribed to vote ;
and the plaintiff must therefore prove some bribe, promise, or
agreement, according to the statute, previous to voting. But
though several candidates are mentioned in the declaration, it
will not be necessary to prove that the party was bribed to vote
for more than one; nor that they were all candidates; nor will
it be necessary to prove that the party bribed was a voter, the
offer of a bribe by the^ defendant being conclusive evidence,
against him, of that fact.^ A wager with the voter, by a person
who is not one, that he will not vote for a particular candidate,
is an offer or agreement to bribe ; and in any case is competent
1 Bull. N. P. 194, 195. And see, as to theploce where the offence was committed,
Scott V. Brast, 2 T. R. 288; Butterfield v. Windle, 4 East, 886; Pope v. Dairies, 2
Campb. 266; Sctury v. Freeman, 8 B. & P. 881; Pearson v. McQowran, 8 B. & C. 700.
* Johnson v. Smith, 2 Burr. 950; Granger v. Geoi^ 5 B. & G. 149.
* Evans «. Stephens, 4 T. R. 226; Frederick v. Lookup^ 4 Borr. 2018.
^ Rex V. St George, 8 Campb. 222.
* Ante^ vol. L |§ 58, 65; Parish v. Burwood, 5 Esp. 88; Everett v. Tindal, Id. 169;
Partridge v. Coates, 1 0. & P. 584; 8. c. Rj. k M. 158.
* Combe v. Pitt, 8 Borr. 1586; Rigg v. Cuigenven, 2 Wils. 896.
(a) And he mutt show that his action out his permission, the plaintiff mnst aver
is cleariy within the statute, in everr way. and prove that he owns the land in fee.
Gilbert v. Bone, 79 111. 848. He can make this out jtrima faeU by
In an action which is instituted under showing possession under a deed pnrport-
a statute which provides a penaltv for cut- ing to convey the land to him in lee. Ab-
ting timber <m tne lands oi another with- ney v. Austin, 6 HL App. 49.
804 LAW OP EVTDENCB. [PABT IT.
evidence for the plaintiff, the intent being for the consideration
of the jury.^
§ 287. Defence. The defendant in such action may, nnder the
general issue, show that the money was a mere loan ; but though
a note be given, the question whether it was a loan or a gift will
still be for the jury.^ It is no defence that the party did not
vote as he was requested ; nor that he never intended so to do; ^
nor that the party corrupted had no right to vote, if he claimed
such right, and the party offering the bribe thought he had such
right.*
§ 288. Debt for an escape. In debt for an eseapej the plaintiff
must prove, (1) the judgment by a copy of record ; (2) the issuing
and delivery of the writ of execution to the officer ; (8) the arrest
of the debtor ; and (4) the escape. The process may be proved
by its production, or, if it has been returned, by a copy. If the
defendant has made the return, this is conclusive evidence against
him, both of the delivery of the precept to him, and of the facts
stated in the return. If the process is not returned, after proof of
notice to the defendant to produce it, secondary evidence of it is
admissible.^ (a) The escape, if voluntary, may be proved by the
party escaping ; for though the whole amount of the debt may be
recovered against the sheriff, yet this will be no defence for the
debtor in an action by the creditor against him.®
^ Allen V. HeArn, 1 T. R. 56, 60; Anon., Lofft, 562; United States v. Wonall, 2
Dall. 884. See Commonwealth v. Chapman, 1 Vii^. Cas. 138. Whether an agree-
ment to vote for each other's candidates for different offices amounts to bribery, quart;
and see Commonwealth v. Callaghan, 2 Vii^. Cas. 460.
« Sulston V, Norton, 1 W. Bl. 817, 818.
* Ibid.; 8. 0. 8 Burr. 1285; Henslow v, Fancet, 8 Ad. jc £1. 51; Harding v, Stokes,
2 M. & W. 233.
* Lilly V, Come, 1 Selw. N. P. 650, n.
ft Cook V, Round, 1 M. & Rob. 512.
* Bull. N. P. 67; Hunter v. King, 4 B. & Aid. 210, per Abbott, G. J.; ant^ yoL L
§404.
(a) The escaiw may be proved by evi- irresistible force. Shattuck v. State, 51
dence that the jailer permitted the pris- Miss. 575.
oner committed to jail on execution to go The sheriff cannot give evidence of the
at large without giving a bond as requiiid insolvency of the prisoner as a defence or
bylaw(Hotehkiss «. Whitten, 71 Me. 577), in mitigation of damages, but the creditor
or by proof that after giving bail for the mav recover the whole amount in the writ
limits, the prisoner afterwards went be- and interest. Nor will a defect in tiie
yond the liraito (Stickle v. Reed, 28 Hun process of commitment, unless such as to
(N. Y.), 417). render it void, be a defence. Dunfoid v.
There is' no need of proving n^ligence Weaver, 21 Hun (N. Y. ), 849. But a valid
of the sheriff in such a case, lie is bound order of discharge, though not served, is
to keep the prisoner, unless the custody is a defence. Richmond v. . Praim, 24 Hon
terminated oy the act of Qod, or some (N. Y.), 578.
PABT lY.] DEBT. 805
§ 289. BreaoliM of oovenant. Where breaehea of covenant are
astiffned on the record^ the plaintiff should be prepared to prove the
breaches as assigned or suggested, and the amount of damages.^
And if the condition of the bond declared on is for the performance
of the covenants in some other deed, he must prove the execution
of that deed also, as well as the breaches alleged.^ If the condition
of tlie bond is not set out in the pleadings, but is only suggested
on the record after a judgment on demurrer, the plaintiff, in prov-
ing his damages, must produce the bond, and prove its identity
with the bond declared on ; but of this fact, slight evidence, it
seems, will ordinarily suffice.^
§ 290. Plea of solvit ad diem. The plea of solvit ad diemy to an
action of debt on a bond, payable on a certain day, will be sup-
ported by evidence of payment before the day ; for if the money
were paid before the day, the obligee held it in trust for the obligor
until the day, and then it became his own.^ (a) But if the bond
was payable on or before a certain day, the payment before the
day may be so pleaded and proved.^ This plea may be supported
by the lapse of twenty years, without any payment of interest on
the bond within that period. But as the payment of any interest
after the day will falsify this plea,^ the plaintiff', where interest or
part of the principal has been so paid, should plead solvit post
diem ; in which case the lapse of twenty years since the last pay-
ment will, in the absence of opposing proof, warrant the jury in
finding for the defendant.^ This presumption of payment, arising
from the lapse of twenty years, is not conclusive; and, on the
other hand, the jury may infer the fact of payment from the lapse
of a shorter period, with corroborating circumstances.®
1 2 Saond. 1S7 a, n. (2); 2 PhiL Evid. 169.
« 2 Phil. Evid. 169.
* Hodgkliison v. Manden, 2 Campb. 121.
* Tryon r. Carter, 7 Mod. 231; 8. c. 2 Stra. 994; Dyke v. Sweetinp, WiUes, 685. If
one only of seyeral joint and several obligors is sued, he may give evidence of any pay-
ment nude by his co-obligors. Mitchell t. Gibbes, 2 Bay, 475.
* 2 Saund. 48 b,
* Moreland v. Bennett, 1 Stra. 652; Denham v. Crowell, Coxe, 467.
^ 2 Saund. 48 b; Bull. N. P. 174; Moreland v, Bennett. 1 Stra. 652; 2 Steph. N. P.
1259. The plea of aolvU post diem was bad at common law, but was permitted by Stat.
4 Anne, c. 16, § 12.
* Oswald V. Leigh, 1 T. R. 271; ColseU v. Budd, 1 Campb. 27. See also 4 Buir.
1963.
(a) Under plea of payment and set-off, ment on a bond to plaintiff. Huffmans
proof of a payment by defendant on a bond v. Walker, 26 Giatt. ( Va. ) 314*
whidi plaintiff was liable on is a good pay-
TOL. n. 20
806 LAW OP EVIDENC?B. [PABT lY.
§ 291. Rebuttal This premmptian^ arising from lapse of time,
maj be repelled by evidence of the defendant's recent admission
of the debt or duty; such as the payment of interest, and the
like.^ But an indorsement of part payment, made on the bond by
the obligee, is not alone evidence of that fact ; the indorsement
must be proved to have been made at a time when the presumption
of payment could not have arisen, and when, therefore, the indorse-
ment was contrary to the interest of the obligee.^ This presump-
tion may also be repelled by evidence of other circumstances, such
as the plaintiff's absence abroad, and the like, explanatory of his
neglect to demand his money .^
§ 291 a. Debt on Judgment. In debt an a Judgment, it has been
held, that satisfaction of the judgment may be proved by parol,
even though the payment was of a less sum than the whole
amount due, provided it was actually received and accepted in full
satisfaction of the judgments (a) And if tne judgment were
against the debtor by his family name only, and in the action of
debt upon it he is sued by both his Christian and surname, the
plaintiff may prove the identity of the person by paroL* (J)
§ 292. Plea of non eat faotom. The plea of nan eetf actum j to an
M T. R. 271.
> See ofnUt vol. i. §§ 121, 122. See also Roaeboom v, Billington, 17 Johns. 182;
Bose V. Bryant, 2 Campb. 821. The creditor's indorsement sdone is now rendered in-
sufficient, by Stat 9 Cko. IV. c. 14, and by the statutes of several of the United States.
See Massachusetts, Rev. Stat. c. 120, § 17; Maine, Rev. Stat c. 146, § 28.
* Newman v. Newman, 1 Stark. 101; Willaume v. Gorges, 1 Campb. 817. See
Best on Presumptions, pp. 187-189. The whole subject of Presumptive Evidence has
been treated witn much ability and clearness by Mr. Best, in his " Trattise on Presump-
tions of Law and Fact" The lapse of twenty years is now made a bar, by Stat. 8 k
4 W. lY. c 42. See also Massachusetts, Rev. Stat c. 120, § 7; Maine, Rev. Stat
c. 146, § 11.
^ Tarver v. Rankin, 8 Eelley, 210. And see Sewall v. Sparrow, 16 Mass. 24; 9
Johns. 221; 7 Wend. 801.
• Root V. Fellowes, 6 Cuah. 29.
(a) Under a ^lea of nU debei, to an Spooner v. Warner, 2 IlL App. 240; Ba-
action upon a judgment recovered in chanau v. Port, 5 Ind. 264 ; Hensley v.
another state, payment may be proved; Force, 12 Ark. 766.
and a receipt signed by the nUintiff, ac- (b) See also Barry v. Carothers, 6 Rich,
knowledging payment, though it be not 831; Ducommun v. Hysinger, 14 111. 249.
under seal, is admissible as prima facie And where a judgment was obtained in
evidence of payment Clark v. Mann, 88 one State against one J. P. M., and an
Me. 268. Nil debet cannot be pleaded to action on said judgment was brouffht in
an action on the judgment of a court of another State against one J. P. M., the
another State. Indianapolis, &c R. R. Co. identity of the defendant will be presumed.
«. Risley, 60 Ind. 60. A recoverv in an Thompson v. Manrow, 1 Cal. 428. When
action of debt on a judgment should be in a judgment debt is assignabK any snbse-
form of debt for the amount of the ori- quent assignee may sue on it Wood e.
ginal judgment and for the amount of Decoater, 66 Me. 642.
the interest accrued thereon as damages.
PABT IV.] DEBT. 807
action of debt on bond, puts in issue only the execution of the in-
strument declared on, and admits every other allegation. There-
fore the defendant, under this issue, cannot give in evidence, as a
defence, any thing arising under the condition of the bond ; ^ (a)
nor can he show that the bond was not taken conformably to the
requisitions of a statute.^ And if the action is against one obligor
alone, as jointly and severally bound, the plaintiff cannot, under
this plea, give in evidence a joiTit bond of the defendant and the
other person mentioned, though it agrees in date and amount with
the bond described in the declaration.^ So, if the declaration is
against one as principal and the other as surety, and the evidence
is a bond given by the two as sureties only, it is a variance equally
fatal.* (4)
^ Bice V. Thompson, 2 Bailey, 839.
' Commissioners v. Hanion, 1 Nott k McO. 554.
* Postmaster-General v. Bidgway, Gilpin, 185.
* Bean v. Parker, 17 Mass. 605.
(a) The plea of ncn est fadwm to an sons bound themselyes to pay a snm of
action of debt on a note pats in issue only money, and which purport^ to be under
the execution of the note; fraud, covin, or their hands and seals, was signed by one of
illegality of consideration, cannot be proved the parties without a seal, and it was held,
under it Chambers v. Games, 2 Greene upon demurrer, that one action of debt
(Iowa), 820. might be brought against all the partisB.
(6) An instrument by which three per- Bankin v. Boler, 8 Gratt. (Va.) 63.
808 LAW OF EVIDENCE. [PABT lY.
DEED.
§ 293. Proof under plea of non est faotmn. When a deed or
Bpecialty is the foundation of the action, whether it be an action
of covenant or of debt, and the defendant would deny the genu-
ineness or legal formality of execution of the instrument, this
fact is put in issue by the plea of non est factum. Under this
plea, the plaintiff need not prove the other averments in his
declaration.^
§ 294. Burden of proof. The burden of proof o{ the formal ex-
ecution of a deed, whether it is put in issue by a special plea, or is
properly controverted under any other issue, is upon the party
claiming under it. This proof consists in producing the deed, re-
moving any suspicions arising from alterations made in it, and
showing that it was signed, sealed, and delivered by the obligor ;
and where any particular formalities are required by statute, as
essential to its validity, such as a stamp, or the like, the party
must show that these have been complied with.
§ 295. Signing and aealing. The subject of the production of
deeds, and of the nature and effect of alterations in them, has been
treated in the preceding volume.^ The cases in which the evi-
dence of the subscribing witnesses is dispensed with have also
been considered.^ In the proof of signing and sealing^ it is not
necessary that the witnesses should have seen this actually done ;
it is sufficient if the party showed it to them as his hand and seal,
and requested them to subscribe the instrument as witnesses.^
So, where the witness was requested to be present at the execution
of the writings, and saw the money paid, and proved the hand-
writing of the obligor, but did not see him sign, seal, or deliver
the instrument, this was held sufficient proof to admit the instru-
1 Chitty on PL 424, 428; Kane v, Sanger, 14 Johns. 89; Gaidiner v. Gardiner, 10
Johns. 47; People v. Rowland, 5 Barb. S. C. 449. As to the proof of a lost deed, see
anUf vol. i. § 558, n.
3 AiUe, vol. L §§ 144, 559-568, 564-568.
s AiiU^ Tol. i. §§ 569^575. As to the proof of the formal execution of deeds, see 4
Cruise's Dig. tit. 82, c. 2 (Greenleaf's n.) [2d ed. 1856].
« Miinns V, Dupon^ 3 Wash. 42; Ledgftrd v. Thompson, llli. & W. 41; tn/ra, tit
Wills, § 676.
PABT lY.] DEED. 809
ment to go to the jnry.^ If the attesting witness has no recollec-
tion of the facts, but recognizes his own signature as genuine, and
from this and other circumstances, which he states to the jury,
has no doubt that he witnessed the execution of the instrument,
this also, uncontradicted, has been held sufficient.^ And if the
witness recollects seeing the signature only, but the attestation
clause is in the usual form, the jury will be advised, in the absence
of controlling circumstances, also to find the sealing and delivery.'
Indeed, if there is any evidence, however slight, tending to prove
the formal execution of the instrument, it is held sufficient to en-
title it to go to the jury.^ If the signature of the obligor's name
is made by a stranger, in his presence and at his request, it is a
sufficient signing. ^ (a)
§ 296. Baaling. In regard to tealingy where there are several
obligors or grantors, it is sufficient if there be several impressions,
though there be but one piece of wax.^ (() And in the sale of
1 Lesher v. Levan, 2 Dall. 96.
* Pigott V, Holloway, 1 Binn. 486. See alao Dewey v. Dewey, 1 Met. 849; Quiml^
V, Buzzell, 4 Shepl. 470; New Haven Co. Bank v. Mitchell, 15 Conn. 206; ante, toI. i.
I 672; Pearson v. Wlghtman, 1 Const Rep. 844; Denn v. Mason, 1 Coxe, 10; Carrie
V. Donald, 2 Wash. 68; Russell v. Coffin, 8 Pick. 148.
s Burlinff V. Paterson, 9 C. & P. 670; Curtis v. Hall, 1 South. 148; Long v. Ram-
say, 1 a & R. 72.
* Berks. Tump. Co. v. Myers, 6 S. & R. 12; Sigfried v. Levan, Id. 808; Scott v,
Galloway, 11 S. & R. 847; Churchill v. Speight, 2 Hayw. 888. In New Hampshire
(Rey. St. c 130, § 8); Connecticut (Rev. St. 1888, p. 890; Coit v. Starkweather, 8
Conn. 298); Ohio, (8 Ohio, 89; Walk. Introd. 864); Vermont (Rev. St. 1889, c 60,
§ 4); Georgia (Prince's Dig. p. 160, § 6); Florida (Thomps. Dig. p. 177); Michigan
(Rev. St. 1846, c. 66, § 8); and Arkansas (Rev. St. 1837, c. 81, § 12); two witnesses
are required to the validity of a deed of conveyance of lands. In Indiana (Rev. St.
1888, c. 44, § 7); New Jersey (Elmer's Dig. p. 88, § 12); Illinois (Rev. St. 1888, p. 181,
I 9), and in Alabama (Aikin's Dig. p. 88), the deed must be either acknowledged be-
fore a magistrate, or be proved by one or more of the attesting witnesses, before it is
admissible in evidence. But in the latter State, the statute is not considered as ex-
cluding the proof by evidence cUiunde. Robertson v. Kennedy, 1 Stew. 246. See
further as to witnesses, 4 Cruise's Dig. tit. 82, c. 2, § 77 n. (Greenl. ed.) r2d ed. 1866].
Whether a deed, invalid to pass the estate, for want of witnesses, can be read to support an
action of covenant, on proof of its execution at common law, qttcere ; and see French v,
French, 8 N. H. 284; ftitchard v. Brown, 4 N. H. 897; Merwin v. Camp, 8 Conn. 86, 41.
* Rex V, Longnor, 1 Nev. & Mann. 676. So the party's mark is a sufficient signa-
ture. Pearcy v. Dicker, 18 Jur. 997; Pierce v. Hakes, 28 Penn. St. (11 Harris) 281.
* Perk. ) 184. It has also been held, that many obligors may adopt one seal. Hol-
(a) Lovejoy «. Richardson, 68 Me. 886; Lewis, 68 Iowa, 101; Savannah, ftc. R.R.
McMurtry v. Brown, 6 Neb. 868; Mutual Co. v. Lancaster, 62 Ala. 666; Moore o.
Benefit Life Ins. Co. v. Brown, 80 N. J. Willamette 1* ran.sportation &c. Co., 7 Or.
Eq. 198; Pierce v. Hakes, 28 Pa. St 231. 869.
Wnen a deed, purporting to be executed (h) And a seal by a wafer or other tepa-
by a corporation, bears the corporate seal cious substance, upon which an impression
and the signature of the President duly is or may be made, is a valid seal to a deed,
nrovrd, it is a good execution of the deed Tasker v. Bartlett, 6 Cush. (Mass.) 859.
oy the corporation. Murphy v. Welch, So a piece of paper, gummed to the deed
128 Mass. 489 ; C^hicago^ &c R. R. Co. v. and stamped. GUlespie v. Brooks, 2 Redf.
810 LAW OF EYIDENCE. [PABT IV.
lands by a committee of a corporation, it is sufficient if the de^
have but one seal, if it be signed by all the members of the com-
mittee.^ If the deed bears on its face a declaration that it was
signed and sealed, and there is a seal upon it, proof of the signar
ture is evidence to be left to a jury that the party sealed and
delivered it, even though the witness does not recollect whether or
not it had a seal at the time of attestation.^ (a) And if the party,
on being inquired of, acknowledge his signature without objection,
this also is sufficient,' though it were signed without his authority.^
§ 297. DeiiTaiy. The delivery of a deed is complete when the
grantor or obligor has parted with his dominion over it, with in-
tent that it shall pass to the grantee or obligee, provided the latter
assents to it, either by himself or his agent. It follows, therefore,
that no form of words is necessary if the act is done ; and that the
delivery may be complete without the presence of the other party,
or any knowledge of the fact by him at the time, if it be made to
lis «. Pond, 7 Hmnpb. 222. See^ as to seals, 4 Cruise's Dig. tit 82, e. 2, $ 54, n.
(GreenL ed. ) [2d ed. 1856]. In Kentucky, obligatory writings without seal are plaioed
on the fdotmg of snecialties, by Stat 1812, c. 875, fi 8; Hughes v. Parks, 4 Bibb^
60; Handley v, Rankin, 4 Monr. 556.
1 Decker «. Freeman, 8 Greenl. 888. So, if a bond be executed by a priTate agent
of several obligors, one seal is suflScient Martin v. Dortch, 1 Stew. 479.
s Talbot V. Hodaon, 7 Taunt 251; 8. c. 2 Bfarsh. 527; BaU v. Taylor, 1 C. & P.
417. In some modem cases it is held, that proof of the signature alone is sufficient
proof of the seal, though there be no mention of the seal in the body of the instru-
ment Merritt o. Cornell, 5 N. Y. Leg. Obs. p. 800; Taylor v. Olaser, 2 S. & B. 504;
Sicard v. Davis, 6 Pet 187; Lesher v. Levan, 2 Dall. 96.
s Byers v, MeClanahan^ 6 Gill & J. 250.
* Hill «. Scales, 7 Yeig. 410. In aeyeral of the American States, south of New
York, a scroll, made with a pen, denotine the place of a seal, is held a sufficient seal-
ing. 4 Kent Comm. 458; M*Dill v, M'Dill, 1 DalL 68; Long v. Ramsay, 1 S. & B.
72; Taylor v. Glaser, 2 S. & R. 504. But in some States it is necessary that the instni-
ment should in such cases contain some ei^ression showing an intent to give it the
effect of a sealed instrument Baird v, BUugrove, 1 Wash. 170; Austen v. Whitlock,
1 Munf. 487; Anderson 9. Bullock, 4 Munf. 442, (6) or, at least, that the obligor ac-
knowledged it as his seal, United States v. Coffin, Bee, 140. In New Jersey, the scroll
is restricted to money bonds. Hopewell v, Amwell, 1 Halst 169. See aUo Newbold
9. Lamb, 2 South. 449. But it seems that such an instrument, in States where the
common-law rule prevails, would still be r^arded only as a simple contract Adam «•
Kerr, 1 B. & P. 860; Wairen v. Lynch, 5 Johns. 289.
(N. Y.) 849. But a mere printing on the Cir. Ct 601, such a dedsntion was oon-
paper of the deed has been neld not a seal sidered enough.
in New York, fiichard v. BoUer, 6 Daly (h) Wilson «. McEwan, 7 Or. 87; Biir-
(N. Y.X 460. ton v. Le Bo^r, 5 Sawyer C. Ct 510. But
(a) In McCarley v. Tippah County, 58 in this case it was held that the intent
MisB. 488, 749, it is said that an instru- ml^t be inferred from the drcumstanoas
ment will be considered sealed where the of the case and the instrument itaell
intent to affix a seal is clear, but that a When a scroll is oonsidaed a seal, ths
recital in the deed that it is sealed is not word "seal" written in phuse of a seal is
enough. equally gDod* Lewis «. Overby, 28 Oxmtt.
But in Le Frave «. Bichmond, 5 Sawyer (Va.) 127.
PABT IV.] DEED. 811
his previously constituted agent, or if, being made to a stranger,
the transaction is subsequently ratified.^ (a) The receipt of the
purchase-money, or bringing an action to recover it, is evidence
of the delivery of the deed.* So, where the obligor, after signing
and sealing a bond, held it out to the obligee, saying, '^ Here is
your bond ; what shall I do with it ? " this has been held a suffi-
cient delivery, though it never came to the actual possession of the
obligee.' So, if the parties meet, read, sign, and acknowledge the
deed before the proper officer, this has been held sufficient evidence
of delivery, though the deed remained afterwards in the posses-
sion of the grantor.^ Putting the deed in the post-office, ad-
dressed to the grantee, is also held sufficient.^ If the effect of
the instrument is beneficial to the party to whom it is made, as,
for example, if it be an absolute conveyance of land in fee-simple,
or an assignment to pay a debt, his assent to it will be presumed.^
The possession of a deed by the grantee or obligee is, in the
absence of opposing circumstances, prima facte evidence of de-
1 Porter v. Cole, 4 Oreenl. 25, 26, per MeUen, G. J.; ante^ toI. i. § 568, n. (8); 4
Cmue'B Dig. tit 82, c. 2, §§ 46, 64, notes (Greenleaf's ed.) [2d ed. 18561; Mills v.
Gore, 20 Pick. 28, 86; Hatch v. Hatch, 9 Mass. 807; Maynard v. Maynard, 10 Mass.
456; Harrison v, Phillips Academy, 12 Mass. 456; Chapel v. Bull, 17 Mass. 218, 220;
Woodman v, Coolbroth, 7 Greenl. 181; Goodrich v. Walker, 1 Johns. Cas. 266; Barnes
«. Hatch, 8 K. H. 804; Ward v. Lewis, 4 Pick. 588; Goodright v. Gregory, Lofilfc, 889.
Thouffh the grantor die before the deed reaches the handjs of the ^ntee, it is still a
ffood delivery. Wheelwright v. Wheelwright, 2 Mass. 447. And it is not necessary that
the delivery be made to an agent of the grantee or obligee. Doe v. Knight, 5 B. & C.
671. It may remain in the grantor's own custody, as bailee. Id. ; Scrugham v. Wood,
15 Wend. 545; Hall v. Palmer, 8 Jnr. 459; Hoto v. Harman, 11 Jur. 1097. See fur-
ther, Verplanck v. Sterry, 12 Johns. 586; Ruggles v. Lawson, 18 Johns. 285; Gardner
9. Collins, 8 Mason, 398; Harris v. Saunders, 2 Strobh. £q. 870.
« Porter v. Cole, 4 Greenl. 20.
* Folly V. Vantuvl, 4 Halst 158. See also Byers v, McClanahan, 6 G. & J. 250.
* Scrueham v. Wood, 15 Wend, 545.
* McE^mney v, Rhoades, 5 Watts, 848.
* Camp V. Camp^ 5 Conn. 291; Jackson v. Bodle, 20 Johns. 184; Halsey v. Whit-
ney, 4 Mason, 206.
(a) If the grantor deliver a deed to a Hovt, 88 Ohio St 208; Yonnf; v. Steams,
third person, to be by him delivered to the 3 IlL App. 498). And the delivery may be
grantee siter Uie death of the grantor, it made as well after the deed has been re-
beoomes a good delivery upon the happen- corded aa before it was put on record.
ing of the contingency, and relates back Parker o. Hill, Id. 447. Proof of the ex-
•o as to devest the title of the grantor, by ecution of a deed implies proof of its de-
relation from the first delivery (Foster v, livery, unless the objection be raised at
Mansfield, 8 Met, (Mass.) 412; O'Eelly v. the time, during the trial Van Rensse-
O'KeUy, 8 Id. 436; Crooks v. Crooks, 84 laer v. Secor, 82 Barb. (N. T.) 469. Any-
Ohio St. 610), or if delivered to the officer thing done, by word or act, showing that a
taidng the acknowledgment or the re- delivery is intended, b enough. Burk-
corder, with directions to give it to the holder 9. Carad, 47 Ind. 418; Nichol fL
grantee whenever he caUs for it (Black v, Davidson Coimty» 8 Tenn. Ch. 547.
812 LAW OF KYIDENCS. [PABT IT.
liverj.^ (a) So, also, Ib the registration of a deed by the grantor,
if it be done for the use of the grantee.^ (() And where the in-
strument was executed in the presence of a witness, who signed
his name to the attestation clause, which was in the usual formula
of ^^ signed, sealed, and delivered,'' but the deed had never been
out of the actual possession of the grantor, it has been held that,
in the absence of opposing circumstances, the jury might properly
find that it was delivered.' And a deed duly executed and ac-
knowledged will be presumed to have been delivered on the day of
its date, unless the contrary is proved ; the burden of proof being
on the party alleging a delivery on another day.^ (c)
1 Malloiy V. AspinwaU, 2 Day, 280; Clarke «. Raj, 1 H. & J. 823; Ward v. Jjem%
4 Pick. 618; Union Bank v. Ridgley, 1 H. & Gill, 824; Hare v. Horton, 2 B. & Ad.
715; Mavnard v. Maynard, 10 Mass. 466, 458; Den v. Fairiee^ 1 N. J. 279.
s Hedge v. Drew, 12 Pick. 141; Cheee v, CheM, 1 Peun. 82. And see Powers v.
BusseU, 18 Pick. 69; Elsey v. Metcalf, 1 Denio, 323; Commercial Bank 9. Recklees, 1
Halst Ch. 480; Ingraham v, Qrigg, 13 a & M. 22; Rathbnn v. Rathban, 6 Barb. &
C. 98.
> Hope V, Harman, 11 Jar. 1097. And see Hall v. Bainbridge, 12 Ad. k EL
N 8. 699
« McConnell v. Brown, Litt Sel. Cas. 459; Elaey v. Metcalf, 1 Denio, 828.
(a) Goodwin v. Ward, 6 Baxt (Tenn.) facie proof of deliyeiy. Eille v. Ege, 79
107; Roberta v. Swearingen, 8 Neb. 363; Pa. St. 15; Lawrence v. Farley, 24 Hon (K.
Chandler v. Temple, 4 Cush. (Mass.) 285; Y.), 293. Bat contra, Watson v. Ryan, 8
Balkley v. Buffington, 6 McLean C. C. Tenn. Ch. 40. There is no deliyery of the
457. Bat this may also be rebutted by deed when it is executed, acknowledged,
evidence which shows that the tlelivery was and recorded, and returned by the reffister
false. Thus where the deed had been made to the grantor at his reqnest. Rucknuin
and acknowledged by the grantor before v. Ruckman, 83 N. J. Eq. 354. And the
the proper officer, without the knowledge presumption of delivery raised by the
of the grantees, but not reconled till after proof that the deed has been recorded
the grantor's death, thirteen years later, may be rebutted, as by proof that it was
and the grantees dniing that time had lived intended to confer no benefit on the grsn-
on the land, which they all worked in com- tee, and its execution and recording were
mon with the grantor, and the land had been not known by him. Union Mut. Ins. Ca
ass^sed to him alone and he paid the v. Campbell, 95 lU. 267; Hawkes v. Pike,
taxes, and there was no visible change in 105 Mass. 560.
the control or management of the land (c) Harman v. Oberdorfer, 83 Gratt.
after the execution of the deed, it was (Va.) 497. The date of a deed is only
held that the possession of the deed by presumptive evidence of the time of its
the grantees raised no presumption of its delivery, and that presumption does not
delivery as a valid deed. Stewart v. Stew- arise when there is no proof or acknowl-
art, 50 Wise. 445. Cf. Enolls v. Bam- edgment or snbscribing witness; and it is
hart, 71 N. Y. 474. But the whole ques- utterly repelled when it appears in the
tion is one of the weight of evidence, proofs that the instrument continued in
Snuw V. Orleans, 126 Mass. 458. the hands of its grantor until after its
If the deed is by several grantors, and date. Harris v. Norton, 16 BarK (N. T.)
the deliveiT by one, any other m&j prove 264. It haa been held that there is no
that the delivery was unauthorized or presumption that a forged instrument was
fraudulent as to him. Williamson v, deliver^ on the day on which it bean
Carskadden, 36 Ohio St. 664. But cf. date. Remington Paper Co. v. O'Doui^-
Edwards v. Dismukes, 53 Tex. 605. erty, 81 N. T. 474. See also a$Ue, toI. i.
{b) When a deed is upon record, duly c 4, and notes on presumptions,
acknowledged and attested, that is prima The certificate of acknowledgmeBt hf
PART IV.] DEED. 818
§ 298. Proof of ezecQtioiL If the inBtrament is formally executed
in a foreign country, and the execution is authenticated hy a notary
public^ this is sufficient proof to entitle it to be read.^ But if the
authentication was before the mayor of a foreign town, it is not
received without some evidence of his holding that office.* (a)
§ 299. Aoknowledffmant. Registry. Where the instrument is
required by law to be acknowledged and regitteredj or to be exam-
ined and approved by a judge or other public officer, as is the case
of some official bonds, such acknowledgment or other official act,
duly authenticated, is in some courts considered as prima facie
evidence of all the circumstances necessary to give validity to the
instnmient, and, of course, will entitle it to be read.^ (i) But the
practice, in this particular, is not sufficiently uniform to justify the
statement of it as a general rule.
1 Lord Einnaird v. Lady SaltouD, 1 Madd. 227.
« Garvey v, Hibbcrt, 1 Jac. & W. 180.
* See anU, toI. i. § 578; Craafiird v. State, 6 H. & J. 284. In the following States,
a deed duly acknowledged seems admisaible in evidence, without further proof: namely,
New York (see 1 Rev. Stat. p. 769, { 16); New Jersey (Elmer's Dig. p. 83, § 12);
Pennsylvania (Purdon's Dig. 1837, p. 261, § 6); Virginia (Rev. Code. 1819, vol. i. p.
863, I 6); North Carolina (Rev. Stat. 1837, vol. i. p. 226, § 6); Georgia (Prince's Dig.
1837, p. 212, § 10); Alabama (Aikin's Dig. 1888, p. 88, § 1); Illinois (Rev. SUt. 1833,
SK 185, 136, § 17); Mississippi (Aden & Van Hoesen's Dig. 1839, p. 297, § 1); and
issouri (Rev. Stat. 1835, p. 123, § 35). As to the acknowledgment of deeds, see 4
Cniise's Dig. tit. 82, c. 2, § 80, n. (Greenleaf's ed.) [2d ed. 1856]. In Massachusetti, a
registry copy of a deed of land is not admissible in evidence against the grantee, with-
out notice to him to produce the original. Commonwealth v, Emery, 2 Gray, 80;
Bourne v. Boston, Id. 494.
the magistrate before whom the deed is ac- (h) The certificate of acknowledgment
knowlc^getl is prima faeie evidence of the is sufficient, if it substantially conforms to
facts that it states (see § 299, Ppd), but the statute. Calumet, &c. Co. v. Russell,
may be shown to be untrue, llius, if a 68 111. 426. An unacknowledged deed,
magistrate for the county of A properly thouffh recorded, is not notice; but an ac-
takes the acknowledgment of a deed of knowledged deed recorded, though not in-
land situated in that county, and certifies dexed, is. Bishop v, Schneider, 46 Mo.
the fact AS done In the county of B, the 472; Chatham v. Bradford, 50 Ga. 827.
latter beine printed, and the magistrate In UlinoiR, an unrecorded deed, if duly
having inadvertently failed to change the filed in the recorder's office for record, se-
narae of the county from B to A, parol cures all the grantee's rights. Polk v.
evidence is admissible to show that the Cosgrove, Biss. (111.) 487. An office copy
acknowledgment was taken in the county of a deed inter partes executed in pais,
of A. Angier v, Schieffelin, 72 Pa. St. acknowledged and recorded in the courts
106. of another State, is not such a record or
(a) A registrv copy of a deed, executed judicial proceeding as can be authenticated
in 1792, acknowled^d before the " Mayor under the act of Congress of 1794, though
of the city of HvLaaon,** and recorded in it might perhaps be included under the
the proper registry of deeds in Massachu- supplemental act of 1804. Warren v.
■etta, in 1802, may be read in evidence in Wade, 7 Jones (N. C), Law, 404. In
a suit in Massachusetts, in the absence of Massachusetts, the recorded deed of the
anytibing to show that the acknowledf- heir is good against the unredorded deed
nient was not properly made before sucn of the person from whom he inherits.
officer. Palmer v. Stevens, 2 Gray (Mass.), Earle v. Fiske, 108 Mass. 491.
147.
814 LAW OP EVIDENCE. [PAET IT.
§ 800. Proof by defendant under non eet faotnm. Under the
issae of non est factum^ the defendant may prove that the deed
was delivered, and . still remains as* an escrow ; ^ or he may take
advantage of any material variance between the deed as set forth
by the plaintiff and the deed produced at the trial ; ^ (a) or may
give any evidence showing that the deed either (1) was originally
void, or (2) was made void by matter subsequent to its execution
and before the time of pleading ; for it is to the time of pleading
that the averment relates. Thus, the defendant may show under
this issue that the deed is a forgery ; that it was obtained by fraud ;
or was executed while he was insane, or so intoxicated as not to
know what he was about; or that it was made by a feme covert;
or to her, but her husband disagreed to it ; or that it was delivered
to a stranger for the use of the plaintiff, who refused it ; or that
it was never delivered at all.' Or he may show that, since its
execution, it has become void by being materially altered or canr
celled by tearing off the seal.^ But matters which do not impeach
the execution of the deed, but go to show it voidable by common
law, or by statute, such as usury, infancy, duress, gaming, or that
it was given for ease and favor, or the like, must be specially
pleaded.^ And here it may be observed, that, under a general
plea of non ett factum^ the burden of proving the deed lies upon
the plaintiff ; but that, under any special plea of matter in avoid-
1 Bull. N. P. 172; 1 Chitty, PI. 424; Stoytes v. Peanon« 4 Esp. 256; Union Bank
of Maryland v, Ridgely, 1 H. & G. 824.
> 1 Chitty, PI. 268, 269, 816; anU, yol. L { 69; Howell v. Richaids, 11 East» 683;
Swallow V. Beaomont, 1 Chitty, 618; Horaefall 9. Teatar, 7 Taunt 886; Morgan v,
Edwards, 6 Taunt 894; 8. c. 2 Marsh. 96; Bowditch v. Mawley, 1 Campb. 195; Bizch
V. Gibbs, 6 M. & S. 115.
« Bull. N. P. 172; 1 Chitty, H. 425; Whelpdale's Case, 5 Co. 119; Pitt v. Smith,
8 Campb. 88; Dorr v. Munsell, 18 Johns. 480; Van Valkenburg v. Roulc, 12 Johns. 837;
Koberts v. Jackson, 1 Wend. 478; Jackson v. Perkins, 2 Wend. 808; Wi«;lesworth v.
Steers, 1 Hen. k Mnnf. 69; Curtis «. Hall, 1 South. 861. As to the jjrincimes on which
chancery acts in setting aside deeds on the ground of the intoxication or the grantor,
see Nagle v. Baylor, 8 I>ru. k War. 60.
* Leyfield's Case, 10 Co. 92. The intent with which the cancellation was made is a
fact to be found by the jury. Grummer v. Adams, 18 L. J. N. b. 40.
* 1 Chitty, PI. 425; Humer «. Wright, 2 Stark. 85; Colton v. Goodridge, 2 W. BL
1108; Bull. N. P. 172.
(a) A Tsrianoe in the middle initial stances of the transaction clearly showed
letter of the name of the grantor, as writ- that the intended grantee was Arnold S.,
ten in the body and in the signature of the who had possession of the deed. SM^
deed, will not ritiate the deed. Erskine that this was a latent ambiguity ezplaina-
V. Davis, 25 111. 251. A deed ran to Louis ble l^ parol, and the title pfwsed to Arnold
S.; it apneared that no person of that S. Staakv. Sigelkow, 12 Wis. 234.
name was known to exist, and the circum-
PAST IT.] DBED. 816
ance of the deed, the burden of proving the plea lies upon the
defendant.^
1 Snell 9. Snell, 4 B. ft G. 741; Bnshell v. PaBsmore, 6 Mod. 218, per Holt, C. J.;
5 Com. Die. Pleader, 2 W. 18. If an indorBement on the back of a aeed has no sig-
nataie ana seal, bnt is claimed aa a defeasance, the party claiming it as such wUl be
reqoired to prove that it waa npon the deed at the time of its execution. Emerson 9.
Murray, 4 N. H. 171.
816 LAW OP EVIDENCE. [PART IT.
DURESS.
§ 801. Duress par mlnas. Bj duresSj in its more extended sense,
is meant that degree of severity, either threatened and impending,
or actually inflicted, which is sufficient to overcome the mind and
will of a person of ordinary finnness.^ (a) The common law has
^ " Non sospicio yel cujuslibet vani vel meticulosi hominia, sed talis qai cadere pos-
ait in virum conatantem ; talis enim debet esse metus, que in se oontineat mortis peri-
colum, et corporis cniciatum." Bracton, lib. 2, c. 6, par. 14*
(a) The decisions seem to tarn more on threat made to the wife to prosecute her
this point than on the distinction between husband for embezzlement, in Eadie «•
hoditj harm and harm to property only, Slimmon, 26 N. Y. 9 ; Singer Mauu&c-
mentioned below. If the threats are of turing Co. v. Rawson, 50 Iowa, 634 ; or
such a nature as to induce a man of rea- extorting a note from a father by arresting
sonable courage to act against his will, his his son (Shenk v, Phelps, 6 111. App. 612);
act is not voluntary, and any claim which or a mortgage from an aunt by threatening
is based on the voluntariness of such an act her nephew with arrest (Sharon v. Gager,
must fail. But if the violence offered is 46 Conn. 189), have been held to be du-
not of such a nature, the act may be vol- ress. But a threat by a husband to his
untary. Thus, where the defendant in an wife that he will commit suicide is not such
action on a promissory note was threat- duress. Wright v. Remiugton, 41 N. J. L.
ened, as he was taking the train from 48; Lefebvre v. Detniit, 51 Wis. 326. But
Nashville, Tenn., to his home in Maine, a threat by the husband that he will aban-
that he would not be allowed to leave the don her if she does not sign a deed is
town till he signed the note, but there was enoi^h to avoid it. Eocourek v, Marak,
no menace of violence and no officer pres- 54 Tex. 201 ; Line v. Blizzard, 70 Ind.
ent, nor pretence of legal authority, this 23. The fraudulent seizing and withhold-
was held not to be a sufficient defence to ing of property by legal process may
the action. Seymour v. Prescott, 69 Me. amount to auress. Spaid v. Barrett^ 57
376. 111. 289. And the courts show a tendency
Redfield, J., in his notes to a former to give the rule as to duress per minas a
edition, says : It would seem that the rule bi-oader application than formerly. Tres-
of law in regard to duress per mintia is pass to real estate, withholding personal
stated too narrowly in the text. In Rob- property, and the like, have been held to
inson v. Gould, 11 Cush. (Mass.) 57, the oe olur^ss if they so far overcome the party
Supreme Judicial Court of Massachusetts threatened, that the obligation sued upon
say that " duress by menaces, which is would not have been entered into had the
deemed sufficient to avoid contracts, in- acts not been done. United States v,
dudes a threat of imprisonment, inducing Huckabee, 16 Wall. (U. S.) 431 ; Miller
a reasonable fear of loss of liberty. 2 Rol. v. Miller, 68 Pa. St. 486 ; Walbridge «.
Ab. 124 ; 2 Inst 482, 483 ; Bac. Ab. Du- Arnold, 21 Conn. 281. See also anU,
ress, A ; 20 Amer. Jur. 24." So a threat § 121, n. But a threat to sue (Harris «.
of imprisonment has been held to amount Tyson, 24 Pa. St. 347) ; or to prosecute
to duress. Foshay o. Ferguson, 6 Hill merely (Harmon v. Harmon, 61 Me. 227 ;
(N. Y.), 164; Taylor v. Jacques, 106 Plant r. Gunn, 2 Woods C. C. 372), is
Mass. 291. It is not necessary that the not duress. Nor is a pressing want of
violence should be offered to the party who money. Miller v. Coates, 4 N. Y. Sun.
is to sign the deed or make the contract. Ct. 429. Nor is the payment of taxes u-
It is enough if it is offered to a person in legally assessed. Swanston «. Ijaros, 63
'Whom he is so interested that he acts Ul. 165. After all, perhaps the real que**
under the fear of such violence. Thus, a tion is, whether, unaer the circumstanoeav
PABT IV.] DUBB88. 817
divided it into two classes ; namely, duress per minas, and duress
of imprisonment. Duress per minas is restricted to fear of loss of
life, or of mayhem, or loss of limb ; or, in other words, of reme-
diless harm to the person. If, therefore, duress per minas is
pleaded in bar of an action upon a deed, the plea must state a
threat of death, or mayhem, or loss of limb ; and a threat to this
specific extent must be proved. A fear of mere battery, or of
destruction of property, is not, technically, duress, and therefore
is not pleadable in bar ; ^ but facts of this kind, it is conceived,
are admissible in evidence to make out a defence of fratul and
extortion in obtaining the instrument.^
§ 302. DureM of impriionment The plea of duress of imprisonr
ment is supported by any evidence that the party was unlawfully
restrained of his liberty until he would execute the instrument.
If the imprisonment was lawful, that is, if it were by virtue of
legal process, the plea is not supported,^ unless it appear that the
arrest was upon process sued out maliciously and without probable
cause ; or that, while the party was under lawful arrest, unlawful
force, constraint, or severity was inflicted upon him, by reason of
which the instrument was executed.^ (a) But in all cases the
^ 1 BL Comm. 131. In Lonisbna, any threats will inyalidate a contract, if they are
"anch as would naturally operate on a person of ordinary firmness, and inspire a just
fear of great injury to person, repitUUion^ otfortimt," Civil Code La. art. 1846. And
the age, sex, health, disposition, and other circumstances of the party threatened, are
taken into consideration. Id. The contract is equally invalidated by a false report of
threats, if it were made under a belief of their truth ; and by threats of injury to the
wife, hnsbuid, descendant, or ascendant of the party contracting. Id. arts. 1846,
1847. These rules apply to cases where there may be some other motive for making
the contract besides the threats. But if there is no other motive or cause, then any
threats, even of slight injury, will invalidate it. Id. art. 1858.
* See Evans v. Huey, 1 Bay, 13 ; Collins 9. Westbnry, 2 Bay, 211 ; James v, Rob-
erta, 18 Ohio, 548 ; Sasportas v. Jennings, 1 Bay, 470, 475. In this last case, the rule
is broadly laid down, that where assumpsit would lie to recover back the mone^, had
it been paid under restraint of goods, a promise to pay it, made under the like circnm-
stancea, may be avoided by a plea of duress.
s 1 Bl. Comm. 136, 187 ; Hob. 266, 267 ; 2 Inst. 482; Anon., 1 Lev. 6i^, 69; WU-
Goz V. Rowland, 23 Pick. 167; Waterman v. Barratt, 4 Uarringt. 311; Neally v, Green-
ougb, 5 Foster (N. H.), 825.
^ Anon., Aleyn, 92; Watkins v. Baird, 6 Mass. 506.
the threats are the means by which the admissions were made because they were
party making them gains an unjust advan- true, or because the narty making them
tsge. was under duress. TiUey v. Damon, 11
(a) Soule 9. Bonney, 37 Me. 128; Breck Cush. (Mass. ) 247. So is a lawful arrest,
9. Blancbard, 22 K. H. 803; Taylor v. for an unlawful purpose. Severance v,
CotUeas, 16 lU. 98. Not only is a direct Kimball, 8 N. H. 886 ; Heaps v. Dun-
promise void, if made under duress and ham, 95 III. 588. So is an arrest for a
an iUog^al arrest, but so also are admis- rust cause, but by irr^lar proceedings.
•kms thus made of a former promise ; and Fisher v. Shattnck, 17 Pick. (Mass.) 252.
the Jnry cannot inquire whether such
818 LAW OF EVIDENCE. [PABT IT.
duress must affect the party himself ; for if there be two obligors,
one of whom executed the bond hj duress, the other cannot take
advantage of this to avoid the bond as to himself.^ (a)
^ HuBCombe v. Standing, Oio. Jac. 187; Thompson «. Lockwood, 15 Johns. 256.
(a) Mantel v, Gibbe, 1 Brownlow, 64 ; ties upon a reoognizanoe cannot plead the
Wayne v. Sauda, Id. 851 ; Shep. Touch, dureaa of their principal in dischaige of
62 ; McClintick v. Cummins, § McLean their«liability. Flumer v. People, 16 lU.
C. C. 168; 20 Amer. Jur. 26: Bobin- 858. But see State v. firuntley, 27 Ala.
son V, Gould, 11 Cush. (Mass.) 57* Sure- 4L
PART lY.] EJECTMENT. 819
EJECTMENT.
§ 803. BJeotment defined. This, which was originally a per-
sonal action of trespass, is now a mixed action, for the recovery
of land and damages, and is become the principal, and in some
States the only, action, by which the title to real estate is tried,
and the land recovered, (a) In several of the United States, the
remedy for the recovery of land is by an action frequently called
an ejectment, but in form more nearly resembling the writ of
entry on disseisin, in the nature of an assize.^ But in all the
forms of remedy, as they are now used in practice, the essential
principles are the same, at least so far as the law of evidence is
concerned. The real plaintifiF, in every form, recovers only on the
strength of his own title ;^ (i) and he must show that he has the
legal interest^ and a posseBsary titie, not barred by the statute of
limitations.'
§ 304. Proof imder general iMue. When the title of the real
plaintiff in ejectment is controverted under the general iseiie^ he
must prove, (1) that he had the legal estate in the premises, at
the time of the demise laid in the declaration ; (2) that he also
had the right of entry ; and (8) that the defendant, or those
^ Jackson on Real Actions, 2, 4.
* Roe V, Harvey, 4 Barr. 2484, 2487 ; Jackson on Real Actions, p. 6 ; Adams on
Eject, pp. 32, 285, by Tillinfl^ast ; 1 Chitty on PI. 178; WUliams v. Incalls, 21 Pick.
28S; Martin v. Strachan, 5 T. R. 108, n. ; Goodtitle v. Baldwin, 11 fiut, 488, 495;
Lftne V. Reynard, 2 S. & R. 65;' CoTert v. Irwin, 8 S. & R. 288.
• Chitty on PL 172 ; Id. 209 (7tli ed.).
(a) IJjectinent does not lie to enforce United States law, the party first com-
an incorporeal hereditament. Harlow v. mencing proceedings has the better
Lake Superior Mining Co., 86 Mich. 105 ; right. Young v. Shinn, 48 Cal. 26. A
Taylor v. Gladwin, 40 Mich. 282. patent of land from the State is prima
(b) Lathrop v. American Emigrant Co., facie evidence of title in the grantee, who
41 Iowa, 547. Though, in ejectment, the is not to be called upon to produce proof
plaintiff cannot recover, except by proving of the regularity also of the preliminary
title in himself, yet when the parties chum proceedings. Brady v. Begun, 86 Bara
under conflicting titles, and the only ques- (N. Y.) 538. So is a certificate of purchase
tion is which of tiie two is good, it is of public lands issued to the plaintiff by
E roper to instruct the jury that the one the United States. Sacramento, Ac. BanK
aring the beat title must recover. Buse- v. Hynes, 50 Cal. 195. So the certifi-
nina v. Coffee, 14 Cal. 91. See also post, cate of location of a State school lands in
a 331, 613, n. And where two parties the hands of the person to whom it is is-
ve equal rights to acanire public land, sued or his vendees, is prima facie evi-
one nnder State law, ana the other under denoe. Stanway v. Rubio, 51 CaL 41.
820 LAW OP BVIDBNCE, [PABT IV.
claiming under him, were in pos9e»sian of the premises at the
time when the declaration in ejectment was served.^
§ 305. "When there ie privity in estate. If a privity in estate
has subsisted between the parties, proof of title is ordinarily
unnecessary ; for a party is not permitted to dispute the original
title of him by whom he has been let into the possession.^ This
rule is extended to the case of a tenant acquiring the possession
by wrong against the owner, and to one holding over after the
expiration of his lease.' And when the relation of landlord and
tenant is once established by express act of the parties, it attaches
to all who may succeed to the possession through or under the
tenant, whether immediately or remotely, the succeeding tenant
being as much affected by the acts and admissions of his prede-
cessor, in regard to the title, as if they were his own.* Even an
agreement to purchase the lands, if made deliberately, estops the
purchaser from denying the title of the vendor.^ But evidence
of an agreement for a lease, if none was ever executed, is not
alone sufficient to establish this relation, against a tenant already
holding adversely.* Nor is the tenant precluded from showing
that an agreement to purchase from the plaintiff was made by
him under a mistake, or that the title was in himself, or out of the
lessor ; ^ or that a lease, which he has taken while in possession,
was unfairly imposed upon him, by misrepresentation and fravd.^
1 Adams on Y^fici, p. 247, by Tillinghast
s AnU, vol. i. {f 24, 25 ; Adams on Eject, p. 247, by Taiinghast ; Wood v. Day,
7 Taunt. 646; 1 Moore, 889; Jackson v, Reynolas, 1 Caines, 444; Jackson r. Whitford,
2 Caines, 215 : Jackson v. Vosburg, 7 Johns. 186 ; WUliams v. Annapolis, 6 H. & J.
588; Jackson «. Stewart, 6 Johns. 84; Jackson v. De Walts, 7 Johns. 157: Jackson v,
Hinman, 10 Johns. 292; Doe v. Edwards, 6 C. & P. 208. The lessee of a close in ser-
eralty, demised to him by one of several tenants in common, cannot set up an advene
title in bar of an action by his lessor. Doe v. Mitchell, IB. & B. 11; Jackson r.
Creal, 18 Johns. 116.
* Jackson v. Styles, 1 Cowen, 576 ; Doe v, Baytup, 8 Ad. k El. 188 ; 4 K. & M.
837. So, though the landlord's title was acquired by wrong (Parry v. House, Holt's
Cases, 489); or was only an equitable title (Doc v. Edwards, 6 C. & P. 208).
4 Taylor v. Needham, 2 Taunt 278 ; Doe v. Mills, 2 Ad. & £1. 17 ; Doe v. Levis,
5 Ad. k EL 577 ; Jackson v. Davis, 5 Cowen, 128 ; Jackson v. Harsen, 7 Cowen, 328 ;
Jackson v. Scissam, 3 Johns. 499 ; Graham v. Moore, 4 S. & R. 467 ; Jackson v.
Walker, 7 Cowen, 637; Cooper v. Blandy, 4 M. & Scott, 562; Doe v. Mizen, 2 M. &
Rob. 56; Barwick v. Thompson, 7 T. R. 488. The purchaser at a sheriff's sale is privy
to the debtor's title, and is therefore equally estopped with him. Jackson v. Gratiam,
3 Caines, 188; Jackson v. Bush, 10 Johns. 228.
^ Whiteside v. Jackson, 1 Wend. 418; Jackson v. Walker, 7 Cowen, 687; Jackson
V, Norris, Id. 717 ; Hanulton v, Taylor, Litt Sel. Cas. 444 ; Doe v. Burton, 6 Eng.
Law & E<^ 325.
* Jackson v, Cooley, 2 Johns. Cas. 228. ^ Jackson v, Cnerden, 2 Johns. Cas. 35S.
" Brown v. Dysinger, 1 Rawle, 408 ; Miller v. M'Brier, 14 S. & R. 882 ; Hamilton
V. Maraden, 6 Binn. 45; Jackson f. Ayres, 14 Johns. 224; Jackson v. Norris, 7 Cowen,
717.
PABT lY.] EJECTMENT. 821
The same principle applies to any other act of acknowledgment,
amounting to an admission of tenancy or title.^ But the tenant
may always show that his landlord" % title ha% expired;^ or that
he has sold his interest in the premises ; ^ or that it is alienated
from him by judgment and operation of law.^
§ 306. Proof of privity. One of the ordinary methods of es-
tablishing a privity in estate is by proof of the payment of rent;
which is always prima facie evidence of the title of the landlord,
and is conclusive against the party paying, and all others claiming
under and in privity with him.* (a) And the payment of rent,
after an occupancy of many years, is sufficient evidence, if unex-
plained, to show that the occupancy began by permission of the
party to whom it was paid.^
§ 307. Same subject. Where both parties claim under the same
third person^ it is prima facie sufficient to prove the derivation of
title from him, without proving his title, (i) So, if either has
held under such third person, as his tenant, and is thereby es-
topped to deny his title.^ ((?) But the defendant, if not otherwise
estopped, may still set up a title paramount to the common
source, and derive to himself ; or a title under an incumbrance
created by the common grantor, prior to the title of the plain-
tiflF.8 (d)
1 Gregory v, Doidge, 8 Bing. 474; 8. c. 11 Mooie, 394.
< Neave v. Moss, 1 Bing. 860; 8. c. 8 Mooro, 889 ; England v. Slade, 4 T. R. 682 ;
Doe V. Wliitroe, 1 Dowl. & R. 1; Brook v. Briggs, 2 Bing. N. C. 672.
* Doe V. Watson, 2 Stark. 230.
* Jackson v. Davis, 6 Cowen, 128, 185; Gamp v. Camp, 5 Conn. 291.
» Doe V, PegKe, 1 T. R. 758, 759, n. ; Doe v. Clarke, Peake, Add. Cas. 289 ; HaU
9. BnUet, 10 Ad. & £1. 204; 8. o. 2 P. & D. 874 ; Jew v. Wood, 1 Craig & Phil. 185 ;
5 Jar. 954.
; Doe V. WUkinson, 8 B. & a 418.
• Adams on £Jject p. 248, by Tillingbast But, in the former case, a mere posses-
sory title, which would be good against a stranger, and may have been gained by a tor-
tiotiB entry, is not always sufficient. Sparhawk v. Bullard, 1 Met. 95; OaJEes v. Marcy,
10 Pick. 195.
• Wolfe V. DoweU, 18 & & M. lOS.
{a) Evidence of payment by defend- (e) Mickey v. Stratton, 5 Sawyer C.
ant to plaintiff's vendor after the sale will Ct. 475.
not be received to prove the occupation. (d) Thus, in Henry «. Reichert, 22
Johnson v. Futch, 57 Miss. 78. Hun (N. Y.), 894, the defendant was al-
(6) Cronin «. Gore, 88 Mich. 881; Mil- lowed to show that the common grantor
ler V. Hardin, 64 Mo. 545; Speot v, had no title and conveyed nothing by either
Gregg, 51 Cal. 198. And that they derive deed. Either party may set up a paramount
from a oonunon aonice may be proved by claim, if not otherwise estopped. Wade
the affidavit of plaintiff^'s attorney, based v. Thompson, 52 Miss. 867. A defendant
on conversations with the parties and ez- in ejectment, for the purpose of proving
aminations of the deeds on record. Harts- title, may show even by presumptive evi-
bom V. Dewson, 79 111. 108. dence an outstanding title in another, even
YOL. IL 21
822 LAW OP EVIDENCE. [PABT lY.
§ 808. Idantity of estate. The identity of the lands, and the
poB9e99ion of them by the defendant, may be proved by the pay-
ment of rent, or by the defendant's admission of his tenancy, or
by any other competent evidence of the fact ; it being merely a
matter of fact, provable, like other facts, by parol evidence.^
§ 809. "What lineal heir mnat prove. The party claiming as
lineal heir must prove that the ancestor from whom he derives
title was the person last seised of the premises as his inheritance,
and that he is the heir of such ancestor.^ (a) This seisin may, in
the first instance, be proved by showing that the ancestor was
either in actual possession of the premises at the time of his
death, and within the period of the statute of limitations, or in
the receipt of rent from the terre-tenant; possession being prima
facie evidence of a seisin in fee.^ If he claims as collateral heir^
he must show the descent of himself, and the person last seised,
from some common ancestor, together with the extinction of all
those lines of descent which would claim before him. This is
done by proving the marriages, births, and deaths necessary to
complete his title, and the identity of the persons.^
§ 810. Devisee. Where the plaintiff claims as devisee of a free-
hold, he must prove the seisin and death of the devisor, and the
due execution of the will; unless it is thirty years old, in wliich
case it may be read without further proof ; and the age of the
will is to be reckoned from the day of its date, and not from the
death of the testator.^ (()
^ Adams on E^ect. p. 248, bj TilUnffhast ; Jackson v, Yosibnrg, 7 Johns. 186. By
the modem rules of practice in Enxland, the possession by the defendant is a^mittftd
in the consent-rule. 4 B. & Aid. 196; 2 B. & B. 470.
' Adams on Eject, p. 258, by Tillinghast ; Jackson on Real Actions, p. 167 ; Ca
Lit. 11 b; Jenkins v, Prichard, 2 Wils. 45.
* Adams on Eject, p. 254, by Tillinghast; Bull. N. P. 102, 103.
« Ibid.; 2 Bl. Gomm. 208, 209; Roe v. Lord, 3 W. BL 1099. For the proof of pedi-
gree, see vol. i. §§ 103-105, 184; and ir^, tit. Heir. See, further, Richards «. Kich.
ards, 15 East, 294, n.
ft Adsms on Eject, p. 259 ; ante, yoL i. § 570, n. ; Doe v, Wolley, S B. & C. 22 ;
McKenire v. Fraser, 9 Yes. 5 ; Jackson v. Laroway, 8 Johns. Gas. 288, 286 ; Jackson
V. Christman, 4 Wend. 277, 282. For the proof of wills, see infra, tit. WilL
though defendant be in no way connected (a) Where there may be many heirs,
with such outstanding title. In such .ac> one who claims as sole heir must show
tions, circumstances m themselves slight that he is such. Dupon «. McLaren, 63
and trivial, if accompanied by long-oontin- Oa. 470.
ued possession, should be allowed to go to (6) Where one of the links in the chain
the jury as evidence for the defendant to of title is a will, its admission to probate
Srove the presumed existence and loss of must be alleged. Castro «. Richardson,
eeds and other instruments. Townsend 18 OftL 47a
V. Downer, 82 Vt 183.
PABT lY.] SJECTMENT. 828
§ 811. Seisin. The 8einn of the ancestor or devisor ^ may be
proved by his receipt of rent, or by his actual possession of the
premises ; either of which is prima faeie evidence of title in fee ;*
or by proof of an entry into one of several parcels of the land, if
they were all in the same county, and there was no adverse pos-
session at the time, for this gives a seisin of them all.^ If there
was an adverse possession, and the owner's right of entry was
not barred, his entry, in order to revest the seisin in himself,
should have been an open and notorious entry into that pai*ticular
parcel ; and in every case an entry, to revest an estate, must be
made with that intention, sufficiently indicated either by the act
or by words accompanying it>
§ 812. Bntry. The entry ^ to gain a seisin, needs not be made
by the yery person entitled; but may be made by another in his
behalf, even if it be by a stranger^ without any precedent com-
mand, or express subsequent agreement. By the common law,
the entry of one joint tenant, tenant in common, or coparcener,
is deemed the entry of all ; and the entry of a guardian tenant
for years, tenant by elegit^ or younger brother or sister, enures to
the benefit of the ward, lessor, or other person entitled.^ So, the
possession of the mother becomes the seisin of her posthumous
son.^ And it seems that the heir may acquire an actual seisin,
without any entry by himself, by making a lease for years or at
will, if his possession in law is unrebutted by the actual seisin of
any other person .^
§ 818. Same subject. There can be no mesne seisin of a re-
nuUnder or reveriian expectant on an estate oi freehold^ while such
remainder or reversion continues in a regular course of descent ;
for if it be granted over, it vests immediately in the grantee,
making him the new stock of descent for any subsequent claimant ;
the exercise of such ownership being equivalent to the actual
seisin of an estate, which is capable of being reduced to possession
1 See infira^ { 656.
s Bull. N. P. 108 ; Jayne v. Price, ff Taunt 826 ; a o. 1 Manh. 68 ; 2 PluL Evid.
282
• Co. lit 16 a, ft, 262 h ; 1 Cruise, Dig. tit 1, §§ 24, 26 (Greenleaf 's ed.) [2d ed.
1856].
4 Co. lit 246 ( ; Bobiaon v. Swett, 8 Greenl. 816 ; miTpra^ § 28.
» Co. Lit 15 o, 245 ft, 268 o; 2 Cruiae, Dig. tit 18, c 1, 8 68 ; Id. c 2, j 14
(QreeDleaTa ed.) [2d ed. 1856].
• 8 Cruiae, Dig. tit 29, c 8, §§ 65-57 (Greenleaf 'a ed.) [2d ed. 1866] ; Goodtitle «.
Kewman, 8 Wila. 616.
7 Watkina on Deacenta, pp. 67, 68, (49), (60).
824 LAW OP EVIDENCE. [PABT IT.
by entry. He, therefore, who claims an estate in remainder or
reversion by a descent must make himself heir, either to him in
whom such estate first vested by purchase, or to the person to
whom it was last granted by the owner .^
§ 314. Iiegatee. Where the plaintiff claims as legatee of a term
of yearBy he must show the probate of the will, and prove the
assent of the executor to the legacy, without which he cannot
take. But allowing the legatee to receive the rents, or applying
them to his use, or any other slight evidence of assent on the part
of the executor, such as, on the part of a tenant, would amount
to an attornment, will be sufficient ; and such assent, once given,
is irrevocable.^ He must also show that the testator had a
chattel and not a freehold interest in the premises ; because we
have already seen that his possession, unexplained, will be pre-
sumed a seisin in fee. Of this fact, the lease itself will be the
most satisfactory evidence ; but it may be proved by any solemn
admission of the other party, as, for example, by his answer as
defendant to a bill in equity, in which he stated that '^he believed
that the lessor was possessed of the leasehold premises in the bill
mentioned." ^
§ 315. Ezeoutor. If the plaintiff claims a chattel real as
executor y or adminUtrator^ he must prove the grant of the letters
of administration, or the probate of the will, in addition to the
evidence of the testator's or intestate's title, (a) And where no
formal record of the grant of letters of administration or letters
testamentary is drawn up, they may be proved by the book of
Acts, or other brief official memorial of the fact.* If the plaintiff
claims as guardian^ he must in like manner prove, not only the
title of the ward, and his minority at the time of the demise laid
in the declaration, but also the due execution of the deed or will,
appointing him guardian, if such was the source of his authority ;
1 Id. pp. 137. 188. 161, aiO), ai8). » 1 Roper on Legacies. 260, 261.
* Doe V, Steel, 8 Campb. 116.
* Bull. N. P. 246 ; Elden v. Keddel, 8 East, 187 ; aaUe, vol. i. § 619 ; Adama on
^eet. p. 271, by TilUnghast. A court of common law takes no notice of a will, as a
title to personal property, until it has been proved in the court baring jurisdiction
of the probate of wills. Stone v. Forsyth, 2 Doug. 707. An executor may lay a de-
mise before probate of the will Itoe v. SummerseU, 2 W. Bl. 694.
(a) But a party who claims by a deed evidence to make out a prima facU caw.
from executors need not put the wiU in Coggins v. Griswdd, 64 Qa. 328.
PART IV.] EJECTMENT. 826
or the due issue of letters of guardianship, if he was appointed by
the tribunal having jurisdiction of that subject.^
§ 316. Porohajier. Where the plaintiff claims as purchaser
under a iheriff^s saUj made by virtue of an execution against the
d^endant m e^'ectment^ it is sufficient to show the execution, and
the proceedings under it,* without producing a copy of the record
of the judgment itself; for the debtor might have applied to have
the execution set aside, if it had been issued without a valid
judgment to support it ; but not having done so, it will be pre-
sumed, in an action against him, that the judgment is right.
But where the .action of ejectment is against a stranger, no such
presumption is made, and the plaintiff will be required to prove
the judgment, as well as the execution.^ (a) In some of the United
States, the freehold estate of a judgment debtor may be taken on
execution in the nature of an extent, and set off to the creditor,
at an appraised value ; in which case an actual seisin is vested in
the creditor, by virtue of which he may maintain a real action,
even against the debtor himself>
§ 317. Joint demise. If Bi joint demise is laid in the declaration,
evidence must be given of a joint interest in the lessors. But if
several demises are laid, the declaration will be supported by
proof of several demises, even by joint tenants; for a several
demise severs a joint tenancy.* So, if four joint tenants jointly
demise, such of them as 'give notice to quit may recover their
several shares, in an ejectment on their several demises.^ By
the conmion law, tenants in conmion cannot recover upon a joint
1 Adftms on Eject by Tillinghast, p. 275.
' The sherifTs retarn is itself conclusive evidence between the parties and those in
privity with them of all the facts it recites, which relate to his own doings by virtue
of the precept. Bott v. Bumell, 11 Mass. 163 ; Whitaker v, Sumner, 7 Pick. 651,
655 ; Lawrence v. Pond, 17 Mass. 433. Where the deed of one acting under legal au-
thority is offered in proof, not of title, bnt of a collateral fact, the autnority needs not
be proved. Bolles v. Beach, 3 Am. Law Joum. n. b. 122.
» Doe V, Murless, 6 M. & S. 110 ; Hoffman v. Pitt, 6 Esp. 22, 23 ; Cooper v, Gal-
braith, 8 Wash. C. C. 546. But this point was otherwise decided, and the judgnient
was required to be proved, in an ejectment against the debtor himself, in Doe v. SmiUi,
1 Holt^s Cas. 589, n. ; 2 Stark. 199, n. ; Fenwick v. Floyd, 1 H. & Gill, 172.
« Gore V. Brazier, 8 Mass. 523; Blood v. Wood, 1 Met 628, 534.
^ Doe V, Bead, 12 £ast, 57; Doe v. Fenn, 3 Campb. 190; Roe v. Lonsdale^ 12
East, 39.
* Doe V. Chaplin, 8 Taunt 120.
(a) Canly v. Blue, 62 Ala. 77. And debtor. Clute v, Emmerich, 21 Hun
then even the sheriff's certificate of a sale (N. Y.), 122 ; Claflin v, Robinhorst, 40
of real estate is prima facie evidence of the Wis. 482.
facts it recites as against Uie judgment
826 LAW OP ETIDENCE. [PABT lY.
demise ; but must sue separately, each for his share, in whatever
form of real action the remedy is sought.^ But in some of the
United States this rule has been changed by statute, and in
others it has been broken in upon by a long course of practice
in the courts, permitting tenants in common, and all others
claiming as joint tenants, or as coparceners, to join or sever in
suits for the recovery of their lands.^ K the declaration is for a
certain quantity of land, or for a certain fractional part, and the
plaintiff proves title to a part only of the land, or to a smaller
fraction, the declaration is supported for the quantity or fraction
proved, and he may accordingly recover.^ (a) But whether, if
any entirety is demanded, the plaintiff may recover an undivided
part, is not miiformly agreed ; though the weight of authority is
clearly in favor of his recovery.*
§ 318. Joint tenant and tenant in common. If the action is by
a joint tenant, parcener, or tenant in common, agairist his comr
panion, the consent-rule, if it is in the common form, will be
sufficient evidence of an ouster; but if it is special, to confess
lease and entry only, the ouster must be proved.* Possession
alone will not be sufficient proof of an ouster by one owner
against his companion ; for where both Jiave equal right to the
possession, each will be presumed to hold under his lawful title,
till the contrary appears. An ouster in such case, therefore,
must be proved by acts of an adverse character, such as claiming
the whole for himself; denying the title of his companion; or
refusing to permit him to enter ; and the like, (i) A bare per-
1 Co. Lit. 197; Hammond on Parties, p. 251; 1 Chitty on PI. 14 (7th ed.); Innis
V. Crawford, 4 Bibb, 241; Taylor «. Taylor, 3 A. K. Marsh. 18; White v. Pickering,
12 S. & R. 435.
^ Maine, Bey. St c. 145, § 12; Massachusetts, Rev. St c. 101, § 10; Jackson v.
Bradt, 2 Caines, 169; Jackson v. Sample, 1 Johns. Cas. 231; Jackson v. Sidney, 12
Johns. 185; Doe v. Potts, 1 Hawks, 469.
s Denn v, PutyIb, 1 Burr. 326; Guy v. Rand, Cro. £1. 12; Santee v. Eeister, 6
Binn. 36.
^ Doe V, Wippel, 1 Esp. 360; Roe f. Lonsdale, 12 East, 89; Dewey v. Brown, 2
Pick. 387; Somes v. Skinner, 3 Pick. 52; Holyoke v. Raskins, 9 Pick. 259; Gist v,
Robinet, 3 Bibb, 2; Ward v. Harrison, Id. 304; Larue v. Slack, 4 Bibb, 358. Contra,
Carroll v. Norwood, 1 H. & J. 100, 167; Young v. Drew, 1 Taylor, 119.
* Doe V, Cuff, 1 Campb. 173; Oakes v. Brydon, 3 Burr. 1895; Doe v. Roe, 1
Anstr. 86.
(a) Gatton v. Tollev, 22 Kan. 678 ; N. C. 481 ; Reidinger v, Cleveland Iron
Roche V. Campbell, 4 Col. 254. If a party Mining Co., 39 Mich. 80.
relies on a reservation in a grant he must (b) So it was held that when the owner
show that the land in the reservation is of one twelfth declined to surrender occu-
that he claims. Gudyer v. Hensley, 82 pancy of the other eleven twelfths, this
PABT IV.] EJECTMENT. 827
ception of the whole profits does not, of itself, amount to an
ouster ; yet an undisturbed and quiet possession for a long time
is a fact from which an ouster may be found by the jury.^
§ 819. Landlord against tenant. Where the action is brought
by a landlord against his tenant, or is between persons in privity
with them, the claimant must show that the tenafictf is determined ;
otherwise, being once recognized, it will be presumed still to sub-
sist. It may be determined, either by efflux of time ; or by no-
tice ; or by forfeiture for breach of condition.^
§ 320. When tenancy is determined by lapae of time. If the
tenancy is determined by lapse of time, this may be shown by
producing and proving the counterpart of the lease. And if it
depended on the happening of a particular event, the event
also must be proved to have happened.^ If the demise was by
parol, or the lease is lost, it may be proved by a person who was
present at the demise; or by evidence of the payment of rent;
or by admissions of the defendant, or other competent secondary
evidence.*
§ 321. Notice to quit. Where it is determined by notice to quit,
or by notice from the tenant that he will no longer occupy, the
tenancy must be proved, with the tenor and service of the notice
given, the authority of the person who served it, if served by an
agent, and that the time mentioned in the notice was contem-
poraneous with the expiration of the tenancy, or with the period
when the party was at liberty so to terminate it. , And if a custom
is relied on, as entitling the party so to do, this also must be shown.^
^ Doev. Proflser, Cowp. 217; Fairclaim v. Shackleton, 5 Burr. 2604; Brackett v.
Norcross, 1 Greenl. 89; Doe v. Bird, 11 East, 49. And see 2 Cruise's Dig. tit. 20,
S 14, n. by Greenleaf [2d ed. 1856].
' Adams on Eject, by Tillinghast, pp. 276, 277.
« Id. p. 278.
* See ante, irol. i. § 560, as to laying a foundation for the admission of secondary
evidence of a written instrument, by notice to the adverse party to produce it.
» Adams on Eject, by Tillinghast, pp. 120, 181, 278, 279. By the common law, a
parol notice is sufficient. Doe v. Cnck, 5 Esp. 196 ; Le^ v. Benion, Willes, 43. If
the party has disclaimed or denied the tenancv, no notice is necessary. Doe v. Grubb,
10 B. k C. 816 ; Doe v. Pascmali, Peake's Cas. 196 ; Bull. N. P. 96. And a new
notice, or receipt of rent, or a aistress for rent, subsequently accrued, is evidence of a
waiver of a prior notice. Doe n. Palmer, IG East, 53 ; Zouch v. Willingale, 1 H- Bl.
811 ; Doe v. Batten, Cowp. 243.
was evidence of an ouster. Avery v. Hall, one of them entered on the premises, and
50 Vt. 11. So the denial of plaintiff's locked the door, claiminc to be the sole
title by defendant in his answer in the owner, this is enough. Trustees, &c. of
^ectment suit is proof of an ouster. North Greig v. Johnson, 66 Barb. (N. Y.)
Spect V, Gregg, 61 6d. 198. And where 119.
828 LAW OP EVIDBNCE. [PABT IT,
If the tenant, on application of his landlord to know the time when
the lease commenced, states it erroneously, and a notice to quit
is served upon him according to such statement, the tenant is
estopped to prove a different day.^ He is also concluded by the
time stated in the notice, if at the time of service he assents to its
terms.^ But if the tenant, being personally served with notice,
made no objection to it at the time, this is prima facie evidence, to
the jury, that the term commenced at the time mentioned in the
notice.* If, however, the notice was not personally served, or was
not read by the tenant nor explained to him, no such presumption
arises from his silence.^
§ 322. Service of notioe. The service of the notice may be proved
by the person who delivered it ; but if there was- a subscribing
witness, he also must be called, as in other cases of documentary
evidence. The contents of the notice may be shown by a copy; or,
if no copy was taken, it may be proved by a witness ; and in either
case, no previous notice to produce the original will be required.^
§ 823. Form of notioe. The form of notice must be explicit and
positive, truly giving to the party, in itself, all that is material for
him to know upon the subject. A misdescription of the premises,
or a misstatement of dates, which cannot mislead, will not vitiate
the notice;® nor need it be directed to the person.^ Even if di-
rected by a wrong name, yet, if he keeps it without objection, the
error is waived.® A notice as to part only of the demised premises
is bad ; ® but a notice by one of several joint tenants will enable
him to recover his share.^® The notice, however, must be such as
the tenant may act upon at the time when it is given. Where,
therefore, two only of three executors gave notice, " acting on the
part and behalf of themselves and the said J. H.," the other exe-
cutor, this was held insufficient, though it was afterwards recog-
nized by the third, the lease requiring a notice in writing, under
the hands of the respective parties ; for, at the time when it was
served, the tenant could not know that it would be ratified and
I Doe V. Lambly, 2 Esp. 635. ' Adams on Iject p. 280.
* Doe V. Fonter, 13 East, 405; Doe v. Woombwell, 2 Campb. 659; Thomas «.
Thomas, 2 Campb. 647; Oakapple v. Ck)pou8, 4 T. R. 861.
^ Doe V. Harris, 1 T. R. 161; Doe v. Calvert, 2 Campb. 378.
* Ante, vol. i. §§ 561, 569; Adams on inject., by TiUinghast, p. 279; Jory «•
Orchard, 2 B. & P. 89, 41; Doe v. Dumford, 2 M. & S. 62; Doe v. Somarton, 7 Ad.
ft£l. N. 8. 58.
« Doe d. Cox v. Roe, 4 Esp. 185; Doe v, Elghtley, 7 T. R. 68.
7 Doe V, Wriflrhtman, 4 Esp. 5. ■ Doe v, Spiller, 6 Esp. 70.
* Doe V. Archer, 14 East, 245. Vi Doe v. Chaplin, 8 Taont. 120.
PABT r7.] EJECmOSNT. 829
adopted by the other.^ But where the notice was signed by an
agent professing to act as the agent of all the lessors, it was held
sufficient to enable the defendant to act upon with certainty, though
in fact the letter of attorney was not signed by all the lessors un-
til a subsequent day.^
§ 324. Sendee. Service of notice at the dwelling-house of the
party is sufficient, whether upon the party in person, or his wife,
or servant.^ And if there are two joint lessees, service on one of
them is prtma facie evidence of a service on both.* If the lessee
has assigned his interest to one between whom and the landlord
there is no privity, the notice should be served on the original
lessee.*
§ 825. Notice, when necessary. Notice to quit is not necessary,
where the relation of landlord and tenant is at an end, as in the case
of a tenant holding over by sufferance ;^ nor where the person in
possession is but a Mwant or bailiff to the owner ; ^ nor where he
has either never admitted the relation of landlord and tenant, as,
if he claims in fee, or adversely to the plaintiff ; ® or has subse-
quently disclaimed and repudiated it, as, for example, by attorn-
ing to a stranger, or the like.^ But such notice is deemed neces-
sary only where the relation of landlord and tenant does exist,
whether it be created by an express demise, or is incidentally ad-
mitted, either by the acceptance of rent, or by entering under an
agreement to purchase, or the like.^^ And notice, if given, is
waived^ on the part of the landlord, by a subsequent new notice to
quit ; or, by the receipt of rent before the bringing of an eject-
ment ; or, by a distress for rent accruing subsequently to the ex-
piration of the notice to quit ; or, by an action for subsequent use
and occupation ; or, by any other act on t^ie part of the lessor,
1 Right V. CntheU, 6 East, 421, 499, per Lawrence, J.
* Goodtitle v. Woodward, 3 6. & AM. 689.
* Widgerv. Browning, 2 C. & P. 523; Doe v, Dunbar, 1 M. & Malk. 10; Jonea v.
Marsh, 4 T. R. 464; Doe v. Lucas, 5 £sp. 153.
« Doe V. Crick, 4 Esp. 196; Doe v. Watkins, 7 East^ 558.
* Roe V. Wigffs, 2 New R. 880; Pleasant v. Benson, 14 East, 234.
* Jackson v. Farkhurst, 5 Johns. 128; Thunder «. Belcher, 8 East, 449, 451; Jack-
son V. McLeod, 12 Johns. 182.
7 Jackson v. Sample, 1 Johns. Gas. 281.
* Jackson v, Deyo, 8 Johns. 422; Jackson v. Guerdon, 2 Johns. Gh. 858; Doe v.
Williams, Gowp. 622; Doe v. Creed, 5 Bing. 327.
* Bull N. P. 96; Doe v, Frowd, 4 Bing. 557, 560; Jackson «. Wheeler, 6 Johns.
272; Doe v, Grubb, 10 B. & C. 816; Doe tr. Whittick, Gow, 196.
^ Jackson v, Wilsey, 9 Johns. 267; Jackson v. Rowen, Id. 880 ; Ferris v. Fuller, 4
Johns. 213; Jackson v, Deyo, 8 Johns. 422.
330 LAW OP EVIDENCB, [PART TV.
m
after knowledge by him of the tenant's default, recognizing the
tenancy as still subsisting.^
§ 326. Forfeiture by non-payment of rent Where the ejectment
is founded upon the forfeiture of a lease for non-payment of rent,
and the case is not governed by any statute, but stands at common
law, the plaintiff must prove that he demanded the rent, and that
the precise sum due, and neither more nor less, was demanded;
that the demand was precisely upon the day when the rent became
due and payable ; that it was made at a convenient time before
sunset on that day ; that it was made upon the land, and at the
most notorious place upon it, and if tliere be a dwelling-house on
it, then at the front or principal door, though it is not necessary to
enter the house, even if the door be open ; and that a demand was
in fact made, although no person was there to pay it. But if any
other place was appointed, where the rent was payable, the de-
mand must be proved to have been made there. A demand made
after or before the last day of payment, or not upon the land or at
the place, will not be sufficient to defeat the estate.^
§ 327. By limitation. If the lease contained an express limitot-
tiony that upon non-payment, or other breach, the lease should be-
come absolutely void, then no entry by the landlord need be made ;
but an ejectment lies immediately, upon the breach, with proof of
demand of rent as before stated, if the breach was by non-payment.
But where the terms of the lease are, that upon non-payment or
other breach it shall be lawful for the lessor to re-enter, there, by
the common law, the plaintiff must show an entry, made in rea-
sonable time, and because of such breach ; unless the entry is con-
fessed in the consent-rule, which is now held sufficient. And in
this latter class of cases, if the lessor, after notice of the forfeiture
(which is an issuable fact), accepts rent subsequently accruing, or
distrains for the rent already due, or does any other act which
amounts to a recognition of the relation of landlord and tenant as
1 Doe V. Palmer, 16 East, 58; Doe «. Inj];lis, 8 Taunt. 54; Armsby v. Woodward,
6 B. & C. 519; Roe v, Harrison, 2 T. R. 425; Goodright v. Davis, Cowp. 803; Doe v.
Batten, Cowp. 248; Doe v, Meauz, 1 C. & P. 846 ; b. c. 4 B. & C. 606 ; Doe v. John-
son, 1 Stark. 411. By the common law, the receipt of the rent previously due is a
waiver of the forfeiture occasioned by its non-payment 1 Sauna. 287, n. (16), by
Williams.
'* See 1 Saund. 287, n. (16), bv Williams, and cases there cited. The strictness of
the common law, in the particulars mentioned in the text, has been abated, and the
subject otherwise regulated by statutes, both in England and several of the United
States; but as these statutory provisions are various in the different States, rendering
the subject purely a matter of local law, they are not here particularly stated.
PAST lY.] EJECTMENT. 881
Still subsisting, or to a dispensation of the forfeiture, the lease,
which before was voidable, is thereby affirmed ; and this will con-
stitute a good defence to the action.^ If the tenant, after demand
of the rent, but before the expiration of the last day, tenders the
sum due, this also will save the forfeiture.^
§ 328. Underletting. If the breach consisted in assigning or un-
derletting wiih<mt the consent of the lessor^ it has been held suffi-
cient for the plaintiff to show that another person was found in
possession, acting and appearing as tenant, this being prima facie
evidence of an underletting, and sufficient to throw upon the de-
fendant the burden of proving in what character such person held
possession of the premises. And in such case, the declarations of
the occupant are admissible against the defendant, to show the
character of the occupancy.^
§ 329. Mortgagee and mortgagor. Where the action is between
a mortgagee and the mortgagor^ the mortgagee's case is ordinarily
made out by the production and proof of the mortgage deed, which
the defendant is estopped to deny. If the action is against a tenant
of the mortgagor, the determination of tlie tenancy must be proved ;
unless it commenced subsequent to the mortgage, and has not been
acknowledged by the mortgagee ; in which case no notice to quit
needs be shown.^ And where the mortgage deed contains a pro-
viso that the mortgagor may remain in possession until the con-
dition is broken, it will be necessary for the plaintiflf to prove a
breach.^ (a) Whether, in general, a mortgagor is entitled to no-
tice to quit, seems not to be perfectly clear by the authorities. In
England, he is held not entitled to such notice ; ^ but in some of
the United States it has been held otherwise.'^
1 1 Sannd. 287, n. (16), by Williams, and cases there cited; Doe v. Banks, 4 B. &
Aid. 401; Fawcett v. Hall, 1 Alcock & Napier, 248; Zouch v, Willingale, 1 H. Bl.
811. But the rent mnst have been received as between landlord and tenant, and not
upon any other con»ideration. Right v, Bawden, 8 East, 260.
« Co. Lit 202 (a).
• Doc V. Rickarby, 6 Esp. 4, per Ld. Alvanley; ante, vol. i. §§ 108, 109.
* Thunder v. Belcher, 3 East, 449 ; Eeech v. Hall, 1 Dong. 21 ; Jackson v. Chase,
2 Johns. 84 ; Jackson v. Fuller, 4 Johns. 215 ; Birch v. Wright, 1 T. R. 878, 888.
But if the mortgagee or the assignee of the mortgage has acknowledged the tenancy by
the receipt of rent, a notice to quit is necessary to be proved. Ibid. ; Clayton v.
Blackey, 8 T. R. 8. See also Jackson v. Stackhouse, 1 Cowen, 122.
• HaU V. Doe, 5 B. & Aid. 687.
* Keech v. Hall, 1 Dong. 21; Thunder v. Belcher, 8 East, 449; Patridge v. Been,
5 B. & Aid. 604.
7 Jackson v. Langhead, 2 Johns. 75; Jackson v. Green, 4 Johns. 186.
(a) Oldham v. Pfleger, 84 IlL 102. ment against the mortgagee, if the fore-
And the mortgagor has no action of eject- closure sale is void. lb.
832 LAW OP EVIDENCE. [PABT TV.
§ 830. Payment of mortgage. Payment of the mortgage debt is
a good defence to an action at law, brought by the mortgagee,
against the mortgagor, to obtain possession of the mortgaged
premises; but if the mortgagee is already in possession, the
remedy of the mortgagor, where no other is provided by statute, is
by bill in equity.^ And where usury renders the security void,
this may also be shown in defence, against an action brought by
the mortgagee upon the mortgage.'
§ 381. Piaintur must show title. As the claimant in ejectment, or
other real action, can recover only upon the strength of his own
title, and not upon the weakness of that of the tenant, the defence
will generally consist merely in rebutting the proofs adduced by
the plaintiff.* (a) For possession is always prima fade evidence
of title ; and the party cannot be deprived of his possession by any
person but the rightful owner, who has the ju» poeeeeritmis.^ (K)
The defendant, therefore, needs not show any title in himself, uur
til the plaintiff has shown some right to disturb his possession. («)
Tlius, if the plaintiff claims as heir, and proves his heirship, the
defendant may show a devise by the ancestor to a stranger, or
that, by the local law, some other person is entitled as heir ; or
that the claimant is illegitimate, or the like. So, if he claims as
devisee, the defendant may prove that the will was obtained by
fraud, or may impeach its vriidity on any other grounds, not pre-
cluded by the previous probate of the will.'^ And he may also
1 Gray V. Jenks, 8 Mason, 520 ; Gnj «. Waas, 1 OreenL 860 ; Yose v. Handy, 2
Greenl. 822; Perkins v, Pitts, 11 Mass. 125; Erskind v, Townaend, 2 Mass. 493; Wade
V, Howard, 11 Pick. 289; Howard «. Howard, 8 Met 548, 557; Hitchcock v. Harring-
ton, 6 Johns. 290, 294 ; Jackson «. Stackhonae, 1 Cowen, 122 ; Deering «. flawtel, 4
Greenl. 191.
' Holton V. Button, 4 Conn. 436 ; Deering v, Sawtel, 4 GreenL 191 ; Chandler o.
Morton, 5 Greenl. 174; Richardson v. Field, 6 GreenL 85.
s See if|/ra, §§ 555-558.
* Adams on ^ect. pp. 285, 286, by Tillin^hast; Hall v. Gittinga, 2 Har. & Johns.
122; Lane v, Keynard, 2 S. & R. 65; mpra^ §§ 308, 804. As to the preswmptitm of a
convtyanci from the trustee to the cetiui qys trudf see 1 Cruise's Dig. tit. 12, c 2, § 39,
n. (Greenleafs ed.)
^ Adams on Eject, p. 286, by Tillinghast
(a) Where the only question in an the people in their capacity of soTereign
action of ejectment was whether there was once held. But when the people ai«
an outstanding title superior to that of the plaintiffs, it seems that this presumption
plaintiff, it was held not to be material for is shifted to the other side, on showing
the jury to consider whether the defend- that the possession has been vacant at any
ant's title connected with it or not. Clegg time within forty 3rears. People «. Trinity
V. Fields, 7 Jones (N. C), Law, 37. Church, 22 N. Y. 44.
(6) A person in possession of land is (c) Henry v. Beichert, 22 Hun (K. T.).
presumed to have acquired the titLo which 894; Cobb «. Lavalle^ 89 IlL 881.
PABT IT.] EJECTMENT. 883
defeat the plaintifTfl claun, by showing that the real title is in
another, without claiming under it, or deducing it to himself, either
hj legal conveyance, or operation of law.^ (a) But he cannot set
up a merely equitable title or lien to defeat a legal title, under
which the plaintiff claims.^ (i)
§ 332. Damages. Bflesne profits. As the damages given in an
action of ejectment are now merely nominal, the title alone being
the subject of controversy, the plaintiff is permitted to recover his
real damages in an action of trespass for mesne profits ; in which
he complains of his having been ejected from the possession of the
premises by the defendant, who held him out, and took the rents
1 Ibid. 29-31; Huoter v. Cochran, 8 Barr, 105. Bat if he entered under a con-
tract to purchase from the plaintiff, he is estopped to deny the plaintiff's title. Norris
V. Smith, 7 Cowen, 717; 1 Cruise's Dig. tit. 12» c. 2, § 86, n. (Gnenleaf' s ed.) [2d ed.
1856] ; 2 Wheat 224, n. (a).
' Adams on Eject, p. 82; 1 Cruise's Diff. tUn supra; Id. § 88, n.; Roe v. Beed, 8
T. R. 118, 128; Jackson v. Sisson, 2 Johns. Cas. 821; Jackson v. Harrington, 9 Cowen,
88; Jackson v, Parkhurst, 4 Wend. 369; Sinclair v. Jackson, 8 Cowen, 543; Heath «.
Knapp, 4 Barr, 280. But, in Pennsylvania, it seems that an ejectment is regarded as
an eaiiitable remedy, and judgment is rendered at law, upon any principles which
would require a decree in chancery. Peebles v. Reading, 8 S. & K. 484; Delancy v,
McKean, 1 Wash, a C. 854; Thomas v. Wright, 9 S. & R. 87, 98.
(a) But if the defendant sets up such equitable title (Chase v. Irvin, 87 Pa. St.
an outstanding Htle, the plaintiff may show 286), and the defendant may rely on an
a conveyance to him of such title, and the equitable defence (Irwin v. Cooper, 92 Pa.
recital in a deed from the owner of such St. 298), and this is also held in Kansas
superior title to a stranger, in which is (Duffey v. Rafferty, 15 Kan. 9), and equi-
recited a deed to plaintiff of land which table rights and defences are admitted in
answers the description of the land claimed New York (Hoppough v, Struble, 60 N. Y.
in the action, is sufficient evidence of such 430), California (Pico v. Gallardo, 52 Cal.
a conveyance. Carter v. Robinett, 33 206), Minnesota (Williams v. Murphy,
Gratt. (Va.) 429. So, the plaintiff may 21 Minn. 534), Missouri (Nesbit v. NeiU,
show that such outstanding title has be- 67 Mo. 275; Sims v. Gray, 66 Mo. 613),
come void by the statute of limitations. North Carolina (Stith v. Lookabill, 76
Humble 17. Spears, 8 Baxt. (Tenn.) 156. N. C. 415), Georgia (if stated in the
(&) The nile as stated by the author pleadings, Sutton v, Aiken, 57 Ga. 416.
seems to have become greatly relaxed at Cf. Young v. Porter, 8 Woods C. Ct 842),
the present dav. The action of ejectment Illinois (70 111. 286; Herrell v. Sizeland,
is now generally regarded as an equitable 81 111. 457). In accordance with well-
remedy, even in those States where it has settled equitable principles, the united le-
not b^n declared so by statute. By thus gal and equitable titles will prevail over a
admitting equitable defences great advan- bare equity. Betser v. Rankin, 77 111. 289.
tages are secured in avoiding the circuity But in Michigan (Harrett v, Kinney,
of action resulting from the old rule, un- 44 Mich. 457; Adams «. Cameron, 40
der which the defendant relying on an Mich. 506), and Alabama (Kelly v. Hen*
equitable title was obli^ to apply to a dricks, 57 Ala. 198; Aitheson «. Broad*
oonrt of equity to obtain a pernetual in* head, 56 Ala. 414), the old rule seems to
junction upon the plaintiff in tne suit at prevail, and in the United States courts
law. Barton v. Duffield, 2 Del. Ch. 130. (Foster v. Mora, 98 U. S. 425; Wythe «.
It also suits the procedure of some of our Smith, 4 Sawjrer C. Ct. 17).
States, where, in lien of courts of chancery, The Isgal title left in a mortgagee after
eourts of law have very laige equity juris* payment of the mort^pige is enough to
diction. As stated in note 3, in Penn- maintain an action of ejectment. Towns-
sylvania, the plaintiff may rely on an end Savings Bank v. Todd, 47 Conn. 190.
884 LAW OP EVIDENCE. [PABT IV.
and profits, during the period alleged in the declaration.^ (a) And
as this remedy is one of the incidents and consequences of an
ejectment, it is usually considered under that head. We have
heretofore seen,^ that the law considers the lessor of the plaintiff,
and the actual tenant, as the real parties in an action of eject-
ment ; and therefore the action for mesne profits may be brought
by the lessor of the plaintiff, as well as by the nominal plaintiff
himself. The evidence on the part of the plaintiff consists of proof
of his possessory title ; the defendant's wrongful entry ; the time
of his occupation ; the value of the mesne profits ; and any other
damages and expenses recoverable in this action.
§ 338. Profits, prior and aabsequent. Where this action is
between the parties to the prior action of ejectment, and the
plaintiff proceeds only for profits accruing subsequent to the
alleged date of the demise, the record of the judgment in that
case will be conclusive evidence of the plaintifPs title and of the
defendant's entry and possession from the day of the demise laid
in the declaration.* (6) If the plaintiff would claim for profits
antecedent to that time, he must prove his title as in other cases,
and the defendant will not be estopped to gainsay it.* (c) So, if
the suit is against a precedent occupant, the judgment in eject-
ment is no proof of the plaintiff's title.^ And if the suit is against
the landlord of the premises, a judgment in ejectment against the
^ There is some diversity in the different American States as to the remedy for
mesne profits, which it is not within the plan of this treatise to conmder. See 6iU v.
Cole, 1 Har. & J. 403; Lee v. Cooke, Gilmer, 331; Coleman v. Parish, 1 McCord, 264;
Sumter v. Lehie, 1 C'Onst. 102; Cox v. Callender, 9 Mass. 538. See in/m, §§ 548-552.
Where proTision is made hy statute for an aUowance to the tenant in a real action for
the value of his lasting improvements, of which he avails himself at the trial, the value
of the mesne profits is generally taken into the estimate by special provisions for that
purpose.
* Ante^ vol. i. § 536.
* Adams on f^ject. 334 ; Dodwell v. Gibbs, 2 C. ft P. 615 ; Dewey v. Osbom, 4
Cowen, 329, 835 ; Van Alen v, RogOTS, 1 Johns. Cas. 281 ; Benson v, Matsdorf, 2
Johns. 369 ; Chirac v. Reinicker, 11 Wheat 280 ; Lion v. Burtls, 5 Cowen, 408.
« BulL N. P. 87 ; Ashlin v. Parkin, 2 Burr. 668 ; Jackson v, Bandall, 11 Johna.
405 ; West v. Hughes, 1 Har. k J. 574.
» BulL N. P. 87.
(a) Where the property was a miU-site, must first be satisfied. Gardner «. GraimiBy
having a steam-mul thereon, it was held 57 Ga. 539.
that tne rent of the mill and site was (6) Euhns v. Bowman, 91 Pa. St. 504.
mesne profits. Morris v. Tinker, 60 Ga. If tiie plaintiff has obtained possessioQ of
466. the premises before he sues for the mesne
The defendant is not liable for mesne profits, he can still recover for the previous
profits prior to his possession, but if he unlawful possession. Cannan v. ^ieam, 88
claims for improvements made by his pre- Pa. St. 319.
decessors, their liability for mesne profits (c) Kille v. Ege, 82 Pa. St 102.
PABT lY.J EJECTMENT. 885
casual ejector lb not eyidence of the plaintiff's title, unless the
landlord has notice of the ejectment.^
§ 334. Plaintiff mnat prove poBaeasioxL The plaintiff must also
prove his possession of the premises. If the judgment in eject-
ment was rendered after verdict against the tenant in possession,
tlie consentrTuley if it was entered into, will be sufficient proof of
possession by the plaintiff. But if no consent-rule was entered
into, the judgment being rendered against the casual ejector by
default, the plaintiff's possession must be proved, either by the
writ of possession and the sheriff's return thereon, or by evidence
tiiat the plaintiff has been admitted to the possession by the
defendant.^ The entry of the plaintiff, it seems, will relate back
to the time when his title accrued, so as to entitle him to recover
the mesne profits from that time.^
§ 335. Occupancy of defendant. It will also be incumbent on
the plaintiff to prove the duration of the occupancy by the de-
fendantj or by his tenant, if he be the landlord ; and in the latter
case, if tlie judgment in ejectment was against the casual ejector,
by default, it must be shown that the defendant was landlord
when the ejectment was brought, which may be done by proof of
his receipt of rent accruing subsequent to the time of the demise.
The plaintiff must also prove that the landlord had due notice of
the service of the declaration in ejectment upon the tenant in
possession ; but if he has subsequently promised to pay rent and
the costs of the ejectment, this will suffice.^
§ 336. Costs. The plaintiff in this action may recover the costs
incurred by him in a court of error, in reversing a judgment in
ejectment obtained by the defendant, as part of his damages,
sustained by his having been wrongfully kept out of possession
by the act of the defendant ; and the jury will be instructed to
CQnsider the costs between attorney and client as the measure of
this item of damages.'^ He also may recover in this form the
^ Honier v. Britta, 8 Campb. 456.
* BuU. K. P. 87. it would seem that a judgment in ejectment recovered by the
plaintiff against the defendant estops the latter from controverting the plaintiff's pos-
•easton, aa well as his title, of which possession is a part. See Adams on £Jject. 836
n. Iq) ; Galrart 9. Horsfall, 4 Eqp. 167; Brown v, Galloway, 1 Peters, G. G. 291, 299;
Jaelcson v. Gombs, 7 Gowen, 36.
< Ball. N. P. 87, 88 ; Adams on Eject. 835.
* Hunter v. Britta, 8 Garapb. 455 ; Adams on "Eject. 837.
* Kowell V. Roake, 7 B. & G. 404. And see Doe v, Haddart, 5 Tyrwh. 846 ; & a
2 0. M. & B. 816 ; Denn v. Ghubb, 1 Goxe (N. J.}, 466.
888 LAW OF EVIDENCE. [PAITT lY.
or in his representative capacity.^ (a) Bat in other cases, where
the cause of action accrued in his own time, he must sue in his
representative capacity, and must prove this character under the
general issue, which raises the question of title.^ (()
§ 889. Proof of repreMntative character. The proof oi the plain-
tifiPs representative character is made by producing the probate
of the will, or the letters of administration, which, prima facie^
arc sufficient evidence for the plaintiff, both of the death of the
testator or intestate, and of his own right to sue.* (<?) Where an
oath of office and the giving of bonds are made essential, by
statute, to his right to act, these also must be proved. The pro-
bate itself is the only legitimate ground of the executor's right to
sue for the personalty, and is conclusive evidence, both of his
appointment and of the contents of the will ; (d) and if granted at
1 Hunt V. Stevens, 8 Taont. 118, 115 ; Hollis v. Smith, 10 East, 298 ; Blackham*s
Case, 1 Salk. 290 ; 2 Saand. 47 c, n. by Williams ; Heath v. Chilton, 12 M. & W.
632. The allegation of his representative character, in these two cases, will be regarded
as surplusage, and needs not be proved. Crawford v. Whittal, 1 Doug. 4, n. See also
Powley V. Newton, 6 Taunt 453, 457-; Clark v, Hougham, 2 B. & C. 149.
> Smith V. Barrow, 2 T. R. 476, 477, per Ashhurst, J. ; Crawford v. Whittal, 1
Doug. 4, n. (1) ; Hunt v. Stevens, 8 Taunt. 118.
' In an action on a promissory note made payable " to the executors of the late
W. B.," it was held necessary for the plaintiffs to produce both the probate of the will
and the grant of administration annexed to it Hamilton v, Aston, 1 C. & E. 679,
per Rolfe, B.
{a) Thus, where the administrator letters of administration are not even
leases lands which he holds as admini- prima facie evidence of death. Insniance
Btrator, he may sue for rent in his own Co. v. Tisdale, Sup. Ct U. S. 1875, 13
name. Yarborough v. Ward, 84 Ark. Alb. L. J. 82.
204. It has been held that the letters of ad-
When the will charges the executor ministration of another state are not suf-
with the collection of rent from the real ficient evidence of the character of the
estate, he can sue for such rent McDow- executor as executor, to allow liim to sue.
ell V. Hendricks, 71 Ind. 286. Moseby v. Burrow, 52 Tex. 896.
(6) Campbell v. United States, 18 Ct ((2)*The decree of a probate court, ap-
of CI. 108. An administrator must sue in pointing an executor or administrator,
his representative capacity for the negli- cannot oe attacked collaterally, except by
gent killingof his intestate. Denver, &c. proving that it is void, as for want of
K.R. Co. «. Woodward, 4 CoL 1. jurisdiction, for fraud, or that it is a for-
• (e) Pick V. Strong, 26 Minn. 808; gery; it cannot be attacked for irregularity,
Davis V. Swearin^n, 56 Ala. 81. The e, g. because issued on petition of one not
plaintiff's declaration need not set out the interested in the estate. Pidc v. Strong
probate of the will and qualification of the 26 Minn. 808. The decrees of a probate
executor in full, but it must allege that court, as to the appointment of an adminis-
they were had in the probate Court trator, made in the exercise of its juriv
Hurst v. Addington, 84 N. C. 148. diction, are conclusive, in an action by the
It is onlv to support the executor's administrator against a stranger to recover
right to sue, however, that these are prima a debt due to the intestate. Emery o.
fade evidence. If the claim is based on Hildreth, 2 Gray (Mass.), 280. It would
the death of the testator, it must be seem that where a probate court has Juria-
proved otherwise. Thus, in a suit upon diction of the subject-matter, the vaudity
a policy of insurance^ where the death of its action can be tried only in the pio>
of the intestate is clearly in issue, bate court, or in the appellate court sitting
PABT IT.] EXEGUTOBS AND ADMINISTRATORS. 889
any time previous to the declaration, it is sufficient, for the probate
relates back to the death of the testator.^ The same principle
governs in the case of an administrator; whose title though it
does not exist imtil the grant of administration, relates back to
the time of the death of the intestate, so as to enable him to main-
tain an action for an injury to the goods of the intestate, or for
the price, if they have been sold by one who had been his agent.^
But the defendant may show that the probate itself, or the letter
of administration, is a forgery;* or that it was utterly void, for
want of jurisdiction over the subject, by the court which granted
it ; ^ (a) whether because the person was still living, or because
he had no domicile within the jurisdiction of the court, where this
is essential ; ^ or for any other sufficient cause.
§ 840. Same aubjeot. The plaintiff's character as adminUtrator
may also be shown by an exemplified copy of the record of the
grant of the letters, or by a copy of the book of acts or original
minutes of the grant, as has already been stated.^ (6) If letters
of administration have been granted to the wrong person, they
are only voidable, and liable to be repealed ; but if granted by
the wrong court, they are void.
§ 841. When there are aeveral ezeoutora. Where the plaintiff
is bound to prove his representative character of executor, under
the general issue, as part of his title to sue, and it appears that
there are several executors^ some of whom have not joined in the
suit, it is fatal, though all have not proved the will ; unless they
have renounced the trust.^ And where the plaintiff sues as ad-
> Smith V. Milles, 1 T. R. 476, 480 ; WooUey v. Clark, 6 B. & Aid. 744 ; Wank-
foid V, WsnkfoTd, 1 Salk. 299, 801, 806, 807; Loyd v. Finlayson. 2 Esp. 664; 1 Com.
Dig. 840, 841, tit Administnition, B, 9, 10 ; Dublin v. Chadboura, 16 Mass. 488.
The probate will be preaumed to have been rightly made. Brown v. Wood, 17 Mass.
68, 72 ; ante, vol. i. § 660.
« FoRter V, Bates, 12 M. & W. 226 ; Tharpe «. Stallwood, 6 Scott, N. B. 716.
• Bull. N. P. 247 ; Chichester v. Phillips, T. Raym. 406.
• Bull N. P. 148, 247 ; Noell v. Wells, 1 Lev. 286, 286 ; Emery v. Hildreth, 2
Gtat, 280.
^ Hairard College v. Gore, 6 Pick. 870. • Ante^ voL L § 619.
7 Hunt V, Stokes, 4 T. R. 666, per Buller, J.
as the supreme court of probate. Ibid. (a) But this want of jurisdiction must
Sec also Bellingeri?. Ford, 21 Barb. (N.Y.) be apparent on the record. McFeely v,
811 ; Duson v. Dupre, 82 La. An. 896. Scott, 128 Mass. 16.
So, the sufficiency oi the bond cannot be (6) So certified copies of the letters
collaterally impeached. Huntingdon v. testamentary, and his bond, are eyidence
Moore, 1 New Mez. 489. But the /act of of his appointment, without the will or
such appointment, not its regulariiy^ may probate thereof. Wittman v. Watry, 46
be disputed in a collateral proceeding. Wis. 491.
Denyer, &c Ry. Co. v. Woodward, 4 CoL L •
840 LAW OF EVIDBarCE. [PAST IT.
ministrator de b<mi$ non^ it is sufficient to prove the grant of
administration to himself , which recites the letters granted to the
preceding administrator, without other proof of the latter.^
§ 842. statute of Umitattons. If the action is upon promises
made to the deceased, to which the statute of limitations is pleaded,
the declaration, according to the English practice, will not be
supported by evidence of a new promise made to the executor or
administrator ; but in the American courts this rule is not uni-
versally recognized ; and where the plea is actio nan aocremt if^ra
sex annoSy the weight of argument seems in favor of admitting the
evidence.* (a) In both countries, leave will be granted to amend
the declaration by adding a new count on a promise to the ex-
ecutor.
§ 848. Bxooutor M defendant. If the defendant is sued as
eoi>ecutor^ his representative character may be shown, either by
the evidence already mentioned as proof of that character in the
plaintiff,^ or by proof of such acts of intermeddling in the estate
as estop him to deny the title, constituting him what is termed
an executor de son tort* Very slight acts of intermeddling have
formerly been held sufficient for this purpose ; but the material
fact for the jury to find is, that the party has intruded himself
1 Catherwood v. Chabaad, 1 B. & 0. 165.
■ 2 Saund. 68, f. g., note by Williams. In Green (or Dean) v. Crane, 2 Ld. Raym.
1101, 6 Mod. 809, 1 Salk. 28, which ia the leading case on this subject, the plea was
non assumpsit infm sex awiyos^ and to thia iasne it was held, that the evidence of a new
promise to the executor would not apply. So in Hickman v. Walker, Willes, ^. In
Sarell v. Wine, 8 East, 409, Jones v. Moore, 5 Binn. 678, and Beard v. Ck>wman, 8
Har. k, McHen. 162, the form of the issue is not stated. In Fisher v. Duncan, 1 Hen.
& Mnnf. 568, and in Qoaiies 9. littlepage, 2 Hen. & Munf. 401, the action was against
the executor ; and the point in question was therefore not before the court On the
other hand, in Heylin 9. Hasting Carth. 470, it was held, upon the issue of fum as*
sumpsU infra sex armoSy that evidence of a new promise to the executor within six
years was admissible, as well as sufficient, to take the case out of the statute. And
such also is the practice in Massachusetts, and in Maine. Baxter v. Penniman, 8
Mass. 188, 184 ; Emerson v, Thompson, 16 Mass. 428 ; Brown v. Anderson, 18 Mass.
201 ; Sullivan v. HoUter, 15 Mass. 874. Where the issue is acHo mm aeerevU infra sex
annos, the technical reason for not admitting evidence of an acknowledgment or prom*
ise to the executor entirely fails ; and, indeM, in any case, a promise to the executor
amounts only to an admission that the debt due to the testator has never been paid,
but is still subsisting, and therefore is not barred by the statute of limiUtions. See 6
Binn. 582, 588, per Breckenridge, J. ; Angell on Limitations, [§ 268, 6th ed.].
* After notice to produce the probate of the will, an office-copy and an extract from
the act-book have been held admissiblet without proof that the probate was in the de-
fendant's possession, or of the signature of the registrar. Waite v. Gale, 9 Jur. 782.
{a) A new promise by an executor, which and founded on assets, will bind the ezee*
revives a debt barred by the statute of ntor personally. Oates «. LQly» 84 N. 0*
limitations, will not bind the estate, but 648.
if made on consideration and in writings
PABT lY.] EXECUTOBS AND ADBOMISTBATOBS. 841
into the office of executor ; and this may well be inferred from
SDch acts as are lawful for an executor alone to do, such as taking
and claiming possession of the goods of the deceased, or selling
them, or converting them to his own use ; collecting, releasing,
or paying debts; paying legacies; or any other acts evincing a
claim of right to dispose of the effects of the deceased. But if
the acts of mtermeddling appear to have been done in kindness,
merely for the preservation of the goods or property, or for the
sake of decency or charity, such as, in the burial of the dead, or
the inomediate support and care of his children, or in the feeding
and care of his cattle ; or, as the servant of one having the actual
custody of the goods, and in ignorance of his title ; or, in execu-
tion of orders received from the deceased as his agent, in favor
of the vested rights of a third person ; or the like, — the party
will not thereby be involved in the responsibilities of an executor-
ship.^ (a) So, if he, in good faith, sets up a colorable title to the
possession of the goods of the deceased, though he may not be
able to establish it as a completely legal title in every respect, he
will not be deemed an executor de son tort? And in all these
cases the question, whether the party is chargeable as executor
de son tort, is a mixed question of law and fact, similar to the
question of probable cause, in an action for a malicious prosecu-
tion, the province of the jury being only to say whether the facts
are sufficiently proved.*
§ 344. Plea of ne imqaes ezeontor. If the defendant would
controvert the fact of the representative character, this is done
1 Williams on ExecntoTS, pp. 18e-146 ; 1 Dane's Abr. c 29, art 6 ; Giyensr. Hig-
ffins, 4 McCord, 286 ; Toller on Executors, pp. 87-41. Bat if the agent, after the de-
cease of his principal, continues to deal with the property on his own responsiWlity, or
as the agent of another, he may he charged as executor. Cottle v. Aldnch, 4 M. & S.
175 ; s/c. 1 Stark. 87 ; Turner v. Child, 1 Dever. 881. See also Mitchell r. Lunt, 4
Mass. 654. 658 ; Hobby v. Ruel, 1 C. & K. 716. So, if the agent continues to act as
such, after the death of his principal, and in the belief that he is still alive, he has
been held liable to a creditor of the deceased, as executor demmtort. White ». Maun,
18 ShepL 861.
« Femings v. Jarratt, 1 Esp. 886; Turner v. Child, 1 Dever. 25. The party who
knowingly receives goods from an executor dt am tort, and deals with them as his own,
does not himself thereby become an executor dt son tort, Paull ». Simpson, 9 Ad. &
£1. K. B. 865.
> Padget V. Priest, 2 T. B. 99, per Buller, J.
(a) So, where a man died, leaving no die wae not held as executor de eon tort,
property except some wearing-apparel, and Taylor v, Moore, 47 Conn. 278. The
his widow paid out of her own money his property must be such as would oonsti-
doctor's bills and funeral expenses, and tute assets in the hands of a regularly ap-
gave his brother a suit of clothes of less pointed executor. Qoff «. Cook, 78 Ind.
value than the amount she had expended, 851.
842 LAW OF KYIDENCE. [PABT lY.
by the plea of ne unques executor, or adminiBtrator ; iu which
case the burden of proving the affirmative is on the plaintiff, who
must prove, not only the appointment of the defendant to that
office, but that he has taken upon himself the trust; and this
may be by his proving the will, or taking the oaths, and giving
bond, or, if he is charged as executor de son tort^ by proving acts
of intermeddling with the estate. The plaintiff should always
take the precaution, where this plea is pleaded, to serve the de-
fendant with notice to produce the letters testamentary, or letters
of administration, at the trial, they being presumed to be in his
possession ; in order to lay a foundation for the introduction of
secondary evidence.^ He must also give some evidence of the
identity of the party with the person described in the letters as
executor or administrator. If the evidence shows the defendant
liable as an executor de ion tort^ by intermeddling, he may dis-
cliarge himself by proof that he delivered the goods over to the
rightful executor before action brought, but ijot afterwards;* or,
that he subsequently took out letters of administration, and has
administered the estate according to law.^ If he has received
the money of third persons, a%%umpnt for money had and re-
ceived will lie against him, without declaring against him as
executor.*
§ 845. Bffeot of plea ne unqoes. By pleading ne unqueB executor^
the defendant, if the issue is found against him, will be charged
with the whole debt ; ^ without being allowed to retain the amount
of a debt due from the deceased to himself, even if it is of a
higher nature, and he has the assent of the rightful executor, after
action brought.^ But an executor de %(m tort is, in general, liable
to creditors only for the amount of the assets in his hands at the
time of the action ; (a) and, therefore, if he pleads plene admini^
1 2 Sannd. on Plead. & Evid. 511, 612; 2 Staiic. Evid. 820; Doo^ v. Forrest, 4
Bing. 686, 704; Atkins r. Tredgold, 2 B. & C. 28, 80; Cottle v. Aldrich, 4 H. & S.
175. Sed qtujBre as to this presumption; and see Waite v. Gale, 2 Dowl. & Lowndes.
925; 9 Jar. 782.
3 Curtis V. Vernon, 8 T. R. 587; Yemon v. Curtis, 2 H. BL 18; Andrews v. Gslli-
son, 15 Mass. 825.
< Shillaber v. Wyman, 15 Mass. 822; Andrews v. Gallison, Id. 825.
* Waite p. Gale, 9 Jur. 782; 2 Dowl. & L. 925.
* Anon., Cro. El. 472; MitcheU «. Lunt, 4 Mass. 658; Hoix 49 5, n. by WiDiams;
Bull. N. P. 144. » / »
* Ireland v, Coalter, Cro. EL 680; Curtis «. Vernon, 8 T. R. 587; 2 H. BI. 18.
(a) By statute in Iowa he is liable for and ten per cent interest thereon. G«ff
the assets which have oome into his hands «. Cook, 78 Ind. 851.
PABT 17.] EZBCUTOBS AND ADMINISIBATOBS. 348
travit^ he may give in evidence payment of the just debts of the
.deceased, to any creditors in the same or a superior degree ; ^ or,
as we have just seen, he may show that, before action brought,
he had delivered over the goods in his hands to the rightful ex-
ecutor or administrator.^ (a)
§ 346. Plea of plene adnUnistravlt If the plaintiff traverses the
plea of plene administravity in its material allegation of the want
of assets in the defendant's hands, the burden of proof will be on
the plaintiff to show that the defendant had assets in his hands
at the commencement of the action.^ (6) If the assets have come
to his hands since the pendency of the suit, this should be specially
replied, or the proof will not be admissible.^ If the action is debtj
the plea of plene administravit is an admission of the whole debt,
which therefore the plaintiff will not be bound to prove ; but if
the action is assumpsit^ this plea is only an admission that some-
thing is due, but not the amount ; and therefore the plaintiff must
come prepared to prove it *
§ 347. AMeto. The fact of (uaets in the hands of a defendant,
executor, or administrator, may be shown by the inventory re-
turned by him under oath, pursuant to law ; which devolves on
him the burden of discharging himself from the items which it
contains.® So, if he has repeatedly paid interest on a bond, or on
a legacy, this is prima facie evidence of assets.^ So, if he has
1 MotuitfoTd V. Gibson, 4 East, 441, 445; Toller, Ex'rs, p. 474. And it seems that
he may make his defence even against the rightful administrator. Weeks v. Qibbs, 9
Haas. 74, 77.
Anon., 1 Salk. 818; Hob. 49 &, n. by Williams; Cnrtis 9. Yemon, 8 T. R. 687;
Vernon v. Curtis, 2 H. Bl. 18; Andrews v. Gallison, 15 Mass. 825.
> Bentley v. Bentley, 7 Cowen, 701. And see Fowler v. Sharp, 15 Johns. 828; 2
Phil. Evid. 295.
* Mara v. Quin, 6 T. B, 1, 10, 11.
* Bull. N. P. 140; Sannderson v, Nieholl, 1 Show. 81; Shelley's Case, 1 Salk. 296.
* Weeks v. Gibbs, 9 Mass. 74; Bull. N. P. 142, 148; Hickev v, Hayter, 1 Esp. 818;
8. c. 6 T. R. 884; Giles v. Dyson, 1 Stark. 82. But the schedule or inventory offered
by the executor in the Ecclesiastical Court, for the purpose of obtaining nrobate, is
not generally any eyidence that he has received the effects therein mentioned. Steam
«. Mills, 4 B. & Ad. 657.
7 Corporation of Clergymen's Sons v. Swainson, 1 Yes. 75; Cleverly v. Brett, 5 T.
(a) When one collected certain notes cuiminitlravU, or no assets, the plaintiff,
due the estate, and applied the proceeds in Maine, may have judgment for assets
to payment of debts due by the estate, and when they shall come into the hands of the
it appeared that the estate had suffered no administrator. Brown v, Whitraore, 71
harm, he was held not liable to the execu- Me. 65. When an executor takes, as as*
tor for conversion of the notes. Portman sets, goods which belong to a third party,
«. Klemiah, 54 Iowa, 198. So if he shows he is liable to him as executor. Simpson
that the assets were applied as they would v. Snyder, 54 Iowa, 557.
be in regular administration. Brown v. {b) McKeithan «. McGill, 88 N. C.
Walter, 58 Ala. 310. If the plea is plene 517.
844 LAW OF EYIBENCB. [PABT lY.
given his own promissory note for a debt of the deceased.^ So,
if he has submitted to arbitration, without protesting at the time^
against its being so taken.^ So, if he confess judgment, or suffer
it to go by default, or it be rendered against him on demurrer to
the declaration ; or, if he plead a judgment, without ayerring that
he has no assets ultra; or plead payment without also pleading
plene adminUtravit^ — this is an admission of assets, and may be
used against him in a subsequent action on the judgment, suggestr
ing a deva%tamt.^ But an award in favor of the estate is no
evidence that the executor has received the money ;^ nor is a
judgment assets, until the amount is levied and paid.^ (a) And
if there are several executors, and some are shown to have assets
in their hands, and others are not, the latter will be entitled to a
verdict.^
§ 847 a. Devastavit A devastavit may be proved by evidence
of any act of direct abuse, by the executor or administrator, of the
funds intrusted to his management, such as selling, embezzling,
or converting them to his own use ; or by releasing a claim with-
out payment, or selling property below its known value ; or by
improperly submitting a claim to arbitration or improperly com-
pounding a debt, having no authority by law so to do; or by
payment of usury; or the like; or by proof of any other act,
R. 8, n. ; CampbeU's Cose, Lofft, 68; Attomey-G^n. v, Higbam, 2 Y. & C. 634. But
it is not conclusi7e. Savage v. Lane, 6 Hare, 32; 17 Law J. Ch. 89; Postiethwaite «.
Monnsey, 6 Hare, 33 n. Whether the probate stamp on a will is adniissible, in Eng-
land, as prima facie evidence of assets m the hands of the executor to the amount in-
dicated by the stamp, is not clearly agreed. See Foster v. Blakelock, 6 B. & C. 828;
Curtis V. Hunt, I C. & P. 180; Steam o. Mills, 4 a & Ad. 647; Mann «. Lang, 8 Ad.
%b £1. 609.
1 Bank of Troy v. Hopping, 13 Wend. 675; Holland v. Clark, 2 T. & C. 819.
> Barry v. Rush, 1 T. R. 691; Worthington v. Barlow, 7 T. R. 458; Riddle o. Sut-
ton, 5 Bing. 200. But see Pearson v. Henry, 6 T. R. 5, contra.
> Skelton v. Hawling, 1 WUa. 258; 1 Saund. 219, n. (8), by Williams; Roberts v.
Woods, 3 Dowl P. C. 797; Ewing v, Peters, 3 T. R. 685; Rock v, Layton, 1 Ld. Raym.
589, better reported in 3 T. R. 690-694, from Lord Holt's own notea.
* Williams v. Innes, 1 Campb. 364.
» Jenkins v. Plume, 1 Salk. 207.
6 Parsons o. Hancock, 1 M. & Malk. 880.
(a) Where there is suf&cient real estate the amonnt thus received is Mwtn of the
liable to be sold by due authority, to pay estate, to be accounted for and paid as aa-
aU debts, legacies, and charges, the pro- sets. Fay «. Taylor, 2 Gray, 160. Sahur
ceeds of which when sold would be assets, roted to a person after his decease, and
and the owners of the estate, to prevent paid to his ezecntor, is assets of the esute,
the sale, offer to pay the amount in money, to he accounted for by the ezecntor. Lor*
to pay which it is proposed to be sold, and ing v. Cunningham, 9 Gush. (Ums.) 87.
such offer is accepted and the money paid, Bee also Wheelock v. Pieroe, 6 Id. 288 ;
especially if done with the approbation of Foot «. KnowleSv i Met. (Man.) 586«
the Court giving leave to sell the same^
PABT IT.] EXECUTORS AlH) ADMINI8TBAT0BS. 845
showing mal-administratioii or negligence, whereby a loss or de-
terioration of assets has ensued.i^ (a)
§ 848. Defence under plene adnUnistravlt. Under the issue of
plene administravitt the defendant may rebut the proof of assets,
by showing that he has exhausted them in the payment of other
debts of the deceased, not inferior in degree to that of the plain-
tiff, before the commencement of the action.^ And if debts of an
^ See Toller, Ex'r, bu 3, c. 9; 8 Bac. Abr. tit. Executors and Administrators, L; 2
Eenti Comni. 416, notes (a), (a), 5th ed. And see Cooper v. Taylor, 8 Jnr. 450;
Stroud V. Dandridge, 1 C. & K. 445.
* 6 T. R. 888, per Lawrence, J.; Smedley v. Hill, 2 W. BL 1105. In the United
States, proYision is made by statutes for the settlement of InAolvent estates, by a liqui-
dation of all the claims, and a pro rata distribution of the assets. The application of
the plea plene administravU to such cases is thus stated bv Mr. Justice Story: " It does
not appear to me, that, upon princinle, any special plea of plene administravit is neces-
sary, where tiie assets have been in fact paid accordiuf^ to the directions of the statute
of insolvency; for if the assets are rightfully applied, the mode is matter of evidence,
and not of pleading. A special plene administravit can only be necessary, where the
adminis-trator either admits assets to a limited extent, or he sets up a right of retainer
for the payment of other debts, to which they are legjally appropriated, or he has paid
debts of an inferior nature, without notice of the plaintiff's claim. And so is the doc-
trine of the common law, according to the better authorities. In the next place, it
seems to me that there mav be cases where the estate may be insolvent, and yet the ad-
ministrator would not be bound to procure a commission, and proceed under the stat-
ute of insolvency. If, for example, the assets were less than the privileged or priority
debts, a commission of insolvencv would be utterly useless to the other creditors; and
surely the kw would not force the administrator to nugatory acts. In such a case, it
seems to me that a general plene administravit would be good, if the administrator had
in fact applied the assets in dischar»9 of such debts. If he had not so applied them,
then he might specially plead these debts and no assets ultra. Oilier cases may be put
of an analogous nature, and unless some stubborn authority could be shown, founded
in our local jurispnidence (and none such has been produced), I should not be bold
enough to overrule what I consider a most salutary doctrine of the common law. Judg-
ments, bonds^ and some other debts at the common law, are privileged debts, and are
entitled to a priority of payment. And yet, if the administrator have no notice, either
aotuflil or oonstraetive^ ot such privileged debts, he will be jusUfied in paying debts of
an inferior nature, provided a reasonable time has elapsed after the decease of the
intestate. And in principle, there cannot be any just distinction, whether such pay-
mant be voluntary or compulsive. But in such case, if he be afterward sued for such
(a) So where he distributes the estate from the distribatees. Davis v. Van Sands,
to the legal heirs before the time allowed 45 Conn. 600.
hj statute for the creditors to put their An executor does not commit a waste
cbims in. Fleece v, Jone^ 71 Ind. 840. bv failing to keep the fund separate from
But not if he waits that time, and then, his own monev and earm«-kea, unless he
without notice of any claims affainst the fails to meet his liabilities to the estate,
estate, distributes it. Crane v. Moses, 18 State v, Cheston, 51 Md. 852: Kirby v.
a C. 561. State, Id. 888. Cf. Adair v. Brimmer, 74
So if by his negligence a debt becomes N. Y. 589.
uncollectible. Coco's Succession, 82 La. The burden of proving a devastavit is
An. 825; Tanner v. Bennett, 88 Gratt on the party alleging it The personal
(Ya.) 251. representative of the deceased, in aceount-
But an executor who distributes an es- ing, is not obliged to show diligence in
tate, under order of a probate court, and collecting a debt, until those objecting to
without knowledge of a claim which had the account have shown evidence of negli-
not yet accrued, is not liable for a devas- cenoe. Bitter's Estate, 11 Phik. <Pa.) 12;
tevity becaose he did not require a bond Johnson's Estate, Id. 88; Kirby v. State,
61 Md. 888.
846 LAW OF EVIDENCE. [PABT IT.
inferior degree have been paid before the commencement of the
action, or if debts of a superior degree have been paid while the
action was pending, this also may be shown under a special plea ;
but in the former case, it must be averred and proved that the
payment was made without notice of the plaintiff's claim.^ By
the common law, an executor or administrator will be presumed
to have notice of judgments of a court of record, and all other
debts of record ; but of other debts, actual notice must be proved.^
Where plene administravit is pleaded to an action of debt on bond,
the defendant must prove that the debts paid were due by bonds
sealed and delivered, or that they were of higher degree, and en-
titled to priority of payment ; but where this issue arises in an
action for a debt due by simple contract, it is sufficient to prove
the prior payment of a debt of any sort, without proof of the
instrument by which it was secured; for it is a good payment
in the course of administration.^ In either case, the creditor is a
competent witness, to prove both the existence of his debt and
the payment of the money ; ^ but where the debt is said to have
been due by bond, which has been destroyed, it has been thought
that the attesting witnesses, or some other evidence of the existr
ence of the bond, ought to be produced.^
§ 349. Same anbjeot. Under this issue, the defendant, by the
common law, may in certain cases give in evidence a retainer of
assets to the amount of a debt of the same or a higher degree,
due to himself ; ® or, to the amount of the expenses of adminis-
tration, for which he has made himself personally responsible;^
or, to the amount of debts of the same or a higher degree, which
privileged debt, he cannot plead plens adminiairavU, generally, bat is bonnd to aver,
that he had fuUy administered before notice of such debL" United States v. Hoar, 8
Mason, 817, 818.
1 Sawyer v. Mercer, 1 T. R. 690; Anon., 1 Salk. 153; Toller, Ez'r, 269. But where
the executor, more than a year after the decease of the testator, had paid all the debts
and legacies, and paid over the remainder of the estate to the residuary legatee, with-
out notice of any other claim, this was held admissible and sufficient, under the pUns
odministraviL Qov., &c. of Chelsea Waterworks v, Cowper, 1 Esp. 275, per Ld.
Kenyon.
> 1 Com. Dig. 852, tit Administration, G, 2; Dyer, 82 a. By statute 4 & 5 W. & IL
c 20, aU judgments not docketed, or abstracted and entered in a book kept for thatpoi^
pose, are reduced to the footing of simple contract debts. Hickey «. Uayter, 6 lC R.
884; Toller, Ex'r, 268.
* Bull N. P. 143; Saunderson v. Nicholl, 1 Show. 8L
« Bull N. P. 148; Kingston v. Gray, 1 Ld. Kaym. 745.
* Gillies V. Smither, 2 Stark. 528; aiUe, vol. i § 84, n. 2, act ealc
* BuU. N. P. 140, 141; Co. lit 288 a; Plumer v. Maichant, 8 Boir. 1880; 1 SmumI.
888, n. (8), by Williams.
T GiUies v. Smither, 2 Stark. 628.
PART lY.] EZECUTOBS AND ADMINISTRATORS. 847
he has paid out of his own money, before the commencement of
the action.^ But if the payment was made to a co-executor, to
be paid over to the plaintiff, which he has not done, it is no
defence ; the receiver being in that case made the agent of the
defendant himself, and not of the plaintiff.^ But in most of the
United States, the right of an executor or administrator to retain
for a debt due to himself, or for moneys which he has paid for
expenses of administration, has been qualified by statutes, not
necessary here to be stated ; so that, ordinarily, he cannot retain
for his own debt, until it has been proved and allowed in the
court where the estate is settled, and then only under its decree,
upon the settlement and allowance of his account of adminis-
tration.
§ 850. Flea of retainer. In order to sustain the claim of retaii%er^
it is necessary for the party to show that he has been rightfully
constituted executor or administrator ; and for this cause, as well
as to prevent strife among creditors, an executor de son tart cannot
retain for his own debt, even though it be of higher degree, unless
he has since duly received letters of administration. But under
the plea of plene administravit^ he may 'show that he has paid
other debts, in their order ; or that, before action brought, he had
delivered all the assets in his hands to the rightful executor or
administrator.^
§ 351. Special pleas. If the defendant would give in evidence
the existence of outstanding debts of a higher nature^ entitled on
that account to be preferred, but not yet paid, he can do this only
under a special plea. If the debts are due by obligations already
forfeited, the penalties are ordinarily to be taken as the amount
of the debt ; unless, by a proper replication, it is made to appear
that the penalty is kept on foot by fraud. But if the obligation
is not yet forfeited, the sum in the condition is to be regarded as
the true debt, and assets can be retained only to that amount;
for the executor, by payment of this sum, may save the penalty ;
and if he does not, it will be a devastavit^ In these cases, when
^ Bull. N. P. 140; Smedley v, HUl, 2 W. BL 1106.
s Croese v. Smith, 7 East, 246, 258.
» Bull. N. P. 148; Chitty's Prec. p. 801 ; Curtis v. Vemon, 8 T. B. 687, 690; Anon.,
1 Salk. 813; Oxenham v. Clapp, 8 B. & Ad. 809.
« United States v. Hoar, 2 Mason, 811; Bull. N. P. 141; 1 Sannd. 888, notes (7),
(8), by Wmiams; Id. 884, n. (9); Parker v. Atfield, 1 Salk. 811. If a bond creditor,
after forfeiture, would haye taken less than the ^nalty, and the executor had assets to
the amount required, which he did not pay, it is eyidence of fraud. Ibid. And if a
848 LAW OF EYIDBNGB. [PABT 17.
the defendant seeks to retain the assets, in hia hands to meet debtiis
of a higher nature, whether oj bond or. judgment, though the plea,
in point of form, contains an averment of the precise value of the
goods in his hands, yet the substance of the issue iB, that the
value of the goods, whatever it be, is not greater than the amount
actuallj due on the bond or judgment.^ And where an outstand-
ing judgment is pleaded, with a replication of per fraudem^ the
judgment creditor is not a competent witness for the defendant to
disprove the fraud.^ If several judgments or debt49 are pleaded,
and the plea is falsified as to any of them, the plaintiff will be
entitled to recover.^
§ 852. Admission by one of seveml ozaoutonk Where there are
several executors or administrators, an admission by one of them
that the debt is still due is held not sufficient to enable the plain-
tiff to recover against the others ; though it may be properly
admissible, as a link in the chain of testimony against them>
Nor is such admission by one sufficient to take the case out of
the statute of limitations aa to aU.^
judgment is confessed for more^ than is actnally dae, this is prima facie evidence of
fraud; but the defendant may relmt it by proof that it was done by mistake. Pease
V. Naylor, 5 T. R. 80.
1 Moon V. Andrews, Hob. 188; 1 Saund. 888, n. (7)» by Williams.
* Campion v. Bentley, 1 Esp. 848.
> Ibid.; Bull. N. P. 142; Parker v. Atfield, 1 Salk. 811; 1 Ld. Raym. 678. But
see 1 Saund. 847, n. (1), by Williams.
^ James v, Hackley, 15 Johns. 277; Forsyth v. Ganson^ 5 Wend. 558; HMnmrtn
V, Huntley, 4 Ck)wen, 498.
* TuUock V. Dunn^ By. ft M. 416; cmU^ toL i § 176. But see Hammon «. Hunt-
ley, 4 Cowen, 498.
PIBT IT.] HBEB* 849
HEIR.
§ 853. Bvid«noe of hotnhip. The rules of evidence, applicable
to the proof of pedigree in general, having been considered in the
preceding rolnme,^ the present title will be confined to the evi*
dence of heirship, where this fact is particularly put in issue, as
the foundation of a claim of right, or of liability.
§ 854. Bams aubjeot Where A claims as the heir of B, it will
be necessary to establish, first, affirmatively, their relationship
through a common ancestor ; and, secondly^ negatively, that no
other descendant from the same ancestor exists, to impede the
descent to A. Thus, in ejectment, where it was incumbent on
Uie lessor of the plaintiff to prove that a younger brother of the
person last seised, from whom he deduced his title, was dead,
without issue, the testimony of an elderly lady, a member of the
family, that the younger brother had many years before gone
abroad when a young man, and according to repute in the family
had died abroad, and that she never had heard in the family of
his having been married, was held pHma facie evidence of his
having died without issue.^ But where the death is only proved
in such case, without some negative proof of the existence of
issue, it is not sufficient; the plaintiff being bound to remove
every possibility of title in another, before he can recover against
the person in possession.^ (a) Thus, also, if it were requisite to
1 See code, toL i. {{ 108-107, 181-184. > Doe v. Griffin, 15 East, 298.
* Richards «. RichanLs, 15 East, 208, n.
(a) By statute in meet of the United waired her right to it, so as to make him
States, the laws of descent byprimoffeni- the only claimant. Schneider v. Piessner,
tare, as they existed at common ]aw, have 54 Ind. 524.
been abrogated, and several may be co-heirs, So where seyersl joined in claiming as
as, for instance, in those States where all heirs of a deceased person, and proTed tiiat
the children an heirs. In sach cases, ai- the deceased originally came from a cer-
though the mode of proof is somewhat tain pkoe in Irdand and that he often,
efattiged, yet the principle remains, that among Ms Inends, had apoken by name of
anjrone who asserts that he and others are his father and brothers, naif-brothers, and
heirs most prove that others who might a sfster, as still residing in that place, and
also be heirs are not the claimants then prored that tneir fiither
Thns, where one snes as heir, he nrast Hved in the same locality, that it was com-
■hmr that the widow of the ancestor, tf mon im>ate in their family that they had
she is by law a co-heir, has either receired an uncle in America of the same name as
the share to which she is entitlad or has the deeeased, that their fSather had broth-
860 LAW OP BVIDBNCB. [PABT IV.
establish the title of A, as heir-at-law to his cousin-german, B, it
would be necessary to prove the marriage and death of their
common grandparents, and of their respective parents, through
whom the title was deduced ; that these were the legitimate chil-
dren of the common ancestor ; and that A and B were also the
lawful issue of their parents ; with evidence to show that no other
issue existed, who would take the preference to A. But in
charging one as heir, general evidence of heirship will be suf-
ficient to be adduced on the part of the plaintiff, it being a matter
more peculiarly within the defendant's own knowledge.^ Thus, if
he is in possession of the property of the deceased, or has received
rents from his tenants, it is to be presumed that he claims them
as heir.*
§ 355. Death. After a long lapse of time since the death of one
who might have been entitled without any adverse claim, it may
be presumed that he died without issue.^ The fact of the death
of a party, but not the time of it, will be presumed after the
expiration of seven years from the time when he was last known
to be living.^ (a) And it may be inferred from the grant of letters
of administration on his estate, in the absence of any controlling
circumstances ; since it is not the course to grant administration,
without some evidence of the death.^ (i)
§ 856. Liability of heir. The liabUit]/ of an heir generally arises
upon the obligation of the ancestor by deed, in which the heir is
expressly bound. He is liable, at common law, to an action of
debt on the bond of his ancestors, if specially named ;^ and in
England, by statute, to an action of covenant. The like remedies
1 See anU, vol. i. § 79. « Derisley v. Curtance, 4 T. R. 75.
» Doe V. Wolley, 8 B. & C. 22; b. o. 8 C. & P. 402.
^ Doe V. Jesson, 6 East, 85, per Ld. £lleiiborough ; ante, vol. L § 41. The tune of
the death is to be inferred from the circumstances. Doe v. Nepean, 5 B. & Ad. 86;
Bust V. Baker, 8 Sim. 443; supra, tit Death.
* See ante, voL i. § 550; Succession of Hamblin, 8 Boh. (La.) 180. Ante, § 339, n.
• Co. Lit 209 a.
ers, and a half-brother, and a sLster, and fident proof of the heirship of the claim-
that their names corresponded with the ants. Caddy v. Brown, 78 lU. 415.
names mentioned by the deceased, and (a) A mere fidlnre to hear from the
that the name of their paternal grand- heir at the residence of the ancestor, no in-
father corresponded with that of the father quiries haying been made at the place of
of the deceased, as giyen by him, and that tne heir's last known residence, is not
the claimants were the sole suryiving de- proof that the heir died without iasne after
scendants of their father, and that all his the lapse of aeyen years. McBee v. Cope-
brothers, sisters, and half-brothers were lin, Cir. Ct St Louis, Ma, 2 Cent L, J.
dead and had no descendants suryiying, it 818.
was held that these facts constituted a sof- (b) Bat see ante, § 839, n.
PAST IT.] HEQL 851
have also been given against devisees, by statutes. But the remedy
in effect is rather against the lands of the obligor, in the hands of
the heir, than against the person of the heir ; and it cannot be
extended beyond the value of the assets descended, unless the
heir, by neglecting to show the certainty of them, should render
himself personally liable.^ For if he should plead that he has
nothing. by descent, and the jiiry should find that he has any-
thing, however small in amount, the plea will be falsified, and
the plaintiff will be entitled to a general judgment for his entire
debt; whereas if he should confess the debt, and show the
amount of the assets in his hands, he will be answerable only
to this amount.^
§ 857. Xtotate a tnist fond. In the United States, the entire
property of the deceased, real as well as personal, constitutes a
tru%t fund for the payment of his debts. The modes in which
this trust is carried into effect are various, and are usually pre-
scribed by statutes, but in some States the forms of remedy are
left at common law. The general feature, that the personalty
must first be resorted to, is uniformly preserved ; and in several
of the States, the executor or administrator is empowered by
license from the courts, after exhausting the personal assets, to
enter upon and sell the real estate, whether devised or not, to an
amount sufficient to discharge the debts. Ordinarily, therefore,
in the first instance, the creditor must resort to the personal rep-
resentative, and not to the heir, for the payment of the debt ;
unless the cause of action, as in the case of a covenant of war-
ranty, not previously broken, did not accrue until all remedy
against the executor or administrator was barred by the statute
of limitations.^ (a)
1 2 Saund. 7 n. (4), by Williama.
« Ibid.; Plowd. 440; 2 Roll. Abr. 71; Buckley v. Nightingale, 1 Stra. 665. The
plea otnoneat factum^ if found against the heir, is not such a false plea as will render
him liable de bonis propriis, 2 Saund. 7, n. (4); Jackson v. RoseFClt, 13 Johns. 97.
• 4 Kent, Comm. 421, 422; Hutchinson v. Stiles, 8 N. H. 404; Webber v. Webber,
6 Greenl. 127; Royoe «. Burrell, 12 Mass. 396; Hall v. Bumstead, 20 Pick. 2; Roe p.
Swazey, 10 BarU 247.
(a) It has been decided in some States that it is enough to pro^e that the per-
that in an action of this sort brought sonal assets are insufficient to pay the
against an heir there should be proof debts. Blossom «. Hatfield, 24 Hun (N.
that the estate of the deceased has been T.), 275; Laughlin v, Heer, 89 lU. 119;
settled in the Probate Court Orow v. McLean v. McBean, 74 111. 184 ; Hinton
Dobbins, 128 Mass. 271; Woodfin «. An- «. Whitehurst, 71 X. C 66.
dnson, 2 Tenn. Ch. 881. The heir is not liable for debts con-
Bat the more general rale seems to be tracted by the administrator of the an-
852 LAW OF EVIDENCEL [PABT T7.
§ 858. Bale of land by aaBaoator. Wherever the executor or
administrator, by the statutes alluded to, is authorized to apply
to the courts for leave to sell the land of the deceased, for the
payment of his debts, the heir takes the land subject to that right
and contingency ; and when the land is thus sold, the title of the
heir is defeated, and he has nothing by descent, and may well
plead this plea in bar of an action, brought against him by a
creditor, upon the bond of his ancestor.^ (a)
§ 859. Plea of riens per descent. The plea of rien$ per descent
admits the obligation; but the proof of assets is incumbent on
the plaintiff. And the substance of this issue is, whether the
defendant had assets or not. The place, therefore, is not material
to be proved ; nor is it material whether the land was devised by
the ancestor, or not, nor whether it was charged with the payment
of debts or legacies, or not, provided the heir takes the same estate
which would have descended to liim without the will, its nature
1 Covel V. Weston, 20 Johns. 414. And see Gibson v, Farley, 16 Mass. 280.
oestor, in the coaise of administration, suit should be in equity. Hendricks «.
Alien V. Poole, 54 Miss. 323. Keesee, 32 Ark. 714.
When the action is against the heir, to (a) The heir is entitled to the rents
subject lands descended to him, to debts and profits of the land till the sale, and is
of the ancestor, a prenons judgment on not accountable for them to the creditors
suit brought against the executor by the of his ancestor. Draper «. Barnes, 12
heir on the same cause of action is not evi' R. I. 156; Hopkins v. Ladd, id. 279;
dence against the heir. Lehman v. Brad- Fredericks «. Isenman, 41 N. J. L. 212;
ley, 62 Ala. 31. Harrington v, Barfield, 30 lia. An. Pt IL
As between the creditors of the ancestor 1207. Where the land of one deceased is
and the creditors of the heir, it has been taken for a railroad, the heir, and not the
held that when the heir to whom lands administrotor, is entitled to the damages
have descended becomes insolvent, his for such taking, and to prosecute for the
creditors can only take what surplus re- recovery thereof, althougn the administra-
mains after his liability for debts of the tor has previously represented the estate
ancestor has been satisfied up to the value to be insolvent, and afterwards obtains
of the land descended. Ryan v, McLeod, a license to sell the intestate's real estate
32 Oratt. (Va.) 367. If the heir has for the payment of debts. Boynton v.
aliened the lands he is liable for their Peterboro', Ac. Ry. Co., 4 Cnsh. (Mass.)
value, that is, their value at the time he 467. The case was this : Oliver Page died
received them ; and he is not liable for intestate, seised of roal estate, leaving one
rents and profits, nor for increased value daughter, his heir-at-law. His whole real
arising from improvements which he has and personal estate was insufficient to pay
made on the land, neither can he deduct his debts. His administrator obtainea a
anything for repairs. Fredericks «. Isen- license to sell the real estate. After the
man, 41 N. J. L. 212; Hopkins v. Ladd, death of the intestate, but before the
12 R. I. 279. In any event the heir is license was obtained, the railroad corpora-
only liable to the extent of the value of tion filed the location of their road, by
the property which has come to him from which a part of said real estate was taken
the ancestor. Branger «. Lacy, 82 111. 91; for the railroad. The qnestton was^
Williams «. Erving, 31 Ark. 229; Saner «. whether the heir or the administrator
Griffin, 67 Mo. 654. In Arkansas it is should have the damages for the land
said that no action at law will lie against thus taken ; and the court held* that, as
an heir, for his ancestor's debt> bat the the ri^t to damages for land tak«i for
PART IV.] HEIR. 858
and quality not being altered by the devise.^ (a) But it is ma-
terial for the plaintiff, where he declares against the defendant as
the immediate heir of the obligor, to show that the assets came to
the defendant as heir of the obligor, and not of another person.
For where the obligor died seised of the lands, leaving issue, and
the issue died without issue, whereupon the lands descended to the
defendant as heir, not of the obligor, but of the obligor's son,
the plea of riens per descent directly from the obligor was held
maintained.^ And where the ancestor of the obligor died seised
of a reversion expectant on a lease for years, leaving the obligor
his heir, but no rent was paid to the obligor, the lands being sup-
posed to have passed to a stranger by devise from the ancestor ;
yet it was held, that the possession of the tenant was in law the
possession of the heir, and so the obligor was seised in fact, and
the land became assets in the hands of his heir, whose plea of
riene per descent from the obligor was therefore falsified.* But if
the intermediate heir was never seised, his successor in the same
line of descent would take as heir to the obligor, who was last
seised, and be liable accordingly.^ Under this plea, by the common
law, the heir might show that, prior to the commencement of the
suit, he had in good faith aliened the lands ; but this has been
changed by statute.* (6)
§ 860. Asseta. In proof of (MsetSy it wiU be sufficient for the
plaintiff to show that the defendant is entitled, as heir, to a rever-
sion in fee after a mortgage or lease for years ; or to a reversion
expectant upon an estate tail, provided the limitation in tail has
expired, and the' reversion has vested in possession, in the heir.
But a reversion after a mortgage in fee is not assets at law, though
1 Boll. N. P. 176; Allam v, Hebcr, 2 Stra. 1270.
< Jenks'8 Case, Cro. Car. 161 ; Kellow v. RowdeD, 8 Mod. 268; Chappell v. Lee,
8 Mod. 256; Dnke v. Spring, 2 Roll. Abr. 709, pi. 62.
* Bnshby v, Dixon, 8 B. & C. 298.
« KeUow V. Rovden, 2 Mod. 263; B. c. 1 Show. 244.
• 2 Smmd. 7, d. (4), by Williams; Bull N. P. 176.
public use accniea at the time of takinpr* heir was entitled to the damages. Ibid.
and as in the case of railroads that time is See also Wilson v, Wilson, 18 Barb.(N.T.)
prima facie, and in the absence of other 262 ; Vansyckle v. Richardson, 18 111.
proof, the time of tiling the location, and 171.
as the heir-at-law was seised and possessed (a) EUis v. Paige, 7 Cnsh. (Mass.) 161 ;
of the estate taken at the time of the tak- Gilpin v. Hollingsworth, 8 Md. 190; Back-
ing, subject only to be defeated by a sale, ley v, Bnckley, 11 Barbu (N. Y-M^*
not then made, nor authorized and licensed (b) Ticknor v, Harris, 14 N. H. 272.
by competent authority to be made, the
vou n. 28
854 LAW OF EVIDENCE. [PABT lY.
it is iu equity.^ A reversion expectant upon an estate for life is
also assets ; but it must be pleaded specifdlj.^ (a)
§ 861. Same sabjeot. Whether lands lying in a foreign 8tate
or country can be regarded as assets, so as to charge the heir is
a point not perfectly clear. In one American case it has been
decided that they were not. No reasons were given for the de-
cision ; but cogent arguments were urged by the learned counsel
for the creditor, showing that upon principle, as well as by analogy
of law, the heir was chargeable.' (J)
1 2 Saund. 7, n. {i\ by Williams ; Plimkett v. Penson, 2 Atk. 294; Boshbj v.
Dijcon, S B. & G. 298.
s BaU. N. P. 176; KeUow v, Bowden, S Mod. 258; 8. c. Garth. 126; Anon., Dyer,
878 (6).
' Austin V, Gflce, 9 Mass. 895. See Dowdale's Gase, 6 Go. 46; GoveU v. Weston,
20 Johns. 414. The referenoe in 1 Vem. 419, to Evans v. Ascough, Latch, 234, that
lands in Ireland were assets against the heir in England, but that lands in Scotland
were not, is erroneous; no such point being mentioned in that case, which was only
a question of chancoiy jurisdiction. The mistake has arisen from a mbpiint of and
for as.
(a) Where a person makes a deed which pear that by the laws of Ohio a descent of
conveys no estate, the land descends to his lands to an heir were assets which rendered
heir, who takes it unconditionally, and he him liable to the debts of his ancestor, the
is not obliged to restore the consideration heir was held not to be liable to a creditor
received by his ancestor. Flanders v, of his ancestor for the lands so descended
Davis, 19 N. H. 139. as assets. Brown v, Braahford, 11 B.
(6) Where land in Ohio descended to a Mon. (Ky.) 67.
resident in Kentucky, and it did not ap-
PABT IT.] INFANCY. 866
INFANCY.
§ 862. Infancy a penonal privilege. Infancy is a personal privi-
lege or exception, to be taken advantage of only by the person
himself ; and the burden of proof rests on him alone, even though
the issue is upon a ratification of his contract, after he came of
age.^ The trial by common law is either upon inspection by the
court, or, in the ordinary manner of other facts, by the jury ; but
in the United States the latter course only is practised.^
§ 868. Proof of age. The fact of the party^s age may be proved
by the testimony of persons acquainted with him from his birth ;
or, by proof of his own admisstana; for these are receivable, even
in criminal cases, the infant being regarded as competent to con-
fess the truth in fact, though he may lack sufficient discretion to
make a valid contract.^ (a) An entry of his baptism in the register
is not ft itself proof of his age ; but if it is shown to have been
made on the information of the parents, or others similarly inter-
ested, it may be admitted as a declaration by them ; and in the
ecclesiastical courts, it is strong adminicular evidence of minority.^
If the action is against the acceptor of a bill, the defendant upon
the issue of infancy must distinctly prove not only his real age,
but also the day on which he accepted the bill ; unless he is proved
to have been under age at the commencement of the action ; for
otherwise it does not appear that he was an infant at the time he
entered into the contract, the date of the bill not being even pre-
sumptive evidence of the time of acceptance.^
1 Borthwick v. CarratheTS, 1 T. B. 648 ; Leader v. Barry, 1 Esp. 25S; Jeone v.
Waid, 2 SUrk. 326.
s Silver «. Shelback, 1 Ball. 165.
• Haile «. Ullie, 8 HiU jN. Y.), 149; McCoon v. Smith, Id. 147; Mather *. Clark,
2 Aikens, 209. But his aamissions should be weighed cautiously, with reference to
his affe and understanding. State v. Guild, 6 Halst 168, 189, 190.
« Wihen v. Law, 8 &rk. 68; Burghart v. Aiigerstein, 6 C. & P. 690; Agg v.
Daries, 2 Phil. 845; Jeune v. Ward, 2 Stark. 826; Rex v. Clapham, 4 C. & P. 29. In
the United States, where Urths are required by law to be recorded, a copy of the
record ia U8ua]ly received as sufficient eyidence of the facts it recites, which it was the
officer^s dntr to record.
* Israel v. Aigent, 1 Chitt/s Prec. 814, n. (b) ; Blyth v. Archbold, Id.
(a) O'NeiU v. Read, 7 Ir. L. 484.
856 LAW OP EYIDENCB. [PABT IT.
§ 364. Infanoy as a defence. The defence of infancy^ to an
action of assumpsit, is avoided by showing, either (1) that the
consideration of the promise was neee%%arie% furnished to him;
or, (2) a ratification of the contract, bj a new promise after he
came of age. (a) Upon the issue of necessaries or not, when
specially pleaded, no evidence of minority is requisite, it being
admitted by the course of pleading. The burden of proving the
issue of necessaries is on the plaintiff.
§ 365. What are neoeMailee. Necessaries are such things as are
useful and suitable to the party's state and condition in life, and
not merely such as are requisite for bare subsistence.^ (i) And
of this the jury are to judge, under the advice and control of the
court.^(c) It has been held, that money lent to an infant, to
supply himself with necessaries, is not recoverable;' but if the
necessaries were previously specified and were actually purchased,
it seems that an action for the goods, as furnished by the plaintiff
through the agency of the infant himself, may be maintained.^
^ Peters v, Fleming, 6 M. & W. 42; Bni^ghart v. Angentein, 6 C. & P. 690; Wlitr-
ton V. Mackenzie, 5 Ad. & El. N. 8. 606, 611.
3 Ibid. ; Harrison v. Fane, 4 Jar. 508; 1 Scott, N. R. 287; s. c. 1 K. & G. 550;
Brayshaw v, Eaton, 5 Bing. N. C. 231; Peters v, Fleming, 6 M. & W. 42; Stanton v;
Wilson, S Day, 57; Beeler v. Youns, 1 Bibb, 519. If, upon the trial of this issue, any
part of the articles are proved to be necessaries, the evidence ought to be left to the
Jury. Maddox v. Miller, 1 M. & S. 788.
* Probart v. Knouth, 3 Esp. 472, n. ; BuU. N. P. 154. An infant is liable for sach
foods famished to him to trade with as were consumed as necessaries in his own family,
'uberville v. Whitehouse, 1 C. & P. 94.
« Ellis V. Ellis, 1 Ld. Raym. 344; 3 Salk. 197, pi. 11; 12 Mod. 197; Kariow v.
Pitfield, 1 P. Wms. 558 ; Earle v. Peale, 1 Salk. 386 ; Crantz v. Gill, 2 Esp. 472, n.
(1), by Mr. Day; Randall v. Sweet, 1 Denio, 460, per Bronson, J. It has been !«•
cently decided in New York, that money lent for the purchase of necessaries, and
actually so applied, may be recovered in an action for money lent Smith v. Oliphant,
2 Sandf. S. C. 306. Money advanced to procure his liberation from lawful arrest on
civil process is necessary. Clarke v. Leslie, 5 Esp. 38. An infant widow is bound by
her contract for the expenses of her husband's funeral, he having left no assets. Chap-
pel V. Cooper, 18 M. k W. 252. {d)
(a) It is not a sufficient answer to a (c) It is the province of the court to
plea of infancy in an action on a contract, determine whether the articles sued for are
tliat the infant fraudulently represented within the cLiss of necessaries, and it is
himself to be of full age. Merriam v. Cun- the proper duty of the jury to pass upon
ningham, 11 Cush. (Mass.) 40 ; Burley v, the questions of the quantity, quality, sad
Russell, 10 N. H. 184. theu* adaptation to the condition and
(b) '* It ^necessaries) is a flexible and wants of the infant. Merriam v. Cunning-
not an absolute term, having relation to ham, 11 Cush. (Mass.) 40. See Swift «.
the infant's condition in life, to the habits Bennett, 10 Id. 437.
and pursuii of the place in which, and ((i) So is an infant bride for legal ex-
the people among whom, he lives, and to penses in preparing a marriage settlemeot.
the changes in those habits and pursuits Helps v. Clayton, 16 C. B. n. s. 553. Or
occurring in the progress of society." an infant for defending him in a bastardy
By Thomas, J. Breed v. Judd, 1 Gray suit, if it is reasonable to defend. Bailcer
(Mass.), 458. v. Hibbaid, 54 N. H. 589.
PABT IV.] INFANCY. 857
And payments of wages to an infant, in order to purchase neces-
saries, have been held valid payments.^ (a) Begimentals for an
infant member of a volunteer military company ;^ and a livery for
a minor captain's servant;^ and a horse for an infant nearly of
age, advised by his physician to take exercise on horseback ; have
been held necessary^ (&) A chronometer, ordered by a lieutenant
in the navy, has been held otherwise.^ (<?)
§ 866. VHiat are not neoeMarieB. The evidence of necessaries
may be rebutted by proof that the party lived under the roof of
his parent, who provided him with such things as in his judgment
appeared proper ; ^ or, that he had already supplied himself with
the like necessaries, from another quarter ; ^ or, that a competent
allowance was made to him by his guardian for his support ; ^ or,
that he was properly supplied by his friends.^ It is ordinarily
incumbent on the tradesman, before he trusts an infant for ^oods
apparently necessary for him, to inquire whether competent pro-
vision has not already been made for him by others ; ^^ but there
is no inflexible rule of law, rendering inquiries into the infant's
1 Hedffley v. Holt, 4 C. & P. 104. « Contes «. Wilaon, 6 Esp. 162.
■ Hanaa v. Slaney, 8 T. R. 578.
* Hart V, Prater, 1 Jar. 628. Bat, generally, a horse is not necenary. Rainwater
V. Parhara, 2 Nott k McC. 624.
B Berolles v. Ramsay, Holt's Caa. 77. And see Cliarters «. Bayntam, 7 C. & P. 62.
• Borrinsale v. Greville, 1 Selw. N. P. 128; Bainbiidge v, Pickering, 2 W. Bl.
1825; Cook v. Beaton, 8 C. & P. 114.
' Bnrghart v. Angerstein, 6 C. & P. 690.
• Mortaiu v. Hall, 6 Sim. 465; Hurghart v. Hall, 4 M. & W. 727.
* Story V. Peiy, 4 C. & P. 526 ; Angell v. McLellan, 16 Mass. 81 ; Wailing v. Toll,
9 Johns. 141.
10 Ford V, Fothergill, Peake's Caa. 229; s. c. 1 Esp. 211; Cook t^. Beaton, 8 C. & P.
114.
(a) An infant is liable for money paid famished for horses owned hv a firm of
at his request by the plaintiff to a third which he was a member, thoagh the horses
person for necessaries famished the infant were employed in the naual busiaess of the
Swift V. Bennett, 10 Cash. (Mass.) 486. firm, and thoagh he was emancipated by
If one who is a surety on a note given by his father. Mason v, Wright, 18 Met.
an infant for necessaries pays the money, (Mass.) 806. Nor can he be held to pay
the infant mast reimburse him. Conn v. for repairs pat upon his dwelling-house
Cobura, 7 N. H. 868. Where a negotiable under a contract made by him, although
note is riven by an infant, the promisee, the repairs were necessary to prevent im-
if he bnngs an action thereon, may show mediate and serious injury to the house,
that it was given in whole, or in part, for Tupper v. Cadwell, 12 Met. (Mass.) 559.
necessaries, and may recover thereon as The board of four horsea for six months,
mnch as the necessaries for which it was the principal use of which by the infant
given were really worUi. Earle v. Reed, was in the business of a hackman, is not
10 Met (Mass.) 887. within the class of necessaries, although
{b) Wine suppers are not necessaries the horses were occasionallv used to carry
for Oxford nndeigradoates* Cripps v, his family out to ride. Merriam v, Oun-
Hilbi, 6 Q. B. 606. ningham, 11 Cush. (Maaa.) 40.
{c) An-iu£uit ia not liable for grain
858 LAW OF EVIDEKCE. [PABT lY.
Bituation and resources absolutely indispensable, as a condition
precedent to the right to recover.^ And the necessity for any
inquiry, where otherwise it would be incumbent on the trades-
man, may be done away by the conduct of the other parties ; as,
for example, if the goods were delivered with the knowledge of
the parent, and without objection from him.^
§ 867. Ratiflcation of oontraot. Upon the issue of a subsequent
ratification of the contract by a new promise^ the burden of proof
is on the plaintiff, the fact of infancy being admitted by the
pleadings. But proof of the promise is sufficient, without proof
that the party was then of full age.* The contracts and acts of
an infant are in general voidable, and capable of confirmation
when he comes of age ; those alone being treated as absolutely
void which are certainly and in their nature prejudicial to his
interest, (a) Thus, his negotiable promissory note, though for-
merly considered void, is now held voidable only ;* and his state-
ment of an account is also now held capable of ratification after
he comes of age.^ There is, however, a distinction between those
acts and words which are necessary to ratify an executory con-
tract and those which are sufficient to ratify an executed contract.
In the latter case, any act amounting to an explicit acknowledge
ment of liability will operate as a ratification ; as, in the case of a
purchase of land or goods, if, after coming of age, he continues
to hold the property and treat it as his own.® But, in order to
^ Brayshaw v. Eaton, 5 Bing. N. C. 281; 8. c. 7 Scott, 183; 8 Jar. 222.
« Dalton V. Gib, 5 Bing. N. C. 198; 8. c. 7 Scott, 117; 8 Jnr. 48.
s Hartley v. Wharton, 11 Ad. & El. 934; s. c. 8 P. & D. 589; Borthwick v. C^
mtherB, 1 T. R. 648.
* Goodsell V. Myers, 8 Wend. 479; Beed v. Batchelder, 1 Met. 559; Lawson v,
Lovejoy, 8 Greenl. 405; Fisher v. Jewett, 1 Barton (New Brans.), p. 35; Story on
Contr. § 38; Boody «. McEenney, 10 Shepl. 517.
« Williams v. Moor, 11 M. & W. 256, 265. An in&nt*s bond has been held ▼oida-
ble only, and not yoid. Conroe v. Birdsall, 1 Johns. Gas. 127; Fant «. Cathcart, 8
Ala. 725. But see eofUra, Baylis v. Dineley, 8 M. & S. 477; Hnnter v. Agnew, 1 Fox
& Smith, 15.
* Hubbard v, Cummings, 1 GreenL 11 ; Lawson v. Lovejoy , 8 GreenL 405; Dana
V. Goombs, 6 Greenl. 89; Chitty on Contr. p. 125 a; 1 Roll Abr. 781, L 45; Evelyn
V. Chichester, 8 Burr. 1719; TucKer v. Moreland, 10 Pet 75, 76; Jackson v. Carpenter,
11 Johns. 542; Boston Bank v. Chamberlain, 15 Mass. 220; Boyden v, Boyden, 9
Met 519; Armfield v. Tate, 7 Tred. 258; Van Dorens v. Everett, 2 Soath. 460; Boody
V. McEenney, 10 ShepL 517. This case was assampsit upon a promissorr note, given
by an infant for personal property, which, after coming or age, he had sold; and he was
held liable, as having therebv affirmed the contract. Shepley, J., in delivering the
judgment of the Court, reconciled the apparently conflicting aeciaions upon the UiSility
(a) On the meaning of the words Chapin, 44 Pa. St 9 ; Person «. Chase, S7
"void" and "voidable," see State v, Vt 648.
Richmond, 26 K. H. 262; PearsoU v.
PART IV.] INFANOT. 859
ratifj an executory agreement made during infancy, there must
be not only an acknowledgment of liability, but an express confir-
of an infant on his contracts, by reference to the different situations and circnmstances
in which be was placed, in regard to the subject-matter; classifying them as follows : —
" 1. When he has made a conyeyance of real estate during infancy, and would
affirm or disaffirm it, after he becomes of age. In such case, the mere acquiescence for
years to diBaffirm it affords no proof of a ratification. There must be some positive and
clear act performed for that purpose. The reason is, that, by his silent acquiescence, he
occasions no injury to other persons, knd secures no benefits or new riffhts to himself.
There is nothins to urge him, as a duty towards others, to act speedily. Langusge,
appropriate in other cases, requiring him to act within a reasonable time, would become
inappropriate here. He may, therefore, after years of acquiescence, by sn entry, or by
a oonvevance of the estate to another person, disaffirm and avoid the conveyance made
duriuff his infancy. Jackson r. Carpenter, 11 Johns. 689j Curtis r. Patton, 11 S. & R.
811; Tucker v. Moreland, 10 Pet 58. (a)
^ 2. When, during infancy, he has purchased real estate, or has taken a lease of it
sabject to the payment of a rent, or has granted a lease of it upon payment of a rent.
In such cases, it is obvious, when he becomes of age, that he is under a necessity, or
that common justice imposes it upon him as a duty, to make his election within a reason*
able time, fie cannot enjoy the estate, after he becomes of age, for years, and then
disaffirm the purchase, and refuse to pay for it, or claim the consideration paid ; or
thus enjoy the leased estate, and then avoid payment of the stipulated rent ; or receive
rent on the lease granted, and then disaffirm the lease. When ne will receive a benefit
by silent acauiescence, he must make his election within a reasonable time after he
arrives at full age, or the benefits so received will be satisfactory proof of a ratification.
Ketaey's Case, Cro. Jac. 320; Evelyn v. Chichester, 8 Burr. 1766; Hubbard v. Cum-
mings, 1 GreenL 11; Dana v. Coombs, 6 Greenl. 89; fiamaby «. Bamsby, 1 Pick. 221;
Kilne v, Beebe, 6 Conn. 494. {b) In the case of Benham v. Bishop, 9 Conn. 880, it
appeared that the defendant and his mother and sisters were in possession and owned
land in common, and that defendant, while an infant, made his note to another sister
for a conveyance to him of her undivided share of the same estate, and that they con-
tinned to occupy the land in the same manner several yean after he became of age; and
it was decided not to amount to a ratification of the note. This case can only be re*
garded as correctly decided by considering the defendant as having occupied only by
▼irtue of bis own previous title as a tenant in common.
*' 8. When he has, during his infancy, sold end delivered personal property. "When
the contract was executed by his receiving payment, it is obvious that ne can receive no
benefit by acquiescence ; and it alone does not confirm the contract. "When the con-
tract remains unexecuted, and he holds a bill or note taken in payment for the prop-
erty, if he dionld collect or receive the monev due ui)on it or anv part of it, that would
affirm the contract. Should he disaffirm the contract and reclaim the property, the
bill or note would become invalid. He cannot disaffirm it until after he becomes of
age. (e) And if he then does it, tibere are cases which assert, when the contract has be-
come executed, that he must restore the consideration received. Badger v, Phinney,
15 Mass. 368; Roof v. Stafford, 7 Cowen, 179. {d)
** 4. When he has purchased and received personal properly durine infan^. When
the contract has been executed by a payment of the price, if he would disaffirm it^ he
should restore the property received. When the contract remains unexecuted, the
purchase having been made upon credit, he may avoid the contract by plea during
infancy, or after he becomes of a^e, before he has affirmed it. It has been asserted in
such case, that he should be held to refund the consideration received for the contract
{a) It has been held that a neglect for (e) But see Corey v. Burton, 82 Mich,
fourteen yeara after coming of ase, to 80.
bring an action to disaffirm a sale of land (d) An infant may disaffirm, without
made daring the minority, was not of it- restoring what he may have received,
aelf^ under the circumstances, equivalent Brown «. Hartford Fire Ins. Co., 117
to an affirmance of the sale. Urban v. Mass. 479 ; Dunton v. Brown, 81 Mich.
Grimes, 2 Grant's (Pa.) Cases, 96. 182 ; Carpenter v. Carpenter, 46 Ind. 142;
iP) Baker v. Eennett, 54 Mo. 82. post, § 869, n., as to void and voidable
contracts of insane persona.
860 LAW OP EVIDENCE. [PART IV.
mation or new promise, voluntarily and deliberately made by the
infant, upon his coming of age, and with the knowledge that he
is not legally liable, (a) An explicit acknowledgment of indebt-
ment, whether in terms, or by a partial payment, is not alone
sufficient ; for he may refuse to pay a debt which he admits to
be due. But an express confirmation of the agreement, as still
obligatory, is sufficient.^ And if the promise be express to pay
avoided. Reeve's Dom. ReL 248. He admits, however, that the current of English
authorities is otherwise. If he had received property daring infancy, and had spent,
consumed, wasted, or destroyed it; to require aim to restore it or the value of it, upon
avoiding the contract, would be to deprive him of the very protection which it is the
policy of the law to afford him. There might be more ground to contend for the right
to reclaim specific articles remaining in his hands unchanged at the time of the
avoidance of^ the contract. When he continues to retain the specific property, or any
part of it, after he becomes of full age, it becomes his duty within a reasonable time
to make lus election. If such were not the rule, he might continue to use for years a
valuable machine until nearly worn out, and thus derive benefit from it, and yet avoid
the contract, and refuse to pay for it. And when after a reasonable time he continues
to enjoy the use of the propertv, and then sells it, or any part of it, and receives the
money for it, he must be considered as having elected to affirm the contract; and he
cannot afterwards avoid payment of the consiaeration. This, as before shown, is the
well-settled rule in relation to real estate purchased or leased; and the priuciples ap-
plied in those decisions appear to be equally applicable here. Such was the decision in
Lawson V, Lovejoy, 8 Greenl. 405; Chesire v. Barrett, 4 McCord, 241; Dennison v.
Boyd, 1 Dana, 45; Delano v. Blake, 11 Wend. 85." See 10 Shepl. 528-526. See also
1 Hare & Wallace's Am. Leading Cases, pp. 109-115, where the cases on this subject
are cited and classified.
* Story on Contracts, § 49; Chitty on Contr. 124 (4th Am. ed.), and cases there
cited; Smith v. Mayo, 9 Mass. 62; Ford v, Phillips, 1 Pick. 202; Whitney v. Dutch,
14 Mass. 457, 461; Thrupp v. Fielder, 2 Esp. 628; Harmer v. Killing, 5 Esp. 102. By
Stat. 9 Geo. IV, c. 14, § 5, it is now necessary, in England, that the new promise or
ratification be in writing, and signed by the party to be charged. And it is held that
any written instrument, signed by the i)artv, which, if signed by a person of hill age,
would have amounted to an adoption of tne act of a party acting as an agent, will, in
the case of an infant who has attained his majoritv, amount to a ratification of his
promise. Harris v. Wall, 1 Ezch. 122. And see Hartley v, Wharton, 11 Ad. k EL
934. (6)
(a) But such acts must be voluntary v. Brown, 4 Chand. (Wis.) 89. The spe-
on the part of the minor, and must make cial contract of a minor to labor is ratined
manifest his intention to keep the prop- by his continuance in it for a montii after
erty when he has the power to keep it, or he comes of age, and he cannot afterwards
relinquish it at his election. Thus where avoid it. Forsyth v. Hastings, 1 Wil-
^oods, not necessaries, were bought by an liams (Vt.)> 646.
infant, and the vendor, three days before {b) Mawson v. Blane, 26 Eng. Law &
he became of age, brought his action Eq. 560. An admission of an in^nt as to
against the infant for the price, and at- the amount of a claim may be used to
tached the goods on the writ, and the show the amount due, although it may
goods remained in the officer's hands up not be sufficient to render him liable. Ac-
to and at the time of the trial of the ao- kerman v, Runyon, 1 Hilton (N. Y. ), 169.
tion, and the defendant gave no notice, Where the property-rights of infants are
after he became of affe, to the plaintiff, of in question, courts will exercise the great-
his intention not to be bound by the con- est vigilance in protecting their interests,
tract of sale, it was held to be no ratifica- especially against the frauds of guardians,
tion of the contract of sale. Smith v. or others managing their afEBtira. Howell
Kelley, 13 Met. (Mass.) 309; Tibbets v, v. Mills, 53 N. Y. 822.
Gerrish, 5 Foster (N. H.), 41 ; Stokes
PABT IT.] INFANCY* 861
when he is able, the plaintiff must prove the defendant's ability
to pay, or, at least, that ostensibly he is so ; but he is not bound
to prove that the payment can be made without inconvenience.^
The new promise must, in all cases, be shown to have been made
prior to the commencement of the action.^ (a)
§ 368. Infancy no defence In action ez deliota Infancy is no
defence to an action ex delicto ; but an action in that form cannot
be maintained, where the foundation of it appears to have been a
contract, which the infant has tortiously violated. Thus, if he
hired a horse, which he injured by treating negligently, or by
riding immoderately, the plaintiff cannot charge the infant in tort,
by a mere change of the form of action, where he would not have
been chargeable in assumpsit. To such an action, the plea of
infancy in bar is held good.* (J) But if the contract was wholly
abandoned by the infant, as if he hire a horse to go to a certain
place, and goes to a different place, or wantonly beats the animal
to death, he is liable in trover or trespass.* (c) On the other hand,
if the action is brought in assumpsit^ but the foundation is in tort,
as for money which he has fraudulently embezzled, the plea of
infancy is not a good bar.^ Qd)
1 Thomson v. Lay, 4 Pick. 48; Cole v. Saxby, 8 Esp. 160. And see Datiesv.
Smith, 4 Esp. 86; Besford v, Saunders, 2 H. BL 116.
3 Thornton «. Illingworth, 2 B. & C. 824; B. c. 4 D. £ R. 525.
' Jennings v. Rundall, 8 T. R. 837.
« Yasse v. Smith, 6 Cranch, 226 ; Campbell v. Stakes, 2 Wend. 187.
* Bristow V, Eastman, 1 Esp. 172 ; Vasse «. Smith, 6 Cranch, 226. See Story on
Contracts, | 45.
(a) If the contract he void as against dted in this and the preceding note, and
the policy of the law, there can be no rati- important distinctions in the torts for
fication. Embry v» Morrison, 7 Sneed which an infant may be held liable. See
(Tenn.), 804. also Hall v. Corcoran, 107 Mass. 51.
(b) So, an infant is liable to an action (d) In an action against an infant on a
ex delido for fraudulent representations as promissory note given by an infant for
to his age in procuring a contract which a chattel which he had obtained by fraud,
he subsequently ayoious by the defence and which he refused to deliver on de-
of infancy. Fitts v. Hall, 9 N. H. 441 ; mand, the infant prevailed, on the plea of
Eaton V, Hill, 50 N. H. 235. In Texas infancy. Subsequently an action of tort
it seems that fraudulent representations for the conversion of the chattel was
as to age are a good TejAy to the plea of brought against him, and he was held
infancy. Carpenter v. Pridgen, 40 Tex. 82. liable therein, he having sold the chattel
An infant is liable in assumpsit for money before the demand was made upon him.
stolen by him, or the proceeds of property Walker v. Davis, 1 Gray ^Mass. ), 606.
stolen by him. Shaw v. Cofl^ 58 Me. A verbal contract with an infant for his
254. But quoBTt. See Merriam v, Cun- services for three years, being void by the
ningham, 11 Cush. (Mass.) 40 ; Price v. statute of f^uds, is not ^yen prima fade
Hewett, 18 Eng. Law & £q. 522, and n. evidence of the value of the services in an
(c) Towns V, Wiley, 28 Yt. (8 Washb.) action on a quantum meruit. Qalvin v.
855. See Eaton v. Hill, 50 N. H. 285, Prentice, 45 N. Y. 162 ; Wm. Butcher
for some criticisma upon the cases before Steel Works v. Atkinson, 68 HL 421.
862 LAW OF EYIBENCE. [PABT 17.
INSANITY.
§ 869. ZnMmitj no bar when oontmot is exeonted. Whether
lunacy, or insanity of mind, is in all cases a valid bar, per «e, to
an action on the contract of the party, has been much contro-
yerted, both in England and America. The rule that a man shall
not be permitted to stultify himself is now entirely exploded ; and
the question is reduced to this, namely, whether a person non
compos mentis can make any contract which shall bind him.
This has led to a distinction, taken between contracts executed
and contracts executory ; and it seems now to be generally agreed,
that the ezeeuted contract of such person is to be regarded very
much like that of an infant ; and that, therefore, when goods have
been supplied to him which were necessaries, or were suitable to
his station and employment, and which were furnished under
circumstances evincing that no advantage of his mental infirmity
was attempted to be taken, and which have been actually enjoyed
by him, he is liable, in law as well as equity, for the value of the
goods.^ (a) Thus, a person of unsound mind has been held liable
^ Chitty OD Contr. 108-112 ; Story on Contr. |§ 23-25 ; Stock on Non Compotes
Mentis, pp. 26-80, and cases there cited ; Thompson v. Leach, 8 Mod. 810 ; Seaver e.
Phelps, 11 Pick. 804 ; Neill v. Morlej, 9 Yes. 478 ; Stiles v. West, cited 1 Sid. 112.
A qaestion has been made whether the deed of a person of nnsound mind conTejing
land is void, or only voidable. It was held to be Toidable only, and not void, in Allis
V, Billings, 6 Met. 415. The question was very fuUy considered in Arnold v. Rich-
mond Iron Works, 1 Gray, 437, and, in delivering the opinion of the court, Shaw,
0. J., spoke as foUows : —
"The present case is so like the recent case of Allis v. Billings, 6 Met. 415, in aU
its essential features, that it seems hardly necessary to do more than cite that case. It
was there held, that when a deed conveying land had been duly signed, seided, deliv-
ered, and acknowledged, and placed in a condition to be put on record, by one of un-
sound mind, and cash and notes had been given bv the gmntee in security and
satisfaction for the price, such deed was voidable, and not void ; and that if, after-
wards, and after the ^ntor was restored to his right mind, he did acts deliberately,
manifesting an intention to ratify and confirm the transaction of sale and conveyance,
he could not afterwards avoid that deed by alleging that he was insane when he made
it. Such a deed, to many purposes, is equivalent to a feoffment with livery of seisin ;
and we believe it has long been held, by the rules of the common law, that such a feoff-
ment would pass a seisin de facto and vest the estate in the feoffee, subject to be avoided
by matter or record, entry, or by some of the modes aUowed by law for avoiding and
(a) So where a note was discounted for insanity is no defence. Lancaster Ca
a lunatic, without notice of the lunacy. Bank o. Moore, 78 Penn. St 407. Bat
the contract is executed by the bank, and see Mnsaelman v. Cravens^ 47 Ind. 1.
PABT IV.] INSANITY. 868
in (ummpnt for work lEuid labor,^ and for carriages suitable to his
rank and condition.^
anmilling the effect of such a conyeyanoe. To tlus extent, the rale would seem to be
founded on the plainest principles of justice, as well as law. In snch case, the convej-
ance of an estate by bargain and sale on the one side, and by tiie psyment or contract
for the payment on the other, constitutes one entire transaction, mutually conditional
and dependent. It must be affirmed or avoided as a whole. It cannot be affirmed in
nart, so as to hold the price, and disaffinned in part, so as to avoid the conveyance,
tkulger V. Phinoey, 15 Mass. 35'J.
** If, then, the unfoitunate person of unsound mind, coming to the full possession
of his mental facultias, desires to relieva himself from a conveyance made during his
incapacity, he must restore the price, if ^laid, or surrender the contract for it, if unpaid.
In short, he must place the grantee, in all respects as far as possible, in sUUu quo. To
that extent the case of AUis v. Billings does go, and we thinx it is well sustained by
the authorities cited. We say nothing here of a bond, covenant, or other instrument
purely executory, where the obli^tion arises solely from the act of a disposing mind,
binding a person to some obligation or duty, and under which no estate or property
has passed or been transferred ; nor if such a contract would be voidable, and not void,
do we consider here what acts, either of record or in paia^ would be sufficient, on the
part of the party contracting, after being restored, to avoid or to confirm such contract
Such a case may depend upon its own peculiar circumstances, to be judged of as th^
arise. The case of AUis v, Billings is one where a party, restored to his right mind,
having a full jtu ditponendij and full capacity to judge and act in the conduct of his
affairs, finding what had occurred whilst his mind was under a cloud, balancing the
advantages to himself of reclaiming his land or holding the price, prefers the latter.
By doing this, he necessarily affirms the deed by which he in terms alienated his
land.
" In the very full aigument offered by the counsel for the plaintiff in this case, it
was sngsested, rather than distinctly proposed, to the court, to revise the case relied
on, on the ground that there were authorities, deserving of consideration, leading to
a contrary result. Undoubtedly there have been various views taken of this difficult
subject, and there may be some discrepancy in the cases, especially whilst the maxim
prevailed, that no man could stultify himself, or, in other words, could plead his own
insanity to avoid his acts and contracts, — a maxim founded mainly on considerations
of policy, from the danger that men might feign past insanity, and be tempted to pro-
cure false testimony to establish it, in order to avoid and annul their solemn obliga-
tions and contracts. But on a re-examination of the authorities, we see nothing to
raise a doubt that the law, as it now stands, is correctly declared in that case.
" It was urged that the terms 'void and voidable,' as applied to the deed of a per-
son non compos, do not express the true distinction, but that there may be an inter-
mediate clais of deeds connrroable ; that is, deeds made by one having no capacity to
contract, and so void until confirmed by the party after being restored. To say noth-
ing of the practical inconvenience of making the o|)eration of a deed to transfer an
estate depend on some act, done months, perhaps years, after it has been delivered and
recorded, some acceptance of payment, or other act tn pais, passing between the
parties without record or other means of notoriety ; it would afford no more means
of security to the rights of the party under disability than the power of refusing to
ratify and actually disaffirming tne deed, when the powers of his mind and his dispos-
ing capacity are fully restored. We are therefore of opinion that the deed of the plain-
tiff, made whilst in an unsound state of mind, was voidable, and not absolutely void,
and, as a necessary legal consequence, that it was capable of being ratified and con-
firmed by him, after his mind was restored.
" The acts necessary to be done, to affirm and ratify a prior voidable act, or to an-
nul it and set it aside, may be various, according to the nature of the act to be thus
affirmed or disaffirmed, and to the condition and capacity of the party doing the act.
In Tucker v, Moreland, 10 Pet. 58, it was held, that, in the analogous case of an in-
» Brown v, Joddrell, 8 C. & P. 80.
* Baxter v. Earl of Portsmouth, 5 B. & C. 170 ; s. o. 7 D. & B. 614 ; 8. 0. 2 C. &
P. 178.
864 LAW OF EYIDENCB. [PABT lY.
§ 870. Oenerally m bar, when oontraot is «±eoiitoiy. On the other
hand, insanitj of mind is generally admitted, as a valid bar to an
action upon an executory contract of the party ; ^ (a) though in
England it has in some cases been held insufficient as a defence,
per 8e^ but admissible evidence to support a defence grounded
upon undue advantage taken or fraud practised, upon the party,
by reason of his want of common discernment.^
§ 871. Proof of insanity. The state and condition of mind of
the party is proved, like other facts, to the jury ; and evidence
of the state of his mind, both before and after the act done, is
admissible.^ An inquidtion^ taken under a commission of lunacy,
fiint, he might avoid his act, deed, or contract, by different means, according to the
nature of the act or the circumstances of the case. One of the cases put is where an
infant makes a lease : the receipt of rent, after he comes of age, is a ratification. Bac
Ab. Infancy and Age, I, 8.
"In the present case, after the plaintiff was restored to the full possession of his
reason, he found that he had executed a conveyance of his estate, that the defendants
were in possession under his deed ; also, that he held certain notes for part of the
purchase-money. His forbearing to enter, his giviog no notice of his election to dis-
affirm the conveyance, would be negative acts, and perhaps equivocal; but his demand-
ing and receiving payment of the notes vras affirmative, significant, and decisive. It
was inconsistent with any just purpose to disaffirm the conveyance. Payment and
accei>tance of the compensation are decisive of an election to affirm. Butler v. Hil-
dreth, 5 Met. 49 ; Norton v, Norton, 5 Cush. 530."
^ Sentance v. Poole, 8 C. & P. 1 ; Stock on Non Compotes Mentis, p. 80 ; Mitchell
V, Kingman, 5 Pick. 481 ; Seaver v. Phelps, 11 Pick. 804 ; Chitty on Contracts, p.
112 ; Story on Contracts, §§ 28-25.
' Ibid. ; Dane v. Kirkwall, 8 C. & P. 679. There is a material difference between
insanity and idiocy, in respect to the evidence, and its effect. Many acts of business
may be done by a lunatic, and the lunacy not be detected; but it is scarcely possible to
predicate the same of an idiot, or an imbecile person. Such acts, therefore, are strong
evidence on an issue of idiocy, but not on an issue of insanity. Bannatyne «. Banna-
tyne, 16 Jur. 864 ; 14 Eng. Law & £q. 581, 590.
' Grant v. Thompson, 4 Conn. 203. Insanity is shown by the proof of acts, dec-
larations, and conduct, inconsistent with the character and previous habits of the
party. The opinions of the witnesses as to the sanity or insanity of the person are not
admissible, unless they are medical men, or experts. McCuny v. Hooper, 12 Ala.
823. (6) Ante, voL L § 440.
(a) Mnsselman «. Cravens, 47 Ind. 1. and conversation with such person, is ad-
A judgment recovered against a person ad- missible in evidence in connection with
mitted at the time to have been non compos the facts upon which the opinion is based,
mentis^ and who had no guardian, will be and that non-experts may give their opin-
reversed on a writ of error brought by his ions, bailed upon observation as to the
administrator after his decease, unless per- mental condition of a person, must now be
haps for necessaries. Leach v. Marsh, 47 considered as the doctrine supported by
Me. 548. the great weight of authority and reason.
(6) Wyman v. Gould, 47 Me. 159. So See the very able and exhaustive opinion
held in Commonwealth v. Fairbanks, 2 of Mr. Chief Justice Foster, in Hardy v.
Allen (Mass.), 511, though the opinion is Merrill, 56 N. H. 227, overruling the
based upon the witness's own knowledge prior decisions of that State to the con>
offsets. But in Cram v. Cram, 33 Vt. 15, trary. See also Pidcock v. Potter, 68
it is held that, when a person's mental Penn. St 342 ; Beavan v. McDonnell, 26
capacity is in question, the opinion of a Eng. L. k £q. 540 ; anU, vol. i. §§ 440,
non>professional witness in relation there- 441 ; Dennis v. Weekes, 51 Ga. 24.
to, derived from personal observation of
PART IV.] INSANITY. 866
is admissible evidence, but not coticlusive in the party's own f avor.^
It has, however, been held condnsive against other persons, sub-
sequently dealing with the lunatic, instead of dealing with his
guardian, who seek collaterally to avoid the guardian's authority,
by showing that the lunatic has been restored to his reason.'
Insanity, once proved to have existed, is presumed to continue,
unless it was accidental and temporary in its nature ; as, where
it was occasioned by the violence of disease.^
§ 871 a. Insanity In civU oaseft. What eomtitutes insanity of
mind is a question which has been very much discussed, especially
of late years ; and the opinions of learned judges seem at first
view to be conflicting. But much of the apparent discrepancy
may be reconciled, by adverting to the nature of the cases respect-
ively in judgment. The degree of unsoundness or imbecility of
mind sufficient to invalidate the acts of the party in some cases
may not suffice in others. But in regard to insanity, where there
is no frenzy or raving madness, the legal and true character of
the disease is deltuion^ or, as the physicians express it, illusion or
hallucination. And this insane delusion consists in a belief of
facts which no rational person would believe.^ It is distinguished
from moral insanity, which consists in the perversion or disordered
state of the affections or moral powers of the mind, in contradis-
tinction to the powers of the understanding or intellect. This
latter state of the mind is held not sufficient to invalidate a will,
unless it is accompanied by that delusion in matters of fact which
is the test of legal insanity.^
§ 872. Insanity in criminal cases. In criminal eases^ in order to
absolve the party from guilt, a higher degree of insanity must be
shown than would be sufficient to discharge him from the obliga-
tions of his contracts. In these cases, the rule of law is understood
to be this : that " a man is not to be excused from responsibility,
if he has capacity and reason sufficient to enable him to distinguish
1 Faulder v. SUk, 8 Canipb. 126 ; Dane v. Kirkwall, 8 C. & P. 679.
* Leonard v. l^nard, 14 Pick. 280 ; om^ vol. i. f§ 551, 556.
* Bee ante, Tol. i | 42 ; Hix v, Whittemore» 4 Met. 545 ; 1 Collinson on Lunacy,
55 ; Shelford on Lnnatica» 275 ; Swinburne on Wills, Part XL § iii. 5, 6, 7 ; 1 Hal.
P. C. 80.
* Dew V, Clark, 8 Addanifi, Eccl. 79.
* Ibid. ; Frere v. Peacocke, 1 Rob. Eccl. 442, 445. And see Pritcbard on Insanity
in Relation to Jnrispradence, pp. 16, 19, 80 ; Commonwealth i^. Hosier, 4 Penn. St. 264.
See farther, as to fmmomcinia, ante, vol. L § 865; Regina «. Hill, 15 Jnr. 470 ; 5 Eng.
Law & Eq. 547 ; s. c. 5 Cox, Cr. C. 269 ; Waring v. Waring, 12 Jur. Priv. C. 947 ;
Best's Prm. of £v. { 184.
866 LAW OF EYIDENOE. [PABT IT.
between right and wrong, as to the particular act he is then doing ;
a knowledge and consciousness that the act he is doing is wrong
and criminal, and will subject him to punishment. In order to be
responsible, he must have sufficient power of memory to recollect
the relation in which he stands to others, aiid in which others
stand to him ; that the act he is doing is contrary to the plain
dictates of justice and right, injurious to others, and a violation
of the dictates of duty. On the contrary, although he may be
laboring under partial insanity, if he still understands the nature
and character of his act and its consequences, if he has a knowl-
edge that it is wrong and criminal, and a mental power sufficient
to apply that knowledge to his own case, and to know that if he
does the act he will do wrong and receive punishment, such partial
insanity is not sufficient to exempt him from responsibility for
criminal acts. If, then, it is proved to the satisfaction of the
jury, that the mind of the accused was in a diseased and unsound
state, the question will be, whether the disease eidsted to so high
a degree, that, for the time being, it overwhelmed the reason,
conscience, and judgment, and whether the prisoner, in commit-
ting the homicide, acted from an irresistible and uncontrollable
impulse ; if so, then the act was not the act of a voluntary agent,
but the involuntary act of the body without the concurrence of a
mind directing it." ^
1 See The Trial of Abner Rogers, pp. 276, 277, per Shaw, C. J. The whole of this
lucid exposition of the criminal law of insanity, by the learned Chief Justice, was as
foUows : '*The great object of punishment by law is to afford security to the commun-
ity against crimes, by punishing those who violate the laws ; and this object is acoom-
pushed by holding out the fear of punishment, as the certain consequences of such
yiolation. Its effect is to present to the minds of those who are tempted to commit
crime, in order to some present gratification, a strong counteracting motivey in the fear
of punishment.
" But this object can only be accomplished when such motive acts on an inteUigent
being, capable of remembering that the act about to be committed is wrong, contrary
to duty, and such as in any weU-ordered society would subject the ofifender to punish-
ment. It might, in some respects, be more accurate to say, that the party thus acting
under a temptation, must have memory and intelligence to recoUect and know that
the act he is about to commit is a violation of the law of the land. But this mode of
stating the rule might lead to a mistake of another kind, inasmuch as it would seem to
hold up the idea, tnat, before a man can be justly punished, it must appear that he
knew that the act was contrary to the law of the luid. But the law assnmps that every
man has knowledge of the laws prohibitiiig crimes, — an assumption not strictly true
in fact, but necessary to the security of society, and suflSciently near the truth for
practical purposes. It is expressed by the well-known maxim, ' Ignorantia l^gis nemi-
nem excusat, — ignorance of the law cannot be pleaded as an excuse for crime. The
law assumes the existence of the power of conscience in aU persons of ordinary intelli-
gence ; a capacity to distinguish between right and wronff, in reference to particular
actions ; a sense of duty and of right. It mav also be safely assumed that erexy man
of ordinary intelligence knows that the laws of society are so framed and administerad
as to prohibit and pumsh wroi^ acts, violations of duty towards others^ by penaltim
PABT IV.] mSAlOTT. 867
§ 878. Same siibjeot In all such cases, the jury are to be told
that every man is to be presumed to be sane, and to possess a
in some measure adapted to the nature and aggraTation of the wrong and injurious acts
thus done.
"If, therefore, it happens to be true in any particular case, that a person, tempted
to coDUDit a crime, does Dot know that the particular act is contrary to positive law,
or what precise punishmeut the municipal taw annexes to such act ; yet if the act is
palpably wrong in itself, if it be manifestly injurious to the rights of another, as by
destroyug his life, maiming his person, taking away his property, breaking into or
burning his dwellins-house, and the like, there is no ii^ustice in assuming that every
man knows that such acts are wrong, and must subject him to punishment by law ;
and therefore it ma^ be assumed, for all practical purposes, and without injustice, that
he knows the act is contrary to law. This is tne ground upon which the rule has
been usually laid down by judges, when the question is, whether a person has suffi-
cient mental capacity to be amenable for the commission of a crime ; that he must
have sufficient mental capacity to distinguish between right and wrong, as applied
to the act he is about to commit, and to m conscious that the act is wrong ; instead
of saying that he must have sufficient capacity to know that it is contrary to the law
of the luid : because this power to distinguish between right and wrong, as applied to
the particular act, — a power which every human being who is at the same time a
moral affent and a subject of civil government is assum^ to possess, — is the medium
by which the law assumes that he knows that the same act which is a violation of high
moral duty is also a violation of the law of the land. Whereas, if it were stated that
a person must have sufficient mental capacity to know and understand that the act he
is about committing is a violation of the law of the land, it might lead to a wrong con-
clusion, and raise a doubt in regard to persons ignorant of the law. There is no doubt
that many a man is held responsible for crime, and that rightfully, who might not
know that the act he was about committing was contrary to the law of the land, other-
wise than as a moral being he knows that it is wrong, a violation of the dictates of his
own natural sense of right and wrong.
'* To recur, then, to what has been already stated : In order that punishment may
operate by way of example, to deter others from committing criminal acts, when under
tonptation to do so, by presenting a strong counteracting motive, the person tempted
must have memory and intelligence to know that the act he is about to commit is
wrong, to remember and understand, that if he commits the act, he will be subject to
the punishment, and reason and will to enable him to compare and choose between the
supposed advantage or gititification to be obtained by the criminal act, and the im-
munity from punishment which he will secure by abstaining from it
" A person, therefore, in order to be punishable by law, or in order that his punish-
ment by law may operate as an example to deter others from committing criminal acts,
under like circumstEinoes, must have sufficient memory, intelliffence, reason, and will
to enable him to distinguish between right and wrong, in regard to the particular act
about to be done, to know and understand that it will be wrong, and that he will de-
serve punishment by committing it
" This is necessary on two grounds : —
" 1st To render it Jtul and reasonable to inflict the punishment on the accused in-
dividual ; and
*' 2d. To render his punishment, by way of example, of any utility to deter others
in like situation from doins similar acts, 1^ holding up a counteracting motive in the
dread of punishment, whicn they can feel and comprehend."
With more immediate reference to the case, tne Chief Justice proceeded as fol-
lows : —
" In order to constitute a crime, a man must have intelliffence and capacity enough
to have a criminal intent and purpose ; and if his reason and mental powers are either
so deficient that he has no will, no conscience, or controlling mental power, or if,
through the overwhelming violence of mental disease, his intellectual power is for the
time obliterated, he is not a responsible moral agent, and is not punlsnable for crimi-
nal acts.
" But these are extremes easily distinguished, and not to be mistaken. The diffi-
culty lies between these extremes, in the cases of partial insanity, where the mind may
be donded and weakened, but not incapaUe of remembering, reasoning, and judging.
868 LAW OP RVIDENCE. [PABT IT.
sufBcient degree of reason to be responsible for bis crimes, until
the contrary be proved to their satisfaction ; and that, to establish
a defence on the ground of insanity, it must be clearly proved
that, at the time of committing the act, the party accused was
laboring under such a defect of reason, from disease of the mind,
as not to know the nature and quality of the act he was doing, or,
if he did know it, that he did not know he was doing what was
wrong, (a) The mode of putting the latter part of the question
to the jury on these occasions has generally been, whether the
accused, at the time of doing the act, knew the difference between
right and wrong ; which mode, though rarely, if. ever, leading to
any mistake with the jury, is not deemed so accurate when put
generally and in the abstract, as when put with reference to the
party's knowledge of right and wrong in respect to the very act
with which he is charged.^
or 80 penrerted by insane delusion as to act nnder false impressions and inflaeneea. In
these cases, the role of law, as we understand it, is this : [Here follows the passage al-
ready a noted in the text.]
" Tne character of the mental disease relied upon to excuse the accused in this case
is partial insanity, consisting of melancholy, accompanied by delusion. The conduct
may be in many respects regular, the mind acute, and the conduct apparently goyemed
by rules of propriety, and at the same time there may be insane aelusion by which
the mind is penrerted. The most common of these cases is tliat of monomania, when
the mind broods oyer <me idea, and cannot be reasoned oat of it This may operate as
an excuse for a criminal act in one of two modes : Either the delusion is such that the
peiiton under its influence has a real and Arm belief of some fact, not true in itself, bat
which, if it were true, would excuse his act; as where the belief is that the party Idlled
had an immediate design upon his life, and under that belief the insane man killed
him in supposed self-defence. A common instance is where he fully belieyes that the
act he is aoing is done by the immediate command of God, and he acts under the de-
Ittsiye but sincere belief that what he is doing is by the command of a saperior power,
which supersedes all human laws, and the laws of nature : or,
" 2d. This state of delusion indicates to an experienced person that the mind is in a
diseased state, that the known tendency of that oiseased state of Uie mind is to break
oat into sudden paroxysms of violence, yenting itself in acts of homicide, or other vio-
lent acts, toward friend or foe indiscriminately, so that, although there were no preyious
indications of yiolence, yet the subsequent act, connecting itself with the previous
symptoms and indications, will enable an experienced person to say that the oatbreak
was of such a character that, for the time being, it must have overborne memory and
reason ; that the act was the result of the disease, and not of a mind capable of cnooa-
ing ; in short, that it was the result of uncontrollable impnlse, and not of a person
acted upon by motives, and flovemed by the wilL" Id. pp. 273--279. This case is rs-
farted in a more condensed form in 7 Met. 500. The test of insanity is delusion. See
reer «. Peacocke, 11 Jur. 247 ; Commonwealth v. Hosier, 4 Penn. St. 264 ; State v,
Spicer, 3 Amer. Law Joum. n. b. 128.
1 Per Tindal, C. J. in McNaghten's Case, 10 Clark & Fin. 210. In that case the fol-
lowing questions were propounded to the learned judges by the House of Lords: —
" 1st. What is the law respecting allied crimes, committed by persons afflicted
with insane delusion in respect of one or more particular sabjects or persons; as, for
(a) As to the legal test of insanity, see 121 ; People «. Spragne, 2 Fftiker Cr.
also, farther. State v. Pike, 49 N. H. 898; (N. Y.) 48 ; People v. Robinson, 1 IL
United States v. Shnltx, 6 McLean C. Ct. 649 ; United States v. ITGlne, I Cortis
PABT IV.] INSANITT. 369
§ 874. ZoMuatj ftom dnmlMiman. In regard to drunkenness^ it
is now settled, that incapacity from that cause is a valid defence
instance, where at the time of the commission of the alleged crime the accused knew
he was acting contrary to kw, but did the act complained of witli a view, under the
influence of msane delusion, of redresaini^ or avenging some supposed grievance or in-
jury, or of producing some supposed public beneht ?
*' 2d. What ai-e the proper questions to be submitted to the jury, when a person al>
leged to be afSicted with insane delusion respecting one or more particular subjects or
persons is charged with the commission of a crime (murder, for example), and msanity
18 set up as a defence ?
" 8d. In what temis ought the question to be left to the jury, as to the prisoner's
state of mind at the time when the act was committed ?
'* 4th. If a jierson, under an insane delusion aa to existing fiscts, commits an of-
fence in consequence thereof, is he thereby excused ?
** 5th. Can a medical man, conversant with the disease of insanity, who never saw
the prisoner previous to the trial, but who was present durine the whole trial and the
exaniination of all the witnesses, be asked his opinion as to the state of the prisoner's
mind at the time of the commission of the alleged crime; or his opinion whether the
Lord Chief Justice Tiudal, as follows: **My Lords, her Majesty's judges, with the ex>
ception of Mr. Justice Maule, who has stated liis opinion to your Lordships, in answer-
ing the questions proposed to them by your Lordships' House, think it right iu the
finit place to state that they have forborne entering into any particular discussion upon
these questions, from the extreme and almost insuperable difficulty of applying those
answers to cases in which the facts are not brought judicially before them. The facts
of each particular case must of necessity present themselves with endless variety, and
with ever>* shade of difference in each case, and it is their duty to declare the law upon
each particular case, on facts proved before them, and after hearing axguments of coun-
sel thereon. They deem it at once impracticable, and at the same time dangerous to
the administration of justice if it were practicable, to attempt to make minute applica-
tions of the principles involved in the answers given them by your Lordships ques-
tions; they have therefore confined their answers to the statements of that which they
hold to bethe law upon the abstract questions proposed by your Lordsliips; and as they
deem it unnecessary in this particular case to aeliver their opinions ttriaiimf and as all
concnr in the same opinion, they desire me to express such tneii* unanimous opinion to
your ]/>rdship6. In answer to the first question, assuming that your Lordships' in-
quiries are confined to those persons who labor under such partial delusions only, and
are not in other respects insane, we are of opinion, that, notwithstanding the )mrty ac-
cused did the act complained of, with a view, under the influence of insane delusion,
of redressing or avenging some supposed grievance or iigury, or producing some public
benefit, he is nevertheless punishable, according to the nature of the crime committed,
if he knew at the time of committing such crime that he was acting contrary to law,
— by which expression we undeistand your Lordships to mean the law of the laud.
C. Ct. 1 ; McAllister «. State, 17 Ala. 484; State, 10 Ohio St 698 ; Fisher v. People,
and post, voL iii. §§ 5, 6, and notes. The 28 111. 288; see also People v. McCann, 16
decisions on the question upon whom the N. Y. 58 ; State «. Hundley, 46 Mo. 414;
burden of proving insanity rests are far State v. Lawrence, 57 Me. 574 ; Com. v.
from uniform. When insanity is used as Ortwein, 76 Penn. St. 414 ; People v.
a defence in a criminal trial, three views Cofiinan, 24 Cal. 280 ; State v. Felter, 82
of the burden of proof have been adopted Iowa, 50) ; and still others holding that
by different courts ; some holddng that tiie prosecution must prove sanity beyond
proof of insanity, in order to acquit of a a reasonable doubt (Com. v. Pomeroy, 117
crime, should be as free from doubt as Mass. 148 ; People v, Garbutt, 17 Mich,
proof of sanity in order to convict (Mc- 9 ; State v. Bartlett, 48 N. H. 224 ; State
Nagh ten's Case, 10 C. & F. 200 ; State v. v. Jones, 50 N. H. 869). For a fuller
Spencer, 1 Zab. (N. J.) 202); others hold- citation of the authorities on this point,
ing that it should be made out by a pre- see po&t^ VoL iii |§ 5, 6, and notes,
ponderance of evidence only (Loeffner v,
TOL. II. 24
870 LAW OP EVIDENCE. [PABT IV.
to an action upon the contract of the party, made while under its
influence, as well where it was voluntary, and by the fault of the
defendant, as where it was caused by the fraud or procurement of
the plaintiff.^ In criminal cases, though insanity^ as we have just
seen, is ordinarily an excuse^ yet an exception to this rule is when
the crime is committed by a party while in a fit of* intoxication ;
the law not permitting a man to avail himself of the excuse of his
own gross vice and misconduct, to shelter himself from the legal
consequences of such crime. But the crime, to be within the
exception, and therefore punishable, must take place and be the
immediate rediUt of the fit of intoxication, and while it UutSj and
Aa the third and fourth questions appear to ub to be more conyenientlj answered together,
we have to submit our opinion to oe, that the jury ought to be told, in aU cases, that
every man is to be presumed to be sane, and to possess a sufficient degree of reason to
be responsible for his crimes, until the contrary be proved to their satisfaction; and
that to establish a defence on the ground of insanity, it must be clearly proved, that;
at the time of committing the act, the party accused was laboring under such a defect
of reason, from disease of the mind, as not to know the nature and quaUty of the act
he was doing; or, if he did know it, that he did not know he was doing what was
wrong. The mode of putting the latter part of the question to the jury on these oc-
casions has generaUy been, whether the accused at the time of doing the act, knew the
difference between right and wrong; which mode, though rarely if ever leading to any
mistake with the jury, is not, as we conceive, so accurate when put generaUy and in the
abstract, as when put with reference to the party's knowledge of right and wrong in
respect to the very act with which he is charged. If the question were to be put as to
t^e knowledfle of the accused solely and exclusively with reference to the law of the land,
it might tend to confound the jury, by inducing them to believe that an actual knowl-
edge of the law of the land was essential in oroer to lead to a conviction ; whereas the
law is administered upon the principle that every one must be taken conclusively to
know it without proot that he does Know it. If the accused were conscious that the
act was one which he ought not to do, and if that act was at the same time contrary to
the law of the land, he is punishable, and the usual course, therefore, has been to
leave the question to the jury, whether the party accused had a sufficient degree of rea-
son to know that he was doing an act that was "Vfrong; and this course, we think, is
correct, accompanied with such observations and explanations as the circumstances of
each particular case may require. The answer to the fourth question must of oourae
depend on the nature of the delusion ; but making the same assumption as we did be-
fore, namely, that he labors under such partial delusion only, and is not in other re-
spects insane, we think he must be considered in the same situation, as to responaifaility,
as if the facts with respect to which the delusion exists were real. For example, if,
under the influence of delusion, he supposes another man to be in the act of attempt-
ing to take away his life, and he kills that man, as he supposes, in self-defence, he would
be exempt from punishment. If his delusion was, that the deceased had inflicted a
serious injury to his character and fortune, and he killed him in revenge for such sup-
posed injury, he would be liable to pimishment. In answer to the last question, we
state to your Lordshipe, that we thiuK the medical man, imder the circumstances sup-
posed, cannot in strictness be asked his opinion in the tenns above stated, because each
of these questions involves the determination of the truth of the facts depoeed to,
which it IS for the jury to decide; and the questions are not mere Questions upon a mat-
ter of science, in which case such evidence is admissible. But wnere the facts are ad-
mitted, or not disputed, and the question becomes substantiaUy one of science only, it
may be convenient to allow the question to be put in that general form, though the
same cannot be insisted on as a matter of right' Ibid. 200-212.
1 Chitty on Contracts, p. 112 (4th Am. ed.); Story on Contracts, § 27* and
there cited.
PART IT.] IN8ANITT. 871
not the result of insaniiy) remotely occasioned by previous habits
of gross indulgence in spirituous liquors. The law looks to the
immediate and not to the remote cause ; to the actual state of the
party, and not to the causes which remotely produced it.^ (a)
^ United States v. Drew, 5 Mason, 28, per Story, J. ; 1 Russell on Crimes, pp. 7, 8
(8d ed.). See Ray on the Medical Jarispnidence of Insanity, c. 24. In the jurispru-
dence of continental Europe, drunkenness is generally distuiguished into three kinds,
— (1.) Intentional, voluntarily induced in order to the commission of a crime while in
that state; (2.) Culpable, by drinking without any intention to become drunken, but
where the party might easily have foreseen that he would naturally become so; (3. ) Incul'
pable, where such consequence could not easily have been foreseen, or where the party took
due precautions sgainst any injurious effects, as by directing hiB servants to confine him
if he should become drunk, or where the drunkenness was justly attributable to others,
or was the result of disease. In the first case, it is no excuse; in the second, it reduces
the degree of criminality and mitigates the punishment; in the third, the lisbility to
punishment ceases. 9m Professor Mittemiaier's learned Treatise on the Effect of
Drunkenness upon Criminal Responsibility, §§ vi-ix.
(a) In Com. v, Hawkins, 8 Gray (Mass. ), mind, may reduce the killing from that of
466, which was an indictment for murder, deliberate uremeditation, which constitutes
the jury were thus instructed : " The rule murder or the most heinous character.
of law is that, although the use of intoxi- Cluck v. State, 40 Ind. 263 ; People v,
eating liquors does to some extent blind Williams, 48 Cal. 344 ; Jones v. Common-
the reason and exasperate the passions, wealth, 75 Penn. St. 408. It is now gen-
vet, as a man voluntarily brings it upon erally held that evidence of drunkenness is
himself, he cannot use it as an excuse or admissible in behalf of the prisoner on a
justification or extenuation of crime. A trial for homicide, in order to show that
man, because he is intoxicated, is not de- the killing was not of that malicious kind
pnived of any legal advanta^ or protec- which constitutes murder in the first de-
tion ; Imt he cannot avail himself of his gree, but only on this point is such evi-
intoxication to exempt him from any le^ aence admitted. For a citation of the
responsibility which would attach to him authorities, see post, voL iii. § 6, and
if sober." Hafferty v. People, 66 lU. 118. notes. Moral insanity is not recognized
Intoxication brought on by taking lauda- by the courts. See Wliarton on Homicide,
num, and excessive drinung for several § 583, and cases there cited.
days, producing a disordered state of the
872 LAW DP BVmifiNCB. [PABT IV.
INSURANCE,
§ 875. Snbjeot-matteni of the contrmot. The ordinary subjects
of the contract of Insui*ance are (1.) Marine Bisks; (2.) Losses by
Fire ; (8.) Lives, — all which will be considered in their order.
§ 376. DeoiaratloiL In an action on a policy of insurance,
whatever may be the subject, the declaration^ contains the fol-
1 The foUowing fonns of counts, in the simplest cases arising upon marine policies,
established in Massachusetts, are well adapted to the brevity of modem practice at
common law in any of the United States: —
1. On a SHIP, for a total loss. *'In a plea of the case, for that on the plain-
tiif was owner of the ship John, then lying in the harbor of aforesaid; and the
said Company, in consideration of a premiam therefor paid to them by the plain-
tiff, made a [xmcy of insurance upon the said ship for a voyage from the said to
Cadiz in Spain, and at and from said Cadiz to her port of discharge in the United
States; and thereby promised to insure for the plaintin ten thousand dollars upon the
said ship for the saia voyage against the perils of the seas, and other perils in the said
policy mentioned ; (a) and the plaintiff avers that the said ship did on sail from
said on the voyage described in said policy, and, whilst proceeding therein, was,
by the perils of the seaa, wrecked and totally lost ; of which the said insurance com-
Sany, on , had notice, and were bound to pay the same on demand (or in sixty
^ys) i yet they have never paid the said sum of ten thousand dollars, though requested
(or though sixty days have elapsed). To the damage," &c
2. Count for a pabtial loss, and for contbibution to a general avbraok.
[State the plaintiff's interest, the voyage, and the insurance, as in the last precedent,
to (a), and proceed as foUows: — ]
** and the same company did in and by the same policy further promise, that,
in case of any loss or misfortune to the said ship, it should be lawful for the plainti£f
and his agents to labor for and in the defence and recovery of the said ship, and that
the said company would contribute to the charges thereof, in proportion as tne said sum
assured by them should be to the whole sum at risk; and the plaintiff avers, that the
said ship did, on , sail from said on the voyage aforesaid ; and, whilst pro-
ceeding therein, was, by the perils of the seas, dismasted, and otherwise damaged in
her hull, rigging, and appurtenances ; insomuch that it was necessary, for the preserva-
tion of the said ship ana her cargo, to throw over a part of the said cargo ; and the
same was accordingly thrown over for that purpose; by means of all which ihe plain-
tiff was obliged to expend two thousand dollars in repairing tiie said ship at , and
also {or, and is also liable to pay) the sum of five hundred dollars as a contribution to
and for the loss occasioned by the said throwing over of a part of the said caigo ; and
the said ship also suffered much damage that was not repaired in said Cadiz ; of all
which the said company on had notice, and became bound to pay the same in
sixty days ; yet, though said sixty days have elapsed, they have never paid the said sum
of ten thousand dollars, nor any part thereof. To the damage," &c.
8. Count for a total lohs of cabgo by fibs. " In a plea of the case, for that on
, a certain brigantine called The William was lying at , and the plaintiff was
the owner of the cargo (or of certain goods), then laden or about to be laden on board
of the said vessel; and the said C. D., in consideration of a certain premium therefor
paid to him by the plaintiff, made a certain policy of insurance in writing upon the
said cargo (or goods), at and from said to Hamburg, or any other port or ports in
the north of Europe, and at and from thence to said , or her port of aischaige in the
United States ; and the said C D., by said policy, promised to insure for the plaintiff
PABT IT.] IKSHBANCE. 878
lowing allegalaons, which nnuit be proved bj the plaintiff, if not
admitted by the pleadings: (1.) The policy; (2.) The plaintiff's
interest in the subject insured^ and the payment of the premium ;
(8.) The inception of the risk ; (4.) The performance of any pre-
cedent condition, or warranty, contained in the policy ; and (5.)
The loss, within the terms and meaning of the policy.
§ 877. Proof of pciioj. And, FmsT, as to Mabine Inbubanoe.
In an action by the assured, the fxtt step in the trial is the proof
of the policy. The instrument itself, being the best evidence, must
be produced and proved ; or its loss must be accounted for, and
its contents proved by secondary evidence.^ (a) If it was signed
dollan on the aud earoo (or goods) for the Toyase aforeflaid, against the perils of fire, and
other perils in said policy specified; and the plain titf avers, that the said vessel, with
the said cam (or goods) on board, did on sail from said on the voyace afore-
said; and afterwaras^ during the said voyage, whilst the said vessel, with the said cargo
on hoard, was lying at the port of Altona, in the north of Europe, the said cargo (or
goods) was burned, and wholly destroyed by fire, of which the said C. D. on had
notioe, and became bound to pay the same in sixty days ; yet he has not paid the sum
of dollars, nor any part thereof. To the damage," &c.
4. Count for a total loss of f&uoht, bt restraint, DETAnruENT, Ac.: "
for that on the plaintiff was interested in the freight of a vessel called The Geoige,
then bound on a voyage hereinafter described ; and the said insurance company, in con-
sideration of a premium therefor, paid to them by the plaintiff, made a policy of in-
surance upon the said freight for the voyage from to one or more ports beyond the
Cape of Good Hope, one or more times, for the purpose of disposing of her outward,
and procuring a return, cargo, and at and from thence to , and thereby promised to
insure for the plaintiff three thousand dollars upon the said freight for the voyage afore-
said, against the perils of enemies, pirates, assailing thieves, restraints, and detainments
of all kings, princes, or peoples, of what nation or quality soever, and against other
perils in the said policy mentioned; and the plaintiff avers, that the said vessel did on
sail from said on the voyage aforesaid, and afterwards, during said voyage.
was forcibly taken on the hi^h seas (or, at the Island of Sumatra, in the Indian Ocean)
by certain persons to the plaintiff unknown, and detained and prevented from perform-
ing the said voyage, and thereby the said freight was wholly lost to the plaintiff ; of all
which the said insurance company," &c.
1 See anU, vol. I SS ^f» ^^S-
•
(a) It was held in the earliest cases in present day are eoMtracts to protect the
the law of Insurance that an oral contract insured property till the time of issuing
of insurance is valid, if it is made in con- the policy, or verbal contracts to take the
formity with the common-law rules in re- risk, followed by a loss before the policy is
spect to such contracts, and this continues issued. If the contract is complete, in
to be the law at the prMent day, though such cases, it may be enforced though
the ordinary method of insurance is by a verbal. Putnam v. Home Ins. Oa, 12S
written contract called the policy. Not Mass. 824 ; Patterson v. Benjamin Frank-
only is an oral contract of insurance valid, lin Ins. Co., 81 Pa. St. 464 ; People's Ins.
but, when the insurer is an organized com- Co. v. Paddos, 8 111. App. 447 ; Westcfaes-
pany, the ru^lations in the charter govern- terFire Ins. Co. v, Earle, 88 Mich. 148;
ing the mode of execution of the policy do Union, Ac. Ins. Co. v. Connecticut^ ke. Ins.
not hy impUcation prevent the company Co., 19 How. (U. S.) 818; Sanboni v. Fire-
from making an onl contract of insorsnoe^ man's Ins. Co., 16 Gray (Mass.X 448; Cooke
nor establish rules for its execution; noth- «. Etna Ins. Co., 7 Daly (N. T.), 565;
ing short of a direct statutory provision May, Ins. {{ 14-28.
will make an oral contract invalid. The A contract of renewal, though it is sot
ordinary cases of oral contracts at the under seal, may be a valid renewal of a
874 LAW OP EVIDENCE. [PABT IV.
bj another person, as the agent of the defendant, his agency must
be proved.^ And proof of the signature by an agent will satisfy
an allegation of signature by the defendant himself.^ Parol evi-
dence of what passed at the time of making the policy is, as we
have heretofore shown, inadmissible to a£Fect the written agree-
ment.^ (a) But the general usage of merchants may be shown
to explain ambiguities or define the terms of the policy, though
not to contradict its plain language.^ The general usage of trade,
in the city where the insurance is effected, may also be pt-oved for
tliis purpose ; but not the usage or practice in a particular office,
or among a particular class of underwriters, where or to whom
the party was not in the habit of resorting to effect insurance,^
and which, therefore, cannot be presumed to have been known
and referred to by both parties as the basis of the contract ; for it
is on this ground only that evidence of usage is admitted.^
1 For the proof of agency, see supra, tit. Agency, §§ 59-67. See also ante, vol. L
{§ 416, 417 ; Brockelbfmk v. Su^e, 5 C. & P. 21. Proof of a general agency is suffi-
cient proof of authority to effect insurance on behalf of the assured. Barlow v. Leckie,
4 J. B. Moore, 8.
3 See supra, tit. Bills of Exchange, § 158 ; Nicholson v. Croft, 2 Burr. 1188.
* See anU, vol. 1. §§ 275-305.
« See arUe, vol. i. §§ 292-294 ; Robertson v. Money, By. & M. 75 ; Uhde v. Walters,
8 Campb. 16.
* Gabay v. Lloyd, 3 B. ft C. 793 ; Astor v. Union Ins. Co., 7 Cowen, 202 ; Coit v.
Commercial Ins. Co., 7 Johns. 385.
« Eager v. Atlas Ins. Co., 14 Pick. 141.
sealed policy. Lockwood v. Middlesex the insured in his application for insurance,
Mut. Ins. Co., 47 Conn. 553. to show that the a!gent of the company
In England it has now been enacted by who took down the answers, omitted or
statute that a contract for marine insur- misstated some of the answers without the
ance is void unless it is contained in a knowledge of the insured. Texas Bank-
formal policy. 30 Vict. c. 23, |§ 7, 9 ; ing, &c (V>. v. Stone, 49 Tex. 4 ; Planters'
lonifles v. Pacific Ins. Co., L. R. 6 Q. B. Ins. Co. v. Sorrels, 57 Tenn. 352.
674, 7 Q. B. 517; Fisher v, Liverpool Mar- But not to show that the policy was in-
ine Ins. Co., L. R. 8 Q. B. 469, 9 Q. B. 418. tended to cover a different interest from
The recital in a premium note that a that which it purports to protect (Bi^op
policy has issued is prima facie evidence v. Clay, &c. Ins. Co., 45 Conn. 430), or to
of that fact, as agBdnst the maker of the show different stipulations (Hartford, &c.
note. N. E. M. F. Ins. Co. v. Belknap, 7 Ins. Co. v, Davenport, 37 Mich. 609).
Cush. (Mass.) 140. So this giving of the Parol evidence is also admissible to
note is evidence of the oraanization of the show that the company waived a forfeit-
company. Williams v. Cheney, 8 Gray ure, though this contradicts the state-
(Mass.), 215. So the recital in a policy ments in the receipts for the premiums,
of the receipt of the premium is prima McLean v. Piedmont, ftc. Ins. Co., 29
facie, and only prima facie, evidence of . Gratt. (Va.) 361.
that fact. May on Ins. § 581. See also The recitals of the premium notes are
anle, § 162, n. prima facie evidence of the facts stated
(a) Franklin Fire Ins. Co. v. Martin, therein. New England, ftc. Ins. Co. v,
40 K. J. L. 568. Parol evidence is how- Belknap, 7 Cush. (Mass.) 140 ; Williams
ever admissible, when the Question is on v. Cheney, 3 Gray (Mass.), 215 ; May on
the sufficiency or truth of the answers of Ins. § 581 ; ante^ § 162, n.
PABT IV.] INSURANCE. 876
§ 878. Proof of interest Secondly^ as to the proof of interest.
The plaintifPs interest in a ship may be shown, prima facie^ by
proof of possession, and acts of ownership ; which may be made
by the captain or other officer, or by any person having competent
knowledge of the facts, without the production of any documen-
tary evidence.^ But whenever the title to a ship comes strictly
in question, no claim can be received in opposition to the modes
of conveyance required by the statutes ^ Thus, where the plaintiff
claimed for a total loss as sole owner of a ship, whose register
stood in the names of himself and another, parol evidence, offered
to show that she was in fact purchased by himself, as sole owner,
was held inadmissible.' Where the interest is derived from a bill
of sale^ this document must be produced and proved as in other
cases ;^ accompanied by evidence of the registry, where this is
required by statute, in order to render the other evidence admis-
sible.*^ But the certificate of registry is not alone sufficient to
prove the plaintiff's interest in the ship, without proof of some
correspondent act of ownership.^ Whether it is conclusive
against the legal ownership of persons claiming title, but whose
names are not found therein, seems to depend on the registry acts.
In England it has been held conclusive ; but in the United States,
an insurable interest has been held sufficiently proved by evidence
of a title at common law, in a plaintiff whose name did not appear
in the register.^ This document, however, is not of itself evidence
to charge a defendant as owner of the ship, without proof that he
sanctioned and adopted it.® Where the registry of a ship is re-
quired by law to be recorded in the custom-house, a certified copy
of the record is, as we have seen, admissible in evidence.^
§ 879. Interest, legal and equitable. It is not material whether
the interest of the assured be legal or equitable. The interest of
1' Robertson v, French, 4 East, 130 ; Sntton v. Bock, 2 Taunt. 802 ; Wendover v,
Hoffeboom, 7 Johns. 808 ; Amery v, Rogers, 1 Esp. 207 ; Thomas v, Foyle, 6 Esp. 88.
* Abbott on Shipping, p. 78, by Shee.
* Ohl V. Eaffle Ins. Co., 4 Mason, 172.
« Woodward v. Larkin, 8 Esp. 287. * 4 Taunt 667, pBr Gibbs, J.
* Pirie v. Anderson, 4 Tannt 652 ; 2 PhilUpe on Ins. p. 487 ; Flower v. Young, 8
Campb. 240.
T Camden v. Anderson, 6 T. R. 709 ; Abbott on Shipping, p. 68, n. (1), by Story,
J.; Id. p. 84, n. (2) ; Bixby v, Franklin Ins. Co., 8 Pick. 86 ; Lamb v. Duiant, 12
Mass. 54 ; Tagsard «. Loring, 16 Mass. 886 ; 2 PhiUipe on Ins. p. 488 ; Sharp v. United
Ins. Co., 14 «k%n8. 201.
> Abbott on Shipping, p. 63 (Story's ed. ) ; Frazer v. Hopkins, 2 Taunt. 5 ; Smith v.
Fnge, 8 Campb. 456 ; Sitfp v. United Ins. Co., 14 Johns. 201.
' AwU, YoL i § 484.
876 LAW OF EVIDBNCE. [PABT IV.
a trustee^ ceskU ^ue tru9t^ mortgagor, mortgagee, and of the owner
of a qualified property, or of a lien, is sufficient for this purpose.
So, of a lender on bottomry ; or of the borrower, so far as regards
the surplus value ; or of a captor ; or of one entitled to freight,
or commissions ; or of the owner, notwithstanding the charterer
has covenanted either to return the ship or pay her value.^ (a)
And under a general averment of interest, the assured may prove
any species of interest,' either in the whole or in any part, and
recover accordingly.^
§ 880. Interest in goods. The interest of the assured in the
goods may be proved by any of the usual mercantile documents of
title, such as bills of sale, or of parcels ; bills of lading, whether
the holder be the shipper or the indorsee; invoices, with proof
that the goods were on board ; bills of charges of outfit, clearances,
and the like.^ Evidence of possession, also, and of other acts of
ownership, may be received in proof of interest in the goods on
1 Marshall on Ins. ppu 101-116, 719-721 (8d ed.) ; Higginson v. Dall, 13 Mass. 96 ;
Oliver v. Greene, 8 Maas. 183 ; Gordon v. Mass. Ins. Co., 2 Pick. 249, 259 ; Rider v.
Ocean Ins. Co., 20 Pick. 259 ; Bartlett v. Walter, 13 Mass. 267 ; Reimy v. Clarkson, 1
Johns. 885 ; Locke v. N. Amer. Ins. Co., 13 Mass. 61; Strong v. Mannf. Ins. Co., 10
Pick. 40 ; Holbrook v. Brown, 2 Mass. 280 ; Smith «. Williams, 2 Caines, Cas. 110.
The interest of a respondentia or bottomry creditor mast be specially insured as sach.
Glover v. Black, 8 Burr. 1894 ; Pouveiin v. Louisiana State Ins. Co., 4 Rob. (La.) 234 ;
Putroan v. Mercantile Ins. Co., 5 Met. 386.
3 Marshall on Ins. p. 179 (3d ed.). See also Crowly v. Cohen, 8 B. & Ad. 478.
* Marshall on Ins. pp. 718, 724 (8d ed.) ; Russell v, Boehm, 2 Str. 1127 ; Dickson
V. Lodge, 1 Stark. 226 ; McAudrew v. Bell, 1 £sp. 373 ; 2 Phillips on Ins. pp. 449-491.
See, as to the indorsee of a bill of lading, Newsom v. Thornton, 6 East, 41, per Ld.
Ellenborough. But a bill of lading of the outward cargo is not sufficient proof of in*
terest in the return cai^go. Beal v. Pettit, 1 Wash. C. C. 241. Nor is a bill of lad-
ing, " contents unknown,'* any evidence of the quantity of goods, or of property in
the consignee. Haddow v. Parry, 3 Taunt 303. An authenticated copv of an official
report of the caigo of a ship, made pursuant to law, by an officer of the customs, is
evidence of the smpment. Flint v. Fleming, 1 B. & Ad. 45, 48 ; Johnson v. Ward, 6
Esp. 47.
{a) So the interest of one who has en- ceming the bnrden of proof, that he who
tered into an oral contract to buv the ship relies on the existence of any fact must
is a sufficient interest to enable him to prove its existence, the burden of proving
make a valid contract of insurance. Am- the interest of the plaintiff, in an action on
sinck V. American Ins. Co., 129 Mass. a policy, is generally on the insured, since
185. the fact of ms interest is a material fact in
If there is in the policy a stipulation his case. Ante, $ 376. It sometimes,
declaring the- policy void if the interest of however, happens that the burden of prov-
the assured is less than the entire unin- ing no interest is on the insurer. Thus,
numbered interest, it has been held that in an action to recover a loss which has
a breach of this stipulation is waived if already been paid to the insured by the in-
the agent who issues the policy knows that surer, on the sround that the insnred had
the insured is not the sole owner. Mark no interest, the bnrden of proof of tliia
V. National Fire In& Co., 24 Hun (N. Y.), fiict is on the plaintifil Hooper v, Bobin-
565. son, 98 H. & 528.
In accordance with the general rule con-
PART IV.] INSURANCE. 877
boardy as well as of interest in the ship.^ And it is sufficient that
the plaintiff was interested when the risk commenced, though he
had no interest when the policy was effected.^ If the defendant
pay» money into courts this is a conclusive admission of the con-
tract, and of the plaintiff's interest as alleged.^
§ 881. Interest. Open or Taiued policy. Wliere the insurance
is effected by an open policy^ the value of the plaintiff's interest
must be proved aliunde ; but if it be a valued policy^ the policy
alone \% prima fade evidence of the value of the property insured.*
The usual recital in the policy, of payment of the premium, is also
sufficient proof of that fact ; but in the absence of such recital,
the plaintiff must prove it by other evidence.*
§ 882. inoeption of the risk. Thirdly^ as to the Ineeption of the
Riek. This applies to insurance upon a voyage named, and is
proved by any competent evidence, that the ehip actually sailed,
within a reasonable time, upon the voyage intended.^ If the in-
surance is for one voyage, but the ship actually sails upon another^
the course of both voyages being the same to a certain point, the
policy is discharged, though the loss happened before the ship
reached the dividing point.^ But if the ship sails on the voyage
insured, a deviation meditated, but not carried into effect, will
not vitiate the policy.® And the sailing must be voluntary ; for
if the ship, before the lading is completed, be driven from her
moorings by a storm, and be lost, the averment of sailing is not
considered as proved.^ The risk on goode does not commence
until goods are put on board, at the place named ; ^^ (a) but the
1 Supra^ § 878 ; 2 Phillips on Ins. p. 489. > Rhind v. Wilkinson, 2 Taunt. 287.
< See anU, ¥•!. 1. $ 205 ; Bell v. Ansley, 16 East, 141, 146.
* ManhaU on Ins. p. 719 (8d ed.); 2 Phillips on Ins. pp. 206-228, 491 ; Lewis v.
Backer, 2 Burr. 1171 ; AIsop v. Commercial Ins. Co., 1 Sumner, 451.
* De Gaminde v, Pigon, 4 Taunt 246 ; Dalzell v. Mair, 1 Campb. 682 : anU,
§877.
* Koster r. Inness, Ry. k M. 836 ; Cohen v. Hinckley, 2 Campb. 51.
7 Woolridge v. Boydell, 1 Doug. 16 ; Marsden v. Reid, 8 East, 572 ; 2 Phillips on
Ins. p. 148 ; Seamens v. Loring, 1 Mason, 127.
* Foster t. Wilmer, 2 Stra. 1249 ; Hare r. Trayis, 7 B. & C. 14. See 2 Phillips on
Id& c. 11, 12 ; Marshall on Ins. pp. 260, 278 (8d ed.) ; Lee v. Gra^, 7 Mass. 849 ; Cof-
fin V. Newbnryport Ins. Co., 9 Mass. 486 ; Hohart v. Norton, 8 Pick. 159.
* AUthol V. Bristow, 6 Taunt. 464.
» ManhaU on Ins» pp. 244, 245, 278, 724 (8d ed.).
(te) In the absence of a distinct state- Folsom v. Merchants', &c. Ins. Co., 88
nant in the policy of the port whence the Me. 414. A risk on cpDods to be shipped
Toyage is to be made, the risk will com- between two certain days does not corer
menoe ftvm a port where the vessel lay goods shipped on either of those days,
whn .th« policy was made, and where the Atkins v. boylston, fto. Ins. Co., 5 Met.
property uumied was taken on board. (Mass.) 489.
1
878 LAW OP EVIDENCE. [PABT IV.
risk on freight may be shown to have commenced, by evidence of
a contract to put the goods on board, the performance of which
was prevented by some of the perils insured against.^ If the risk
never commenced, tlie plaintiff, in an action upon the policy, and
in the absence of fraud, may recover back the premium, upon the
common counts.'
§ 883. Warranties. Fourthly ^ as to the performance of prece-
dent Conditions and compliance with Warranties.^ All express
warranties, and all affirmative averments, are in the nature of
conditions precedent to the plaintiff's right to recover ; and there-
fore must be strictly proved. Such are warranties that the
property is neutral; that the ship sailed at the time specified;
that she departed with convoy ; that she was of the force named ;
and the like. The first of these, namely, the neutral character of
the property, being partly negatived in its nature, is proved prima
facie by general evidence, leaving the contrary to be shown by the
defendant.^ The acts of the captain in carrying neutral colors,
and in addressing himself to the neutral consul while in port, and
the like, are also admissible for the shipper, as prima facie evi-
dence of the neutral character of the sliip.^ If the warranty is
that the ship shall sail on or before a certain day^ stress of weather,
or an embargo by the order of government, is no excuse for non-
compliance with the engagement.^ It must also appear that the
ship actually set forward on the voyage, in complete readiness for
sea. Therefore, an attempt to sail, and proceeding a mile or twp
and then putting back, by reason of unfavorable weather ; or pro-
ceeding with only part of the crew, the remainder being engaged
and ready to sail ; or dropping a few miles down the river, — is
no compliance with this warranty .^
^ Flint V. Fleming, 1 E & Ad. 45 ; Davidflon v, WiUuey, 1 M. & S. 318.
3 Penson v. Lee, 2 B. & P. 830 ; Penniman v. Tucker, 11 Maas. 86 ; Foster v. United
States Ins. Co., 11 Pick. S5.
« See jNW^, S§ S9IM01, 406.
« MarshaU on InAJpp. 722, 728, (8d ed.); 2 Phillipa on Ins. pp. 498-602.
* Archangelo v, Tliompeon, 2 CampK 620. And see Beniardi v. Motteanx, 2
Doug. 575.
^ Nelson v. Salvsdor, 1 M. & Malk. 309 ; Sanderson v. Bosber, 4 Gampb. 64, n.;
Hore V, Wbitmore, Cowp. 784. If the averment is that the ship sailed after maldng
the ttolicy, and the proof is that she sailed before, the rarianoe is not material, pro-
Tided the averaient aoes not arise oat of the contract. Peppin v. Solomons^ 6 T. R.
406. An embaigo at the place of rendezrous of a convoy, after the ship has actiudly
sailed from her port, saves the warranty. Earle v, Harris, 1 Dong. 857.
T Moir V. Royal Ex. Ass. Co., 4 Campb. 84 ; 6 Tannt. 241 ; Qraham v. Bama, 8 K.
& M. 125 ; 6 B. ft Ad. 1011 ; Pettigrew «. Pringle, 8 B. ft Ad. 514 ; Bowen «. Hope
Ins. Co., 20 Pick. 275 ; Robinson v. tfanolactiuuig Ins. Ca, 1 Ifet liS.
PART IT.] mSUBANCE. 879
§ 884. Warranty to sail with oonvoy. Compliance with a war-
ranty to sail with convoy may be proved by the official letters of
the commander of the convoy ; or, by the log-book of the convoying
ship of war.^ And where the non-performance of this warranty
would have involved a breach of law, it will be presumed that the
law has been obeyed, until the contrary has been shown.^ Sailing
orders are generally necessary to the performance of this warranty,
if, by due diligence on the part of the master, they could have
been obtained.^ But the state of the weather is not a sufficient
excuse for not joining the convoy.*
§ 885. LoM. Fifthly^ as to the Loss. The plaintiff must also
prove that the property insured was lost, and that the loss was
not remotely but immediately caused by one of the perils insured
against. Whether the loss which is proved will satisfy the aver-
ment, is a question for the court, but the averment itself must be
proved.* (a) The certificate of a vice-consul abroad is no evidence
of the amount of the loss;^ nor is the protest of the captain ad-
missible as original evidence of the fact of loss, though it may be
read to contradict his testimony.^ If there is no proof of the
amount of the loss, the plaintiff will be entitled to nominal dam-
ages only.®
§ 886. LoM. The loss of a ship may be shown not only by
direct proof, but by evidence of any circumstances inconsistent
with the hypothesis of her safety; such as that, having sailed
upon the voyage insured,® no intelligence has been received con-
cerning her, either at her port of departure, or at her port of
destination, both of which should be resorted to,^^ although a
reasonable time has elapsed ; in which case the jury will be ad-
vised to presume that she foundered at sea.^ If it has been
» Watson ». King, 4 Campb. 275 ; Disraeli «. Jowett, 1 Esp. 427.
• Thornton v. Lance, 4 Campb. 281.
• Webb V, Tliomp«)n, 1 B. & P. 6 ; Hibbert v. Pigon, 8 Dong. 224 ; Anderson v.
Pitcber, 2 B. & P. 164 ; Sanderson v. Busher, 4 Campb. 54, n.
^ Sanderson v. Busber, 4 Campb. 54, n.
» Abithol V. Bristow, 6 Taunt 464. • Waldron v. Combe, 8 Tannt. 162.
' Scnat p. Porter, 7 T. R. 158 ; Christian «. Combe, 2 Esp. 489.
■ Tanner v. Bennett, By. & M. 182.
• Koster ». Jones, By. & M. 888 ; Cohen v. Hinckley, 2 Campb. 51.
w Twemlow v. Osinn, 2 Campb. 85. But see MarshaU on Ins. p. 25 (8d ed.).
u Newby v. Bead, Park on Ins. 106 ; Honstman «. Thornton, Holt's Cas. 242 ; Pad-
dock V. Franklin Ins. Co., 11 Pick. 227.
(a) The time at which the loss is the destruction of the vessel. Duncan v,
deemed in law to take place is when the Great Western Ins. Co. , 1 Abb. (N. Y.)
iigniy is received which ultimately causes App. Dec. 5, 62.
882 LAW OP BVIDENCB. [PABT IT.
unknown is not supported by proof of seizure for breach of the
revenue laws of a foreign government.^ But a general averment
of loss by seizure and confiscation by a foreign government is
proved by evidence of the seizure by the officers of the govern-
ment, without putting in the sentence of condemnation.* And in
the case of seizure of the goods by a foreign government for a
cause not affecting the ship, the incidental and consequent deten-
tion of the ship is not provable against the underwriters on the
ship only, as a loss by capture and detention.*
§ 889. UoeDsed Toyage. If the voyage was legalized or pro-
tected by a license^ the license, if existing, must be produced and
proved, and shown to apply to the voyage in question.* If this
document is lost, it may be proved by secondary evidence, as in
other cases.^ If it was granted upon condition, the plaintiiOF must
show that the condition has been performed.^ And if it was a
foreign license, it is a necessary part of the secondary evidence
not only to show that the party had a paper purporting to be such
a document, but to give some circumstantial proof ^at it was
genuine ; such as, that it was received from the hands of a proper
officer, or that it had been seen and respected by the officers of
the government which issued it."
§ 890. Barratry. A loss by barratry is proved by evidence of
any species of fraud, knavery, or criminal conduct, or wilful breach
of duty in the master or mariners, by which the freighters or
owners are injured.® (a) If the master should proceed on his
> Matthie v. Potts, 8 B. & P. 28. * Camithers v. Gray, 8 Campb. 142.
> Bradford v. Levy, 2 C. & P. 137 ; Ry. & M. 831.
« Barlow v. Mcintosh, 12 East, 811.
* AtUc, vol. i. §§ 84, 509, 560, 575 ; Rhind v, Wilkinson, 2 Taunt. 287 ; Eensin^
ton V. Inglis, 8 East, 273 ; Eyre v. Palsgrave, 2 Campb. 605.
• Camelo «. Britten, 4 B. & Aid. 184. ^ Everth v. Tunno, 1 Sterk. 508.
■ Vallejo V. Wheeler, Cowp. 156, per Aston, J. ; Lockyer v. Offley, 1 T. R 259,
per Willes, J. ; Marshall on Ins. c. 12, { 6 ; 1 Phillips on Ins. 258 ; Stone v. National
Ins. Co., 19 Pick. 84, 86, 87, per Putnam, J. ; Wiggin v. Amory, 14 Mass. 1 ; Ameri-
can Ins. Co. V. Danham, 15 Wend. 9. Barratry may be committed by the general
owner, as against the freighter. Vallejo v, Wheeler, supra.
wort V, Shepard, 1 El. & El. 447, it was (a) Mere negligence of the pilot in
held that a forcible dispossession of the charge is not barratry. Levy v. New Or-
master and mariners by passengers acting leans, &c. Ins. Co., 2 Woods C. Ct. 6a.
"piratically and feloniously " might prop* There must be some fraudulent or wrong*-
erly be deemed a seizure. In Dole v. ful intent on the part of the master or
New Eng. Mut. Mar. Ins. Co., 6 Allen mariners. Atkinson v. Great Western Iur.
(Mass.), 878, it was held that a capture by Co., 65 N. Y. 581. See Lawton v. Son
a cruiser of the so-called Confederate Mutual Ins. Co., 2 Cush. (BCass.) 500, and
States was included in a warranty that cases there cited ; Patapsco Ins. Co. o.
the vessel shall be free from captui«, seiz- Coulter, 8 Pet. (U. 8.) 222, 234.
are, or detention.
PABT IT.] INSUBANCE. 888
voyage in the face of inevitable danger of capture, it is barratry,^
It is suflScient for the plaintiff, in proof of barratry by the master,
to prove that the misconduct was that of the person who acted as
master, and was in fact treated as such, without either showing,
negatively, that he was not the owner, or affirmatively, that some
other person was the owner.^ But it must appear that the act
was done from a fraudulent motive, or with a criminal intent, or
in known violation of duty ; for if it was well intended, thougli
injudicious and disastrous in its results, it is not barratry.^ If
the property was barratrously carried into an enemy's blockaded
port, and lawfully condemned as enemy's property, it does not
disprove the allegation that the loss was occasioned by the bar-
ratry of the master in carrying the property to places unknown,
whereby it was confiscated.*
§ 891. stranding. A loss by stranding is proved by evidence
that the ship has been forced on shore, or on rocks or piles, by
some unforeseen accident, and not in the ordinary course of navi-
gation, and there rested, or was fixed, so that the voyage was
interrupted. A mere temporary touching of the ground in passing
over it, or grounding in a tide harbor in the place intended, is not
a stranding, even though damage ensues from some hard substance
on the bottom.^ (a) And where a ship was run aground by col-
lision with two others, in the Thames, this is said to have been
held no stranding.^ If the stranding is complete, the degree of
damage, and the duration of the time of the vessel's remaining on
shore, are not material.'^
§ 392. Amount of loss. The amount of the losa^ if it is total,
may be shown, as we have already seen, by the policy, with proof
1 Earle p. Rowcroft, 8 East, 126 ; Richaidsoa v. Maine F. k M. Ins. Co., 6 Mass.
102, 117.
* Ross V, Hunter, 4 T. R. 33.
■ ManbaU on Ins. 521 (3d ed.); Phyn v. Royal Excb. Ass. Co., 7 T. R. 506. Gross
malversation is evidence of fraud. Ibid. ; Heyman v. Parish, 2 Campb. 150 ; Earle v.
Rowcroft, 8 East, 128. See also Hucks v, Tbomton, Holt's Cas. 30 ; Wiggin v. Am-
oiy, 14 Mass. 1.
* Goldscbmidt v. Wbitmore, 3 Taunt. 508.
<^ Hannan «. Vaux, 3 Campb. 429 ; McDouffle v. Royal Excb. Ass. Co., 4 M. & S.
503 ; Eingsford v. Marsball, 8 Bing. 458 ; Wells v. Hopwood, B. & D. 20 ; Bisbop v.
Pentland, 7 B. & C. 224 ; 2 Pbillips on Ins. 330-385 ; Marsball on Ins. 282, 283
(Sded.X
* Baring v. Henkle, Marsball on Ins. 232 (3d ed. ). Sed qncere.
^ Hannan v. Yanz, 3 Campb. 430 ; Baker v. Towry, 1 Stark. 436.
(a) See Corcoran v, Gamey, 16 Eng. 13 Obio, 48 (1844); and Potter v. Suffolk
L. & Eq. 215; Lake v. Columbus Ins. Co., Ins. Co., 2 Sumner C. Ct. 197 (1835).
884 LAW OP EVIDENCE. [PABT IT.
of some interest, if it is a valued policy ; or by any otber competent
evidence, if it is not.^ Shipwreck is often, but not necessarily,
evidence of a total loss of the ship. It depends upon the nature
and extent of the injury or damage thereby occasioned. If the
loss is not actually total, but the enterprise or voyage insured is
defeated, or if the property insured specifically remains, but is
damaged to a fatal extent, as, for example, to more than one-half
of its value, this, though in fact it may be but a partial loss, may
be made constructively total by an abandonment of tlie property
by the assured to the underwriter.^ (a) When, therefore, the
^ See 9upra, § 881 ; 8 Maaon, 71. The value of gooda, in an open policy, is made
up of the invoice price, together with the premium and commiamona. Munahall on
Ins. 629(3ded.).
s Marshall on Ina. 566, 567, 592 (8d ed.) ; 1 Phillips on Ina. 882-888, 401-406,
441-449 ; 8 Kent, Conim. 318-885 ; Bradlie v. MaryUnd Insurance Co., 12 Feten,
878. The law of abandonment was fully discussed, and aU the cases reviewed, by Mr.
Justice Story, in his learned opinion in Peele v. Merchants' Ins. Co., 8 Mason, 27-65.
The general principle, extracted from all the cases, in regard to ships, he thus states :
" The right of altandonment has been admitted to exist, where there is a forcible dis-
possession or ouster of the owner of the ship, as in cases of capture ; where there is a
moral restraint or detention, which deprives the owner of the free use of the ship, as
in cases of erobai^goes, blockades, and arrests by sovereign authority ; where there is a
present total loss of the physical possession and use of Sie shiis as in case of submer-
sion ; where there is a total loss of the ship for the voyage, as in case of shipwreck, so
that the ship cannot be repaired for the voyage in the port where the disaster happens;
and, lastlv, where the injury is so extensive, that by reason of it the ship is useless,
and yet the necessary repairs would exceed her present value. None of these cases
will, 1 imagine, be disputed. If there be any general principle that pervades and
governs them, it seems to be this, that the right to abandon exists, whenever, from ths
circumstances of the case, the ship, for ail the useful purposes of a ship for the voyage,
is, for the present, gone from the control of the owner, and the time when she will be
restored to him in a state to resume the voyage is uncertain, or unreasonably distant,
or the risk and expense are disproportioned to the expected benefits and objects of the
voyage. In such a case, the law deems the ship, thou^^ having a physiiaid existence,
(a) Thouffhthe policy is worded "against " But if the ship herself is once totally
total loss only," a constructive total loss is lost by a (teril insured against, and the
covered by it. O'Learyv. Stymest, 6 Allen master, using due diligence, is unable to
(N. B.), 289 ; Adams v. Mackenzie, IS regain possession of her in such a condi-
C. B. N. 8. 442. ^ tion and under such circumstances as to
In the United States the right to aban- enable her to puraue the voyage for which
don depends on the actual state of facts on she was insured, the right to abandon and
which the abandonment is based, and, if recover for a constructive total loss atUl
It Appears that a sufficient ground existed remains without regard to the question
for an abandonment, a subsequent restitu- whether at some future time, over whicli
tion will not affect the ri^ht of the in- the master has no oontrol, he might be
sured to recover for a total loss, unless the able to regain possession of her on pay*
restitution takes place before the abandon- ment of MilvaAe, and without r^gara to
inent. In the English law, on the con- the proportion between the amount of the
trary, any recovery of the vessel before the salvage and the entire value of the veascL**
trial of the case will prevent the insured Snow v. Union Ins. Co., 119 Mass. 592.
from recovering a total loss. Amould, And to the same effect, Bigelow, C. J., in
Marine Insurance, vol. iL p. 294. In a the earlier case of Green v. Pacific Marine
recent case, the effect of a restoration on Ins. Co., 9 AUen (Mass.), 228.
a previous abandonment is clearly stated
by Gray, C. J., as follows :~
PABT IV.] INSURANCE. 885
assured goes for a constractively total loss, he must prove, first,
the extent of the loss in fact, as exceeding half the value, or as
being destructive of the enterprise ; (a) and, secondly, his aban*
doninent of the property to the underwriters. And in estimating
the cost of repairs, in order to ascertain the right to abandon, if,
by reason of the perils insured against, it has become necessary
to replace some decayed timbers with new ones, which, but for
M ceasiog to exist for pmpoaeB of utility, and therefore sabjects her to be treated as
lost." £e 8 Mason, 65. See also Am. Ins. Co. v. Ogden, 15 Wend. 582. Whether
an abandonment is necessary, where the ship or ^oods have been necessarily sold by
the master, quaere ; and see Roux v. Salvador, 1 Bing. N. C. 526, that it is ; and Gor-
don V. Massachusetts F. k M. Ins. Co., 2 Pick. 249, 261, 267, and cases there cited,
approved in Patapsco Ins. Co. v, Southgate, 5 Peters, 628, that it is not {b).
(a) The ^iroof of a loss exceeding half the damage be somewhat short of a com-
the value ^ves a right to abandon only plete wreck, yet if it be so great as to
because it is presumptive proof of such a make it wholly impossible for the master
state of tacts as constitutes a constructive by any means in his power to repair the
total loss. If, therefore, it is shown that vessel so as to keep the sea as a ship, or to
the vessel has arrived at her port of desti- do so except at a cost that would exceed
nation, though she b damaged to that the ship's value when repaired, or if she
extent, and the master sells because he be stranded in such a position that her re-
cannot got funds to repair, the owners covery for the purposes of the adventure
cannot abandon. Allen v. Commercial Ins. is beyond all hope, and the master is con-
Ca, 1 Gray (Mass.), 154. But if she is at sequent! v acting a^ima fide for the bene-
a port of refuge and the master sells for the fit of all concerned, and sells the ship,
same reason, tlie owners may claim a con- where she lies, as the only chance of sav-
structive total loss. lb. ing anything from disaster, the assured
Wliere the policy is upon cargo, after may treat this as an absolute total loss of
any consideTable portion of the goods in- the ship, and recover the whole amount
sured, though less than half the value of the insurance without giving notice of
(in this case thirty -eight )ier cent), has ar- abandonment." And this U now settled
rived at the port of destination, and been law. Cambridge v. Anderton Ry., Mood,
landed in a peifect state, the insured can- 60 ; McCall v. Sun Mut Ins. Co., 66
not abandon and recover as for a total loss. N. Y. 506 ; Butler v. Murray, 80 N. Y.
SiUoway v. Neptune Ins. Co., 12 Gray 88 ; The Amelie, 6 Wall. 30. But cf.
(Mass.), 88. Cf. Merchants' Marine Ins. Stephenson v. Piscataqua, &c Ins. Co.,
Co. «. New Orleans Marine Ins. Ck>., 24 La. 54 Me. 55. It is said that Lord Campbell
An. 805. Whether the arrival of a small never could be reconciled to it, and uni-
portion of the goods at the port of desti- formly held that a notice of abandonment
nation in a totoUy valueless condition will was necessary in all cases where the vessel
prevent an abandonment is a nice ques- stUl existed in specie. In a similar case
tlon. It was decided in the negative, in in New Brunswick, Wood v, Stymest, 5
WallcTStein V. Columbian Ins. Co., 3 Robt. Allen (N. B.), 814 (1862), it was held, in
628* and 44 N. Y. 204 (1865). If the accordance with the view of Lord Camp-
portion of the goods saved arrive at the bell (who is quoted lai^W by the judge in
port of destination before any abandon- delivering the oninion of the court), that
ment is made, ^e burden will be on the though the wrecK ma^ be justifiably sold
plaintiff to show that It was of no value, there must still be notice of abandonment.
and no proof which falls short of this will The facts of this case, however, did not
be sufficient to prove a total loss. Young constitute that urgent necessity for a sale
V. Pacific Marine Ins. (^., 34 N. Y. Sup. which is admitted on all hands to be the
Ct. 841 (1872) ; Forbes v. Manufac. Ins. only justification of a sale and claim for
Co., 1 Gray (Mass.), 871. a total loss without abandonment, and,
(b) On this point, Mr. Amould in his although the language of the court is very
work on Marine Insurance, vol. ii. p. 598, strong, it may be doubted whether the
says : " It is also established in our juris- case impugns at all the authority of the
pmdence (i. e. in England), that although cases which settle the English doctrine.
TOL. II. 25
886 LAW OP EYIBBNCE. [PABT lY.
the injuiy, were strong enough for the voyage, the expense of
such repairs is to be taken into the estimate; the rule in this
respect being, tliat^ when the injury which the insurers are obliged
to make good is the caus^ of the decayed parts requiring repairs,
then the insured may abandon.^ (a) And, more generally speak-
ing, the rule is stated to be, that, ^^ if the vessel is so injured by a
peril insured against as to be useless to the owner, except at an
expense that no prudent man, if uninsured, would incur, — an
expense far exceeding her value when repaired, — this is, to all
intents and purposes, a total loss."^ But if the abandonment
has been accepted, this supersedes the necessity of proof of the
loss ; ^ (() and long acquiescence without objection, under circum-
stances calling for some action on the part of the underwriters,
is evidence from which an acceptance may be inferred by the
jury.* (0
§ 893. Adjnstment. The amount of a loss may be proved by an
ac{fttstmentj signed by the underwriters, which is usually indorsed
on the back of the policy. But the form of it is not material •
for the acceptance of an abandonment is an admission of the loss
^ Hyde v, Louis. State Ins. Co., 1 Mart n. 8. 410 ; 2 PhiL <m Ins. 291, died and
affirmed in Phillips v. Naire, 11 Jnr. 465.
s Irving V. Manning, 2 M. O. & Sc. 784, 788, per PoUock, C. B.
* 1 Phillips on Ins. 449, 450 ; Smith v, Robertson, 2 Dow, 474 ; Brothereton v.
Barber, 5 M. & a 418.
* Hudson V. Harrison, 8 B. & B. 97 ; 8. 0. 8 Moore, 288 ; Smith «. Robertson, 8
Dow, 474. The observation of Stoiy, J., in Peele v. Merchants' Ins. Co., 8 Mason, 81,
that the silence of the underwriter is not, per ae, proof of his acceptance, is not con-
ceived to impugn the rule in the text. See ante, vol. i § 197 ; Peele v. Sufiblk Ins.
Co., 7 Pick. 254 ; Reynolds v. Ocean Ins. Co., 22 Pick. 191 ; 1 Met 160.
(a) The abandonment transfers all the (e) A general average loss upon tlie
interest of the insured to the insurers, so subject insured is to be paid in full by the
far as the interest is covered by the policy, insurer, without deduction, and without
and relates back to the time of the loss, reference to the question whether the ves-
The underwriters are not bound to pay sel, if it happen to be a vessel, can or can-
over the money on the loss before they not be repainid, and at what cost in
bring suit to recover against third |)arties reference to her value. The distinguish-
for me loss of the vessel. Their title Ib ing characteristic of such a loss is, uiat it
perfect when a valid abandonment has is voluntarily incurred by the owner of
been made and accepted. Graham v. one of the subjects at risk, for the benefit
Ledda, 17 La. Ann. 45 ; Mills «. Mary of aU. The cutting away Uie masts of a
£. Perew, 15 Blatchf. C. Ct. 58; The vessel, and the consequent damages, an
Manistee, 7 Biss. C. Ct. 85. genei'al-averace charges, although the ves-
(6) An abandonment once accepted sel is in balhst, and there is therefore
estops the insurer from setting up as neither freight nor caigo to oontribate.
a defence the fact that the assured had Greely v. Tremont Ins. Co., 9 Codi.
broken certain clauses in the policy, l^e- (Mass.) 415.
due V. Provincial Ins. Co. of Canada, 19
L. Can. Jurist, 281.
PABT lY.] INSUBANOB. 887
as total.^ In whatever form the adjustment may be, it is an ad-
mission of all the facts necessary to be proved by the assured to
entitle him to recover in an action on the policy. It is not, how-
ever, conclusive ; but, like other prima fade evidence, it throws
the burden of proof on the other party, to impeach it ; which he
may do by showing that it was made under a mistake of fact, or
procured by fraud in the assured or his agent.^ In cases proper
for general average, it is the duty of the master, on his arrival at
the foreign port of destination, to have the loss adjusted by a
competent person, according to' the usage and law of the port;
and, being thus fairly made, it is conclusive and binding upon all
the parties concerned.'
§ 394. PraUminary proo£ The clause usually inserted in poli-
cies, that the money is to be paid in a certain number of days,
after preliminary proof of loss^ is liberally expounded, requiring
only the best evidence of the fact in possession of the party at the
time. Proof, in the strict and legal sense, is not required. Thus,
the protest of the master,^ or a copy of the letter from him to the
correspondents of the owner transmitted by them to the owner,
and stating the loss,^ or the report by a pilot of the capture of the
ship,^ have been held suJfBcient, that being the best evidence the
party possessed.^ Under a policy containing this clause, proof of
the loss alone has been held sufficient, without any proof of in-
terest ; ' but if evidence of interest is required, the production of
the usual mercantile documents, such as the bill of lading, invoice,
bill of parcels, and the like, is sufficient.^ And whatever be the
1 Bell V. Smith, 2 Johns. 98. An award of arbitrators is an a^ostment New-
bnryport Ins. Co. v, Oliver, 8 Mass. 402.
* See ante, vol. i §§ 209, 212 ; 3 Kent, Comm. 839 ; 1 Phillips on Ins. 500-502 ;
Marshall on Ins. 642-647 (Sd ed.), and cases there cited; Dow v. Smith, 1 Caines, 82;
Bilbie v. Lnmley, 2 East, 469 ; Faugier v, Hallett, 2 Johns. Cas. 233 ; Haigh v. De la
Coar, 8 Campb. 319. An agent who has authority to subscribe a policy has also au-
thority to sign an adjustment of loss. Richardson v, Anderson, 1 Campb. 43, n. ;
Chesapeake Ins. Co. v. Stark, 6 Cranch, 268.
* Strong 9. New York Firera. Ins. Co., 11 Johns. 323 ; Simonds v. White, 2 B. &
C. 805 ; 4 I>owl. & Ry. 375 ; Daglish v. Davidson, 5 Dowl. & Ry. 6 ; Loring v. Nep-
tnne Ins. Co., 20 Pick. 411. But it does not bar the ship-owner from claiming of the
underwriter a loss not included in the foreign adjustment. Thornton v. Unit^ States
Ins. Co., 3 Fairf. 150 ; 3 Kent, Comm. 224.
^ Lenox v. United Ins. Co., 3 Johns. Cas. 224.
* Lawrence v. Ocean Ins. Co., 11 Johns. 241.
* Mnnson v. New Eng. Ins. Co., 4 Mass. 88.
7 Ibid. See also Barker v. Pheniz Ins. Co., 8 Johns. 307 ; Lovering v. Mercantile
Ins. Co., 12 Pick. 348.
* Talcott V. Marine Ins. Co., 2 Johns. 130.
9 Johnston v, Columbian Ins. Co., 7 Johns. 315.
388 LAW OP EVIDENCE. [PABT lY.
nature of the preliminary proof, if the underwriter does not object
to its sufficiencj at the time it is exhibited, but refuses to pay the
loss on some other specified ground, the objection of insufficiency
in the proof is waived.^ (a)
§ 395. Defences. The specific defences usually made to an
action on a marine policy are of two classes ; namely, (1.) Mis-
representation or Concealment of material facts, by the assured,
during the time of treating for the policy ; (2.) Breach of War-
ranty.
§ 396. MisrepreBantation. Concealment. And, first, as to Mts-
representation and Concealment. As this contract requires the
highest degree of good faith, and the most delicate integrity, the
asssured is held bound to communicate to the underwriter, at
the time of the treaty, every fact which is in truth material to
the risk, and within his knowledge, whether he deems it material
to the risk or not ; and all the information he possesses in regard
to material facts, though he does not know or believe it to be true,
and it proves to be false.* And where there are successive under-
writers on the same policy, a misrepresentation to the first has
been held a misrepresentation to all.' Nor does innocency of in-
tention, or mistake, on the part of the assured, make any difference ;
for the underwriter is equally injured, whether he was misled
through ignorance or fraud, and the policy, in either case, is void.*
But a representation, though untrue, will not avoid the policy, if
1 VoB8 V, Robinson, 9 Johns. 192 ; Martin v. Fishing Ins. Co., 20 Pick. 889 ; post,
§406.
2 Lynch v. Hamilton, 8 Taunt. 37 ; Marshall on Ins. 449-478 (8d ed.) ; 1 Phillips
on Ins. c 7 ; Alston v. Mechanics' Ins. Co., 4 Hill (N. Y.), 829 ; Bryant v. Ocean
Ins. Co., 22 Pick. 200 ; Curry v, Com'th Ins. Co., 10 Pick. 636 ; Seton v. Low, 1
Johns. Cas. 1.
* Barber v, Fletcher, 1 Dong. 306 ; Marsden v. Reid, 8 East, 673 ; 1 Phillips on
Ins. 84 ; Pawson v, Watson, Cowp. 787 ; Marshall on Ins. 454 (3d ed.). But not as
to an underwriter on a different policy, though on the same risk. Elting v. Scott, 2
Johns. 157. The doctrine of the text, however, has been questioned. See Forrester v.
Pigoii, 1 M. & S. 9 ; Brine v. Featherstone, 4 Taunt. 871.
4 Bryaut v. Ocean Ins. Co., 22 Pick. 200 ; Clark v, Manuf. Ins. Co., 2 W. & M.
472 ; 8. c. 8 How. S. C. 236.
(a) Harris v. Phoenix Ins. Co., 36 offered as preliminary proofs are only evi-
Conn. 310 ; iEtna Fire Ins. Co. v. Tyler, dence of compliance with the reouirements
16 Wend. ( N. Y. ) 63. So, if a |)articular of the policy m that respect, and not proof
defect be pointed out, silence as to others for the insured of the amount of his loss,
is a waiver. Phillips v. Prot Ins. Co., Newmark v. Liverpool Ins. Co., 80 Mo.
14 Ma 220. And a refusal to pay on 160. But see Moor v. Protection Ins. Co.,
grounds which render preliminary proof 29 Me. 97. They are prima facie evi-
unnecessary is a waiver of such proof, dence for the insurer against the insured.
Blake v. Exch. Ins. Co., 12 Gray (Mass.), Insurance Co. v. Newton, 22 Wall. (IT. S.)
266. The affidavits and accounts of loss 82.
PART IT.] IN8UBANCE. 889
the underwriter is not deceived bj it ; as, where a ship is cleared
for one port, with liberty to touch at an intermediate port, but
intending to go direct to the port of ultimate destination, such
being the known and uniform course of trade at the time, for
the sake of avoiding the operation of certain foreign regulations.^
And it is in all cases sufScient if the representation be true in
substance. If it is made by an agent, he also is bound to com-
municate all material facts within his own knowledge, and all the
information he has received, in the same manner as if he were
the principal ; and this, whether the principal had knowledge or
information of the facts or not^
§ 397. Opinions. Silanoe. On the other hand, the assured is
not bound to state his opinions^ or belief, or conclusions, respect-
ing the facts communicated ; nor to communicate matters which
lessen the risk ; or which are known, or ought to be known, to
the underwriter; or which are equally open to both parties; or
which are general topics of speculation ; or are subjects of war-
ranty.' And mere silence concerning a material fact known to
the underwriter is not a culpable concealment, if no inquiry is
made on the subject.^ The question whether the facts not dis-
closed were material to the risk is for the jury to determine ; ^
and to this point the opinions of others, however experienced in
sea risks, are not admissible,^ unless, perhaps, where the materi-
ality is purely a question of science.^
§ 398. Burden of proof. The defence of concealment being
nearly allied to the charge of fraud, the burden of proof is upon
the underwriters, to establish both the existence of the fact con-
cealed and its materiality to the risk ; but the latter may be in-
ferred from the nature of the fact itself.' If the fact concealed
1 Planche v. Fletcher, 1 Dong. 251.
* Marshall on Ins. 464 (8d ed.). The reprenentation by a broker, made at the time
of treating for the policy, is binding on the assured, unless it is withdrawn or qualified
before the execution of the policy. Edwards v. Footner, 1 Campb. 580.
* Marshall on Ins. 458-460, 472. 473 (3d ed.) ; Walden v. New York Ins. Co. , 12
Johns. 128 ; BeU v. Bell, 2 Campb. 475, 479 ; 1 Phillips on Ins. 108.
« Green v. Merchants' Ins. Co., 10 Pick. 402. And see Laidlow v. Organ, 2 Wheat.
178. 195.
* Littledale «. Dixon, 1 New Kep. 151 (4 B. k P. 151) ; McDoweU v. Fiaaer, 1
Dong. 260 ; New York Ins. Co. v. Walden, 12 Johns. 518.
« See ante, vol. i. S 441.
7 Berthon v. Longhman, 2 Stark. 258 ; 2 Stark. Evid. 649.
* Tidmarsh v. mshington Ins. Co., 4 Mason, 489, 441, per Story, J.; Fiske «.
New England Ins. Co., 15 Pick. 810, 816 ; 2 Phillips on Ins. 504 ; ante, vol. I §§ 84,
85, 80.
890 LAW OF EVIDBNCB. [PABT IT.
was a matter of general notorietj in the place of residence of the
aasuredy this may be shown to the jury, as tending to proye
that the assured had knowledge of the fact.^
§899. Wurantiaa. Secondly, 9iBiiobre(ich of toarranttf. Besides
the eocpreii warrantieiy frequently inserted in policies of insurance,
— such as, that the ship was Bafe, or sailed, or was to sail on a given
day, or should sail with convoy, or that the property was neutral, —
there are certain warranties implied by law in every contract of
this sort, — namely, that the ship shall be seaworthy when she sails ;
that she shall be documented and navigated in conformity with
her national character, and with reasonable skill and care ; that
the voyage is lawful and shall be lawfully pefformed; and that it
shall be pursued in the usual course, without wilful deviation.
A breach in any of these is a valid defence to an action on the
policy .2 (a)
§ 400. SeawortliliiMs. Tlie warranty of seaworthiness imports
that the ship is stanch and sound, of sufScient materials and con-
struction, with sufficient sails, tackle, rigging, cables, anchors,
stores, and supplies, a captain of competent skill and capacity,
a competent and sufficient crew, a pilot, when necessary, and,
generally, that she is in every respect fit for the voyage insured.'
And neither the innocence nor ignorance of the insured, nor the
knowledge of the underwriter, will excuse a breach of this war-
ranty.^ The beginning of the risk is the period to which this
warranty relates. If the vessel subsequently becomes unsear
worthy, the warranty is not broken, if the assured uses his best
endeavor to remedy the defect ; and of a neglect to do this, the
1 2 Phillips on Ins. 605 ; Idvingston v. Delafield, 3 Caines, 51-(>8 ; Bnnder v. Fsr-
riday, 16 La. 296 ; anU, vol. L § 138.
s Marshall on Ins. 358, 854 (3d ed.) ; 1 Phillips on Ins. 112, 113 ; Paddock «. Frank-
lin Ins. Co., 11 Pick. 227 ; Stocker v. Merrimack Ins. Gk)., 6 Mass. 220 ; Cleyeland «.
Union Ins. Co., 8 Mass. 808.
» 1 Phillips on Ins. c. 7, §§ 1, 2 ; Marshall on Ins. 146-160 (3d ed.).
* Marshall on Ins. 152-157 (8d ed.); Park on Ins. 848.
(a) Where the defence relied on is risk from cotton waste," inserted between
breach of warranty, and not condition pre- the statement of the snm insured and of
cedent, the answer should set it up, and the place where the property is situatsd,
the burden of proof by a preponderance constitute a proviso, the burden of proof
of evidence, is on the defendant. Jones is on Cbe insurers to show that the loos
V. Brooklyn, &c Ins. Co., 61 N. Y. 79 ; was occasioned bv cotton waste. Kingsley
Piedmont, &c. Ins. Co. v. Ewing, 92 U. S. «. Kew England, &c. Ins. Co., 8 (Sish.
877. So, where, in a policy of insurance (Mass.) 398. See also Jones Mannf. Co.
on a paper-mill and fixtures, the words, v. Manubcturers' Mat. Ins. Co., Id. 82.
" on condition that the applicants take all
PABT IT.] INSUBANOB. 891
underwriter can avail himself only when a loss has occurred in
consequence thereof.^ (a)
§ 401. Burden of proof. Where unseaworthiness of the ship is
relied on, as a non-compUance with an implied warranty, the ship
will be presumed seatforthj/y and to continue so, until the con-
trary is proved by the underwriter, or shown from the evidence
adduced on the other side.^ (&) And this may not only be shown by
any competent direct evidence, but may be proved, inferentially,
by evidence of the bad condition of the ship soon after sailing,
without the occurrence of any new and sufficient cause.^ After
1 1 PhiUiui on Ins. 117, 118 ; DebloiB v. Ocean Ins. Co., 16 Pick. 303 ; Weir v.
Aberdeen, 2 B. & Aid. 320 ; Starbuck v. New England Ins. Co., 19 Pick. 198 ; Pad-
dock V. Franklin Ins. Co., 11 Pick. 227 ; Copeland v. New En^. Ins. Co., 2 Met. 432 ;
Watson V. Clark, 1 Dow, 844 ; Hollingsworth v. Brodrick, 7 Ad. & EL 40 ; 2 N. & P.
608 ; 1 Jnr. 480.
> Parker v. Potts, 8 Dow, 23 ; Taylor v. Lowell, 3 Mass. 347 ; BamewaU v. Church,
1 Caines, 234, 246 ; Paddock v. Franklin Ins. Co., 11 Pick. 227, 286, 287 ; Martin v.
Fishing Ins. Co., 20 Pick. 889 ; Talcot v. Commercial Ins. Co., 2 Johns. 124. Bat see
Tidmarsh v. Washington Ins. Co., 4 Mason, 441, per Story, J. If the underwriters
admit, in the policy, that the ship is seaworthy, they are bound by the admission, and
cannot dispute the seaworthiness. Parfitt «. Thompson, 18 M. k W. 892.
* Marshall on Ins. 157 ; Watson v, Clark, 1 Dow, 844 ; Parker v. Potts, 8 Dow, 28 ;
Douglas V. Scougall, 4 Dow, 269 ; Park on Ins. 888 ; 1 Phillips on Ins. 116.
(a) Deshon v. Merchants' Ins. Co., 11 broke, L. R. 9 Q. B. 581 ; 1 Q. B. Diy.
Met. (Mass.) 199. If the vessel is unsea- 96 ; 2 App. Cas. 284 ; Capen v. Washing-
worthy when she sails, the fact that the ton Ins. Co., 12 Cush. (Msss.) 517. See
defect is afterwards remedied does not Jones v. Insurance Co., 2 Wdlace, Jr.
aToid the breach of the warranty. Quebec 278. In a time policy on a vessel which
Marine Ins. Co. v. Commercial Bank of at the commencement of the risk is in a
Canada, L. R. 8 P. C. 234. The word foreign port, where full repairs may be
"seaworthy" does not necessarily mean made, there is an implied warranty of
that the ship is in a state completely fit seaworthiness, both for port and in setting
for sea navigatiou, but includes in it a fit- out therefrom. Hoxie v. Pacific Mut.
ness for present navigation, either on a sea Ins. Co., 7 Allen (Mass.), 211. In this
or river, if about to sail, or sailing, on case the authorities are very fully collected
either, and a condition of repair and equip- and considered in the ai^guments of coun*
ment fit for sucH a port, if she is then m sel and the opinion of Bigelow, C. J. The
port (Small v. Gibson, 3 Eng. Law & £q. implied warranty of seaworthiness attaches
899, aflHrmed in the House of Lords, 24 to a policy for the insurance of goods as
Id. 16), and also seaworthy for the special well as that of the ship. Horter v, Mer-
purposes for which she is to be used. So, chants', kc Ins. C!o., 28 La. An. 730.
when the insurance was on a deckload, the (6) In New York, by statute, any for-
vessel was held unseaworthy if it was ne- eign vessel leaving port without a licensed
oessary to jettLson the deckload to make puot is presumed unseaworthy. Laws 1857,
her seaworthy. Daniels v. Harris, L. R. c 242. This presumption is not overcome
10 C. P. 1. In a time policy there is no merely by the fact tnat the msster took
implied warranty or condition that the ves- her out safely. Borland v. Mercantile Mut.
sel is seaworthy at the commencement of Ins. Co., 46 N. Y. Superior Ct. 438.
tlie risk or term, wherever she happens to The sinking of a boat in port is enough
be, or in whatever circumstances she is to rebut the presumption of seaworthiness,
placed at the time. The rule is otherwise Qartside v. ()rphana, &c. Ins. Co., 62 Mo.
m a voyaffe policy. Ibid. Gibson v. Smsll, 822. Or if the vessel puts back a few days
L. R. 4 H. L. C. 858 ; Thompson v. Hop- after leaving port, from inability to pro-
per, 6 El. & Bl. 192 ; Fawcus v. Sarsfield, ceed. Pickup v. Thames, Ag, Ins. O)., L.
84 Eng. L. k Eq. 277 ; Dudgeon v. Pern- R. 8 Q. B. Div. 594.
892 LAW OF EVIDENCE. [PABT lY.
proof of her actual condition, experienced shipwrights, who never
saw her, may be asked their opinion, whether, upon the facts
sworn to, she was seaworthy or not.^ But a sentence of condem-
nation for unseaworthiness in a foreign vice-admiralty court, after
a survey, though conclusive to prove the .fact of condemnation,
has been held inadmissible as evidence of the fact recited in it,
that, from prior defects, unseaworthiness might be presumed*; nor
are the reports of surveyors abroad admissible evidence of the
facts contained in them.^
§ 402. Unlawftd voyage. If the defence rest on the violation
of law by the assured, whether in the object or the conduct of the
voyage, such as non-compliance with the convoy act, or destination
to a hostile port ; or, on any neglect of duty in the master, — the
burden of proof is on the underwriter, it being always presumed
that the law has been observed, and that duty has been done,
until the contrary is shown.^ The want of neutral character is
usually shown by a decree of condemnation for that cause ; and
to this point the sentence of a foreign tribunal of competent
jurisdiction is, as we have seen, conclusive.* The fabrication
and spoliation of documents and papers are also admissible evi-
dence to the same point, though not conclusive in law.^ If the
defendant would impugn the plaintiff's right to recover for a loss
by capture, on the ground that the sentence of condenmation,
rendered in a foreign court, appears to have been founded on the
want of documents, not required by the law of nations, which
the plaintiff ought to have provided, the burden of proof is on
the defendant, to show the foreign law or treaty, which rendered
it necessary for the plaintiff to provide such documents.^
§ 403. Deviation. The defence of deviation is made out by
proof that there has been a voluntary departure from, or delay
in, the usual and regular course of the voyage insured, without
necessity or reasonable cause. The ordinary causes of necessity,
which justify a deviation, are, stress of weather ; want of necessary
^ Beck with v. Sydebotham, 1 Campb. 117 ; Thornton v. Boyal Ezch. Co., Peake's
Cas. 25 ; anU, vol. i. § 440.
3 Marshall on Ins. 151, 152 (3<1 ed.) ; Wright v. Barnard, I(tp. 152 ; Dorr «. Pacific
Ins. Co., 7 Wheat 581 ; Watson v. North Amer. Ins. Co., 2 Wash. C. C. 152 ; Saltoa
V. Commercial Ins. Co., 10 Johns. 58.
* Thornton v. Lance, 4 Campb. 281 ; awUt vol. L §§ 84, 85, 80, 81 ; 2 Phillips on
Ins. 508, 504.
« AfUe, ToL i. § 541. • Ante, vol. L | 87.
* Le Cheminant v. Pearson, 4 Taunt 867.
PABT lY.] INSUBANCE. 898
repairs, or men ; to join convoy ; to Buccor ships in distress ; to
avoid capture or detention; sickness of the captain or crew;
mutiny; and the like.^ And hence the objects or causes of
deviation are distributed into two general classes, — namely, first,
to save life ; and, secondly, to preserve the property entrusted to
the master's care.^
§ 404. Fire Insuranca. In the SECOND PLACE, as to INSURANCE
AGAINST FiBE. Here, the same general principles apply as in
the case of Marine Insurance. The declaration contains similar
allegations as to the contract, the performance of conditions, and
the loss; and the points to which the evidence is to be applied are
generally the same, differing only so far as the subjects differ in
their nature. The policy is to be produced and proved as in other
cases, together with proof of the payment of the premium, and of
the plaintiff's interest in the property ; of his compliance with all
the conditions precedent ; and of the loss, by fire, within the periojd
limited in the policy.^
1 ManhftU on In& 177-206 (8d. ed) ; 1 Phillips on Ins. 179-216 ; Coffin v. Newbuiy-
port Ins. Co., 9 Mass. 486 ; Stocker v, Hariis, S Mass. 409. Putting into a port to put
a vessel in good trim, if it conld not be conveniently done at sea, is not a deviation.
Chase v. Ei^le Ins. Co., 5 Pick. 51.
3 Turner v. Protection Ins. Co., 12 Shepl. 516.
* See Ellis on Fire and Life Insnrance, pp. 24-58, 61-66, 98, 94, in the Law Library,
vol. iv. ; 8 Kent, Conim. 870-876 ; Lawrence v. Columbian Ins. Co., 2 Pet. 25 ; 10 Pet.
507. If the insurer sues on a premium note, he must show also his compliance with
the conditions precedent to the right. Ante, § 162, n.
The following is the usual form of a count upon a valued fire policy: " For that the
Slaintiff on was interested in a certain dwelUn^-house, in , then occupied by
im, to the value of dollars, and so continued interested until the destruction of
said house by fire, as hereinafter mentioned ; and the said (defendant), on the same day,
in consideration of a premium in money then and there paid to them therefor by the
plainti^ made a policy of insurance upon the said dwelling-house, and therebv promised
the plaintiff to insure dollars thereon, from said day of until the
day of , against all such immediate loss or damage as should happen to said dwell-
ing-house by fire, other than fire happening by means of any invasion, insurrection,
riot, or civil commotion, or of any militaiy or usurped power, to the amount aforesaid,
to be paid to the plaintiff in sixty davs after notice and proof of the same ; upon condi-
tion that the plaintiff, in case of such loss, should forthwith give notice thereof to said
<H>mpany ; ana as soon thereafter as possible should deliver in a particular account thereof
under his hand, and verified by his oath or affirmation; and, if required, should pro-
duce his books of account and other proper vouchers; and should declare on oath
whether any and what other insurance was made upon said property; and should pro-
cure a certificate under the hand of a magistrate, notary-public, or cleiv3rman (most
contignoQS to the place of the fire, and not concerned in the loss, nor related to the
plaintifiT), that he was, at the time of certifying, aexjuainted witli the character and
circumstances of the plaintiff, and knew, or verily believed, that he really, and by mis-
fortune, and without fraud or evil practice, had sustained by such fire loss and damage
to the amount therein mentioned; and the plaintiff avers that afterwards, and before
the expiration of the time limited in said policy, to wit, on the day of , the
said dwelling-house was accidentally, and oy misfortune, totally consumed by fire ; of
which loss the plaintiff forthwith gave notice to said {defendants), and as soon as pos-
Able thereafter, to wit, on , ddivered to them a particular account thereof under
894 LAW OP BYIDHNCE. [PABT IT.
§ 405. LoM mnst be by aotual isnitlon. The proof of loss must
show an actual ignition by fire ; damage by beat alone, without
actual ignition, not being covered by the policy.^ And as to the
his band, and verified bj hU oatb, and did at tbe same time declare on bis oath that
no other insuranoe vas made on said property [except ]; and afterwards, on ^
did procure a certificate under the baud of [A. B.], £squire, a magistrate most contigu-
ous to tbe place of said fire, not concerned in said loss, nor related to the plaintiff, that
he was then acquainted with the character and circumstances of the plaintiff, and ▼ertljr
believed that he really, and by misfortune, bad sustained, by said fire, loss and damage
to the amount of the sum in said certificate mentioned, to wit, , and on the same
day the plaintiff product and delivered said certificate to the said (cU/mdanis). Yet
though requested, and thoagh sixty days after such notice and proof of said loss have
elapsed, the said {defendafU$) have never paid either of the sums aforesaid to the plain*
tin," &c. See, as to stating the limitations and qualifications of tbe contrsct, 1 Chit-
ty's PL 267-269, 316 ; Clark v. Gray, 6 East, 564 ; Howell v, Richards, 11 East, 633 1
Hotham v. E. Ind. Co., 1 T. R. 638 ; Browne v. Knill, 2 B. & R 395 ; Tempany v.
Bumaud, 4 Campb. 20 ; 6 Yin. Ab. 450, pL 40 ; Anon., Th. Jones, 125 ; ButterworA
V, Loi'd Despencer, 3 M. & S. 150. And see eontra, 8 Conn. 459.
1 Austin V. Drew, 4 Camnb. 360 ; 6 Taunt. 436 ; Uillier v. Allazhany Ins. Co., 8
Barr, 470. And see Babcock v. Montgomery Ins. Co., 6 Barb. S. C. 637, where the
position in the text is fully sustained. And see, accordingly, Angell on Fire Ins. {§ 111>
129, where the authorities on this point are collected. In Illinois, however, where the
plaintiff's goods, which were insured " against loss or damage by fire," were damaged by
the smoke from an adjoining building which was on fire, and b^ the water thrown in ex-
tinguishing it, the goods having been removed from the store in consequence of the im-
minent danger; but no part of the plaintiff's store was burnt, though the heat was so
great as to crack the window-glass and scorch the window-frames through the iron shut-
ters, and to destroy the paint on the roof ; a majority of the court held, that the loes was
within the terms of the policy, the Chief Justice dissenting. Case v. Hartford Fire Ins.
Co., 18 111. 676. The court, in this case, denied the soundness of the position in the text.
Ideo qucerc. And the doctrine of the Illinois case seems to have the better support both
of reason and authority. Scripture v, Lowell, 10 Cush. (Mass.) 350; May on Ins. § 402.
If the loss is occasioned by the mere foi-ce of lightning, without actual combustion, it
is not covered by a policy against losses " by fire," or '* by reason or by means of fire."
Kennison v. Merrimack Co. Ins. Co., 14 N. H. 341; Babcock v. Montgomery Ins. Co.,
6 Barb. S. C. 637. If the fire was caused by mere negligence of the assured, it is still
covered by the policy. Shaw v. Robberds, 6 Ad. & £1. 75 ; Waters v. Merchants' Ins.
Co., 11 Peters, 213 ; 8 Kent, Comm. 374 ; Catlin v, Springfield F. Ins. Co., 1 Snmnu
(U. Sk C. Ct.) 434. Unless it amounts to misconduct. Citizens* Ins. Co. v. Marsh, 5
Penn. St. 387. But the assured may be guilty of such misconduct, not amounting to
a fraudulent intent to bum the building, as to preclude him from recovering for its lost
by fire. In Chandler v. Worcester Ins. Co., 3 Cush. 328, where evidence of such mis-
conduct was offered in the court below and rejected, a new trial was ordered for that
cause ; but the facts proposed to be proved are not stated in the report The general
doctrine on this subject was stated by Shaw, C. J., as follows: "Tne general rule nn-
Questionably is, in case of insurance against fire, that the carelessness and ne^igence of
tne agents and servants of the assured constitute no defence. Whether the same rale
will apply equally to a case where a loss has oocuired by means which the assured by
ordinary care could have prevented is a different question. Some of the cases counte-
nance this distinction. Lyon v. Mells, 5 East, 428 ; Pipon v. Cope, 1 CampK 434.
" But it is not necessary to decide this question. Tne defendants offered to prove
gross misconduct on the part of the assured. How this misconduct was to be shown,
and in what acts it consisted, is not stated. The question then is, whether there can
be any misconduct, however gross, not amounting to a fraudulent intent to born tbe
building, which will deprive tne assured of bis ri^t to recover. We think there may
be. Bv an intent to bum the building, we understand a purpose manifested and fol-
lowed by some act done tending to carry that purpose into effect, but not including a
mere nonfeasanee. Suppose the assured, in his own house, sees the bnraing coals in
the fireplace roll down on to the wooden floor, and does not brush them up ; this woold
be mere nonfeasance. It would not prove an intent to bum the building ; but it woold
show a culpable recklessness and indifference to the rights of others. Suppose Uie
PAST IT.] INSURAIVCB. . 895
plaintifiTs interest, it is not necessary that it be absolute, un-
qualified, or immediate ; a trustee, mortgagee, reversioner, factor,
or other bailee, being at liberty to insure their respective interests
subject only to the rules adopted by the underwriters, which
generally require that such interests be distinctly specified.^ (a)
premiaes insared should take fire, and the flame b^n to kindle in a small spot which
a cap of water would put out; and the assured has the water at hand, but neslects to
put It on. This is mere noni'easance; yet no one would doubt that it is culjpaDie negli-
gence, in violation of the maxim, ' Sic utere tuo ut alienum nou kedas/ To what ex-
tent such negligence must fio, in order to amount to gross misconduct, it is difficult, by
any definitiTe or abstract rule of law, independently of circumstances, to designate. The
doctrine of the ciyil law, that craan ntgligtniia was of Itself proof of fraud, or eq.uiya-
lent to fraudulent purpose or design, was no doubt founded in the consideration, that,
although such negligence consists in doing nothing, and Ib therefore a nonfeasance, yet
the doing of nothing, when the sl^htest care or attention would prevent a great injury,
manifests a willingness, diflfering little in character from a fraudulent and criminal pur-
pose, to commit such iigury.
" Whether the facts relied on to show gross negligence and gross misconduct, of
which evidence was offered, would have proved any one of these supposed cases, or any
like case, we have no means of knowing; but as they might have done so, the court
are of opinion, that the proof should have been admitted, and proper instructions given
in reference to it"
1 Ellis on Insurance, p. 22 ; Marshall on Ins. 789 (8d ed.) ; Lawrence v. Columbian
Ins. Co., 2 Peters, 25, 49 ; 10 Peters, 507.
(a) The interest snfficlent to support One who has a lien on property may in-
an action on a policy of insurance agunst sure it to the extent of his lien. So held
fire has been vanously defined by the courts, in case of a warehouseman'is lien on goods
The best general description of it seems to deposited with him. Waters v. Monarch,
be that the insurer must have such an in- &c. Ins. Co., 34 £ng. L. k £a. 116. And
terest in the property insured, that, if it of a mechanic's lien on a building. Insur-
is destroyed, some loss will fall on him. ance Co. v. Stimson, 103 U. S. 25.
Lycoming Fire Ins. Ca v. Jackson, 88 111. Cf., on the general question of insurable
802; Merrett «. Farmers' Ins. Co., 42 interest, Lord v. Dall, 12 Mass. 115;
Iowa, 11. ^tna his. Co. v. Miers, 5 Sneed (Tenn.),
A mere creditor, who has no lien on any 139 ; MiUigan v. £q. Ins. Co., 16 Up. Can.
property of tiie debtor, has been held not Q. B. 304 ; £astern R. li. Co. v. Relief F.
to nave an insurable interest. Wheeler Ins. Co., 98 Mass. 420 ; Forbes v. Am.
V. Factors', &c Ins. Co., 8 Woods, C. Ct. Mut. L. Ins. Co., 15 Gray (Mass.), 249;
48. May on Ins. § 76 e^ aeq.
The interest need not be legal. An The burden of proof of an insurable
equitable interest is sufficient. Rumsey interest, if it is not admitted by the plead-
V. Phoenix Ins. Co., 17 Blatch. C. Ct. 527; ings, is on the pkintiff. Planters Ins.
Dunlop «. Avery, 23 Hun (N. Y.), 509. Co. v, Diggs, 8 Baxt (Tenn.) 568.
So^ one who has advanced money to Proof of an application for insurance,
purchase the land, and is in possession, and of a policy issuing thereon, both of
and holds a power of attorney to dispose which describe the |>ro^rty insured as the
of it, has an insurable interest. Brugger proi)erty of the plaintiffs, is prima faeU
V. State, ftc Ins. Co., 5 Sawyer C. Ct eviaence of title and of an insurable in-
804. terest in the plaintiffs. Nichols «. Fayette
A mortgagee's interest is insurable. Ins. Co., 1 Allen (Mass.), 68. An insur-
Eing V. State, &c. Ins. Co., 7 Cush. (Mass.) ance policy purported to insure S. upon
4 ; Foster v. Eq^^^^® ^^^ ^'t ^ ^^1 certain property described as his ; the
(Mass.), 216. amount, in case of loss, to be paid to W.
One partner has an insurable interest In an action of assumpsit on the policy,
in a building purchased with partuOTship brought by W. against the insurance corn-
funds, although it stands upon land owned pany, it was held, that parol evidence was
by the other partner. Converse v, Citl- not admissible to show that W. was the
sens', &c. Ins. Co., 10 Cush. (Man.) 37. leal party to the contract; that the de-
896 LAW OP BVIBENCE. [PABT IV.
But a policy against fire is a personal contract only; and, therefore,
if the assured parts with all his interest in the property, before a
loss happens, the policy is at an end; though if he retains a
a partial or qualified interest, it will still be protected.^ (a)
§ 406. Ck>nditionft precedent. Though the plaintiff must here
1 iEtna Fire Ins. Co. «. Tyler, 16 Wend. 886 ; 2 Peters, 25 ; 10 Peters, 507. Where
the policy prohibited any assignment of the interest of the assured, " unless by the
consent of the company, manifested in writing," and the secretary, on application to
him at the office of the company, indorsed and subscribed such consent on the policy ;
it was held, that his authority to do so, in the absence of evidence to the contrary, should
be presumed ; and that, if proof were necessary, evidence that he had often indorsed
such consent on other poUcies would be prima fade sufficient. Conover v. Mutual Ins.
Co. of Albany, 8 Denio, 254.
fendants had agreed to insure a mortgage goods on execution without removing them
interest held by him, and undertook to do such an alienation as Trill avoid such a
so by the policy; and that they contracted policv (Ibid. ; Franklin Fire Ins. Co. v,
with him by tne name of S. Woodbury Findlay, 6 Whart 483); nor is the levy of
Savings Bank v. Charter Oi^ Ins. Co., 29 an execution on real estate, so long as the
Conn. 874. right of redemption remains in the debtor,
(a) McCluskey «. Providnece, &c. Ins. such an alienation as will avoid such a
Co., 126 Mass. 806. Parting with the in- policy, Clark v. New England, &c. Ins.
terest during the currency of the policy Co., 6 Cush. (Mass.) 842. The alienation
does not put an end to it, if the interest of one of several estates, sepuutely in-
be recovered and held at the time of the sured by the same policy, only avoids such
loss. Rex V. Ins. Co., 2 Phila, (Pa. ) 357; a policy as to the estate so alienated. Ibid.
Worthington v. Bearse, 12 Allen (Mass.), It seems that this indorsement on a x>olicy
882. On this point the note of Mr. May, of insurance, *' For value received, pay the
in the previous edition of this work, is as within, in case of loss, to F. & H., made
follows: to the purchaser of the property insured,
A policy made by a mutual fire insur- is rather an order or assignment of a right
ance company was assigned by the insured, to the monev in case of loss than a regular
with the consent of the company, to a transfer of the contract of insurance. Fogg
mortgagee of the property insured, on his v. Middlesex, &c Ins. Co., 10 Cush. (Mass.)
giving a written promise to pay future as- 837. As to what the assignees must show
sessments, and that the property should in order to render such an assignment
be subject to the same lien as before for the operative, see the same case. See slso
payment of assessments. This assignment Pnillips v. Merrimack, &c. Ins. Co., Id.
was held to constitute a new contract of 850. Proof of an application for insur-
insurance between the mortgagee and the ance, and of a policy issuing thereon, both
insurers, and not to be affected by the sub- of which descnbe the property insured as
sequent alienation by the morto^^r of his the property of the plaintiffs, is prima
equity of redemption, nor by his grantees facie evidence of title and of an insuraUe
obtaining subsMuent insurance thereon, interest in the plaintiffs. Nichols v. Fay*
Foster v. Equitable, &c. Ins. Co., 2 Gray ette Ins. Co., 1 Allen (Mass.), 63. An
(Mass.), 216. The giving a mortgs^ of insurance policy purported to insure S.
real estate, made aftw insurance has oeen upon certain proper^ described as his ; the
effected, where the mortragee does not amount, in case of loss, to be paid to W.
take possession, is^ not such an alienation In an action of assumpsit on the policy,
as will avoid a jwlicy which is on the con- brought by W. against the insurance com-
dition that it shall become void in case the pany, it was held that parol evidence was
property insured is alienated (Jackson v. not admissible to show that W. was the
Mass. Mut, &c. Ins. Co., 28 Pick. 418); real party to the contract; that the defend-
and there is no distinction on this point ants had sgreed to insure a mortgage inter-
between real and personal property (Rice est held bv him, and undertook to do so
V, Tower, 1 Gray (Mass.), 426; Folsom «. by the policy; and that they contracted
Belknap, ke. Ins. Co., 30 N. H. 231 ; with him by the name of S. Woodbury
Howard Ins. Co. v. Bramer, 28 Penn. St. Savings Bank v. Charter Oak Ins. Ca, 29
50); nor is the seizure of the insured Conn. 874.
PABT IV.] INSURANCE. 897
also, as in other cases, show a compliance with all precedent con-
ditiom and warranties, (a) yet, if any mistake or misrepresenta-
(a) The yaluable note, on this point, of wMch the amount insured by them hears
Mr. May in the previous edition of this to the whole amount insured. See Hub«
work is as follows : "A warranty in a bard v. Hartford Fire Ins. Co., 83 Iowa,
policy of insurance is an eicpress stipula- S25, for an elaborate discussion of the
tion that something then exists, or has effect of condition sgainst prior and sub-
happened, or been done, or shall happen, seauent insurance,* in a case where two
or De done; and this must be literally and policies of different dates, upon the same
strictly complied with by the assured, proi)erty, each had conditions against
whether the truth of the fact, or the hap- other insurance, both prior and subse-
pening of the eyent, be or be not material quent.
to the risk, or be or be not connected with The by-laws of a mutaal insurance com-
the cause of the loss. It is a strict condi- pany provided that the policy, which was
tion. Its effect is that the assured takes made subject to the conditions and pro-
on himself the responsibility of the truth visions of the by-laws, should be void un-
of the fact, or of the happening or not of less the true title of the insured should be
such contingency ; and unless the war- expressed in the application. A failure
lanty be strictly complied with, the policy to disclose a mortgage of $800 in the ap-
does not take effect. It is a condition plication was held to avoid the policy,
precedent ; and the assured is estopped Dowditch, &c. Ins. Co. v, Winslow, 3
from denying or asserting anything con- Gray, 415 ; Packard v. Agawam, &c. Ins.
tiary to his express vrarranty. Blackhurst Co., 2 Gray, 834. So where the applica-
«. Cockell, 3 T. R. 360; De Hahn v, tion in answer to a question stated that
Hartley, 1 T. R. 843 ; Newcastle F. Ins. there was an incumbrance on the property
Co. v. MacMorran, 3 Dow, 255 ; Miles «. of ** about $3,000," and it was in fact
Connecticut Mutual Life Ins. Co., 3 Gray, |4,000, the policv was held void. Hay-
580. But whilst the law requires of the ward v. New Ensiand Mutual Ins. Co., 10
assured a strict and literal compliance with Cush. 444. Ana where the policy was on
the warranty, whatever may be the motive real and personal estate, and the applica-
for inserting it, so the same rule of strict tion disclosed an incumbrance of "about
and literal peiformance shall be applied $4,000," to A. B., and the fact was that
when it operates in favor of the assured, there was a mortgage to C. D. of $3,600
Eemble v. Rhinelander, 8 Johns. Cas. 184. on the real and personal estate, and an-
Nothing is to be added by way of intend- other mortgage on the real estate to £. F.
ment or construction, when the words are of $1,100, the policy was held void. And
clear and intelligible, although it may it makes no difference that the insurera
reasonably be inferred that some object are an incorporated company in another
was intended to be accomplished by the State, and so may have no lieu on the
warranty, which a mere literal compuance property insured in this State (Davenport
does not fully reach. Hyde v. Bruce, re- v. New £ng. Mut. Ins. Co., 6 C^h. 840);
ported in 1 Mareh. Ins. (3d ed.) 354." By nor that the mortgage was made before
Shaw, C. J., in Forbnsh v. Western Mass. the mortgagor acquired his title, and was
Ins. Co., 4 Gray, 337. This case decides not rcconied until after the lien of the
that a statement in a policy of insurance, insurance company would have attached
that a certain sum is insuied on the same (Packard v, Agawam Mut., &c Co., 2
property by another company named, even Gray, 384). And where the application,
if a warranty, is satimed by the exist- which the applicant covenanted was a
ence of such insurance by that compauv just, full, and true exposition of the con-
at the time of issuing this jiolicy; although dition and value of the pro^rty, so far as
one of the conditions of that insurance be, known, or material to the nsk, stated the
that it shall be annulled by any subse- value of the goods to be insured to be
quent insurance obtained without the cou- from $2,000 to $3,000, it was held, the
sent of that company, and such consent be policy being an open one, that it was not
not obtained to this insurance. And if void, although the insured knew that he
such consent be not obtained, these insur- had not goods on hand, at the time of in-
era are liable for the whole amount of any surance, to the amount of $2,000, if such
loss, notwithstanding a provision in their representation was made in good faith that
policy, that, in case of any other insur- the stock on hand, togetner with the
ance, whether prior or suDsequent, they goods to be added and Kept during the
will not be liable beyond the proportion continuance of the policy, should range in
898 LAW OP BVIDENCB. [PABT IV,
tion, in this or any other case, has been occasioned by the insurers
themselves or their agents, the assured is excused.^ The usual
stipulation in these policies, that the insured shall, upon any loss,
forthwith deliver an account of it, and procure a certificate from
the nearest clergyman or magistrate, stating his belief that the loss
actually occurred, and without fraud, Ac, is a condition precedent,
the performance of which must be particularly alleged and strictly
proved.2(a) But slight proof that the certifying magistrate is
1 Newcastle Fire Ins. Co. v. MacMomn, 8 Dow, 255. See, as to representatioiia,
2 Phillips on Ins. 96-100, 186-142 ; 8 Kent, Comm. 372-876.
« Woreley v. Wood, 6 T. R- 710; 2 H. Bl. 674 ; Marshall on Ins. 807-811 (8d ed.).
amonnt from |2,000 to $8,000. Lee v, oaaes in which the insured have attempted
Howard, &c. Ins. Co., 11 Cush. 824. A to avoid the eflfect of this stipulation by
representation in an application for iusur- showing that the insurers or their agents
ance against fire, that a coonting-room in had notice of the subsequent insurance^
the building which contains the property see Ban'ett v. Union lint, &c Co., 7
insured is warmed by a stove, and that Cush. 176 ; Forbes v. Agawam, &c. I ns.
the stove and funnel are well secured, does Co., 9 Id. 470 ; Worcester Bank v. Hart-
not bind thedusured to keep the stove and ford, &c. Ins. Co., 11 Cush. 265 ; Lowell
funnel well secured when not in use. v. Middlesex, &c Ins. Co., 8 Id. 127 ;
Loud V, Citizens*, &c. Ins. Co., 2 Gray, Schenck v. Mercer Co., &c. Ins. Co., 4
221. Zabr. 447. The better doctrine now is,
Wbere the applicant stated that the that if an insurance company accept a
premises were his, without anything more policy, knowing any fact which would
specific in regard to his title, and ne had make it void if fSEorly availed of, is estop-
in fact only a bond for a deed, the policy ped to set up such fact in defence. Un«
was held void. Smith v. Bowditcn, &c. Mut. Ins. Co. v. Wilkinson, 18 WalL
Co., 6 Cush. 448 ; Marshall v, Columbian (U. S. ) 222 ; May on Ins. § 497 et aeq.
Ins. Co., 27 N. H. 167 ; Leathers v, Ins. It seems, where the subsequent insurance
Co., 24 N. H. 269. So where the applica- is the renewal of a former policy, or a sub-
tion represents that the property belongs to stitute for it, tiiat the rule is the same,
the insured only, and it is in fact owned Burt v. People's Mut. Ins. Ca, 2 Gray,
by him and another, and where it is rep- 898. Fraud in inducing a person to ac-
resented as unincumbered, and it has cept a policy of insurance will not render
been sold for taxes, the policy is made an insurance company liable in an action
void, though the misrepresentations are of contract upon it, if, by the terms of
not made with a knowledge of their fal- the policy, such action cannot be main-
sity, or with an intent to deceive. Wil- tained. Tebbetts «. Hamilton Mut. In&
bur V, Bowditch, &c. Ins. Co., 10 Cush. Co., 8 Allen, 669. Where the policy con-
446 ; Friesmuth v. Agawam, &c. Co., Id. tained this clause in connection with the
687. So where the by-laws in a policy so description of the property insured, "This
made provide that a subsequent insurance policy not to cover any loss or damage by
made b^ the insured without the consent fire wMch may originate in the theatre
of the insurers shall avoid the policy, the proper," the burden of proof is on the
procuring a subsequent valid insurance plamtiff to show a loss not originating in
annuls tue policy (Burt v. People's Mut the theatre proper. Sohier v. Norwich
Ins. Co., 2 Gray, 898 ; Carpenter «. Prov. Fire Ins. Co., 11 Allen, 886.
Wash. Ins. Co., 16 Pet 496, and 4 How. (a) The certificate and other prelimin-
(U. S.) 224); but if the subsequent insur- axy proof of loss, although it states the
ance is not valid, it does not avoid the amount of the loss, is not admissible evi-
policy (Clark v, Kew Eng. Mut. Fire Ins. dence of the value of the property de-
Co., 6 Cush. 842 ; Hardy v. Union Mut. stroyed (Moor v. Protection Ins. Co., 29
Fire Ins. Co., 4 Allen, 217) ; and this is Me. 97 ; Kewmark v. Liverpool Ins. Co.,
so, although the underwriters of the void 80 Mo. 160 ; Fanell v, JEtna Fire Ins.
Slicy pay the loss (Philbrook v. New Co., 7 Baxt. (Tenn.) 642; Edgerly v.
ig. &C. Ins. Co., 87 Me. 187). For Farmers' Insurance Co., 48 Iowa, 644) ;
PABT IT.] INSUBANCE. 899
Hie nearest one is suiBScient.^ (a) And it is suiBScient if the con-
dition be performed in reasonable time.' (()
§ 407. Damagies. In the estimation of damagei, the question
for the jury is, the actual loss of the plaintiff ; which is to be as-
certained by the expenses of restoring the property to the condition
in which it was before ; the contract being one of mere indemnity.
1 Cornell V, Le Boj, 9 Wend. 163.
* Lawrence v. ColumbiAn Ins. Co., 10 Peters, 507.
BOT is it made evidence if introdnced by to the by-laws, and the insnren, without
the company to prove an over-valuation, objecting to the fonn of the notice, de-
Brown V, Clay, &c. Ins. Co., 68 Mo. 133. cline paying the loss for other reasons.
The affidavits and proofs of loss are they will be held to have waived the right
prima facie evidence for the insurer as ad- to a more particular notice. Clark v. New
wiissions of the plaintiff (Insurance Co. v. England, ko. Ins. Co., 6 Cush. 842 ; Un-
Newton, 22 Wall. (U. 8.) 82); nor are derhill v. A^wam, &c. Ins. Co., Id. 440.
bills of lading, invoices, &c. (Paine v. {a) Williams v, Niagara Fire Ins. Co.,
Maine, &c. Ins. Ca, 69 He. 568) ; nor 50 Iowa, 561. Cf. OiU&an v. Commexdai
offers of purchase of the property made Fire Ins. Co., 20 Hun (N. Y.), 93.
after the policy is issued. W(X)d v. Fire- (b) Any conduct of the insurer which
man's, &c Ins. Ca, 126 Mass. 816. renders the production of these proofs use-
An affidavit of plaintiff in other pro- less, either oecause he will not receive
ceedings, if tending to prove the amount of them or because he appears satisfied with
loss, is an admission and may be proved those already given, is a waiver of the
against him. Mispelhom v. Farmers' Fire performance of this condition. Williams
Ins. Co., 53 Md. 478. v, Hartford Ins. Co., 54,Cal. 442 ; Rokes
The rental of a building at the time of v. Amazon Ins. Co., 51 Md. 512; Harris v,
loss is competent on the question of value. Phoenix Ins. Co., 35 Conn. 810; ^tna
Atlantic Insurance Co. v. Manning, 8 Col. Fire Ins. Co. v. Tyler, 16 Wend. (N. Y.)
224; Graham v. Phoenix Ins. Co., 77 53.
N.. Y. 171. Merely holding the proofs without re-
From the previous edition the fol- turning them does not waive the right of
lowing note of Mr. May is extracted : A the company to object to them (Bell v.
policy, issued by a mutual fire insurance Lycoming Fire Ins. Co., 19 Hun (N. Y.),
company, was expressly made subject to 238); nor does mere silence waive the
the provisions, &c., of the b^-laws of the right to have such proofs furnished,
company, one of which required that the Mueller «. South Side, &c. Ins. Co., 87 Pa.
insurance shall not be payable until the in- St. 899. If a particular defect be pointed
suied shall have delivered a particular out, silence as to others, e. g, defective
account in writing under oath to the com- preliminanr proof is a waiver. Phillips
pany, stating the nature and value of his «. Prot. Ins. Co., 14 Mo. 220; German
interest therein. It was held that such Ins. Co. v. Ward, 90 111. 550 ; Hartford
an account was insufficient that did not Fire Ins. Co. v. Smith, 3 Col. 422. And
state the nature and value of the insured's a refusal to pay, on grounds which render
interest at the time of the loss, although preliminary proof unnecessary, is a waiver
it stated that the entire property was des- of such proof. Blake v. Exch. Ins. Ca, 12
troyed, and although tne value of the Gray (Mass.), 265. So when the insured
property was stated in the application furnished proofs, and the company did not
which was expressly "made part of the accept them, but denied that an^ liability
policy, reference thereto being had for to plaintiffs had arisen under said alleged
description ; " because the parties, by an policy, and refused to pay any alleged
express stipulation, made the rendition of claim thereunder. Harriman v. Queen
such an account an essential prerequisite Ins. Co., 49 Wis. 71 ; Portsmouth Ins.
to the right to recover any part of the in- Co. v, Reynolds, 82 Gratt. (Ya.) 613.
Buiance. Wellcome v. People's, &c. Ins. So, a full examination under oath, of the
Co., 2 Gray, 480. See Eingley v. New insured, poisuant to a stipulation of the
England, &c. Ins. Ca, 8 Cush. 898. Where m>licy, is a waiver of defective proofl
notice of a loss is given, bat not according Badger «. Phoenix Ins. Co., 49 Wis. 896.
400 LAW OP EVIDENCE. [PAET IV.
Therefore, in case of the loss of a building by fire, the assured
cannot recover for the damage occasioned by the interruption or
destruction of his business, carried on in the building ; nor for tlie
gains which were morally certain to come to him if the building
had not been destroyed ; but only sufficient for the restoration of
that which was insured, namely, the building.^ The law of ma-
rine insurance respecting salvage does not apply to policies of
insurance against fire. They assume the risk of the property to a
fixed and agreed amount. If the loss is partial, the party is eur
titled to recover to the amount of that loss, if less than the sum
insured ; and if there is a total destruction of the property, then
to the amount of the policy, the value stated being in that case in
the nature of liquidated damages.^ (a)
§ 408. "Wilful burning. Where the defence is that the property
was wilfully burnt by the plaintiff himself, the crime must be as
fully and satisfactorily proved to the jury as would warrant them
in finding him guilty on an indictment for the same offence.^ (6)
If the defence is, that the mi has been materiaUy increased con-
1 Niblo V, K. American Ins. Co., 1 Sandf. 551.
s Liscom V. Boston Mutual Ins. Co., 9 Met. 205; Harris v. Eagle Fire Co., 6 Johns.
S68, 373 ; 1 Phillips on Ins. 375 ; Vance v. Foster, 1 Irish Circuit Cas. 51, cited 3
Steph. N. P. 2084. By a misapprehension of the remarks of Pennefather, B., in this
last case, it was erroneously stated in the first edition of this volume, that no dednctioa
was to be made for the dinerence of value between new and. old materials, or any regard
had to the cost of the property. See wiUra^ Brinley v, National Ins. Co., 11 net.
195.
* ThurtoU V. Beaumont, 1 Bing. 339. But see wiUra^ Hoffman v. Western Ins.
Co., 1 La. Ann. 216.
(a) The total destmction need not be Dill. (C. Ct.) 105 ; post^ % 426 ; Am. L.
an entire destruction of the materials. If Rev., July, 1876 ; Vaughton v. L. & N.
the building ceases to exist as such, it is W. R. R. Co., L. R. 9 Ex. 93. The in-
totally destroyed. Williams v. Hartford sured in a policy against fire may be guilty
Ins. Co., 54 Cal. 442 ; Harriman v. Queen of such gross misconduct, not amounting
Ins. Co., 49 Wis. 71. to a fraudulent intent to bum the build-
The valuation of the building, expressed ing, as to preclude him from recovering
in the policy, binds the company. Reilly for a loss of the same by fire. Chandler «.
V. Franklin Ins. Co., 43 Wis. 449. Worcester, &c. Ins. Co., 8 Cush. (Mass.)
(6) Ou the mode of proof of a crime in 328 ; Hynds v. Schenectady Ins. Co., 16
civil cases in general, see vol. i. § 18 a. Barb. (N. Y.) 119. When the insured
The decisions have varied greatly, but it stated that the fire might have originated
is now generally held, that to prove wilful in some oiled shavings in a lumbSr-room
burning is not proving a crime, so as to in a cellar, this was held to be no evi-
compel proof beyond a reasonable doubt It dence of his wilfully setting the place on
is enough if the wilful burning is established fire. Farmers*, &c Ins. do, v. Gargett,
by a preponderance of the evidence. Kane 42 Mich. 287. On such an issue, evidence
V. Hibemia, &c. Ins. Co., 89 N*. J. Ij. that the money, &c, of nlaintiff was des-
697 ; Ellis V. Bn2zell,60 Me. 209 ; Schmidt troyed by the fire, and that the property
V. N. Y. Un. Mut. Ins. Co., 1 Gray far exceeded in value the insurance, is
(Mass.), 529 ; Wash. Ins. Co. v. Wilson, competent. Farmers*, &c Ins. Co. v.
7 Wis. 169 ; Scott v. Home Ins. Co., 1 Crampton, 48 Mich. 421.
PABT IT.] INSUBANOfi. 401
trary to a eonditum in the policy ^ bo as to render the policy void,
the question, whether, upon the facts proved, the risk has been so
increased, is for the jury to determine.^ (a) But it is not necessary
in »m:h caee for the defendant to show that any loss has resulted
therefrom ; for it is the change of circumstances and consequent
increase of peril that absolves the underwriter, and not the actual
lo8s.^(6) Such change of circumstances alone, without conse-
1 Cany v. ConnDonwealth Inn. Co., 10 Pick. 585.
* Merriam v. Middlesex Ins. Co., 21 Pick. 162. In this case, it was provided, in
the act incorporating the company, that if any alteration shoald be made in any house
or building, oy the proprietor thereof, after insurance has been made thereon with said
company, whereby it may be exposed to greater risk or hazard from fire, the insurance
aha]I be void, unless an additional premium should be settled with and paid to the di-
rectors, &c. And the court held, that, as this constituted part of the contract between
the parties, an alteration, such as there described, was fatal to the policy. So where
a similar provision was contained in the policy itself, the like judgment was given.
Houghton v. Manufacturers' Mutual Fire Ins. Co., 8 Met. 114, 121. The lanj^iage
of the court on this point was as follows : "There is another clause in the policy to
which the attention of the court was drawn at the argument, which is this : ' If the
situation or circumstances affecting the risk upon the property insured shall be altered
or changed, by or with the advice, agency, or consent of the assured or their agent, so
as to increase the risk thereupon, without the consent of the company, the policy shall
be void.' The court are of opinion that this was a stipulation and condition, without
a substantive compliance with which the company, from the time of its happening,
would cease to be Dound by the contract This provision binds the assured, not oxSj
not to make any alteration or change in the structure or use of the property, which
will increase the risk, but prohibits them from introducing any practice, custom, or
mode of conducting their business, which would materially increase the risk, and also
from the discontinuance of any precaution represented in the application to be adopted
and practised with a view to diminish the risk. The clause in question, as well as the
preceding clause, refers to the application and the representations contained in it.
Taking this clause with the representations, we think the legal effect is, that, so far
as these representations set fortn certain usages and practices observed at the factory,
as to the mode of conducting their business, and as to precautions taken to guard
against fire, it is not only an affirmation that the facta are true at the time, Imt in
(a) Lockwood v. Middlesex, &C. Ins. expectation, subsequent disappointment
Co., 47 Conn. 553 ; Griswold v. American, will not prove that it was untrue ; and
Ac. Ins. Co., 70 Mo. 654 ; Thayer r. Pro- if it is a promise that a certain state of
▼idence, ftc Ins. Co., 70 Me. 581 ; Rice facts shall exist or continue during the
V. Towvr, 1 Grey (Mass.), 426. The per^ term of the policy, it ought to be em-
mitting an officer who has seized the bodied in the written contract." Kimball
goods insured on execution to sell the v. iEtna Ins. Co., 9 Allen (Mass.), 548.
same in the insured's building, if the risk The fact that a building, insured when oc-
is enhanced thereby, would be an increase cupied, afterwards becomes unoccupied,
of the risk which the insured had the does not necessarilv increase the risk, but
means to control. Rice v. Tower, mtpra, this question should be left for the jury.
A policy of insurance, which is issued P>. So if exnerts are called to show that
upon a dwelling-house in consequence of an unoocupiea building is more of a risk
an express oral promise by the applicant than one occupied, and the other side puts
that It shaU be ooenpied, will not be in evidence showing the location and con-
avoided by the failure to fulfil such prom- dition of the lot, tne evidence should be
iae, unless fraud is proved, even tnougfa given to the jury. Cornish v. Farm Build-
the risk is thereby mcreesed. Grey, J., ings, Ac. Ins. Cio., 74 N. Y. 295.
says, "An oral representation as to a {h) Mr. May's note on this point in
future fast honestly made can have no the previous edition was as fouows : A
effect ; for, if it is a mere statement of an fire policy issued by a stock company
VOL. II. 26
402 LAW OF EYIDENCE. [PABT IV.
quent increase of risk, is not sufScient to avoid the policy ; and
therefore the erection of a wooden building, in actual contact with
the building insured, will not have this effect, unless the risk is
thereby increased.^ The change of use, too, must be habitual, or
of a permanent character. Thus, where the policy was on premi-
ses ^^ where no fire is kept, and where no hazardous goods are
deposited," a loss occasioned by making a fire once on the premi-
ses, and heating tar, for the purpose of making repairs, was held
covered by the policy.* (a) And where a kiln used for drying
corn was upon one occasion used for the more dangerous pro-
effect a stipulation, that, as far as the assared, and all those entrusted by them with
the care and management of the property, are concerned, sach modes of conducting
the buBinesB shall be sabetantially observed, and such precautions substantially con-
tinue to be taken, during the continuance of the policy.
'* By a substantial compliance, we mean the adoption of precautions, if not exactly
those stated in the application, precautions intendea to accomplish the same purpose,
and which may be reasonably considered equally or more eincacious. For instance,
when it is stated that ashes are taken up in iron hods, it would be a substantial com-
pliance if brass or copper were substituted. So, when it is represented that casks of
water, with bucket^ are kept in each stonr, if a reservoir were placed above
with pipes to convey water to each stoiy and found by skilful and experienced per-
sons to DC equally efficacious, it would be a substantial compliance.*' If there be no
such stipulation m the contract, but the risk is materially mcreased by the femd or
misconauct of the assured, whereby the loss happens, it is conceived tnat he cannot
recover. Stebbins v. Globe Ins. Co., 2 Hall (li. Y.), 632. And see Loundsbuiy «.
Protection Ina Co., 8 Conn. 459 ; 5 Western Law Joum. 308.
^ Stetson V. Massachusetts Ins. Co., 4 Mass. 330.
S Dobson V. Sotheby, 1 M. & Malk. 90.
stipulated that the use of the buildings were material to be stated, and filled np
insured, during the continuance of the the application, received the premium,
]x)licy, for any trade or business denomin- and issued the policy. Lee v. Howard
ated hszardous or extra hazardous, or Fire Ins. Co., 8 Gray, 583 ; Westfall v.
spcdJUd on a fiumorandum of special rates, Hudson River, &c. Ins. Co., 2 Reman,
in the terms and conditions annt^xed to 89. And such policy cannot be held valid
this policy, should avoid the policy, and for a portion or the risk, and invalid for
that the conditions annexed should be re* the residue. Ibid. See also Brown v.
sorted to in order to explain the rights People's Mut. Ins. Co., 11 Cush. 280 ;
and obligations of the parties. One con- Friesmuth o. Agawam, kc. Ins. Co., 10
dition was, that, if the risk should be in- Cush. 587.
creased, or the premises be so occupied by (a) Where the policy of insurance upon
the ftssured as to render the risk more haz- a trip-hammer shop, with the machineiy
ardouSf the policy should be void. Dur- therein, contained a provision that the
ing the continuance of the policy, a part policy shall be void if the building rp-
of the premises was used for a trade or a mains unoccupied over tiiirty days with-
business specified in the memoranduin of out notice, it was held not erroneous to
special rates, and not mentioned in the instruct the juiy that " it is not sufficient
policy, and it was held that this avoided to constitute occupancy, that the tools re-
tho policy, although the risks of the policy mained in the shop, and that the plain-
were special hazards ; and that parol evi- tiff's son went through the shop atmosEt
dence was not admissible to show that such every day to look around and see if thin|^
use did not increase the risk, and that such were right, but some practical use must
use was in fact known to the agent of the have been made of the ouilding." Keith
company, who examined the premises, and v. Quincy Mutual Fire Ins. Co., 10 Alkn,
agreed with the assured upon what facts 228.
PABT IV.] INSURANCE. 408
cess of drying bark, whereby the building took fire and was
consumed, the underwriters, on the same principle, were held
liable.^ (a)
§ 409. idfiB insuranoe. In the THiBD PLACE, as to Insurance
UPON Lives. The same principles, course of proceeding, defences,
and rules of evidence are applicable here as in policies on other
subjects which have been already considered.^ But in regard to
the interest of the plaintiff in the life in question, it is not neces-
sary that it be such as to constitute the basis of any direct claim
in favor of the plaintiff upon the party whose life is insured ; it is
Bufiicient if an indirect advantage may result to the plaintiff from
his life; and therefore the reciprocal interests of husband and
wife, parent and child, and brother and sister, in the lives of each
other, are sufficient to support this contract.^ (5)
1 Shaw V. RobbeidB, 6 Ad. & El. 75.
* See 3 Kent, Comm. 865-370 ; EUis on Ins. pp. 161-171 ; 2 PhiUips on Ins. pp.
100-108, 148-145, 199 ; MarshaU on Ins. pp. 770-784 (8d ed.) ; 8 Steph. N. P. 2068^
2076.
• Ibid.; EUis on Ins. pp. 122-128; Lord v. Dall, 12 Mass. 116.
(a) Barrett v. Jenny, 8 W. H. & O. uncle and nephew is not enough to snp-
(Ex.) 585, 545. And where the boilding port the insurance,
was repreflent4^ as occupied for storing A creditor of a firm has an insurable
lumber, and having a counting-room in it, interest in the life of one of the partners
and the counting-room for a single night thereof, although the other partner may be
was used as a resting-place for strangers, entirely able to T)ay the debt, and the estate
it was held that it did not avoid the of the insured is perfectly solvent, and he
policy. Loud v. Citizens', &c. Ins. Co., may recover the whole amount insured.
2 Gray, 221, 224. In this case, the count- Morrell v. Trenton, &c. Ins. Co., 10 CHish.
ing-Toom was warmed by a st»ve, which at (Mass.) 282.
that season (September) was not in a safe The contract of life insurance is a con-
condition to use, a portion of the funnel in tract to pay a certain sum of money on the
the loft beine removed. The crew of a death of a person, in consideration of the
vessel that hSi filled with water were per- due payment of a certain annuity during
initted to lodge in the counting-room, out his life, and it is not a contract of indem-
were expressly forbidden to make any fire nity. Dalby v. India, &c. Ins. Co., 28
in the stove. Tliey did make a fire tliere- Eng. Law i £q. 812 ; Trenton, &c. Ins.
in, the building was burned thereby, and Co. v. Johnson, 4 Zabr. (N. J.) 576. See
the insurers were held liable. The draw- Bevin v. Connecticut, &c. Ins. O)., 28
ing of a lottery (that being an unlawful Conn. 244.
act) with the consent and participation of The niles as to concealment or misrep-
the insured, in a building insured against resentation of material facts apply to life
loss by fire as a shoe manufactory, does insurance policies. If the statement is
not avoid the policy on the building, nor untrue, it does not avoid the policy unless
on the stock tnerein. Boardman v. Mer- the applicant knew it was not true. Union,
rimack, &c Ins. Co., 8 Oish. 583. Mr. &c. Ins. Co. v. Wilkinson, 18 Wall. (U.
May's note in previous edition. S.) 222. But if there is a stipulation in
{b) Yet if the insurer has no interest the policy that it shall be void if any of
in tiie life insured, the policy is void as to the statements in the application are un-
him. Missouri, &c Ins. Co. v. Sturges, 18 true, it will be avoided, tnough the appli-
Kans. 93. cant believed the statement he made to be
It is held In Singleton v, St. Louis, Ac. true. Macdonald v. Law, &c Ins. Co., L.
Ins. Co.^ 66 Mo. 68, that the relation of R. 9 (J. B. 828.
404 LAW OF EVIDENCE. [PABT IT.
Statements in an application for life in- inrarad, he kD<ywing and intending tliat
snrance "upon the faith of which" the his deadi shall be the result of his act, but
policy is exnressed to be made, with a when his ressoning faculties are so far im-
stipulation tnat if they shall be found in paired that he is not able to understand
any respect untrue, tne policy shall be the moral character, the ^neral nature,
yoid, are warranties, and if untrue, eyen consequences, and effect of the act he is
in a matter immaterial to the risk, they about to commit, or when he is impelled
avoid the policy. Miles v. Conn. Mut. thereto by an insane impulse, which he
Life Ins. Co., 8 Qray (Mass.), 680. If, in has not the power to resist, such death is
the representation on which a life insur- death by suicide. Life Ins. Co. v. Terry,
ance is effected, a material fact is untruly 16 Wall. (U. 8.) 680. Probably the more
stated or concealed, if a ^neral miestion general yiew is tliat if the insured acts un-
was put which would elicit that ract, the der an irresistible impulse to take his life,
policy 'Will be yoid though no specific ques- or his reason is so impaired that he does
tions are asked respecting such fact, and not understand the moral character of the
though such statement or concealment act, thouffh he knows and intends that
arises from accident or negligence, and not death shall follow his act, the act is not
from design. Vose v. Eagle Life, &c Ins. suicide in such a sense as to avoid the
Co., 6 Cush. (Masrf.) 42, The extreme policy. Connecticut, &c. Ins. Co. v. Groom,
doctrine of these cases is criticised in Horn 86 Pa. St. 92 ; Hathaway v. National Ins.
r. Amicable L. Ins. Co., 64 Barb. (N. Y.) Co., 48 Vt 836 ; Adkins v. Columbia life
81. Insi Co., 70 Mo. 27.
If the defence relied on is the falseness Such insanity as overpowers oonscious-
of the statements of the insured in the ai>- ness, reason, and will, certainly excuses the
plication for insurance, the burden of proof act. Knickerbocker life Ins. Co. v. Peters,
IS on the company to establish such falsity. 42 Md. 414.
Orangen' Life Ins. Co. v. Brown, 67 Miss. The proviso, " shall die by his own
308. hand," includes suicide by swallowing ar-
And the court should not direct the senic. Hartman v. Ke3rstone Ins. Co., 21
jury to find for the defendant if there is Penn. St. 466. See also Moore v. Wool-
evidence on both sides. Moulor v. Amen- sey, 28 Enff. I^aw & Eq. 248.
can Life Ins. Co., 101 U. S. 708. If the death results from an oyer-dose
The defence of suicide by the insured of medicine taken to relieve pain, it will
is, as to third parties, wholly based on the be a question of whether the act was cul*
stipulation in the policy. If there is no pably negligent. Mutual Life Ins. Co. v.
such proviso, the death of the assured by Laurence, 8 III. App. 488. And this qnes-
his own hand will not avoid such a policy, tion should be left to the jury. Lawrenoe
Patrick v. Excelsior Life Ins. Co., 67 Barb. v. Mutual, &c. Ins. Co., 6 III. App^ 280.
(N. Y.) 202. And the question of the insanity of tiie in-
If in a policy of life insurance it is sured in ^neral should be left to the jury,
provided that the policy shall be void if if there is ahy competent evidence of it.
the insured ''shouladiebyhisownhand;" Insurance Co.v. Rodel, 96 U. S. 282.
the self-destruction of the insured while The burden of proof in avoiding a case
insane is not within the proviso. Newton of suicide by showing insanity is on the
V. Mut, &c. Ins. Co., 76 N. Y. 426; Schef- party setting it up. Weed v, Mut, Ac
fer V. National Life Ins. Co., 26 Minn. Ins. Co., 70 N. Y. 561; Knickerbocker
534 ; Breasted v. Farmers*, &c Ins. Co., 4 Life Ins. Co. v, Peters, 42 Md. 414.
Sclden, 299. CotUra, Dean v. Am. Mut An important point in the trial of actions
L. Ins. Co., 4 Allen, 96. on life insurance policies is thstdeclaiationa
But if the proviso avoids liability, in of the party whose life is insured, offered
case of the death of the ini«ured by his in evidence by the defendant, are compe-
own act or intention, whether sane or in- tent as admissions only when he is the
sane, insanity will not excuse the suicide, party really interested. Thus, where a
Chapman v. Kepublic life Ins. Co., 6 Biss. man takes out a policy on his life in his
(C. Ct) 238. wife's name, and m his application states
The question of what degree of insan- that he is of correct and temperate habits,
ity will excuse the act of taking his own his wife's afBdavit, filed in a suit by ber
life by the assured, so as to allow a recov- for separation, alleging his intemperate
ery on the policy, has been decided in habits, is admissible as an admission of
various ways. The most stringent rule is hers. Fumiss v. Mut life Ins. Co., 46
laid down in Life Ins. Co. v. Terry, 15 N. Y. Superior Ct 467. Where the ap-
Wall. U. S. 580, which holds that if the plication was in the name of a man and
death is caused by the voluntary act of the ids wife, for her sole benefit, his decianb>
PART IV.] IN8UBANCB. 406
tioiu, prior to tbe application, tending to to prove that his statements in his appHca-
show that one of the statements in said tion were false, in an action by the son.
application was to his knowledge untnie, Mobile, &c. Ins. Co. v. Morris, 3 Lea
was held incompetent Union Central (Tenn.), 101. On the issue of the insanity
Life Ins. Co. r. Cheever, 36 Ohio St. 201; of a parent of the iDSured, a duly certified
Grangers' Life Ins. Co. o. Brown, 57 Miss. cof>y of the records of a probate court,
808; McGlnley V. United States, &c. Ins. reciting that such parent bad been ad-
Co., 8 Daly (N. Y.), 890. So where a judged a lunatic, is admissible to prove
policy was taken out for the benefit of the that fact. Newton v. Mutual, &c. Ins. Co.,
son of the insured, admissions by the father 15 Hun (K. Y. ), 595.
as to his age and health are inadmissible
406 LAW OP EYIDEHCE. [PABT IV.
LIBEL AND SLANDER.
§ 410. Same mles applicable to both. As the general principles
and ru]es of proceeding are the same, whether the plaintiff has
been slandered by words or libelled bj writings, signs, pictures,
or other symbols, both these modes of injury will be treated
together.^ In either case, the plea of the general issue will require
the plaintiff to prove, (1) the special character and extrinsic facts,
when they are essential to the action; (2) the speaking of the
words, or publication of the libel ; (3) the truth of the colloquium;
(4) the defendant's malicious intention, where malice in fact is
material ; (5) the damage, where special damages are alleged, or
more than nominal damages are expected.
^ The ^neral fonn of a declaration for a libel, where no special indacement is requi-
site, is as follows: —
— '* In a plea of trespass on the case; for that the said {defendant), wickedly intending
to ii^'ure tne plaintiff, heretofore, to wit, on , did maliciously compose and puhlish,
of and concerning the plaintiff, a certain false, scandalous, and defamatoir lil>el, con>
taining, among other thin^, the false, scandalous, and defamatory matters following, of
and concerning the plaintiff, that is to sav [here state the libellous matter, in hoee vcrha^
with proper innuenaoesl. By means of the committing of which grievances by the said
{defendant) the plaintin has been brought into public scandal and disgrace, and greatly
injured in his good name, and otherwise injured.** [If special damage has been sus-
tained, by woras not actionable in themselves, it should be here particularly aUeged.]
The usual introductory averment of the plaintiff's good name and reputation, ic^
is altogether superfluous, his good character oeing presumed.
For verbal slander, charging an indictable offence, and not requiring a special induce-
ment, the declaration is as follows: —
— *' for that the said (defendant), wickedly intending to injure the plaintiff^ heretofore,
to wit, on , in a certain discourse which he then had of and concerning the plain-
tiff, did, in the presence and hearing of divers persons, maliciously and fusely speak
and publish of and concerning the plaintiff the following false, scandalous, ana de-
famatory words, that is to say [here state the words, wiui proper innuendoes]. Bj
means," &c., as before.
The following is an example of a count for words not in themselves actionable, with
a special inducement: —
— *' for that heretofore, and before the speaking of the words hereinafter mentioned, to
wit, at the court begun and holden at , in and for the county of , on
, a certain action was pending between the plaintiff and the said (defendant), upon
the trial whereof in said court, and in the due course of legal proceeding therein, the
plaintiff, being duly sworn before the said court, made affidavit and testified touching
the loss of a certain promissory note, in controversy in said action, and material to the
issue joined therein; and the said {defendani), wickedly intending to injure the plaiii-
tiff, did afterwards, on , in a certain discourse which he then had of and conceir*
the plaintiff, in the presence and hearing of divers persons maliciously and falsely si
and publish of and concerning the plaintiff, and of and concerning his affidavit albre-
said, the following false, scanoalous, and defamatory words, that is to say, ' He ' (mean-
ing the plaintiff) ' has forsworn himself,' thereby meaning that the plaintiff (in his
affidavit) had committed the crime of peijury. By means, kc, as before.
PABT IT.] . UBEL AND BLANDER. 407
§ 411. Idbel. Question of faot. It was formerly held, that the
question, whether the publication proved was or was not a libel,
or slanderous, was a question of law ; and the general dislike of
this doctrine has occasioned the enactment of statutes ^ for the pur-
pose of referring this question, at least in criminal cases, to the
jury. But such statutes are now understood to be merely declarsr
tory of the true doctrine of the common law ; and, accordingly, it
is now held, that the judge is not bound to state to the jury, as a
matter of law, whether the publication is a libel or not ; but that
the proper course is for him to define what is a libel, in point
of law, and to leave it to the jury to say, whether the publication
falls within that definition, and, as incidental to that, whether it
is calculated to injure the reputation of the plaintiff.^ (a)
§ 412. (1.) Proof of official oharacter. Where the plaintiff's
office or special character is alleged in general termsj it is sufficient
to prove, by general evidence, that he was in the actual possession
and enjoyment of the office, or in the actual exercise of the calling,
profession, or employment in question, without strict proof of any
legal inception, investment, or appointment.^ Thus, the general
allegation that the plaintiff was a magistrate, or peace-officer, or
an attorney of a particular court, may be proved by general evi-
^ 82 Geo. III. c. 60 ; CoDstitution of Maine, art. 1, § 4 ; Const, of New York, art 7,
I 9 ; ReT. Stat. New York, part 1, c. 4, § 21.
3 Parmiter v. Ck>apland, 6 M. & W. 105, 108 ; Baylis v. Lawrence, 11 Ad. k El.
920. And see Tuson v. Evans, 12 Ad. & El. 7S3, where the same doctrine is substan-
tially confirmed. See ace. Dalloway v. Turrill, 26 Wend. 383 ; 2 Stark, on Shmder, p.
306, n. (1), by Wendell.
* 2 Stark, on Slander, p. 5, by WendelL And see Picton v, Jackson, 4 C. & P.
257.
(a) "Yet it is clear, that, upon a de- Shattuck v. Allen, 4 Gray (Mass.), 546;
inarrer, or an answer in the nature of a (Goodrich v. Davis, 11 Met. (Mass.) 473.
demurrer, the court must determine "When words are spoken of two or
whether a cause of action is set out in the more persons, they cannot join in an action
declaration to be sent to the jury. And if for the words, because the wrone done to
the judge presiding at the triu, and the one is no wrong to the other. The case of
jury, should think the publication libel- husband and wife is not an exception to
IOU8, still, if on the record it appear to be this rule. If there Ib a slander upon both,
not so, judgment must be arrested. The the husband should sue alone for the in-
true distinction probably is, that, though jury to him, and they should join for the
the court will, upon proper motion or plea injury to her. The exceptions to the rule
of the defendant, judge whether the pub- are words spoken of partners in the way of
lication, as set out, constitutes a ground of their trade, and the case of slander of the
action or not; vet, if such demurrer or title of joint owners of land. Dyer, 19
motion is overruled, and the cause goes to a; Bulges v. Ash ton, Yelv. 128 ; Shep-
tJie Jury, the judge is to define what is a pard's Action on the Case for Slander, 52 ;
libel, and to leave to the jurv to determine 1 Walford on Parties, 514-516 ; Ebersoll
whether the publication falls within the v, Krug, 3 Binn. (Pa.) 555 ; Hart v. Oow,
definition of the offence." By Thomas, J., 7 BUckf. (Ind. ) 361." By Metcalf, J., in
Gazynski v. Colbuni, 1 Gray (Mass.), 10.
408 LAW OP EVIDENCE. [PABT 17.
dence that he acted in such character.^ So, it Beems, if he alleges
himself a physician;^ though formerly some doubts have been
entertained on this point, principally on the ground that the stat-
ute prohibited the practice of that profession, without certain
previous qualifications. But this objection proceeds on the pre>
sumption, that the law has not been complied with ; which is con-
trary to the rule of presumption as now well settled.^ If, however,
the plaintiff %pecially alleges the mode of his appointment, or other-
wise qualifies the allegation of his special character, as, by stating
that he is ^^ a physician, and has regularly taken his degree of
doctor of physic," the special matter must be strictly proved by
the best evidence of the f act.^ But if the special matter does not
amount to a qualification of that which might have been more
generally alleged, but is merely cumulative and independent, it is
conceived that general evidence would still be sufficient.^ And
where the slander or libel assumes that the plaintiff possesses the
character alleged, as, if he was slanderously spoken of in that
character, by his titie of attorney,^ clergyman,^ or other function-
ary,^ proof of the words is sufficient evidence that he held the
office.
§ 418. other aztrlnsio laota. In regard to the prefatory allegar
tions of other extrinnc factSj these, where they are material, must
be strictly proved as alleged; but if they are in their nature
divisible and independent, this part of the declaration will be
maintained by evidence of so much as, if alleged alone, would
have been sufficient.^
§ 414. (2.) PubUoation. Slander. The plaintiff must also prove
I Berryinaii v. Wise, 4 T. R 866 ; anU^ yol. i. §§ 88, 92 ; Jones v, Stevens, 11 Price,
285; Pearce v, Wbale, 5 B. & G. 88. Where the words were charged as spoken of the
plaintiff in his office of treasurer and collector, evidence that he was treasurer only was
held insufficient. Sellers v. Till, 4 B. & C. 655.
> McPheraon v. Chedeall, 24 Wend. 24 ; Finch v, Gridley, 25 Wend. 469 ; 1 Stark,
on Slander, p. 361 [405] ; Brown v. Minns, 2 Rep. Const Ct 285.
* Smith V. Taylor, 1 New Rep. 196 [4 B. k P. 196] ; 2 Stark, on Shinder, p. 9 [6].
* Moises V. Thornton, 8 T. R. 308; anU, vol: I §§ 58, 195, n.
* 2 Stark, on Slander, p. 11, n. {p) [8].
« Berryman v. Wise, 4 T. R. 866. '' Cummen «. Smith, 2 S. & R. 440.
8 Yrisarri v. Clement, 8 Bing. 482. See also Rex v. Satton, 4 M. & S. 548, 549,
per Bayley, J.; Bagnall v. Un^rwood, 11 Price, 621 ; Oonld v, Hulme^ 8 C. & P.
625.
* See anU, vol. i. §§ 58-68, 67; 2 Stark, on Slander, p. 14 [12]. In libel, as in
other cases, there is an important difference between matters of mere allegation and
matters of description. In respect to the former, a variance in proof as to number,
quantity, or time, does not affect the plaintiff's right of reooveijr; out in resnect to the
latter, the variance is fataL Hence, the day on which a libel is alleged to nave been
published is not matetiaL Cates o. Bowker, 18 Vt 28.
PABT IT.] LIBEL AND SLANDSB. 409
the fae^ of the publiecOian of the words by tiie defendant. Words
spoken may be proved by any person who heard them, though
they are alleged to hare been spoken in the hearing of A. B. and
others.^ (a) And here, also, if the words are in themselves action*
able, and the slanders are several and independent, it is sufficient
to prove as many of them as constitute any one of the slanderous
accusations ; ^ but if they constitute one general charge, they all
must be proved.^ And in all cases, the words must be proved
strictly as they are alleged. (6) But though it is not competent
1 BuU. K. P. 6.
' 2 East, 4S4, per Lawrence, J.; Flower v, Pedley, 2 Esp. 491; Orpwood v, Barkea,
4 Bing. 461; Compagnon v. Martin, 2 W. BL 790; I>i8ley v. Moaa, 9 Ala. 266; laeley
V. Lovejoy, 8 Blackf. 462.
* Flower v. Pedley, 2 Esp. 491.
{a) Where no special daiiMu;e8 are laid by the law of the place where it is aUeged
as the resnlt of rooken words, and the to have taken plaoe» not \>j that where the
plaintiff relies solely on the injurious ef- words were spoken. Dufresne v. Weise,
feet of the words themselves on his repa- 46 Wis. 290.
tation, worda must be proved which oome 2. Or the words most aociue the plain-
within one of three classen. tiff of liaving a loathsome contagions dis-
1. They must impute an indictable ease. Kaucher v. Blinn, 29 Ohio St 62 ;
erime to the plaintiff. The words need Bruce v, Soule, 69 Me. 562 ; Gottbehuet
not allege the crime with the precision of v. Hubach«k, 86 Wis. 515.
an indictment, but their natural import, S. Or they must impute to the plain-
viewed under the circumstances of the case, tiff inefficiency and inability to fulfil the
must be an accusation of some offence cog- duties of his office, or be of such a nature
nizable by the criminal law. Bamett v, as to injure him in his profession. Foster
Ward, 36 Ohio St. 107; Borgher o. Enapp, v. Scripps, 39 Mich. 376 ; Gunning v. Ap-
8 Mo. App. 591; BlackweTl v. Smith, 8 pleton, 58 How. (N. Y.)Pr. 471 ; Spiering
Mo. App. 43; Huddleson v. Swope, 71 o. Andrae, 45 Wis. 330. If one states
Ind. 430 ; Drown v. Allen, 91 Pa. St. 893 ; that a clerjryman was intoxicated, this in-
Havemeyer «. Fuller, 60 How. (N. Y.) jures him in his profession and is actiona-
Pr. 316; Schmisseur v, Kreilich, 92 111. ble. Hayner v. Cowden, 27 Ohio St 292.
347. Thus, for example, to accuse one of If they fail to come under either of these
theft is actionable (Fawcett «. Clark, 48 classes, some special damage must be al-
Md. 494); or of an attempt to steal if that leged and proved in order to render the de-
is a criminal offence (Berdeaux v. Davis, fendant liaole. Pollard v. Lyon, 91 U. S.
58 Ala. 611); or of blackmailing (Robert- 225; Dean v. Miller, 66 Ind. 440.
son V. Bennett, 44 K*. Y. Super. Gt. 66); (Jb) The action cannot be sustained by
or of peijury. Hutts v. Hutts, 62 Ind. proof of different words than those alleged,
414. But if the words do not charge a although they are of the same import,
crime they are not actionable. Thus, to Ward v. Dick, 47 Conn. 300 ; Norton v.
say one stole windows from J.'s house is Gordon, 16 111. 38 ; Sanford v, Gaddis, 15
not actionable, for windows are not at com- Id. 228 ; Smith v, Hollister, 32 Vt. 695.
mon law subjects of larceny. Wing v. The defamatoiy words must be proved as
Wing, 66 Me. 62. Nor is it actionable to laid; and it is a fatal variance if the words
charge a woman with being an inhuman as alleged are materially qualified by evi-
stepmother and beating her child nnmerci- dence of words not contained in the dec-
fnllY (Geisler t. Brown, 6 Neb. 254); nor laration, although such words, as qualified,
to charge one who has hwa a witness in are still libellous. Bainy v. Bravo, 4 P.
court with false swearing, if the court C. App. 287; Barrows o. Carpenter, 11
had no jurisdiction (Hamm v. Wickline, Gush. (Mass.) 456. But see Miller «•
26 Ohio St 81); or it the wends used show Miller, 8 Johns. (N. Y.) 74, contra. See
that perjury was not meant to be imputed, also BulL N. P. 5 ; Nye 9. Otis, 8 Mass.
Pegram v. Stoltz, 76 N. C. 349. The 122. So if the complaint states the slander
criminality of the act alleged Is governed to be an acousation of theft, and the proof is
410 LAW OP EVIDENCE. [PABT IV.
for the witness to state the impression produced on his mind by
the whole of the conversation ; ^ yet it has been held sufficient to
prove the substance of the words, and the sense and manner of
speaking them.^ (a) If they are alleged as spoken affirmatively,
proof that they were spoken interrogatively will not support the
count.' So, an allegation of words in the second person is not
proved by evidence of words in the third person ;^ nor is an alle-
gation of slanderous words, as founded on an asserted fact, sup-
ported by proof of the words as founded on the speaker's belief of
such fact.^ Nor will evidence of words spoken as the words of an-
other support an allegation in the common form as of words spoken
by the defendant.® Words in a foreign language^ whether spoken
or written, must be proved to have been understood by those who
heard or read them ; and a libel by pictures or signs must also be
shown to have been understood by the spectators.^ (6) If the libel
is contained in a letter, addressed to the plaintiff, this is no evi-
dence of a publication in a civil action, though it would be suffi-
cient to support an indictment on the ground of its tendency to
^ Harrison v. Berinetou, 8 C. & P. 708. A witness cannot be asked, in the Brst in-
stance, on his examination in chief, what he underntood by the words; but after a foun-
dation has beeen laid, by evidence showing something to prevent their being taken in
their plain and obvious sense, the witness may then be aaked, with reference to that
evidence, in which sense he understood them. Daines v. Hartley, 12 Jur. 1093; 3
Exch. 200.
a Miller ». Miller, 8 Johns. 74 ; Whiting v. Smith, 18 Pick. 864.
' Barnes v. Holloway, 8 T. R. 150. Proof of special damage must be confined to
the evidence of persons who received the slanderous statements from the defendant
himself. Rutherfoi-d v. Evans, 4 C. & P. 74 ; 8. c. 6 Ring. 451 ; Ward v. Weeks, 7
Ring. 211.
« Avarillo V. Rogers, Bull. N. P. 5 ; Whiting v. Smith, 18 Pick. 364 ; Miller «.
Miller, 8 Johns. 74.
^ Cook r. Stokes, 1 M. & Rob. 237. And see Rrooks v. Blanshard, 1 Cr. & M. 779;
Hancock v. Winter, 7 Taunt 205 ; 8. o. 2 Marsh. 602.
* McPherson v. Daniels, 10 B. & C. 274 ; Bell v. Byrne, 13 East, 654. And see
Walters v. Mace. 2 B. & Aid. 756 ; Zenobio v. Axtell. 6 T. R. 162.
7 2 Stark, on Slander, p. 14 [13]; Du Boat v. Beresford, 2 Campb. 612.
of one of embezzlement, this is a variance of the meaning of them was. Rainy «.
(Schulze r. Fox, 58 Md. 87); or if the al- Bravo, L. R. 4 P. C. 287.
legation is of an accusation oif larceny and ( 6) If the words chaiged were spoken
the proof is of one of deception snd fraud in a foreign language, they should do set
(Perry v. Porter, 124 Mass. 338); but it is forth in the declaration in such language,
true, as stated in the text, that proof only with an English translation. If they are
of the substance of the words is necessary, set forth in English without a translation,
Albin V. Parks, 2 III. A pp. 576. and the proof is that they were apoken in
(a) So if the words complained of were a foreign tongue, the action cannot be sos-
written, and the contents of the writing tained. If the words were spoken in a
are proved by secondary evidence, the wit- foreign language, the declaration mnst al-
nesses who testify as to the contents of the lege that the hearan understood them, and
writing mnst be able to testify what the so must be the proofs. Zeig «. Ort, S
wordA were and not what their im^pfrtmoM Chand. (Wis.) 26.
PABT nr.} LIBEL AND SLAKDEB. 411
provoke a breach of the peace.^ But if the letter, though addressed
to the plaintiff, was forwarded during his known absence, and with
intent that it should be opened and read by his family, clerks, or
confidential agents, and it is so, it is a sufficient publication.^ (a)
If it was not opened by others, even though it were not sealed, it
is no publication.'
§ 415. Pablioatloii. Libel. The publication of a libel by the
defendant may be proved by evidence that he distributed it with
his own hand, or maliciously exposed its contents, or read or sang
it in the presence of others ; or, if it were a picture, or a sign, that
he painted it ; or if it were done by any other symbol or parade,
that he took part in it, for the purpose of exposing the plaintiff to
contempt and ridicule.^ But to show a copy of a caricature to an
individual privately, and upon request, is not a publication.^ Nor
is the porter guilty of publishing, who delivers parcels containing
libels, if he is ignorant of their contents.^ So, if one sells a few
copies of a periodical, in which, among other things, the libel is
contained, it is still a question for the jury, whether he knew what
he was selling.^ If the libel was published in a newspaper, evi-
dence that copies of the paper containing it were gratuitously cir-
culated in the plaintiff's neighborhood, though they be not shown
to have been sent by the defendant who was the publisher, is ad-
missible to show the extent of the circulation of the paper, and the
consequent injury to the plaintiff.®
§ 416. Same enbjeot. Evidence that a libel is in the defend-
anfs handwriting is not, of itself, proof of a publication by him ;
but it is admissible evidence, from which, if not explained, publi-
cation may be inferred by the jury ; the question of publication,
1 2 Stark, on Slander, p. Sd [85]; Hodges «. State, 6 Humph. 112.
• Delcroiz v. Theyenot, 2 Stark. 68 ; Pnillips «. Jansen, 2 Esp. 624 ; Ahem v, Ma-
guire, 1 Annst. & McCartn. 89.
■ Clutterbuck «. Chaffers, 2 Stark. 471 ; Lyle v. Clason, 1 Gaines, 681.
4 2 Stark, on Slander, pp. 16, 44 [49] ; De Li1)ellU Famosis, 5 Co. 125 ; Lambe's
Caae, 9 Co. 59. And see Johnson v. Hanson, 7 Ad. k £1. 233. Lending a libellous
paper, or sending it in manuscript to a printer, is publication, though it be returned
to the party. &x v. Pearce, Peake's Caa. 75; 2 Stark, on Slander, p. 44 [49^
• Smith v. Wood, 8 Campb. 828.
• Day V. Bream, 2 M. & Rob. 54.
7 Chubb V. Flannagan, 6 C. & P. 481.
• Qatheioole v, Miall, 15 M. & W. 819; 10 Jur. 887.
(a) A slander spoken only in the pres- nublished, sufficiently to support an action.
eoce of the plaintiff's own family is still Miller v, Johnson, 79 UL 58.
412 LAW OP ETIDEIfOIL [PABT IT.
where the facts are doubtful, being exclusivdy within their
province.^ (a) The mode of proof of handwriting has been already
considered.^ If the manuscript is in the defendant's handwriting,
and is also proved to have been printed and published, this is
competent evidence of a publication bv him.' Where the action
for a libel is against the printer or hookseUery tlie fact of publica-
tion may be proved by evidence that it was sold or issued by
him, or in his shop, though it were only in the way of his trade ;
or by his agent or servant, in the ordinary course of their em-
ployment ; and this, whether the master were in the same town
at the time, or not ; for the law presumes him to be privy to
what is done by others in the usual course of his business, and
the burden is on him to rebut this presumption, by evidence to
the contrary ; such as, that the libel was sold clandestinely, or
contrary to his orders, or that he was confined in prison, so that
his servants had no access to him, or that some deceit or fraud
was practised upon him, or the like.^ If the defendant procure
another to publish a libel, this is evidence of a publication by the
defendant, whenever it takes place.^ The sending of a letter by
the post is a publication in the place to which it is sent ; ® (i) the
date of the letter is prima facie evidence that the letter was
written at the place where it is dated ;7 and the postmark is
prima facie evidence that the letter was put into the office at
^ Rex V. Beare, 1 Ld. Raym. 417 ; LamWa Case, 9 Co. 59 ; Baldwin «. Elpbinston,
2 W. Bl. 1038. And see Rex v. Almon, 5 Burr. 2686 ; The Seven BiahopB* Case, 4 St
Tr. 804 ; Rex o. Johnston, 7 East, 66, 68.
< See anU, vol. L §§ 676-581.
• Regina o. Lovett, 9 0. & P. 462 ; Bond v. Dongks, 7 C. fc P. 626.
« Rex V. Almon, 6 Burr. 2686 ; Rex v, Walter, 8 Esp. 21; Rex v. Gntch, 1 M. A
Malk. 483; 2 Stark, on Slander, pp. 28-32 [30-34]. If the act of the servant was be-
yond the scope of his employment, it is no evidence of a publication by tiie master.
Hardinff V. Greening, 1 Holt's Gas. 681 ; & c. 1 J. B. Moore, 477 ; Rex «. Woodfoll, 1
Hawk. P. C. c. 78, § 10, n. (by Leach) ; wnte, voL i g 234.
* Rex V, Johnson, 7 East, 65.
' Rex 0. Watson, 1 Campb. 216. Whether it is also a publication, or even a mis-
demeanor in the place from which it is sent, qucere; and see Rex v, Buidett, 4 B. a
Aid. 96.
Y Rex V. Burdett, 4 B. A Aid. 96.
(a) So, where the defendant threatened in the composition of a libellous letter
to publish libellous matter of the plaintiff, written by one of them, which letter was
ana it was afterwards published, this is afterwards put into the post-office and sent
some evidence for the Jury that the defend- by mail to the person to whom it was ad-
ant was the author of the libeL Bent v, dressed, this was held competent and snf-
Mink, 46 Iowa, 676. ficient to prove a pnblioatioa by both.
{b) And where two persona participated Miller v. Butler, 6 Cui^ 7L
PABT IT.] UBBL AND SLANDER. 418
the place denoted by the mark,^ and that it was received by the
person to whom it was addressed.'
§ 417. (8.) Truth of ooUoqnium. The plaintiff must prove the
truth of the eoUoquiumj or the application of the words to himself,
and to the extrinsic matters alleged in the declaration, where
these are material to his right to recover.^ The meaning of the
defendant is a question of fact, to be found by the jury> (a) It
1 Rex V. Johnson, 7 East, 66; Fletcher v. Braddyll, 8 Stark. 64. See 2 Stark, on
Slander, p. 86 [38].
« Shipley v. Todhunter, 7 C. & P. 680; Warren v, Warren, 4 Tyrw. 860; C^llan v.
G*vlord, 3 Watts, 321.
> Strader v. Sorgder, 67 III. 404.
* Oldham v. Peake, 2 W. Bl. 969, 962; s. o. Cowp. 276, 278; Van Vechten v. Hop-
kins, 6 Johns. 2U; Roherts v, Camden, 9 East, 93, 96. If the innuendo does not re-
fer to a preceding allegation, but introduces new matter, not essential to the action, it
needs not be proved. Ibid. It is for the judge to decide whether the publication is
capable of the meaning ascribed to it by an innuendo, and for the jury to decide
whether such meaning is truly ascribed to it Blagg v, Stuart, 10 Ad. & £1. N. 8.
899.
(a) The office of the colloquium or in- limited them at the time, or that they
nuendo is merely explanatory and it per- were spoken under such circumstances,
forms this duty nroperly only so far as the that the bystanders did not understand
facts alleged in tne complaint bear out its them as so imputing the crime. Miller
allegations. An innuendo therefore can- v. Johnson, 79 111. 68. As the iigury for
not be used to extend the complaint so which the law ^ves damages is the injury
that it may cover facts not alleged in it to the reputation of the plaintiff in the
nor enlarge or alter the natural meaning of minds of those that hear the slander, it
the wordls, but everything on which the follows that, to use the language of Parke,
plaintiff intends to relv should be alleged B., in Hankinson v. Bilby, 16 M. & W.
in the complaint itself. Havemeyer v. 442, "The effect of the words UHcd, and
Fuller, 60 How. (N. Y.) Pr. 316; Salva- not the meaning of the party in uttering
telli V. Ohio, 9 Mo. App. 166 ; Gault v, them, is the test of their beins actionable
Babbitt, 1 111. App. 180 ; Bloss v. Tobey, or not; that is, first ascertain the meaning
2 Pick. (Mass.) 320; Carter v, Andrews, of the words themselves, and then give
16 Id. 1 ; Snell v. Snow, 13 Met. (Mass.) them the effect any reasonable bystander
278 ; Goodrich v. Davis, 11 Met (Mass.) would affix to them.'*
473. If the language is ambiguous the juiy
Thus where the libel was contained in is to determine which of the meanines was
a bill in chancery which stated a series of the one which was conveyed by the de-
facts, and the innuendo was that the de- fendant to his hearers when he spoke the
fendant meant thereby to charge the plain- words (Thompson v. Powning, 16 Nev.
tiff with embezzlement, it was held tnat if 196), e. g. where the language miaht be
the statements of the bill themselves did construed as imputinff to the plaintiff
not amount to a charge of embezzlement either such fraudulent deeds as would ren-
no innuendo could enlarge the meaning to der him liable to a criminal prosecution,
include such a charge. Johnson v. Brown, or a mere failure to perform a contract, for
13 W. Va. 71. So, sgain» if the words which he could only oe made answerable in
mn prima facie innocent^ and the plaintiff a civil action. Struthers v. Peacock, 11
eontends that they are ironical, he must Phila. (Pa.) 287; Hays v. BaU, 72 N. T.
state the facts on which he relies to sup- 418. In doing this they take into account
port this contention; a mere innuendo that all the circumstances attending the utter-
snch was the imrport of the words will not ance of the words, i. e. the time, place,
be enough. Stewart v. Wilson, 28 Minn. ' and words, and the persons uttering them.
449. And on the other hand, if the words Riddell v, Thayer, 127 Ifosa. 487; Down-
in their ordinary signification impute a ing v. Brown, 8 CoL 871.
erime, the defendant must show that he so
414 LAW OP EVIDENCE. [PART IV.
may be proved by the testimony of any persons conversant with
the parties and circumstances ; and, from the nature of the case,
they must be permitted to some extent to state their opinion, con-
clusion, and belief, leaving the grounds of it to be inquired into
on a cross-examination.^ (a) If the words are ambiguous and the
hearers understood them in an actionable sense, it is sufficient ;
for it is this which caused the damage ; and if a foreign language
is employed, it must appear to have been understood by the
hearers.^ The rule is, that words must be construed in the sense
which hearers of common and reasonable understanding would
ascribe to them,; even though particular individuals, better in-
formed on the matter alluded to, might form a different judgment
on the subject.' Biit where the words are spoken in relation to
extrinsic facts, in respect of which alone they are actionable, as,
where they are spoken of one in his office of attorney, it is not
necessary to prove that the hearers knew the truth of the ex-
trinsic facts at the time of speaking ; for they may afterwards
learn the truth of the facts, or may report them to others, who
alreadv know the truth of them.* Where the libellous words do
themselves assume the existence of the extrinsic facts, there, as
we have just seen, they need not be proved.^
§ 418. (4.) BffaUce. Intent. As to the proof of maliee or intenr
tion. If the words are in themselves actionable, malicious intent
^ 2 Stark, on Slander, p. 46 [51]. Evidence that the plaintiff had been made the
sabject of laughter at a public meeting in admissible for this puipoae, as well as in
proof of damages. Cook v. Ward, 6 Bmg. 409.
< 2 Stark, on Slander, p. 46 [51] ; Fleetwood «. Curley, Hob. 268 ; Keen v. Ruff, 1
Clarke (Iowa), 482.
< Per Pollock, C. B., in Hankinson v. BQby, 16 M. k W. 445.
* Fleetwood v, Curley, Hob. 268.
* Jones r. Stevens, 11 Price, 235 ; Bagnall v. Underwood, Id. 621 ; Gould v,
Hulme, 8 G. & P. 625 ; Yrisarri v. Clement, 8 Bing. 482.
(a) In provinff the application of the held that, unless a foundation is laid by
language of an alleged libel to the person showing that something had previously
who is the subject of it, witnesses may be passed whidi gave a pecmiar character and
asked their opinion as to the meaning and meaning to some woni, the question cannot
intent, and what is their understanding of be put to a witness, *' What did yea un-
particular expressions. Miller o. Butler, derstand by it?" Where the slander is al-
6 Cnsh. (Mass.) 71 ; Russell v, Kelley, 54 leged to have been made not in direct terms,
Cal. 641 ; anie^ vol. i. § 440. See also but by expressions, gestures, and intona-
Goodrich 9. Davis, 11 Met. (Moss.) 478. tions of voice, it is competent for witnesses
But see Snell v. Snow, 18 Met. (Mass.) who heard the expressions to state what
278 ; Van Vechten v. Hopkins, 5 Johns, they understood the defendant to mean by
(N. Y.) 211 ; Gibson v. Williams, 4 Wend, them, and to whom he intended to apply
(N. T.) 820 ; White v. Sayward, 88 Me. them. Leonard v. AUen, 11 Cush. (Maas.)
822 ; McCue v. Feivuson, 78 Penn. St 888. 241.
In Daines «. Harttoy, 8 Exch. 200, it was
PART lY.] UBEL AND SLANDER. 415
in publishing them is an inference of law, and therefore needs no
proof; though evidence of express malice may perhaps be shown,
in proof of damages.^ (a) But if the circumstances of the speaking
and publishing were such as to repel that inference and exclude
any liability of the defendant, unless upon proof of actual malice,
the plaintiff must furnish such proof. To this end, he may give
in evidence any language of the defendant, whether oral or writ-
ten, showing ill-will to the plaintiff, and indicative of the temper
and disposition with which he made the publication; and this,
1 Stark, on Slander, p. 47 [58]. And see BodweU v. Osgood, 3 Pick. 879, 884.
Where the tnith of the words had been pleaded in justification, and the plaintiff at the
trial offered to accept an apology and nominal damages, if the defendant would with-
draw the justification, which the defendant refused, but did not attempt to prove it ;
this conduct was held proper for the jury to consider, with reference to the Question of
malice, as well as to that of damages. Simpson v. Robinson, 18 Law J. Q. B. 73 ; 12
Ad. & £1. N. & 511. (b) In an action for a libel in charging the plaintiff with murder
in a duel, with circumstances of aggravation, these circumstances, if libellous, must be
justified, as well as the principal charge. The record of the plaintiff's acquittal is ad-
missible ill evidence; but it is not alone a sufficient answer to the defendant's justifica-
tion ; nor is it conclusive against the defendant, in proof of the plaintiff's innocence
of all tiie circumstances alleged. Helsham v. Blackwood, 15 Jur. 861.
(a) There is no necessity of proving the defendant pleaded the truth of the
malice in an action of libel or slander, be- words spoken, but failed to offer any or
cause an injury is done to the reputation sufficient proof to sup|)ort his plea, is evi-
of the plaintiff by a false disparagement, dence of actual malice, must probably be
whether malicious or not. Proof, therefore, decided upon principles similar to those
of the utterance of the words is enouffh to ffoveniinjg the insertion of libellous matter
make out a prima fcusie case for the plain- in pleadings in other actions of law, i. e.
tiff. Hamilton v. £uo, 81 N. Y. 116 ; such allegations are conditionally privi-
Dillard v, Collins, 25 Gratt. (Va.) 528; leged, and their use by the defendant given
WUson 9. Noonan, 35 Wis. 321. rise to no inference of actual malice, and
The rule is stated by Parke, B., in if the plaintiff wishes to use them to en-
ToM^ood V. Spyring, 4 T3frwh. 582, p. 595, hance his damagra he must show by other
as follows : "In general, an action lies proof that their insertion was due to the
for the malicious publication of statements express malice of the defendant. To the
which are false in fact, and injurious to the effect that the failure to support a plea of
character of another (within the well- justification is not of itself proof of malice
known limits as to verbal slander), and are Corbley v. Wilson, 71 III. 209 ;
the law considers such publication as Murphy v. Stout, 1 Smith (Ind.), 250;
malicious, unless it is fairly made by Byrket v, Monahan, 7 Blackf. (Ind.)
some person in the dischaige of some pub- 83 ; Shortley v. Miller, 1 Smith (Ind.),
lie or private duty, whether legal or moral, 395 ; Rajrner v. Kinney, 14 Ohio St 283 ;
or in the conduct of his own affairs in Sloane v, Petrie, 15 III. 425 ; Morehead v,
matters where his own interest is con- Jones, 2 B. Mon. (Ry.) 210 ; Klink v.
oemed. In such cases, the occasion pre- Colby, 46 N. Y. 427.
▼ents the inference of malice which the If, however, there are circumstances
law draws from unauthorized communica- showing that the insertion of such a plea is
lions, and affords a qualified defence de- malicious, as if the defendant inserted it
))endin^ on the absence of actual malice." without reasonable cause to believe it to
And this malice in fact, or express malice, be true, or knowing it to be false, or other
is to be found by the jury from the facts things of a like nature, it may be used as
of the case. Swan v. Tappan, 5 Gush, a proof of actual malice, showing the ant-
(Mass.) 104; Lewis v. Chapman, 16 N. Y. mu« of the defendant towards the plaintiff.
869 ; Bush «. Prosser, 11 N. Y. 358 ; Chamberlain v. Vance, 51 Cal. 75 ; Free-
Howard V. Sexton, 4 N. Y. 157. man «. Tinsley, 50 IlL 497.
(5) The question whether the fact that
416 LAW OT EVIDENCE. [PABT HT.
whether such language were used before or alter the publication
complained of.^ (a) But if such collateral evidence consists of
matter actionable in itself, the jury must be cautioned not to
increase the damages on that account.^
§ 419. Falsity of ohu^, Gtenwal iMua. In ordinary cases,
under the general issue, the plaintiff will not be permitted to
prove the falnty of the charges made by the defendant, either to
1 2 Stark, on Slander, pp. 47-58 [58-60]. See mpra^ § 271 ; Kean v. McLangfalin,
2 8. & R. 469 ; Pearson v, Le Maitro, 7 Jur. 748 ; Stuart v, Lovell, 2 Stark. 08 ;
Chambers v. Robinson, 1 Str. 691 ; WalUs v. Mease, 8 Binn. 546 ; Macleod r. Wak-
ley, 8 C. & P. 811 ; Plankett.v. Cobbett, 5 £sp. 186 ; Chubb v. Westley, 6 C. fc P.
486. In some cases the admissibility of other words or writings has been limited to
those which were not in themselves actionable (Mead v, Daubigny, Peake*s Caa. 125 ;
Bodwell V. Swan, 8 Pick. 876 ; Defries v, Davis, 7 C. & P. 112) ; or for which dama-
giis had already been recovered. Symmons «. Blake, 1 M. & Rob. 477. In other
cases, it has been restricted to words or writings relating to those which are allc^i^ in
the declaration. Finnerty v. Tipper, 2 Campbw 72; Delegal v. Highley, 8 C. ft P. 444;
Buirell V. Adkins, 1 M. ft Q. 807; Ahem v. Magnire, 1 Armstr. ft Macartn. 89; Bod*
well V. Swan, 8 Pick. 876. In otlkers, the admissibility of subsequent words has been
limited to cases where the intention was er|uivocal, or the words ambiguoua. Stnart
«. Lovell, 2 Stark. 98 ; Pearce v. Omsby, 1 M. ft Rob. 455 ; Lanter v. McEwen, 8
Blackf. 495 ; Kendall v. Stone, 2 Sandf. S. C. 269 ; Bereon v. Edwards, 1 Smith, 7.
' Rustell V. Macquister, 1 Campb. 49, n. ; Pearson v. Le Maitre, 7 Jur. 748 ; 5
Man. ft Gran^: 700 ; 6 Scott, N. R. 607. And see Finnerty «. Tipper, 2 Campb. 74,
75 ; Tate v. Humphrey, Id. 73, n. If the plaintiff collaterally introduces other libels
in evidence, the defendant may rebut them by evidence of their truth. Stnart v.
Lovell, 2 Stark. 98 ; Wame v. Chadwell, Id. 457 , Commonwealth «. Harmon, 2
Gray, 289.
(a) The fact that the defendant has at qnestioned. As proof of malice, probably
other times repeated the slander of which tne better rule is to admit them. Sonne-
the plaintiff complains has been offered for bom v. Bernstein, 40 Ala. 168 ; Ellis «.
two purposes, (1) to prove express malice Lindley, 38 Iowa, 461 ; Parmer v. Ander-
in the defendant ; (2) to enhance the dam- son, 83 Ala. 78 ; etm/ro, Fraxier «. Mc-
ages. It is well settled that it is not ad- Closkey, 60 N. Y. 887; Howard «. Sexton,
missible for the latter purpose. The 4 N. Y. 157. But such subsequent state-
plaintiff founds his claim for damsgos on ments cannot be used to alter the meaning
the injury caused by the utterance on of the words whieh aro the ground of the
which he declares, and all he can claim action, so as to give them a slanderous in-
is the natural results of this wrong. There terprotation when they are ambiguous,
is, however, a general inclination in the The test of their meaning is the imprtt-
courts to admit evidence of such repetitions sion they would naturally make on tnose
to prove the malice of the defendant, and who heard them, and if this impressioo is
in States where the jury are allowed to not defamatory of the plaintiii^ aubeeqnent
give vindictive damases if the slander words cannot make it so. Lucss 9,
appears to be maliciously spoken, the Nichols, 7 Jones (N. C. ), L. 82.
measure of damasres would thus be indi- To prove actual malice in the defendant
rectly affected. Ward v. Dick, 47 Conn, in an action of slander for charging an in-
800 ; Austin v. Remington, 46 Conn. 16 ; fant with lareeny, evidence of a previoiia
Chamberlain v. Vance, 51 Cal. 75; Par- quarrel between the defendant's &ther and
merv. Anderson, 88 Ala. 78. And for the next friend is not admissible. Yoric «.
same purpose other slandere of a similar im- Peace, 2 Gray (Ma8a.X 282. In Taylor
port may be shown. Brown v. Barnes, 89 v. Churoh, 8 N. Y. 452, evidenoe ef what
Mich. 211; Hemminm v. Oasson, 1 E. B. was said bv the defenduit in direotiitf the
k £. 846. CcfiUra, Howard v. Sexton, 4 printing of the Uhellous matter was soniii-
N. Y. 157. ted, in order to disprove actual malice ia
Whether such repetitions made after the publication, ana to infloence the qiiee-
the suit is brought are admissible, has been tion of damtges.
PART IT.] LIBEL AND SLANDER. 417
show malice, or to enhance the damages; for his innocence is
presumed ; unless the defendant seeks to protect himself under
color of the circumstances and occasion of writing or speaking the
words ; in which case it seems that evidence that the charge was
false, and that the defendant knew it to be so, is admissible to
rebut the defence.^ But where the action is for slander in giving
a character to a former servant, or one who has been in the em-
ployment of the defendant, the plaintiff must prove that the char-
acter was given both falsely and maliciously.^ Proof that the
defendant was aware of its falsity is sufficient proof of malice ;
and in proof of its falsity, general evidence of his good char-
acter is sufficient to throw the burden of proof upon the defend-
ant.*
§ 420. (5.) Damages. As to the damages. Where special
damage is essential to the action, the plaintiff must prove it, ac-
cording to the allegation. We have already seen, that damages,
which are the necessary results of the wrongful act complained
of, need not be alleged ; and these are termed general damages ;
but that those which, though naturaly are not necessary results^
and which are termed special damages, must be specially alleged
and proved ; and that no damages can, in any case, be recovered,
except those which are the natural and proximate consequences
of the wrongful act complained of.* (a) Even if the words are
1 2 Stark, on Slander, p. 53 [59].
> Brommage v, Prosser, 4 B. & C. 256 ; Hargraye v. Le Breton, 4 Barr. 2425 ;
Weatheratone v. Hawkins, 1 T. R. 110.
• Rogers v. Clifton, 3 B. & P. 687, 589 ; 2 Stark, on Slander, p. 52 [58] ; King v.
Waring, 5 Esp. 18 ; Pattison v. Jones, 8 B. & C. 578 ; Chubb v. Qsell, 34 Penn. St.
114 ; Hartranh v. Hesser, Id. 117.
* See aupra, tit. Damages, §§ 254, 266, 267, 269, 271, 275. In a joint action by
partners, for a libel in respect to their trade, damages cannot be given for any injury
to their private feelings, but only for imury to their trade. Hanhome «. Lawson, 3
a It P. 196.
(a) The question of punitive damages be given if the jury finds that the words
arises very frequently in actions of slan- were spoken with evil and malicious in-
der. Of the two conflicting opinions held tent and with express malice. These
by Mr. Greenleaf and Mr. Sedgwick, damages are not based on any injury to
wbich are fully discussed in the note of the phuntiff, even to his feelings, but are
Mr. Greenleaf under the title Damages, intended as a repressive measure to check
anle^ the (minion of Mr. Sedgwick that the repetition or the same offence. Barr
damages which are not based on an^ in- v. Moore, 87 Pa. St. 385 ; Nolan v. Traber,
iury to the j>laintiff, even to his feelings, 49 Md. 460 ; Bowe v. Rogers, 50 Wis.
bat are strictly a punishment for the 598. Damages to compensate for the in-
offenoe, may in some e&ses be awarded, is jury to the plaintiff*s reelings are fdways
perhaps more commonly held in the allowed when the injury is proved. Ham-
United States. In actions for words, it ilton v. Eno, 16 Hun (N. Y.), 599. It
is often said that punitive damages may was held in Brown v, Barnes, 39 Mich.
rou n. S7
418 LAW OP EVIDENCB. [PABT IV.
actionable in themselves, and a fortiori if they are not, no evidence
of special damage is adndssible, imless it is specially alleged in
the declaration ; and to such special allegation the evidence must
be strictly confined.^ Thus, if the loss of marriage is alleged as
special damage, the individual must be named with whom the
marriage might have been had, and no evidence can be received
of a loss of marriage with any other person.^ But where the
damage is in the prevention of the sale of an estate by auction,
a general allegation is sufficient, and evidence that any person
would have bid upon it is proof of such prevention.^ So, where
the damage consists in the desertion of a chapel,^ or of a theatre,^
1 Ibid. ; Herrick v. Lapbam, 10 Jobns. 281 ; Hallock v. Miller, 2 Barb. S. C. 730.
Wbere the action was for alleging that the plaintiff's ship was unseaworthy, proof of
special daroaffe was held admisKible, without any averment of special damage in the
declaration ; Docause, being a chattel, no action is maintainable without proof of some
damage. Ingram v. Lawsou, 9 C. & P. 826. Sed quoBrt,
^ 1 Sauna. 243, n. 5, by Williams ; Hunt v. Jones, Cro. Jac. 499 ; Anon., 2 Ld.
Raynu 1007 ; 2 Stark, on Slandet, p. 55 [62, 68]. So the loss of customers and the
like. Ibid. ; Tilk v. Parsons, 2 C. & P. 201 ; Ashley v. Hanison, 1 Esp. 48^ 60.
• 2 Stark, on Slander, p. 56 [63]. * Hartly ». Herring, 8 T. K. 180.
* Ashley v. Harrison, 1 Esp. 48.
211, that the plaintiff can show, in aggra- The effect of a public retraction of the
ration of damages, the fact that the de- slander (which is undoubtedly no bar to
fendant is a man of wealth and standing, the action) upon the question of damages
to show what weight his word would have has been variously decided. It has b^
in the community, and so in Humphries held that proof of a retraction of the slan*
V, Parker, 52 Me. 502. But he cannot der in the presence of the defendant's
show his own poverty. Case v. Marks, 20 family is not admissible in mitigation of
Conn. 245. damages. Kent v. Bonney, 38 Me. 485.
The repetition of a slander by others, But it was held in Cass v. New Orleans
is not such a natural and proximate result Times, 27 La. Ann. 214, that the publi-
of the utterance by the defendant as to cation of a retraction might be admissible
render him liable for it, unless he in some evidence in mitigation of damages. Cf.
way requested or caused the repetition. Evening News Association v. IVyon, 42
Hastings v. Stetson, 126 Mass. 829 ; Ter- Mich. 549. And where a libel was pub-
williger v. Wands, 17 N. Y. 54 ; Derry lished in a newspaper and retracted the
V. Handley, 16 L. T. N. 8. 263 ; Parkins day but one after, and no evidence of ac-
V. Scott, 1 H. & C. 158. But where the tual damage was shown, a verdict of orer
publication is by a private letter, directed $1,000 damsges was held good. Meyer v.
and sent by mail to a particular person. Press Publishing Co., 46 N. Y. Super,
the defendant is liable for the damages Ct 127. But cf. Samuels v. Evening
caused by any further publication of the Mail Association, 16 N. Y. Supreme Ct.
letter by the person to whom it is ad- 288.
dressed, or by other persons after it comes If the defendant has been induced to
into the hanas of the person addressed, if believe the truth of the slander from the
such further publication is a probable and plaintiff's own conduct, he may ffive this
natural consequence of the first sending m evidence in mitigation of damages,
the letter. Miller «. Bartlett, 6 Cush. Moort?. Mauk, 3 111. App. 114. In Wat-
(Mass.) 71. The plaintiff cannot show, son o. Moore, 2 Cxish. (Mass.) 183, which
in order to enhance the damages, that it was an action by the husband and the wife
was currently reported in the neighbor- for words spoken of the wife by the defcnd-
hood that the defendant had charged the ant, chargmg her with larceny, it was
plaintiff with the crime alleged in the held that the defendant cannot show, in
neclamtion. Leonard v. Allen, 11 Cush. mitigation of damages, that the husband
(Mass.) 241. keeps a disorderly mfe.
PABT IT.] UBEL AND SLANDER. 419
by those who used to resort to it, it seems that a general allega-
tion and proof of the diminution of receipts is sufficient. If the
defendant admits and justifies the fact of publication, without
pleading the general issue, the plaintiff may show the manner of
publication, as affecting the question of damages.^
§ 421. Dafanoa. Oanoral iMua. In the DEFENCE of this action
under the general issusj the defendant may give in evidence any
matter tending to deny or disprove any material allegation of the
plaintiff ; such as the speaking and publishing of the words, the
malicious intention or the injurious consequences resulting from
the act complained of. If the plaintiff, in proof of malice, relies
upon the falsity of the charge, the defendant may rebut the in-
ference by evidence of the truth of the charge, even under the
general issue. And where the occasion and circumstances of
tlie publication or speaking were such as to require from the
plaintiff some proof of actual malice, the defendant may prove
these circumstances under the general issue.' Such is the case
where the alleged libel or slander consisted in communications,
made to the appointing power ^ in relation to the conduct of the
plaintiff as a public officer; or, to the individuals or authorities
empowered by law to redress grievances^ or supposed to possess
influence and ability to procure the means of relief ; or, where they
were confidential communications ^ made in the ordinary course of
lawful business, from good motives and for justifiable ends. So,
where the circumstances were such as to exclude the presumption
of malice, as, if the words were spoken by the defendant in his
office of Judge^ Juror ^ Attorney^ Advocate^ Witness^ or Party ^ in
^ Vines v. Serell, 7 C. & P. 16S. But eyidence of the defendant's procaring testi-
mony to prove the trath of hb chai^gea, and then declining to plead in justification, is
not admissible to affect the damages, though it might be properly referred to the jury,
upon the question of malice. Bodwell v. Osgood, 8 Pick. 879. Nor is evidence of a
repetition of the slander admissible to enhance the plaintiff's damages. Burson v.
Edwards, 1 Smith, 7 ; Lanter v. Ms£wen, 8 Blackf. 495 ; 8hortley v. Miller, 1 Smith,
895 & Nor can the failure to sustain a plea in justification have that effect. Shank
9. Case, 1 Smith, 87.
* Hoson V. Dale, 19 Mich. 17. The class of privileged communications *' compre-
hends all cases of communications made hona fide in performance of a duty, or with a
fair and reasonable purpose of protecting the interest of the party using the words."
Somervill v. Hawkins, 15 Jur. 450, per Maule, J. ; 8 Eng. Law & £q. 508. A com-
munication being shown to be priyiWRd, the bnrden of proof is on the plaintiff to
show actual malice in the defen^ut. Sut to enable the plaintiff to have the question
of malice submitted to the joiy, it is not essential that the evidence should be such as
necessarily leads to the conclusion that midice existed, or that it shoidd be in(M)n8istent
with the non-existence of malice ; but it is necessary that the evidence should raise
a ^babiltty of malice, and be more consistent with its existence than with its non-
exutenoe. Ibid.
420 LAW OF ETIDENOIL [PABT IT.
the course of a judicial proceeding/ or as a member of a legislative
OBsembly^ in his place, these also may be shown under the general
issue.^ (a) So, if a person having information materiallj affecting
1 1 Stark, on Slander, pp. 401*406, by Wendell ; Fairman v. Ives, 5 B. & Aid.
642 ; Bradley v. Heath, 12 Pick. 163 ; Hoar v. Wood, 8 Met. 193 ; Coffin v. Coffin, 4
Mass. I ; Remington v. Congdon, 2 Pick. 810. Confidential communications, made
in the usual course of business, or of domestic or friendly intercourse, should be viewed
liberally by juries ; and unless they see clearly that there was a malicious intention
of defaming the plaintiff, they ought to find for the defendant. Todd v, Hawkins, 8
C. & P. 88, per Alderson, B. See, to the same effect, Wright v. Woodgate, 2 C. M.
& H. 673 ; 1 Tyrw. & G. 12 ; Toogood ». Spyring, 1 C. M. & R. 181 ; 4 'Tprw. 582 ;
Shii)ley v, Todbunter, 7 C. & P. 680 ; Story v. ChaUands, 8 C. & P. 234, 286 ; Wilson
v. Robinson, 9 Jur. 726 ; Griffith v, Lewis, 7 Ad. k El. n. s. 61 ; Warr v. Jolly, 6
C. & P. 497 ; Padmore «. Lawrence, 11 Ad. & EL 880 ; Needham v. Dowling, 15 Law
Jour. N. 8. 9; Gardner v. Slade, 13 Jur. 826; Kershaw i;. Bailey, 1 Exch. 743; Somer^
vill V. Hawkins,* 15 Jur. 450 ; 8 Eng. Law & Eq. 503 ; Simpson v. Robinson, 12 Ad*
& El. N. 8. 511. Though the expressions were stronger than the circumstances re-
quired, it is still a question for the jury whether they were used with intent to defame^
or in good faith to communicate facta interesting to one of the parties. Dunman «•
Bigg, 1 Campb. 269, n. ; Ward v. Smith, 4 C. & P. 302 ; 8. o. 6 Bing. 749.
(a) The privilegB of Judges, &c., as actionable if they are applicable and perti-
they are enumerate above is two fold. nent to the subject of mquiry."
1. It is an absolute privilege as to all 2. If the statements are immaterial to
writings or statements which are maUrial the case, and impertinent, the hunt that
to the case, and no proof of malice, express they are spoken in the course of legal pro*
or implied, will support an action of libel ceedings rebuts the presumption of malice
or slander which is based on them. The and renders them conditionally privileged,
English rule seems to be, that judges, but open to proof of actual malice. John-
counsel, parties, and witnesses, are auso- son r. Brown, 18W.Va.71; Wallisv. New
lutely exempted from liability to an action Orleans, &c. R. R. Co., 29 La. Ann. 66 ;
for defamatory words published in the Kelly v. Lafitte, 28 La. Ann. 435. Cf.
course of judicial proceedings, whether the Hoar v. Wood, 3 Met. <Mass.) 193. A
words were pertinent to the case or not. complaint to the ^nd jorv containing
Henderson v, Broomhead, 4 H. & N. 569 ; a charge of perjury is entitled to the same
Revis V. Smith, 18 C. B. 126 ; Dawkins v. privilege and is not a libel, although be-
Rokeby, L. R. 8 Q. B. 255 ; 8. o. L. R. 7 tore its presentation to them it was exhib-
U. L. 744 ; Seaman v. Netherclift, L. R. 1 ited to various persons, by whom it was
C. P. Div. 540 ; Mackay «. Ford, 5 H. & N. signed. Kidder v, Parkhurst, 8 Allen
792. The same doctrine is generally held (MasH.), 393. This privilege extends to
in the American courts, with the qualifi- a justice of the peace if he has jurisdiction
cation above given, that, in order to be of the case. McBee «. Fulton, 47 Kd.
privileged, these statements made in the 403.
course of an action must be pertinent and The publication of a fair and conect
material to the case. White «. Carroll, report of proceeding taking place in a
42 N. Y. 161 ; Gar v. Selden, 4 K. Y. 91; pnblic court of justice, even of proceed-
Mower v. Watson, 11 Vt. 536 ; McLaugh- mgs taking place publicl^r before a magia^
lin V. Cowley, 127 Mass. 316 ; Smith v. trate on the preliminary investigation of a
Howard, 28 Iowa, 51 ; Barnes v. McCrate, criminal charge, terminating in the dia-
32 Me. 442 ; Rice v. Coolidge, 121 Mass. charge by the magistrate of the partf
393; Lanning V. Christy, 30 Ohio St 115; charged, is protected by the same con-
Kidder v. Parkhurst, 3 Allen (Mass.), ditional privilet^ Levis v. Levv, 1 £.
398. Shaw, C. J., in Hoar v. Wood, 3 B. & E. 537. But this privilege does not
Met. (Mass.) 193, says: "We take the extend to such reports wnen thev are gar-
rule to be well settled by the authorities, nished with libellous and scurrilous mat*
that words spoken in the course of judicial ter (Scrippe v. Reilly, 40 Mich. 10) ; or if
proceedings, though they are such as im- actual malice is proved (McBee «. Fulton,
pute crime to another, and therefore, if 47 Md. 403).
spoken elsewhere, would import malice It has been held in some cases libelloiu
and be actionable in themselves^ are not to publish ex parte affidavits^ or oompUinti
PABT IT.] UBEL AKD 8LANDEB. 421
the interests of another honlBstly communicates it privately to
such other party, in the full and reasonably grounded belief that
it is true, he is justified in so publishing it, though he has no per-
sonal interest in the subject-matter, and though no inquiry has
been made of him, and though the danger to the other party is
not imminent.^ Under this plea, also, the defendant may prove
^ Coxhead f. Richards, 10 Jur. 984. But whether sach commonication is priW«
leged, quarr. Ibid. And see Bennett v. Deacon, 15 Law Joum. N. 8. 289 ; Blackham
V. Pagh, Id. 290 ; Wilson o. Robinson, 9 Jar. 726.
of crime made to procure arrest, bat the a pabUc press giyes him no pecniiar
better rule is probaoly that they are only rights, or especial privileges, or claims
conditionally privileged. Cincinnati, &c. to indulgence. He has just the same
Co. o.Timberlake, 10 Ohio St. 548; Stanley rights that the rest of the community
V. Webb, 4 Sand. (N. Y.) S. C. 21 ; Math- have, and no more. He has the right to
ews V. Beach, 5 Id. 256. publish the truth, but no right to publish
There are also many kinds of communi- falsehoods to the injury of others with im-
cations which the law has shielded by re- pnnity. Sheckell v, Jackson, 10 Cash,
quiring that the plaintiff, in order to (Mass.) 25. But if he publish an article
sustain an action on them, must prove without knowing it to be libellous, and
that they were spoken with actual malice so satisfy the jury, he will not be liable
or ill will. A good description of the therefor, although the writer of the article
kind of statement which is thus privileged intended it to m libelloos. In such case
is givfn by Parke, B., in Toogood v. Spy- the writer only is liable to the party in-
ring. 4 Tyrwh. 582-595. "The law con- jured. Smith r. Ashley, 11 Met (Mass.)
siders a publication as malicious unless it 367. The publisher of the parliamentary
is fairly made by some person in the dis- debates was held liable for a libel therein
charse of some public or private duty, published, although done by the order of
whether legal or moral, or in the conduct the House of Commons. Stockdale v.
of his own affairs, in matters where his Hammond, 2 Eng. C. L. & Ch. 155.
own interest is concerned." The duty in A newspaper may publish a bona fid$
question need only be one of moral or im- criticism of tne conduct of a candidate for
|)erfect obligation. Van Wyck v. Aspin- office. Sweeney v. Baker, 13 W. Ya. 158.
wall, 17 N. Y. 190. Cf. Elam v. Bodger, A communication to the public at
23 111. 498. ^ large, in a newspaper, in respect to the
. The parties to proceedings in church aualifications of a candidate for an office,
discipline, whether they are the parties tne appointment to which is made by a
complainant or the accused, the synod or board of limited number, does not stand
tribunal, or the witnesses, have the bene- on the same footing of privilege as if ad-
fit of this conditional privilege, in all the dressed to the appointing power. Hunt
proceedings taken to accomplish such dis- v, Bennett, 19 N. Y. 173.
cipline. Famsworth v. Storrs, 5 Cush. As to what is not a sufficient duty to
(Mass.) 412; York v. Pease, 2 Gray rebut the presumption of malice, see Joan-
(Mass.), 282; Shurtleff v. Stevens, 51 nes v. Bennett, 5 Allen (Mass.), 169,
Yt. 501 ; Streety v. Wood, 15 BarK where it was held that a letter addressed
(N. Y.) 105. to a woman, and containing libellous mat-
The reports of mercantile agencies, if ter concerning her suitor, cannot be justi-
confined to those who have an interest in fied on the ground that the writer was her
knowing the standing of the party who friend and former pastor, and that the
claims to have been iznured, are privileged letter was written at the request of her
if made without actiial malice. Lewis v. parents, who assented to all its contents.
Chapman, 16 N. Y. 374 ; State v, Lons- On the proof of actual malice, see also
dale, 48 Wis. 348 ; Taylor v. Church, 8 Taylor v. Hawkins, 5 Eng. Law & Eq.
N. Y. 452. So the reports of a school 253 ; Harris v, Thompson, 24 Id. 870 ;
committee are conditionally privileged. Cook v. Wildes, 30 Id. 284; Gilpin v.
Shattuck V. Allen, 4 Gray (Mass.), 540. Fowler, 26 Id. 886 ; Harrison v. Bush, 32
Ab to publications in newspapers. — The Id. 173.
lact that the defendant is the conductor of
422 LAW OP EYIDENCE. [PABT IV.
that the publication was procured by the fraudulent contrivance
of the plaintiff himself, with a view to an action; or that the
cause of action has been dUcharged by an accord and satisfaction,
or by a release.*
§ 422. Rebuttal. But in all cases where the occasion itself
affords prima facie evidence to repel the inference of malice, the
plaintiff may rebut the defence, by showing that the object of the
defendant was malignant, and that the occasion was laid hold of
as a mere color and excuse for gratifying his private malice with
impunity.^
§ 428. Plaintiif's ofiuia. If, from the plaintiff's own showing, it
appears that the words were not used in an actionable sense, he
will be nonsuited.^ But if the plaintiff once establishes a prima
facie case, by evidence of the publishing of language apparently
injurious and actionable, the burden of proof is on the defendant
to explain it.* But the defendant is entitled to have the whole of
the alleged libel read, and the whole conversation stated, in order
that its true sense and meaning may appear. And if the libel is
contained in a letter, or a newspaper, the whole writing or paper
is admissible in evidence.^ (a) The defendant may also give in
evidence a letter written to him, containing a statement of the
facts upon which he founded his charges, to show the bona fidet
with which he acted.®
§ 424. Truth. Oeneral isane. It is perfectly well settled that,
imder the general isstie^ the defendant cannot be admitted to prove
the truth of the words, either in bar of the action or in mitigation
of damages.^ (5) And whether, for the latter purpose, he may
1 King V. Waring, 5 Esp. 18 ; Smith v. Wood, 3 Campb. S2S ; Lane v, Appl^te,
1 Stark. 97 ; Borsey v. Wood, 3 H. & C. 484.
3 2 Stark. Evid. 464 ; Somervill v. Hawkins, supra.
' Thompson v. Bernard, 1 Campb. 48.
* Penfold V. Westcote, 2 New Kep. 385 ; Christie t7. Cowell, Peake's Gas. 4, and
note by Hay ; Button v. Hayward, 1 Yin. Abr. 507, in marg. ; s. c. 8 Mod. 24.
* Weaver v, Uoyd, 1 C. & P. 296 ; Thornton v, Stephen, 2 M. & Rob. 45 ; Cooke
V. Hughes, Ry. & M. 112.
^ Blackburn v. Blackburn, 8 C. & P. 146 ; 6. c. 4 Bing. 805. See also Fainnan f.
Ires, 5 B. & Aid. 642 ; Blake v, Pilford, 1 M. & Rob. 198 ; Pattison v. Jones, 8 R &
C. 578.
7 But matters which fall short of a justification, and do not tend to it, may he
shown in mitigation of damages, under this issue. Snyder v. Andrews, 6 Barb. S. C.
43 ; ToUett v. Jewett, 1 Am. Law Reg. p. 600.
(a) So if the libel is contained in one of evidence to show the character of ^e
a series of articles dealing with (questions writings. Scripps v. Foster, 41 Mich,
of public interest in a lawful and innocent 742.
manner, the whole series may be put in (6) In Michigan, it is held that the
PART IT.] LIBEL AND SLANDER. 428
show that the plaintiff was generally stupected, and commonly
reported to be guilty of the particular offence imputed to him, is,
as we have seen,^ (a) not universally agreed. But by the weight
of authorities, it seems settled that the defendant may impeach
the plaintiff's character, by general evidence, in order to reduce
the amount of damages.^ (() And if the plaintiff declares that
1 Supra, § 275 ; 2 Stark, on Slander, pp. 77-96, by Wendell. See also Waithman
V, Weaver, 11 Price, 257, n. ; Wolmer v. Latimer, 1 Jur. 119. Where the defendant,
when speaking the words, referred to certain current reports against the plaintiff,
which he said iie had reason to believe were true, it was held, under the general issue,
that he might prove, by cross-examination of the plaintiff's witnesses, that such re-
ports had in fact prevailed in the plaintiff's neighborhood, and were the common topic
of conversation, before the words were uttered by him. Richards v. Richards, 2 M. &
Rob. 557. And see Morris v. Barker, 4 Harringt. 520.
' AnU, vol. i. § 55 ; Paddock v, Salisburv, 2 Cowen, 811. It must be general evi-
dence. Ross V. Lapham, 14 Mass. 275 ; ftnff i;. Bennett, 6 N. Y. 337 ; Stone i;.
Varney, 7 Met 86. In this case, the decisions on thU much-controverted point were
fully reviewed by Mr. Justice Dewey, whose observations cannot but be acceptable, in
this place, to the reader. It will be observed that, in Massachusetts, the general issue
may always be pleaded, accompanied by a notice of the special matter of defence in-
tended to be set up. Having stated the question to be whether the defendant can, in
an action of slander, under the general issue, accompanied by a notice that he will
offer evidence to establish the truth of the charge in justification, give in evidence the
general character of the plaintiff in mitigation of damages, the learned judge proceeded
as follows : "This (question is not new, but one that has often arisen, and been the
subject of consideration. It was much discussed in the case of Foot v. Tracy, 1 Johns.
46, where it arose, however, under the single plea of the general issue, but was not de-
truth may be given under the general issue and famished reasonable cause for belief,
in rebuttal of malice, and in mitigation of on his part, that the words spoken were
damages. Huson v. Dale, 19 Mich. 17. true. Watson v. Moore, 2 Cush. (Mass.)
And when the defendant establishes the 133 ; Dame v. Eenney, 5 Foster (N. H.),
truth of the charges, the intent with which 318; Eniffht v. Foster, 3 N. H. 576.
they were made is immaterial. Joannes But in Wetherbee v. Marsh, 20 N. H.
V. .lennings, 6 N. Y. S. C. (T. k C.) 561, it is held that the defendant may
138. ^ prove in mitigation of damages that when
(a) Such general reputation is not ad- the words were uttered a general report
missible. Chamberlain v. Vance, 51 Cal. existed that the plaintiff had committed
75 ; Pease v. Shippen, 80 Pa. St 513. the act charged. Cf. Peterson v. Morgan,
In Bailey v. Kalamazoo Publishing Co., 116 Mass. 350 ; and in Parkhurat v.
40 Mich. 251, it was held that general Eetchum, 6 Allen (Mass.), 406, that evi-
reputation was a sufficient justification for deuce was not admissible, either in miti-
the allegation that an attorney was a pet- gation of damages or as a justification in
tifogging shyster. And so, m an action an action of slander by words imputing
for the publication of a libel, which nnchastity to a woman, to show that the
charged the plaintiff with dishonesty and defendant spoke the words to her, and
bad faith, tne defendant cannot ask a was led to do so by her general conduct,
news-collector, who wrote part of the and especially by her deportment with a
article complained of, " what inquiries and particular man, believing the same to be
examinations he made, and what sources of true ; but in such a case, evidence that
information he applied to, before making the plaintiff's general reputation is bad,
the communications." Nor can he, as a independently of the slander of which she
foundation for such a question, prove that complains, and that it was so even ten
there was a general anxiety in the com- yeara before and at another place, is ad-
munity in regard to the facts stated in the roisAible in mitigation of dami^es.
publication. Sheckell v. Jackson, 10 (h) The general practice is now to ad-
Cush. (^lass.) 25. Nor can he show cir- mit at least evidence of the plaintiff's bad
cumstances which excited his suspicion, reputation in regard to the crime charged
/■
424 LAW OF E7IDEKCE. [PABT IT.
he was never guilty, nor suspected to be gailty, of the crhne im-
puted to him, it has been hekl, that the defendant may disproTO
cided ; the memben of the court who gsye opinions bdng equally divided. Kent uid
ThompAon, JJ., were for its admission ; ana Livingston and l^ompkins, eotUra. In
a later case, reported in Anthon, 186, Sminsstein v. Field, Spencer, J., took occssioD
to remark, that he had no doubt about trie admissibility of the evidence offered in the
case of Foot v. Tracy, but, for particular reasons connected with that case, he forbore
to express any opinion on the hearing of the same. In Paddock v. Salisbury, 2 Cow.
811, the question came again before tae Supreme Court of New York, when it was held
that evidence of f;eneral character was admissible in mitigation of damages, under ^e
general issue, which was the onl^ plea filed in that case.
"This subject was much considered in the case of Koot v. King, 7 Cow. 613. The
Court there held that public reports of the facts stated in the libel were inadmissible ss
evidence in mitigation of damages, where a plea in justification had been filed, alleg-
ing the truth of the matter stated in the libel ; but they also held that the general
character of the plaintiff was put in issue in an action of slander, without regard to
the pleading or notice of defence on the part of the defendant. Chief Justice Savage
says : ' Under any circumstances, the defendant may show that the plaintiff's reputa-
tion has sustained no injury, because he had no reputation to lose.' ' The rule is ad-
mitted, that the general character may be attackea, because this is relied upon as the
ffTound of damages, and the plaintiff is supposed at all times to be prepared to sustsin
his general character.' See also Inman v. Foster, 8 Wend. 602, aec Mr. Greenleat
in his Treatise unon Evidence, vol. i. § 55, says : ' Whether evidence impeaching the
plaintiff's general charact«r is admissible in an action of slander, as affecting the dam-
ages, is a point which has been much controverted, but the weight of authority is in
fiivor of admitting such evidence.' In 2 Stark. £v. 869, it is said, that, in actions of
slander, where the defendant has not justified, evidence of the plaintiff's had character
is admissible in reduction of damages ; and in page 878 the author says: 'General
evidence of bad character seems to be admissible, alUiouffh the defendant has justified
that the imputation is true ; for if the justification should fail, the question as to the
quantum of damages would still remain. And such evidence has been held admisdble
in North Carolina, Ohio, and Kentucky, when a justification and the general issne are
both pleaded. Tick 9. Whitfield, 2 Hayw. 222 ; Devrit v. Greenfield, 5 Ham. 275 ;
Eastland v. Caldwell, 2 Bibb, 21 ; Calloway v. Middleton, 2 A. K. Marsh. 372. See
also Sawyer 9. Hopldns, 9 Shepley, 268.
" In New York, as before seen, such evidence has been admitted, where the general
issue has been the only plea. So in Connecticut, Pennsylvania, South Carolina, and
New Hamjn^ire. Bmnson «. Lynde, I Root, 854 ; Austin v. Hanchett, 2 Root, 148 ;
Henry «. Norwood, 4 Watts, 847; Buford v. M'Luny, 1 Nott k McCord, 268 ; Sawyer
V. Erfert, 2 Nott ft McCoid, 511 ; Lamos «. Snell, 6 N. H. 413. See also Waten«.
Jones, 8 Porter, 442.
" In our own case, we shall find that the ^neral principles stated in Lamed «. Bnf-
Angton, 3 Mass. 546, be«r upon this Question. The precise question of the compf-
tency of evidence touching the plaintiff s moral character was there waived, as no sock
evidence was embraced in the proposed proof. But it was ruled, that it was competent
to give in evidence the plaintiff s rank and condition in life, either on the general
in the slanderous words. Maxwell v, want of cJiastity is admissible, bat not
Kennedy, 50 Wis. 645 ; Drown v. Allen, evidence of specific acta. Duval c. Davey,
91 Pa. St. 898. In this case, the slander 82 Ohio St. 604. In Leonard v. ABeu, U
charged the plaintiff with being a tfaiet Cush. (Mass. ) 241, the inquiries wera re-
Counsel for defendant asked a witness stricted to the general character of the
what the general reputation of the plain- plaintiff for inte|^^ and moral worth, or
tiff was as to being a thief. The Court to his reputation in regard to condnct
said the quesrion should be what is the similar in character to the offence with
general reputation of the plaintiff for hon< which the defendant had chaiged him.
esty, but on appeal, the Supreme Court If this kind of evidence is introdnoed,
held the original question was the proper the pluntiff, to rebut it, may give in eri-
form. So, where the words complained of dence his own general good character in
imputed a want of chastity to a woman, this reoard. McBee v. Fulton, 47 Kd.
evidence of her general repaUtkm for 408; Chubb «. Qaell, 84 Pa. St 114.
PABT IT.] UBEL AND SLANDER. 425
the latter allegation by evidence showing that he was suspected.^
The defendant may also show, upon the question of damages,
iBsae or a tiBYene of a justification ; and the reasons assigned are, that ' the degree of
injury the plaintiff may sustain by the slanderer may very much depend on his rank
and condition in society,* and also that ' it is a fact, in its nature, of general notoriety.'
In Wolcott V. Hall, 6 Mass. 518, in which there was a justification pleaded, evidence
was offered, in mitigation of damages, of general reports^ that the plaintiff had been
giilty of the crime imputed to him in the slanderous words. This was rejected ; but
if his character is of little or no estimation in society.' The principle here settled
seems to be tiiat particular reports, injurious to one's reputation, are to be rejected,
but a bad general character may be shown in mitigation of damsges ; and this, though
a justification be plmded. Alderman v. French, I Pick. 1, went no further than to hold
that evidence of a general report that the plaintiff had been guilty of the crime imouted
to him could not be received in mitigation of damages. In Ross v, Lapham, 14 Mass.
279, which was an action on the case for slanderous words, charging the plaintiff with
perjury, and in which the court held it incompetent to offer in evidence, m mitigation
of damages, that the plaintiff was an atheist, yet it was assumed that, by eommencing
an action of slander, ' the plaintiff put his general reputation at issue.' See also Com-
monwealth V. Snelling, 15 rick. 344, which seems to recognize the same principle. In
Bodwell V. Swan, S Pick. 878, while it was held that reports of particular facts were
inadmissible, it was declared, as the nile of law, that ' the general cmuI character of the
plaintiff may be shown, because he relies upon its goodness, before calumniated, as the
principal ground of damages. A fair character has been maliciouslv attacked, and the
law will repair the mischief by damages ; but to a reputation already soiled the ixg'ury
is small.*
"The English doctrine, as stated in Earl of Leicester v. Walter, 2 Campb. 251, snd
V. Moor, 1 M. & S. 284, seems to go further than these doctrines, and to author-
ize the admission of mere publio reports that the plaintiff was guiltv of the crime
imputed to him bv the defendant. See also Richards v, Richards, 2 li. & Rob. 657 ;
8 Stephens, Nisi rrius, 2578. But this rule has not prevailed with us, and is sup-
pa^d by Mr. Justice Jackson, in his opinion in Alderman v, French, 1 Pick. 18, 19,
to have been only intended as an admission of evidence of the general reputation and
standing of the plaintiff. In this view, they would bear upon the question. As ad-
missions of reports, we should reject them as authority.
'* It is said, that the more recent English cases seem to consider evidence of general
bad character as irrelevant, and therefore inadmissible. It would seem, from the re-
port of the case of Cornwall v. Richardson, Ry. & Mood. 305, that evidence of general
good character was held not to be admissible for the plaintiff, where the defendant had
filed special pleas of justification, as well as the general issue ; and the presiding judge
seems to have assumed that such evidence was not competent to either party. See also
Stow «. Converse, 8 Conn. 326 ; Matthews v. Huntley, 9 N. H. 146. This decision
is directly opposed to the case of Huding v. Brooks, 5 Pick. 244. In Jones v, Stevens,
11 Price, 255, which contains much reasoning against the competency of such evidence,
the question arose upon a plea in justification, containing general allegations against
the plaintiff*s character ; and the real question was, whetner it was competent to sup-
port the plea, and disprove the declaration, by producing evidence tlmt the general
eharacter of the plaintiff, as an attorney, was bad. This is the view taken of that case
by Mr. Greenleaf; in his note to sect. 55 of the first volume of his Treatise on Evi-
dence. '
** This review of the abjudicated cases, and particularly the decisions in this Com-
monwealth, anfd in the State of New York, seema necessarily to lead to the conclusion,
that evidence of general bad character is admissible in mitigation of damages. That
^ Earl of Leicester v. Walter, 2 Campb. 251 ; Case v. Marks, 20 Conn. 249. But
in an action for a libel, which was actionable only in respect of tiie plaintiff's office,
where his due dischaige of its duties was averred, the defendant was not permitted,
under the general issue, to disprove this averment, bv evidence of the plaintiff's ne|(U-
gence in dischu^ng his official duties. Dance «, Robson, 1 M. A MalL 29i.
426 LAW OP BVIDENCB. [PABT IV.
under this issue, that the charge was occasioned by the misconduct
of the plaintiff either in attempting to commit the crime, or in
leading the defendant to believe him guilty, or in contemporane-
ously assailing the defendant with opprobrious language ; or, that
it was made under a mistake which was forthwith corrected ; ^ or,
that he had the libellous statement from a third person ; ^ or, being
it is so where no justification had been pleaded, seems to he eveiywhere sanctiooed,
unless a contrary opinion is found in the recent English decisions to which I ha^e
alluded. Suggestions have been made, in some of the cases, that such eyidence was
not admissible where the defendant pleaded the truth in justification. I$ut upon prin-
ciple, this distinction, I apprehena, will be found untenable. There is, donbtleaB,
a class of cases, where the dpfendant, by pleading the truth in justification, may de-
prive himself of a defence upon which he might have relied, if he had pleaded, the
naked general issue ; as, that the words were spoken in passion, in giving the charac-
ter of a servant, kc In such cases, the very fact of pleading a justification, and
putting upon the record an allegation of the truth of the words, nas been supposed to
take away the defence of the character above alluded to. But under our statutes (Rev.
Stats, c. 100, §§ 18, 19), perhaps even this rule may be considered as modified, and
indeed effectu^ly changed. By sect. 18, it is provided that matter in one plea shall
be no evidence in another ; and by sect. 19, that a plea in justification in slander, that
the words spoken were true, shall not be proof of malice.
** The reasons which authorize the admission of this species of evidence, under the
plea of general issue, seem alike to exist, and to require its admission, where a justifi-
cation has been pleaded, but the defendant has failed in sustaining it It is not ofTered
in either case as sustaining the justification, or making out a defence, but is solely ap-
plicable to the question oi damages. 1 agree with Mr. Justice Thompson, in his opin-
ion, as stated in Foot v. Tracy, 1 Johns. 47, that ' it cannot be iust that a man of
infamous character should, for the same libellous matter, be entitled to equal damages
with the man of unblemished reputation ; yet such must be the result, unless charac-
ter be a proper subject of evidence before a jury.' Ld. Ellenborongh, in 1 M. & S. 286,
also says : * Certainly a person of disparaged fame is not entitled to the same measure
of damages with one whose character is unblemished; and it is competent to show that
by evidence.'
** The theory of trials is, that the jury are to decide solely upon the evidence before
them. If so, they surely cannot make the distinction between a plaintiff of good name
and fame, and one who is really infamous, unless evidence of this fact is allowed to be
given. Cases often occur where the jury are entire strangers to the parties ; and, if
not so, they ought not to act upon statements of any of their fellows, given in the juty-
room, and not under the sanction of an oath. There seems to be no alternative but to
admit this species of evidence ; and this as well when there is a justification pleaded as
when the defence is on the general issue alone. In the former case, the evidence is to
be applied solely to the question of damages ; and it would be the duty of the court
to aavise the jury thieit it could not be us^ to sustain the justification, but was prop-
erly introduced, because both questions were before them, and if the justification
failed, upon the evidence applicable thereto, they would consider the evidence of the
character of the plaintifi^, in assessing damages for the injury occasioned by the defam-
atory words ; but for other purposes the evidence would be irrelevant. This evidence
should be confined to the general character of the plaintiff, as it existed before the
publication of the slanderous words." See 7 Met. 88-94. In Williston 9. Smith, 3
Kerr, 443, it was held by the Supreme Court of New Brunswick, that the evidence, in
order to be admissible, must relate to the plaintiff's general reputation in respect to
the subject-matter of the charge. See also Bowen v. Hall, 12 Met. 232 ; Earner v.
McFarlin, 4 Denio, 609.
1 Supra, § 276 ; Bradley v. Heath, 12 Pick. 163 ; infra, § 426.
' Duncombe v. Daniell, 2 Jur. 32 ; Maitland v. Qoldney, 2 East, 426 ; Haynes v.
Leland, 16 ShepL 283 ; sed vid. Mills v. Spencer, Holt's Cas. 613. Its effect will de-
pend on the intent with which the name of the author was mentioned. Dole v. Lyon,
10 Johns. 447. The fact that the defendant heard the words from another, whose
name he mentioned at the time of speaking them, was fonnerly held a good jutii/ech
PABT lY.] LIBEL AND SLANDEE. 427
the proprietor of a newspaper, that he merely copied the statement
from another paper, giving his authority ; ^ or that he was insane,
and known to be so, at the time of speaking the words.^ (a) And
in an action for a libel upon the plaintiff in his trade of bookseller,
as the publisher of immoral and foolish books, it has beeii held,
that the defendant, under this issue, may show that the supposed
libel is nothing more than a fair stricture upon the general nature
of the plaintiff's publications.^
§ 425. Bffitigation. Juatifioation. Oenoral iBsna. It is obvious
that evidence in mitigation of damages must be such as involves
an admission of the falsity of the charge. If the defendant would
prove that the charge is true, he can do this only under a special
plea in justification ; it is only evidence of facts not sufficient to
justify that is admissible under the general issue, to reduce the
damages.^ And if such facts have been specially pleaded in
justification, but the plea is withdrawn before the trial, and the
plaintiff is therefore not prepared with evidence to disprove it,
the defendant may, under the circumstances, still be permitted to
prove the facts imder the general issue, to affect the amount of
damages to be recovered.^ It has also been held that where the
facts offered in evidence in mitigation of damages would be suf-
ficient to justify a part ordy of the libel, they must be specially
pleaded in justification of that part, and cannot otherwise be
received.* But these rules, it is conceived, do not preclude the
defendant from showing, under the general issue, all such facts
and circumstances as belong to the res geBtoe^ and go to prove the
intent with which the words were spoken or the publication was
tion, and therefore pleadable in bar. See 1 Stark, on Slander, c. 14 ; Id. p. SOI, n.
(I), by Wendell. But this doctrine has been solemnly denied in the United States
(Ibiil. ; Dole r. Lyon, 10 Johns. 447 {h)) ; and has of late been repudiated in En^nd
(De Crespif^y v. Wellesley. 5 BIng. 392).
1 Saunders v. Mills, 6 Bing. 213 ; Creeve v. Carr, 7 C. & P. 64. See also Mullett
V. Hulton, 4 Esp. 248 ; Wyatt f. Gore, Holt's Cas. 303 ; £ast v. Chapman, 2 C. & P.
570 ; 8. c. 1 M. & Malk. 46.
^ Dickinson v. Barber, 9 Mass. 225.
s Tabart r. Tipper, 1 Campb. 350. See also Oandy v, Humphries, 35 Ala. 617 ;
an/e, | 4.
« Underwood v, Parkes, 2 Stra. 1200 ; Enobell v. Fuller, Peake's Ad. Cas. 139 ;
Andrews v, Yanduzer, 11 Johns. 38.
» East V. Chapman, 2 C. & P. 570 ; 8. o. 1 M. & Malk. 46.
• Veaey v. Pike, 8 C. & P. 612.
(a) Insanity, if not a defence, will go (&) Fowler v. Chichester, 26 Ohio St 9.
to mitigate the damages. Pratt v, Fora,
11 Law Rep. 421 ; anU, § 275.
428 LAW OP EVIDENCE. [PART IV.
made.^ And if a justification is pleaded, the defendant may still
give general evidence^ in mitigation of damages, under the general
issue, though he will not be permitted, under a plea in justification,
to give evidence of particular facts and circumstances respecting
the charge, which go merely to the amount of damages.^
§ 426. Jnstifloation. CHminal charge. To support a special plea
in Ju9tifieation^ where crime is imputed, the same evidence most
be adduced as would be necessary to convict the plaintiff upon au
indictment for the crime imputed to him; and it is conceived,
that he would be entitled to the benefit of any reasonable doubts
of his guilt, in the minds of the jury, in the same manner as in a
criminal trial, (a) And if the evidence falls short of proving the
1 See 2 Stark, on Slander, p. 88, n. (1), by Wendell In several of the United
States, the course is to plead the ^pneral issoe in all cases, with a brief statement of the
special matter to be given in evidence under it. It has been held that where such
statement, in an action of slander, is ruled out, as not amounting to a justification, the
matter is not admissible in evidence in mitigation of damages ; for the reason that, so
far as it goes, it tends to prove the chai-ge to be well founded. Cooper v. Barber, 24
Wend. 105. And see Turrill v. DoUoway, 17 Wend. 426. But the soundness of these
decisions has been combated, with great force of reasoning, by Mr. Wenddl, in the In-
troduction to his valuable edition of Starkie on Slander, pp. 27-55. (b)
^ 2 Stark, on Slander, pp. 83-94, and notes by Wendell. See also Stone v. Var-
ney, 7 Law Reporter, 538 ; MuUett v. Hulton, 4 Ksp. 248 ; East v. Chapman, 2 C. & P.
570 ; 8. c. 1 M. & Malk. 46 ; Newton v. Kowe, 1 C. & K. 616 ; Crandail v. Dawson, 1
Gilm. (111.) 556. But see Larned v. Buffington, 3 Mass. 546.
(a) In proving the truth of the all^^ Un. Mut. Ins. Ca, 1 Gray (Mass.), 529;
libel, the aefendant's proof must coincide Gordon v. Parmelee, 15 Gray (Mass.), 413 ;
substantially with the words of the libeL Eincade v, Bradshaw, 8 Hawk. (N. C.) 63 ;
Thus an allegation that the plaintiff was Brisffs v. Cooper, cited in Bradish v. Bliss,
"indicted" will be supported by proof 83 Vt. 326 ; Wash. Ins. Co. v, Wilson, 7
that he was prosecuted and convicted on Wis. 169 ; Howell o. Hartford Fire Ids.
information in a justice's court. Bailey Co., C. Ct U. S., No. Dist. IlL 3 Ins. L.
V, Kalamazoo Publishing Co., 40 Mich. J. 653 ; Scott «. Home Ins. Co., 1 Dil. C
251. Ct. U. S. 105 ; Marshall v. Marine Ids.
And in general, if a justification is al- Co., 43 Mo. 586. Contrti, Corbley r. Wil-
leged, the proof must correspond substan- son, 71 111. 209 ; Mark v. Gelibaueser, 50
tially with the allegations, as in all other Cal. 631; Tucker v. Call, 45 Ind. 31 ; Pels-
cases of proof, to avoid a variance. Car- ton v. Lee, 54 Mo. 291 ; Ellis v. Lhidley,
penterv. bailey, 56 N. H. 283. 88 Iowa, 461. See also 10 Am. L Rev.
The evidence to support this justifica- 642, where the cases are all collected and
tion must include all the elements necessary carefully examined. See also anU, § 408,
to prove the accused guilty of the crime in n.; Eidd t^. Fleek, 47 Wis. 443.
a prosecution therefore, e, g. both the intent If there is any special rule of evidence
and the criminal act (McBee v. Fulton, 47 relative to the prooi of the crime allefi^
Md. 403), but it seems to be the established this rule must be complied with in proring
rule now that a preponderance of the evi- the crime as a justification. E, g. in the
dence tending to convict him of the crime is prosecution for peijury, two witnesses, er
enough, and that the statement in the text, one and corroborating circumstances, are
that ne is entitled to a reasonable doubt, is requisite, and so in proving this crime in
not well supported. McBee v. Fulton, su- an action of libel. jRansone «. Christian,
pra, Ellis v. Buzzell, 60 Me. 207; Knowles 51 Ga. 351.
«. Scribner, 57 Me. 497; Matthews v. Hunt- (b) Selden, J., in Bush v. Prosser, U
ley, 9 N. H. 150 ; Folsom v. Brown, 5 N. T. 847, says on this point, '* The role
Foster (N. H.), 114 ; Schmidt v. N. Y. upon which these deciaions proceed ms
PABT IT.] UBBSL AND SLANDEB. 429
commission of tlie crime, the jury may still consider the circum-
stauces, as tending to show that the defendant had probable cause
to believe the charge to be true, and to lessen the character of the
plaintiff, and therefore to reduce the amount of damages.^ But
wherever the truth of a charge of crime is pleaded in justification,
the plaintiff may give his own character in evidence, to rebut the
charge.^
§ 427. Breach of oonfidenoa. Where the libel is upon a lawyer,
charging him with divulging confidential communications made to
him by his client, it is not necessary for the defendant, in support
of a plea in justification, to prove that the communications were
of such strictly privileged character, that the plaintiff could not
have been compelled to disclose them, if called as a witness in a
court of justice ; but it will suffice to show that the matters dis^
closed by the plaintiff were confidential communications, acquired
1 Chalmers v Shackell, 6 C. & P. 476 ; sujmt, § 408 ; Oants v. Visard, 1 Smith
(Infix 287 ; Lanter i;. McEweu, 8 Blackf. 495 ; Hopkinii v. Smith, 8 Barb, a C. 599;
shortly v. Miller, 1 Smith (lud.), 395; Minesinger v. Kerr, 9 fiur, 812. A charge of
polygamy, by marrying three persons, may be justified by proof of actual marriage to
two wiyes, and cohabitation and reputation as to the third. Wilmett p. Hanuer, 8 C.
ft P. 695.
* Harding v. Brooks, 5 Pick. 244. Such is the rule in criminal jurisprudence. *'The
object,*' said Patteson, J., ''of laying it before the jury, is to induce them to believe,
from the improbability that a person of good character should have conducted himself
as alleged, tnat there is some mistake or misrepresentation in the evidence on the part
of the prosecution, and it is strictly evidence in the case." Rex v. Stannard, 7 C. £ P.
673. ouch also is the law in Scotland. Alison's Prac. p. 6gp. And see State v.
Wells, Coze, 424 ; Wills on Circumst £v. p. 131. But see contra, Houffhtaling v. Eel-
derhouse, 1 Comst 530 ; 2 Barb. S. C. 149 ; Shipman v. Burrows, 1 HaU (N. ¥.), 899 ;
Converse v. Stow, 4 Conn. 42.
merely an unforeseen conse(]^uence of the fence to be proved upon the record. The
rule which excluded proof ot (he truth of conceded righl of the defendant to miti-
iht charge, under the general issue, in miti< gate the damages by showing the absence
gation of damages: a rule which originated of malice, and the rtUe, were directly re-
with the case of Underwood v. Parks, 2 pugnaiit to each other, and no question
Stra. 1200. The intrinsic proprietv or im- has ever given rise to a more protracted
propriety of the evidence had nothing to struggle. The courte in England, under a
do with the adoption of the rule. It was sense of the admitted right, have in a
a nile of pleading merely, having no other number of cases decided that facte and
ohject than to prevent plaintiffs from beinff circumstances falling ahort of proving, al-
taken W surprise upon the trial b^ evi- though tending to prove, the truth of the
dence of the truth of the charge without chai^, might be received in mitigation,
notice. This was very well in cases where Knobell v. Fuller, »upra ; Leicester v.
the defendant was prepared to justify, Walter, 2 Campb. 251. But the courte in
which cases alone the judges had in view New York and in Massachusetts, with less
in adopting the rule. But when the doc- justice but better l(>gic, have uniformly
trine came to be applied to cases where all held that a rule which excluded proof of
the defendant could or desired to do was the truth of the charge mud necessarily
to mitigate the damages by showing the exclude evidence tending to prove it. '
absence of malice, it took awav the right The rule is now changed in New York
altogether, since the rules of pleading did by the Code. C£ Bisbey v. Shaw, 12 N.
not allow anything short of a complete de- x. 71.
480 LAW OF EVIDENCE. [PART IT.
by him professionallyy in the more enlarged and popular sense of
the word.^
§ 428. Wlien McpreM malice to be showzL Where the matter is
actionable only in respect of the special damage, the plaintiff
must generally show express malice in the defendant. Such is
the case in actions for slander of title, (a) In these cases, the
defendant, under the general issue and in disproof of malice,
may give in evidence that he spoke the words, claiming title in
himself ;^ or, as the attorney of the claimant ; or, that the words
were true.*
§ 429. Same subject In actions of this nature, where the
general issue is pleaded, with a justification, the usual course is
for the plaintiff to prove the libel, and leave it to the defendant to
make out his justification ; after which the plaintiff offers all his
evidence rebutting the defence. And if the plaintiff elects, in the
opening of his case, to offer any evidence to repel the justification,
he is ordinarily required to offer it all in that stage of the cause,
and is not permitted to give further evidence in reply.* But this
rule is not imperative, the subject resting in the discretion of the
judge, under the circumstances of the case.^
1 Moore v. Terrell, 4 B. & Ad. 870. But see Biggs v. Denniston, S Johns. Gas.
198.
3 Smith V, Spooner, 8 Taunt 246; Hovey v. Rubber Tip Pencil Ca, 57 K. Y.
119.
s Watson v. Reynolds, 1 M. & Hslk. 1; 2 Stark, on Slander, pp. 98, 99 [lOS], [104];
Pitt V. Donovan, 1 M. & S. 689.
^ Browne v. Murray, Ry. 4b M. 254 ; OfUe, vol. L § 481.
^ For the damages m this action, see supra, tit Damages, § 275.
(a) To maintain an action of slander to the plaintiff, which must be spedalljr si-
of title to land, l^e words must not onl^ leged in the declaration, and substantisUy
be false, but they must be uttered malici- proved on the triaL Kendall v, Stone^ 5
ouslv, and be followed, as a natural and N. Y. 18.
legal consequence, by a pecuniary damage
PABT IV.] LIMITATIONS. 481
LIMITATIONS.
§ 430. What limits rights of entry. The statute of limitations
is set up in bar either of rights of entry ^ or of rights of action, (a)
In the former case, when the defendant claims title to land under
a long possession, he must show that the possession was open
and visible, notorious, exclusive, and adverse to the title of the
plaintiff.^ It must be such that the owner may be presumed to
know that there is a possession adverse to his title ;^ but his
1 Taylor v. Horde, 1 Burr. 60 ; Cowp. 689 ; Jerritt v, Weare, 8 Price, 576 ; 4 Kent,
Comm. 482-489; Kennebec Pronr's v. Springer, 4 Mass. 416 ; Kennebec Propr's v. La-
boree, 2 Greenl. 273 ; Little v. Libby, Id. 242 ; Little v, Megqoier, Id. 176 ; Norcrose
V. WiJgery, 2 Moss. 506.
* Kennebec Propr's v. Springer, 4 Mass. 416 ; Cobum v. HoUis, 8 Met 125 ; Bates
V. Norcruss, 14 Pick. 224 ; Prescott v. Nevers, 4 Mason, 326.
(a) The general principle expressed in 2. Or as an absolute principle of the
the maxim nullum tempus occurrU regiy substantive law which extinguishes all
prevents the statute of limitations from debts, &c., after the lapse of a certain time,
applying to suits by the sovereign power in If the statute of limitations extinguishes
the exercise of its sovereign rights. There- the right of sction, as has been held in
fore the United States cannot be bound by some States, then the Ux loci eoTUradua
such statutes, nor the various sovereign will govern. Hardy v. Harbin, 4 Sawyer,
Sutes of the Union, and in some States C. Ct. 636; McMerty «. Morrison, 62 Mo.
this privUege is extended to municipal 140.
corporations. U. S. v. Thompson, 98 U. A question has arisen whether a new
S. 486 ; WheeUng «. Campbell, 12 W. Va. statute of limitations is not unconstitn-
36; Zadiere's Succession, 30 La. An. Pt. tional as impairing vested interests: for in-
iL 1260. stance, if it shortens the time within which
The statute of limitations may be con- action ma.^ be bronaht for breach of con-
sidered as one of two things : 1. As only tract. It is general^ held that if the new
a rule of procedure established to prevent statute allows a reasonable time for bring-
Buit on a cause of action after a certain ing actions under the old statute which
time has elapsed, leaving the cause of ac- would be barred under the new one (and
tion still existing, thougn it has been de- such time will be allowed by implication,
f rived of its remedy. Meek v. Meek, 46 if not expresslv denied), and if it does not
owa, 294. It may be said that there is destroy any aefence which had become
then no 1^^ cause of action, since the law complete under the old statute, it is consti-
knows no wrong without a remedy, but tutional and valid. Teny v. Anderson, 96
the distinction oeoomes important when U. S. 628 ; People v. Wayne Circuit Judge,
suit is brouffht on a cause of action which 37 Mich. 287 ; Krone v. Krone, Id. 808.
has accrued in another State. The ques- The legal statute of limitations is not
tion then arises, whether the claim is to be considered as of binding force on a court
governed by the statute of the State where of equity in the same way as on a court of
uie debt was incurred, or where it is sued, law, out it is ffeneraUy followed, in analo-
If the statute of limitations is a rule of gous cases. Often, however, a court of
procedure, the Ux fori, i, e. the statute equity will treat a claim aa bured by neg-
of the State where the suit is brought, will ligence in the complainant, when the stat-
STem. MiUer v. Brenham, 68 N. Y. 83 ; ute of limitations would not bar a legal
cArthnr «. Coddin, 12 Bush (Ky.), 274 ; claim of the same nature. Castner v,
McMerty «. Moirison, 62 Mo. 140; Meek Walrod, 83 111. 171; Neely's Appeal, 85
«. Meek, wp. F^ St 387.
482 LAW OP EVIDENCE. [PABT IT.
actual knowledge is not necessary, it being sufficient if, bj ordinary
observation, he might have knowu.^ It must be knowingly and
designedly taken and held ; an occupancy' by accident and mistake,
such as through ignorance of the dividing line, or the like, is not
sufficient.^ And it must be with exclusive claim of title in the
possessor, and not in submission to the title of the true owner.'
§ 481. Borden of proof. Where the statute of limitations is set
up in bar of a right of action^ by the plea of actio non accrevit ivfra
ux annoB, which is traversed, the burden of proof is on the plain-
tiff, to show both a cause of action, and the suing out of process
within the period mentioned in the statute.^ (a) By suing out of
process in these cases, is meant any resort to legal means for
obtaining payment of the debt from the defendant ; such as filing
the claim in setroff, in a former action between the same parties,
which was discontinued ; ^ or filing it with the commissioners on
an insolvent estate.® And the suit is commenced by the first or
incipient step taken in the course of legal proceedings, such as
the actual fiUing up and completing the writ, or original sunmions,
without showing it served ; ^ the true time of doing which may
I PoigDard v. Smith, 6 Pick. 172.
' Brown v. Gay, 8 Greenl. 126 ; Gates v. Butler, 3 Humph. 447 ; Boss v. Gould, 5
Grecnl. 204.
* Small V, Proctor, 15 Mass. 495 ; Little v, Libby, 2 Greenl. 242 ; Peters v. Foss, 6
Greenl. 182 ; Teller v, Burtis, 6 Johns. 197.
« Hurst V. Parker, 1 B. & Aid, 92 ; s. c. 2 Chitty, 249 ; Wilby v. Henman, 7 Tyrw.
957* 2 Cr. & Mees. 658.
a' Hunt V, S[iauiding^ 18 Pick. 521. « Guild v. Hale, 15 Mass. 455.
' Gardiner v, Webber, 17 Pick. 407; Williams v, Roberts, 1 Cr. M. & R. 676 ; 5
Tyrw. 421 ; Burdick v. Green, 18 Johns. 14 ; Beekman v. Satterlee, 5 Cowen, 519 ;
Johnson v. Farwell, 7 Greenl. 370 ; Parker v. Colcord, 2 N. H. 36 ; Thompson v. Bell,
6 Monroe, 560. But see Bonnet v. Ramsey, 3 Martin, 776 ; Jencks v. Phelps, 4 Conn.
149; Perkins i^. Perkins, 7 Conn. 558 ; Day v. Lamb, 7 Vt. 426.
(a) The modes of taking advantape of the allegations of the complaint as admis-
the statute of limitations, in the pleadings, sions of the plaintiff, and the burden <A
have been Tarioiudy considered. It is held evidence will then be shifted to the plain-
by the Court of Claims, that if the state- tiff, to show some exception. Harner «.
ments of the complaint show on the record Terry, 70 Ind. 264; Hntchinson «. Hutch*
that the statute of limitations has barred inson, 84 Ark. 164; Dezengremel v. Des-
the claim, a motion to dismiss will be engremel, 24 Hun (N. Y.), 457; Bines
granted. Campbell v. United States, 13 v. Potts* 56 Miu. 846; Field o. Colambat,
Ct. of CI. 108. 4 Sawyer C. Ct 528; Peofde «. Heir, 81
It is held in some States that, on snch 111. 125; Green «. N. Oamlina By. Ca, 73
a record, the defendant should demur to N. C. 524.
the complaint Lewis v. Alexander, 51 If tiie oomphdnt or declsiatioa shows
Tex. 578; Collins v. Mack, 81 Ark. 684. on its face matter which ay^nds the
Probably, however, the better rule is to statute of limitatioiia, and the defendant
regard the statute as a defence which must traverses these allegations, the burden of
be set up by plea, and that the burden of proving these allegations is on the plain-
proof is on the defendant to establish this tiff. Capen v. Woodiow, 51 Yi. 106.
plea. This he may of oourae do by using
PART IT.] LIMITATIONB. 488
be shown by extrinsic evidence, irrespective of the date of the
process,^ though the date of the process is prima facie evidence
of the time when it was sued out.^ So, the true time of filing
the declaration may be shown, without regard to the term of
which it is intituled.^ The issuing of a latitat is the true com-
mencement of a suit by bill of Middlesex ; ^ and so is the issuing
of a capia9 in the common pleas.^ The filing of a bill in chan-
cery is also a good commencement of an action, unless the bill
is dismissed on the ground that the subject is cognizable only at
law.® (a)
§ 432. New suit after faUnre of former. If writ is abated by the
death of the plaintiff, or by her marriage, if 9k feme sole^ the opera-
tion of the statute is prevented by the commencement of a new 9uitj
by the proper parties, within a reasonable time; and this, where it
is not otherwise regulated by statute, is ordinarily understood to
be one year, this period having been adopted from the analogy of
1 Bilton V. Long, 2 Eeb. 198, per Kelyng, C. J. ; JohnBon v. Smith, 2 Barr. 950,
959; Young «. Kenvon, 2 Day, 252.
* Banker «. Shed, 8 Met. 150.
* Granger v, George, 5 B. & C. 149 ; Snell v, PhilUpe, Peake's Cas. 209 ; Jtobinson
V. Burleigh, 5 N. H. 225.
* Johnson v. Smith, 2 Burr. 950.
* Leader 9. Moxon, 2 W. BL 925. Where the writ and declaration disaffree, as
where the writ is in trespass, and the declaration is in assumpsit, as is practised in the
courts of king's bench and common pleas, it most be shown not only that the writ was
seasonably issued, but that it was entered and continued down to the time of filing the
declaration; for otherwise it will not appear that the writ was sued out for the present
cause of action. But in the United States this is seldom necessary; and where the
course of proceeding would seem to require it, the continuances are mere matters of form,
and may be entered at anytime. See Angell on Limitations, c. 28; Schlosser v, Jjesher,
1 Dall. 311 ; Beekman v. Satterlee, 5 Cowen, 519 ; Soulden v. Van Rensselaer, 3 V^end.
472 ; Daria v. West, 6 Wend. 63.
* Gray v. Beriyman, 4 Hunf. 181. See, further, Angell on Limitations, c 28.
(a) After legal prooeedinffs haye once Co., 58 CaL 102 ; Illinois, &c. Ry. Co. v,
been instituted to enforce a claim, the fact Phelps, 4 111. App. 238. An amendment
that they have been discontinued because bringing in a new defendant on a joint con-
the form of action is incorrect, or for other tract is not a new cause of action, but on
matters of form, does not render a subse- a joint and seyeral contract it is, and he
3uent proceeding, if it is instituted with may plead the statute. Woodward v. Ware,
ue despatch, barred by the statute of limi- 37 Me. 568.
tatioDS accruing since the beginning of the Filing a claim in set-off is beginning to
former proceedmgs. Marsh v. Supervisors sne on the claim so as to avoid the statute.
of St. Croix County, 42 Wis. 355. Nor Hunt v. Spaulding, 18 Pick. 521.
will any lapse of time in the course of legal If the defendant dies after suit brought,
proceedings, if they are based on the orisi- and, after the expiration of the time Um-
nal writ filed before the statute, bar ue ited for suing the administrator, his ad-
claim. Hemphill v. McCHmans, 24 Pa. ministrator is summoned in, he cannot
St. 367; Woods v. Houghton, 1 Gray plead the statute, as his coming in to de-
(Mass.), 580. Nor will the introduction lend is not the commencement of suit,
of amendments, provided a new cause of Bank of Brighton v, Russell, 18 Allen
action is not thereby made a part of the (Mass.), 221.
claim. Atkinson v. Amador, &c. Canal
YOZ* u. 28
484 LAW OF EYIDENCB. [PART 17.
the fourth section in the statute of limitations of James L, pro-
viding for tlie cases of judgments reversed or arrested.^ (a) But
this rule does not apply to an action determined by voluntary
abandonment by the plaintiff, as in case of a nonsuit,^ (i)
438. Wlien statato begtna to run. Tort. In cases of tortj and
in actions on the case sounding in tort, a distinction is to be
observed between acts wrongful in themselves, which directly
affect the rights of the plaintiff, and for which, therefore, an
action may be instantly maintained without proof of actual dam-
ages, and those cases where the injury is consequential, and the
right of action is founded on the special damages suffered by the
plaintiff. In the former class of cases, the statute period begins
to run from the time when the act is done, without regard to any
actual damages or to any knowledge by the party injured. But,
in the latter cases, it runs from the time when the special dam-
age accrued, (^c) Thus, in slander, where the words impute an
indictable offence, the time runs from the speaking of them ; but
if they are actionable only in respect of the special damage, as in
slander of title, it runs from the time when this damage was sus-
tained.' So in trover J the time is computed from the act of con-
version of the goods.^ And in actions for official or professional
negligencey the cause of action is founded on the breach of duty
which actually injured the plaintiff, and not on the consequential
damage. Thus, in an action against an attorney for neglect of
1 Kinaey v. Heyward, 1 Ld. Ravm. 484, perTreby, C. J. ; Forbes v. Lord Biiddleton,
Willes, 259, n. e; Matthews v. PhUlips, 2 Salk. 424, 425 ; AngeU on Limitations, c
28; Hnntinffton v. Brinlcerlioff, 10 Wend. 278.
' Richards v. Maryland Ins. Co., 8 Granch, 84, 98 ; Hairis v. Dennis, 1 S. & B. 2S6w
But see Cretien v. Theard, 2 Martin, 747.
* Law V. Harwood, Cro. Car. 140; Saunders v, Edwards, 1 Sid. 96.
* Crompton v. Chandless, 4 Esp. 20, per Ld. Kenyon ; Gnnger «. Geoige^ 5 B. 4
C. 149 ; Denys v, Shuckbui^, 4 Y. & C. 42.
(a) This provision is ^nerally adopted process brought in a coonty m which nei-
in all the statutes of limitations in the ther of the trustees resides, is an abate-
United States, and is held by analog to ment or dismissal '* for a matter of form *
extend to like cases. McOmber «. Chap- within the meaning of the statute. Woods
man, 42 Mich. 117 ; Coffin v. Cottle, 16 «. Houffhton, 1 Gray (Mass.), 580.
Pick. (Mass.) 386 ; Woods v. Houghton, 1 (6) See also Swan v, Littlefield, 6 Cnsh.
Gray (Mass.), 680 ; Downing v. Lindsay, (Mass.) 417; Bullock «. Dean, 12 Met
2 Pa. St. 885 ; Baker v. Baker, 18 B. (Mass.) 15. The period of limitation is
Mon. (Ky.) 406; Giyens v. Bobbins, 11 not prolonged where the writ is abated by
Ala. 158. And where the statute provides being brought in the wrong county. Don-
for the commencement of a new action nell v. Gatchell, 88 Me. 217.
within one jrear, "if the writ shall be (c) Bank of Hartford County w. Wa-
abated or the action otherwise defeated /or terman, 26 Conn. 824 , Betts «. N'orris, 22
any maUer of fonn^" the abatement or dis- Me. 814 ; Leaem v, Neal, 58 Mo. 412.
missal for want of jurisdiction of a trustee
PART nr,] LHOTATiONS. 485
professional datj, it has been held that the statute of limitations
begins to run from the time when the breach of duty was com-
mitted, and not from the time when the consequential damage ac-
crued.^ (a) So, in an action against the sheriff for an insufScient
return upon a writ, by reason whereof the judgment was reversed)
the statute begins to run from the time of the return, and not
from the reversal of the judgment.^ But in an action for taking
insufficient bail, the injury did not arise to the plaintiff until he
had recovered judgment, and the principal had avoided, for until
then the bail might have surrendered the principal; and there-
fore the statute begins to run from the return of non e%t inventm
on the execution.^
§ 434. Same subject Act done. The same distinction has been
recognized, in expounding private and local statutes, which have
limited the remedy to a certain period of time from the act doneA
Where the act was in itself lawful, so far as the rights of the
plaintiff were concerned, but occasioned a subsequent and conse-
quential damage to him, the time has been computed from the
commencement of the' damage, this being the act done, within the
meaning of the law. But where the original act was in itself a
1 HoweU V. Young, 2 C. & P. 288; 8. 0. 5 B. & G. 269, confirmed in Smith v. Fox,
12 Jar. 130; Brown v. Howard, 4 J. B. Moore, 508; B. o. 2 B. & B. 73; Short v, Mc-
Carthy, 3 B. & Aid. 626. See alao Leonard v. Pitney, 5 Wend. 80; Bank of Utica
V. Childa, 6 Cowen, 238; Stafford v, Richardaon, 15 Wend. 802; ArgaU v, Bryant, 1
Sandf. 98.
* MiUer v, Adams, 16 Mass. 456.
* Rice V, Hoemer, 12 Mass. 127, 130; Mather v. Green, 17 Mass. 60.
* Whether a mere nonfeasance and omission can be regarded as an ac< don», so as to
be within the protection of these statutes, has been mucn doubted. See Blakemore v,
Glamorganshire Canal Co., 3 Y. & J. 60; Gaby v, WilU. & Berks. Canal Co., 3 M. &
a 580; Umphelby v, McLean, 1 B. & Aid. 42; Smith v, Shaw, 10 B. & C. 277, per
B»yley, J.
(a) White V, Reagan, 82 Ark. 281 ; Moore longer time than that limited by statute does
v.- Juvenal, 92 Pa. St. 484. The same not extend the time for bringing the action,
principle applies where one, having sold He should sue, and recover anticipatory
original purchaser is only barred after the citic Ry. Co., 52 Cal. 42.
statutory period has elapsed, beginning at In an action for deceit, the statute
such conveyance. Cochrane v. Oliver, 7 mns from the time the plaintiff knew of
111. App. 176. the fraud. Marboutg v. McCormick, 23
In an action against a carrier, the right Kan. 38.
of action accrues on the destruction of the The canse of action against an officer
floods, and the statute runs from that time, for the taking of insufficient bail by his
Merchants' Despatch Co. v. Topping, 89 deputy accrues on the return of non ed in*
III. 65. In an action against one for in- venttu upon the execution a^inst the prin-
juries caused by his negligence, the fact cipal, and the statute runs from that time,
that the plaintiff's injuries extend over a West v. Rice, 9 Met. (Mass.) 564.
486 LAW or ETIDEKCE. [PABT IV.
direct invasion of the plaintiff's rights, the time has been com-
puted from such original act. Thus, where a surveyor of high-
ways, in the execution of his office, undermined a wall adjoining
a highway, and several months afterwards it fell, the statute
period limiting the remedy was computed from the falling of the
wall, this alone being the specific wrong for which an action was
maintainable.^ And the same principle has been applied to simi-
lar acts done by commissioners and others, acting under statutes.'
On the other hand, where the action is for an illegal seizure of
goods under the revenue laws, though they were originally stopped
for examination only, and afterwards finally and absolutely de-
tained, the time is computed from the original act of stopping the
goods, and not from the commencement of special damages, or
from the final detention, or from the redelivery of the goods.^ So,
where a trespass was committed by cutting down trees, which
the defendant afterwards sold^ it was held that the statute at-
tached at the time of cutting th^ trees, and not at the time of
sale.*
§ 435. Same subjeot Contraot In cases of eoTUract^ the gen-
eral principle is, that the statute attaches as soon as the contract
is broken ; because the plaintiff may then commence his action.
And though special damage has resulted, yet the limitation is
computed from the time of the breach, and not from the time
when the special damage arose.^ If money is lent, and a bill of
exchange is given for the payment at a future day, the latter
period is the time when the limitation commences.® If a bill is
payable at a certain time after sight,^ or a note is payable at so
many days after demand,® the statute attaches only upon the
expiration of the time after presentment or demand. But where
the right of action accrues after the death of tlie party entitled,
I Roberts v. Read, 16 East, 215 ; 6 Taant. 40, n. h; Wordsworth v, Harley, 1 E
& Ad. 891.
« Oaion V. Boddington, 1 C. & P. 641; Lloyd v. Wigney, 6 Bing. 489; Sutton v,
Clarke, 6 Tatint 29. But see Smith v. Shaw, 10 B. k C. 277; Heard v. Middlesex
Canal, 5 Met. 81.
s Gordon «. Ferris, 2 H. Bl. 14; Saunders v. Saunders, 2 East, 254; Crook «. llc-
Tavish, 1 Bing. 167.
« Hughes V, Thomas, 18 East, 474, 485.
* Battery ». Faulkner, 3 B. & Ad. 290; Short v. McCarthy, Id. 626. If the right
of action was in a trustee, it is harred hy his neglect to sue, though the cat^ gue tntd
was under disability. Wyche v. E. Ind. Co., 8 P. Wms. 309.
8 Wittersheim v. Countess of Carlisle, 1 H. BL 681.
7 Holmes v, Eerrison, 2 Taunt 828.
B Thorpe v. Booth, Ry. & M. 888; Thorpe v. Combe, 8 D. & R. 847; Anon., 1
Mod. 89.
PABT IV.] LIMITATIONS. 487
the period of limitation does not commence until the grant of ad-
ministration ; for, until then, there is no person capable of suing.^
Where the action is against a factor, for not accounting and pay-
ing over, the statute begins to run from the time of demand ; for
until demand made, no action accrued against him.^ And where
a contract of service is entire, as for a year, or for a voyage, the
limitation does not commence until tiie whole term of service is
expired.' (a)
§ 486. RepUoattons to idea of statate. The bar of the statute of
limitations may be avoided by showing, (1) that the plaintiff was
under any disability mentioned in the statute ; or, (2^ that the
claim has been recognized by the defendant as valid, by an ac-
knowledgment, or, a new promise, witiiin tiie statute period ; or,
1 Monay v. E. I. Co., 5 B. & Aid. 204. And see Gary v. Stephenson, 1 Salk. 421;
Pratt V. Swaine, 8 B. & C. 285. In some of the United States cases of this kind are
specially provided for by statutes, extending the period of limitation for a further defi-
nite time.
* Topham v. Braddiek, 1 Taunt. 572. And see Pecke v. Ambler, W. Jones, 829.
* Ewer V, Jones, 6 Mod. 26.
(a) In absence of fraud, ignorance of six years from this date," is a promise to
the existence of a claim will not avoid the pay on demand, and the statute of limita-
statute. Steele v. Steele, 25 Pa. St 154. tious begins to run against a claim founded
Where premium notes are given to an on such written promise, from the date,
insurance company, pavable at such times Youn^ v, Weston, 39 Me. 492; Colgate v.
as the directors *' shall from time to time Buckmgham, 89 Barb. 177.
assess and order," or "when required," the Where bills of exchange are made pav-
{MTformance of these conditions settles the able at a particular place, no action can be
time when the statute begins to run. Bige- maintained until after a demand at that
low V, libby, 117 Mass. 859. Be Slater place, and a dishonor there. Therefore the
Mut. Fire Ins. Co., 10 R. I. 42. statute of limitations begins to run from
The statute does not begin to run the time of such demand, and not from
against an attorney's claims for services in the time when the bills were payable ac-
a suit until the suit is ended, or his em- cording to their tenor. Picquet v. CurtiB,
ployment is otherwise terminated. Davis 1 Sumner, 478.
V. Smith, 48 Vt 52; Eliot v. Lawton, 7 Where the surety on a promissory note
Allen (Mass.), 274. paid the holder berore the note was pay-
The coupons attached to bonds are sepa- able by its terms, the cause of action
imte contracts, and the statute runs on them against the principal for indemnity was
from the dav when they are due. Qalves- held to accrue when the note became due
ton V. Loonie, 54 Tex. 517 ; Amy v, Du- according to its tenor, and not before,
baoue, 98 U. S. 470. Tillotson v. Rose, 11 Met. (Mass.) 299.
The statute begins to run in favor of a So, where a subsequent indorser pays a
bank for deposits only after demand made, note, the statute, as against a prior indorser,
Finkbone's Appeal, 86 Pa. St. 868; Howell begins to run on the payment of the money.
V, Adams, 68 N. Y. 814. Barker v. Cassidy, 16 Barb. (N. Y.) 177;
When an note is made payable on de- Scott v. Nichols, 27 Miss. 94. Where there
mand, the cause of action arises at once; is a contract to save harmless from certain
for the note is payable at once, and the stat- payments, the statute runs from the time
Qte begins to run from the delivery of the of the payment, and not of the execution
note. Palmer v. Palmer, 36 Mich. 487. of the contract. Hall v, Thayer, 12 Mete.
So a promise in writing, attested by a wit- 180.
nessy to pay a note "at any time within
438 LAW OF EVIDENCE. [PART IT.
(8) that the cause of action was fraudulenUy concealed hj the
defendant, until within that period.
§ 487. DisabllitiM. (1.) The disabilities of i^fanc^, coverture^
and insanity^ will be found treated under their appropriate
heads, (a) The disability arising from absence out of the country
is usually expressed by being beyond sea; but the principle ou
which this exception is founded is, that no presumption can arise
against a party for not suing in a foreign country, nor until there
is somebody within the jurisdiction whom he can sue;^ and there-
fore the words ^^ beyond sea," in the statute of any State, are ex-
pounded as equivalent to being ^' out of the State," and receive
the same construction.^ (6) And the latter form of words is held
equivalent to being '^out of the actual jurisdiction;" that is,
beyond the reach of process ; so that where a part of the territory
of a State, in time of war, is actually and exclusively occupied by
the enemy, a person within the enemies' lines is out of the State
within the meaning of the statute of limitations.^ (e) The rule,
as applied to a defendant, has therefore been limited to the case
where he was personally absent from the State, having no attach-
able property within it.* A foreigner, resident abroad, is not
within the operation of the statute, even though he has an agent
resident in the country.* (ei)
^ Per Best, C. J^ in Douglas v. Forrest, 4 Bing. 686.
* Faw V. Roberdeau, 8 Cranch, 177, per Marshall, C. J. ; Murray v. Baker, 2 Wheat
541; Ancell on Limitations, c. 9. In some of United States, the disability of the
Slaintiff is limited, by statute, to his absence from the United States; and that of tha
efendant to his absence from the particular State in which he resided.
* Sleght V, Kane, 1 Johns. Cas. 76, 81.
« White V, Bailey, 2 Mass. 871; Little v. Blunt, 16 Pick. 859.
* Strithorst v, Greeme, 2 W. Bl. 728; 8. c. 8 Wils. 145; Wilson «. Appleton, 17
Mass. 180. If a plaintiff be beyond sea at the time of the action accruing, ne may sue
at any time before his return, as well as within the time limited by statute for the oom-
mencemeut of a suit after his return. Le Veux v, Berkeley, 5 Ad. & £1. N. & 886. And
see Townsend v. Deacon, 18 Jur. 866.
(a) When the cesttn que trud is an in- maboye o. Mottichund, 82 Eng. Law & Eq.
fant, this does not constitute a disability 84. But in N.Carolina, the term" beyoira
which stops the statute of limitations, for the seas,** means out of the United States,
the trustee can sue and be sued. Weaver Davie v. Briggs, 97 U. S. 628.
V, Leiman, 52 Md. 508. (c) And war suspends the currency of
When by statute a married woman is the statute, though it has been aet in mo-
allowed to do business on her own account, tion. Marks v. I&rum, 57 Tenn. 87; Sem-
the statute of limitations runs against her mes v. Hartford Ins. Co., 18 WalL (U. 8.)
and in her favor as if she were 9k feme sole, 158; Perkins v. Rogers, 85 Ind. 124; Jack-
C^astner v, Walrod, 88 111. 171 ; Eibbe v. son Ins. Co. v. Stewart, C. Ct U. S., Md.
Ditto, 98 U. S. 674; Cameron v. Smith, Dist., 6 Am. Law. Rev. K. 8. 732, and n.
50 Cal. 803. {d) The reason of the disability being
(6) Keeton v. Keeton, 20 Mo. 580 ; that the defendant is out of reach of pio-
Thomason v. Odom, 28 Ak. 480; Ruck« ocas. The fact that he resides on a piece
PABT IV.] LIMITATIONS. 489
§ 488. "When liability is Joint In the case of partners^ the ab-
sence of one from the country does not prevent the statute from
attaching ; for the others might have sued for all.^ Nor does the
disability of one coparcener ^ or tenant in common, preserve the title
of the other ; for each may sue for his part.^ But in the case of
Joint tenants J and Joint contractors, it is otherwise.^ (a)
§ 439. Statute onoe in motion oontinnaa. When the time men-
tioned in the statute has once begun to run, it is a settled rule of
construction, that no disability subsequently arising will arrest its
progress.^ If, therefore, the party be out of the jurisdiction when
the cause of action accrues, and afterwards returns within it, the
statute attaches upon his return. But in the case of a defendant,
his return must be open, and such as would enable the plaintiff,
by using reasonable diligence, to serve process upon him. If it
was only temporary and transient, in a remote part of the State,
so that it could not have been seasonably known to the plaintiff,
or if the defendant concealed himself, except on Sundays, so that
he could not be arrested, it is not such a return as to bring the
case within the operation of the statute.^
» Peny v. Jackson, 4 T. R. 616, 619; Pendleton v. Phelps, 4 Day, 476.
s Roe r. Rowlston, 2 Taunt. 441; Doolittle v. Biakesley, 4 Day, 266.
* Marsteller v. McClean, 7 Cranch, 166; Fannin v. Anderson, 9 Jur. 969; 14 Law
Jonr. N. 8. 282.
* Doe V. Jones, 4 T. R. 800, 310; Angell on Limitations, pp. 146, 147; Smith v.
Hill, 1 Wills, 134. In some of the United States, the rule is differently established,
by statutes. See Rev. Stat, of Massachusetts, c 120, § 9 ; Re7. Stat Maine, c 166,
% 28.
ft Fowler v. Hunt, 10 Johns. 464, 467; White v. BaUey, 8 Mass. 271, 273; Byrne
V. Crowninshield, 1 Pick. 268; Little v. Blunt, 16 Pick. 869; Ruggles v. Keeler, 3 Johns.
264; Crosby v, Wyatt, 10 ShepL 166.
of land ceded by the State to the United cause of action accrues, and nerer returns.
States, is not such absence from the State but dies abroad, the granting of letters of
if the right to serve civU process in such administration on his estate sets the stat-
oeded land is resenred to the State. Maurice ute in motion. Benjamin v, DeGroot, 1
9. Worden, 62 Md. 283. See also Yon Denio (N. Y.), 161.
Hemert v. Porter, 11 Met 210; Lafonde (a) Whereyer the liability of the de-
fy. Ruddock, 24 Eng. Law k £q. 239; fendajits is joint and not several, the claim
Townes v. Mead, 29 Id. 271. A party who of the plaintiff against both is barred if the
is absent from the State, but has a home statute of limitations protects one. Stur-
therein to which he intends to return, does ges v. Longworth, 1 Ohio St 644. And
not 00 " reside without the State" as to in- there is no right of contribution between
temxpt the time limited for the commence- defendants who have protected themselves
ment of an action. Drew v. Drew, 87 Me. against a demand by setting up the statute,
889; Buckman v. Thompson, 88 Id. 171. and other defendants who might equally
The disability to sue, arising from being have set up the statute, but who having
• without the U nited States, is removed by neglected to do so, are found by the decree
the return of the party to any one of the to be liable to the plaintiffs. Fordham v.
States. Yamey v. Grows, 87 Me. 806. Wallis, 17 £ng. Law & £q. 182.
Whera a debtor resides abroad when the
440 LAW OF EVIDENCE. [PABT IT.
§ 440. Hew promise. (2.) Where the statute is pleaded in bar,
and the plaintiff would avoid the bar by proof of an acknowledg-
ment of the claim, this can be done only under a special replication
of a new promise^ within the period limited.^ (a) It is to be ob-
served, that the statute of limitations is regarded by the courts as
a wise and beneficial law, not designed merely to raise a presump-
tion of payment of a just debt, from lapse of time, but to afford
security against Btale demands, after the true state of the transac-
tion may have been forgotten, or be incapable of explanation, by
reason of the death or removal of witnesses.^ Wherever, there-
fore, the bar of the statute is sought to be removed by proof of a
new promise, the promise, as a new cause of action, ought to be
proved in a clear and explicit manner, and be in its terms un-
^ In those States where general pleading is allowed in all cases, any evidence show-
ing that the debt is or is not subject to the operation of the statute is of course admis-
sible under such pleading. See Carshore v. Hujck, 6 Barb. S. C. 583; Hway v,
Peters, 5 Ga. Sll; Trymer v. Pollard, 5 6rat 460.
^ Bell V, Morrison, 1 Peters, S. C. 360, per Story, J. ; Monntstephen v. Brooke, 8
B. & Aid. 141, per Abbott, C. J .; Tanner v. Smart, 6 B. & C. 603. The legal effect of
acknowledging a debt, barred by the statute, is that of a promise to pay the old debt;
which promise the law implies from the acknowledgment, and for which the old debt
is a consideration in law. {b) But if the promise is limited to payment at a particular
time, or in a certain manner, or out of a specified fund, the creditor can claim nothing
more than the new promise gives him; for the old debt is revived only so far as to foim
a consideration for the new promise. Phillips v. Phillips, 3 Hare, 299. If, therefore,
the new promise was not made until after action brought, it cannot prevent the opera-
tion of tne statute. Bateman «. Pinder, 3 Ad. & £1. N. s. 574.
(a) This rule applies only to those States But another view is held in some States^
whera the common-law rules of pleading that the acknowledgment is only a wai?er
still exist. See note (1). In most States a of the bar interp^ed in behalf of the
traverse of the plea is sufficient to let in debtor by the statute, and a revival of the
proof of any matter which avoids the stat- old debt. It is the original debt which
ate. Frohock v. Pattee, 38 Me. 103; constitutes the ground of action and forms
Theobald v. Stiuson, Id. 149; Esselstyn the basis of a judgment. Frisbee v. Sea-
V. Weeks, 2 Eeman (N. Y.), 635; Penfieid man, 49 Iowa, 95; Ilsley v. Jewett, 3 Met
V.Jacobs, 21 Barb. (N. Y.) 385; Blood- (Maas.)439; Wayi?. Sperry,6Cu8h.{MB3S.)
good V, Bruen, 4 Selden (N. Y.), 362. 241; Foster*. Shaw, 2 Gray (Mass.), 158;
Even an agreement by a maker of a prom- Philips v. Peters, 21 Barb. (K. Y.) 351;
issory note, that he will not take advan- Wincnell v. Bowman, Id. 448. Bat see
tage of the statute of limitations. Steams Eempshall v. Goodman, 6 McLean, C. Ct
V. Steams, 32 Vt. 678; Hoffman v. Fisher, 189, which decides that the action most be
Sup. Ct. Pa. 2 Weekly Notes of Cases, 17; on the new promise.
Randon r. Tobey, 11 How. (U. S.) 493; Where the courts hold that the action is
Ruckham v, Marriott, 37 Eng. L. & £q. brought on the new promise, the acknowl-
460; Burton «. Stevens, 24 Vt. 181. But edjpnent from which the new promise is
see contra, Shepley v. Abbott, 42 N. Y. in&red must have been given wfore soit
443; Warren «. Walker, 10 Shep. (Me.) brought See note (2). But if the ac-
453; Stockettv. Sasscer, 8 Md. 374; Sut- knowledgment is regarded only as swu-
ton V. Burgess, 9 Leigh (Va.), 381. ver of the statute, it may be made am
(b) In Illinois, it is held that the ac- suit brought Carlton r. Ludlow WooUcn
knowledgment is not a rebuttal of the pre- Mill, 27 Vt 496 ; Hazelbacker 9, Beeves
sumption of pavment, but a new undertak- 9 Pa. St 258.
ing. Hay ward v, Gunn, 4 111. App. 161.
PABT lY.] UBOTATIONS. 441
equivocal and determinate.^ In the absence of any express statute
to the contrary, parol evidence of a new promise would be suflScient ;
but in England, and in several of the United States, no acknowl-
edgment or promise is now sufficient to take any case out of the
operation of this statute, unless such acknowledgment or promise
is made or contained by or in some writing, signed by the party
chargeable thereby.^ (a) It is not necessary, however, that the
promise should be express : it may be raised by implication of
law, from the aeknowledgment of the party .^(() But such ac-
knowledgment ought to contain an unqualified and direct admis-
sion of a present subsisting debt, which the party is liable and
willing to pay. If there be accompanying circumstances, which
repel the presumption of a promise or intention to pay ; or, if the
expressions be equivocal, vague, and indeterminate, leading to no
certain conclusion, but at best to probable inferences, which may
affect different minds in different ways ; it has been held that they
ought not to go to a jury, as evidence of a new promise, to revive
the cause of action.^ (c) If the new promise was coupled with
any condition, the plaintiff must show that the condition has been
performed, or performance duly tendered.* And if it were a
1 Bell V, MorrisoD, 1 Peters, IT. S. 362; Cambridge v. Hobart, 10 Pick. 232; Gardi-
ner v, Tudor, 8 Pick. 206; Bangs v. Hall, 2 Pick. 368.
> 9 Geo. lY. c. U; Key. Stat Massachusetts, c. 120, § 13; Rev. Stat Maine, c. 146,
§ 19; Ringsold v. Dunn, 3 £ng. 497.
* Anffell on Limitations, c. 20.
* BeU». Mdrrifion, 1 Peters, tJ. S. 362-366; Bell r. Rowland, Hardin, 801; Angell
on Limitations, c 21; Bangs v. Hall, 2 Pick. 368; Stanton «. Stanton, 2 N. H. 426;
Yentris v. Shaw, 14 N. H. 422; Jones v, Moore, 5 Binn. 673; Perley v. Little, 3
Greenl, 97; Porter «. Hill, 4Greenl. 41; Deshon v. Eaton, Id. 413; Miles «. Moodie, 8
S. A R. 211; Eckert v, Wilson, 12 8. & R. 397; Purdy v. Austin, 3 Wend. 187; Sumner
V. Sumner, 1 Met 394; Allcock v. Ewen, 2 Hill (S. C), 326; Humphreys v. Jones, 14
M. & W. 1; 9 Jur. 833; Bobbins v, Farley, 2 Strobh. 348; Christy v. Flemmington,
10 Barr, 129; Harman v, Clairbome, 1 La. Ann. 842.
« Wetzell V, Bussard, 11 Wheat 309; Kampshall v, Goodman, 6 McLean, 189.
(a) This provision of the statute of Y. & J. 618; Sibley «. Lambert, 30 Me.
frauds does not apply to the evidence by 363.
which a part-payment is proved. The oral (h) Hall v, Bryan, 60 Md. 194.
admission of the defendant is sufficient to (c) Gibson v. Grosvenor, 4 Gray (Mass.),
prove the fad of part-payment, which bv 606. Tucker v. Hanghton, 9 Cush. (Mass.)
operation of law avoids the statute. But if 860; Brown v. Edes, 37 Me. 318; Phelps
an acknowledgment of the debt is to be «. Williamson, 26 Yt 280; Buckingham
proved, the proof must conform to the v. Smith, 28 Conn. 453; BloodgoSi v.
requisitions of the statute of frauds. Bruen, 4 Selden (N. Y.), 362; Shitler v,
Blanchard v. Blanchard, 122 Mass. 658; Bremer, 23 Penn. St 413; Beck v. Beck,
Williams v, Gridley, 9 Met (Mass.) 482. 26 Penn. St 124; Cheever «, Perley, 11
See also Cleave v. Jones, 4 Eng. Law k Alien, 587.
£q. 614, overmling Willis v, Newham, 8
442 LAW OF EVIDENCE. [PABT IT.
promise to pay when he is able, the plaintiff must show that he
is able to pay.^ (a)
§ 441. Same subject Acknowledgment. Upon this general
doctrine, which, after much conflict of opinion, is now well estab-
lished, it has been held, that the acknowledgment must not only
go to the original justice of the claim, but it must admit that it is
9till due? No set form of words is requisite ; it may be inferred
even from facts, without words.^ It is sufficient if made to a
stranger ; ^ (i) or, in the case of a negotiable security, if made
to a prior holder ; ^ or, in any case, if made while the action is
pending.® If it is made by the principal debtor, it binds the
surety ; "* (c) or if by the guardian of a spendthrift, it binds the
ward ; ^ and if by one of several joint debtors, it binds them
all.® (d) And where the plaintiff proves a general acknowledg-
1 Davies v. Smith, 4 Esp. 36; Tanner o. Smart, 6 B. & C. 608: Scales v. Jacol), 3
Bing. 638; Ayton v. Bolt, 4 Bing. 105; Haydon v. Williams, 7 Bing. 163; Edmunds
V. Downes, 2 C. & M. 469; Bobbins «. Otis, 1 Pick. 368; 3 Hck. 4; Gould r. Slurlej,
2 M. & P. 581. The statute will in such case begin to run from the time when the
debtor became able to pay withont respect to the creditor's knowledge of that fact
Waters v.Thanet, 2 Ad. h El. N. 8. 757.
> Clementson v. Williams, 8 Cranch, 72.
s Whitney v. Bigelow, 4 Pick. 110; East Ind. Co. v. Prince, By. k M. 407.
« Ibid. ; Halladay v. Ward, 8 Campb. 42; Mountstephen v. Brooke, 3 B. & Aid. 141;
Slu'by V. Champlin, 4 Johns. 461. It seems that in England, since the statute of 9
Geo. IV. c. 15, an acknowledgment made to a stranger would not be sufficient. Gnn-
fell V. Girdlestone, 2 Y. & 0. 622.
fi Little V. Blunt, 9 Pick. 488.
• Yea V. Fouraker, 2 Burr. 1099; Danforth «. Culver, 11 Johns. 146.
T Frye v. Barker, 4 Pick. 382. » Manson v, Felton, 13 Pick. 206.
» See arUe, vol. i. §§ 174, 176; Patterson r. Patterson, 7 Wend. 441. But where
one party wa.s a ferm covert at the time of the new promise by the other, it was held
not sufficient to charge her and her husband. Pittam v. Foster, 1 B. & C. 248. The
question whether an acknowledgment by one partner is sufficient to avoid the statute
as to all, was raised in Clark ». Alexander, 8 Jur. 496; 8 Scott, N. R. 147. But see
Walton V. Robinson, 5 Ired. 841; Wheelock v. Doolittle, 3 Washb. 440, that it is, even
after dissolution. S&fnb. that an acknowledgment by one of several executors is not
Scholey v. Walton, 12 M. k W. 610, per Parke, B.
(a) Hammond v. Smith, 10 Jur. N. s. (e) So where the statute is barred by a
117; Mattocks v, Chadwick, 71 Me. 318. partial payment by the principal (Green
(p) Dinguid v. Schoolfield, 32 Gratt. v. Greensboro Female CoUege, 83 N. C.
(Va.), 803; Minkler v. Minkler, 16 Vt. 449) or a payment of interest (Schindel r.
194; Palmer v. Butler, 86 Iowa, 376; Bird Gates, 46 Md. 604). Contra by statute in
V. Adams, 7 Ga. 56. In these cases it was Massachusetts. Faulkner v. BaUey, 128
held that a promise or declaration to a Mass. 588.
stranger is insufficient to take the case out {d) An acknowledgment by one of two
of the statute (McKinney v. Snyder, 78 partners, after dissolution, will avoid the
Pa. St. 497) ; and in Nevada (Taylor v, bar of the statute, if the plaintiff had ha4
Hendrie, 8 Nev. 242). The new promise dealings with the firm, and did not know
should be made to the plaintiff, or some of the dissolution. Sage v. Enfflcn* 2 AUen
one authorized by him to act for him in 245; Tappan v, Kimball, 80 N. H. 186.
the matter. Eatz v. Messinger, 7 III. The better doctrine now is, that neither a
Ai)p. 536; Allen «. Collier, 70 Mo. 188; new promise, nor part-payment by a joint
Niblack V, Goodman, 67 Ind. 174. debtor, will bind another, whether mada
PABT lY.] LIMITATIONS. 448
ment of indebtment, the burden of proof is on the defendant to
show that it related to a different demand from the one in con-
troversy.^ Nor is it necessary, unless so required by express
statute, that the acknowledgment should be in writing, even
though the original contract is one which was required to be in
writing by the statute of frauds ; for it was the original contract
in writing which fixed the defendant's liability, and the verbal
acknowledgment within six years only went to show that this
liability had not been discharged.^
§ 442. Same snbjaot. It has been already observed, that an
acknowledgment, in order to remove the bar of the statute, must
be such as raises an implication of a promise to pay. It must be
a distinct admission of present indebtment. If, therefore, the
party at the time of the conversation, or in the writing, should
state that he had a receipt^ or other written discharge of the claim,
which he would or could produce, this does not take the case out
of the statute, even though he should fail to produce the discharge.^
So, if he admits that the claim has been previously made, but
denies that he is bound to pay it, whether because of its want of
legal formality, as, for example, a stamp,^ or of its want of con-
sideration,^ or the like. If the language is ambiguous, it is for
the jury to determine whether it amounts to an explicit acknowl-
edgment of the debt, or not.* But if it is in writing, and is clear,
either as an acknowledgment, or otherwise, the judge will be justi-
fied in so instructing the jury.''
§ 443. Same subject. The terms of the acknowledgment, more-
over, must all be taken together^ so that it may be seen whether,
upon the whole, the party intended distinctly to admit a present
1 Whitney v. Bigelow, 4 Pick. 110; Frost v. Bcngongh, 1 Bing. 266; BailUe v. I^oid
Inchiqnin, 1 Esp. 435. But see Sands v, Qelston, 15 Johns. 611; Clurke v, Dntcher.
9 Cowen, 674.
* Gibbons e. McCasland, 1 B. & Ad. 690.
» Brydges v, Plumptre. 9 D. & R. 746 ; Birk v. Guy, 4 Esp. 184.
* A'Court V, Cross, 8 Bing. 829.
• Easterby v, PuUen, 3 Stark. 186 ; De la Torre v, Barclay, 1 Stark. 7 ; MiUer v.
Lancaster, 4 Greenl. 159 ; Sands v. Gelston, 15 Johns. 511.
• Lloyd V. Maund, 2 T. R. 760 ; East Ind. Co. v. Prince. By. & M. 407. In the
Circuit Court of the United States, it has been held, that the sufficiency of the evi-
dence to take a case out of the statute is a question of law for the court ; and that the
jury are only to determine whether the evidence applies to the debt in suit, and to
what part of it Penaro v. Floumoy, 9 Law Reporter, 269.
' College V. Horn, 8 Bing. 119 ; Brigstocke v. Smith, 1 C. & M. 483 ; 2 Tyrw. 445.
before or after the bar of the statute. Van 523; Burke v. Stowell, 71 Penn. St 208;
Kearen v. Parmelee, 2 Comst (N. Y.) Ang. Limitations, § 260, and n,
444 LAW OP EVIDENCE. [PABT IV.
debt or duty. If, in affirming that the debt, once dae, has been
discharged, he claims it to have been discharged hy a writingy to
which he particularly refers with such precision as to exclude
every other mode, and the writing, being produced or proved,
does not in law afford him a legal discharge, his acknowledgment
will stand unqualified, and will bind him.^ So, if the defendant
challenges the plaintiff to produce a particular mode of proof of
his liability, such as to prove the genuineness of the signature,
or the like, and he does so, the implied acknowledgment will be
sufficient to take the case out of the statute.^ (a) But if the ac-
knowledgment is accompanied with circumstances or declarations
showing an intention to insist an the benefit of the statute^ it is now
held that no promise to pay can be implied.* And if the cause of
action arose from the doing or omitting to do some specific act at
a particular time, an acknowledgment, within six years, that the
contract has been broken, is held insufficient to raise the presump-
tion of a new promise to perform the duly.*
§ 444. Part payment Where a specific sum of money was due,
as, upon a promissory note, the pat/ment of a part of the debt is
also held at common law to be a sufficient acknowledgment that
the whole debt is still due, to authorize the presumption of a
promise to pay the remainder ; though it seems it would not be
^ Partington v. Butcher, 6 Esp. 66. This ia donbtless the case alluded to by
Gibhs, C. J., in Helllngs v. Shaw, 1 J. B. Moore, 840, 844, where he is made to con-
fine his observation to the case of a discharge by a toriUen instnunent. His remarks,
as reported in the same case, in 7 Taunt. 612, are seneral, and applicable to any other
mode of dischaige ; but to this unlimited extent tneir soundness is questioned by Bai-
ley, J., in Beal v, Nind, 4 B. & Aid. 568, 571. And see Dean v, Pitts, 10 Johns. 85.
' Hellings v. Shaw, 7 Taunt. 612, per Oibbe, G. J. ; Seward v. Lord, 1 GreenL 163 ;
Bobbins v, Otis, 1 Pick. 870 ; 8 Pick. 4.
> Coltman v. Marsh, 8 Taunt. 880 ; Rowcroft v, Lomas, 4 M. & S. 457 ; Bangs «.
Hall, 2 Pick. 868 ; Knott v. Farren, 4 D. & K. 179 ; Danforth «. Culver, 11 Johns. 146 ;
Sandford v. Clark^ 29 Conn. 457.
« Boydell 9. Drummond, 2 Campb. 157 ; Whitehead v. Howard, 2 & ft B. 872 ;
Wetzell V. Bussaid, 11 Wheat 809.
(a) In Moore v. SteTens, 88 Yt 808, it count, and that the defendant fidled to
was held that, where the defendant, after prove that he had ever paid it, there was
tile commencement of the action and about not a sufficient acknowledgment to bar the
the time of trial, admitted that the plain- statute ; and the court say, ** The promise
tiff's account was just when it accrued, but — he insisting at the time that ne had
claimed that he had paid it to one £., and paid it — was more in the nature of a
that £. was authorized by the plaintiff to wa^er on the result of the suit than of
receive such payment, and the defendant sucn a conditional undertaking as would
at the same time promised to pay the ac- become absolute and binding when the
count to the plaintiff if he did not prove (condition was performed, ana we regard
that he had paid it, and the auditor re- it ss insufficient to prevent the operation
ported that he did not find that £. was of the statute.*' See Goodwin «. Buxsell,'
authorised to leceiye payment of the ac- on same sulg'ect, 85 Y t 9.
PABT IV.] LIMITATIONS. 445
Bttfficient, if no specific sum was due, but the demand was only
for a quantum meruit?- (a) But it is the payment itself, and not
the indorsement of it on the back of the security, that has this
e£Fect; though where the indorsement is proved to have been
actually made before the cause of action was barred by the
statute, and consequently against the interest of the party
making it, the course is, to admit it to be considered by the jury
among the circumstances showing an actual payment.^ (V) And
if such payment be made by one of several joint debtors^ who is
not otherwise discharged from the obligation, it is evidence
against them all.^ (c) But as this rule is founded on the com-
^ Bum V. Bolton, 15 Law Journ. N. 8. 97 ; Zent v. Hart, 8 Barr, 837. But see
Smith V. Westmoreland, 12 S. & M. 668.
• 2 See aTiU, vol. i. §§ 121, 122; Whitney v, Bigelow, 4 Pick. 110 ; Hancock v.
Cook, 18 Pick. SO, 83 ; Rose v. Bryant, 2 Campb. 321 ; Conklin v. Pearson, 1 Bich.
891. This snhiect is now reflated by statutes, in England, and in several of the
United States, by which the mdorsement, if made by the creditor or in his beh^,
without the concurrence of the debtor, is of no avail to take the case out of the statute.
Stat 9 Geo. IV. c. 14 ; Rev. Stat. Massachusetts, c. 120, § 17 ; Rev. Stat. Maine,
c. 146, § 23.
' See [contra] ante, § 441 ; vol. i. § 174. But the effect of such payment is now
restricted by statutes, in some of the United States and in England, to the party pay-
ing. Stat. 9 Geo. lY. c. 14 ; Rev. Stat. Massachusetts, c 120, §§ 14, 18 ; Kev. Stat.
Maine, c 146, §§ 20, 24.
(a) Gilbert «. Collins, 124 Mass. 174. out of the statute. Pond v, Williama,
It seems that neither an acknowledgment 1 Gray (Mass.), 680 ; Krone «. Krone,
nor part-payment made on Sunday will 38 Mich. 661. To have that effect, it must
avoid the statute. Clapp v. Hale, 112 be made by the defendant specifically on
Mass. 368 ; Beardsley v. Hall, 36 Conn, account of the debt thus barred. Ibid. ;
270. Payment of part of the debt would Tippetta v. Heane, 1 C. M. & R. 252, and
seem not to be conclusive in all cases to 4 Tyrw. 772 \ Mills 9. Fowkes, 6 Bing.
authorize the presumption of a promise to J7. C. 455, and 7 Soott, 444 ; Bum o.
pay the remainder. The circumstances Boulton, 2 C. B. 485. An indorsement
that attend such payment may wholly dis- of payment on a promissory note by the
prove a promise to pay any more. Wain- creditor, by the express assent and request
man v. Kynman, 1 Welsh. H. k G. 118 ; of the promisor, is sufficient proof of such
Menriam v. Bayley, 1 Gush. (Mass.) 77; payment to prevent the operation of the
Bradfield v, Tupper, 7 £ng. Law &; £q. statute of limitations. Sibley v. Phelps
541, and n. If an indorsement of part- 6 Cush. (Mass.) 172. See aUo Howe v,
payment is made, and no payment actually Saunders, 38 Me. 850. The admission
takes place, this is not such a partial pay- of the defendant, that the indorsement is
ment as will avoid the statute. Whether in the handwriting of the obligee is not
it is sufficient evidence of an acknowledge enough ; it must be shown that it was put
ment depends on the statute of frauds, on at the date at which it purporte to have
Blancham v. Blanchard. 122 Mass. 558. been written. Grant v, Buigwyn, 84 N. C.
As te what evidence will prove part-pay- 560.
ment Anie, % HO, note a. Partpaymento (c) Peirce v. Tobey, 5 Met (Mass.)
of principal to bind surety. § 441, note b, 168 : Balcom v. RichanU, 6 Cush. (Mass.)
(b) A payment was made by a debtor 360 ; Tappan v. Kimball, 80 N. H. 136 ;
to a creditor, to whom he owed several dis- Wincheli v. Bowman, 21 Barb. (N. Y.)
tinct debts, without any direction as to ita 448. But the rule is otherwise where
application, and the creditor immediately the payment is on a note on which the
applied it to one of the debto which was makers are jointly and severally liable.
^ barred by the statute of limitations, and Shoemakers, Benedict, 1 Keman (N. Y.),
it was held that this did not take the debt 176. See Coleman v. Fobea, 22 Penn. St
446 LAW OP EVIDENCB. [PAM IV.
munity of interest among the debtors, and the presumption that
no one of them would make an admission against his own in-
terest, it results, that, where the partj making the payment is no
longer responsible, as, for example, where it is received under
a dividend in bankruptcy, it raises no presumption against the
others.^
§ 445. Mutaal aoootints. The existence of mutual aecounU
between the parties, if there are items on loth ndes within the
period of limitation, is such evidence of a mutual acknowledg-
ment of indebtment as to take the case out of the operation of
the statute.^ And if the defendant's account contains an item
within that period, this has been held sufficient to save the account
of the plaintiff ; ^ but if the items in the defendant's account are
all of an earlier date, though some of those in the plaintiff's a6*
count may be within the statute period, the statute will bar all
the claim, except the last-mentioned items.* (a) If the account
has been stated between the parties, the statute period commences
1 Biandram v. Wharton, 1 B. & Aid. 463 ; ante, vol. i. § 174, n. (8). And see
Bibb V. Peyton, 11 S. & M. 275.
3 Cogswell V, Dolliver, 2 Mass. 217 ; BalL N. P. 149 ; Chamberlain v. Cayler,
9 Wend. 126 ; Tucker v. Ives, 6 Cowen, 198 ; Fitch v. Hilleary, 1 Hill (S. C), 292.
See also Rev. Stat Massachusetts, c. 120, § 6. A similar effect has been attributed to
continuity of service of a domestic, until a short time previous to the suit. Viens «.
Brickie, 1 Martin, 611. If the items are all on one side, those within six years will
not save the others from the operation of the statute. Hadlock v. Losee, 1 Sandf. 220.
* Davis V. Smith, 4 Greenl. 887 ; Sickles v. Mather, 20 Wend. 72.
« Gold V, Whitcomb, 14 Pick. 188 ; BuU. N. P. 149. In England, since Loid
Teuterden's Act (9 Geo. IV. c. 14), the existence of items within six years, in an
open account, will not operate to take the previous portion of the account, out of the
statute of limitations. Cottam v. Partridge, 4 M. & G. 271.
156. Or if it appears to have been made that there was a mutual and open account
bythe direction ofthe other joint promisor, current^ and proving an item on either
Clark V, Burn, 86 Pa. St. 502 ; naight v, side, within six years. Thus, where the
Avery, 16 Hun (N. Y.), 252. plaintiff opened an account with the de-
(a) The Massachusetts statute pro- fendant in 1830, and continued to make
vides that, in actions brought " to recover char]^ until 1883, and brought an action
the balance due upon a mutual and open on his account in 1888) and proved on the
account current, the cause of action shall trial that the defendant delivered to him
be deemed to have accrued at the time of an article on account in 1830, it was held
the ]ast item proved in such account." that there was a mutual and open account
This does not apply exclusively to such ac- current, and that no part of the plaintiff's
tions as are brought on accounts in which charges were barred by the statute of Urn-
debits and credits are stated and a balance itations. Penniman v. Botch, 8 Met.
struck, but extends also to cases in which (Mass.) 216.
the plaintiff seeks to recover the balance A statute in New York (N. T. Code^
due to him, though he declares only on the § 886), makes a similar provision for ac-
debit side of the account And in the lat- counts in which there have been " redpro-
ter case, if the defendant does not file an cal demands." This expression iseouivatent
account in set-off, nor prove items on his to "mutual accounts (Green v. Disbrow*
side of the account by way of payment, 79 N. Y. 1), and it is so held in ""
but relies on the statute of limitations, the (Waffle v. Short, 25 Kan. 608).
plidntiff may avoid the statute by showing
PABT IV.] UMITATI0N8. 447
at the time of stating it ;^ but a mere cesBation of dealings, or any
act of the creditor alone, or even the death of one of the parties,
is not, in effect, a statement of the account.^
§ 446. Aoknowledgment do«s not revive tort: It may here be
farther observed, that, where the cause of action arises ex delicto^
as in trespass and trover; or is given bj positive statute, irre-
spective of anj promise or neglect of duty by the party, as in the
case of actions against executors and administrators upon the
contracts of their testators or intestates ; if the action is once
barred by lapse of time, no admission or acknowledgment, how-
ever unequivocal and positive, will take it out of the operation of
the statute.^
§ 447. MerohantB' aooonnts. The statute of limitations of 21
Jac. I. c. 16, which has been copied nearly verbatimy in its principal
features, in most of the United States, (a) contains an exception
of ^^ such aceounts as concern the trade of merchandise between
merchant and merchant, their factors or servants." To bring a
case within this exception, it must be alleged in the replication,
and shown by proof, to conform to the statute in each of those
particulars ; every part of the exception being equally material.
The exception is not of actions, nor of special contracts, nor of
any other transactions between merchants, but is restricted to
that which is properly matter of account, or consists of debits %nd
credits properly arising in account.^ It has therefore been held,
that such claims as bills of exchange,^ or a contract to receive
half the profits of a voyage in lieu of freight,* were not merchants'
1 Farrington v, Lee, 1 Mod. 269 ; 2 Mod. 811 ; Cranch v. Eirkman, Peake's Caa.
121, and n. (1), by Day ; Union Bank v. Knapp, 8 Pick. 96.
< Trueman v. Hont, 1 T. R. 40 ; Mandeville v, Wilson, 5 Cranch, 15 ; Bass v.
Baas, 5 Pick. 187 ; McLellan v. Crofton, 5 Greenl. 807.
* Hnrat V, Parker, 1 B. & Aid. 92 ; 2 Chitty, 249 ; Oothont v, Thompson, 20 Johns.
277 ; Brown v. Anderson, 18 Mass. 201 ; Thompson v. Brown, 16 Mass. 172 ; Dawes
V. Shed, 15 Mass. 6 ; Ex parte Allen, Id. 58 ; Parkman v, Osgood, 8 Greenl. 17.
4 Sprinff V. Gray, 5 Mason, 505, per Story, J. ; 8. c. 6 Peters, 155 ; Cotum v. Par-
tridge, 4 M. & G. 271 ; 4 Scott, N. K. 819. A mere open account, without any agree-
ment that the goods delivered on one side shall go in payment of those delivered on
the other, is not therefore an account of merchandise, between merchants. Ibid. It
baa recently been held in England, that the exception as to merchants' accounts does
not apply to an action of ivdebitattu asaumpeit, but only to the action of account, or
perhanB to an action on the case for not accounting. Inglis v, Haigh, 6 Jar. 704 ;
8 M. s W. 769.
* Chievly v. Bond, 4 Mod. 105 : Garth. 226 ; a. o» 1 Show. 841.
* Spring V. Gray, 5 Mason, 505 ; 8. a 6 Petm, 155.
(a) This statute was repealed in Eng- on Limitations (6th ed.), | 162, and Ap-
lanu, 19 & 20 Vict. c. 97, i 9, and it is re- pendiz, pa$sim.
tained by but few of Uie States. Angell
448 LAW OP EVIBENOE. [PAET IV.
accounts, within this exception. And as the exception was in-
tended to be carved out of cases for which an action of account
lies, and as this action does not lie where an account has already
been stated between the parties, it has been held, that a itcUed
account is not within the exception in the statute.^ But an
account claed bj a mere cessation of dealings, we have just seen,
is not deemed an account stated. Whether any but current
aceounU, that is, those which contain items within the statute
period, are within this exception, is a point upon which the
authorities, both in England and America, are not uniform. On
the one hand, it is maintained upon the language of the statute,
that, if the accounts come within its terms, it is sufficient to save
them, though there have been no dealings within the six jears.^
On the other hand, it has been held, that where all accounts have
ceased for more than six years, the statute is a bar ; and that the
exception applies only to accounts running within the six years ;
in which last case the whole account is saved as to the antecedent
items.^ The account, also, to be within the exception, must be
such as concerns the trade of merchandUe ; that is, such as con-
cerns traffic in merchandise, where there is a buying and selling
of goods, and an account properly arising therefrom.* The exist-
ence of mutual debits and credits, there being no agreement
that the articles delivered on one side shall go in payment for
those delivered on the other, has been held insufficient to consti-
tute the accounts intended in this exception.^ And it is necessary,
moreover, that the parties to the account be merchantn^ or persons
who traffic in merchandise, their factor or servants.®
§ 448. Fraud and oonoealment The bar of this statute may also
be avoided by proof of fraud in the defendant, committed under
such circumstances as to conceal from the plaintiff all knowledge
1 Webber v. Tivill, 2 Saund. 124, 127, notes (6), (7), by Williams ; 5 Mason, 62«,
627.
> Mandeville v, Wilson, 5 Cranch, 15 ; Bass v. Bass, 6 Pick. 862, confinned in
8 Pick. 187, 192 ; McLellan v, Crofton, 6 GreenL 807. Such is now the rule in Eng-
land. See Bobinson r. Alexander, 8 Bligh, N. 8. 852 ; Inglis v. Haigh, 5 Jnr. 704 ;
s. 0. 8 M. & W. 769.
> Wilford V, Liddel, 2 Ves. 400 ; Coster v. Murray, 6 Johns. Ch. 622 ; Spring ».
Gray, 5 Mason, 505, 528 ; 6 Peters, 155. See Angell on Liroitations, c 14 ; fiam-
chander v. Hammond, 2 Johns. 200.
^ Spring V. Gray, 6 Mason, 529, per Story, J. ; 6 Peters, 165. And see Start v.
MelUsh, 2 Atk. 612 ; Bridges v. MitcheU, Bunb. 217 ; Gilb. Eq. 224.
« Cottam V, Partridge, 4 M. & G. 271 ; s. c. 4 Scott, N. R. 819.
^ 5 Mason, 580, per Story, J., and authorities there cited ; 5 Com. Dig. 52, tit.
Merchant, A. ; 2 Salk. 445 ; Hancock v. Cook, 18 Pick. 82 ; Wilkinson on Limita-
tions, pp. 21-80 ; Angell on Limitations, c. 15.
PABT IT.] LDOTITIONS* 449
of the fraud, and thus prevent him from asserting his right, until
a period beyond the time limited bj the statute. But such fraud-
ulent concealment can be shown only under a proper replica-
tion of the fact. And it must be alleged and proved, not onlj
that the plaintiff did not know of the existence of the cause of
action, but that the defendant had practised fraud in order to
prevent the plaintiff from obtaining that knowledge at an earlier
period.^ (a)
^ AngeU on Limitatioiis, c. 18 ; Bree v. Holbeck, 2 Dong. 654, confirmed in Brown
V, Howard, 2 B. & B. 73, 75 ; s. o. 4 J. B. Moore, 508 ; and in Clark v. Hougham,
S B. & C. 149, 153 ; Short v. MoCarthv, 3 B. & Aid. 626 ; Granger v, George, 5 B.
k C. 149. And see Macdonald v. Macdonald, 1 Bligh, 815. See also Sherwood v.
Sutton, 5 Mason, 143, where all the authorities are reviewed by Story, J. ; First Mass.
Tump. Co. V. Field, 8 Mass. 201 ; Homer v. Fish, 1 Pick. 485 ; WeUes v. Fish, 8 Pick.
74 ; Famham v. Brooks, 9 Pick. 212 ; Jones v. Conoway, 4 Yeates, 109 ; Bishop v.
Little, 3 GreenL 405 ; Walley v, Walley, 3 Bligh, 12. In New York, fraudulent con-
CfMdment of the cause of action will not prevent the operation of the statute. Troup v,
Smitih, 20 Johns. 40 ; AUen v, Mille, 17 Wend. 202.
(a) See ante, | 399, note a. See also 39 Me.' 404; Douglaas v. Elkins, 8 Foster
Hoore v. Greene, 2 Curtis C. C. 202; Carr (K. H.), 26; Liyermore v. Johnson, 27
V. Hilton, 1 Id. 390; Rouse v. Southard, Miss. 284.
VOL. II. 29
450 LAW OF EVIDENCE. [PABT IV.
MALICIOUS PROSECUTION.
§ 449. Oronnds of aotioiL To maintain an action for this injury,
the plaintiff must prove, (1) that he has been prosecuted by the
defendant, either criminally or in a civil suit, and that the prose-
cution is at an end ; (2) that it was instituted maliciously, and
without probable cause ; (8) that he has thereby sustained dam-
age. It is not necessary that the whole proceedings be utterly
groundless ; for if groundless charges are maliciously and without
probable cause coupled with others which are well founded, they
are not on that account the less injurious, and therefore consti-
tute a valid cause of action.^ Nor is the form of the prosecution
material ; the gravamen being, that the plaintiff has improperly
been made the subject of legal process to his damage, (a) If, there-
fore, a commission of bankruptcy has been sued out against him,
though it was afterwards superseded ; ^ (5) or his house has been
searched under a warrant for smuggled or stolen goods ;' or, if a
commission of lunacy has been taken out against him ; ^ or, if spe-
cial damage has resulted from a false claim of goods ;^ or, if goods
have been extorted from him by duress of imprisonment, or abuse
of legal process ; * or, if he has been arrested and held to bail for
a debt not due, or for more than was due,^ and it was done mali-
ciously and without probable cause, — he may have this remedy
for the injury. The action, moreover, is to be brought against
the party who actually caused the injury, and not against one who
was only a nominal party. And, therefore, if one commence a
suit in the name of another, without his authority, and attach
1 Reed v. Taylor, 4 Taunt 516 ; Wood v. Backley, 4 Co.l4 ; Pieroe v. Thompaon,
6 Pick. 198 ; Stone v. Crocker, 24 Pick. 81.
^ Brown v. Chapman, 8 Burr, 1418 ; Chapman v, Rckersgill, 2 Wile. 145.
» Boot V. Cooper, 1 T. R. 536. * Turner v. Turner, Gow, 20.
* Green v. Button, 2 C. M. & R. 707 ; 1 Tyr. k Gr. 118.
* Grainger v. Hill, 4 Bing. N. C. 212 ; 8 Scott, 501 ; Plummer v. Dennett,
6 Greenl. 421.
7 Savage v. Brewer, 15 Pick. 458 ; Wentworth v. Bullen, 9 B. & C. 840 ; Bay «l
Law, 1 Peten C. C. 210 ; Sonmier v. Wilt, 4 S. & R. 19.
(a) CottereU v. Jones, 7 Eng. L. & £q. {b) Farlie v. Danka, 80 Eng. L. & Eq.
475; Banon v. Maaon, 81 Yt 198. 115.
PABT IT.] MALICIOUS PBOSECUTION. ^ 451
the goods of the defendant, with malicious intent to vex and
harass him, this action lies, though the suit was for a just cause
of action.^ But where the suit was commenced hj the attorney
of the party, in the course of his general employment, though
without the knowledge or assent of his client, it seems that the
party himself is liable.^ The attorney is not liable unless he acted
wholly without authority, or conspired with his client to oppress
and harass' the plaintiff.^ Nor is it material that the plaintiff was
prosecuted by an insufficient process, or before a court nobhaving
jurisdiction of the matter; for a bad indictment may serve all the
purposes of malice as well as a good one, and the injury to the
party is not on that account less than if the process had been
regular, and before a competent tribunal.^ (a)
§ 450. Proof of prosecution. (1.) The fact of the proseeviion
will be proved by duly authenticated copies of the record and
proceedings.* (6) Some evidence must also be given that the de-
fendant was the prosecutor. To this end, a copy of the indictment,
with the defendant's name indorsed as a witness, is admissible as
evidence that he was sworn to the bill ; but this fact may also be
proved by one of the grand jury, or other competent testimony.*
It may also be shown, that the defendant employed counsel or
other persons to assist in the prosecution ; or, that he gave in-
structions, paid expenses, procured witnesses, or was otherwise
active in forwarding it.
1 Pierce v. Thompson, 6 Pick. 193.
* Jones V. Kichols, 8 M. & P. 12.
* BickneU v. Dorion, 16 Pick. 468.
^ Chambers v. Robinson, 1 Stra. 691 ; Anon., 2 Mod. 306 ; Saville v. Roberta,
1 Ld. Raym. 874, 881 ; Jones v, Giyin, Oilb. Cas. 185, 201-206, 221 ; Pippet v. Heani,
5 B. & Aid. 634.
* For the law respecting variance between the allegation and the proof, see ante,
vol. i. §§ 63-45. If the prosecution was in a foreign country, a copy or the record is
not indispensably necessary, but other evidence of the facts may be received. Young
V. Gregory, 8 Call, 446.
* Rex V. Commerell, 4 M. & S. 203 ; Rex v. Smith, 1 Burr. 54 ; Rex v. Kettle-
worth, 5 T. R. 33 ; Johnson v. Browning, 6 Mod. 216. See, as to the competency of
grand jurors, ante, vol. L § 252.
(a) Stone v, Stevens, 12 Conn. 219; Ives, 4 Keb. 122; Bixby v. Bnmdige, 2
Morris v, Scott, 21 Wend. (N. Y.) 281; Gray (Mass.), 129.
Hays V. Younglove, 7 B. Mon. (Kv.) 545. In Sweet v. Negus, 80 Mich. 406, the
But it has also been held that if the pros- distinction was drawn that if the lack of
ecQtion is brought in a court which has jurisdiction is not apparent on the face of
no jurisdiction of the crime, the accused the record, but only shown by evidence
cannot have an action against the com- a/m7u2e, an action for malicious prosecution
platnant for malicious prosecution, though may be sustained.
if he has been arrested he may have an (6) Sayles v, Brigg^ 4 Met. (Mass.)
action for Ifdse imprisonment. Fainter v. 421.
452 LAW OP EYIDENCB. [PABT IT.
§ 451. Arrest Where the suit is for causing the plaintiff to
be maliciouslj arrested and detained until he gave bail, it is
sufficient for him to show a detention, without proving that he
put in bail ; for the detention is the principal gravajnen^ and is
in itself prima fade evidence of an arrest,^ though the mere giving
of bail is not.^ But if the declaration is framed upon the fact of
maliciously causing the plaintiff to be held to bail, no evidence of
a previous arrest is necessary.^
§ 452. Termination of suit It must also appear that the prose-
cution ie at an endS If it was a dviJL mt, its termination may be
shown by proof of a rule to discontinue on payment of costs, and
that the costs were taxed and paid, without proof of judgment or
production of the record ; ^ but an order to stay proceedings is
not alone sufficient.^ If it was terminated by a judgment, this
is proved by the record. But where the action is for abusing the
process of law, in order illegally to compel a party to do a collat-
eral thing, such as to give up his property, it is not necessary to
aver and prove that the process improperly employed is at an end,
nor that it was sued out without reasonable or probable cause.^
So, if it was a criminal prosecution^ the like evidence must be given
of its termination. And it must appear that the plaintiff was
acquitted of the charge ; it is not enough that the indictment was
ended by the entry of a noUe prosequi^ though if the party pleaded
not guilty, and the Attorney-General confessed the plea, this would
suffice.® (a) So, if he was acquitted because of a defect in the
1 Bristow 17. Hay woody 1 Stark. 48 ; s. c. 4 Campb. 213 ; WhaUey o. Pepper,
7 C. & P. 606.
s Berry v. Adamson, 6 B. & C. 528 ; 8. c. 2 C. & P. 608.
» Ibid. ; Small t?. Gray, 2 C. & P. 605.
* Arandell v. Tregono, Yelv. 116 ; Hunter v. French, WiUea^ 517 ; Lewis «. Far-
rell, 1 Stnu 114 ; Shock v. McChesney, 2 Yeates, 473, 475.
s Bristow 9. Haywood, 4 Campb. 218 ; French v. Kirk, 1 £^ 80 ; Brook «. Car-
penter, 8 Bing. 297 ; Watkins v. Lee, 6 M. & W. 270.
* Wilkinson «. Howell^ 1 M. & Malk. 495. Nor is an order to sapersede the com-
missioneT sufficient, in a case of bankruptcy. Poynton v. Forster, 8 Campb. 60.
7 Grainger i^. Hill, 4 Bing. N. C. 212 ; 8. o. 3 Scott, 661.
> Goddard v. Smith. 1 Salk. 21 ; s. o. 6 Mod. 261 ; Smith v. Shackelford, 1 Nott
k M'C. 86 ; Fisher i^. Bristow, 1 Doug. 215 ; Moi^gan v, Hughes, 2 T. B. 225.
(a) Bacon «. Towne, 4 Cnsh. (Mass.) licious prosecution. Sayles «. Briggs, 4
217^ Parker v. Farley, 10 Cnsh. (Mass.) Met. (Mass.) 421. Nothins short of an
279. And where the magistrate has author- acquittal is sufficirat, where uxe prosecutor
ity only to bind over or discharge a person has progressed to a trial before a petit
accused, and he discharges him, the dis- Jury. Kirkpatrick v. Kirkpatrick, 89
charge is equivalent to an acquittal, and Penn. St. 288.
will avail as eyidenoe to support an aU^ga- Where one held on a criminal charge
tion of acquittal in a declanttion for ma- was discharged on writ of kabmu corjm^
PART IT.] MALICIOUS PBOSECUTION. 458
indictment, it is sufficient.^ If the party has been arrested and
bound over, on a criminal charge, but the grand jury did not find
a bill against him, proof of this fact is not enough, without also
showing that he has been regularly discharged by order of court ;
for the court may have power to detain him, for good cause, until
a further charge is preferred for the same offence.^ But, in other
cases, the return of iffnaramus on a bill, by the grand jury, has
been deemed sufficient.*
§ 453. No probable oansa. (2.) The plaintiff must also show
that the prosecution was instituted malicixyiuly^ and without prolh
able eau»e ; and both these must concur.^ (a) If it were malicious
and unfounded, but there was probable cause for the prosecution,
this action cannot be maintained.^ The question of malice is for
1 Wickfl V, Fentham, 4 T. R. 247.
s Thomas v, De Graffenreid, 2 Nott & McC. 143. And see Weinberger v. Shelly, 6
T9, & S. 836.
* Morgan «. Haghes, 2 T. R. 225; Anon., Sty. 872; Atwood v. Monger, Sty. 878;
Jones V. Gmn, GUb. Cas. 185, 220.
4 Fanner v. Darling, 4 Bnrr. 1971 ; Stone «. Crocker, 24 Pick. 81, 88 ; Bell v. Gn.
ham, 1 Nott & McC. 278 ; Hall v, Saydam, 6 Barb. S. C. 83. Whether, therefore,
this action lies against a corporation, quaare ; and see McLeUan 9. Bank of Comber^
land, 9 Law Rep. 82. (h)
^ Arbuckle v. Taylor, 8 Dowl. 160 ; Tamer «. Turner, Gow, 20«
this was held not to be a termination of chan^ by the grand jut's not finding
the suit so as to authorize a suit for mali- the bill, that would have shown a legiS
cious prosecution. Merriman v, Morgan, end to the prosecution, does not ueceesari*
7 Or. 68. ly imply that the grand jury's not finding
The termination of the malicious pros- a bill at the term to which the accused is
ecution in fayor of the defendant, who bound over would be an end of the prose-
thereupon sues for malicious prosecution, cation. It raliier implies that the prosecu-
is merely a fact necessary to give him a tion is not ended unless he is discharged
right to sue. It has no tendency to sup- hj reason of the grand jury's fiodinff no
port the allegation of malice, or of lack of bill. See Thomas v. De Graffenreio, 2
probable cause. Stewart v. Sonnebom, 98 Nott & McC. 143."
U. S. 187; Allman v, Abrams, 9 Bush The entry of ''neither party "is not
(Ky.), 738. such a termination as wiU support an ac-
Where the grand jury finds no bill, tion. Hamilburgh «. Shepard, 119 Mass.
but parol evidence shows that it was on 80.
account of the absence of a material wit- (a) Stacy «. Emery, 97 U. S. 642 ;
ness and that the case was not ended, an Anderson v. Coleman, 53 Cal. 188; Turner
action for malicious prosecution will not «. O'Brien, 11 Neb. 108 ; Ritchey «.
lie. Knott i^. Sargent, 125 Mass. 95. Davis, 11 Iowa, 124; Kirkpatrick «.
Morton, J., says: " If the prosecution Kirkpatrick, 89 Penn. St 288.
alleged to be malicious was by complaint (6) It seems settled now that such an
to a magistrate, upon which the plaintiff action will lie. Stevens v. Mid. Co. R R,
was bound over to appear at the superior Co., 10 Exch. 852 ; Green v, London, &c.
court, he must show that he has been dis- Co., 7 C. B. N. R. 290; Henderson v. Mid.
charged by order of that court Until R. R. Co., 24 L. T. K. 8. 881. And see
such discharge the prosecution is not at also Coolter v. Dublin k Belfast R. R. Co.,
an end, but he and his sureties remain lia- Irish L. T. (1875) 209 ; Philadelphia, &c
ble upon his recognizance. The didum of R.R. Co. v.Qui||^ley, 21 How. (U. S.) 202 ;
Mr. Justin Buller, in Morgan «. Hughes, Fenton v Sewing Machine Co., Leg. Int,
2 T. R. 225, that if the accused was dis- April 24, 1874.
464 LAW OP EVIDENCE. [PABT IT,
the jury; and to sustain this averment the charge must be shown
to have been wilfully false.^ In a legal sense, any unlawful act,
done wilfully and purposely to the injury of another, is, as against
that person, malicious.^ (a) And if the immediate act be done
unwillingly and by coercion, as, where the party preferred an
indictment because he was bound over so to do, yet, if he was
himself the cause of the coercion, as, by originally making a mali-
cious charge before the magistrate, this will sustain the averment
of malice.' The proof of malice need not be direct ; it may be
inferred from circumstances, but it is not to be inferred from the
mere fact of the plaintiff's acquittal for want of the prosecutor's
appearance when called ; ^ nor, in the case of civil suit, from the
parties suing out the writ, or neglecting to countermand it, after
payment of the debt.* But it may be inferred by the jury, from
' Cohen v. Morgan, 6 D. & R. 8 ; Johnstone v. Sutton, 1 T. R. 540 ; Jackson «.
Burleigh, 8 Esp. 84 ; Austin v. Debnam, 8 B. & C. 139 ; Burlej v. Bethane, 5 Taunt
580 ; Grant v. Duel, 8 Rob. (La.) 17.
> Commonwealth v. Snelling, 15 Pick. 321, 830 ; Stokley v. Hamidge, 8 C. & P.
11. The law, as to malice, was clearly illustrated by Parke, J., in MitcheU v, Jen-
kins, 7 B. & Ad. 588, 594, in the following terms : *' I have always understood, since
the case of Johnstone v, Sutton, 1 T. R. 510, which was decided long before I was in
the profession, that no point of law was more clearly settled than tha^ in every action
for a malicious prosecution or arrest, the plaintiff must prove what is averred in the
declaration, viz., that the prosecution or arrest was malicious, and without reasonable
or probable cAUse ; if there be reasonable or probable cause, no malice, however dis-
tinctly proved, will make the defendant liable ; but when there is no reasonable or
probable cause, it is for the jury to infer malice from the facts proved. That is a ques-
tion in all cases for their consideration ; and it having in this instance been withdrawn
from them, it is impossible to say, whether they might or might not have come to the
conclusion that the arrest was malicious. It was for them to decide it, and not for the
judge. I can conceive a case, where there are mutual accounts between parties, and
where an arrest for the whole sum claimed by the plaintiff would not be malicious ; for
example, the plaintiff might know that the set-off^ was open to dispute, and that there
was reasonable ground for disputing it. In that case, though it might afterwards
appear that the set-off did exist, the arrest would not be malicious. The term 'malice,'
in this form of action, is not to be considered in the sense of spite or hatred against an
individual, but of mains anirmWt and as denoting that the party is actuates by im-
proper and indirect motives. That would not be the case wnere, there being an un-
settled account, with items on both sides, one of the parties, believing bona fide that
a certain sum was due to him, arrested his debtor for that sum, though it afterwards
appeared that a less sum was due ; nor where a party made such an arrest, acting h<ma
fidt under a wrong notion of the law, and pursuant to legal advice.*' And see Had-
drick v. Heslop, 12 Ad. h El. N. 8. 267.
> Dubois «. Eeates, 4 Jur. 148 ; 8. c. 3 P. & D. 806.
4 Purcell V. Macnamara, 9 £ast, 861 ; s. c. 1 Campb. 199 ; Sykes v. Dunbftr, Id.
202, n.
ft Gibson v. Chaters, 2 B. & P. 129 ; Scheibel v. Fairbain, 1 B. & P. 388 ; Page «.
Wiple, 3 East, 814. Nor from the action being non-prossed or discontinued (Sinclair
(a) Bacon v. Towne, 4 Cush. (Mass.) St 212 ; Lang v. Rodgers, 19 Ala. 821 ;
217 ; Parker «. Farley, 10 Cush. (Mass.) Stevens «. Midland Co. Railway Co., 26
281 ; Parker v. Huntington, 2 Gray Eng. Law & Eq. 410 ; Wheeler v. Nesbttt,
(Mass.), 125; McGum o. Brackett, 38 24 How. (U. S.) 545.
Me. 881 ; Beach v. Wheeler, 24 Penn.
PABT IT.] MAUCI0U8 PROSECUTION. 456
the want of probable cause.^ (a) Malice may also be proved by
evidence of the defendant's conduct and declarations, and his for-
wardness and activity in exposing the plaintiff, by a publication
of the proceedings against him, or by any other publications by
the defendant on the subject of the charge.^ And if the prose-
cution was against the plaintiff jointly with another, evidence of
the defendant's malice against the other party is admissible, as
tending to show his bad motives against both.^
§ 454. Same subject The want of probable cause is a mate-
rial averment ; and, though negative in its form and character, it
must be proved by the plaintiff by some affirmative evidence ; *
unless the defendant dispenses with this proof by pleading singly
the truth of the facts involved in the prosecution.* It is inde-
pendent of malicious motive, and cannot be inferred, as a necessary
consequence, from any degree of malice which may be shown.® (6)
Probable cause for a criminal prosecution is understood to be
such conduct on the part of the accused as may induce the
court to infer that the prosecution was undertaken from public
motives.^ (c) In the case of a private suit, it may consist of such
«. Eldred, 4 Taunt 7) ; unleas coupled with other drcumstances (Bristow «. Hey-
wood, 1 Stark. 48; Nicholson v, CoghiU, 4 B. & C. 21 ; 6 D. & R. 12.)
1 Murray v. Long, 1 Wend. 440 ; Crozer v. Pilling, 4 B. & C. 26 ; Mitchell v.
Jenkins, 5 B. & Ad. 588 ; 1 Nev. & M. 301 ; Turner v. Turner, 6ow, 20 ; Merriam v,
Mitchell, 1 Shepl. 439 ; Hall v. Suydam, 6 Barb. S. C. 83. Grasaa ignoratUia has
been held to amount to malice. Brookes v. Warwick, 2 Stark. 389.
« Chambers v, Robinson, 1 Stra. 691. 8 Caddy v. Barlow, 1 M. & Ry. 275.
* ArUe^ vol. i § 78 ; Purcell r. Macnamara, 1 Campb. 199 ; 9 East, 861 ; McCor«
mick V. Sisson, 7 Co wen, 715 ; Murray v. Long, 1 Wend. 140 ; Gorton v. De AngeUs,
6 Wend. 418 ; Incledon v, Barry, 1 Campb. 203, n. j Taylpr v. Williams, 2 B. & Ad.
845 ; 6 Bing. 183. Where the declaration alleged a prosecution of the plaintiff for
perjury in a certain cause, and the indictment was set rorth containing two several as-
signments of perjury, it was held that the declaration was supported by proof of malice
and the want of probable cause as to one only of the a&signments. EUis v. Abrahams,
10 Jur. 593.
* Morris V. Corson, 7 Cowen, 281. See also Sterling v, Adams, 3 Day, 411.
* 1 Campb. 206, n. a ; Sykes v. Dunbar, Id. 502, n. a ; Horn v. Boon, 8
Strobh. 307 ; Hall v. Suydam, 6 Barb. S. C. 83.
T Ulmer v. Leland, 1 Greenl. 135. Or, such a suspicion as would induce a reason-
able man to commence a prosecution. Cabaness v. Martin, 3 Dev. 454. Or, a reason-
(a) Malice is not a necessary inference termination of the prosecution in favor of
for want of probable cause, but it is for the accused. Allman v. Abrams, 9 Budi
the jury to decide, upon all the circum- (Ky.\ 738.
stances of the case, whether the want of (6) Bacon ». Towns, 4 Cush. (Mass.)
probable cause gives rise to an inference of 217 ; Parker r. Farley, 10 Cush. (Mass.)
malice. Herschi v. Mettelman, 7 III App. 281 ; Heslop v. Chapman, 22 Eng. Law
112; Carson v. Edgeworth, 43 Mich. 241 ; & Eq. 296 ; Kidder v. Parkhuist, 3 Allen
Kingsbury «. Ganlen, 45 N. Y. Super. (Mass.), 393.
Ct. 224. (c) The terms "reasonable cause" and
Malice cannot be inferred fh>m the ''probable cause '* are synonymous. Sta-
456 LAW OP EVIDENGB. [PABT IV.
facts and circumBtances as lead to the inference that the party
was actuated hj an honest and reasonable conviction of the jus-
tice of the suit. And, in either case, it must appear that the
facts, or so much of them as was sufficient to induce the belief,
were communicated to the defendant before he commenced the
prosecution or suit.^ (a) In revenue and admiralty cases, probable
cause for a seizure or a capture is made out when the officer shows
such reasons for the act as were sufficient to warrant a prudent,
intelligent, and cautious man in drawing the same conclusion.'
Thus, where the commander of a national vessel was prosecuted
for the capture of a vessel on the coast of Africa, on suspicion of
her being a slaver, proof that he ^^ acted with intelligent and hon-
orable discretion," in arresting and sending her to this coimtiy
for adjudication, was held sufficient evidence of probable cause.^
The question of probable cause is composed of law and fact ; it
being the province of the jury to determine whether the circum-
able ^and of snapicion, supported b^ cireumstaaoes sufficient to wamnt a cantiooa
man in believing that the paity is guilty of the offence. Mnnns v, Dupont, 3 Wash.
C. C. 81 ; Foshav v. Ferguson, 2 Denio, 617.
1 Delegal v. Highley, 8 Bing. N. C. 950 ; Seibert v. Price, 5 Watts & Seig. 438 ;
Foshay v. Ferguson, 2 Denio, 617 ; Bacon v. Towne, 4 Cush. 288. Facts not known
to defendant at the time of his procurement of plaintiff's arrest are not competent to
show presence or absence of probable cause. Cecil i^. Clarke, 17 Md. 508.
« Shattuck V. Maley, 1 Wash. C. C. 247, 249.
' Lovett V, Bispham, 2 Anu Law Joum. N. 8. 97» 108.
cey V, Emery, 97 U. S. 642. But it as tending to show the defendant's lack of
-seems, the word 'Must," or ''proper," is probable cause in bringing the prosecution,
not equivalent Van De Weile v. Calla- and therefore it should be shown that the
nan, 7 Daly (N. Y.), 74. defendant knew of such innocence or such
Probable cause is such a state of facts, facts when he brouebt the charge. King
in the mind of the prosecutor, as would v, Colvin, 11 R. I. 582. So, dream-
lead a man of ordinary caution and pru- stances of suspicion which would justify
dence to believe, or entertain an honest the charge, must be shown to hare been
and strong suspicion, that the person ar- known to the defendant. Angelo v. Fanl,
rested is guilty. By Shaw, C. J., in Bacon 85 ilL 106. So, it has been held Uiat
V. Towne, 4 Cush. (Mass.) 288 ; HcGum facts not known to defendant at the time
V, Brackett, 83 Me. 831. The plaintiff of his procurement of plaintiff's airest are
must show that the conduct of the defend- not competent to show presence or absence
ant was such as to lead to the inference of probable cause. Cecil v. Claiice, 17
that the prosecution was not undertaken Md. 508.
from public purposes. Cecil v, Clarke, 17 The plaintiff in making out his prima
Md. 608. Tne plaintiff may give e^dence facie case, must adduce some evidence of
of his good character and reputation, and lack of probable cause. Scott v. Shelor,
of the defendant's knowledge thereof at 28 Gratt. (Va.) 891 ; Lavender v. Hud-
the time of the prosecution, as tending to gens, 82 Ark. 768. And if evidence in
show want of probable cause. Blizzawl v, rebuttal is given by the defendant^ the
Hays, 46 Ind. 166. plaintiff must make out the lack of rea-
{a) Proof of the plaintiff's innocence sonable cause by a preponderance of en-
of the charge on which the prosecution dence. Palmer v. Richardson, 70 III
was brought, and any facts which tend to 544 ; Calef v. Thomas, 81 111. 478.
show such innocence, are only admissible
PABT IV.] MALICIOUS PBOSECUTION. 457
stances alleged are true or not, and of the court to determine
whether thej amount to probable cause.^ (a) Regularlj, the facts
1 Johnstone v. Sntton, 1 T. R. 545 ; 8. c. 1 Bro. P. C. 76 ; Blatchfoid v, Dod, 2
B. & Ad. 184 ; Ulmer v. Leland, 1 Greenl. 135 ; Stone v. Crocker, 24 Pick. 81 ; Pan-
ton V. Williams, 1 O. & D. 504 ; 2 Ad. & El. N. 8. 169 ; Watson v. Whitmore, 8 Jar.
964 ; 14 Law Joum. n. 8. 41 ; Hall v. Suydam, aupra; Horn v. Boon, supra; New-
ell V, Downs, 8 Blackf. 528 ; Sims v. McLendon, 8 Strobh. 557.
(a) Taylor v. Godfrey, 86 Me. 525 ; would ordinarily look farther, and inquire
Bulkley v. Smith, 2 Duer <N. Y.), 261 ; for testimony. Bat this he might fairly
Bulkley v, Keteltas, 2 Selden (N. Y.X beliere existed short of being told so by
884 ; Carpenter v. Shelden, 5 Sandf. the witnesses themselves. It is not often
(N. Y.) 77 ; Jacks v, Stimpeon, 18 111. the case, perhaps, that the public proee-
701 ; Ash V. Marlow, 20 Ohio, 119 ; Kid- cuting officers, oefore making complaint,
der V. Parkhurst, 8 Allen (Mass.), 898. have opportunity to converse personally
Judge Redfield, in his edition of this book, with tne witnesses. But they should
give8 the following valuable note on this know something more than a mere vague
point: " Having had occasion to consider ^eneial report of guilt. They should have
the subject of malicious prosecution very information, with such directness and cer*
thorougnly in the case or Barron v. Ma- tainty as to gain credit with prudent men,
son, reported in 81 Vt. 189, we take the of the existence and susceptibility of proof
liberty of inserting here a laige part of the of such facts as show guilt ; or which the
opinion in that case, as embodying our defendant, upon proper advice, supposed
views of the present law on this subject. wonld constitute guilt. This is the fidr
'* The books upon this ]Joint all concur result of the decid^ cases, and of common
in sa3ring that the plaintiff must prove experience upon the subject,
(and of course the defendant may dis- ** Now, in the class of cases referred to,
prove) both want of probable cause and where the guilt or innocence of tiie act
malice. And it is the duty of the court depends upon the motive, the conduct
to instruct the jury fully and correctly and declarations of the party, as to other
npon the whole case, as the testimony similar transactions about the same time,
tends to show the facts. are always admissible to prove actual
'Mf it be admitted that testimony that f^uilt. Ae, for instance, in cases of pass-
tlie plaintiff had been guilty of other simi- ing, or having in possession with intent
lar offences, or that he was reputed guilty, to pass, counterfeit coin or bills, it is fa-
and that this had come to the knowledge miliar law that the prosecutor may give
of the defendant before he instituted the in evidence other simuar offences commit-
prosecution, has no legal tendency to show ted by the accused about the same time,
either probable cause or want of malice in for the purnose of showing his intent in
ordinary cases, such as larceny, it must the particular transaction. So idso in
also be admitted, we think, that in that cases of embeszlement, and some other
class of offences where the gist of the similar offences. And this rule would no
crime consists in the bad purpose with doubt extend to the proof of the very
which an act otherwise innocent is done, facts which the court in this case told
this kind of testimony is admissible, even the jury had no other effect but to miti-
upon the question of actual ffuilt, and gate damages. . . .
much more upon that of probable cause. ' * We should infer that the court below
For probable cause is not to be confounded did not reffard the question of malice as
with actual guilt. Probable cause is only directly and independently involved in the
such a state of farts and circumstances as case. From what of the charge is given,
would lead a careful and conscientious the question of malice seems to have been
man to believe that the plaintiff was treated as a mere inference from the proof
ffuilty. This can only require that the of the want of probable cause. And so it
defendant, upon prudent and careful in- is, prima facie. But nevertheless, it may
quiry, shall find the reputed or declared be disproved by a great variety of proof of
existence of such facts as indicate guilt, a much lower grade than that vniich is
with reasonable certainty. Mere general requisite to show probable cause. For this
reputation will not alone constitute prob- purpose common repute, not only as to
able cause. For a prudent man, in msti- general bad character, but also as to the
tuting an important criminal prosecution, particular offence, may, we incline to think,
458 LAW OP EVIDENCE. [PABT IT.
material to this question are first to be found by the jury, and
the judge is then to decide, as a point of law, whether the facts, so
be sbown. For this latter is nothing lets creet penon to act upon it, or it must fiul
than the declaration of third parties that as a justification for the proceeding, npon
the plaintiff was guilty of the particular general grounds.
offence, which is declared admissible in " But upon the question of malice the
the case of French v. Smith, 4 Vt S6S. law is more tender towaitls the inexperience
It is undeniable that the general belief of or the infirmities or the idiosyncrasies of
one's guilt, in regard to a particular offence, parties. Malice is judged of with refer-
will influence to a certain extent the con- ence to the party; and whatever fairly
duct of the roost prudent prosecutor in re- tends to show tbit he acted with good
gard to instituting proceedings. How then faith, and without malice, must be re-
can it be said that it has no legitimate ceived.
bearing upon the Question of malice ? We ** There is no necessary or even natund
thiuk it impossible to so hold, without connection between probable cause and the
violating the most obvious principles of want of malice. One may, and often does,
human experience and human conduct. 1 act with malice, when there is probable
Phil. Ev. 115 ; Rodriguez v, Tadmire, 2 cause, or may act without malice whero
Esp. Cases, 720. And general bad repu- there is no probable cause shown, but in
tation is often a direct element in the proof neither of these cases is he liable to this
of the respondent's guilt, when he offers action. Want of probable cause and mal*
proof of good character in exculpation. ice must concur to make the par^ liable.
''This testimony was admittcxi to go to Turner v. Ambler, 10 Q. B. 252, Denman,
the jury upon the quration of damages. C. J.
But its chief, if not its only legitimate " It is true, the want of probable cause
bearing upon that question, must have de- need not be shown to extend to all the par-
pended ui¥>n its tendency to rebut the in- ticulars charged. Nor is it any defence
ference of malice, and so far as it had any that there was probable cause for part of
such tendency, it was, for that very rea- the prosecution. Ellis v. Abrahams, 8
son, competent evidence upon the main Queen's Bench, 709 ; Reed v. Taylor, 4
i&sue in the case. It is said, indeed, in Taunt 615. But the importance of tiie
Hall V. Suydam, 6 Barb. 83, that good questions in this case will justify a mors
faith merely is not enough to protect the extended examination of the cases upon
party from liability for malicious prosecu- the subject, and a more minute discussion
tion in regai-d to a criminal chai^ge. But of the principles involved,
from the whole case, it is obvious that this " The history of the common law in re-
is said wholly in regard to the proof of gard to this action is well stated in the
probable cause. For it is found in almost elaborate note of Messrs. Hare & Wallace
every book upon the subject, that if the de- to Mnnns v. Dupont, 2 Wash. C. C. SI-
fendant, however causelessly, did really 34 ; 1 Am. Lead. Cases, 200. The law is-
act in good faith and without malice in defined in Fanner v. Darling, 4 Burrows,
preferring the charge, he cannot be made 1971, 1974, where all the judf^es agree
liable for a malicious prosecution. The that, to maintain the action, malice (eitiier
question of malice is always one of intent, express or implied) and the want of prob-
and open to the jury in this class of cases, able cause must concur. The case of
But it is not so m actions of slander. The Johnstone v, Sutton, 1 Term, 610, 8. c 1
law then implies mslice, and will not allow Term, 493, 1 Brown's P. C. 76, is also a
it to be rebutted by general evidence, but most important and satisfactory case upon
only by specific proof, which the law de- this subject, maintaining the general view
clares a justification or excuse, as the truth above stated.
of the words, or that they were six>ken "And it seems to be admitted in all
confidentially and upon a justifiable occa- the cases where the question has arisen,
sion. So, too, in regard to probable cause, that proof of the want of probable cause
the facts being admitted or proved with- is not sufficient alone to maintain the ac-
out controversv, it becomes a mere qnes- tion, provided the defendant can satisfy
tion of law to be determined by the court the jury that in his conduct he acted in
And for this purpose the same proof is good faith, and without malice, which is
required in all cases. It is not enough to much the same thing as applied to this
show that the case ap|ieared sufficient to subject. For althon^ the word 'malice,*
this particular party, out it must be suffi- in popular langiiass, is often used to indi-
cient to induce a sober, sensible, and dis- cate anger or vinaictiveneB8» in the law it
PART IV.] MAUGIOUS PROSECUTION. 459
found, establish probable cause or not.^ (a) But if the matter of
fact and matter of law, of which the probable cause consists, are
1 Tamer v. Ambler, 10 Ad. & £1. N. 8. 252.
is held to import nothing more than had gard common repute, both of the plaintiff's
&ith, and, as applied to the subject of ma- general bad character, and of nis being
licious prosecution, the want of sincere be- guilty of the particular offence, good evi-
Itef of tne plaintiff's guilt of the crime for dence of probable cause. Upon principle
which the prosecution was instituted. it should so be held. But in regard to
" The difference, then, between proof common report of guilt of the particular
of probable cause and of malice' consists offence, we are not prepared to say the de-
chiefly in this: that probable cause has cisions justify us in regarding it as evi-
reference to the common standard of human dence of probable cause,
judgment and conduct, and malice regards ** General reputation of guilt, in regard
the mind and judgment of the defendant, to the ])articular offence, may be no suf-
in the particular act charged, as a malici- ficient ground, in itself alone, for institut-
oos prosecution. ing proceedings against one in regard to
" If the defendant can show that he had criminal offences. But in doubtful cases,
} probable cause for his conduct, that is, that where the testimony is conflicting, and es-
rora such information as would induce a pecially where it is expected to oe drawn
reasonable and prudent man to believe tlie from those in the conhdence or under the
plaintiff guilty of a crime, he instituted influence of the party accused, and where
the prosecution, he is not liable, whatever conseonently there is'difficulty of learning
may nnve been his own personal malice for the full extent of testimony which can be
setting it on foot. Probable cause, in this obtained, until the witnesses are put upon
sense, is a defence to the action, without giving testimony^ and where, of course, a
regard to motive. To this point he must preliminaiy inquiry is often justified partly
show that he was told or knew of the ex- upon suspicion, and as an experiment, it
istence of specific facts, which either would is no doubt undeniable that the general be-
constitute crime, or which upon competent lief in the guilt of the accused in regaid
advice he supposed would constitute crime, to the particular offence will influence al-
French v. Smith, supra. most any one in deciding upon the pro-
" But if the party fail in showing such priety of instituting the prosecution. It
ground of action as would have induced is therefore, upon principle, I think, ad-
prudent, and careful men to have believed missible as part of tne ground constituting
in the plaintiff's guilt, and to have insti- probable cause, and is, as we have before
tnted the prosecution, he may neverthe- said, in point of character eouivolent to
less, if he choose, show that in fact he did hearsay, or the declarations o\ third per-
act upon what he at the time regarded as sons in regard to the guilt of the plaintiff,
good cause, either from common report or which seems to be admitted everywhere in
remote circumstances, such as excited sus- this class of cases. French v. Smith, supra;
picions in his mind to the extent of creat- Bacon v. Towne, 6 Cush. 217. In this last
mg belief of guilt, although short of caseanewtrial was awarded, among others,
probable cause. upon the ground that testimony was re-
" If this were not so, then want of jected at the trial, that some third party
probable cause and malice would be equiv- informed a fourth {larty of his knowledge
alent terms, which the cases show they of a fact tending to show the plaintiff
are not. The only distinction which can guilty of the offence for which he was pro-
1)0 supposed to exist in regard to them is, secuted, and requested this to be cominuni-
thnt one is general and the other is partic- cated to the defendant, which was done be-
ular ; one has reference to the common fore the prosecution was instituted. This
standard, and the other to the mind and seems to us quite as remote, and rather
motive of the defendant. But how can less reliable, as a ground of instituting
that mind be reached without receiving criminal proceeding than that of common
proof of every fact which existed, and reputation and belief.
which may be presumed to have influenced " But notwithstanding the satisfactory
the conduct of the defendant f If the sub- basis upon which the proposition seems to
ject were res irUegra, I should certainly re- rest, that this evidence of common reputa-
(a) Emerson «. Skaggs, 52 CaL 246 ; Johns v. Marsh, 62 Md. 828 ; Speck v.
Jndson, 68 Me. 207.
460 LAW OP EVIDENCE. [PABT IV,
intimatelj blended together, the judge will be warranted in leav-
ing the question to the jury.^ Thus, where the question was
1 McDonald v. Booke, 2 Bing. N. C. 217; 8. a 2 Soott, 869; €mie, toL L { 49.
And aee Taylor v. Willana, 2 B. i Ad. 45.
tion, in regard to the particular offence, is, doubt that to this extent it is admianble
upon geneni principles, admissible, among upon the strictest principles, and for the
other thin^ to show probable cause eren, pnrijose of showing probable cause. It is
and especially to rebut the inference of precisely that kind of proof which the sc-
malice m the defendant, the decisions do cused might show in his own defence, and
not show that such proof has been received its absence must weijsh more or leas against
or offered. This may have resulted from him in regard to the very offence for which
two reasons: that the same kind t>f eri- the prosecution was instituted. To ssy
dence is obtainable by showing the general then that a prosecutor, in calculating the
bad reputation of the plaintiff at the time reasonable and probable grounds of insti-
of the prosecution ; and also, that we do tuting a prosecution for crime, is not to
not always distinguish between the class of take into account one of the very elements
proof which is admissible in this action, of the defence, and, in one event, of the
when the issue is in regard to suspicion of prosecution also, is simply absurd. It is a
guilt and probable cause to beheve one proposition admitting of no question whst-
guilty, and proof of the very fact of guilt, ever, and which could never have been
The general rule undoubtedly is, that gen- made a question, had its proper application
eral reputation of guilt in re^^ard to a par- to the subject, in the view just alluded to^
tioulor offence is not admissible to prove been fully appreciated. And the decided
the fact of guilt, end never, unless it be cases, notwithstanding some ezceptionsl
upon the question of damages in r^^ard to ones, fully sustain this view. In the eUbo-
reputation in ordinary actions. Hence it rate case of Bacon v. Towne, 4 Cnsh. 217,
is natural to throw this case of actions for this subject is discussed by Chief Justice
malicious prosecution into the general Shaw, and the same conclusion arrived at
class. These two grounds may account for which we here adopt, citing Bodriqun 9,
this kind of proof not having been offered. Tadmire, Esp. 721 ; Wood v. United States,
Pnident counsel do not often desire to of- 6 Pet. 842, 866 ; 2 Greenl. £v. § 458.
fer testimony in one form when its admis- That it is evidence to rebut malice is be-
sibility is questionable, if there is a safe vond all doubt, if the party can show thst
Ground upon which it is clearly admissible, he believed it.
t may not, therefore, be important to de- "That the English courts regard the
cide this point here, since it is really in- question of malice as a distinct question,
volved in the next point. But if it were and in issue in every case of this kind
necessary, we must certainly hold the proof tried upon the general issue, or which may
admissible. alwaya be put in issue by the defendsni
** This brings us to the question of the the cases aoundantly prove. In Williams
admissibility of evidence of the general rep- v. Taylor, 6 Bing. 188, Tindal, C J., said:
ntation of uie plaintiff, at the time of in- ' What shsll amount to such a combination
stituting the prosecution, in r^^ard to of malice and want of probable cause is
whether he would be easily indu^ into so much matter of fsct in each individual
the commission of any similar offence, for case as to render it impossible to lay down
this is the view in which character has any any general rule upon the snl^ect ; but
proper bearing in regard to crime. If the there ought to be enough to satisfy a rea-
offence is one of outrage and violence, sonable man that the accuser had no ground
whether the accused is commonly reputed for proceediiur but his own desire to iigiirs
a peaceable, quiet, and orderly behaved the accused. In MitcheU v. Jenkins, 5
citizen, or a noisy, boisterous, and quarrel- B. & Ad. 588, Denman, C J., said : * It is
some one. And if, on the other hand, the still incumbent upon the plaintiff to allege
offence is one involving fraud, collusion, and prove malice, as an tndqxndaU fact
dishonesty, and secret practices, whether They [the jury], however, are to decide, as
the man is of a fair, frank, honest, and matter of fact, whether there be malice or
outspoken character, or t^e contrary, not.' Parke, J., said the defendsnt is ex-
Some of the cases go to exclude all evi- cused, if * acting bona Jtde maAer awnmff
dence of this kind. Newsam v, Carr, 2 notion of the law, and pursuant to legal
Stark. Cams, 69. advice.' Patterson, J., said, 'and the jury
'* But it seems to us there can be no [are to decide] that there is malioe.' And
PABT lY.] MAUaOUS PROSECUTION. 461
whether the defendant believed that there was reasonable and
probable cause for preferring the indictment, and the judge left
this question to the jury, who found that the defendant preferred
the indictment from improper motives, and the judge thereupon
held that tliere was evidence of malice, it was adjudged that this
direction was right.^ If the judge, upon the plaintiff's evidence,
is of opinion that there was not probable cause for the prosecu-
tion, but, upon proof of an additional fact by the defendant, by a
witness who is not impeached or contradicted, he is of opinion
that there was probable cause, he is not bound to submit the evi-
dence to the jury, but may well nonsuit the plaintiff.' But where
the prosecution was founded on a charge of menaces of the prose-
cutor's life, it is not for the judge alone to determine whether the
menaces justified the charge, but it is for the jury first to deter-
mine whether the defendant believed them; for his disbelief is
1 Wren v, Heslop, 12 Jnr. 600.
* Davis 9. Hardy, 6 B. & C. 225. In considering whether there was probable cause
for an arrest, the ju^ will not regard any expressions of general malice on the part
of the defendant. Whallej v. Pepper, 7 0. & P. 506.
in Mitchell v. Williams, 11 M. & W. 205, matters, or in the changes of the moon, or
Parke, B., said that, in the absence of the flight of birds, in regard to secret facta
reasonable or probable cause, 'that may and the hidden purposes of others, or in
Uirow the burden of proof on the defendant mesmerism, or spiritualism, and by some
that ke believed there wcta,* of these means may sincerely beUeve he
*' The text- writers lay it down as settled has detected the guilt of the plaintiff, and
practice upon this point, that the question the mode of pi-ovinff it, ana in all good
of malice in the df'fendant's mind in doing faith may have acted upon this fallacy in
the act is a distinct issue in the action ; instituting the prosecution. Here is cer-
and whatever tends to prove or disprove it tainly no probable caiiae for the prosecution.
is competent to be received. 2 Gi-eenl. But can the party be found guilty of insti-
£v. § 453. tuting the prosecution from motives of
" Under the foregoing rule of requiring malice ? Certainly not. if words are to
the distinct finding of the juiy upon the have their ordinary signification,
question of malice, and granting a new "Any defence in actions of this kind,
trial, because this question was withdrawn based upon the want of common compre-
from the consideration of the jury, when bension and si^acity in the party ofiering
there was confessedly no just cause shown it, will not be likely often to occur in court.
fo? instituting the prosecution, as was done Men do not like to stultify themselves, and
in Mitchell v, Jenkins, tupra, it seems to for a long time in the history of the com-
OS impossible to maintain that good faith mon law were not allowed to do so, even
in the defendant is not a sufficient justifica- to avoid contracts made in a state of men-
tion. It is not always equivalent to prob- tal alienation. But the rule is now other-
able cause ; one may act in good futh, and wIm. And although insanity ordinarily is
not from any reasonable or probable cause, no defence aoainst actions for torts, it must
Bat how oue can be said to act from malice be, we think, in regard to torts of this
in the lowest sense of the term, and at the class, where the liability consists in the
nme time act in good faith, is certainly not motive of the act. If this view be correct,
easy of comprehension. it is competent for the ^rty to show facts
" To illustrate the point more fully, which operated upon him, in order to es-
One may have an idiosyncrasy or a delu- tablish good faitn, even although they
aboy whereby he believes in the advice of would not have produced the same effect
his minister or schoolmaster upon legal upon all minds, or the migority even."
464 LAW OP EVIDENCE. [PABT IV.
will be given for the ordinary taxable costs, if they were recov-
ered in that action ; but if there was a malicious arrest, or the
suit was malicious and without probable cause, the extraordinary
costs, as between attorney and client, as well as all other expenses
necessarily incurred in defence, are to be taken into the estimate
of damages.^ Whatever was admissible in evidence to defeat the
original malicious suit is admissible for the plaintiff in this action
to maintain his right to recover for the injury sustained.^ (a)
§ 457. Defences. The defence of this action usually consists in
disproving the charge of malice, or in showing the existence of
probable cause for the prosecution. And, in proof of probable
cause for a criminal prosecution, it seems that the testimony of
the defendant himself, to facts peculiarly wittiin his own knowl-
edge, given upon the trial, diverso intuitu^ is admissible in the
action against him for causing that prosecution.^ But the testi-
mony of other witnesses given on that occasion cannot be proved
but by the witnesses themselves, or, if they are dead, by the usual
secondary evidence.* (J) Probable cause may also be proved by
evidence that the acquittal of the plaintiff, in the suit or prosecu-
tion against him, was the result of dQliberation by the jury, the
testimony having been suflScient to induce them to pause ; * or,
that he had been convicted of the offence before a justice of the
1 Sandback v. Thomas, 1 Staxk. 806; Gould v. Barratt, 2 M. & Kob. 171. And see
Doe V. Davis, 1 Esp. 358; Nowell v. Boake, 7 B. & C. 404. In Sinclair it. Eldred, 4
Taunt. 7, it was decided that the extra costs of defence could not be recovered, unless
there had been a malicious arrest of the person; and Best, C. J., in Webber v. Nicho-
las, Kv. & M. 417, reluctantly felt himself bound by this decision; but said he thought
Lord Ellenborough's opinion, in Sandback 9. Thomas, the correct one.
s Hadden v. Mills, 4 C. & P. 486.
* See anUf vol. i. § 852; Bull. N. P. 14. Or, the eyidence of his wife. Johnson
V, Browning, 6 Mod. 216. And see Burlingame v, Burlingame, 8 Cowen, 141; Jackson
V, Bull, 2 M. & Rob. 176; Scott «. Wilson, Cooke, 815; Moodey v. Pender, 2 Hayw.
29; Guerrant v. Tinder, Gilmer, 86; Watt v. Greenlee, 2 Murphy, 246.
4 Burt V. Place, 4 Wend. 691.
* Smith V. Macdonald, 8 Esp. 7; Grant v. Duel, 8 Bob. (La.) 17.
ft
(a) Damages for maliciondy suing maj Whipple v. Fuller, 11 Conn. 681. Re-
be recovered, notwithstanding a bond is oovery of damages in an action for false
given to pay all damages arising out of it; imprisonment is no bar to an action for
and these will include injury to business malicious prosecution. Guest v, Warren,
credit and reputation, counsel fees, and 28 L. J. Ex. 121. Punitiye damages may
expenses incident to the defence. Law- be given when there is proof of express
rence v. Hagerman, 56 lU. 68. The action malice. Cooper v. Utterback, 87 Md. 282;
may be maintained though the defendant anUt § 275.
was dismissed with costs, and neither the (6) But see eonira. Bacon v, Towne, i
person nor property of the plaintiff dis- Cush. (Mass.) 217, where it is held that
tnrbed. Marbourg v. Smith, 11 Kan. what the witnesses said may be proved by
564; Classen v. Staple, 42 Vt 209; Pang- the magiBtFate.
bom V, Ball, 1 Wend. (N. T.) 845;
PABT lY.] MALiaOUS PBOSBCUTION. 465
peace, who had jurisdiction of the case, though he was afterwards
acquitted on an appeal from the sentence.^ (a) If the original
suit was for the recovery of money claimed as a debt, and the
defendant, submitting to the demand, obtains a suppression of
the process by the payment of part of the sum demanded, this,
under ordinary circumstances, is a conclusive admission of the
existence of a probable cause for the suit.^
§ 458. diaraotar. Ordinarily, the character of the plaintiff is
not in issue in this action. But in one case, where the charge
against him was for larceny, the defendant was allowed, in addi*
tion to the circumstances of suspicion, which were sufiBcient to
justify his taking the plaintiff into custody, to prove tliat he was
a man of notoriously bad character.* (6) Circumstances of sus-
picion are also admissible in evidence, in mitigation of damages.^
1 Whitney v. Pockham, 15 Biass. 248; Griffis v. Sellers, 2 Dev. k Bat. 492; Com-
monwealth V, Davis, 11 Pick. 433, 438. Such conviction is conclusive evidence of
Srobable cause, unless it was obtained chiefly or wholly by the false testimony of the
efendant Withani v. Gowan, 2 Shepl. 362; Payson v. Caswell, 9 Shepl. 212.
* Savage v. Brewer, 16 Pick. 453.
s Kodrigues v. Tadmire, 2 Esp. 721. And see 12 Bep. 92; 2 Inst. 51, 52; 2 Phil.
Evid. 258. In Newsam v, Carr, 2 Stark. 69, upon the question being put to one of
the witnesses, whether he had not searched the plaintiff's house on a former occasion,
and whether he was not a person of suspicious character, it was objected to ; but it is
said, that "Wood, B., OTerruled the objection ;" though the observations attributed
to him by the reporter seem to show that in his opinion the question was improper.
« Hitchcock V. North, 5 Rob. (La. ) 328.
(a) Ulmer «. Leland, 1 Greenl. (Me.) different from that for which the arrest
185; Reynolds v. Kennedy, 1 Wils. 232. was made, is inadmissible. Patterson v.
As to the prosecution and acquittal before Garlock, 89 Mich. 447; Sutton v. McCon-
a magistrate who has no jurisdiction, see nell, 45 Wis. 269; TUlotson v. Warner, 3
ante, § 449. Gray (Mass.), 574. So, evidence of the
A verdict of guilty in a criminal prose- plaintiff's bad reputation, offered to show
cution, founded upon correct legal instruc- probable cause for an arrest. Eschbach v,
tions, is conclusive evidence of probable Hurtt, 47 Md. 61. But when the general
cause in a subsequent action for malicious import in the community was that the plain-
prosecution, although such verdict was set tin had committed the crime, evidence
aside for newly discovered evidence, and a of this report, if ii toas known to the cU'
-nolle prosequi finally entered. Parker v, fendarU when be preferred the charge,
Farley, 10 Cush. (Mass.) 279; Parker v. is admissible on the question of probable
Huntington, 2 Gray (Mass.), 125. cause. PuUen v. Olidden, 68 Me. 559. It
(b) Bacon v. Towne, 4 Cush. 240; has also been held, however, that it is not
Martin v. Hardesty, 27 Ala. 458. In competent for the defendant, for the pur-
Blizzard V. Hays, 46 Ind. 166, evidence of pose of proving probable cause, to snow
the plaintiff's good character, and that it that the accused (i. «. , the plaintiff in the
was Known to the defendant, was admitted action for malicious prosecution) was gen-
on the question of probable cause. Cf. erally suspected, or generally believed
Palmer V. Richardson, 70 III. 544; Israel v. guilty, of the crime charged. Brainerd v.
Brooks, 23 IlL 575; Wade v. Walden, Id. Brackett, 33 Me. 580. The belief of the
425. In Bays v. Herring, 51 Iowa, 286, it defendant and the neighbors generally,
was doubted whether evidence of charac- that the plaintiff had no title to the
ter was admissible. Evidence of the com- property for the taking of which he was
mission by the plaintiff of other crimes, arrested, rebuts the inference of malice,
YOL. II. 80
466 LAW OP EVIDENCE. [PABT IV.
§ 459. AdTloe of ooqiimL How far the advice of eoumel may
go to establish the fact of probable cause for the prosecution, is
a point upon which there has been some diversity of opinion. It
is agreed, that if a full and correct statement of the case has
been submitted to legal counsel, the advice thereupon given fur-
nishes sufficient probable cause for proceeding accordingly.^ (a)
But whether the party's omission to state to his counsel a fact, well
known, but honestly supposed not to be material, or his omission,
through ignorance, to state a material fact which actually existed,
will render the advice of counsel unavailable to him as evidence of
probable cause, does not appear to have been expressly decided.^
The rule, however, as recognized in a recent American case, seems
broad enough to protect any party acting in good faith and with-
out gross negligence. For it is laid down, that if the party ^^did
not withhold any information from his counsel, with the intent to
procure an opinion that might operate to shelter and protect him
against a suit, but, on the contrary, if he, being doubtful of his
legal rights, consulted learned counsel with a view to ascertain
them, and afterwards pursued the course pointed out by his legal
adviser, he is not liable to this action, notwithstanding his counsel
may have mistaken the law." ^
1 Hewlett 9. Cnicbley, 5 Taunt 277. And see Snow v. AUen, 1 Stark. 502 ; Ba-
yenga v. Mcintosh, 2 B. & C. 698.
* In Thompson v. Mussey, 8 Greenl. 805, 810, the defendant had prosecuted the
plaintiff for miscondnct as an assessor, in not giving public notice, %n the toarrant
caUing a town meetiiu^, of the time and place of tne meeting of the assessors, to receive
evidence of the qualincations of voters whose names were not on the public list. The
county attorney had advised the defendant that the notice was required by law to be in-
serted in the warrant ; but in this case it was contained in a separate paper, posted up by
the side of the warrant ; but this fact, though known to the defendant, he did not state
to the grand jury. And the court seemed to think, that if this omission had not been
intentional and fraudulent, the opinion of the county attorney would have furnished
probable cause for the prosecution.
* Stone V, Swift, 4 Pick. 898. In this case, however, no question was made
though the belief was based upon an error which his advice was given. Cooper v.
in the law. Cecil v. CUrke, 17 Md. 508. Utterback, 87 Md. 282.
The declarations of one who assisted the If the advice of counsel was gi^^
plaintiff in the taking, made at the tak- maliciously and not in good faith (Sher-
mg, and tending to persuade defendant bume v. Rodman, 51 Wis. 474 ; Hamilton
that plaintiff acted without rig^t, are v. Smith, 89 Mich. 222) ; or if he is inter-
competent evidence. lb, ested in the sul]j^<^™A^tef o^ ^^^ ^^ ^'
(a) Smith v. Davis, 8 Mont. 109 ; prosecution (White v. Carr, 71 Me. 555) ;
Wicker v. Hotchkiss, 62 111. 107 ; Walter his advice is no defence. If the defendant
V, Sample, 25 Penn. St. 275 ; Laird v, tries to consult his attomev before causing
Davis, 17 Ala. 27. And where counsel is an arrest, and foils to find him« this evi-
called to testify what advice he ^ve, he dence is competent on the question of mal-
may be asked upon cross-examination what ice. Hopkins v, McGiUicuddy, 69 Me;
fiicts were communicated to him upon 278.
PABT lY.J HAUGIOUS FBOSECUTION. 467
whether any material fact had been omitted. See ace. HaU v, Snydam, 6 Barb. S. C.
83; Thompeon v, Muaaey, 8 Greenl. 810. See also Blunt v. Little, 8 Mason, 102:
Commonwe<h v. Bradford, 9 Met. 268. If any material fact were culpably withheld
from the counsel, or if a contrary opinion were civen by another of his legal advisers,
or if the prosecution were malicious, it is held that the adnce of counsel will not be
a sufficient defence. Steyena v. Fassett^ 14 ShepL 266.
468 LAW OP EVIDENCE. [PABT IT.
MARRIAGE.
§ 460. Contrftot how made. Marriage is a civil contract, jure
gentium^ to the validity of which the consent of parties, able to
contract, is all that is required by natural or public law. (a) K the
contract is made per verba de prcesentij though it is not consum-
mated by cohabitation, or, if it be made per verba defuturoy and be
followed by consummation, it amounts to a valid marriage, in the
absence of all civil regulations to the contrary.^ (5) And though
in most, if not all, the United States there are statutes regulating
the celebration of the marriage rites, and inflicting penalties on
all who disobey the regulations, yet it is generally considered
that, in the absence of any positive statute declaring that all
marriages not celebrated in the prescribed manner shall be
absolutely void, or that none but certain magistrates or minis-
ters shall solemnize a marriage, any marriage, regularly made
according to the common law, without observing the statute
^ 2 Kent, Comm. p. 87 ; Fenton v. Beed, 4 John& 62 ; Jackson v. Wlnne, 7
Wend. 47.
(a) ** By the common law, both in Tidnal and a claas, to the general interests
England and in this country, the age of of society ; and seeks, in the exercise of a
consent is fixed at twelve in females and wise and sound poUcy, to chasten and r»-
fourteen in males. Contracts of marriage fine this intercourse, and to guard against
between infants, being both of the age of the manifold evils which would result fram
consent, if executed, are as binding as if illicit cohabitation. With this view, in
made by adults. Co. Lit 79 b ; Keeve's order to prevent fraudulent marriages,
Dom. Rel. 236, 237 ; 20 Am. Jur. 275 ; 2 seduction, and illegitimacy, the common
Kent, Comm. (6th ed.) 78 ; Pool v. Pratt, law has fixed that period in life when the
1 Chip. 264; Gk>vemor v. Rector, 10 sexual passions are usually firet developed.
Humph. 61. This rule, originally en- as the one when infants are deemed to be
grafted into the common from the civil of the age of consent, and capable of ra-
law (1 6L Comm. 486 ; Macph. on Inf. tering into the contract of marriage. By
168, 169), is undoubtedly an exception to Bigelow, J., Parton v. Hervey, I Gity
the general principles re{;ulating the con- (Mass.), 121 ; Bennett v. Smith, 21 Barb,
tracts of inmnts, and might at first seem (N. Y.) 439 ; Governor v. Sector, 10
to disregard the protection and restraint Humph. (Tenn.) 67 ; Godwin v. Thomp-
with which the law seeks to surround and son, 2 Greene (Iowa), 829. See Shsflierv.
guiurd the inexperience and imprudence of State, 20 Ohio, 1.
infancy. But in reflating the intercourse (6) Hallet v. Collins, 10 How. (IT. 8.)
of the sexes, by giviiig its highest sane- 174 ; Clayton v. WardeU, 4 Comst. (N. V.)
tions to the contract oimarriage, and ren- 280 ; Graham v. Bennett, 2 CaL 603;
dering it, as far as possible, inviolable, the Bishop on Mar. & Di 6th ed. U 24^
law looks beyond the welfare of the indi« 268.
PABT IT.] HABBIAGE. 469
regulations, would still be a valid marriage.^ (a) A marriage
celebrated in any country according to its own laws is recognized
1 2 Kent, Comm. pp. 90, 91 ; Reeve's Dom. ReL pp. 196, 200, 290 ; Milford r.
Worcester, 7 Mass. 65, 56 ; LoDdonderry «. Chester, 2 N. H. 268 ; Cheseldine v.
Brewer, 1 Har. & McH. 152 ; Hantz v. Sealey, 6 Binn. 405. It has more recently
been held in England, by Dr. Lushington, that prohibitory words, in a marriage act,
will not authorize an inference of nullity of the marriage, unless the nullity was declared
in the act. Catterall v. Sweetroan, 1 Kob. £ccl. 304. In a subsequent cause between
the same persons, it appeared that they had been married in New South Wales, by a
minister of the Scotch rresbyterian Church, according to the forms of the statute pro-
vided for members of that church alone, in that colony ; but that neither of the parties
belonged to that church, and so were not within the terms of the statute. But the
mme learned judge held that the marriage, nevertheless, was sufficiently valid, as be-
tween the parties, to found thereon a decree of divorce for a violation of the marriage
▼ow. His observations on this delicate c^uestion were as follows : ** The question which
I have to decide on the present occasion is, whether the marriage which has taken place
between these parties is a sufficient marriage to enable the court to pronounce a sen-
tence of separation bv reason of adultery, which it is admitted on all hands has been
committed oy the wife. It is true, that the allegation given in the case commences by
pleading the local act of the legislature of New South Wales, from which it would ap-
pear to follow, that it was intended to plead that the marriage was held in pursuance
of the local act. Whether that is so or not, if the court is satisfied that the marriage
is snfficiently valid to enable it to pronounce for a separation, it will not be necessary
to enter into a consideration of this act. 1 shall not give my judgment at length, for
this obvious reason : when the case came for my considemtion in July, 1845 (Jur. 950 ;
1 Rob. 804), I then stated, after great consideration, all the reasons that occurred to
me to bring my mind to the conclusion that the marriage in question was not void.
Now, if I could not pronounce that the marriage in question was void, it seems to me
that I must pronounce it valid for certain purposes ; and if valid for certain purposes,
valid for the husband or the wife, as the case might be, to obtain a separation for a
violation of the marriage vow. How does the case stand f New South Wales is a col-
ony of Great Britain, amenable, according to all the authorities, to all those acts of
Parliament, and all that law, which belonged to the mother-country, and which were
considered to be applicable to a new colony. No doubt very great difficulties have
from time to time arisen, both as to what common law and what acts of Parliament
should be imported into a colony. But it is unnecessary to discuss this question, be-
cause it has been discussed over and over again by more able judges than myself. And
there can be no doubt that the ancient law of Great Britain must have been carried to
this colony, because Lord Hardwicke's Act, being expressly confined to England and
Wales, could not be imported to a colony ; and consequently, the law that existed in
New South Wales wbji the original law of England, as it existed before Lord Hard-
wicke's Act. Upon that has been engrafted, under the authoritv of an act of Parlia-
ment, this act or the local legislature. I have already determined, and I shall not
repeat m^ reasons, that, whatever may be the effect of tne local act, it does not render
the mamage invalid ; then the simple question is, if the local act does not render it
invalid, whether, according to the ancient law of England, a marriage before a Presby-
terian minister is valid, and valid only to the extent upon which I am reonired to pro-
nounce an opinion, namely, to pronounce a separation a metua et thoro. When I con-
sider how much that was discussed in the celebrated case of The Queen v. Millis (10 CL
k Fin. 534), when all the authorities that could be adduced were brought to bear in the
opinions of the learned judges on that occasion, I am justified in saying this ; there was
nothing fell from any one or the judges in the House of Lords — I am not spealdng of the
opinion of the common -law judges, nut of the law lords — which in anv way intimated
that the marriage would not be sufficient to enable the court to proceed to a separation
a mensa et thoro. 1 am not disposed to make the decision of The Queen v. MiUis any
authority further than it goes, and for two reasons : first, the law lords were divided, and
it was only in consequence of the form in which the case came before them, that it could
be confddered a judgment at all. In the next place, and for a reason eoually strong, that,
throughout the whole of our colonies, at vanous times and various places, if I were to
(a) Parton v, Hervey, 1 Gray (Mass.), 119.
470 . LAW OP EVIDENCE. [PABT TV.
and valid in every other country whose laws or policy it may
not contravene ; ^ but the converse of this rule is not universally
true.*
hold that the presence of a priest in the orders of the Chnrch of England was necessary,
to the validity of a marriage, I should be going the lenffth of depnving thousands of
married conples of a right to resort to this court for such benefit as it can give in cases
of adultery or cruelty. It is notorious that, till within a few years, then were no
chaplains belonging to the East India Company ; and if I were to adopt another prin-
ciple, the result would be this : that, as to all those marriages had by the coUectors in
the service of the East India Company, and had by judges when no priest was pro-
cured, I should be entering into this disquisition, — a disquisition impossible to follow,
— namely, whether there was a marriage ex neeeagitate, because no deigyman was to be
found. Now, until I am controlled by a superior authority, I unquestionably, in this
case, and in iJl others, wherever I find, in any of the colonies, no load law prohibit-
ing a marriage of this description, and no act of Parliament reaches it, — in all these
cases I shall look at the marriage according to the ancient canon law ; and where it
has been had, not before a clergyman , but consent is had de facto, I shaU hold that
sufficient to enable the court to pronounce a decree, when it is necessary to pronounce
one. I have no right to postpone my decision and give a more deliberate judgment ;
because I do not know that any time I could give would throw light on the question
beyond what is to be collected from former decisions ; and I am certain tiiat no ex-
amination into the cases will induce me to change my opinion, until I am overruled by
an authority superior to mine." See Catterall v. Catterall, 11 Jur. 914 (a).
1 Schrimshire v. Schrimshire, 2 Hsgg. Consist. 407, 419 ; 2 Kent, Comm« 91, 92.
The exceptions to the generality of the rule, that the lex loci governs the contract of
marriage, are of three classes : (1.) In cases of incest and polygamy ; (2.) When pro-
hibited by positive law ; ^3.) When celebrated in desert or Darbarous countries, accord-
ing to the law of the domicile. Story, Confl. Laws, §§ 114-119 (6).
* Per Ld. Stowell, 2 Hsgg. Consist. 890, 891 ; Story, Confl. Laws, f§ 119-121 (c).
If parties go abroad for the purpose of contracting in a foreign State a marriage which
could not nave been contracted in their own country, but is not in violation of good
morals, it seems, that it is to be held valid, if not made invalid by express statute.
Medway v. Needharo, 16 Mass. 157 ; Putnam v. Putnam, 8 Pick. 488 ; BulL N. P.
118, 114 ; Phillips v. Hunter, 2 H. BL 412 ; Story, Confl. Laws, §§ 128 a, 123 6,
Ui{d). '
(a) Duncan v, Cannan, 28 Eng. Law Cush. (Mass.) 885. In giving the opinion
& £(^. 288. The presumption is very co- of the court, Shaw, C. J., said: "Mar-
gent m favor of the validity of a marriage riage originates in a contract ; and whether
which has been celebrated de facto. Piers the contract be valid or not, depends, prima
V. Piers, 2 H. of L. Cas. 881 ; Sechel v. facie, upon the law of the place where the
Lambert, 15 C. B. v. a. 781. contract is entered into. But marrisge,
(b) Bishop on Mar. & Div. 5th ed. §§ 85^ where lawfully contracted and valid, estab-
400. A foreign marriage is prima facie es- lishes a relation between the parties, uni-
tablished by proof of the ceremony, the cer« versally recognized in all civilized and
tiiicates of which may be put in evidence. Christian communities, from which certain
without first proving the foreign law on the rights, duties, and obligations are derived ;
subject. There is a common law of mar- these rights and duties attach to the per-
riage, which prevails in all Christian coun- sons of the narties, as husband and wife,
tries. Hutchins v, Eimmel, 81 Mich, and follow them when they chsnge their
126. domicile from one jurisdiction to another.
(c) Bishop on Mar. & Div. 5th ed. Among these rights is that of seeking the
§§ 858-400. dissolution of the conjugal relation in the
(d) A marriage in Massachusetts bv a manner and for the causes allowed by the
woman previously married in another law of the place where they have bona fide
Stat& and there divorced for acts of hers and without any sinister purpose taken up
which would not be a cause of divorce in their domicile ; and the tribunals of such
Massachusetts, is valid in Massachusetts, government, acting in conformity to its
though contracted while her former bus- laws, have jurisdiction of the persons of
band is still living, dark v. Clark, 8 the parties and of the subject-matter of the
§ 461. Proof of maixiage. The ^oof of morrioffe, as of other
issues, is either hj direct evideQce establishing the fact, or bj
evidence of collateral facts and circumstances from which its ex-
istence may be inferred. Evidence of the fonner kind, or what
is equivalent to it, is required upon the trial of indictments for
polygamy and adultery, and in actions for criminal conversa-
tion ; ' (a) it being necessary, in such cases, to prove a marriage
valid in all respects. It is not sufficient to prove that the parties
vent through a reUgious ceremony purporting to be a marriage,
nnlcBS it is also shown that it was recognized by the law of the
country as the form of contracting a valid marriage;' but in all
other cases any other satisfactory evidence is sufficient. The affir-
mative sentence of a court having jurisdiction of the question of
marriage or no marriage is conclusive evidence of the marriage.'
Other direct proof is made either by the testimony of a witness
present at the celebration, or of either of the parties themselves,
where they are competent ; or by an examined or ceridiied copy of
the register of the marriage, where such registration is required
by law, with proof of the identity of the parties.* It is not neces-
> Honii T. HiUtr, 4 Bon. 2069 ; Leader «. Burr, 1 Eap. S63 ; Commonwealtlt v.
RorcroKs, 9 Han. W2 ; ComnioDiredth t>. Littlfgohn, IS Uaaa. 1S3 ; People t>.
Bamphrey, 7 Johns. SI 4. On the trial of an indictment for polygamy or adultety, the
pruoner's deliberate declaration that he «i> mBiried to the sliced wife is odioluible
aa mifficieat evidence of the nuuritgu. Regina v. Upton, IC.k iQr. 166, n. Eapecially
if tlie marriage waa in another country. Regina v. Simmonslo, Id. 164 ; Sigina v.
NnrtoD, 2 H. & Rob. 603 ; (.'ayford's Case, 7 OrecDl. 67 ; Truman's Caee, 1 Kut, P. a
470. 3o in an action for criminal coDTeraatton. Rigg v. CutgenTeu, 2 Wile. 399,
dtins Morris v. Miller, i Burr. 2057 ; Forney v. Hal^her, S 3. & R. 159 ; Alalt^r
•. Erb, 2 Am. Iaw J. M. b. 49. But see anUm, People v. Millar, 7 Johna, 314 ; State «.
RoBirell, e Conn. 44B (i). In Hasaachuaetts, in all caeee where the fact of marriage U
required or ofleied to be prored, eTidence of general repute, or of cohabitation aa married
penons, and any circumstantial or praumptiTe eridence from which the fact may be in-
ferred, shall be competent evidence for considentioo. Stat 1S40, c. 84 ; Stat. 1841, e.
M ; Knower «. Wrsaon, 13 Met. 14S (c).
* Cathenrood v. Caalon, 13 H. & W. 201 ; State «. Hodgskiin, 1 ApnleL 155.
* Jitit:, vol. i J§ 4S4, 463, 644, 646.
* Ibid. See, aa to proof by the partiee themselTea, Cowp. 598 ; Lomaz v. Lomax,
Cta. temp. Hard*. 380 ; Hubback, Evidence of Succeseioii, pp. 241, 242, 244 ; Staoden
«. Staodea, Penke's Cas. 33 (i).
eoDipIajnt, which is their coiijngal relation, (a) Hutchins «, Eimmel, 31 Hkh. ISA.
tod their duties in it ; and Uierefore a de- See ante, { 49.
cree of divorce there pronounced, in due (b) See alao pott, JJ 4S4, 67S, Date.
ooureo of law, must be r^anled aa valid (c) Pnb. Stat. c. 146, % 81 ; Ueyera •.
to effect the diewlution of the bond of Pope, 110 Maa " '
21 N. H. 69 ; Harrison v. Harrison, 20 of identity of persons, in prorina a n
11. .«n. ^ n — . ,^.1 „.__, -■ -bycertiflcte. Hutchins r.Kinir .
Mich. 126. The rale of Uw, Omnia
Ala. t29 ; Com. «. Bunt, 4 Ciuh. (HaM.) riage ^ certificate. Hutchins r. Ximnel,
'" llMicl — - ■ * ' - " ■
472 LAW OP EVIDENCE. [PABT IT.
Bary, in other cases, to prove any license, publication of banns, or
compliance with any other statute formality, unless the statute
expressly requires it as preliminary evidence.^
§ 462. Same subjeot. Marriage may also be proved, in civil
cases, other than actions for seduction, by reputatiany declaratiaiu^
and conduct of the parties, and other circumstances usually ac-
companying that relation. The nature and admissibility of the
evidence of reputation has already been considered in the pre-
ceding volume.^ (a) In regard to the language and conduct of the
parties, it is competent to show their conversation and letters,
addressing each other as man and wife ;^ (() their elopement as
lovers, and subsequent return as married persons ; ^ their appear-
^ Habback, Eyid. of Succession, p. 289.
> ArUe, voL i. §§ 108, 104, 106, 107, 181-134. It has been stated, in a work of
distinguished merit (Uubback, Eyid. of Succession, p. 244), that reputation of mar-
riage, unlike that of other matters of pedigree, may proceed from persons who are not
members of the family. But in the pnncipl case cited to this point (Evans v, Morgan, 2
C. k Jer. 463), the chief reason for admitting the sufficiency of such evidence, after
verdict, was, that the witness was not cross-examined, and that the defendant did not
put the want of proof of the marriage to the judge as a ground of nonsuit, so that the
Slaintiff might have had an opportunity of supplying the defect by other evidence,
ee Johnson v. I^wson, 9 Moore, 187 ; s. c. 2 Bmg. 88 ; Roe v, Oora, 9 Moore, 187, n. ;
Donellv v. Donelly, 8 B. Monr. 118 ; Stevenson v, McBeary, 12 S. & M. 9 ; Taylor
V, Robinson, 16 Shepl. 828.
» Alfray v, Alfray. 2 Phillim. Eccl. 647.
4 Cooke V, Lloyd, Peake*s Cas. App. Izziv.
rile acta prcesTtmwUur, applies with par- Ld. Cranworth, in the Breadalbane Case, L.
ticular force to casea of jjresumption in R. 1 H. L. (Sc.) 182, p. 199 : " By the law
favor of marriage and legitimacy. Har- of England, and I presimie of all other
rison v. Southampton, 21 Eng. Law & £q. Christian countries, where a man and wo-
843 ; Ward v. Dulaney, 28 Miss. 410. man have long lived together as man and
(a) Lyle v. EUwood, L. R. 19 Eq. Ca. wife, and have been so treated by their
106 ; Murray v. Milner, L. R. 12 Ch. Div. friends and neighbors, there is a vrima
846 ; Dunbarton v, Franklin, 19 N. H. facie i)resumption that they are and have
257 ; State v, Winkley, 14 Id. 480 ; Clay- been what they profess to be."
ton V. Warden, 4 Comst (N. Y.) 230; (b) Gaines v. Relf, 12 How. (IT. S.)
Hicks V, Cochran, 4 Edw. Ch. (N. Y.) 472. In Walmsley t7. Robinson, 63 111. 41,
107 ; Thomdell v, Morrison, 26 Penn. St. the instruction that the jury might find a
826 ; Copes v, Pearce, 7 Gill (Md.), 247 ; promise to marry, "first, from the conduct
Martin v. Martin, 22 Ala. 86 ; Harman v, of the parties ; second, from the circum-
Harman, 16 III. 85 ; Trimble v, Trimble, stances which usually attend an engage-
2 Carter (Ind.), 76 ; Northfield ». Vershirp, ment to marry, as visiting, the understand-
83 Vt 110. In Hoggan «. Craigie, 2 ing of friends and relatives, prefmrations
Macl. & Rob. 942, 965, Ld. Cottenham for marriage, and the reception of the de-
says: " It is not necessary to prove the fendant by the family of the plaintiff as a
contract itself [of marriage]. It is suffi- suitor," was held to be too broad, and
cient if the facts of the case are such as to to give the jury too much latitude. ** It
lead to satisfactory evidence of such a con- by no means follows," say the court, **be-
tract having taken place. Upon this prin- cause a gentleman is the suitor of a lady,
ciple, the acknowledgment of the parties, and visits her frequently, that a rairriage
their conduct toward each other, and the enga^ment exists between them." If the
repute consequent upon it, may be suf- promise is conditional, it roust be alleged
ficient to prove a marriage." See Good- and proved, with its conditions. Hook «•
man v, Goodman, 28 L. J. Ch. 745. So^ Geoige, 108 Mass. 824.
474 LAW OP EVIDENCE. [PABT IT.
essential to the marriage, as is the case among the Jews, it should
be produced as the proper evidence of the fact.^ And where
written contracts are not requisite nor usual, jet if they have
been in fact made, though by words de futuroj these, as well as
marriage articles, and other antenuptial and dotal acts, are ad-
missible in evidence, as tending to raise a presumption that the
contemplated marriage took effect.* A certificate of marriage^ also,
by the officiating clergyman or magistrate, though ordinarily not
in itself evidence of the fact it recites, yet if proved to have been
carefully kept in the custody of the party whom it affects, and
produced from the proper custody, it may be read as collateral
proof, in the nature of a declaration and assertion, by the party,
of the facts stated in the paper.' Such certificate, also, or a copy
of the parish register or other document of the like character,
may be read as evidence confirmatory of the proof by reputation
and cohabitation.^ And where the marriage appeared to have
been solemnized by one who publicly assumed the office of a
priest, in a public chapel, and was followed by long cohabitation
of the parties, this was held sufficient to warrant the presumption
that he was really a priest, and that the marriage was therefore
valid.*
§ 464. RebuttaL The evidence of marriage may be rebutted by
proof that any circumstances, rendered indispensably necessary
by law to a valid marriage, were wanting.® (a) Thus, it may be
shown that either of the parties had another husband or wife living
at the time of the marriage in question ; or, that the parties were
related within the prohibited degrees ; or, that consent was want-
ing, the marriage having been effected by force or fraud ; or, that
one of the parties was at the time an idiot, or non compos mentis^
1 Serrib, Honi v. Noel, 1 Campb. 61. See, aa to the Jewish contract, Lmdo v.
Beliaario, 1 Hafw. Consist. 226, 247, App. 9 ; Goldsmid v, Bromer, Id. 824.
> Htibback, Evid. of Succession, p. 267.
" Hubback, Evid. of Succession, pp. 258, 269.
* Doe V. Orazebrook, 4 Ad. & El. N. s. 400.
* Rez 9. Brampton, 10 East, 287. * Milford «. Worcester, 7 Mass. 48.
(a) Oaines v, Relf, 12 How. (U. S.) 472 ; S§ 176-271. The admission of the hna-
True V. Ranney, 1 Foster (N. H.), 52 ; band, that, at the time of contracting his
Keyes v. Reyes, 2 Id. 558 ; Heffner v. present marriage, he had a former wife Ut-
Heffner, 28 Penn. St. 104 ; Martin v. Mar- rng, is not competent evidence, even in a
tin, 22 Ala. 86 ; Powell v. Powell, 27 Miss, dvil action, to prove the nullity of his sec-
788; Robertson v. Cole, 12 Texas, 856: ond marriage. Gaines v. Relf, 12 How.
Bishop on Mar. ft Div. §f 68-128, and (U. 8.) 472. See abo ante, § 461, n.
or insane.^ (a) And where marriage is inferred from cohabi
the presumption may be destroyed by evidence of the subsc
and long-continued separation of the parties.^
1 2 Kent, Comm. pp. 76, 77 ; 1 Bl. Ck>miii. 438 ; OathingB v. WiUiama,
487. Where the maniiige is inyalidated on the ground of want of consent, the
must have been inyestigated and the fact establisned, in a suit instituted for t
pose of annnUing the marriaffe. 2 Kent, Comm. p. 77 ; Wightman v. Wigh
Johns. Ch. 348. See also Midmeborough v. Rochester, 12 Mass. 863 ; Turner v.
1 fLtisat, Consist. 414.
> Van fiuskirk v. Claw» 18 Johns. 846.
(a) Weatherfonlv.Weatherford, 20Ala.
(48. But if a marriage was duly solem-
nized between parties capable of contract-
ing, it cannot oe annulled, nor any of its
consequences as to third persons be relieved
against, although it was contracted and
solemnized for the purpose of preyentiog
such persons from receiving property which
they would otherwise have oeen entitled to.
McKinney v. Clark, 2 Swan (Tenn.), 821.
Marriage cannot be presumed betw(
persons on the ground of cohab;
when this would oblige the presumi
bigamy on the part of either of
Case V. Case, 17 Cal. 598. But in
V. Bowen, it was held that cohabitat
proof of marriage, even though it 1
effect to annul a subsequent marrii
bastardize the issue. 1 Abb. (N. Y,
Dec 214. But see aiUe^ toL i. § 3t
LAW OP EVIDENCE. [PABT IT.
NUISANCE.
§ 465. NnlMuio* dttflnad. Niusance, in its largest sense, signifies
" any thing that worketh hurt, inconvenience, or damage." ^ (a)
It is either public, annoying all the members of the community;
or it is private, injuriously affecting the lands, tenements, or
hereditaments of an individual. The latt«r only will he here
considered.
§ 466. To kooBBB. Nuisances in one's dwtlUng-houte are all
acts done by another from without, which render the enjoyment
of life within the house uncomfortable ; whether it be by infecting
the air with noisome smells, or with gases injurious to health ; (i)
or by exciting the constant apprehension of danger, whether by
keeping great quantities of gunpowder near the house, or by deep
and dangerous excavation of the neighboring soil, or by suffering
the adjoining tenement to be ruinous, and in danger of falling
upon or otherwise materially injuring the neighboring house and
its inmates ; ' or, by the exercise of a trade , by machinery, which
produces continual noise and vibration in the adjoining tenement;
or, by so exercising a trade as naturally to produce strife, collision,
and disorderly conduct among the persons resorting to the prem-
ises, (e) So it is a nuisance, if one overhangs the roof of his
4 Usai. GTS, 678.
le nncomfortablc aa t. placs of ilwdn,
that, for the pnrpoae of showing thif
abated or barred b; > Bubaequent abate- the offensive smella vere an annoyince t(
and that, for the pnrpoae of showing thit
. _ .. _ Bubaequent abate- the offensive smell a vere an anno;
t of tbe nnisanre by the plaintiff, bia family, the plaintiff mi^flit ii
!. Bnttrick, 4 Cash. 8*5. evidence of complaints made by hii "ift,
(b) In KeameT «. Farrell, 28 Conn, since dead, while suffering from the oSto-
317, it nss held that in an action on the dve emella, and at a time when they wen
case for a nuisance, where the question perceived by others,
was whether a certain privy and pig-aty (c) The rallowinK hare been held not
Iilaced by the defendant near the dwelling- to be nubances aiiiess aome evidence is
lODse of the plaintiff were nuisances, wit- given that they affect the neifthlioriioed
neighbor, throwing the water upon it from his own ; or, if he
obstructs hie neighbor's ancieDt lights; or, if, without due pre-
caution, he pulls down his own walls or vaults, whereby injury la
caused to the buildings or wall of his neighbor. But the mere
circumstance of juxtaposition does not oblige him to give notice
to his neighbor of bis intention to remove bis own walls ; nor is
he bound to ose extraordinary caution, where he is ignorant of the
existence of the adjacent wall, as, if it be under the ground.^
§ 467. To lands. In regard to landst it is a Quiaance to carry
on a trade in the vicinity, by means of which tbe com and grass
or the cattle are injured ; or to neglect to repair and keep open
ditches, by means of which the land is overflowed. It is also a
Duisance to stop or divert water, that uses to run to another's
mill, or through or by his lands ; {a} or to corrupt a watercourse
and render it offensive or less fit for use.^ (fi) For every man is
entitled to the enjoyment of tbe air in its natural purity, of his
ancient lights without obstruction, of the flow of waters in their
natural course and condition through his own land ; and to the
support of the neighboring soil, both to preserve the surface of
his own in its natural state, unbroken, and to uphold his ancient
buildiuga thereon.^ (r) But it is not a nuisance to divert a sub-
» Trower v. Chtdwick, S Bing. N. C. 834; », 0. 8 Scotr. 9»; Chadwick v. Trower,
S Binir. a. 0. I; Panton v. HolUud, 17 Joliiu. 02; People «. CunninriiMD, 1 Dimo,
GS4.
■ 3 BL Comm. 21S-21S.
• Wyatt r. HarrisoD, 8 B. & Ad. 871; Dodd v. Holn^ 1 Ad. & Et. HS; S K. & H.
799. And Bee the learned notes of Mr. Baud, to the opposing case of Tburaton e.
Hancock, 12 Maw. 212, 227 a, 228 a ; Gale ft Whatlej on Easements, pp. 216-227.
(a) So it is ft aniunce to ardficiallT and is not Jiutifiable. WMton v. Alien,
aCGDmulBtH water npon one's own land, 8 Mass. 136; Colbam c. Richards, 18
whereby water is forced upon or kept awav Mass. 420; Cook t>. Hall, 3 Pick. (Mass.)
from aootbpr'a land. Wibtou v. New Bed- 269; Ktnbcey d. Owen, 6 WeUb. H. k
fori, 108 Mass. 281. Gord. S63." Bv 8h»w, C. J., in Newhall
{b) Walter e. Selfe, 4 Eng^ Law. & Eq. n. Ireson, S Cush. (Mass.) 599.
IS; Kewball 0. Irason, S Cush. (Mbes.) {c) Where one does a lawful act on hia
tS2, E99. " Where it has been considered own premisea, he cannot be held regponsi-
that a riparian proprietor had authority to ble for injurious conseqiieocn that may
make use of the stream for purposes of ir- tcsult from it, unless it was so done as to
rigstion, and thus by that use divert a constitute actionable negligence; that is,
portion of it, it has been held, under the if in doing it he did not use Ruch care and
eoadition, that Bucb divenjon was, under caution as man of common prudence usa-
all tbe circumstances, a reasonable nse of ally exercise in the munaeement of their
tbe stream, and that the surplus of the own connems. Bockwood r. Wilson, 11
water thus naed must be returned into its Cash. (Msss.) 221, 226. Thns, if one
natuisl channel. These casea carry a brines upon his own Isnd a steam-boiler,
~" g impUeation that a diveraJon of the whicn, witbont bait on his |iart, explodes
_ ...____ 1 ;.! — VI 1, _* juij [QJgfjB his neighbor, he is not liable.
Loaee v. Bucbanan, 51 S. Y. 476. Bnt
478 LAW OP BVIDENCK. [PABT IV.
terranean flow of water nDder another^B land, by lawful operations
on one's own.'
§ 468. To imoorporaal haradltunanti. In regard to incorporeal
hereditamentt, nuisances consist in obstructing or otherwise in-
juriously affecting a waj, which one has annexed to his estate,
over the lands of another ; or in impairing the value of his fair,
market, ferry, or other franchise, by any act causing a continuing
damage.' (a)
§ 469. To lOTanlou. If Qxe nuisance is injuriotiB to tiie re-
1 Acton g. BlondeU, 12 H. ft V. 334. * 8 Bl. Comtn. S18, SIS.
me Cahill v. Eutman, IS Hinn. B24. ercr knfal ttis baanoB niBj bo in it-
OtherwiH, if he U >t hult. Knight v, Mlf, and howevfr loitable in the abatnct
Globe, Sic Co., S8 Conn. 188. In bh «c- the loeatlDn may be, theia things cuiKit
tion for a nuisance to a mesmags, dvel- aviil to aathoriie the cartTtng on of the
ling-honu, and premiaea, earned t^ noz- bcuineu in a way which directly, palpably,
ion4 vapors prDce«dinf{ from amclting and anbetantially damages the proper^ <^
works upon lands of the dsfendants, to Others, at Itast in the aCeence of anjrthing
which ths; jileaded the general issae, llie conferring any preacriptiTe right, or of any
judge directed the jury that every aian ftnnt, coTenant, license, or privile^; yet,
IS Mund to nse his own property in such on ths other hand, a resident of a trading
a manner as not to injure the property or mann factoring neighborhood is booad
of his neighbor, unless by the lapee of a to aabmit to anch orainA-y peCBOoal so-
certain period of time he hsa acquired a nojancea and little discomforts as an
Ccriptive right to do so. But that the fairly incidental to legitimate trading and
doesDotrrgard trilling ioconvenieDcea, manufacturing carriM on in a reasonable
every thing must be looked at from a way. Robinson v. Baagh, 30 Hicb- S91.
ttaaonable point of view; and, therefore, (a) Boaton k Lowell, &c. Corp. >.
in an action for nuisance to property by SaLeni, fcc Railroad Co., S Giaj (Mass.),
noxious vapors rising on the land of an- 1. If a party suBera special damage from
other, the injury, to be actionable, must a public nuisance, he may have hb action
be such as visibly to diminish the value of therefor againct the peraon maintaining
the property and the comfort and eqjoy- the naisanoe. Stetaon v, Faxon. 19 Pick.
ment of it. That, in determining that (Uasa.) 117. In this case, the defendant
question, the time, locality, and all the had erected a warehouse that projected
circomstancea should be taken into con- eeveral feet into the itieet, and faejond
sideration; that in counties where great the plaiiitifl"a warehouse, which stood
works have been erected and carried on, near on the line of the street, by meina
which are the means of developing the of which the plaintiff's warehouse was
national wealth, persons must not stand obecnred from the view of the pa:iaensen,
on extreme rights, and bring actions in re- and travel was diverted to ■ distance Bom
Biiect of every matter of annoyance, as, if it, and it was tendered less eli^ble as a
that were so, business could not be carried place of business, and the plaintiff was
on in those places. Held, no misdirection, olilieed to reduce the rent, and it waa
8t. Helen's Smelting Co. v. Tipping, 4 B. held to be such spedal damage as would
ft a. fl08, 616, Eich. Cham., and 11 Jor. give the plaintiff a right to action. Cole
N. B. 78fi, Hon» of Lords. See also Bam- v. Sprowl, SG Maine, 161; Baiter ft
fordv. Tnraley, SB. ftS. 66; H. c. 9 Jnr. Winooaki Turnpike Co., 33 Vt. 114;
M. 8. 877, where these qneations are very Frink «. l*wwnce, SO Conn. 117. Mo
fully discussed. Also Cavey v. Ledbitter, action will lie against a town by an owner
S F. ft F. 14. Carrying on a lawful of land who is prevented from a am-
tnwle in the ordinary and ODvioua manner venieat accesa thereto, and is thereby
is not neoeasarily carrying itoiiin aproper damaged by reason of a defect in the
manner. Stockport Waterworks C-ompany highway, which the town ia oUiged to
«. Potter, 7 Jut. N. b. SBO. See also keep in repair. Smith «. Dedhsm, 8
Baraea «. Hathome, G4 He. 124. How- Cusk (Ubm.) G2S.
PABT IT.] NUISANCS. 479
vernofij the reversioner, and the tenant in possession, may each
have an action for his separate damage ; ^ and in the action by
the former, the tenant is a competent witness.' And though the
nuisance might be abated before the estate comes into possession,
yet, if it is capable of continuance, the reversioner may maintain
an action.'
§ 470. Proof of nnisanoe. In an action upon the case for a
nuisance, the plaintiff must prove, (1) his possession of the house
or land, or his reversionary interest therein, if the action is for an
injury to this species of interest ; or, his title to the incorporeal
right alleged to have been injured ; (2) the injurious act alleged
to have been done by the defendant ; and (8) the damages thence
resulting. The action is local ; but, ordinarily, the allegation of
the place will be taken merely as venue^ unless a local description
is precisely and particularly ^ven, in which case it must be
proved as laid.* (a)
§ 471. Title by presoription. (1.) If the injury is . done to the
plaintiff's incorporeal right, and the title is alleged hj prescript
tiony such title must be proved ; but though it was formerly held
necessary to allege specially a right by prescription, it is now
deemed sufficient to allege the right generally, as incident to the
plaintiff's possession of the house or land.^ A legal title to an
incorporeal hereditament is proved by an uninterrupted adverse
enjoyment for twenty years;* and it may be presumed by the
1 Biddlesford v, Onslow, 8 Lev. 209; Shadwell v. Hatchinaon, 4 C. fc P. 8S8.
' DoddlDgton v. Hudson, 1 Ring. 257.
* Jesser v. Gifford, 4 Barr. 2141; ShadweU v. Hutchinson, S C. ft P. 615.
* Hamer v. Raymond, 5 Taunt. 789.
* 1 Chitty on PL 880; 2 Saund. 175 a, n.; Yelv. 216 a, n. (1), l^ Metcalf ; Stoi^
V. Odin, 12 Mass. 157. Proof of the plaintiff's possession of part of the premises is
sufficient to support the general aUegation that he was possessed of a certain messuage
and premises. Fenn v. Grafton, 2 Bing. 617. And see, as to tiser, Page v. HatcheU,
10 Jur. 684.
* Lewis V. Price, cited 2 Saund. 175 a; Winchelsea Causes, 4 Burr. 1968; Rex v.
(a) A remedy in equity lies to restrain The test of whether an ii^'unction will
a person by injunction from establishing be granted is said in Dittman v. Repp, 50
a nuisance or continuing it, but the case Md. 516, to be whether a nuisance com-
must show that the damage resulting plained of does or will produce such a
from the erection wiU be serious, and it condition of things as in tne judgment of
must also appear that the iigury will be reasonable men is naturally productive of
of such a nature that actions at law will actual physical discomforts to persons
not afford an adequate remedy. Dilworth*s of ordinary sensibilities and of ordinary
Appeal, 91 Pa. St. 247; Owen v. Phillips, tastes and habits, and as in view of the
78 Ind!. 284; Larsater v. Garrett, 4 Baxt circumstances of the case is unreasonable
(Tenn.) 868; Brown v, Carolina Central and in derogation of the rights of the
Ry. Co., 88 N. C. 128. complainant.
480 LAW OP EVIDENCE. [PART IV.
jury, from such enjoyment for a shorter period, if other circum-
stances support the presumption. It may also be claimed by a
qua9i estoppel; as, if one build a new house on his land, and
afterwards sell it to another, neither the vendor, nor any one
claiming under him, can obstruct the lights.^ In either case, the
extent of the right is ascertained by the extent and nature of the
enjoyment. Therefore, if an ancient window to a shop or malt-
house is somewhat darkened, no action lies, if there is still light
enough for the purpose for which it has been used.^ And if an
ancient window is enlarged, the adjoining owner cannot obstruct
the passage of light through the old window, notwithstanding the
party may derive an equal quantity of light from the new one.*
But to maintain this action, there must be a substantial privation
of light, so as to render the occupation of the house uncomfort-
able, or impair its value ; the merely taking off a ray or two is not
suificient.* So, in regard to a way by prescription; the extent
of the enjoyment determines the extent of the right. If, there-
fore, such a way has always been used for one purpose, as, to cart
fuel, it cannot be used for a different purpose, as, to cart stones ;
and if it has been used only for a way to Black-Acre, it cannot
be used for a way to White-Acre, which lies adjoining and beyond
it, though belonging to the same person.^
§ 472. CaaBe of injury. (2.) As to the proof that the injury
was caused by the defendant^ it is sufficient to show that it was
done by his authority, or, that, having acquired the title to the
land after the nuisance was erected, he has continued it.® Thus, if
the nuisance is erected on the defendant's land, by his permission,
he is liable.^ And if the defendant, after judgment against him
for the nuisance, lets the same land to a tenant with the nuisance
continuing upon it, he, as well as his tenant, is liable for its con-
Dawes, Id. 2022; Bealey v, Shaw, 6 East, 215; HiU v. Crosby, 2 Pick. 466; AngeU on
Adverse Enjoyment, pp. 2S-29, 62, 63; anU^ vol. i. § 17, and cases there cited.
1 ArUe, vol. i. §§ 89, 45; Best on Presumptions, pp. 102, 108, 106; Palmer v.
Fletcher, 1 Ley. 122; Compton v. Hichards, 1 Price, 27; Riviere v. Bower, By. k M.
24; Coatts v. Gorham, 1 M. & Malk. 396; Story v. Odin, 12 Mass. 157.
> Martin v. Coble, 1 Campb. 820, 822.
' Chandler v, Thompson, 8 Campb. 80; Bealey v. Shaw, 6 East, 208.
* Back V. Stacey, 2 C. & P. 465; Pringle v. Wemham, 7 C. & P. 877; Wells «. Ody,
Id. 410.
* Senhouse v. Christian, 1 T. R. 569, per Ashhnrst, J. ; Howell v. King, 1 Mod.
190; 89 H. VI. 6; Davenport v. Lamson, 21 Pick. 72.
^ Penruddock's Case, 5 Co. 100; Dawson v. Moore, 7 C. & P. 25.
7 Winter v. Charter, 8 Y. & J. 808. If the iigury is caused by a wall erected
partly on the defendant's land, case lies for the nuisance, though the wall is erected in
part on the plaintiff's land, by an act of tresspass. WeUs v, Ody, 1 M. & W. 452.
tinuance, in another action.^ (a) So, if the plaintiff has purchased
a house, against which a nuisance has been committed, he may
maintain this action for the continuance of the nuisance, after
request to abate it.^ If the premises were let for the purpose of
carrying on a trade or business which is necessarily injurious to
the adjoining proprietors, the lessor is liable, as the author of
the nuisance, upon proof of the injurious nature of the business.
But if the purpose for which the premises were let was lawful,
and the business was not necessarily injurious except when con-
ducted in a particular manner, the plaintiff must show that the
lessor, who is sued, either knew or had reason to believe that it
would be so conducted.' (i)
§ 473. Plaintiff must be without fault or laohea. Ordinarily,
eyery person is bound to use reasonable care to avoid or prevent
danger or damage to his person and property. Wherever, there-
fore, the injury complained of would never have existed but for
the oodsconduct or culpahle neglect of the plaintiffs as in the case
1 Bosewell v. Prior, 2 Salk. 460; Staple v. Spring, 10 Maas. 72.
S Penniddock's Case, 6 Co. 100, 101; WiUes, 688.
* Fish «. Dodge, 4 Deuio, 31L
(a) Hodges V. Hodges, 5 Met. (Mass.) (6) " By the common law, the occapier,
205; Brown v. Cayuga, &c. R. R., 2 Ker- and not the landlord, is bound, as between
nan (N. Y.), 486; Gandy v, Jubber, 10 himself and the public, so far to keep the
Jut. n. 8. 652. buildings in repair that they may be safe
To maintain an action against a lessee for the public. And such occupier is,
for continuing a nuisance, begun by his priina fade^ liable to third persons for
lessor before the lease, knowledse of the ex- damages arising from any defect. Regina
isteuce of the nuisance is enougn. Dickson v. Watts, 1 S«dk. 857; s. o. 2 Ld. Raym.
V. Chicago, Rock Island, &c. Ry. Co., 71 856; s. o. 3 Id. 18; Cheetham «. Hamp-
Mo. 575 ; Conhocton, &c. v, Buffalo, &c son, 4 T. R. 818. But if there be an
R. R. Co., 51 N. Y. 573. But in some express agreement between landlord and
cases it is held that actual notice to remove tenant, that the former shall keep the
it must be given. McDonouffh i^. Oilman, 8 premises in repair, so that, in case of a
Allen, 264; Slight v. Gutzlan, 35 Wis. 675. recovery against the tenant, he would have
A person who erects a nuisance is liable his remedy over, then, to avoid circuity
for its continuance, after he has sold the of action, the party injured by the defect
land, if he conveys with covenants of and want of repair may have his action
warran^. Lohmiller v. Indian Ford in the first instance against the landlord.
Water Power Co., 51 Wise. 688. Payne v, Rogers, 2 H. Bl. 850. But such
A municipal corporation is liable for a agreement must be distinctly proved."
noisance in the same wav as an individual. By Shaw, C. J., Ix>well v. Spaulding, 4
if it exercises iU granted powers m an il- Cush. (Mass.) 27«; Oakham v, Holbrook,
1ml way, and a nuisance is the result; as 11 Cush. (Mass. ) 302. If the tenant cov-
where a dty discharged its sewers on land enants to repair, and the injury proceeds
which it wa« not empowered to use for from the roof of the building, of which
inch purposes, it was held that the owner it does not appear that the tenants have
of the land had a remedy against the control, the landlord wiU be liable.
citT for the nnisanoe. Boston Rollmg Shepley v. Fifty Anociatas, 101 "'
Milk V. Cambridge, 117 Mass. 896; Bes- 261; 8. o. 106 Matt. 104.
sonies «. Indianapolis, 71 Ind. 189;
Hootry «. Danbury, 45 Conn. 550.
482 LAW OP EVIDENCE. [PART IT.
of an obstruction within the limits of the highway, but outside
of the travelled path against which he negligently drove his
vehicle ; ^ or, in the case of a collision at sea, wholly imputable
to his own negligence ; ^ or, of his neglect to shore up his own
house, for want of which it was injured by the pulling down of
the defendant's adjoining house, notwithstanding due care taken
by the latter ; ^ in these and the like cases the plaintiff cannot
recover, but must bear the consequences of his own fault. So, if
the act of the defendant was at first no annoyance to the plaintiff,
but has become so by his own act, as by opening a new window
in his house, this being the proximate cause of the annoyance, he
cannot recover.^ This rule, however, admits of some qualification,
where the nuisance affects the entire dwelling; for the right of
habitancy is paramount to the exigencies of trade. Thus, where
a slaughter-house was erected in the open fields adjacent to a
growing city, but not at that time near to any dwelling-house ; but
afterwards, in the progressive increase of the city, dwellings were
erected near to the slaughter-house, insomuch that it rendered
them unfit for comfortable habitation ; it was held a nuisance, for
which the owners of the houses might have remedy against the
proprietor of the slaughter-house for its continuance.^ K the
injury is wholly imputable to the defendant^ it is perfectly clear that
he is liable. The case of faults on both sidesy is one of greater
embarrassment; but the result of the authorities seems to be this,
that the burden of proof is on the plaintiff to show that, notwith*
standing any neglect or fault on his part, the injury is in no
respect attributable to himself, but is wholly attributable to the
misconduct on the part of the defendant, as the proximate cau%e.^
Thus, if injury results to the plaintiff's house by the actual negli-
gence or misconduct of the defendant in pulling down his own,
1 Smith V. Smith, 2 Pick. 621. See also Flower «. Adam, 2 Taunt 814 ; SteaU «.
Inland W. L. Nav. CJo., 2 Johns. 288: Lebanon v. Olcott, IN. H. 839.
a Vanderplank v. Miller, 1 M. & Malk. 169. And see Butterfield «. Forrester, 11
East, 60.
« Peyton v. Mayor, &c. of London, 9 B. & C. 726. And see Blyth «. Tophm, Cro.
Jac. 158 ; Whitmore v. Wilks, 3 C. & P. 864 ; Massey ». Goyner. 4 C. & P. 161 ;
Annsworth v. S. East. Railw. Co., 11 Jur. 758; supra, tit. Carriers, § 220.
• Lawrences. Obee, 8 Caropb. 614. _
• Brady «. Weeks. 8 Barb. 8. C. 167. And see ace Cooper «. Barber, 8 Taunt 99 ;
Dana r. Valentine, 5 Met 8; Gale & Whatley on Easements, p. 186 [277].
• Walters v. Pfeil, 1 M. & Malk. 862 ; Dodd v. Holme. 2 Ad. k El. 498 ; 8 N. A
M. 789 ; Bradley v. Wat^rhonse, 8 C. & P. 818 ; Brock v. Copeland, 1 Esp. 203 ; Bud
V. Holbrook, 4 Bin^. 628 ; Ilott v. Wilkes, 8 R & Aid. 804 ; Flower «. Adam, 2
Taunt 814 ; Hawkins v. Cowper, 8 C. fc P. 478.
the pIuntifF tn&y recover his damages, notwithatandiog he has
not himself used the precautioDS of shoring up his walls.^ If the
fault was mutual, the plaintiff cannot recover.^ Thus, where the
injury was occasioned by n^ligence in taking down a party-wall,
and the plaintiff appointed an agent to superintend the work
jointly with the defendant's agent, both of whom were to blame,
it was held that neither cotild impute negligence to the other.^ If
the injury resulted from an omission of duty by the defendant, such
as to repair a way, or a fence, his obligatiou must be proved.*
§ 474. Damagtta. (S.) In proof of the damages, it is sufficient
for the plaintiff to show that, by reason of the injurioua act or
omission of the defendant, he cannot enjoy his right in as full and
ample a manner aa before, or, that his property is substantially
impaired in value. If the injury is a direct infringement of his
absolute right, abridging his power and means of exercising it,
such as diverting or polluting s watercourse flowing tiirough his
land, or obstructing his private way, or projecting a roof so as to
overhang his grounds, or the like, no evidence of special damage
will be necessary in order to entitle him to recover ; but where
the damages are consequential, or affect his relative rights, some
damage mnst be proved.' Where the injury consists in the de-
struction of a tenement, the measure of damt^es is the value
of the old tenement, and not the cost of replacing it by a new
one.' And the rule of damages, in all cases of nuisance, is the
amount of injury actually sustained at the commencement of the
suit^
§ 475. DaftnoM. The d^ence to this action, aside from defect
of proof on the part of the plaintiff, generally consists either in a
license from the plaintiff to do the act complained of, or in a denial
of its injurious consequences, or, where the plaintiff claims a pre-
scriptive right, in opposing it by another and adverse enjoyment,
' Walton V. Pf«il, 1 H. ft U*lk. SeS.
■ Tudarpluik v. Uillar, 1 H. k Milk. 16B. Seo the intererting caw of Dean v.
CbTtoD, 7 l^uaL 489; 2 iUisb. G77; 1 Uoore, 203, commtiiited an in Bird v. Hol-
brook, 4 Bin);- 62S ; White «. WiuniBimmet Co., S HoathJr Law Ben. 303 [7
Cmh. IGG]. Hoe Moore e. Abbot, 2 Hed. iB.
' Hill V. Wamu, 2 Stwk. 377. And see Btafltud Canal Co. v. Hallen, fl R 4C. 817.
* Co. Lit Gtfo, n. (2), Harg. k But], rd.; Ruasell v. The Men of DeroQ, 2 Tr. 671 ;
Lorins v. Bacon, i Mass. t7G, G7S; Payne v. Rogers, 3 H. B\. S4S.
> Qitterell c. Griffith*, i Esp. 69 ; Alien v. OrmaQil, 8 Ea«t, 1 ; Fay v. Prentice, i
Jur. 877 1 1 U. O. )c S. 828 ; Kose r. OroTet, G U. & O. SIS ] S Soott, S. R. S4G ;
Newhnll V. Ireaon, 8 Cash. 595, G99.
* Lnkin v. Oodsatl, 3 Peake's Cm. 1G.
1 Tbayerc Brooks, 17 Ohloy 48S; Trorc Ch. KailioadCo., 8F«rtw(N. H.), 88.
484 LAW OF EVIDENCE. [PABT IT.
of sufficiently long duration. Thus, if the evidence of title to a
right of way, or to the use of lights, is derived from an enjoyment
of twenty years' duration, it may be rebutted by evidence that,
during the whole or a part of that period, the premises were in
the occupation of the defendant's tenant, for by his lacheB the
defendant was not concluded ; ^ or, that the enjoyment of the right
by the plaintiff was under the express leave or favor of the de-
fendant, or by mistake, and not adverse to the defendant's title.^
So, the plaintiff's claim to the natural flow of water across or by
his land, without diminution or alteration, may be rebutted by
evidence of an adverse right, founded on more than twenty
years' enjoyment, to divert or use it for lawful purposes.' If
the act complained of was done by the parol license of the plain-
tiff, at the defendant's expense, tliis is a good defence, though if
the license were executory, it might have been void by the Statute
of Frauds ; for even a parol license, when executed, is not coun-
termandable.^
§ 476. Abandonment of tight. As it is the enjoyment of an
incorporeal hereditament that gives the prescriptive right, so the
ceasing to enjoy destroys the right, unless, at the time when the
party discontinues the enjoyment, he does some act to show that
he intends to resume it within a reasonable time.^ Evidence of
abandonment by the plaintiff will therefore be a good defence
against his claim ; and the burden of proof will be on him to show
that the abandonment was but temporary, and that he intended
to resume the enjoyment of the right.^ K the plaintiff, having a
right to the unobstructed access of light and air through a win-
dow, should materially alter the form of the wall in which the
window is put out, as by changing it from straight to circular,
this will amount to an abandonment of the right.^
1 Daniel v. North, 11 East, 872. See also Barker v, Richardson, 4 B. & Aid. 578.
« Campbell v. Wilson, 8 East, 294. And see Brown v. Gay, 8 GreenL 126 ; Gates
«. Butler, 3 Humph. 447 ; Cooper v. Barber, 8 Taunt. 99.
* Beal V. Shaw, 6 East, 214, per Ld. EUenborough. And see Balston v. Bensted,
1 Campb. 163.
« Winter v. Brockwell, 8 East, 808. See also 1 Hayw. 28 ; Ligginsv. Inge, 7 Bing.
690 ; Webb v. Paternoster, Palm. 71 ; Bridges t>. Blanchard, 1 Ad. k El. 686. But
no license to alter windows can be inferred from the fact that the adjoining owner wit-
nessed the alterations as they were goine on, without objection ; so as to prerent him.
from afterwards obstructing them by buuding on his own land. Blanchard v. Bridges^
4 Ad. & El. 176.
ft Moore v. RawBon, 8 B. fc C. 882, 887, per Bayley, J. And see Oairitt v. Shaip^
8 Ad. & El. 825.
« Ibid.
7 Blanchard v. Bridges, 4 Ad. ft El. 176.
PART IV.] PARTNERSHIP. 485
PARTNERSHIP.
§ 477. Proof of partnership. The question of partnership is
raised in actions either between the partners themselves, or be-
tween them and third persons; but the evidence which would
prove a partnership against the partners, in favor of other per-
sons, is sufficient, prima facie^ to prove it in actions between the
partners alone, and also in actions in their favor against third
persons.*
§ 478. Where there are several plaintiiEs. It is a general rule,
that where the action is by several plaintiffs^ they must prove
either an express contract by the defendant with them all, or the
joint interest of all in the subject of the suit. If they are jointly
interested as partners, they may sue jointly upon a contract made
by the joint agent of all, though the names of all are not expressed
in the instrument. But it must appear that all who sue were
partners at the time of making the contract ;^ (a) for one who has
been subsequently admitted as a partner cannot join, though it
were agreed that he should become equally interested with the
others in all the existing property and rights of the firm, unless,
upon or after the accession of the incoming partner, there has
been a new and binding promise to pay to the firm as newly con-
stituted,^ or unless the security, being negotiable, has been trans-
ferred by indorsement.* Where several plaintiffs sue as indorsees
of a bill indorsed in blank, they are not bound to prove any part-
nership, nor any transfer expressly to themselves, unless it should
1 Peacock v. Peacock, 2 Campb. 46, per Ld. Ellenborongh ; Stearns v. Haven, 14
Yt. 540. In the latter case, a stranger cannot object that the contract does not con-
stitnte a partnership in legal strictness, if the parties them^lves have treated it as
such a contract. Ibid. See also Bond v. Pittaro, 8 M. & W. 367.
> Ord V. Portal, 8 Campb. 289, 240, n. ; Ege «. Kyle, 2 Watts, 222 ; McGregor v.
Cleveland, 5 Wend. 475.
» Wilsford V, Wood, 1 Esp. 182. And see Wright v. Rnssell, 8 Wils. 520 ; 2 W.
Bl. 984 ; 3b parte Marsh, 2 Rose, 239. The mere transfer of a balance dae to the old
firm into the books of the new firm, does not vest in the latter a right of action for snch
balance, unless the assent of the debtor is proved. Armsby v, Famham, 16 Pick. 818.
* Peas V, Hirst, 10 B. & C. 122 ; Ord v. Portal, 8 Campb. 289 ; £ge 9. Kyle, 2
Watts, 222 ; McGregor v. Cleveland, 5 Wend. 475.
(a) So where one has bought all the tract made by the firm. Ayres v, Gfillnp^
assets of a firm and assumes the responsi- 44 Mich. 18.
bilities, he is not able to sue on a con-
486 LAW OP ETIDBNCE. [PABT IT.
appear that it had once been specially transferred to some of them,
and not to all.^ And where a negotiable security due by one firm
is indorsed to another firm, or a debt is due in any other form by
one firm to another, and one of the individuals is a partner in
both firms, no action can be maintained for the debt, for no one
can be interested as a party on both sides of the record.* (a) If
business is carried on in the names of several persons, who in fact
are not partners, the entire interest being in one only, he may
sue alone, but he must distinctly prove that the others were not
his partners ; ^ to prove which they are competent witnesses.* On
the other hand, if an express contract is made with one alone, he
may maintain an action upon it in his own name only, though
others, whose names are not mentioned in the contract, are inter-
ested in it jointly with himself,^ and might well have joined in
the action.^ If the name of the firm has remained a long time
the same, but the partners have been changed, parol evidence is
admissible, in an action upon a contract made in the name of the
firm, to show that the plaintiffs were in fact the real members of
the firm at the time of making the contracts (6)
1 Rordasnz v. Leach, 1 Stark. 446 ; Machel v. Einnear, Id. 499.
' Bosanouet v. Wray, 6 Taunt. 597 ; Mainwarring v. Newman, 2 B. &• P. 120 ;
MoiTatt V, Van Millingen, Id. 124, n. The pnrchase of such a biU or note would be
regarded as jiaynient of it, for account of the partner in question. Ibid. And the
giving of such u security would seem, on the same principle, to amount only to evidence
of a similar payment.
s Teed v. Elworthy, 14 East, 210 ; Atkinson v. Laing, 1 D. & Ry. Gas. 16 ; Daven-
port V, Rackstrow, 1 C. & P. 89.
* Parsons v. Crosby, 5 Esp. 199 ; Glossop v, Colraan, 1 Stark. 26.
ft Lloyd V. Archbowle, 2 Taunt. 324 ; Mawman v. Gillett, Id. 325, n. ; Bank of St.
Mary v, St. John, 25 Ala. 866.
0 Leveck v, Shaftoe, 2 Esp. 468 ; Skinner v. Stocks, 4 B. & Aid. 437 ; Lord v.
Baldwin, 6 Pick. 348. Bnt proof that the contract was expressly made with one alone,
upon his assei-tion, that the subject-matter was his sole property, will be conclusive to
defeat an action on that contract by all the partners. Lucas v. De la Com, 1 M. &
S. 249.
7 Holler V. Lambert, 2 Campb. 548.
(a) The joint and several note of a part- Me. 304; Smith v. Lusher, 5 Cow. (N.
nership is not extinguished by its transfer Y. ) 688. And one partner, even after the
to another firm composed in part of the dissolution of the nrm, mav indorse the
same persons ; the latter firm may nego- note of the firm, payable to nimaelf, given
tiate the note to third persons. Fulton v. before the dissolution. Temple v. Seaver,
Williams, 11 Cush. 108, 110. If a note is 11 Cush. (Mass.) 314 ; Quinn v. FuUer, 7
given by a firm to one of its members, he Id. 224 ; Decreet v. Burt, Id. 551.
cannot sue it in his own name, but he may (6) If the note of the firm is given by
indorse it, and his indorsee may sue ; and one copartner for his individual debt, dur-
if one partner gives his note to the firm, ing the continuance of the partnership,
they cannot sue it, but their indorsee may and the other copartner, with a full knowl-
bring an action thereon. Ibid. ; Little v, edge of the fact, recognizes and ratifies the
Rogers, 1 Met. (Mass.) 108 ; Thayer v, note so given as a partnership note, it
Buffum, 11 Id. 898 ; Davis v. Briggs, 89 thereby lands the firm. Wheeler v. Rice,
§ 479. Proof of partnenblp. The usual proof of partnership is
by the evidence of clerks, or other persons, who know that the
parties have actually carried on business as partners. Though
the partnership was constituted by indentures, or other writings,
it is ordinarily not necessary, in an action between the partners
and third persons, to produce them.^ And if the witness called
to prove a partnership in fact is unable to recollect the names of
all who are members of the firm, bis memory may be assisted by
suggesting them.^
§ 480. Defence as against partners. In dtfefnct of an action
of assumpsit brought by partners, the defendant may show any
separate agreement between hi^ and one of the plaintiffs, which
would have been available if made by all ; such as an agreement
by one to provide for the payment of a bill, accepted by the
defendant for the accommodation of the firm ; ^ or an agreement
with the drawer of a bill, by A, a partner in the house of A &
By to provide for the payment of the bill, which was negotiated
by them to the firm of A & C, in which also he was a partner.^
So where the defendant has allowed to one partner the amount
of the partnership debt, on settlement of his private account
against the partner, if done in good faith, it is a valid defence
against the firm.'^ (a) So if, in the particular transaction, the
conduct of one partner has been fraudulent, as, if he sell and
deceitfully pack goods in a foreign country, to be imported in
fraud of the revenue laws, it is a good defence to an action by
the firm for the price, though his partners were ignorant of the
fraud.8 (6)
1 Alderaon v. Clay, 1 Stark. 405 ; CoUyer on Partn. 406 ; Dntton «. Woodman,
9 Cush. 256.
• Ante, vol. i. § 485 ; Acerro v. Petroni, 1 Stark. 400.
' Richmond v. Heapy, 1 Stark. 202 ; Sparrow v, Chisman, 9 B. & C. 241 ; Jones v,
Yates, 9 B. & C. 582.
< Jacand v. French, 12 East, 817.
^ Henderson v. Wild, 2 Caropb. 561. * Biggs v. Lawrence^ 8 T. B. 454.
8 Cush. (Mass.) 205, 208; Swectser v. 10 N. H. 15; Richmond v. Heapy, 1
French, 2 Id. 809 ; Gansevoort v. Wil- Stark. 202 ; Jones ». Yates, 9 B. & C.
liams, 14 Wend. (N. Y.) 189, 140; Bank 582 ; Wallace ». Kelaall, 7 Mees. & Welsh,
of Kentnckv v. Brooking, 2 Littell (N. C), 264, 273 ; Story on Partn. § 238 ; Collyer
41. Mere knowledge on their part is no on Partn. § 643. But see Pordy v. Pow-
proof of assent. £lliott v. Dudley, 19 ers, 6 Pa. St. 892.
Barb. (N. Y.) 826. (6) One partner cannot maintain an ac-
(a) It ia also a Talid defence against the tion at law on the covenants in the articles
firm, though the partner act fraudulently, of copartnership to recover damages of his
if the creditor act in good faith. Homer copartner for neglect of the partnership
V. Wood, 11 Coah. (Mass.) 62, where the business, while there is a considerable a-
authorities are reviewed; Greelyv. Wyeth, mount due from Um to his copartner, and
488 LAW OF BVIDENOB. [PABT IV.
§ 481. Fartnen inter lese. As between the parties themselves,
a partnership is constituted by a voluntary contract between two
or more competent persons, to place their money, effects, labor^
and skill, or some or all of them, in lawful commerce or business,
with the understanding that there shall be a communion of the
profits thereof between them.* (a) The proof of the partnership,
therefore, will be made by any competent evidence of such an
agreement. If it is contained in written articles, these, in an
action between the partners, must be produced or proved ; and
the parties themselves will be governed by their particular terms,
^ Story on Partn. § 2 ; 8 Kent, Comin. pp. 2S, 24 ; CoUyer on Partn. pb 2. A sat-
^;eon selling oat his business, but retaining a moiety of the first year's net profits, for
introducing his patients to his successor, and other like services, held not a partner.
Bawlinson v. Clark, 16 M. k W. 292. A proprietor of a newspaper selling out, but
retaining a share in the profits, held a partner, under the circumstances of the case.
Barry v, Nesham, 10 Jur. 1010. And see Pott v. Eyton, 15 Law Journ. K. s. 257.
the debts due by and to the firm, the bur- B partners in regard thereto. Hawes v,
den of which is to be borne, and the bene- Tillinghast., 1 Gray (Mass.), 289.
fit enjoyed, by the partnero in certain So the parties who prosecute a law suit
proportions, are not all settled. Capen v. jointly are not, as between themselvesi
narrows, 1 Gray (Mass.), 876, 382. In partners, in reference to the property,
such an action, if there are several part- Wilson v. Cobb, 28 N. J. £q. 177. An
ners, all must join against the delinquent agreement by which one receives a certain
member of the firm. Ibid. No ac- per cent of the profits as compensation for
tion at law can be maintained on a joint nis services has oeen held not to make him
agreement by the plaintifis and defendants, a partner, as between him and others in-
who were all members of the same joint- terested in the profits. Smith v, Bodine,
stock compan^i formed to purchase a ves- 74 N. Y. 80.
sel of the plaintifTa Mynck v. Dame, 9 For other cases in which the facts were
Cush. (Mass.) 248 ; Green v. Chapman, held either sufficient or insufficient to es*
27 Vt 286 ; CoUamer v. Foster, 26 Vt. tablish a partnership, see Judson v. Adams,
754. Where two persons do business 8 Cush. (Mass. ) 556 ; Fay v. Noble, 7 Id.
under the name of one of them, a bill 188 ; Trowbridge v, Scudder, 11 Id. 83 ;
drawn on that person, and by him accep- Denny v. Cabot, 6 Met. (Mass.) 82 ; Biad-
ted, is presumed in law to bind him only, ley v. White, 10 Met. (Mass.) 808; Holmes
and not the firm. Mercantile Bank v. v. Porter, 89 Me. 157 ; Knowlton v.
Cox, 88 Me. 500. Beed, 88 Id. 246 ; Banchor v. Cilley, Id.
(a) A made with B the following agree- 558 ; Ripley v. Colby, 28 N. H. 488 ;
ment in writing : ** Sold B, on joint ac- Newman v. Bean, 1 Id. 98 ; Belknap v,
count vrith A, two thousand boxes of Wendell, 1 Id. 175 ; Hatch o. Foster,
candles at twenty-six cents, six months 27 Vt. 515 ; Penniman v. Munson, 26 Yt.
from delivery ; B to be allowed two and a 164 ; Mason v. Potter, Id. 722 ; Noyes v.
half per cent on sales; on all sales not ap- Cushman, 25 Id. 390; Brock way «. Bur-
prov^ by A, B is to guarantee the same, nap, 16 Barb. (N. Y.) 809 ; Catudll Bank
receiving a commission of two and a half v. Gray, 14 Id. 471 ; Vassor v. Camp, Id«
per cent ; for one-half of the sales made by 841 : Hodffman v. Smith, 18 Id. 802 ;
B, he is to pass over the paper to A; there Smith v, Wright, 5 Sandf. (N. Y. ) 113;
are to be no chaiges for storage ; property Wadsworth v. Manning, 4 Md. 59 ; Peir*
in store to be covered by insurance oy B son v. Steinmyer, 4 Rich. (S. C. j 309 ;
for joint account and expense ; '* and the Blue v. Leathers, 15 111. 31 ; Stoallmgs «•
parties acted under and in pursuance of Baker, 15 Mo. 481; Tibbatts v. Tibbatts,
this agreement Held, that this consti- 6 McLean, C. C. 80 ; Stocker v. Brockel-
tutf>d a sale of an undivided half of the bank, 5 Eng. Law & £q. 67 ; Peel v,
candles by A to B» and did not make A and Thomas, 29 Id. 276.
PAST IT.] PABKNEB8HIP. 489
but their precise limitations will not affect strangers, to whom
they are unknown.* (a)
§ 482. As against third persons. In favor of third persons, and
against the partners themselves, the same agreement ought gener-
ally to be established by such competent evidence as is accessible to
strangers. Where there is a community of interest in the property,
and also a community of interest in the profits, there is a partner-
ship. If there is neither of these, there is no partnership. If one
of these ingredients exist, without the presence of the other, the
\ general rule is, that no partnership will be created between the
parties themselves, if it would be contrary to their real intentions
and objects. And none will be created between themselves and
third persons, if the whole transactions are clearly susceptible of
a different interpretation, or exclude some of the essential ingre-
dients of partnership.^ The cases in which a liability as partners
1 Winship v. United Stotea Bank, 5 Peters, 020 ; QUI v. Euhn, 6 S. & R. 88S ;
ChDTChman v. Smith, 6 Wtiart. 146; Tillier o. Whitehead, 1 DaU. 269; United States
Bank v. Binney, 5 Mason, ] 76.
* Story on rartn. § 80. This learned anthor proceeds to discuss the distinction be-
tween an agreement for a compensation proportioned to the profits, and an agreement
for an interest in such profits, so as to entitle him to an account as a partner, and then
obeerres as follows : " Admitting, however, that a participation in tine profits wiU or-
dinarily establish the existence of a partnership between the parties in faror of third
persons, in the absence of all other opposing circumstances, it remains to consider
whether the rule ought to be regutied as anytning more than mere presumptive proof
thereof, and therefore liable to be repelled, and overcome by other circumstances, and
not as of itself overcoming or controlling them. In otner words, the question is,
whether the circumstances under which the participation in the profits exists may not
qualify the presumption, and satisfactorily prove that the portion of the profits is taken,
not in the cliaracter of a partner, but in the character of an agent, as a mere compen-
sation for labor and services. If the latter be the tnie predicament of the party, and
the whole transaction admits, nay, requires, that very interpretation, where is the rule
of law which forces upon the transaction the opposite interpretation, and requires the
court to pronounce an agency to be a partnership, contrary to the tnith of the facts and
the intention of the parties ? Now, it Ib precisely upon this very ffround that no such
absolute rule exists, and that it is a mere presumption of law, which prevails in the
absence of controlling circumstances, but is controlled by them, that the doctrine in
the authorities allude to is founded. If the participation in the profits can be clearly
shown to be in the character of agent, then the presumption of partnership is repelled.
In this way the law carries into effect the actual intention of the parties, and violates
none of its own established rules. It simply refuses to make a person a partner, who
is but an agent for a compensation, payable out of the profits ; and there is no hard-
ship upon third persons, since the party does not hold himself out as more than an
agent This qualification of the rule (the rule itself being built upon an artificial
foundation) is, in truth, but carrying into effect the real intention of the parties, and
would seem far more consonant to justice and equity, than to enforce an opposite doc-
trine, which must always carry in its train serious mischiefs, or ruinous results, never
(a) As between the partners, the books at the trial to be kept in such a way that
of the firm are evidence. Cheever v. La- the relative liabilities of the partners can-
mar, 19 Hun (N. T.J, 180; Boire v, Mc* not be ascertained, this fbmishes a strong
Ginn, 8 Or. 466. Ii the books are kept presumption against him. Dimond «. Hen-
by one of the partners, and they are found denon, 47 Wise 172.
490 LAW OF EYIDENCE. [PART TV,
as to third persons exists have been distributed into five classes.
First, where, although there is no community of interest in the
capital stock, yet the parties agree to have a community of in-
contemplated by the the parties." Id. § 38. And after citing and commenting on the
principal cases upon this subject, he concludes thus : "These may suffice as illustra-
tions of the distmction above alluded to. The whole foundation on which it rests is,
that no partnership is intended to be created by the parties inter sex ; that the agent
is not clothed with the general powers, rights, or duties of a partner ; that the share in
the profits given to him is not designed to make him a partner, either in the capital
stock or in the profits, but to excite his diligence, and secure his personal skill and ex-
ertions, as an agent of the concern, and is contemplated merely as a compensation
therefor. It is, therefore, not only susceptible of being treated purely as a case of
agency, but in reality it is positively and absolutely so, as far as the intention of the
jiarties can accomplisn the object. Under such circumstances, what ground is there in
reason, or in equity, or in natural justice, why in favor of third persons this intention
should be overthrown, and another rule substituted, which must work a manifest in-
justice to the agent, and has not operated either as a fraud, or a deceit, or an intentional
wronff u^n third persons ? Why should the agent, who is by this very agreement de-
prived ot all power over the capital stock, and the disposal of the funds, and even of
the ordinary rifirhts of a partner to levy thereon, and an account thereof, be thus sub-
jected to an unlimited responsibility to third persons, from whom he has taken no mors
of the funds or profits (and, indeed, ordinarily less so) than he would have taken, if the
compensation h»i been fixed and absolute, instead of being contingent ? If there be
any stubborn rule of law which establishes such a doctrine, it must be obeyed ; but if
none such exist, then it is assuming the very ground in controversy to assert that it
flows from general analogies or principles. On the contrary, it may be far more cor-
rectly said, that even admitting (what, as a matter uuafi*ected by decisions, and to be
reasoned out upon original principles, might well be doubted) that where each party is
to take a share of the profits indefinitely, and is to bear a proportion of the losses, each
having an equal right to act as a princi^ial, as to the profits, although the capital stock
might belong to one only, it shall constitute, as to third persons, a case of partnership ;
yet that rule ought not to apply to cases where one party is to act manifestly as the mere
agent for another, and is to receive a compensation for his skill and services only, and
not to share as a partner, or to possess the rights and powers of a partner. In short,
the true rule, ex oequo el boTio, would seem to be, that the agreement and intention of
the parties themselves should govern all the cases. If they intended a partnership in
a capital stock, or in the profits, or in both, then, that the same rule should apply in
favor of third persons, even if the agreement w^ere unknown to them. And, on the
other hand, if no such partnership were intended between the parties, then that there
should be none as to third persons, unless where the parties had held themselves out as
partners to the public, or tneir conduct operated as a fraud or deceit upon third per-
sons. It is upon this foundation that the decisions rest, which affirm the truth and
correctness of the distinction already considered as a qualification of the more general
doctrine contended for. And in this view it is difficult to perceive why it has not a just
support in reason, and equity, and public policy. Wherever the profits and losses are to
be snared by the parties in fixed proportions and shares, and each is intended to be
clothed with the powers, and rights, and duties, and responsibilities of a principal,
either as to the capital stock, or the profits, or both, there may be a just ground to as-
sert, in the absence of all controlling stipulations and circumstances, that they intend
a partnership. But where one party is stripped of the powers and rights of a partner,
and clothed only with the more limited powers and rights of an agen^ it seems harsh,
if not unreasonable, to crowd upon him the duties and responsibilities of a j.)artner,
which he has never assumed, and for which he lias no reciprocity of inward or interest.
It has, therefore, been well said by Mr. Chancellor Kent in his learned Commentaries,^
that * to be a partner, one must have such an interest in the profits as will entitle^ him'
to an account, and give him a specific lien or preference in payment over other creditors.
There is a distinction between a stipulation for a compensation for labor proportioned to
the profits, which does not make a person a partner ; and a stipulation for an interest
in such profits, which entitles the party to an account as a partner.' And Mr. Collyer
has given the same doctrine in equally expressive terms, when he says, that in order to
constitute a communion of profits between the parties, which shall make them partner^
terest or participation in the profit and loss of the business or
adventure, as principals, either indefinitely or in fixed propor*
tions. Secondly, where there is, strictly speaking, no capital
stock, but labor, skill, and industry are to be contributed by
each in the business, as principals, and the profit and loss thereof
are to be shared in like manner. Thirdly, where the profit is
to be shared between the parties, as principals, in like manner,
but the loss, if any occurs beyond the profit, is to be borne exclu-
sively by one party only. Fourthly, where the parties are not in
reality partners, but hold themselves out, or at least are held out
by the party sought to be charged, as partners to third persons,
who give credit to them accordingly. Fifthly, where one of the
parties is to receive an annuity out of the profits, or as a part
thereof.^ Wherever, therefore, the evidence brings the case with-
in either of these classes, a partnership, as against the parties, will
be sufficiently proved, (a)
§ 483. In oontraot against pfutnars. It is essential, in an action
the interest in the profit must be mutual ; that is, each person most have a specific in-
terest in the profits, as a principal trader." Id. §§ 48, 49. (b)
^ Story on Partn. § 64 ; Id. §S 55-70 ; CoUyer on Partn. o. 1, J 2, pp. 48-56.
(a) Where one lends money to a firm, Denny v. Cabot, 6 Met. (Mass.) 85 ; Holmes
which money is to be paid back absolutely v. Old Colony R. R., 5 Gray (Mass.^,
without regard to the profits of the firm, 58 ; Fitch v. Harrington, 13 Gray (Mass.),
the fact that he is to receive a part of the 468 ; Brigham v. Dana, 29 Vt 1 ; Legett
profits does not make him a partner, as he v. Hyde, 58 N. Y, 272 ; Parsons on Part-
does not share the risk of loss. Eager v. nership, 71, and n. (/) ; where the true
Crawford, 76 N. Y. 97. Nor is he if he test is said to be, " Did the supposed part-
takes part of the profits as interest. Hart ner acquire by his bargain any property in,
V, Kelley, 83 Pa. St. 286. If, howeyer, he or any control oyer, the profits, while they
receives the share of the profits qua profits, remained undivided ? If so, he is liable
he is liable as partner to third parties, to third persons, and otherwise not." Also
Le^eU V. Hyde, 58 N. Y. 272. Braley v, Goddard, 49 Me. 145 ; Atherton
Where persons agree to share the profits v, Tilton, 44 N. H. 452. In Cox v. Hick-
of a business, an agreement between them- man, 8 H. L. Cases, 268, 306, and s. o. 9
selves that they shall not be partners will C. B. N. 8. 47, it is held that the test
not aifect third parties. Haas v. Roat, 16 whether a person who is not an ostensible
Hun (N. Y.), 526. partner in a trade is nevertheless, in con-
Societies and clubs formed for political templation of law, a partner, is not whether
or social purposes — e. g. the so-called he is entitled to participation in the profits,
"Granges" — are not partnerships. Rich- — although this affords cogent, often con-
moiid V. Judy, 6 Mo. App. 465 ; Edgerly elusive, evidence of it, — but whether the
V. Gardner, 9 Neb. 130. trade has been carried on by persons act-
Where a number of people act as a cor- ing on his behalf. 1^18 rule is followed in
poratioQ, and«r a corporate name, without Kushaw v. Jukes, 8 B. & S. 847, and Eng-
an^ legal org^ization, their liability to lish and Irish Church University in re, 1
third parUes is that of copartners. Mar- H. & M. 85. See also, upon this and other
aeilles, &c. Co. v, Aldrich, 86 IlL 504. kindred points, a valuable paper in 17 Am.
(6) See, on this question of partnership L. Reg. 209, on the "Ciitena of Partner^
from a participation in the profits, Bert- ship/
hold V. Goldsmith, 24 How. (U. S.) 536 ;
492 LAW OP EVIDENCE. [PAET IV.
ex contractu against partners^ that the evidence of partnership
should extend to all the defendants ; ^ otherwise the plaintiff will
be nonsuited. But the utmost strictness of proof is not required ;
for though, where they sue as plaintiffs, they may well be held to
some strictness of proof, because they are conusant of all the
means whereby the fact of partnership may be proved ; yet where
they are defendants, the facts being less known to the plaintiff,
it is sufficient for him to prove that they have acted as partners,
and that by their habit and course of dealing, conduct, and decla-
ration, they have induced those with whom they have dealt to
consider them as partners.^ (a) ^Hence, if two persons have in
many instances traded jointly, this will be admissible evidence
towards the proof of a general partnership, and sufficient, if the
instances of joint dealing outweigh the instances of separate deal-
ing, to throw upon the defendants the burden of proving that it
was not such a partnership.^ And though the partnership was
established by deed, yet, against the parties, it may be proved by
oral evidence of partnership transactions,^ or by the books of the
1 Young V. Hanter, 4 Taunt. 582. In asmmpnt, the fact of partnerehip is put in
iflsae by the plea of non ajtsumptU, Tomlineon v. CoUett, 3 BlacKf. 436.
* 2 Stark. Evid. 585, 586; Evans v. Curtis, 2 C. & P. 296. If it be clear that the
party, at the time of the acts and admissions, was not a i)artner, they will not render
Iiim liable for a prior debt of the firm. Saville v. Robertson, 4 T. R. 720. Nor wiU
an admission of a partnership in one transaction bind the party as a partner in another
matter not connected with it. De Berkom v. Smith, 1 Esp. 29. If the articles of co-
partnership are produced in evidence against the firm, it will be sufficient to prove the
signatures of those who are parties to the suit Beach «. Vanderwater, 1 Sandf. S. C.
265.
* Newnham v, Tethrington, cited in Collyer on Partn. p. 450 ; Etheridge v. Binney,
9 Pick. 272. The signature of a joint note by two persons is no evidence of a partner-
ship between them. Hopkins v, smith, 11 Johns. 161. But the signature of the name
of a firm is evidence a^inst the person signing it, that he is one of tiie {lartners. Spen-
cer V, Billing, 3 Campl). 812.
« Alderson v. Clay, 1 Stark. 405 ; Widdifield v. Widdifield, 2 Binn. 249 ; Allen v.
Rostain, 11 S. & R. 362.
(a) Where one represents himself or a way as to hold themselves out to the
caiises others to represent him as being a world as partners, evidence may be given
member of their firm, he is liable to those of the whole manner of carrying on the
who trade with the firm, believing him to business, and those who have had deal-
be a partner. Rice v, Barrett, 116 Mass. ings with them are admissible as witnesses
312; Rowland v. Long, 45 Md. 439; to testify to these facts. Parshall «. Fisher,
Brugman v. McGuire, 82 Ark. 733. To 48 Mich. 529.
establish this liability he must know or In settling the affairs of a firm, where
have reason to know that he is regarded it was found that the same partners carried
as a partner. lU Jewett, 15 Bankr. Reg. on business in two places, under different
126. names, it was held that all the assets of the
Where the plaintiff seeks to fix a lia- two nominal firms should be applied to pay-
bility on the aefendants as partners by ing all the creditors of both, ha Williams,
reason of their carrying on busmess in such 8 Wood C. C. 498.
firm.' (a) But evidence of general reputatiOD, or commoa report
of tbe existence of the partnership, is not admissible, except in
corroboration of previous testimony ; unless it be to prove the
fact, that the partnership, otherwise shown to exist, was known
to the plaintiff.^ (6)
§ 484. Proof by deolaratloiu and admlMloiu. A partnership may
also be proved against the parties, by their respective dedarationa
and admitnoru, whether verbal, or in letters or other writings.
Thus where, upon the trial of tbe question of partnership, the
defendants, in order to render a witness competent, executed a
release to him, the release was permitted to be read by the
plaintiff, as competent evidence in chief to establish the partuer-
sbip.' (c) So, also, an entry at the custom-house, by one partner
in the name of the firm, is admissible, though not conclusive evi-
dence for the same purpose.* In other cases, the act, declaration,
or admission of one person is not admissible in evidence to estab-
lish the fact that others are his partners, though it is ordinarily
sufficient to prove it aa against himself.' (d) But if , in an action
> Richtar o. SeUn, 8 S. & R. 425 ; Champlin v. TUley, 3 Daj, 30« ; HiU «. Han-
cheater Wsterw. Co., 2 N. & M. 573.
> Alien V. RostaiD, U S. ii R. 362 : Whitne; n. Sterliog, 14 Johiu. 215 i Bernard
V. TomiiiCB, 5 Qill k Johns. 383. 9ee also Gnwan v. Jackson, 20 Johns. 176 ; UaUidav
V. UcDaugall. 20 Wend. 61 ; Brand v. Ferriday, 16 La. 296.
' Gibbons v. Wilcoi, 2 atark. 43. And see Parker v. Barker, 1 B. & B. ». Deo-
laralions made to a third person are admissible, thnugh not made in the presence of the
other jnrtiea. Shott v. Strcalfield, 1 M. & Rob. 8.
• Ellis e. Watson, 2 Stark. 453.
' Burgue n. De Taslat, 3 Surk. 53 ; Flower v. Young, 3 Campb. 240 ; Tinkler ».
Walpole, 14 East, 226 ; Cooper v. South. 4 Taunt, 802 ; Whitney v. Ferris, 10 John*.
96 ; Tnttle 0. Cooper, 6 Pick. 414 ; Robbina v. Willord, 8 Pink. 464 ; McFheraon b,
Rathbone, 7 Wend. 216. See aatc, vol. i. § 177 ; UcCutchiu v. Bankatone, 2 EellT,
S44 ; Oiaflon Bank «. Uoore, 13 S. H. »S.
(a) Entries in the books of a linn are far this ia hearsay. Cook v. Penrhyn Slata
not evidence againat any one to show that Co., 36 Ohio St. 135 ; Camiibell v. Hut-
he is a raeoiber of the firm. Robins v. ings, 29 Ark. 612. But evidence of gen-
Warde, 111 Mass. 244. Nor, in a siiit be- erij ivputation is admissible on tbe ques<
tween partners, are entries in the plaintiff's tioo of whether one is a dormant partner.
books, charging the defendant aa a pnrtner, M etc* If v. OtGcer, 1 McCrary, C. C. S2S.
admissible. McNamaia v. Draft, 40 Iowa In any case, iritis bIiowd that the defend-
413. ant knew he was being held out and re-
(t) Brown v. Bains, B8 Iowa. SI ; Sa- rarded as a partner, and does not contisdict
ger V. Tupper, 88 Hich. 26S ; Carlton «. Uia general report or the repuUtion, he is,
Ludlow woolen Mills, 27 Vt. 4S6 ; Brown as to third parties, a partner. Campbell
«. Crandall, 11 Conn. 92 ; Bowen v. «. Hastings, tapra,
Rutherford, 60 111. 41. Bach general (c) Where three partiraeresued aapart-
repntation does not make anch a prima ners, and no service ia made on one, hla
/aci^ oue as calls on the defendant to in- declarations are inadmissible as proof of
troilnce any evidence to tehnt it. Taylor the partnership. Smith v. Hulett, 66 IlL
V. Wehater, 39 N. J. h. 102. And see 49G.
pine, % 435. The putnarabip cannot be
proved by the report of a mercantile agency.
494 LAW OF EVIDENCE. [PABT TV.
against three as partners, two have acknowledged the existence of
articles of copartnership, which the third, on due notice, refuses
to produce at the trial, the jury will be warranted in finding the
fact of partnership upon this evidence alone.^ In one case, where
the issue of partnership was raised by a plea in abatement, for
the non-joinder of parties as defendants, the admission of liability
as a partner, by one not joined in the suit, being good in an action
against him, was held to be also receivable on this issue, to prove
him a partner.* (a)
§ 485. Defences. The proof of partnership may be answered by
the defendant, by evidence of an arrangement between the parties,
by which either the power of the acting partner to bind the firm,
or the defendant's liability on the contracts of the firm, was lim-
ited, qualified, or defeated; provided the plaintiff had previous
and express notice.^ The defendant may sdso show that he was
not a partner in the particular trade in which the transaction
took place, and that the plaintiff knew the fact;^ or, that the
partnership was previously dissolved ; or, that he had notified
the plaintiff not to deal with his partner, without his own con-
currence.^ (J)
§ 486. SurvlTlng partner. T^itneee. In an action against the
administrators of a deceased partner, the surviving partner is a
competent witness to prove the partnership; for he has no in-
terest in the matter, such an action not being maintainable at
law.^ But in an action brought by the surviving partner as such,
the widow of his debased partner is not a competent witness for
1 Whitney v. Sterling, 14 Johng. 216.
s Clay V. Langslow, 1 M. & Malk. 45. Sed qtuare, and see ante^ voL L § 895 ; Mil-
ler V. M'Clenachan, 1 Yeates, 144.
* Minnett v, Whitney, 5 Bro. P. 0. 489 ; Collyer on Partn. 214, 456 ; JBx parU
Harris, 1 Madd. 683 : Alderson v. Clay, 1 Campb. 404.
* Jones V, Hunter, Dan. & Uoyd, 216 ; Collyer on Partn. 456.
* WiUis V. Dyson, 1 Stark. 164 ; Lord Galway v. Matthew, 10 East, 264.
* Grant v. Shutter, 1 Wend. 148.
«. Stevens, 19 N. H. 466. And such admis- admissible against the other parties. Hogg
dons need not be made at the exaot time at «. Orgill, 84 Penn. 844.
which the cause of action arose, if they (b) But proof of the dissolution must
are sufficiently near it to allow a reasons- be oy notice published in a newspaper at
ble inference that the partnership existed least, and actual notice to all correspon-
at the time when the cause of action arose. dent& Notoriety is not proof of the dis-
Sager v. Tupper, 88 Mich. 258. But cf. solution, it being a private and not a public
Ru]ie«. Bumell, 121 Mass. 450. matter. Pitcher n. Barrows, 17 Pick,
(a) The admissions of one partner, made (Mass.) 861 ; ante, yoL i. §§ 187, 188;
after the dissolntion of the ftnn, are not Dickinson v, Dickinson, 25 Gratt (Ya.)
821.
Ilim, her testimony going to increase the fund, of which she is
entitled to a distributive share.^ A dormant partner is a compe-
tent witaess for his partner in an action by the latter, if he releaaes
his interest in the subject of the suit.'
1 Allen V. Blaachard, 9 Cowen, SSI. ■ ClarkHm *. Carter, S Cowcn, 84.
496 LAW OP BYIDBNCB. [PABT lY.
PATENTS.
§ 487. Remedy for Infringement The remedy for the infringe-
ment of a patent-right, both by statute and conmion law, is by an
action on the case.^ From the nature of the action and the tenor
1 Stat U. S. 1886, c 857, § 14; 1 Chitty on Plead. 181. The declaration for the
infringement of this right is given by Mr. Phillips in his excellent Treatise on the
Law of Patents, p. 620, as follows: " To answer to A of B, in the county of S, In
the district of , manufacturer, in a plea of trespass on the case, for that the plain-
tiff was the original and first inventor [or discoverer] of a certain new and useful art
[machine, manufacture, composition of matter, or improvement on any art, machine,
&c., taking the words of the statute most applicable to the subject of the invention]
in the letters-patent hereinafter mentioned and fully described, the same being a new
and useful [here insert the title or description given in the letters-patent], which was
not known or used before his said invention [or discovery], and which was not, at the
time of his application for a patent as hereinafter mentioned, in public use or on sale
with his consent or aUowance; and the plaintiff, being so as aforesaid the inventor [or
discoverer] thereof, and being also a citizen of the United States [if the fact is so],^ on
the >-^ day of [here insert the date of the patent], upon due application there-
for, did obtain certaiu letters-patent therefor in due form of law under the seal of the
Patent Ofiice of the United States, signed bv the Secretary of State, and countersigned
by the Commissioner of Patents of the United States, bearing date the day and year afore-
said, whereby there was secured to him, his heirs, administrators, executors, or assigns,*
for the term of fourteen years from and after the date of the patent, the full and exclu-
sive right aud liberty of making, using, and vending to others to be used, the said inven-
tion [machine, improvement, or discovery], as by tne said letters-patent, in court to be
produced,* will fully appear.^ And the plaintiff further says, that from the time of the
1 '*It has been suggested, in a preceding ]part of this work, p. 408" (says Mr.
Phillips in his note in this place), '* that the citizenship of the patentee need not be
proved by the plaintiff, and, if so, it need not be averred. This will, however, depend
upon the construction that shall be given to the 15th section of the act of 1836, c. 357,
by which, if the patentee be an alien, the defendant is permitted to give matter in evi-
dence, tending to show that the patentee 'has failed and neglected for the space of
eighteen months from the date of the patent to put and continue on sale to the public,
on reasonable terms, the invention or discovery.' The position referred to in p. 408
assumes that the burden on this point is, in conformity to the language of the statute
in the first instance, on the defendant. But to go on tiie safer side, tne above form of
declaring assumes the burden to be on the plaintiff to aver and prove, in the first in-
stance, that the patentee is a citizen of the United States, or, if an alien, and the
eighteen months nave expired before the date of the writ, that he has put and con-
tinued the invention on sale in the United States on reasonable terms."
« «* Act of 4th of July, 1836, c. 857, § 5."
» " Which the phiintiff brings here into court." Chit PI. vol ii. p. 795 (5th ed-X
* ''The Englisn precedents here state the making and filing of the specification,
the assignment of the patent, and the recording of the assignment, if the action be in
the name of an assignee, or if an assignee of part of the right is joined.
"If the patentee is an alien, and the counsel chooses to declare very cautiously, if
eighteen months have expired from the date of the patent, he may here introduce the
averment, that within eighteen months from the date of the patent, namely, on, Sm,,
at, &c., he (or his assignees) put the invention on sale in the United States, on reason-
able terms, and from that time always afterwards to the time of purehasinff the writ,
he (or they, or he and they) had continued the same on public sale, in tne United
States, on reasonable tenns,"
PABT IV.] PATENTS. 497
of the declaration, as stated below, it is apparent that the plaintiff,
under tl)e general issue, may be required, and therefore should be
prepared, to prove, (1) the grant and issuing of the letters-patent,
together with the specification and the assignment to him, if he
claims as assignee ; (2) that the invention was that of the paten-
tee, and was prior to that of any other person ; (3) that it is new
and useful, and has been reduced to practice ; (4) that it has sub-
sequently been infringed by the defendant ; and the damages, if
any, beyond a nominal sum are claimed, (a)
granting to him of the said letters-patent, hitherto, he has made, used, and vended to
others to be used [or he has made, or has used, or has vended to others to be used, as
the case may bej, the said invention [machine, improvement, or discovery], to his
great advantage and protit [or if he has not made, used, or vended, then, instead of
the above averments, may be substituted after the word ' hitherto,' ' the said exclusive
right has been and now is of great value to him, to wit, of the value of $ '1.^ Yet
the said D, well knowing the premises, but contriving to injure the plaintiff,^ did on
the [some day aiter the date of the patent], and at divers times before and afterwards,
during the said term of fourteen years mentioned in said letters-patent, and before the
purchase of this writ, at 0, in the county of M, in the said district of — -, unlaw-
rally and wron^uUy, and without the consent or allowance, and agninst the will of the
plaintiff, make^use, and vend to others to be used, or did make, or did use, or did vend
to others to be used, as the case may be] the said invention [machine, improvement, or
<l^s<^^^ryl in violation and infringement of the exclusive right so secured to the
plaintiff by said letters-patent as atoresaid, and contrary to the form of the statutes of
the United States in such case made and provided, whereby the plaintiff has been
greatly injured, and deprived of great profits and advantages, which he might and
otherwise would have derived from said invention ; and has sustained actual damage
to the amount of ; and, by force of the statute aforesaid, an action has accrued to
him, to recover the said actual damage, and such additional amount, not exceeding in
the whole three times the amount of such actual damages,* as the court may see fit
to order and adjudge. Yet the said D, though requested, has never paid the same, or
any part thereof, to the plaintiff, but hath refused, and yet refuses, so to do."
^ The principle upon which these averments are made is the same as that upon
which, in an action for trespass upon personal property, the value of the property is
alleged, by way of showing that it was a thing in respect to which the plaintiff might
sustain damage. Mr. Gould says of this averment: 'As he (the plaintiff) is not
obliged to state the true value, tne rule requiring it to be stated would seem to be of
no great practical use.' Gould's PI. c. 4, § 87, p. 187. Mr. Chitty says, the above
averments as to profit by making, using, and vending are sometimes omitted. The pro-
priety of making the averment of the value seems to depend upon the question
whether the allegation of ownership of an article or species of personal property, or in-
terest in it, and possession of it, imports a value to the plaintiff, without specifically
alleging its value ; for if it does, then a ground of action distinctly appears, without
any such specific allegation."
* " ' Contriving and wrongfully intending to ii^ure the plaintiff, and to deprive
him of the profits^ benefits, and advantages wnich he might and otherwise would nave
derived and acquired from the makine, using, exercising, and vending of the said
invention, after the making of the said letters-patent, and within the said term of
fourteen years in said letters-patent mentioned.' Chit PL (5th ed.) vol. ii p. 766.
• "Act of 4th of July, 1836, c. 867, $ 14."
(a) The burden of proof on all these and shift the burden of evidence of any
points is on the plaintiff. Bates «. Coe, 98 defence, «. g, anticipation, on the defend-
U. S. ST. Mellen V. Delaware, &c Ry. Co., ant Grear v, Frencn, 11 Fed. Rep. 591 ;
12 Fed. Rep. 640, note. But the letters are Brodie v. Ophir, iBc. Co., 5 Sawyer C. C.
prima faeie evidence on all these points, 608 ; Comvallii Fruit (^ v. Curran, 8
VOL. n. 82
498 LAW OP EVIDENCE. [PART IV.
§ 488. Proof of letters-patent (1.) Tlie letters-patent^ to which,
in the United States, a copy of the specification is annexed as a
part thereof, are proved either by the production of the originals,
or by copies of the record of the same, under the seal of the
patent oflSce, and certified by the Commissioner of Patents, or, if
his office be vacant, by the chief clerk.^ (a) K the patent is for
an improvement, and the specification refers to the former patent,
without which it is not sufficiently clear and intelligible, the
former patent with its specification must also be produced.^ (i)
Where the proof is by an exemplification, it must be of the whole
record, and not of a part only. The drawings, if any, must be
produced, whenever they form part of the specification.
§ 489. ConBtmction of letters-patent. As letters-patent are not
granted as restrictions upon the rights of the community, but to
promote science and the useful arts,^ the courts will give a liberal
construction to the language of patents and specifications, adopting
that interpretation which gives the fullest effect to the nature and
extent of the claim made by the inventor.^ (c) The meaning is a
1 Stat. U. S. 1836, c. 357, §§ 4. 5. B^ this act, no lettere-patenta are to be issued
until the specification is filed ; which it is the duty of the clerk to enrol ; and there-
fore no particular evidence of the enrolment is required on the part of the plaintiff.
But in England, where the letters-patent are issued before the specification is nled, the
party is bound to see to the enrolment of his specification within a limited time, and
therefore is bound to show that this requirement has been complied with. Ex parU
Beck, 1 Bro. Ch. 578 ; £x parU Koops, 6 Ves. 599 ; Watson v. Pears, 2 Campb. 294.
' Lewis V, Davis, 3 C. & P. 502 ; Phillips on Patents, pp. 401, 402.
* Blanchard v, Sprague, 8 Sumn. 585.
* Ryan v. Goodwin, 3 Sumn. 514. Where a patent is granted for a term of years,
the day of the date of the patent is reckoned inclusive. Bossell v. Ledsman, 9 Jur.
557, 558.
Fed. Rep. 150 ; Miller v. Smith, 5 Id. of the office affixed thereto, and certified
859 ; Rogers v, Beecher, 4 Id. 639. and signed by the Commissioner of Pa-
So a decision of the patent office author- tents, shall be legal evidence of the con-
itics on the validity of a patent, in a case tents of said letters-patent in all cases.*'
when there is a conflict, throws the bur- {b) Kittle v, Merriam, 2 Curtis G. C.
den of introducing evidence on the party 475 ; Parker v. Stiles, 5 McLean 0. C.
against whom the decision is rendered 44.
(Wire Book S. M. Co. v. Stevenson, 11 (c) Parker v. Stiles, 6 McLean C. C. 44;
Fed. Rep. 155) ; but on an affirmative de- Winans v. Denmead, 15 How. (U. 8.) 830.
fence — e. g. license — the burden of proof But this rule of construction is applicable
is on the defendant (Watson v. Smith, 7 only to those cases where the state of the
Fed. Rep. 850). art is such that there is no conflict be-
lt has been said that the defence of a tween the claims of various inventors, and
prior invention is an affirmative defence, the patent which is the subject of judicial
Schillinger v. Gunther, 17 Blatch. C. construction is the first in the field.
C. 66 ; Putnam v, HoUender, 6 Fed. When, however, there are numerous pa-
Rep. 882 ; Howes v. Nute, 4 Cliff. C. tents covering nearly similar inventions,
C. 173. But cf. Miller v, Smitii, ntpra. the enlai^gement of any one claim beyond
(a) By act of 1861, c. 88, § 15, it is en- the construction which might fairlv be
acted, ** that printed copies of the letters- implied from its language woul^ work in-
patent of the United States, with the seal justice to other inventors who have equal
PAKT IV.] PATENTS. 499
question for the court, the words of art having been interpreted
by the jury.^ (a) K there is any obscurity in them, reference may
be had to the affidavit of the patentee, made and filed prior to the
issuing of the patent.* No precise form of words is necessary,
provided their import can be clearly ascertained by fair interpre-
tation, even though the expressions may be inaccurate.^ (6) But
if the claim is of an abstract principle or function only, detached
from machinery, it is void.* ((?)
§ 490. Suffioienoy of speoifloatioiL The plaintiff must give
some evidence of the sufficiency of the specification, if denied;
such as, the evidence of persons of science, and workmen, that
they have read the specification, and can understand it, and have
practised the invention according to it ; and such evidence will be
sufficient, unless the defendant can show that persons have been
misled by the specification, or have incurred expense in attempting
to follow it, and were unable to ascertain what was meant.^ (i)
The sufficiency of the specification, in matters of description, is
a question for the jury.^ (e) If a whole class of substances be
» Neilson v. Harford, 8 M. & W. 806. « Pettibone v. Deniger, 4 Wash. 216.
» Wyeth V, Stone, 1 Story, 273 ; Minter v. Mower, Wehet. Pat Caa. 188, 141 ;
8. 0. 6 Ad. & EL 785 ; Deroane «. Fairie, Id. 154, 157 ; 5 Tyrw. 898 ; s. o. 1 M. &
Bob. 457.
* filanchard v. Spnurae, 8 Snmn. 585 ; Wyeth v. Stone, 1 Story, 278 ; Lowell v.
Lewis, 1 Mason, 187 ; Earle v. Sawyer, 4 Mason, 1 ; Phillips on Patents, pp. 95-100,
109-113 ; Godson on Patents, c. 8, § 5.
* Turner v. Winter, 1 T. R. 602 ; Cornish v, Eeene, 8 Bing. N. C. 570 ; 8. 0. 4
Soott, 337. See, on the requisites of a sufficient specification, Phillips on Patents,
c. 11 ; Godson on Patents, c. 4. See also Bickford «. Skewes, Webst rat Gas. 219 ;
HouaehiU Co. v, Neilson, Id. 692.
* Walton V, Potter, Webst Pat Cas. 595.
claims upon the public for support, and Court is able to say from mere comparison
whose patents would be narrowed by such what are the indentions described in each,
enlarged constraction, and the strict con- and to affirm from such comparison that
struction of all the claims will be adopted they are not the same, then the question
by the courts. Delong v. Bickford, 13 of identitjr is one of pure construction, and
lad. Rep. 82 ; Neac^ «. Allis, Id. 874. not of evidence, and consequently is mat-
(a) On the question of the identity of ter of law for the Court without any anx-
the inventions described in a patent and iliary matter of fact to be passed on by
in a re-issue, the following rule of con- the jury when the action is at law. Cf.
struction was given in Heald «. Rice, in Jennings v. Eibbe, 10 Fed. Rep. 669.
the Supreme Court of the United States, (b) And the specification is to be con-
12 Fed. Rep. 222 : — strued according to the true import of the
Where the question of identity of the in- words used, rather than by their gram-
venUon in the original and re-issued pat- matical arrangement. Allen v. Hunt, 6
ents is to be determined by their face from Mcliean C. C. 303.
mere comparison, and if it appears from (c) Smith v, Ely, 5 McLean C. C. 76.
the face of the instruments tnat eztrin- \d) Curtis on Patents, 8d ed. § 478.
sic evidence in not needed to explain {e) Battin v. Taggart, 17 How. (IJ. S.)
the terms of art, or to apply the descrip- 74 ; Hogg v. Emerson, 11 Id. 587.
tions to the subject-matter, so that the
600 LAW OF EVIDENCE. [PABT IV.
mentioned as suitable, the plaintiff must show that each and
every of them will succeed ; for otherwise the difficulty of making
the instrument will be increased, and the public will be misled.^
But if the title describes the patent to have been granted for im-
provements, in the plural, whereas the specification discloses only
one improvement, it is no variance.' The object of the specifica-
tion is, that after the expiration of the term the public shall have
the benefit of the discovery.^ It must be understood according to
the acceptation of practical men at the time of its enrolment;
and be such as, taken in connection with the drawings, if any,
to which it refers, will enable a skilful mechanic to perform the
work.^ (a) If it contain an untrue statement in fact, which, if
literally acted upon by a competent workman, would mislead him,
and cause the experiment to fail, it is bad, even though a compe-
tent workman, acquainted with the subject, would perceive, and
in practice correct, the error.* (6)
§ 491. Assignment Besides the formal proof of the asiignmentj
where the plaintiff claims as assignee, he must show that the
assignment has been recorded in the patent-office, before he can
maintain any suit, either at law or in equity, either as sole or
joint plaintiff, at least as against third persons.^ (<?)
§ 492. OrlginaUty of invention. (2.) The next step in the
plaintiff's proof is to show, that the invention is original, and his
awn and prior to ^y other. Of this point, as the applicant for
1 Bickford v. Skewea, 6 Jar. 167 ; 8. a 1 Gale & D. 786.
3 Kickels v. Haalam, 7 M. & G. 878.
• Liardet v. Johnson, Bull. N. P. 76 ; Newberry v. James, 2 Meriv. 446.
* Crossly v. Beverly, 9 B. & C. 68 ; 8. c. 8 C. & P. 618 ; Blozam v. Elaee, 1 C. k
P. 558 ; 6 B. & C. 169 ; Morgan v. Seaward, 2 M. & W. 544.
» Neilson v, Harford, 8 M. & W. 806. • Wyeth v. Stone, 1 Stoiy, 278.
(a) The words "or the equivalent there- (c) An invention may be assigned as
for," in a claim, cannot apply to another well before as after the application for a
invention differing in arrangement and patent; but the patents must be applied
principle, but equivalent in result. The for and issued in the name of the uven-
words embrace only colorable imitations, tor, and when obtained it will enure to the
McCormick «. Manny, 6 McLean C. C. benefit of the assignee. Rathbone v. Oir,
589. 5 McLean C. C. 184. It seems that a
(b) In construing the specification of license to run a patented machine, not
claim in letters-patent, the entire specific being considered a personal privilege, is
cation and drawmgs are to be exammed ; assignable. Wilson v. Stolly, 5 McLean
and though there is an error in showing C. C. 1. Parol evidence is admissible in an
how a particular element enters into the action by an inventor to recover an agreed
combination claimed, if the residue of the consideration for permitring: the defendant
specification and the drawing afford means to take out the patent in nis own name,
to correct this mistake, it cu)es not avoid LodLwood v. Lockwood, 88 Iowa, 509.
the letters-patent. Kittle v. Merriam, 2
Curtis, C. C. 475.
a patent is reqiured to make affidavit of the fact before the patent
is issued, the possession of the patent has been held prima facie
evidence, in a leire faeiat for its repeal ; ' (a) and it is now held,
tiiat the oath of the patentee, made cKverto itOuitu, that he was the
true and first inventor, ma; be opposed to the oath of a witness
whose testimony is offered to the contrary, in an action for in-
fringement of the right.' The person who first Bu^ests the
principle is the true and first inventor,* provided he has also first
perfected and adapted the invention to use ; for until it is bo per-
fected and adapted to uae, it is not patentable.* (i) In a race ctf
diligence between two independent and contemporaneous inven-
tors, he who first reduces his invention to a fixed and positive form
has Uie priority of title to a patent therefor, (e) But if the first
inventor is using reasonable diligence in adapting and perfecting
his invention, he will have the prior right, notwithstanding a
second inventor has in fact first perfected the Staae, and first
reduced it to practice in a positive form.* The language of the
statute,' "not known or used by others before his or their
discovery thereof," does not require that the invention should
be known or used by more than one person, but merely indicates
that the use should be by some other person or persona than the
patentee.' (d)
> SCMTD* c. Buntt, 1 Muoa, IS3. And aea Hinter v. Weill, Webit P»L Cm.
129; G Tyr». 1S3. On the aame principle, it hu be«n helfl in England, imspecti**
of any oath of ths Duty, that the introducer i« prima facie the InTentor. Muter v.
Hart, Webst. Pat Qu. ISl.
* Alden v. Dewey, 1 Story, SB6j ante, vol. L g Sfi3; Woodwoith e. Sheimaii, I
Stoiy, 171.
■ Minter v. Hart, Webit. Pat Ca^ 131.
* Heed «. Cutter, 1 Story, G90; Bedford r. Hunt, 1 Hason, 302; Woodcock 9.
Parker, 1 QallU. t3S.
* Ibid. See, as to the novelty and ori^nality of invention, Phillip* on Patent*, pp.
65, Se, 150-16S; Godson on Patents, pp. 36-50.
* StaL U. S. 1830, c. 3G7, §6. 1 Reed e. Cutter, 1 Story, SSO.
(a) The inue of lettaia-patent raiaal tbe In oae prior to the inventiaD of the pliiin-
pretumption, of orinnality, and this ^n- tiB, if it appeaia that inch aae mu merely
sumption la strengtbensd by the eitenaion by w*y or experiiueot, vith a view to a
of the patent. McComb v. Ernest, 1 final perfecting of the machine, and that
Woods C C. 1S6. this perfecting was not in fkct ever accom-
(6) Thoma* t. Weeks, S Paine C. C. pliahed ; although it may be that these
BS; AllsQ V. Uanter, 3 McLean C.C. 803; experiment* mggested to the plaintiff the
a Patent, 86 Eug. Law & Eq. device which he sabseqnently patent«d.
"■ ' '. Sep. —
r. Fierce, IS Btatchf ~
-
in order to make out a defence of lack of 01; Eranav. Eaton, 3 Wheat (U. S.) 4C1;
Whittlwy 0. Ames, 18 Fed. Rep. 6
, , Jenninn n. Fierce, IS Btatcht. C. C. *a.
I not aaffident for the defendant, {d) Parker e, StUee, S Ucl^in C. C.
(c) On this principle it has been held Jennings v. Fierce, IS Btatcht. (
priority in the plaintiff's invention, to and case in Circuit Conrt in Conneeticnt,
give strldcnce that aimilATdenoaa had beau cited by Hr. Justice Nelioa iu HotchkiM
602 LAW OP EVIDENCE. [PABT IV.
§ 493. Practioabmty. (8.) It must also be shown, bj the plain-
tiff, that the invention is new and ub^uI^ and that it has been
reduced to practice} The fact of novelty does not necessarily
follow from the fact of its invention by the patentee ; for there
may have been several inventors of the same thing, independent
of each other. But the question of novelty, in our practice, can
hardly arise upon opening the plaintifPs case, inasmuch as the
patent itself, issued as it is upon the oath of the applicant, that
the invention is new, seems to be prima facie evidence of that
fact.^ It is sufficient under the statute of the United States,
though it is otherwise in England and France, if it appears that
the thing in question was not known or used before the invention
thereof by the patentee, though it may have been used prior to
the date of the patent.' Nor is it necessary to the validity of
the patent, that any of the ingredients should be new or unused
before for the purpose; the true question being, whether the
combination of them by the patentee is substantially new.^ (a)
§ 494. ntUity. The question of utility is a question for the jury ;
who have frequently found, that all that was new in a patent
was immaterial or useless.^ (&) It will be sufficient, however, if
the amount of invention and of utility, taken together, be con-
siderable. Novelty may frequently exist without utility; but
^ The facts being nndispnted, the qnestion whether the invention is new is for the
court. Morgan v. Seaward, 2 M. & W. 544; Webst. Pat Cas. 172.
s Phillips on PatenU, pp. 406, 407. * Id. 150-164, 407.
^ Ryan v, Goodwin, 8 Sumn. 514.
* By '* useful " is meant, not as superior to all other modes now in practice, but as
opposite to frivolous or mischievous inventions, or inventions injurious to the moFsl
health or good order of society. Lowell o. Lewis, 1 Mason, 182; Bedford v. Hunt,
Id. 802.
V. Greenwood, 11 How. (U. S.) 248, 266. is valid. Parker v. Stiles, 5 McLean C.
See also Gayler v. Wilder, 10 How. (U. S.) C. 44; Manny v. Jagger, 1 Blatch. C. C.
477, where it is held by a majority of the 872. In an action to recover royalties,
court, that a prior construction and use of a decree of a competent court, that the
tlie thing patented, in one instance only, patent was invalid, is evidence of want of
which had been finally forgotten or aban- consideration and worthlessneas of the pa-
doned, and never made public, so tliat, at tent. Hawks v, Swett, 6 T. & C. (N. Y.)
the time of the invention by the patentee, 829. If the defendant has admitted the
the invention did not exist, will not render usefulness of parts of the plaintiff's ma-
a patent invalid. chine, which appear also in his machine,
(a) Newton v. Yancher, 11 Eng. Law this admission is sufficient proof of the use-
k £q. 589; Electric Telegraph Co. v. Brett, fulness of those parts. Foye v, Nichols,
4 Id. 847; Bush v. Fox, 26 Id. 464. 13 Fed. Rep. 125. The letters-patent are
(f>) Upon the question of the utility of prima facie evidence, as against one who
an invention, courts are not rigid; the pa- nas infringed them, of the novelty and util-
tent raises the presumption of utUity, and, ity of the patent. Lehnbeuter o . Holthaoa,
unless the invention be shown to be abso- <U. S. Sup. Ct.) 105 U. S. 94, IS Fed. Bep.
lutely frivolous and worthless, the patent 144 ; Sawyer v. Miller, 12 Id. 725.
great utility caimot be conceived to exist without novelty.
Hence great utility does of itself, for all practical purposes, con-
stitute novelty ; and the latter may be assumed vherever the
former is proved to exist in any degree. Ordinarily, both may
be proved by the testimony of persons well conversant with the
subject, to the effect that they had never seen or heard of the
invention before, and that the public had given large orders for
the article, or that licenses had been taken for the exercise of the
right.* (a) If the invention has never gone into general use, or
has never been pursued, it is a presumption against its utiUty.^
§ 495. P»otio«bUit7. The plaintiff must also sliow that the
invention has been reduced to practice, and that it effects what
the speciBcation professes, and in the mode there described. For
the tiling to be patented is not a mere elementary principle, or in-
tellectual discovery, but a principle put in practice, and applied to
some art, machine, manufacture, or composition of matter."
§ 496. InfrinBement. (4.) The plaintiff, lastly, must prove the
ifffritiffement of his right, by tlie defendant, before the commence-
ment of tlie action, together witb liis damage*, (&) if he claims
any, beyond a nominal sum. On the point of infringement, the
presumption is in favor of the defendant. The statute secures to
the patentee " the exclusive right of making, using, and vending
to others to be used, the invention or discovery." * It will be
> Webstar on FatcnU, pp. 10, 11, 80 ; Comuh v. Keene, 3 Biiig. N. C. 670 ; a. o.
4 Scott, 337; OollDiray v. Ble«deii, Webst PaL Cu. G2S ; 1 M. & O. 217. And bm
Hill o. Thompson, 8 l^unt 1175 \ Holt, Cu. 636 ; Earle v. Savijer, i Uisou, 0.
* Morgan o. Seaward, 3 H. & W. S41 ; 1 Jur. SS7 ; Miut«r o. Mower, 0 Ad. & EL
735 ; Simiiter's PstrDt, Webet Pat Caa. 723.
■ Earle r. Sawrer, 4 Haaon, 1, 6, per Story, J,; PhUlipa on Patenta, o. 7, B 8, pp.
10M12, 409.
* Stat 1836, c 357, g 5. Uerel; exhibiting for sale ii do iD&ingement Hinterir.
Williami, 4 Ad. b El. 251 ; s. c. fi Ner. k M. S47.
Counsel toes are not a proper Blement
hs conaidemtion of the jury in eati —
inofdainaKes. Teases. Huntingdon, _.
, — ... ; Waahbarn & Moen How. (U, 3.) 2. The plaintiff must for-
Hasufactaring Co. v. Haish, 4 Fed. Bep. niah some data by which the inry may
"00. eetimate the actual damage. If he ranta
(i) In cases where there is no estab- bis case after merely proring an inrrinjie-
lished patent or license fee, eenetul avi- ment of bis patent, he may be entitled to
dance may be resorted to in order to get at notninal daauges, bat no more. New
tte meaaore of damages; and evidence of York r. Hansom, 2S How. <U. S.) 487.
the utility and advantage of the iurention The rule of damagea ia the amouot which
p*er the old modes or dericea that had the infrinBer actually realized in profils,
bun used for working oat similar results not what he might bare made by reaaon-
is competent and appropriate. Suffolk able diligence. Dean v. Uason, 20 How.
Compauyr, Hsyden, S WalL (U. S.) 816 ; (U, 8.) 198 ; Livingston *. Woodworth,
Bejaoaz «. UcCormick, 16 How. (tJ. S.) IE Id. 646.
604 LAW OF EVIDENCE* [PABT lY.
t
sufficient, therefore, to prove the making of the thing patented,
for use or sale, though the defendant has never either used or
sold it.^ (a) In the proof of tising^ which is a matter of great deli-
cacy, a distinction is to be observed between the use of an article
about or upon which a patented material or machine has been
employed, and the act of applying such material or machine. It
is the latter only which is a violation of the right Thus, if a
carriage has been finished with patented paint, it is the builder,
and not the purchaser, who violates the right of the patentee.^
So, where a quantity of wire watch-chains were made to order,
in the manufacture of which a patented instrument was unlaw-
fully used, it was held that the manufacturer alone was liable to
the patentee, though the purchaser knew that the instrument in
question was used, and approved of its use.^ But where the
defendant ordered the goods to be manufactured by the plaintiff's
process, which goods he afterwards received and sold, he was
held liable^ The use of the article merely for philosophical
experiment, or for the purpose of ascertaining the verity and
exactness of the specification, is not an infringement of the
right/ As to the fact of using, it may here be observed, that,
though this ordinarily is proved only by direct evidence, yet the
conduct of the defendant, in refusing to permit the manner of
his manufacture and course of his operations to be inspected, is
admissible in evidence, as furnishing a presumption that he has
infringed the plaintiff's right. If the article made by the defend-
ant agrees in all its qualities with one made upon the plaintiff's
plan, it is prima facie evidence that it was so made.* (6)
1 Whittemore v. Cutter, 1 Gflll. 429. In Boyce r. Dorr, 3 HcLea&, 528, it was held,
that, if the maker was ignorant that it had been patented, none but nominal damages
should be given. And it lias been held in the Court of Excheauer, that if a patent
has been infringed unintentionally, the patentee is not entitled to any redress. Bnt
this doctrine has been disapproTed. See Heath «. Unwin, 15 Sim. 552 ; 11 Jur. 420 ;
16 Law J. 888, Chan.
2 Phillips on Patents, pp. 861-868.
« Keplinger v. De Young, 10 Wheat 868 ; Boyd v, HcAlpen, 8 McLean, 427.
« Ibid.TGibson v. Brand, 4 M. & G. 179.
« Whittemore v. Cutter, 1 Gall. 429 ; Phillips on Patents, p. 866.
• Huddart v. Grimshaw, Webet. Pat. Cas. 91 ; Hall v. Jarvis, Id. 102 ; Godson on
Patents, p. 242 ; Gibson v. Brand, Webst. Pat. Cas. 627, 680.
(a) A Mde of the thing patented to an ment Byam v. Bullard, 1 Curtis, G. G
agent of the patentee employed by him to 100.
make the purchase, on account of the (6) A French Tessel was rigged in
patentee, is not pet ae an infringement, France with gafls which had been patented
although, accompanied by other circum- in the (Juited States, and so rigged came
stances, it may be evidence of an infKnge- into one of our ports; but as the ga£b were
§ 497. Same sabjsot. If the use of the machine or other sub-
ject of the patent is shown to hare been prior to the grant of the
patent, it is no infringement ; but it cannot be afterwards contin-
ued. So, if a patent proves to be Toid, on account of a formal
defect in the specification, for which reason it is suiTendered, and
a new patent is taken out ; but in tlie interim, another person,
without license, erects and uses tiie tbiog invented, his continued
use of it, after the second patent is issued, will be an infringement
of the right ; but he will not be liable for the intermediate use,
before the issuing of the second patent^ And the law is the same,
where a patent, originallj void, is amended by filing a disclaimer,
under the statute.^
§ 498. idantity. It must also appear that the machine used by
the defendant is identical with the subject of the patent. Machines
are the same if they operate in the same manner, and produce the
same results, upon the same principles.' If the differences be-
tween the two machines are substantial, they are not alike ; but
if formal only, then they are alike. To this point the opinion of
expert* is admissible in evidence ; (a) but it is still only matter
of opinion, to be weighed and judged of by all the other circnm-
stances of the case. The question whether the principles are the
same in both machines, when all the facts are given, is rather a
matter of law than of the opinion of mechanics ; * but the gen-
1 Amra V. Hnwwd, 1 Simui. 182 ; PhilUpB ou Patmti, pp. SSS, 870 : Dixon «.
Miner, 1 Wuh. 6S.
• Perry o. Skinn«r, 3 M. « W. 471 ; 8. c, 1 .Inr, <S3 ; Stat 0. 8. 1887, o. 45, H ?.
B, whieli ii esMntUlly linilar to St&t fi & 6 W. IV. c 83, % 1.
• Qniy v. Oigood, 1 Pet C. U. 391 ; Odiome «; Winkley, 2 OftlL fil. A witnev,
irlio haa previuualf conatnictad > nucbiae Uks the plaiutieT'i, ma; look at a drawing
not made by himactr, and wy whetbsr be has luch a recollection of the mechine u to
be able to lay that it ii a correct drawing of it. Bex v. Hadden, 2 C. & P. 184.
• Barrett v. Hall, 1 llawn, 470, 471. And «m Moivan r. Seaward, Webet. Pat.
Ou.171.
placed on the reinl when she was bnilt, tjon. The maxim of eniqut in tua arte
u part of her original eqaipment in a for- eredendum pennita them to be examined
eign mnntry, by peraone not within the aa to questions of &rt or acience peculiar to
jurisdiction of onr patent lave, it waa held their trade or profeseion; but profewota or
that inch uae of the gaSa was not an in- tnechanicn cannot be received to prove
&ingeniDDt of the patanL Brown v. Dn- to the court or jnry what is the proper
cheine, 2 Curtis, C. C. 371. or 1t^ cotiatmction of any instrument of
(a) " Experts na-j be examined to ei- writms. A judge may obuin information
plvD terma <^ art, and the state of the art, from them if He dedre it, nn mstten which
St any giren lime. They may explain to he doee not clearly comprehend, but cannot
the cowl and jnry the machines, models, be compelled to reoeire their opinions as
or drawings eahimtod. They may point matter of eridence." Grier, J., Wjnaiu
ont the diSeience or identity of Uie me- v. New York fc Erie Kailroad Company,
cbuical dericeB inrolnd in their constmc- 21 How. (U. B.) 100.
506 LAW OP EVIDENCE. [PABT lY.
eral question of identity, as well as the general question of infringe-
ment, being a mixed question of law and fact, is submitted to
the jury, under proper instructions from the court.^ (a)
§ 499. Competency of Mritness. The purchaser of a license
to use an invention is a competent tvitnesd for the plaintiff in
an action for infringement of the patent-right; for he has no
direct pecuniary interest in supporting the patent, but on the
contrary, it may be for his advantage that it should not be
suppoi-ted.2 (6) '
§ 500. Defence. The defence in an action for infringement of
a patent-right, is usually directed either to the patent itself, in
order to invalidate the plaintiff's title, or to the fact of its viola-
tion by the defendant ; and it is ordinarily made under the gen-
eral issue, with notice of special matter to be given in evidence,
which the statute permits.^ The notice of special matter must
have been given to the plaintiff or his attorney thirty days before
the trial. (<?) Any special matter is admissible, " tending," as
the statute expresses it, " to prove, (1) that the description and
specification filed by plaintiff does not contain the whole truth,
relative to his invention or discovery ; or (2) that it contains
more than is necessary to produce the described effect; which
concealment or addition shall fully appear to have been made for
the purpose of deceiving the public ; or (3) that the patentee was
1 Ibid.; Moi^n v. Seaward, Webst. Pat. Cas. 168 ; Jape v, Pratt» Id. 146 ; Hacnft-
mara v. Hulse, 1 Car. k Marshm. 471 ; Boultou v. Bull, 2 H. Bl. 480.
3 Derosne v. Fairie, Webst Pat. Cas. 164 ; 8. c. 1 M. & Rob. 457.
* Where the defendant pleaded, 1, not guilty; 2, that the plaintiff was not the true
and first inventor; 8, that the invention had previously been wholly, or in part,
publicly and generally known, used, practised, and published, — it was held, that the
issue on the first plea must be determined by the acts done by the defendant, without
reference to the intention with which they were done; that the second plea would be
proved by showing a publication before the date of the letters-patent ; and that the
third plea only raised a question of user before the grant of the letters-patent. Stead
V. Ani^rson* 4 M. G. & S. 806.
(a) A patent is prima fade evidence witness for himself, if allowed to testify by
that the several grants of right contained the laws of the State within whose limits
in it are valid; that the several things, the court is sitting. Vance «. Campbell^
methods, and devices contained in it 1 Black (U. 8.), 427 ; Haussknedit «.
are new, useful, reauired invention, and Clay(K)ol, Id. 481.
were invented by tne patentee. If one (c) If the first notice served is defective,
instrument performs a certain office better or not sufficiently comprehensive to admit
than another which is patented, and has his defence, the defendant may give another
driven the latter out of tne market, this is to remedy the defect or supply the defi-
prima facie evidence of difference from it, ciency, subject to the same condition that
and of newness of invention. Smith v. it must be in writing, and be served more
Woodruff, 6 Fish. Pat. Cas. 476. than thlHy days before the trial. Teese v.
(b) The plaintiff is also a competent Huntingdon, 23 How. (U. S. ) 10.
not the original and first ioTentor or discoverer of the thing
patented, o;; of a substantial and material jurt thereof claimed as
new ; or (4) that it had been described in some public work an-
terior to the supposed discovery thereof h; the patentee ; or (5)
had been in public use or on sale with the consent and allowance
of the patentee before his application for a patent ; or (6) that he
had surreptitiously or unjustly obtained the patent for tliat which
was in fact invented or discovered by another, who was using
reasonable diligence in adapting and perfecting the same ; or (7)
that the patentee, if an alien at the time the patent was granted,
bad failed and neglected, for the space of eighteen months from
the date of the patent, to put and continue on sale to the public on
reasonable terms, the invention or discovery for which the patent
issued (a) ; (8) and whenever the defendant relies in his defence on
the fact of a previous invention, knowledge, or use of the thing
patented, he shall state, in his notice of special matter, the names
and places of residence of those whom be intends to prove to
have possessed a prior knowledge of the thing, and where the
same had been used ; in either of which cases judgment shall be
rendered for the defendant with coste (6) ; (9) Provided, however.
That whenever it shall satisfactorily appear that the patentee, at
the time of making his application for the patent, believed him-
self to he the first inventor or discoverer of the thing patented,
the same shall not be held to be void on account of the invention
or discovery, or any part thereof, having been before known or
used in any foreign country ; it not appearing that the same, or
any substantial part thereof, had before been patented or described
in any printed publication." ' (c)
1 Stat U. S. 18S6, e. SG7, S IG.
(a) And io this mm the Imrden of £1; v. Moiibod Hfg, Co., 4 Tiib. Pat Cas.
proof imta od the derrDdsnt Tatham v. 04. See also Wood v. Cleveland Rolling
Lovber, 2 Blatchf. C. C. 49. Mill, 1 Fish. Pat Cas. 660. In Roberta
(6) " Notice of the time wh«n the per- «. Buck, 9 Fish. Pat Caa. 826, it was held
•on pcasmed the knowUilm or nse of the that irhen eTideoL'e of anticipations not aet
Invention is not required by the act ; the up in the answer had been taken, and a
name of the person, and of his place of motion wss afterwards made to amend the
raaidance, and the place where it has been answer, an amendment would not make
tised, are anfficieot. Phillip* c Page, 24 that evidence admiioible, which was taken
How. (V. 8.) 168. nnder objection before that ameDdment.
(e) Id an action at law for infring». In Allia e. Buckstaff, 13 Fed. Rep. 879,
meiit, the defendant cannot show nae in a the Court sayBiin conimentinK on the case
foreign country. Juilson «. Cope, 1 Bond, of Roberta v. Buck, that it is discretionary
327. Anil if the partr chained fails to with the CouK in inch a caar, especially
[soilnce the article he uses, if it be in his after the otgMtting party has fuUj cross-
power, it is an admiaiion of iitfriDg«ni«nt UMniiMd the witneuea, and taken rebot-
608 LAW OF EYIOENCE. [PABT 17.
§ 501. Want of novelty. As the proof of novelty of inyention,
on the side of the plaintiff, must of necessity be negative in its
character, it may be successfully opposed, on the part of the de-
fendant, by a single witness, testifying that he had seen the inyen-
tion in actual use, at a time anterior to the plaintiff's invention.
The facility with which this defence may be made affords a strong
temptation to the crime of subornation of perjury ; to prevent
which the defendant is required to state, in his notice, the names
and residence of the witnesses by whom the alleged previous invenr
tion is to be proved, (a) But notwithstanding its liability to abuse,
the evidence is admissible, to be weighed by the jury, who are to
consider, whether, upon the whole evidence, they are satisfied of
the want of novelty.^ If the action is brought by an assignee
against the patentee himself, he is estopped by his own deed of
assignment from showing that it was not a new invention.^
§ 501 a. Invention not original. The question whether the
plaintiff is the true and original inventor or not depends on the
question whether he borrowed the invention from a source open
to the public, or not.^ It seems that his title is not destroyed by
the fact that the same invention has been previously made, if it
had altogether been lost sight of .^ (6) If the invention has been
distinctly described, not by way of mere speculation or suggestion,
^ Man ton v. Man ton, Day. Pat. Cas. 250 ; Phillips on Patents, pp. 415-417 ; Lewis
V. Marling, 10 B. & C 22 ; Cornish v. Eeene, 3 Bing. N. C. 570. It is sufficient if
the invention is new as to general use and public exerciw. Lewis v. Marling, Webst.
Pat Cas. 492.
> Oldham v. Langmead, cited 8 T. R. 441.
» Walton V. Potter, Webst. Pat Cas. 692.
« HousehiU Co. v. NeUson, Webst. Pat Cas. 690.
ting proofs, either to let the testimony be admitted if it is objected ta CL
stand in the case, or to strike it out, and Roemer «. Simon, 95 U. S. 214.
permit the defence to take the testimony (a) It is said in Allis v. Buckstaff, 18
anew under the amended answer, and that Fed. Rep. 879, that the case of Richardson
so far as the state of the case in Roberts v. v. Lockwood, 6 Fisher, 454, in which it was
Buck is disclosed, in the opinion of the ruled that the names of the witnesses by
Couii;, there is ground for inferring that which an alleged prior use is to be provecl,
the objecting party stood on his obiection should be stated in the answer, has been
and electlBd not to cross-examine the wit- overruled by Roemer v. Simon, 95 U. S.
nesses or offer rebutting proofs, and the 214, and Planing Machine Cominnv v.
Court then holds that if there has been Keith, 101 U. S. 479, wherein it is held
full cross-examination, and proofs in rebut- that only the names of those who had in-
tal of that particular evidence have been vented or used the anticipating machine or
taken, the proper course is to let the testi- improvement, and not ot those who are to
mony stand. testify touching its invention or use, are
In Searls v. Bouton, 12 Fed« Rep. 140, required to be set forth,
it was held that if a defence or prior {b) See Gayler v. Wilder, 10 How. (U.
knowledge is set up, but no mention made S.) 477.
of prior use, evidence of such use will not
bnt as a complete, successful, and perfect inTention, in & book,
whether written or printed, which has been publicly circulated,
whether at home or abroad, this is a sufficient answer to the plain*
tiff's claim as the first inventor, whether he knew of the publica-
tion or not.'
§ 502. FobUo DM. The pvhUc ute and exercite of an invention,
which prevents it from being coasidered as new, is a use in public,
so ae to come to the knowledge of others than the inventor, as
contradiatinguished from the use of it by himself in private, or by
another by his license, and in order to test its qualities, and does
not mean a use by the public generally.' But it is not necessary
that the use should come down t« the time when the patent was
granted ; proof of public use, though it has been discontinued, is
Bufiicient to invalidate the patent." And the place of the use,
whether at home or abroad, makes no difference ; * provided, in
the case of foreign use, the invention has ateo been described in s
printed publication.' (a) It is sufficient to prove that it was not
first reduced to practice by the patentee ; ^ but it is not sufficient
to prove tliat another was the first inventor, if be neither reduced
the invention to practice, nor used due diligence in adapting and
perfecting it.^ The proof of use may be rebutted by the plaintiff,
by showing that it was by his license."
§ 503. BnbMqBBnt patant The defendant may also prove, in
defence, a aubieq%ient patent, granted to the same patentee, either
alone or jointly with another person, and either for the whole or
a part of the same invention.^ (&) So, he may show that different
1 Ibid. ; StMd «. WiUiamB, 8 Jar. 930 ; 7 H. ft 0. 81S ; Brooks v. Jenkina, 8
HcLaui, 250.
■ Carpenter v. Smith, 9 M. & W. 800 : Webat. Pat. Cu. 685. And we Peonock v.
Dulogue, 4 Wash. M ; s. o. 2 Pet 1 ; Bedford «. Hoot, 1 Mbko, 302 ; BcDtl; v.
FleiuinK, 1 C. t K, 687.
* Househtll Coal & Iroo Co. v. Neilson, 9 CI. ft Fin. 78& Tiia ^qmHou of pub-
lic lue, u, nhsther it »ct« a oie for manufactare. or only for expenuMDt which had
bMD ahandoned, ia a qaostioa for the jury. Elliott '«. Aaton, Webat. Pat. Cas. 22( ;
Cornish c. Krene, 8 Bing. S. C. C70.
* Bniim V. Annondde, Webat Pat. Caa. iSS ; PhiUipa tm Patenta, c. 7, | 16 ;
Anon., 1 ChittT, 24, a.
* Stat. V. S. 1830, c. SS7, j IS.
* Woodcock V. Parker, 1 Oall. 480 ; Tomant'i Caae, Webat. Pat. Caa. 135, n.; a. o.
Dav. Pat. Cm. 429.
1 PenDock tr. Dialogne, i Waih. tiS8 ; Stat U. S. 183S, c. 8E7, { IS.
* PhiUip on Patents, p. 422.
* Treadwall «. Bladen, 4 Wa*h. 709 ; PfaUliw on Patant^ p. 430 ; Odiotna «.
Amwbniy Nail Faetory, 3 MaaMi, 28 ; Bamtt •. Hall, 1 Maun, 447.
610 LAW OF EVIDENCE. [PABT 17.
and distinct inventions are joined in the same patent, or that the
invention is not lawful^ or is pernicious}
§ 504. Abandonment. The defendant may also show an ahan-
donment of the invention by the plaintiff, and a dedication or sur-
render of it to pubMc use, prior to the issuing of the patent.'
And if such dedication was made, or the public use of the inven-
tion was acquiesced in for a long period subsequent to the issu-
ing of the patent, this is a good defence in equity, if the fact is
explicitly relied on and put in issue by the answer.^ But the
public use or sale of an invention, in order to deprive the inventor
of his right to a patent, must be a public use or sale by others,
with his knowledge and consent, and before his application for
the patent. A sale or use of it with such knowledge or consent,
in the interval of time between the application for a patent and
the grant thereof, has no such effect.^ Nor is it material whether
the public use was originally by express permission of the inventor
or by piracy ; for in either case it is his acquiescence in the public
use that renders the subsequent patent void. And he is presumed
to acquiesce, when he knows, or might know, of the public use.^
§ 505. Defloient specifloatlon. A material defect in the specifica-
tion^ whether accidental or designed and fraudulent, may also be
shown in defence of this action, both by common law and by
statute.^ (a) So, if the specification is designedly ambiguous and
obscure, or, if it seeks to cover more than is actually new and
useful, this also is good defence.^ Whether the want of utility
1 Phillips on Patents, pp. 128, 421.
s Phillips pn Patents, c. 7, § 19, pp. 181-205, 422 ; Pennock v. Dialogae, 4 Wash.
538 ; 8. 0. 2 Pet. 1 ; Treadwell v. Bladen, 4 Wash. 709 ; Whittemore v. Cutter, 1 Gall.
478. A difinse of the invention after the grant of letters-patent is no defence at law.
Gray v. James, 1 Pet. C. C. 894.
* Wyeth V. Stone, 1 Story, 273, 282. But it is no defence at law. Shaw v. Cooper,
7 Pet. 292.
* Ryan v. Goodwin, 8 Sumn. 514.
• A Shaw V. Cooper, 7 Pet. 292 ; Whittemore v. Cutter, 1 GalL 482 ; Stat U. S. 1836,
c 857, §§ 6, 15. See also Melius v. Silsbee, 4 Mason, 108.
« Rex V, Cutler, 1 Stark. 354 ; Phillips on Patents, p. 424 ; Stat. U. S. 1836, c.
357, § 15.
7 Galloway v. Bleaden, Webst Pat Cas. 524 ; Hill v. Thompson, 8 Taunt 375 ;
Lowell V. Lewis, 1 Mason, 182 ; Evans v. Eaton, 1 Pet C. C. 822. Unless the excess
is disclaimed. Stat. U. S., 1837, c 45, f§ 7, 9.
the respondent may show a license under (a) If the specifications do not describe
another tenant in common of the same pa- the invention with reasonable certainty
tent ; such tenant in common having an and precision, the patentee can claim
equal right to make, use, and sell the nothing under his patent Parker v.
thing patented. Clum v. Brewer, 2 Curtis, Stiles, 5 McLean, C. G. 44.
C. C. 506.
caD be given in evidence under the general issue has been ques-
tioned ; but the better opinion is that it may, as it cannot justly
be said to be a surprise on the plaintiff.^
§ 506. Infrliigvinaiit In regard to the fa^ of ii^n</ement, the
general doctrine is, tliat the use of any substantial part of the
invention, though with some modifications of form or apparatus,
is a violation of the patent-right. It is the substance and the
principle of the machine, and not the mere form, the identity of
purpose, and not of name, which are to be regarded. A specious
variation in form, or an alteration in the mode of adaptation,
however ingenious, does not render it any the leas au infringe-
ment.' (a) So the use of a chemical equivalent for a substance
described in the patent, if known to be so at the time, and it be
used for the purpose of taking the benefit of the patent by mak-
ing a colorable variation therefrom, is an infringement.* (6) It
is a question peculiarly for the jury, who must say whether the
defendant has availed himself of the invention of the plaintiff,
without having ao far departed therefrom as to give to his act the
denomination of a new discovery.* (c) If the patent is for several
distinct improvements, or for several machines, the use of one
only is a violation of tlie right ; ' but where the patent is for the
entire combination of three things, and not of any two of them,
it is no infringement to construct a machine containing only two
of the combinations.^ Evidence that the invention of the defend-
ant is better than that of the plaintiff is improper, except to show
a substantial difference between the two inventions.^
§ 507. DUoUiour. Where the patent was originally too broad
in its specification, including more than the patentee is entitled
to hold, the error may now be cured by a dUdaimer, filed pursuant
> Phillip, on P«tMitB, p. iS8 ! Lwigdon v. Da Groot, 1 P«in«, 203 : Haworth •.
Hardcaitle, 1 Bing. N. G. 1S2.
» Wysth F. Stona, 1 Story, 873 ; Hill o. Thompwrn, 8 Tnunt 375 : Walton v. Pol-
tw. 8 M. fc G. ill ; 1 8<»tt, N. H. 91 ; Webst Kt. Cm. 58C ; Moiwin r. Seaward,
WebM. Pat Caa. 171 ; Cutler's Patent, Id. *27.
! Ii,e»t'"'- Unwin, H Eng. Law ft Eq. 202, per Erla, .1. ; IBJnr. 9fi8.
• Walton V. PotUr, Webat. Pat Caa. 688, 687.
• Mood? B. Fiak, 2 Maaon, 112 ; Wyeth r. Stona. 1 Story, 278 : QiUatt v. WIlby, 0
C. fc P. asi ; Comiah V. Keene, 8 Bing. N. C. 670 .
• Proaty «. Dtmper, 1 Story, 688. ' Alden tt. Dewey, 1 Story, S88.
(a) Samnt c. Lamed, 2 Onrtia, C. C. I*« ft Eq. 16 ; Newton p. Qrand JonctiMi
«0; O'Beilly e, Moiae, 16 How. (U.S.) BaUway Co., 8 Id. 657.
"■,1% o , T _, „ <'> ""'o "■ Taggarti 17 How. (IT. 8.)
(*> See alM Unwin •• Heath, S3 Eng. 74.
612 LAW OF BTIDENCB. [PABT IV.
to the st^tute.^ But the disclaimer, to be effectual, must be filed
in the Patent Office before the suit is brought; otherwise, the
plaintiff will not recover the costs of suit, even though he should
prove that the infringement was in a part of the invention not
disclaimed. And where a disclaimer has been filed, whether
before or after the suit is commenced, yet if the filing of it has
been unreasonably neglected or delayed, this will constitute a
good defence to the action.^ (a) If the patentee has assigned his
patent in part, and a joint suit in equity is brought by him and
the assignee for a perpetual injunction, a disclaimer by the
patentee alone, without the assignee's uniting in it, will not
entitle them to the benefit of the statute.^
1 Stat. U. S. 1837, c. 45, §§ 7, 9 ; the provisions of which are these : "Sect 7.
And be it further enactedy That wheneyer any patentee shaU have, through inadvert-
ence, accident, or mistake, made his specification of claim too hroad, chiiming more
than that of which he was the original or. first inventor, some material and substantial
pai*t of the thing patented being truly and justly his own, any such patentee, his admin-
istrators, executors, and assigns, whether of the whole or of a sectional interest therein,
may make disclaimer of such parts of the thing patented as the disclaimant shall not
claim to hold by virtue of the patent or assignment, stating therein the extent of his in-
terest in such patent ; which disclaimer shall be in writing, attested by one or more wit-
nesses, and recorded in the Patent Office, on payment bv the person disclniming, in man-
ner as other patent duties are required by law to be paid, of the sum of ten dolhos. And
such disclaimers shall thereafter be taken and considered as part of the original specifi-
cation, to the extent of the interest which shall be possessed in the patent or riglit
secured thereby by the disclaimant, and by those claiming by or under him subsequent
to the record thereof. But no such disclaimer shall afiect any action pending at the
time of its being filed, except so far as may relate to the question of unieasonaole ne-
glect or delay in filing the same.
" Sect. 9. And be it further enacted (anything in the fifteenth aection of the act
to which this is additional to the contrary notwitnstanding). That whenever, by mis-
take, accident, or inadvertence, and without any wilful default or intent to defraud or
mislead the public, any patentee shall have in his specification claimed to be the
original and nrst inventor or discoverer of any material or substantial part of the thing
patented, of which he was not the first and original inventor, and shall have no legal or
just right to claim the same, in every such case, the patent shall be deemed good and
valid for so much of the invention or discovery as shall be truly and b<ma fide his own :
Provided, It shall be a material and substantial part of the thing patented, and be
definitely distinguishable from the other parts so claimed without right as aforesaid.
And every such patentee, his executors, administmtors, and assigns, whether of a whole
or of n sectional interest therein, shall be entitled to maintain a suit at law or in equity
on such patent for any infrinj^ement of such part of the invention or discovery as shall bo
bona fide his own as aforesaid, notwithstanding the specification may embrace more than
he shall have any legal right to claim. But, in every such case in which a judgment
or verdict shall be rendered for the plaintiff, he shall not be entitled to recover costs
against the defendant, unless he shall have entered at the Patent Office, prior to the
commencement of the suit, a disclaimer of all that part of the thing patented which
was so claimed without right : Provided, hotoever. That no person bringing any such
suit shall be entitled to the benefits of the provisions contained in this section, who
shall have unreasonably neglected or delayed to enter at the Patent Office a disclAuner
as aforesaid. "
« Beed ». Cutter, 1 Story, 690. • Wyeth v. Stone, 1 Stoiy, 278.
(a) Guyon v. SerwlU 1 Blstchf. C. C. Foote, 14 How. (U. S.) 218 ; Seymoor f.
244 ; Foote v. Silsby, Id. 445 ; Silsby s. McConnick, 19 Id. 96.
§ 508. Competenc; of witn«H«a. In regard to the competency
of v)itnet»e», it haa been held, that persons who hare used the
machine in question, as the defendant has done, are not thereby
ren'dered incompetent witnesses for him, notwithstauding the
object of the defence is to inTaltdate the patent, as veil as to
defeat the claim of damages ; for in such a case tlie witness stands
in the same predicament as the rest of the community ; and the
objection to liia competency would equally apply to every witness,
since, if the patent were void in law, every person might use it,
and therefore every person might be said to have an interest in
making it public property.' Another patentee claiming adversely
to the plaintiff, and under whose license the defendant has acted,
is also a competent witness for the defendant.'
§ 509. Copytight. The subject of Coftbioht, which is usually
treated in connection with that of Patents, may properly be con-
sidered in this place.
§ 510. Ramedy for infringvmMit. The remedy for an infringe-
ment of copyright is either at law, by an action for the statute
penalties, or by an action on the case for damages, or in equity,
by a bill for an injunction ; * but in either case the evidence
necessary on both sides is substantially the same, the plaintiff
being obliged to prove his title to the exclusive privilege claimed,
and the fact of its violation, or, in equity, at least an intended
violation, by the defendant
§ 511. PiaiotUTB CMC. TlUe. The plaintiff, to make out his
title, must prove that, prior to the publication of his work, he
deposited a printed copy of its title in the clerk's office of the
District Court of tiie United States for the district where he
resided at the time, and that notice of the copyright was given
on the title-page, or the pi^ next following, or, if it be a map, or
print, or musical composition, then on its face, in the form pre-
scribed by the statute. He is also required to deliver to the district
clerk a copy of the work, within three months after its publication ;*
' Brana v. Eaton, 7 WTjent. 358 ; Evan* v. Hettlch, Id. 46S.
» TreaUwell v, Bladen, i Waah. 704.
» Stat. U, S. 1831, c. Ifl. The sabject of literary property, both by common law
ftnd by ststnte, receiTcd a very TuU aud elabonite discusaioQ in ths leading case of
Wjieaton v. Petera, 8 Petera, 5B1,
< Stat. U. a. 1331, c. le. §S 4, 6. These sectioni are aa followa : " Sect. 4. And
bt il further aiacUd, That no person shall be entitled to the benefit of this act,
unless he shall, before pubLcntioo, depoait a printed copy of the title of snch hook or
books, map, ohjirt, mnsical composition, print, cut, or engrsTing, in the clerk's office,
of the dislriet -lourt of the district wherein the anther or propnetor aball resida, and
vol. II. 33
514 LAW OF EVIDENCE. [PABT IV.
and it seems that a compliance with this requirement also mast
be strictlj shown.^ Of these facts, the certificate of the district
clerk, and the production of a copy of the work, will be sufficient
prima facte evidence. •
§ 511 a. Certain statatory provlaiona direotory only. The autibor
of any book or other composition enumerated in the statutes re-
specting the law of copyright is also required to deliver a ooipj
thereof to the librarian of the Smithsonian Institution, and another
copy to the librarian of the Congress Library, for the use of those
libraries, within three months after the publication of the book,
map, &Q? (a) But this provision is understood as merely direc-
tory, and not as another condition added to those already made
precedent to the exclusive right of the author.'
§ 512. Authonhip. It is frequently necessary for the plaintiff
to go further, and prove that he is the author of the work ; for
which purpose the original manuscript, which it is always expedi*
ent to preserve, is admissible, and generally is sufficient evidence ;
the clerk of such conrt is hereby directed and required to record the same (qu, name ? )
thereof forthwith, in a book to oe kept for that purpose, in the words following (giving
a copy of the title under the seal of the court, to tne said author or proprietor, when-
ever he shall require the same) ; 'District of to wit : Be it remembered, that on
the day of Anno Domini A. B., of the said district, hath deposited in
this office the title of a book (map, chart, or otherwise, as the case may be), the title
of which is in the words following, to wit (here insert the title) ; the right whereof be
claims as author (or proprietor, as the case may be), in conformi^ with an act of Con-
gress, entitled, "An act to amend the several acts respecting copyrights." C. D., clerk
of the district.' For which record the clerk shall be entitled to receive, from the per-
son claiming such right as aforesaid, fifty cents ; and the like sum for every copy under
seal actually given to such person or his assigns. And the author or proprietor of any
Buch book, map, chart, musical composition, print, cut, or engraving, shall, within
three months from the publication of said book, map, chart, musical composition,
print, cut, or engraving, deliver, or cause to be delivered, a copy of the same to the
clerk of said district. And it shall be the duty of the clerk of each district court, at
least once in every year, to transmit a certified list of all such records of copyright,
including the titles so recorded, and the date of record, and also all the several copies
of books or other works deposited in his office according to this act, to the Secretary of
State, to be preserved in his office.
" Sect. 5. And be U further enadedf That no person shaU be entitled to the benefit
of this act, unless he shall give information of copyright beins secured, by causing to
be inserted, in the several copies of each and every edition published during the terra
secured, on the title-page, or the page inunediately following, if it be a book, or if a
map, chart, musical composition, print, cut, or engraving, by causing to be impressed
on the face thereof, or if a volume of maps, charts, music, or engravings, upon the title
or frontispiece thereof, the following words, viz : ' Entered according to act of Con-
gress, in the year , by A. B., in. the clerk's office of the district court of ' (as
the case may be)."
^ Such was the construction of a similar provision in the act of 1790, c. 42, § 4.
Ewer V, Coxe, 4 Wash. 487 ; Wheaton v. Peters, 8 Peters, 591.
« Stat U. S. 1846, c. 178, § 10.
s JoUie V. Jaques, K. Y. Leg. Oba., Jan. 1851, p. 11 [1 Blatch. C. C 618].
(a) Bepealed by Statute 1859, c. 22, § 6.
it being proved to be the bandTriting of himself or of bis amanu-
ensis. If it is lost or destroyed, it must be proved by secondary
evidence. If the subject vas an engraving, it may be proved by
pitKJucing one of the prints taken from the original plate ; the
production of the piste itself not being required.' (a)
§ 513. AMisnmant Where the action is by an assignee, he
must deduce his title by legal eangntnent from the original author
or proprietor, in addition to the proof already mentioned. The
instrument of assignment must be proved or acknowledged in
the same manner as deeds of land are required to be proved or
acknowledged in the State or district where the original copyright
is deposited and recorded ; and, in order to be valid against a
subsequent purchaser without notice, it nmat also be recorded in
ttte clerk's office of the same district within sixty days after its
execntion.' (J)
§ 614. Inftluganunt The plaintifF must prove the ir\frmgement
of his right by the defendant. And it is an infringement, if the
defendant has published so much of the plaintiffs work aa to serve
as a substitute for it ; or has extracted so much as to communicate
the same knowledge ; whether it be in the colorable form of an
abridgment, or a review, or by incorporating it into some larger
work, such as an encyclopedia, or in any other mode.' (c) For
the question of violation of copyright may depend npon the value,
rather than on the quantity, of the selected materials.* (d) If so
t Haiigb«m on Literary Property, p. 166 ; Thompun ■. Syinonda, G T. B. i\, 16.
• Stct. C. a 1834, c. 167, { I ; Curtis on Copyright, o. S, pp. 21S-S86.
* 2 Kent, Comm. SS2, 383 ; Ood«>n on Patents, pp. i7S, 176 (2d ed.} -,
on LitenuT Property, put 3, c. 1, pp. 120-136 ; Ony t>. fiii«s«ll, 1 Story, 11. See
CartU oa Copyright, c. S, pp. lSO-192, when the eutgect of originality is treated with
claameBa and jiut di>crimiDB(ioii.
* Gray v. BoimU, 1 Story, IL
(a) Where «d lathor Is employed I7 the eDsrared plat« of > map, for which
the proprietor of a periodical to Write for the debtor has obtained a copyriitbt, doea
it araclea on certain temu aa to price, bnt not tranafer the copyright to the pnr-
without any mention of the copyright, it cha«er j and ikt debtor la entitled, with-
ii to be inferred that the copyright vaa to ont reimbursing to the panhaaer the
belong to Bach proprietor. Sweot v. Ben- money paid by the latter on aucb aale,
nlng, 80 Ens. I^w i, Eq. 161 ; Richardaon to an ii^unctioD to reatrain tlie pnrchaeer
iiQpiU to take eopion of hia mannacriptB map. StepSena v. Cady, 14 How. [U. 3.)
for the purpose of initructins themselTes 628 ; Stevens ti. Qladding, 17 Id. 417.
and otbera, does not theTebvaMQdon them (e) Joilis v. Jaques, 1 Blatchf. C. 0,
to ths public, and the publicatlou of them 418.
will be restrained by injuncttou. Bartlett (iQ Clftyton «. Stone, 3 FiiUB, 0. C
516 LAW OP EVIDENCE. [PABT IT.
much of the work be taken, in form and substance, that the value
of the original work is sensibly diminished, or the labors of the
author are substantially, to an injurious extent, appropriated bj
another, it constitutes, in law, pro tanto^ a piracy.^ But a fair
and real abridgment, or a fair quotation, made in good faith, is
no violation ; and of this intent the jury are to judge.^ (a) If the
main design be not copied, the circumstance that part of the com-
position of one author is found in another is not of itself piracy
sufficient to support an action. Nor will it suffice, if the effect
of the new publication is prejudicial in some degree to that of the
plaintiff, unless it is substantially so. If it is substantially a copy,
it is actionable, however innocent the intention of the defendant
in publishing it ; on the other hand, if it is not substantially a
copy, or a colorable selection, or an abridgment, the publication
is lawful, however corrupt the motive. It is the middling class of
cases which involve the greatest difficulty, namely, where there is
not only a considerable portion of the plaintiff's work taken, but
also much that is not ; and here the question, upon the whole, is,
whether it is a legitimate use of the plaintiff's publication, in the
fair exercise of a mental operation, entitling it to the character of
an original work.'
§ 515. Defences. In the defence of this action, on other grounds
than that of defect in the plaintiff's case, it may be shown that the
plaintiff's publication was itself pirated,^ or that it was obscene,
or immoral, or libellous, either on government or on individuals ;
or that it was in other respects of a nature mischievously to affect
the public morals or interests.^ But in equity, it seems, that an
injunction may be granted, notwithstanding the bad character of
the subject, if the author, repenting of his work, seeks by this
mode to suppress it.^ If the defence is made under the plaintiff's
1 2 Kent, Comm. 883, n. (b), 4th ed. ; Roworth v. Wilkes, 1 Campb. 94.
3 Ibid. ; Godson on Patents, pp. 447, 478 ; Maugham on Literary Property, pp. 98,
99, 129-132.
* Wilkins v. Aikin, 17 Ves. 422, 426. It is sometimes said, that in these cases the
question is whether it was done animo furandi or not. But the accuracy of this test is
not very readily perceived. The subject of infringement is copiou^ discussed in Cur-
tis on Copyright, c. 9, pp. 286-305. And see Webb v. Powers, 2 W. & M. 497.
^ In Older to prove a prior publication in a foreign country, it is not enough to
prove, by a witness, that he has seen it there in print, without accounting for the non-
production of the printed copy. Boosy v, Davidson, 13 Jur. 678.
^ Godson on Patents, pp. 478, 479 ; Maugham on Literary Property, pp. 8&-99.
* Southy V. Sherwood* 2 Meriv. 488.
(a) Story*8 Executors v, Holcombe, 4 McLean, C. C. 806.
licetue for the publicatioD, the defendant, in an action at lav,
most prove it by a writing, signed by the plaintiff, in the presence
of two or more credible witaeeses.'
> Stat U. a 18B1, & 10, j{ <> 7> B-
518 LAW OF EVIDENCE. [PABT IT.
PAYMENT.
§ 516. Paymentp bow pleaded. The defence of payment maj
be made under the general issue, in assumpsit; but, in an action
of debt on a specialty or a record, it must be specially pleaded.
In either case, the burden of proof is on the defendant, who must
prove the payment of money, or something accepted in its stead,
made to the plaintiff, or to some person authorized in his behalf
to receive it. The word " payment " is not a technical term ; it
has been imported into law proceedings from the exchange, and
not from law treatises. When used in pleading, in respect to
cash, it means immediate satisfaction ; but when applied to the
delivery of a bill or note, or other collateral thing, it does not
necessarily mean payment in immediate satisfaction and discharge
of the debt, but may be taken in its popular sense, as delivery
only, to be a discharge when converted into money.^
§ 517. Receipt only prima facie proof. If a receipt was given
for the money, it is proper and expedient to produce it ; but it is
not necessary ; parol evidence of the payment being admissible,
notwithstanding the written receipt, and without accounting for its
absence.* And if produced, it is not conclusive against the plain-
tiff, but may be disproved and contradicted by parol evidence.*
§ 518. To whom made. Respecting the person to whom the
payment was made, if it was made to an agent of the plaintiff, his
authority may be shown in any of the modes already stated under
that title.* (a) If it was made to an attomey-at^awj his employ-
1 Manning v, Duke of Aigyle, 6 M. & G. 40. If payment of the whole ram due
IB pleaded, but the proof is of the payment of part only, the defendant is entitled
to the benefit of this evidence by way of reduction of damages. Lord v. Ferrand, 1
DowL & L. 680. And proof of the payment and acceptance of the whole debt will
support a plea of payment of debt and damages where the latter are merely nominaL
Beaumont v, Qreathead, 8 Dowl. & L. 681.
' Southwick V. Hayden, 7 Cowen, 884.
« ArUe, Tol. L § 805 ; Skaife v. Jackson, 5 D. & B. 290 ; 8 B. & C. 421 ; Kieholson
V. Frazier, 4 Harringt. 206.
* Supra, tit. Agency, per tot.
(a) Strayhom v, Webb, 2 Jones, Law Nicholls, 88 Id. 821 ; BeU v, Buckley, 84
(K. C.j, 199 ; Simpson v, Eggington, 32 Id. 92.
£ng. Law k £q. 597 ; CJnderwood v.
meot by the creditor must be proved ; in vluoh case the payment
is ordinarily good, upon the custom of the country, until bis au-
thority has been revoked.' Payment of a judgment to the attor-
ney of record who obtuned it, though made more than a year
after the judgment was recovered, has been held good ; ' but if the
payment was made to an ^ent employed by the attorney, or to
the attorney's clerk, not authorized to receive it, it is otherwise.*
Even if land has been set off to the creditor by extent, in satisfac-
tion of an execution pursuant to the statute in such cases, pay-
ment of the money to the creditor's attorney of record within the
time allowed by law to redeem the land is -a good payment.* But
proof of payment made to the attorney after his authority has been
revoked will not discharge the liability of the party paying.* (a)
It is also a good payment, if made to a person sitting in ike c<nmt-
inff-room of the creditor, with account^books near him, and appar-
ently entrusted with the conduct of the business ; ^ but not if made
to an apprentice, not in the usual course of business, but on a coU
latercd trantacHon? Payment is also good, if made to one of
several partners, trustees, or executors.^ (fi) And if the plaintiff
' Hudson V. JohD«on, 1 Waab. 10.
• Laiigdon e. Poller, IS MasB. 219 ; Jackson o. Bartlett, S Johos, SSI ; Branch v.
Bumley, 1 Call. 147 ; Lewis v. Gamage, 1 Pick. 317 ; Kellogg v. Gilbert, 10 Johns.
220 ; Powell F. Uttic, 1 W. Rl. 8.
• Yates 0, Freckletoa, 2 Doug. 623 ; Perry c, Tnraer, 2 Tyrw. 128 ; 1 DowL P. C.
300 ; s. c. 2 C. & J. SB.
• Gray «. Waas, 1 Greenl. 257.
* Parker d. Downing, 13 Mass. IBS ; Wurt v. Lee, 3 Testes, 7.
* Barrett o. Deere, I M. i Maik. 200.
"> Sannderaon v. Bell, 2 C. & Meee. 30« ; b. 0. 4 Tjrw. 224.
* Porter r, Taylor, 6 11. & 3. 166 ; Stone c, Manh, Bv. & U. 864 ; Can «; Baed,
S Atk. 69S.
(a) The death of the principal is a m- 169. When a bond has been asaigned,
Toeation of the authority of the agent ; ret withont the knowledge of the obligor, a
the payment of money to an agent aner payment by him to the obligee is a good
the death of the principal, the death being mymeitt. Preston e. Grayson County, 80
Dnknown to both parties, is a good pay- Oratt (Va. ) 4E>B.
uent, and binds the estate of the pniiDi- Payment of the principal of a mortgaee
pal Caaaiday o. McKenzie, 4 Watts & to one who Bssnmea to be the mortgngee^a
Serg. 833. In Rodriguee n. East R. Sav. agent to receive ench Mvment, but is not
Inst., the Court of Appeals has decided auch agent, ia not a Tslid dLB(^ha^ge of the
that payment to the adminiatntor of a debt Coz v. Cutter, 28 "S. J. Eq. 13.
■nppoeed dead, but in fact living, intes- Payment of an execution by one of several
tate, is valid. Bnt this will doinbtleae not defendaola so tar eitinguishea it that it
be accepted as law, without further exam- cannot be snbaeqaently assigned to the
ination. S«e Joobamsen v. Suffolk Sav. debtor paying it, and be levied by him on
Bk., 8 Allen (Uass.), 87 ; A. L. Her. the laoa of £e other debtors. Adams v.
July, 1876; GritBth v. Frazier, 8 Cranoh. Dnke, 11 Club. (Mass.) GOG. And a
33 ; Allen t>. Dnndaa, S T. R. 12G. payment of a promissory note by one
{h) Brysat «. Smith, 10 Cush. (Mass.) promisor eztingnishe* the notB. Pny A
620 LAW OP EVIDENCE. [PAfiT IV.
has drawn an order on the defendant, payable to a third person,
upon which the defendant has made himself absolutely liable to
the holder, this, as agamst the plaintiff, is a good payment of
his claim to that amount, even though the plaintiff has subse-
iquently countermanded it.^ (a) The possession of the order, by
the debtor on whom it was drawn, is prima fade evidence that
he has paid it. (6)
§ 519. Mode of payment. As to the mode qf payment j it may
be by any lawful method agreed upon between the parties, and
fully executed. ((?) The meaning and intention of the parties, where
it can be distinctly known, is to have effect, unless that intention
1 Hodgson V. Anderson, 8 B. & C. 842 ; Tatlock v. HarriB, 8 T. B. 180.
Maine, 7 Gush. (Mass.) 253. See also if he had paid the price in money. Thus:
Burr V. Smith, 21 Barb. (N. Y.) 262 ; Where one manufactured shingles for an-
Thome v. Smith, 2 £ng. Law & £q. 308. other and agreed to accept pavment " in
(a) But a conditional acceptance of shinsles or their proceeds, ' and he is paid
such an order does not operate as a pay- in shingles and negotiable paper, which
ment, especially if it be afterwards given was the proceeds of part of the Singles,
up to the debtor by such third party un- such paper is received in payment, and
paid. Bassettv. Sfmbom, 9 Cush. (Mass.) any loss arising from the worthlessness of
68. If a debtor, on the application of the the paper falls on him. Mason v. War-
creditor, by an order, veroal or written, ner, 48 Mich. 439. So where one agreed
requests a third person to pay the debt, to take part-payment in orders on a third
whether such |Jiird person is bound to do person named, and the orders proved
so or not, and he does pay it, it is a pay- worthless, it was held that he could not
ment of the debt, and a discharge of the require further payment from his debtor,
claim of the creditor. Tuckerman v. Slee- Besley v. Dumas, 6 111. App. 291.
per, 9 Cush. (Mass.) 180. Wlien a written contract specifies a
(6) See post^ §§ 527, 528. So when a particular kind of money, which is to be
promissory note or bill of exchange has the medium of exchange in that contract,
been negotiated, and afterwards comes into the Court wiU decide upon the construe^
the possession of one of the parties liable tion of the terms as to payment, and in
to pay it, such posaession is prima facie what kind of money it should be made,
evidence of payment by him. Baring v. Thus where a bond was executed in
Clark, 19 Pick. (Mass.) 220; McGee v. North Carolina in February, 1865, payable
Prouty, 9 Met. (Mass.) 547. But this in " current funds " it was held to be pay-
rule of law does not apply to a possession able in Confederate money which was at
by one of two joint promisors in an action that time current. Brickell v. Bell, 84 N.
by him to recover of the otiier one-half the C. 82. So of one executed in 1863, pay-
amount thereof. Heald v. Davis, 11 Cush. able in 1864 in West Viiginia. GUkeson
(Mass.) 319. Two bills of sale shown to v. Smith, 15 W. Va. 44.
haye been intended, the one as a mortgage. Where the payment was to be so many
the other as a release of the mortgi^gor's "dollars in gold," and payments were
interest to the mortgagee, were held to made in currency, it was held that the
show payment of the d^t secured by the value of the currency in ^Id should be
mortj^ge. Seiglunan v, Marshall, 17 Md. credited to the debtor. Hittson v. Daven-
550. port, 4 Col. 169. If the creditor accepts
(c) When the parties to a contract agree payment in currency in such a case, as
to regard some article or substance as payment in full, he waives the stipulation
money in the payment of .the contract as to payment, and will be held bound by
price, this agreement will be binding upon his waiyer. Lefferman v. Benshaw, 45
them, and a payment made in the article so Md. 119. Or if he accepts payment in de-
substituted for money will discharge the predated currency. Bitchie v. Sweet, 32
liability of the person who pays it just as Tex. 833 ; CUrk v. Bernstein, 49 Ala. 676.
contravene some well-establiBhed principle of lav. Thie intention
is to be ascertained, in ordinary cases, by the jury ; but it is some-
times legally presumed by the court.' Thus, the giving of a
higher tecurity is conclusively taken as payment of a simple con-
tract debt. Where the payment is made by giving the party't
own security, it is either negotiable or not. Ordinarily, the giving
of a new security of the same kind with the former, and for the
amomit due thereon, as a new note for an old one, famUiarly
known in the Roman and modem continental law as a, Novation,
is equivalent to payment of the latter ; ^ but if it ie for a less
amount, it is not.' If a promissory note is taken as a satisfaction,
by express agreement, it will be so lield, even though the debt was
due of record.*
§ 520. B7 n«gotUbl9 nota. Where the debtor's own negotiable
note or bUl is ^ven for a pre.exiBting debt, it is prima facie evi-
dence of payment, but is still open to inquiry by the jury, (a)
1 Millikin v. Brovn, 1 Bawle, 397, SSS ; Watkttii v. HiU, S Pick. 622, fiaSj
Ttutcher «. DiDsmore, G Hua. 290 1 Johiuoii v. Weed, 9 Johns. 310.
* Story on BiUs, % HI ; Poth. Obi. by Eruu, d. 616-504 ; Cornirall s. Oonld, 1
Pick, m ; Huse v. Alexander, 2 Met. 1S7.
* CanReld v. Ives, IS Pick. 253 ; Heathcote v. Crookfihaiiki, 2 T. K. 21 ; Fitch ir,
Sutton, S East, 230 ; Smith d. Bartholomew, 1 Met 270.
* Ke» York State Bank v. Fletcher, 6 Wend. BG ; Clark v. Finney, 0 Coire&
397.
(a) The jury mnat he ntdafied in some N. H. G40 ; Noei s. Unmj, S Kenan
way that the urtiea intended the negotia- (N. Y.), 167 : Vansteenburg v. HofTinan,
ble note which ia given to the creditor, Ifi Barb^ (N. Y.) 28 ; Mooring e. Mobile,
whether it bo the debtor's own nota or a Ac iiu. Co. , 27 Ala. 26* ; Allen v. King,
third party'a, to bo received in satierae- i McLean, C, 0. 12S ; Lyman v. Unit«d
tion of the debt Mehan v. Thompson, fitatea Bank, 12 How. {U. 8.) 225.
71 He. 492 ; Cake v. Lebanon Bank, It haa been aaid that an exprem agree-
89 Pa, St. 303. ment to receive the nota aa payment niurt
But it uema that the qneation whether be proved. Wilhelm s. Schmidt, 84
the receipt of the note by the creditor is 111. 188 ; Noel v. Munay, 13 N. Y. 187 ;
of itaelf enough to make a prima faeit The Kimball, 8 Wall. (U. 8.) 37 ; Moaea
caae of payment, or whether it is for the v. Trice, 21 Gratt. JVa.) 666 ; Page v.
debtor to p further and show an agree- Hubbard, Sprague'a Dec. 838.
ment to take the note in payment, and not But circumstantiBl eridence maT, with-
aa further eecurity, has been decided diiTer- ont any direct proof of an express agree-
ently in dieferent Stales. The better rule ment. show that the parties intended or
is probably that the acceptance by the did not intend the nota to be received in
creditor of the debtor's own negotiable note satisfaction of the debt, Mehan «. Thomp-
isortmo/acw evidence of payment, as sta- son, 71 Me. 492 ; Melledge *. Boston Iron
ted by the author. But, it has also been Co., 6 Cnsh. (Mass.) 170 ; Farkhurst e.
held that it must be proved that the par- Jackson, 86 Me. 404 ; Sweet v. Jamee,
ties intended it to operate as a satisfaction 2 R. L 270.
of the debt, and this must be Ai^ne by the The presumption that the receipt of a
par^ relying on the payment. Fesmster negotiable note ia in psyment of the debt
V. Wilhrow, 12 W. Va, 611 ; Haines v. may be rebutted snd controlled by evl-
Pearce, 41 Ud. 221 : Wilbur v. Jemwan, dence or the admiUed facU of tile case,
11 R. I. 113 t Bdshaw v. Bush, 14 Eng. and it is ccmtrolled when its effect would
Lav & ^. 2S9 ; Coburn o. Odell, 80 be to deprive the p«rt; who takes the DOte
522 LAW OF ETIDENCE. [PABT TV.
The reason is that, otiiierwise, the debtor might be obliged to pay
the debt twice.^ If such note or bill is given for part of the debt,
it is deemed payment of such part,' even though the debt is col-
laterally secured by a mortgage.^ If the creditor receives the
debtor's check for the amount, it is payment, if expressly accepted
as such;^ unless it was drawn oolorably, or fraudulently, and
knowingly, without effects.* (a) But in the absence of any evi-
dence of an agreement to receive a check or draft in payment, it
is regarded only as the means whereby the creditor may obtain
payment;^ or, as payment provisionally, until it has been pre-
sented and refused ; if it is dishonored, it is no payment of the
debt for which it was drawn J And if a bill of exchange, given
in payment of a debt, is not admissible in evidence, by being
written on a ivrong stamp, it is not deemed as payment, even if
the parties would have paid it on due presentment.^
§ 521. By debtox's note not negotiabla. But where the debtor's
own security, not negotiahle^ and of no higher nature, is taken for
a simple contract debt, it is not ordinarily taken as payment, im-
less expressly so agreed ; except where it is given as a renewal,
■ 1 Johnson v, Johnson, 11 Mass. S61 ; Hebden v. Hartsink, 4 Esp. 46 ; Thatcher v.
Dinsmore, 5 Mass. 299 ; Holmes v. D'Camp, 1 Johns. 84 ; Pintard v. Tackington, 10
Johns. 104 ; Maneely v. McGee, 6 Mass. 143 ; Butts v. Dean, 2 Met 76 ; Reed n. V"^
ton, 10 Pick. 522 ; Jones v. Kennedy, 11 Pick. 125 ; Watkins v. Hill, 8 Pick. 522,
523 ; Cummin^ v. Uackley, 8 Johns. 202 ; Comstock v. Smith, 10 Shepl. 202 ; Dogan
V. Ashbey, 1 Rich. 86. By the English decisions, it seems that the receipt of bills is
not deemed payment, unless expressly so agreed, or the bills have been necrotiAted, and
are outstandmg against the defendant Burden v. Halton, 4 Bing. 454 ; Kelt «. Wat-
son, Id. 273. And see Raymond «. Merchant, S Cowen, 147.
< Ilslev V. Jewett, 2 Met 168.
s Fowler v. Bush, 21 Pick. 280.
* Barnard v, Oraye, 16 Pick. 41.
* Dennie v. Hart, 2 Pick. 204 ; Franklin v. Vanderpool, 1 Hall (N. T.), 78 ; Sted-
man v. Qouch, 1 Esp. 5 ; Puckford v. Maxwell, 6 T. R. 52.
* Cromwell «. Lorett, 1 Hall (N. Y.), 56 ; People «. Howell, 4 Johns. 296 ;
Olcott V. Rathbone, 5 Wend. 490.
7 Pearce v. Davis, 1 M. & Rob. 865 ; Everett v. Collins, 2 Campb. 515 ; Packford
V. Maxwell, 6 T. R. 52 ; Bond v. Warden, 9 Jur. 198 ; Zerano v. Wilson, 8 Cush. 424;
Alcock v. Hopkins, 6 Id. 484.
8 Wilson V. Yysar, 4 Taunt 288 ; Brown v. Watts, 1 Taunt 258 ; Wilson «. Ken-
nedy, 1 Esp. 245 ; B. P. Gordon v. Strange, 1 Exch. 477.
of his collateral security or anj other sub- by a bank to which he had given a certifi-
stantial benefit Perham Sewing Machine cate of stock as security, save a check cm
Co. V. Brock, 118 Mass. 194 ; League v. a tiiird person, who owed him nothing as
Waring, 85 Pa. St. 244 ; Re Clap, 2 Low. he well knew, and the bank gave up the
226; Melledgev. Boston Iron Co., 5 Cush. collateral, and the memorandum of the
(Mass.) 170; Parkhnrst v. Jackson, 86 loan maiked *' paid," this was held not to
Me. 404 ; Sweet v, James, 2 R. I. 270. be such payment as discharged the loan.
(a) So, where one^ in payment of a loan Holmes v. Fall River Bank, 126 Mass. 858.
PABT lY.] PAYMENT. 628
as before stated. Whether it was intended as payment or not is
a question for the jury.^
§ 522. By bank-bUiA. Payment may be proved by evidence of
the delivery and acceptance of bank-notes; which will be deemed
as payment at their par value.^ But if, at the time of delivery
and acceptance of the notes, the bank had actually stopped pay-
ment, or the notes were counterfeit, the loss falls on the debtor,
however innocent or ignorant of the facts he may have been.' (a)
§ 528. Kotes of tliird penons. Proof of the acceptance of the
promissory note or bill of a third person will also support the de-
fence of payment. But here it must appear to have been the
voluntary act and choice of the creditor, and not a measure forced
upon him by necessity, where nothing else could be obtained.^ (6)
Thus, where the creditor received the note of a stranger who
owed his debtor, the note being made payable to the agent of the
^ Rowland v, €k)ffin« 9 Pick. 42 ; Camming v. Hackley, 8 Johns. 202 ; Tobey v.
Barber, 5 Johns. 68. So of the debtor's order on a third person. Hoar v, Clute, 16
Johns. 224. Bee Parker v. Osgood, 4 Gray, 456.
> Phillips V. Blake, 1 Met 246 ; Snow v. Perry, 9 Pick. 589, 542.
* Lightbody v. Ontario Bank, 11 Wend. 9 ; IS Wend. 101 ; Markle v, Hatfield*
2 Johns. 455 ; Young v, Adams, 6 Mass. 182 ; Jones i;. Ryde, 5 Taunt 488 ; Olouces-
ter Bank v. Salem Bank, 17 Mass. 42, 48. It has been said in Massachusetts, that the
Bolvency of the bank, where both parties were equally innocent, was at the risk of the
creditor. See 6 Mass. 185. But this was reluctantly admitted on the ground of sup-
posed usage alone, and was not the point directly in judgment. The same has been
neld in Alabama. Lowry v. Murrell, 2 Porter, 280.
' * The creditor's omission to have the notes indorsed by the party from whom he
receives them is prima facie evidence of an agreement to take them at his own risk.
Whitebeck v. Van Ness, 11 Johns. 409 ; Breed v. Cook, 15 Johns. 241. Whether the
security was accepted in satisfaction of the original claim, is a matter of fact for the
juiy. Hart v. BoUer, 15 S. & K 162 ; Johnson v. Weed, 9 Johns. 810.
(a) The note of a third party, insolvent acceptance of the note of a third parbr on
at the time of the transfer, but which fact account of the debt does not satisfy the debt,
was unknown to both purdiaser and seller, unless so agreed at the time by the parties,
is no payment Roberts v. Fisher, 48 N. The bill or note being taken on a preoe-
Y. 159. And pa3rment in counterfeit dent debt, the presumption is it was not
money, made in good faith, is valid* if the taken as payment. Being taken contemno-
payee does not with due diligence ascer- raneously with the contracting of the debt,
tain the fact of worthlessnesa, and notify the presumption is that it was taken as
the party paying. Atwood v. Cornwall payment. Noel v. Murray, 13 N. Y. 167;
28 Mich. 886. Bee also Com £x. Bk. v. Haines v. Pearce, 41 Md. 221. In League
Kat Bk. Rep., 78 Penn. St 288. v. Waring, 85 Pa. St 244, it was held that
(6) Risher «. The Frolic, 1 Woods, C. the note is prima facie a condiiumal pay-
C. 92. Where the defendant proved a ment, and that the burden of showing it
tnnsfer of the note of a third person by to be an absolute discharge of the debt uea
his indorsement of it without recourse, on the defendant But in Re Clap, 2 Low.
and plaintiff's reoeipt of payment in full 226, 280, it is said that a negotiable bill or
by the note, it was held error to refttse to note is presumed prima facie to be taken
instruct the jury that defendant had made as payment, and tnis presumption may be
OQt a prima facie case. Davenport v, rebutted.
Sehram, 9 Wis. 119. In New York the
624 LAW OP EYIDfiNCE. [PABT IV.
creditor, it was held a good paymeut, though the promisor after-
wards failed.^ So, where goods were bargained for, in exchange
for a promissory note held by the purchaser as indorsee, and were
sold accordingly, but the note proved to be forged, of which, how-
ever, the purchaser was ignorant, it was held a good payment.^
So, where one entitled to receive cash receives instead thereof
notes or bills against a third person, it is payment, though the
securities turn out to be of no value.' But if the sale was in-
tended for cash, the payment by the notes or bills being no part
of the original stipulation,^ or the vendor has been induced to
take them by the fraudulent misrepresentation of the vendee, as
to the solvency of the parties,^ or they are forged,® (a) or they are
forced upon the vendor by the necessity of the case, nothing bet-
ter being attainable,^ (J) it is no payment. If, however, a credi-
tor, who has received a draft or note upon a third person, delays
for an unreasonable time to present it for acceptance and pay-
ment, whereby a loss accrues, the loss is his own.' So, if he alters
the bill, and thus vitiates it, he thereby causes it to operate as a
satisfaction of the debt.® So, if he accepts from the drawee other
bills in payment of the di*aft, and they turn out to be worthless.^^
I Wiseman v. Lyman, 7 Mass. 286. See also Benneson v. Thayer, 28 IIL 874.
> Ellis V. Wild, 6 Mass. 321. And see Alexander v. Owen, 1 T. B. 225. So,
though it he genuine. Harris v, Johnson, 8 Cranch, 811.
* FydeU v, Clark, 1 Esp. 447. See also Bew v, Barher, 3 Cowen, 272 ; Frishie v.
Lamed, 21 Wend. 450 ; Arnold v. Camp, 12 Johns. 409.
« Ellis V. Wild, 6 Mass. 821. And see Owenson v, Morse, 7 T. R. 64. In this
case, the vendor leceived the notes of hankers who were in fact insolvent, and never
afterwards opened their house. See also Salem Bank v, Gloucester Bank, 17 Mass. 1.
^ Pierce v. Drake, 15 Johns. 475 ; Wilson v. Force, 6 Johns. 110 ; Brown v, Jack-
son, 2 Wash. C. C. 24.
* Markle v. Hatfield, 2 Johns. 455 ; Bank of the United States v. Bank of Geoigia,
10 Wheat. 883 ; Haijmive v. Dusenhury, 2 Hawks, 326.
7 This was Lord Tenterden's view of the facts in Bohinson v. Read, 9 B. & C. 449.
B Chamherlyn v, Delarive, 8 Wils. 353 ; Bishop v. Chitty, 2 Stra. 1195 ; Watts v.
Willing, 2 DalL 100 ; Popley v. Ashley, 6 Mod. 147 ; R^ond v, Batr, 13 S. & R.
818 ; Koherts v. Gallaher, 2 Wash. C. C. 191 ; Copper v. Power, Anthon, 49.
B Alderson v. Langdale, 8 B. & Ad. 660.
^ Bolton V. Reichard, 1 Esp. 106.
(a) Farr v. Stevens, 26 Yt. 299. But (5) And whenever a security taken in
see Com Exch. Bk. v. Nat. Bk. Rep., 78 payment of a demand is void, oris avoided
Penn. St. 288. Where one agreed to accept for any cause, the creditor may bring an
a note of the debtor with two sureties in action and recover on the original cause of
Sayment of a previous note, and the debtor action. Leonard v. Trustees, kc, 2 Cush.
elivered such a note, but the signatures of (Mass.) 464; Perkins v. Cummings, 2
the sureties proved to be foigeries, it was Gray (Mass.), 258 ; Swartwout v. Payne,
held that the original note was not dis- 19 Johns. (N. Y.) 294; Sutton v. Toomer,
charsed, though it had been delivered to 7 Bam. & Cress. 416 ; Atkinson v. Haw-
the debtor ana by him destroyed. £mer- don, 2 Ad. & £L 628 ; Sloman v. Cox, 5
ine V. O'Brien, 86 Ohio St 491. Tyrw. 174.
PABT IT.] PATMENT. 625
§ 524. By foreoloaore of mortgage. The foredo9wre of a morlr
gagt^ given to secure the debt, may also be shown as a payment,
made at the time of complete foreclosure ; but if the property
mortgaged is not, at that time, equal in value to the amount due,
it is only payment fro tantoy A legacy^ also, will sometimes be
deemed a payment and satisfaction of a debt due from the testa-
tor. But to be so taken, the debt must have been in existence and
liquidated, at the date of the will.^ And parol evidence is admis-
sible to prove extraneous circumstances, from which the intent of
the testator may be inferred, that the legacy should go in satisfac-
tion of the debt.' (a)
§ 525. Remittance by post. When payment is made by a rtmitr
tanee by post to the creditor, it must be shown, on the part of the
debtor, that the letter was properly sealed and directed, and that
it was delivered into the postofiSce, and not to a private carrier or
porter. He must also prove, either the express direction of the
creditor to remit in that mode, or a usage or course of dealing,
from which the authority of the creditor may be inferred. Where
these circumstances concur, and a loss happens, it is the loss of
the creditor.*
§ 526. Pa3rment in apeoiflo artiolea. Payment may also be
proved by evidence of the delivery and acceptance of any «pe-
cific article or collateral thing in satisfaction of the debt ; as has
already been shown in the preceding pages.^ Such payment is a
good discharge even of a judgment.® Payment even of part of the
8
Case ^^ , __ .. , , _ ..
3 Le Sage v, Couasmaker, 1 Esp. 187. And see Strong v. Williams, 12 Mass. 391 ;
Williams v, Crary, 5 Cowen, 868.
» Cnthbert v. Peacock, 2 Vem. 593 ; Fane v. Fane, 1 Vem. 81, n. (2), by Mr.
Raithby ; arUe, vol. i. §§ 287, 288, 296. And see Clark v. Bogaidos, 12 Wend. 67 ;
Mulheran v, Gillespie, Id. 249 ; Williams v. Crary, 8 Cowen. 246.
* Warwicke v, N cakes, 1 Peake, 67 ; Hawkins v, Rntt, Id. 186 ; Walter v, Haynes,
Ry. k M. 149. See True v. Collins, 3 Allen, 438. It is held by some that the send-
log of bank-notes, uncut, will not dischai^ the debtor ; because, amons prudent peo-
fie, it is usual to cut such securities in halves, and send them at different times,
'eake on Evid. by Norris, p. 412.
* Suproj tit Accord and Satisfaction. • Brown v, Feeter, 7 Wend. 801.
(a) A lemcj to a creditor of a sum less for senrices, and the legacy was for a less
than his debt is not to be applied towards amount than the value of such services,
Sayroent of the debt, without clear evi- evidence of the declarations of the testa-
ence of the testator^s intention that it tor that he intended the legacy as payment
should be. Parker v, Cobum, 10 Allen, of tiie services was held to be inadmissi-
84 ; 2 Story's £q. Jur. §§ 1104, 1122. ble. Reynolds v. Robinson, 82 N. Y.
Where the debt was an unUquidated claim 108.
626 LAW OP irVIBBNCB. [PiBT IV.
sum may be a satisfaction of the whole debt, if so agreed, provided
it be in a manner collateral to the original obligation ; as, if it be
paid before the day, or in a manner different from the first agree-
ment, or be made by a stranger, out of his own moneys, or under
a fair compensation with all the creditors of the party .^ (a)
§ 527. Wlien preaiimed from otooainiitanoes. Payment may also
be presumed or inferred by the jury from sufiScient circumstances.
Thus where, in the ordinary course of dealing, a security, when
paid, is given up to the party who pays it, the possession of the
security by the debtor, after the day of payment, is prima fade
evidence that he has paid it.^ (5) But the mere production of
a bill of exchange from the custody of the acceptor affords no
presumption that he has paid it, without proof that it was once
in circulation after he accepted it.^ Nor is payment presumed
from a receipt indorsed on the bill, without evidence that it is the
handwriting of a person entitled to demand payment.* (c) Nor
will it be presumed from the circumstance of the defendant's
having drawn a check on a bank, or on his banker, payable to the
plaintiff or bearer, without proof that the money had been paid
thereon to the plaintiff ; and of this, the plaintiff's name on the
^ Co. Lit. 212 h; Steininan v, Magnns, 11 East, 390 ; Lewis v. Jones, 4 B. & C.
506 ; Ellis on Debtor and Creditor, pp. 412, 413. And see, mpra, tit. Accord and
Satisfaction.
^ Bremridge p. Osborne, 1 Stark. 874; Gibbon v. Featherstonbaugli,' Id. 225;
Weidner v. Schweigsrt, 9 S. & R. 385 ; Smith v. Smith, 15 N. H. 55. See ante, yoL
i. §88.
* Pfiel V. Yanbattenbnig, 2 Campb. 439. * Ibid.
(a) Where a snm of money is paid on a 18«. id, was paid, bnt did not retnm it.
debt and there is a conflict whether that The jury haying found that any objection
sum is the whole amount due to the cred- to the remittance not beinf in money was
itor, the payment of that sum will not, as waived, and that the bank-bill was refused
matter of law, operate as a discharge, un- only because it did not include the costs,
less it is received in accord and satisfaction it was held that there was evideoce of pay-
of a disputed claim. Grinnell v. Spink, ment Caine v. Coulton, 1 H. & C. 764.
128 Mass. 25 ; Harriman v, Harriman, 12 (&) Baring v, Clark, 19 Pick. (Mass.)
Gray (Mass.), 341. 220 ; McGee v, Prouty, 9 Met. (Mass.)
But if there is anything in the nature 557. But see Backlev v. Saxe, 10 Mich,
of a consideration for giving up the residue 326. But this rule does not apply to a
of such debt, the creditor mil be bound by possession by one of two joint promisors in
his agreement to take such part-payment an action by him to recover of the other
in full satisfaction. Bohr v, Anderson, 51 one-half of the amount thereof. Heald v.
Md. 205. Davis, 11 Cush. (Mass.) 319.
The plaintifTs attorney wrote to tiie de* (0) Bnt the burden is upon the plain*
fendant, requesting him to remit a balance tiff, where the note saed on has not Idft his
due to the plainti£^ with IBs, id. costs, hands, to overthrow the inference that he
The defendant sent a bank-bill for the has made the indorsements and received
amount of the balance only. The plain- the payments. Brown v. Gooden, 10 Ind.
tiff's attorney wrote in answer, that he 444.
would not receive the bank-bill unless the
back of the check will be enfficient evidence.' And where ft bill
of ezctumge, on presentment by the bankers of the indorsee to
the acceptor, vaa not paid, but aftervarda a stranger called on
the banker's clerk and paid it, the clerk giving up the bill to him
after indorsing upon it a general receipt of pay meut ; this receipt
was held no evidence of payment bg the acceptor, ia a subsequent
action by the indorsee against him.'
§ 528. Fiom lapM oj time. Payment is also pretumed from
lapie of iime. The lapse of twenty years, without explanatory
circumstances, affords a presumption of law that the debt is paid,
even though it be due by specialty, which the. court will apply,
without the aid of a jury.^ (a) But it may be inferred by the jury
from circumstances, coupled with the lapse of a shorter period.* (&}
It may also be inferred from the u«wa2 wwrte of trade in general,
or from the habit and course of deaJii^; between the parties. Thus,
where the defendant was regular in his dealings, and employed a
large number of workmen, whom he was in the habit of paying
every Saturday night, and the plaintiff had been one of his work-
men, and had been seen among them waiting to receive his wages,
but had ceased to work for the defendant for upwards of two
years ; this was held admissible evidence to found a presumption
that he had been paid with the others.'' So, where the course of
1 Egg V. Bimstt, 3 E^ 196.
' PEllipao. Vftma, 14 M. * W. 879.
■ Ante, vol. i. g 80 ; Cobell v. Budd, 1 Campb. 27 ; Cops r. Himiplu«;g, 14 S. A B.
15 ; Ellis on Debtor &Dd Creditor, p. 414.
< Beat on Ppeanmption, { 187 ; Lavia o. Nones, 7 S. * B. 410. If the debt paid U
ditpated b; the defenduit, who admits tb«t it hM not been paid, l&pse of time, tWirh
, may afford a preuunption af^nst tbs
Sparke, 2 J. & W. 228 ; B«ii<br it. Snj.
(a) Morrison t. Fnnk, 2S Pann. St 421. entially from the drcnmstancM of the ca«e.
TTiia presumption may bo controlled by Sadler o. Kennedy, nipni,- Moore r. Smith,
iHdence of part-payment of principal or 81 Pa. St. 182.
inteceat, or other admissions or circuD)Bt«D- The presnmptioD of payment iridDg
cea {n>m vhich the jury would be author- from the lapaeoi twen^yeanisarebDtta-
iied to find the debt still unpaid. Cheever ble prMurapUan. Hale v. Peck, 10 W. Vh
«. Perley, U Allen (Maw.), G8S. 145. The Upae of Hven years after a lef^y
(i) So it hu been held that a period leea Is payable does not raiie a pmumption of
than twen^ years, though it fall short by payment. Strohm's Appeat 23 Penn. SL
only a day, does not raise a leeal presump- Sfil ; Oould «. White, 20 N. H. 178; Sel-
tion of payment. Sadler n. Kennedy, II lera v. Holman, SO Penn. 3t S21 ; Kibe r.
W. Vft. 187 ; Bom t. Pierpont, 28 5f. J. Kline, Id. 603 ; Walker o. Wright, 3
Eq. 7. Jones, Law (N. C), 1S6 ; McQueen v.
The jury, howerer, as the anthor states Fletcher, 4 Bieh. (3. C.) Eq. 152 ; Bnils*
in the text, may find the payment infer- ksr v. Taylor, 7fl Penn. St. 83.
528 LAW OP EVIDENCE. [PART IV.
dealing between the parties engaged in dailj sales of milk to cus-
tomers, was to make a daily settlement and payment of balances
without writing, this was held a sufiScient ground to presume pay-
ment, until the plaintiff should prove the contrary .^ So, also a
receipt for the last year's or quarter's rent is prima fcteie evi-
dence that all .rents, previously due, have been paid.^ (a)
§ 529. Appropriatioxi of payments. In regard to the ascription
or appropriation of payments^ the general rule of law is, that a
debtor owing several debts to the same creditor has a right to
apply his payment, at the time of making it, to which debt he
pleases. But this rule applies Only to voluntary payments, and
not to those made under compulsory process of law.* (6) If he
makes a general payment without appropriating it, the creditor
may apply it as he pleases, (e) And where neither party appro-
priates it, the law will apply it according to its own view of the
intrinsic justice and equity of the case.^
1 Evans v. Birch, 8 Campb. 10. * Ante, vol. i. § S8.
s .Blackstone Bank v. Hill, 10 Pick. 129 ; United States v. Bradbury, Daveis, 146.
* Per Story, J., in Cremer v. Higginson, 1 Mason, 838 ; 1 Story on Eauity, § 469 h ;
United Stotes p. Wardwell, 5 Mason, 85 ; Seymour v. Van Slyck, 8 Wend. 408 ; Chitty
on Contracts, p. 882, and cases there cited ; Clayton's Case, in Devaynes v. Noble, 1
Meriv. 605-607 ; £lli3 on Debtor and Creditor, pp. 40&-412. The doctrine of the Bo-
man law on this subject, and its recognition in adjadged cases in the common law, are
stated by Mr. Cowen, in a note to the case of Pattison v. Hull, 9 Cow. 747, bb follows :
" A moment's recurrence to the civil law will convince the learned reader how much we
have borrowed from it almost without credit. The whole text of that law, in relation
to the subject under consideration, is contained pawim in the Digest (Lib. 46, tit. 3,
De solxUionibxts et libercUionibus), as is rendered into Eoglish by Strahan, from the
French of Domat's Civil Law, in its natural order, as follows : —
'' * 1. If a debtor, who owes to a creditor different debts, hath a mind to pay one of
them, he is at liberty to acquit whichsoever of them he pleases ; and the creditor can-
not refuse to receive payment of it ; for there is not any one of them which the debtor
may not acquit, although he pays nothing of all the other debts, provided he acquit
entirely the debt which he offers to pay.*
'* This is precisely the common law. Owing two debts to the same person, yon may
pay which you please, but you must tender the whole debt. The creditor is not bound
to take part of it, though he may do so if he choose. (22 Ed. TV. 25 ; Br. Condition,
pi. 181 ; Loflft's Gilb. 830 ; Pinnel's Case, 6 Co. 117 ; Colt v. Netterville, 2 P. Wms.
804; Anon., Cro. Eliz. 68.) Hawkshaw v, Rawlings (1 Stra. 28), that the debtor
(a) Where rent has not been paid for Eq. 555. The appropriation may be made
twenty years, the presmnption is that the on a debt not actionable, as being within
rent previous to that time was paid, but the Statute of Frauds (Haynes v, Nice,
there is no presumption that the covenant 100 Mass. 827 ; post, §§ 581, 585); or any
to pay r«n< nas been discharged. Lyon v, lawful demand due and payable (Bean v.
Odell, 65 N. Y. 28. Bume, 54 N. H. 895). And if the money
(b) Upon the subject of appropriation is paid by the debtor, without any appro-
of payments, see a very elaborate article in pnation thereof, to an attorney of the
the London Law Msjgazine for August, creditors, the attorney may make the ap-
1855, p. 21, reprinted in Livingston's Law propriation. Carpenter v. Goin, 19 N. H.
Magazine, vol. iii. p. 789. 479.
(c) Nash V. Hoagson, 81 Eng. Law &
§ 680. By d«btor. An appropriation hy the debtor may be
proved, either by his express declaration, or by any circumBtBnces
ahall not »fpij the aoney, ii not Uw. There are fifttm or twenty e*se> the Dther
w«y.
" '2. If in the tame cam of a' debtor who owes seTanl debts to one and the ume
eteditor, the said debtor makes a payment to him, without declaring at the same time
which of the debts he has a oiind to discharge, whether it he that he gires him a snm
of money indefinitely in part payment of what be owes him, or that there be acompenaa-
tioa [>. c, a set-off) of ilebts agreed on between the debtor and creditor, or in some
other manner, tite debtor will have always the same liberty of applying the payment to
whichsoever of the debts he has a miod to acquit. Hut if the creditor were to apply
the imynient, he could apply it only to that debt which he bimseir would discharge in
the first place, in case he were the debtor, for equity requires that he should ( ' '- '*--
a^ir of his debtor as he would do in his owd. And if, for eiample, in the ct
debts, one of them were controverted, and tbe other clear, the creditor could not apply
the payment to the debt which is contested by the debtor.'
" The right of the debtor to apply the paymant, whether total or partia), if he do so
at the time, is recognized by alt the cases. As to the above doctrine Retraining the
creditor to an application most favorable to the rights «F tbe debtor, one cannot read
tbe case of Goddard c Coz (2 Str. 1191) without being struck with the similarity both
in principle and illustration. The defendant awed the plaintiff three debta : one he
contracts himself, a second he owed absolutely in right of his wife, and the third was
doe from his wife as executrix. The defendant made several indefinite payments, after
which his creditor sued him. Chief Justice Lee held the whole of the above civil-law
doctrine. 1. It was agreed the defendant had tbe first right to apply tbe payments.
2. The Chief Justice held, there being no direction by him, that thereby the right de-
volved to tbe plaintiff. And the defendant being by the marriage enuaUy a debtor for
what his wife received dum sola, as for what was after, the plaintiff might apply the
moaer received to dLicharge the wife's own debt. ' But as to the demand against her
as eieciilrii, the validity of which depended upon the qneation of assets, and manner
t)t administering them, he was of opinion the pbintiff could not apply any of the money
paid by the defendant to the discharge of thai demand.'
" ' 3. In all cases where a debtor, owing several debts to one and the same creditor,
is found to have made some payments, of which the appliuation has not been made by
the mntaal consent of the parties, and where it is necessary that it be regulated either
by a court of justice or by arbitrators, tbe payments ousht to be applied to the debta
which lie heaviest on the debtor, and which it concerns him most to discharge. (12
Hod. 659 ; 2 Brownl. 107, 108 ; I Vem. 21 ; 2 Freem. 261 ; I Ld. Raym. 2Sfi ; 1
Comb. 163; Feake, N. P. Caa. ti.) Thus a payment is applied rather to a debt of
which the non-payment would expose the debtor to eooie penalty, and to coats and
damages (12 Uod. fiSS ; 2 Brownl. 107, 108 ; 1 Vem. 24 ; 2 Freem. 261 ; 1 Ld. Raym.
286 ; 1 Comb. *e3 ; Peaka, N. P. Caa. 6i ; i Hnr. & Johns. 761 ; 2 Id. «2 ; 8 Mod.
236) 1 or in the payment of which his honor might be concerned, than to a debt of
which the non-payment would not be attended with such consequences. Thus a pay-
ment is applied to the discharge of a debt for which a surety is bound, mtlier than to
acqnit what tbe debtor is aingly bound for withont giving any secnrity (Marryatta r.
White, 2 SUrk. 101 ; Plomer c. Long, 1 Id. 153, amlm) ; or to the discharge of wliat
be owes in his own name, rather than what be stands engaged for as surety for another.
Tbas a payment is applied to a debt for which the debtor his given pawns and mortga-
ses, rather than to a debt dne by a simple bond or promise (1 Vem. 21 ; 1 Har. k
Johns. 7S1 ; 2 Id. 102) ; rather to a debt of which the term has already come, (hau
the one that is not yet dae (Hammenly «. Enowlys, 2 Eep. B66 ; Miagam Bank v.
Rosevelt, per Woodworth, J., 0 Cowen, 112 ; Baker v. Stackpoole, per Savage, C. J.,
9 Cowen, 136) ; or to an old debt before a new one {1 Henv. 60S) ; and rather to a
debt that is cleajr and liquid than to one that is in dispute (Goddard v. Coi, S Str.
1194] ; or to a pars and simple debt before one that is conditional (Ihid., and 9
Cowen, 112).'
" I have ben interpolated Qie common-law cases In the text of the civil law. On
mining them, it will he fonnd that almost every woid of tbe last quotation hat been
a creditor to whom •eraral debti an dan, sxceeda
680 LAW OF BVIDENCB. [PABT IT.
from which his intention can be inferred.^ Bat it seems that
this intention must be signified to the creditor at the time ; for
an entry made in his own books has been held insufficient to
determine the application of the payment.^ (a) Thus, where the
debtor owed his creditor a private debt, and also was indebted
to him as the agent of several annuitants, for which latter debts
his surety was also liable ; and both the debtor and his surety
the debt to which it ought to he applied, the oreiplns ought to be applied to the dis-
charge of the debt which follows, according to the order explained in the preceding
article, unless the debtor makes another choice.'
** This follows, of course-, from principles before stated.
*' '5. If a debtor makes a payment to dischai^ debts which of their nature bear
interest, such as treat of a marriage portion, or what is due by virtue of a contract of
sale, or that the same be due by a sentence of a court of justice, and the payment be
not sufficient to acquit both the principal and the interest due thereon, tne payment
will be applied in tne first place to the dischai^e of the interest, and the overplus to
the discharge of a part of the principal sum.
'"6. It, in the cases of the foregoing article, the creditor had given an acquittance
in general for principal and interest, the ()ayment would not be applied in an equal
proportion to tne discharge of a part of the principal and a part of the interest ; but in
the first place all the interest due would be cleared ofi^ and the remainder would be
applied to the discharge of the principal.'
'* The last two jmragraphs contain a doctrine perfectly naturalized by all our cases,
from Chase v. Box (2 Freem. 261) to State of Connecticut v, Jackson (1 Johns. Ch.
17, and vid. Stoughton v, Linch (2 Id. 209). Fid. also Hening's ed. of Maxims in
IjSW in Equity, App. 1 to Francis's Maxims, pp. 106, 108, 113, and the cases there
cited. Also Williams v. Houghtaling, 8 Cowen, 86, 87, 88, 89, n. (a), with the cases
there cited. )
'* * 7. When a debtor, obliging himself to a creditor for several causes at one and
the same time, gives him vavma or mortgages, which he engages for the security of aU
the debts, the money whicn is raised by the sale of the pawns and mortgages will be
applied. in an equal proportion to the discharge of every one of the debts. (Perry v,
Roberts, 2 Ch. Cas. 84, somewhat similar in principle.) But if the debts were con-
tracted at divers times upon the security of the same pawns and mortgages, so as that
the debtor had mortgaged for the last debts what should remain of the pledge, after
payment of the first, the moneys arising from the pledges would in this case be applied
in the first place to the discharge of the debt of the oldest standing. And both in the
one and the other case, if any interest be due on account of the debt which is to be
discharged by the payinent, the same will be paid before any part thereof be applied to
the discnarge of the principal.'
** This paragraph contains the familiar doctrine of priority of pledges ; and follows
out the corollary of applying partial payment to discnarge interest in the first place.
The proposition, that a payment on pawns, &c., for simultaneous debts, shall be dis-
tributed between the two debts, has never been exactly adjudged with us, though the
case interpolated is about the same in principle. And see what Holt, C. J., says in
Stvart V, Rowland (2 Show. 216)." See 9 Cowen, 778-777. See also Smith v. Screven,
1 McCord, 868 ; Mayor, &c, of Alexandria v. Patten, 4 Cituich, 816 ; Mann v. Marsh,
2 Caines, 99.
» Waters v, Tompkins, 2 C. M. & R. 728 ; s. c. 1 Tyrw. & Grang. 187 ; Peters v,
Anderson, 5 Taunt. 596 ; Newmarch v. Clay, 14 East, 289 ; Stone v, Seymour, 16
Wend. 19. The same rule applies to appropriations by creditors. Seymour v. Van
Slyck. 8 Wend. 408.
^ Manning v. Westerns, 2 Yem. 606.
la) The general rule is that notice of ment Pickering o. Bay, 2 Del. Oh. 888;
the appropmtion, if it is made by the Bell v. Radcliffe, 82 Ark. 645 ; Whittaker
debtor, should be given to the creditor v. Groover, 54 Ga. 174; Jones v. Williamai
]Hior to or at the time of making the pay* 89 Wis. 800.
being called upon in behalf of the annuitantB, the debtor made a
general payment, wiUiout any specific appropriation at the time ;
it vas held, that the circumstances showed his intention to apply
it to the annuities, and that the creditor vas therefore not at
liberty to ascribe it to his private debt^ So, if there be two
debts, and the debtor pays, without appropriation, a sum precisely
equal to what remains due on one of them, but greater than tlie
amount of the other, this will be regarded as ha'ving been intended
in discharge of the former debt.^ So, if there be two debts, the
vaUdity of one of which is disputed^ while the other is acknowl-
edged, a general payment will be presumed to have been made
on account of the latter.* But this right of the debtor to appro-
priate his payment is not without some limitation. Thus, for
example, he cannot apply it to the principal only, where the debt
carries interest ; for, by law, every payment towards such debts
shall be first applied to keep down the interest.* (a)
§ 531. By or«ditor. The right of appropriation by the creditor,
where the debtor makes none, is subject to some exeeptiont. Thus,
if one debt was due by the debtor as executor, and another was
due in his private capacity, the creditor shall not ascribe a gen-
eral payment to the former debt, for its validity will depend on
the question of assets.' So, if one of two debts was contracted
while the debtor was a trader within the bankrupt laws, and the
other afterwards, the creditor will not be permitted to apply a
general payment to the latter, so as to expose the debtor to a
commission of bankruptcy .' So, if one of the creditor's claims is
absolute, and the other is contingent, as if he is an indorser or
surety for the debtor, who makes a general payment ; the creditor
will be bonnd to appropriate it to the absolute debt alone.^ (i) If
one of two claims is legal and the other equitable, the creditor is
> Slww s. Ptoton, 1 B. ft C. 715.
■ Bobeit V. Qusie, S CaJQes, 11 ; Uanyottso. Wbite, 3 Stsrk. 101.
■ Tkyloa V. Sandiford, 7 Wheat 30, 21.
* Owicn n. Whitaker, I H. fc J. 764 ; Frader v. Hjland, Id. 68 ; Ttsct v. WikolT,
I DalL 124 ; Ifonrood v. Muining, 2 Nott & MeCord, 8S5 ; Dean «. Willkma, 17
Utm. in ; P>jr n. SnAlej, 1 Fink. 194.
* Ooddild V. Coi, 2 Stra. 1104.
< Maggott V. Hillg, 1 Ld. Rapn. 287 ; Daire v. Holdswortli, I Peak*, 84.
' NUgani Bank v. Boaerelt, » Coma, 409, 412.
682 LAW OP EVIDENCE. [PART IV.
bonnd to apply the payment to the former.^ If a partner in
trade, being indebted both as a member of the firm, and also on
his own private account, pays the money of the firm, the creditor
is bound to apply it to the partnership debt.^ And the account-
books of the creditor, with proof that the entries were contem-
poraneous with the fact of payment, are competent evidence in
his favor, to show to which of two accounts he applied a general
payment.*
§ 531 a. Prinoiple of the role. The principle on which these
and other exceptions are founded seems to be this : that the
debtor, by waiving his right of appropriation in favor of the
creditor, could not have intended that it should be exercised to
his own injury ; but, on the contrary, that he relied on the cred-
itor's making an appropriation to which he could not reasonably
or justly object. The creditor, therefore, never acquires the right
to apply a payment with a view merely to his own interest or
convenience, unless the debtor has had an opportunity to direct
its application by having the money pass through his own hands,
or under his own control. And upon the above principle it has
been held, that where a general payment was made to a creditor
who held three promissory notes against the debtor, all which
were within the bar of the statute of limitations, the creditor was
not at liberty to apply a part of the money to each of the notes,
so as to revive his remedy upon them all ; but must make his
election of one only, and apply the payment to that one alone.^ (a)
1 Birch V. Tebbutt, 2 Stark. 74 ; Goddard v, Hodges, 1 C. & Mees. 88 ; 8. c. 8
Tyrw. 259. But where the equitable debt waa prior to the other, the creditor has in
one case been permitted to apply the payment to the former. Bosanquet v. Wray, 6
Taunt. 597. And see al^o Bancroft v, Dumas, 6 Washb. 456; ante, § 529, n.
* Van Rensselaer v, Roberts, 5 Denio, 470.
* Thompson v. Brown, 1 M. & Malk. 40. « Ayer v. Hawkins, 19 Vt 26.
{a) The doctrine that the creditor may application, may appropriate them to any
make application of payments, if the debtor deot which he hoios a^nst the debtor,
has failed to do so, is unquestioned. Witt- although snch application is not the one
kowski V, Beid, 84 N. 0. 21 ; Brice v. most favorable to the debtor. Thus, the
Hamilton, 12 S. C. 82 ; Nash v. Hodgson, creditor may apply the payment to a debt
81 Eng. L. & Eq. 555. And he may do barred by the statute of limitations, or of
so by his attorney or agent. Carpenter v. imperfect obligation. Philpott v. Jones, 4
Ooin, 19 N. H. 479. Ney. k Man. 14 ; Rohan v. Hanson, 11
The limitation, however, to his right, Gush. (Mass.) 44 ; Haynes v. Nice, 100
i. e, that he must make the application Mass. 827 ; Ramsay v. Warner, 97 Mass.
most favorable to the rights of the debtor, 18; Pond v. Williams, 1 Oray (Mass.), 630.
is more doubtful. It au been held that Again, it has been held that a creditor to
a creditor receiving payments from his whom a debtor owes two debts may apply
debtor, without any direction as to their a payment to the unsecured debt, where
PABT lY.] PATMENT. 588
§ 582. Time of appropriation. At what time the creditor must
exercise this right of appropriation, whether forthwith, upon the
receipt of a general payment, or whether at any subsequent time,
at his pleasure, is not clearly settled by the English decisions ;
but the weight of authority seems in favor of his right to make
the election at any time when he pleases.^ And this unlimited
right has been recognized in the United States ; subject only to
this restriction, that he cannot appropriate a general payment to
a debt created after the payment was made.^
§ 532 a. Appropriation rigphtfully made, conduaiTe. j^ter a pay-
ment has been rightfully ascribed to one of several debts, it is not
in the power of either party alone to change it. But if both
parties consent, the ascription may be changed to another debt ;
in which case the indebtment discharged by the former appropriar
tion of the money is revived.' (a)
§ 533. Appropriation by law. Where neither party has applied
the payment, but it is left to be appropriated by law, the general
principle adopted by the American courts is to apply it as we
have already stated, according to the intrinsic justice and equity
of the case. But this principle of application is administered by
certain rules found by experience usually to lead to equitable
results. It has sometimes been held, that the appropriation ought
to be made according to the interest of the debtor, such being his
presumed intention. This is the rule of the Roman law, and
probably is the law of modem continental Europe;^ and it has
1 Clayton's Case, in Devaynes v. Noble, 1 Merir. 605, 607 ; Ellis on Debtor and
Creditor, pp. 406-408 ; Mills v. Fowkes, 5 Bing. N. C. 455, per Coltman, J.
> Mayor, &c. of Alexandria v. Patten, 4 Cranch, 817 ; Baker v, Stackpoole, 9 Cowen,
420, 436. And see Marsh v. Houlditch, cited in Chitty on Bills, p. 437, n. (c), 8th ed.;
Upbam r. liefavoor, 11 Met. 174, 184 ; Watt v. Hoch, 25 Penn. St 411.
* Rundlett v. Small, 12 ShepL 29. And see Codman v. Armstrong, 5 Shepl. 91.
* Poth. Obi. Part 8, c. 1, art. 7, § 530 ; 1 White's New Recopil. B. 2, tit 11, pp.
164, 165 ; Van Der Linden's Laws of Holland, B. 1, c. 18, § 1, Henry's ed. p. 267 ;
Grotius Introd. to Dutch Jurisn. B. 8, c. 39, § 15, p. 458, Herbert's Tr. ; Clayton's
Case, in Devavnes v. Noble, 1 Merir. 605, 606 ; Baker v. Stackpoole, 9 Cowen, 485 ;
Civil Code of France, art 1258>1256 ; Gass v. Stinson, 8 Somn. 99, 110.
the other is secured. Harding v, Tifft, 75 debtor, has applied payments to the dis-
N. Y. 461 ; Upham v, Lefavour, 11 Met. chai^ of a deot which is founded on an
(Mass.) 174 ; Wilcox v. Fairhaven Buik, iUegal transaction, i . «. an illegal sale of
7 Allen (Haas.), 270 ; Bean v, Bume, 54 liquors, the debtor cannot afterwards re-
K. H. 895. tract his consent and refuse to allow such
(a) Chancellor v. Schott, 28 Pa. St 68; application. Brown v. Bums, 67 Me. 585;
HcMaster v, Merrick, 41 Mich. 505. So Feidman v. Gamble, 26 N. J. £q. 494 ;
when the creditor, with the consent of a Caldwell v. Wentworth, 14 N. H. 481.
been recognized in Bereral of the United States.^ (a) But, on the
other hand, the correctness of thu rule, as one of uniTersal appli-
cation, has been expressly denied bj the highest authority. For
as, vhen a debtor fails to avail himseU of the power which he
poBsesses, in consequence of which that power deTolves on the
creditor, it does not appear unreasonable to suppose that he is
content with the manoer in which the creditor will exercise it ;
so, if neither party avails himself of his power, in consequence
of which it devolves on the court, it would seem equally reason-
able to suppose that both were content with the manner in which
the court will exercise it ; and that the only rule which it can be
presumed that the court will adopt is the rule of justice and
equity between the parties," Therefore, where a general payment
ie made without application by either party, and there are divers
claimH. some of which are but imnerfectlv and nartiallv secured.
But this rale may be varied by circumstajiceB.^ Thus, where an
agent renders an account, charging bimaelf with a balance, and
continues afterwards to receive mouejs for his principal, and to
make payments, hia subsequent payments are not necessarily to
be ascribed to the prcTious balance, if the subsequent receipts are
equal to snch payments.' Where the mortgagee of two parcels
of land, mortgaged for the eame debt, released one of them for
the assignee of the mortgagor of that parcel, the money received
for the release was appropriated to the mortgage debt, in favor of
an assignee of the other parcel, notwithstanding the mortgagor
was indebted to the creditor on other accounts.^ So, if one debt
is illegal, and the other is lawful, or if one debt is not yet payable,
but the other is already overdue, a general payment will be
ascribed to the latter.* (a) And if one debt bears interest, and
another does not, the payment will be applied to the debt bearing
iuterest."
§ 534. SMiir«d dabta. The mere fact that one of several debts
is secured by a uurety does not itself entitle that debt to a prefer-
ence in the appropriation of a general payment. And, therefore,
where there was a prior debt outstanding, and afterwards a new
debt was created, for wliich a bond was given with a surety, the
» WilBon «, Hirst, 1 Ner, & Man. 748, * Lysaeht v. Walker, 2 Bligh, K. S. 1.
■ Hickii V. BiDfclum, 11 Mus. 890 ; Owinii t>. WEitaker, 1 H. ft J. 754.
* Wright V. liing, 3 B. & C. 165 ; 8. c. 1 D. ft R. 783 ; £« parU KsndlBBon, 3
Dea. ft Cbib S34 ; McDowell v. Blackstone Caoal Co., fi Mason, 11 ; Gaa« v.
Stlnson, 3 Somn. 99, 112 ; Parchman v. HcKiune;, IS S. £ U. 631.
* Heyvrard v. Lomaz, 1 Vera. 24 ; Bacon v. Brown, 1 Bibb, S34 ; lupro, % 530.
Bell, S Met. (Man.) 499; Borton Hat
Maouf. v. Hrsainger, 2 Pick. (Uau.) 223;
Allcott V. Strang, 9 Cush. ( Mass. ) 323 ; Up- ful, as a claim for naanoiia lUKreac, ne
ham V. Lefavoar, 11 Met (Maaa.) 174; Mil- canaot apply a general pafmeat bj the
likin •. Tufta. 31 Me. 497 ; Thompaoii v. debtor to the illegal demand, although
Phelan, 22 If. H. 389 ; Hheild s. Wilson, the debtor, if he so electa, ma.j thus ap^y
27 Vt. 178 ; Tmscott «. King. 2 Selden it. Pickett n. Merchants' Hat. Bank, 82
(N. Y.), J47 ; DowB b. Morewood, 10 Ark. 346 ; Phillips v. Moses, 66 Me. 7«;
Barb. (N.Y.) 183 ; HarruoncJohDaloD, Rohan o. Hanson, 11 Cush. (Maes.) 44 ;
27 Ala. 44G. And this, though the credi- Bancroft v. Dumaa, 12 Vt. 457 : Back-
tor has secnritj on some of the items, .man e. Wright, 27 Vt 187 ; Caldwell o.
and none on the others. Worthlej v. Wentworth, 14 N. H. 437. And in gen-
Emerson, lis Mass. 874. But where all eral, if the debtor has once madea pay-
the pKymenta or credits belong to one ment on acconnt of a debt ariaing out
transacdaa, as where the credits all grow of an illegal transaction, or consented to
oat of a single contract on nhich there is the application by the creditor of a pay-
also a debit, these credits or payments ment to an illegal debt, he cannot aROT*
will be apptisd to that debit alone, and warda withdraw his consent Brown v,
will not be applied to items which hare Bnrae, 67 Me. G3£ ; Feldmau t>. Gamble,
nothing to do with that transaction, al- 26 N. J. £q. 494.
tboogb those items may be prior in date.
Sator «. Iras, 47 Md. S20.
done, and the time of prescription for incorporeal rights remained
as before. This unaccountable omission has occasioned some
inconvenience in the administration of justice, and some couilict
of opinion on the bench, and in the profession at large. The
inconvenience, however, has been greatly obviated in practice, hy
introducing a nev kind of title, namelj, the presumption of a
grant, made and lost in modem times ; vbich the jury are adviBed
or directed to find, upon evidence of enjoyment for sufficient
length of time. But whether this presumption is to be regarded
as a rule of law, to bo administered by the judges, or merely as a
subject fit to be emphatically recommended to the jury, is still a
disputed point in England, though now reduced to little practical
importance, especially since the recent statute on this subject.*
§ 539. Advene poHewion. In the United States grants have
been very freely presumed, upon proof of an adverse, exdutive, and
uninterrupted enjoyment for twenty year*; it being the policy of
the courts of law to limit the presumption to periods analogous to
those of the statutes of limitation, in all cases where the statutes
do not apply ; but whether this was a presumption of law or of
fact was for a long time as uncertain here as in England, and
perhaps may not yet be definitely settled in every State. But by
the weight of authority, as well as the preponderance of opinion,
it may be stated as the general rule of American law, that such
an enjoyment of an incorporeal hereditament affords a conclusive
presumption of a grant, or a right, as the case may be ; which is
to be applied as a pratumptio Juru et de Jure, wherever, by possi-
bility, a right may be acquired in any manner known to the law.'
1 Sea Oale & Wli»t«ley on EMements, pp. 8S-87 ; Piitoli»rd v. Powoll, 10 Jnr. 151
By Stat. 2 & 3 W. IV. c. 71, S 1, do prescription for any right in land, except tithe^
renta, and BamcM, irhere the profit shall have been actually taken and enjoyed W the
RisoQ claiming rifht thersta, without intemiption, for thirty yean, sbaU be defeated
showing an earner comm en cement. And if enjoyed in Ule manner for aiity yean;
t£e right is deemed indefeasible and absolute, unless shown to hare been enjoyed hj
express consent or agreement, by deed or in writiDg, By J 2, a similar effect is giren
to the like enjoyment of wajrs, easements, and watercourses, and rights for the period
(rf twBDty yaiiB, unless defeat«d in soma legal way other thaii bj snowing an earlier
commencement ; and for forty yeara, unleaa by consent in writing, as in the preceding
•ection. And hy j 3, the emoyment of lights for twenty years without intemiption con-
fers aa abaolute and indeleasihle title, unless it was by consent in writing, as in the
other cases. Thus the enjoyment for ike ahorter period, in the firat two cssee, is made
a pratvmjitio jurii of title, excluding only one method of defeating it ; and Uie enjoy-
ment for the longer period, iu every caae, ia made a prietumplio jurii et de jure, aguntt
all opposing proof, except that of consent in writing. See Best on I^-esumptionB,
- "" pp. 116-129.
TV. Wilkiiwoil, 7 Haoon, 402, per Story, J. And see anU, toL i. } 17, and
e cited i Sima t>. Davis, 1 Chevei, 2 ; 3 Kent, Comm. pp. U\, U3. On tliia
S 98, pp. lie
» Tyler *,
PAST IT.] PBESCBIPTIOK. 589
In order, however, that the enjoyment of an easement in another's
land may be conclusive of the right, it must have been adverse^
subject, Mr. Justice Wildei iu deliveriug the opinion of the court in Coolidge v. Lear-
ned, 8 Pick. 504, remarked as follows : '* That the time of legal memory, according to
the law of England, extends back to the remote period contended for by the plaintiff's
counsel, cannot be denied ; but for what reason, or for what purpose, such a limitation
should have been continued down to the present day, we are unable to ascertain.
Cruise says, ' that it seems somewhat extraordinary that the date of legal prescription
should continue to be reckoned from so distant a period.' And to us it seems that for
all practical purposes, it might as well be reckoned from the time of the creation. The
Ihnitation in Question (if it can now be called a limitation) was first established soon
after the Stat. Westm. 2 (13 £dw. I. c. 89), and was founded on the equitable construc-
tion of that statute, which provided that no writ of right should be nudntained except
on a seisin from the time of Richard I.
*' It was held that an undisturbed enjojrment of an easement for a period of time
sufficient to give a title to land by possession was sufficient also to give a title to the
easement 2 Roll. Abr. 269 ; 2 Inst 238 ; Rex v. Hudson, 2 Str. 909; 3 Stark, on Ev.
1205. Upon this principle, the time of legal memory was first limited, and upon the
same principle, when the limitation of a writ of right was reduced by the statute of
82 Hen. VIII. c. 2, to sixty years, a similar reduction should have been made in the limi-
tation of the time of le^i^ memory. This was required not only by public policy, to
quiet long-continued possessions, but by a regard to consistency, as it would have been
only following up the principle upon which the first limitation was founded.
** And of this opinion was RoUe (2 Roll. Abr. 269), though he admits that at his
time the practice was otherwise. Why the opinion of this eminent judge, founded as
it was on reasoning so solid and satisfactory, was not adopted b^ the courts, does not
appear. But it does appear, that the principle on which his opinion was founded was
respected, and carried into operation m another form. For although the courts con-
tinued to adhere to the limitation before adopted, yet the lonff enjoyment of an ease-
ment was held to be a sufficient reason, not only to authorize, but to require, the jury
to presume a grant And it has long been settled, that the undisturbed enjoyment of
an incorporeal right affecting the lancU of another for twenty years, the possession beinff
adverse and unrebutted, imposes on the jury the duty to presume a grant, and, in afi
such cases, juries are so instructed by the court Not, nowever, because either the
court or jury believe the presumed grant to have been actually made, but because
public policy and convenience require that long-continued possession should not be
disturbed.
"The period of twenty years was adopted in analogy to the statute of limitations,
by which an adverse possession of twenty years was a bar to an action of ejectment,
and gave a promissory title to the land. Thus it appears, that, although prescriptive
rights commencing after the reiffn of Richard I. are not sustained in England, yet a
possession of twenty years only is sufficient to warrant the presumption of a grant ;
which is the foundation of the doctrine of prescription. In the one case, the grant is
presumed by the court, or rather is presumed by the law, and in the other case it is
presumed by the jury, under the direction of the court. The presumption in the latter
case is in theory, it is true, a presumption of fact, but in practice and for all practical
purposes, it is a legal presumption, as it depends on pure legal rules ; and, as Starkie
remarks, ' It seems to be very difficult to say, why such presumptions should not at
once have been established as mere presumptions of law, to be applied to the facts 1^
the courts, without the aid of a jury. Tnat course would certainly have been more
simple, and any objection, as to the want of authority, would apply with equal if not
superior force to the establishing such presumptions indirectly through the medium
of a jury.
" But, however this may be, it is clear, that, 'when the law became settled as it now
is, and a party was allowed to plead a non-existing grant, and the jury were bound to
presume it, on proof of twenty years' possession, he would hardly be induced to set up
a prescriptive right ; and the limitation of legal memory thus became in most cases of
veiy little Importance. And this is probably the reason why the period of legal mem-
ory, aa it was limited soon after the statuto of Westm. 1, has been suffered to go on in-
craasing to the present time^ although it has long since ceased to be of any practical
i
640 LAW OP BVIDBNCE. [PAET IV.
that is, under a claim of title, with the knowledge and acquies-
cence of the owner of the land, and uninterrupted ; and the bur-
den of proving this is on tlie party claiming the easement. If he
leaves it doubtful, whether the enjoyment was adverse, known to
the owner, and uninterrupted, it is not conclusive in his f avor.^ (a^
utility, and is utterly inconsistent with the principle on which the limitation was
originally founded.
" The ouestion then, is, whether the courts in this country were not at liberty to
adopt the Engluth law of prescription, with a modification of the unreasonable rule ad-
hered to by the English courts in regard to the limitation of the time of legal memory.
Certainly the law without the rule of limitation might have been adopted, and tho
courts here had competent authority to establish a new rule of limitation suited to the
situation of the country. They had the same authority in this respect that the courts
in England had to establish the English rule of limitation. This rule could not be
adopt^ here without a modification, and it was modified accordingly ; and in con-
foi-mity with the principle of the English rule of limitation. This cannot be ascertained
with certainty, but it is evident that the English rule could not have been adopted,
and it is to be presumed that the period of sixty years was fixed upon as Uie time
of limitation, in analogy to the statute of 32 Hen. YIII. c. 2, and in conformity with the
opinion of Rolle. At what period of our history the law of prescription was first intro-
duced into practice in the courts of Massachusetts cannot now be determined, but cer-
tainly it was before the time of legal memory, as we understand the limitation of it ;
and uinumerable pleas of prescriptive rights are to be found in the records of our
courts. So the cases reported by Dane show that the doctiine of prescription has been
repeatedly reco^ized and sanctioned by this court 3 Dane, 253, c. 79, art. S, § 19.
The only question has been, whether our time of legal memory was limited to sixty
years, or wnether it was to extend to a period beyond which no memory or record goes
as to the right in question. The general opinion, we think, has been in favor of the
limitation of sixty years ; and we think it decidedly the better opinion. This seems to
us a reasonable limitation, and, as before remarked, it is founded on the principle of the
English rule of limitation, which was adopted in reference to the limitation of the writ
of right by the statute of Westm. 1. Whether since the writ of right has been limited
to forty years, a similar limitation of the time of legal memory ought to be adopted, is
a question not raised in this case and upon which we give no opinion." 8 Pick.
508-511. The conclusiveness of the presumption was again asserted in Sargent v.
Ballard, 9 Pick. 251. Aftenrards, the point of time being before the same court, it
was adjudged that the exclusive uninterrupted use and enjoyment for forty years, of an
incorporeal right affecting another's land, was sufficient to establish a title by prescrip-
tion. Melvin v. Whiting, 10 Pick. 295. And, subsequently, a similar enjoyment for
twenty years was held equally effectual. Bolivar Man. Co. v. Neponset Manuf. Co., 16
Pick. 241. This rule is now expressly recognized, in several of the States, by statutes.
See Rev. Stat. Massachusetts, c. 60, § 27 ; Rev. Stat Maine, c. 147, § 14. And it
seems to be either assumed or necessarily implied in the legislation of other States.
See Elmer's Dig. LL. New Jersey, pp. 314, 317, tit. Limitations, §§ 1, 16 ; Den v.
McCann, Penningt. 331, 333 ; 1 Rev. Stat N. Carolina, c 64, § 1, pp. 371, 372; Rev.
Stat Delaware, 1839, tit Limitations, § 1, p. 396 ; 2 LL. Kentucky, p. 1125, tit
Limitations, § 2 (Morehead & Brown's ed.) ; Morgan v, Banta, 1 Bibb, 582 ; Simpson
V. Hawkins, 1 Dana, 306 ; Clay's Dig. LL. Alabama, p. 329, § 93 ; Rev. Stat. Missouri,
E. 392, tit Limitations, art 1, § 1; 2 Rev. Stat. New York, p. 293, S§ 5, 7 ; 8 Cruise's
^ig. tit. 31, c. 1, § 21, n. (Greenleaf 's ed.). See also Shaw v. Crawford, 10 Johns.
236 ; Johns v. Stevens, 8 Vt 316. The case of Boiling v. Mayor, kc. of Petcrs-
buig, 8 Rand. 563, 577, which has been cited to the contrary, was a writ of right,
respecting a corporeal hereditament, and turned upon the statute of limitations.
^ Sargent v, Ballard, 9 Pick. 251 ; Davies v, Stevens, 7 C. & P. 570 ; Jarris v.
Dean, 3 Bing. 447.
(a) Proof of an adverse and nninter- owner of the land, is sufficient to establish
rnpted use of a way for twenty years, with an incumbrance upon land without proof
the knowledge and acquiescence of the of an express daim of the right by the
PART lY.] PBESCBIFTION. 541
§ 539 a. AdTexme enjoymeiit must be aotionable. It seems, that
to constitute an adverse enjoyment of an incorporeal hereditament,
the act of enjoyment must be of such a character as to afford
ground for an action bj the other party. It must be either a
direct invasion of his Tested rights, or else consequently injurious
to their free exercise. The foundation of prescriptive title is the
presumed grant of the party whose rights are adversely affected ;
but where it appears that the enjoyment has existed by the con-
sent or license of such party, no presumption of grant can be
made, (a) Thus, in the case of lights, if the building in which
they are made is erected on the party's own land, and no building
stands on the land of the adjoining proprietor, it has been held,
that, against the latter, no right is acquired by lapse of time.^
1 Pierre v, Femald, 18 Shepl. 436. Shepley, J., in delivering the opinion of the
court in this case, said : *' Nothing in the law can be more certain than one's right to
occupy and use his own land, as he pleases, if he does not thereby injure others. He
may Wild upon it, or occupy it as a garden, grass-plat, or passage-way without any loss
or diminution of his rights. No oUier person can acquire any right or interest in it
merely on account of the manner in which it has been occupied. When one builds
n^n his own land immediately adjoining the land of another person, and puts out
wmdows overlooking that neighbor's lands, he does no more than exercise a \effl right.
This is admitted. Cross v, Lewis, 2 B. & C. 686. By the exercise of a legal right he
can make no encroachment upon the rights of his neighbor, and cannot thereby impose
any servitude or ac(^uire any easement Dy the exercise of such a risht for any length of
time. He does no mjunr to his neighbor by the enpoyment of the flow of light and
air, and does not therefore claim or exercise any right adversely to the rights of his
neighbor. Nor is there anything of similitude between the exercise of such a right
and the exercise of rights claimed adversely. It is admitted that the defendant cannot
obtain redress by any legal process. In other words, that his rights have not been en-
croached upon ; and that he has no cause of complaint. And yet, while thus situated
for more than twenty years, he loses his right to the free use of his land, because he
persons using the way, or of an express court cannot instruct the jury to presume
admission of the right by the owner of a grant Demuth v, Amweg, 90 Pa. St.
the land. Blake v, Everett, 1 Allen 181. The possession will be presumed to be
(Mass.), 248. Where no contract is shown, adverse unless some license or permission
and the use came to the knowledge of the is shown. Stefify v. Carpenter, 37 Pa. St.
adverse party, or was so open and noto- 41. Cf. Lehigh ValleyKR. Co.v. McFar-
rious that such knowledge would be pre- Ian, 80 N. J. £q. 180. It is held that
snmed, the use will be presumed to have complaints by the owner of the land of
been under a claim of right, unless the the user, and demands that it be stopped,
contrary is shown. Arbuckle v. Ward, are competent to prove the non-ecquies-
29 y t. 43. As this prescription is founded cence of the owner in such use. Chicago,
on the presumption of a grant, it follows &C.R.R. Go, v. Hoag, 90 111. 839.
that twenty years' user will not establish The enjoyment of the right must be ad-
a riffht by prescription unless the owner verse. This is absolutely necessary, and
of tne subject prescribed for is capable of when the judge charged the jury that ** a
giving by express grant such a ri^t as is party who nas for more than twenty years
claimed 1^ prescription. Rochdale Canal occupied, used, and enjoyed a right of
V, Radcliffe, 12 Eng. Law k Eq. 409. wav over another's land, under a claim of
(a) So if the evidence in the case is rif^nt, uninterruptedly, continuously, and
such that the iury might find that the en- with the knowledge of the owner," but
joyment by the party claiming the right omitted to say adversely, " had acquired
was permitted by the party against whom an easement/' it was held erroneous,
he seeks to enforce tne right, then the McCardle v. Barricklow, 68 Ind. 866.
642 LAW OP EVIDBNCE. [PABT IV;
§ 540. Two kinds of prcaoription. There are two kinds of
positive prescription: the one being a personal right, exercised
by the party and his ancestors, or by a body politic and its prede-
cessors ; and the otlier being a right attached to an hereditament
held in fee simple, and exercisable only by those who are seised
of that estate ; and this is termed a prescription in a que estate.^
§ 541. Conditions essential to presorlption. Nothing can be
claimed by prescription which owes its origin to, and can only be
had by, matter of record ; but lapse of time accompanied by acts
done, or other circumstances, may warrant a jury in presuming a
grant or title by record.* Nor can anything be claimed by pre-
scription, unless it might have been created hj grant; nor any-
thing which the law itself gives of common right. Nor can
anything be prescribed for in a que estate^ unless it is appendant
or appurtenant to land, and lies in grant.^
§ 542. Customary rights. Customary rights differ from pre-
scriptive rights only in this, that the former are local usages,
belonging to all the inhabitants of a particular place or district ;
whereas the latter are rights belonging to individuals, wherever
they may reside.*
§ 543. Proof. From this view of the present state of the law
on this subject, it appears that the plea of prescription will be
maintained by any competent evidence of an uninterrupted, ex-
clusive enjoyment of the subject prescribed for during the period
of twenty years, with claim of title, and ^vith the actual or pre-
sumed knowledge of those adversely interested, (a) The time of
did not prevent his neighbor from enjoying that which occasioned him no iajurj and
afforded him no just. cause of complaint. The result of the doctrine is, that the owner
of land not covered by buildings, but used for any other purpose, may be deprived of
the right to build upon it by the lawful acts of the owner of the a4Joining land
performed upon his own land and continued for twenty years.
'*It may be safely aflirmed, that the common law ori^nally contained no such
principles. The doctrine as stated in the more recent decisions appears to have arisen
out of the misapplication in £ngland of tiie principle by which rights and easements
are acquired by the adverse claim and enjoyment of them for twenty years, to a case in
which no adverse or injurious claim was either made or enjoyed." And see Parker v.
Foote, 19 Wend. 809 ; Ray v. Lanes, 10 Ala. 63.
1 8 Cruise's Dig. tit. xzzL c 1, §§ 8, 9 (Greenleaf s ed. 1856X
3 8 Cruise's D^;. tit xzxi. c 1, § 10 (Greenleaf s ed. 1866) ; Farrar v, Merrill, 1
Qreenl. 17 ; Battles v. HoUey, 6 GreenL 145 ; ante, voL L § 46 ; Best on Presump-
tions, § 111.
> 8 Cruise's Dig. tit zxzi. c 1, §§ 11, 17, 18, 19 (Qroenleafs ed. 1856).
^ Id. § 7 ; Best on Presumptions, § 79.
(a) Where an uninterrupted user for less that presumption be rebutted by proof
twenty-one years is proved, the jury will of license or agreement Steffy «• Car-
be justified in presuming it advorBe, im- pontert 87 Pa. St 41. AntSt § bZ9, JU
PABT lY.] PRESCRIPTION. 543
enjoyment by a former owner, whose title has escheated to the
State by forfeiture, cannot be added to the time of enjoyment by
the grantee of the State, to make up the twenty years ; but the
times of enjoyment by those in privity with the claimant, as in
the relation of heir and ancestor, or grantor and grantee, may be
thus joined.^ (a)
§ 544. Same snbjeot. If the evidence of the claim extends
over the requisite period of time, the prescriptive title will not
be defeated by proof of slight, partial, or oceasioncd variations
in the exercise or extent of the right claimed. Thus, if a water-
course is prescribed for to a fulling-mill, but the party has con-
verted it into a grist-mill ; ^ or, if the subject of prescription be a
towing-path along the banks of a navigable river, and it has been
converted by statute into a floating harbor,^ — the right is not
thereby lost : for, in the former case, the substance of the right
is the mill, and not the kind of mill to which the same propelling
power was applied ; and, in the latter case, the use made by the
public was essentially the same as before, namely, for facility of
navigation. So, proof of the exercise of the right whenever the
party had occasion to do so, as, for example, the right to take
clay to make biicks, is sufficient, without showing that it was in
fact exercised at all times of the year, though it is so alleged in
the plea.* Thus, also, the plea will be supported by proof of a
right, larger than the right claimed, if it be of a nature to include
it.* (6) And if the prescription is for a common appurtenant to a
1 Sargent v. BaUard, 9 Pick. 251.
' Lutterel's Case, 4 Co. 86. And see Blanchard v. Baker, 8 Greenl. 253.
* Rex V. Tippett, 8 B. & Aid. 198 ; Codling v. Johnson, 9 B. & C. 938.
* Clayton v. Corby, 8 Jur. 212 ; 2 Ad. & m. N. 8. 818.
» Bailey ». Appleyard, 8 Ad. & EL 167 ; Bailiffs of Tewksbuty v. Bicknell, 1
Taunt. 142 ; Welcome v, Upton, '6 M. & W. 540, per Aldereon, B. ; Bosk wood v.
Pond, Cro. EL 722.
(a) An adyerae occupation of a fishery (b) When a right of way to certain
by A for a number of years, but after- lanos exists by adverse use and enjoyment
wards abandoned, cannot be added to a only, although evidence of the exerciw of
sttb8e<|uent occupation by B, to give B a the right for a single purpose wiU not
prescnptive right, althoiigh A, after such prove a right of way for other purposes,
abandonment, released all his right in the yet proof that it was used for a variety of
fishery to B. Nor wiU the occupation purposes, covering every purpose required
thereof by B for several years, while in by the dominant estate, in its then condi-
the employment of A, give B any rights tion, is evidence from which may be
by prescription against C, although A inferred a right to use the way for all pur-
claims adversely to C. McFarlin v. Essex poses which may reasonably be required
Companv, 10 Cosh. 304. See also Sawyer for the use of that estate while in the
9. Kendall, Id. 241 ; Kilbnni v. Adanu, same condition. Parks v. Bishop, 120
7 Met. 83. Mass. 340 : Sloan v. HolUday, 30 L. T.
544 LAW OP EVIDENCE. [PABT 17.
house and twenty acres, it will be supported by proof of a right
appurtenant to a house and eighteen acres.^ But the prescription,
being an entire thing, must be proved 9uJ>8tantiallif as laid ; ^ and
therefore a variance in any part, material or essentially descrip-
tive, will be fatal. Thus, if the prescription is for common for
commonable cattle, and the evidence is of common for only a par-
ticular species of commonable cattle;^ or, if the prescription
pleaded is general and absolute, but the proof is of a prescriptive
right coupled with a condition : * or subject to exceptions ; * or if
the right claimed is of common in a certain close, and it appears
that the claimant has released his title in part of the land : ^ in
these, and in the like cases, the plea is not supported.
§ 545. Defeated by intenruptloiL Tlie claim of a prescriptive
right may be defeated by evidence showing that it has been inter-
rupted within the legal period ; but this must be an interruption
of the righty and not simply an interruption of the use or posses-
sion. ^ (a) Thus, if estovers for a house be by prescription, and
the house be pulled down and rebuilt, the right is not lost.^ Nor
will the right be destroyed by a tortious interruption, nor by a dia-
1 Gregory v. Hill, Cro. £1. 581 ; Rickets v. Salwey, 2 B. ft Aid. 860.
« See anU, voL i. §§ 68, 67, 71, 72 ; Paddock v, Forrester, 1 Dowl. N. C. 627 ;
Drewell v. Towler, 8 B. & Ad. 735.
* Bull. N. P. 59. And see Rex v. Hermitage, Garth. 241.
* Gray's Case, 6 Co. 78 ft ; Lovelace v, Reignolds, Cro. El. 563 ; Paddock v, For-
rester, 8 M. & G. 908.
» Griffin v, Blandford, Cowp. 62. • Rotherham v. Green, Cro. EL 598.
^ Co. Lit. 114 ft; 2 Inst. 658, 654 ; Canham v. Fisk, 2 C. & J. 126, per Bayley,
B. ; Carr v. Foster, 8 Ad. k El. N. B. 581.
* 4 Co. 87 ; Cowper v, Andrews, Hob. 89.
(N. 8.) 757 ; Williams v, James, L. R. 2 during the twenty years the drain has
C. P. 577 ; Dare v. Heathcote, 26 L, J. been enlareed, deepened, or varied in its
(n. 8.) Exch. 245. But if the character course and termination, the claim can-
and condition of the dominant estate are not be supported. Cotton v. Pocasset
substentially altered, as in the case of Manuf. Co., 18 Met (Mass.) 429, 488.
a way to carry off wood from wild land, (a) In order to constitute such in termp-
which is afterwards cultivated and built tionof the enjoyment of a right as will pre-
upon, or of a way for agricultural pur- vent the acquisition of a title by prescrip-
poscfi, to a farm which is afterwards turned tion, a mere assertion of exclusive right
into a manufactory or divided into building is not enough ; there must be some act
lots, the right of way cannot be used which will prevent the use of the ease-
for new purposes, required by the altered ment, at least for the time being. So
condition of the property, and imposing a placing a gate in an alley-way, which any
greater burden upon the servient estate, one could use who chose, is not enough.
Atwatcr v. Bodfish, 11 Gray (Mass.), 150 ; Demuth v. Amweg, 90 Pa, St. 181. But
Parks V. Bishop, 120 Mass. 840 ; Wim- bringing a suit for trespass u;ainst the
bledon Commons v. Dixon, Ti. R. 1 Ch. party claiming such a rfeht of way, is a
Div. 862 ; Willes, J., in L. R. 2 C. P. 582. sufficient interruption of the enjoyment to
So if the prescription is for the right to stop the acquisition of an casement Ferrell
empty a drain upon another's liuid, if v. FerreU, 67 Tenn. 829.
continuance by the lease of a terre-tenant.^ It may also be de-
feated by proof of unity of ttile to the easement and to the land to
which it was attached, where both titles are of the same nature
and degree ; (a) or, by evidence of the final destivction of the sub-
ject to which the right was annexed ; ' or, by showing that its
commencement and continuance were by the agreement and con-
tent of the adverse party, or by his ewprest grant, within the legal
period. But proof of an older grant will not defeat the claim, if
it appear to be in eonfirmation of a prior right.* And if the exer-
cise of the right claimed was by consent of one who had only a
temporary interest in the land, as, for example, a tenant for life,
his negligence in not resisting the claim will not be allowed to
prejudice the owner of the inheritance.* The acquiescence of the
owner, however, may be inferred from circumstances ; ' and where
the time has once begim to run against him, the interpositioa of
a particular estate does not stop it.*
§ 546. UMga uid ita effaot. It is hardly necessary to add, that,
though the usage proved may not be sufficiently long to support
the claim of a right by prescription, yet, coupled with other cir-
comstances, it may be sufficient to support the plea of title by a
lost grant, which the jury will be at liberty, and sometimes be
advised, to find accordingly.'
1 2 Inst, ess, 664.'
* Co. Lit 114 & 1 3 CraiM'B Dig. tit zxxi. c 1, §{ SG, 39 (GreenL ed. 1S56) ; 6
Com. DiK- S3, tit Prmcription, O ; Horria v, Edoiagtoa, 3 Taant 21.
* AdiEoKtim V. Clod^ 2 W. Bl. 989; Biddalpk v. Ather, 2 Wila. 23 ; Beat on Pi»-
nimptioiis, S 87.
« Biadburj v. Qriitsell. 3 Saund. 17B d, note bj WilliMnB ; Daniel v. North, 11
Esst, 372 ; Barker t. Richardwn, 1 B. &. Aid. S7» ; Runcorn v. Doe, fi B. & C. 69S ;
Wood «. Ted, B B. & Aid. *S4. See also Gale jc Whateley oo Easements, pp. 106-
117. So [fit wss by mutual mistake. Campbell d. Wibon, 3 Eoat, 2S1.
» Gray t. Bond, 2 B. A, B. 867.
* Cniea v. Lewis, 2 B. A C. 686 ; Best on PraaumptionB, } S9.
' Be&ley e. Sbaw, S East, 208 ; anU, loL i. H 17, IS, and caaea there dted ; Best
on PresomptianB, ^ S6-S0 ; Gale & Wbateley on Easements, pp. 93-66.
<a) Eaaement* which are apparent and *nch unity of title, yet the time dnrins
eontinnoDs, tboush the; lie dnrmuit dnr- which such anity lasts omnot be incladed
ing thv unity of title, rarlTe when the by the party claiming the easemmt by
dominant and aerrient estates are severed, prescription, so as to make out twen^
"-"-^- "--"^ lOPhiU. (P».)1BE. - --■ --'— ■■' " "'-'-- ""
t is not destroyed by .
Hnrlburt v. Firth, 10 PhiU. (Po^) ISE. ^ years' enjoyment. Muuqt v, Btakt, 62
646 LAW OF EYIDENOB. [PABT lY.
REAL ACTIONS.
§ 547. Variety of real remedies. The principal rules of evi-
dence, applicable to actions for the recovery of lands and tene-
ments, have already been considered, under the title of Ejectment ;
this being the form of remedy pursued in most of the United
States. But in several of the States this remedy has been essen-
tially modified, as in South Carolina^ where its fictions are abol-
ished, and an action of ^^ trespass to try titles " is given by
statute; and in Alabama^ where a similar action, or a writ of
ejectment, is given at the election of the party. In other States,
namely, in Georgia^ Jbwa^ Texa%^ California^ and Louisianay the
remedy in this, as in all other civil cases, is by petition or com-
plaint, in which the entire case of the plaintiff is fully and dis-
tinctly stated, and is answered by the defendant, much in the
manner of proceedings in equity. In others, as in Maine^ New
Hampshire^ Connecticut^ and Illinois^ the forms of action known
to the common law are all recognized, but the remedies in most
frequent use are the writ of right, the writ of dower unde nihil
habet, the writ oiformedon^ in the very few cases of entailments
which now occur, and especially a writ properly termed a writ of
entry upon disseisin. This last is now almost the only remedy
resorted to, except for dower, since the limitation of all real
actions and rights of entry, in all the States last mentioned,
except Connecticut^ as well as in most others, is now reduced to
one uniform period of twenty years. In Connecticut the limita-
tion is fifteen years, and in one or two other States the period is
still shorter.^
§ 548. Mesne profits. There is diversity in the laws of the
several States on another point ; namely, the remedy for meene
profits. In some States, this remedy is by an action of trespass
as at common law. In others, as in MaesachuHette^ Maine^ and
Illinois^ and, to a limited extent, in Vermont^ the damages for
mesne profits are assessed by the jury, in the trial of the writ of
1 See 8 Cruise's Dig. (Greenleafs ed. 1856), sub fine, for a Bynopsis of the Statutes
of Limitation of Real Actiona in the aeveral States.
PAET IV.] BEAL ACTIOIfS. 647
entry, the real action being thus changed by statute into a mixed
action. In Pennsylvania^ North Carolina^ South Carolina^ Ten-
nessee^ Alabama^ Wisconsin^ and Missouri^ they are assessed, with
various restrictions, by the jury, in the trial of the writ of eject-
ment. In Ohio and Alahamay where the value of his lasting im-
provements is claimed by the defendant, and the value of the
land, exclusive of the improvements, is also assessed at the request
of the plaintiff, the claim for mesne profits is merged and barred,
by statute, in these proceedings.
§ 549. improTements. The proceedings last mentioned relate
to another feature, peculiar in the law of real remedies of some of
the United States, but unknown in others ; namely, the right of
the occupant of land to recover against the true owner, on evic-
tion by him, the value of the lasting improvements^ popularly
termed betterments^ which, in good faith, he has made upon the
land. This right, to a certain extent, is a familiar doctrine in
courts of equity, and it is freely administered whenever the owner,
after recovery of the land, resorts to a bill in equity against
the late occupant, for an account of the rent and profits ; but
whether those courts would sustain a bill originally brought by
the occupant for the value of his improvements was, until of late,
wholly an open question, but is now, in one class of cases, settled
in favor of the remedy.^ At common law, it is well known that
^ See 2 Kent, Coram, pp. 334-338 ; Bright v. Boyd, 1 Story, 478. In this case^
which waa a bill in equity, the plaintiff had pnrchased the premises in question at a
sale, made by the admiuistrator of the defendant's ancestor, tor payment of his debts ;
but the title being defective, by reason of illegality in the administrator's proceedings,
the defendant, who was the devisee under a foreign will, had recovered the land from
the present plaintiff in an action at law. The present plaintiff, not having had posses-
sion of the land for a sufficient length of time to enable liim to claim the value of his
lasting improvements under the statute of Maine, in the action at law, now filed this
bill for that and some other purposes, in the Circuit Court of the United States. The
principal question was discussed by Mr. Justice Story, in the following terms : "The
other question, as to the right of the purchaser, bona fide and for a valuable considera-
tion, to compensation for permanent improvements made upon tiie estate, which have
greatly enhanced its value, under a title which turns out defective, he having no notice
of the defect, is one upon which, looking to the authorities, I should be inclined to
pause. Upon the general principles of courts of equity, acting ex cequo et bono, I own
that there does not seem to me any just ground to doubt that compensation, under such
circumstances, ought to be allowed to the full amount of the enhanced value, upon the
maxim of the common law, ' Nemo debet locupletari ex alterius incommodo ; ' or as it
is still more exactly expressed in the Digest, * Jure natune asquum est, neminem cum
alterius detrimento et injuria fieri locupletiorem.' ^ I am aware, that the doctrine has
not as yet been carried to such an extent fn our courts of equity. In cases where the
true owner of an estate, after a recovery thereof at law, from a bona fide possessor for
a valuable consideration without notice, seeks an account in equity, as plaintiff, asainst
such posaeeaor, for the rents and profits, it is the constant habit of courts of equity to
> Dig. lib. 50, tit. 17, 1. 206.
operate inequitablj in very many cases, and sometimes to work
gross injustice ; and hence several of tlie States bare been led to
provide remedies at law for tbe protection of honest occupants,
and for securing to tliem tbe fruits of their labor, fairly bestowed
iu tbe permanent improTement of the land.
S ^nft Aamo BnMitflt. Thflpn in o-mnl: r)ivi>nii4:ir atcin in the
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PAST IT.] BBAL ACHONB. 551
§ 551. Charaoter of the ooonpanoy. The character of the occu-
pancffy also, is the subject of some diversity of legislation. In
general, the occupancj must have been in good faith, and without
actual fraud, (a) But, in some States, the right to remuneration
for improvements is given to all occupants who have been in pos-
session, claiming the exclusive title for a certain number of years ;
which of course includes disseisors, as well as those claiming
under them ; while, in other States, it is restricted to persons
claiming under patents, and public grants, and by deeds of con-
veyance ; thus intending to exclude all who knowingly enter by
wrong, and without color of title. In others, again, the improve-
ments, made after notice of the paramount title, are expressly
excluded from the consideration of the jury.
§ 552. Scope of this chapter. It is obvious, that, in a work
like the present, it would be inexpedient to treat of all these
varieties of remedy, or indeed to do anything more than to state
the very few general rules of the common law, which are recog-
nized in the absence of any statutory provisions ; referring the
reader to the statutes and decisions of each particular State for
whatever is peculiar in its own jurisprudence.
§ 553. Plaintiff must show title. It is a general rule in all these
actions, as we have already remarked in respect to ejectments,
that the plaintiff must recover on the strength of his own title,
and not on the weakness of his adversary's ; and that he must
show, that he has the legal interest, and a possessory title, not
barred by the statute of limitations.^ The same rules also apply
1 See supm, § 303. The writ of right beiiu[ now limited to the aame period with
writs of entry, the proof of the night involves, of coarse, the proof of a possessory tiUe.
cases on the subject of aUowance for im- against him (Read v. Howe, 49 Iowa, 65);
Srovements were fully considered and the in California, in good faith and with a
octrine stated in the author's text, § 549, color of title (Field v. Columbet, 4 Sawyer,
note, confirmed. See also Sedgwick k C. C. 523).
Wait on Real Actions. In Mississippi, it is held that a fatal
(a) If the tenant's ignorance of the de- defect in title, shown in the records of
feet in his title was the result of his own the county, is not enough to deprive the
negligence, he cannot claim the value of defendant in ejectment of a right to be
his improyements. Foley v. Kirk, 83 N. paid for the increased value of the land
J. E^. 170. To illustrate the variety of caused by his improvements, although the
decisions on this point it may be noted that rule Ib that he must have held the land nn-
in Kansas it has been held that where one der a colorable title and a bona fide belief
enters into possession under an iUesal con- in it. To deprive him of such right, he
tract of sale, he may stiU claim his im- must have known of the paramount title
provements (Stenhen v. Ballon, 25 Kans. or there must be circumstances from which
618); while in iowa, he must hold the the jury will infer that he did. Cole v.
property in an honest belief that it is his, Johnson, 58 Miss. 94.
and not have actual notice of the claim
here, which have been already mentioned under the title of
ejectment, in regard to the method of proving the plaintiff't
tiiU}
§ 554. Saloin. Writ of right. In a v>rit of r^ht, proof of a
seisin is necesBary, as well aa in other cases ; but a title bj dis-
seisin is sufficient to maintain the action, if the tenant cannot
show a better title ; ' (a) and the devisee of vacant and unoccupied
land has, by operation of law, a sufficient seisin to maintain this
action, without an actual entry .^ Proof of actual perception of
profits is not necessary, the averment of the taking of esplees not
being traversable ; * and the tenant's right of posBesston is no
bar to the demandant's right of recovery in this action.' The
mwe, when joined, puts in issue the whole title, including the
statute of limitations ; and under it the tenant may give in evi-
dence a release from the demandant, after action brought, or any
other matter, either establishing hia own title, or disproving that
of the demandant, except a collateral warranty.^ But, if a deed
from the demandant to a stranger is shown, it may be rebutted
by evidence showing, that, at the time of its execation and deliv-
ery, the grantor was disseised, and that therefore nothing passed
by the deed.^
§ 555. Proof of MiMia. The temn of the p^intiS or demand-
ant, in any real action, is proved prima faoie by evidence of his
actual possession, which is always sufficient against a stnuiger.
Such a possession, with claim of title, is sufficient to enable a
grantor to convey ; and the grantee, entering under such a convey*
ODce, acquires a freehold,^ even though the grantor be a person
non compos mentu; the deed in that case being voidable only, and
not void. But no seisin is conveyed by a naked release.' A seisin
1 Bet mpra, J{ SOS, S07-314, Slfl, SI7, MS, 839.
* Brad9tr««t «. CI*tk, 12 Wend. S02 ; Hnut «. Hunt, 8 Uet. 17S ; Speed v. Bofntd,
S Bibb, S7 ; JaduoD on Real Actions, p. 280.
* W«ri V. Fuller, 16 Pick. 186 ; Cfreen e. Cbelae*, 21 Rdc 71. But if the Und
be not vacant and uiMccapied, the devuee moat proTe hia own ■eisio. Walla tr. Piino^
4 Man. St.
* Oreen v. liter, 8 Cnnch, 210 ; Ward v. Fuller, IS Pick. ISS.
* Jackson on Real Actiona, pp. 2S2, 283.
' Ten Eyck c. Waterbnir, 7 Cowen, Gl ; Poor v. Eobinaon, 10 Ha«a. 181, 184.
1 Kdoi v. Kelloek, 11 Maaa. 200.
* NewbaU e. Wheeler, 7 Maaa. 18S, ISS ; Eiebee v. Rice, & Uaaa. 81S, 853 ; Watd
V. Fnller, IG Pick. 185.
* Waitv.HaiweU,5Pick.217i Eennebeok Prap'n d. Call, 1 Man. 188.
(a) Slater e. Rawaon, 8 Met (Maoa.) US ; Habbatd p. UUia, 9 Coah. (Haas.)
17S i Uouj^ V. Patrick, 26 Vt. 4SG.
PABT IV.] BEAL ACTION 553
may also be proved by the extent of an execution on the land
of a judgment debtor, which gives a seisin to the creditor.^ If
the actual possession is mixed and concurrent, the legal seisin is
in him who has the title ; and a legal seisin also carries with it
the possession, if there is no adverse possession.^ It is sufficient,
prima facie J to prove a seisin at any time anterior to the period in
question, since it will be presumed to continue until the contrary
is shown.^
§ 556. Plea of nnl dlMaisln. The plea of ntd dissei^in^ in a
writ of entry, puts in issue the legal title to the land, or, in other
words, the seisin on which the demandant has counted, and the
lawfulness of the tenant's entry .^ If, therefore, it is pleaded in
bar of an action brought by a trustee against the cestui que trusty
it entitles the demandant to recover.^ Under this issue, the
tenant cannot avail himself of any objection to the form of the
action;® he cannot give non-tenure in evidence;^ (a) nor show
that he is but a tenant at will ; ^ nor give in evidence the title of
a stranger under which he does not claim, nor though he claims
to hold as his servant ;^ nor a title acquired by himself by con-
veyance from a third person since the commencement of the
action. ^^ (6) But under this issue, he may show a conveyance
from the demandant or his ancestor to a stranger, for the purpose
1 Langdon v. Potter, 8 Mass. 216.
> Codman v. Winslow, 10 Mass. 140 ; Kennebec Pirop'TS v. CsU, 1 Mass. 488, 484.
* Kennebec Prop'rs v. Springer, 4 Mass. 416 ; Brimmer v. Long Wharf Prop'rs, 6
Pick. 131, 185 ; Osgood v. Coates, 1 Allen, 77.
* Jackson on R^ Actions, pp. 5, 157 ; Qreen v. Kemp^ 18 Mass. 616, 620 ; Wol-
oott V. Knight, 6 Mass. 418, 419.
« BusseU V, Lewis, 2 Pick. 508, 610.
« Green v. Kemp, 18 Mass. 616, 620.
7 Higbee v. Rice, 5 Mass. 632, per Parsons, G. J.; Boberts v. Whiting, 16 Mass.
186 ; Alden v. Murdock, 18 Mass. 256, 269.
" Ibid.; Pray v. Pierce, 7 Mass. 381.
* Mechanics'^ Bank v. Williams, 17 Pick. 488 ; Stanley v. Ferley, 6 Gieenl. 869 ;
Shapleigh v. Pilsbury, 1 Greenl. 271 ; Heath v. Knapp, 4 Bar. 280.
^Andrews v. Hooper, 13 Mass. 472, 476.
(a) Washington Bank v. Brown, 2 Met for erer as a pussaffs-way. Moinan «,
J Mass.) 298 ; Wheelwright v. Freeman, 18 Moore, 8 Gray (Mass.), 822 ; nor that the
d. 166 ; Bnnidge v. Fogg, 8 Gush. (Maiss.) demandant holds the land snbject to a
184. resulting trust in his (the tenant's) favor,
(d) Gurtis hl Francis, 9 Gnsh. (Mass.) Grane «. Grane, 4 Gray (Mass.), 828. Bat
427 ; Tainter «. Hemmenway, 7 Id. 678. the demandant is not precluded from main-
Nor is it a defence to a writ of entry that taining his writ by rnkving mortgaged the
the tenant is Uie owner of an easement in land pending the action. Woodman v«
the demanded premises, and therefore has Smith, 87 Me. 2L
% light, as against the demandant, to use it
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Depi
er;i extending to the whole traot deBcribed in the couTeyance, if
the deed is registered ; because the extent of the disseisor's claim
may be known bj inspection of the public registry.' (a) But an
entry under a registered deed, and the payment of taxes assessed
upon the land, is not sufficient evidence of a disseisin, unless
there was also a continued and open possession.^ Where an
enclosure of the land by fences is relied upon, it must appear that
the fences were erected with that intent, and not for a different
purpose, such as the enclosui-e and protection of other lands of
the party ; of which the jury are to judge.* So, if the owner of
a parcel of land should, through inadvertency, or ignorance of the
dividing line, include a part of the adjoining tract within his
enclosure, it is no disseisin of the true owner.^ (&}
§ 558. DUMlsin. Rebnttal. The evidence of disseisin may be
rebutted by proof that the disseisor had consented to hold under
' Wamiij V. ChUd. 11 Hua. 223 ; Northrop e. Wright, 7 Hill (N. T.J, 470. i87-
iS9, per Walworth, Ch. The p*rt]r thas in poeseanon may take a dead fivm a hoatile
claimaDt, for the Toera purpose of quietius his title, without thereby abandoning hia
character of an adverse possessor. Ibid. See also Blight v. Bocheatar, 7 Wheat. S8S ;
laxv. VUdgtttj, lOreenL 314.
* Kennebec Prop'rs d. Laboree, 2 Greeal. 276.
* Little V. Hegqaier, 2 Qrvenl. 17S ; Bates v. Norcron, 14 Pick. 324.
1 Dennett e. Crocker, S Oreenl. 339. And see Weaton v. Kewling, G Conn. 267, 2GS.
* Brown V. Gaj, S Greenl. 128 ; 'Galea v. Butler, 3 Humphr. 447.
(a) When one enten on vacant land, roll County, 9G III. 84 ; Feiguson v.
nnder a de«d, his occupancy extends over Feden, 33 Aik. 160 ; Humphries r. Hnff-
the whole extent of the laud described iu man, nifiro. When a tenant in conunon
his deed and he is a disseisor to that conveys the whale estate to a stranger and
extent If, however, the true owner is in the Etranger enten, this operates as dia-
actual possession of part of the land, he is seisin of the other teiuint« in common.
constnictively in possession of the whole, Foulke «. Bond, 41 S. J. L. G27.
excepl so much as the diaseisor aelually ( b] When an error was made in run-
occupies. Hannicatts. Peyton, 103 U. S. ning a boundary tine, and the adjoining
933 ; Thompson v. Burhans, 7t> N. Y. 93; farma were occupied up to this erroneous
Humphries r. Huffman, 38 Ohio St. 385 ; line for more than twenty years, and then
Scott V. DeUny, 87 IlL 116. So when the correct line was run, it was held that
. I, the statote of limitations would
small portion of land around hia nouae, prevent any alteration of it But if the
bat conatmctively occupied the whole, and erroneous line was renrded as only a pro-
later, the owner of the true title entered visional line, to he anerwards teeted, the
npoQ the tract, cLaiming the whole, it was atatute would not apply, and the new line
held that the coostrnctive possession of would be the correct one, — the qnestion
the owner of the bad title ceased on the of the intent of the puties being ol course
entry of the trae owner, and that he for the jury. Hiatt «. Eirkpatrick, 48
could only claim what he actually occu- Iowa, 78 ; Bunce r. Bidwell, 4S Hich. G43.
pied. Semple v. Cook, ED Cal. 36. If an Conira, Honx v. Batteen, 68 Ho. 84. Cf.
enlry is made without color of title and Ptoprieton, kc v. Nashua, Ao. By. Co.,
ander no deed, such entry is confined to 104 Mass. 1.
the aetnal Und occupied. Bristol « Car-
656
LAW OF EVIDENCE.
[part IV.
the disseisee ; or, that he had abandoned his possession.^ Bat a
mere mistake of the party in possession, which, as we have just
seen, will not constitute a disseisin, will not, for the like reason,
amount to proof of an abandonment of his possession.'
§ 559. improiremanta. Where the tenant bj the laws of the
State is allowed a compensation for the lasting improvements made
by him on the land, the evidence is to be directed, not to the
amount of his expenditures, but to the present increased value of
the premises, by reason of the improvements. And these ordi-
narily consist of buildings, wells, valuable trees planted by the
tenant, durable fences, and other permanent fixtures.
1 SmaU V. Proctor, 15
405.
* Boss V. Gtonld, 5 QieenL 904.
EEPLETIN.
§ 560. "Wbm the BoUon Il««. This action lies for the recovery,
in tpecie, of any personal chattel which has been taken and
detained from the owner's possession, together with damages for
the detention ; unless the t^ing and detention can be justified or
excused, or the right of action is suspended or discharged.' (a) It
lies at common law, not only for goods distrained, but for goods
taken and unjustly detained for any other cause whatever; except
that, where goods are taken by process of law, the party against
whom the process issued cannot replevy them ; but, if the goods
of a stranger to the process are taken, he may replevy thorn from
the BherifE.' (6)
> Hsmmond'R Niri Priiu, p. 872.
* Gilbert on Keplerin, p. 141 ; RooWa Que, B Co. BS ; CtUIa on Btwen, p. 197 ;
Clark V. Skdoner, 20 JoliiiB. 470. Tim point i» tre&ted ably and nith deep research in
12 Am. Jnriiit, pp. 104, 117, where the atoTe HUthoritiee with othera are rOTiewed. See
also Allen v. Crary, 10 Wend. 849 ; Searer v. Dincley, 4 GreenL SOS. In New York,
the right of a stnuiger to replevy goods taken by Uie ^eriff is limited to goods not in
the actaal poaaession al the jutument debtor at the time of the taking, loompeon v.
Button, 14 Johns. 84 ; Jndd e. Fox, i Cowea, 259.
(a) Real property ia not ml^ect to ton v. Stewart, SG Va. St. SGG. K an ac-
rapleTin, Biewe e. HcComick, 11 Neb. tion of teplerin is diamisaed for infonnalitj'
261. But if bnildings are not so attached in the replevin bond, and judgment la
to the realty as to be fixtures, or if it has nveu for the defendant for a return, and
bwD agreed by the parties to regard them ^e plaintifT reCuma the property to the
as personalty, tliey may be the saljecta of place whence he first took i^ he may after-
a repUriu suit Dorrv. Dudderar, 88 111. wards maintaiii another action of replevin
107 ; Brearleye. Cox, 4 Zabr. (N. J.) 337; for the same property, a^nst the tame
Chatterton v. Saul, 16 111. 149. As to the defendant, upon the original unlawful
irplerin of growing cropa, the same prin- taking, although the defendant has not
ciple applies : if thej have been treated in taken oat a writ of retam, nor ootnally
such a nay by the parties as to show that received the propertynnder the judgment
they were dealins with them as personal in the fir«t action. Walhrtdge v. Bmiw, 7
property, e. a. il they sell the enipe by Cush, (Mass.) 560; Fisher p. WhooUwy,
nieasar« as if they were eevered from the 2fi Penn. St. 197.
realty, an action of replevin will lie. (6) An action will lie against an oSmt
Oarth V. Caldwell, 72 Mo. S22. Bat cf. who atUches the goods of plaintiff on •
Jones V. Dodge, 61 Ho. 368, where it was writ against a third party. Samuel v.
held that an action for a certain number of Agnew, SO 111. G5S. In Connacticnt, how-
bnshela of com will not lie when the crop ever, it ia held that replevin should be
la standinf; unpthered in the Bold. broaght against the attnching creditor, not
Replevm w]ll lie for the goods of the the officer. McDonald «. Holmes, 46
plainttlf, though they have been mixed Conn. 157. Bnt in the caae* of Richard-
with those of the defendant, if it was done son v. Reed, and SHlton v. Winskw, 4
b^ a third party, and they can be senrated Gray (Mass.), 441,
without injury to the defendant Willdn- whether r " '
i^erin ooold be maintained a
§ 561. PUlntlff most prora title. Where the issue raises the
questioD of title, the plaintiff must prove that &t the time of the
gainit a creditor at whoM niit an attach- two actioni are not; in all eaaea, ooocnr-
ment wat made of goods not the property i«Dt. B7 the eomnKiii taw, replevin catiaot
of hii debtor, either alons or joiutly wiui be maintained where tmpus cannot ; for,
the attaching officer, and it was decided b; that law, an onlawfal taking of goods
PAST IT.] BEPLEYIN. 659
caption he had the general or a special property in the goods
taken, and the right of immediate and exclueive possesiion,^ (a)
But a mere servant^ or a depositary for safe custody, has not such
property as will support this action, his possession being that of
the master or bailor.^ (() It is not always necessary to prove a
taking of the goods, since the action may be maintained against
a bailee, by proof of an unlawful detention^ But when a taking
1 Co. Lit 145 b ; Gordon v. Harper, 7 T. R. 9 ; Qates v. Gates, 15 Haas. 810 ; Cd-
lins V. Evans, 15 Pick. 68 ; Rogers v. Arnold, 12 Wend. 80 ; Wheeler v. Train, 4 Pick.
Idd ; Smith v. Williamson, 1 Har. k J. 147 ; Ingraham v, Martin, 8 ShepL 873.
* Templeman v. Case, 10 Mod. 25 ; Waterman v. Robinson, 5 Mass. 808 ; Ludden
V. Leantt, 9 Mass. 104 ; Warren v. I/cland, Id. 265 ; Dunham v. Wyckoff, 2 Wend.
280 ; Miller v. Adsit, 16 Wend. 885.
s F. N. B. (69) G.; Badger v. Phinney, 15 Mass. 859, 862, per Putnam, J.; Shan-
non V, Shannon, 1 Sch. & Lefr. 827, per Ld. Redesdale ; Baker v, Fales, 16 Mass.
ford V, Peck, 46 Conn. 880 ; Moriarty v. posite pArty. Cassel v. Western Co., 12
Stofferan, 89 J\\. 528 ; Gittings v. Carter, Iowa, 47. The defendant, in controvertinff
49 Iowa, 388. So if the sale was conditional this allegation of title in the plaintiff, wiU
he most show that the sale was avoided by hare judgment if he shows a special prop-
breach of the condition. Ketchum v. erty in the goods which entitles him to
Brennan, 58 Miss. 596. Replevin should the possession, e. g. a lien for repairs,
be brought only against one who has the Halstead v. Cooper, 12 R. I. 500 ; Lytle v.
immediate possession of the goods. Thus, Cnxm, 50 Iowa, 87.
where one seized goods illegifdly and sold The value to be recovered by one who
aud delivered them to another, replevin has only a special or limited property in
will not lie against the former. Moses v. the goods replevied is the value of his
Morris, 20 Kan. 208. The owner of goods interest, not the value of the goods. Pico
cannot maintain an action against an offi- v, Martinez, 55 CaL 148. It is therefore
cer for taking them in the due service of a always competent for the plaintiff, when
writ of replevin a^nst another person the defendant has judgment, to show the
who had them in his possession. Willard value of the defendant's interest in the
v. Kimball, 10 Allen (Mass.), 211. property. McArthur v. Howett, 72 IlL
(a) Lake Shore, kc R.R.Co. v. EUsey, 858.
85 Pa. St. 288 ; Lamb v. Johnson, 10 (5) Nor can an agent who is employed
Cush. (Mass.) 126 ; Esson v. Tarbell, 9 Id. by his principal to receive, pay for, and
407 ; Kimball v, Thompson, 4 Id. 441 ; forward to him certain gooas contracted
Lockwood V, Perry, 9 Met. ^ass.) 440 ; for by the principal, part of which have
Kidd V. Belden, 19 Bark (N. Y.) 266 ; been delivered to the agent, maintain re-
RockweU V, Saunders, Id. 478 ; Quinn v, plevin for the balance not delivered,
Kimball, 28 Penn. St 198; Harlan v, which the contractor had promised, but
Harlan, 15 Id. 507. A plaintiff in replevin failed to deliver, and which tiie agent had
must maintain his case on the strength of paid for. Dixon «. Hancock, 4 Cush.
his own title; anc^ if he fails to show (Mass.) 96. See also Updike v. Henry,
title in himself, it is immaterial whether 14 111. 878. An auctioneer, who, as agent
the defendant has or has not any title, of the owner, sells and delivers goods on
Johnson v. Neale, 6 Allen (Mass.), 227. a condition which is not complied wi^,
See also post, § 687, n.; Schuleuberg v, may maintain replevin therefor. Tyler
Harriman, 21 Wall. (U. S.) 44. The v. Freeman, 8 Cush. (Mass.) 261. Tlie
plaintiff must prove an exclusive right to holder of a carrier's receipt for goods, not
possession (Mathias v. Sellers, 86 Pa. St negotiable, delivered to him by the owner
486) ; and the burden of proof on the ones- as a security for advances, with intent to
tion of title is on him (Lamotte v. Wis- transfer the property, may maintain re-
ner, 51 Md. 543 ; McFarlan v. McLellan, plevin against an officer who attaches
8 IlL App. 295). An allegjation of right of them as the proper^ of the general
possession, is proved by evidence of owner- owner. Nat. Bk. of (ireen Bay v. Dear-
ship of the property, where no special bom, 115 Mass. 219 ; Bk. of Rochester v.
right of poaeeulon is shown by the op* Jones, 4 (^omst (N. Y.) 497.
660 LAW OF STIDENCE. [PlfiT IT.
is to be Bhown, it most be an (ictml taking. Thus, it has been
held that merely entering at the custom-house, by the agent of
the owners, goods already in the public stores, and paying the
duties thereon, without any actual removal, but taking a permit
for their delivery on payment of storage, is not such a taking as
will support an action of replevin against the agent.^ (a) So this
action cannot be maintained against a sheriff, who has made an
attachment of the plaintiff's goods, but has left them in the
custody of the plaintiff as his bailee, without any actual taking
and removal of them.* (J)
§ 562. General iaeoe. The general issue in this action is nan
cepit^ which admits the plaintiff's title, and under which it is
incumbent on the plaintiff to prove that the defendant had the
goods in the place mentioned in the declaration ; for, the action
being local, the place is material and traversable.^ (c) Proof of
the original taking in that place is not necessary, for the wrongful
147 ; lUBley «. Stabbs, 5 Mass. 284 ; Seayer v, Dingley, 4 Greenl. 806 ; Galvm «.
Bacon, 2 Fairf. 28 ; Osgood v. Oreen^ 10 Foster (N. H.) 210. Bat see Meany «.
Head, 1 Mason, 819» 822, that repleyin does not lie without a tortious taking. See
also Reeves v. Morris, 1 Anustr. Macartn. & Ogle, 159; Harwood v, Smethuist,
5 Dutch. (N. J.) 196.
1 Whitewell v. Wells, 24 Hck. 25. * Lathrop v. Cook, 2 ShepI 414.
' Weston 0. Carter, 1 Sid. 10 ; 1 Saund. 847, n. (1) by Williams ; McEinley v.
McGregor, 8 Whart 869 ; Dover v, Rawlings, 2 M. & Rob. 544.
(a) If evidence is offered that the offi- Toee, 7 Fost. (N. H.) 212. Nor can a
cer went to the plaintiff and read a writ purchaser maintain replevin for goods
of attachment against a third person, and purchased that formed a portion of, and
at the same time declared that he attached were intermingled with, a larger quantity
certain property of the plaintiff, and went of the same kind of goods owned by the
and inspected the property, but did not vendor, until thev are specifically set
take it in possession, this proof will not « apart or designated in some way as his.
support a writ of replevin. libbv v. Sicudder v. Worster, 11 Cush. (Mass.)
Murray, 51 Wis. 871. So, too, an inef- 578 ; Dillingham v. Smith, 80 Me.
fectual levy of an execution on property, 870 ; Winslow v. Leonard, 24 Penn. St.
whereby it is left in the lawful possession 14 ; Jackson v. Hale, 14 How. (U. 8.)
of the owner, will not support replevin 525. See Neff v. Thompson, 8 Barbu
by the owner. Hickey ». Hinsdale, 12 (N. Y.) 218. Replevin does not lie in a
Mich. 99. a State court against a marshal of the
(6) Nor can it be maintained against a United States for property attached^ by
pound-keeper who receives and impounds him on mesne process from a United
beasts for going at large, and refuses to States court against a third person.
deliver them to the owner, on demand, Freeman in error «. Howe, 24 How, (U.
unless his fees and those of the field- S.) 450. Reversing decision in Howe v.
driver are paid. Folger v. Hinckley, 5 Freeman, 14 Gray (Mass.), 566.
Cush. (Mass.) 268 ; Hadkin v. Powell, (c) The action may bo brought either
Cowp. 476. And a tender of such fees in tie county where the defendant resides
and costs, made after the writ of replevin or where the property is situated, but not
has been unconditionally put into the properly in any other. Hibbs «. Dun-
hands of the officer for service, will not be nam, 54 Iowa, 559 ; Ellison v. Lewis, 67
sufficient to sustain the action. Bills v. Miss. 588.
taking is continued in every pl&ce in which the goods are attei^
irards detained.' But under tins issue the defendant cannot have
a return of the goods, if found for him ; it merely protects him
from damages, (a) K he would defend on the ground tliat he
never hod the goods in the place mentioned, he should plead
eepit in alio loco, which ie a good plea in bar of the action.'
This plea does not admit the taking as laid in the declaration ;
and therefore the plaintiff must prove such taking, or fail to
recover.'
§ 563. Pi«a of proporty. If the defendant, besides the plea of
non eepity also pleads property, either in himself or a stranger,
and traverses the ri^t of the plaintiff, which he may do with
an avowry of the taking, the material inquiry will be as to the
property of the plaintiff, which the plaintiff must be prepared to
prove, the onut proband* of this issue being on him ; for if the
former issue is found for him, but the latter is either not found
at all or is found for the defendant, the plaintiff cannot have
judgment.* (&) And where the issue is on the plaintiffs property,
his right to the possession, at the time of taking, is also involved
in the issue.* (c)
§ 564. Avowiy. An avowry or cognizance of the taking is
ordinarily necessary, whenever the defendant would obtain judg-
" Wilton V. Kenoo, 2 Will. 854 ; Ball. N. P. 64 ; 1 S«und. 847 a, nolo by Wil-
lianu ; Johiiaoii e. Wallyer, 1 Stra. 607 ; Abercrombi« v. Parkhnnt, 2 B. tt P. 480.
* Ibid. ; Bullythorpe c. Tumor, Wills*, 176 ; Anon., 2 Mod. 199 ■ WUiiama' «
Vetch, 6 Wend. 2S0i Froswr v. Woodw&rd, 21 Wend. 206.
• Peopla ». niamn C. P., 2 Wond. 844.
* 6 Com. Dig. ?B7, tit. Pleader. K, 12 ; Prefwnve e. Ssnndara. 1 Stlk. 5 ; BtmoB
», Btckman, B Wand. 667 ; Bprague d. KnTOUnd, 12 Wend. 161 ; Bosen v. Arnold,
Id. 30 ; Bojnton «. Pags, IS Wpnd. 425 ; Clemson v. Davidson, G Binn. 899 ; Soibert
V. McHpnry. 9 Wstta, 301 ; Hunt v. Chmbei^ 6 Penn. Law Jouro. 82 ; 1 N. J. 620 j
ants, t 661, n.
• Bednuui r. Hendricki, 1 S»ndf. S. C. 82 ; Meritt v. Lyon, 8 B»rb, 8. C. 110.
(«> So whew the plna are nm eepU or ipecial property in the defendant en.
ud nmdetiiut, a jndpnent for ratuni of UHing him to the poueiaion of the goodi
the soods is bad. Uittton v. Kanisch, <Mean/«, J 661, n. a,.
S lli; App. 102. So If an action of re. (e) An officer who holds the gooda
etvin is defeated solely by moon of it» onder a valid legal procem has such •
ing prematurely comTDonced, jndgment property in thorn as will protect him in a
for a return of the goods replevied will repleTtn anit. This is tme not only of
not be ordered. Martin v. Bayley, 1 thou offieera who execute the ptDcesses
AUbq (Mass.), 381. of the oonrts of the State, e. g., sherif&
(6) Any evidence vrblch tends to dis- and ronatablea, bnt of marahtls, and
prove the property of the plaintitf in the others eiecutinft the process of the Fed-
goods, «, g; proof of title in a atranner, is end courts. Hiinnebnt v "— — '- -'^ -
ODen to the defendant on anch a plea 8 IlL App. 853.
(Schttlenberg v. HairimBn, 21 Wall 44),
meDt for a return of tlie goods, therel:^ making himself an actor
in the suit, and obliging himself to make out a good title in all
respects. Where the avovry or cognizance is for rent, it admits
that the property in the goods was in the plaintifF; but the tenns
of the contract or tenancy must be precisely stated, and proved
as laid, or the variance vill be fatal.' But it is not necessarr to
proTi
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PART IV.] REPLEVIN. 668
recoTer, though he should fail to prove that all is due which is
alleged.^ Under this issue, the plaintiff nay prove that he has
paid the rent in arrear to one who had a superior title, such as a
prior mortgagee of the lessor,^ or a prior grantee of an annuity or
rent charge.'
§ 667. Distraint as bailiff. The allegation in the cognizance,
that the conusor made the distress as bailiff to another, is travers-
able ; but it may be proved by evidence of a subsequent assent
to the distress, by the person in whose behalf it was made.^ If
it were made by one of several parceners, joint-tenants, or tenants
in common, in behalf of all, no other evidence will be necessary,
the title itself giving an authority in law to each one to dis-
train for all.* If the conusor justifies as bailiff of an executor,
for rent due to the testator, the plea will be supported by proof of
a distress in the name of the testator, and by his previous direc-
tion, but made after his death, and afterwards assented to by the
executor.*
§ 668. Avowry for damage feasant, Where the avowry is for
damage fea%ant^ with a plea of title in the defendant to the locu9
in quo^ which is traversed, the evidence will be the same as under
the like plea of title in an action of trespass quare clausum f regit.
And in general, whatever right is pleaded, the plea must be main-
tained by proof of as large a right as is alleged. If a larger right
be proved, it will not vitiate ; but proof of a more limited right
will not suffice.^ And if an absolute right is pleaded, and the
right proved is coupled with a condition or limitation, the plea is
not supported; but evidence of an additional right, founded on
another and subsequent consideration, will not defeat the plea.*
If issue is taken on the averment that the cattle distrained were
1 HiU V. Wriffht, 2 Esp. 669 ; Cobb v. Bryan, 8 B. & P. 848 ; Bloomer v, Jnhel,
8 Wend. 440 ; Uarrison v. Barnby, 5 T. R. 248 ; Waltman v. Allison, 10 Barr, 464.
* Johnson v, Jones, 9 Ad. k El. 809 ; Pope v. Biggs, 9 B. & C. 245.
* Taylor v. Zamira, 6 Taunt 524. And see Stobbs v. Parsons, 8 B. & Aid. 516 ;
Carter v. Carter, 5 Bing. 406 ; Dyer v, Bowley, 2 Bing. 94 ; Alchome v. Gomme,
2 Bing. 54 ; Sapeford v. Fletcher, 4 T. R. 611.
« Lamb v. Mills, 4 Mod. 378 ; Trevilian v. Pine, 11 Mod. 112 ; 1 Sannd. 847 e,
note (4), by WiUiams.
* Leigh «. Shepherd, 2 R & E 465.
* Whitehead v. Taylor, 10 Ad. & El. 210.
T Bull N. P. 59, 60, tupra, tit. Prescription, § 544 ; Johnson v. Thorooghffoodt
Hob. 64 ; Bnshwood v. Pond, Cro. £1. 722 ; Bailifis of Tewksbury «. Briolniell, 1
Tannt 142.
* Bnll. N. P. 59 ; Gj^s Case, 5 Co. 79 ; 8. o. GrOb EL 405 ; Lorelace «. Reynolds,
Cro. £1. 546 ; Brook v. Willett, 2 H. BL 224.
levant and conchont, and the evidence is that only part of them
were bo, the averment is not proved.^
§ 569. T«nd«r. A tender, whether of rent or of amends for
damage by cattle, if made before the taking, renders the distress
unlawful ; and if made after the distress, but before impounding,
it renders the detention unlawful.^ But it must appear that the
tender, if not made to the party himself, was made to a person
entitl
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SEDUCTION.
§ 571. PlalntUTs oaM. In aa action for seduction,^ (o) the
plaintiff must be prepared to prove, (1) that the person seduced
vae his servant ; and (2} the fact of sedaction : hoth these points
being put in issue by the plea of not guilty.' (i)
' For the evidence of an action for eriminai annemiiim with tbi plaintiff*! vife,
Me mpra, tit- Adulterr, and tit. Haniage.
* HollowBj tP. Abdl, 7 C. 4 P. 628. It hu been disputed, whether this action
■hunlil be in the rorm of tTea|Hag or cB«e. ; but it la now Mttled, that it may well he
brought ia either rnrm. Chamberlaiii D. Hazlewood, 6 M. & W. GIS ; S Jur. 1079 ;
«. c. 7 Dowl. P. C. 810 ; Parker v. Bailejr, 1 D. & R 216. See lapra, tit Caae, J 2S6 ;
Horan «. Ihi«««, i Cowen, 112 ; Parker v. Elliott, 6 Munf. GST.
The form of the decUration in cose is aa foUowB : " For that the eaid (defendant)
on and on divera days and timea after that day, and before the commenRemeDt of
thia luit, debauched and carnally knew one £. F., (he then being the j^daugbter and]
Bervaat of the plaintiff ; whereby tbe said E. F. became sick and pregnant with child,
and BO continued for a long time, to wit, until the day of — —when the was delir-
ered of the child of which she waa so jiregnant ; by means of all which the said E. F.
was unable to perform the business of tbe plsintifr, being her [father and] master
■Toresaid, from the day Erst aforesaid hitherto, and the plaintilf haa wholly lost her
service and been put to great olpensea for her delivery, cure, and nnraing. To the
damage," ic
The form in treapasa is thus : "For that tbe aaid (defendant) on and on divers
days and times after that day and before the commencement of this suit, with force
and arms BHsaul ted one F.. F,, ehe then being the (itauahter and) servant of tbe plain-
tilf, and then debauchut and carnally knew tbe said E. F., whereby [here proceed as
in the preceding form, to the end, concluding thus] and other wronxs tn tbe plaintiff
the Kaid {defendant), then and there did, against the peace. To tbe damage," &c.
Where the Injury was done in the house of the fatber or master, the remedy may b«
pqraaed io trespass quart clautum fregit, the seduction being laid in aggravation of
the wrong. 1 Chitty on Plead. ISS.
(a) The atatutes of the various States seduction under a promise of marriage, aM
on this and kindred sutrjects are very made crimes and prosecuted by tbe State.
namerooa, and are intended to give more State v. Dunn, [>8 Iowa, 74S ; N. Y.
emple redresa to tbe Injured pa>^ ot to Iaws 1840, c. Ill ; Royce v. People, G5
pnniah the wrons as « crime. Thns in N. Y. 044 ; Wood v. State, 48 Oa. 162.
some States the allegation of loss of service, (6) "The defendant, by limiting hia
which is a material allegation in the com- pleading to tbe general iaeue, will, aa it
mon-law action on the case, is made nn- seems, be held to admit dut tbe relation-
necessary hy statute. Va. Code, c. 145, ship of master and servant subsisted aa
Si. Michigan Comp. L. 1871, § 617G. alleeed in the declaration (Torrence v.
Kentucky Ber. Stata. c 1, ( 2. Again, Gibbens, 6 Q. B. 297 ; b. c. 1 D. 4 Mer.
in Indiana, an action for leduction is 226, overruling Holloway v. Abell, 7 C.
K' ren by statute to the aeduced woman k P. G28) ; but still the plaintiff wiU be
rself. In such an action of course the bound under that plea to establi^ not
■TCRnents of the relation of master and only the fact of seduction, hut the €m»c-
Ml-vant and of loss of service are imma- juerd Ion of service, without proof of
terial. 2 Ind. Rev. St. (1876) p. 43 ; which the action cannot be mamtained
Smith v. Yaryan, SB Ind. H5 ; Buckles (Kager v. Grimwood, 1 Ex. 61 ; Davies v.
V. Ellen, 72 Ind. 220. Williams, 10 Q. B. 726." Taylor's Evi-
In many of the Stabs, lednction, and dsncc^ 2SG).
§ 572. wiMt MTTlM doe pUlntuE (1.) Though the relation oi
Bervant to the plaintiff is indiepeuBable to the maiotonaiice of this
action, yet it ia not necessary to prove an express contract of
service ; ' (a) nor is the amount or value of the service actually
performed of any importance, if the plaintiff had the right to com-
mand the immediate service or personal attendance, of t^e party
at the time of the seduction.* If this right existed, it is not
matoiial whether the servant was seduced while at home, or
abroad on a visit. (6) Nor is it material whether the servant was
a minor or of full age ; nor whether the relation of master and
servant still continues, it being sufficient if it existed when the
act of seduction was committed.' (c) Neither does the concur-
rent existence of any other relation, such as that of parent or
other relative, affect the action ; for such relation will not aid to
support the action, if the party seduced was actually emancipated
and free from the control of the plaintiff when the injury wa«
committed.*
§ 578. Same sableot It has accordingly been held, that this
part of the issue is maintained by evidence that the party seduced
was the adopted child of the plaintiff," or his niece," or his
> Bennett n. Alcott, 2 T. R. 166. Minader v. Tenu, 1 H. & UaUc 323.
* Though the father turned the daughter oat of doora, apon diacorery of her pi^
nancy, he mny atUI mnintain this action. S Steph. K. F. 2363.
• 2 Selw. N. P. IIOS, 1104 (lOth ed.) ; S Steph. B. P. 2361-28&S ; Boberta v. Con-
nelly, 11 Ala. 235.
* Irwin v. Deannan, 11 Eaat, 23. Or itep-daughter, Bartl^ v. Richtmyer, 2 Barb,
;. 182 ; 8. o. 4 Comat 38. And Me IngerMU v. Jonea, 5 Bub. S. C. 6B1 ; Eellij
(a) It ia Buffident if the relation of (A) Blanchard v. IMey, 120 Mu.
naBter and aerrant exist constructiTely, 487 ; Blagge v. Illaley, 127 Id. 191.
MulvehaU v. Milward, 1 Kernan (N. Y.), (c> K^rick v. MeCrary, 11 Oa. «03.
313. To constitute the constnictire reU- If a step-daughter leaya the boose of ber
tiou, the maater most have the right to itep-bther, and is aeduced vhUe in the
coDtmand the aervice of the serrant. The aerrice of a third penon, the step-father
tvlation eiistfl mnBtructiTely between a cannot maintain hu action, although be-
father and his iufant daughter, although fore the birth of the child she returns to
the latter is in the service of another, pro- bis bouse, engaffea in his service, and it
vided the fotmsT has a right to reclaim there nursed and attended during ber ant-
her serrices at any time. Funnan v. flnement. Bartley v. Richtmyer, 1 Comtt
Van Sise, 66 H. Y. 1S6 ; Mohiy n. Hoff- 88. In Upa v. Eisenler, 32 N. Y, 229, it
man, 86 Pa. St. S68 j amira. White v, was held that where a daughter twentj-
Murtland, 71 111. 252. But a atep-btber nine yean of age reaided with ber father,
is not as snob entitled to the •erricea of and l:^ a tacit nnderstanding continued to
his fltep-daughter, and is not liable for her peifona oertun dCHoeetic aervicea, and n)
suppari, Bartley v. Richtmyer, 1 N. Y. supported by him with food and clothinft
38. See this case also for a consideration the relation of master and servant existeO.
of the action of seduction generally. Hie See the diesenting opinion of Campbell, J.,
cases relating thereto being fully cited Id. 729. And see Davidson *. Abbot, 61
and commented oo. Vt CTO ; West v. Strouae, 38 S. J. L. 181
daughter,' as well as where she was merely his hired serTant,^ it
also appearing that she was actually subject to liia commands,
and was bound to perform such offices of service or of kindness
and duty as were usually perfonned by persona in that relation,
and in similar rank in society, (a) So it is held sufficient, if any
acts of service or of duty are performed, though the party were a
married woman, separated from her husband, and had returned
to live with the plaintiff, who is her father.* (J) The smallest
degree of service will suffice, such as presidii^; at the tea-table,*
even though she slept in another house, or was absent on a visit,
if she was still under the plaintiffs control.* But if she was not
in his service in any of these modes, the father cannot maintain
this action, though he received part of her wa^^, and she was
under age.' (c) If the defendant himself hired her as his own
servant, with the fraudulent intent to obtain possession of her
person and seduce her, this is no bar to the father's action, though
she was of full age, provided she was in her father's family at the
■ 2 8«lw. N. P. 1103 ; Bennett v. Alcott, 2 T. E. 166.
* Forea v. Wilran, 1 Peike, GS.
* Harper e. Luffkin, 7 B. & C. $87. Thii action hu tlM been held to lie in Ikvor
of & widowed mother, livioK with her daughter who trw seduced ; the daaffhter heing
of full age sad owning the oouaehold establiBhment, but performing neta in wiriee to
the mother and faroilj. Viltepigue e. Shular, 2 SCmbh. 462.
* Cdrr V. CUrke, 3 Chittv, aBl, per Abbott, C. J. ; Blaymiw e. Heyley, 6 M. * W.
6S ; HenToll v. Tbompeon, 2 C. & P. S04 ; Euiaht v. Wilcox, 16 Barb. 279.
* Mann v. Burett, 6 Eep. 32 ; Holloway v. Abell, S C. ft P. G28. And aee Anon.,
I Smith, 833 ; Huria v. Butler, 2 M. & W. S43 ; Uartin v. Papie, 9 Johne. S87 ;
Horan v. Dawea, 1 Cowen, 112 ; Nickeraon «. Stirker, 10 Jobna. 115 ; Homketh e.
Borr, S B. ft R. 3S. Bat aee Boyd t. Bird, 8 Blackf. 118. See Qriffitha r. Teetgen, 28
Eng. U» A Eq. 371.
* Carr v. Clarke, 2 Chittv, 280 ; Portlathiraite v. Paikei, S Buit. IST3 ; OrinneU v.
Wella, 7 Han. t Or. 10S3.
(a) aem v. Holmea, 33 Oratt. (Ta.) 722. livelihood, it wa« held the parent could
(i) But aee Hanly v. Field, 7 C. B. not maintain an action Tor the daoghter'a
K. 8. 96, a. c. 6 Jnr. x. a. 300, where it ii aeduction. ThDm{«oD v. Rom, 6 oTk U.
held that where ■ daughter ranted a house, 162. Whera, however, the daughter of
and carried on the business of a milliner the plaintiff was employed by the defend-
at the time of her seduction, the circum- ant as an outdoor tann-servaut a part of
stances of her mother and the younger the year, being absent during the nsoal
branches of the family leddiug with her, working-hours from her father's bouse,
and receiving part of their support bxim where shepaasedthereiiiaioderofhgrtime,
the pn-cseda of her bueitiess (the father sleeping there, and assisting in the houas-
lodging elsewhere), did not constitute such hold dotiea, it was held that these facta
serrices as to entitle the father to maintaia constituted a sufficient service to the fitbef
the action. Where the daughter did not to support an action at bis eoit for tbe
reside in the house with her parent, but aeduction. Rist b. Faux, 1 B. & 8. W9 ;
being a domestic servant, living in the 10 Jur. n. b. 202:
house of ber master, though with the pei^ {e) Where the marriage of the parents
_i_i TV '---lieTjad been in tbe of the child is void, tie actual rehttion of
668 LAW OP EVIDENCE. [PABT IT.
time of the hiring ; for in such case, the hiring being fraudulent,
the relation of master and servant was never contracted between
them.^
§ 574. Same aabjaot. On the other hand, it has been decided
that where the daughter was in the domestic service of another
person at the time of the injury, though with the intent to return
to her father's house as soon as she should quit that service, un-
less she should go into another, the action cannot be maintained.^
Much less can it be maintained where she had no such intention
of returning.^
§ 575. Same aubjact. Though the slightest proof of the relation
of master and servant will suffice, yet, as the action is founded
upon that relation, it must be shown to have existed at the time.^
Therefore it has been held that where the seduction took place
in the lifetime of the father, the action could not be maintained
by the mother, after his decease, though the expenses of the
daughter's confinement fell upon the mother.* (a) Nor can
the mother maintain the action in any case, without proof of
service.*
§ 576. Sama aubjact Where the daughter was a minor, and
under the father's control, proof of this alone will suffice to main-
tain this part of the issue, service in that case being presumed ;
but where she was of full age, the plaintiff ought to be provided
with some additional evidence of service in fact, though, as has
already been stated, slight evidence will suffice.^
^ Speight V, OliYiera, 2 Stark. 498.
* Blaymire v, Hayley, 6 M. & W. 65. And see Postlethwaite v. Parkes, 3 Boir.
1878 ; Davies v. WilUamfi, 10 Ad. & £1. N. s. 725 ; Dain v. Wicoff, 8 Selden (N. Y.),
191.
s Dean v. Peel, 5 East, 45 ; Anon., 1 Smith, 888.
^ The allegations of her relation of servant, and the per quod servUium amisit are
material ; and the omission of them wiU not be supplied by an averment that the plain-
tiff, her father, being of sufficient ability, was compelled to support her. Giinnell v.
Wells, 7 Man. & Gr. 1084. '
^ Locan v, Murray, 6 S. & R. 175 ; George v. Van Horn, 9 Barb. 628. Bat see
Coon v. Moifet, 2 Peuningt. 588.
s Satterthwaite v. Dewhurst, 4 Doug. 815 ; 5 East, 47, n.
^ ISickleson v. Stryker, 10 Johns. 115 ; Martin v. Payne, 9 Johns. 887 ; Horaketh
(a) Where both parents are aliye the Van Sise, 56 N. T. 435. If the mother
&ther is the proper person to brinff the in such a case remarries, she is stUl the
suit, as he is the only one who is entitkd to person to institute the suit. Kennedy v.
the services of the daughter generally; but Shea, 110 Mass. 147 ; Lampman v. Ham-
if he is dead, or the custody of the dangh- mood, 8 N. Y. Supreme Ct. 298 ; Hedges
ter has been given to the mother by a de- v. Tagg^, L. R. 7 Ex. 288. After the cause
cree of court, she should bring the suit, of action has once accrued to the father, if
Davidson v. Abbott, 52 Vt. 570 ; Hobson he dies, the periix>nal representative may
V. FuUerton, 4 IlL App. 282 ; Fuiman v, sue. Koice v. Brown, 89 N. J. L. 509.
PABT ly.] SEDUCTION. 669
677. Proof of sedaotlon. (2.) The fact of 9eduetion may be
proved by the testimony of the person herself ; but it is not ne-
cessary to produce her, though the withholding of her is open to
observation.^ Her general character for chastity is considered to
be involved in the issue, and may therefore be impeached by the
defendant by general evidence, and supported by the plaintiff in
the like manner ; but she cannot be asked, whether she had not
been previously criminal with other men.* (a) But though the
defendant cannot interrogate the party herself as to acts of
unchastity with others, yet he may call those other persons to
testify their own criminal intercourse with her, and the time and
place ; but notwithstanding this evidence, if the jury are satisfied,
from the whole evidence, that the defendant was the father of the
child, their verdict must be for the plaintiff, though perhaps for
diminished damages.^ (i)
§ 577 a. Mere oriminal connaotion Inanfflcient. The mere fact
that the defendant has had a criminal connection with the plain-
tiff's servant is not alone sufficient to maintain this action, with-
out proof of some injury thence resulting to the plaintiff; for
otherwise, it is in principle nothing but the case of an assault
V. Barr, 8 S. & R. 36 ; Logan v. Marray, 6 S. & R. 177 ; Yanhorn v. Freeman, 1 Halst
822 ; Mercer v. Walmslev, 5 Harr. & Johns. 27 ; Eendiick v. McCrary, 11 Ga. 608 ;
Kelley v. Donnelly, 5 Md. 211.
^ Kevill V. Satterfit, Holt's Cas. 451 ; Cock v. Wortham, 2 Stra. 1054.
' Bamfield v. Massey, 1 Campb. 460 ; Dodd v, Norris, 3 Campb. 519 ; Bate v. Hill,
1 G. & P. 109 ; ajite, vol. i §§ 54, 458. And see Mafrath v. Browne, 1 Armstr. k
Macartn. 136 ; Carpenter v, Wahl, 11 Ad. & EL 803. Where she had been abandoned
b^ her seducer, ana in consecjnence of that abandonment became ill, whereby her ser-
▼ices were lost to the father, it has been contended, that, for such a loss of service, an
action might be maintained ; but the particular case was disposed of on another point.
Boyle V. Brandon, 13 M. & W. 788.
» Verry v. Watkina, 7 C. & P. 808.
(a) But the plaintiff cannot give evi- k P. 808, per Alderson, B.; Andrews v.
dence of the general good character of the Askey, 8 C. & P. 7, per Tindal, C. J.;
person seduced in the absence of any im- Taylor, £y. 1164 ; 14 Am. Rep. 309. But
peaching testimony by the defence. Haynes character and conduct after the seduction
«. Sinclair, 23 Vt. 108. " In modem times, are inadmissible. McKem v. Calvert, 59
it has frei^uently been held, that in actions Mo. 243. Intimacy with the defendant
for seduction, and on indictments for rape, before marriage, if the marriage took place
the principal female witness misht be cross- on the recommendation of ike defenoant,
examined, with the view of showing that is not admissible in mitigation of damaaea.
she had previously been guilty of mcon- Stumm v. Hummel, 39 Iowa, 478. See
tinence with the defendant, or even with also ante, voL i, § 85, n.
other men, or with some particular person (b) But evidence of particular acts of
named ; and, when she has denied the immorali^ or indecorum, as well as proof
facts imputed, witnesses have been called of general bad character, must be confined
for the purposes of contradiction." R. v. to what occurred, ptrvunuly to the defend-
Bobins, 2 H. & Rob. 512, per Coleridge ant's misconduct Taylor, £v. 827 ; Elsam
and Erakine, JJ.; Verry v. Watkina, 7 C. v. Fawoett, 2 Esp. 562.
670 LAW OF EYIDBNCE. [PABT IT.
upon the Bervant without damage to the master ; and if such
connection were held to be a loss of service, it is difficulty as a
learned judge has remarked, to see where it would stop. There-
fore, where a parent brought an action for the seduction of his
daughter, then in his service, and it was proved that the defend-
ant had had connection with her, and also that she had been
delivered of a child, but the jury found that the child was not the
defendant's, it was held that the jury were rightly instructed to
return a verdict for the defendant, there being no loss of service
from his act.^ (a)
§ 578. Dafenoe. In the defence of this action, under the geur
eral issue, the defendant may not only show that the person se-
duced was not the servant of the plaintiff,^ but he may also prove,
in bar of the action, that the plaintiff was guilty of gross mis-
conduct, in permitting the defendant to visit his daughter as a
suitor, after he knew that he was a married man, and had received
a caution against admitting him into his family, or in other wise
conniving at her criminal intercourse with him.'
§ 579. Damages. The damages in this action are given not
only for the loss of service, but also for all that the plaintiff can
feel from the nature of the injury. Therefore, if the plaintiff is
the parent of the seduced, the jury may consider his loss of the
comfort as well as the service of the daughter, in whose virtue he
can feel no consolation, and his anxiety as the parent of other
children, whose morals may be corrupted by her example.^ (()
^ Eager v, Grimwood, S4 Legal Oba. 860 ; s. a 1 Exch. 61.
« Holloway v. AbeU, 7 C. & P. 628.
s Beddie v. Scoolt, 1 Peake, 240 ; Akerly v. Haines, 2 Gaines, 292 ; Seager v.
Slingerland, Id. 219.
* Bedfoid V. McKowl, 8 Esp. 119 ; Dain v, Wycoflf, 7 N. Y. 191 ; Lipe v, Eisenlerd,
82 N. Y. 229. And see Tullidge v. Wade, 8 Wils. 18 ; Andrews v. Askey, 8 C. & P.
7 ; Irwin v. Dearman, 11 East, 24 ; Grinnell v. WeUs, 8 Scott, N. B. 741 ; 7 M. &
Gr. 1033.
(a) Bartley v, Richtmyer, 4 N. Y. 38. v. SLidney, 104 Mass. 222. It is no de-
The loss of service must be direct and im- fence to an action for seduction, that the
mediate. Damages resulting as a remote offence was rape, and not seduction. This
consequence of the seduction, as sickness action wiU lie, although treepaas vi tt armit
through fear of exposure, is not sufficient, might also he sustained. Funnan «. Ap-
Knight «. Wilcox, 14 N. Y. 418. But plegate, 8 Zabr. (N. J.) 28.
this action will lie against a defendant for (6) Knight o. Wilcox, 18 Barb. (N. Y.)
debauching plaintifrs servant, and com- 212. But ne cannot recover the probable
municating to her a venereal disease, by expense of supporting the illegitimate
which she was made sick and unable to child of which his daughter had been de-
labor. White «. Nellis, 81 N. Y. 405. liveied. Haynes «. Sinclair, 23 Yt. 10&
So it will lie for any impairment of health He may show the character of his own
destroying capacity to labor. Abrahams family and the peconiaty circumstanoes of
PART IV.]
BEDUCTI0I7.
The plaintiff may give evidence of the terms on which the def i
ant visited his house, and that he was paying his addresses u
the promise or with intentions of marriage ; ^ and the defend
on the other hand, may give evidence not only of the I<
character and conduct of the daughter, but also, as it sec
of the profligate principles and dissolute habits of the plaii
himself.* (a)
1 EUiot V. Nicklin, 6 Price, 641 ; TuUidge v. Wade, 8 Wils. 18 ; BrowneU v.
Ewen, 5 Denio, 867 ; Capron v. Balmond, 8 Steph. N. P. 2856 ; Watson v. Baj
and Mui^troyd v. Muigatroyd, cited 2 Stark, on £yid. 732, n. (t) ; «upra, §
But see Dodd v, Norris, 8 Campb. 519, contra Haynes v. Sinclair, 28 Vt. 108 ; Da
Wycoff, 7 N. y. 191.
s Dodd V. Norris, 8 Campb. 519. Held otherwise in Dain v. Wycoff, 7 N. Y.
(1852). Bnt an offer of marriage, after the seduction, cannot be shown in mitigi
of damages. IngersoU v, Jones, 5 Barb. S. C. 661.
the defendant. McAnlay v. Birkhead, 18
Ired. (N. C.) 28 ; Peters v, Locke, 66 IlL
206, where James v. Biddington, anUf
§ 55, is denied. Buller, N. P. 27 ; Mayne
on Damages, 885 ; Grable v. Margrave, 8
Scam. (111.) 872 ; ante, K 65, 89, 269.
OcnUra, Dain v, Wycoff, 7 N. Y. 191.
And damages in such a case for the ii^jury
to the parents' feelings may be recovered,
although there is no separate averment
thereof in the declaration ; such damages
beinff a natural consequence of the princi-
pal injury. Taylor v. Shelkett^ 66 Ind.
297 ; RolUns v. Chahners, 51 Vt. 592 ;
Phillips V. Hovle, i Gray (Mass.), 56a
The role as to damage is the same whether
the daughter be a minor or of full
Lipe V. Eisenlerd, 82 N. Y. 229.
(a) It is held in some States that
relative social position of the plaintiff
defendant may be shown to aggravat
mitigate the damages. White v. M
land, 71 IlL 250. A subsequent marr
of the daughter with the seducer, anc
acquittal of the latter on an indictn
for the seduction, may be shown in mit
tiou of damages. Eichar v. Kistler,
Penn. St. 282. And it has been held 1
an offer of marriage mav be shown to n
fate the damages. White v. Minthi
1 IlL 250.
672 LAW OF EVIDENCE. [PABT lY.
SHERIFF.
§ 580. Sheriff rMponsible for his subordinates. The law of evi-
dence in actions against any officers, for misconduct in regard to
civil process in their hands for service, will be treated under this
head ; the sheriff being the officer principally concerned in that
duty. He is identified, in contemplation of law, with all his
under-officers, and is directly responsible, in the first instance,
for all their acts done in the execution of process.^ (a)
§ 581. Oroonds of action. Actions against sheriffs are either
for non-feasance, or mere omission of duty, — such as, (1) not
serving process ; (2) taking insufficient pledges or bail ; (8)
not paying over money levied or collected : or, for misfeasance,
or improperly doing a lawful act, — such as, (4) suffering the
party arrested to escape ; (5) making a false return : or for mal-
feasance, or doing an unlawful act, under color of process, — such
as, (6) extortion ; (7) seizing the goods of one who is a stranger
to the process. These will be considered briefly in their order.
§ 582. Proof of official oharacter. Where the action for any of
these causes is founded on the misconduct of an inferior officer^
acting under the sheriff, his connection with the sheriff must be
proved. If he is an under-sheriff or deputy, recognized by statute
as a public officer, it will be sufficient, jpWma/aeie, to show that
he has acted publicly and notoriously in that character.^ But if
^ Saunderson v. Baker, 2 W. B. L. 832 ; Jones v. Perchard, 2 Esp. 607 ; Smart v.
HuttoD, 2 N. & M. 426 ; b. c. 8 Ad. & £L 668, n.; Anon., Lofft, 81 ; Ackworth «.
Eempe, 1 Douff. 40 ; Woodman v. Gist, 8 C. & P. 213 ; Watson v. Todd, 6 Mass. 271 ;
Draper v. Arnold, 12 Mass. 449 ; Knowlton v. Bartlett, 1 Pick. 271 ; People v. Don-
ning, 1 Wend. 16 ; Gorham v. Gale, 7 Cowen, 789 ; Walden v. Davison, 16 Wend. 675 ;
M'Intire v. Trumbull, 7 Johns. 35 ; GrinneU v. Phillips, 1 Mass. 680.
^ AtvUf vol. i. §§ 83, 92. If the allegation is, that the defendant was sheriff on the
day of delivery of the writ to him, and until the return-day thereof, proof of the
former averment is sufficient, the lattex being immateriaL Jervis v, Sidney, 3 D. ft
R.483.
(a) No action lies against a sheriff upon injured must elect which to sue, rmrding
a judgment recovered against his deputy, them as master and servant. They are
Pervear v. Kimball, 8 ABen (Mass.), 199. held to be joint trespassers, however, in
In Morgan v, Chester, 4 Conn. 387, the Waterbury v. Westervelt, 9 N. Y. 604,
sheriff is said to be a joint trespasser with where the cases are fuUy examined, and
his deputy ; but in Campbell v. Phelps, 1 the dissenting opinion of Wilde, J., in
Pick. (Mass.) ^% it is held that the party CampbeU v. Phelps, «upra, approved.
PABT IT.] SHERIFF. 573
he is only a private agent or servant of the sheriff, other evidence
is necessary. In these cases, a warrant is delivered to the bailiff,
authorizing him to serve the process in question ; and as this is
the most satisfactory evidence of his appointment, it is expedient
to produce it, or to establish its loss, so as to admit secondary
evidence of its existence and contents.^ A paper, purporting to
be a copy of the warrant left with the debtor by the bailiff, is not
sufficient, it being the mere act of the bailiff, and of the nature of
hearsay ; nor will it suffice to produce a general bond of indem-
nity, given by the bailiff to the sheriff ; for this does not make
him the sheriff's general officer, but is only to cover each distinct
liability that he may come under, in regard to every several war-
rant.^ But any subsequent act of recognition of the bailiff's
authority, by the sheriff, such as returning the process served by
the bailiff, or giving instructions for that purpose, is admissible to
establish the agency of the bailiff.® (a) The bailiff himself is a
competent witness to prove the warrant under which he acted ;
but it will seldom be expedient for the plaintiff to call him, as he
will be liable to cross-examination by the defendant, in a cause
which is virtually his own.*
§ 588. Admlflsions of deputy as against sheriff. It may also
here be stated, that the admissions of an under sheriff, or deputy,
tending to charge himself, are receivable in evidence against the
sheriff, wherever the under-officer is bound by the record ; and
he is thus bound, and the record is conclusive evidence against
him, both of the facts which it recites, and of the amount of dam-
ages, wherever he is liable over to the sheriff, and has been duly
notified of the pendency of the action, and required to defend
it.* (6) This principle applies to all declarations of the under-
1 AnU, vol. i. S§ 56^568, 574, 575, 84, n.
s Drake v, Sykes, 7 T. R. 118 ; as explained in Martin v. Bell, 1 Stark. 418.
s Martin v. Bell, 1 Stark. 418 ; Saonderson v. Baker, 8 Wils. 809 ; 2 W. PI. 882 ;
Jones V. Wood, 3 Campb. 228. The return of a person styling himself deputy sheriff
is not of itself sufficient evidence, against the sheriff, of the deputy's appointment.
Slaughter v. Barnes, 8 A. K. Marsh. 418.
* Moigan V, Brydges, 2 Stark. 814. And see ante, voL i. } 445.
* See ante, voL L § 180, and n.
(a) Todischam the sheriff fromliabil- Sheldon v. Payne, 7 N. Y. 458. See also
ity for the acts of his deputy, in obeying 10 N. Y. 898.
the instructions of the plaintiff, it must (b) In those States where the common-
appear that the deputy, in his departure law rule still prevails, that interest in the
from duty, was obeying or attempting to result of a suit disqualifies a witness, a
obey the instructions of the plaintiff, sheriff 's deputy is not a competent witness
officer, withoat regard to the time of makii^ them. Bat in
other caseB, vhere the record is not evidence against the onder-
officer, hia decIomtioDS seem to be admisaible against the sheriff,
only when they accompanied the act which he was then doing in
his character of the slierif s agent and as port of the reggeattg^
or while the process was in his hands for service.* Upon the
same general principle of identity in interest, the declarations of
the creditor, who has indemnified the sheriff, are admissible in
evidence against the latter in an action by a stranger for taking
his goods.'
§ 584. Hon'Mrrio* of prooMu. (1.) Where the action is
against the sheriff for not terving metne proceBt, it is incmnbeat
on the pl^tiff to prove the eaute of action ; for which pnrpose
any evidence is competent which would be admissible in the snit
against the debtor.^ Hence the acknowledgment of the debtor
that the debt is justly due is admissible gainst the sheriff.^ The
plaintiff must also prove the tMuin^ ofprocea, and the delivery of
it to the ofiBcer. (a) K the proceaa has been returned, the regular
1 Ibid. See also vol. L %% ll^ 111 ; Bowsheer v. Call;, 1 CMaph S91, n. ; Nortli
V. Miles, Id. 386 ; Snowball v. Ooodriche, * B. & Ad. 6il.
' Jacobs B. Humphrey, 2 C. t M. <13 ; 8. c. 4 Tyrw. 272 ; Mott v. Kip, 10 John*
t'li ; ManU v. Collina, 4 H. & UcHcd. 216. In order to render the >dmusiiiiis or Uu
deputy competent evidence asunst the BherilT, it i> ordinirily gaffident to prove tlut
he was a deputy of the sheriff, and that be acted colon officii, at the time, witboat
proring the iasning and delivcrj of the precept under which he profeaaad to act.
Stewart c. Wells, 6 Barb. 8. C. 76.
' Proctor c. Uinson, 7 C. k P. 629.
* Ounterii. Cleyton, 2 Lev. SG, approred In Alexander v. Macaalej, 4 T. B. <11 ;
Parker v. Fenn, 2 £sp. 477, n. ; Slomaii v. Heme, Id. SSG ; Rifija r. Thatcher, 1
Gre«nL BS.
* Gibbon v. Co^on, 2 Campb. 1S8 ; Willionu «. Bridgra, 2 Stark. 43 ; Slranan
«. Heme, 2 Eap. esfi ; Eemplttad v. Macaula;, 4 T. B. 43S ; Dyke v. Aldrige, 7
T. R. 865.
lor the eheriff, when tho actioD is baaed court |>rocna wm israed and delirered to
on each depnty*! miaconduct Odom r. a sheriff, aa a means of enforcing a pilat't
Gill, G9 Oa. ISO. Bnt, in genenl, tbii claim for nagea, the State conrt in each
al!i<ction now goea only to the credibility case having no joriadiction of such a claim,
of the witness. Antt, vol. i. % 4IS tt teq. the process ie no defence to the sheriff.
(a) A defect in the process which ia Campbell v. Sherman, 3G Wis. 103 ; Fiaher
delivered to the sheriff^ and for failure «. HcQirr, 1 Gray <Maas.>, 4C ) Kennedy
to mforet which he Is sued, which ren- v. Dnncklee, id. 71 ; Twit«hell v. Shaw,
den the process voidable, will not excuse 10 Cnsb. (Hass.) 46. Bat if the pro-
tbe officer for failure to enforce it ; other- cess is regnlar on >ta face, and issued ty
wiae if the process is totally void. For- a msgistiate having jntisdictian over the
nth v. Campbell, IG Han (If. T.), 23G. snliiject-matter, the officer i* protected
On the other band, when the shenCf un- by it, though it may be voidable for sopm
ditrtakea to net by virtue of a proceas defect. Clarke v. Uay, 2 Gray (Mass.),
which in absolutely void, he Is not pro- 413; Donahoe r. Shod. 8 Uet. (Mass.)
tectad by it in a sitit by the party against 326 ; Johnson v. Fox, 69 Ga. 270. C£
whmn it waa raiforced, e. g., when a State Campbell v. Sherman, BG Wia. lOS.
proof is hy a copy ; if not, its existence most be established by
secondary evidence ; and, if it is traced to the officer's hands, he
should be served with notice to produce it.^ And here, and in
all other cases, where the issuing of process is alleged, the alle-
gation mast be precisely proved, or the variance will be fatal.*
Some evidence must also be pven of the officer's ability to execute
the process ; snch as, t^at he knew, or ought to have known, that
the person against whom he held a capiat was within his pr&>
cinct ; or, that goods, which he might and ought to have attached,
were in the debtor's possession.^ The averment of neglect of
official duty, though negative, it seems ought to be supported by
some proof on the part of the plaintiff, since a breach of duty is
not presumed ; but, from the nature of the case, very slight evi-
dence will be sufficient to devolve on the defendant the burden of
proving that his duty has been performed.* (a) The damaget will
at least be nominal, wherever any breach of du^ is ^own ; (&)
and may be increased, according to the evidence."
§ 585. Defeno*. In d^ence of actions of this description, where
the suit is for neglecting to attach or seize goods, the sheriff may
show that there were reasonable doubts as to the ownership of
the goods, and that the plaintiff refused to give him an indemnity
for taking them;' or tiiat they did not belong to the debtor.'
1 See anU, vol. i. (J G31, CM.
> AiKte, TOl. L S3 es, e«, 70, 73 ; PhiUipson «. HmutIm, 11 But, Gift ; Bevan
tr. Jones, 4 B. k C 408 ; Bromfletd s. Jones, Id. S80 ; Webb v. Hene, 1 B. & P.
231. Sue, furthor, Stoddirt v. Palmer, 4 D. k R. 024 ; S B. & C. 3 ; Lewis v. Al-
cocfc, 6 DowL P. C. 78.
* Beckford v. Montague, 2 Eap. 47G ; Froat v. Dougal, 1 Dajr, 123.
* See ante, Tol. i. gS 78-81.
* Baker v. Oreen, 2 Bins. 817 ; CliftoD v. Hooper, S Jnr. 068 ; S Ad. & El. n. s.
«8 ; WilliamB e. Mostyn, 4 M. * W. 145 ; Marietti c. WUIianis, 1 R t Ad. 416. If
the deputy sheriO' uodertakes to receive the nmoaiit of the debt and costs, on mesne
process, nnd stay the BGirice of the writ, the sheriff is liable forthnith for the Mnoont
received, without any previous demand. Green v. Lowell, 8 Qieenl, 87S.
* Marsh v. Qold, 2 Pick. 976 ; Bond v. Ward, 7 Hrsb. 123 ; Feriey «. Foater, 0
Han. 112. See aUo Weld v. Cbadbonnie, 87 Me. 221.
' Canada v. Southwick, IS Hck. G5S.
(a) The question of n^igence in thsM
cases is ^vemed by the same genenl Koch t.
nilea as id other oaaes. See ante, i 230. sheriH' is _.__ o— ,, d
If, on (ha evidence oOsred, the judge is in lailing to serve a wnt, the o ..
prepared to say that there is tk nidmet of showing that the deiendant was insolvent
negligence, he may direct the jury to find Talis on hjm. Jenkins v. Tnmtman, 7
for the defendant, but not otherwisa. It Jones (N. C), L. 169.
has been held in an action for a false (b) So where a ahmlT fails to return an
retam of -non ed ineeniut, that the hot eiecntion within the time preacribed by
that the shsTiff, when he was girsn a writ law, this gives an action Tor dant^get.
to serve, did not inqniie of Uie plaintiff Pe«^ v. Johnaon, i IlL App. US.
wbare the defendant reaidsd, ii mt, m
676 LAW OP EVIDENCE. [PABT IV.
And where the neglect was in not serving a writ of execution, he
may impeach the plaintiff's judgment by showing that it is
founded in fraud ; ^ first proving that he represents a judgment
creditor of the same debtor, by a legal precept in his hands.^ He
may also show, in defence of such action, that there were attach-
ments on the same goods prior to that of the plaintiff, for which
he stood liable to the attaching creditors, whose liens still existed,
and that these would absorb the entire value of the goods.® And
his return to a fieri faciagy setting forth a valid excuse for not
having sold the goods, such as, that they were casually destroyed
by fire, (a) or that proceedings were stayed by a judge's order, or
the like, is prima facie evidence of the fact, in his own favor .^ (liy
1 Pierce v. Jackson, 6 MaBs. 242. But he cannot impeach it on any other giomuL
Adams v. Balch, 6 OreenL 188.
s Clark V. Foxcroft, 6 Greenl. 296. See infra, §§ 593, 697.
* Commercial Bank v. Wilkins, 9 Greenl. 28.
• Browning v. Hanford, 7 Hill (N. Y.), 120.
(a) So, when the property is destroyed in any English book, shows that an oflSoer^a
hy fire during the temporary absence of return of a rescue has ever been decided to
the sheriff, if he has not been negligent, be conclusive evidence in his favor in an
Price V, Stone, 49 Ala. 543. action brought against him for an escape.
(6) In anv action against a sheriff or his On the contrary, there are recent Enghsh
deputies, where a return of the writ has authorities whidi show that it is not con*
been made, this return is admissible as elusive. It was so decided by Holroyd,
evidence. The effkct of this evidence is J., in Adey v. Bridges, 2 Stark. R. 189.
stated by Metcalf, J., in Whithead v. In Jackson v. Hill, 10 Ad. & £L 492;
Keyes, 3 Allen (Mass.), 495. The action Patteson, J., denied that a return was
was against a sheriff for the default of conclusive in all cases except in an action
his deputy in suffering an escape. The for a false return, and said, ' The case
defendant claimed that the return on the cited from the Year Book (5 £dw. lY. 1)
wri^ of a rescue was conclusive, but the is strong to show that a return is conclu*
judge ruled that it was not conclusive, but sive only in the particular cause in which
was evidence for the consideration of the it is made, and there is no authority the
jury. Metcalf, J., says, '* We are of other way.' See also Yin. Abr. Betnm,
opinion that the judge correctly ruled that O. 25 ; 1 Saund. PI. & Ev. (2d ed. ) 1074 ;
the return of Thomas on the writ against Atkinson's Sheriff Law, 247, 248 ; Wat-
Stoddard was not conclusive in this action son's Sheriff, 72 ; 3 Phill. Ev. (4th Am.
against the defendant for an escape. The ed.) 701 ; 1 TayL Ev. 702, 703. If there
defendant relies on the positive rule often are any decisions in this country which
found in the books, that an officer's return support the defendant's exception to the
cannot be contradicted by parties and ruling on this point, we cannot follow
privies, except in an action against him them. We adupt the views of the Sa-
fer a false return. But we cannot see on preme Court of Vermont, in the case of
principle any more reason why his return carrett v. Copeland, 18 Yt 67, which
should be conclusive in this action for an cannot be distinguished in principle from
escape, which assumes that the rotum was the case before us. That was an action
false, than in an action directly charging for an assault and battery, and folse im-
him with a false return. If his roturti be prisonment at B. The defendant pleaded
true, he may prove it to be so, as well in m justification that he was constaUe of
this action as in the'other. His return is the town of M; that he arrested the plain*
prima facie evidence of a rescue, and the tiff at M. on an execution ; that the
burden is on the plaintiff to prove it plaintiff escaped, and that he punned and
false, as well in this action as in the other, recaptured him in the town of B., and oon-
And not one of the numerous books cited veyed him to M. on the way to prison,
by the defendant's counsel, nor any case "On the trial in the county oourt, the
§ 586. TiUng laatiBotMit bau. (2.) As to the action for
taking intvfficient pledget or hail. Here also, though the allefj^
tiou of the insufficiency of the sureties is negative in its terms,
jet some evidence to support it must be produced by the plaiutiEf,
though slight proof will suffice, the fact of their sufficiency
being best known to the defendant, who took them ; ' and it is
a legal maxim that all evidence is to be veighed according to the
proof which it is in the power of one aide to produce, and in
the power of the other to contradict^ To establish the fact of the
insufficiency of sureties, it is admissible to prove, that they have
been pressed for payment of their debts by the importunity of
creditors, and have violated their repeated promises to pay.^ It
is not necessary for the plaintiff to aver and prove that the sheriff
knew the sureties to be insufficient; it is enough ^mma/atnV to
charge him, if it appears that they were in fact so at the time
when he accepted them> This liability the sheriff may avoid
by showing that they were at the time apparently responsible,
and in good credit ; or, that he exercised a reasonable and sound
discretion in deciding upon their sufficiency ; of which the jury
are to judge.' But tiieir own statement to the sheriff as to their
> Sannden v. Darling, Boll. N. P. 60.
* Per Ld. Muufield, Cowp. 65.
* GiTyllim r. Scholey, S £sp. 100.
* Concanen v. Lethbridge, 2 H. Bl. Sfl ; Erans v. BrBodn, Id. 647; Yea v. Leth-
bridn, IT. K. 433; Sparhawk v. Bartlett, 2 Mou. 188. If the officer accepts a forged
bail'Doiid, he u liable to the plaintiff, though he believed it to be gennine. Marah «.
Bamcroft, 1 Met. 497.
* Hiudie V. Blades, B Taoiit. 22fi ; Jeflerer *. Butard, 4 Ad. & El. 628 ; Snttoa «.
Waite, 8 Moore, 27.
derendant gave in eTidenee the eiecution npon the groand of the general credit
and bis retnm thereon, in which he set due to the return of such an officer,
forth the arrest of theplsintiff at H., as in caaei where it is his daty to make
averred in the plea. The plaintiff offered a return. But npon principle it ehonld
evidence to conttsdict the return, but it be subject to contradiction bj third
was exclnded, and the defendant obtained persona, becanae they are neither partiea
a verdict on vhich judgment was ren- or pHvieg to the transaction, and becanse
dered. The Supreme Court reversed that they would not, according to any prece-
indgment. ' The ijuestion,' uid Boyce, dent with which I ani aoqaaintnl, be en-
J., ' now presented u whether the official titled to a remedy againat the officer for «
return of a public officer ia eonclusive evi- false return. It should also be open to
dence in favor of such officer, ia the pro- contndiction collaterally, oven by a party
Mention or defence of a collateral action, to the process. We ate therefore of opin-
We find it laid down as undoubted law, ion that the plaintiff was entitled to go
that Boch a return is admissible evidence into evidence to dieprove the allied arrest
in the ofBc^r'a /avor, as also to affect the at H. ; and for the rtgection of the evidence
rights of thirrl persona. But Ibese author- offered for that purpose, the judgment of
itus nnifonnly assert that when evidence the Connty Court must he reversed.' See
ia offered for that purpose it is but prima also Francis r. Wood, 28 Me. 68." Cf.
/acit evidence. Its admissibility is put Brigff v, Qre«B, 88 Tt. 665.
VOL. U. 87
responsibility is not enongh ; thoogfa thej are competent iritnesses
for liim on the trial.' Od the other hand, the plaintiff maj show,
that the sheriff had notice of their insufficiency, or did not act
with dne caution, under the circomstances of the case ; or, that
their pecuniary credit was low, in their own neighborhood.* And
it is not necessary for the plaintiff to show that he has taken any
steps against the hail, in order to establish tJieir insufficiency, as
the fact may be proved by any other competent evidence,'
§ 587. xron-pBTtncnt of inon«7. (8.) As to the action^or not
paying over money levied and collected. The money, in this case,
as soon as it comes into the officer's hands, is money had and
received to the creditor's use ; and, where the precept does not
otherwise direct him, he is bound to pay it over to the creditor
on the return day of the process under which it was levied, with-
out any demand, and earlier if demanded ; upon failure of which
an action lies.* The evidence, on the part of the plaintiff, consists
of proof of the receipt of the money by the officer, and, where a
<
1
1
1
]
1
I
his cQimection mth the aherifF must be established by further
evidence, aa already has been stated.' (a)
§ 588. DofflDoe. In the defence of an action for this cause, the
Bheriff may show that the goods, out of which he made the money,
irere not the property of the judgment debtor, but of a stranger,
to -whom he is liable ; or that the judgment debtor had become
bankrupt, and that the money belonged to his assignees ; and this
notwithstanding his return, that be had levied on tlie goods of the
debtor.' He may also show that the plaintiff had directed him to
apply the money to another purpose, which he had accordingly
done ; ' or, that it was absorbed in the expenses of keeping the
goods.* (6) The amount due to him, for his collection fees or
poundage, is to be deducted from the gross amount in his hands.'
§ 589. Baospe. (4.) In an action against the sheriff for an
eteape, the plaintiff must prove, first, his character as creditor ; sec-
ondly, the delivery of the process to the officer ; thirdly, the arrest ;
fourthly, the escape; and, lastly, the damages or debt. If the
escape was from an arrest upon execution, the plaintiff's character
of creditor is proved by a copy of the judgment ; and if the action
is brought in debt, the plaintiff, by the common law, is entitled to
recover the amount of the judgment, at all events, and without
deduction, or regard to the circumstances of the debtor.* But
where the action is brought in trespass on the case, as it must be
where the arrest was upon meme proceta, and it may be where
the arrest was upon execution, the plaintiff must prove his debt,
> Sn/rra, | 5S2 ; Wilwm *. Nonoan, 1 Eap. 16i ; McSeil «. Perchud, Id. 868.
* Brydgea u. Wnlford, 6 K. k a. i2 ; 1 Stark. 3S9, n.
* LV>mm'ree. Allen, 2 Rep. ConsL Conrt (S. C), S8.
< Twombly v. Hunnewell. 2 QreBiil 221.
* Longdill B. Jones, 1 Stark. 34S.
* Hawkins B. Plomer, 2 W. Bl. 1048 ; Porter v. Saywsrf. 7 Mass. 277. The com-
mon law has lieen altered in thia partinnlar in some of the United States, b; itatates
which provide, that, in ui action at debt for an escape, the plaintiff shall recover no
more tbui auch nctnal dkinage as he may prove that he has sustained. Infra, % GB9.
thia, though the return is made \tj bit prombe to pay, the sheriff is liaUe to the
deputy. Ibid. An officer cnnnot he per- plaintiff on whose writ the goods were ao
initted to testify on the trial that he did taken, for the amount bid by the pur.
not take alt the property returned on the chaser, deducting the costs and ejqiensea
eiecntioD aa taken ; but he may be per- or the sale. Disstonv. Strauck, 42N. J. L.
initted to amend bis return according to &ii.
the bets. Johnson v. Stone, 40 N. H. (A) Or he may show that prior execu-
197. tiona in his hands, on the same nroperty,
[a) When • aheriff tells at anction have abaorbed all Uie money received from
gooda tAken on attachment or execution, the sale of that property. Hammen v.
and allowa the bnyer to take the goods Minnick, 82 Ontt. (Va.) 249.
without p*Titig for them, bnt npon a
or cause of action, in the manner ve have alreadf atated, in
actioDB for not serving process.' The procett must be proved
precisely as alleged, a material variance being fatal.' Tbe delivery
of the process to the officer will be proved by his return, if it has
been returned ; or by any other competent evidence, if it has not.
The return of cepi corpus will be conclusive evidence of the arreat ;
and if there has been no return, the fact of arrest may be proved
aliunde, and by parol." The escape of the debtor is proved bj
any evidence, that he was seen at large after the arrest, for aaj
time, however short, and even before the return of the writ*
The difficulty of dcEuing the going at large, which constitutes an
escape, has been felt and acknowledged by judges.' Mr. Justice
Buller said, that wherever the prisoner in execution is in a differ-
ent custody from that which is likely to enforce payment of the
debt, it 18 an escape ; ' which he illustrated by the case of a pris-
oner permitted to go to a horse-race, attended by a bailiff. And
where a coroner, having an execution against a deputy jailer, ar-
rested him, and left him in the jail-house, neither the sheriff nor
any other authorized person being there to receive him, it waa
held an escape in tbe sheriff ; upon the principle, as laid down by
Parsons, C. J., that every liberty given to a prisoner, not authorized
by law, is an escape.^ (a) If the liberty was given through mis-
take, it seems it is still an escape ; ^ but if he be taken from prison
through necessity, and without hia own agency, in case of sudden
siekness, or go out for the preservation of life from danger by
fire, and return as soon as he is able, it is not an escape.^
The damages in this case will hereafter be considered.
§ 590. Banw sabJ«ot The part; escaping is a competent teit-
nett for either party, in an action for a voluntary escape, for he
> Supra, t
I Supra, I
Bromtield v. Jonea, i
> Supra, I G84, vol. i. $5 OS, 64, 70, 73 ; Phmipwn v. Huglet, 11 Eut, 51« ;
• Fairlie e. Birch, 3 Csmpb. 397.
• Hawkins v. Homer, 2 W. Bl. 10*8 ; 8 Com. Dig. 642-648, tdt. Eaope, C. D.
' Per Eyre, C. J., 1 B. & P. 27.
• Benton v. Sattoo, 1 B. & P. 24, 27.
I Colby V, Sampson, 6 Mass. 310, 313, per Pa»«onB, C. J.
r, 10 Has. 207 ; 1 Boll. At
(a) It ia sufficient proof of an escape to Urge for the mt of the day, although tbia
ahow that the prisoner was only obli^ced to conduct haa Bubeeqoently bem assented M
present himself eveiy moruinR at tbe sher- by the plaintiff'!* attorney. Hopldnaon t.
ilf 'a office, and ma then allowed to go at Leeds, 73 Fa. St. 8S&
PABT IV.] BHERXTF. 581
stands indifferent ; bnt where the action is for a negligent escape,
he is not a competent witness for the defendant, to disprove the
escape, because he is liable over to the sheriff.^ But though the
count is for voluntary escape, yet under it evidence of a negli-
gent escape is admissible ; for the substance of the issue is the
escape, and not the manner.^
§ 591. Dafenoe. In defenee of the action for an escape, the
sheriff will not be permitted to show that the process was irregu-
larly issued ; nor, that the judgment was erroneous ; nor, that
the plaintiff knew of the escape, yet proceeded in his action to
judgment, and had not charged the debtor in execution, though
he had returned to the prison ; ^ nor, that the plaintiff had ar-
rested the debtor upon a second writ, by another sheriff, and had
discharged him without bail.^ But under the general issue he
may show that the court from which the process was issued had
no jurisdiction of tlie matter, and that therefore the process' was
void.^ He may also show, that before tlie expiration of the
term in which the writ was returnable, but not afterwards, the
debtor did put in and perfect bail, or that he had put in bail,
and seasonably rendered himself in their discharge, though no
bond was taken ;^ or that the prisoner, while going to jail on
mesne process, was rescued ; but not if he was taken in execution.^
So he may show that the escape was by fraud and covin of the
plaintiff in interest.^ If he pleads that there was no escape, this
is an admission of the arrest as alleged.^
§ 592. False retom. (5.) As to the action for sl false return.
In the case of a false return to mesne process^ the plaintiff must
prove the cause of action,^^ the issuing of the process, and the
deliyery of it to the officer, in the same manner as has already
been shown, in the action for not serving mesne process. If it
was a writ of execution^he should produce a copy of the judgment,
and prove the issuing of the execution ; of which the clerk's cer-
tificate in the margin of the record is usually received as sufficient
1 See ante, vol. i. §§ 394, 404 ; Cass v. Cameron, 1 Peake, 124 ; Hunter v. King, 4
E k Al(L 210 ; Sheriib of Norwich v. Bradshaw, Cro. £1. 58 ; £yl68 v, Faikney, 1
Peake, 143, n.
« Bovey'a Case, 1 Ventr. 211, 217 ; Bonafous v. Walker, 2 T. R. 126.
* BuU. N. P. 60, 69. 4 Woodman v. Gist, 2 Jor. 942.
» Bull. N. P. 66, 66.
* Pariente v. Plumtree, 2 B. & P. 85 ; Moees v. Norris, 4 M. & S. 897.
T May 1^. ProW, Cro. Jac. 419 ; 1 Stra. 485 ; Ball N. P. 68.
* Hiacocka v. Jones, 1 M. & Malk. 269. See also Doe v. IWe, 5 Bing. N. C. 578.
* Boll. K. P. 67. ^ See Parker v. Fenn, 2 Esp. 477, n.
582 LAW OF EVIDENCE. [PABT IT.
evidence. The officer's return mast, in either caBe, be shown, and
some evidence must be adduced of its falsity ; but slight or prima
facie evidence of its falsity will be sufficient to put the sheriff upon
proof of the truth of his return ; such, for example, as showing
the execution debtor to be in possession of goods and chattels,
without proving the property to be in him, when the sheriff is
sued for falsely making a return of nulla bona.^ (a) If the sheriff
has omitted to seize the goods, in consequence of receiving an
indemnity, the controversy being upon the title of the debtor, the
plaintiff must be prepared with evidence of the debtor's property.
And if the process was against several, and the allegation is that
they had goods which might have been seized, the allegation,
being severable, will be supported by proof that any one of them
had such goods.^
§ 598. Defence. In the defence of the action for a false return
of nulla bona to a writ of execution, the sheriff may show that the
plaintiff assented to the return, after being informed of all the
circumstances;® or, where part of the money only was levied,
that the plaintiff accepted that part with intent to waive all fur-
ther remedy against the sheriff, and with full knowledge of the
facts ; ^ or, that the plaintiff has lost his priority, by ordering the
levy of his execution to be stayed, another writ having been de-
livered to the sheriff ; ^ or, that the first levy, for not returning
which the action is brought, was fraudulently made, and so
void; ^(6) or, that the plaintiff's judgment was entered up by
a fraud and collusion with the debtor, the sheriff first proving that
he represents another creditor of the same debtor, by showing a
1 Magne v. Seymour, 5 Wend. 809. And see Stubbs «. Lainson, 1 M. & W. 728.
The judgment debtor is a competent witness against the sheriff in an action for a fidae
return of nulla bona. Taylor v. Commonwealth, 7 Bibb, 856.
a Jones V. Clayton, 4 M. & S. 849.
» Stuart V, Whitaker, 2 C. & P. 100.
4 Beynon v. Garratt, 1 C. & P. 154. Here the officer levied a part, and returned
nulla bona as to the residae, and the plaintiff accepted the part levied ; which was held
to be a waiver of all further claim on the sheriff, the plaintiff having been pnmouUff
advimd that it would have that effect, Sed qua^e, and see Holmes v. Clifton, 10 Ad. &
£1. 678, where it was held, that the mere receipt of the money levied will be no bar to
the action.
* Smallcombe v. Cross, 1 Lord Raym. 251 ; Eempland v. Macauley, 1 Peake^ 65.
• Bradley v. Windham, 1 Wils. 44.
(a) The burden of proof in such a case {b) So, he may show that the iudg*
is on the plaintiff, to snow the falseness of ment on which the execution issued has
the return, by showing that there were at- since been reversed. Inman «. McKei]«
tachable goods of the defendant. Watson 57 How. (N. Y.) Pr. 151.
V. Brennan, 66 N. Y. 621.
legal precept in his hands.^ He may also abow that the goods of
the debtor were absorbed by a prior execution in his hands ; and
in such case the plaintiff may rebut this evidence, by proving that
the prior executioa was concocted in fraud, and tliat the sheriff
bad previous notice thereof, and was required by the plaintiff not
to pay over the proceeds to tlie prior creditor.' He may also
prove that the debtor had previously become bankrupt, for which
purpose the petitioning creditor is a competent witness to prove
his own debt, the commission being otherwise proved.' And if
the assignees are the real defendants, the plaintiff may give in
. evidence the petitioning creditor's declarations in disparagement
of his claim, thougli he has not been called as a witness by the
defendant.*
§ 594. An*w«r to d«f«noe of noUa bon*. In answer to the
defence of nulla bona, founded on an alleged sale and assignment
of his goods, by the debtor, the plaintiff may prove that the assign-
ment or sale was fraudulent.^ So, if the sheriff defends his re-
turn, on the gronnd that the debtor was an ambassador's domestic
servant, the plaintiff, in reply, may show that his appointment
was colorable and illegal." (a) Questions of this sort, though ex-
tremely embarrassing to the sheriff, tlie common law ordinarily
obliges him to determine at bis peril ; but where there are reason-
able doubts as to the property of the debtor in the goods in his
possession, or which the sheriff is directed to seize, or in regard to
the lawfulness of an arrest, he may refuse to act until he is indem-
nified by the creditor.^ By the common law, he might also apply
to the court to enlarge the time for making his return until an
1 Cl»rk e. Foiorrit, 8 Gpaenl.SeB ; 7 Gretnl. 848. And «ea TnrYil v. Tipper, Latch,
222, admitted in Tyler v. Duke of Leed^ 2 Stark. 218, and in Harrod c. Button, 8 B.
t 0. 217. See alao Fierce v. Jackson, 6 Uiaa. 213 ; lupra, £ 68fi.
' Wamioll V. Yonnft 6 B. 4 C. 880.
* Wright V. Lainson, 2 M. & W. 73B. And aee BrjAffa n. Walfoid, 6 H. & S. 12.
* Dowden v, Fowle, 1 Caeipb, 38. • Dewey b. Bayntom, 6 Piaat, 267.
* Dellvalle e, Plpmer, 3 Canipb. 47.
' Bond V. Ward, 7 Mass. 123 ; Mar*h e. Gold, 2 Pick. 28B ; Perley v. Fostsr, 8 Masa.
112, lit ; Pierce n. Partridge. 8 Met. H ; King v. Bridges, 7 Tannt. 291 ; Shaw v.
Tumbridge, 2 W. Bl. 1081; Emorj r. OaTls, 1 S. C. 23.
(a) So if the offlcsr takea effects of the stiit by the plaintiff on whose exeentlon
d«bt«r on eiecntion, and then releasea they were taken, it will be incumbnt on
them, afNM a claim by the debtor that the? the officer to pmre them so exempt. Sage
•re not li»ible to elocution, but are priril- v. Dinkiniion, 88 OratL (Va.) B81 ; Tenell
eged by the homestead act, the officer e. Sute, 86 Ind. 670.
makcN ttus deeiaiun at his peril, and oo a
584 LAW OF EVIDENCE. [PABT IT.
indemnity was given.^ Where he is entitled to an inquisition to
ascertain whether the property in goods seized on execution
is in the debtor or not, the finding is not conclusive for him;
and in England it has been held inadmissible in his favor, un-
less upon an issue whether he has acted maliciously;^ but in
the United States it has been admitted in evidence, and held con-
clusive in his favor, in an action by the creditor for a false return
of niUla boTMy where he acted in good faith,^ though it is no justi-
fication, but is only admissible in mitigation of damages in an
action of trespass by the true owner of the goods for illegally
taking them.^
§ 595. Refusing to take bail Where the action is for refunng
to take baily it is sufficient for the plaintiff to prove the arrest, the
offer of sufficient bail, and the commitment. And it is not for
the sheriff to say that the plaintiff did not tender a bail-bond, for
it was his own duty to prepare the bond, though the party arrested
is liable to pay him for so doing.^
§ 596. Bztortion. (6.) The sheriff is also liable to an action
for extortion ; which consists in the unlawful taking, by color of
his office, either in money or other valuable thing, of what is not
due, or before it is due, or of more than is due. If the money
levied is not sufficient to satisfy the plaintiff's claim, the retain-
ing of any part, which ought to have been paid over to the plain-
tiff, is an indirect receiving and taking from him.^ In this action
the principal points to be proved by the plaintiff are, (1) the
process ; and if it be an execution, he must prove the judgment
also on which it issued, if it is stated^ though unnecessarily, in
the declaration ;^ (2) the connection between the officer and the
sheriff who is sued ; and (8) the act of extortion. The evidence
to prove the two former of these points has already been consid-
1 WaiBon on Sheriffs, j>. 195 ; SeweU on Sheriffs, p. 285. In England, by the in-
terpleader act, 1 & 2 W. IV. c. 58, a summary mode is provided for the speedy determi-
nation of such questions. In some of the United States, there are statutory proviaionB
for the like purpose, and for the sheriff's protection ; but in others, where the court
has no power to enlarge the time of return, it being fixed by statute, it is coQceired
that the refusal of the party to indemnify the sheriff, in a case of reasonable doubt in
regard to the service of process, would afford him a good defence to the action, or at
least would reduce the damages to a nominal sum.
« Latkow V, Earner, 2 H. Bl. 437 ; Glossop v, Poole, 8 M. & 8. 175 ; Farr «. New-
man, 4 T. R. 638 ; SeweU on Sheriffs, p. 243 ; Watson on Sheriffs, p. 198.
* Bayley v. Bates, 8 Johns. 185. * Townsend v, PhiUips, 10 Johna. 98.
» Milne v. Wood, 6 0. k P. 587.
• Buckle V. Bewes, 8 B. & C. 688.
7 Savage v. Smith, 2 W. BL 1101, explained in 5 T. B. 498.
ered.^ (a) The last is made out by any competent eTidence of
the amount paid, beyond the sum allowed by law.
§ 597. tTnnthorlHd taldog of gooda. (T.) Where the action
against the sheriff is for taking the goods of the plaintiff, he being
a stranger to the proccBS, the controversy is usually upon the
validity of the plaintifTs title as derived from the judgment
debtor, which is impeached on the ground that the sale or assign*
ment by the debtor to the jtlaintiff was fraudulent and void as
against creditors. (6) HcrCjif the plaintiff has never had posses-
sion of the gooda, so that the sale, whatever it was, is incomplete
for want of delivery, the proof of this fact alone will suffice to de-
feat the action. But if the transaction was completed in all the
forms of law, and is assailable only on the ground of fraud, the
sheriff must first entitle himself to impeach it, by showing that he
represents a prior creditor of the debtor, and this is done by any
evidence which would establish this fact in an action by the credi-
tor f^ainst the debtor himself, with the additional proof of the
process in the sheriff's hands, in favor of that creditor, under
which the goods were seized.' This evidence has already been
considered, in treating of actions for not executing process, and
for an escape." It is only necessary here to add, that, when the
sheriff justifies under final process, he need not show its return,
unless some ulterior proceeding is requisite to complete the justi-
fication ; for, being final, and executed, the creditor has had the
effect of his judgment ; but in the case of mesne process, as the
> Bee tupra, 99 582, 1!S4.
* Tmitt V. ReTill, i Uurinft- 71 ; Brovn «. Binett, I N. J. 46.
• Afpro, !S BB^. S89. And aee Martyit v. PodgcT, S Burr. 2631, 2S3S ; Lftke «.
Billcn, 1 Ld. Rapo. 733 ; Ackwoith v. Eeinpe, 1 Dong. 40 ; Dunon «. Bmiit, 2
Pick. 411; Qlauerv. Eve, 1 Bing. 209. The reoitalof the writ, in the sheriff's wu-
lant to his officer, is toma sTidence of tlie preoept in his hands, Beewy v. Windham,
« Ad. ft El. H. s. ISe.
[a) The extortion of monej of a third (b) The proof in oms where the title
putT, by a sheriff from the defendant, of the plaintiff is not derived from the
m WDoee hands it is, give* ench third party jodgmeut debtor is similar. The plaintiff
an action against the sheriff Thua, where most show that he owns the goods. If the
a constable, in a anit against A, attached officer baa taken the goods on attachment
ptoperty of B, a third party, knowing it it is neccssaiy to show an effectnal taking
not to De ths property of A, in order to of the goods into his poaaeesion. and the
compel A to pay ths debt, and A than paid qnestion whether snch a taking into pos-
over mmiey which belonged to B, and the seasioD occnrrBd is for the jury. Steams
officer then released the attachment of the v. Dean, 120 Mass. 180. Levying on prop-
gooda, but kept the money, it was held that erty and patting in a "keeper" ta aiich a
B had a good caaae of action against him. taking into poaseMion. Rider c Edgar,
KeUeyn. Swift, 127 Mass. 187. HC)£l27.
586 LAW OF EYIDENCEL [PABT lY.
object of the writ is to enforce the appearance of the party, and to
lay the foundation of further proceedings, the officer will not be
permitted to justify under it, after it is returnable, unless he
shows that he has fully obeyed it in making a return.^ (a) The
proofs in regard to fraud are considered as foreign to the design
of this work.^
§ 598. Competenoy of witnesses. In regard to the competency
of ttntnesaea for and against the sheriff, in addition to what has
already been stated respecting his deputies and the execution
creditor,^ it may here further be observed, that, where the issue is
upon a fraudulent conveyance by the judgment debtor, his declara-
tions, made at the time of the conveyance, are admissible as part
of the res geetoe ; and that, where the question is wholly between
his own vendee and the attaching creditor, his interest being
balanced, he is a competent witness for either party ; ^ but where
a question remains between him and his vendee as to the title, he
is not a competent witness for the sheriff to impeach it.^ A surety
is a competent witness for the sheriff, in an action for taking in-
sufficient sureties.® The owner of goods, who has forcibly rescued
them out of the sheriff's hands, is also a competent witness for
the sheriff, in an action for falsely returning nulla, bona on an
execution ; for such return precludes the sheriff from maintain-
ing an action against him for the rescue.^ (6)
^ Rowland v. Yeale, Cowp. 18 ; Cheasley.v. Barnes, 10 East, 93 ; Freeman v. Bluett,
1 Salk. 410 ; 1 Ld. Raym. 633, 634 ; Clark v. Foxcroft, 6 Greenl. 296 ; Russ v. But-
terfield, 6 Gush. 243 ; Roberts v. Wentworth, 5 Id. 192. See Wilder v, Holden, 24
Pick. 8, 1 2.
^ See Roberts on Fraudulent Conveyances, pp. 642-590, 2 Kent, Comm. 532-536,
where this subject is fuUv treated. Where the goods were taken on execution, and
were found in the possession of the judgment debtor, and are replevied by a person
claiming title as owner of them, the burden of proof is on the plaintiff in replevin to
show his own title ; but if tiiey were taken out of the plaintiff's possession, the burden
of proof is on the officer, to show that they were the property of the judgment debtor.
Merritt v. Lyon, 3 Barb. S. C. 110.
* Supra, §§ 583, 598.
* Ante, vol. i. §§ 897, 398.
• Bland v, Ansley, 2 New Rep. 831. In this case, the debtor had sold a house to
the plaintiff, but whether he sold the goods in it ahjo was a matter in dispute between
them ; and he was therefore held incompetent to testify in favor of his own claim.
• 1 Saund. 195 /, note b^r Williams.
7 Thomas v, Pearse, 5 Price, 647.
{a) " The funeral doctrine is well estab- (b) So the defendant, on whom the ez-
lished, that, if a sheriff seizes goods under ecution was levied, is competent as a wit-
a writ which it is his duty to return, he ness in an action against the officer who
has no justification unless he discharges levied the execution, for the money col-
that dutv." Hoar, J., in Williams v, Bab- lected. Giandstaff v, Ridgeley, SO Gratt.
bitt, 14 (>ray (Mass), 141. (Ya.) 1.
§ 599. DuoHW- The damaget to be recovered id an action
against the sheriff will, in general, be commensurate with the ex-
tent of the injury, (a) But in debt, for an escape on execution,
the measure of damages is the amount of the judgment, without
abatement on account of the poverty of the debtor, or any other
circumstancea.^ (h) And where tlie sheriff has falsely returned
bail, when he took none, and an action is brought against him for
refusing to deliver over the bail-bond to the creditor, he is liable
for the whole amount of the judgment, and cannot show, in miti-
gation of damages, that the debtor was unable to pay any part of
the debt ; for this would be no defence for the bail themselves,
and the sheriff, by his false return, has placed himself in their
situation.' But in other cases, though the judgment recovered by
the plaintiff against the debtor is prima facie evidence of the ex-
tent of the injury which the plaintiff has sustained by the oflScer's
breach of duty in regard to the service and return of the process,
yet it is competent for the officer to prove, in mitigation of the
injury, any facts showing that the plaintiff has suffered nothing,
1 Hawkiui 17. Plomer, 3 W. Bl. 1048 ; Alsept v. Eyles, 2 H. B1. 103, US ; lupra,
J 689 ; Bernard v. CommonveBltb, 4 LiCt 150 ; Johnsoo v. Levis, 1 Dana. 163 ; Shs-
well V. Fell, 3 Yeates, 17 ; 4 YeaWs. 47. Interest, from the date of the writ, niRy also
be computed. Whitehead v. Vamum, 14 Pick. 623. In aome of the United Slates,
the nils of the common law, that the wholo sum must be given, has been altered by
Btatntes abolishing the action of debt for an escape ; and the rule ia never applied, in
any State, to an action of debt npon the aheriS"B Dond.
3 SiinmoDa s. Bradford, 15 Maaa. S2.
(a) So, in an aclion REainst him for of the sunties. Bobiusoii v. People, 8 111.
neglect to levy on land, the measure of App. £79.
damages ia the amount that would hare [b) InNew York, theCiTilCode,§1GS,
come to the plaintiff cm a sale of tha land provides ia anbatAnce that in all ca««s
which ought to have beeD levied on. Uar- where the debtor is committed on Gnal pro-
ris D. Murfree, S4 Ala. 161. cess and escapes, the sberifT shall be an-
And in an action for neglecting to re- swerable for tne sum for which he was com-
tnm an execution, if it appears that there mitted, and restricts evidence in mitigation
was little available property of the juds- of damages to coses where tJie priaoner was
ment debtor, ■ judgment for the whole committed on mesne process. Donford t>.
■mount of the eiecntion is too large. Dol- Weaver, 21 Hun <N. Y.), 349 ; Smith e.
son V. Saiton, 18 N. Y. ijuprems Ct. S65. Snapp, 30 N. Y. 592 ; Ledyaid e. Jones,
But in such cases, the burden of proof S Seld. (N. Y.) 650.
is OD the officer to show that the loss is thus Thia ia probably the law generally,
limited. The presumption is, unless the though in some cases the language of the
contrary appears in the course of the evl- court taada towards drawing a distinction
dence, that the plaintiff suffered aloes e^oal between * negligent escape and a volautarj
to the whole amonnt of the ezecntion. escape, and allowing the defendant in the
Hoore v. Floyd, 4 Oreg. 101. former caaes to show the insolvency of the
So in an action against an officer for debtor in mitigation of damages, and not
taking a bad replevin bond, the plaintiff in the latter. State v. Mullen, 50 Ind. GSS;
can recover only the damages which he Slate v. Hamilton, 33 Ind. 502. Cf. CniDe
baa actually suffered by Uie iusafficiencj v. Stone, 15 Kaiu. 9i.
or but little, bj his unintentional default or breach of ivty.^ The
jury may give more than the amount of the judgment, if they be-
lieve that the wrong was vilfol on the part of the officer, by add-
ing to it the incidental expeuBes of the plaintifF, and the costs not
taxable. On the other hand, if it should be apparent that the
wrong done by tlie ofBcer was not the result of a design to injure,
and that by it the plaintiff is not placed in a worse situation than
he would have been in, had the officer done his duty, the jury will
be at liberty, and it will be their duty, to see that a humane or
mistaken officer is not made to pay greater damages than the
party has actually suffered by his wrong.* In cases, therefore;
of the latter description, the sheriff baa been permitted to show, in
mitigation of dam^es, that the debtor was poor, and unable to
pay the debt;' or that he might still be arrested as easily as
before, the sheriff having omitted to arrest him while sick and
afflicted ;* or that, for any other reason, the plaintiff has not been
damnified.' (a) If the action is for an escape on mesne process,
and the sheriff afterwards had the debtor in custody, the plaintiff
cannot maintaia the action, wltliout proof of actual damages.* In
the action for taking insufficient sureties, the plaintiff can recover
no more against the sheriff than he could have recovered against
the sureties.^
1 ETooa V. Utnen, 8U. & W. iS3, i73, per Lord Abiuger, C. B.; WiUums v.
HoBtfn, 4 M. J( W. 145. And see Wetd v. Bartiett, 10 Mun. 470 ; Oerrish o. EcUon,
1 N. H. 82 1 BuneU v. Lithgaw, 2 Haas. 626 ; Smith v. Hut, 2 Ba;, SS5.
■ Weld V. Bartlett, 10 Han. 470, 473, per Parker, J.
» Brooks c. Hoyt, 6 Pick. 488.
4 Weld «. Bartlett. 10 Mais. 470.
* Baker V. Green, 2 Bing. S17 ; Potter f. I^nsiiig, 1 Johni. 215 ; Biusell e. Tnraer,
7 Johns. 189 1 Yonngv. Hosmer, 11 Uosa. 89; Njev. SEiiith, Id. 188) Eaton *. Ogier,
3 Green). 40.
• PUnckn. Anderson, 6 T. R. 87, conBrmed in WiUiuns v. Moatrn, 4 U. ft W. 145,
154, where Baker v. Green, 2 Bing. 317, is, aa to thia point, OTermled. See also Bale*
V. Wingfield, 4 Ad. & El. n. b. 580.
T Evana v, Btander, 2 H. BL 547, confiroMd in Bkker v. Guratt, t Bing. M.
(a) Shippen «. Cdtt;, 8 Met (Ky.) 184. show tliat the prop«rtv, when aoM bj him-
But ID Casain v. Marehall, 18 CaL 686, in aelf at sheriff'a lale, broaglit full and (air
an action againat a sheriff for an illegal auction pricea, and what those pricea ao-
1«t;, although it appears that the plaintiff tually wat«, and that the sale was bj a
waa himself abont to have sold the goods competent auctioneer, wm properly re-
levied on at public auction, it was held jectod.
tittt evidence offered by the defendttnt to
TENDER.
§ 600. FlM of tender. The plea of tender admits the existence
and validity of the debt or duty, insisting only on the fact that
there has been an offer to pay or perform it. (a) And though the
contract be one vhich the Statute of Frauds requires to be in
writing, yet the plea of tender dispenses with the necessity of
proving it.' The general proposition maintained in the plea is,
tliat the defendant has dooe all that was in the power of any
debtor alone to do, towards the fulfilment ctf bis obligation ;
leaving nothing to be done towards its completion but the act
of acceptance on the part of the creditor. If the tender was of
money, it is pleaded with an averment that the defendant was
always and still is ready to pay it, and the money is produced in
court. But if the obhgation was for the delivery of specific chat-
tels, other than money, a plea of the tender alone, without an
averment of subsequent readiness to perform, is sufiicient; the
rule requiring only the averment of an offer and readiness to do
that which is a dischai^ of the obligation.'
§ 601. BConer. To support the issue of a tender of money, it
is necessary for the defendant to show that the precise sum," or
more, was actually produced in current money, such as is made
a legal t«nder by statute, and actually offered to the plaintiff.*
1 Middleton o. Brewar, 1 Peake, IE.
^ 2 Boll. Abr. G2S ; Taut tamps prist, A. i>L 1, 3, G ; Carle; v. Tsnce, 17 Man. 362.
* A tender of part of an entire demand u inoperative. Dixon v. Clark, C U. O. A
S. 365 ; 5 Dowl. & L. 1GB j Smith v. Anden, 21 Ala. 782.
* The camnt mouey of the United States, which is uiade a legsl tender by statnte,
eonsista of all the gold aod Bitver cainii of the United St&tes ; together with Snanidi
milteii dollara and their parts, at the rate of one hundred cents for a dollar, weighing
not leu than seventeen pennyweights and seven grains ; the dollars of Mexico, Peru,
Chili, and Central America, of not less weight than foar hundred and fifteen gtajos
each, at the same rate ; those restamped in Brazil, of the light weight, of not less fine*
(a) Bnt it admits the debt only to the that amount, but not for coats. If the
araonnt of the tender. Eaton t>. Wells, S2 money has not been paid into court, the
N. Y, S76. So it does in tort, if there be tender is invalid, jet tlie admissions of the
bat one cause of action set out in the plea still bind the defendant, and the
declanttion. Bacon c. Charlton, 7 Cuah, plaintiff may have judgment for the a-
(Maaa.) 681, GBS. The admission binds mount of the tender and costs. Mouioe v.
tbs defendant, and the pUinUff has a Chaldeck, 78 111. 128 ; Pillsbury «. Wil.
right to have jodgment entered for biu to longhby, SI Me. 27*.
592 LAW OF EYIBEKCE. [PABT lY.
§ 605. Tender most be absolnte. It most also appear that tlie
tender was absoluU : for if it be coupled with a condition, as, for
example, if a larger sum than is due be offered, and the creditor
be required to return the change ; ^ or if the sum be offered in
full of all demands ; ^ (a) or if it be on condition that the creditor
will give a receipt or a release;* or if it be offered by way of
boon, with a denial that any debt is due ; ^ or if any other terms
be added which the acceptance of the money would cause the other
party to admit, — the tender is not good.^ But if the creditor
places his refusal to receive the money on some other ground
than because it is coupled with a condition, this is evidence of a
waiver of that objection, to be considered by the jury;^ whose
province it is to decide whether a tender was made conditionally
or not.^ If there be several debts due from divers persons to the
same creditor, and a gross sum be tendered for all the debts, this
is not a good tender for any one of them.* But if there be several
creditors, who arc all present, and the debtor tenders a gross sum
to them all, sufficient to satisfy all their demands, which they
all refuse, insisting that more is due, it is a good tender to each
one.®
1 RoUnaon v. Cook, 6 Taunt. 886 ; Betterbee v. DaviB, 8 Campb. 70.
> Sutton V. Hawkins, 8 C. k P. 259 ; Mitchell v. King, 6 C. & P. 287 ; Cheminuit
V. Thornton, 2 C. & P. 50 ; Strong v. Harvey, 8 Bing. 804 ; £Tans v, Jndkina, 4
Campb. 166 ; Wood v. Hitchcock, 20 Wend. 47 ; Robinaon v. Fcrreday, 8 a & P. 762.
* Ryder v. Ld. Townsend, 7 D. & R. 119, per Bayley, J. ; Laing v. Header, 1 C. &
P. 257 ; Griffith v. Hodges, Id. 419 ; Thayer v. Brackett, 12 Mass. 460 ; Glasscott v.
Day, 5 Esp. 48; Loringv. Cook, 8 Pick. 48; Hepburn v. Anld, 1 Cranch, 821; Higham
V. Baddely, Gow, 218. But see Richardson v. Jackson, 8 M. & W. 298 ; Finch v.
Miller, 5 M. G. JB S. 428 ; Richardson v. Boston Chem. Lab., 9 Met 42.
* Simmons v, Wilmott^ 8 Esp. 94, per Ld. Eldon.
* Hastings v. Thorley, 8 C. & P. 573, per Ld. Abinger; Huxham v. Smith, 2 Campb.
21 ; Jennings v. Maior, 8 C. & P. 61 ; Brown v. Gilmore, 8 Greenl. 187. But, if the
condition be that the creditor shall do an act which he is bound by law to do upon
payment of the money, it is a good tender. Saunders v. Frost, 6 Pick. 259, 270. A
tender made " under protest " is absolute, and a good tender. Manning v, Lunn, 2 C.
& E. 13. So, if a tender is made as the whole tnat is due, it is sufficient. Henwood
V. Oliver, 1 Ad. & £1. n. s. 409 ; Ball v. Parker, 2 DowL N. 8. 845 ; Bowen v. Owen,
11 Jur. 972 ; 11 Ad. & £1. N. s. 180.
« Supra, §§ 601, 604 ; Richardson v. Jackson, 8 M. & W. 298 ; a. o. 9 DowL P. C.
715 ; Eckstein v, JReynolds, 7 Ad. & El. 80 ; Cole v. Blake, 1 Peake, 179.
7 Marsden v. Goode, 2 C. & E. 138 ; Eckstein v. Reynolds, 7 Ad. & El. 80.
8 strong 9. Harvey, 8 Bing. 804. « Black v. Smith, 1 Peake, 88.
(a) Where the defendant offered to pay have it for his claim. Tompkins v. Batie,
a promissory note if an action entirely 11 Neb. 147. A conditional tender, as it
unconnected with the note was discontin- amounts to no tender, will not prevent the
ued, it was held bad. Rose «. Duncan, 49 accruing of subsequent interest Flake «.
Ind. 269. Nuse, 51 Tez. 98.
It has been held to be a conditional So, if the amount due on a note is ten-
tonder where the defendant showed the dered on condition the note is surren-
plaintiff the money and told him he could dered. Storey «, Erewson, 65 Ind. 897.
PABT lY.] TENBEB. t
§ 606. To whom tender to be made. The tender must be mc
to the creditor himself, or to his agentj clerk, attorney, or serva
who has authority to receive the money .^ A tender to the att
ney at law, to whom the demand has been intrusted for eollecti<
or to his clerk, or other person having charge of his office t
business in his absence, is good, unless the attorney disclaims 1
authority at the time.' (a) And generally, if a tender be ma
to a person whom the creditor permits to occupy his place
business, in the apparent character of his clerk or agent, it is
good tender to the creditor.^ So, if it is sent by the debto:
house servant, who delivers it to a servant in the creditor's houi
by whom it is taken in, and an answer returned as from t
master, tliis is admissible evidence to the jury in proof of
tender*
§ 607. Time of tender. As to the time of tender, it must, in i
cases, by the common law, be made at the time the money becan
due ; a tender made after the party has broken his contract beii
too late, and tlierefore not pleadable in bar of tlie action ; ^ thouj
it stops the interest, and, by leave of court, the money may 1
brought in upon the common rule. (() But where the defendai
1 Ooodland v. Blewith, 1 Campb. 477. If the clerk or servant is directed not
receive the money, because his master has left the demand with an attorney for colle
tion, still the tender to him is a good tender to the prindpaL Moffat v. Parsons,
Taunt 807.
s Wilmot V. Smith, 8 C. & P. 468 ; Crozer v. Pilling, 4 B. & C. 29 ; Bingham
Allport, 1 Nev. & Man. 898. It is not necessary to tender also the amount of tl
attorney's charge for a letter to the debtor, demanding payment Kirton v, BraitI
waite, 1 M. & W. 810.
s Barrett v, Deere, 1 M. & M. 200. « Anon., 1 Esp. 849.
ft Hume V. Peploe, 8 East, 168, 170 ; City Bank v. Cutter, 8 Pick. 414, 418 ; Suffol
Bank v. Worcester Bank, 6 Pick. 108 ; Dewey v. Humphrey, Id. 187 ; Giles v. Hani
1 Ld. Raym. 254 ; Savery v. Goe, 8 Wash. 140; Gould v. Banks, 8 Wend. 562. Alitt
in Connecticut, Tracy v. Strong, 2 Conn. 659. In several of the United States provisio
has been made by statute for a tender of the debt and costs, even after action orouffhi
Rev. Stat. Massachusetts, c. 100, §§ 14, 15 ; Rev. Stat Maine, p. 767. And see Ha
V, Ousterout, 8 Ham. (Ohio) 585.
(a) Notwithstanding the disclaimer, if should also be offered by the defendani
he be in fact the attorney of the creditor Eaton v. Wells, 22 Hun (N. Y.), 12S
at the time, it is a good tender. Mclniffe Where the tender is made with a view t
p. Wheelock, 1 Gray (Mass.), 600, 604. A barring costs and interest, the amoun
tender of the amount due, and the cost of tendered need not be as laige as the amouD
the writ, if a writ has been made, is suffi- claimed by the plaintiff. It is only necei
cient, although the writ has been sent sanr that it should be as lai^ as the sux
away for service, if there is a reasonable which the plaintiff ultimately recoven
time to recall it Ixfjre it is served. CaUv. inclvding the costs. If it is smaller thai
Lothrop, 89 Me. 484. this, it wiU not be effectual. Wright t
(f>) The costs of the pUintiff, if the ten- Behrens, 89 N. J. L. 418.
der is made after some costs have been The. plea of tender must be accom
incurred by him in prosecuting hia claim, panied with a proftri t» cwria; but th
VOL. II. 88
1b Dot in mora, as, for example, if no ia.j of payment was agreed
apoQ, and the money has not been demanded, or if amends are to
be offered for an involuntary tresp&BB, proof of a tender, made at
any time before the suit is conunenced, is sofficient to support the
pleA of tender.^ In the case of domi^ie-feasant, a tender is good,
if made at any time before tiie beasts are impounded, though it
be after they were dlBtrained,'
§ 608. SnbMqtwnt demand and rafnaaL The pluntiff may avoid
the plea of a tender of money, by replying a tuh$equent demand
and re/iual; the burden of proving which, if traversed, lies upon
him. And he must show that the denmnd was made of the
precise sum mentioned in the replication, a variance herein being
fatal.' He must also prove that the demand was made either
by himself in person, or by some one authorized to receive the
money and give a discharge for it.* A demand made by letter, to
which an answer promising payment was returned, was in one
case held sufficient;'' but this has since been doubted, on the
ground that the demand ought to be so made as to afford the
debtor an opportunity of immediate compliance witli it." If there
be two joint debtors, proof of a demand made upon one of them
will support the allegation of a demand upon both.^
§ 609. TeadoT of apeoiflo artlolaa. Specific artieUt are to be
delivered at some particular place, and not, like money, to the
person of the creditor wherever found. If no place is expressly
mentioned in the contract, the place is to be ascertained by the
intent of the parties, to be collected from the nature of the case,
and its circumstances.^ If the contract is for the delivery of
goods, from the vendor to the vendee on demand, the vendor
> Watts t). Baker, Cm, Car. S6i.
> PUkiogtoD V. HBstings, Cto. El. 813 ; The Six Caiwotcn' Cut^ S Co. U7.
■ Rivera v. Griffiths, S B. & Aid. 6S0 ; Spjbe; t>. Hide, 1 C«Dpb. 181 ; Coorev.
Callaway, 1 Eap. US.
• Coles B. Bell, 1 Campb. 478, n. ; Coore v. Callaway, 1 Eap. 116; mpra, J 608.
» Hayward o. Hague, 4 Esp. »S. • Edwawla r. Yeatea, By. ft M. 850.
I Peirse i'. Bowlee, 1 Stark. 823.
< 2 Kent, Comm. SOS, G06 ; Poth. ObL No. G13; Goodwin v. Eolbrook, 4 Wand.
377 ; Howarf u. Miner, 2 Applet 826.
Minn t« pay monsy into court nndsr a of filing the ple^ Oilkeaon v. Smith, IS
pica of tender i» not a traTeraable part of W. Va. 44 ; PiJIabniy •, WUloDghbT, 81
the plea, to betried aa n question of hct He. 274. The plaiotiff has a ri^t to
to the jury. It is an irregularity of prac- have the mouey at any time ; and if ha
I. McQaw, ] 1 Alien (Haaa,), denianda it and it is refused, proof of this
brought into
money ebonld regularly be will defeat the plea of tender,
court not later than tlie time Hiner, 9S IlL 604.
being the mannfactarer of the goods, or a dealer in them, and no
place being expressly named, the manufactoiy or store of the
Tendor will be understood to be the place intended, and a tender
there will be good. And if the specific articles are at another
place at the time of sale, the place where they are at that time is
generally to be taken as the place of delivery.^ But where the
contract is for the payment of a debt in specific articles, which
are portable, such as cattle, and the like, at a time certain, but
without any designation of the place, in the absence of other cir-
cumstances from which the intent of the parties can be collected,
the creditor's place of abode at the date of the obligation will be
understood as the place of payment.' And on the same principle
of intention, a note given by a farmer, payable in "/orm produce"
without any designation of time or place, is payable at the debtor's
&rm. Indeed the same rule governs, in the case of a similar
obligation to pay or deliver any other portable specific articles on
demand; for the obligation ' being to be performed on demand,
this implies that the creditor must go to the debtor to make the
demand, before the latter can be in default." But wherever specific
articles are tendered, if they are part of a larger quantity, they
should be so designated and set apart as that the creditor may
see and know what is offered to be his own.*
§ 610. Same anbjeot If the goods are cumbrous, and the place
of delivery is not designated, nor to be inferred from collateral
circumstances, the presumed intention is that they were to be de-
livered at any place which the creditor might reasonably appoint ;
and accordingly it is the duty of the debtor to call upon the
creditor, if he is within the State, and request him to appoint a
place for the delivery of the goods. If the creditor refuses, or,
which is the same in effect, names an unreasonable place, or
avoids, in order t» prevent the notice, the right of election is
given to the debtor; whose duty it is to deliver tlie articles at a
reasonable and convenient place, giving previous notice thereof to
the creditor if practicable. And if the creditor refuses to accept
the goods when properly tendered, or is absent at the time, the
■ 2 Eeot, Comm. 60G, 606 i Poth. ObL Vo. 612 ; Qcodwln v. Holbrook, i Wand.
877 ; Howftrd e. Uioer, 2 Applet. S26.
* Ibid. ; Chipnun od Contracts, pp. 24-26 ; Ooodwin v. Holbrook, 4 Wend. 877,
SSO.
* 2 Kent, Comm. 608 ; Chipm«n on Coutr&otB, pp. 28-80, 19 ; Lobdell v. HopUn^
6 Coiran, GIS ; Goodwin s. Holbrook, 4 Wand. 880.
* Ytazty V. Baitaonj, 7 QreenL SI.
property, neverthelesB, paases to him, and the debtor is for ever
absolved from the obligation.^
§ 611. dung* of donloll*. By the Boman lav, where the
house or shop of the creditor was designated or ascertained as
the intended place of payment, and the creditor afterwards and
before payment changed his domicile or place of business to
another town or place, less convenient to the debtor, the creditor
was permitted to require payment at his new domicile or place,
making compensation to the debtor for the increased expense and
trouble thereby caused to him. But by the law of France, the
debtor may in such case require the creditor to nominate another
place, equally convenient to the debtor ; and, on his neglecting so
to do, he may himself appoint one ; according to the rule, that
nemo, alteriut facto, prwgravari debet} Whether, in tbe case of
articles not portable, but cumbrous, such removal of domicile
may, at common law, be considered as a waiver of the place, at
the election of the debtor, does not appear to have been expressly
decided.* (a)
§ 611 a. Mod* of tradsr of good*. In regard to the manner iff
lender of goodt, it is well settled that a tender of goods does not
mean an offer of packages containing them ; but an offer of those
1 2 Kent, Comm. C07-B09 ; Co. Lit. 210 b ; AMrich «. AlbM. 1 OreenL 120 ; How
■id V. Hin^r, S Appl«t, 32tl ; Chipmin on CoDtrscts, pp. Sl-58 ; Lamli v. L^thropt
18 Wend. 98. Whether, if tbe creditor ia oot of the Sute, no plico of deliTeiy hiTiiig
been agreed upon, this circimulji,Qce eivea to the debtor the nght of KppoiDttag the
piece, quan-t; and Be« Biiby c. WLitner, 5 GreenL 102; in which, Jiowerer, the
reporter's mKrginal Dote seema to state the doctrine a litUe broader than the decision
requires, it not being necewaty for the plaintiS', in that case, to stot any readiness to
receive the goods, at an; place, as the contnct VM for the pajmeat of a earn at money,
in specific articles, on or before a. day certain.
» Poth. on Oblig, No«. 238, 239, 618.
* See Howard v. Miner, 3 Applet. 325, 330.
(a) Where a person dengnedly absents cated, but did not tender the same, becaoaa
himself from home for the fraudulent pur- the wife of the obligor infonned him that
i)ose of avoiding a tender, he I« eatopped the obligor irss out of the State, and he is
rrom objecting that no tender was made, fact wsa oat of the State, it vraa held that
Southwortb V. Smith, 7 Cush. (Mass.) such abseaee excused the oUigse from
363 ; Gilmore v. Holt, 4 Pick. (Han. ] 258. further perforruance of hi* part ; that be
And where the penou whoee duty it is to vu not bound to inquire if the oblifof
malce tbe tender uses due diligence, but is had left any s^t to act for him in bi*
□nuble to Hnd the person to whom the absence ; it Deuig the duty of the obligor
tender should be made, or any person au- to appoint en aRent to act for him in his
thorized to act in his behalf, he aecom- absence, snd to notif; the obligM thereof.
plishe* all the law requires. Sonthworth Tasker i>. Bartlett, G Cnsh. (Hssl) SS»-
V. Smith, ubi lupra. And where the 368. See also Stone d. Sprsgne, 20 BarK
obligee, in a bond, was to "tender a. con- (S. Y.) GOB ; Holmes v. Holmes, 13 Id.
reyance" within a specified timt, and 187; Hewrj v. Raiman, SS Penn. St,
nithin that time went to the house of the SCt.
obligor with aach ooii*eyauce dnlj exe-
packages, under each circiunstADcea that the person who ia to
pay for the gooAs shall have an opportunity afforded him, before
he ie called upon to part with his money, of seeing that those
presented for his acceptance are in reality those for which he has
bargained.'
1 Ishenrood v. WUtmore, 11 U. & W. 347, 3G0. And tee B. a 10 H. ft W. 757.
TRESPASS.
§ 612. TreapuB to propnty. The evidence in actions of tres-
pass gainst the person hsTing already been considered, under
the bead of Assanlt and Battery, it remains in tbis place to treat
of the evidence applicable to actions of trespass npou property,
'whether real or personal.
§ 613. OiMt of aoUon lojorr to poHeMlon. Though tbe right of
property may and often does come in controversy in tbis action,
yet tbe gist of tbe action is tbe injury done to the plaintiffs po»-
aeation. (fl) The substance of the declaration therefore is, that
the defendant has forcibly and wrongfully injured tbe property in
tbe possession of the plaintiff ; and under the general issue the
plaintiff must prove, (1) that the property was in bis possession
at the time of the injury, and this rightfully, as against tbe de-
fendant ; and (2) that the injury was committed by the defendant
with force.
§ 614. FoMouion. (1) The poiiestion of tbe plaintiff may be
actual or constructive. And it is constructive when the property
is either in tbe actual custody and occupation of no one, but
rightfully belongs to tbe plaintiff, or when it is in tbe care and
custody of his servant, agent, or overseer, or in the hands of a
bailee for custody, carriage, or other care or service, as depositary,
mandatary, carrier, borrower, or the like, where tbe bailee or
actual possessor has no vested interest or title to tJie beneficial
use and enjoyment of the property, but, on tbe contrary, the
1, which IB faued Bolelj
taking hold of the /oat a pamnaunt title, will disprove ■ title
^ , jg'thBm from their owner, whichisnotsnpportedbypoeMssion. Toltea
or by exercising a control or authority v. Duncombe, St Mtcb. 101 ; Padgett v.
over them inconsiatant with their owner a Baker, I Tenn. Ch. 322 ; anU, S 303, n.
possession, Holmea e. Doane, 8 Gr»y So, when the plaintiff relied on a land-
(Maaa.), 329, 330 ; Coffin *, Field, 7 Cush, lord's lien on lihattela and a distniw war-
(Mass.) 35C ; Codman v. Freeman, 3 Id. rant, bat the jiuy Tonod that there was no
30fl. The question who is actually in actual possession, a tax lien will be ~^
posseision of the land or chattels is one of dent derence for the defenduit. "-*
bet fat tha jury. Berkeyo. ADinan,eiFa. «. Fitch, 66 DL Gl.
St. 181. If Iha plaintiff leliea on a paper
PART IT.] TBESPASS. 699
owner may take it into his own hands, at his pleasure. Where
this is the case, the general owner may sne in trespass, as for an
injury to his own actual possession, and this proof will maintain
the averment.^ (a) The general property draws to it the pos-
session, where there is no intervening adverse right of enjoyment.
And this action may also be maintained by the actual possessor,
upon proof of his possession de factOy and an authority coupled
with an interest in the thing, as carrier, factor, pawnee, or sher-
iff.^ A tenant at will, and one entitled to the mere profits of
the soil, or vestura terrcBj with the right of culture, may also sue
in trespass, for an injury to the emblements to which he is
entitled.* (6)
§ 615. Same snb]eot. The general owner has also a cangtrue-
five possession^ as against his bailee or tenant^ who, having a
special property, has violated his trust by destroying that which
was confided to him. Thus, if the bailee of a beast kill it, or if a
joint-tenant or tenant in common of a chattel destroy it, or if
1 1 Chitty on Plead. 188, 195 (7th ed.) ; Lotan v. Cross, 2 Campb. 464 ; Bertie v.
Beaumont, 16 East, 88 ; Aikin v. Buck, 1 Wend. 466 ; Putnam v. Wyley, 8 Johns.
432 ; Thorp v. Burling, 11 Johns. 285 ; Hubbell v. Rochester, 8 Cowen, 115 ; Root v.
Chandler, 10 Wend. 110 ; Oser v. Storms, 9 Cowen, 687 ; Wickham v. Freeman, 12
Johns. 188 ; Smith v. Milles, 4 T. R. 480 ; Corfield v. Coryell, 4 Wash. 887 ; Hingham
V, Sprague, 16 Pick. 102 ; Starr v. Jackson, 11 Mass. 519 ; Walcott v. Pomeroy, 2
Pick. 121.
3 Wilbraham v. Snow, 2 Sannd. 47 ; Id. 47, a, ft, n. (1), by WiUiams ; ColwiU v.
Reeves, 2 Campb. 575. See also Leishemess v. Berry, 38 Me. 80.
s Co. Litt. 4 h ; Wilson v. Mackreth, 8 Burr. 1824 ; Crosby v, Wadsworth, 6 East,
602 ; stammers v. Dixon, 7 East, 200 ; Stewart v. Doughty, 9 Johns. 108 ; Stultz v.
Dickey, 5 Binn. 285 ; Austin v. Sawyer, 9 Cowen, 89.
(a) Warren v. Cockran, 80 N. H. 879 ; which was not owned by them, and they
Heath v. West, 8 Id. 101 ; Schloss v. had erected a school -house on it and sub-
Cooper, 27 Yt. 623 ; Foster v. Pettibone, sequently took it off the land and moved
20 barb. (N. Y.) 850 ; Bailey v. Massey, it awav, it was held that the true owner
2 Swan (Tenn.) 167; Browning v. Skill- of the land could not bring trespass against
man, 4 Zabr. (N. J.) 851 ; Thomas v. them, because he had no possession. Car-
Snyder, 23 Penn. St. 515. But if there penter v. Smith, 40 Mich. 639. The same
is an adverne possession, it destroys the rale governs the extent of constructive
constructive possession. By a legal fie- possession in actions of trespass to the
tion, possession follows the title in the realty as in real actions. Thus, if one en-
absence of an actual possession by any ters wrongfully on unoccupied land, his
one, and this constructive possession is possession extends constructively over the
sufficient to enable the owner to maintain whole tract, but if another then enters on
trespass against a wrong doer. But there the same land under a colorable title, his
can be no constractive possession of lands, possession intercepts and ends the posses-
of which third parties are in actual ad- sion of him who entered tortiously, except
verse possession. Ruggles v. Sands, 40 as far as the /xMoesno peciif of the trespasser
Mich. 559 ; Davis v. White, 27 Yt 751. extends. Earl v. Griffith, 52 Yt 415.
Thus, where the officers of a school dis- (6) Morrison v. Mitchell, 4 Houst
trict had been for several years in actual, (Del.) 824 ; Kellenbeiger v. Stortevanti 7
entire^ and nndistorbed possession of land Cush. (Ma^.) 467.
600 LAW OP EVIDENCE. [PABT IV.
a tenant at will cuts down trees, the interest of the wrong-doer is
thereby determined, and the possession, by legal intendment,
immediately reverts to the owner or cotenant, and proof of the
wrongful act will maintain the allegation that the thing injured
was in his possession.^ So, if one enters upon land, and cuts
timber under a parol agreement for the purchase of the land,
which he afterwards repudiates as void under the Statute of
Frauds, his right of possession also is thereby avoided ab initio^
and is held to have remained in the owner, who may maintain
trespass for cutting tlie trees.^ And generally, where a right of
entry, or other right of posseasion, is given bj law, and is after-
wards abused by any act of unlawful force, the party is a tres-
passer ab initio ; ^ but if the wrong consists merely in the detention
of chattels, beyond the time when they ought to have been re-
turned, the remedy is another form of action.^
§ 616. Same sabjeot. But where the general owner has con-
veyed to another the exclusive right of present possession and
enjoyment, retaining to himself only a reversionary interestj the
possession is that of the lessee or bailee, who alone can maintain
an action of trespass for a forcible injury to the property ; the
remedy of the general owner or reversioner being by an action
upon the case.^ (a) Thus a tenant for years may have an action
of trespass for cutting down trees ; ® and a tenant at will may sue
1 Ck). Litt 57 a; Id. 200 (i» 6; 0>unte68 of Salop v. Oromnton, Cro. El. 777, 784 ;
8. 0. 5 0>. 13 ; PhUlipe v. Covert, 7 Johns. 1 ; Erwin v. Olmstead, 7 Cowen, 229 ;
Campbell v. Procter, 6 ( reenl. 12 ; Daniela v. Pond, 21 Pick. 867 ; Allen v. Carter, 8
Pick. 175 ; Keay v. Goodwin, 16 Mass. 1. Trespass will lie b^ one tenant in common
a^nst another, for any act of permanent iniury to the inheritance, soch as making
pits in the common, digging turfs, and the like, when not done in the lawful ezercisa
of a right of common. Wilkinson v. Haggarth, 11 Jur. 104. A tenant at will, by
refusing to quit the premises, becomes a trespssser. ElUs v, Paige, I Pick. 48 ; Rising
«. Stannard, 17 Mass. 282.
' Suffem V. Townsend, 9 Johns. 85.
* The Six Carpenters' Case, 8 Co. 145 ; Adams v. Freeman, 12 Johns. 408 ; Maloom
«. Spoor, 12 Met 279 ; Tubbs v. Tukey, 8 Cush. 488.
* Gardiner v, Campbell, 15 Johns. 401.
« 1 Chittj on Plead. 195, 196 (7th ed.) ; Lienow v, Ritchie, 8 Pick. 285.
* Evans v. £vans, 2 Campb. 491 ; Blackett v. Lowes, 2 M. & S. 499.
(a) Trespass will not lie by one tenant of this is that the plaintiff has not an
in common of a chattel against the others exdunve rifht of possession, evidence of
for breaking and entering the close and an infonmu partition which has been
taking crops. Owen v. Foster, 18 Yt. carried out by the tenants in fact, is ad-
268 ; Badger v. Holmes, 6 Gray (Mass.), missible, as a parol partition foUowed by
118 ; Silloway v. Brown, 12 Allen (Mass.), possession is sufficient to sever the posses-
80. But it wiU for an actual ouster. Er- sion so as to ^ve to each tenant the right
win V, Olmsted, 7 Cow. (N. Y.) 129 ; Mc- to the exclusive possession of hisproperty.
Gill V, Ash, 7 Pa. St 897 ; Thompson Grimes v. Butts, 65 111. 847 ; TonUin «.
V. Geirish, 57 K. H. 85. As the reason Hilyard, 48 IIL 800.
own the fences erected by himself,
^ the lessee of a chattel, for taking
the term ; * the leBBor or general
maintain this action for aa injnry
as in the possession of the lessee
■lu8ive enjoyment.* (a) But the
'and will not impair or affect the
Ward B. Hacanley, t T. S. 469 ; Gordon
; TotMj v. Wshstpr, S Johns. 1S8. Bat
s^nst ODe who has the exclusive right
le, to cot the KTua, if the latter should
^netrate into the lubaoil, and m iotar-
% IS Jdt. 1S5 1 G M. 0. fc 8. 533. If
'he Buhaoil, aa, by ridinff over it, the
■KB. Ibid, i Lyford v. Toothaker, 39
hat the father still had possession.
lorton P. Craig, 68 Me. 275, where
ived on «, fsrm owned by his wife,
ied it on aa if it were bis own, the
n was held to be still in her.
rtgBgee, not io possesaian, may
trespose eigBinst one who, under
from the inortgHCor, removes a
■ect«d on the land by the mort-
the execution of the mortgage
emit, n Cush. (Maes.USl);
the morteagor for cutting and
narket timber trees standing
lea. Page v. Kobinson, 10 IdT
) also White 0. Livingston,
thampton Paper Mills, &c
Met. (Mass.) 1 ; Perry r.
Cush. (Mass.) 237. The
r ■ mortgagee of real eitata,
ed judgiuent and possaa-
ire, can maintain treapaaa
It-law of the mortgagee,
nairying away wood and
mortgaged premises, the
the time necessary to
gage being wholly the
idministrator. Palmer
147, ISO. See also
nchard, 37 Me. 14;
Id. G2 ; Btaiedell v.
' (he bailee of a chat>
'ht, as against the
Tose of it, mortgage
own debt, and the
on nnder the mort-
rithout a previom
laybid, I Ciuh.
602 LAW OF EVIDENCB. [PABT IT.
possesBion of the owner of the soiL Thus, for example, the
existence of a public way over the plaintiff's land will not pre-
vent him from maintaining an action of trespass against a
stranger, who digs i^p the soil, or erects a building within the
limits of the highway ; ^ (a) and proof of the plaintiff's possession
of the land adjoining the highway is presumptive evidence of his
possession of the soil ab medium jUum vice.^ (()
§ 617. Same subject. Where the subject of the action is a
partition fence between the lands of two adjoining proprietors, it
is presumed to be the common property of both, unless the con-
trary is shown.* If it is proved to have been originally built
upon the land of one of them, it is his; but if it were built
equally upon the land of both, though at their joint expense, each
is the owner in severalty of the part standing on his own land.^
If the boundary is a hedge^ and one ditch, it is presumed to belong
to him on whose side the hedge is ; it being presumed that he
who dug the ditch threw the earth upon his own land, which
alone was lawful for him to do, and that th^ hedge was planted,
as is usual, on the top of the bank thus raised.^ But if there is a
1 Cortelyou v. Van Brandt, 2 Johns. 357, 363 ; Gidney v. Earl, 12 Wend. 98 ;
Grose v. West, 7 Taunt. 89 ; Sterens v. Whistler, 11 East, 51 ; Bobbins v. Borman,
1 Pick. 122 ; Adams v. Emerson, 6 Pick. 57 ; Perlev v. Chandler, 6 Mass. 454.
3 Cook V. Green, 11 Price, 786 ; Headlam v. Ueadley, Holt, Cas. 463 ; Grose v.
West, 7 Taunt. 39.
* Watshire v. Sidford, 8 B. & C. 259, n. a; Cubitt v. Porter, Id. 257.
* Matts V, Hawkins, 5 Taunt. 20.
^ Vowles V, Miller, 8 Taunt. 138, per Lawrence, J.
(a) Hunt V. Rich, 88 Me. 195. A (6) A railroad corporation, building
railroad corporation has a right to cut and maintaining as part of their road
the trees growing in the stnp of land a bridge across a rirer, in such manner
which they have taken for tneir road, as to obstruct the passage of the water,
whether such trees are for shade, oma- are liable to an action of tort by the
ment, or fruit, and whether such cut- owner of the land thereby flowed, unless
ting be at the time of lajring out their they show that they have taken reason*
track, or afterwards ; and the burden of able precautions to prevent unnecessai^
proof does not rest on the corporation to damage to his land. In such cases it is
show that the trees were cut for the pur- for the defendants to show that their acts
poses of the road. Brainard v. Clapp, 10 are strictly within the powers conferred
Cush. (Mass.) 6, 11. One person nad a by their charter. Mellen v. Western R.
right of way over another's land. The B. Corp., 4 Gray (Mass.), 301 ; Haxen 9.
owner of the soil, and the possessor of Boston, &c. R. R., 2 Id. 574. See also
the easement, joined in erecting a gate Brainard v. Clapp, 10 Cush. (Mass.) 6. And
across such way, the owner of the soil such a corporation is liaUe as a tres-
promising that it should remain. He passer, for entering upon land for the
sulwequently, without the consent of the purpose of constructing its road, if the
owner of the right of way, removed written location does not cover the land
the gate, and the latter brought trespass so entered upon. Hazen «. Boston, &c.
against him, and it was hdd that it R. R., 2 Gny (Mass.), 574, 581.
would not lie. Dietrich v. Berk, 24
Penn. St. 470.
ditch on each ridt of the hedge, or no ditch at all, the hedge is
presumed to be the common property of both proprietors.' If a
tree grows so near the boundary hne, that the roots extend into
the soil of each proprietor, yet the property in the tree belongs to
the owner of the laud in which the tree was originally sown or
planted.' But if the tree stands directly upon the liu6 between
adjoining owners, so that the line passes through it, it is the com-
mon property of both, whether it be marked as a boundary or not;
and trespass will lie, if one cuts it down without the consent of
the other.*
§ 618. Mora pouvHloii good agaiiMt stnuiB*!. It may further
be observed, that proof of an actual and exclusive potteieion by
the plaintifF, eTen though it be by wrong, is sufficient to support
this action againtt a inert itrtmger or wrong-doer, who has neither
title to tlie possession in himself, nor authority from the legal
owner.* (a) And where both parties rely on a title by mere pos-
session, without any evidence of a legal title, a contract by one of
them, to purchase the land from the true owner, is admissible in
evidence to show the character of his possession.^ So the posses-
sion of her bedroom by a female servant in the house, it seems
will be sufficient to entitle her to maintain this action against
the wrong-doer, who forces himself into it while she is in bed
there.' (() The finder of goods, also, and the prior occupant of
1 AwhboWi S. p. 328.
> Holdw c CMt««, 1 M. & Milk. 112 ; HwUn «. PoUU, 2 SolL Bap. 141. Sea
•Iw Dig. lib. xlviL tit. 7, L «, S S, with which urees the Initit, lib. it tit 1, | 31,
« t^gmaidtd by Prof. Cooper. See Cooper'i Jutiiuui, p. 80.
* Griffin v. Baby, 12 H. U. 454.
« Qraham «. Peat, 1 Eut, 244 ; Harker «. Birkbeck, S Suit. 1G5S, 1G68 ; Catterit
S. Cowper, 4 Taaot. G47 ; Rovstt v. Brown. 5 Biog. » ; Towmend v. Kenis, 2 Watts,
ISO i BanuMble t>. Thacher, S Met. 236 ; Shrewabory v. Smith, 14 Pick. 297 ; Fiake
«. Sicall, 12 SbepL 453 ; BrawD «. Ware, Id. 411.
* Uoore o. Moore, S ShepL 350. * Lewis ■e. Ponaford, S C. ft P. 687.
46 ; Clancy v. Hondlette, 80 Me. 4ei ;
T^MD V. Sbaeej, fi Md. G40 ; Linard v. the plaintilT cannot object to the iatro-
CroseUnd, 10 Tex. 46S ; Hnbbard *. duction of the Jrad. Woodride v. How-
Uttle, a Cosh. {Han.) 474; Bowley «. ard, S» Me. 160. And if the plaintilThBa
Walker, S Allen (Man.), 21 ; jntl, f 537 ; poaamaion, and the defendanta, withont
Eilborn v. Rewee, 8 Gray, 41G. So, m showing any title in tbemulrea or former
•gaiiut a wrong-doer, a pluntiSf na; relr poasesaion of theirs, offer idmisiiioiia iot
npon a poaacMoQ of the land dcacribed the plaintiff's vendor that the goods were
b the writ, by virtue of an oral li(;enBe ftsndulentl; sold to him, these admiasiont
bom the owner of the premiaea. Bnt in will not be received. Wnstlandv. Potter*
mch a caae, if the defendant offare to field. 9 W. Va. 438.
jnidiy under a writ of poeaeeaion fonnded {b) In thoae States where a married wo-
on a deed given by the owner ta ■ third man ia by law capable of btddisg property
604 LAW OP EVIDENCaB. [PABT IV.
land, or its produce, has a sufficient possession to maintain this
action against any person except the true owner.^ (a) And the
owner of the seashore has the possession of wrecked property,
ratione soli, against a stranger.^ The wrongful possessor, how-
ever, though he be tenant by sufferance, has no such remedy
against the rightful owner, who resumes the possession ; ^ (i)
though this resumption of possession will not defeat the prior
possessor's action of trespass against a stranger.^ (c)
§ 618 d. Description of olose. In trespass quare clausum fregit^
if the close is particularly described by its boundaries, it will be
necessary to prove them as laid ; for if one may be rejected, they
all may be disregarded, and the identity lost ; but it will not be
necessary to prove a title to the entire close.^ The identity, thus
necessary to be established, may be proved by the testimony of
any competent witness who is acquainted with the lines and
monuments of the tract.^
§ 619. Mere right of entry no poMeuion. But though SUCh
proof of possession, actual or constructive, will maintain the
1 2 Saund. 47 \ c, d, note by Williams ; Rackham v, Jessap, 8 Wila. 882.
' Barker v. Bates, 13 Pick. 255. But where a roll of bank-notes was dropped and
lost in a shop, by a transient stranger, and afterwards found and picked tip by another
customer, it was held that the latter was entitled to the custody of them, against the
shop-keeper, who claimed them ratione aoli: the plau where a lost article is found
constituting no exception to the ^neral rule, that the finder is entitled to the custody,
against all but the true owner. Bridges v, Hawkesworth, 15 Jur. 1079.
* Taunton v. Costar, 7 T. R. 481 ; Turner v. Meymott, 1 Bing. 158 ; Sampson v.
Henry, 18 Pick. 86.
^ Cntts V. Sprinff, 15 Mass. 286. In trespass qtuvre clatuum fregit, if title to the
freehold is asserted by each party, the burden of proof is on the defendant to make oat
that the title is in himself. If each party shows a title precisely equal to the other,
the defendant fails. Heath v. Williams, 12 SbepL 209.
« See ante, toI. i. § 62 ; Wheeler v, Rowell, 7 N. H. 515 ; Tyson «. Shaeey, 5
Hd. 540.
• Leadbetter v, Fitzgerald, 1 Pike, 488.
in her own rigbt, she has such possession family arrangement, one of a family oocu-
under deeds from her husband and herself pied and cultivated land belonging to
jointly to her son, and from her son to her- another, and took the care and support
self, in her own right, as will support an ac- of such owner upon himself, and that
tion of trespass affainst one wno does not the owner afterwards terminated the ar-
attempt to show title in himself, although rangement and gave the possessor notice
the transfer may have been fraudulenuy to quit, this is not proof tnat the tenancy
made to get the property out of reach was terminated so as to charge the pos-
of the husband's creaitors. Chicago v, sessor as trespasser, until the crops which
McOraw, 75 HI. 566. he has planted have been haryeeted.
(a) Neither party showing a paper title, Berkey v. Auman, 91 Pa. St. 481
the whole case must turn on the question (c) One who has only a right of way
of the date and nature of the several pos- over the loctta in quo cannot maintain
sessions, set up by the parties respectively, trespass ; it should be brought by the
Illinois, &c. Ry. Co. v, Cobb, 82 111. 188. owner of the fee. Moi^gan v. Boyes, 65
(6) Where there is proof that, by ' Me. 124.
PABT IT.] TRESPASS. 605
avennent of the plaintiff's possession, yet a mere right of entry on
lands is not sufficient. Hence a disseisee, though he may main-
tain trespass for the original act of disseisin, cannot have this
action for any subsequent injury, until he has acquired the
possesaioa by reentry; which wUl relate back to the original
disseisin, and entitle him to sue in trespass for any intermediate
wrong to the freehold.^ (a) Hence, also, a deed of mere release
and quitclaim, without proof of possession at the time by the
grantor, or of an entry by the grantee, though admissible in
evidence, is not sufficient to prove a possession.^
§ 620. Animals fero natuna. If the animals fercB natures are
the subject of this action, the plaintiff must show, either that they
were already captured, or domesticated, and of some value ; or,
that they were dead ; or, that the defendant killed or took them
on the plaintiff's ground ; or, that the game was started there, and
killed or captured elsewhere, the plaintiff asserting his local pos-
session and property by joining in the pursuit.^ But pursuit
alone gives no right of property. Therefore where one was
hunting a fox, and another, in sight of the pursuer, killed and
carried him off, it was held that trespass could not be maintained
against him.* (6) So, where the parties were owners of several
boats employed in fishing, and the plaintiff's boat cast a seine
1 Liford's Case, 11 Co. 51 ; 8 Bl. Comm. 210 ; Bigelow v. Jones, 10 Pick. 161 ;
Blood V. Wood, 1 Met 528 ; EeiiBebec Prop'rs v. Call, 2 Mass. 486. And see Taylor
9. Townsend, 8 Mass. 411, 415 ; Tyler v. Smith, 8 Met. 599 ; Kiug v. Baker, 25 Penn.
St. 186. But the disseisor does not, by the disseisin, acquire any right to the rents
and profits, nor to trees severed by him or by another from the freehold ; but the
owner may take them. Brown v. Ware, 12 ShepL 411.
* Marr v. Boothbv, 1 Applet 150.
' Ireland v. Higgins, Cro. £1. 125 ; Orymes v. Shack, Cro. Jac. 262 ; Churchward
V. Studdy, 14 East, 249; 6 Com. Dig. 886, Trespass, A. (1); Sutton v. Moody,
2 Salk. 556 ; Pierson v, Poot, 8 Caines, 175.
* Pierson v. Post, 8 Caines, 175.
(a) But if one lawfully entitled to pos- entiy in an action of trespass, though his
session can make peaceable entry, even wrongful entiy, combined with his paper
while another is in occupation, the entry, title, will prevent the disseisor from
in contemplation of law, restores him to bringing a writ of entry. Rawson v.
complete possession, and it is not unlawful Putnam, 128 Mass. 552.
for nim to resort to such means, short of if) But when a wild animal has been
the employment of force, as will render captured, it becomes the property of its
further occupation by the other irapracti- captor. Ulery v, Jones, 81 lU. 408.
cable. Cooley, Torts, p. 828 ; Steams v. A dog is the property of his owner in
Sampson, 59 Me. 568 ; Illinois, &c By. such a sense that ne may recover damages
Co. V. Cobb, 94 111. 55. from one who wrongfnUy kills the dog.
Where one who has a f^ood paper title and the value of the dog is for the jury,
conveyed to him bva disseised grantor on evidence to that point. Sprav «.
enters upon the land, and gets possession Ammerman, 66 III. ^9 ; HelBrodt «.
against the disseisor, he is liable for such Hackett, 84 Mich. 288.
606 LAW OP EVIDENCE. [PABT IV.
round a shoal of mackerel, except a small opening which the
seine did not quite fill up, but through which, in the opinion of
experienced persons, the fish could not have escaped ; and the
defendant's boat came through the opening and took the fish ; it
was held that the plaintiff's possession was not complete, and that
therefore he could not maintain trespass for the taking.^
§ 621. Forca. (2.) The plaintiff must, in the next place, prove
that the injury was eommitted by the defendant, with force. And
the defendant will be chargeable, if it appear that the act was
done by his direction or command, or by his servant in the course
of his master's business, or while executing his orders with ordi-
nary care; or if it be done by his domestic or reclaimed ani-
mals.^ (a) So, if the defendant participated with others in the
act, though it were but slightly ; or, if he procured the act to be
done by inciting others.^ (i) But it seems that persons entering
a dwelling-house in good faith, to assist an ofiicer in the service
of legal process, are not trespassers, though he entered imlaw-
fuUy, they not knowing how he entered.* So, if the defendant
unlawfully exercised an authority over the goods, in defiance or
exclusion of the true owner, as where, being a constable, he levied
an execution on the plaintiff's goods in the hands of the execu-
tion debtor, who was a stranger, taking an inventory of them, and
1 Young V, Hichens, 1 Dav. & Meriy. 592 ; 6. c. 6 Ad. & £1. N. 8. 606 ; pod^ toL
iii. § 168.
2 Gregory v. Piper, 9 B. & C. 691 ; Broughton v. VThallon, 8 Wend. 474 ; 6 Com.
Dig. 892, Trespass, C (1); Root v. Chandler, 10 Wend. 110. Whero the allegation
was, that the defendant strock the plaintifTs cow several blows, whereof she died, and
the evidence was, that, after the beating, which was unmerciful, the plaintiff killed
the cow to shorten her miseries, it was held no yariance. Hancock v, Southall, 4 D.
& R. 202.
s Flewster v. Royle, 1 Campb. 187 ; Btonehouse v. Elliott, 6 T. R. 815 ; Parsons v.
Lloyd, 8 Wils. 841 ; Barker v, Braham, Id. 868. Evidence of the conduct of the
parties before the trespass is receivable, if it bad reference to the trespass ; but evi-
dence of the conduct of one of several trespassers, long after the trespass, is not receiy-
able against the others. Newton v, Wilson, 1 C. & K. 687.
< Oystead v. Shad, 18 Mass. 620, 624.
(a) An attorney who directs a con- ratlBes it by taking the proceeds with full
stable as to the manner of making a levy knowledge. But tnis order or ratification
is answerable in trespass if the levy is must be proved ; there is no presnmptioii
unlawful. So if he adopts and ratifies that the constable was under the orders of
tiie acts of the constable ; as if, with full either the attorney or creditor. Buch-
knowledge that the levy is unlawful, he anan v, Goenig, 8 ill. App. 686.
takes the proceeds of tne sale from the (b) Those who volunteer to assist a
officer, and refuses to allow him to pay person in a trespass cannot be hesrd to
them to the true owner. Ferriman v. say that they did it in good faitii, not
Fields, 8 III. App. 262. The same is true knowing it to be a trwpaai. Wtllud «.
of the creditor who directs the levy or Worthman, 84 UL 446.
saying he vonld take them kwaj unless secarity were g^ven;
though he did not actually touch tiie goods, he is a trespasser.^ (a}
So, if the defendant were one of several partnerg in trade, and
the act vere done by one of the firm, provided it were of the
nature of a taking, available to the partnership, and they all
either joined in ordering it, or afterwards knowingly participated
in the benefit of the act, this is evidence of a trespass by all.^
But if a servant were ordered to take the goods of another,
instead of which he took the goods of the defendant, the master
will not be liable ; unless in the case of a sheriffs deputy, which
the law, on grounds of public policy, has made an exception.'
§ 622. Wrongrni intent It will not bo necessary for the plain-
tiff to prove that the act was done with any wrongful intent ; it
being sufficient if it was without a justifiable cause or purpose,
though it were done accidentally, or by mistake. * (ii) And
though the original entry or act of possession were by authority
of law, yet if a subsequent act of force be imlawfully committed,
such as would have made the party a trespasser if no authority or
right existed, be is a trespasser oft initio? If the authority were
a license in fact, the remedy is not in trespass, but in an action
I Wmtringham r. Lifov, 7 Cowen, 736 ; Miller v. Baker, 1 Het 27 ; Gibbt v.
Chwe, 10 Hiue. 1-2S ; RobinMiii v. Msnafield, 13 Pick. 139 ; PbUUps v. Hall, 8 WeDd.
eiO. And see BoTDton e. WilUnl, 10 Pick. 16S ; Baud v. Sttrgeuit, 10 SbepL 826.
* Petrie V. Lamont, 1 Car. & Mareli. 93.
■ HcHuioa V. CHckett, 1 East. 106 ; Oermnntown Railroad Co. v. Wilt, 1 Whart.
143 ; Fox V. Northern Liberties. 8 Watts ft Sere. 123 ; Saunderwon «. Baker, 3 Wils.
312 ; Ackvorth v. Eempe, I Doug. 49 ; OrinncU v. Pkillips, 1 Mass. 630.
* 1 Chitty on Plead. 192 (7th ed.); Covell v. Laming, 1 Campb, 497 ; ColwUl v.
Reeves, 2 Campb. S75 ; Baseley v. Clarkson, 3 Ler. 37 ; Himinson v. York, S Haas.
341 ; HaydrUE. Shed, 1] Maxa. 600, per Jackson, J.; Id. 60^ See Quile v. Swan. 19
Jolins. 381, where the owner of a balloon, which accidentally descended into the plain-
tiff's ^rden, was held liable in trespass.
* The Six Carpenters' Case, B Co. 146 ; Shoriand «. GoTett, G B. & C. 486 ; mpra,
} 616 ; Dye «. Leatherdale, S Wik. 20.
(a) IF the eTidence shows that an offi- liable; it is Bnffldent if the act done is
cer went outside his precept, as ir, when without a juetiGcatiou and is a trespass,
commuided to attach the goods of A, he Hazleton e. Week, 49 Wis. 661 ; Dei-
takcs the goods oC B, he U a trespasser; but ter v. Cole, 6 Wis. 319 ; Hobart v. Hag-
it he takes the identical goods described gett, 12 Me. 67. And it is no darence
in the writ, thouBli Uiey have been pre- to treroaia for catting timber on the
vioualy attached, iT the^ are still to all ap- plaintiff's land, that the plaintiff by
peanneeaintbe poBBCSBion of thedefendant miitake led the defendant to belieys that
named in his wnt, he is not liable in tre«- the timber was on his (the defendant's)
|lasa. Osgood v. Carrer, 43 Conn. 24. land. Pearson n. Inlow, 20 Mias. 322.
(t) The anthoritiea seem to he well set- See also L^ngdon «. Bruce, 27 Vt.
tied that the element of wilfolnea or 667 ; PfeiSer v. GroMmui, 15 lU. 68.
intent need not enter into the tnnwtc-
tion, in order to render the defendant
608 LAW OP BVIDENCB. [PAET IT.
upon the case.^ Nor is it necessary, in an action of trespass quare
clausum freffity to prove that the defendant actually entered upon
the land ; for evidence that he stood elsewhere, and shot game
on the plaintijGTs land, will support the averment of an entiy.*
And after a wrongful entry, and the erection of a building, for
which the owner has already recovered damages, the contintuxnee
of the building, after notice to remove it, is a new trespass, for
which this action may be maintained.^
§ 623. Foroe mtiBt be directly applied. It is essential to this
form of remedy, that the act be proved to have been done with
force directly applied^ this being the criterion of trespass ; but the
degree of force is not material.^ While the original force or vU
imprcBsa continues, so as to become the proximate cause of the
injury, the effect is immediate, and the remedy may be in tres-
pass ; but where the original force had ceased before the injury
commenced, trespass cannot be maintained, and the only remedy
is by an action on the case.^ (a)
§ 624. Tima The allegation of the time when the trespass was
committed is not ordinarily material to be proved ; the plaintiff
being at liberty to prove a trespass at any time before the com-
mencement of the action, whether before or after the day laid in
the declaration. But in trespass with a continuando^ the plaintiff
ought to confine himself to the time in the declaration ; yet he
may waive the continuandoj and prove a trespass on any day
before the action brought ; or, he may give in evidence only part
^ Ibid. ; Gushing v. Adams, 18 Pick. 110. Trespass does not He against a tenant
by sufferance, until after entry upon him by the lessor. Rising v, Stanuard, 17 liasa,
282 ; Dorrell v. Johnson, 17 Pick. %63. w hether the landlord may expel him by force,
and thereby acquire a lawful possession to himself, qiLcere ; and see Newton v. Harhmd,
1 Man. & Grang. 644, that he may not. But see, oon^o, Harvey v. Lady Brydgea^ 9
Jut. 759; 14 34. & W. 487.
s Anon., cited per Lord Ellenborough in Pickering v. Bud, 1 Stark. 56^ 58. Bat
see Keble v. Hickringill, 11 Mod. 74, 180.
* Hobnes v. Wilson, 10 Ad. & El. 508.
* Harvey v. Brydges, 14 M. & W. 437 ; State v, Armfield, 5 Ired. 207.
« 1 Ghitty on Plead. 140, 141, 199 (7th ed.) ; Smith v, Rutherford, 2 S. & B.
858.
(a) In Fallon v. 0*Brien, 12 R I. 518, our opinion in regard to it. We think it
where the action was for an injury received is clear that, unless the defendant inten-
by being kicked by the defendant's horse, tionally permitted his horse to be at laigo
which was at the' time straying on the in the street, trespass does not lie; for otbet^
street, the court says : *' The defendant wise the iiguiy, if it resulted from the de-
makes tiie point that the proper remedy, fendant's negligence, was a cotisequentbil
for the injuxy complained of by the plain- result of it, for which case is the pnmr
tiff, is case, not trespass. The case is not remedy. 1 Chitty, Pleading, 140. VL
formally before us on this point, but it may Brennan 9. Cazpenter, 1 R. L 474."
save unnecessary expense for na to express
-of the time in the eontimtondo.^ So, vhere a trespass is alleged
to have been done betveen a certiun day and the day of the com-
menoement of the action, the plaintiff may prove either one tres-
pass before tlie certain day mentioned, or as many as he can
within the period of time stated in the declaration ; bat he cannot
do both, and must vaire one or the other.^ (a) And in trespass
against several, the plaintiff, having proved l joint trespasp by
all, will not be permitted to waive that, and give evidence of
another trespass by one only;* nor will he be permitted, where
the declaration contains but one count, after proof of one tres-
pass, to waive that and prove another.* (&} So, where the action
» Co. Lit. 2B3 * ; Bull. N. P. 86 ; Webb v. Turner, 2 St». 1086 ; Homo v. OMacT«,
1 Stark. 851 ; Joralmton n. Pierpon^ Antb. i2.
' 2 Sclir. N. P. 1341, per Gould, J. ; Pierce v. Pickeni, Id Hoia. 470, 472. lu thU
case, tbe kw on thb subject wns tbus etated by JaoltBon, J.; "Oripniilly eTcry declara-
tion in tnspaa leemB to hare been conBoed to one dagle aet of trespass. When tbe
iltjury na3 at a kiud that could be continued without intermission, from time to time,
the plaintiff was permitted to declare with a corUinuando, and the whole was considered
M one trespass. In more modem times, in order to save the trouble and aipense of a
distinct wnt, or count, for every ditTervnt net, the plaintiff is permitted to declare, as
U done in this case, for a tre^iass, on divers days and timea between one day and
another ; and, in that case, he may pve evidence of any number of tresoasses witbin
the time speciSed. Snch a declaration is considered as if it contained a distinct count
for every different trespass. This is for tbe advantage and ease of the plaintitT ; but
he is not obliged to avail himself of the privilege, and may still consider hie declara-
tion ss containing one count only, and as confined to a single trespass. When it is
oonridered in that light, the time become* immaterial, and he may prove a trespass at
any time before the commeacement of the action, and within tbe time prescribed by the
statute of limitations.
" But it would be giving an andue advantage to the Tilaintifi' if he could avail him-
self of the dWaration in both of these modes, and would frequently operate as s sur-
prise on the defendant. He is, therefore, bound to make his election before be bt«ins
to introduce his evidpnce. He must waive the advantage of this peculiar form of dec-
laration, before he can be permitted to offer evidence of a trespass at any other time.
The rule, therefore, on this subject woe mistaken on tbe trial. It is not that the plain-
tiff shall not reamer for any trespass witbin the time specified, and also for a trespass
at BDOther time ; but be shall not give emdence ai one or more trespasses within tbe
time^ aod of aoother at another time."
■ Tait V. Harris, 1 H. & Bob. 282. See also Wynne v. Andetson, S C. Ji P. 606.
* Stante «. Pricket, 1 Carnpb. 578.
(n) In Massachusetts the rule nnder game effect under the commofi law. He-
tbe practice act is similar to that of the Diarmid v. Canithers, 31 Mich. i%.
coniiiion law, and when a trespass is al- (h) Unless tbe.plaintiff alleges that the
leged to hare been committed one day, and defendant trespassed continuoasly, or that
thence either continuously or at diviridaye he trespassed on divers days and times (as
and times to another day, the plaintiff, if the factn of the case may require), be will
lie relies on a single trespass, is not con- be conSned to proof of a single act of trea-
£ned to any day, but may prove it to have past, and if he alU^es that the trespass
been committed even before the first day waa continuous, be cannot prove too or
alleged, but if he relies on continuous or nwre ilistinct sod independent trespaasesl
npeated. trespaaseo, ha is limited to the he should insert other counts for the other
Kriod alleged. In the declaration (Ken- trespasses. Kendall v. Bay State Brick
11 V. BaySUte Bnck Co., 125 Mnas. 532j Co., 125 Mass. 532. Where two are sued
Powell v. Bagg, IS Cray, 507); and to tbe jointly for a treapMi i^on laud, and the
TOI. 11. 8S
610 LAW OP EVIDENCE. [PlRT IV.
is against three, for example, and the plaintiff proves a joint
trespass by two only, he will not be allowed to give evidence of
another trespass by all the three, even as against those two
alone.^ (a)
§ 625. Defences. In the defence of this action, the general issue
is not guilty ; under which the defendant may give evidence of
any facts tending to disprove either of the propositions which, as
we have seen, the plaintiff is obliged to make out in order to
maintain the action. Every defence which admits the defendant
to have been, prima fade, a trespasser, must be specially pleaded ;
but any matters which go to show that he never did the acts
complained of may be given in evidence under the general issue.
Thus, for example, under this issue may be proved that the plain-
tiff has no property in the goods ; or, that the defendant did not
take them ; or, that he did not enter the plaintiff's close. So,
the defendant may show, under this issue, that the freehold and
immediate right of possession is in himself, or in one under whom
he claims title ; thus disproving the plaintiff's allegation that the
right of possession is in him.^ But if he acted by license, even
from the plaintiff, without claiming title in himself ; ' or, if he
would justify under a custom to enter;* or, under a right of
way;^ or, if the injury was occasioned by the plaintiff's own
negligence, or was done by the defendant from any other cause^
short of such extraneous force as deprived him of all agency in
1 Hitchen v, Teale, 2 M. & Rob. 80 ; Sedley v, Satherland, 8 Esp. 202.
« 1 Chitty on Plead. 487 ; bodd v. Kyffin, 7 T. R. 854 ; Ai^nt v, Dununt, 8 T. B.
408. See also Monumoi t\ Rogers, 1 Mass. 159 ; Anthony v. Gilbert, 4 Blackf. 348 ;
Rawson v, Morse, 4 Pick. 127 ; Strong v. Hobbs, 12 Met 185. But where the plain-
tiff is in the actual possession and occupation of the close, the defendant will not be
permitted, under the general issue, to prove title in a stranger, under whom he does not
justify. Philpot v. Holmes, 1 Peake, 67 ; Carter v. John^n, 2 M. & Rob. 268. Nor
to give evidence of an easement, nor of a title by prescription. Ferris v. Brown, 8
Barb. S. C. 105 ; Fuller v. RouncevUle, 9 Foster (N. H.), 654.
s Milman v. Dolwell, 2 Campb. 878 ; Philpot v. Holmes, 1 Peake, 67 ; Buggies v.
Lesure, 24 Pick. 187 ; Hill v. Morey, 26 Vt. 178.
* Waters v, Lilley, 4 Pick. 145. » Strout t?. Beny, 7 Mass. 886.
declaration alleges joint trespasses on cer- See also Gardner v. Field, 1 Gray (MasB.X
tain days, there vasLj be a verdict against 151 ; Wilderman v, Sandusky, 15 111. 59 ;
both jointly, and a joint assessment ofdam- Grusing v. Shannon, 2 111. App. 326. But
ages, for trespasses in which they united; it is different on the question of damages,
but there cannot be a verdict against both If the action is against several jointly, for
jointly, and a separate assessment of dama- a trespass, if the plaintiff makes oat a case
ges against each for any tresiiasses commit- for exemplary damages against some and
ted by them separately at aifferent times, not others, he may dismiss as to the latter
Bosworth V, Sturtevant, 2 Gush. (Mass.) and have his recovery for exemplary dama-
892. ges against the former. Fiardridge v. Bnuly,
(a) Prichard v. Gampbell, 6 Ind. 494. 7 111. App. 689.
the ftct, ~- it cannot be shown under this issue, but must be
Bpecially pleaded.' (a) So, a dittregt for rent, when made on the
demised premises, may be shown under this issue ; but if it were
made elsewhere, or for any other cause, it must be justified under
a special plea.^ (h) Matters in discharge of the action must be
specially pleaded ; but matters in mitigation of the wrong and
damages, which cannot be so pleaded, may be ^ven in evidence
under the general issue.' (c) And it seems that a variance in the
description of the loeua in quo is available to the defendant under
this issue, as the allegation of place, in an action of trespass quare
dausum /regit, is essentially descriptive of the particular trespass
complained of.* But the variance, to be fatal, must be in some
essential part of the description ; and even the abuttals will not
be construed very strictly. Thus, if the close be described as
bounded on tlie east by another close, and the proof be, that the
other close lies on the north, with a point or to towards the east ;
or if it be on the north-east, or south-east ; * or if it be described
as abutting on a windmill, and the proof be that a higliway lies
between it and the windmill,^ — it will be sufficient.
§ 626. Plaa of llbarnm tanemeiitum. The plea of liherum tene-
mentum admits the fact that the plaintiff was in possession of the
close described in the declaration ; and that the defendant did
the acts complained of ; raising only the question whether the
1 I Chitty on Head. 437, 438 ; tapra, % S4 ; Gnapp v. Saktmrr, 8 Cinipb. BOO.
* 1 Chitty OB Plead. 439.
* Id. pp. 441, 44!. But where the defendant pleaded the general issae, to an action
for taking the plaintiff's gooda, it was recently held that he could not he permitted,
under this isiiDe, lo show in mitiK^tian of daniagee a repayment after action brought,
of the money produced by the Bale of the goods. Kundle v. Little, fl kd. tc EL H. a.
174.
• 8 Staphena, N. P. 2642 ; Wehber e. Eiohardi, 10 Uw Jonm. 293 ; 1 Sulk. 462,
per Holt. C. J.; Tavlore. Hooman, 1 Moore, 161; Harris v. Cooli, S Taunt. S39.
» Hildmsy v. Dean, 2 Boll. Abr. 67S ; SoberU v. Karr, 1 Taont. 495, 601, per
Heath, J.
• Nowell V. Sanda, 2 Roll. Abr. 677, 073. And see Dor e. Salter, 13 Eait, S ;
BrownloiT v. Tomlinson, 1 M. & O. 484 ; Walford v. Anthony, 8 Bing. 7G ; Lethbridge
V. Winter, 2 Bing. 49 ; Doe v. Hams, E M. & S. 326.
fa) Senecal v, Labsdie, 42 Mich. 126. lawful fence. He cannot take them dam-
(ft) In lUinais, and some of the Went- ajce-feasant anlesB he has such a fence.
«m States, where there are lar^e tracts of Oil v. Kowley, 69 111. 469 ; Illinois, &c
nnencloeed Unds. of little value, the Eng- Ry. Co. v. Arnold, 47 111. 173.
lish rnteg m lo distress of cattle damage- In Michigan, howcTer, the common.
feavant do not apply, hut it ia held that lav rule obUins. Hamlin e. Mat^ 83
cattle may run at large, and that an owner Mich. 103.
of land, to be able to recover for trespasses (e) Brig^ v. Mason, 31 Vt 433 ; C-ol-
eommitted by the cattle of otbera, must Una v. Perkins, Id. S24 ; Liuford ii. Lake,
■bow that he had enclosed hi* land with a 8 H. & K. 376.
612 LAW OF EVIDENGE. [PABT IV.
close described was the defendant's freehold or not.^ (a) And
his title must be proved either by deed or other documentarj
evidence, or by an actaal, adverse, and exclusive possession for
twenty years; inasmuch as, under this issue, he undertakes to
show a title in himself, which shall do away the presumption
arising from the plaintiJETs possession.^ Proof of a tenancy in
common with the plaintiff is not admissible under this issue.'
If the defendant succeeds in establishing a title to that part
of the close on which the trespass was committed, he is en-
titled to recover, though he does not prove a title to the whole
close ; the words ^^ the close in which," &c., constituting a di-
visible allegation.*
§ 627. Uoense to fact. The plea of license may be supported
by proof of a license in law as well as in fact ; and it is immaterial
whether it be expressed or implied from circumstances. Thus,
an entry to execute legal process, or to distrain for rent, or for
damage feasant; or an entry by a remainder-man, or a rever-
sioner, to see whether waste has been done; or repairs made ; or
by a commoner, to view his cattle ; or by a traveller, into an inn ;
or by a landlord, to take possession, after the expiration of the
tenant's lease; or an entry into another's house at usual and
reasonable hours, and in the customary manner, for any of the
ordinary purposes of life, — may be given in evidence under this
plea.* (6) So, an entry after a forfeiture by non-performance of
1 Cocker v, Crompton, 1 B. & C. 489 ; Lempriere v. Humphrey, 8 Ad. & EL 181 ;
Caruth v. Allen, 2 McCiord, 126 ; Doe v. Wright, 10 Ad. & El. 768 ; Ryan v. Clarke,
18 Jur. 1000.
« Brest V, Lever, 7 M. & W. 698.
■ Voyce V. Voyce, Gow, 201 ; Roberts v. Dame, 11 N. H. 226.
* Smith V. Royston. 8 M. & W. 881 ; Richards*. Peake, 2 B. & C. 918.
' 6 Com. Dig. 806, tit. Pleader, 3 M. 85 ; Ditcham v. Bond, 8 Campb. 524 ; Felt-
ham V. Cartwright, 5 Bing. N. C. 569.
A traveller on a highway which is made impassable by a sudden and recent obstruc-
tion may pass over the adjoining fields, so far as it is necessaxr to avoid the obstruction,
and doing no unnecessary damage, without being guilty of a trespass. Campbell v.
Race, 7 Cush. 408, 410 ; Taylor v. Whitehead, 2 Doug. 475 ; 8 Dane, Abr. 258 ;
Holmes v. Seely, 19 Wend. 507 ; Newkirk v. Sabler, 9 Barb. 652.
(a) If the defendant claims title under the exigencies of the case, and the weU-
the same person through whom the plain- established usages of a civilized and Chrts-
tifl* claims, the plaintiff need not prove tian community." Lakin v. Amea, 10
title in such person, as the defendant, by Cush. 198, 221. A person who holds
relying on him, admits that he had the himself out to the public as a wharfinger
title. McBumey V. Cutler, 18 Barb. 208. and warehouseman thereby licenses all
(6) **A license from a mother to a son persons to enter his premises who have
to open the family tomb to deposit therein occasion to do so in connection with his
the corpse of a deceased son will be im- business. But his business bein^ a merely
plied from the relationship of the parties, private one, he may terminate Uie general
covenants, the lease containing a clause that apon such non-
performance the landlord may enter and expel the tenant, may
also be shovn in tbe like manner.' Evidence of a famihar
intimacy in the family may also be given in support of this plea.^
So, if the plaintiff's goods, being left in the defendant's building,
were an incumbrance, and he removed them to the plaintiff's
close ; or if the plaintiff imlawfully took the defendant's goods,
and conveyed them within the plaiatifTs close, and the defendant
thereupon, making fresh pursuit, entered and retook them, — tbe
facts in either case funush, by implication, evidence of a license
to enter.3 (a) The mere circumstance that the defendant's goods
1 EsTsnigh V. Qndge, 7 Man. & Or. ai6 ; 7 Scott, N. B. 1026.
I Adama r. Freeauo, 12 Johns. 40S.
* Hex V. Sbevud, 2 M. t W, i2i ; Patrick v. Colerick, 8 H. ft W. 483.
license, by p^iog any peraoD notice not to v. Bnck, 2 T>ant. S02, S12. If the boat,
come an bis premUea ; and if tbe persoa being npoa land between high and low
M QotiQcd eaters on his pramiBCB, trespasa water mark, owned or occupied br the
will lie against him. Bogert v. Haight, pUintiff, was taken by the derendanta,
30 Barb. ^1. claiiaine it aa their own, when it waa not,
8o one who is mftlng logs apou a straam the plamtilf had a aufScient right of poa-
may go onon the banks for tbe pnrpoK of session to msEntaiu an action a^innt them,
dinng such acts as may be neceaaary to tbe Barker v. Betes, 13 Pick. 255 ; Dmiwich
auccesafol floating of the logs to their dea- v. Sterry, I B. & Ad. 831. But if, as the
tinaCion, and detaining them there, as to eTideuce offered by them tended to show,
attu:h ■ boom. Weise v. Smith, S Or. tbe boat was in danger of hciae carried off
445. Not, however, if the stream be avail- by the sea, and they, before the plaintiff
able for floating logs only in the time of had taken posseasion of it, removed it for
freaheia. Hubbard v. Bell, 54 111. 110. the purpose of saving it and returning it
And a person driving cattle along a high- to its lawful owner, they were not tree-
way, without negligence, is not a tresivtsser paaaera. In each a case, thoogii they had
bj entering upon an adjoining nnfenccd no permission from the plaintiff or any
patch to dnve back cattle whicn have ea- other person, they had an implied license
eaped from the highway. Hartford v. by law to enter on the beach to save the
Brady, 114 Haaa. 400. property. It is a very ancient rale of the
(a) In regard to the property in wreckt common law, that an entry upon land to
and goods driven ashore by the sea, and save goods that are in danger of being lost
the implied license to enter upon laud to or destroyed by water, fire, or any like
save such articles, the following opinion of danger, is not a treniaaa. 21 Hen. VII.
Gray, J., in Proctor v. Adams, IIS Haaa. 27, 2S, p. G ; Bro, Abr. Treapan, 218 ;
876, (rives the law very concisely : "The Vin. Abr. Trespass, (H. a. 4), pi. 24, ad
boat, having been oast ashore by the sea, Jin., (K. a.) pi. 8. In Dunwich v. Sterrj,
was a wreck in the atricCeat leral sense. 1 B. £ Ad. 831, Hr. Jnitice Parke (aft«^
S Black. Ckimm. IDS; Chase e. Corcoran, wards Baron Parke and Lonl Wensley-
lOfl Mass. 986, 2S6. Neither the finders dale) left it to the jnry to say whether the
of the boat, nor the owners of ths beach, defendant took the propertv for the benefit
nor the Commonwealth, bad any title to of the owners, or under a claim of his own,
the boat, aa against the former owner, and to put the plaintiffs to proof of their
Body of LibertiM, art SO; Ancient Chart, title."
211 ; 2 Mass. CoL R«c 143; SUta. 1S14, Suntiiig. — la England, by an almoat
c. 170 ; Rer. Sts. c 57 ; Oen. Stats, c nnivenal cnstom, or by the insertion of
SI ; S Dane's Abridg. 184, IBS, 138, 144 ; special clausea allowing it in the lease of
2 Kent, Comm. 322, 3G9. But the owner land, hunting over certain tracts of land is
of the Und on which the boat was cast was not a trespass. The view that is t^en of
under no du^ t« lave it for him. Snttoa thia Ml;)TCt in tlie United fitatas may be
614 LAW OF EVIDENGE. [PAET IT.
were upon the plaintiff's close, and therefore he entered and
took them, is not alone sufficient to justify the entry .^ But if
the owner of the land had sold the goods there to the defendant,
a license to enter and take them is implied in the contract.^ The
evidence must cover all the trespasses proved, or it will not sus-
tain the justification.^ So, if a Ucense to ere^ct and maintain a
wall be pleaded, and the evidence be of a license to erect only, the
plea is not supported.* Evidence of a verbal agreement for the
sale of the land by the plaintiff to the defendant is admissible
under a plea of license to enter, and may suffice to support the
plea as to the entry only ; but it is not sufficient to maintain the
plea, in respect to any acts which a tenant at will may not law-
fully do.^ Nor will such license avail to justify acts done after
it has been revoked.^
§ 628. Uoense in law. Under the plea of a license in laWj
the plaintiff cannot give in evidence a subsequent act of the de-
fendant, which rendered him a trespasser ah initio ; but it must be
specially replied.^ So, if the defendant justifies as preventing a
tortious act of the plaintiff, and the plaintiff relies on a license to
do the act, he cannot give the license in evidence under the gen-
eral replication of de injuria^ but must allege it in a special
replication.®
§ 629. Justification. Where the trespass is justified, under
civil or criminal process^ whether it be specially pleaded, or given
in evidence under a brief statement, filled with the general issue,
1 Anthony v. Harreys, 8 Bing. 186 ; Williams v, Morris, 8 M. & W. 488.
s Wood V. Manley, 11 Ad. & £1. 84 ; Nettleton v. Sikes, 8 Met. 84.
* Barnes v. Hunt, 11 East, 451 ; Symons v, Hearson, 12 Frice, 869, 890, per
Hollock, B.
« Alexander v. Bonnin, 4 Bing. N. C. 799, 818.
* Carrington v. Roots, 2 M. & W. 248 ; Cooper v. Stower, 9 Johns. 881 ; Suffem v.
Townsend, Id. 85.
< Cheever v. Pearson, 16 Pick. 266 ; Taplin v. Florence, 8 Eng. Law & £q. 520.
f Aitkenhead v. Blades, 5 Taunt 198. And see Taylor v. Cole, 8 T. R. 292, 296,
per BuUer, J. ; Six Carpenters' Case, 8 Co. 146.
> Taylor v. Smith, 7 Taunt. 157. See post, §§ 682, 683.
gathered from the language of Sibley, J., as to permit parties to trespass with irn*
m Glenn v, Kays, 1 III. App. 479. The punity on the enclosures of their neighbors
defence set up was, that the hunters, who under such a plea, the fundaroental prin-
kept a pack of hounds, at the time of com- ciples upon which it is based should be
pursue the game with their dogs into erty except
and through the plaintiff's enclosures, their hounds may desire to make use of it
against his objections. The judge says, in the pursuit of game that is oonsideied
" Whenever the law shaU be so oonstrded dangerous."'
PABT lY.] TRESPASS. 616
the party most prove every material fact of the authority under
which he justifies. If the action is by the person against whom
the process issued, it is sufficient for the officer who served it to
prove the process itself, if it appear to have issued from a court
of competent jurisdiction, under its seal, and to be tested by the
chief justice, or other magistrate, whose attestation it should bear,
and be signed by the clerk or other proper officer. And if it is
mesne process, and is returnable, he should in ordinary cases show
that it is returned ; unless he is a mere bailiff or servant, who is
not bound to make a return.^ (a) But in trespass against the
plaintiff in a former action, or against a stranger, or where the
action is brought by a stranger whose goods have been wrongfully
taken by the sheriff, under an execution issued against another
person, the sheriff or his officers, justifying under the process, will
be held also to prove the judgment upon which it issued.^ (6) If
the defendant in fact had the process in his hands at the time, he
may justify under it, though he then declared that he entered the
premises for another cause.^
§ 630. Defence of one's own. If the defendant justifies the de-
struction of the plaintiff's property, by the defence of his own^ he
must aver and prove that he could not otherwise preserve his own
property.* If, however, the plaintiff's dog were killed in the act
1 Britton v. Cole, 1 Salk. 408 ; 1 Ld. Raym. 305 ; Barker v. Miller, 6 Johns. 196 ;
Blackley v. Sheldon, 7 Johns. 32 ; Crowther v, Ramsbottom, 7 T. R. 654 ; Cheasley v.
Bamea, 10 East, 78 ; Mlddleton v. Price, 1 Wils. 17 ; Rowland v. Veale, Cowp. 20.
s Martyn v. Podger, 5 Burr. 2631 ; Lake v. Billera, 1 Ld. Raym. 783 ; Britton v.
Cole, 1 Salk. 408, 409.
* Crowther v. Ramsbottom, 7 T. R. 654.
* Wright V. Ramscott^ 1 Saond. 84 ; Vera «. Cawdor, 11 East, 668 ; Janson v.
Brown, 1 Campb. 41.
(a) TwitcheU v. Shaw, 10 Cush. (Mass.) larly carried oat Thus, the plaintiff in
46 ; Fisher v. McGirr, 1 Gray (Mass.), 1 ; an attachment suit may justiiy a taking
Kennedy v. Doncklee, Id. 72 ; Ross v. of defendant's goods under a valid attach-
Philbrick, 39 Me. 29 ; Eeniston v. Little, ment, although the subsequent judgment
80 N. H. 318 ; Edmonds v. Buel, 23 and sale on execution are invalid because
Conn. 242 ; Billings v. Russell, 23 Penn. the attachment defendant was not prop-
St. 189. A process beins void, the party erl^ served. Grafton v. Carmichael, 48
who sets it in motion, and all persons aid- Wis. 660 ; Stonghton v. Mott, 25 Vt. 668 ;
ing and ai^tin^ him, are prima facU Eaton v. Cooper, 29 Vt. 444.
trespssaers for seizinff pro^rty under it; {b) If the officer has wron^^fully sold
and acts which an officer might justify un- goods on execution, and justifies under
der process actually void, but regular, and that execution, he will be held to have
apparently valid on its face, will be tres- waived the defence that he might have
passes as aflainst the party. Kerr r. had by virtue of the writ of atUu^hment
Mount, 28 !n . Y. 659. But it is not under which he ori^ally took the goods,
necessary for the officer's, or creditor's, or and cannot give evidence of it. Clarkson
attorney 8 justification under process of v, Cnimmell, 37 N. J. L. 641 ; Philips v.
law, that he should show the subsequent Biron, 1 StnL 509 ; Addis. Torts. 658.
proceedings in the suit to have been regu-
616 LAW OP EVIDENCE. [PABT IV.
of pnrsmng the defendant's deer in his park, or rabbits in his war^
ren, or poultry within his own grounds, this will justify the killing
without proof of any higher necessity.^ (a)
§ 631. Right of way. Where the issue is upon a right of way,
the defendant must prove either a deed of grant to him, or those
imder whom he claims, or an exclusive and uninterrupted enjoy-
ment for at least twenty years.^ If the issue is upon a right to dig
and take gravel or other material for necessary repairs, the defend-
ant must allege and prove that tiie repairs were necessary, and
that the materials were used or in the process of being used for
that purpose.^
§ 682. Same snbjeot. Basement. If a right of way, or any
other easement, is pleaded in justification of a trespass on lands,
whether it be in the defendant himself, or in another under whose
command he acted, the plaintiff cannot controvert this right by
evidence under the general replication of de inguria sua, but must
specifically traverse the right as claimed.^ And where a right of
way is claimed, under a non-existing grant from a person who
was seised in fee, and the plaintiff traverses the grant, he cannot,
under this issue, dispute the seisin in fee for the purpose of rebut-
ting the presumption of a grant, for it is impliedly admitted by
the replication.^
§ 633. Reply to JnstifioatloxL Wherever the defendant pleads
matter of fact in justification, as distinguished from mere matter
of record, title, or authority, it may be traversed by the plaintiff,
by the general replication de injuria sua absque tali causcL^ This
replication being a traverse of the whole plea, the plaintiff is at
^ Barrington v. Turner, 8 Ler. 28 ; Wadhunt v. Damme^ Cro. Jae. 45 ; Janaoa v.
Blown. 1 Campb. 41 ; Vere «. Cawdor, 11 East, 668, 569.
s Hewlins v. Shippam, 5 B. & B. 221 ; Cocker v. Cowper, 1 Cr. M. & B. 418. See
aupra^ tit. Prescription, §§ 537-546.
* Peppin V, Shakespeare, 6 T. R. 748.
« Cogato's Case, 8 Co. 66. And see Lowe «. GoTStt, 8 B. & Ad. 868.
* Cowlishaw v. Cheslyn, 1 C^. & J. 48.
* See Gould on PleacQng; ch. viL §§ 26-80.
(a) The evidence must show that there of person or property ; and in ease of
was an apparent necessity for the defence, defence of domestic anfmals finom the at-
honestly oelicTed to be real, and then the tacks of other animals, the relatiTe value
acts of defence must be in themselves of the animals may be a proper cireiun-
reasonable. The consequences of the pro- stance for the juiY to consider in arriving
posed act to the am^essor should be at a conclusion whether Hie defence was a
considered in connection wiUi the oonse- reaaonable one under the cireumstanoes.
qnences of non-action to the party defend- Anderson v. Smith, 7 IlL App^ 854 ; Ooo*
ing, whether the defence be made in favor ley on Torts, | 846.
Ubert; under it to addnce aoj evidence diBproTing the facte
alleged in the plea. But he cannot go into any evidence of new
matter which shows that tike defendant's allegation, though true,
does not justify the trespass. Thus, in an action for trespass and
false imprisonment, if the defendant justifies the commitment as
a magistrate, for an offence which is bailable, to which the plain-
tiff replies de iitjuria, he cannot, under this replication, avoid the
justification by evidence of a tender and refusal of bail.' So, if
the defendant justifies an assault and battery by the plea of ion
tutavlt demesne, and the pUuntiff replies de imjuria, he will not be
permitted to show that the defendant, having entered the plain-
tifTs house, misbehaved there.' Thus also, in trespass by a ten-
ant, against his landlord, for turning bim out of possession, where
the defendant pleaded a fact by which the lease was forfeited, to
which the plaintiff replied de ii^uria, it was held, after proof of
the fact of forfeiture, that the plaintiff under this replication could
not prove the aocepbince of rent by the defendant as a waiver of
the forfeiture, for he should have replied it specially, in avoidance
of the plea.^ The general rule is, that all matters which confess
and avoid, whether alleged by the plaintiff or defendant, must be
specially pleaded ; otherwise, the proof of them is not admissible.*
§ 634. eam« BBbjAot The same principle applies to all cases
where the defendant justifies the trespass by a plea answering the
gist of the action, and the plaintiff would avoid the plea by prov-
ing that the defendant exceeded the authority under which he
acted, and thus became a trespasser ah tntti'o. In such cases the
plaintiff cannot show the excete, under a general replication ; but
must distinctly allege it in a special replication, in the nature of
a new atngnmentfi (a) Thus, in treapass for taking and impound-
ing tlie plaintiff's cattle, where the defendant justifies for that he
took them damage-featant, the plaintiff will not be permitted,
> Sayre r. E. of Rochfon), 2 W. BL 1166, llf», per De Qraj. C. J.
■ King V. Phippard, Corth. 280. • Wamll o. CUra, 2 Campb. 638.
* 2 Stark. £r. 82S ; Hetlield r. Ceotral RaUw., G Dutch. S7l.
• OouJd on Pleading, ch. vi part 2, { 110 \\ ChiMy on Pleading, pp. 513, BIB,
012-652 ; HonpriTatt e. Smith, 2 Campb. 176 ; WanoII v. Clare, Id. 639.
(a) This, of coniM, doea not apply to tha teit, even when tha Miamon-lkw
eaaea where tha otSeer faw letisd on the nilea of pleading havs baooma mnoh r^
property of a ilnngar. Lincoln x. Uo. lazed, nnleaa it ia agreed by the partin to
Langblin, 71 111. II. Tbe courta in the diapenae with mob plea, Lincoln «. Ho
ii..i._i o... ,. =j_ jj p,op„ Laoghlin, Mipm; Cbmp e. Qanley, 6 lU.
■tat«d in App. tf ».
618 LAW OF EVIDENCE. [PABT IyI
under a general replication, to prove that the defendant abused
one of the beasts, so that it died, whereby he became a trespasser
ah initio ; for he should have specially replied the excess.^ So, in
trespass for breaking and entering the plaintiff's house, and ex-
pelling him from it, where the defendant justified the breaking
and entering, under a writ of fieri facia%j which, it was held, cov-
ered the expulsion, it was also held, that the plaiutiff could not
be permitted to rely on the expulsion as an excess, without spe-
cially replying it.' The replication of excess admits the justifi-
cation as alleged, and precludes the plaintiff from offering any
evidence to disprove it.*
§ 635. New a— ignment. If a justification is pleaded, and there-
upon the plaintiff makes a new asinffnmentj to which the defendant
pleads not guilty, if the plaintiff proves only one trespass, he must
also clearly show that the trespass proved is a different one from
that mentioned in the plea ; for if the circumstances are alike, the
jury will be instructed to presume it to be the same.^
§ 635 a. Damagos. The nde of damage9 in this action has
already been discussed in treating the subject of Damages ;^(a)
where we have seen that the declaration involves not only the
principal transaction, but all its attendant circumstances, and its
natural and injurious results ; all of which are put in issue by
the plea of not guilty. Upon this principle it has been held, in
trespass quare clausum /regit j where the defendant's sheep tres-
passed on the plaintiff's close, and conmiingled with his own, that
evidence of a deadly disease, conmiunicated by the defendant's
flock to the plaintiff's, was admissible, as showing part of the
damages which the plaintiff was entitled to recover. And the
knowledge of the defendant was held inmiaterial to be proved,
imless to increase the damages.^ And generally, where the plain-
1 Gates V, Bajley, 2 Wils. 813 ; Gaigraye v. Smith, 1 SaLk. 221 ; BalL K. P. 81 ;
Koore v. Taylor, 5 Taunt. 69.
« Taylor v. Cole, 8 T. R. 292, 296.
s Pickering v. Rudd, 1 Stark. 56 ; 4 Campb. 219.
« Darby v. Smith, 2 M. & Rob. 184. * See supra, f§ 254, 256, 266, 26S.
0 Bamnm v, Vandusen, 16 Conn. 200.
(a) It is not necessary that damages measare of damages is the difference be-
which natarally and necessarily result tween the yalae of the land before it was
from the injury complained of, sbonld be deprived of the timber, and its Talue after*
specially averred, in order to allow the wards ; and evidence may be given of these
introduction of evidence of them ; e, g., values. Aigotsinger v. Vines, 82 N. Y.
when timber has been cut off land, and 808 ; Jutte v. Hoghes, 67 K. Y. 267.
the action is trespass quare elausumf the
PABT IV.] TBB8PASS. 61
tiff has been deprived of the use of his property for a time, bj th
act complained of, the yalue of the use, during such period, is t
be taken into the estimation of damages ; ^ the return of the prof
erty to the owner's possession, and his acceptance of it, being avai.
able to the wrong-doer only in mitigation of damages, but not i
bar of the action.^ So, if the value of the property has been la^
fully applied to the owner's use, this, as has been seen in anothe
place, may be shown to reduce the damages.' (a)
1 Warfield v, Walter, 11 O. & J. 80; Hammatt v. Russ, 4 Shepl. 171.
« Hanroer v, WUsey, 17 Wend. 91 ; Coffin ». Field, 7 Cush. 860.
' See tufra^ §§ 272, 276. It is agreed, that, where the property has gone to th
Slain tiff's use, by his consent, either express or implied, this will avail to rednce hi
amages. But several of the cases seem to turn on the question, whether the propert,
was 80 applied by the wronff-doer himself, or by a mere stran^r. And upon this dis
tinction it has been held, where property was taken upon an illegal process aoainst th
owner, for which taking an action of trespass was commenced against the crMitor wh
directed it, and afterwards a legaX process was sued out, under which the same property
which had not ffone bock into the owner's possession, was seized and sold for nis debt
that the defenuant was not at liberty to prove this fact in mitigation of damages, i
being a mere act of his own. Hanmer v. Wilsey, 17 Wend. 91. The like point, upoi
the same distinction, was again decided in Otis v. Jones, 21 Wend. 894. So, wher
one wrongfuUv took goods under a belief of right so to do, and they were afterward
taken out of his hands by distress for rent due from the owner to his landlord, it wa
held, in an action of trespass brought by the owner against the tortfeasor, that th*
latter might show this fact in mitigation of damages, because of his belief of his righ
to take the goods. Higgins v. Whitney, 24 Wend. 879. And, still later, in an actioi
against a sheriff for an unauthorized seizure of goods under a fieri facias^ he wai
permitted to show, in mitigation of damages, that the goods were afterwards takoi
from his custody, and lawfully sold on a distress warrant issued against the plaintiff it
favor of a third person ; the sale being independent of any agency of the defendant
Sherry v. Schuyler, 2 Hill (N. Y.), 204.
Otlier courts, however, have held, that, wherever the property has been applied t(
the plaintiff 's use, this may be shown in mitigation of damages. See Irish v. Cloyes,
8 Vt. 30, 88.
But this rule will generally be found to have been applied only in cases of illegal
seizures or sales of goods bv officers, who have subsequently either regularly sold the
goods, or applied the proceeds of the irregular sale in satisfaction of final process againsi
the owner. Such were, in substance, the cases of Farrar v. Barton, 5 Mass. 895 ; Pres-
oott v. Wright, 6 Mass. 20 ; Pierce v. Beivjamin, 14 Pick. 356 ; Daggett v. Adams, 1
Greenl. 198; Board v. Head, 8 Dana, 489, 494 ; Stewart v. Martin, 16 Vt. 897. Even
where the defendant was a mere trespasser without pretence of title, he has been
permitted to show, in mitigation of damages, that the goods had been dulv taken out
of his hands and sold 1^ an officer, by virtue of a legal precept against the plaintiff.
Squire v. Hollenbeck, 9 Pick. 551 ; Ealey v. Shed, 10 Met. 817.
(a)
if the
0 In trespass for assault and battery, lar v. Nellis, 60 Barb. (N. Y.) 524 ; Davis
le person commit violence at a time v. Franke, 83 Gratt. (Va.) 413.
when he is smarting under immediate It seems that punitive damages are al-
provocation, this may be proved in mitiga- lowed in trespass, where tiie act is ma-
tion of damages. Tyson v. Booth, 100 Mass. lidous or reckless. Becker v. Dupree, 75
260 ; Sedgwick, Dam. 568. And where Bl. 167 ; Huftalin v. Misner, 70 til. 55.
the acts done or words spoken some time In mitigation of such damages, acts ol
previous to .the assault, are part of a series the plaintiff which tend to provoke such
of provocations, repeated and continued trespasses may be given in evidence. Wes-
up to the time of the assault, they may all ton v. Gravlin, 49 Vt. 507 ; Prentiss v.
be received as part of the rw gedce, »tet- Smith, 58 Me. 427 ; Wilson v. Young, 81
Wis. 574*
Perhap* the tni« prindpla will be foutd to be thU : that, where Qu apprapnation
of the good* or their value to the plaintifl'B use wu by bis coUHlit, exprcBaed or
implied, it goei in redaction at the damages ; it being in the nature of a retam and
acnptaiiee of the gooda ; and that inch coiueDt ma; alwa^ b« implied where the p>oda
have been legally seized and sold under proceee eninat hun. If the appropriation wai
made in anj other manner, hia consent may be uown by any oTidence of a nibaequent
ratification ; nich as claiming the benefit of it, if it wen oclivered in payment to hi*
own creditor, or the like.
In trcipaas d» bmU luporlatit, if the jmj find for the plaintiff, the goodi being itill
out of hia poaseaeion, they muat award hJTH the Talne of the goodji ; they cannot award
damsgea for the taking alone, on the groand that the gooda are Etill the property of the
plaintitL Wooiley v. Carter, 2 HalsL SC. Bnt if the pUintiff hu raoetied the good*
■gain, it ia otberwiw. Uenill v. How, 11 ShepL 194.
TBOTEE.
§ 686. Natnis of th« aotioii. This action, the form of which is
fictitious, is in sobstance a remedy to recover the value of per-
sonal chattels, (a) wrongfully converted by another to his own
use. To entitle the plaintiff to recover, two points are essential
to be proved : (1) property in the plaintiff,* (6) and a right of
1 Pn Ld. ICinifisld, 1 T. B. 6S. S« aUo 2 Saoiid. 47 o to 47 k, note (1).
(a) Ak this Action ia for the danutge to Wben, however, the eridence offered
Kraonal propert;, it will not lie in ef^f>f*i Bhowi that real property has been seveNd
: chattels attstiied to the realty in Bucfa fnaa the realty, — e. g. crop* which have
a nuinner bb to fonn part of it, or foi fix- been reaped, — it will support an actioa
turen ; and the queatioo ii often very cloee of trover. Freeman v. Uoderwood, S6 Me.
whether cbattpis have become portion of 239 ; Forsyth v. Wells, 41 Fa, St. 291.
tha realty by being attached to it. Thus, So, trover will lie against the bona fide
where the evidence showed that an engine purchaser of loads of earth wrongfitlly
was affiled by large iron bolts ninninR taken from theplaintifT'sland, and withont
down iata soliil masonry foundations and any demand and refusal, although the
■ecnred by melted brimslone, and the defendimt was ignorant of the treepOM
boiler was set on brick masonry and sur- when he converted the earth to his own
rounded inodt of the way up by bnckwork, use, Riley v. Boston Water Power Co.,
•o that it could not be removed without 1) Cosh. (Mass.) 11.
tearing down some portion of the penoa- A i^uestion of some difflcalt; uise*
nent building, it was held that these when boildings or fixtures are treated by
things were not mera chattels and that the owner as personalty. Thus, if A erect*
tioviir wouLd not lie for taking them away, buildings on land of B, and A ai'd B agree
Baddin i, Arnold, 116 Mass, 270. together that the bnildinra shall not be*
So, where one sued for the convenion come part of the realty, out remain the
of a namber of railroad tiea, and the evi- personal property of A, these buildings an
dence was ibat the ties had come into the personalty as to all buyers who have notice
posaession of the defendantHiSlRBdy placed of this agreement, but realty, as to bona
in the bed of the roadway and ballasted, it fi4t purchasers who have not nad such no-
ma held that the evidence would not sup- tice. Xunt o. Bay State Iron Co., 97 Mass.
girt the action. Detroit, 4c. R. R Co. n. 279 ; Hartwell e, Kelly, 117 Mass, 286.
usch, 43 Mich, 571 ; WoodmifD, Adams, If, then, the owner of the land sells the
87 Conn. 233. land to such an innocent purchaser, the
So, where it was proved that one bought buildings will pass by uiat sale and
a water-mill with the water-wheels at- the owner of the land will be liable to the
tached to the building, and the Bume was owner of the bnildinss in trover for con-
built np around them in such a way as to version. Dotliver «. Kla, 128 Maes. 5fi7.
prevent their being removed without ma- (b) The plaintiff need not set out his
terial injury to the building, the evidence title with more definiteneas than that he
was considered iiuufficient to support on *'was lawfolly poasesaed of" the ffooda,
action of trover. Enowlton v. Johnson, and he may o9er evidence of any kmd of
97 Mich. 47. And to the general effect that title, general or special, under this dedar-
trover will not lie for fixtures which are ation. Thus, Cooley, J,, in Harvty v.
Cltof the realty are, Morrison V.Bern, 42 UcAdama, S2 Mich. 472, says, "The ob-
ich. 889 ; Pieroa e. Ooddaid, 22 Pick, jection to the admission in evidence of the
(Haas.) CG9 ; Fryattv, Sullivan Company, chattel mortgage nndar which the plaintifib
6Hm(H. ¥.), Ufl. cUimad Um propar^, hM DO foRtt. Tha
622 LAW OF EVIDBNCE. [PABT IV.
possession at the time of the conversion ; and (2) a conversion
of the thing by the defendant to his own use. Whether the de-
fendant originally came to the possession of the thing by right or
by wrong is not material. The plaintiff should also be prepared
to prove the value of the goods at the time and place of the con-
version ; though this is not essential to the maintenance of the
action.
§ 637. PlaintUTs interest. (1.) The property in the plaintiff
may be either general and absolute, or only special ; the latter of
these interests being sufficient for the purpose.^ And where the
plaintiff has a special property, he may maintain this action
against even the general owner, if he wrongfully deprives him of
the possession.^ Special property, in a strict sense, may be said
to consist in the lawful custody of the goods, with a right of
detention against the general owner ;^ but a lower degree of
1 Webb V. Fox, 7 T. R. 898, per Lawrence, J.
« Roberta v. Wvatt, 2 Taunt. 268 ; Spoor v, Holland, 8 Wend. 445.
> The nature of special property is thus discussed by Mr. Justice Story. " What is
meant by a special property in a thing ? Does it mean a qualified ri^ht or interest in
the thing, a jus in re, or a right annexed to the thing ? Or does it mean merely a
lawful right of custody or possession of the thing, which constitutes a sufficient title to
maintain that possession against wrong-doers by action or otherwise ? If the latter be
its true salification, it is little more than a aispute about terms ; as all persons wiU
now admit, that every bailee-, even under a nakea baUment from the owner, and eveiy
rightful possessor by act or operation of law, has in this sense a special property in the
thing. But this certainly is not the sense in which the phrase is ordinanly understood.
When we speak of a person's having property in a thing, we mean that he has some
fixed interest in it {jvs in re), or some fixed right attached to it, either equitable
or legal ; and when we speak of a special property in a thing, we mean some special
fixed interest or right therein, distinct from, and subordinate to, the absolute property
or interest of the general owner. Thus, for example, if goods are pledged for a debt,
we say that the pledgee has a special property therein ; for he has a qualified interest
in the thing, coextensive with his debt, as owner pro tanto. So we say, that artificers
and workmen, who work on or repair a chattel, and warehousemen, and wharfingers,
and factors, and carriers, have a special property in the chattel confided to them for
hire, for the particular purpose of their vocation, because they have a lien thereon for
the amount of the hire due to them, and a rightful possession in virtue of that lien,
even against the general owner, which he cannot displace without discharaing the lien.
So the sheriff, who has lawfully seized goods on an execution, may in tnis sense be
said, without, perhaps, straining the propriety of language, to have a special proper^
in the goods, although, more correctly speaking, the goods should be deemed to oe in
the custody of the law, and his possession a lawful possession, binding the property for
the purposes of the execution against the general owner, as well as against wrong-doers.
But it seems a confusion of all distinctions to say that a naked bailee, such as a depositary,
ground of it was that the declaration acquiring title to the goods, and states hia
counted on a conversion of the plaintiff's title to oe a special one,^. g. a lien for
property, without setting out the nature of repairs furnished a domestic vessel, he wiU
their interest. But no declaration in tro- be held by this self-imposed limitation
ver undertakes to notify the defendant of and will be obliged to prove his title just
the precise nature of the plaintiff's title or as it is stated. Gregory Point Marine Ky.
what are evidences of k" But if he Co. «. Selleck, 43 Conn. 820.
chooses to limit himself to one method of
PABT IV.] TBOTBR. 628
interest will sometimes suffice, against a stranger ; for a mere
wrong-doer is not permitted to question the title of a person in
has a special property when he has no more than the lawful custody or possession of
the thing, without any vested interest therein, for which he can detain the property,
even for a moment against the lawful owner. It might, with far more propriety, be
stated, that a gratuitous borrower has a special property in the thing bailea to him,
because, during the time of the bailment, ne has a right to the use of the thing, aud
seems thus clothed with a temporary ownership for the purposes of the loan. Yet this
has sometimes been a matter denied or douhtea.
" Mr. Justice Blackstone has defined an absolute property to be, ' Where a man has
solely and exclusively the right, and also the occupation, of any movable chattels, so
that they cannot be transferred from him, or cease to be his, without his own act or
default ; ' and qualified, limited, or sjpecial property to be such ' as is not in its nature
permauent, but may sometimes subsist, and at other times not subsist.' And after
illustrating this doctrine by cases of qualified property in animals /ens naturcCf and in
the elements of fire, liffht, air, and water, he then proceeds : ' These kinds of qualifica-
tion in property depend upon the peculiar circumstances of the subject-matter, which
is not capable of being under the absolute dominion of any proprietor. But property
may also be of a qualified or special nature, on account of the peculiar circumstances of
the owner, wheu the thing itself is very capable of absolute ownership : as in case of
bailment, or delivery of ^|w)ds to another person for a particular use ; as to a carrier to
convey to London, to an innkeeper to secure in his inn, or the like. Here there is no
absolute property in either the bailor or bailee, the person delivering or him to whom
it is delivered ; for the bailor hath only the right, and not the immediate possession ;
the bulee hath the possession, and only a temporary right. But it is a qualified
property in them both, and each of them is entitled to an action, in case the goods be
damaged or taken away ; the bailee, on account of his immediate possession ; the bailor,
because the possession of the bailee is, immediately, his possession also. So also in case
of goods pledged or pawned, upon condition, either to repay money or otherwise ; both
the pledgor and pledgee liave a qualified, but neither of them an absolute, property
in them ; the pledgor's property is conditional, and depends upon the performance of
the condition of repayment, &c. ; and so, too, is that of the pledgee, which depends
upon its non-performance. The same may be said of goods distrained for rent, or other
cause of distress ; which are in the nature of a pledge, and are not, at the firet diking,
the absolute property of either the distrainor, or the party distrained upon ; but may
be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant
who hath the care of his master s goods or chattels, as a butler of plate, a shepherd of
sheep, and the like, hath not any property or possession, either absolute or qualified,
but only a mere charge or oversight.' The cases here put by the learned Commentator,
of qualified property, are clearly cases where the bailee has an interest or lien in rem,
Mr. Justice Lawrence, on one occasion, said : ' Absolute property is, where one, having
the possession of chattels, has also an exclusive right to enjoy them, and which can
only be defeated by some act of his own. Special property is where he who has the
possession holds them subject to the claims of other persons. There may be special
property in various instances. There may be special property without possession ; or
there may be special property, arising simply out of a lawful possession, and which
ceases when the true owner appears. Such was the case of Armory v, Delamirie.'
'*Now, with reference to the case in judgment, the language of the learned judge
may be strictly correct ; for it is by no means clear that the bankrupt had not an abso-
lute property in the chattels, good against all the world, until his assignees asserted
some title to it. The case cited of Armory v. Delamirie, was the case of goods coming
to the party's possession by finding, where he mi^ht justly be said to be entitled to i€
as well as possessed of it, as absolute owner, agamst all the world, until the rightftu
owner appeared and claimed it ; and, if it was never claimed, his title as finder
remained absolute. The case of a naked depositary does not seem to have been here
presented to the mind of the learned judge. Indeed, there is no small refinement and
Bubtilty in suggesting that a pjerson, lawfully in possession of a thing, has, at the same
time, a speciiOjproperty therein against strangers, and no property at all against the
true owner. Wnat sort of special property is that which has no existence against the
owner of the thing, and vet, at the same time, has an existence against other persona f
Can there be property and no property at the same time f If the langoage were^ thati
624 LAW GF EYIDEKCE. [PABT IV.
the actual posseeeion and custody of the goods, whose possession
he has wrongfully invaded. The naked possession of goods, with
claim of right, is sufficient evidence of title against one who
shows no better right.^ (a) Hence the sheriff, who has attached
goods, may maintain this action against one who takes them from
his possession, or from that of his bailee for mere custody,^ (6)
when ft party has a right of possession, that right cannot lawfully be Tiolatod by mere
wrong-doers* ; but, if violated, it may be redremed by an action of trespass or trover, it
would be intelligible. If the language were, that a person may have a raesent tempo-
rary or defeasible property in a tning, subject to be devested by the subsequent claim
of the rightful owner under his paramount title (such as in the case of the finder of chat-
tels), or a temporary property not special, which is to become absolute, or extinguished,
by future events (sucn as the possession of an abstract of the title of the vendor by the
vendee, under a contract for a sale and eonveyanoe of real estate), there would be little
difficulty in comprehending the nature and quality of the right as a. jus in re. It would
be a present fixed right of property, subject to be devested or destroyed by matters in
futuro. In short, it would be a defeasible but vested interest in rmi. But in the face
of a naked deposit, by the very th<'ory of the contract, the bailor never means to part
for a moment with his right of property, either generally or specially, but solely wiih
his present possession of it ; and tne undertaking of the bailee is not to restore any
right of property, but the mere possession, to the bulor. It is this change of possession
which constitutes the known distinction between the custody of a bailee and that of a
mere domestic servant ; for, in the latter case, there is no change whatever of posses-
sion of the goods, but the possession remains in the master, and the servant has but &
chai^, or oversight ; whereas, in the case of a bailee, there is a positive change of
possession. The true description of the right conferred on a naked bailee is that which
Mr. Justice Blackstone, in the jpassage Mfore cited, . calb a ' possessory interest,' or
right of possession, in contradistinction to a general or special property." See Story on
Bailments, § 93 g, h, i,
^ Sutton V. Buck, 2 Taunt 302 ; Armory v. Delamirie, 1 Str. 505 ; Barton v.
Hughes, 2 Bing. 173 ; Giles v. Grover, 6 Bligh, 277 ; Stor/on Bailments, § 93, d, e,
/; Duncan v. Spear, 11 Wend. 64 ; Faulkner «. Brown, 13 Wend. 68.
^ Wilbraham v. Snow, 2 Saund. 47 ; Story on Bailments, § 93, e,/; §§ 132-135 ;
Brownell v, Manchester, 1 Pick. 282 ; Badlam v. Tucker, Id. 389 ; I^throp v. Blake,
23 N. H. 46. Whether the sheriff's bailee for safe-keeping can maintain trover, ia
a point upon which the decisions are not uniform. See Story on Baihnenta, § 133 ;
Ludden v, Leavitt, 9 Mass. 104 ; Poole v, Symonds, 1 N. H. 289 ; Odiome v. Colley
2 N. H. 66.
(a) Derby v. Gallup, 5 Minn,. 119 ; one makes it unnecessary for the other
Burke v. Savnge, 13 Allen (Mass.), 408. parbr to offer to perform the other. Adams
See also ante, § 561. v. Clark, 9 Cush. (Masa. ) 215. The lessee
(b) The consignee of goods who ia of a horse may, in trover, recover of the
ready to pay freight on having the goods owner damages for the loss of the use of
delivered to him may maintain trover the horse by the act of the owner, during
against the carriers or their agents, who, a portion of the time of the bailment,
having no claim on the goods for anything Hickok v. Buck, 22 Vt. 149.
besides the freight, refiue to deliver them A father put certain property into the
unless a further sum is first paid ; the possession of his son to enable him to earn
consignee in such case is not oomid to a livelihood, without any stipulation as to
make any tender to those in possession the length of time that the son should
of the goods, and their refusal to deliver keep the property, and reserving the right
the goods is evidence of a conversion ; for to take it away and sell it, whenever he
the payment of freight, for the carriage should be put to any expense about it.
of the goods bein^ an act which need not A portion of the property, after it had
be performed until the delivery of the been for some time in the possession and
gooas, the two acts should be concurrent, use of the son, was attached as property
and the refusal of one party to perform of the son, and it was held that the father
§ 688. Tia« by porohaM. Where the plaintiff claims title to
goods nnder a aale, and a questioQ is made as to the time ^hen
the property passed, it vill be material for him to prove that
everything that the seller had to do was already done, and that
nothing remained to be done on his own part but to take away
the specific goods. They must hare been weighed or measured,
and specifically designated and set apart by the vendor, subject
to his control ; the vendor remaining, at moat, but a mere bailee.^
If they were sold at auction, tbe property passes to the vendee,
although the goods were not to be delivered to him until the
auctioneer had paid the duties to tbe government; or althoi^h
they were to be kept by tbe auctioneer as a warehouseman for
a stipulated time.* If, before tbe terms of sale are complied with,
tbe vendor's servant delivers them to the vendee by mistake, no
property passes.' Nor does any property pass by a verbal con-
tract of sale, which the Statute of Frauds requires to be in writ-
ing.* If a specific article, such as a ship, for example, is to be
built, and the price is to be paid by instalments as the work
advances, the payment of the instalments, as they fall due, vests
the property of the ship in the vendee ; but if the contract is
general, without instalments, it is otherwise.^ But though the
property thus passes by the contract of sale, in the manner above
stated, yet by rescinding the contract the property of the vendee
la devested, and the vendor is remitted to his former right." If
the sale ia fraudulent, or illegal, or if the goods were obtained by
false pretences, or were stolen and sold by the thief to an innocent
purchaser, no property passes.^ (a)
■ Tarllng v. Baxter, S B. & C. SSO ; Blozam v. flBnnden, 1 B. & C. 648 ; Simmoiw
V. Swift, 6 B. t C. 867.
■ Hind V. Whitehooae, 7 EbeI. GES, fi71 ; Philimore «. Ban?, 1 Cunpb. GIS ;
Smmonsv. Anderson, 7 Kich. (S. C.) 67.
■ Bishop V. Shillitfl, 2 B. & Aid. 329, n. (a), per Bayley, J. And see Bnndt v,
Bowlbj, 2B. dbAd, 832.
* Bloxsoma i^. Williams, B B. & C. 231.
• Woods V. RusseU, G B. & Aid. 9*2 ; Clarko r. Spenoe, t Ad. 4 El. *ie ; Oosa r.
Qninton. 3 M. ft O. 825 ; Bishop v. Crawshay, S B. & C. Hi i Mucklow ». Mangle*,
1 TaanL 31S ; Angisr v. Tannton, kc. Co., 1 Otsy, 021.
■ PatUson V. KoWnBon, 6M. i 3. 106 ; lupra, { 615.
1 Wilkinson «. King, 2 Campb. 836 ; Nobis v. Adama, 7 Taont. 69 ; Packer •;
OilUea, 3 Campb. S3S » ; Peer v. Humphrey, 2 Ad. & EL 406.
could maintain trorer against th« attach- (S. Y.) SIS ; Ladd v. Moore, S Sandt
ins offiuar. Horgtin v. Ids, S Cush. Sap. Ct. 680, and see pot, J 642. If an
(Mass. I 423. See also Bryant «. CUSbrd, UlegU and void conttut a[ sale ii so fallT
IS Hot. (M&aa.) 138. carried out that a demand connected with
(a) Decker e. Hattfaswi, 3 Eeman it ia capable of being enforced at Uw
VOL. II. 40
§ 6S9. Title to bin of exohuig*, Ac Where the plaintiff cl&ime
title as the holder of a bank-note, bill of exchange, promittory note,
exchequer hill,^ gorenunent bond made payable to the holder,' or
other negotiable teeuritt/, whether payable to bearer or to order,
and indorsed in blank ; it is sufficient for him to show that he
took it bona fide and for a valuable consideration ; for this rests
the title in him, without regard to the title or want of title in the
person from whom he received it It was formerly held that if
the latter came to the possession by felony, or fraud, or other
tnalafidet, it was incumbent on the plaintiff to show that he had
used due and reasonable caution in taking it ; but though gross
negligence in the transferee may stilt be shown, as evidence of
fraud, though not equivalent to it, yet his title is now held to
depend, not on the degree of caution which he used, but on his
good faith in the transaction.^ (a) If the security was lost by
the plaintiff, and has been found and converted by the defendant,
who has paid part of the proceeds to the plaintiff, the acceptance
■ Wookey u. Poole, 4 B. k Aid, 1, • Gorgier*. Mierille, 3 B. ft C. *5.
• Sto[7 on Bills, H il6, il6i Story on Pniniugory Notes, 198-197. 382 ; Bayley
on Bills, pp. 138, 139, 535-639 (fltb ed.) ; Chitty & HdIiqc on Bills, pp. 251-257 ;
Goodman v. Harvey, 1 Ad. & El. 870; Uther e. Kicli, 10 Ad. k El. 781. See ante,
(172.
viUJtoul aid from the illegal tmnuctioD, the ■uctionen', ilthongli tlie latter did not
the claim will be Buatained. Tenaut v. jmrticipate in the fraud of the mortgagor,
Elliott, I Bos. & r. 3 ; Hemtt v. Millard, aud did not in bet know of tbe existence
1 Eeyea, 208; Woodworth «. Bennett, of the mortgage. Coles e. Clark, 3 Cualu
43 N. Y. 273; Chittj, Cont. S57. And (Haas.) 399. See also Flanden v. Colby,
if the plaintiff in trover can make out 28 H. H. SI ; Moody v. Whitney. 31 Me,
his rigbt to possesinon without intro- G63 ; Csrtlsnd v. Momson, 32 Me. 190 ;
docing evidence reUting to the illegal Cobb -v. Dowa, 9 Barb. (N. Y.) 230,
contract, he can recover ; but if he relies on Trover will not lie agaiDst a bona Jile
a coDstiuctive posseasion of the goods he purduwer, without nodcA, of a fiitnre
mnst fat], Bince a constrcctive poRseBsion wrongfully severed from the freehold
depends upon the legal title under which (Cope b. Romeyno, 4 McLean, C. C. 384> ;
he claims, and this l^al title is based on nor for flxtnrea which a tenant has left
the illej^l tranmction, SO that in intro- annexed to the freehold, with the leave
during hia evidence of title he would be of the landlord, after he has quit the dob-
ohliged to touch upon the illegal transac- session. Rufley v. Henderaon, 8 Eng. Law
tion. Clements 0. Ytnrria, 81 N. Y. 285. * E<i. 806.
A mortgagee having the right of imme- (a) Where, in an action of trover, it waa
diale poaseMion of the mortgaged goods proved that the Slate treasurer took dian*
was induced by the fraudulent repreeenta- payable to hU order in jiavment of taxes,
tions of the mortgagor to permit the though he was authonied only to take
properlT to remain in the mortgagor's money, and the drafts were indamd 1^
ptasesHlon for a certain period. During his clerk anil put in a bank for coUectitMi,
this period, the mortgagor, with intent to it was held that the State could rerarer
defraud the mortgagee, sent the goods against the hank in an action for the can-
to an auctioneer, who sold them, and version ot the drafts, its poswninn being
delivered the proceeds of the sale to the suffident as againtt tbe bank. People v,
mortgagor ; and it was held that tbe Bank of SorQi America, 7G M. T. &17.
mortgagee mold maintain trover a^dnst
of sach part is no waiver of the tort, but trover etill lies for the
Kcnrity.i
§ 640. Totmomhom. There must also be shown in the plaintiff
a riglit to the present poiieantm of the goods. If he has only a
special property, there must ordinarily be evidence of actual pos-
session ; ' (a) but the general property has possession annexed to
it by construction of law.^ If, however, there is an intermediate
right of possession in another person as lessee, the general owner
cannot maintain this action. Therefore, a lessor of chattels can-
not have an action of trover against one who has taken them
from the possession of his lessee, bo long as the right of the lessee
remains in force.* (by But if the interest of the tenant or poa<
sessor is determined, whether by forfeiture or otherwise, the
' Born V. Korris, 4 TVrw. 485.
' Coxe B. XardEU, 4 East, 211 ; Hotchkiss v. HcTickar, 12 Johns. 107; Sheldon v.
Soper, U Johns. 362 ; Dennie v. Harrii, 6 Pick. S04. A bctor to whom goodi bare
been consigned, but which have not jet come to hand, may mBintain trover For them ;
tod this is said to contradict, or >t least to form an elcejition to, the nil« stated in the
t«xt See Fowier v. Brown, I B. & P. 17, per Eyre, C. J. But the possession of the
tftrrier being the possession of the factor, whose servsnt he ii for this purpose, the case
vould seem on this ground to be reconcilable with the rule. BolL S. P. 36 ; Dutton
«. Solomonson, 3 B. ft P. G81 ; Dawes v. Peck, 8 T. R. 330 ; Chitty on Contr. llth
Am. ed. p. 31S ; Story on Cnntr. Gth ed. 99 436, GOS.
» Gordon e. Harper, 7 T. E, 12, per Uraaf, J. ; 2 Samid. 17 o, n, (1) ; Ayer e.
Bartlett, 9 Pick. 160 ; Foster v. Gorton, 6 Pick, 185.
' Ibid. ; Smith V. Flomer, IE East, 607 ; Wheeler v. Train, 3 Pick. 2BG ; Pain
V. Whittaker, Ry. k M. a» ; Fajrhank v. Phelps, 22 Pick. G3G ; tupra, { 610. And
see Faitant c. TbomiMon, G B. & A. 820. But an interreniug right by way of lien,
tuch as that of a earner, will not deprive the general owner of this remedy, sfsioat a
nong-doer. Gordon v. Harper, 7 T. R. 12 ; Nichols d. Bastard, 2 C. M. & R. 0G9 ;
Rugg V. Bamea, 2 Cosh. G9] ; Harvey «. Epea, 12 Oratt. 1G3.
(a) Clark v. Draper, IS N. H. 119. sold the wheat crop, hnt Teftis«d to de-
Wbere one had raked the manure scat- liver the plsintiff his share thereof, on the
tared iu a [lablic street into heaps, pre- ffroiuid tliat the plaintiff had fraudnlently
paraUiry to its removal, he may maintain kept bock part of the crops of the preced-
trover against one who, twenty-four hours ing year. It was held that nnifer tlie
alter it IS gathered, carts it off. Haslem terms of the afttement the right of posses-
«. Lockwood, B7 CoDD. GOO. tion was in the defendant, and that the
(A) The snme difficulty arises as to evidence would not support an action of
the right of possession to craps where trover. Cf. Soob v. Amman, 0 III. App.
the farm is worked on *harei, which 100.
«u indicated io the ti^e Trapaa, ante. Where the owner of a chattel leases it,
S OlS. In Lehr «. Taylor, 90 W. St. and then mortgages it, the mortgagee can-
SSI, the evidence was that the plaintiff not maintain trover against the lessee
worked the defendant's farm on share* until the lease has expired. Forth v.
nnder a lease. By the terms of the li«se Pursley, 82 IlL 152. Where the plaintiff
be was to have half the grain, hut the consigned goods to a third party to he
riffhl of poaeaion iJiereof^ iu the fields or raid for ss they were sold by him, the
In the bam was to be in the defendant legal possession of them is in the con-
until divided, and his share delivered to signee (Fairbank c. Phelps, 22 Pick,
him, under the terms of the lease, The (Mass.) G35), and the plaintiff cannot
plsintiff planted crops and then uioTed off maintain traver for the goods (Hardy v.
the farm. The deTendant hatveited and MuDToe, 127 Uas& 61).
628 LAW OF EVIDENCE. [PABT lY.
general owner may sue. Thus, if the tenant has unlawfully sold
the machinery demised with a mill ; ^ or, if a stranger cuts down
and removes a tree, during a term,^ — the general owner may
maintain this action against the purchaser or stranger. Upon the
same general principle of right to the immediate possession, the
purchaser of goods not sold on credit has no right to this form of
remedy, tmtil he has paid or tendered the price ; ^ even though
he has the key of the apartment where the goods are stored, if
the vendor still retains the general control of the premises.^ So,
if the purchaser of lands, being permitted to occupy imtil default
of payment, the title remaining in the vendor for his security,
cuts down and sells timber without leave from the vendor, the
latter may have trover against the purchaser.^ And if the bailee
of goods for a special purpose transfers them to another in con-
travention of that purpose, the remedy is the same.^ (a) The
bailee of materials to be manufactured may also have this action
against a stranger, though the goods were taken by the defendant
from the possession of a third person, whom the plaintiff had
hired to perform the work.^ So, a ship-owner may maintain
trover for the goods shipped, against the sheriff who attaches
them, without payment or tender of the freight due.^ (by
^ Farrant v, Thompson, 5 B. & A. 826. See also Aahmead v. Kellogg, 23
Conn. 70.
« Beny v. Heard, Cro. Car. 242 ; Palm, 827 ; 7 T. R 18 ; Blaker v, Anecombe, 1
New Rep. 25.
' Bloxam v. Sannden, 4 B. & C. 941 ; Miles v. Gorton, 4 Tyrw. 295.
« Milgate v. Kebble, 8 Man. & Or. 100. • Moores v. Wait, 8 Wend. 104.
* Wilkinson v. King, 2 Campb. 885 ; Loescbman «. Machin, 2 Stark. 811. Bat
if a consignee of goods for sale, at a price not less than a certain sum, sells them for
a less sum, it is not a conversion, but the remedy is by a special action on the case.
Serjeant v. Blunt, 16 Johns. 74.
7 Eaton V. Lynde, 15 Masy. 242 ; Bryant v. Clifford, 18 Met 188.
• De Wolf V, Dearborn, 4 Pick. 466.
(a) A consignee, having authority to tel, this is evidence of a conversion to
sell property for the owner, sold it as the his own use, and the jury should find, as a
property of a person other than the owner, question of fact, whether he did so con-
and such sale was held a conversion. Co- vert it Goell v. Smith, 128 Masa. 288 ;
veU V, Hill, 2 Selden (N. Y.), 874. So, Harvey v. Epes, 12 Gratt (Va.) 158.
where the evidence in an action of trover Where, however, one delivers goods to
was that a bailee of the goods to hold them another to hjfpotheeaU, ^ he therebjr Im-
for a certain time shipp^ them by express, pliedly authorizes a sale if the loan is not
he was held liable for the conversion. Ed- paid when it becomes due. Duffield «.
wards v. Frank, 40 Mich. 616. So, if the Miller, 92 Pa. St. 286.
owner of a chattel parts with the posses- (6) A person to whom a letter sent by
sion of it upon an agreement of lease or mail is addressed may maintain an action
bailment, and one of tixe terms of the bail- of trover in a State court, against the
ment is violated in a manner which tends postmaster who unlawfully refuses to de-
to show the assumption by the bailee of liver it Teal v. Felton, 12 How. (U. S.)
dominion over and ownerslup of the chat- 2&4.
PABT IV.] TBOVEB. 629
§ 641. Tiila aa executor, Sco, An executor or administrator has
the property of the goods of his testator or intestate vested in
him before his actual possession ; and therefore may have trover
or trespass against one who has previously taken them. And
though he does not prove the will, or receive letters of adminis-
tration, for a long time after the death of the testator or intestate,
yet the property will be adjudged to have been in him, by relation,
immediately upon the decease.^ If he relies on his constructive
possession, and a conversion after the death of the testator or
intestate, he must produce and prove at the trial his letters
testamentary, or of administration.^ (a)
§ 642. Conversion. (2.) The plaintiff must, in the next place,
show that the defendant has converted the goods to his own use.
A conversion, in the sense of the law of trover, consists either in
the appropriation of the thing to the party's own use and bene-
ficial enjoyment, or in its destruction, or in exercising dominion
over it, in exclusion or defiance of the plaintiff's right, or in with-
holding the possession from the plaintiff, under a claim of title,
inconsistent with his own.® (6) It may therefore be either direct
^ 1 Com. Dig. 341, tit Administration, B. 10 ; Id. 425, tit. Action npon the Case
upon Trover, B ; Rex v. Horsley, 8 East, 410, per Ld. Ellenborough ; Doe v. Porter,
8 T. R. 18, 16 ; Long v, Hebb, Sty. 841 ; Locksmith v. Creswell, 2 Roll. Abr. 899,
?l. 1 ; Anon., Comb. 461, per Holt, C. J. ; 2 Selw. N. P. 777 (10th ed.) ; Patten v,
'atten, 1 Alcock & Napier, 498, 604 ; Wilson v. Shearer, 9 Met 604. In Woolley
V. Clark, 6 B. & Aid. 744, it was said, that, as to the administrator, his title being
derived wholly from the Ecclesiastical Court, no right vested in him until the grant
of letters of administration ; but the resolution of this point was not essential to the
decision in that case, as the defendant, who sold the goods as administrator, sold
them after notice of the existence of the will, by which the plaintiff was appointed
executrix.
> Robinson v, M'Donald, 2 Kelly, 119.
« Fouldes V. Willoughby, 8 M. & W. 646-551 ; Keyworth v. Hill, 3 B. & Aid,
685 ; Bristol v. Burt, 7 Johns. 264 ; Murray v. Burling, 10 Johns. 172 ; Hare v.
Pearson, 4 Ired. 76 ; Pace v. Hatchett, 10 Jur. 684 ; Harris v. Saunders, 2 Strobh.
Eq. 870 ; Clark v. Whitaker, 19 Conn. 819 ; Heald v, Carey, 9 Eng. Uw & Eq. 429.
But the mere cuttinff down of trees without taking them away is not a conversion.
Mires v. Solebay, 2 Mod. 246.
(a) A receiver appointed by the court in (h) Bray v. Bates, 9 Met. (Mass. ) 287 ;
the exercise of its equity jurisdiction has Salisbury t>. Gourgas, 10 Id. 462 ; Fernald
no legal title in the assets which he is ap- v. Chase, 87 Me. 289 ; Fuller v. Tabor, 89
pointed to collect, and without authority Me. 619. Proof that the defendant did
of the court he cannot maintain trover some positive T^-rongful act is necessary to
when they have been wrongfully converted support an action of trover. Bromley v,
previously to his possession. Yeager v, Coxwell, 2 Boa, & Pul. 438 ; Ross v. John-
Walhice, 44 Pa. St 294. But where the son, 5 Burr. 2825 ; Severin v. Keppell, 4
goods have actually come into his posses- Esp. 156. A sale of personal property by
sion, he m^ maintain trover against one a mortgagee before foreclosure is a conver-
who wTongtuUy invades such possession, sion for which the mortgagor may maintain
and converts the goods. Singerly v. Fox, an action. Spaulding v. Barnes, 4 Gray
75 Pa. St 112. • (Mass.), 880. To constitute a joint con-
or conatructive ; and of course U proved either directly or by
inference. Every unlawful taking, with intent to apply the goods
to the use of the taker, or of Bome other person than the owner,
or having the eSect of destroying or altering their nature, is a
conversion.' (a) But if it does not interfere with tlie owner's
dominion over the property, nor alter its condition, it is not. (i)
Upon tliese principiee it has been held that if a ferryman wrong-
fully put the horses of a passenger out of the boat, without further
intent concerning them, it may be a trespass, but it is not a con-
version ; but if he makes any further disposition of them, incon-
sistent with the owner's rights, it is a conversion.^ So the taking
possession of the bankrupt's goods, by his assignees, is a con-
versiou, as against Itim, for which he may maintain trover, to try
the validity of the commission, without making a demand.^ So,
u»ing a thing without license of the owner is a conversion ; as is
also the mwue or detention of a thing, by the finder, or other
1 Bull. N. p. 4i ; 2 Saund. 47 g, by Wmiami ; Prescott «. Wrij-ht, 6 Uass. 20 ;
Fierce v. BenUmin, It Pick. 358 ; Timratoii v. Blanchard, 22 Pick. 18. But if a tor-
tioiu taking bas be«Q subsequently aupnteil to by the owaer, the remeilv in trover is
gone. Hcwes t>. Parkman, 20 Pick. SO • Rntrh c. Hawes, 12 Pick. 13S ; Clarke v.
Ularke, S Esp. 61 ; Brewer t>. Sparrow, 7 B. & C. SIO. Takiug tlie plaiutiff's goods by
mistake, supposing them to be defendant's own, and ■ subaeciiient prouiise to restore
thrm, tlie uerfonnalice of which was neglected, have been held sufficifnt evideDca
of a conversion. Durrell v. Hoaher, B Jolina. H5. See further, HarriDgton v. Payng^
IS Johns. 431.
» Fouldes V. Willoughby, 8 M. * W. 640.
* Somersett v, Jarris, 8 Brod. t Bing. 2.
veraion of personal property, the acta of any knowledge of wrongnloiiig, supposing
the several aefendants need not be contem- the articles to belong to or to be riglitfully
poraneous, if their acts and purposes nil in the pueaesaion of Oic person from whom
{«nd to the same resnlt. C»m e. TLissell, the same are received. Burditt v. Hunt,
S6 Me. 86. Traverwill lie to recover the SS Me. 419; Filteld c. Maine Central R. R.
value of coal dug by the owner of land. Co., 62 He. 77, 82.
through a mistake of boandariea, out of (t) So, if one levies on goods which
adjoining land. Forsyth o. Wells, 41 Pa. have been previously mortgaged, if he
St. 201. levies merely upon the mortgsgor's li^it
(n) If one wrongfully leaves hlB gooda of redemption, he does not so interfere
on the land of another after being notified with the mortgaftee's rights as to be liable
to take them away, and the goods are de- for conversion. But, if the mortgagor bu
stroyed by the owner of the land in the not an interest which can be levied on by
reasonable ase of his own property, trover law, and the officer levies on the gooda, h«
wilt not lie agunst him, but it wilt if he wiU be liable. Woodside v. Adams, 40
uses the goods or wilfully destroys them. N. J. L. 417. 'Whether a laortgagnr of
Aschenuan v. Beat Brewing Co., 4G Wis. cbattela has an intereat which can be at-
202. tached at common law, dependa on the law
It is said in Smith v. Colby, 67 He. of the State. In New Jeraev it is held
ISO, that a person acting under Uie dim:' that he has. Woodside t-. Adama, njira.
■ tion of another aa aervant or bailee might In New York and Mananchusetts, that he
not be guilty of conversion by merely has not. Manning v. Monaghan, 28 N. T.
carryinggoods from place toplace, without &8S ; Riugl>. Neale, 114 Maaa. 111.
bailee.^ So, the adulteration of vioe or other liquor, by putting
-water into it, Is a conversion of the whole qnantity; bat the
taking awa; of part is not so, if the residue remains in the same
state as before, and is not withheld from the owner.^ (a) And
though a factor, entmsted with goods for sale, may, in many
cases, lawfully deliver them over to another for the same purpose ;
yet if a bailee of goods deliver them over to another, in violation
of the orders of the bailor, it is a conversion.* (i) A mitdelivery
of goods, also, by a wharfinger, carrier, or other bailee, is a con-
version ;* but the accidental loss of them, by the mere omission
of the carrier, is not.' A wrof^vl tale of another's goods is also
a conversion of them ; " and though the custody of the goods
remains unaltered, yet the delivery of the documentary evidence
of title, and the receipt of the value, completes the act of con-
> MulgiBVe V. OKden, Cro. El. 21B ; Ld. Peter v. Heneags, 12 Mod. 519 ; Wlieelock
V. Whedwrigiit, 6 Mass. 101 ; Starr on Bailm. {{ ISS, 2SS, 241, 269, S9a ; Portland
Bank c. Stutiba, S Maaa. 422, ill ; Ripley v. Dolbler, S SbepL 382 ; Waodiaau v. Hub-
bard, 5 Foster (N. H.), 67.
* Kiuhanlson v. Atkinion, 1 Str*. dSfl ; Plulnott s, Eellev, 3 Ad. & El. 306 ; Dench
V. Walker, 11 Maaa. 500 ; Youn^ v. Hasan, S Pick. 551. The mere fact of a bsilee'a
botcling ■ calk of wine ia not evidence of \ coDTrrsiou. Ibid.
* Bromley v. Coiwell, 2 B. * P. +88 ; Seyds p. liny, 4 T. E. 280.
* Devereui v. Barclay, 2 a i Aid. 702 ; Youl v. Harbottle, 1 Peaks, 49 ; Steven.
■en r. Hart, 1 Bing. 483 ; Story on Bailm. %% 150, 151, G45 b.
* Kosa r. Johnuin, G Burr. 2825 ; Kirkman v. Hargreaves, I Selw. N. P. 42G ;
Dwigbt e. BrewstEr, 1 Pick. 50, G3 ; Owen D. Leiryn, 1 Ventr. 223 ; Auou., 2 Salk.
655 ; HawkiDH v. HoffmaD. S Hill (N. Y.), G86. There are two cages seeming to tbe
contrary of this ; but in one of them (Greenfield Bank v. Leavitt, 17 Pick. 1) this point
waa not raiaed, but the defendant'a liability for a ioaa waa aaaumed, the case turning
wholly OD the queetion of ilamagrs ; and in the other (La Place v. Aapoix, I Johns.
Caa. 106) the case sufficiently shows that there was an actual conversion.
* Edwards v. Hooper, 11 M. & W. 363 ; FeathersIonbauKb v. Johcuton, 8 Taunt.
237 ; Lowell v. Martin, 4 Taunt. 799 ; Alsager >. Close, 10 M. h W. G76 ; Bobinson v.
Bolls. 1 M. & Bob. 239; Everett r. Coffin. 6 Wend. 603; Kyle v. Gny, 11 Ala. 23S.
Bot if the sale was by defendatit's agent without his knowledge, quart ; and sea
UacbeU «. Ellis, 1 C. & E. 682.
{a) The fact that the plsintiff has si- mixes them with his own, so that it Is im-
lowed a Iiailee of his property to mix it up possible to identify thsni, he ia liable for •
with other property, so uiat its identity is conversion. Hesseltine v. Stockwell, 30
loat, does not prevent an action of trover Me. 237 ; Bryant v. Ware, Id. 295.
sfvinst one to whom the bailee wrongfully (A) If tbe owoer of an article of per-
iod all the property, aod who refiisea to tonal property delivers it to another to
give the plaintiff his share. Thus, when sell, the tailre has no right to deliver it to
A stored grain in a grsin warehouse, allow- hia creditor in payment of his own pre-ex-
ing it to be mingled with grain of the same isting debt. Kodick v. Cobum, SS Ms.
grade, and the owner of the warehoose sold 170; Holton n. Smith, 7 N. H. 116. And
the warehouse with its contents to a hank, in such esse, no demand or refusal ia neces-
wbich took posaesaion and refused to allow sary against tbe bailee. Bodii;k v. Cobum,
ClaintiQ' to lake away his ^«in, it waa nipra ; Hunt v. Holton, 13 Pick. (Mass.)
rid that the bank was liable. Oermaa 216. 3o if a mortgagee of personal prop-
National Bank t>. Meadowcroft, 95 III. erty in posseexion sella before foreclomire.
121 ; Jackson v. Anderson, 1 Taunt. 24. Spanlding v. Bemes, 1 Gtay (Mass.), S30.
If one to wlion goods are delivered.
TeraioQ ; ' but a mere purduwe of goods, in good faith, from one
vho liad no right to sell them, is not a conyeraion of them, against
the lawful owner, untO hie title has been made known and re-
sisted.' (a) Nor is the avennent of a conversioa supported by
evidence of nonfeasance alone ; as if a factor, employed to sell
goods, neglects to sell them, or sella them without taking the
requisite security*
§ 643. Bun* anbjAot. On the other hand, though tiiere has
been an actual use or disposition of the goods of another, yet if
it was done under the pressure of moral necetntt/, a lieenae will
sometimes be presumed, and it will not be a conversion. Such ia
the case, where a shipmaster throws goods into the sea, to save
I Jackson v. Andenon, i Taunt. 21.
' McCombie v. Dariea, S East, 5S8 ; Baldwin v. Col^ B Hod. 212.
■ Brouley v. CoevsU, 2 B. ft P. 438 ; Cairn* «. Bleeoker, 12 Johns. 800 ; Jtnaet
V. Joliffe, S Johns. 9.
(a) "And not only are there decisions on the order the itonr of B, instead of that
that "a mere purchaae " uf propertj', with- of A, which the baker took and oaed, sup-
out taking possesidon of it, is not a con- posing it was from A, and deririug no ben-
version of it, but also decisions that a pur- elit tlicrefrom. Held, Do coDTersion bj the
chaser receiving a pledfje or other liailment, baker, as betveen him and the warehouse-
kc., of property from one who hail no rij^ht man. Hills v. Snell, 101 Mass. 178.
t« dispose of it, and taking poBaesaion Wher* one buys gooda stolen rrom the
thereofwithout any further Bct of dominion plaintiff, ths buyer acquires no title to the
over it, does not slways constitute a conver- goods, and if be has taken possession of
sionofit," Mi-tcalf, J., Oilmorev. Newton, tiieni, actually or constnictiTely, though
9 Allen (Mass.), 172. In this caae it wss hs did it in ignorance of the plBintiS"a
held that purchasing a horse io good faith title, and sells Uiem, he is tiable for a con-
from one who hsd no right to sell him, and version, although there has been no demand
Hubsequently exercising dominion over him and refusal. Hollins v. Fowler, 33 L. T.
by leciing him to another person, will n. b. 73 ; Peau v. Smith, SI S. Y. 177.
amount to a conversion ; and no demand And if he refuses to give them np on de-
by the owner is necessary before commenc- mand, he is also liable. German National
ingao action therefor. This severe rule of Bank v. Meadowcroft, mpra ; Welah v,
law will not be applied when the act of Sage, 47 N. Y. 113 ; Gillett v. Robms, 57
appropriation can be justitied as having N. Y. 28. But it haa been held that a
beeninanymannerauthorizedbytheowner. person who exchanges stolen coupons for
Thus when, upon a conditional sale, the money in good faith and without gross
property is delivered, and time ia given for negligence, for another, without any inter-
complinnce with the condition, one who est therein or benefit therefrom, is not
purchaaea and resells the property before guiltyof aconvetdon, S|iooner«. Holmes,
the right to perfect the title b^ such com. 102 Haas. GDI. Nor ia the purchase, un-
pliance has been terminated u not liable der like circumstances, of stolen negotia-
for a conversion to the general owner, who ble bonda. Wehih i>. Sage, 17 N. Y. 113;
subsequently reaumea his right to its pos- Gillett «. Roberts, 67 S. Y. 28. It bat
session. Vincent d. Cornell, 13 Pick, been recently held in England, that where
tMasB.) 291. A warehouseman bad on a person, however innocently, comes into
storage two lota of Sour, one belonging to possession of the goods of another, who
A, the other and more valuable to B. A naa been fraudulently dispossessed thereof,
baker ordered ten barrels from C, which C, and disposes of them for his own benefit.
the ahip from sinking.^ So it is, if the thing vaa taken to do a
work of cfiariti/, or to do a kindness to the owner, and without
any intention of injuiy to it, or of converting it to hie own
U8e.s (a)
§ 644. DMDuid and rofnuL Where the circumatanceB do not,
of themaelvea, amoout to an actual conversion, it will be incum*
bent on the plaintiff to give evidence of a demand and r^utaly
at any day prior to the commencement of the action, the time not
being material, and also to show that the defendant, at the time
of the demand, had it in his power to give up the goods." But
the demand and refusal are only evidence of a prior conveTsion,
not in itself conclusive, but liable to be explained and rebutted
by evidence to the contrary.^ (6) The refusal, moreover, must
be absolute, amounting to a denial of the plaintiffs title to the
possession ; and not a mere excuse or apology for not delivering
> Bird *. ABtock, 2 Bulstr. 280. See also CUrke v. Ckrke, fl Eap. 81.
* Drake v. Shorter, i Eep. 195. And see Spu-ki v. Pnrdj, II Ho. 219.
* BulL N. P. U ; Vincent v. Cornell, 18 Pick. 2B4; Nijton «. Jenkinj, 2 H. BL 185;
Edwards v. Hooper, 11 U. ft W. S66, per Parke, B. ; Smith v. Youdk, 1 Campb. HI.
Bee Kinder o. Shaw, 2 Uu8. 398 ; Chamberlain v. Shaw, 18 Piok. 278 ; Leonard v.
Tidd, 2 Met. 9 ; Jones tr. Fort, » B. & C. 761 ; Anon., 2 Solk. 856 ; Kelaey v. Orit-
wold, 6 Barb. S. C. 436.
* 2 Sannd. 47 <, by Williama; WUton v. OirdlMton, 5 B. t Aid. 847, per Cur.;
Thompaon v. Rose, 16 Conn. 71. Ordinarily the juij are instroi'ted to find a conver-
nou, upon evidence oF a demand and refusal ; but it will not be inferred by the conrt
as a deduction of law. Mirea r. Solebay, 2 Mod. 244 ; 10 Co. M, 67 ; 2 Hall. Abr.
<»S 1 Jacobf V. lauiaat, S S. & K. 300.
(a) Omittin^seaeonabljtodeHTn'goode to tbe owner, who received her. In an
wilt not sustain trover against a carrier action of trover against the driver, it wa«
without a demand. Kobinson v. Austin, 2 hold that hJa omission to deliver the cm
Orar (Mass.), Mi; Bowlin v. Nye, 10 on demand was not a proof of conversion,
Cush. (Mass.) 416. See anft, jg 218, 219. Wellington e. Wentworth, 8 Met. (Haaa.)
Nor does the forcibly interpoaing obsta- t>48. See also Burronghea r. BB;fne, G U.
elw to prevent the owner from obtaining k S. 288. Where one demands his chat-
not tbe possession thereof, actual or con- them aa amounts to a conversion, a right
■tmctive, amount to a conversion. Boo- of action accmea which will not be devested
bier c. Boobier, 89 He. 406. by a Bubsequent offer t» return the goods,
<6) HowiU e. EsteUe, 92 111. 218 ; Fol- or a notice to the jilaintiff to come and take
torn 0. Manchester, 11 Cush. (Mass.) 334, themawayj butthistendermaybeahown in
SS7 ; Magee v. Scott, S Id. 148 ; PlaCt v. reduction of the damages. Whitaker v.
Tattle, 23 Conn. 233 ; Becknian e. McKav, Houghton, 86 Pa. fit. 48. But if the
14 CaL 250. A cow, going at laive in the goods euual or exceed in value the claim
highway, without a keeper, joinea a drove of the plaintiff, qwBre. Ct. Robinson v.
of cattle without the knowledge of the Spragne, 126 Mass. 582. A demand for
driver, and was driven with them to a dis- goods alleged to have bet- n converted is not
tant town, and there depastared with the of itself a waiver of a previous demand for
others during the lummer. After the driv- the same goods, with which the wrong-doer
er's return, the owner of the cow called on refosed to comply, but it may go to the
him to make inquirlea, and denianded his jury as evidence of a waiver of the prevl-
cow 1 and, on the return of tbe drove in one demand. Winterbottom v. Morehouse,
the aotiimii, the driver daUvcrad the oow 4 Gray (Man.), 882.
684 LAW OF EYIDENCE. [PABT lY.
the goods at present ; ^ but it need not be expressed ; it may be
inferred from non-compliance with a proper demand.^ If, how-
ever, the refusal is qualified by a condition which the party had
no right to impose, it is evidence of a conversion.^ And so it is,
if it is grounded on a claim of right by a third party> If the
demand was made by an agent, the plaintiff must also prove his
authority to make it ; otherwise the refusal will be no evidence
of a conversion.^ And if the demand is made upon a bailee of
goods, entrusted to him to keep on the joint account of several
owners, a demand by one alone, without the authority of the
others, is not sufficient.^ (a) So also, if the goods are bailed to
two, a demand on one alone is not sufficient to charge the other
in trover, though it may suffice to charge him in an action ex
corUractuJ
§ 645. Same subject. Even an absolute refusal is not always
evidence of a conversion. Thus, where the plaiutiff^s goods
were attached in the hands of his bailee, who on that account
refused to deliver them, it was held no conversion.® So it is
where the possessor of goods refuses to deliver them up, until
some ownership is shown in the claimant ; * (b) or until some
other condition lawfully imposed by him is complied witli ; ^® as
where a servant, having the custody of goods apparently his
.
1 Seyerin v. KeppelL 4 Esp. 156. And see Addison v. Ronnd, 7 C. & P. 285 ; FhU-
pott V. Kelley, 3 Ad. kM, 106 ; Pattison v. Robinson, 5 M. & S. 105 ; Caunce v. Span-
ton, 7 M. & G. 903.
« Watkins v. WooUey, 1 Gow, 69 ; Goli«htly «. Byn, Loflt. 88 ; Davies v. Nicho-
las, 7 C. ft P. 339. A demand in writing, kft at the defendant's house, is sufficient.
Ibid. ; Logan v. Houlditch, 1 Esp. 22 ; WUde v. Waters, 82 Eng. Law & Eq. 422.
» Davies v, Vernon, 6 Ad. & El. N. 8. 448.
« Caunce v, Spanton, 7 M. & O. 903 ; Zachary v. Pace, 4 Eng. 212.
* Gunton v. Nurse, 2 Brod. & Bing. 447 ; Robertson v. Crane, 27 Misa. 862.
* May V. Harvey, 13 East, 197.
» NicoU V. Glennie, 1 M. & S. 688 ; White v, Demary, 2 N. H. 646 ; Griswold
V. Plumb, 13 Mass. 298 ; anU, vol. L §§ 112, 174 ; MitcheU v. WilliamB, 4 HiU
(N. Y.), 13.
B Yerral v. Robinson, 2 C. M. & R. 495.
* Solomons v. Dawes, 1 Esp. 82, per Ld. Eenyon ; Green v. Dunn, 8 Campb. 215»
n. ; Zachary v. Pace, 4 Eng. 212 ; Can* v. Gale, Daveis, 883.
1* Davies v. Vernon, 6 Ad. & El. v, s. 448.
(a) Where goods, entrusted to a bailee, for a reasonable time, in order to satisfy
come into the nands of a third person, a himself of the true ownership. But after
demand on such person by the bailee, the lapse of such time, and an offer of one
though not specially authorized thereto by claimant to protect him by a satisfactory
the owner, and a refusal, is evidence of a bond, a refusal is a conversion. Bull «.
conversion. Bradley v. Spofford, 28 N. H. Liney, 48 N. Y. 6. The refusal to deliver
444. must be put distinctly on this ground,
(6) A bailee of property to which there otherwise it will be evidence of a conver-
are adverse chdmanta may refuse to deliver 8ion« IngaUs v. BaUdey, 16 IIL 224.
master's, refuses to deliver them without an order from his mas-
ter.* So, if the bailee of goods asks time to return them to the
person from whom he received them, that the owner may claim
them from the latter, rather than from himself ; * or if the owner
has coupled his demand with a claim that the goods shall be
returned in a certain plight, in the way of repairs, whicli the
other part; denies his liability to make ; ' this is not evidence of
a conversion. So where the principal refers the claimant to his
agent, in whose hands the goods actually are at the time ;* and
when a general agent refuses to deliver the goods, the refusal not
having been directed by bis principal.^ But where the refusal is
within the scope of the agent's authority, it is otherwise. Thus
a refusal by a pawnbroker's servant has been held evidence of a
conversion by bis master.^ If, however, the servant actually
disposes of the property, or witliholds it, though for his master's
use, as if he sells it, or tortiously takes it, or, it being a nego-
tiable bill of exchange delivered to him by an agent for discount,
he passes it to the agent's credit in his master's books, and after-
wards refuses to restore it to the principal, it is a conversion by
the servant.' So, if the demand is qualified by the claimant's
requiring that the goods be restored in their original plight, a
general refusal is not evidence of a conversion.*
§ 646. CoaT«rslon by tenant In oommon. If the parties are
tenants m common of the chattel which is the subject of this action,
it will not be sufficient for the plaintiff to prove that the defendant
has taken the chattel into his exclusive custody, and withliolds the
possession from the plaintiff ; for this either party may lawfully
do, each being equally entitled to the possession and use." And
for the like reason this action will not lie against one part owner
who has clianged the fonn of the chattel by converting it to its
ultimately intended and profitable use.''* But the plaintiff, in such
1 Aleunder V. Sontbej, S B. & Aid. 217 ; Cole v. WHght, 1 Taaut. 108 ; ShottwoU
e. Few, 7 Johns. 302. But ten Jad&h e. Kemp, 2 Johui. Caa. 411.
* Dowd V. Wadsworth, 2 Dev. 180.
* RuBhworth v. TayJor, 3 Ad. Ji El. N. B. 699.
* Canot V. HugheH, 2 King. N. C. 148.
* Pothonier v. Dawson, Holt, Cu. SSS.
* Jooes V. Hart, 2 Salk. 411. And mx Catteiall v. EeoyoD, 0 Jnr. G07.
1 Crauch v. Whit«, 1 Bine. N. C. 114 i PerkuiB v. Saulh, 1 WiU. 828 ; Stephen* v.
Elwall, 4 M. & S. 260.
> RuKhworth f , Taylor, 4 Jur. aiB ; & □. S Ad. & El. S. a. 699.
* Bamardiaton v. Chapman, dtcd 1 Eut, 120 ; HalUdaj v. Camaell, 1 T. R. AGS ;
DftuieU p. DsnieU, 7 Uaai. 137, per Paraoiu, C. J. : BiTsnt v. Clifford, IS Hot 1S8.
H FenDingB «. Ld. Grenville, 1 Taimt. 211.
686 LAW OF EYIBENCB. [PABT IT.
cases, mnst prove that the act of the defendant was tortious,
having the effect, so far as the plaintiff is concerned, of a total
destruction of the property.^ (a)
I 1 Taunt 249 ; Co. Litt 200 a, h; BalL N. P. 84, S5 ; 2 Saund. 47 K ^t Wfl-
liams ; Guyther v. Pettyjohn, 6 Ired. 888 ; Weld v. Oliver, 21 Pick. 559. Whether
the absolute sale of the whole of the entire chattel by one of several owners in common
18 of itself sufficient evidence of a conversion to make him liable in trover at the suit of
his co-tenant, is a point upon which there is some difference of opinion. The rule of
the common law, that trespass lies where one party destroys the thing owned in com-
mon, is not controverted. And it is generally conceded that the party is eoually lialde
in trover for an actual conversion of the property to his own use, at least, where the act
of appropriation is such, as finally, by its nature, to preclude the other party from any
future enjoyment of it Such is the 6aae where it is consumed in the use. And upon
the same principle, where the sale is one of a series of acts, whether by the vendor or
vendee, wnich result in putting the property forever out of the zeach of we other party^
it is a conversion. Such was ue case of Bamardiston v. Chapman, 4 East, 121, where
the defendant forcibly took the ship, owned in common, from the plaintiff's possession,
changed her name, and sold it to a stranger, in whose possession she was lost in a storm
at sea. Here the court resolved that the taking from the plaintiff's possession was not
a conversion, but left it to the jury to find from the circumstances that the ship was
destroyed by the defendant's means ; which they did, and it was held well. But a sale
alone was deemed insufficient to establish a conversion, by the opinion of the whole
court, in Heath «. Hubbard, 4 East, 110, 128, though the case itself was decided on
the ground, that in the instuice before them there was not a legal sale. Such also was
the opinion of Best, J., in Barton v, Williams, 5 B. & Aid. 895 ; to which Holroyd, J.»
inclined ; though Bayley, J., was of a different opinion, and Abbott, C. J., was inclined
to think with him, tnat the sale in that case, which was of India warrants, was a con-
version. But afterwards, in the same case, upon a writ of error, in the Exche<juer
Chamber, 1 McCl. & Y. 406, 415, 416, the court observed that there was "great wei^^t
in the argument *' that the original plaintiffs, being tenants in common with the de-
fendants, could not maintain trover in a court of law on the ground of a sale, but they
did not decide the cause on that point being of opinion that the tenancy in common
had been previously severed by the parties. In this country, in a case where, two
being tenants in common of a quantity of wool, one of them, having the possession,
sold a part of it and retained the residue, claiming the whole as his own, and refusing
to deliver up any part to the other, this was held not such a conversion of the property
as to sustain an action of trover. Tubbs v. Richardson, 6 Vt. 442. See also Selden «.
Hickock, 2 Caines, 166. The same doctrine was held in Oviatt v. Sage, 7 Conn. 95,
where one tenant in common of a quantity of cheese had sold the whole to a stranger.
That there must either be "a destruction of the chattel, or something that is Moiva-
lent to it,'* was the opinion of Chambre, J., in Fennings v. Ld. Grenville, 1 Taunt
249. And accordingly, in this case, it was resolved, that the conversion of Uie chattel
into its ultimately destined and profitable material, as, of a whale into oil, was no sever-
ance of the tenancy in common. On the same principle, namely, that while the thiiig
substantially exists within the reach of the partv, the tenancy in common remains un-
changedjit has been repeatedly held that a siue of the entire chattel by the sheriff, on an
execution against one of the owners, does not sever the tenancy, or devest the prop-
erty of the others. St John v. Standring, 2 Johns. 468 ; Mersereau v. Norton, 15 Johns.
179. But a disposition of a perishable article by one joint owner, which prevents the
other from recovering the possession, is deemed equivalent to its destruction. Lucas «.
(a) A tenant in common may maintain N. H. 255 ; Dahl v. Fuller, 50 Wis. 501.
trover a^inst his co-tenant sfter it is Or, when the co-tenant has sold the
proved that a demand was made that he chattel as his own. Weld v. Oliver, 21
be admitted to his rights as a co-tenant Pick. (Mass.) 562 ; Wilson 9. Beed, 8
and there was a refu;^ to recognize such Johna (N. Y.) 177 ; Person v. Wilson, 25
rights, coupled with a distinct claim of Minn. 189. Ct Sanborn v. Morrill, 15 Vt
entire ownership. Grove v. Wise, 89 Mich. 700 ; Burton v. Burton, 27 Vt 95.
161 ; Danbury Comet Band v. Beau, 54
§ 647. Trovar by btubuid and wlfo; If trover 18 broaght by
kuBband and wife, for goods wliieh were the sole property of the
Wanon, 3 Der. SSS ; canfirmrd in Cole r. Tenr, 2 Der. t Bat. 253, 2CI4. See alao
F«mi V. Beswick, 1 M. * W. 688 ; .Mayhaw r. Hurriclt, 18 Law J. 178. C. P.
But there mre cacas, on the other hand, in which it h>a beea said that a aale alone
\>f one tenant io common ia aufficient to charge him in troTer for a couversion of the
•iitiro chattel. The earliest and leading case to this elfect is that of Wilson tl al. *.
Keed, S Johns. 175 ; in which it appwred thmt the plaintifT and one Gibbe were joint
owners of a hogshead of rum and a pair of scale beams, which the sberiff seized and
sold t'n Uto to the defendant, by rirtue of an execntion against Gibba. The del'endant
Hold the rum at retail to his customers ; and in an action of trover broaght against hint
for the goods by the other two owners, the jndge at Niat Priiu instmcted the yatj that
the retailing of the rum by tiis defendant wu m law a dsstructian, so as to enable the
Plaintiffs to maintain thaaction to this extent ; and his instructions were held correct.
he learTied judge who delivered the opinion c^ the coart in bank, placed it, as to this
point, on the general ground, that a sale was a conreninn of the property. But aS' in
this case the property oad actually been consumed by the vendee, beyond the power of
T«coiery, it was to all inConta an actaal conversion, and the general remark was wboUj
nncalled for by tlie case in jndgment. The aame doctrine, however, was recognized
in Hyde t. Stone, 8 Cowen, £30. This was an action of trover for certain articles of
household furniture, farming uteoails and other personal property, of which the plain-
tifT was tenant in common with his st«p-fatlier, the delen<Iant It was admitted by
the defendant, that some of these articles hsd been sold by him at different tlmea sines
his marriage, during ■ period of six or seven years ; and that others had been daatroyed
and others nearly worn out ; of all which it appeared that he had exhibited an account,
•stimating the nilue of the several attiolea, and chargintc the plaintiff for the valoe of
his board, &c., leaving a balance doe to the plaintilT. for which he admitted himself
liable, and promised to pay. Hereupon the judge instructed the jury that the plaintiff
was entitled to recover the value of hia ahare of the goods ; and tiieae instmctiooa were
held correcL Here also it is manifest, that the articles which had been sold were ut-
terly and for ever gone beyrad the teach of the plaiiitilT, by means of the wirmsful act
of the defendant ; and that as to theac^ as well as those destroyed, the proof of actual
conversion was complete. The remark, therefore, of the learued judge, who delivered
the opinion of the court, that, for a sale, trover will lie by one tenant in commoD
aftaiitst another, refemng to the case of WUson v. Beed, was not colled for by the case
Wtbre him, and may be regarded aa an Bbiier dietitm. A new trial having been granted
npon other grounds, the jury were again inatnuited that the plaintiff was entitled to
tiKMver the value of hi* two thirds of all the property sold, loet, or dcMroyed. But it
is obeervable that the court, in their final judgment (7 Wend. 36a-3&8), r^arded the
property aa wholly lost to the plaintiff by the fanlt of the defendant ; the only proposi-
tion laid down as tho basis oi their judgment being the settled doctrine, that trover
will lis by one tenant in commwi against another for tbe Io«b or destruction oi the
chattel wbile in his poasesaion. Of a similar character was tlie cose of Mumford r. Mc-
Kay, 8 Wend. 112, which was ■ sale of wheat in the grain ; and of Farr t. Smith, 9
Wend. 888, which was a sale of wheat in the aheaf ; in both of which cases the con-
version was actual ; though in both also, and apparently without moch consideration,
a aale seems to have been taken as in .itself, and in all circnmstances, a converaion.
But the point was subaoqnently brought directly before the Sapreme Court of the same
State, in White v. Osborne, 21 Wend. 72, which was tbe aale a an entire sloop plying
on l^ke Champlaln ; which was held a oonvenion. The deeisioa of tbe coutt in this
case was placed partly on the grmnd of the ditta above quoted, and parti* on tbe de-
cision in Wilson V. Reed. Unmford o. McKay, and Hyde e. Stone, whidi have juat
been conaideied. gubeequently it has been held in Kae York, that if the aheriff sella
the entire pn^rty in gixid* owned by two, on an exeention ^^iittt one of tfaem only,
it in an abuse of his legal authority, which renders him liable as a trespasser oi initio.
Waddell V. Cook, 2 Hill (N. Y.), il. See also Melville «. Bn>wn, 16 Mass. 82, which.
though briefly reported, wsa in fact very elaborately argued and well ooasidered. But
thia prant stands entit^y clear of the question, whether one tenant in commoo may
have trover for a sale only by the other. See farther, Lowe p. Miller, 8 Gratt. 20C ;
Hnrd v. Darling, 14 VI. 214 ; Weld «. OUver, 21 Pick. 66» ; Bain* e. UcMairy, 4
Homph. SS6.
688 LAW OP EVIDENCE. [PABT IV.
femt^ and were taken before the marriage, proof of a conversion
before or after the marriage will support the action; but if the
husband sues alone, he must prove a conversion after the marriage.^
If the action is against the husband and wife, the plaintiff must
aver and prove either a conversion by the wife alone, before the
marriage, or a subsequent conversion by the joint act of both;
and it seems that, in tlie latter case, the evidence ought to show
some act of conversion other than that which merely goes to the
acquisition or detention of the property to their use ; for if the
goods remain in specie in their hands, it is a conversion only by
the husband.^
§ 648. Defence. The Defence of this action in the United
States, when it does not consist of matters of law, is almost
universally made under the general issue of w>t guilty ; a special
plea in trover being as seldom seen here as it was in England
under the old rules of practice. And though in the latter country
this plea is now held, and perhaps wisely, to put in issue only the
fact of conversion, and not its character, as rightly or otherwise,
nor any other matter of inducement in the declaration, such as
the title of the plaintiff, nor any matter of title or claim in the
defendant, or of subsequent satisfaction or discharge of the action ;
yet in this country, as formerly in England, this plea still puts the
whole declaration in issue.* (a) Under it, therefore, the defendant
may prove, by any competent evidence, that the title to the goods
was in himself, either absolutely, as general owner, or as joint
owner with the plaintiff, or specially as bailee, or by way of lien ; *
»
1 2 Saand. 47 g, by WiUiams.
* 2 Saand. 47 h, i, by WiUiams ; Draper v. Fulkea, Yelv. 165, and n. (1), by Met-
calf; Eeyworth v. Hill, 8 B. & Aid. 685.
< 2 Selw. N. P. 1068 (2d Am. ed.), 13 (Eng.) ed. 1309 ; 1 Chitty, PL (16tli Am. ed.)
• 580 ; Bull N. P. 48.
* Skinner v, Upahaw, 2 Ld. Raym. 752 ; Bull. N. P. 45. But to rebat the evidence
(a) Any matter, however, which must a special plea or notification of matter in
be pleaded in abatement cannot be availed jnstification in order to admit it. Pico v.
of under the general issue. Thus, where Kalisher, 55 Cal. 153 ; Fiy v. Soper, 39
one sued in the name of a next friend, Mich. 727.
though she was at the time a married wo- There are some cases where it is advan-
man, it was held that this was waived by tageous to plead a justification rather than
a trial on the merits of the case. Royce to rely on its introduction in the evidence.
V. Vandeusen, 49 Vt. 26. And it is to be Thus, when it is intended to rely on judi-
observed, that in States where the defend- cial proceedings, which, if set up as a
ant is obliged to give notice, when he files plea, act as an estoppel, but which, if in-
his general denial, of any justification, any troduced in evidence, may be rebutted, it
evidence of a justification, such as that is plainly better to plead the jnstificatioiL
the defendant took the goods as sheriff in Johnson v, WiUiams* 48 Vt. 565.
the execution of process of the court, needs
or that he took the goods for tolls, or for rent in arrear ;^ or he
ma,y disprove the plaintiffs title by showing a paramount title in a
stranger, or otherwise ; ' or lie may prove facts showing a license ; '
or, a subsequent ratification of the taking;* or, that the plaintiff
has discharged other joint parties with the defendant, in the
wrongful act complained of .^ (a) It has been said tliat a release
is the only special plea in trover;' but the statute of limitations
also is usually pleaded specially ;^ and indeed there seems to be
no reason why the same principle should not be admitted here
which prevails in other actions, namely, that the defendant may
plead specially anything which, admitting that the plaintiff had
once a cause of action, goes to discharge it.^
§ 649. Domftgw. The measure of damages in this action has
already been considered under its appropriate head.' (b) It may
be added that special damages are recoverable, if particularly
alleged.''* If the subject is a bill of exchange, or other security,
the plaintiff is ordinarily entitled to the sum recoverable upon it,
of a demand aad refaaal, he mast bIio* th&t he meittioued hie lien at the time of i«>
fiual. Boardman v. Sill, 1 Csmpb. 410, n. See funher Laclough v. Towle, Z Eap.
lU. and the cases of Ubq collected in Boscoe on Evid. 40S-113<lBt Am. ed.), 0(1-961.
13th(Encr.)ed.
* Wallace e. King, 1 H. Bl. 13 ; Kline v. Hiuted, 3 C^net, 275 ; Shipwick «.
Bknchard, 6 T. K. 2U8.
* Dawes c Peck, B T. R. 330 ; Schermerhorn v. Tan TolkenbnTA 11 Jolins. &29 ;
Kennedy «■ Strong, 14 Johns. 128 ; Botan n. Fletcher, IB Johns. 207.
■ Clarke v. Ckrke, S ERp. SI ; Bird v. Aetuck, 2 Bnlstr. 280.
* Hewes v. Parkman, 20 Pick. 90. * Dufresne v. HntchinBon, 3 Taunt. 117.
* Per Twisden, J., in Devoe o. Corydon, 1 Keb, 306.
t Bull. N, P. 48 ; Winfffield v. Stratford, Sayer, 15, 18 j Sitayn «, Stephens, Cro.
Car. 245 ; Granser v. George, fi B. & C. 150 ; 1 Campb. E58, per Ld. Ellenborough ;
1 Danv. Abr. 16.
* 1 Tidd's Pr. 698. See YeU. 174 a, a. (I), by Metcslf.
' >$Uf>ra,tit Damsses, $ 276. See alao tuyra, 036 a. See further Countess of Rut-
land's Case, 1 Roll. Ahr. G, In an action of trover, there can be but one assessment of
damaKSB. If there are several defendants, and some are defaulted and others are found
Snilty, the judgment is joint, and the verdict settles the amoant of damsges for all the
efendants, as well those defanlted as those found gnilty. Gerriah v. Cummings, 4
Cuah. 392.
" Davis V. Oawell, 7 0. * P. 80* ; Moon o. Raphael, 2 Bing, N. C. 810 ; Bcdle^ o,
Reynolds, 10 Jar. 310 ; 3 Ad. ft El. 779.
(a) Ot be may prove a sale to himself noD of bonds is the value of the bonds at
by the plaintiff pnor to the alleged con- the time of oouversion, with interest after.
venrion. Richard e. Wellington, 6fl N. Y. Tyng v. Conn. Warehouse Co., fiS N. Y.
308. Whore two partners wrongfuUv took 809 ; Baker v. Drake, 63 N. Y. 211 : over-
nertain property, and one afterwards set* ruling Harkham r. Jordan, 41 N. V. 28S,
tied with tlie owner for one half thereof, which holds, that the highest market price
the owner was permittnl to bring trover between the conversion and bringing the
against the other partner for the remalalng suit is the ranmre of damages. See also
lialf. HcCrillis V. Hawes, 38 He. 566. atUe, 1 276.
\b) The rule of damagci for the ooanr-
though the defendant may hare sold it for a leSB sma.* (a) And
though the defendant cannot, under the general issae, show the
non-joiuder of another part owner, to defeat the action, yet he may
give that fact in evidence, in order to reduce the plaintifTs dama-
ges to the value of his own interest or share in the property.'
Where the property has not been restored, the general measure of
damages is the value of the thing taken, to which the jury may, in
their discretion, add interest on tlie value ; ^ and if the goods have
been fairly sold under authority of law, the amount realized by the
sale will ordinarily be taken as their true value.* But it has been
held in England, that the jory are not bound to find die value at
the time of the conversion, but they may find, as damages, the
value at a subsequent time, at their discretion." (i) In tliis coun-
ixy, however, the courts are inclined to adhere to the value at the
time of the conversion, unless this value has subsequently been
enhanced by the defendant.^ (c) But if the property has been
restored to the plaintiff, this will go in mitigation of the dam^es ;
1 AlsagPT V. Ctose, 10 M. & W. G7fl ; McLeod v. M'Ghie, i Mui. & Gr. 8Sfl ; Hercer
V. Jones, 3 Campb. 477.
> Blaiam v. Hubbard, 6 Eut, 420 ; Nelthrape v. Dorrington, Z Lev. 113 ; Whcel-
wriKht V. Depeysler, 1 Johns. 171.
* Finch v, Blount, 7 C, ft P. 478, per Patteson, J. ; Johnsoo «. 3nmiier, 1 Uet 173 ;
Mathews r. Menedger, 2 McLean, 145 ; Clark u. Whitakar, 19 Conn. 319.
* Whitmora v. black, 13 M. k W. 607. Ir the ^oods hare been converted into
iDODey by the dcTeDdant, to hia own use, this aum, vnth interest, will be the lowest
measure of daniBgea. Ewart «. Kerr, 2 McMullen, 141.
* Greening v. Wilkinson, 1 C. ft P. S2G. And see Coot v. Eartle, 8 C. fc P. G28 ;
Whitehouse v. Atkinson, S C. ft P. S44.
* Supra, tit. Damages, j 276.
(a) Where the action ie for the conTer- Sahoon v. Horwitz, 28 Kng. I<w ft Eq.
■ioD of the negotiable note of a third per. 17G. In an action uainst the asei^ee of
ton, the ntessuie of damages ia the amount an insolvent debtor, for the conveiaion bj
of each note aad interest, nnleaa it ia of him of prapertj claimed by the plaintifT
less Tslue, b; reason of payment, ineol- nnder a conveyance Trom the debtor, if Um
Tency of the ouker. or same other lawful jury find the conveyance void ojider the
defence, which l^timati;ly impaira its insolvent law, the plaintiff cannot recover
value. Booth v. Powers, Se tl. Y. 22 ; the cash paid by him to the debtor for th«
IngalUu. lxird,lCoiven(!i.y.), 240; Sedft difference ia valuv between such property
on Damages (2d ed,), 488. And the same and the debt which the conreyance wa*
rale applies where the action is for the con- msde to secnre, Bartlctt t. Decreet, 4 Gray
' version of tbe plaintifTs own note. Evans (Mass.), Ill, 113, Where a chatMl has
v. Eymer, 1 B. & Ad. S2S; Thayer v. Mmi- been sold, with an aipmment to pay in in*
ley, 73 S. Y. 305. stalmenta, and, on failare fa pay, the piop-
(£) See Forsyth v. Wells, 41 Pa. St. S91, erty veste in the vendoi', if he brings trover
where tbe cases in regard to the nMasure oif against a third party for conversion of the
duDBses are cited and reviewed, chatlel, after some instalments have been
le) Moody v. Whitney, 3S Me. 174 ; paid, the measnre of damages is tbe full
Backmaeter v. Smith, 22 Tt 203 ; Swift ralne of the chattel. Colcord v. MacDon-
V. Bamum, 23 Conn. 628 ; Covell e. Hill, aid, 128 Maaa. 470 ; Angier v. Tannton.
2 Selden (S. Y.), 374 ; Ewiug r. Blount, he. Co., I Gray (Hssa.), 621 ; Hyda «.
30 Alft. 604 ; Funk *. Dillon, 21 Mo. 294 ; Cooksoo, 21 Barh (S. Y.) »i.
and if it has been recovered by him, by the payment of a revard
or otherwise, the expense so incurred is to be allowed to him by
the jury.' (a) If he can be indemnified by a sum of money less
than the full value, as, for example, where he has only a special
property, subject to which the defendant is entitled to the goods,
that Sum is the measure of damages. But if he is responsible
over to a third person, or if the defendant is not entitled to the
balance of the value, the plaintiff is entitled to recover the whole
value.' Where the action is against an executor de eon tort, proof
that the'goods have been applied in payment of debte of the in-
testate is admissible to reduce the damages ; but he cannot retain
for his own debt ; nor, as it seems, for moneys of his own which
he has expended in payment of other debts of the intestate, if the
goods still remain in his hands.*
1 OreeDfield Bank v. Learitt, 17 Picb. 1. And ne PlercM «. BenJBmin, 11 Hck.
tsa, Sei ; Yale v. Snaiid«n, 16 Vt 2<3. So, if the gooda h».ve been Ulegall; sold, in
diochBTga or & lien, sod bought la b; thi owner, who niea the seller in trovor. Hunt
V. Hsskell, 11 SbepL 309.
* Chunberkin v. Shair, 18 Pick. 3TB, 2S3, S84.
• BaU. N. P. i8 ; WhitahaU v. Squire, Cuth. 104 ; Monutford v. Oibsou, i Eart,
441, 447.
(a) Cnrtia v. Ward, 20 Conn. 204 ; Ew. fbe property of tbe pldntifr uid be ctanot
ing c. Blount, 20 AU. 694. Where a plain- aae a second time. Atwater v. Tnpper, 45
tin haiobtainedJndgnieDtintroTeragaiaiit Conn. 144.
one who hu converted hia goods, he may Jud|^ent recorered (thoagb without
SDe another who has subsequently con- aatiafaction) in trover for coavenion by a
verted the same goods, and recover ttie full wrongful sale is a bar to an acdoo for
valoe of the goods. But if the prior judg- money had and received for the proceeds
ment has been satisfied in part, such satis- of the same sale, tgainst another, whether
lection should be dedacted^m the jnilg- a party to tbe conversion or not. Buck-
ment in the second emt, and if tbe pnor land ft Johnsoo, 26 Eng. l^w & Eq, 828.
judgment is satisfied in lull, this devests
642 LAW OF EVIDENGE. [PABT IT.
WASTE.
§ 650. Waste defined. Waste is ^^ a spoil or destruction in
corporeal hereditaments, to tlie disherison of him that hath the
remainder or reversion in fee-simple or fee-tail." ^ (a) It includes
every act of lasting damage to the freehold or inheritance, and is
punishable either by an action of waste or by an action on the
case. The former is a mixed action, in which the plaintiff gen-
erally recovers possession of the place wasted, which is forfeited
by the tenant, together with damages for the injury ; but, in the
latter action, damages only are recovered.
§ 651. Action of waste. The old action of waste still lies in
some of the United States, the Statute of Gloucester, 6 Edw. I.,
c. 5, having been brought over and adopted in those States as
part of the common law ; ^ (i) though it is seldom resorted to ;
but, in others, it has never been recognized; the only remedy
being either an action on the case or an injunction.^ (^c)
1 2 Bl. Comm. 281 ; Co. lit. 52 h, 58.
* Jackson on Real Actions, p. 840 ; Carrer v. MiUer, 4 Mass. 559 ; BandaU «.
Cleaveland, 6 Conn. 829.
s Shnlt V. Baker, 12 S. & R. 278; Findlay v. Smith, 6 Munf. 134; Bright v.
Wilson, 1 Cam. & Norw. 24 ; Sheppard v. Sheppaid, 2 Hayw. 882 ; Stoij, £q. Jnr.
§917.
{a) See Cruise's Digest (Greenlears ed. dig ores, is not gnilty of committing waste
1856), vol. i p. I20T115), tit. iii c. 2, when be takes more ore out than his con-
§§ 1-76, and notes. Plaintiff must have tract allows him. GmbVs Appeal, 90 Fla.
the legal title. Gillett v. Treganza, 18 St. 228.
Wis. 472. The complainant in a hill prayipff an
{b) Cruise's Digest (Greenleaf' s ed. ii^'unction of waste must also show title in
1856), tU supra, § 26, and n. the land, and one who is only an attaching
{c) The case which must he made out creditor or judgment creditor, or a holder
where the reversioner applies to a court of of a certificate of purchase under an execn-
' equity to have the tenant eigoined from tion before he gets his deed, has not such
committing waste, is in most respects sim- a title as will maintain the bilL Law v.
ilar to that which would he necessary to Wilgees, 5 Bias. C. C. 13.
support an action at law, but it must also Nor will such a title maintain a bill for
be shown that the plaintiff's action at law an account of waste. Hughlett v, 'Bbthb,
would not furnish him with an adequate 1 DeL Ch. 849.
remedy. But a purchaser under an execation, who
If the person who commits the waste is has got his deed of the land, may proceed
not a tenant, the injunction will not be immediately. Litka «. Wiloox, 89 Mich.
granted. Thus a person who is not ten- 94.
ant in poflseaaioD, but possesses a right to
:tion of watte lies against a tenant
him only who has the next im-
1 reversion or remainder. The
tration, and which the plaintiff
^1} the. title of the plaintiff, in
is entitled to the inheritance as
ntry on intrusion, or any other
^ars is set forth in the tenant ;
other title of the tenant, but
leceBsary in stating an adrer-
7, and amount of the waste,
ted, as, whether in the whole
1, and whether it were done
t parts of a wood, or totally,
"he averment of tennre may
T, holdt," or in the tenuit,
to the time (rf the waste
■) action. In the former
Tasted, namely, that part
i ezcluairely done, if it
reble damages. Bat in
', he will hare judgment
mmitted by an assignee
action, if brought by
1 against the ori^pnal
his bailiff or servant.
' inheritance, and the
e latter is considered
ite done by himself.
ste, and afterwards
against the original
from the assignee,
lis assignor having
it if the assignee
to the action. It
good plea to this
>n-tenur8, as, for
nt in dower or
T all his estate,
if be was the
644 LAW OF EVIDENCE. [PABT lY.
assignee, he may plead the assignment, and that no waste had
subsequently been committed.^
§ 653. Oeneral issue. The plea usually termed the general isstie^
in the action of waste is, that the defendant ^* did not make any
waste, sale, or destruction in the messuage and premises aforesaid,
as the plaintiff in his writ and declaration has supposed/' This
plea has been said to put in issue the whole declaration ;^ but the
better opinion seems to be, that it puts in issue only the fact and
circumstances of the waste done, to which point alone, therefore,
is any evidence admissible. If the defendant would contest the
plaintiff's title, or would show any matter in justification or ex-
cuse, such as, that he cut the timber for repairs, or the wood for
fuel, or that his lease was without impeachment of waste, or that
he has subsequently repaired the damage prior to the commence
ment of the action, or that he did the act by license from the
plaintiff, or has any other like ground of defence, he must plead
it specially.'
§ 654. Case for waste. In an action on the easey in the nature
of waste, brought by a landlord, whether lessor, heir, or assignee,
against his tenant, whether lessee or assignee, their respective
titles are not set out with so much precision as in the action of
waste, but their relations to each other are stated in a more
general manner ; namely, that the defendant was possessed of the
described premises during the period mentioned, and held and
occupied them as tenant to the plaintiff to whom the reversion
during the same period belonged, under a certain demise pre-
viously made, and for a certain rent payable therefor to the
plaintiff. But if the defendant is tenant for life, and the plaintiff
is remainder-man or reversioner, it seems necessary to set forth the
quantity of the defendant's estate ; but it is not necessary to state
the quantity of the estate of the plaintiff ; nor is it expedient ; for
if he does state it, and mistakes it, the variance will be fatal.^ (a)
1 See JockaoD on Real Actions, pp. 829-387, where also may be fonnd precedents
of the varioiu ooonts in this action. See also 2 Inst 801-802 ; 2 Saund. 252 a, n. (7)
by Williams.
* This opinion of Seijeant Williams, 2 Sannd. 488, n. (6), founded on an implied
admission of the point in a case in 2 Lntw. 1547, is shown to be not well founded, in
Jackson on Real Actions, pp. 888, 889.
> 2 Saimd. 838, n. (5) by Williams ; Jackson on Real Actions, pp. 889, 840.
« 2 Saund. 252 c, d, n. by Williams.
(a) In most States the common-law ac- statutes, but the main features of the old
tion of waste is more or less ohanged by common*law action are generally preserTed.
§ 655. PlsadlngB. In both these kiridt of action, it seems neces-
Bary to state in the declaration the speciai matte complained of,
as, whether it were Toluntarj or not, and whether in the house,
and in what part thereof, or whether in the fences or trees, and
the like ; (a) and the plaintiff will not be allowed to give evidence
of one kind of waste under an averment of another ; as, if the
defendant is charged with uncovering the roof of the house, the
plaintiff will not be permitted to prove waste in the removal of
fixtures ; and if the averment is, that the defendant permitted
the premises t« be out of repair, evidence of acts of voluntary
waste is admissible.^ But it is not necessary in either form of
action for the plaintiff to prove the whole waste stated ; nor, in
an action on the case, is there any need that the jury should find
the particular circumstances of tlie waste, or find for the defend-
ant as to so much of the waste as the plaintiff fails t« prove ; for
in this action the plaintiff goes only for his damages.^
§ 656. Wliat plaintiff mnst proro. Under the ffeneral isme of
not guilty, in the action on the case, the entire declaration being
open, the p/atnti^ must prove (1) his title, and the holding by the
defendant, as alleged ; (2) the waste complained of ; and (S) the
damages. But it is to be observed that in the United States
> Saand. 25S if, n. b; Williama ; Edge v. PembertoD, IS H. ft W. 187 ; ante, vol.
L § 52. If tbe H-sate is onlj permiaaiTe, it aeetns that an action on tbe caau in the na-
ture of WBiXe doe> not lie, the remedy, it' any, being only in contract. Counteaa of
Pembrok«'s Case, 5 Co. 13 ; Gibson v. Welln, 1 New Bep. S90 ; Heme c. B«mbow, i
Tannt. 761 ; Jonea v. Hill, 7 Taunt. S92 ; llartin e. Gillam, 7 Ad. Jc El. 540. But
this action lien for noate done by a t«naJiC, holding over a^er the eipiratioD of hia
lease. Kiulyaide v. ThurDton, i W. BL 1111 ; Burcbell v. Uomaby, 1 Campb. 3S0.
* 2 Saund. 252 d. e, n. by WUliamfl.
It 13 neceuary to prove a legal title in the Phila. 504. The action on the case in the
piainCifT. natare ot waste was devised to avoid the
Thus ^liere one had lands granted bim defective and inadequate remedy atTorded
by act of Congress but the legal title did by the action of waate at common law. and
not veflt in him till the patent and aur- as modified b; the Statute of Marlbridge,
*ey had been made, it was held that be 62 Hen. III. c. 23, and by 6 Edw. I. c. 6,
had no action of waste till he acquired and to provide an elfectual remedy against
snch legal title. Whitney e. Morrow, 84 tenant or stranger where no privity eiiats,
Wis. 641. Dickinson v. Mayor, Ac. of Baltimore, 48
But the privity of estate reqaired by thft Hd. 583; 4 Kent, Com. 8S ; Taylor.
old acCiim o/vm^, is not necessarv in the Landl. k Ten. g S88 ; 1 Washburn, Reel
action on llU cat* for waate as it is eetab- Prop. 153,
lialied in nrnat of the States, and whenever (n) The Court, in Strout e. Dnnning, 73
an iieHoa, of aatU could be maintained at Ind, 843, say, " We cannot say that it is
common law, foran injury committed by waateinatenantforlife toptbughupgraaa,
one privy in CKtate to the plaintiff, Che rem- nor that destroying or selling tim^r ii
edy for such an injury committed by a waste wilhont some description of tbe tim<
stranger is by an aetioit <m tht eatt in the ber destroyed or sold, or some statement of
nature of mate. Pattenou ■>; Cnnlilfe, 11 the attending circnnuitanoe*."
646 LAW OF EVIDENCB. [PABT lY.
the law of waste is not held precisely in the same manner as in
England ; but it is accommodated to the condition and circum-
stances of a new country, still in the progress of settlement, (a)
Therefore, to cut down trees is not always held to be waste here,
in every case where, by the common law of England, it would be
so held ; but regard is had to the condition of the land, and to
the object of felling the trees, and whether good husbandry re-
quired that the land should be cleared and reduced to tillage ; and
generally, whether the tenant has, in the act complained of, con-
formed to the known usage and practice of the country in similar
cases.^ And to what extent wood and timber may be felled with-
out waste is a question of fact for the jury to decide, under the
direction of the court.* (6) Under this issue, therefore, it would
seem that the defendant may show that the act done was according
to the custom of the country, and for the benefit of the land, it
being virtually to show that it was no waste ; though by the com-
mon law of England, such a defence, being matter in justification
or excuse, must be specially pleaded.^ (e) But it is no defence to
1 FindUy v. Smith, 6 Munf. 1S4 ; Jackson v. Brownson, 7 Johns. 227, 233 ; Park-
ins V. Cox, 2 Hayw. 839 ; Hastings v, Crunkkton, 8 Yeates, 261. See 1 Cruise's
Dig. tit. 3, Estates for life, c. 2 (Greenleaf's ed. 1856), vol. L p. 120 (* 115), § 2»
and n.
' Jackson v. Brownson, 7 Johns. 227, 288.
* Ibid. See Simmons v. Norton, 7 Bing. 640 ; 8. c. 6 Moore k P. 645.
(a) " It is apprehended, that a more in cold weather keep a separate fire, does
liberal rule is now applied in respect to not of itself prove an unreasonable use.
constnictive acts of waste in England than Smith v. Jewett, 40 N. H. 530.
formerly, and there certainly is a much more (b) The tenant for life has a right to
liberal construction put noon such acts in work open mina (Reed v. Reed, 1 C. K
this country than that of tne common law. Green (N. J.), 248), but not to open
The proper test in aU these cases seems to mines that have never been opened before
be, Does the act essentially injure the in- he came into possession, or that have been
heritance as it will come to the reversioner? abandoned before he came into possession
and this is a question for the jury." 1 (Viner v. Yaughan, 2 Beav. 466 ; Gaines v.
Washburn on Real Propeity, 146. Green, &c Co., 32 N. J. £q. 86). Yet if
In this country, no act of a tenant a mine has only been temporarily aban-
amounts to waste, unless it is, or may be, doned, for want of a market, he may work
prejudicial to the inheritance, or to those the mine. Bagot v. Bagot^ 82 Beav. 509 ;
who are entitled to the reversion or remain- Legge v. Liegge, lb. 515.
der. Pynchon v. Steams, 11 Met (Mass.) (c) In England, it is waste if a tenant
304. See also Crockett v. Crockett, 2 Ohio cuts down trees and sells them in order to
St. 180; McCuUough v. Irvine, 13 Pa. St. get money to make repairs which he is
488 ; Clemence v, Steere, 1 K. I. 272. As obliged to make. Bac. Abr. Waste, F. 1,
incident to an estate for life, the wife may Co. Lit 58 b. In America, this doctrine
rightfully take from the land a reasonable has been modified b^ the sound sense of
amount of fuel for the supply of herself Judge Story in Loomis v. Wilbur, 5 Mason,
and family, upon the fiirm, including the C. C. 18, where he holds this not to be
persons employed to cultivate it ; and the waste if it is the most economical way of
lact that such persons are paid by a share making repairs, and most for the benefit of
of the crops, as tenants at tbe halves, and all ooncemed, and the proceeds are boM
648 LAW OP EVIDENCE. [PABT IT.
WAY,
§ 657. Foundatioii of private rlsht of way. A private right of
way may be said to exist only by grant or agreement ; for pre-
scription is but a conclusiye presumption of an original grant or
right ; and necessity, such as creates a right of way, may be re-
garded as a conclusive presumption of a grant or a license.^ (a)
The nature of a prescription, whether for a right of way or o^er
incorporeal franchise, has already been considered under that title.'
§ 658. Way of necessity. A right of way of neeeiiity is founded
on an implied grant; but convenience alone is not sufficient to
raise the implication of a way.^(i) Where one has a way of
1 Nichols V, Luce, 24 Pick. 102 ; Woolrych on Waysy p. 72^ n. (q) ; Gayetty «.
Betbune, 14 Mass. 49, 58.
« Supra, IS 587-546.
• Nichols V, Luce, 24 Pick. 102. And see Brice «. Bandall, 7 GiU 4b J. 349.
(a) A rij^t of way carries with it all to the land of the grantor. Bowen v. Con-
rights to the use of the soil properly inci- ner, 6 Cush. (Mass.) 132; Croise^s Digest
dent to the free exercise and enjoyment of (Greenleaf's ed. 1856), tit xziv. Ways,
the right granted or reserved. The abut- vol. 11. pp. 25-35 (*85-^91).
ters on such way have a right to make (b) Wissler v. Henhey, 28 P^ St 838 ;
improvements therein, so as to make it Kimball v. Cocheco R. R. Co., 27 N. H. 448 ;
more beneficial to themselves, without in- McTavish v. Carroll, 7 Md. 852. See also
jury to the owners of the land, or others Hyde v, Jamaica, 27 Vt 443. A right of
having an equal right of way ; but they way by necessity can only arise by grant
have not a right to use it for another and express or implied ; it does not exist where
distinct purpose, and it is for the jury in the title of the party is by escheat Proctor
any given case to determine whether the use «. Hodgson, 29 Eng. Law k £q. 458. Nor
complained of is for another and distinct does it exist where neither the party claim-
purpose than that of a way. If it be used ing the way, nor the owner of the land
for such other and distinct purpose, the over which it is claimed, nor their privies,
owner of the land may have his action, al- was ever seised of both tracts of land,
though he sustains no actual damage ; the Stewart v. Hartman, 46 Ind. 881. Where
law permitting him to recover nominal land conveyed is wholly surrounded by
damages to vindicate his right. Appleton land of the grantor, or partly by this and
V. Fullerton, 1 Gray (Mass.), 186, 192, 194; partly by lands of strangers, a "way of
Atkins v. Boardman, 2 Met. (Mass.)- 467. necessity'* over the grantor^s land passes
Where a grantor conveys land, bounding it to the grantee by the conveyance withont
on a street or way, he and his heirs are es- express mention, and will continue to be
topped to deny that there is such a street or appurtenant to the land, so as to pass to
way. It is an implied covenant of the ex- another. Taylor v. Wamaky, 55 Cal. 850;
istence of such a way. Parker v. Smith, 17 Washbam, Easements ftServitudes, p. *163»
Mass. 418 ; 0' Linda v. Lothrop, 21 Pick, and cases there cited. This way of necea-
( Mass.) 292; Tufts v. Charlestown, 2 Gray sity is, however, extinguished when any
(Mass.), 272. The grantor of land may other suitable approach to the land is |Mt>-
create a right of way therein in his own vided. Oliver v. Hook, 47 Md. 301 ; Pom*
favor, by a reservation or exception thereof fret «. Ricroft, 1 Wms. Saonders, 828» n.
in the grants either in gross, or as annexed
PABT IV,] WAT. 649
necessity over another's land, the party, while the way remains
undefined, may pass over any part of the land, in the course least
prejudicial to the owner, and passable with reasonable convenience.
But it is the right of the owner of the land to designate the par-
ticular' course of such way ; and he is bound to designate a con-
venient course. If he neglects so to do, the other party may
select the tract for himself.^ (a) And if the way of necessity re-
sults from successive levies of executions upon the debtor's land,
the land taken by the creditor, whose levy creates the necessity,
must be burdened with the easement.^
§ 659. Proof of right. The proof of a private way must corres-
pond with the description, whether it be in the declaration in an
action for disturbance of the right, or in a special plea in trespass.
Evidence of user of a right of way for all manner of carriages is
not sufficient to support an allegation of such right for all manner
of cattle, though it is admissible under that issue ; nor does evi-
dence of a user of a way with horses, carts, and carriages for cer-
tain purposes, necessarily prove a right of way for all purposes.*
But the allegation of a footway is supported by evidence of a
carriage-way ; and the allegation of a private way is supported by
evidence of a public way ; for in these cases the latter includes the
former.^ The extent of the right is a question for the jury, under
all the circumstances proved. But a user for all the purposes for
which the party had occasion is evidence of a general right of
way.^ (ft) The termini of the way are also material to be proved
1 Holmes v. Qeelej, 19 Wend. 507 ; Boasell v. Jackson, 2 Pick. 674 ; CspeiB «.
Wilson, 8 McCk>rd, 170.
> Russell V, Jackson, 2 Pick. 674, 578. And see Pemam v. Weed, 2 Mass. 208 ;
Taylor v. Townsend, 8 Mass. 411 ; Collins v. Prentice, 15 Conn. 89, 428 ; Famam «.
Piatt, 8 Pick. 339.
* Ballard v. Dyson, 1 Taunt. 279 ; Cowling v. Higginson, 4 M. & W. 245. And
see Brunton v. Hall, 1 Ad. & El. n. s. 792 ; Hicham v. Rabett, 8 Jur. 588 ; 8. c. 5
Bing. N. C. 622 ; French v. Marstin, 4 Foster (N. H.), 440.
* Dayies v. Stephens, 7 C. & P. 570, per Ld. Denman ; Brownlow v, Tomlinson, 1
Man. & Or. 484.
* Cowling V. Higginson, 4 M. & W. 245 ; Allan v, Gomme, 11 Ad. k EL 759. See
iupra, §§ 544, 545. If the proof is of a use, common to all others, as well as to the
(a) If a certain route across the grant- the way. Gerrish v, Shattuck, 128 Mass.
or's land is used by the grantee as a way 571. If the owner of the servient estate
of necessity and the ^^rantor does not obstructs a way of necessity, the owner of
object to such use, this is evidence of an the dominant estate may deviate from the
establishment of the location of the way way so obstructed and go over other parts
of necessity. Bass v, Edwards, 126 Mass. of the land, doing no unnecessary damage.
445. If there is but one route along which Famum v. Piatt, 8 Pick. (Mass.) 839.
such a right of way can be exeroised, and (b) Where a right of way is acquired by
this is actually so used, it is a location of adverse possession, proof that it was used
650 LAW OF EVIDENCE. [PABT lY.
as alleged ; for, if the proof stops short of either, it is fatal, un-
less the pleadings are amended.^ But the words ^^ towards and
unto " do not necessarily bind the party to the proof of a straight
road ; ^ nor is it a fatal variance, if it appear that the way, in its
course, passes over an intermediate close of the party himself who
claims it.'
§ 659 a. Way apparteiiant Where a private way is claimed by
virtue of a conveyance of land, and as appurtenant to the same,
evidence aliundej by parol or otherwise, may be given to prove
that a particular way was then in use by the grantor ; in which
case it passed as parcel of the estate conveyed.^ (a)
Erty claiming the way, it does not establish a private way. Prinoe v, Wilbonmet 1
ch. 68.
1 See ante, voL i. |§ 58, 62, 68, 71, 72 ; Wriffht v. Rattray, 1 East, 877.
* Rex V. Marchioness of Downshire, 4 Ad. & £L 232.
s Jackson v. ShiUito, cited 1 East, 881, 882. See Simpson «. Lewthwaite, 8 K It
Ad. 226.
« Atkins V. Boardman, 2 Met 457, 464 ; White v. Crawford, 10 Mass. 183 ; ITnited
States V. Appleton, 1 Sumn. 492, 501, 502 ; Staples v, Uayden, 6 Mod. 4 ; Kent «.
Waite, 10 Pick. 188.
for a variety of purposes, ooTering every part. Miller v. Washburn, 117 Mass. 871;
purpose required b^ the dominant estate, Walker v. Gerhard, 9 Phila. (Pa.) 116.
lu its then condition, is evidence from There has been great diversity of opin-
which may be inferred a right to use the ion whether an apparent and continuooa
way for all purposes which may reasonably easement, which the grantor used before
be required for the use of that estate while severance of the dominant and servient
in substantially the same condition. Bal- estate, will pass as appurtenant to the
lard V. Dyson, 1 Taunt. 279 ; Williams v. dominant estate without special mention,
James, L. R. 2 C. P. 577. But, if the when a separation occurs by sale by the
condition and character of the dominant owner. In Gale on Easements, the role is
edtate are substantially altered, as in the stated that, '*upon the severance of an
case of a way to carry off wood firom wild heritage, a grant will be implied first of
land, upon which a manufactory is after- those continuous and apparent easements
wards established, the right of way cannot which have been in fact used by the owner
be used for new purposes, imposing a great- during the uniW, and which are necessary
er burden upon the servient tenement, for the use of the tenement conveyed,
Atwater r. Bodfish, 11 Gray (Mass.), 150 ; though they have no legal existence as
Parks V, Bishop, 120 Mass. 840. And if easements, and secondly of all those ease-
it is used for a different purpose, thoufj^ no ments without which the enjoyment of the
iigury is inflicted, the owner of the servient several portions could not be had at alL"
tenement may have nominal damages to This principle has been held not to anply
vindicate his right Appleton v. Fuller- to rights of way. Oliver «. Hook, 47 M<L
ton, 1 Gray (Mass.), 186, 192, 194; Atkins 801 ; Felters t>. Humphreys, 19 N. J. £q.
V. Boardman, 2 Met. (Mass.) 467. 471 ; O'Rorke v. Smith, 11 R. I. 259.
(a) A right of way appurtenant to land But in manv States, on the other hand, it
passes by a deed of the land, without ex- has been held that ways which are visibly
press mention of such right, or of privi- and permanentlv established on one part
leges and appurtenances. Brown v. of an estate for the benefit of another, will,
Thissell, 6 Gush. (Mass.) 254 ; Underwood upon a severance of the estate, pass as im-
V. Carney, 1 Id. 285 ; Pratt v, Sanger, 4 plied or constructive easementa, appoite-
Gray (Mass.), 84, 88. A way granted as nant to the part of the estate, for the
appurtenant is appurtenant to every part benefit of which they were established*
of the close, and parol evidence is inadmis- Cannon v. Boyd, 78 ra. St. 179 ; Kieffer
sible to limit tne right to a particular «. Imhofi; 26 Pa. St. 488; Thompson «.
652 LAW OF EVIDENCE. [PABT IT.
§ 661. TrespaM. In treyMi$$ also, if the defendant pleads a
right of way, which is traversed, the same evidence is admissible
on the part of the plaintiff, by way of rebutting the defence. So,
under this issue, in any action, it may be shown that the way has
been duly discontinued or stopped.^ But under a traverse of the
right of way pleaded, it is not competent for the plaintiff to show
that the trespass complained of was committed beyond the limits
of the right alleged ; for it is irrelevant to the issue, and should
be shown either by a replication of extra viam or by a new
assignment.^
§ 662. Public way, how proved. The existence of a public
way is proved, either by a copy of the record, or by other docu-
mentary evidence of the original laying out by the proper autlior-
ities, pursuant to statutes ; ^ or, by evidence either of immemorial
usage,^ (a) or of dedication of the road to public use. In the latter
case, two things are essential to be proved : the act of dedication^
and the acceptance of it on the part of the public ; and this may
be either limited and partial, as of a way excluding carriages, or
it may be absolute and total.^ (J) Nor is it necessary that the
dedication be made specifically to a corporate body capable of
taking by grant ; it may be to the general public, and limited only
15 Conn. 89 ; Smith v, Higbee, 12 Vt. 113. See 8 Cruisers Dig. tit xxiv. § 10, n.
(Greenleaf 's ed. 1856).
^ Davison v. Gill, 1 East, 64. > Stott v. Stott, 16 East, 848, 849.
* The question whether a way is public or private, where the evidence ia oonflictin|^
is to be determined by the jury. Deake «. Rogers, 8 Hill (N. Y.)» 604.
* Commonwealth «. Low, 8 Pick. 408 ; Stedman v. Sonthbridffe, 17 Pick. 162 ;
Williams v, Cumroington, 18 Pick. 812 ; State «. Hunter, 5 Ired. 869; Valentine
V. Boston, 22 Pick. 75 ; Reed «. Northfield, 18 Pick. 94 ; Odionie v. Wade, 5 Pick.
421 ; Young v. Garland, 6 Shepl. 409. Long use of a way by the public is prima fade
evidence i^t it was dul^laia out as a public highway; and for this purpose twelve
years have been held sufficient Golden v. Thurber, 2 Johns. 424. So naa " a consid-
erable time." Pritchard v. Atkinson, 8 K. H. 835, 889. And see State «. Campton,
2 N. H. 513 ; Sage v. Barnes, 9 Johns. 865 ; Drury v. Worcester, 21 Pick. 44.
« Marq. of Stafford v. Coyney, 7 B. & C. 267 ; State v, Trask, 6 Vt 355. The
inference of acceptance by the public is not negatived by the fsct that the land so used
is taxed for city and county purposes. Lemon «. Hayden, 13 Wi& 169 ; Wyman «.
State, Id. 668.
(a) A highway may be proved by pre- (Mass.) 10, and State v, Bigelow, 84 Me.
Bcription, even at or near a place where a 246, and Bigelow v. Hillman, 87 Me. 52 ;
way is proved by record to have been es- and prescription or dedication are recco^
tablished. Gommonwealth v. Old Golony nized as modes of showing the establish*
It R., 14 Gray (Mass.), 93. ment of such ways.
(b) The rule sought to be established in If one in a grant bounds by a Mtreet^
Com. V. Low, 8 Pick. (Mass. )408, and Stur- the existence of that street cannot be de-
tivant V, State, 18 Me. 66, that the only nied by those claiming under such grant
mode of making a town way is that pre- Be City of Brooklyn, 78 N. T. 179 ; Va-
scribed by the statute, is no longer law. It natta v, Jones, 42 N. J. L. 661 ; Tuits «i
is overruled in Ck)m. v. Belding, 13 Met Charlestown, 2 Gray (Mass.), 272.
PABT ir,] WAT. 668
by the wants of the community.^ If accepted and used by the
public in the manner intended, it works an estoppel in paisj pre-
cluding the owner, and all claiming in his right, from asserting
any ownership inconsistent with such use. Nor is it necessary to
prove who was the owner, nor that he was a private person ; for a
dedication may be presumed, even against the sovereign; and
in all cases; unless the state of the property was such that a
dedication of the soil was impossible.^ The right of the public
does not rest upon a grant by deed, nor under a twenty years'
possession ; but upon the use of the land, with the assent of the
owner, for such a length of time that the public accommodation
and private rights might be materially aiTected by an interruption
of the enjoyment.^ The issue is therefore a mixed question of
law and fact, to be found by the jury, under the direction of the
court, upon consideration of all the circmnstances. The length of
the time of enjoyment furnishes no rule of law on the subject
which the court can pronounce without the aid of a jury, unless,
perhaps, where it amounts to twenty years ; but it is a fact for the
jury to consider, as tending to prove an actual dedication, and an
acceptance by the public* Hence the jury have been held justi-
fied in finding a dedication after " four or five years " of enjoy-
ment.^ In another great case which was much contested, six
years were held sufficient;^ and in others it has been held that,
1 New Orleans «. United States, 10 Pet. 662 ; Bryant v. McCandless, 7 Ohio
(Part 2), 135 ; Pawlet «. Clark, 9 Cranch, 292, 831.
> Beg, V, East Mark, 12 Jur. 332. In this case the way had been used fifty yean ;
which was said to be " extremely strong evidence of an intention of the owner of the
soil, whoever he was, to dedicate it to the public, unless there was conclusive proof
that he had not consented." Per Erie, J.
s Cincinnati v. White, 6 Peters, 481, 437-440 ; Keg. v. East Mark, 12 Jur. 382 ;
State V. Catlin, 8 Vt. 230 ; Jarvis v. Dean, 8 Bing. 447 ; Brown v. Manning, 6
Ohio, 298, 803 ; Le aerq «. Gallipolis, 7 Ohio, 217, 219 ; Lade v. Shepherd, 2 Stra.
1004 ; Pawlet v. Clark, 9 Cranch, 831 ; Olcott v. Banfill, 4 N. H. 537, 545, 546 ;
Abbott V. Mills, 3 Yt 519. In Dwinel v. Barnard, 2 Law Rep. N. s. 339, 344, it was
held by the Supreme Judicial Court of Maine, that though it must appear that the
owner of the land designedly offered it for public or common use, yet the law does not
require the lapse of any particular time to authorize the inference of a dedication. See
8. 0. 14 Shepl. 554.
* Connehan v. Ford, 9 Wis. 240. In the case of a public way by ttser, the jury
may be authorized by the circumstances to find that its limits extended bevond the
travelled path, to the breadth usually laid out as a highway. Sprague v. Walte, 17
Pick. 809 ; Hannum v. Belchertown, 19 Pick. 811.
* Jarvis v. Dean, 8 Bing. 447 ; Poole v. Uuskinson, 11 M. & W. 880. See Best on
Presumptions, pp. 188, 184, J 101.
* Per Ld. Kenyon, in 11 East, 876, n. Eight years were held sufficient by Ld.
Kenyon in Rugby Charity v. Merry weather, 11 East, 875, n.; but both these cases were
questioned by Mansfield, 0. J., in 5 Taunt. 142, though Chambre, J., was of Ld. Ken-
yon's opinion. Id. 1887. See also 5 B. & Aid. 457> per Molroyd, J. ; Bez v. Hudson,
654 LAW OF EVIDENCE. [PABT lY.
after a user of " a very few years," without prohibition, or any
visible sign that the owner meant to preserve his rights, the pub-
lic title was complete.^ (a) It is a question of intention, and there*
fore may be proved or disproved by the acts of the owner, and the
circumstances under which the use has been permitted.^ (i) It
does not follow, however, that, because there is a dedication of a
public way by the owner of the soil, and the public use it, the
town or parish or county is therefore bound to repair. To bind
the corporate body to this extent, it is said, that there must be
some evidence of acquiescence or adoption by the corporation
itself ; such as, having actually repaired it, or erected lights or
guideposts thereon, or having assigned it to the proper surveyor of
highways for his supervision, or the like.^ (c)
§ 668. "Wlio may dedicate. The dedication, however, must
have been made by the owner of the fee, or, at least, with his
assent. ((2) The act of the tenant will not bind the landlord ;
though after a long lapse of time, and a frequent change of tenants,
the knowledge and assent and concurrence of the landlord may be
2 StTB. 909 ; Hobbs v. Lowell, 19 Pick. 405. ''Six or aeren years " were recognized
as sufficient, in Barclay v. Howell, 6 Peters, 498, 513. But see State v. Marble, 4
Ired. 818.
1 British Museum v. Finnis, 5 C. & P. 460 ; Rex v, Lloyd, 1 Campb. 260. See also
Best on Presumptions, pp. 133-187, $§ 101, 102 ; Lade v. Shepherd, 2 Stra. 1004 ;
Commonwealth v. McDonald, 16 S. & K. 392 ; Hobbs v. Lowell, 19 Pick. 405 ; Spring-
field V. Hampden, 10 Pick. 59; Cleveland v, Cleveland, 12 Wend. 172; Denning v.
Roome, 6 Wend. 651.
* Barradough v. Johnson, 8 Ad. & El. 99 ; Woodrer v. Hadden, 5 Taunt. 125 ; Rex
V. Wright, 3 B. & Ad. 681 ; Surrey Canal Co. v. Hall, 1 Man. & Or. 392 ; Rex«. Ben-
edict, 4 B. & Aid. 447 ; Hannum v, Belohertown, 19 Pick. 811 ; Sprague v, Waite, 17 .
Pick. 309 ; Wright v. Tukey, 8 Cush. 290.
* Rex 9. Benedict, 4 B. & Aid. 447, per Bayley, J. Rut see Rex v, Leake, 5 B. fc
Ad. 469 ; Hobbs v. l^owell, 19 Pick. 410. See also Todd v. Rome, 2 Greenl. 55 ; Estea
V, Troy, 5 Greenl. 368 ; Rowell v, Montville, 4 GreenL 270 ; Moore v. Comville, 1
Shepl. 293 ; State v. Campton, 2 N. H. 513.
(a) See Gwynn v. Homan, 15 Ind. 201 ; «. State, 3 Zabr. (N. J.) 130 ; Stacey «.
Boyer v. State, 16 Ind. 451 ; Green v. Ca- Miller, 14 Mo. 478 ; R^a v. Petrie, 30
naan, 29 Conn. 157. But dedication is to £ng. Law & Eq. 207 ; Kelley's Case, 8
be inferred rather from the assent of the Gratt. 632.
owner than from length of user. Quinn v. (e) Hemphill v. Boston, 8 Cush. (Mass. )
State, 49 Ala. 353 ; Morgan v. Lombard, 195 ; Bowers v, Suffolk Man. Co., 4 Id.
26 La. An. 463 ; Smith v. Flora, 64 111. 332, 340 ; Wright v. Tukey, 8 Id. 290 ;
93 ; Taylor v, Hepper, 5 T. & C. (N. Y.) Oswego t>. Oswego Canal Co., 2 Selden
173. (N. Y.), 257 ; Com. v. Cole, 26 Pa, St
(6) Boston V. Lecraw, 17 How. (U. S.) 187 ; State v. Carrer, 5 Strobh. 217.
426 ; Hoole v. Attorney-General, 22 Ala. (d) When land is conveyed to a town
190 ; Lamed v. Lamed, 11 Met. (Mass.) for a road, they take the fee thereof, and
421 ; Bigelow v, Hillman, 37 Me. 52 ; not merely an easement. Ailing v. Bnr-
State V. Nudd, 23 N. H., 327 ; Gould lock, 46 Conn. 504.
V. Glass, 19 Barb. ^. Y.) 179 ; Smith
presumed from the aotoriouB and oniDterrupted use of the way hj
the public.^
§ 664. Dsdioatloii, how dlaprovad. The evidence of dedicatioQ
of a way may be rebutted b; proof of any acts on the part of the
owner of the soil showing that he only intended to ^ve license to
pass OTer his land, and not to dedicate a right of way t« the
pablic. Among acts of this kind may be reckoned patting up a
bar, though it be for only one day in a year, or excluding personti
from passing through it by positive prohibition." But the erection
of a gate is not conclusive evidence of a prohibition, since it may
have been an original qualification of the grant.^
>§ 665. Hon<iuer of ]^bUo way, no di«aoiitliinuioa. In tlie case
of a puhlie vraj/, no length of time, during which it may not have
been used, will operate of itself to prevent the public from resum-
ing the right, if they think proper.* But in regard to private
easements, though generally they are not lost by non-user for
twenty years, unless tlie right as well as the poasession is inter-
rupted,^ yet in the case of a private way, or other intermittent
easement, it is said, that, though slight intermittence of the user,
or slight alterations in the mode of enjoyment, will not be suffi-
cient to destroy the right, when ciroumstances do not show any
intention of reliaquishiug it, yet a much shorter period than
twenty years, when it is accompanied by circumstances, such
as disclaimer, or other evidence of intention to abandon the right,
will be sufficient to justify the jury in finding an extinguish-
ment.* (a)
' Baxter t. Taylor, 1 Nev. fc Man. 18 ; Wood e. Veal. B B. fc Aid, IGl ; Bm fc
Btiu, 7 Ad. & El. SCO; Daries v. Stapheiu, 7 C. & P. 570; Kazv. But, 4 Cunpb.
16 ; Harper u. Charlesirort^ 1 R ft C. 671.
• Bfst on Prasamptiont, p. 13i, { 101 ; Rex v. Lloyd, 1 Campb. 280 ; Boberta v.
Earr, Id. 261, n. ; Britiah Huaeum v. Finnii, 6 C. & P. 465, per Pattesan, J.
• Dariesv. StepheDa,7C. &P. 670. But we CoainiDnweaith n. Newbnt?, S Pick. S7.
• Per Qibhs, J., in Rex c. St Jamea, 2 Selw. N. P. 1334 (loth ed.) ; Voofilit «.
Winch, 2 B. i Aid. 867, par Abbott. C. J, ; Beat on Presumptions, p. 187, j 108.
But tet Commiasionera v. Taylor, 2 R^, 2S8.
• Supm, tit. Prescription, f 645 ; Eraaraoa «, Wiley. 10 Pick. 310, 318 ; Yelv. 1*2,
n. (1), by Hetcair ; White v. Crawford, 10 Uan. 183, ISO ; Buanon v. Angier, 2 Allen,
128.
• aula k Whatley on EuemeDta, pp. 831, 882 ; Norbniy v. Heade d ah, 8 Bligh,
ill ; Harrie t>. Rogera, 3 Bliuh, n. a. 447 ; Beat on Prefnimptiont pp. 187, 140,
){ 104, 106 ; Doe d. Hilder, 3 B. fc Aid. 7B1, per Abbott, C. J. ( H^maii d. Savue,
IS Bfaaa. 130, 132.
(a) The Tact that the owner of the domi- don accompaniea it. Jamdca Pond, fte.
iiant tanemeut doei not nae hi* right of Co. e. Chandler, 121 Mass. S ; Erb «.
way, or luea another iiM)rec«nTenientw«]r, Brown, 19 P. F. Smith, 310; Bombaof^
" ■' — OS eTidenca of ahaodonmeDt, \xA ~ »■-■■■— •" "- =■ "—
lolnaive, nnleM an intention to aban-
WILLS.
§ 666. Proof atflMMry to wtabUsb m wllL In order to aBcer-
tdn the quantity and kind of proof neceseaiy to establish a will,
regard is to be bad either to the law ot the domicile of the testa-
tor or to the law of the country where the property is situated,
and Bometimea to both. The mode of proof is also affected by the
nature of the proceedings under which it is offered. In some
cases it is necessary to prove tbe concurrence of all the circum-
stances essential to a valid will, by producing all tbe subscribing
witnesses, after due notice to tbe parties in interest; while, in
others, it is sufficient for tbe occasion to prove it by a single wit-
ness, (a) There is also a diversity in the effect of these different
modes of proof ; tbe one being in certain cases conclusive, and tbe
other not. There is, moreover, a diversity of rule, arising from
the nature of tbe property given by tbe will ; a few States still
recognizing tbe distinction between a will of personalty, at com-
mon law, and a deviae of lands under tbe Statute of Frauds, in
regard to tbe formalities of their execution ; and others having by
statute established one uniform rule in all cases. These varieties
of law and practice create great embarrassments in tbe attempt
to state any general rules on the subject. But still it will be
found that, on tbe question as to what law shall govern, in tbe
requisites of a valid will, there is great uniformity of opinion ; and
that tbe several United States, in their le^slation respecting wills,
cODttition niast be showD to be rulBIled by French : "
him who would set np ths will. Panons Rent will, and that rt took tfftct though
«. Land, 1 Vei. Br. ISO ; SincUirv. Howe, the testator lived ■ long titas sfter that
e Vea. 607 ; Cowleyr. Eniipp, 42 N. J, momiug. Fwnch v. French, li W. Va.
U 297; Estate of White, Myriok'a Prob. *60, where the mbjact of conditional willa
(Cal.) 167. Bnt if the contingency ia the and the autboritiea are very fallv cited
occaiim of making the will, and not a and discusaed. NancDpative wills will
condition on which tho inrtmmeat is to not be favored, and, if admitted to pro-
become operative, the happening of the bate, will be cosstrned ttrictl; <Peire« v.
contingency need not be shown. Thus, Pdrce, id Ind. 8S) -, and, if invalid «s to
where the will was in this form : " Let all a part of a specific item of propeTtj be-
men know hereby, if I get drowned this queathed, it u invalid as to toe whole
morning, Mar. 7, 1S72, that I bequeath (Striker v. 01d«nbiU]gh, 39 Iowa, OU).
(til my proper^, penonal and real, to my
hare geiierally adopted the proTisione of the statute of 29 Car. IL
c. 3, commonly called the Statute of Frauds.
§ 667. Divlaion of th* anbjaot. It Till therefore he attempted,
first to consider by what law willB are governed, and theu to
state the formalities generally required in the execution of wills,
noting some local exceptions as we proceed. Thus it will be seen
to what extent the evidence must be carried, in the complete and
formal proof of any will.
§ 6ti8. Law whloh goTenu will. (1.) As to what law i» to
govern the formalities of a will, a distinction is to be observed
between a will of personalty or movables and a will of immovable
or real property. In regard to a will of pergonal or movable
property, the doctrine is now fully established, that the law of
the actual domicile of the testator is to govern ; (a) and if the
will is void by that law, it is a nullity everywhere, though exe-
cuted with the formalities required by the law of the place where
the personal property is locally situated. There is no difference,
in this respect, between cases of succession by t«stament, and by
intestacy, both being alike governed by the rule Mobilia personam
sequuntur.^ And if, after making a valid will, the testator changes
his domicile to a place by whose laws the will thus made is not
valid, and there dies, his will cannot be established ; but if, still
surviving, he should return to and use his former domicile, or
should remove to another place having similar laws, the original
validity of his will or testament will be revived,* It results, that
a will of personalty may be admitted to probate, if it is valid by
the law of the testator's last domicile at the time of his decease,
though it is not valid by the law of the place of the probate.'
§ 669. Lax fori govanu In willa of panonaltjr. From this rule it
would seem to follow, almost as a matter of necessity, that the aame
evidence must be admitted to establish the validity and authen-
ticity of wills of movables, made abroad, as would establish them in
» Story, Confl. Lbws, §| *e7-469 ; Stanley v. Hemes, 3 Haag. Eccl, 878 ; DesHpbats
«. BarqniHr, 1 Binn. 338 ; L'rofton v. Ilaley, 1 Onenl. 134 ; Wctal, b. 2, c. S, §S 110,
111 ; 4 Kent. Comm. S13 ; 1 Jarmau oa Wills, pp. 2-8, afd notta by Perkins, iOt
(Anj.) ed. •2-*7 ; De Zichy Fermris v. Marquis of Hertrord, 3 Cort. *68.
* Story, CouH. Laws, § 47,'i ; 4 BurgB oa Col. k For. Law, pp. 6S0, 691,
■ Jn re De Vaer Merarer, I Hagg. Ecd. 4Sa.
(a) Ad En^luhmBD, reudiiiK in Spain, wife, in pntsuance of such dir«ctioD«, wm
directed hia wife to make bis will after bis held valid in England. /» t« Osbome, SS
decease, aacb a will being valid by the Eng. Law & Eq, 025.
law of Spain ; and a will ao made by the
668 LAW OP EVIDENCE. [PAfiT IV.
the domicile of the testator ; for otherwise the general rule above
stated might be sapped to its very foundation, if the law of evi-
dence in any country, where the movable property was situate, was
not precisely the same as in the place of the testator's domicile.
And therefore parol evidence has been admitted in courts of com-
mon law, to prove the manner in which a will is made and proved
in the place of the testator's domicile, in order to lay a suitable
foundation to establish the will elsewhere.^ (a)
§ 670. Xiex rei sitiB. Realty. But in regard to wills of imnuh
vable or real property^ it is equally well established, that the law
of the place where the property is locally situated is to govern, as
to the capacity or incapacity of the testator, the extent of his
power to dispose of the property, and the forms and solemnities to
give the will its due attestation and effect.^ (h)
^ Story, Confl. Laws, § 636 ; De Sobiy v. De Laistre, 2 Har. & Johns. 191, 195 ;
Clark V. Cochran, 8 Martin, 353, 361, 862. And see Wiloox v. Hunt, 13 Peters, 373,
879 ; Don v, lippmann, 5 CI. & Fin. 16, 17 ; Yates v. Thompson, 3 CI. & Fin. 544,
574. The rule that a devise of lands must be executed in the form required by the law
of the place where the lands lie, though a general rule of law, has been expressly en-
acted in the statutes of Maine, New Hampshire, Delaware, Rhode Island, Indiana,
and Missouri. In several other States a contrary rule is adopted, by whidi lands in
those States may pass by a will, made in a foreign State, in the form required by the
law of the place where it was made. But to have this effect, the foreign will mnst have
been first proved abroad, and then be admitted by a certified copy, to be filed and ro-
istered in the State where the lands lie. Such is the rule, as expresslv enacted in
Massachusetts, Vermont, Florida, Michigan, Illinois, Louisiana and Arkansas.
Whether such is the -legitimate effect of me rule adopted in other States, as in Vir-
ginia, Ohio, New Jersey, Kentucky, Tennessee, Mississippi, and Alabama, where a
copy of the forei^ will, being duly proved abroad, maybe allowed in the Conrt of
Probate, and admitted to be recorded, quaare. See Dublin v, Chadboum, 16 Mass. 433 ;
Parker v. Parker, 11 Cush. 519 ; Bailey v, Bailey, 8 Ohio, 239 ; Mease o. Keefe, 10
Ohio, 362 ; 1 Jarm. on Wills, pp. 1, 2, n. by Perkins ; Maine Rev. St. 1840, c 107,
§ 20 ; Mass. St 1848, c. 92, Pub. Stat pp. 748, 749 ; Bayley v. Bayley, 5 Gush. 245 ;
N. H. Rev. St 1842, c. 167, § 13 ; R. I. Rev. St 1844, p. 237 ; Vt Rev. St 1839,
c. 45, § 24 ; Del Rev. St 1829, p. 557 ; Ind. Rev. St 1843, c. 30, § 51 ; Missonri
Rev. St 1845, c. 185, J 35 ; FU. Thomps. Dig. p. 194 ; Mich. Rev. St. 1846, c. 68,
§§ 21-24 ; 111. Rev. St. 1839, p. 688 ; La. av. Code, art 1589 ; Ark. Rev. St 1837,
c. 157, § 36 ; Tate's Dig. p. 900 ; Ohio Rev. St 1841, c. 120, §§ 29-38 ; N. J. Rev.
St 1846, tit 10, c. 9, § 2 ; Ky. Rev. St. 1834, vol. ii. p. 1548 ; Tenn. Rev. St 1836,
p. 593 ; Miss. Rev. St 1840, c 36, §§ 13, 14 ; Ak. Tolm. Dig. p. 885. See 6 Cmise's
Dig. tit 38, c. 5, % 69, n. (Greenleaf 's ed. 1857).
'* Story, Confl. Laws, § 474, and authorities there cited ; 4 Bnige on Col. & For.
Law, pp. 217, 218 ; 1 Jarman on Wills, pp. 1, 2, and notes by Perkins ; 4 Kent^
Comm. 513.
(a) Upon this principle, that personal however, to give effect to it in Delawarai
property must follow the domicile of the probate of it must be made in the county
testator, it was held, if a will, disposing where the goods were situated, but that
of movables situated in Delaware, was the proof required would be that requisite
made in Pennsylvania where was the domi- by the laws of Pennsylvania, not of Dela-
cile of the testator, and was valid by the ware. St James Ohnrch v. Walker, 1 DeL
laws of Pennsylvania, though not by those Ch. 284. Cf. Be Osborne, 83 £ng. law 4k
of Delaware, it was a good will and would £q. 625.
pass title to the persoiul estate. In order, (h) Where a testator made a ^rill in
§ 671. Xnterp»t«tloii. In the interpretation of villa, whether
of movable or immovable property, where the object is merely to
aacertain the meaning and intent of the testator, if the will is
made at the place of bis domicile, the general rule of the common
law is, that it is to be interpreted by the law of that place at the
time when the will was made. Thus, for example, if the question
be, whether the terms of a foreign will include the " real estate "
of the testator, or what he intended to give under those words ;
or whether he intended that the legatee should take an estate in
fee or for life only ; or who are the proper persons to take, under
the words "heirs at law," or other dengnatto pertonarum, re-
course is to be bad to the law of the place where the will was
made and the t«8tator domiciled.* And if the will is made in the
place of his actual domicile, but he is in fact a native of another
country ; or if it is made in his native country, but in fact his ac-
tual domicile at the time is in another country ; still, it is to be
interpreted by reference to the law of the place of his actual
domicile.' The question whether, if the testator makes his will in
one place, where be is domiciled, and afterwards acquires a new
domicile in another country, where he dies, the rule of interpreta-
tion is changed by his removal, so that if the terms have a differ-
ent meaning in the two countries, the law of the new domicile shall
prevail, or whether the interpretation shall remain as it stood by
the law of the domicile where the will was made, is a question
which does not seem yet to have undergone any absolute and
positive decision in the courts acting under the common law.^
§ 672. Probata. In determining tbe effect of the probate of
wills, regard is to be had to the jurisdiction of tbe court where
the will is proved, and to the nature of the proceedings. For,
as we have heretofore seen, it is only tbe judgments of courts of
exclusive jurisdiction, directly upon tbe point in question, that
> story, Confl. Laws, i 170, a,b,e,t,h,m; Harrison t>. Niion, & Petera, 48S.
* Story, Confl. Uws, { 478 /; 4 Burgs on Col. A. For. Uw, pp. 680, 661 j Anatm-
ther V. Chalmer, 2 Sim. 1 ; aaU, vol. i. i% 2S2, 3S7, 282 ; 1 Jamui on Willa, Eth
(Ani.)ed.pp. "S-n.
* HarrUoQ v. Niion, 8 Petera, 483, 606 ; Story, Confl. Lawa, g 478 g.
PcDiuylvAnia, attested by tvo vitneaaes, A penon's domicile ia that place irherB he
ConTeying both real and jieraonal eHtaU, it has Gied bis hnbitatioD, iriUiOUt any met-
appearing that hia domicile was in Rhods entintentionofremovingtlierefrom. Boa-
laland, nhere three witnesses are required. Tier, Law Diet. v. 1, 489 ; Story, Confl.
the nill was refuaed probate in Pennsjl- Lawa, 43.
yania. Carey'a App^ 76 Fa. St. 201.
660 LAW OP EVIDENCE. [PABT IV.
are conclusive everjrwhere, and upon all persons.^ In England,
the ecclesiastical courts have no jurisdiction whatsoever over wills,
except those of personal estate ; and hence the probate of wills,
by the sentence or decree of those courts, is wholly inoperative
and void, except as to personal estate; being, as to the realty,
not even evidence of the execution of the will. The validity
of wills of real estate is there cognizable only in the courts of
common law, and in the ordinary forms of suits ; and the verdict
and judgment are conclusive only upon the parties and privies,
as in other cases. But as far as the personal estate is concerned,
the sentence or decree of the proper ecclesiastical court, as to the
validity or invalidity of the will, is final and conclusive upon all
persons, because it is in the nature of proceedings in remj in which
all persons may appear and be heard upon the question, and it is
the judgment of a court of competent jurisdiction directly upon
the subject-matter in controversy.^ But in many of the United
States, courts are constituted by statute, under the title of courts
of Probate, Orphans' courts, or other names, with general power
to take the probate of wills, no distinction being expressly men-
tioned between wills of personalty and wills of real estate ; and
where such power is conferred in general terms, it is understood
to give to those courts complete jurisdiction over the probata of
wills as well of real as of personal estate, and therefore to render
their decrees conclusive upon all persons, and not re-examinable
in any other court.^
1 Ante, vol. I §§ 528, 650.
* 1 WiUiams on Executors, b. 6, c. 1, pp. 88^848 (1st Am. ed.), 8th (Eng.) ed. pp.
556-565 ; 1 Jarman on Wills, pp. 22, 28, and notes by Perkins ; Tompkins v. Tomp-
kins, 1 Story, 547.
* Such is the law in Maine and Massachnsetts. Potter v, Webb, 2 Greenl. 257 ;
Small V. Small, 4 GreenL 220, 225 ; Osgood v. Breed, 12 Mass. 588, 534 ; Dublin v.
Chad bourn, 16 Mass. 438, 441 ; Laughton v. Atkins, 1 Pick. 548, 549 ; Brown v.
Wood, 17 Mass. 68, 72. (a) So in Rhode Island. Tompkins v. Tompkins, 1 Story,
547. So in New Hampshire. Poplin v. Hawke, 8 N. H. 124. So m Connecticut.
Judson V. Lake, 8 Day, 818 ; Bush v. Sheldon, 1 Day, 170. So in Ohio. Bailey v,
Bailey, 8 Ohio, 289, 846. So in Louisiana. Lewis's Heirs v. His Kx'rs, 5 La. 387,
893, 394 ; Donaldson v. Winter, 1 La. 137, 144. So in Vii^nia. Bagwell v. Elliott,
2 Rand. 190, 200. So in Alabama, after five yean. Toulman's Dig. 887 ;(6) Tarver
V, Tarver, 9 Peters, 180.
In Pennsylvania and North Carolina, the probate of a wiU of lands is prima facie
(a) In Massachnsetts, the decree of the common law deny the legal capacity of the
court of probate, duly approving and al- testatrix to make such a wilL Parker v.
lowing the will of a mamcd woman, unap- Parker, 11 Cush. 519, 524.
pealed fh>m and unreveraed, is final and (b) Goodman v. Winter, 64 AIa. 410.
conclusive upon the heirs-at-law of the Of. Hardy v. Hardy, 26 AJa. 524.
testator, and they cannot in a court of
§ 673. B»ontion of wllto. (2.) The highest degree of solemnity
which is required in the formal execution of wills is that which is
required in a will of lands, by the Statute of Frauds ; ^ and this
chiefly respects the tignatun and the attettation hy witnesBes.
These formalities, all of which are ordinarily required to be
shown upon the probate of wills in the courts of probate in
the United States, we now proceed to stat«.
§ 674. Blgnatnre of tMtator. And, first, as to the signature of
the tettator. A " signature " consists both of the act of writinff
the party's name, and of the intention of thereby finally authenti-
cating the instrument, (a) It is not necessary that the testator
should write his entire name. His mark is now held sufficient,
even though he was able to write." (6) And if the signature
CTidenca of the will, but not conclusive. Smith t. Bonaall, G Eawle, 80, S3 ; CoaWi
r. Hughes, 3 Binu. 498, e07 ; SUnley v. Kean, 1 Taylor, B3.
Id sereral other States the English rule ia followed ; ss in New York {Jackson «.
Legrangs, 10 Johns. SSO ; Jackson D, Thompaou, 8 Cowen, 178 ; Rogers r. Rogere, 3
Wand. 5U, S15) ; and in New Jereev (HarriBonif. Rowan, 3 Wash. 680); aud in Mai^.
land (Smith f. Steele, 1 Har. t McH. 419 : Darby v. Mayer, 10 Wheat 470); and II
" ■ " '■ - ■ ' " ■.ock, 4McCord, a—
_ . . s, duly prOTed and recoiilB* ,
La of that State, is thereby rendered evidence in the courts of another
South Carolina (Qnwaland v. Murdock, 4 McCord, 217). '
Wbetber a will of lands, duly proved and recoitled, io one State, so ss to he evidence
undrr the Constitution of the United States, art. 4, does n
ciJed. See Darby v. Mayer, 10 Wheat. iU. In Ohio, i '
Bailey o. Bailey, 8 Ohio, 239, 240.
' 29 Car. II. c. 8, § 6. By SUt. 7 W. IV. 4 1 Vict. c. 26, je, it is now provided,
that no will, whether of real or personal estate (except certain wills of soldier? and sail-
ors), shall be valid, "unless it shall be in writing and signed at the foot or end
thereof by the testator, or some other person in his presence and by his directiou ; and
unless such signature be made or acknowledged by him in the presence of two or more
witnesses present at the same time, and unless such witnesses attest and subscribe the
will in hia presence ; and no publication other than is implied in the execution so
attested shall be necessary." For the formalities required in the execution of wills in
the United States, see S Cruise's Dig. tit. 38, c. 6, pusiin, notes (Greenleaf 's ed. 1827).
■ Baker v. Dening. 8 Ad. k El. 94 ; Jackson n. Van Dusen, E Johns. 144 ; Tn re
Field, 3 Curt 753 ; Taylor v. Draing, 3 N. k P. 228 ; In re Bryce, 2 Curt. 325 j Wil-
son V. Beddard, 12 Sim. 28 ; Harrison e. Elwin, 3 Ad. Jt E]. h. b. 117. In Pennsyl*
(a) A will written in pencil is valid, the form of a letter, provided it efficient.
under a statute which simply requires a 1y shows a llnal testamentary intent, and
" writing." Myers e. Vanderbelt, 84 Pa. is properly eieonted. Cowley b. Knapp,
St. 610; ifaFuguefsWill, 11 Phils. (Pa.) 42 tJ. J, L. 297.
76; DickensonK. Dickenson, 2 Pbill. Eecl. (*) Pridgenn. Pridgen, 13 Ired. (N. C.)
173; BeDyer, 1 Hoge. £ccl. 219 ; IRedf. 259. A testator's name was signed to his
Wills, f 17, pL 2 ; Merritt v. Ctason, 12 will by another person, at his request, and
Johns. (N. Y.) 102. be then made his mark. It was held that
Bat that a will written on mlate is not thin was not a sufBcient execution of the
BDch a "writing," was held in Keed v. will under the Missouri statute. North-
Woodward, 11 Phila. (Pa.) 641, on the catt o, Northcntt, 20 Mo. 208. If the
^und that the statute requiring a writ- attestation clsuse in a will recites that the
lug meant a writing with the instruments testator has made his mark, it ia sufficient
and on the natenals commonly used for if the testator writes his initials, instead of
snch purposes. making a mark. /nreSavory, OEng. Law
It ia no objection to ■ will that it is in & Eq. 683. A dying man declared a paper
662 LAW OF EVIDENCE. [PABT IT.
is made bj another person guiding his hand, with his consent, it
is sufficient.^ But sealing alone, without signing, will not suffice ;
nor is a seal necessary in any case, unless it is required by an ex-
press statute.^ One signature by the testator is enough, though
the will is written upon several sheets of paper ; and if the testi-
monium clause refers to the preceding sheets as severally signed
with his name, whereas he has signed at the end only, this will
suffice, if it appears to have been in fact intended to apply to the
whole.' (a) Such intention would probably be presumed from his
acknowledgment of the instrument, to the attesting witnesses, as
his will, without alluding to any further act of signing.^ Nor is it
material on what part of the document the signature is written, if
it was made with the design of completing the instrument, and
without contemplating any further signature. On this ground, a
will written by the testator, and beginning, — " I, A. B., do make,"
&c., has been held, under the circumstances, sufficiently signed.^ (b)
rania, the will mast be signed at the end with the testator's own name, if he is able to
write it ; and if not, by some person in his presence and by his express direction ; the
incompetency and signature by request being provided by two witnesses (Stat. April 8,
1833) ; or by his mark or cross (Stat Jan. 27, 1848) ; Dimlap's Dig. pp. 571, 1106 ;
Brightley's Pardon's Dig. 1475, § 7. {c) Where the testator made his mark, but the
scrivener wrote the wrong Christian name over it, the court held, that under this latter
statute the will was well executed, the mark governing the written name, and satis-
fying the statute. Long v. Zook, 3 Am. Law Joum. 27. In Ohio, New York, and
Arkansas, also, the signature must be at the end of the will. See 6 Cruise's Dig. tit.
38, c 5, §§ 1, 9, notes (Greenleaf 's ed.)
1 Stevens v. Vancleve, 4 Wash. 262, 269.
^ Pratt V, McCullough, 1 M'Lean, 69. And see Aveiy «. Pixley, 4 Mass. 460, 462 ;
Eight V. Wilson, 1 Dall. 94 ; Doe d. Knapp v. Pattison, 2 Blackf. 355 ; anUy vol. L
§ 272. A seal is not now requisite to the validity of a will, in any of the (Jnited
states, except New Hampshire, in which State a seal seems still to be required in a de-
vbe of real estate, but not in a will of personalty. See Gen. Laws, p. 455 ; Bev. Stat,
c. 156. § 6 ; Stat. 1848, c. 424.
» Winsor v. Pratt, 2 B. & B. 650.
* 1 Jarman on Wills, pp. 70, 71, 5th (Am.) ed. *80.
^ Lemayne v, Stanley, 3 Lev. 1 ; 1 Jarman on Wills, p. 70, and n. (3), by Pertdna,
to be his will, tried to sign it, and failed, be written on one continoous sheet of pa-
and made no request that any one should per, or that they must necessarily be tied or
sign it for him ; and it was held, that the fastened together, with tape and a waxen or
instrument was no will. Ruloff's Appeal, other seal.' Jones t>. Habersham, 63 Ga.
26 Pa. St. 219. 146. In the absence of proof to the contra-
(a) It is not essential to the validity of ry, several sheets of paper, showing a con-
a will that the different parts of it should nected disposal of property, the last only
be physically connected. It is sufficient being si^ed, will be presumed to be PfLrta
if tney are connected by their internal of one will. . Marsh v. Marsh, 1 Sw. « Tr.
sense, or by a coherence and adaptation of 528 ; post, § 674, n.
parts. Wikoff's Appeal, 15 Pa. St. 281 ; {b) See Adams v. Field, 21 Yt 256,
ante, § 673, n. **The true question is, where this subject is venr thoroughly dia-
was the identical writing, the document, cussed ; and 1 Redf. Wills, § 18, pL
in all its parts finished and completed as 10-12.
the testatrix wanted it. ... It would be (c) Main v. Ryder, 84 Pa. St 217 ;
a dangerous rule to say, that all wills must Davies v. Morris, 17 Pa. St. 205.
§ 675. PnbUoaUon. Publication is defined to be tbat b; Thich
the part; designates that he means to give effect to the paper as
hia will.' (a) A formal pvilication of the will by the testator is not
now deemed necessarj- ; it being held, that the will ma; be good,
under the Statute of Frauds, without any words of the testator,
declarator; of the nature of the instrument, or any formal recog-
nition of it, or allusion to it.^ But though sanity is generally
presumed, yet it is iucombeut on the party asking for the probata
of a will affirmatively to establish tbat the testator, at the time of
executing it, knew that it was his wlll.^ (&) It is not necessary, how<
ever, that this knowledge be proved by direct evidence ; it may be
inferred from his observance of the forms and solemnities required
by statute for the due execution of a will.* (c) And where the
I 4. Sob e CroiBB'B Dig. tit. 88, c 1, G, », 14, IS, 19, DotM (Gieauleftfa ed.
1857).
1 Per Gibhg, C. J., in Hoodie v. Eeid, 7 Tiunt S62.
* Ibid. ; 1 Juniaa oa WilU, p. 71, 6th (Am.) ed. 'SO.
>, g$ 14, IS, 52, notes (GreeDleafs ed. 1857} ; White
SIO ; Wright V. Wright, 7 Bins^ iS7 ; Warren v. Postlethwute, 9 Jur. 721. Aud »
4 Kent, forom. pp. 616, 618 ; Small v. Small, 1 Greenl. 220. ThU question is now ■
settled, accordingly, in England, by Stat. 1 Vict. c. 28, §5 S, 11-13.
* White n. British Maseam, 6 Bing. SIO; Sweet v. Boardman, 1 Haas. 258;
4 Dane, Abr. p. 588 ; Gerriah v. Nasoa, S Shepl. 438. In New Vork, « declaration
of the Ceatatnr, that the inatnunent is hia will, ia required by 2 Rev. Stat, p. 83, I 40.
See Brioclcerhoor e. Remsen, 3 Paige, 488 ; s. c. 26 Wend. 326, S30. So in North
Carolina. 1 Jarinan on Wilis, p. 71, n. (1), by Perkins.
* Ray o. Walton, 2 A. E. Marsh. 71. And see Trimmer v. Jackson, 4 Bum'
Eccl. L. p. 130 l8th ed.) On proof of the signature of the testator, it will ordinarily
be preauojcd that he knew the contents of the will. Biliiaghuwt v. Vickers, 1
Phillim. EccL ISl ; Fawcett d. Jones, 8 PhUlim. Eccl. 476 ; Wheeler v. Alderson,
n opposite nature, such as hia ignorance, sickness, Btate of mind, or the
like ; or, the inconliatency of Its provisions with his obvious duty or known aOec-
tions ; or, the character and interests of the person who wrote the instrument. Ibid ;
Ingram B. Wyatt, 1 Hagg. Eccl. 384 ; Parke tp. Ollat, 2 Phtllim. EccL 321 j Paine t>.
Hall, 18 Ves. 4TG ; Dartii)gi>. Loveland, 2 Curt. 226.
la) Dean v. Dean, 27 Vt 746 ; Cilley ai atiU in fuU force, ut tidmissibla to
K Cilley, 34 Me. 1S2. When a will hu show that he did not knowingly sign the
been revoked, its republication cannot be instrwDent offered aa his will. The weight
proved W paroL There roust be the of these declarationBiB for the jury. Can-
•ame evidence aa of publication. Carey ada's Appeal, 47 Conn. 450. If, prior to
V. Baugbm, Sa Iowa, 640 ; Smith's Will, the execution of the will, it was read over
S Phila. (Pt.) 882. to the teetaCcr, or otherwise brought to
(b) Declarations of the teetator, made his notice, bis liQOwledge and approval of
■ubmqnent to the exeoution of the instm- the contents will be presumed. Gnsrd-
ment which is offered aa a will, ahowiDg bouse e. Blackburn, L. R, 1 P. b D.
that he still snppoied a previous will to 106.
be opemtive and valid, and proporinf; (c) In re Hazwell's Will, 4 Balat. Ch.
alteration in it, and, in general, treating it (N. J. ) 251. And where U)e due execu*
664 LAW OP EVIDENCE. [PABT IV.
testator, knowing the instrument to be his will, produced it to
three persons, asking them to attest it as witnesses ; and they did
so in his presence, and returned it to him, this was considered as
a sufficient acknowledgment to them, in fact, that the will was
his.i (a)
§ 676. Same subject. Nor is it deemed necessary that the wit-
nesses should actually $ee the testator sign his name. The statute
does not in terms require this, but only directs that the mil be
^ attested and subscribed in the presence of the testator by three
or four credible witnesses." They are witnesses of the entire
transaction ; and therefore it is held, that an acknowledgment of
the instrument, by the testator, in the presence of the witnesses
whom he requests to attest it, will suffice ; and that this acknowl-
edgment need not be made simultaneously to all the witnesses,
but is sufficient if made separately to each one, and at di£Ferent
times.' (b) Nor is it necessary that the acknowledgment be made
in express terms ; it may be implied from circumstances, such as
requesting the persons to sign their names as witnesses. But in
such cases, it must appear that the instrument had previously
been signed by the testator.^ (c)
§ 677. Attestation by witnesses. The will must also be attested
I White V. British Miueum, 6 Bing. 810. See also Hall v. Hall, 17 Pick.
378.
3 Ilott V. George, 8 Curt. 160 ; In re Rawlins, 2 Curt 826 ; In re Warden, I<L
834 ; In re Ashmore, 3 Curt. 607 ; Blake v. Knigbt, Id. 547.
* 1 Jarman on Wills, pp. 71, 72, and n. (1) bv Perkins, 5th (Am.) ed. *80 ; Grayson
V. Atkinson, 2 Yes. 454, 460 ; Hall v. Hall, 17 Pick. 873 ; Dewey v. Dewey, 1 Met 349 ;
Gaze V. Gaze, 3 Curt. 551 ; Keigwin v, Keigwin, Id. 607 ; Cooper v. Bockett, 4 Moore,
P. C. 419. It is held otherwise in New Jersey, under the act of 1714. Den v. Matlock,
2 Harrison, 86 ; 4 Kent, Comm. 414, n. ; Johnson v. Johnson, 1 Cr. & M. 140 ; supra^
§295.
tion of the will and the sanity of the 289. But see Brown o. De Selding, 4
testator are shown, it will be presumed that Sandf. Sup. Ct 10.
the testator knew its purport, though he (b) Where one of the subscribing wit-
could not read the language in which it nei«es positively negatives the fact of the
was written. Hoehauer v. Hoshauer, 26 signing or of the acknowledgment of the
Pa. St. 404. signature by the deceased in his presence,
(a) A will in the handwriting of the and there are no circumstances tnat raise
testator, and signed by him in the pres- any presumption of his being mistaken,
ence of three competent witnesses, who the proposed will cannot be admitted to
attest the same at his reauest and in his probate. Noding t>. Alliston, 2 Eng. Law
presence, is well executea, although the & £q. 594. See Shaw v. Neville, 33 Id.
testator does not declare to the witnesses, 615 ; Bennett v. Sharpe, Id. 618.
and they do not know, that it is his will (c) The request to sign in attestation
Osbom V, Cook, 11 Cush. (Mass.) 582 ; may be inferr^ from the acts of the testa-
Hogan V. Grosvenor, 10 Met. (Mass.) 54. tor. Bundy v. McKn^^ht, 48 Ind. 502.
See also Beane v, Yerby, 12 Gratt (Va.) See also Atter v. Atkinson, L. K 1 P.
& D. 665.
and subscribed by at least three competent vntnesset.^ And here
also, as in the case of the testator, a mark made bj the witness as
his signature is a sufficient attestation.^ No particular form of
words ia necessary in the attestation clause, nor need it express
that the witnesses signed in the presence of the testator, it being
sufficient if this is actually proved." It may also be inferred from
■ " B; the New York RsTised Statutes (vol. ii. p. flS, gS 40, 41), the testator ia to
subscribe the will at the end oF it, in the presence of at least two witnesses, who are to
write their places al reeidence opposite their oames, nuder the penalty of fifty dollars ;
but the omission to do it will not affect the validitj and efficieacv o! their attratation,
Lewis V. Lewis, 13 Barb. 17. Three witnesses, as in the English Statute of Frauds,
~~e required in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Con-
uecticut, Kew Jersey, Maryland, IiaridB, South Carolina, Georgia, Alabama, and
Mississippi. Two witnesses only are required in New York, Ohio, Michifmn, Dela-
ware, Virginia, Indiana, Illinois, Misssouri, Korth Carolina, Kentucky, Tennessee,
Wisconsin, and Arkansas. In some of the States, the provisiou as to attestation is
more special. In PenuaylTania, a devise of lauds in writing will be good without suy
Bubscrihing witnesses, provided the authenticity of it con be proved by two witnesses ;
and if the will be subecribed by witnesses, proof of it may be mads by others. Hight
t>. Wilson, 1 DalUs, 9i, per Huston, J. ; 1 Watts, 4t)S. Proof of the si^inature of the
testator to a will by two witnesses is prima facie evidence of its execution, althongh
the body of it be not in the handwritiag of the testator. Weigel v. Weigel, S Watts,
4S6. In North Carolina, two witnesses are required to a will of real estate, unless the
wilt is in the handwriting of the deceased person, and is found among his valuable
papers, or lodged with some person for safe-ket-ping. The name of the testator in each
cose must be proved by the opinion of three witnesses. 1 Bev. Laws X. C. fll9, 620,
c. 122, S 1- So i» Tennessee. In Virginia, if the will is not wholly written by the
testator, it must be attested by two or more credible witnesses, jbc 1 Rev. Code, Vs.
876. In Misai8sip]H, there must be three witnesses to a will of real, and one to a will
of personal, estate, nnleas wholly written anil subscribed by the testator, Howard
& Hutch. Dig. Laws Miss. (1S40), p. 386, g 2. In Arkansas, a will written tbrongh
by the testator needs no sul»cribing witness, but the will must be proved in such case
by three disintereated witnesses, swearing to their opinion. Btill a will in due form
subscribed will be effectual as against one not so subscribed. Rev. Stat. c. Ifi7,
§S I, 6. Every person in that State who aubscribes the testator's name shall sign as
witness, and state that he signed the l«etalor'a name at his request. Ibid. A will
executed in South Carolina, in the presence of two witnesses, who alone subscribe it, is
not sufficiently executed under the statute to pass real estate, although the scriveoEr
was also preaent st the execution, and a codicil executed in the presence of two lub^
scribing witnesses, one of whom was diOereut from the two witnesses to the will, doe*
' * e effect to the will as to the real estate. Dunlap v. Dunlap, 4 Desaus. 30G.
rs of South Carolina, at the time of the above decision, required three witnesses
II of real estate only. Statutes at I^rge of S. Car. vol. iiL p. 342, No. G14, % 2 ;
Id. ToL iv. p. 11)9, No. 1*65, 5 2 ; Id. vol. n. p. 238, No. 2334, § 8." See 1 Jarraan
on Wills, p. S9 a, n. by Perkins, Sth (Am.) ed. •77 ; 4 Kent, Comm. 614 ; atUe, vol. i
S272, n. (1); S Cruise's Dig. tit. 38, c fi, $ 1, n. ; Id. $14, n. (GreenleaTs ed. 18G7}.
* AnU, ToL i. j S72 -, Harrison d. Harrison, 8 Vm. 18G ; Addy v. Grii, Id. G04 ;
Oeowe o. Sarrey, 1 M. & Malk. G16 ; Jackson v. Van Deusen, G Johns. 144 ; Adama
V. Chaplin, 1 Hill (3. C), 266 : S La. G12; 4 Kent, Comm. fil4, n. ; Harrison f.
Elwin. 3 Ad. & EL N. s. 117 ; Doe v. Davis, 11 Jur. 182.
I Where the witnesses testified that they saw the testator write on a paper, and
that they signed it as witQesses, bat they could not now swear that what he wrote was
his name, nor to his name being on the will, but they identified the instrument pro-
duced as being the paper they subscribed, on which was the testator's signature ; this
was held sufficient. Thompson «. HaU, 16 Jur. 1144 ; 14 Eug. L. & Eq. Sfi6. («}
(a) And if they cannot remember other of what it state*. Allaire (r. Allaire, 37
circniDstances transpiring st the time, the N. J. L. 812.
attestation clause ii prima Juxie eridetioe
tgive
le laws
the regular appearance of the instrumeDt, or other circomstancea
ia the case.'
§ 678. Miut Iw la pr«Mno« of tMtator. The requiBition that
the witnesses should subecribe their names in the pretence of tht
teatator is in order that he may have ocular evidence of the identitf
of the instnunent attested as his will, and to prevent the fraudu-
lent substitution of another. To constitute this " presence," it is
necessary not only that the testator be corporally present, but
that he be mentally capable of recognizii^, and be actually con-
scious of, the act which is performed before him. Therefore if,
after he had signed and published his Till, and before the wit-
nesses subscribe it, he falls into a state of insensibility, whether
temporary or permanent j^ or, if the will is subscribed by the
witnesses in a secret and clandestine manner, without his knowl-
edge, though it be in the same apartment; in both cases it is
alike void.' To be corporally present, it is not essential that the
testator be in the same apartment ; for if the situation and cir-
cumstances of the parties are such that the testator in his actual
position might have seen the act of attestation, it is enough, though
they are not in the same apartment,* (a) nor even in the same
house ; ^ and, on the other hajid, if his view of the proceedings is
necessarily obstructed, tlie mere proximity of tlie places of his
signature and of their attestation will not sufGce, even though it
were in the same apartment,® (6) An attestation, made in the
same room with the testator, is presumed to have been made in
riBtman, 1 Wend. 277 ; Burgoyne v. Sbovler, 1 Rob.
* Eight V. Price, 1 Doug. 241. In New York, the i
Fawlett, 2 Stnt. IIOS ; J&ckson e.
1 Rob. Eccl. 6,
_..^ _ .,__,_, __ . . , ... . e haa not made it oeces-
Mly that ths wituesaes Bhoold sabscribe in the presence of the testator, i Sent,
Comni. 514, BIG. So in Arkansas and in Nev Jerae;. In Termont alone, the
witDrsses are required to sign in preaence of each other. See 6 Cruise's Dig. tit. &8,
c G, £S 1, 23, QOtes (aiBenleBfa ed. 1857) ; Bkocbanl v. BUnchard, 32 Vt. 62.
' Longford f. Eyw, 1 P. Wms. 740.
• Shires v. Qlaacock, 2 Salk. 688 ; 8. c 1 Ld. Ravia. G07 ; Winchelsea k Wan-
chope, 3 Knsa. 441, 444 ; a. c. Tod v. E. of WiDcheUea, 2 C. & P. 488 ; Dit; v.
Smith, 3 Salk. 3S5. In Kunell o. FoUs, S Uar. & McHen. 463, 464, which ns -rtry
much considered, it was held, that it was necesasry that the testator ihonld have been
able to see the atteeUtion withont leering his bed. And see, to the same effect. Dm
e. Manifold, 1 H. Ji S. 294.
• Chbsoq v. Dade, 1 Bro. Ch. Cas. 90 ; Dewey v. Dewey, 1 Het. 340.
• Etilestone v. Speake, 1 Show, 8B ; s, c. Eccleston v. Petty ai. Speka, Carth. 79 ;
Edelen v. Hardey, / Hu. & J. 61 ; Rossell v. Falls, 3 Har. & UcHen. 457 ; /» n Col-
men, 3 Curt 118. But see Newton v. Clark, 2 Curt 320. The caase of the witnesses'
abeence doea not affect the rule, eren though it were at the request of the testator.
Broderick «. Broderick, 1 P. Wms. 23S ; MacheU v. Temple, 2 Show. 2SS.
(b) HondeTills v. loiter, SI N. J. Eq.
bis presence, until the contrary is shown ; and an attestation not
made in the same room is presumed not to have been made in his
presence, until it is shown to have been otherwise.^ (a) In the
absence of opposing evidence, it will also be presumed, that tlie
attestation was subscribed in the most convenient part of the room
for that purpose, taking into consideration the kind, and the ordi-
nary or actual position, of the furniture therein.' (&}
§ 679. FiMumption from lapse ot tlms. It is proper here to
add, that, after the lapse of thirti/ yean, with possession of the
estate according to the tenor of the will, its regular execution will
be presumed, without proof, by subscribing witnesses.^ Whether
the thirty years are to be computed from the date of the will or
from the death of the testator is a question upon which learned
judges are not agreed; some holding the former, which is now
considered the better opinion, upon the ground that the rule is
founded on the presumption tliat the witnesses are dead, and the
consequent impossibility of proving the execution of the will ; *
and others holding the latter, on the gromid that it is the accom-
panying possession alone which establishes the presumption of
authenticity in an ancient deed.'
§ 680. Havooatioii. A will of lands, thus proved to have been
made with all the legal fornuilities, is presumed to have existed
» Vtil V. Neil, 1 Leigh, B.
* WincheUi's D. Wuuehape, 3 Rusa. 411. The iri11 of a blind man is valid, notrith-
BtsndinK his bliadneas, if it ckarly appears that no impositian vaM practised upoa
him, and that all other legal formalities were oluerred. 1 Janoau on WiUa, pp. 29, 30,
Gth (Am. ) mL 'Zi; Longchamp v. Flak, 2 New Bep. 41S ; Fincham v. Eclvrania, 3
Curt. 63 ; Boyd f. Cook, 3 LaigTi, 32 ; Lewis e. Lewie, 7 8. & R *8» ; la the Goods of
Pieruy, 1 Rob. Eccl. 278; Rav v. Hill, 3 Strobij. 2S7,
* AnU, voL i. if 21, 112^144, 570 ; Crougbton t>. Blake, 12 H. ft W. 20G, 20S ;
Jack«on «. Thompaon, 6 Cowen, 17S, ISO ; Fetlerly v. Waggoner, 11 Wend. fiB9i Star.
JDg n. Bowen, 6 Barb. S. C. 109.
* Jackwtn v. Blanshan, 3 Johns. 292, 296, per Spencer, J. See accordinglr, Oldnall
e. Deakin, 3 C. * P. 402 ; Oough v. Gough,- 4 T. B. 707, n. ; MeKenire e. Frazer, 9
Vea, 5 ; Doe o. Woolley, B B, & C. 22 ; ante, $ 310, and vol. i. % S70.
■ JaoksoQ V. Blanshan, 3 Johns. 292, 298, per Kent, C. J., and Van Ness, J.j Shal-
lar I. BntDd. 6 Bing. 435, 4S9, 444, 447.
(a) Goods of Colman, 3 Curt. C. C. 113. cor in the presence, view, or lieariiig of.
The certificate of attestatian is evidence the testator, although in a raom connected
that the witnesses signed in presence of byanintenuediateroomwiththat in which
the testator, and puts the burden of show- he is lying, it is not a snfficient sigoiog.
iug that they did not in fact so sign, on Boldry v. Farris, 2 Cosh. (Mass.) 434.
llie opponents of the will (Tappen v. Da- (4) Clifton v. Murray, 7 Ga. 664. If
Tidson, 12 C. £. Green, 4G9); and in gen- the witncases to the will are nnable to
eral, the certificate is prima/aeu evidence Temember the facts of the due execntioQ
of wlut it atstee. .Allaiie «. Allaire, 37 of the instrument, the certificate of atlet-
N. J. L. S12. tstion is sufficient prima /aeit svidance.
Whem the witnesses to a will subscribe iJIairo v. Allaire, tupra.
their mimM not in the saiue room with.
668 LAW OP EVIDENCE. [PABT IV.
until the death of the testator;^ but this presumption may be
rebutted by proof of its subsequent revocation.^ And this revoca-
cation may be proved by evidence of an express act of revocation
by the testator, such as cancelling^ obliterating^ or destroying the
instrument, or executing some other will or codicil, or writing of
revocation; or it may be implied from other acts and circum-
stances, inconsistent with the continuance of any intention that
the will should stand, such as alienation or alteration of the estate^
marriage^ and the birth of issue j or other sufficient material change
in the relations and condition of the testator. Tlie former class
falls under the Statute of Frauds, which enacts, that " no devise of
lands, tenements, or hereditaments, nor any clause thereof, shall
be revocable, otherwise than by some other will or codicil, in
writing, or other writing declaring the same ; or by burning, can'
celling, tearing, or obliterating the same, by the testator himself,
or in his presence, and by his directions and consent." ^ And to
such writing of revocation the attestation of three witnesses, at
least, is required.
§ 681. Ezpress revocation. The acts of eatress revocation are
therefore of three classes. First, by a subsequent will or codicil,
inconsistent with the former, or plainly intended as a substitute
for it ; and this must be executed in the manner we have already
considered. If the subsequent instrument, whether it be a will or
a codicil, though it professed an intent to make a different dispo-
sition of the whole estate, does in fact so dispose of a part only, it
is but a revocation pro tanto.^ (a) Secondly, by a written instru-
ment of revocation ; which, it is to be observed, the statute does
not require should be attested in the presence of the testator, like
1 Jackson v. Betta, 9 Cowen, 208 ; Irish v. Smith, 8 S. & R. 57S.
' As to the revocation of wills, see 6 Cruise's Dig. tit. 38, c. 6 (GreenleaTs ed.
1857 ), where the American law is stated in the notes.
* Stat. 29 Car. II. c. 3, § 6. Such is, in general, the langaafe of the American stat^
ut«s on this subject 4 Kent, Comm. 514, 520, 521, n. The difference between wills
of land and of personal property, in regard to the evidence of revocation, as well as the
formalities of execution, is now admitted in so few, if any, of the United States, that it
is deemed inexpedient here to advert to it.
* Brant v. Wilson, 8 Cowen, 56 ; Harwood v. Goodright, Cowp. 87. See also Hearie
V, Hicks, 1 CI. & Fin. 20 ; Henfrey v. Henfrey, 4 Moore, P. C. 29. The republication of
a former inconsistent will is also a revocation of a subsequent will. Harvard v. Davis,
2 Binn. 406.
(a) See also Coffin v. Otis, 11 Met alteration in the will in one particular, neg-
(Mass.) 1 56; Plenty v. West, 15 Eng. Law atives by implication any intention to alter
& Eq. 283 ; Freeman v. Freeman, 27 Id. it in any other respect Quincy o. Rogers,
851. A determination expressed by a tes- 9 Cuah. (Mass.) 2i91.
tator, in a codicil to his will, to make an
a will ; but to take effect as a revocation only, it must contain an
express declaration of an intention to revoke. If ttie instrument
purports to be a subsequent will, and is veil executed to take
effect as a will, it will also have effect as a revocation of all
former wills touching the same matter, without any words of re-
vocation ; but if it does not contain any testamentary disposition,
then, though it is well executed as a revocation, it will not so
operate, unless such intention is expressed.^ Thirdly, by some
act of reprobation, spoliation, or destruction done upon the instru-
ment, animo revocandi. But if the act be done without such in-
tention,* or not in the presence of the testator, though by his
direction, it is of no force.^ It has accordingly been held, that
slightly tearing the will and throwing it on the fire, though it
were only signed,^ or a partial burning of the paper,' or tearing
off a seal, though superfluous," the intention thereby to revoke
bein^ clear, was a sufficient revocation. So, if a material part of
a devise or bequest be obliterated by the testator, it is a sufficient
revocation pro tanto, although it be merely by drawing the pen
across, and the writing be still legible.^ (a) But if it be an oblit-
» Bolierts on Frsnds, 483-466 ; Onions v. TyrPT, 1 P. Wms. 843 ; Limbery v. Maaon,
2 Com. 451 ; Bethell v. Moore, 2 Oev. & But. 3U ; 1 Jarm. on Wills, 121, 122, 12S,
12B, 156, 6th (Am.) ed. "ISS, 169, 173, 180, 201. Die same principle applisa to an
intended revocation by obliteratioD ; if it be not duly uttnated, it has no eoect. Ibid. ;
Kirk V. Kirk, 4 Runs. 435. Rut though the second vill should foil of taking effect, yet
if it ia perfectly execntM, and the failure ariara merely from some incapacity of th«
party far whose benefit it is made to take oiider it, the second will may etiU opentte u
■ ion of the Erst. Langhton a. Atkins, 1 Pick. 5S5, G4S.
ce, if the tmtator were insane, the destruction of the instmment by his order
Fordo, Ford, 7 Humph. 82.
.IP. Wms. 843, 345; Scniby r. Fordham, 1 Add. 74 ; Trerelyan
V. Trevelyan, 1 Phillim. 149 ; Haines v. Haines, 2 Vem. 441 ; Dan v. Brown, 4 Cowim,
490 ; Boudinot «. Bradford, 2 DalL 266 ; ». c. 2 Yeatea, 170 ; Clarke d. Scrippa. 16
Jur. 783 ; ante, vol. L { 268.
• Bibb V. Thomas, 2 W. Bl. 1013 ; Winsor t>. Pratt, 2 B. & B. SGO ; Johnson v.
Brailaford, 2 NoCt &. McCord, 272. The mere direction to another by the testator, to
destroy his will, is not sufficient, unless some act of destruction u thereupon done.
Gil<^ V. Qilei, I Cam. k Nor. 174 ; Ford v. Ford, 7 Homph. 92.
« Doe v. Harris, 6 Ad. & EL 206.
* Aveiy V. Piiley, 4 Mass. 162. See anie, vol. i. { 273. In alt these tai dnilar
cases, the will beiagprima/aeie revoked, the bnrden of proof is on the party setUng
np the will to show that the act of destruction was done by accident or mistake, or
mtbouC intention to revoke the will Cose of Cook's Will, 3 Am. Law Jouni. n. s.
353.
' Sutton V. Sutton, Cowp, 812 ; Mence v. Mence, 18 Tea. 348, 350. As to the time
when alterations are presumed to have been made, see anU, voL i. § 664. The cases of
BurEoyne v. Showier, 1 Rob. Eccl. B, and Cooper v. Bockett, 4 Moore, P. C. C. 419,
on this point, tuni on the langusge of the Stat 1 VicL c. 2S, j 21.
(a) When there is a statutory form of with the re<iulaite formalities, the altenid
revocation by cancellation, and alterations bequests are invalid for want of such eze-
are made, but the will is not executed again cution, and the will aa it onginally stood
670 LAW OP EVIDENCE. [PABT IV.
eration of the name of a devisee or legatee, in some parts of the
will, while in other parts it is left standing, the court will not
ordinarily feel warranted in holding that the bequest is thereby
revoked.^ So, if the obliteration is on the envelope only, it is not
sufficient.' If an alteration or obliteration is in pencil^ it may be
final, or it may be deliberative. From the nature of the act, un-
explained, it is held to be, prima facie^ deliberative, and not final ;
but it will be left with the jury to determine, upon the collateral
evidence, the actual intent with which it was made.^ (a) If the
will is proved to have been in the testator's possession, and can-
not afterwards be found, it will be presumed that he destroyed it,
animo revocandi; but if it is shown out of his possession, the party
asserting the revocation must show that it came again into his
custody, or was actually destroyed by his direction.^ (6)
1 MartiDS v. Gardiner, 8 SinL 78 ; Utterton «. Utterton, 8 Vea. k Beamea, 122. If
the will is found in the testator'a poaaeasion, obliterated, the preaumption ia that it waa
ao done by him ; and the burden of ahowing that it was done otherwiae liea on the
party offering it for probate, or claiming uuder it. Baptist Ch. v. Robbarta, 2 Barr,
110. And see Wyn v. Heveningham, 1 Col. N. C. 680. Bat if it has been in the poa-
aesaion of one adversely interested, the presumption doea not arise. Bennett «. Stier-
lod, 8 Ired. 803.
s Gnntley v, Garthwaite, 2 Rnaa. 90.
* Francis v. Groyer, 5 Hare, 89. And see Edwarda v. Astley, 1 Hagg. Eccl. 493,
494 ; Hawkes v, Hawkes, Id. 821 ; Byrnes v. Clarkson, 1 Phillim. Eccl. 25, 85; Parkm
V, Bainbridge, 8 Phillim. Eccl. 821 ; Dickenson v. Dickenson, 2 Phillim. Eccl. 173 ;
Lavender v. Adama, 1 Adams, 403 ; Bavenscrolt v. Hunter, 2 Hagg. Eccl. 68. The
testator, to revoke tiiis will, must at the same time be competent to make a will, or the
act of revocation will be a nullity. Smith v. Waite, 4 Barn. S. C. 28.
* 1 Jarman on Wills, 119, and cases there cited, 5th (Am.) ed. *133 ; Minkler v.
Minkler, 14 Vt. 174 ; Helyar v. Helyar, 1 Phillim. 417, 421, 427, n., 430, 439, n. ; lima
V. Lillie, 8 Hagg. EccL 184 ; Loxley «. Jackson, 3 Phillim. 126 ; Jackaon r. Betts, 9
Cowen, 208.
ia the will. Matter of Prescott, 4 Bedf. sufficient evidence to warrant the jniy in
(N. Y.) 178. finding that the intent was final and teata-
But where no statutory provisions re- mentary, and not deliberative. Be Fnguet'a
gaitilng partial revocation by cancellation Will, 11 Phila. (Pa.) 75.
exist, a cancellation ia final and the will (6) If the testator becomea insane after
stands without the clause cancelled. £s- the will is made, the burden of proof that
tate of Chinmark, Myrick*s Prob. (CaL ) he destroyed the wiU nno animo is Qpom
128. the party settinff up the revocation. Sprigge
Generally, where a will haa been re- v, Sprigge, L. K. 1 P. & D. 608. The find-
voked, ita republication cannot be by parol, ing of a will among the testator's papem
but there must be the same evidence as of with the signature cut out, and pasted on
publication. Carey v. Baughm, 36 Iowa, again at its original ^lace, ia prima fade
540 ; Smith'a Will, 9 Phila. (Pa.) 862. a revocation, the pasting on of the signa-
(a) Rhodes v. Vinson, 9 Gill, 169 ; ture not having the effect to revive the wilL
CTlarke v, Scripps, 22 Eng. Law k Eq. 627. Bell v. Fothe^l, L. R. 2 P. ft D. 148.
Where the testator, at the time of making Revocation by destruction of the will is
the pencil alterations, said to his brother, prima facie a revocation of the eodiciL
" It will be a good will anyhow if 1 do not Greenwood v. Gozens, 2 Sw. k Tr. S64 ; In
prepare another before I die," and he did re Dutton, 8 Sw. ft Tr. 66. But see Black
not prepare another, and the will aa altered v. JoUing^ L. R. 1 P. It D. 68<^
was a complete and perfect will, there is
PABT IV.] WILLS. 671
§ 682. Same subject. DnpUcates. If the will was execitted in
duplicate^ and the testator destroys one part, the inference gen-
erally is that he intended to revoke the will ; but the strength of
the presumption will depend much on the circumstances. Thus,
if he destroys the only copy in his possession, an intent to revoke
is very strongly to be presumed ; but if he was possessed of both
copies and destroys but one, it is weaker ; and if he alters one and
then destroys it, retaining the other entire, the presumption has
been said still to hold, though more faintly ;i but the contrary
also has been asserted.^ If the will is destroyed, but a codicil is
left entire, the question, whether the destruction of the will ope-
rates as a revocation of the codicil also, will depend much upon
their contents. If they are inseparably connected, the codicil will
be held revoked also ; but if, from the nature of its contents, it is
capable of subsisting independently of the will, its validity may
not be affected.^
§ 683. Whether revocation of later revives a former wiU. Where
the latter of two inconsistent wills is subsequently destroyed, or
otherwise revoked, by the testator, it was formerly held, that
this revived and restored the original will to its former position,
provided it remained entire.^ But this doctrine has since been
greatly modified, if not wholly abandoned, in the ecclesiastical
courts, and the question is now held open for decision either way,
according to the circumstances.^ (a)
1 Seymonr's Coae, cited 1 P. Wma. 846 ; 2 Com. 458 ; Burtenshaw «. Gilbert,
Cowp. 49, 52 ; Pemberton v. Pemberton, 18 Vea. 810. And see O'Neal v. Fair, 1
Kich. 80.
9 Roberta v. Bound, 8 Ha^. Eccl. 548.
< Usticke V, Bawden, 2 AdoT 116 ; Medlycot v, Aasheton, Id. 229 ; Togart v. Hooper,
1 Cnrt 289. See Bates v. Holman, 8 Hen. k Manf. 602.
4 Goodright V, Glazier, 4 Burr. 2512 ; Lawson «. Morriaon, 2 DalL 289 ; James v,
Marnn, 8 Conn. 576 ; Taylor o. Taylor, 2 Nott & McCord, 482.
^ Usticke V, Bawden, 2 Add. 116 ; James v. Cohen, 8 Curt 770. See 4 Kent,
Comm. 581, and cases there cited ; and 1 Jarm. on Wills, 122, 123, and cases in notes
hY Perkins, 5th ^Am.) ed. *186, 187 ; Moore v. Moore, 1 Phillim. 875, 400, 406 ; Bou-
dinot V. Bradford, 2 Dall. 268; Linginfetter v. Linginfetter, Hardio, 119 ; Bohanon v,
Walcott, 1 How. (Mo.) 336. By Stat. 1 Vict c. 25, § 22, no will, once revoked, can be
revived, otherwise than by a re-execution thereof. Hence parol evidence of an inten-
tion to set up the prior will by cancelling the second has been rejected. Major «•
Williams, 8 Curt. 482.
In New York, by Eev. Stat. vol. ii. p. 126 (8d ed.), "the destruction, cancelling^
or revocation of such second will shall not revive the first, unless it appear by the terms
of such revocation that it was his intention to revive and give effect to his first will," or
unless the first is afterwards republished.
(a) Randall v. Beatt^81 N. J. Eq. 648, raises a presumption that the testator in-
follows the principle of Usticke v, Bawden, tended to revive the former if he should re-
that if the previous will is kept safely, it voke the latter will*
672 LAW OP ETIDENCB. [PART IV.
§ 684. Implied revocation. In regard to implied revocations^
these are said to be founded on the reasonable presumption of
an alteration of the testator's mind, arising from circumstances
since the making of the will, producing a change in his previous
obligations and duties.^ (a) A svihteqaent marriage alone, if the
testatrix was 9,fem^ iole, will always have this effect, even though
she should survive her husband; for by the marriage her will
ceased to be ambulatory, and was therefore void.* But the mar-
riage of a man is not, alone, a revocation of his will ; for the com-
mon law. has made sufficient provision for the wife, by her right of
dower. Nor is the birth of a child after the making of the will, in
itself, and independent of statutory provisions, a revocation of a
will made subsequent to the marriage; for the testator is pre-
sumed to have contemplated such an event. (6) But a subsequent
marriage and the birth of a child, taken together, are held to be a
revocation of his will, whether of real or personal estate, as they
amount to such a change in his situation as to lead to a presump-
tion that he could not intend that the previous disposition of liis
property should remain unchanged.^ But this presumption is not
conclusive : it may be repelled by intrinsic proof of circumstances
showing that the will, though made previous to the marriage, was
in fact made in contemplation of both marriage and the birth of
issue ; ^ such as, a provision of any sort in the will itself for the
1 4 Kent, Comm. 521-524.
3 1 Williams on Executors, pp. 93-95, 8th (Eng.) ed. pp. 195, 196 ; Ferae & Hem-
bling's Case, 4 Co. 20 ; Hodsden v. Lloyd, 2 Bro. Ch. Cas. 544, and notes by Eden.
* 1 Jarm. on Wills, p. 107, 5th (Am. ) ed. *122 ; 1 Williams on Executors, pp. 95-98,
8th (Eng.) ed. pp. 196-206 ; Doe v. LAncashire, 5 T. R. 58. See also Church v. Crock-
er, 3 Mass. 17, 21 ; Brush v. Wilkins, 4 Johns. Ch. 506. A testator, dangerously ill,
and unmarried, made a will in favor of his intended wife. Being restored to health,
he married her, and had issue, four children. The will was carefully preserved and
reco^ized by him, but never was re-executed. The wife and children survived him ;
but It was hdd, that the will was revoked. Matson v. Magratb, 18 Jur. 850. Prerog. C
* 1 Jannan on Wills, pp. 107, 109, 110, 5th (Am.) ed. pp. *122, 127, 128; 1 Wil-
, llama on Executors, p. 94, 8th (Eng.) ed. p. 196 ; Fox v. Marston, 1 Curt 494. And
see Johnston v. Johnston, 1 Fhillim. 447; Gibbens v. Cross, 2 Ad. 455; Talbot v.
Talbot, 1 Hagg. Eccl. 705 ; Jacks v, Henderson, 1 Desaus. 543, 557 ; Brush v. Wilkins,
(a) Revocation of a will cannot be im- shares of other children who were made
Slied by law from the following facts: the residuary legatees. Warner «. Beach, 4
eath of the testator's wife, and of one of Gray (Mass.), 162.
his children leaving issue ; and the birth (h) In Pennsylvania, the birth of a
of another child contemplated in the will ; child after the making of a will, even
and the testator's insanity from soon after though the child is posthumous, is a re-
making the will until his death, a period vocation of the will pro tanlo, and snch
of forty years ; and a fourfold increase in child shares the estate as if the father had
the vuue of his property, so as greatly to died intestste.
change the proportion between the specific In Illinois, marriage alone revokes a pre-
legacies given to some children and the vious wilL Duryea v, Dniyea, 85 111. 41.
f utare wife and children ; or & provisiou for childreD alone ; ^ but
provision for the wife onlj has been held inBufficient.' Any other
evidence of intent, to have this effect, it aeems, must amount to
pnx>f of republication of the will, after the birth of the iaaue.
For any other purpose than this, parol evidence of the intentions
of the teatator, that his will should stand unrevoked, has been
held inadmissible to control the presumption resulting from mar-
riage and the birth of issue."
i Johns. Ch. soe ; Yerby t>. Yerby, S Call, tZt. The doctrins th«t the pTsromptian
U not conclasiTe hu boen oveiroled, upon great considsradioD, in the cases of Muston
e. Roe, S Ad. & BU. 11, and iKrael v. Sodou, 2 Moore, P. C. SI, in the foimer of which
the following points were resolved: —
1. Where an anmuTied man without children by a. former marriaxp devisee all the
MtB.t« he has at the time of making his wUl, and leayeg do proTiaioa tor any cUld oF a
future marriage, Oie laie annexes to nicK viiil llu tacit eondiliim, that if he afterwards
niarrie*, and hoe ■ child bom of anch miirriage, the will shall be revoked. Upon the
happenias, therefors, of those two events, the vill Is ipiofado revoked.
2. Evidence not amounting to proof of publication cannot be received in a court of
law, to show that the testator intended that his will should stand good, uatwithsCand-
ing his enbwquent marriage and the birth of issue ; because these events opente aa a
rsTocation, by force of a rule of law, and independent of the testator.
3. The opeiKtion of this rule of hv ia not prevented by a provision in the will or
otherwise, for the future wife only : such provision must also extend to the children of
the marriage.
4. The provision, also, muat be made by the will ; the conditioD annexed to it by
law, BO far as relatea to the ExiBtence or extent of the provision, having reference, in ite
own nature, to the siistiog state of things at the time the will itself was made. And
it must give to the child a beneficial, and not a merely legal, interest as a trustee.
Therefore it was held, that the descent of after-acquired lands upon the child did
not prevent the operation of the rule of revocation above stated ; especially as the child,
in the case at bar, took only a legal estate in trast for the devisee. See also, as to the
conclusiveness of tb« presumption, Goodtitle v. Otway, 3 H. Bl. 622, by Eyre, C. J.j
Doe ». Lancashire, 5 T. H. 58, per lA Kenyon; Gibbons o. Caunt, 4 Ves. 8*8 ; Walker*.
Walker, 2 Curt. 864. See 6 Cruise's Dig. tit. 38, c S. S 48, n. (Qreenleaf's ed. 18S7).
1 Eenebel v. ScntUm, 2 East, G30 ; 1 Jannan od Wills, p. lOB, Gth <Am.} ed. •127.
■ HatBton t>. Koe, 8 Ad. & El. 14.
■ Ibid. In several of the United Statea, the effect of marriwe and the birth of •
child, upon apriorwill, has been definitely settled by statute. Thus, in Rhode Islaud,
k will is ipiojaelo revoked "by a marriage of the teetator subsequent to the date there-
of."' R. I. Rev. St. 1844, p. 231. In Connecticut, " If, after the malting of a vrill, a
child shall be bora to the testator, and no provision shall be made in the will for auch
contingency, such birth shall operate as a revocation of snch will." Conn. Bev. St
184B, pp. 346, 847.
In New York, the enactment is more particular. " If, after the making of any will,
disposing of the ahoU estate of the teatator, such teetator shall many, and have, iastie
of such maniage, bora either in his lifetime or after bis death, and the wife or the issue
of such marriage shall be living at Ike death of the letlalor, such will shall be deemed
revoked, onlese provisiou shall have been made for such issne by some settlement, or
-unless such iaaue shall be provided for in the will, or in such way mentioned therein as
to show an intention not to make such provision ; and no other evidence to rebut the
presumption of such reTocation shall be received." N. Y. Rev. St. vd. iL p. 124, $ SG,
(3d ed.). In Arkansas, Indiana, and Missouti, the laugnage of the statutes is subatan-
tially Che same as in New York. Ark. Rev. St. 1837, c 167, j 7 ; Ind. Bev, St 1843,
c SO, I 8 ; Ho. Bev. St. 1S4G. c. 185, £ 7.
In Pennsylvania, if the testator, after making his will, " shall marry or have a child
not prorided for in such will, and die leaving a widow and child, or either ■ viJotB or
child, though such child be bora after the death of the father, every such peraon, to/ar
aa slull regard the widow or child, shall be deemed and coastroed to die inteatate. Don-
674 LAW OP EVIDENCE. [PABJ If.
§ 685. By marriage and birth of isane. The mle tiiat marriage
and the birth of issue operates as a revocatioii of the previous will,
is not affected by the ciroiunstances, that ihe testator was married
at the time of making ih.e will, and survived his wife, and after-
wards married again and had issue by the second wife ; but such
second marriage and the birth of issue is equally a revocation of
the will as though it had been made while he was single. Nor
does it make any difference that the issue was posthumous ; nor
that the testator died without knowing that his wife was preg-
nant ; ^ nor, that the child died in the lifetime of the testator.'
§ 686. By alteration in estate. Another case of implied revo-
lop's Dig. p. 578, § 15 ; Coates o. Hughes, 8 Binn. 498 ; TomliuBon v. TomlinBoii, 1
Ashm. 224.
In Virginift, " If the testator, hayinff no israe then living, shall make a will wherein
anj child ne may have is not provided for nor mentioned, and shall at his death leavv
a child, or leave his wife pregnant of a child which shall he horn ; " the will '* diaU
have no effect during the life of such after-bom child, and shall be void unless the child
die, without having oeen married, and before he or she shall have attained the ace of
twenty-one years." Tate's Dig. p. 892. In New Jersey, in the like case, the wiU is
declared void ; without reference eitlier to the maniage or majority of the child. N.
J. Rev. St. 1846, p. 868, § 20.
In South Carolina, a will is revoked by the subsequent marriage of the testator, and
his death, leaving issue. S. Car. St. at Lai^, vol. v. p. 107 ; Jacks v. Henderson, 1
Desaus. 548, 557.
In Georgia, the will is revoked, if the testator shall afterwards marry or have a child
bom ; no provision being made for ei^er wife or child in the wiU, and no alteration
being made in the will, subsequent to the marriage or birth of the child. 6a. Bev. St.
1845, p. 457, § 16.
In Ohio, " If the testator had no children at the time of ezecutinff his will, bat
shall afterwards have a child living, or bom alive after his death, such will shall be
deemed revoked ; '* unless the child shall have been pronded for by some settlement, or
in the will, or so mentioned therein as to show an intention not to make such provision ;
''and no other evidence to rebut the presumption of such revocation shall be received."
Ohio Rev. St. 1841, c. 129, § 40.
In Louisiana, '*the testament falls by the birth of legitimate children of the testa-
tor, posterior to its date." La. Civil Code, art. 1698.
In sJl the other States, this subject is believed to have been left to the implication
of law.
Whether the birth of a child by the first wife, after the making of the will, and,
after the death of the first wife a second marriage, but no more children, is a reroca-
tion of the wiU. — qucere, See 4 Ves. 848 ; Yerby v. Yerby, 3 Call, 834 ; 1 Jannan
on Wills, 108, 5th (Am.) cd. •124. See 6 Cruise's Dig. tit. 88, c. 6, §§ 45, 46, notes
(Oreenleaf 's ed. 1857). As to the effect of marriage upon the will of a feme mU, see
6 Craise's Dig. tit. 38, c. 2, § 6, n. ; Id. c. 6, § 57, n. (Oreenleaf 's ed. 1867).
1 Christopher v. Christopher, Dick. 445, cited 8 Burr. 2171, marff.; Id. 2182. See
supra, § 684, n.. and cases there cited. In Doe v. Barford, 4 M. & S. 10, the will was
held not revokea, where the testator died leaving his wife pregnant, of which fact he
was ignorant. But if, as is now settled by the cases of Marston v. Roe, and Israel tr.
Rodon, supra, the revocation results from an imperative rule of law, and not horn any
supposed change of intention, the propriety of that decision may well be questioned.
■ Wright V, Netherwood, 2 Salk. 598, n. (a), by Evans ; more fully reported in 1
Phillim. 266, n. (c). See also Emerson v. Boville, 1 Phillim. 842. In England, it is
now provided, bv Stat 7 W. IV. and 1 Vict. c. 26, § 18, that "every will made by a
man or woman shall be revoked by his or her marriage," except wills made under pow-
ers of appointment, in certain cases ; and that " no will shall be revoked by any pro-
sumption of an intention on the ground of an alteration of circumstances."
cation is that trliif^ arises from an alteration iff the t^ate of the
devisor, after the making of the will ; it being generally consid-
eied essential to the validity of a devise of lands, that the testator
should be seised thereof at the making of the will, and that he
shonld continue so seised thereof until his deoease. If, therefore,
a testator, after making his will, should b; deed aliene the lands
which he had disposed of by the will, the disposition by will
thereby becomes void ; and should he afterwards acquire a new
freehold estate in the same lands, such newly acquired estate will
not- pass to the devisee under the will.^ (a) And though the con-
veyance be for a partial, or a mistaken or unnecessary purpose,
yet if it embraces the whole estate which is the subject of the
devise or bequest, it is a total revocation. But if it is only a con-
veyance of part of the testator's estate or interest, — as, for ex-
ample, if, owning the fee; or entire interest, he makes a lease for
years or a mortgf^, or pledges the property, — it is only a revo-
cation pro tanto, or a gift by will, subject to the lien thus created.'
> See 1 Jarman on WiUfl, c. 7, J 3, pp, 130-J*8, Bth (Am.) ei "UT-ieS ; 2 WiUUDw
on Execaton, pari S, b. 8, c. 2, § 1, pp. S2i>-S27. See alao fl Crnise'a Dig. tit. 88,
c. 6 (Gre«nl«af b ed.), wbera the subject of revocationa by an alteratioD of the estate ia
more largely treated. Walton v. Walton, 7 Johns. Ch. 2eS.
After-acquired lands also pasa by the will, if such was the intent <A the teatator, by
the atatutes of mast of tbe United SlAtes. Bat aach intent miiat clearly appear on
the face of the will, by the statutea of Maine, Maasachusetta, New Hampabire, New
York, Virgiaio, Ohio, Michuan, Wisconsin, and Kentnchy. It ia infeiT«d front the
general termaof a deviae ofaC his estate, by the statute of FennaylraniR, and Indiana;
and also of Connecticnt, unless apparently otherwise intended. In Vermont, the in-
tent muat appear in the will, or be faund "by a proper construction." In Khode
Island, the lands pass, if such intent "appears by the express terms of bis will" In
Illinois and His^aaippi the statutes empower the testator to devise all the estate which
he has "or may bare at the time of his death j" which seems imperatively to include
afUr-acquiied lands, if not excluded by the terms of the wilL See Me. Bev. at. 1810,
«. n, S 13 ; Haaa. Eer. St. 1836, a, 52, 3 3 ; Cushtoa t>. Aylwin, 12 Met. ISS ; Pray
e, Wateraton, Id. 862 ; Winchester v. Foster, 3 Custi. 388 ; N. H. Rev. St. 184^
C 156, S 2 : Tt Bev. St 1839, c. 45, g 2 ; R. I. Rer. St. 18«4, p. 231 ; Conn. Rev. St.
1848, tit. 14,0, 1, 5 4; Brewrter v. McCall, IB Conn. 290; N, Y. Rev. St. vol ii.
p. 119 ; Dunlop's Dig. LL. Penn. p. 672 ; Tate's Dig. LL. Va. p. 889 ; 1 Wash. 76 ; 8
Crancb, S9, 70; Ohio Rev. St 1841. c. 129, g 48; Mich. Rev. St. 1846, c. 68, g 3 ;
LL. Ky. roL iL p. 1637, 3 1 ; Rolierta v. Elliott, 3 Monr. 396 ; Eoberlson v. Barber, 6
Monr. 524 ; Ind. Rev. St. 1843, c. 30, 9 4 ; 111. Rev. St. 1839, p. 686, 5 1 ; Mo. Re7.
St. 1840, c. 36, J 2 ; Wia. Rev. St. 1849, c. 66, ( 8 ; Iowa Rev. 8L 1851, S 1278. See
also Allen v. HFurison, 8 Call, 289 ; Walton v. Walton, 7 J. J, Marsh. 68 ; DanU *.
Warder, 3 B. Monr. 173 ; Smith v. Jones, 4 Ohio, 116 ; Willis v. Watson, 4 Scam. 64 ;
4 Kent, Conun. 611-613.
In die absence of any statute, lands nurchased art«r the date of a devise will posa
hj a codicil made after Uielr purchase ; the codicil containing no expressions limiting
the effect of the devise tv lands comprised in tbe will. Yamold v. Wallis, 4 Y. & C.
180. And see Bridge u. Yates, 14 Law Joum. u. a. 426.
' 4 Kent's Comm. 611, 612 ; Biydges v. Duchess of Cbandos, 2 Tes. 417, 427,
423 ; Carter e. Thomas, 4 Greenl. 341.
(a) Conlaon «. Holmesb fi Savj. C. C. 270.
But a Bubsequeat partition of lands held in common at the time of
making the will is do reTocation ; as it does not affect the nature
or quantity of the estate, but onl^ the manner of enjoyment.^
Nor vill an interruption of the testator's seisin work a revocation
of the vill, where it is involuntary and temporary ; for if he be
disseised eubsequentlj to making the will, and afterwards re-
enters, he is restored to his original seisin, by relation back, and
the devise is not revoked.'
§ 687. SMite snbjeot Even a void conveyance may sometimes
operate as a revocation of a previous devise, on the principle that
it is inconsistent with the testamentary disposition.' This rule ia
applied to cases where the failure of the conveyance arises from
the incapacity of the grantee, as where the husband conveys by
deed directly to his wife lands which he had previously devised to
another ; * and also to cases where the conveyance is inoperative
for the want of some ceremony essential to its validity, as where
it is by feoffment, but there is no livery of seisin." But the rule
does not apply to a conveyance which is void at law on account of
fraud or covin ; yet if the deed is valid in law, but impeachable in
equity, it will be held in equity as a revocation.*
§ 688. Ihrtdenee invaUdaUng wUL The formal proof of a will
may also be relmtted, by evidence showii^ that it was obtained bj
fraud and impontion practised upon the testator; or, by dureati
or, that the testator was not of competent age; or, was a feme
covert; or, was not of sound and ditpoaing mind and memory ; or,
that it was obtained by undue influence. But it is said that undue
inSuence is not that which is obtained by modest persuasion, or
by arguments addressed to the understanding, or by mere appeals
to the affections ; it must be an InBnence obtuned either by flat-
tery, excessive importunity, or threats, or in some other mode by
which a dominion is acquired over the will of the testator, de-
1 1 Jannan on Wai», 134, 186 (Perking's «d.), Bth (Am.) ed. •151, 152 ; Sialey
V. Boltinglus, T. Raym. 240; Brydgeav. Duch«sa of Chandos, 2 Tes. 417, iZ9.
* 1 Jannan on Wilts, p. 133, GlE (Am.) ed. •116; Goodtitle v. Otwty, 1 B. k P.
G76, 602 ; e. c. 2 H. Bl. 6ie ; Cave v. HolTord, 3 Yes. 6E0, 670 ; Attorney-General
tf. Visor, 8 Ves. 256, 282. Id PennaykMiU, it teems ttwt a testator may deriae lands
of which he ia disseised at the time. Hnme v. McFarUne, 4 S. & R. iZi.
* 1 Jannan on WUla, pp. 149, 162, Bth (Am.) ed. "les-^lSS ; Walton v. Walton,
7 Johns. Ch. 269 ; Hodges v. Oreen, 4 Eusa. 2S.
* Beard «. Beard, 8 Atk. 72, 73.
■ Ibid. ; 1 Janoan on WilU, p 150, 5th (Am.) ed. •IflG.
* Simpran n. Watket, S Sinona, 1 ; Bawes v. Wyatt, 2 Cox, 263, per Ld. Alran-
ley. It. &. And ass a. c. in S Bro. Ch. IM, ud note* (7 Peikiua,
strojing his free agenc;, and comitraiQing him to do, ag&inst his
free will, what he is onable to refuse.* (a)
§ 688 a. Probata of lott willa. If the will is proved to be loU, it
may still be admitted to probate, upon secondary evidence, m
in the case of lost deeds and other writings.^ (6) And thongh,
88 we have Been,^ if the will, shown once to have existed, cannot
be found after the death of the testator, the presumption is that
he destroyed it antmo revocandi, yet this presumption may be
rebutted by evidence. But if it be so rebutted, yet the contents
of the will cannot be proved, unless by the clearest and most
stringent evidence.* (c)
1 HirBbdl's CaM, 2 Barr, S8S. And see Daffield v. Hoiria, 2 Harrinn. 37,'> ;
0'}leall V. Farr, 1 Rich. 80 ; Lide v. Lide, S Hrev. 403 ; Huriraa'a Ctae, 1 B. Monroe,
SSI ; Btown v. Hoore, S Yerg. 272, Where the testator ii left free from [udue infla-
ence, and at libeity to iict upon hie own perceptioiu, less mind is ordinarily requisite
to make a will than to malcH a contract of sale. But merepiuntw memory is not alone
sufficient. He must retain sufficient active memory to collect in hla umid, without
prompting, the particulars or elements of the business to be transacted, and to hold
them in his mind long enough to perceive at least their more obvious relations to each
other, and to fonn a rational jutunent io regari to them. The elements of anch a
jadgment should be, the Dumber of bis children, their deserts with reference to conduct
sna capacity, us well as need, and what be had done for them in the way of Bdvance-
ment, the amount and condition of his property, and the like. See Converse v. Con-
Terae, 2 Law Sep. n. s. 616, per Eedfield, J. ; s. c. 6 Washb. 168.
* See antt, vol. i. §9 84, 609, 676 ; Ksams ». Eenms, 4 Harriugt. 88.
* See supra, { B81.
* Davia V. Sigoumey, 8 Met 487 ; Davis v. Davis, 2 Addams, 228 ; Thornton's
Case, 2 Curt. »13 ; Belts v. Jackson, 8 Wend, 173; Clark v. Wright, S Pick. 67 ; 1
<ii) Zimmerman v. Zimmerman, 23 Fa, him to the extent of making a nill essen-
8t. 3iS ; Hoahauer v. Hoshaner. 33 Id, tially contrarjr to his duty, and it miut
404 ; HcHabon tr. Ryan, 20 Id. 320; Par- hare nrored successful Co some extent,
TMiore «. Taylor. 11 Qratt (Va.) 220 ; certainly. Redfield on Wills, pt, 1, 497-
Boberts v. Trawick, 17 Ala. SG ; Coleman 537.
V. Robertaon, IiL 84 ; Walker v. Hunter, The constnint which will avoid a will
17 Oa. 364 ; Nailing r. Nailing, 2 Sneed must be one operating in the act of mak-
(Tenn.), 930 ; Minor e. Thomas, 12 B. ing the will. Throats, violence, or any
Honroe, 106 ; Taylor v. Wilbnm, 20 Mo. undue influence, long past and not shown
806 ; Stnltz v. Schaeffle, 18 Eng. Law to be fa any way connected with the testa-
k £q. 576 ; Bundy v. McKnight, 48 lud. mentary act, ara not evidence to impeach
602. We think it obvions from the a will. Thompson e. Kyner, 65 Pa. St.
cases, that the influence to avoid a will S6S. UnlavrTul cohabitation of a legatee
mnat be such aa : 1. To destroy the free- with the testator is not of itself evidence
dom of the testator's will, and thus render of undue influence. Rudy v. Ulnch, 09
bisBct obrioualymore theoffspriusofthe Pa. St 177; Wainwright's Appeal, 89 Pa.
wiU of other? than of hia own. 2. That it St. 220. It may be u^d, however, in con-
must be an influence specially directed nection with other facte. Main *. Ryder,
towards the object of procnrinff a will in S NorrisfPa.), 217. The burden of proof
favor of particular parties. 8. IF any de- of undue influence is on the party setting
gree of free agency, or capacity, remained it up. Baldwin v. Barker, 90 Mass. 78.
in the testator, so that, when left to him- (b) 1 Bedf. Wills, S 28, pi. 9 ; Evsritt
self, ha waa capable of making a valid will, v. Everitt, 41 BM-b. 335 ; Yonndt v.
then the influence which so controls him Youndt, 3 Grant's Gas. 140.
as to render his nuking a will of no effect (c) Rhodes n. Vinson, 9 Oill, 169 ; Bat-
must be snoh as was intended to mislead tna «. Watson, 18 Oa. 63. Of. tlie casa
678 LAW OP EVIBENCE. [PABT IT.
§ 689. iDMuiity. Burden of Proof. In regard to tnaanitjf or want of
Bufficient soundness of mind, we have heretofore seen, that though
in the probate of a will, as the real issue is whether there is a
valid will or not, the executor is considered as holding the affir-
mative,^ (a) and therefore may seem bound affirmatively to prove
the sanity of the testator ; yet we have also seen that the law it-
self presumes every man to be of sane mind, until the contrary is
shown.^ (6) The burden of proving unsoundness or imbecility of
mind in the testator is therefore on the party impeaching the
validity of the will for this cause. But, as has also been shown,^
insanity or imbecility of mind, once proved to have existed, is pre-
sumed to continue, unless it was accidental or temporary in its
nature, as, where it was occasioned by the violence of disease.
And, on the other hand, the proof of insanity at the time of the
transaction may be rebutted by evidence that the act was done
Jarman on Wills, 119, by Perkins, 5th (Am. ) ed. *1S4 ; Hnble v. Clark, 1 Hagg. EccL
115 ; Steele v. Price, 5 B. Monroe, 58.
A AnU, vol. L § 77.
^ Ante, vol. i. § 42 ; supra, tit. Insanity, § 878 ; Brooks v, Barrett, 7 Pick. 94.
* Supra, tit Insanity, § 871. And see vol. i. § 42. Evidence of prior bodily dis-
ease, and of different intentions, previously expressed, has been held admissible in
proof of incapacity at the time of making the will. Irish v. Smith, 8 S. & R. 678.
But moral insanity, or the perversion of the moral feelings, not accompanied with
insane delusion, which is the legal te.<(t of insanity. Is held msufficient to invalidate a
will. Frere v, Peacocke, 1 Rob. £ccl. 442.
of Sugden v. Lord St. Leonards, 84 L. T. that the defendants were entitled to begin.
N. 8. 872, upon tiiis point. In this case, Hutley v. Grimstone, L. R. 5 P. D. 24.
it was held, that the declarations of the (6) Dean v. Dean, 27 Vt. 746 ; Tmm-
testator, both before and after the execu- bull v. Gibbons, 2 N. J. 117 ; Zimmerman
tion of the will, were admissible, and that v. Zimmerman, 23 Pa. St. 875. It has
where it is impossible to prove all the been held that the burden of proof is on
contents of a lost will, probate should be him who contests the sanity of tne testator,
allowed of so much — being the substan- Therefore, if the evidence is evenly bal-
tial parts of the will — as could be satis- anced, he should fail and the will &ould
factorily proved, although there was proof be established. This is so held in Gmbbs
that some material provisions were omitted v. McDonald, 91 Pa. St. 286, but it is not
from inability to remember them with so held universally, and the better rule is
accuracy. See also ante, vol. i § 558. that the burden of proof, both of the exe-
(a) When it is attempted to set up a cntion and the capacity of the testator,
series of wills as last wills of the deceased, is upon him who attempts to set up the
the practice in English Probate Courts is will. Smee v. Smee, L. R. 5 P. D. 84,
to allow the party who propounds the last p. 91 ; Robinson v. Adams, 62 Me. 869 ;
will to begin. So, when the plaintiff pro- Evans v. Arnold, 52 Ga. 169 ; Crownin-
Sounded a will dated in 1867, and the shield v. Crowninshield, 2 Gray (Mass.),
efendants alleged that that will had been 524, qualifying Brooks v. Barrett, supra;
revoked by a will dated in 1872, which Delafield v. Parish, 25 N. Y. 9 ; Comstock
they propounded, and the plaintiffs in v, Hadlyme Eocl. Soc., 8 Conn. 261 ; Taft
their reply alleged that the will propounded v. Hosmer, 14 Mich. 309. Indeed, the
by the defendants had not been duly ex- question of the burden of proof in a fdea
ecuted, and that the deceased was not, at of insani^ is one which is variously de-
the time of its execution, of sound mind, dded. Cl supra, tit Insanity,
memory, and understandings it was held
during a lucid interval of reaaon, the burden of proving Trhicb is
derolved on the part; asBerting thia exception.^ (a)
§ 690. Piool of inMnlty. In the proof of insanity, though the
evidence muat relate to the time of the act in question,' yet evi-
dence of insanity immediate!; before or after the time is admis-
sible.^ (5) Suicide, committed by the testator soon after making
his vill, is admissible as evidence of insanity, but it is not con-
clusive.* The fact of his being under guardianahip at the time
falls under the same rule ; being prima facie evidence of inca-
pacity, but open to explanation by other proof.^ (c) It may here
be added, that where a devisee or legatee is party in a suit touch-
ing the validity of a will, his deelarationt and admissions in dis-
paragement of the vrill are competent to be given in evidence
gainst him ; but if he is not a party to the record, nor party in
interest, it ia otherwise.* So the declaration of his opinion in
favor of the sanity of the testator is admissible ^[ainst a party
3 Btd. Ch. 441 ; Ex parte Holjland, 11 Vn. 11 ;
. , .arlwrighlP. Cartwright, 1 Phillini. 100. And eae 1
Williums OQ Eiecnton, pp. 17-30, 8tli ( Eng. ) ed. pp. 21-28 ; 1 Juman on WtUs, c. 8 ;
Rajr's Medical Jurispnideiics of Inaanity, c. 11, Sg 230-246 ) Bumatjoe v. BauiiatTiia,
14 Eng. lAW & ^. GSl.
* Atlornej-Gen. e. Piruther, 8 Bro. Ch. 441, 443 ; Whits e. Wilson, 18 Vea. 87.
■ DickioBun v. Biirber, 9 Mosa. 22fi. • Brooks «. Barrett, 7 Pick. 94.
* Stone V. Damon, 12 Mass. 488 ; Breed v. Pratt, 18 Pick. IIG.
* Atkins V. Sanger, 1 Pick. 1^2 ; Phelps v. HsrtweU, 1 Maaa. 71 ; Borard v. Wal-
lace, 4 S. & R. 400 1 Nusaear v. Arnold, 13 S. b R. 323, 328, 320.
Ia) Lee v. Scudder, 31 N. J. Eq. 633. withatandiDR some hallncinatloil on other
AHIiongh the testator entertaiua ezagger- sabjecta. McClw«e v. Fergusoa, 48 Hd.
ated and absnrd opinions on certain anb- 478,
ftcta, this is not sufficient eridenra of In order to have the effect of invalida- ,
msanity Co jnstifj the setting aside of his ting a will, Intoxicatioti must be sbown to
will, if it also appear that he has the use of have been of such a nature as to render
bis facnlties, and the nil! itself indicates the testator incapable of knowing what he
that he was in the posiesBton of bis res- was doins when he ei«cated the will.
Boning powers at the time of making the Pierce v. Pierce, 8S Hictu 412.
will. ThompKin «. Thompson, 21 Barb. {b) On the trial of the validity of a will
107 ; Kewhouse v. Oodwiti, 17 Id. 286 ) executed when the testatrix was seventjr-
Tnuobnllv. Oibbons, 2 N'. J. 117 ; Denton eight yean old, there is no ground (J ex-
V. Franklin, 9 B. Mon. 28; Austen v. ception to the exclusion ot evidence of her
Graham, 29 Eng. Law i Eq. 88. A belief mental and moral condition fifteen montba
in witchcraft is not evidence of such in- afterwards, when she was aOectwl with
uni^ Bi would disable a person from paralyaia ; and also of evidence of her
■naking a will. Addingtoa «. Wilsoa, G Wilv and mental condition at tubMi)aent
Ind. (Porter) 137. A good general state- periods until her death at the age of utnen-
ment of the rule seems to be that, when one ; which ia offered to prove that tint
a testator has sufficient capacity to make waa we«k in body and mind when *he ax-
K disposition of his estate with judgment ecuted the wilL Shailer v, Bumtte«d, M
•nd understanding with reference to the Mass. 112.
ainonnta and situation of his property and (e) Hamilton v. Hamilton, 10 K. I,
the ralatlve claims of different persons 688 ; Crowninabield v. Crowninshield, 9
whoateorshouldbeobjectiof hit bounty, Ony (Msaa.), G24 ; Jenka v. Smithfield, 9
he ia of loiind and disposing mind, not- B. 1. 25G.
680 LAW OP ETTDENCE. [PABT IT.
opposing the probate of the will om the groimd of hiB insanitj.^
The deelaration9 of the testator himself are admissible only wb^
they were made so near the time of the execution of the will as
to become a part of the res gestcB*^ (a)
§ 691. iBMuiity. Opdntona Tlie aUestinff witnenes are re-
garded in the law as persons placed round tilie testator, in otder
that no fraud may be practised upon him in the execution of ^be
will, and to judge of his capacity. They must, therefcn'e, be eoift-
petent witnesses at the time of attestation ; otherwise the will is
not well executed.* (ki this ground, these witnesses are permit-
ted to testify as to the opinions they formed of the testator's ca-
1 Ware v. Ware, 8 Greenl. 42 ; Atkins v. Sanger, 1 Pick. 192. But declarations
by a deyisee, that be procured the devise to be made, are not admiaaible for thia pur-
pose ; it not being unlawful so to do, provided there were no fraud, impoaition, or ex-
cessive importuni^. Miller v. Miller, 8 S. & R. 267 ; Davis v. CalVert, 5 Gill &
Johns. 265.
' Smith V. Fenner, I GalL 170. See also, as to declarations of testaton, Den v.
Vancleve, 2 South. 589 ; Reel r. Reel, 1 Hawks, 248 ; Farrar v. Ayere, 5 Pick. 404 ;
Wadsworth v, Ruggles, 6 Pick. 68 ; Rambler v. Tryon, 7 S. & R. 90 ; Betts v. Jackson,
6 Wend. 173.
* Such was the opinion of Lord Camden, which he maintained in an enei^tie pro-
test against that of a majority of the court, in Doe d. Hindson v, Hersey, reportea in
4 Bum, Eccl. L. 88, and in a note to Comwell v. Isham, 1 Day, 41-88. His opinion
is now acquiesced in as the tnie exposition of the statute of wills. See Borgrave «.
Winder, 2 Ves. 684, 636 ; Amory v. Fellows, 6 Mass. 219, 229 ; Sears v, DiUingham,
12 Mass. 858, 361 ; Anstey v. Dowsing, 2 Stra. 1253, 1255 ; ante, vol. I §§ 833, 353,
440 ; 1 Jarman on Wills, pp. 63, 64, 66. {b)
(a) Marx v. McGlynn, 4 Redf. 455. It &c., was given, such interest or estate as
is certain such testimony is not admissible to the person attesting the will only, or
for the purpose of proving any distinct any one claiming under him, should be
&ct, depending upon the force of the ad- absolutely void, and such person should he
mission, since the testator is not a party admitted as a witness ; and creditors, whose
,to the question of the validity or interpre- debts are charged on real estate, are by the
tation of his will. Comstock v. Hadlyme, same statute also made competent. A
8 Conn. 254. Nor can such declarations, similar statute exists in many of the Amer-
whether made before, contemporaneously ican States. Under this statute it has
with, or subsequent to, the making of the been decided that its provisions do not
will, be received to affect its construction, extend to an executor or devisee in trust.
Redfield on Wills, pt. 1, 539, and cases Lowe v, Joliffe, 1 W. Black. 366 ; Fonn-
cited. Bee also same, 588-572, for a full tain v. Coke, 1 Mod. 107 ; Goodtitie r.
discussion of the law as to admissibility of Welford, Doug. 139 ; Phipps v, Rtchei\ 6
testator's declarations. Taunt 220. The operation of the statute
(b) But in a later case than Anstey v, is so sweeping, that it seems it will render
Dowsing it is expressly decided that a void any beneficial interest of any one un-
witness to a will, wno is a legatee under it, der the will, who is a witness, althou^
may become competent to prove the same there may be other witnesses, sufficient in
by releasing such legacy. Lowe v. Joliffe, number to meet the requirements of the
1 W. Black. 365. Some of the late Amer- statute. Doe v. Wills, 1 Moody & Rob.
ican cases adhere to the rule as laid down 288 ; Wigan v. Rowland, 11 Hare, 157.
by our author. Patten v, Tallman, 27 Me. An interest in the wife, as it seems, will
17; Warren v. Baxter, 48 Id. 193. But disqualify the husband as a witness, to the
these cases gave rise to the English statute extent of the wife's interest Hatfield v.
(25 Geo. II. c. 6) which provided that if Thorp^ 5 B. & Aid. 589. See, on this
any person should attest any will or codi- ffeneni subject, 1 Red! Wills, $ 21, pL
cil, to whom any beneficial devise, legacy, 2-5.
PART IV.] WILLS. 681
pacity at the time of executing his will ; though the opinions of
other persons axe ordinarily inadmissible, at least unless founded
upon facts testified by themselves or others in the cause.^ (a)
§ 692. Requisites of formal ezeoutioii. The foregoing requisites
to the formal execution of a valid will are all demanded, when-
ever the instrument is to be proved in the more ample or solemn
form ; and this mode of proof, as we have before intimated, is
now generally required in the United States, the probate of the
will being ordinarily held conclusive in the common-law courts,
for reasons already given. And this amount of proof by all the
attesting witnesses, if they can be had, may be demanded by any
person interested in the wUL*
§ 693. Proof on issue of devisavit vel non. Upon the trial of
an issue of devisavit vel nofij or other issue of title to landsj in the
courts of common law, in those States in which the probate of the
will is not regarded as conclusive in respect to lands, it is neces-
sary, in the first place, to produce the original tvUly or to prove its
former existence and its subsequent loss, in order to let in the
secondary evidence of its contents.^ And for this purpose the
probate of the will, or an exemplification, is not received as evi-
dence without proof, aliunde, that it is a true copy.^
^ Ante, Tol. L § 440, and cases there dted ; Hathom v. King, 8 Mass. 871 ; Dick*
inson v. Barber, 9 Mass. 225.
3 See 1 Williams on Executors, pp. 192-200, Stb (Eng.) ed. pp. 887-347 ; Sean v.
DiUingham, 12 Mass. 858 ; Chase o. Lincoln, 8 Mass. 286. In Massachusetts, a will
devising land must be proved and allowed in the probate court, before it can be used
as evidence of title in a court of common law. Snumway 9, Holbrook, 1 Pick. 114 ;
Langhton v. Atkins, Id. 535, 549. And for this purpose, it may be admitted to probate^
though more than twenty years have elapsed since tne death oi the testator, ibid.
s See ante, vol. i. §§ 557-563, 569-575 ; Id. § 84, n. The nature and effect of pro-
bate in general has already been considered. See ante, vol. L §§ 518, 550 ; also auprOf
§ 815. The issue of devisavit vel non involves only the question of the valid execution
of the will, and not of its contents. Patterson v. Patterson, 0 S. & R. 55. In North
and South Carolina, the probate of the will is by statute made sufficient evidence of a
devise. N. Car. Stat. 1837, c. 122, § 9 ; S. Car. Stat at Laige, voL vi p. 209.
« Doe V. Calvert, 2 Campb. 889 ; Bull N. P. 246.
(a) The decided weight of authority Is been the medical adviser of the deceased,
now in favor of the admissibility of the and witnesses who are by special skiU and
opinions of such witnesses, and of other experience qualified as experts in the
non -experts who have had opportunities knowledge and treatment of mental dis-
of observation, on the question of sanity, eases, are alone competent to give their
Kobinson o. Adams, 62 Me. 869 ; Hardy opinions in evidence on this issue. The
V. Merrill, 56 N. H. 227 ; Nash v. Hunt, testimony of other witnesses is confined to
116 Mass. 287 ; Dennis v, Weekes, 51 a statement of facts and the declarationa
Ga. 24 ; ante, § 869, n. But see Rollwa- manifesting mental condition, of which
gen V. RoUwaffen, 8 Hun (N. Y.), 121; they have knowledge. Hastings v. Ryder,
1 Redf. Wills, 1 15, pi. 5. It is seUled law 99 Mass. 622, p. 625 ; Nash v. Hunt, 116
in Massachusetts that the witnesses to Mass. 287, p. 251 ; May v. Bradlee, 127
the will, the family physician who has Mass. 414, p. 421.
682 LAW OP STIBENCE. [PiiBT lY.
§ 694. Whether ell the enbeoilblag wttneeeee neoeMery. It is
ordinarily held sufficient, in the courts of conunon law, to call one
only of the 9yb9cribifig witne$9e$f if he can speak to aU the circum.-*
stances of the attestation ; and it is considered indispensable that
he should be able, alone, to prove the perfect execution of the
will, in order to dispense with the testimony of the other wit-
nesses, if they are alive, and within the jurisdiction.^ (a) But in
chancery, a distinction is taken, in principle, between a suit by a
devisee, to establish the will against the heir, and a bill by the
heir-at-law, to set aside the will for fraud, and to have it delivered
up. For, in the former case, a decree in favor of the will is final
and conclusive against the heir ; but in the latter, after a decree
against him, dismissing the bill, his remedies at law are still left
open to him. It is therefore held incumbent on the devisee,
whenever he sues to establish die will against the heir, to produce
all the subscribing witnesses, if they may be had, that the heir
may have an opportunity of cross^xamining them ; but where the
heir sues to set aside the will, this degree of strictness may, under
circumstances, be dispensed with, on the part of the devisee.^
1 Longford v. Eyre, 1 P. Wms. 741 ; Bull. N. P. 264 ; Jackson v, Le Grange, 19
Johns. 386 ; Dan v. Brown, 4 Cowen, 483 ; Jackson v. Yickory, I Wend. 406 ; Jack-
son V. Betts, 6 Cowen, 377 ; Turnipseed v, Hawkins, 1 McCord, 272. In Pennsyl-
vania, two witnesses are required in pcoof of every testamentary writing, whether in
the general probate before the register of wills, or upon the trial of an issue at common
law ; and each witness must 8ei>arately depotse to all facts necesrary to complete the
chain of evidence, so that no liuK may depend on the credibility of but one. Lewis v.
Maris, 1 Dall. 278 ; Hock v. Hock, 4 S. & R. 47. And if there are three witnesses^
and the proof is fully made by two only, it is enough, without calling the third. Jack*
son if. Vandyke, 1 Coxe, 28 ; Fox v. Evans, 8 Yeates, 606. But if one or both wit-
nesses are dead, the will may be proved by the usual secondary evidence. Miller «l
Carothers, 6 S. & R. 215.
2 Bootle V. Blundell, 19 Yes. 494 ; Tatham v. Wright, 2 Russ. k My. 1. In the
latter case, which was a bill by the heir to set aside the will, the rule was expounded
by Tindal, C. J., in the following terms : "It may be taken to be generally tnie, that
in cases where the devisee files a bill to set up and establish the will, and an issue is
directed by the court upon the question devisavU vel non, this court will not decree the
establishment of the will, unless the devisee has called all the subscribing witnesses to
the will, or accoimted for their absence. And there is good reason for such a general
rule. For as a decree in support of the will is final and conclusive against the heir,
(a) It seems to be conceded on all would seem, that where the execution of
hands, that where the subscribing witness- such an instrument as a will requiring
es, one or more, become disqualified from such formaliries Ir attempted to be estab-
giving testimony, subsequent to the time lished by circimostantial evidence, it could
of attestation, or have deceased, or removed not fail to strike all minds, that proof of
beyond the jurisdiction of the court, so the signature of the testator woula be ee-
that their testimony cannot be had, the sential. See 1 Redf. WiUs, § 19, pL 20 ;
will may be established by proving the also Dean v. Dean, 27 Yt. 746, where the
handwriting of the witnesses and of the tes- authorities are discussed somewhat in de-
tator ; and some authorities say, by proving tail by Mr. Justice Isbam.
that of the witnesses alonOi — aluough it
§ 695. Compatenoy of wltneMaft. The cempetena/ qf the wit:
n^wes, and the admisBibilitj of their opinioru in evidence, hare
already been considered in the preceding volume.^ (a)
■gainst whom au iigouctioD would tw gmit«d if he should proceed to disturb the po».
•eanoD sftai the decree, it is but reasoiuble that he ahould have the opportunity i^
cToss-suminiDg all the witneasea to the will, before hit right ot trying the title of the
devisee is taksn ftom btm. In that case, it is the devisee who asks for the icterfereoce
of this court ; and he ought not to obtain it until he has given eveir opportunity to
the heir-at-law to dispute the validity of the will. This is the ground upon which the
practice is put in the cases of Ogle v. Cook (1 Vea. 17S}, and Townsend f. Iveg <1
Vila 216). But it appears clearly from the whole of tbe reasoning of the Lord Chan-
cellor in the case of Bootle v. Bluudell, (1 Mer. 103 ; Cooper, 138), that thU rule, aa
a general rule, applies only to the cose of a bill filed to establish the will (an tataliiith-
ing bill, u Lord Eldon culs it Id one part of his judgmeat), uid an issue directed by
the court upon that bill. And even in eaaea to which the rule generally applies, this
court, it would seem, aader particalar circumstances, may dispense with the necessity
of the three witnesses being called by the plaintiff in the issue. For in I^owe v. JoliHe
(I W. Black. 3fl6), where the UU was filed by the devisee under the will, and an isaue
devimvU vel nfa mu tried at bar, it ajipeara from the report of the caae, th&t the sub-
scribing witnesses to the will &Dd codicil, who swore that the teelstor was utterly inca-
pable of making a will, were called by the defendant in the issue, and not by the plaintiff;
for the reporter aaya, ' to encounter this evidence, the plaintiff's counsel examined the
friends of the testator, who strooHly deiioBod to his sanity ; ' and, a^u, the Chief Jus-
tice expressed hia opinioii to be, that all the defendant's witneases were groaaly and cor-
tuptlj perjured. And after the trial of this issue the will was established. !□ such a
case, to have compelled the devisee to call these witnesses would have been to smother
the investigation of truth. Now. in the present case, the application to this court is
not by the devisee seekinz to establish the will, but by the heir-at-law, calling upon this
ooiut to declare the will void, and to have the same delivered up. The neir-at-Iaw
does not seek to tiy hia title by an ejectment, and apply to this court to direct that no
mortgage or outatanding terms shall be set up against him to prevent his title from
being tried at law, but seeks to have a decree in his favor ; in subataace and effect, to
wt aside tlv will. This case, thei^fore, stands upon a ground directly opposite to that
upon which the cases above referred to resL So far from the heir-at-law being bound
by a decree which the devisee seeks to obtain, it is he who seeks to bind the devisee,
and such ia the form of his application, that, if he laila upon his issue, he would not be
boand himael£ For the only result of b verdict in favor of the will would be, that the
heir-at-law would obtain no decree, and bis bill wotild be dismissed, still leaving him
open to his remedies at law. No decided case has been cited, in which the rule had
been held to apply to such a proceeding ; and, certainly, neither reason nor good sense
demands that this court should establish such a precedent under the circumstances of this
case. If the object of the court, in directing on issue, is to inform its own conscience
by sifting the truth to the bottom, that course should be adopted with respect to the
witnesses, which, by experience, is found beat adapted to the investigation of the truth.
And that is not attnined by any arbitrary rule that such witnesses must be called by one
and such by the other party, but by subjectioK the witneasea to the examination in chief
of that party, whose interest it is tocallbim, from the k Down or expected bearing of his
testimony, and to compel bim to undergo the crosa-eianiiiiation of the adverse party
against whom his evidence is expected to make," Sea 2 Russ. k Kylne, pp. 13-lG.
> ArUt, vol. i. O 327-430, HO. Aa to the competency of executors and trustees,
•ee particularly jS S3S, 409.
{a) A wife i> not a competent witneai sores, see tmtt, voL L J 661. The filling
to a will containing a devise to her hus- up of blanks ia presumed to have beeu
band. Pearse v. Allh, 110 Haas. lt>7 ; done before the execntion, aa otherwise
Sallivao o, Bulliran, lOS Mass. 474. As the execution wonld be an idle ceremony.
to allerationa, interlineationB, and era- Birch c. Birch, 6 Ec. & Mar. Caa. 6S1.
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