IMAGE EVALUATION TEST TARGET (MT-3) V ^. ^ // {/ A ^c (/a 1.0 I.I 'I lllitt ,5. liiai !IIIIM 1 2.2 |M 1.8 1.25 1,4 1.6 -♦ 6" — ► r'i8«r. .,., OP IN TWO VOLUMES. Vol. 1. BOSTON: LITTLE, BROAVN, AND COMPANY. TORONTO: THK CARSWEr.L CO., (/..mitki.). 1892. Copyrir/ht, 18'J2., Bv JeUEMIAII Ti!AVI3. V b'V Univkksity Press: John Wilson ani» Son, Camiikiuok, U.S.A. 15393 Y ''HATKFUI, RECOGNITION O,.' THK MAXV ACTS Oi' K.NONESS AM, fol RTFsr HECKIVEl) FROM TUE-SK UONOREr. M IN. AN., IN ACK.NOWLKDGMKNT OF THE DEBT I OWE TO THEM FOR THE VALUABLE IXsTUrC- TIOX THEY WERE ALWAYS SO READY TO IMPART, / beg Respectfullj ,„ Dedicate ,/,:■. Work ,o the Memon, of ihe Hon. jokl parkf:r, I.r.D., Hon. THKOPHILUs PAKSONS, M..I).. Hon. EMOKV WASEIBIKN, Li,.n.. So long the Esteemed and EMimuUe Profes,ors of //,. f,,,,. School. of Harvard Uniceraity. THE AUTHOK. ■1 INTRODUCTION. In writing a treatise on Canadian Constitutional Law I found two cases, Dobic v. The Temporalities' Board,' and Russell v. The Queen,^ decided by the Judicial Committee of tlie Privy Coun- cil of England, which, on a fair investigation of them, seemed to me to be so entirely unsound as to be absolutely indefensible. As tho points involved in them are of the first importance in the construction of the Imperial Acf* which forms the Constitution of Canada, therfi was no other course fairly open to mo than to un- dertake to show that these cases arc not law. I have every reason to be satis led mth my success in such undertaking. After an exhaustive analysis of them, notwithstanding the high authority of the court by which they had been decided, and that they had been tamely accepted by the Provincial and Dominion courts as though there could be no question as to their soundness, I was driven to the conclusion, which I frankly expressed,* that the cases were badly decided. I also hazarded the opinion that as then, for the first time, the unsoundness of those cases had been unanswerably demonstrated, the Supreme Court of Canada could no longer follow them, and the doubt was expressed whether tjje Judicial Committee themselves would continue to follow them. The sequel proved the correctness of the opinion, and the justifi- cation of the doubt.^ J 7 A pp. Cas. 136. ''• Ibid., 829. ' British North American Act, 1867, 30 & 31 Vic. c. 3. * Sl'o Travis on Can. Const. Law, Part 2, pp. 133-178. ^ The (puistion involved in those cases subsequently came before the Supreme Court of Canada in a case known as the (rt) See, on file in the office of the De- partment of Justice, at Ottawa, Canada, the stenographer's report of the argument and proceedings in the Supreme Court of Dominion License Act Case, when, aa was prcilicted, that court expressly re]mdiated l)()bie V. The Tcniporulities' Board and liussell V. The Queen ; Sir Wni. Ritchie, C. J., voicing the oiiiniou of the whole court, .saying of them : " We i)re.sume it will scarcely be considered liigh treason in us if we say those cases are not law ;" and the court refused to follow them, (a) Canada, on questions submitted to the court by the government, as to the con- stitutionality of the Dominion License Act, where the above facts were ascertained. Il I X INTRODUCTION. In precisely the same way, throughout the whole of this treat- ise, I have endeavored to point out the law on the numerous impor- tant questions I have discussed ; and, notwithstanding the great amount of bad law 1 have found in cases decided in the courts in England and in this country, and which is repeated and perpet- uated by text-writers, without the slightest attempt at exposing the most transparent fallacies which have stared them in the face, I feel quite satisfied that, from the commencement to the close of this work, there is not one of the many (juestions in connection with which I have pointed out much of such bad law, in which I have failed to show what the law on the particular subject really is. On several of these questions I have had opportunities of eliciting the views of some of the ablest lawyers in the United States; some of them members cf the Bench; some of them occupying the highest positions in connection with leading Law Schools ; and others, leading practising lawyers, text-writers, and law-reviewers. Among a"l cbeso I have failed to find one who has not assented to the soundness of the principles of law to which I directed their attention ; while, on many of these most important subjects, I found a genera' expression of sur- prise, by those gentlemen, that they had not themselves previ- ously noticed the transparent fallacies, the greater part of which are, for the first time, exposed in this work. Merely to recapitu- late them would be to make an analysis of this entire work ; A copy of Travis on Can. Const. Law was sent to cacli nioinber of the Judi<;iiil Com- mittee of the Privy Council, and, on tlie question disnussoj in it, as to the unsound- ness of their decisions in Dobie v. The Temporalities' Roard and Russell v. The Queen — the question coming directly be- fore them in the Dominion License Act Case — they held this act ultra vires the Parliament of the Dominion, and, in doing so, directly reversed their decisions in the previous cases referred to above. In com- ing from San Francisco, where this work was mainly written, to Hoston, I met, on my way, Mr. Edward Blake, one of the ablest lawyers and statesmen in Canaila, when, in a conversation between us, the following took place : — "You observe, Mr. Blake, that the Privy Council have sustained my criti- cism of their judgments." " Yes, tliey did so, but they claimed not to do so." " Yfs, they claimed not to do so, but they did so notwithstanding." Mr. Blake, very pm]ihatically "Yes !" As a clear matter of fact, on the ground on which the Privy Council decided, in Hussell V. The Queen, that the Canada Temjierance Act was intra vires the Par- liament of Canada, they .should have held, had their holding in that case been sound, that the Dominion License Act was also infra vires Parliament. But, in holding as they did that this latter act was u//ra vires, they directly reversed their previous holding in Dobie v. TheTemporal- ities' Board, and in Russell v. The Que^n. H INTRODUCTION. xi lis trcat- s impor- ho great courts in 1 perpct- cxposing the face, close of mncctiou , in which ,r subject unities of he United J of them iding Law xt-writers, ) find one )lc8 of law y of these on of sur- slves previ- •t of which ;o recapitu- Itirc work ; [lied my criti- they claimpii to Ao so, but Teally " Yes !" I on the ground kl decided, in [it the Canada vires the Tar- should have Ithat case been License Act fient. But, in I this latter act f reversed their , TheTeinporal- I V. The Que^n. but, among the many gross legal fallacies I have undertaken, and I think with success, to clearly expose, 1 may hero direct special attention to Book 111. of this work, Part I., where the unsound doc- trine is exposed, attempted to be established by the courts of New York (followed in Kansas and Nebraska, and, more remarkably, from the general trend of their own decisions there, by Pennsyl- vania), that railway companies are liable, on the fraudulent traf- fic receipts of station agents, for goods which have not been received by the railway, where bills of exchange based on such fraudulent receipts have been sold by a party to the fraud. This utterly unsound doctrine is based on the perversion of a principle of agency, which, if generally ajjplied, would involve the destruc- tion of very much of the most unquestionable law of principal nni agent. As I have shown in that Part, not only arc the recent New York decisious on l';' main subject unsound; not only in reaching such dcci'^ions do they pervert and destroy a sound prin- ciple of the law of agency ; but, in principle, those cases are opposed to the decisions of the well-decided cases in New York running over a period of three quarters of a century. To all in- terested in the liabilities of carriers, directly or indirectly, I par- ticularly direct attention to Book TIL, Parts I. and II., of this work. In Book IV., Parts VI. and VII., I have most elaborately dis- cussed that branch of the seventeenth section of the Statute of Frauds relating to the acceptance and actual receipt of a part of the goods purchased, to take the case out of the statute ; and the reader, on studying those Parts, can scarcely fail, I think, to be astounded at the fact, and its effect, of the " acceptance " of the statute as an entity, apart from and independent of the '' actual re- ceipt " of the statute, being so long and so generally ignored, as it has been, by courts and text-writers both in England, and in this country. But, even beyond these, I would particularly direct at- tention to the subject, thoroughly investigated in Book IV., Part VIII., where the fallacy of the courts in Massachuse "^s, Maine, Vermont, Michigan, and some half-dozen other of the States oi; the Union, which affect to hold that in the note or memorandum in writing of a contract, such as is required in the fourth and seventeenth sections of the English Statute of Frauds, the consid- If Mi I Xll INTRODUCTION. eration need not appear, is, I think, conclusively and unanswer- ably established. Not only so, but, by a very full and accurate analysis of the cases in those States, I have shown that while such courts affect to hold this doctrine, and although, in several of those States they have actually enacted statutes expressly provid- ing that in such notes or memoranda the consideration need not appear, yet, in the very face of the cases affecting to hold the doc- trine that the consideration need not be so stated, and in the very teeth of those statutes, they still hold, in fact, that the considera- tion must 80 appear, or that the Statute of Frauds is not satisfied. They involve themselves in this state of confusion by confounding the consideration, the quid pro quo of Noy's Maxims — the " this for that," the " this" which one gets or is to get for the "that" which he gives or is to give — with the mutuality, the agyregatio mentium,i\\Q meeting of minds of the parties to the contrac: ; which latter the statute does not require to be evidenced by the writing.^ Throughout the whole work questions connected with the Law of Sales, and subjects collateral thereto, are examined with absolute candor and perfect fearlessness. The one object I have had in view in my work is to state the law as it actually is ; and where I have ^ The confusion which exists on this subject is made apparent by its discussion in Hook IV., Part VIII, This is one of the subjects which I have considered in Massaclmsetts and elsewhere witli mem- bers of the Bench, law-reviewers, leading law-school professors, law-book writers, and prominent lawyers ; not one of whom have I found to dissent from the views I have expressed on the sul)ject. I had the opportunity for a very full considera- tion of the question with the senior pro- fessor of one of the law schools of this country, and who has since taken a seat on the Supremo Court Bench of his State, who entirely assented to my views, and who, I subsequently ascertained, gave expression to them in his lectures to his law-students. In a conversation with one of the Supreme Court judges of Massachn- seta, a fellow law-student with me at Harvard, on my stating the law in the matter to him, he replied : " Oh, that is settled in this State by statute ; " to which I answered : " I am (luite aware of that, and yet, right in the teetli of your stat- ute, you hold that the consideration niu.st appetir by the writing." He was silenced. The remarkable feature about the matter is, that the absurdity lias never been ex- posed until now. Browne, in his gener- ally very excellent work on the Statute of Frauds, was, as we show, post, vol. ii. pp. 521-523, 52.1, 541, 568, fairly puzzled in the matter, and very naturally so, by th" glaringly contradictory decisions in the courts of his own State, and hence inferred that the price paid for goods is not tiK consideratimi for the goods. The ordinary form -^f a deed of land shows the contrary : " For and in consideration of $1,000, I grant, etc., that certain lot, piece, etc., of land." The consideration for the land is the price ; the consideration for the money paid is the land. The con- sideration is the quid pro quo. And yet, as we point out in Part VIII. of Book IV., the very conrts which hold that the consideration neid not appear by the writ- ing, hold, that all the essentials of the contract, including the price, must appear by the writing. Erqo, they hold, and their statutes enact, that the consideration need not appear by the writing, and yet they hold that it must appear by the wri!,ing. -I I INTRODUCTION. XIll lanswer- accurate lile such evcral of J provid- necd not t the doc- . the very )onsidera- satislied. ifounding the " this le'Hhat" agf/regatio ic: ; which c writing.^ the Law of h absolute lad in view ere I have ut the matter ever been ex- in his gener- the Statute of post, vol. ii. fairly puzzled ,tii rally so, by decisions in te, and hence for goods is goods. The .nd shows the )nsiderntion of •tain lot, piece, ■ration for the isideration for The con- ■i/o. And yet, III. of Book hold that the — ar by the writ- fentinlK of the !, must appear ley hold, and e consideration iting, and yet ippear by the I \ \d. found unsound decisions, as I have done in every branch of the law, I have not hesitated to point them out, and to show, with all the distinctness and conclusiveness in my power, that they are not well-decided, and are not law. In a thorough review of the work I know of no instance where I have failed to make the law of the subject perfectly clear to any reader of fair intelligence. The work is an absolutely new one on the subject ; not a rehash of Blackburn, Benjamin, or any other writer ; and I trust it will prove to be of no little value to courts, lawyers, and law students. Within its limits it is complete and thoroughly exhaustive ; but 1 hope hereafter to issue two additional volumes, covering a variety of other questions connected with the Law of Sales which I have left over for later consideration and discussion. If the work shall prove of value it will be owing in no slight degree to the instruc- tion I received from the able lawyers to whose memory the work is dedicated, and from v>hom I learned to judge cases by prin- ciple, and like them to act on the principle that " law is the very reason of the thing," and that " that which is not reason is not law" J. T. Boston, Mass., January, 1892. •i r ar-' ;:££ CONTENTS. [See end of Vol. II. for a full Analytical Index.] VOLUME I. Table of Cases Cited . . ^*"'' XIX BOOK I. SALES. Pabt I. What is a Sale? i_oo *' II. Gifts Distinguished , ' 33-91 III. Bailments Distinguished . 9'>-l08 BOOK n. SPECIAL SALES. Preliminary. Enumeration of Sales . .^ Part I. Sales with Infants 109-1 S*! " II. Mental Disabilities ... i.,c ,.o n li a % X . 100-148 Sec. 1. Insanity « u .. 9 T,. 136-144 2. Idiocy j^. " " ^' I>runkenues3 . ... ' ila iaq *' in. Maruied Women ::;'•■ 149I47 " Sec. 1. General Principles ' j^^ " 2. Living with Husbands * lio iro 'i- As Agents of Necessity 159-195 "4. Binding their Separate Estate . . . lofj on« 5. Property Acts 2 ' Sub-secl. Their status 0,7 ;,4 ^. Keduction into Possession of their Property 2'>4-oob A heir Separate Property .... 229-235 " *• Their Contracts . . . 91-24T f;"^"«^«- .' ." .'212-252 WoKK AND Labor ^^^_^^^ Exchange or Barter 265-274 Earnest or Part-payment 275-316 The Acceptance " ' " q^^_^^^ The Actual Receipt 436-504 The Note or Memorandum in Writing .... 505-583 The Essential Requisites of the Memorandum . 584-674 675 516-544 544-598 598-605 605-622 622-630 630-658 VOL. I. 1-74 75-220 ill illiil Hi 11 TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAORS. A. Page Abbey V. Deyo i. 227 Abbot V. Gilchrist i. 10 V. Massie ii. 593 Abbott V. American Hard Rubber Co. i. 200 I'. Bayley i. 193 V. B. & K. Steam Packet Co. i. 209 V. Pfirfitt i. 401 V. Swordcr ii. 598 V. Wincliester i. 231) Abby V. Bilhips i. 320 Al)eel r. Kiulcliffe ii. 573, 028 Aboll V. Mutison ii. 50(1 r. Warren i. Ill, 132 Aberaman Ironworks v. Wickens i. 320 Aberoorn's Case, Marquis of i. 350 Aberdeen Hy. Co. v. Blakie i. 299, 308, 342 Acatos V. Burns i. 269, 271 , 272, 274, 277 Accidental «& Mar. Ins. Corporation i. 337 Acebal v. Levy ii. 320, 324, U\, 447, 477, 571 Ackerman v. Runyon Ackley v. Dygert V. Kellogg Ackley School District r. Hall i Acrainan i'. Morriee Acton V. Acton Adams, In the Goods of V. Adams V. Ilaimibal & St. Joseiih R. V. Hayes r. Hermess I'. Kehlor Milling Co. I.'. Jones 1'. Lindsell I'. Roberts V. Wiscasset Bank Adams, The Adams Kxpress Co. v. Ha r. Schlessinger ;•. Trego '■. Wilson Adamson's case, /n r Steam Tramway Co Addcrly r. Stornn Addie v. The Western Bank i. 130 i. 12:5 ii. no 413. 419 ii. 320 ii. 044 ii. 692 i 200 R. i. 587 i. 33 i. 194 i. 297 ii. 017 i. 353, ii. 598 i. 595 i. 409 i. 033 ii. 181 ii. 30 ii. 42 ii. 185, 186 Paraguassa i. 32 i, 370, 300, 403 vnes 1. 338, 340, 341 Paos Addison v. Bowie i 117 V. Gandassequi i .509 648 Addy 1". Grix ii 590 Adce V. Cornell 501 Adkins v. Thornton 394 Agar r. Athenajum Life Assurance Society i. 60.3 Agawani r. Hampden i. 417 Agawam Bank r. South Iladley i 410 Agricultural Branch R. R. Co. r Win - Chester i. 404 Aguilar c. Aguilar i. 202 Aigen r. Boston & Maine R.R. ii .114, 115 Alabama r. Burr i. 415 Albany & Rensselaer Co V. Lun( berg i. 623 Albert v. Savings Bank i 405. 4(>0 Alcorn r. Westbrook 1. 13 Alden r. Blague . :J0 Alder v. Bank i 402 Aldrich v. Abrahams i. 123 Aldridge v. Johnson ii 420, 401 V. Muirhead i. 227 1'. The Great Western Rv. Co. i .02 Alexander v. Bryan f. (Jaiiber r. Oittenden (• (jiartlner ii. 25G. V. Hutcheson r. Mackenzie r. Miller V. Southey .Me.xander, Die i. 254, Co., i. 461 ii. 313, 484 i. 150 .320, 420, 491, 504 i. 130 i. 570, ii. 10 i. 143, 1,52 i. 652 2.35. 201, 2n2,2«;i. 205, 284 Hart's i. S.W /,/ .Moxnmlra Park Case Allan r. Bower i. 594 Allard v. (ireasert ii. 436, 502 Alldis u. Chapman i. 173 Allegheny City >\ McClurkin i. 4.35 Allen r. Agnirre ii. 270, 279, 280 V. Aldrich i. 162, 105, 183, 188 r. Allen i. 194 r. Bennet i. 575, ii. 611, 513, 526, 5.30, 563, 570, 572, 589, 594, 605, 002. 600,613,647,049,051,000 I'. Berryhill i. 145 r. Cameron i 4.32 V. Cc .ter Valley Co. i 500 I'. City of Janesville i. 4'15 1 I Ml XX TABLE OP CASES CITED. Paoi Allen V. Curtis i. 297 V. Edgorton i. HM V. Garbutt i. 285 V. Gibson ' i. 4Ui) t'. Graves i, 182, 323 V. Gripper ii, 454 V. Hawks i. 301 V. Jauubi i. 113 t'. J-Kiuish ii. 573, 028 V. Jay i. 416 t'. Louisiana i. 429 I'. Maddock ii. 053 V. Miissey ii. 49(5 V. Merchant Bank i. 595 V. Ogdun i. 480, ii. 40 V. Papworth i. 203 V. Polcrecky i. 33 V. Tt-rry i. 246 Allcndtr v. Kiston i. 400 Allin's Cnso i. 841 Allis V. Billings i. 142 V. Heed ii. 296 Allison's Case i. 125 Allison I'. Davidson i. 503 Almond t'. Almond i. 201 Almy V. Wilcox i. 163 Alston r. Herring ii. 89 Alty V. Fernie ii. 27 Ambrose Lake Tin & Copper Manuf. Co., In re i. 312 Ambs I'. Honore ii. 181 Amelio, The i. 249, 261, 278, 281, 290 American Express Co. f. Second Na- tional Bank ii. 158 American File Co. r. Garrett i. 380 American Fur Co. r. United States i. 587 American Ins. Co. v. Cluter i. 259, 266 I'. Coster i. 268 American Tube Works v. Boston Ma- chine Co. i 410 Ames V. Ashley i. 24 Amis V. Witt i 86 A. Mitchell v. City of Glasgow Bank i. 341 Amory v. Lawrence i. 386 Amos V. Amos i. 186 V. Smith ii. 274 Amy V. Dubuque i. 395 Ancona o. Marks i. 624 Andansonia Fibre Co., In re i. 674 Anderson's Case i. 337 Anderson v. Fox i. 406 V. Hodgson ii. 449 r. Lemon i. 503, 505 V. Philadelphia Warehouse Co. i. 379 V. Pitcher 1. 600 V. Santa Anna i. 414 V. Scot ii. 219, 323, 324, 347, 438, 441,449,478 V. The Owners of the San lloman i. 270 V. Tompkins i. 600 Anderson County Commissioners V. Beal i. 421 Andover v. Grafton i. 377 Andover, &c. Corporation v. Gould i. 320 Andrews, In re V. Allen V. Durant t'. Garrett V. Kneeland V. Pond Androscoggin Bank v. Kimball Aneroid, Tlie Paqi i. 205 i. 536 ii. 504 i. 112 i. 486, 584. ii. 40, 70 i. 397, 400, 616 i. 616 i. 289 Angel V. MoLellnn i. 113, 114 Angler v. Angier i. 199 Angle V. Mississippi Railroad ii. 196, 197, 198 V. N. W. Life Ins. Co. i. 897, 400 Anglesea Colliery Co., I» re i. 337 Anglo-California Bank i-. Ames i. 139 r. iMahoney Mining Co. i. 600 Anglo-Egyptian Nav. Co. v. Rennie i. 4 Anglo-French Co-operative Soc., In re i. 812 Anglo-Moravian Junction Ry. Co., In re ; Dent's Case i. 847 Annn The i. 2S9 Anonymous (1 Ld. Ray. 182) ii. 223, 228 (12 Mod. 415) i. 608 (12 Mod. 514) i. 29 (Free, in Cli. 502) i. 196 (2 Salk. 522) i. 106, (3 Salk. 157) i. 3, 4, 12, 21, 22, 23, 92. ii. 267 (1 Str. 527) i. 154 (1 Vern. 318) i. 382 Anonymous Case (eited 8 Ve?. 67) i. 147 Anonymous Case (2 Shower, 290) i. 200 Ansoiiia Brass & Copper Co. v. The New Lamp Chimney Co. i. 374 Anstrie v. Seligman i. 95 Anttionv V. Jasper County i. 417, 420, 430 i. 51 i. 87 i. 87 i. 532, 601, 629 i. 270 ii. 320, 412, 530, 646 i. 226 i. 128 i. 435 i. 255 i. 410 il30 Antrobi i i-. Smith Appeal , f Kline Appeal of Walsh Appleton V. Binks Arayo v. Currell Archer r. Baynes V. Gerill V. Pope Argenti r. City of San Francisco Ariadne, The Arlington v. Pierce Arnifiold r. Tate Armory v. Delamirie i. 446, 450 Armour i-. Michigan Central R. R. Co. i. 644, 045, ii. 8, 15, 18, 20, 21, 22, 23, 25, 28, 31, 32, 33, 34, 35, 36, 37, 39, 42, 43, 44, 45, 46, 47, 60, 51, 54, 56, 00, 63, 04, 05,09,70,71,72,73,112 Armstrong v. Cooloy ii. 40 1-. Stokes i. 402, 514, 616, 560, 602. 663, 564, 565, 567, 568, 672, 579, 680, 681 Armytage, In re ; Ex parte Moore & Robinson's Banking Co. ij. 246 Arnold v. Brown i. 465 y. Engleman i. 234, 237 V. Hickman i. 147 V. Lyman ii. 304 ■I ■-■(3: TABLE OP CASES CITED. XXI i. 4 312 Paoi i.20& i. 536 ii. 504 i. 112 I. ii. 40, 70 7, 400, 616 i. 616 i. 28a i. 113, 114 i. 109 i. 196, 197, 108 i. 897, 400 i. 337 s i. 139 i. 600 nnie .,lnre i. [^0., In i. 847 i. 289 ii. 223, 228 i. 608 i. 29 i. 196 i. 105, , 22, 23, 92, ii. 267 i. 164 i. 382 .67) i. 147 >90) i. 200 V. Tlie i. 374 i. 95 7, 420, 430 i. 51 i. 87 i. 87 2. 601, 629 i. 270 1, 630, 646 i. 226 i. 128 i, 435 i. 255 i. 410 il30 446, 450 U. Co. 22, 23, 26, 39, 42, 43, 60, 63, 64, 72, 73, 112 ii. 40 660, 562, 672. 579, 580, 681 [oore & ii. 246 i. 465 234, 237 i. 147 u. 304 Paok Arnold v. Mayor of Poole i. 318 ,!. Kichinond Iron Works i. 142 Artclicr r. Zcli ii. S04, 805, 502 Artliur V. Barton i- 265, 267 V. Sthr. Casino i. 291 V. Clarkson i. 69 Ash V. Piitniim i. ^07 Ashbiiry Hallway Carriage and Iron Co. V. Hiuhe i. 321 Aslibury Hailway Co. v. Riclie i. 424 i. son, 403,603 ii. 274, 309 i. 95 ii. 320, 513 Asiiby V. Bliickwell V. ,Tanu'8 I'. West Aslicroft r. Morrin Aslik'v's Cast' i. 348 Asliton r. Aslifon i. 199 V. Atliintic Hank i. 405 V. Blackstiaw i. 207 Ashworth i\ Outram i. 212, 214 Asiatic Hanking Corp., In re; Ex /mrte Colluni i. 371 Asiatic Banking Co., In re; Symon's Case i. 128 Aspinall t\ Wake i. 4t')l Aspinwall r. County of Daviess i. 410, 412 Astbury, Ex parte ; In re llieliards ii. 242, 24(5 Astey V. Emery ii. 324,325,320, 33({, 449, 477, 491 Astley V. Reynolds i. 405 Aster !•. Union Insurance Co. i. 527, 628 Astnips t\ Leroy i. 269 Atchison, &c. Ii. R. Co., The, v. Roach ii. 214 Athcrton v. Tilton i. 4(18 Atlantic Mutual Ins. Co. v. Iluth i. 277 Atlantic, &c. R. R. v. Reisner ii. 56 Atleo V. Backhouse ii. 517 Athcrsinitii r. Drury i. 25 Athcrton r. Newhall ii. 280, 430, 502 Atkins V. Curwood i. 151, 152, 158 Atkinson, Ex parte i. 145 V. Atkinson i. 405 V. Bell ii. 253, 254, 255, 266, 258, 259, 200, 261, 262, 320, 341, 504 V. Ritchie i. 633, 634 I'. Stephens i. 269 V. Smith ii. 523 Atkyna v. Pearce i. li>S Attaway v. The Bank of St. Louis i. 300 Attorney-Oeneral i-. Fullerton i. 450 V. Holland i. 617 V. Piirntlicr i. 144 V. The Corporation of Exeter i. 298 V. Wilson i. 317 Attwood V. Munnings ii. 45 V. R. I. Ag. Bank i. 304 V. Sellar j. 288 Atwater r. Hough i. 16 V. Woodbridge i. 409 Atwood V. Chichester i. 192, 205 t'. Cobb ii. 638, 639, 541, 542, 602 t>. Mullings i. 106 V. Small i. 326, 621 Audcnreid v. Randall ii. 436 Paor Audley's Ca?o, Lord 1. 624 Augusta t'. Kingsflcld i. 108 Augusta, The i. 256, 263. 284 Augusta Bank v. Hamblet i.375 Aurand v. Shacffcr i. 150, 216 Aiirora, The i. 255. 278, 280 Austen v. Craven i. 26, ii. 256, 478 V Graham i. 137 Austin r. Gcrvas i. 126 V. Great Western Railway Co. ii. 90, 91 r. Pattnn i. 118 Australia, The i. 251, 277 Australian Royal Mail Steam Nav. Co. V. Marzetti i. 320 Australian Steam Navigation Co. v. Morse i. 258, 269, 272 Aveline i'. Mellhuish i. 466 Avery v. Bowden i. 17 r. Stewart j. 410 Awde I'. Dixon i. 397 Ayer v, Warren i. 240 Ayers v. Burns i. 123 Aylett I'. Ashton i- 202 Avliffc. Tracy ii. 646 Ayliffe r. Murray i. 459. 464 Avlsworth V. Whitcomb i. 81, 82 Ayre's Case i. 316, 325 B. Babcock v. Terry i. 202 V. The Lake Shore R. R. Co. ii. 13."., 134 Bach V. Owen ii. 272, 275 Backliousc r. Mohun ii. (>-9 Bacon v. Bacon i. 617 r. Eccles ii. 301, 433, 434, 500 Baddelcy v. Baddcley i. 33 Badger r. Badger i. 295, 304. 305, 456 V. Pliinney i. 123, 133 i\ The Bank of Cumberland i. 601 Baens v. Canning i. 382 Bage, E.r parti' i. 45'.* Bagian Hall Collier Co., In re i. 10, .32 Bagiiall V. Carli'ton i. 312, 343, 368 Bags of Linseed i. ()-!5 Bagstor t: Karl of Portsmouth i. 192 Baliia & San Francisco Ry. Co., In re i. 309, 603 Bailev r. Bainl)erger V. Bidwell V. Clark r. Culverwell f. Freeman V. Johnson V. Snel grove V. Sweeting V. Teakle Raily r. Ogden Bainbridge v. Lax V. Pickering V. Wade i. 129 i. 426 i. 468 i. 62.3, 624, ii. 492 ii. 648, 680, 623 ii. 644 i. 80 ii. 630, 531, 646. 671 i. 503 ii. 496, 621 ii. 412 i. 120, 121, 127 ii. 526, 570, 671 Baines v. Jevons ii. 341, 342, 4 tO, 441, 448. 449, 474, 478, 401 i ,1 ; xxu TABLR OP CASES CITED. w i . Ill Paoi Raines v. Swainson i. 642, 645, 64ii Hair v. Robinson i. 2'M Bnird v. The Bank of Washington i. HOil Baker's Appeal i. 600 Baker v. Barney i. 181, 102 V. Bent i. 684 I'. Cooper i. 100 V. Corey i. 201 I-. Dening ii. 586, 500 I'. Keen i. Ill, 121 V. Kennett i. 130 V. Lamb i. 238 V. Lovett i. 128 I'. Morris i. 110 V. Rubins i. 407 V. Sampson i. 161 i;. Whiting i. 502 t>. Williams i. 86 Baldey v. Parker ii. 217. 218, 302. 334, 335, 340, 356, 357, 3G5 3',t7, 408, 400, 438, 443, 460, 455, 476 477, 401, 405 Baldrick v. Garvey i. 140 Baldwin v. Canfieid i 375, 376, 377 1'. Ely i. 107 V. Foster i. 110 I'. Nortli Brantford i. 410 V. The Bank of Newbury i. 002 Bale I'. Newton i. 73 Ball V. Carow i. 405 V. Montgomery i. 190, 200 Ballard v. Walker ii. 505 Ballin r. Dillaye i. 240 Ballingalls r. Gioster i. 17 Baltimore & Ohio U. R Co. v. Camp- bell ii. 214 V. Green ii. 214 V. Schumacher ii. 100 V. Wilkins ii. 01, 02 Baltimore & Philadelphia Steamboat Co. V. Brown Bancroft i». Couscn Bangert v. Bangert Bank, In re V. Dillon V. Ilagncr I'. Kennedy J). Kortright i: Lanier V. Miller V. Monteath ti. Steward I". Taylor V. Warren Bank of America r. Bank Bank of Augusta r. Karlo Bank of Batavia r. Now Ii. R. Co. Bank of Bengal r. V. Leod Bank of Briti-sh Hooper I. 158, 214 i. 405 i. 210 1.402 1.63(5 i. 06 i. 602 i. 380 393, 003 i. 240 i. 601 i. 380 1.240 i. 380 i. 217 301, 387 &c. York, II. ;;-^, 35, 04, 05, 00, 70 Pagan i. 106 i. 100 North America v. i. COO, 601 Bank of Columbia r. Fitzhugh i. 560 V. Patterson's Admstr. i. 320 1). Patterson's Exrs. i. 18 Bank of England v. Mo£rat i. 820 Paoi Bank of Ireland ^.Trustees of Evans's Charities i. 828, 309, 370 Bank of Kentucky v. The Schuylkill Bank i. 601 V. Wister i. 388 Bank of London v. Tyrrell i. 308, 000 Bank of Louisville v. Gray i. 247 Bank of Middlebury v. Rutland & Washington R. R. Co. i. 375, 377, 378, 379 Rank of Monroe r. Field i. 604 Bank of Pittsburg v. Ncnl i. 397, 015 Bank of Rochester v. tlones ii. 58 Bank of Scotland i-. Watson i. 487 Bank of the United States f. Owens i. 301 Bank of Utica v. Smallev i. 380, 393, 403 Bank of Vergennes v. Warren i, 876, 395, 001 Banks v. Goodfellow i. 144 V. .luduh i. 299 Bannafyne v. Bannatyne i. 144 Barbe v. Parker i. 8, 0, 18, 21 Barber r. Bruce i. 660 I'. Dennis i. 008 V. Hartford Bank i. 407 V. Meverstein ii. 20 Barbo v. Rider i. 138 Barclay, Kt parte ii. 245, 247, 248 Barelli's Telegraph Co., In re; Collie's Claim i. 603 Bargate i-. Shortridge i. 316. 330, 003 Baring v. Corrie i. 100, 520, 671, 572, 580. 507 Bark Chusan, The Bark Herald, The Barker, In re In the Matter of )'. Bucklin V. Frye V. Greenwood u.'IIodcson f. Maine Ins. Co. V. Marine Ins. Co V. Mcch. Ins. Co. V. Roberts I'. York Barlow v. Ileneage Barnaby v. Barnaby Barnard v. Adams ?'. Bockhaus Barned's Banking Co., In re Barnes r. Ewing I'. Faley V. Insurance Co. t'. McCrea V. Ontario Bank r. Toye Baniesly's Case Barnett i\ Farley I'. Glossop r. Ilarshbarger Barnslcy, Ex parte Barnum v. Young Barque Griffin, The Barque Laura, The 279, 282 i. 268 i. 138 i. 145 ii. 304 i. 52, 07 i. 586, 503 i. 634 i. 465 i. 453, 602 i. 320 i. 14, 15, 16, 100 i. 268 i. 73 i. 130 i. 272 i. 490, ii. 301 i. 003 i. 594 ii. 120 i. 499 i. 15, 93. 95 i. 601 1. 120, 127 i. 141 ii. 412, 471, 493 ii. 361 1.234 i. 146 1.240 1.633 i. 280 * ..It 1' n li 1 n 1 Bi if 1 A TABLE OF CASES CITED. Paoi if Evans'H . 828, 3U9, 379 •chuylkill i. fiOl i. 388 i. 808, On« i.247 lutland & 876, 377, 378, 379 i. 604 i. 397, 015 ii. 68 I i. 487 . Owens i. 301 . 380, 893, 403 en i. 376, 395. 001 i. 144 i. 299 i. 144 i. 8, 9, 18, 21 i. f)t)0 i. 008 i. 497 ii. 29 i. 138 . 245, 247, 248 •e; Collie's i. 603 , 316, 380, 003 571, 572, 580. 597 279, 282 1 i. 268 i. 138 i. 145 ii. 304 i. 52, 07 i. 580, 593 i. 634 i. 465 i. 453, 502 i. 320 15, 16, 100 i. 268 i. 73 i. 130 i. 272 496, ii. 301 i. 003 i. 594 ii. 120 i. 499 . 15, 93, 95 i. 601 i. 120, 127 i. 141 12, 471, 493 ii. 351 i. 234 i. 145 i. 240 1.033 i.280 3 i. Paoi i. t>:!3 i. 103. It'iO i. 126, 315 i. 98 i. 242 147, 148 ii. 504 ii. 252 i. 632 i. 2N') i. 55(1 i. 544 ii. 547. 508, 593, (!(I2 i. 3l5, 310, 599 n.irquc Tangier, The Hiirr /'. Armstrong Harreli. AV }'. Stewart, The Panama IJarrow /'. Coluu V. Dyster Barry r. ('noiiibe V. Crosiit-y V. Ni'sliain I.. Miilliiiid Hy. Co. Barry Railway Co.. In re Barsi'll V. i;iiani'fllor Barti'ls ''. .Moore Barter v. Wheeler Bartholomew i: Finneniore I'. Leach II. Markwic.'k Bartlett r. Hniley I'. I'eiitlaiid I'. Keniinjiton V. Uinfried V. Weils Barton r. (lamer I'. Williams Bartop c. lloare Bartram r. I'ayne Barwick c. The Hnplish Joint Stock Bank i. 331, 3;i5, 339, 310, 309. 599. 603. tUK). 008,009. 012.017 Basket i'. Ilassell i. 38, 69, 70, 73. 74, 75. . 70, 78, 79, 83, 85. 8(i Bastow V. Bennett ii. 527 Bastrcss r. Chickering i. 15, 93, 97 i 543 468, 477 i. 010 i. 308 i. 138 i. 115 ii. 202 i. 129 i. 453, 502 i. 17 i. 132 i. 578, 58(5 i. 70 i. 230 i. 133, 134 i. 80 i. 042 i. 292 ii. 250 i. 454 i. 502 527, 536, ii. 539, 670 i. 107 ii. 300 ii. 028 ii. 244 i. 375 i. 344 ii. 8 i. 382 Bate V. Cartwright I'. Hooper V. Scales Bateman v. Phillips i. V. Pool Bates V. Chesebro V. Col V. Duke of Beaufort V. Keith Iron Co. V. Mackiuley V. Todil Rates Countv v. Winters Bath, The Karl of v. The Earl of Brail- ford i. 143 Batre v. Durand i. 0.)7 Battye v. Cressley i. 378 Batiit V. Hartley i. 056 Bauennan v. Uadenius i. 487 Baumann v. Janies i. 575, ii. 698, 621, 672 Bawdes r. Amhurst ii. 644 Baxendale r. The Great Eastern Ry. Co. ii. 92 Baxter v. Rush i 1;W V. Earl of Portsmouth i. 138, 142, 148, 192 XXlll Paoi I. 232 i. lOU i. 30 i. 013 i. 668 1.480 i. 678 i. 500, 5»)2 Baylis c. Dnieley i. 118, 127 Baviies r. l'a\ ne i. 9 Bazeley r. hlrdcr i. 181, 183, 184, 186, 186 Beach <•. Miller " """ Beak V. Beak Baxter v. Maxwell Uayley f. (iouldsniith t^. Iloinaii V. Manchester, &c. Ry. Co V. Morley V. Taber I'. Wilkina RavlilTe c Butterwortii Beak's Estate. In re Beal r. McKieriian Beale v. Arabia r. Lee Beals V. Allen Bean v. Boothby V. Burbank V. Hyde Park I'. Patterson (•. Valle Beane r. Morgan Bear's Estate Beard r. Dedolph Beardsley c. Boot V. Smith i. 297 i. 86 i. ;w i. 453, 459, 502 i. 190 i. 139, 140 i. 480, ii. 40 i. 229 ii. 554, 657, 562, 002 i. 410 i. 208 ii. 537 i. 193 i. 237 i. 222 i. 460 i. 409 Bcatty v. North West Tr, Co. i. 300, 307 Beaudry i'. Belch i. 205 Beaufort, Duke of v. Bates ii. 240 (•. Neeld i. 486 Beaumont v. Brengeri ii. 368, 450. 476 Beuven v. McDonnell i. 139, 140 Beck c. Kanterwicz i. 308, 342, (iUO c. Kebow ii. 247 Becker v. Smith i. 99 Beckett f. Corilley i. 134 Beckham r. Drake i. 639 Beckwith. In re i. 140 c. Talbot ii. 073 Bedell c. Bedell i. 186 I'. Carll i, 50, 55. 50, h8 Bedford v. Biigsliaw i. 310, 599 Bellinger'-. Whittemore i. 24 Beebee r. Robert i. 524 Beech /•. Keep i. 33 Beed v. Bhmdford i. 334 Heeler v. Young i. Ill, 122 Beer V. London & Paris Hotel Vii. ii. 618, 657, 660. 072 Beers r. Plurnix Glass Co. i. 375, 001 Beeston r. Beeston Beeswing. The Begbie v. Clarke f. Fen wick Rehn v. Burness Behrens v. McKenzie Belch ier. Et parte Bell r. Brnen I'. C'unningliam I'. Kellar V. Lakin V. Palmer i». Stoecker i. 543 i. 270 ii. 8 ii. 245. 240. 247 ii. 420, 492 i. 140 i. 617, ii. 214 ii. 673 i. 627 i. 206 i. 652 i. 655 i. 216 iii *■ I if XXIV TABLE OF CASES CITED. Paok Bell f. Walsh i. 201 BeUlen v. (.'urter i. t)l Beldoii I'. Campbell i. 2G4, 255, 201, 2U5 Bulfast, Till' i. 2H7 Belktutp'H (Sir Thomas) Case i. 1. i. 20(» :i. ;}M4 i. 142 i. 4rj2 630, 634, li. 278 ii. m:i i. 3(W i. GOU i. 4f)'J i. 1G3, 154 i. 684 i. C«(J i. 464, 45i) i. 013 ii. 691, 6!t2 i. 130 i. 07 ii. I'.tO i. 164, 108, 171, 175 i. 2.34 Bellamy r. Siibino Boiler v. Joirb Bellew V. HiiHHell Belsliaw v. HuhIi Belt ij. Marriott Beiiian ". liulTord Benedict r. Davis Beniiij;fleiil v. Baxter Benjaiiiin r. Henjaniin V. I'orteoiis Bennell v. Hurley Bennett, Ex parte V, BayeH V. Hruinfitt r. ('alking V. Cook V. Filynw V. Jones V. Matiiin(;Iey V. McLaueiilin i. 132 V. St. Louis Car Roofing Co. i. 208 V. Stout i. 228 V Vade i. 141 Benoit r. Conway i. 410 Bensley v. Hignold i. 543, ii. 261 I'. Burden i. 205 Benson v. Cliapman i. 276 V. Hawtiiorne i. 290, 308 V. Heathorn i. 205, 502 V. Sinitli ii. 310, 044 Bent r. Manning i. 122 Bentall v. Burn ii. 220, 335, 308, 445, 477 Bentlial v. Judkins ii. 534 Bentley i'. (Graven i. 501, OOti 1-. Griffin i. 102, 103 BeresfonI, A'x parte i. 370, 371 Berg V. The Atchison ii. 163 V. The Narragansett Steamship Co. ii. 134, 135, 130, 214 Bergen v. Bergen i. 186 Berger v. Clark i. 237 r. Duff i. 401 Berkeley v. Watling ii. 8, 2», 34 Bernard's Case i. 332 Bernard v. Aaron i. 267 Bernard's Township v. Stebbins i. 413, 418, 422 Berrien v. McLean i. 83, 453 Berry v. Alderman i. 420 V. Berry i. 00, 82 V. C.ihhons i. 384, 385 V. Williamson i. 050 Berryiiian i'. Wise i. 425 Bertliold v. Goldsmith i. 408 Besonby, In re i. 117 Bethel i-. Woodworth ii. 044 Bettle V. Wilson i. 190 Betts V. Carroll i. 132, 139 Betty Cathcart, The i. 259 Bevan v. Gething ii. 274 Bevan c. Haydcn V. Williams Bever i: butler Beverley's Case Beverley v. The & Coal Co. Buxwell V. Christie Beyer v. Adams Bianclii i>. Nash Bilk I'. Motley Bickerton v. Burrell Bickford v. Gibbs Bicknell v. Smith Bittin r. Bignell Bigelow V. Kinney Bigg i;. Whisking Bigley v. Risher Bill 1-. Bament ii Paoi i. 238 i. 425 ii. 044 i. 146, 146 Lincoln Gas Light i. 317, 320 i. 605 i. 543 i. 100 1. 602 1.570 ii. 634 i. 290 i. 103, 100 i. 118, 129 ii. 302, 803, 834, 387, 438, 443, 470, 491 i. 20 285,846, 861,807,460, 452, 470, 477 ii. 278 ii. 461, 007 i. 163 i. 378 i. 132 617, 623 i. 017 i. 624, 025 i. 146 ii. 660, 654 ii. 539, 540 ii. 482 515, 670, 677 V. Porter Billage v. Southee Billing i<. I'ilcher Billings v. I'rinn Bingham v. Barley Birckhead v. Brown Bird, tn re V. Brown V. Lefevre V. Monroe t;. Richardson Birkett v. Jenkins Birkmyr v. Darnell ii, Birmingham v. Sheridan Birt V. Birt Bish r. Johnson Bishop V. Brainerd V. Crawshay V. Klhott V. Ware I'. Young Bishop of Winchester i". Paine Bissel r. Spring Valley Township Bissell V. Balcom ii. 281, 290, 201, 292, 293, 204, 300, 502 V. City of Jeffcrsonville i. 432 V. Foss i. 606 V. Jeffcrsonville i. 408, 600 V. Kankakee i. 416 V. Michigan Central R. R. Co. i. 401 Bitter v. Rathman i. 231 Black i;. Bryan i. 105 V. Sippy i. 242 V. Zacharie i. 380, 634 Blackburn v. Mackay i. Ill V. Smith i. 126, 334 V. The State i. 412 V. Vigors i. 013, 016 Blackett v. Royal ExchangeAss. Co. i. 600 Blackmore i'. Bristol & Exeter Ry. Co. i. 500 Blackwood i>. Borrowes i. 617 Blag V. Insurance Co. ii. 56 Blagden v. Bradbear iL539, 542, 683, 580, 044, 606 351 450 404 404 273 245 i. 631 ii. 535 i. 382 i. 420 Bl( Blo.x TABLK OP CASES CITED. Paoi 1. '2;i8 i. 425 ii. 044 145, 146 m, 320 i. 605 i. 543 I. 100 i. 502 i. 670 ii. 684 i. 2tt0 103, 100 118, 129 8:i4. ;W7, , 470, 491 i. 20 867, 450, , no, 477 ii. 278 . 451, 607 i. 103 i. 878 i. 132 i. 617, 623 i. 017 i. 624, 625 i. 145 li. 550, 554 ii, 539, 540 ii. 482 5, 670, 577 i. 351 i. 450 i. 404 i. 404 ii. 273 ii. 245 1.631 ii. 535 i. 382 .liip J. 420 0, 201, 292, 14, 300, 502 i. 432 i. 506 i. 408, 600 i. 416 , Co. i. 401 i. 231 i. 166 i. 242 i. 380, 634 i. Ill i. 126, 334 i. 412 . i. 613, 615 L. Co. i. 560 ler Ry. „ ■ i. 5P0 i. 617 ii. 66 b, 683, 580, ' 644, 666 I'Ani! nirtikic r. Stcniliriilgo ii. 89 niiiir r. UrDinlfv I. 621 V. Cmiiiin} County I. 417 r. (Jriiy i. '574 f. Oriiioiid ii. 271 r. SiiiMl(irilS9 ii. oHl Uliilti- r. UulTiiio Crcik U. R. Co. i. ;«»(» I'. .Mipwiit I. l!4l Uliiiti', I'lic Julia i. 200, 277, 278 Uliilvily oriiihiiiK'e Co., Luinsilfn's ('ii!li88 I'. Ivlinonson i. 3()ti V. MatttTson i. 300 V. Hopes i. 2*)7 t; Blissctt r. Daniel i. 402, 13 ,| Block V. CoMitnissioners i. i.!2 '' r. Hfiver.'iham i. 343 ^ Blood r. (ioodrich ii. 315, 043 M V. Ilanly ii. 044 W )'. I'lllllIlT 1. 15 :■ Bloomer r. Waldron i. 29 > Bloomfiell V. Charter Oak Bank i. 400, f 410 i Blore V. Sutton i. 650 I Blount ('. Burrow i. 39, 40, 67, 65, 86, 87 i'li Bliiwers r. Sturtevant i. 153, 180, 187 Blo.xam's Ciise i. 357, 305, 300 Blo.\aiu, /vr /mrte i. .304 r. Saiiilers i. 105, 62.% ii. 475 Blum r. Uoss i. 223, 224 Board of Commissioners, &c. The, c. Heyiiolds i. 308 ■ Board of Supervisors r. Budlong i. 188 Boarman v. (iraves i. 240 Bock V. (lorrisen 1. (Ml .'v Boden, /i.r /(«)7e i. 041 :# Bodenhain v. Hoskins i, 574, 680 J Bodfjer f. Arch ii. 274 ; Bogan V. Finlay i. 47 ^i- Bojfert <•. (Julick i. 238 $ u. Ogdens ii. 507 i^ Bogget V. Frier i. 200 71 Bog Load Mining Co. ». Montague ii. 370, 372, 373, 410, 426, 426, 431, 4.34, 402, 493, 499 Boggs i\ Bond i. 4(5 Bogle c. Stewart i. 4.'>1 Bolieau v. Kutlin i. 385 Bold Buccleugh, The ii. 48 Boiling I'. Carter r. M(uk Bolton r. Holton I". I'rentice V. XXV Paoi i. 385 i. 230 i. 73 1.168 The Lancashire, &c. Railway Co. ii. 468 Bonaparte, The i. 261, 254, 258, 209, 283. 285 lionard r. Kittering i. 224 Bond r. Hond i. 142 r. War.l i. 20, 27, 4M Honfield ('. Uassull i. (K« iionhain's ('asu i. 022 Bonhaui v. Needles 1. 427 Hon nc well v. Jenkini ii 006, 000, 001 IV.nsfleld 1). Wilson i 543 Hoimteel v. Vanderbllt i. 490 lion/.! V. Stewart i. 042, 040 Moody r. iMcKenney i. 129 IJooker r. Waller i. 150 liooth ('. Itooth i. 017 V. Smith i. 29, 227 Borneman v. Sidlcnger i. .18. 80, 87, 00 Horries r. Imperial Ottoman Bank i. 525, 570, 577 Morrodailfc v. Middleton i, 9 Horrouglis v. Hichman i. 147 Horrowscale c. Bosworth ii. 4.36, 495 Bosaiu et v. Shortridge i. 538 llostock V. Floyer i. 017 V. .lardine i 500, 502. 597 Boston & Maine R. R. Co. v . Bartlett ii, 00.3, 604 Boston Bank v. Chamberlai n i, 118 I'oston Colorado Smeltin S Co. V. Smith i. 501 Bostwick V. Atkins i. 127 Mo.swell i\ Kilborn ii. 5(H IJott r. .VIeCoy i. 528 Bottomley v. Nuttall i. 549, 030 Botts t'. Knab i. 230 Bonclu'll V. Clary i. 110 Boucher v. Lawson i. 290. ii. 0. 7 Boughton V. Knight i. 144 Boulter r. Arnott ii. 219, 320, 343, 449, 470, 491 Bouts V. Ellis i. 33, 8(i, 87 Bout well r. O'Kecfo ii. 303 Uourno r. Fosbrooke i. 47 V. Freetli i. 506 BouviiT r. Caldwell ii. 506 Bovard v. Kittering i 236 Bovey v. Tracey i. 317 Bowiien v. Johnson i. 387 Bowen r. Burk i. 98 V. Morris ii. 611, 594 Bower's Appeal i. 240 Bowers ;•. Anderson ii. 503 >'. Ilurd i. 86 Bowes V. London Water Works i. 454 t'. Pontifex ii. 412 Bowlby V. Bell ii. 222 Bowmanville Machine Co. V. Demp- ster i. 605 Bowring v. Shepherd i. 32.3, 544 ■rr ! I '!i il I ' XXVI Boyce r. Edwards I". Green Boyd I'. Alabama V. Hrotlierson V. Hawkins V. llitflieock V. Slierrock V. Stone V. Vaiulonbcrg Boydell (■. IJrmnHiond TABLE OF CASES CITED. Page ii. 017 ii. 608, 618, 645 i. 4'4 i. 397, 400 i. 405 129 ii. 245, 246, 247 ii. -2m i. 5% ii. 542, 552, 6«',t, 573, 5!t8, 606, 044, 64",», 660 V. MeMieliael ii. 250, 252 Boyett '•. Potter i. 150 Boytitoii (•. Isaacs i. 00 Brabin r. Uyile ii 270, 304, 305, 300 Bracken ri(l{,'c v. Holland i. 4(15 Bradbury v. Barnes i. 503, 605 Braden r. (iose i. 221, 222 Bradford's Appeal i. 150, 210 Bradford v. The South Carolina K. H. Co. ii. 108 Bradford & Patton v. The South Car- olina 11 R. Co. ii. 108 Bradlev r. Cary ii. 017 r. Varwell i. 207 V. Ilarknes! i. 506 V. Holds worth ii. 222 r. Hunt i. 87 Bradly r. Boston Glass Co. i. 524 r. (Jregory i. 30 Bradstreet v. Kvesson i. 595 V. Heran ii. 50 Brady ;•. Todd i. 610, 613 Bragdon v. Insurance Co. i. 500 Bralian ;■. Uagland i. 3'.I9 Braley c. Goddard i. 4''8 Bramwell i'. S|)iller i. 571 Brancli v. City of Charleston i. 434, 440 V. Jcssup i. 380 r. Hoberts i. 800 Brand . Brand ii. 307 V. Fociit ii. 500 Brandt v. Howlhy i. 056 Brant v. Virginia Co. i. 410 Brantley v. Wolf i. i:!2 Brantoni r. Griffits ii. 240, 241 Braslier's Ex'rs r. Cortlandt i. 145 Brass c. Maitlanil Brassiiigton i\ Ault Bray r Bates r Kettle Braysbaw r. Eaton i. 272, ii. 80 i. 4(il i. 285 i. 508, 512, 530, 503 i. Ill), 120, 121, 127, 265 Breed v. Jndd Bremner v. Bremner Brender v. Pliillip.4 Brenton's Estate, In re Breslaucr v. Geilfuss Bretz V. Diehl Brewer r. East Machias V. Swirles Brewster v. Taylor Brice r Stokes Brices'a Case Brickliouse v. Briukhouse i. 125, 120 i. 104 i. OiV) i. 33 i. 222 i. 00 i. 103 i. 454 ii. 434, 500 i. 617 i. 18 i. 86 Paoi Brickley i'. Walker i. 222 Bridge i'. Bridge i. 33, 61. Bridgeport Bank v. New York & New Haven H. Ii. i. 603 Bridger r. Savage i. 643 Bridger's Case, In re General Provi- dent Ass. Co. i. 355, 364 Bridges v. Blanchard ii. 234 Bridgnian's Case i. 100, 248 Bridgnian v. Bridgman i. 151 V. Holt i. 022 Brierly r. Kendall i. 105 Brig Eledona, The i. 208 Brig Jacniel Packet, The, and her cargo i. 208 Brig .Mary, The i 272 Brig Nestor, The 262, 279, 280 Brig Sarah Ann i. 504 Briggs V. A Liglit Boat i. 533 V. Home Insurance Co. i. 409 V. Penniman V. Vandcrbilt Brigliam v. Mead Bright V. Boyd v. Hutton V. Legerton Brightnian r. Eddy Brisco V. Brisco V. McGee Bristol I'. Burt Bristol & Exeter Railway Co. j'. Col- lins ii. 81, 82, 84, 86, 87, 95, 90, 07, 1 18, 133, 138, I'.tS Bristol. Governor, &e. of v. Wait i. 023 Bristol Milling Co. v. Probasco i. 298 Bristow V. Eastman i. 133, 134, 135 V. Wright i. Briswalter v. Paloniares i. 247 British & American Steam Nav. Co., Jn re ; Ward's Case i. 304 Britnall v. The Saratoga, &c. R. R. Co. ii. 153 Brittan v. Barnaby Britton v. Darker Broadliurst a Balpuy Brockway v. Allen Brodie «•. St. Paul Brogden v. Marriott (". Metro|)olitan Ry. Co. Bromley v. Brunton V. Coxwell I'. Jeffries Bronson v. Rodes Brook i\ Evans V. Middleton Brooke r. Gaily V. New York, &c. R. R. Co i. 403 urn i. 402 i. 504 i. 330 i. 455 i. 292 i. 108 i. 469 i. 100 r. White Rrooker v. Scott i. 630, 031. 635 i. 400 i. 454, 400 i. 522 ii. 630, 620, 030 i 85 ii. 653, 060 i. 33 i. 100 573, 683 i. 6 i. 492 i. 9 110, 454 ii. 34, 36 i. 7, 12, 1.3, 17, 21, ii. 314 i. 110, 119 11. Brookes v. The Earl of Rivers Brookly v. Insurance Co, Brooklyn r. Insurance Co. Brooklyn Trust Co. v. Hebron I Brooknian r. Hamill 022 i 418 i. 4:i2 i. 410 i. 287 * TABLE OF CASES CITED. XXVll Paok i. '222 i. 33, 51 &New i. 603 i. 543 Provi- i. 355, 3f.4 ii. 234 i. 160, 248 i. 151 i. «22 i. 105 i. 2(58 nd her i. 268 i 272 62, 279, 280 i. 504 i. 533 i. 409 i. 403 i. 409 i.402 i. 504 i. 330 i. 455 i. 2H2 i. 1G8 i. 469 i. 100 .. P. Col- 5,yC,,fl7,ll«. 133, 138, r.i5 Vait i. 623 CO i. •-i'.'S 133, 134, 135 i. 9 i. 247 [av. Co., i. 364 R. R.Co. ii. 153 630, 031, 635 i.400 i. 454, 466 i. 522 630, 620, 630 i 85 ii. 653, 660 i. 33 i. 100 ii. 573, 583 i. 5 i. 492 i. y i. 110, 454 Co. ii. 34, 36 17,21,11.314 i. 110, 119 ■rs i 622 i 418 i. 4:'.2 ,n i. 410 i, 237 i Page Brookman v. Rothschild i, 502, 618 IJrooJJS r. Dent ii. 681 V. Hubbard i. 13, 14 V. Marbury i. 4!»4 V. Martin i. 503 V. Wliitc i. 29 Brookwell's Case i. 332 Broome v. Taylor i. 412 Broower r. Ilarbeck i. 375 Brothers i-. Brothers i. 2'JO Brouf^liton c. I'ensacola i. 423 I'. The Manchester Waterworks Co. i. 320 Brow r. Brifihtman i. 113 IJioHcr V. I'ishur i. 138 IJrosvii r. Adiiins i. 370 u. Ackroyd i. 161, 104 V. Bi'llows ii. 539 I'. Hrowii i. 33 V. Byrne i. 627, 550, 607 I'. Caldwell i. 110, 128 r. Chase i. 146 V. Deloach i. 114 V. Fry i. 12 i;. (ioodinan ii. 6:^5 V. Gracey i. 276 I'. Hare u. 420, 402 V. Hodgson ii. 484 V. Kennedy i. 83 V. Maxwell i. 134 V. Mayor i. 414 i;. Mct^oine i. 123 r. McCiran i. 650, 651, 654, (iou I'. iMudfrett i. 178, 188 V. National Bank i. 379 V. O'Connell i. 412 V. Patton i. 1(>5 V. I'eck i. 405 V. Pierce i. 405 V. I'owell Coal Co. ii. 14, 56 V. Purviance ii. 40 V. Towkinj^ton i. 301 V. Trantrunj i. 486, ii. 40 u. Vandyke i. 300 V. Witter i. 3;>i Brown, The ii. 56 Brown, Tiie J. W. ii. 53 Browne v. Hare ii. 482 I'. Joddrell i. 138, 139, 143, 191 Brownell v. Palmer i. 410 Browning v. The Provincial Ins. Co, of Canada i, 529 Brownlee v. Bolton ii. 435 Brownsmith v. Gilbourne i. 61 Bruce v. Wcscott i. 400 Bruilf^e c. Bolin i. 227 Bruff y. Mali j. go;} Brumfitt r. Bremner ii. 501 Brunswick First Parish i>. McKean i. 400 Brimswick, &c. Co. v. Hoover i. 97, 08 Brush V. Admstrs. of Ileeves i. 388 Bryan r. Hunt ii, (544 V, Jackson i. 1 Ki «. Memphis, &c. B. R. Co. ii. 214 V. Walton i. 122, 128 Paob Bryant, v. Commonwealth Ins. Co. i. 268, 259, 200, 2(W V. Moore i. 486 V. Pottinger i. 132 Buchanan v. Litchfield i. 413, 415,421, 427, 429 Buck, Expiirte ; In re Fawens i. 641 Buckel V. Blenkhorn i. 82 Buckingham v. Freeman ii. 59 V. Osborne i'. 424 Buckhouse i'. Crosby ii. 510, 511,uti3, 694 Buckingliamsliire, Karl of r. Drury i. 134 ii. 572 i. 482 i. 27 ii. 66 i. 228 i. 425 ii. 526 i. 190 i. 130 i. 337, 354, 396 i. 428 i.482 ii. 644 207, 298 Bucklte V. Beardslee Buckk'y c. Barber V. Gross r. Naumkeag Co. V. Wells Buckman v. Buggies Buckmyr f.Darnall Buckner 0. Ruth I'. Smith Budd's Case Budd V. The State Buddington v. Stewart Buel V. Miller Buell V. Buckingham Buffalo & Alleghany R. R. Co. v. Cary i. 401 Buffalo & N. Y. City R. R. v. Dudley i. 404 Buffalo City R. R. Co v. Douglass i. 402 Buffington v. Gerrish Bufifum V. Chadwick I'. Merry Bugbee i'. Blood Bulkley v. Andrews Bullard v. Harrison Bullen V. Sharp i Bullock V. Babeock V. Dommitt V, Menzies Bullpin I'. Clarke Bundy v. Hyde V. Jackson Bunn V. Critchell V. Markham Bunting's Case Burbridge, Ex /xirle Burcli c. Leeko Burdott V. Williams Burdick i-. (Jreen Burgess i;. Clements I'. McLean V. Seligman i. 331 i. 523 15, 16, 26, 101 i. 205 i. 100 i. 161 469, 470,471, 47-2, 474. 477, 478, 493 i. 134 i. 634 i. 199 i. 201, 202 i. 116 i. 297 i. 161 i. 37, 47, 79, 86, 87 i. 195 ii. 221 i. 149 i. 130 ii. 278 ii. 674 i. 208 i. 410, 414 Burghart v. Angerstein i. 110, 119, 127 V. Hall Burke r. Allen i;. Haley V. Smith I'. Tuite i: Turner V. Wenklo V. Winkle Burlingame v. Burlingame Burlington v. Beasley i. 100, 110, 110, 1(50 i. 013 ii. .581 1.391,40.3.405 1.202,204 i. 117 i. 198 i. '2m ii. 266 1.417 XXVlll TABLE OP CASES CITED. I . , ! I, Paob Burlington v. New Haven & North- ampton Co. i. 410 Biirlinson's Case i. 40;J Burn V. Boulton i. SOU V. Carvalho i. 691 Burnard v. Haggis i. 133 Barnes v. IVnnull i. 316, 333, 340 Burnett v. Insurance Co. i. 4!I9 I'. Lynch i. 352 V. Snyder i. 500 Burney v. Poyntz ii. 278 Burnliau' v. Buwca i. 420 V. Kid well i. 14fi V. Webster i. 601 Burns v. Bangert i. 220 V. Maddigan i. 116 Buron c. Dcninan i. 623, 620 Burquin >■. Flinn i. 262 Burroughs v. Norwich & "Worcester It. It, Co. ii. 110, 112, 113, 114, 138, 171 Burrowcs v. Lock i. 315, 316 Burrows v. Walls i. 454 Bursill V. Tanner i. 215 Burtis V. The Buffalo, &c. R. R. Co. ii. 127, 168, 206 Burton ?•. Bank i. 77 f. Stewart i. 16 V. Wookey i. 502 Busby V. Finn i. 304 Bush's Case i. 32 Bush t'. Canfield i. 14 V. Lathrop i. 430 Bushel V. Wheeler ii. 320, 353, 354, 356, 357, 358, 350, 360, 361, 362, 36.3, 366, 367, 371, 378, 393, 408, 450, 453, 476, 477, 486, 489, 495 Bushnell v. Kennedy i. 388 v. Miller Busk V. Davis Butler V. Breck r. Butler V. Carter V. Haskell r. Maples V. Mulvihill V. Murray V. Palmer V. Thompson Butricke v. Broadhurst Butter & Baker's Case Butterfield v. Lathrop Ruttrick v Holden Butts I'. Wood Buxton, E.r parte V. Rust i. 652 i. 26, ii. 266, 478 i. 117 i. 200 i.466 i. 463, 454, 465, 602 1. 588 i. 147 i. 268, 2(i9 i. 433 ii. 603 i. 128 i. 824 i. 15, 95 i. 405 i. 298, 300 1. 459 ii. 666, 671 V. The North Eastern Railway Co. ii. 91, 94 Byass v. Gates i. 464 Bynum v. Frederick i. 150 Byrne v. Weeks ii. 43 Bywater v. Richardson i. 527 Bwlch Mining Co.'s Case, The i. 330 Bwlch-p-1'lwni Lead Mining Co. v. Baynes i- 373 c. Paoi Cabet );. Harking ii. 304 Cadnian r. Horner i. 826 Cain V. Weston i. 16 Cairnes v. Bleecker i. 693 Calais Steamboat Co., The, v. Scud- der i. 466 V. Van Pelt i. 406 Calder v. Dobell i. 627, 629, 639, 548, 675 ; ii. 618, 621 Caldwell i'. Hart V. Renfrew V. Smith V. Taggart Calkins r. Falk V. Lang V. Long Callis V. Bowthandcy V. Tolson Callander t". Howard Callonel v. Briggs Calypso, Tlie Cambrian Railways Scheme Camden v. Anderson Camden & Amboy R. Forsyth Camerat v. Goldsmith Cameron v. Clarke Cammell v. Sewell Camnieyeri'. United German Ciiurches i. 375, 378 Caniors v. Caniors Camp's Appeal Camp V. The Wardens Campbell v. City of Kenosha i. 246 i. 88, 218 i. 238 i. 404 ii. 567, 573 i. 162 i. 188, 190 ii. 513, 514 i. 100 ii. 274 ii. 312 i. 284 Company's i. 387 i. 543 R. Co. V. i. 334; ii. 365, 451, 452 i. 141 Fleming V. Hooper V. Kctcham V. Knapp I'. MuUett V. Penn. Life Ins. Co. i;. Race V. Sewell V. Stairt i;. Walker V. White Canada Southern Rail' ay Co Gebhard Canadian Bank v. McCrea Canal Nav. Co. v. Pritehard ii 158 i. 162 i. 18, 24 i. 269 i. 150 i. 7.'], 77 i. 581 i. 418, 420 i. 147 ii. 535 i. 500 i. 405 i. 161 i. 9, 17, 21 ii. 40 i. 164,469,404 i. 240 V. i. 387 i. il6 i. 634 Candee v. Tlie Pennsylvania R.R.Co.ii. 214 Canden v. Hurford i. 461 Canfield v. Fairbanks i. 140 Cannan v. Bryce i. 643 Cape v. Adams i. 201 Cape Breton Co., In re i. 309, 310, 312 Capers v. McKee i. 161 Capper's Case i. 128, 129, 349 Caregan v. Richards ii, 070 Carey v. White i. 262, 263 Cargill r. Cargill i. 187 Cargo, Ex Argos, Gaudet v. Brown i. 270 i i TABLE OP CASES CITED. XXIX Paoi i. 269, 272, 285 i. 258 i. 62 i. 160, 24(i i, 98 i. 411 Cargo, The, ex Hamburg, Cargo, The, ex Sultan, Carleton v. Lovejoy V. Hi .'s V. Siiinner i;. The People Carling, Hespcler & Walsh's Cases i. 391 Carlisle r. Trears ' " V. Wallace Carman i'. Meaburn Cam V. Brice Carnegie i'. Morrison Carney v. Gleissner Carpenter v. Carpenter V, Dodge i;. Farnsworth r. Griffin V. Mitciiell Carpmael u. Powis Carr v. Burke V. Clough V. Duval V. Halliday V. Ilinchcliffe , Jackson I.' V. Lancashire & Yorkshire Co. V. Steamboat Michigan i. 9 i. 15, 93, 96 i. 259 i. 149 ii. G17 i. 222 i. 123, 132, 133 i. 33 i. 569, 601 i. 16, 93 i. 214 i. 455 i. 268 i. 123, 131 ii. 604 i. 140, 146 i. 626, 600 627,670 Ry. ii. 96 ii. 214 V. The London & N. W. Ry. Co. ii. 33 Carroll )•. Blencoe Carroll's Lessee v, Maydwell Carroll County v. Smith Carringham v. Plunkett Carrington v. Comstock V. Hoots Carrutliers v. Payne V. Shedden Carson v. Murray Carstens v. llanselman Cartant v. Scliuyler Carter v. Breton V. Carter V. Eveleigh V. Home Howard Peck Scargill V. V, V. V. i. 206 ii. 266 i. 420 i. 33 i. 8 234 256 657 190 240 i. 38 ii. 272 i. 369 1.205 i. 503 i. 205 ii. 193, 195 i. 127 II. ii. i. i. i. Toussaint ii. 220, 256, 303, 332 342, 443, 447, 460, 476, 491 V. Wlmllcy i. 600 V. Worthington i. 246 Cartright Admr. v. Cook i. 29 Cartwriglit v. Cartwright i. 137 Cary i;. Hotailing i. 407 V. Pntton i. 152, 102, 165 Case V. Abeel i. 464 V. Bank i. 389, 395 V. Barber i. 29 V. Beauregard i. 600 Casey v. Cavaroc i. 107 Cassaboglon v. Gibb i. 646 Cassidy t: Hall i. 501 Cnssius, The ii. 60 Casson v. Roberts ii. S15 Cassy . Patton Castellain i-. Thompson Castellan l: Hobson Castello's Case Castle V. Beardsley Paoi i. 192 i. 288 i. 322, 323, 348 i. 128 ii. 674 i;. Sworder ii. 404, 405, 400, 436, 450, 471, 476 V. Warland i. 617 Castling v. Aubert ii. 676 Cates i". Woodson i. 142 Catlin V. Bell i. 100 Catling V. King ii. 608, 619, 657, 660, 6tJ6 V. Skoulding ii. 309 Caton I'. Caton ii. 687, 693, 666 Catterali v. Hindle i. 678 Catts V. Phalcn i. 134 Caulkins v. Hellman ii. 363, 435, 498, 600 Cave V. Cave ii. 245, 247 V. Hall ii. 278 V. Hastings ii. 598, 665 V. Lord Allen i. 452 Cavendish Bentinck v. Fenn i. 310, 311 Cecile, The i. 283 Central Bank v. Copeland i. 406 V. Emj)ire Sl'iie Dressing Co. i. 433 Central Branch Union Pacitic R. R. V. Smiin i. 416 Central City Savings Bank v. Walker i. 600 Central Railroad i'. Combs ii. 214 Central Railway Co. v. Mills i. 385 Central Hv. Co. of Venezuela i". Kirsh i. 315, 316, 325, 320, 327, 333, 341,613, 021 Chalmer i\ Bradley i. 464 Chamberlain v. Dow ii. 276 V. Farr ii. 602 V. Harrod i. 292, 465 V. Smith i. 99 Cliamberliii v. Hugenot Manuf. Co. i. 374 V. Tlie Inhabitants of Dover i. 626 Chamberl^n r. Delarive ii. 274, 278 Chambers v. Hetty i. 452 V. Minchin i. 617 Champion v. Bostwick i.468, 499; ii. 100 i;. (Griffith ii. 534 V. Plummer ii. 511, 51.3,530, 570, 571, 572, 694, 696, 599, 602, 605, 606, 009, 013, 015, 649 V. Rigby i. 452 Champney v. Blanchard i. 43 Chandler v. Hill i. 116 V. Spencer i. 234, 239 V. Sjjrague i. 108 Chandron v. iMagoe i. 385 Chanter v. Lees ii. 523 Chapin, In re Will of 1. 138 r. Laytin i. 82 Chaplin r. Rogers ii 210, 287, 303, 320, 326, 328, 329, 330, 339, 340, 342, 378, 437, 438, 441, 474, 476, 491 V. Young i. 308 Chapman v. Biggs i. 303 V. Briggs i. 194 V. Chapman L 200 ^1!' ' I l'" XXX TABLE OP CASES CITED. i Pack Chapman v. Forsyth i. GuO V. Kellogg i. 230 V. Mad River Ry. Co. i. 40ti V. Morton i. 125, 270, 271 ; ii. 865, 451, 452, 455, 41)4 V. Searle ii. 502 V. Kheplierd i. 352 V. Speller i. 126 V. Steinmetz ii. 276 V. Tuft8 i. 677 Chapman & Barker's Case i. 3U0 Chappel i: Allen i. 803 Chappell V. Allen i. 505 Chiipple V. Cooper i. 110, 117, HI) Charitable Corporation v. Sutlon i. 317 Charles i-. Blackwell i. 675 Cliarlewood i\ The Duke of Bedford ii. 670, 6U8, 603 Charlton v. Hay i. 342 Charter v. Beekett ii. 575 V. Trevelyan i. (i07 Chase i'. Curtis i. 374 i;. Debolt i. 6;]li ti. Lowell ii. 002 V. Merrimack Bank i. 409 V. Washburne i. 27, 93, 96 i. 630 ii. 234 i. 6 i. 408 i. 105 ii.214 i. 27 i. 4(M) i. 056 i. 446, 448 ii. 608 i. 617 i. 237 V. Westmore Chater v. Beckett Cheang-Kec i\ United States Cheap V. Cramond Check V. Bellows I'. The Little Miami R. R. Co Chedworth, Lord v. Edwards Cheek v. Watkins Cheescman v. Exall Cheetwurtli, Lord ;;. Edwards Cherry v. Ueniing Chertsey Market, In re Cheshire v. Burlington Cheslyn v. Dalby ii. 309 Chester v. Dickerson i. 494 V. Pierce i. 158 Chesterfield, &c. Colliery Co. v. Black i. 308 Chester Glass Co. v. Dewy i. 297 Chew 0. Bank of Baltimore i. 403 Chicago V. The People i. 435 Chicago City r. liobbins ii. 171 Chicago & N. W. Railway Co. v. Church ii. 187, 195 V. Montfort ii. 179, 180, 187 V. The People ii. 179 Chicago, &c. R. R. Co., The, v. Cole- man 1. 604 Chichester v. Cobb ii. 693 Child V. Hardy man i. 167 Chinery i-. Viall i. 105 Chinnock's Case i. 396 Chinnock v. The Marchioness of Ely ii. 658, 660 Chisman v. Count i. 17 Chittenden i-. Hurlburt ii. 636 Chouteau v. Leech ii. 214 Christian v. Welch i. 134 Christmas v. Mitchell i- 146 Christofiferscn v. Hansen Chubb V. Stretch V. Upton i. Church V. Abell V. Brown V. Church V. Jacques V. Knox V. Landers V. The Marine Ins. Co. Paoi i. 531 i. 205 391, 401, 402 i. 584 ii. 673 i. 603 i. 205 i. 497 i. 153, 164 i. 292, 453, 465, 602 V. The Imperial Gas Light & Cuke Co. i. 817 Chusan, The i. 279, 282 Cincinnati, &c. R. R. Co., The, v. Pon- tius ii. 214 V. Spratt ii. 164, 214 City V. Lamson i. 395, 414, 418 City Bank v. Bangs ii. 618 I'. Barrow i. 107 City Discount Co, v. McLean i. 460 City of Lexington v. Butler i. 382, 388, 407, 408, 412, 434, 439 City of London v. Wood i. 622 City of Memphis v. The Memphis Water Co. i. 428 City of New York, In the i. 291 City of Savannah i;. Kelly i. 422 City of St. Louis t;. Shields i. 425, 433 ClaHIn V. Godfrey i. 460 t'. Rosenburg ii. 490 Clairborne County i;. Brooks i. 408, 420 Clancy v. Pigott ii. 626 Clark V. Alexander i. 599 V. Bedford i. 133 V. Bulwer ii. 266 V. Crownshaw i. 207 V. Fairchild 1. 12, 14 V. Fairfield i. 18, 21 V. Gilbert i. 602 V. Gotts , i. 116 V. Graham ' ii. 265 V. Hay i. 244 V. Iowa City i. 396 V. Jack i. 98, 99 V. Killian i. 208 V. Mundal ii. 278 t>. Mumford ii. 264 V. Periam i. 141 r. Perrier i. 454 V. Pinney i. 14 V. Smith i. 14, 21 V. The City of Davenport i. 437 V. Tucker 17. Wright V. United States Clark, The Ella A. Clarke v. Clark V. Cobley V, Commonwealth V. Cuckfield Union V, Dickson t'. Dunham V. Hutchins V. Marriott ii. 304, 305 ii. 673, 683 ii. 674 i. 284, 286, 289 i. 113 i. 133, 184 i. 412 1.817,318,319 i. 312, 330, 333. 334, 341 i. 148 ii. 463 ii. 478 TABLE OP CASES CITED. XXXI Paos ii. 507, «i43 ii. 313 ii. 6V2, 573, 587, 092. «02 ii. u'Jo i. 4St2 i. 31 ii. ?58, 259, 260, 201, 2t)2, 2U3, 264 Clay County v. McAlccr i. 418 Clayton's Case i. 444, 448, 440, 450 Clarke r. Russell Clarkson v. Carter Clason V. Bailey V. Merritt Clay V. Cottrell t;. Huston V. Yates Clayton v. Andrews ClefTK I". Ktlniondson Cleland's Case Clement v. Mattison V. Tasburgh Clements o. Hall Clerk V. Wright Cleveland i'. Cole Clifford y. Laton Clifton I'. Coekburn Climie v. Wood Clinan v. Couke Clinton v. Rowland ii. 217 i. 351 i. 10 i. 1«H i. 320 i. 502 ii. 640, (iTO i. 222 i. 151, 160, 162 i. 454 ii.' 245, 247 ii. 539, 542, 5t>9, 589, 029,051,652 i. 110 Clinton National Bank v. Bright i. 2.'35 Cliquot's Champagne i. 587, 001 Clive V. Clive i. 344 Clopton V. Matheny i. 217 Clough I". Burd i. til 7 V. Clough i. 38, 42, 87. 90 Clute r. Small i. 00 Clyde V. Hubbard ii. \M Clydesdale Bank v. Paul i. 338, 340 C. M. Titus, The i. 209 Coates's Case, /« re Limeliouse Works Co. i 9 Coates V. Chaplin ii. 4-53, 478, 484 V. Lewes i. 567 V. The United States Express Co. ii. 214 U.Wilson LllO Cobb V. Abbot ii. 100 V. Beeke i. 5!»5 V. Goodhue i. 308 i\ Sawyer i. 86 Cobequid Mar. Ins. Co. i". Barteaiix i. 272, 290 Cocheco Bank c. Haskell i. 604 Cochran r. Ketberg i. 500 Cochrane v. Moore i. 47, 58 Cochrane, The Lord i. 258, 284 Cocke V. Halsey i. 412, 425 Cockerell v. Cholmeley i. 422, 459 Coekran v. Irlain i. 042, 050 Codd V. Codd i. 2(M) Coder v. Muling i. 505 Cody V. Hough i. 461 1). Phelps i. 240 Coe i\ Cayuga Lake R. R. Co. i. 388 Coffin V. Collins i. 402 Cogley c. Cushman i. 132 Coggs V. Bernard i. 92, 104, 105 Cohalan v. Monroe i. 246 Cohen v. Armstrong i. 127 Paoi Colien V. Gwynn i. 403 V. The Southern Express Co. ii. 214 Coie I'. Houston i 29 Coit V. The Commercial Ins. Co. i. 528 Colbeck, In re i. 468 Colburn V. Averill ii. 634 Coldham v. Showier ii. 023 Cole, In re Will of i. 138 V. Bishop i. 334' V. Cattingham i. 127 V. Duffleld ii. 526, 571 V. Dyer i. 297, 520, 570 V. Gibbons i. 454 V. Gibson i. 454 V. Hebb i. 100 V. La Grange i. 410 V. North- Western Bank i. 107, 642, (546 V. Robins i. 138, 146, 147, 148 V. Saxby i. 127 Colegrave v. Upcot ii. 600 Coleman v. Gibson ii. 336, 359, 360, 305 V. Railroad Co. i. 300 V. Riches ii. 2, 3, 10, 16, 17, 18, 19, 25, 31, 32, ;«, 36. 39, 42. 59 V. Upcot ii. 510, 616, 563, 698, («)0, 615 Coles V. Bristowe i. 132, 322, 346, 348, 351, 371, 372 V. Trecothick i. 454, 459, 404, 465, 660; ii. 511, 503, 569, 684, 587, 589, 594, 607, 629, 044, 066 V. Wright i. 652 Collet 0. Robinson i. 192 Collector, The, v. Dodswell i. 698 Collie's Claim, In re Barelli's Tele- graph Co. i. 603 Collier V. Coales i. 24 Collinge v, Heywood i. 346 Collins V. Foster i 16 I'. Mitchell i. 165 I'. Rudolph i. 205 V. Stimson ii. 315 V. Ihe Bristol & Exeter Railway Co. ii. 82, 162 V. Wassell i. 234 CoUinson v. Patrick i. 07 Collum, Kx parte, In re A " .tic Bank- ing Corp. Colinan r. Sarrel Colt V. Las'nier V, Woollaston Colvin V. Newberry Combes' Case Combs V. Bateman i. 371 i. 73 i. 400 i 315 i. 274, 275 i. 650 ii. 270, 276, 277, 278 Commercial Bank of Buffalo v. Kort- wright i. I'tO, 380, 393, 395 Commercial Bank of Lake Erie v. Norton i. 001 Commercial Bank of Pa , Tiie, v. Union Bank of New York i. 595 Commercial Mutual Marine Ins. Co. V. Union Mutual Ins. Co. ii. 074 Commins i;. Scott ii. 010, 660, 666 ^^ai . Nicolay County of Leavenworth v. County of Macon v. Shores 1. 433 i. 420 Barnes i. 433, 440 i. 401, 412. 418, 425 County of Morgan i>. Allen i. 391, 427 County of Moultrie v Fairfield i. 428 V. Uockingiiam Savings Bank i. 382, 406, 427, 432 County of Ralls t\ Douglass i. 414, 424, 425, 42(5 County of Randolph v. Post 1. 433, 442 County of Ray v. Vansycle i. 397, 434 County of Schuyler v. Thomas i. 434 County of Scotland v. Thomas i. 420, 431, 434, 439, 440, County of Tipton v. Locomotive Works i. 428 County of Warren y. Marcy i. 382, 411, 421, 432, 434 Countv of Wilson v. National Bank i. 428 i. 572 i. 30 i. 113 ii. 417, 422, 473 i. 86, 91 i.627 Bowler's i. 200 V. Courcier v. Hitter Courtois ('. Carpenter Courtright i». Courtright Couston ('. Chapman Coutant V. Schuyler Couturier v. Ilastic Covington & L. R. Co. Heirs Coward & Adam's Purchase, In re i. 215 Cowdrey v. Vandenburgh i. 430 Cowell I'. Gatcombe i. 617 I'. Watts i. 461 Cowls V. Cowls 1. 113 (^owly IV Nailor i. 147 Cox V. Bruce ii. 13, 14 V. Godsalve ii. 223 V. Hickman i. 467-480, 482, 485, 480, 488, 489, 491, 492, 493, 501, 507 ; ii. 338 V. Kitchin i. 192 V. Midland Railway Co. ii. 56 V. Miller i 221 Coxhead v. MuUis i. 127 Coxon V. The Great Western Railway Co. ii. 87, 88 Coy V. Mason i. 404 VOL. I. c PAsa Cragin v. Lovell i. 412, 573 Craig V. Craig i. 8tt V. Kittredge i. 33 Cramer v. Redford i. 150, 216 Cramwell v. Cramwell i. 180 Crane v. Gough i.24 V. Meginnis i. 200 Crnnmer, Kx parte J. 138. 145 Craven v. Ryder 1. 632 ; ii. 477 Crawford i: Roberts i. 269 V Southern Railroad Assoc. ii. 163 V. The William Penn i. 268 Crawley's Case, In re Peruvian Ry. Co. i. 855, 356 Crawshay v. Collins i. 602 V. Muule i. 606 V. Thornton i. 326 Creagh v. Blood i. 144 Crease v. Babcock i. 392, 896 Crcsinger v. The Lessee of Walsh i. 127 V. Welch i. 131 Cridland r. Lord De Mauley i. 316 Cripps V. Hartnoll ii. 577 Crocker v. Higgins ii. 804 Crockett i'. Lide i. 246 Crofoot V. Bennett i. 27 Croft 0. Allison i. 610 Crofts V. Middleton i. 205 Cromwell v. Benjamin ii. 113, 155, 158 V. County of Sac i. 388, 397, 425, 432 Crookshanks c. Turner i. 298 Cropper v. Cook i. 636 Crosby r. Church i 202 V. The Delaware, &c. Canal Co. i. 100 V. Wadsworth ii. 225, 220. 227, '-'29 233, 238, 251, 205 Cross, In re i. 459, 466 V. Eglin i. 691 f. O'Donnell ii. 363, 431, 432, 433, 502 V. Sprigg Crosse v. Kay Crossley ». Ham V. Maycock Crouch I,'. London & North Ry. Co. Croup c. Morton Crow V. Boyd V. Oxford Crowe V. Ballard V. Clay Crowther v. Rowlandson Cruse V. Paine i. 33 i. 425 i. 400 ii. 600 Western ii. 80, 157 i. 150 i.24 i. 410,411 i. 466 i. 576 i. 142 i. 132, 322, 346, 849, 372, .373 Cubborlcy v. Scott i. 228 Cubhidge w. Boatwright i. 460 Cud V. Rutter ii. 314 Cuddee v. Rutter ii. 813, 814 Cudlipn. Rundle i. 9 Cuff V. Penn ii. .303, 500, 626, 627, 6.30, 631, 632, 633, 634, 636, 636,637, 638, 639, 648 Cullen I'. Duke of Queensbury i. 541 V. Thompson i. 816 V. Thompson's Trustees i. 599, 612, 618 ii hi ' h! XXXIV TABLE OF CASES CITED. Paob i. 11)2 ii. 245, 247, 248 i. a»2, 883 I'. Slicrmnn i. 2*.>9, a(X), 303, 806 Cumberland Valley lly. v. Baub ii. GOIJ Culley V. Cliarman CuUwick V. Swindell Culpepper v. Astin Cumberland Coal Co, Cuinln(( V. Brown Cuniniing v. Uoebuck Cunmiings v. Arnold V. Cuinmings V. Dennett Cunliffe v. Harrison CunninKliani o. Ashbrook V. Pell Curlewis v. Clark Curran v, Arkansas V. State of Arkansas Currie's Case Currie, Ex parte V. Anderson Currier v. Green Curry v. Fowler V. Woodward Curtis's Case Curtis V. Bank V. Harlow V. Innerarity V. Leavitt r. Patton V. Tugh i. 666 ii. 624 ii. 316, 643 i. 140 ii. 560, 662 ii. 320, 412 i. 16 i. 208 ii. 412 i. 207 i. 403, 400 i. 3ltl i. 337 u. 404, 412, 453, 462. 471, 477, 401 i. 406 i. 601 i. 3!)2 i. 128, 840, 350 i. 77 i. 302 i. 027 i. 433 i. 120 ii. 308, 370, 371, 397, 412, 402 I'. Williamson i. 548, 502 Cusack V. Uobinson ii. 324, 336, 370, 372, 373, 389, 400, 408, 409, 410, 411, 410, 419, 426, 426, 431, 432, 433, 434, 435, 443, 446, 466, 468, 400, 462, 470, 474, 477, 478, 484, 486, 486, 491, 493, 497, 498. 499 Custer, Tlie i. 281 Cutler V. Asiiland 1. 601 V. Board of Inprovisors i. 418 V. Boyd Ji; 40 V. How _ •• 31 V. Maker i. 193 Cutter V. Powell ii- B23 V. Winsor i- 406 Cutts V. Guild i. 430 Da Costa v. Villa Bcal i. 106 Daglish, Ex parte ; In re Wilde ii. 246, ^ 246 Dailey i-. The Singer Manuf. Co. i 240 Dakin v. Oxley i. 276 Dalby I'. The India & London Life Ass. Co.- i. 667 Dale V. Humphrey i. 526, 627 V. Robinson i. 206, 241 Dale & Co. Fx parte i. 448, 460 Dallas V. Holiingsworth i 126 Dallas Countv v. MeKenzie i. 418 Dalton V. Gibb i. 119, 121, 127 V. Midland Railway Co. i. 403 Dalzell V. Tyrer Damon v. Deeves V. Osborne Damper i\ Symms Dana v. Hancock PAei ii.Ol i. 247 ii. 286, 502 i. 320 ii. 643 The Bank of the United States i. 820 Dando v. Foulds i 98 Dane v. Viscountess Kirkwall i. 138, 139, 141, 143, 192 Daniel r. Adams i. 486 t;. Mitchell i. 316 V. Smith i. 85, 87, 88 Daniell v. The Official Manager of the Hoyal British Bank i. 830 " i. 673 Daniels v. Burnham ti. Daniels Danner v. Berthold Darby i-. Boucher V. Cubanne' V. Callaghan D'Arcy v. 'iamar, &c. i 201 i. 193 i. 197 i. 148 i. 214 Railway Co. 376, 376, 599, 603 i. 290 Darham, In re Darling v. Boston & Worcester R. R. ii. 100, 108, 110, 200 V. McKenney ii. 207 Darlington and Stockton Banking Co., Ex parte, The Darren «. White Daubigny v. Duval Daun V. Spurrier Dpvenport v. Mason Davey v. Chamberlain V. Reed V. Shannon Davidson r. Donaldson V, Lanier V. McCandish V. Robertson V. Stanley V. Tulloch V. Wood Davies v. Turton Daviess County v. Dickenson Davis, Ex parte V. A New Brig V. Bank of England V. Child D. Crane V. Culver V. Davis »;. Eastman V. Edgar V. ~" i. 479, 491 i. 140 106, 642, 660 1.504 ii. 265 ii.gi i. 400 ii. 673 i. 579 i. 301 i. 237 i. 616 ii. 27 308, 613, 618 i. 192 i. 110 i. 410, 412, 413 i. 886 i. 279 i. 369, 403 i. 279 ii. 43 i. 142 i. 206 ii. 803, 502 i.643 First National Bank of Chey- enne V. James V. McArthur V. Moore V. Ney I'. Old Colony Railroad V. Patrick V. Ritchie V. Shields 1.240 632 ; ii. 481 i. 6.S6, 541 ii. 803, 602 i. 77 i. 424 i. 500, 501 i 244 ii. 605, 616, 624 TABLE OP CASES CITED. XXXV Davis V. Simpson V. Society of Essex V. Stevens V. Street V. Tliomas Daroue v. Fanning Paoi i. 465 i. 379 i. 87y, 3»7 i. '21 i. 98 i. 299, 453, 454, 459, 405, 502 Dawes v. Peck ii. 326, 869, 449, 4«1, 482, 032 Dawson v. Osborn i. 2G l)awson County v. McNamar i. 417 Day r. liiirnliani ' i. 154 r. Uidlcy ii. 163 Dayton i-. Trull ii. 278 (,•. Walsh i. 228 Dayton, &c. Turnpike Co. v. Coy ii. tj03 Dean v. Allalcy V. Brantliwaite t'. Hail V. Hogg ii. 247, 249 ii. 91 i. .388 240 200 i. 274;ii. V. l{lclimond i. Dean ami Cliapter of Rochester, The, V. I'ierce i. .320 Deanc r. Armis i. 110 V. Hodge i. 2'.«7 Dearborn v. Cross ii. 316 V. Dearborn i. 118 Deare i\ Souttcn i. 195 De IK'il y. Thompson ii. C44 Debenham v. Mellon i. 152, 153, 166 De Blaquicre v. De Blaquiere i. 200 De IJouchot V. Goldsmid i. 105, 106, 042 De Buascl.e v. Alt i. 502, 674, 607 De Caters v. Le Hoy de Chainont i. 405 Deer Isle i'. Katon i. 193 Deerley v. The Duchess of Mazarine i. 206 Dee Roo v. Foster i. 13.3, 134 D'Eyncourt v. Gregory ii. 214, 245 Deeze, Ex parte i. 105, 539 De Forest v. Fullon Insurance Co. i. 057 Deg I'. Deg i. 450 De Gaillon v. L'Aigle i 507, 517 De Gendre v. Kent i. 344 Do Grave v. The Mayor, &c. of Monmouth i. 317 De Greuchy (\ Wills i. 215 Dehority v. Paxson ii. 503 Delafleld v. State i. 685 Delamc'ter's Est. i 82 De Lane y. Moore i. 208 Delano i-. Blake i. l-'.) Delaware Co. r. McDowell i. 244 Delaware, The ii. 64, 58 Delhasse, Er parte i. 473, 484, 501 Delri<;ks c. Ford i. 530 Demainbray i'. Metcalfe i. 105 Denn c Diamond • i. 1 1 V. McKnight i. 405 V. Wright i. 4(i5 Dennett v. Dennett i. 142 Dennis r. Clark i. 113 Dennison v. Goehring i. 82 Denny v. Cabot i. 14, 101, 488 f. Williams ii. 495, 602 Dent V. Bennett V. Nickalls Dent's (/'ase Dent's & Forbes's Case Paoi i. 65, 4.)2 1.323 i. 10 i.343 Denton v. Great Northern Railway Co. i. 340 Denton Colliery Co., In re, Ex parte Shaw i. 10 Deposit Life Assur. Co. v. Ayscough i 330, 3:J3, 373 Depree y. Bedborough ii. 316 Derociier v. Continental Mills i. 126 Descadilles v. Harris i. 208 Descelles i'. Kadinus i. 166, 187 Deslandes v. Gregory i. 629, 630 Di'8|)atch Line of Packets r. Bellamy Manufacturing Co. i. 377, 626 De Symons v. Minchwick ii. 314 Detroit v. Dean i. 302, 381, 418 Detroit & Bay City Railway Co. v. McKenzie ii. 163, 214 Detroit, &c. R. R. Co. v. Forbes ii. 548, 666 Dcvaux V. Carnally i. 125 De Vignler v. Swanson i. 629 Dew ,: Clark i. 1.36, 137 Dewell ». Moxon ii. 11 l)(;wees v. Dewees i. 200 De Wolf V. Rabatid ii. 548, 568, 673, 578 Dey i: Insurance Co. i. 499 Dexheimer v. Gautier i. 43, 45, 48, 49, 60, 61, 55, 59, 03, 04, 65, 71 Dexter v. Hall i. 1.39 Diamond i: Lawrence County i. 383, 385 Dickcn v. Dicken Dickens v. Dickens Dickenson v. Bli^set Dickerschild i'. Exhange Bank Dickinson v. Dickinson V. Dodds V. Valpy i. Dickson's Executor v. Thomas Digby, Er purte Diggle V. Tlie London, &c. Ry. i. 186 i. 194 i. 138, 146 i. 38 ii. 592 ii. 604 500,500 i. 496 i. 468 Co. i. 318 i. 132 i. 100 i. 2(5 i. 375 201, 202 Dill V. Bowen Dillinger's Appeal Dillingham r. Smith Dillon I'. Barnard V. Grace i V. The New York & Erie H. H. ii. 123, 136 Dilzer v. Beethoven Building Assoc. i. 237 Dimes v. Grand Junction Canal Co. i. 622 Dimpfell v, Ohio & Mississippi Ry, Co. i. 300 Dinkwater v. Goodwin i. 29 Diplo(!k V Blackburn i. 608 Directors, &c. of Central Ry. Co. v. •' Kisch i. 013 Dirst V. Morris ii. 168 Ditchburn »». Fearn i. 144 Dittmar v. Norman i. 101 XXXVl TABLE OP CASES CITED. P*am Divcrgcy i-. Jolinsnn i.27 ]Jix V. InsurHiice Co. i. 499 Dixon, A'.r parte i 674, 595, 690 V. MaUlwin ii. 454 V. Cooper i.584 V. Uailroad Co. ii. 5U V. The Hiclimond, &c. R. H. Co. ii. 101 V. Yiitea ii. 418, 420 4-J5, 488, 492 Dixon County c. Field i. 410,411,412, 413, 415, 420, 421 Dobell V. Ilutcliinson ii. 509, 048, 649, 651, 655, 066 V. Stevens i. 327 Dodds V. Hills i. 327 Dodge V. Knowles i. 207, 217 I'. Tlie Union Maritime Ins. Co. i. 261 Dodgson's Case i 3:30, 331, b32 Dodsley v. Varley ii. 219, 350, 359, 450, 455, 476, 491 Dodson V. Simpson i. 405 V. Wentworth ii. 468 Doe I'. Courtenay ii. 634 V. Forwood ii. 034 V. Martin i. 609, 010 t>. I'oole ii. 634 V. Walters i. 024 Doggett V. Brown i. 90 Dole IK Lincoln i. 33, 38, 62 I'. Stimpson ii. 485, 502 Dolin V. Hubbard i. 240 Dolling i;. Kvans ii. 008 ])onald V. Suckling i 104, 105, 107 Donaldson r. Gillot i. 328 Donegal's, Lord, Case i. 145 Donell V. Dow ii. 002 Doner v. Stanffer i. 497 Donnally v. Ryan i. 479, 492 Donnellan v. Reed ii. 598 Donnison v. The People's Cafd Co. ii. 619 Doolan i-. Midland liy. Co. i. 274 Doolin V. Ward 1.605 Dorr V. Munsill i. 147 Dorsctt V. Harding i. 330 Dorsey v. Pack wood ii. 614 Doss I'. Peterson i. 241 Doty I'. Hubbard i. 138 iJ. Wilder ii. 581, 028 V. Wilson i. 57, 73 Doubleday r. Muskett i 541 Dougan's Case i. 354 Dougherty c. Creary i. 506 V. Sprinkle i. 244 Douglas v. Douglas i. 33, 47 V. Moody i. 293 Douglass i: County of Pike i. 414, 420 V. Howland ii. 573, 623 V. McAllister i. 31 V. Reynolds ii. 673 1". Spears ii. 602 Dow V. Whetten i. 528 V. Wortlien i. 24 ; ii. 308 Dowbiggon v. HarriBon 1.461 Dowdle i;. Camp i.24 Dow ell i\ Dew i. 206, 694 Dowling V. McKenny i.92 Paoi Downer v. Sinclair i. 20 Downes i-. Grazcbrook i. 460 t;. Sliip i. 833 Downing i-. O'Brian i. 238 v. Mt. Washington Road Co. i. 424 Downnian v. Williams i. 535 ; ii. 27 Dows I'. Greene ii. 4.35 Dowse, The i. 286 Doyle V. DoyJe i. 200 Dracchi i>. Anglo E. N. Co. ii. 385 Drake v. Mitchell ii. 208 V. Ramsey i. 127 V. Shorter i. 552 Drakely v. Gregg i. 627 Draper i'. Pattina ii. 692 V Snow ii. 684 V. Springport i. 422 Dreher v. Insurance Co. i. 499 Drennen c Lomlon Assurance Co. i. 499 Dresser v. Dresser i. 88 Dresser Manuf. Co. v. Waterston i. 98 Drew V. Drew i. 192 V. Hagerty i. 52 V. Nunn i. 14.3, 190 Drink water c. Goodwin i 050 Driscoll c. Bromley i. 606 Droege v. Suart, The Karnak i. 286 Dronfleld Silkstone Coal Vu., In re i. 821 Druid, The ii. 48 Druiff V. Parker i. 422 Drunimond's Case i. 32, 347 Drummond v. Prestman ii. 673 Drumock v. Drumock i 200 Drury v. Cross i 295, 297, 303, 305 V. Drury i. 123, 124, 126. 134, 136 V. Smith i. 77, 87, 89, 90 Dublin & Wicklow Ry. Co. v. Black i. Vn, 373 Dubois V. Delaware & Hudson Canal Co. i. 14, 21 V Hole i. 200 V. Jackson i. 149 Dubose V. Wheddon i. 118 Dubost, Ex parte i. 73 Ducat V. Chicago i. 301 Duchess of Kingston's Case i. 195, 355 Duckworth, Jn re i. 836 Ducland v. Housseau i 47, 62, 82 Duclos V. Ryiand i. 641 Dudley, Lord v. Lord Warde ii. 245, 247 Duti; In the Goods of ii. 664 V. Budd i. 680 Duffleld V. Elwes i. 33, 40, 43, 86 Duke of Beaufort v. Bates ii. 246 V. Neeld i. 486 Duke of Leeds v. Earl Amlierst i. 607 Duke of Northumberland i>. Aylesford i. 128 Dumas, Ft parte Dumerque v. Rumsey Duncan v. Baird V. Beeson V. Benson V. Duncan V. Hill i. 446; ii. 221,481 ii. 262 ii. 276 i. 844 i. 258, 276, 278 i. 199 . 323, 344, 346, 682 TABLE OF CASES CITED. XXXVU Pacm Duncan v. Jaudon i. 4U5 V. Laudon i. 600 V. Scott i. a»7 V. Self i.47 V. Sulfa Admr's 1.66 V. lioSL'llo i. 160, 216 Duncarry v. (Jill 1.606 Duiicoiiib V. liy. Co. i. 21)7 Dunuroft v. Alhrccht ii. 221 Duiicuft V. Albrt'cht ii. 680 Dunhum v. liy. Cn. i. 376 Dunlop V. IligKlns i. 352, 308 ; ii. o98,i)6;i V. Lambert ii. 483 Dunmore, Countess of, v Alexander ii. 598 Dunn V. Pickard i. 243, 244 V. Thornton i. 33 Dunnage v. White 1.147 Dunne o. English i. 312, 502, 607, 621. 622 ; ii 230 Dunseth u. Wade ii. 101 Dupont V. Vance i. 272 Duppa 0. Mayo ii. 230 Duranil c. Tiiouron i. 6.57 Durant r. Iowa County i. 383, 434 V. Rogers i. 404 V. Titley i. 108 Durantss v. Hart i. 276 Durrant i'. Uicketts i. 102 Duryca v, Burt i. 605 l)u8enbury v. Pallia i. 630 Dutcliess Collar Manuf. Co. v. Davis i. 401 Dutton V. Marsh i. 623 V. Morrison i.497 V. Solomonson i. 7 , 17, 21 ; ii. 314. 326, 440, 487 Duvall V. Craig i. 601 Dweily V. Dwelly i. 222 Dwyer v. Dwyer i. 188 Dyce Sombre, He i. 144 Dyer, In re ii. 692 V. East i. 168 V. Libby ii. 435 r, Paterson i. 560 V. Pearson i. 616 V. Snow i. 208 Dykers v. Townsend ii. 5!)5 Dykes v. Blake i. 125 Dyster, Ex parte i. 502 E. Eadie v. Slimnion i. 406 Eads ». The Steamboat H. D. Bacon i. 290 Eager v. Oawford i. 601 Earl of Bath v. Tlie Earl of Brad- ford i. 143 Earl of Buckinghamshire v. Drury i. 134 Earl of Falmouth v. Thomas ii. 234. 630 Earl of Oxford's Case i. 603 Earle v. Botsford i. 34, 35, 37, 40, 44, 40, 88,91 V. Olirer i. 241 Earle v. Peale Eason v. Cherry East Anglian Railways i Counties liaiiway East India C'o. i;. llensley V. Vincent Pasi i. 107, urn i. bWi Eastern i. 424 i. 486 ; ii. 40 i. 504 East London Waterworks Co.. The. V. BaUey East Oakland v. Skinner East Pant du United Lead Merryweatlier East St. Louis ". Zebley East Tennessee & Ga. U. R. i' i. 317, 320 L412 Co. V. 1.308 i. 413, 410 Nelson ii. 193 Co. V. ii. 103, 104 i. 403 East Tennessee & Va. R. R. Rogers Easterbrook v. Barker Eastern Counties Railway v. Ilawkes i. 390 Eastland t;. Burchell i. Eastman v. Bank V. Brown V. Savings Bank Easton v. Worthington Eastwood V. Kenyon Eaton V. Eaton V. Hill V. Smith, Ebbett's Case Ebbw Vale Co.. Claim of, In re Con- tract Corporation i. 319 Eckerley v. McGhee i. 247 Eckerstein v. Frank i. 1.33 Eckert v. lieuter i. 161 Edan V. Dudfleld ii. 320, 361, 352. 359, 394, 450, 452, 456, 401, 494 158, 163, 180, 189 i. 77 ii. 181 i. 07, 73 i. 646 ii. 577 i. 139, 140, 146 i. i;« i. 660 i. 128, 131 Eddy, The i. 035 Edelen v. Gough ii. 681 Edgar v. Boies i. 14, 31 Edgerley v. Emerson i. 375 V. Shaw i. 130 Edgerton v. Hodge ii. 310 V. Wolf i. 123 Edie V. East India Co. i.628 Edmond, The i. 255 Edmonson v. McLcnd i. 107 Edmunds i>. liusiiell & Jones i. 502 V. Goater ii. .".OO V. Groves i. 4J(J Edmundson v. Thompson i. od()na, 'V\w Itrig Elcy r. I'ositivo Assur. Eliason r. Ili'ii8liaw Eliza Cornish, Tiie Eliza VVilniot'8 Case Elkinirton's Caac i I. 686 i. 600 i. 208 ii. 6i:5 ii. 004 277, 283 i. 200 355, 357, 358, 304 Co i. Elkins c. Camdim & Atl. U. U. Co. i. 2'JO Ella A. Clark, The Eilars V. Mosi^bunger Elliot V. Abbot Elliott c. Bentley V. Bisiiop V. (Jit'se V. Ih'ginbotham V. Incc V. Pybu8 V. Sat'ket i. 284, 285, 28'.) i. 146 i. 001 i. 150, 210 ii. 246 ii. 681 ii. 320 i. 189, 141 V. V. V. V. ii. 256, 341, 448, 491 i. 422 V. Thomas ii. 217, 218, 289,302, 834. 344, 305, 387, 404, 437, 443, 445. 449, 456 Ellis f. Boston. H. & E. Ry. Co. i. 297 Dcadman's Ili'irs ii. 581 Essex Merrimack Bridge Co. i. 401 Hunt ii. 454, 487 Schniaeck i. 600 i;. Secor i. 00, 87 V. Smith ii. 684, 585 Ellison f. Anderson i. 232 V. Ellison i. 07, 73, 82 T^lmore v. Kingscote ii. 453, 484, 513,530, 683. 024 Elmore v. Stone ii. 250, 324, 326, 328, 329, 333, 334, 3.36, 339, 348, 391, 393, 405, 438, 439, 440, 441, 450, 455, 470, 491 Elmoro v. Tlie Nnugatuck Ii. H. ?o. ii. 141, 142, 144, 146, 155, 195, 202, 205, 208 Elphinstone v. Bedreechund i. 020 Elpis, The Elwell I'. Shaw Elwes V. Maw Ely V. Ormsby Emanuel v. Dane Emeriuk v. Sanders Emerson, In Goods of V. Seuter >. 282, 283, 285 i. 601 ii. 247, 240 ii. 304, 305, 502 i. 16 ii. 304 ii. 591, 693 i. 404 Pagi Emerson v. Slater ii. 048 Emory v. Enury i. 161, 160,168, 100, 171, 173, 174, 176, 170, 177, 179, 180, 187, 188 i: Horsey i. 291 Emily Soudor, The i. 282 Emma Silver Mining Co. v. Grant i. 3 12, .308 Emma Silver Mining Co., The, v. Lewis i. .308 i. 352 ii. 220,227.231,321. 511.529, 594 ii. 033 i. 102, 180 i. 120 401 Ennnorson's Case Eminerson v. Ileolis Emmet v, Dowlnirst Enimott I'. Norton Emmons r. Murray i. Emos r. .lames i, Empire City Bank, Matter of the i. 890, 403 Empress Engineering Co., In re i. 025 Englisii r. The Teople i. 416 I'. I'orter i. 138 En>;ll8li anil Irinli Church and Uni- versity Soe., AV i. 479 English .Joint Stock Bank, In re i. 337 Enlow r. Klein i. 98, 09 Enneking v. Scholtz i. 2.">3 Epperson i: .Jones i. 221, 222 Erb V. The Cireat Western Ry. Co. of Canada ii.1,61 Erie Railway Co, v. Wi'.ox ii. 185, 180. 188 Erlanger v. New Sombrero I'hosphate Co. i. 312, 842. .368 i. X'6 i. 134 ii. 525 ii. 316 i. 571 i. 62, 82 i. 76 ii. 043 i. 133 ii. 316 Mc- i. 348 Ernest c. ''choUs Erroy r. Ni ""Ison Erskine r. M., I*yrwin I'. SaundeK I'^scott ('. Milward Eskeridge v. Farrar II. Warren Espy I'. Anderson Esron v. Nichols Essex I". Daniel Estates Investment Co., In re Niell'sCase Etheringtf.n i;. 1 iir rr.l i. 161, 152, 154, 155, 158, 102, 179 Eugene Vestp, 'The i. 201 Eureka Co., In r., i. 410 European & N. A. Ry. Co. v. Poor i. 295 European Central My. Co., In re Par- son's Case i. 349 Eustace r. Dublin Trunk Ry. Co. i. 371 Evans's Case i. 10, 307 Evans v. Bicknell i. 315, 316 V. Collins i. 310, 010 V. Covington i 240 V. English i. 230 17. Fisher i. 161, 188 V. Gibson i. 606 V. Harris ii. 602 V. Button i. 034 V. Llewellyn i. 456 V. Powis ii. 412 TABLE OF CASES CITED. XX XIX Evans v. Pratt V. Kotwrts II. 228, 229, i. 348 155, 12, 17'.) i. 2(11 i. 416 i. 295 i. 349 i. 371 0, 3«7 5, 316 .0, ($10 i. 24li i. 230 11, 188 ,605 ii. 502 i. (534 i. 455 ii. 412 V. Uiigeo t'. 'rmi'iimn i>. Williiiiiia V. Wood I. 340, 348, Kvansville, &c. K. U. Co., iMar»ili Evernrti r. Kondnll EVLTl'tt ■■. t'otHii r. SaltiiH V. Tlie United Stntci Evfrin(;liain v. Ali'i(;liuii EviTson I'. Campbell Ewbank v. Nutting i. 2C9, Ewing V. French V. Sniitli Ewins r. (Jcirdon Eyre v. niirniester I- Wake Ezcll I'. Dodson F. PAoa i. 543 231,233.235. 238, 275 i. 222 i. 030, (i4(i i. 2(15 340,351,371 The, V. ii 214 i. 285 i. 2'.t3 i. 203. (i4(t i. 321 ii. 301 i. 130 274, 276, 010, 013 i. 15, 26, 95 i, 205 ii. 514 i. 383 i. 145 i. 221 Faine r. Brown i. 147 Fairuhild i; Sloeuni ii. 141 Fairlie i>. Itioomingdalo i. 281 w. Fenton i. 522,629,570,671; ii.072 V. ilastini^s i. 487 r^irly V. McLean i. 80 I:, rport, Tlie I. 290 Faitliful, Tlie i. 265 Fallick V. Barber ii. (518 Falmouth, Karl of, v. Thomas ii. 234, 630 Fanny and EIniira i. 250 FarbtT V. Farber i. 200 Farebrother v. Simmons ii. 672 Farina v. Home ii. 360, 307, 453, 455,477. 478. 486, 491 Farley v. Cleveland ii. 304, (523 r. Parker i. 139 Farlow v. Ellis i. 98 Farmer r. Gray ii. 503 I'. liussfll i. 643 Farmers' and Mechanics' Bank i-. The Butchers' and Drovers' Bank i. 001; ii. 10,17,18, 10,20,21,25. 31.37,04,05 I). Champlain Trans. Co. ii. 140, 153 Farmers" Bank c Planters' Bank i. 100 Farmers' Loan & Trust Co. v. Curtis i. 000 Farmiii);ton i: Jones i. 116 I'. Pillsbury i. 418 Farnam v. Brooks i. 83, 452 Farnuin c. Fowle i. fl.33 V. Piatt i. 101 Farquharson v. Cave i. 79, 87 Farr v. Sumner i. 123 Farrall v. Davenport i. 594 Farrant v. Blancliford i. 460 Farrar v. Barraclough i. 454, 466 Farrell v. I'atterson i. 140 Farrer v. Emery Farwell i: Mather Furwell, The L. J. Faulds r. Yates Faulkner i-. McClure Fausett r. Faunett •"'aw I' Mastiller Fawcett r. Osborn t'. Whitehuiue Pau i. 2:i:t ii. 64« ii. 63 i. 800 i. 146 i. 487 i. 5 i. 468, 402 i. 308, 342, 503, (X)6, 007 Fa wens, /n re ; Ex ixtrle Buck i. 641 Fawkes i<. Lamb i. 600, 571 Faxon r. Durant i 47 Fay ('. Sears i. 2;!5 FeatherstoniiauKh v. Fcnwick i. 602 Fecel Admr. v. (iuinault i. 131} Federlicht r. (ilass i. 246 Feise v. Wray i. 546 Felker v. ICmerson i. laX Fell, Er parte i. 500 I'. Brown i. 237 Fellow's Appeal i. 82 Fellows V. i'owell ii. 59 I'.'-ster V. Leekanip i. 205 Felton )'. Dickenson i. 18, 24 Fenn iv Bittleston i. 105 r. Ilarriscm i. 487, 010; ii. 27, 81, 40 Fenner c. Lewis Fennerstein's Champagne Fennick's Case Fentori v. llolloway Fereday r. Wijjhtwick Ferguson i: Bell V. Carrington Fernald r. Lewis Keronia, The Ferran v. llosford Fcrrars v. Cherry Ferren v. Moore Ferson i'. Monroe Fertilizing Company r. Hyde Park i. 390 Fessenden v. Mnssey Field V. Chicago & K. I. U. U V. SchielTclin V. Sowlo Figgins V. Willie Fiinier v. Lynn Finch V. Finch V. Newnham Fincle t: Staccy Finlay v. Bristol & Exeter Ry. Co. Finley v. Insurance Co. Finn c. Finn 1'. Hose Fire Brick & Blue Clay Co., In re Firefly, The First Baptist Church r. Bigelow ii. 5(»9, 573 I'. Brooklyn Fire Ins. (,'0. ii. 074 First National Bank v. Christopher i. 375 V. Bono i 23 First National Bank, &c. i'. Haire i. 302 Fischli r. Fischli i. 200 Fisti I'. Benedict i. 97 V. Hutchinson ii. 575 V. Kempton i. 626, 674, 678, 695 192 587 408 148 506 127 i. XH i. 4(19 i 200 i. 287 i. 450 i. I(!5 i. 500 ii. 520, 541 (^o. ii. 181 i. 405, 4(50 i. 201, 202 i. 083 152 186 382 409 320 i. 499 i. 201 i. 2:i3 i. 331 i. 277 1. 185, i. i. i. xl TABLE OP CASES CITED. i- ■r :i :1 VAam Fish )'. Richardson ii. 617 Fiahback i'. Van Duscn i. 15, 27. 96 Fisher v. Beckwith ii. &:i6 V. Dabbs i. 428 V. Dixon ii. 243, 244, 248 V. Fifkls ii. 671 V. Kelsey ii. 674 V. Marsh i. 671 V. Mowbray i. 118 Fishli V. Fisiili i. 18(3 Fi8hmongGr8'Co.,The,». Robertson i. 320 Fiske I'. Kldridge i. 601 Fitch V. Harrington i. 600 o. Jones i. 420, 643 Fitchet V. Adams i. 023 Fitt V. (-assanett i. 384 Fitts V. Hull i. 123, 120, 133 Fitz V. Tlie Galliott Amelie i. 261 Fitzgerald v. McCarty i;. Reed V. Siiclton Fitzherbert v. Mather i. 244 i. 142 i. 137 609, 010, 614, 616,616 i. 138 ii. 652 i. 600 Fitzhiigh V. Wilcox Fitzmaiirice v. Baylcy Fitzpatrick i'. Flanagan Fitzsitnnions v. Joslin i. 486 Five Per Cent Ciises i. 20 Flagg I'. Baldwin i.228 Flanagan c. Bisliopwearmouth i. 187 Flanders r. Merritt i. 261, 269 Flasli V. Conn i. 374 Fleeher v. Fuller i. 410 Fleckner i-. Bank i. 604 V. United States Bank i. 307, 601 Fleet V. Murton 626, ri27, 629, 66'J Fleetwood c New York i. 405 Fleming v. Gilbert ii. 316, 644 I'. I'age i. 382 Flemyng v. Hector i. 486 Fletcher's Case i. 366 Fletcher v. Ferrell i. 382, 385 17. Fletcher i. 33, 51, 67 V. Heath ■ i. 646 V. Rylands ii. 89 Flight V. Boliand ii. 602 Flint V. Craig i. 3<.)7 Flint, &c. Railway Co. v. Dewey i. 2i''j Flitcroft's Case i. 29U Flournoy r. Owens i. 151 Flower v. Flower i. 194 Floyd Acceptances, The i. 414 Fluck V. Tollemache i. Ill Flynn v. Messenger .. 168. 159 i'ogg )'. Virgin i. 524 Folev V. Hill i. 33 Follansbee v. Kilbreth i. 295, 306 Fontaine v. Bush ii. 434, 500 ('. The Columbian Ins. Co. i. 261 Foote I'. Foote i. 186 Ford, In re i. 196, 197 V. Beech i. 630, 634 V. Crocker i 261 i. 118, 130 i. 624, 649 i>. Phillips V. Williania Ford V. Yates Forrest v. Elwes V. Nelson Forristall n. Lawson Forster v. Hale Forsyth u. Hastings v. Jervis Fortescue v. Barnett Forth Main Ins. Co. Fortitude, The Ship i. Fosdick I'. Schall Foshay v. Ferguson Foss I'. Harbottle Foster v. Bates r. Dawber r. Essex Bank V. Frampton V. Fuller V. Mackinnon i. I'. Mansfield V. Pettibone V. Redgrave V. The Oxford, &c. Fothergill's Case Ford V. Fothcrgill i. Paob i. 660 i. 465 i. 98 i. 161 ii. 629, 661 i. 129 i. 9, 13, 18, 21 i. 67, 73, 205 Burncs i. 340 , 203, 267, 280, 291 i. 3''6, 420 i. 405 i. 308, 342 i. 6-23 ii. 273 ii. 40, ii. 463 i. 601 397, 308, 399, 400 i. 91 i. 14, 9.*], 96, 100 i. 120, 121 R. Co. i. 308 i. 10 112, 121, 127, 155 i. 552, 557 Fouldes V. WiUoughby Foulkes V. The Metropolitan l)is trict Ry. Co. ii. 89, 91,115 Fourth National Bank v. Fraiiklyn i. 373 Fowle V. Freeman ii. 511, 516, '617, 694, 698, 602, C29, 658, 660 Fowler f. Beebe i. 412, 425 V. Brantley i. 400, 616 V. J'oster i. 207 V. Hollins i. 661, 653, 556 ?.'. Jacob i. 247 Fowles V. The Great Western Rail- way Co. ii. 77, 111 Fox V. Fisk i. 29 V. Hall ii. 66 V. Hanbury i. 497 V. Macreth i. 299, 452, 454, 459, 404. 465, 600 «;. Turner ii. 604 Foy V. The Troy & Bostoi. R. U. Co. ii. 126, 135 Foye V. Leighton Fragano v. Long France v. White Frances, The Fr.mcis v. Cockrell V. Grover Frankfort Bank v. Johnson Frankfort Bridge Co. v. Frankfort Frtinklin v. Long V. Miller Franklin Bank v. Steward Franklin Co. v. Lewistonlns. for Sav- ings i. 424 Franklin Fire Ins. Co. v. Jenkins i. 297 Franklin, The Lady ii. 63, 65. 66 Fi-ankling Savings Bank v. Greene i. 229 Franklyn v. Sprague i. 498 Franks, £x/)ar. Blake i. 07 261, 278 I. 239 i. 602 i. 160 Paob ii. 312, 523 i. 201 ii. 060 ii. 060 i. 110 i. 201 i. 106 i. 463, 647 ; ii. 481 i. 232 Glazebrook v. Woodrow Glen V. Fisher Glengall v. Barnard V. Tliynne Glover v. Adin. of Ott V. Glover Glyn I'. Baker Godfrey v. Furzo Godman v. Smith Godts V. Rose ii. 494 Godwin y. Francis ii. 686 Goetz f. Bank of Kansas City i. 687 Goff V. Great Northern Ry. Co. i. 610 i;. Rehoboth i. 410 Goit r. Insurance Co. i. 590 Gold Mining (^o. v. National Bank i. 295, 303, 593 Golder r. Ogden Goldson V. Gardner Gonipertz c. Denton Gonsales v. Sladen Gooch's Case, In re poration Good V. Cheeseman V. 27 i. 382 i. 16 i. 29 Contract Cor- i. 132 i. 29 Loudon Steamship Aspocia- tiou ii. 89 Goodall I'. Skelton ii. 218. 250, 275, 311, 320, 344, 449, 450, 476, 478, 491 Goodenough v. Tlu.yer Gooileiuiw r. Tyler Goodhue, Tlie ,Ion'>.than Goodman v. Chase i: Simonds i. Good.scll I'. Myers Goodtifle v. Woodward Goodwin c. Boston, &c. Ry. V. Railway & Canal Co. V. Roberts Gore V. Gardner V. Gibson i. 138, 140, 147, 148, 159 Gordon r. (iordon ii. 215 r. Little i. 527 V. Martin i. 13 I.'. Massachusetts Ins. Co. i. 250, 259, 2i')6 i 114 ii. 629 160. 246 ii. 503 i 377 808, 477 i. 150 ii. f.93 i. .354 i. 255 i. 834 i. 001 i 450. 5.'^0 i 284 II. 577 397, ei5. 016 i. 118. 130 Co. 1. 023 i. 98 i 303 I 106 i 263 r. Potter r. Trevflyan I'. Tweedy Gorham r. Fisher V. Gibson Gorman r. Boddy V. Wood Gorrie r. Woodley Gorrissen's Case Gosfabrick. The (Josling V. HIggins Goss r. Lord Nugent ii. 315, 506, 620. 62', 027, 630,031, 6.32, 636,043 V. The New York, Providence & Boston Railroad ii. 201 Gotta I'. Clark i. Ho Gough V. Everard ii. 240 Gould tv Cav,.ga Bunk i 004 V. Gould i. 161 V. HiP i. 208 TABLE OP CASES CITED. 178, 491 i. 001 450, 5?.U i. -284 ii. 577 CI 5, (516 118. i:50 i. 0-23 i. '.)8 i. 303 i. 106 i. 203 148, 159 ii. 2C5 i. 527 i. 13 ;50, 25'.), 2i'.0 i 114 ii. (•)2'J 150, 246 ii. 503 i 377 308, 477 i. 150 ii. 503 i. 354 i. 255 i. 834 |526, <'2.', ()30, 043 ii. 201 i. 115 ii. 240 j 004 i. 151 i. 208 Paoi Goulding v. Davidson i. 241 Gourley i'. Linsenbigler i. 36, 43, 80 Uovit's Case i- til2, 343 (Jovurnor, &c. of Bristol i;. Wait i. 6_'3 (iovi'tt V. Hadmidgu GciviiT V. Hancock (iowan r. Foster Grace r. Davison V. Hall V. Smith Grade v. I'almer GractT I'. Hitchnian Graff r. Kinney Grafton I'. Armitage ii. !I0 i. 102 ii. 273 ii. 548 i. 110, 120, 131 i. 407 ii. 51 i. 402 i. 231 ii. 254. 255. 2i)0, 201, 202, 203, 204 t'. Cnininings ii. 501) Grafton Bank v. Woodward ii. 044 Graham i\ Dyster i. 054 V. Hendrick i. 301 V. iMiisson ii. 570 V. Hailroad •>. i. 375 V. U;.u.'.'-Mr,i i. 201 Granby r. '"I i .;•;(;■ i. 400 tir.iiid Cliiitt . . V, i'legar i. 432 Graiul (iulf Bank, i'lie, v. Arclier i. 30-3 Grant IK Fletcliei ii. 024 v. (irant i. 33 V. Maddox i. 500 17. Nay lor ii. 542 V. Norway ii. 2, 3, 4, 8, 10, 11, 1 1, 15, 10, 17, 18, 19,20, 21, 22,25, 31, 32, 33, 34, 35, 30, 37, 39, 42, 43, 46, 50, 5'.t V. Parker i. 381 V. Tliompson i. 138, 142 Grant. The ii. 50 Grantham v. Hawley ii. 222, 223 Grapeshot, Tlie i. 203, 278, 280, 281, 282 Gratitudine, The i. 25'., 255, 2")8, 259, 201, 209. 274, 277, 278. .:'<3, 293 Graves v. Boston Marine Ins. C' . i 570 ■J. Graves i 2tM) V. Saweer i. ^82 V. Weld ii 2'\ Gray i-. Bartlett . '14 V. Chaplin *. 2',W U.Davis ii. 4.35, 5 5(>:' V. Jackson ii. 92, 93, 15!>, Miit, .,..:, 1(54, 108, 207, 208, 209, 210, 211 i. 308 Greaves 0. Ashlin V- Legg Greely v. Bartlett Green c. Barrett V. Beesley V. Biddle V. Briggs V. Clarke V. Cresswell I'. Dunn I'. Farmer V. Ferguson V. Hart I'. Haytliorne V. Kopke I'. Kornegay V. Langdon ).'. London Omnibus Co, I'. Merriam V. Moffat V. Morris & Essex H. R. Co. c. Koyal Ex. Asa. Co. V. Skipworth V. .Sperry V. Thornton V. White V. Winter Green County v. Camess Greene r. Ciiester Greenfield's ICst. (Jreenhain r. Gray Greening c. Clark Greenslado v. Dave Green way i-. Fislier Greeves v. McAllister (ircgg V. Robins Gregory v. Gregory I'. Logan V. McDowell V Migliell V. Patchett V. Paul V. Pierce V. Wendell xliii PAaB ii. 312, 313, 814, 580 i. 660 i. 530 i. 315 1.490 i. 594 i. 482 ii. 122 ii. 677 i 552 i. 105 i. 221, 222 i. 303 ii. 453, 477 i. 630, 530 ; ii. 27 i. 47 i. 00, 7.3, 87 i. 000 ii. 502 i. 31 i. 422 i. 259 ii. 592 133. 134 ii. 581 i. 385 i. 453, 502 i. 414, 422 i. 119 i. 82 i. 496 i. 642 i. 141 i. 552, 667 i. 116 i. 268 i. 83, 404, 017 ii. 581 i. 14 i. 693 i. 299, 308 i. 165, 193, 206 i. 193 i. 496 I. i. 320 ii. 685. 590 i. 022 i. 267, 273 c. Lewis V. Portland Bank Grayson r. Atkinson (ireat (^liarte v. Kennington Gri'itt Eastern. The (inat Luxembourg Railway Co. 1 Magnay 1. 295, 342, 600 Gnat Northern Railway Co v. Har- rison ii. 91 Gnat Pacific, The, S ;,.~i£:i3 c. Hroomfleld •■ 287 Great Western Railway Co. .' ?ai'il8 Griffin, The l-^arque GritHth v. Grillth r. Ingledew Griffiths r. Owen V. Porter Grignon's Lessee v, Astor Grimes r. Van Vecliteii i. (i33 i. 385 i. 032 ii. 273, 270, 277 i. 455, 406 i. 461 ii. 270, 4.36 Grimoldby v. Wells ii. 421, 473, 494 Grinilell v. Godmond i. 195, li»7 (Jrindle 1. '•^astern Express Co. ii. 139 Grisel i-. Steamer Olivia i. 292 GrisscU V. Uristowe i. 132, .322. 344, 346. 349, 697 il xliv Griswold v. Haven I). Miller Groom v. West Groto r. I'lice Grovcr v. Coles V. GroviT TABLE OP CASES CITED. Paob ii. 16, 17,20,81, 32, 6!>, 65 i. 148 i. 21 i. 220 ii. 228 i. 47, 80 Grover & liakur Co. v. Missouri Pau. Hy. Co. Groves v. Buck V. Slaujjlitor Grublis 1'. (-oliins Grube v. Nichols Grymes v. lioiie Guerreiro v. I'eile Giiit'liard v. Mortran Giiilt'ord V. Supervisors, &e. Guiness u. Land Corp. of Ireland Gullett V. .lervis Gunn's Case Gunn V. London Ins. Co. V. Roberts Gunter i-. Lallan I'. Leukey Gurney i'. Jklirend V. Corbet V. Wanersley Guth V. Gull) Guy V. I'oarkes Guy, The Guy, The James Gwynne v. lleaton ii. 150, 214 ii. 217, 227 i. ;J01 i. 217 i. 6"J5 i. 38, 39, 43, 73, 88, h;» i. 2i> i. (JoO i. 4.'J" i. 321 i. 2i) i. 302, 305, bUO & Lancashire Fire i. 541. 025 i. 261, 2G2, 207, 284 i. 604 i. 13, 18 i. 550, (550 ; ii. 21), 4t) ii. 690 i. 125 i. lO'.t i. 107 i. 280 i. 284 i. 405 H. Hank i\ Linderman i. 98 Haase v. Itoehscheid i. 117 Habenicht u. liawls i. 247 Hackensack Water Co. v. De Kay i. 003 i. 417, 428, 431 ii. 150 i. 382, 385 Haselwood ii. 613, 614 i. 405 i. 034 Hackett i>. Ottawa Hadd V. Express Co. Haddens r. Spaders Haddeson Gas Co. v. Haddix v. Iladdix lladley v. Clarke Uap:an v. Domestic Sewing Machine Co. ii. Hane. Speckenagle i. S.'O Hananer v. Doane i. 301 Hanbury v. Kirkland i. 017 Hanchett v. Rice i. 149 Hancock v. Merrick i. 104, 182, 183, 184, 185 Hancocks v. Lablaclie i. 215 Hand v Savannah & Charleston R. Ii. Co. Handocock, i;. Hands v. Burton v. Slaney Handsworth v. City Bank Handwerk v. Oswood Hanks i'. Deal 1. 415 L118 i. 8 i. 110, 119 of Glasgow L812 i. 00 i. 134 TABLE OP CASES CITED. xlv Faoi i. 132 i. 105 i. 426 0,266 i. 530 i. 560 ii. 95 i. 454 f. i. 331 i. 69 K), 560 14, 148 i. 164 i. 425 31, 262 i. 201 15, 448, 0:l, 547 i. i:]9 i. 28;i 01, 105 ny ii. 214 i. 223 i. 151 i. 320 ii. 537 ii. 029 ii. 504 ii. 433 i. 149 i. 120 272, 285 258, 28b i. 64 i. 200 i. 150 i. 433 i. 227 i. !)4 ii. 674 i. 610 62, 602 87, 652 53, 477 i. 219 i. 4(i8 i. 494 i. 530 i. 301 i. 617 i. 149 82, 1H3, |184, 185 i. 215 K. i. 416 L118 i. 8 10, 119 ;ow i. 312 i. 90 i. 134 f % Paoi i. 404 R. U. i. 434, 440 i. 196 i. 604 i. 428 i. 434, 440 Ilfinsiird w. Robinson i. 570 Ilttiisoa V. ArmitiiKe ii. 220, 324, 331, 313, 349, 350, 308, 436, 442, 447, 453. 470, 477, 484 Hanna v. Cincinnati I', The Cincinnati, &c. Co. Ilannaforil r. Ilaron llannay /•. Stewart Hannibal r. Faimtlcroy Hannibal, &c. Ii. U. Co. v. Marion V. Meyer V. IJoter Ilapf/ood V. Stiaw Harbaii(;ii v. Winsor Harbison v. Leiiitn Hanlcastle r. Ni'therwood Harili'U v. McClure Harden i". Parsons H anting v. Fo.x croft Hardnian v. Bclliiousti r. IJootli Hardy ('. Sproul Hare v. Copland V. Dresser i. 85; ii. 2.-)0 ii. 301 i. 90 i. 424, 425 i. 148 i. 23 ii. 502 i. 466 i. 468, 4H2 ii. 412 i. 549, 550, 646 i. 291 i. 575, 570 ii. 385 V. London & N. W. Ry. Co. i. 309 V. The Mutual Safety Ins. Co. i. 628 r. Shearwood ii. 0;iO Harford n. Lloyd i. 448 Har},'reaves c. Parsons ii. 577 Hart^roves v. Cook ii. 537 Hariiian i'. Anderson ii. 453, 477 V. Reeve ii. 17 V. Tappenden i. 298 Harmony v. Bingham i. 405 Harned v. Churchman i. 201 Harney v. Owen i. 120 Harnor v. Graves i. 125, 334 Harper v. Lemons i. 116 V. Williams ii. 27 Harrington v. Brown i. 405 V. Graving Dock Co. i. 619, 620 V. Harrington i. 200 Harris, Ex parte ; Inre Imperial Land Co. of Marseilles ii. 069 iv Carter's Admr. i. 386 V. Clark i. 80 )'. Davis i. 180 i". Fowle i. 8, 18, 21 V. Harris i. 201, 224 V. Huntbach ii. 577 I'. Lee i. 195 V. Matthews ii. 349,360,451,491 V. Morris i. 161, 178, 179, IbO, 192 V. Nicholas ii. 40 V. Pepperell 1. 422 i;. Runnels i. 301, 303 V. Truman i. 402, 547 V. Wall i. 127, 129 Harrison's Case i. 355, 364 llanlson. Ex parte i.482 I'. Pane i. 119 V. Grady i. 152, 101 V Guest i. 452 Harrison r. Harrison r. Luke r. Sterry Harrod i». Harrod V. Norris's Heirs Harsiiaw v. Merryman Harsh man i'. Bates County V. Winterbottom Hart's Case Hart V. Boiler V. Busli I'. Clark V. Frontino Mining Co. V. Goldsmith V. Nash V. Prater Paob ii. 690 i. 8, 9, 21 i. 497 i. 144 i. 454 i. 154, 105 i. 431 1.413 i. 128 ii. 412 ii. 324, 397, 399, 400, 401, 458, 477, 492 i. 459 i. 603 i. 2.37 ii. 272, 304 i. 110 V. Prendergast i. 130 ; ii. ;K)9 V. Sattley ii. 287, 303, 324, 359, 378, 449, 477 V. Ten P.yck i. 27, 450 V. The Renssalaer, &c. R. R. Co. ii. 122, 123, 134 V. United States i. 585 Hart's Kxicutors v. Boni i. 02, 82 Ilarter r. Kenroehan i. 427 Hartfield i-. Phillips i. 107 V. Roper i. 134 Hartley v. Hurl i. 208 V. Wharton i. 127, 130 Hartman v. Kendall i. 127, 129 Hartmann v. Tegart i. 163, 166 Hartness v. Thompson i. 110, 128 llartop, Er jitirte i. 630, 541 !•. Hoare i. 105, 609 Harts i: Brown i. 297 Harvey v. Ashley i. 128 I'. Bagshaw ii. 653 V. Grabbam ii. 530, 630, 631, 032, 643 r. Harvey ii. 245 V. Johnston i. 127 1-. Norton i. 163 V. St. Louis Butchers', &c. Assoc. ii. 600 V. Towers i. 397 Harward r. St. Clair Drainage Co. i. 428 Harwood v. Railway Co. i. 295, 304, 306 ii. 643 ii. 40 i 240 i. 98 i. 141, 144 i. 87 I. 543 i. 536 i. 88 I 585 i 428 i. 84, 00, 462 i. 480 ; ii. 40 i 042,645 i. 88, 91 ii. 611, 603, 694, 002 Ilasbrouck r. Tappen Hasehnan v. Young Hashegan r. Speeker Haskins w Warren Hassard r. Smith Hassel i'. Tyrett Hastelow r. Jackson Hastings c. Lowring Hatch r. Atkinson V. Coddington I'. Dana V. Hatch V. Taylor Hatfiehl c. Phillips Ilatheway v. Payne Hatton V. Gray Haugliton V. Matthews (.'. Morton lilt I 1 1 i! I It I i 'I 4 ; III ' \ 111 i. 650 ii. 630 IT iffi'i M^ 1 a : , xlvi TABLE OF CASES CITED. Paok Haven c. Wcntworth i. f)(M) Uhvi-ii Uohi Miir;>g Co., AV i. ;]()H Uuwes r. Armstrong ii. 62(3, 570, 671 I'. Forator ii. 513 V. Oakland i. 800, 302, 881,418 V. Tilliiiglmst i. 4(t'J V. Watson ii. 454, 470, 477, 478 Ilawkc V. Urban i. 244 llawken v. Bourne i. 500 Hawkt's V. Iliiwkt's ii. 692 Hawkins v. HIewitt i. 87 17. (iardner i. 454, 4(MS V. Holmes ii. 588 V. Maltby i. 324, 346, 348, 340, 3r.o 351, 372 Hawlcy v. Cramer i. 405, 605 V. Kec'ler ii. 300 V. Marcius i. 4(55 V. Moody i. 24 V. Scree ven ii. 214 V. Upton i. 393, ;i'.t4 Hawson v. Hancock i. 54:5 Hawtayne v. Bourne i. 50\ Utiy ii. 3C.5 Heane v. Rogers i. 5(jo Heap V. Dobson i 479, 492 Heard v. Wadliam ii. 312 Heartley v. Nicholson i. 33, 51 Heath i'. Chilton i. 461 V. Heath i. 201 V. Mahoney i. 133 V. West i .123 , 131, 132 Heathorn r. Darling i. 203 Heatley v. Thomas i 201 202, 203 Paoi i. 352, 853 i. 255 i. 208 i. 91 i. 34, 87 ii. 497, 498 i. 050 ii.313 i. 600 i. 165 ii. 410, 421, 401 ii. 454, 477 i. 220 i. 284 ii. 244, 247 i. 148 i. 267, 482 i. 200, 201 i. no i. 7. 17 i. 138 i. i. i. 160 347 ,310 Hebb's Case llebe, The Heck V. Clippenger Hedge i\ Drew Hedges v. Hedges Ileerniance r. Taylor ('. Vernoy i». Yeomans Hefner r. I'almer Heidenheimer c. Thomas Heilbutt V. Iliekson HeiiK'key v. Earle Heinelreich r. Carlos Ileinrich Bjorn, The Hellawell r. Eastwood Heller, litre Helme v. Smith Helms I'. Franciscus Heli)s r. Clayton I). Winterbottom Ilembold, lie Hemelreich v. Carlos Hemming v. Maddick Henderson v. Anderson I'. Australian Royal Mail Steam Nav. Co. i. V. Lacon i. 315, 325, 320, 612, 018 I'. McGregor i. 140 I'. Overton i. 694 V. Royal Britisli Bank i. 330, 341 Henderson's Tobacco i. 424 Henderson & Nashville Ry. v. Leavett ii. Heney v. Sargent Henn's Case Hennessey's Case Henniker v. Wigg Henry v. Bank of Selina V. Fine V. Patterson I'. Root V. The Great Northern Ry. Co. V. The Vermilion, &c. Ry. Co. V. Vamilia, &c. R. R. Co. Henshel v. Maiirer i. Hepburn (•. Griswold Herald, The Bark Herbert 1: Huie V. Kneeland Hercules Ins.Co., In re; Pugh & Shar- man's Case i. 347 Hereford & South Wales Waggon &e. Co , In re i. 626 Heritage v. Paine i. 34ti Herman v. Perkins i. 210 Hern v. Nichols i. .'J40, 571, 608, 609 ; ii. 17 Heme v. Meeres i. 459 Hero. The i. 279 Herrick i\ Carter i. 13, 21, 22, 23 Herring v. Sanger ii. 278 Hersey v. Veazie i 2i)7 Herscy, The i 265 Hervey 1: R. I. Loco. Works i- 97 Heryford v. Davis i 07 Heseltine v. Siggers ii. 222 603 180 161 128 450 280 130, 142 1.90 i. 120 i. 308 i. 428 i. 207 86, 88 i. 5 i. 268 i. 399 ii. 40 TABLE OF CASES CITED. xlvii Paoi Hesketli v Blanchard i 468, 4(i!) Hiss r Urowii i 224. 232 IKwcs i: Jordan ii. 346, 434, 470, uOO Ili'svitt I'. Km ye i JJ:) Hoytioc V. Uiirj!e i- 479, 4!)() Ik'Viuan V. Fluwker i. 010 lli'vinann v. Tlie European Central Ky. Co. i 34:J, ;570 Ili'vvvanl r. CnthluTt i. 117 lliliblewhite r. McMorine ii. 222 Ililibsi'. Koss i 2(17,281 llichuns V. Congreve i. 308, 342, 502, uO.5, 60« HicklinBy. Hardey i. 0, 17,21 Ilickinati r. Co.x i. 474 V. Hayiies ii. 637, 038, 639, 640, (541. 642 Iliuks r. Cleveland ii. 307 V Cram i. 500 V. Miiitiini ii. 673 Ilic'kson r. I^onibard i. 343 Ilium V. Mill i. 456 llijjt^ins V. Burton i. 550, 646 I'. McCrea i. 64!) V. SaiiR'ls i. 60(J V. S. lior i 524, 527. 520, 535, 53',(, ..62, 503, 570, 576, 601,049 ; ii. 54f). I'. TiioWatervliet Turnpike Co. i. 5si V. Watson ii. 53.} Ilifjiiiey V. Barron i. 130 Ililjlit V. Hiplcy i 16 Ilill)isli V. Catliorman i. 417 Hililretli i\ Mclntvre i. 411 IllMyard v. Soutii'Sea Co. i. 369, 403, 61)3 Hill y. Anderson i. 12',) V. Buukniinster i. H6 I'. Chapman i. 37, 39, 86, 87 V. Idle i. 6.34 V. Lane i. 315 V. McDonald ii. 50;5 V. Nisbet i. 2: (8 t'. Ferrott i. 527 V Siin])son i. 405, 460 r. Stephenson i. 62 I'. Stevens i. 73 1. i. 274, '287 i. 376 ii 315 i. 425 190, 197 i 33 i. 573, .'■)'.»9. 601 i. 433, 435 i. 238 i. 118 i. 190 i 241 453, 484. 513, 024 i. 304, 31 IS, 403 i. 168, 40!) i. 205 i. 17 i 502 i. 205, '229 ii. 047, 652 i. 2'J9 ii. 535 i. 468 i. 10.3, 190 i. 344, 346, 349 i. 459 ii. 644 Hill Manufacturing Co. v. Lowell R. H. Corp. ii. 214 lillianl c. Richardson i. 581 nils i: Hills i. 67, 05, 87 lillshorough r. Deering i. 113 lillyer r. Barnett i. 129 litnrod Furnace Co. i\ The Cleave- laiid, &c. K.R. Co. ii.OOl liiicliinan i'. Lincoln ii. 4.32, 491, 495 linckley i\ New York Central 11. H. Co. i 1. 1.34 liiii'ks V. Nelthorpe i. 199 lindc r. Whitehouso ii. 32 1 , .320, .39,"), 429. 437, 4U:'.. ,V27, 529, 542, 589, 029, 636, 644 linds ('. Ilind.s i. 201 liiulustnn r. Kintrea i. .322 line ('. Trevor J. 287 linely v. Margarity i. 129, 130 Hines v. Bryan i. 117 Vkou nines V. Frantliam ' i. 409 llindley v. Marquis of Westmcath i. 162, 105, 108, 178 Ilingston v. Wendt llinton V. Meade V. Sparkes Ilippsly I). Tueke Hirst I'. Tolson Hitch V. Davis Hitchcock r. Buchanan I'. Galveston i;. Richold i;. Tyson Ilitner's Appeal Hixon f. Hetherington Hoadly r. .McLaine ii. Hoare's Case Iloai'e V. Dawes Hobbs V. Norton Hoclister r De la Tour Hodge r. Twitcliell Hodges I'. Hodges V. Horsfall V. New Kngland Screw Co, r. Steward Ilodgkinson, /-Jx parte V. Fletcher V. Kelly Hodgson, A'.c parte V. Hutchenson V. Le Bret ii. .322, 3,34, 415, 437, 443. 449, 478, 491, 613, 630, 602 V. Williamson i. 205 Hodsun V. (^opcland i. 297 V. Davis i. 240 V. Le Bret ii. 217. 218 Hoff I'. Koerper i. 1.58 Hoffman c. Insurance Co. i. 499 Hoffman Steam Coal Co. «;. Cumber- land Coal & Iron Co. i. 299, .305 Hoffiner v. Wenrieh i. 400 Ilogan I'. Weyer i. 407 Hogg c. Garrett i. 487 llogkinson »•. Kelly i. .324 ilolbrook V. New .lersey Zinc Co. i. 003 Holcomb i». People's Savings Bank i. 226 Holden Steam Mill v. Westervelt 1. 13 Holder v. Cape i. 163 Holdsworth r. Hunter i. *il6 Holliind, Kr parte i. 144, 214 f. Hodgson ii. 245, 210, 247. 248 V. Hoyt ii. 276 HoUey >•. Adams i. 80 Holliil.ay c. Atkinson i. 80 lloUins V. Fowler i. 549, 550, 661, 652, 6,56, 657 Ilollistcr Bank, Tn re Holly V. Huggerford Holman v. Loynes Holme ('. Hannnond Holmes r. Blogg i. 118, 123, 124, 125, 131 V. Holmes i. 194 V. Hoskins ii. 387, 450, 469, 470, 491 V. Seely i 101 V. The United Ins. Co. i. 409 i. .394 i. 056 i. 007 i. 474, 477, 482 rf I I' ■qnpvip«« If' t 1, 1 . i '; Ii) I i, Ii i xlviii TABLE OP CASES CITED. PAoa Holmes V. Trompor ii. 240, 40O Holmes Kstate, In re i. b'-i Holt V. Brien i. 152, 154, 158, 1«3 V. Everall V. Holt V. Odber V. Sorrell Holtiiaus t'. llornbostlo Hulyokc Bank t'. Iturnliam Home Insurnnee Co. i. Warehouse Co Home r v. Thwiug Hond's Case Hoiidlette v. Talliimn Hoiiyiiiiin I'. Miirryatt i. 216 i. 454 i 17 i. 246 i 21H i. 390, 403 Baltimore i. C57 i. 133, 134 ii. 635 ii 602 ii fit'iO Hood V. Lord Baniiijjton ii. 618,(557,000 V. Tlie New York & New Hhvimi H. It. Co. 11. 13'J, 141, 143. 140. 147. 150 Hooker i'. Knab ii. 270, 277 Hooper, Re i. 1<)4 I'. Goodwin i. 64 V. Stephens ii. 304, 3(»!» v. Stevens ii 273 Hoot f. Sorrell i 227 Hoover, lie. ii. 6i'3 V. Alexander i. 652 V. Montelair, &c. Ry. Co. i. 420 V. Wise i. 5!)4 Hope I". Hope i l",t2 V. International Financial Soc. i. tVIX Hopijood c. I'arkin Ho])kins' Appeal Hopkins v. Klinorc V. Forsyth V. Lee r. Lopan I'. Mehaffy Hopper V. Corrinffton Hopton r. McCarthy Horn ('. Baker ?'. Cole V. Ilann V. Loekhart Hornblower v. Frond i. 017 i. 2!)7 i 40!) i. 482 i. 31 ii. 614 i. 535 i. 412 ii. 430 ii. 245, 247 i. 220 i. 140 i. 401 ii. 221 Horncastie v. Farran ii. 278, 365, 451, 462 Home and Ivy's Case Horner v. Dow V. Lewis I'. Siiniott Horr V. Barker Horsey v. (iraham Horsfall r. Fauntleroy V. Hey Horton i-. MeCarty Horwood V. lletler 0. Smith Hoskins v. Duperoy V. Slayton Hossfeldt V. Dill Hotchkiss V. National Bank Hotel Company v. Wade Hough r. Jones i. 320 i. 628 i. 105 ii. 40 i. 27 ii 60(5 i 5(iO ii. 2.x 250 ii. 555, 558, 55'.t, 502 i. 101, 173, 175, 170. 177, 179. 187 i 450 i 9, 17, 21 i. 2(V.t i 228 i. :)07 i 303, 308 i 223 V. Manzanos i. 530, 531, 533, 534, 636 Hough r. Bailway Co. ii. 171 Houghton's Case ii 91 Houghton c. Milburn i. 222 r. Boss i. 24 Houldsworth v. City of Glasgow Bank i. 337, 338, 3;^',t, 340 Houliston V. Smith i. 151, 102 V Smyth i. 102, 173, 179 House V. Alexander i. 122, 123, 120, 132 V. House i 140, 577 Household Fire, &c. Co. v. Grant i. 303; ii. 070 Housemain v. The Schr. North Caro- lina i. 206 Houseman r. The Schr. North Caro- lina Houser v. Kemp Ilouts c. lldlltS Hovey r Ciiaso V. Ilolison How V. Keniball Howard r. Bank 1'. Borden V Braitliwaite V. Bryant i;. Castle Harris Moffat Odell Savings Bank Sinijikiiis The Karl of Digby Tucker i. 248 i. 90 i. 189 i. 142 i. 142 Ii 537 i. 77 ii. 495, 502 487; ii 40 1 161 i. 505 11,92,271 i. 201 i. 267 i. 67, 73 i. 130 i. 139, 142 ii 34 r. Windiiam County Bank i. 47 Howard County r. Boonevillc Central Nat Bank i 423 V. Paddock i. 422 Howarth, /n re i. 122 Howe V. Chesloy i. 241 V. (^ity of Glasgow Bank i. 340 I). Hay ward ii. 280, 284, 314 V. Lawrence i. 500 V. Palmer ii. 220, 250, 328, 329, 330, 343,308, 435,430, 447,451, 470, 477, 493 V. Smith ii. 315 V. Wildes i. 214 lloxier. Price i. 222 Hoyle V. Plattsburgh R. R. Co. i. 300 V. Stone i 131 Hoyt i: Sprague i- 498 V. Thompson i. 626 r. Wilkinson i. 132 Hubbard v. Biigbce i. 141, 247 V. Cummings i. 123 Hubbell 1'. Van Silinnning i. 96 Hubbersty r. Ward ii. 2, 10, 42 Hubert r. Morcau ii. 588, 580, 501, 504 HuildUstone r. Briscoe ii. 602, 020, 644 Hudson V. Clementson i. 276 V. Granger i. 639 V. Hudson i. 238 V. King i. 243 V. Stewart ii. 636 Hudson Iron Co. i-. Alger i. 19, 21, 23 TABLE OP CASES CITED. xlix Paoi Iluelaon v. Buck ii. 002 IliJljenin v. Uastley i. 462 Hughes, A'.r paite i. 209, 454, 450 V. Cliailwick i. 15:] V. (iiillans i. VM V. IloUidiiy i. 4(J0 I'. I'arainour ii. 308 V. Stanley i. 'J5 V. Wells i. 20:] 0. Wheeler ii. 278 Hiiiskamp i'. Moliiio Wagon Co. i 500 Hull (V rickersgiU i. G2:], ;'24 V South i. i'O Ilulino V. 'i'ennnt i. 201 20:], -JM Humble !'. Hunter i. 52!>, 570 V. Mitchell ii. 222 Humboldt Township V. Long i 427, 4:]2 Hume V. Herton i. 141 V. The Earl Kly i. 145 Humphrey v. Dale i. 520, 529, 500, 5(il». 607 1. 1:!4 r. Douglass Hunt 1'. Ailams ii. 5:34, 548 I'. Hrown ii. 01((, 02:] i". De Blaqiere i. 100, 1',I2 V. Hecht ii. 324, 385, SSt^, 3',)7, 408, 477, 478, 4!t;j V. Massey i. 127, l:JO i>. Ransinanicr i. 182 I'. Hoval K.xhange Ass. Co. i. 2il0 V. Silk i. 12:}, 12i >, 334; ii. 365, 451, 1 .-.t V. The New York & Erie K. II. ^"^ Co. ii. 122 V. Tliompson i. 113, 115 i; Weiner i. 404 w. Wyman i.y2 Hunter v. Atkins i. 452, 459, 50:5 V. Hunter i. 33, 88, 91 V. Miller i. 6;i0 V Prinsey i. 274 D. Welsh i. 100 V. Wetsell ii. 270, 275, 276, 290, 297 I'. Wilson i. 422 HuntinRton v. Gilmore i. :J3 I'. Knox i. 049 V. Palmer i. 381 I'. Saunders i. 215 !'. Te.xas i. 442 Huntley r. Huntley ii. 678 Huntley, The i. 284 Huntress c. Patten ii. 651 Hurd V. West i. 15, 16, 20, 0:] Hurry v. Man'jles ii. 453, 475, 477 Hurst V. Heaeli i. 81} Hussey v. Allen i. 292 i: Christie i. 269 V. Home Payne ii 605, 662, 003, 604 Huteheson v. Eaton i. 542 Hutching V. Engel i. i:]4 Hutchins v. King ii. 223 V. State Bank i. 405 Hutchinson v. Hunter i. 27 i". Kay ii. 245 V. Heid i. 21 Paob Hutchinson v. Surrey, &c. Asgoc. i. 541. 025 V. Ttttham i. 529, 530, 569, 670 Huthnmcker v. Harris's Admrs. i. 24 Hutton r. UuUocli i. 514 V. Bragg i. 274 V. Mansell i. 127 I'. Padgett li. 681 I'. Scarhorougli, &c. Co. i. 307 V. Wiirren i. 627, 560 Iluzzey I. Field i.OlO Hyam's Cii.se i. 337, 390 Hyatt V. Vincennes National Bank ii. 250 Hyde i- Cookson i. 14, 101 I'. Frey i- 227 V. Johnson i. 590 ; ii. 591 V. Trent & Mersey Navigation Co. i. 035; ii. 77, 108, 116, 119, 153, 157 177, 184 V. Wrench ii. 004 I. leely v. Grew ii. 315 Idaho, Tlie i. 20 Ide V. Pierce i. 77 Ide & Smith v. Stanton ii 517, 582, 583 Idle i: Koyal Ex. Ass. Co. i. 259, 277 Illinois Central U. It. Co. v. Coi)eland i!. Cowles V. Frankenburg iJ. John ion Illinois River K. U. Co. v. Vy i>. Frankenstein Imhoff V. Witmer's Admrs. Imlay r. Huntington Imperial Credit Association, In re; Hichardson's case i. 340 Imperial Land Co. of Marseilles, Er fim-te Harris ii. 609 Imperial Mercantile Credit Assoc, In re ; Curtis's Case i. 350 Imperial Merc. Credit Assoc, v. Coleman i. 304, 308, 342, 502, 021 India, The i. 289 Indiana, &c. R. Co. r. Allen i 2:}4 Indianapolis Rolling Mill r. St. Louis, ii. 178, 187 ii. 17S ii. 171, 179, 187 ii. 171, 178, 187 Beers i. 404 ii. 412 s. I. i;i8 i. 205 &e. Railroad Indianapolis, &c. Co. v. Wikox Indomitable, The i Ingham r. Primrose Inglebright r. Hammond Ingraham c. Disborough Ingram v. Shirley Inhabitants of Peru v. Poland Inhabitants of Plantation No. Hall Inhnmm v. Seymour Inse r. Pompe Insurance Co. v. Bruce I'. Gosslcr r. Hauslcin I'. McCain 295 i. 123 282, 285 i. 397 I. 5<50 !. 4:50 i. i. 193 4 1-. ii. \m i. 375 i. 592 i. 428 i. 279 1.499 i. 629 \i 'I ': i:t VOL. I. TABLE OF CASES CITED. I Paoi Insurance Co. i'. Railroad Co. ii. lO'J i: Kikor i. 4'J'J V. \U)is J. 4!i'J V. liiidi-n i. 032 InternaiiDiml Company, /« r« ; Lcvi- ta'» Cast' i. !5i)0 Irtlanil r. Johnson ii- 278 Irisli c. Nutting i. 33, 30. 43, 50, 65, 67. 6^61), »W, Ot.06, 71 V. Tlie Milwaukee & St. I'aul liy. Co. ii. 1()2 Irons V. Maniif. Nat. Bank i ;{7'.t V. Srnaili.icce i. .'53, 47, 64, 08 Irrland r. Livingstone i. lUO, 6'Jl, 030 Irvine v. Irvine i- 12!i c. Watson i. 671, 574, 570 Irving y. Uiuliardson i. 057 i\ Veitcli ii. 273 Irwan i'. '.Viiliar i. 41)5, 5'.iO Isaac V. Andrews i. i>0 .'. Clark i. 652 Isbell V. New York & New Haven U. R. i. 410 Isliani V. Morgan ii- 028 Israel c. Douglas i. 400 Itliaea Baptist Chureh, Trustees of, r. Higelow ii. 542 Ithel 1-. I'orter ii. 588 Ive 0. Chester i. 119 Ives ('. Hartley i. 95, !I0 V. Hazard ii. 693, 002 J. J. B., Re i. 144 Jackson i: Andeling ii. 303 i\ Anderson i. 27, 385 f. Burchin i. 118. 131 V. Carpenter i. 118, 131 i;. Galloway ii. 603 1'. Hall i. 650 V. Henry i. 456 I'. Jackson i. 138 V. Ketchuin i. 385 V. Lowe ii. 613, 529, 602, 648, 049 V. Holiinson i- 482 V. Home i. 450 r. Hutledgc i. 245 r. S')nierville i. 650 V. Walsh i. 450 I". Watts ii. 424, 602 I'. Woolsoy i. 465 Jacmcl I'acket, The, and her cargo i. 268 Jacol) V. Kirk ii. 642, 593, 006, 050, 062 Jacobs V. Hooker ii. 121 r. Scott i. 189 James r. Bixby i. 268, 209 I'. Griffin ii. 454 V. James i. 61 V. Langdon i. 142 V. Mnysant i. 205 I'. Miiir ii. 549 V. Williams ii. 273, 520, 571 James, Kx parte James Guy, The Jameson v. Tlie Camden It. U. Co. Jamieson v. Waterhouse Janvrin i', Ma.xwell Jardine i-, Carron Company Jarman v. Woolloton Jarrett v. Hunter Jarrolt t: Moberly Jarves v. Hydder Jarvis r. Uogers Jeanie Landles, The JetTerys «•. Smith Paob i. 209, 454, 458, 621 i, 284 & Amboy ii. 157 i. 334 ii. 602 i. 338, 340 i. 207 ii. 020 i. 428 i. 67 i. 105, 107 i. 268 i. 506 i. 16, 97, 98 ii. 691 i. 144 -Jenkins c. Kichelberger V. Gaisford V. Morris f. Reynolds ii. 520, 568, 570, 571, 680 r. Usbornu i. 642, 046 Jenkyns r. Brown i. 107 r. Usborne ii. 386 Jenner r. Morris i. 122, 192, 195, 190, 197 i. 117, 120 n. a ii. 605 699; V. Walker Jenners i-. Ilavard Jeniiess v. Met. H- 1. Co. Jennings v. Broughton V. Camp t'. Flanagan V. Rtiiulall V. Webster Jenny Lind, The Jervis v. Berridge Jessel V, Bath i Jcssop r. Lutwyclie Jesus College r. Bloom Jevons !'. Roberts Jewan v. Whitworth Jewell ('. Scliroeppel Jewett V. Alton Jewsbury v. Newbold Job V. Job Joffrey v. Walton John V. Bacon I'. Simons John Ruston's Case Johns V. Reardon V. Symons Johnson i: Ball V. Campbell V. Chadwell V. County of Stark I!. Credit Lyonnais Co. V. Cuttle V. Uodgson ii. 824, 343. 344, 351, 360, 3y7, 449, 477, 478, 493, 689, (i ^9, 673 1. 148 659, 502 i-327 i. 14, 21 ii. 311 i. 133 287, 308 i. 290 621, 002 ii. 12. 66 i. 543 i.506 ii. 242 i. 630, 638 i- 18 i. 377 i. 152 i. 617 ii. 692 ii. 92 i. 268, 269 i. 146 i.208 i. 265 i. 51 i. 428 i. 142 i. 880 1.107 ii.435 Gallagher Goslett Harris Jackson Latlin V. Lansley V. Lines V. McLane V. Meddlicott i. 201, 202, 203, 204 i. 126 i. 460 i. 3.34 i. 396 i. 643 i. 122, 162 i. 16 i. 146, 147 TABLE OP CASES CITED. u Paoi 458, tt'21 i. 284 boy ii. 167 i. 334 ii. 602 338, 340 1.207 ii. 020 i. 428 i. «7 105, 107 i. 268 i. 600 6, 97, 1)8 ii. 591 i. 144 671, 680 042, 046 i. 107 ii. 386 190, 197 117, 120 i. 148 559, 502 i.327 i. 14, 21 ii. 811 i. 133 287, 303 i. 290 , 021, 062 ii. 12, 66 i. 643 i.506 ii. 242 630, 038 i. 18 i. 377 i. 152 i. 617 ii. 592 ii. 92 268, 269 i. 146 i.208 i. 266 i. 61 i. 428 i. 142 i. 389 i. 107 ii.435 ;51, 3t)0, 589, 6 *9, 673 203, 204 i. 126 i. 460 i. 334 i. 396 i. 543 122, 162 i. 16 146, 147 Paoi ii. 609 i. 133, 134 IJoniild ii- 639 Smitii i. 66, 73, 74, 6.iti Stoar i. 105, 107 Trinity Church Society ii. 692 .lolinson V. Miller r. I'ye WlUl'M Weill Johnston r. IJrowne Dobie V. KiTshaw V. Lrtrtin V. Miinning V. Miirks V. I'arsuy V. I'ikc V. Henton V. Sumner Jolliff i: Jolliff Jolly r. Hi'cs Joiifitlian (loodhue. The Jones's Case Jones ('. Ashburnham V. Caswell V. Clifton I'. Colvin V. Cooper V. Crostliwait I'. Weyer 1'. Downman V. Kpperson V. PVstiniogR. Co. t'. Flint V. Foster i. 38 ii. 278 i. 16, 20, 93, 95 ii. 244 i. 691 i. 379, 392, :!93 i. 101 i. 110, 119, 129 i. .309 i. 154 i. 369 i. 168, 160, 101, 103, 167, 199 i. 180 i. 155, 160, 167, 163 i. 284 i. 10, 146, 347 ii. 607 Paoi Jonmcnjoy Coondoo i>. Watson i. UtO Jordan c. Keeblu i, 247 V. Norloii i. 480 ; ii. 40, 345, 450 i;. I'eiik V. Warren Ins. Co. V. Wright II. Young Joseph V. Knox Josephine, The Josliun Marker, Tho Joy I'. Campbell Joyce I'. I layman r. McAvoy Jiidkins V. Walker Judson v. Adams V. Western It. R. Co, Julia lilake. The Juni't on Railway Co. v. Reeve Junkins v. Simpson Justice V. Lang i. 205 i. 200 i. 113 i. 268 i. 632; ii. 4H4 i. 287 i. 26!) i. 017 ii. 2:12 i. 190 i. 126 i. 14.101 ii. 107 209, 277, 278 i. 376 i. 334 ii. 695 505 i. 208 i. 121 il. 526, 624 i. 214 i. 87 i. 635 i. 222 ii. 89 ii. 2.32, 2.30 i. 479, 488, 489, 490, 491, 492, 493 ; ii 28 V. Frost i. 205 V. Gilbert i. 14 V. Glass i. 233, 241, 243 V. Harris i. 202 I'. Jones i. 194 V. K'mp i. 95 V. Lewis i. 617 1-. Littledale i. 524,527, 635, 570, 675, 601 ; ii. 021 V. Lock i: Mechanics' Bank r. Moore V Morrison • V. I'almer 11. I'erry V. l'lia Kanfrowifz v. Prather i. 240 Karnak, Tlie i. 251, 254, 255, 258, 277, 283, 286 Karnak, The, Droege r. Suart i. 286 Katzeinberger v. Aberdeen i. 410 Kaufman v. Silioeltel i. 231 Kaye v. Waghorno i. 30 Kayser v. Trustees of Bremen i 401,425, 433 Kean v. Davis Keane r. IJoycott I'. Robarts Kearney v. (Mty of Covington r. Taylor Kearslake c. Morgan I'. Sims i. 0:V2 V. Smith i. 450 V. The Victoria Graving Dock Co. ii. 052 V. Thomas i. 452 V. United States i. 685 V. Victoria Graving Dock Co. i. 575 r. Williams ii. 570 Joncsboro City v. Cairo & St. Louis U. R. Co. i. 419 i. 522 i. 118 i. 460 i. 435 i. 457 i. 634 ; ii. 272. 27.'i, 277, 278 i. 310 ii. 315, 644 i. 113 i. 6:50 i. 497 i. 6.56 i. 027 Keates r. Earl Cadogan Keating v. Price Keatoii V. Davis Kcay r. Fen wick Keeler i'. Insurance Co. Kceley i". Noyes Keenan r. Hollo wav Keeney i\ Good i.' 150, 161, 216, 220, 232 Keetch v. Sanford i. 454 Kehrer v. Baxter i. 625 Keller >'. Tutt i 18 Keith V. Jones i. 31 Keithsburg v. Frick i. 419 Kekewich v. Manning i. 33, 67, 82 i mr-v m TAULK OF CASES CITED. n •;! , i| Keller IV Orr ('. I'liillips Koli'.')' V. Diivis ( . FosttT V Mfrrill V. Miiyor of Hrooklyn Ki'llick t'. Fli'xiiy Kc'llo^ri; '• FancliiT V. liicliiirdH Kt'lly r. Minor i: riiilliiM, Kelly & Co., F.r parte KclniT r. HaxtiT Kciiitik' i: Atkins lu'incys I'. I'roctor Kemp r. Duwniiuin 1". Rose Keinpe'a Lessee i'. Kennedy Keiiicott r. Supervburs Kcnn's Case Kennanl r. Cass County Kennaway r. 'I'releaven Kennel)unk])ort r. Sinitli Kennedy v. (iorveia V. (Jreen V. Lee i Kennell v. Abbott Paoi i. 2ii4 i. !&.-{ i. 115 i. la I. 2ltl i. iVJO 1.464 i. .'J82, ;j«r> i. a'.t i. r,Hi I. ir,M i. 4M i. 540, 541 i. M2. M:] ii. 321,021 1 i. It;.-, i. 021 i. 401 i. 427, 440 i. l'.»5 i 412 ii. rST, 570, 0O.5 i, 1!« 1. 523 i. 45() 30G ; ii. 698, j6«, GOO 1. M Kennersley Castle, Tho i. 270 Kennon r. Dibble i. 161 Keiirick v. Hiirges i. 024 Kenser >•. Tiiiic i. 14'.t Kent r. Freeluilil Land, &c. Co. i. 841 V. Iluskinson ii. 821, 'AM, B:2. 84:1, 396, 448, 6i;J, 6;30, 002 V. .lackson i. JlOK I'. Walton i. 48:1 Kentucky Hank v. Kurtz i. 00:J Kenwortby /•. Scbolield ii. 321. 51:], 62H, 542, 002, 044 Kenvon i . Tarris i. 108 Ken'zil r. Kirk i. 201, 291 Keokiik, 'I'lic ii. 50 Keokuk Packet C >. v. Davidson i. 30O Kerhof r. The All; ,8 Paper Co. ii. 301 Kerns v. Piper ii. 40 Kerr v. Hell i. 182 V Connell ii. 240 )'. liord nnnpannon i. 459 Kersbaw c. Ogden ii. 413, 478, 491 Kctclien r. Lee i. 128 Ketcbuni r. Duncan 400 '2\W 214 488 ;181 ii. 87 i. 9, 21 021 i. 42.) I. ii. i. i. i. r. Kvartson /'. Walswortli Key V. Goodwin KeynsliJim Co., fn re Keys V. Belfast Railway V. Flarwood Kevser v. McKissan Kibble r. (iousli ii. 41S, 424, 420, 4-'7, 428, 480, 481, 454, 459, 400, 401, 402, 4t);], 404, 405, 460, 467, 40'J, 471, 472. 473, 492, 49:5, 494 Kiildor r. Hunt ii 206 Kidwell V. Kirkpatrick i. 219, 221. 225, 230 Kieffer r. Elder Kill r. Weaver Kiigore r. Jordan Kilsliaw V. Jukes Kunball I', ('unninglifldi V. Kiyes r. Tlionipson Kindiall, The lvind)er c. Harber Kind)erley r. Dick t'. Putebin Kiniui r. Weippert Kincaid's Case KinK I Hryant r. C(.'nell V. llunifhreys V. Lenox V. Luean I'. Lysle v. Meredith V. Pippet I'. Upton V. Voss Taom i. 883, 4:14 i. 80 i. 120 J. 468, 477 i. 407 , 153, 105, 18^1 i. 500 i. 282 006, 008, 018 i. 021 i, 27 214, 239, 240 i. 370 i. 147 i. 424 i. 14, 101 i. 200 i. 206. 216 i. 425 i. 632; ii. 484 i. 9 ii. 552, 553, 654, 562 i. 2 15, 227 Kinj;, The, 1: The Justices of Essex i. 022 V. Yarpole i, 022 Kinffsbury c. Kirwnn i. 496 Kinjfsford r. Great Western Ry. Co. i. 599 V. Merry i. 331, 549. 042 Kingsliind r. Adams i. 18, 17 V. IJarnewall i. 452 Kingston, f'.r futile i. 403, 574 I'. Preston ii. 312 Kingston's Case, The Duchess of i. 195. 855 Kinkead, lie i. 205, 214 Kinsley v. Norrig i. 410 (•.The State i. 110 Kintrea's Case i. 390 Kirby r. Coles ii. 574 r. Johnson ii. 502 Kirchner v. Verms i. 692 Kirk 1: Hartman i. 600 Kirkbride i'. Lafayette County i. 428 iCirkham v. Marter ii. 577 Kirkpatrick r. Stainer i. 511, 635 Kirksey i-. Friend i. 206 Kitchen v. Lee i. 129, 130, 132 V. Place i. 307 ('. St. Louis, &c. R. W. Co. i. 298 Kleinioort v. The Cassa Marittima i. 251 Klein v. Currier Klein wort v. The (Geneva Kline, Appeal of r. lieebe Klinitz V. Surry Knartp '•. Smith Knatcbbull 1: Hallett Knight r. Barber «;. Cambers V. (Corporation of Wells V. Crockford V. Fitch ii. 536 Cassa Maritima of i. 283 i. 87 i. 129 ii. 322, 326, 327, 425, 487, 493 i. 214, 231 i. 463, 574 ii. 222 1.643 i. 424 ii. 611, 523, 587, 692, 594 L643 TABLE OP CASES CITED. :;. .112. .']i:i, .114, 4K1 .']|.'). :i.')l, 4;JI. 4',iH, 4»i». V. Proviilcnc.' & WorceHtor U. II. Kniiflit I', Iloppor '. Mann ii Co. 11. l(i:t Knott's Adin'r* i llogai 3 i. 4;5, 75, H2 Kno.x I'. AHpinwiUl i. 407. 40H I-. niishi'll ii. im, 11»7 r. t'liiniibfll i. 4H2 1'. .IiM'k.^ i. 4(11 I'. Kint{ Ii. odit V. Simmons i. 4!t7 Knox Co. V. Aspinwull i. 600 Knox (;ounty Court I'. UnitiMl Stiiti'S i 422 KooliliT r. Bliiek UivcT Falls Co. i. 2117, 3();5, ;{()& Kortri(,'lit v. IJank i. •im. ;{'.t5 Konntz r. Ki'iinody i. 400 Kriitz r. Stocks i. 24 Krciulir i: Woolcott ii. 122. I;i0 Kriln v. .Icmt'H ii. »i4;{ Krii^'sfonl V. Mi-rry i. flJO; ii. Wo Krohn r. Hantz ii. 270, 277. 514 Kroiiskop V. Slioutz i. 222 Kruiiim V. Bi-acli i. 2:11 KiiltKTg, In re 1.(141 Kiilni e. Gatos ii. 207. 275 Kiituher v. Williams i. 22S Kiitti ". Smith ii. 250 Kyi' he liiinruns R. R. Co. ii. lOH Ky SuwiTcropp i. 502, 5():i. 5(il, 507, 508 L. Lacius-iade i'. Wh.ite i. 543 Lacfv, AV imrte i. 209, 468, 450, 4(>4 V. Hill i. 682 I' Hill, Crowley's Claim i. 340 Lacon /• Illjijfins i. 27(5 Luild c. Ciirtw right i. ;J»8 1^. Franklin i. 41U V. Grlswold i. 500 V. Lynn i. 194 V. King il. 043 V. Town of Franklin ii. 40 LadiR' V. Griffith ii. 178, 214 i\ Soymour i. 18 Lady Franklin, The ii. 63, 55. 50 Laffan r. Naglee i. 505 Laicock's Cas- 1. 010 Lain',' !•. Lee ii. 571. 581 Liiinl V. riin ii. 315 Liiinar •. Mieon i, 401 I/iinar's Fxo'r v. Hale i. 50.3, 505 Lamb v. Attenborough i. 645, 04(1 V. Crafts i. 10 I'. Durant i. 482 V. Mills i. ()20 Lamprt r. Heath i. 638 L'Anioroux v. Crosby i. 138, 148 '• '■ovild ii. 602 Lampleigh v. Rraiihwait i. 560 WW Paoi Lamprell i-. The BiUericay Union i. 318. 320 Lancashire Wagon Co. v. Fitzhugh i. 552, 667 Lancashire & Yorksiiire Uank c. Jee i. 205 ii. 247 ii. 018 ii. 222 139. 140 i. 151, 152, 158 i. 2(W i. 234 23, 24 ; ii. 205 i. 2(57 . Ex parte V. Moore i. Lancaster r. Kve f. WalHh Lancaster Canal Co, Lancaster (.'o. Hank Lane i*. Ironmonger t<. Kingsbury i», Schlcmmer V. Shackford Lane. In tlie Kobcrt L. Land Credit Co. of Ireland v. Lord Fermoy i. 317, 013 Lander d. Smitlifleld School District i. 410 Lang r. Whidden i. 142, 140 Langdale. I'.r parte i. 4(58 Langcr's ('ase i, .3.')6. 304 Langford v. Adni'x of Tyler ii. 312, 313, 316 r. Gascovnc i. 017 Langtort v. Adrn'r of Tiler ii. 280, 313 Langridge c. Levy j. 310. 6'.l!» Langton v. Iliggins ii. 420. 4'.i2 V. Waring i. (ilfl Langwortby v. Smith ii. 318 Lanycm v. illancliard i. 571 Lajipin v. Insurance Co. • i. 4!H) La Kue v. Gilkyson i. 139 Laslibrook v. Tvler i. 199 Latham r. Atwood ii. 223, 232 Lathrop v. Hampton i. 451 i\ Kneeland i. 301 La Touche v. La Touclio i. 241 Lattimore i>. Harsen il. 044 Laughlin v. Tlie Chicago & N. W. Ky. Co. Laura, The Barque Laurel, The Lavere r. Gilkyson Law V. Cross «'. Hodgson I'. The People V. Wilkin Lawruson r. Mason Latvrence's Case Lawrence v. Dale V. Lawrence V. Miriturn Sinnanien 1. I. I. Winona & St. Peter \\. \i 1. Lawson v. Lawson I'. Shotwell Lawton r Lawton V. Salmon Laythoarpe v. Bryant , , -. ., 637, 503, 670, 594, 595, 699, 602, (500, 612, 613. 619 Lazarus r. Bryson i. 465 Lea I'. Exelby U. 812 ii. 101 i.280 i. 255 i. 140 295, 626 i. 301 i. 429 111, 112 ii. 009, 010. Oil 330. 370 ii. 365 i. 186 i. 272 242, 243 Co. ii. 162 33, 34, 80, 37 i. 2(K) ii. 245, 247. 249 ii. 247 ii. 511, 512. 515, I. 233, xprn llv TABLE OP CASES CITED. ;:!:-( ^ ,;>(■ li:,! ! Paoe i. 627 502 Leach v. Boftrdslce r. Leacli Ijeadbetter v. Farrow i. 530, 532, 630 Learoyd r. Kobii.son I. 638, 641, im Leather Cloth Co. v. Hieroniniua ii. 286. 686, 638, 63U, 040, 666 Leavitt v. Curtis i. 436 I'. Oxford & G. S. M. Co. i. 298 Lebeau v. General Steam Nav. Co. ii. 13 i. 624 i. 046 i. 268 i. 27 i. 105 i. 562 ii. 673 Leber v. Kauffelt Leckey v. McDcrmot Leddo 1^. Hughes Ledyard v. Uibbard Lee V. Atkinson Bayes Dick Gaskcll Griffin Jones Muggeridge Munroe V. V. V. V V V. V. V. Risdon i. 0, 17, 21 ; ii ii. 261, 252 ii. 201, 263, 204 i. 610 i. 241. i. 584, 586 248, 250, 252 r, Tannerbaum i. 246 Leeds v. Vail i. 153 Leeds, Duke of i*. Earl Amherst i. 607 Lees V. Nuttall i. 460, 502, 606 I. ii. 513, 514, 527 i. 627, 632, 636 i. 109 i. 130 i. 106 i. 6'.0 i. 205 Eufaula National Bank i. 238 Lehigh, Steamboat v. Knox i. 209 V. Whitoomb Le Fevre i>. Lloyd Legard v. Johnson Lcgay V. Maraton TjCgg V. Evans T.-eggat V. Reed Leijh V. Legh_ Le Grand v. Lehigh Co. v. Field Lehor v. Beaver LeifcliiM's Case Leigh I'. Macaulay V. Pat'.erson Leinbach .•. Templin Leitch V. Wells Leitz V. Mitchell Lemayne f. Stanley Lenio'id i-. Arms Ljncy t'. Hill Lennard v Robinson Lent V. Padlcford Leonard v. Leonard VreJenburg i. 99 i. 190 i. 337 i. 46ci 451 i. 14 18, 23 i 223,232 382, iiSS, 385, 434 i. 216, 220 ii. 684, 586 i. 235 i. 582 i. 515, .316, 530, 538, 6^^, 641, 675 ii. 667, 002 V. 1. 138, 101 ii. 548, 574, 575, 580, 622, 623 Lennidas, The ii. 66 Lerned v. Wannemacher ii. 569, 628. 043 Leroux i'. Brown ii. 670 I/e Roy V. Beard i. 572 Le Sassier i-. Kennedy i. 374 Lester r. Jewett ii. 614 i; McDowell i. 99 Lestralle v. Perrera i. 586 Leuckart v. Cooper i. 641 Levell V. Newton i. 214 Paoi i. 98 i. 129 I. 367 686 Leven v. Smi^h Levering v. Heighe Levick'a Case i. Levistones v. Landreaux i, Levita's Case, Jn re International Co. I 356 Levy V. Baker i. 188 V. Langridgc i. 610 V. Merrill ii. 537, 552, 653, 554, 562 i. 469 ii. 664 i. 422 i. 428 i. 312, 607 i. 228 i. 29 i. 206 i. 200 1. 133, 134 ii. 278 1107 i. 541 i. 161 ii. 691 i. 595 i. 193 i. 412 i. 160 ii. 7, 28, 62 i.667 ii. 614 i. 160, 173 i. 331 Lewis, Kx parte V. Brass v. City of Shreveport V, Commissioners V. Uillman r. Jotms V. Jones V. Lee V. Lewis V. Littlefield V. Lyster V. Mott V. Nicholson I'. Perkins r. Roberts y. VV.llace Lewiston v. Harrison Lexington i-. Butler Lichtenberger v. Graham Lickbarrow i-. Mason i. 292; Lidaways r. Todd Liddle i-. Needliam Liddlow i;. Wiliuot Life Assoc, of Kngland, In re Life & Fire Ins, Ins. Co. Life Assoc, of Co. V. Mechanic Fire i. 600 Scotland v. Liddall i. 455, 466 ii. 239 ii. 234 i. 143 i. 147 i. 693 365, 455, 494 11. Liford's Case Liguins V. Inge Ligiit V. Liglit Lightfoot V. Heron iniii- c. Legh Lillywhite v. Dcvereux ... , , Lii.nehouse Works Co , In re ; Coates's Cise i. 9 Lincoln t^. Battle i. 695 V. Euckmaster i. 139, 146 V. Iron Company i. 427 V. Rowe i. 240 Lind V. Tlie County i, 407 Lindensclmiidt v Lindenschmidt i. 188 Lindsay Petroleum Co. v. Uurd i. 342, 621 Lindsey v. Lindsey i. 138 Linseed, Bags of i. 636 Lippincott v. Carriage Co. i. 297 V. Hopkins i. 2.36 V. Leeds Lister t;. Lister Litchfield's Case Litchfield i^. Ballou 1'. Cudworth LitBon V. Brown Little V. Pool I'. Semple Littlefield i-. Shee i. i. i. i. i. i. 2,36 469 128 416 465 164 i. 801 ii. 214 i. 116 TABLE OF CASES CITED. Iv i. 98 i. 129 1. 367 i. 586 }nal i. 356 i. 188 i. 610 554,562 i. 469 ii. 664 i. 422 i. 428 312, 607 i. 228 i. 29 i. 206 i.200 . 133, \M ii. 278 \. 107 i. 541 i. 151 ii. 691 i. 595 i. 193 i. 412 i. 150 1. 7, 28, 62 i. 667 ii. 614 i. 160, 173 i. 831 ;Fire i. 600 iddall i. 455, 466 ii. 239 ii. 234 i. 143 i. 147 i. 593 ,, 455, 494 .tes'a i. 9 i. 595 1. 139, 146 i. 427 i.240 i, 407 It i. iSS Ii. 342, 621 i. 138 i. 635 i. 297 i. 236 i. 236 i. 45'.t i. 12H i. 416 i. 465 i. 164 i. 801 ii. 214 1.116 Paor Little Rock v. National Bank i. 433 Littler v. Holland ii. 530, 625 Livermore v. Uerschell i. 133 Liverpool Adelphi Loan Assoc, v. Fairhurst i- 133, 134 Liverpool Borough Bank, The, v. Ec- cles ii- 516, 563, 698, 600 Livingston v. Darlington i. 417 V. FciuIronOo. i. 316 Lizzie, The i. 253, 254, 255, 258, 269 L. J. Farwull, The ii. 63 Lloyd c. Bank i. 389 V. Chune 5. 69, 70 V. Fulton i. 208 V. Guibert i. 251, 274, 276, 283 f. The West Branch Bank i. 395, 601 t'. Wright ii. 503 Load I'. Green i. 549, 550 Loan Association v. Topeka i. 416, -.'.7, 424. 425 Lobb I'. Stanley i. 130; ii. 513, 687, 691, 649 Lobdell V. Baker • ii. 40 Lochiel, The i. 255, 284 Lock V. Venables i. 344 Lock Co. V. Haihoad ii. 159 Locke V. Lewis i. 600 I'. Stearns i. 494 Lockett V. Wray i. 203, 204 Lockhart v. iieilly i. 454 Lockwood i\ Middlesex Mut Ass. Co. i. 499 V. Sturdevant i. 461 V. Thomas i. 165 Lockyer v. Ferryman i. 385 Lodge I'. Siuionton i. 385 Lonbottom's Ex'r. v. Babcock i. 454 London & Mediterranean Bank, In n ; Wright's Case i. 348 London & North Western Ry. Co. V. Glyn i. 667 London & Provincial Starch Co., In re; Gower's Case i. 349 London Assuranc Co. v. Dronnen i. 499 London, City of, w Wood i. 622 London Chartered Bank of Australia I'. Lampiere i. 201, 203, 204 London Dock Company, The, v. Sin- nott i. 318 London Financial Association v. Wrixliam i. 387 London (Jas Light & Coal Co., The, r. Nicliolls i. 317 London More. Discount, The i. 308 Long V. Hartwill ii. 044 V. Millar i. 575 ; ii. 598, 607, 021, 664, 666 Longbotham v. Berry ii. 245, 246, 247, 248 Longcrgan v. Stewart i. 15, 92, 93, 96, 97 Lonycst's Adin. i'. Tyler's Ex'or i. 206 Longridge v. Oorville ii. 517 Looniis r. Green i. 20 V. Murshall i. 468, 469, 492, 601 w. Newhall i, 115 PAoa Loomis V. Spencer i. 139 V. Wainwrifelit i. 13, 17 Loon, The ii. 52, 56 Lord V. Governor !. Commercial, &c. Bank i. 403, 406 Lowtl.er v. Lowther i. 87, 45), 502 Lozear v. Shields i. 140 Luanl's Case i. 403 Lubbock r. I'otts i. 543 Luby r. Hudson Biver R. R. i. 587 Lucas I'. Bcale i. 536 V. De la Cour i. 570 V. Dorrcin ii. 453, 477 I). Dixon ii. 070 V. JanifS ii. 592 V. Lucas i. 33 Luce i\ Prescott i. 638 Lucy V. Monfiet ii. 423, 473 Luders v. Anstcy ii. 644 \m ii:^ Jl :!. i ii -ii ! V ■■■{ i'i ; z i i • ■) 1 ■ ■' ! l-\ I » M TABLE OF CASES CITED. Paoi Luey V. Bundy i. 123 Lulu, The i. 267, 278, 281 Lumley v. Palmer ii. 635 Lumsden'c Case i. 122, 128, 349, 373 Lund's Case i. 337 Lupton V. Almy i. 457 V. White i. 26, 446, 448, 450 Luxemburg R. R. Co. v Macquay i. 803, 305 i. 432 Lyaiis I'. Munson Lyle V, Shiniiebarger ii.501 Lynch v. Dunsfurd i. 615 Lynde v. The County i. 434, 442 Lyndon v. Gorham i.497 Lyne v. Siesfleld i. 543 Lyon V. Cuibertson L 06. 496 V. Lenon il6. 94 V. Williams i. 601 Lyons v. Barns i. 100 Lysaght v. Walker U. 571 M. Maans v. Henderson i. 463, 674, 697, 660 Maber v. Maber ii. 274 Maberley v. Sheppard ii. 340, 354, 447, 460, 465, 476, 491, 604 Mabie v. Bayley i. 77 Maccord v. Osborne i. 127 Mace V. Cadell ii. 481 Macey i-. DeWolf i. 482 MacDonald t;. Longbottom ii. 6 ?1 , 650, 6''3, 671 Macgregor v. Dover & Deal Hallway i. 424 Machu V. The Southwestern Ry. Co. ii. 80 Mackay v. Commercial Bank of New Brunswick i. 388, 389, 340, 603, 606,613,617 I'. Ramsay i. 694 Mackintosh v. Mitcheson i. 265 V. Trotter ii. 262 Mackley'H Case i. 391 Maclaren "^tainton i. 344 Maclean v. i.inn i. 623 MacNaughton v. Osgood i. 300 Macnee I'. Gorst i. 638, 641 MacNellie >'. Acton i. 213 Macon Comity v. Shores i. 412 Macrcadv r Thorn i. 265 Macy i: Combs i. 468, 4»2 V. Tlie Wlialing Ins. Co. i. 528 V. Wlieeler i. 267 MRd. Mitchell V. Koe ii. 52 i. 130 li. 40 i 73, 77 i 122 i. 07, 90 i. 118, 180 i. 353 ; ii. 52U ii. 248 V. The Great Indian Railway Co. ii. 88, 80 V. Webb i. 605 Martin's Admr. v. The United States i.29 Martini ». Coles i. 642, 050 Martinez b. Ward i 228 Martins c Gardiner ii. 602 Martrick r. Linficld i. 47, 69 Marty n v. Gray i. 600 Marvin v. Ingles i. 139 I'. Wallis ii. 390, 393, .304, 428, 450, 170, 476, 401, (500 Marv, The Brig i. 272 Mar.V Ann, The i. 284, 200 Marve r Parsons i. 413 Marx, Matter of i 110 Mason, In le i. 14') V. Harris i 308 V. Lotiirop i. 11 V I'ritchard ii. 571, 603 «;. The H. Witbeck Company ii. 301 V. Wiiite i. 24 V. Wickersham ii. 412 Maspons i>. Mildred i. 673 Massey i\ Banner i. 447, 451 V. Beecher ii. 44 r. navies i. 607, 608 Masternian i-. Mabcrly ii. 663 Matlicr r. Fraser ii. 248, 244, 246, 248 Miithewman's, Mrs., Case i. 202, 203 Mrtt.'ion 1". Wharani Mattliews i\ Baxter V. Brise I". Cowan V. Draf^and ('. Whittle Matthewson i\ Clarke n. 626 i. 139, 147, 160 i. 617 i. 1*5 i. 460 i.216 1. 497 ii Mattliios5i'ii & Weieher's Refri^. Co. V. Mc Malion's Admr. Mattice v. Allen Miutiri(jly v. Nye Mattock i: Kinglake Mauri v. Hefferman Mttvor IV I'yne Miuvaon V. Beane Maxted V. Morrii i. 130, 140, ii 307, 603 305, iVW i. 208 ii. 312 i. 636 ii. 2IMI i. VV) i. 324 Maxted i*. Paine Maxwell i^. Brown V. Montacute Maxwell's Trusts, Re May V. Le Claire i;. Skey t;. Sloan V. Smith I' Thompson Maydwell v. Carroll Mayer c. Muscatine Mayfield f. Wadsley Mayflower, Tiie .Mayhew v. Thair Maynard's Case Maynard v, Katon Mayo I'. Snow Mayor v. Kschback V. Lord V. Hay V. Reynolds Paoi 132, 322, 323, 344 ii. 4;i5 ii 644 i. 344 i 607 i. 195, 196, 197 i. 4 i. 205 ii. 606 ii. 266 i. 407 ii. 227, 228, 261 ii. 66 i 101 i. 10 i. l;30 i. 267 i.585 i 600 i. 414, 4m i. 585 Mayor and Burgesses of Carmarthen, The, I'. Lewis i. 320 Mayor of Carlisle i'. Wilson i. 26 Mayor of Hereford's Case, The i. 622 Mayor of Lyme Regis, The, v. Har- ley ii. 600 Mayor, &o., of Ludlow, The, v. Charl- ton i. 318 Mayor, &c. of Stafford, The, v. Till i. 317, 320 McAdam v. Walker i. 137 McAllister v. Barry i. 316 McAlpin V. Lee i. 14 McAnaily v. O'Neal i. 161 McCabe v. McKinstry i. 08 McCaleb v. Crichfleld i. 205 McCallie o. Mayor, &c. i. 428 McCarthy v. Henderson i. 132 V. Keaman i. 86 V. Terre Haute, &c. R. R. Co. ii. 211 McCarty i". The Steam Cotton Press Co V. Vickf^ry McClain v. Dtiy'is McClaren v. Franciscus McClenaghan v. Brock McClintock v Laing McClure c. Township of Oxford McClnskey v. Webb McComb i>. Dunch McCombio v. Davis McCombs i: McKennan McConnell v. Brillhart r. Hughes McCool V. Smith McCormick c. Littler «;. Merth V Trotter McCoy V. Hyatt V. Huflmann r. Morrow McCrackcn v. City of Cisco McCready v. Ilolmea i.468 i. 466 i. 139 i 396 ii. 40 ii. 666 i. 441 i. 4'A i 40( i. 105, 106, tiSO 643 581 i. !H i. 423 i. 140 i. 244 i. 31 i. 217, 210 i. 12.3, 126 i. 461 San Fran- i. 412, 625, 626 ii. 66 II. ii. Iviii TABLE OP CASES CITED. m I* Paoc McCreary v. McCreary i. 29 MeCreiglit v. Stevens i. 873 McCrillis v. Bartlutt i.l48 McCubbii. V. Patterson i. 190 McCullocli V. Dasliiell 1.497 McCullouxti ')■ Moss i. 378 V. Porter i. 98 V. Hoots i. 628, 66t5 McCutclieon v. McGahay i 152, 164, 168, 181, 188, 189 V. Miller i. 382, 384 McDonald v. Berwick ii. 614 V. Lynch i. 24 McDonnell r. Clmmbers ii. 692 McDougall V. Gardiner i. 308 McElroy v. Buck ii. 649 McEwan v. Smith i. 6-16 McKwen v. Morey i. 96 McFadden v. Vincent i. 142 McFarland v. Crary ii. 280 McFarlane v. Norris i. 674 McFarrow's Appeal ii. 681 McFerran v. Kinney i 150, 220 McGahay v. Williams i 108 181, 188 McGarrahan v. Mining Co. i. 420 McGau f. Marshall i. 131 McGee i-. McGee i. 186, 200 McGenness v. Adriatic Mills i. 604 McGinn v. Holmes ii. 278 McGowan v. American Tan Bark Co. i 498 V. Dyer i. 590 McGrath i; Clark i. 400 V. Keynolds i. 52 McGregor c. Kilgore ii. 214 McGuire i'. McGowan i. 466 McHenry r Davies i. 206 Mclver v. Humble i.291, 600 I'. Richardson ii. 603 McKane v. Bonner i. 67 McKeen v. Frost i. 222 McKenna, lie i 466 McKinney i'. Ward i. 246 McKinstry v. Tanner i. 426 McKnight i>. Dunlop ii. 289, 290, 296, 308 McLean v. Fleming ii. 13 V. Hess i. 227 V. Nicoll ii. 630, 569 McLemore v. Nuckolls i- '"246 V. Pinkston i. 160 McLeod r. vKtna Life Ins. Co. i. 234 I'. Dnitiimond i.405, 4<>0 V. Si'ii.y i. 409 McMastirs v. Reed's Executors i. 320 McMillan v. Michigan, &c. Ii. U. Co. ii. 162 McMillen v. Lee i. 116 McMullon r. Hcilberg ii, 624, 6()7 V. McMullen i. 200 McMurtrie r. Bennette ii. 666 McNeil V. The Tenth National Bank i. 4;J0, 603 McNeill V. Hill ii. 83 McNitt ti. Turner i. 461 McPherson v. Haskini i. 479 McPherson v. Rees V. Watt V. Watts McQuie V. Peay McKary v. Fries McVey v. Cantrell Mead v. Lord Orrery Meader v. Page Meadowcraft v. German Bank Meadow Dam v. Gray Meager v. Pellew Mealey v. St Clair County Means v. Williamson Meares v. Aiisell Meason t;, Pliillips Pasb i. 116 1811,312 i. 607 i. 239 i. S82, 385 i. 205 i. 384 i. 154 National i. 96 i. 404 i. 205 i. 432 ii. 602 ii. 627 i. 14 1. 406 i. 807 i 120 i. 201, 202 i. 106 ii. 435 i Tel. 138 496 Mechanic's Bank i;. Bank of Colum- bia i. 622, 673, 604 V. New York & N. H. R. R. Co. i. 390 V. New York. &c. R. R. Co. ii. 23, 24, 25, 27, 64 V. Railroad Co. i;. Scimyler Medbury i: Watrous Medora, The Meddowcroft r. Huguenin Meehan v. Sharp Meeker v. Meeker Melchert v. American Union Co. Melhado v. Porto Allegre, &c. Ry. Co. i. 025 Mel lor V. Lees i. 98 Memphis City Rd. Co. v. Mayor, &c. of Memphis i. 428 Memphis, &c. R. R. Co. v. Holloway ii. 197 Menasha v. Hazard Mence i: Mence Mendes v. Guedalla Menier v. Hooper's Works Menkens v. Lightner Menkina v. Lightner V. Watson Menzies v. Dodd Mercantile Trading Co., In re; Schro der's I'ase i .11 Merce.-, In the Goods of ii. 6'>1 Mercer County v. liacket i. 382, 407, 4W, 432, tidO Merchant v. Merchant i. Wi Merchants' Bank r. Bergen County i. 414 r. Livingston i. t'i(i:i D Marine Bank i. ti(l4 Merchants' Bank v. State Bank i. 105, 107, GOO, 6(13. 604; ii. i)5 Meredith v. Meigh ii. 324, 384, 3m5, 4iri. 469, 477, 478, 4h5, 488 V. Short ii. ^'76 Meres r. Anseil ii MO Meriel r. Wymonsold i Merriam v. Cunningham i Merrick v. Peru Coal Co. i V. The Burlington, &c. Co. i i. 430 ii. 5!i2 i. 6 : Telegraph i. 308 i. 142 i. 147 i 41)1 ii. 502 Ml 1'.'2 321 TABLE OP CASES CITED. lix Paob i. 116 311. 312 i.607 i. 5289 382, 386 i. '205 i. 384 i.l64 Dnal i. 9G i. 404 i. 205 i. 432 ii. 502 ii. 627 i. 14 nlum- l, 573, 604 Co. i 31K) . ii. 23, 24, 25, 27, 64 i. 406 i. 807 i 126 i. 261, 262 i. 195 ii. 436 i 138 n Tel. i. 496 ibc. By« i.025 i. 98 ^°^' ^\ 428 ""''^Ti. 197 i. 430 ii. 692 i.6 • llegrapl) ^^^ i. 142 i. 147 i 4111 ii. 602 ,;Scbro 1 "i ii. b-)! ",8" 407,408, ' 432, tiOO i. N) County i •llA i. ti*i;i i. W»l nki.105,10", 1)3. 604 ; ii. »» ;584, 3«r), 403, 478,4b5,4>^ ii. f'lb ii f.:!0 i .'•^41 i. V^i , i. 2!« i ICo. i- 321 Paoi i. 482 i. 27 i.402 ii. 592, 693 i. 261 i. 132, 322 i. 613 ii. 504 i. 522, 673 i. 384 i. 162, 163 Merrill v. Bartlett V. Ilunnewell I'. Walker Merritt v. Clason V. WaUh Merry ». Nickalls Mersey Docks Co. v. Gibbs Messer i'. Wooilman Jletcalf V. Williams Metcalfe r. Pulvertoft V. Siiaw Methodist Episcopal Church v. Jacques i. 205 V. Piekett i. 401 Metropolis w. The New England Bank i. 573 Metropolitan Counties Society v Brown ii. 244 Metropolitan II. R. Co. v. Manhattan U. K Co. i. 300 Meiix I'. Jacobs ii. 248 Mews V. Mews i. 83, 213 Meyer v. Dresser i. 574 r. Johnston i. 420 V. Muscatine i. 423 Meyerstein v. Barber i. 656 Mevnell v. Surtees ii. 599. 660 Michener v. Dale i. 43, 86, 87, W Miciii|,'!in Bank v. Eldred i. 400 Michigan Central R. R. Co. v. Min- eral Springs Manuf. Co. ii. 136, 159, 105, 166 I'. Myrick ii. 177 Michigan In-;. Co. v. Leavenworth i. 397 Michoud V. Girod i. 303, 462, 453, 454, 463. 503 Mickles v. Roclicster City Ban < i 377 MiiMleport o. .^^tna Life Insur. Co. i. 410 Middlesex, The Ship i. 635 Middlesex Turnpike Corp. v. Tufts i. 541 Midilleton v. Fowler ii. 6, 7 I'. Mullica i. 417 V. Pollock i. 460 Midliiiid Ry. Co. V. Taylor i. 603 Miers V. Z. & M. T. Co. Mill)urn V. Giiyther Mildniay v. Mildinay Mililred v. Maspons Milford ('. Mayor Miitriite r. Kebble Miles r. Groton V. Laiif^loy V. Mi^Ilwraith f. Miles I'. Starr Millard n. Hewlett r Millard Milledjie v. Laman I Miller r. Billingsby r. Brown I'. Oaig V. Fletcher I'. Glontworth I'. Irvine V. Jc£frie8 i. 428 i. 482 i. 199 i. 673, 574, 641 i. 17 i. 98, 105 ii. 476 i. 456 i. 628, 620 ii. 266 i. 400 i. 126, 130 ii. 56(i ii. 653 i. 73 i. 214 i. 142 i. 293 i. 2.36 ii. 637, 581 i. 88 Pass Miller v. Life Ins. Co. 1.590 V. Mackay i. 602 V. Miller i. 84. 43, 86, 87 V. Palmer i. 263 i;. Peck i. 228 V. Shaw i. 17 r. Thompson i.269 V. Williamson i. 460 Millcs v. Fletcher i. 259 Mills V. Bagley i. 85 i;. Ervin i. 453 i;. Fowkes u. 309 V. Goodsell i. 466 V. Graham i. 133 t>. Hunt i. 636 ; ii. 365, 455 V. Scott i. 374, .395 r. Smith ii. 108 V. Wyman i. 86, 116 Millspaugh v. Putnam i. 47,67, 73,77 Milner i\ Field i. 621 Milnes v. Busk i. 202, 204 Miltenberger v. Cooke i. 636 V. Logansport Ry. Co i. 420 Milward v. Hallett i. 261, 266 Milwaukee & St. Paul Railway Co. v Smith ii. 181, 183, 184 Mims I'. West i. 38.3, 434 Minck V. Martin i. 166 Minet, Ex parte ii. 616, 526, 552, 553, 554, 671 Mining Company v. Anglo- Calif or- niRn Bank i. 600 V. McM.ihon i. 604 Minneapolis Association v. Canfield i. 376 .Minneapolis & St. Louis Ry. v. Co- lumbus Rolling Mill ii. 604 Minnesota Co. v. St. Paul Co. ii. 250 Minor v. Mechanic Bank i. 297 V. Mechanics' Bank of Alexan- dria V. Rogers Minshall v. Lloyd Mires i'. Solebay Mitchell's Case Mitchell's Case ; Charcoal Iron Co, Mitchell ••. r-lver V. Ell-. 1-. Gill V. Homfray V. Kingnmn V. La page V. Otev V. Smith V. Treanor .395 i 67, 73. 75, 77, 82 ii. 252 i. 551 i. 131 In re Norwegian i.373 i. 397 ii. 482 i. 13, 17, 20, 23 i. 65, 83 i. 138, 142. 148 ii. 607 i. 241 i. .36, 70, 86 i. 152, 163. 166 Mitchell, A., v. City of Glasgow Bank i. .341 Mitchell, N., v. City of Glasgow Bank i. .341 i. 267, 274, 284 i. 200 i. 830, 332, .341 1.98 U. 268, 504 i. 47 Mitchesnn i'. Oliver Mix r. Mix Mixer's Case Mixer r. Cook V. Howarth Mizell V. Burnett 'I il'l li : 1 II: 1 K i m ill i.!^ ■1. ll! 1 im TABLE OF CASES CITED. Paob Mizen v. Pick i. 158, 163, 192 Mobile & Girard R. R. Co. v. Cupe- land ii. 10:^ Model Lodging House Assoc, v. Bos- ton i. 230 Moens i'. Haywortli i. 610 Mot'ser v. Wisker i. 125 Moldaut, A'.r /«i).'. Alaire V. Perkins Montagu, Ex parte Montague v. Barun V. Benedict V. Espinasse <,. Maxwell V. Perkins Montclair ;;. ivomsdell Monte Allegre, The Montesquieu v. Sandys Montgomery Bank, The, v. bany City Bank Montville v. Houghton Moody V. Paine Moon V. Towers Moor V. Newfleld Moore v. Abernatby Campbell Citizens' Piqua Clementson Conham Dalton Davis Denton Garwood Hershey V. Holland Metropolitan Bank Moore Page Sanborn Sclioppert Sibbald V. Small V. Stadden V. Stokes V, Wilson 1. 107 i. 87 i. 481 L 86, 87, 89 i. 126 i. 1.39 i. 16, 93 i. 603 i. 33 i. 208 ii. 40 i. 299 i. 98 ii. 266 ii. 269, 276 ii. 586 i. 632 ; ii. 481 Moore & Uobinson's Banking Co., Ex fitirte ; 7n r« Armytnge Moorsom v. Kymer Moran v. Commissioners V. Jones V. Miami County Mores v. Carham Morgan, Ex parte V. Chetwynd II. 246 ii. 484 i. 882, 600 i. 288 I 407, 408 i. 105 i. 464 i. 162 Pa« i. 649 ii. 458 ii. 608, 606, 644 i. 164 Morgan v. Conchman V. Gath V. Halford V. Hughes V. Malleson i. 32 V. Hailroad Co. i. 397 V. Uicharda i. 628 V. Sykes U. 484 Morgan's Assignees v. Shinn i. 267 Morgan County v. Thomas i. 428 Morison v. Thompson i. 608 i;. Tumour ii. 685 Morley v. Boothby ii. 526 Morrell v. Codding i. 601 V. Wootten i. 691 Morrill v. Aden i. 129 Morriile v. American Tract See. i. 424 Morris v. Bohle i. 193 V. Burroughs i. 61 V. Cheney i. 428 V. Cleasby i. 671 r. Norfolk i. 149 V. Wilson ii. 618, 652, 656, 657, 666 Morrison v. Kinstrae i. 450 V. Thistle i. 239 Morse v. Brainerd ii. 164, 166, 156 V. Connecticut River R. K. Co. i. 604 V. Royall i. 464, 469, 466, 503 Morss V. Stone i. 92, 100 Mortimer v. McCallan i. 539 Mortimore v. Wright i. Ill, 112 Morton v. P.iy i. 263 V. Dean ii. 644, 645 V. Fazan i. 192 f. Lamb ii, 312, 623 V. Tibbett ii. 280, 316, 373, 374, 376, 877, 379, 380, 381, 383, .384. 385, 387, 398, 399, 418, 423, 426, 428, 430, 460, 453, 454, 460, 462, 464, 468, 469, 470, 477, 478, 4'J3, 494, 496 Moseley v. Buck i. 463, 602 Mosely v. Cressy's Co. i. 125 Moses V. Stevens i. 125 V. Taylor i. 100 r. The Boston R. R. ii. 169 Moses Taylor, The i. 2»7 Mosher v. The Southern Express Co. ii. 214 Moss, Ex parte i. 308 i>. Culver ii. 266 V. Oakley i. S'JO V. Sweet ii. 412 Mossy V. Mead ii. S16, 644 Motlev V. Head i. 148 Mott V. Comstock i. 153, 165, r.i2 V. Hicks i. 320 V. Ruckman i. 291 V. The United States Trust Co. i. M Moultrie v. Fairfield i. 428 V. Jennings i 47 Mountain v. Bennet i. 147 Mountford v. Gibsr.n i C24 Mountstephen v. l, 644 Neilson r. .James i. 544 Neimcew'-z r. Gahn I. 208 Nelson iv Brown i. 94 V. Dubois ii. 648, 680, 623 1^ Jt!: ■:|j| •I I J 1 ; iii '■h !■■ '1 It :.i i'i r 111 '!i m l! • I ^' ill J,: \ ll'^rt ^ : ;: . 1 :h i:' 1 ;' ' J 1:1 Ixii TABLE OF CASES CITED. Paoi NcUon I'. Dunconibe i. 143 V. Plimpton i. 9« V. Stucker i. 184, 323 V, Wlictmore i. 662 Nelson, The i. 282 Nene Valley Drainage Commissionerg V. Dunkley ii. 673 Nerot V. Buriiand i. 408 Ncsbit c. Burry ii. 310 Ncsliam «j. Selby ii. 071,673 Nestor, The i. 202, 271), 280 Neversink, The i. 208 Neville, In re ; Ex parte Wliite i. 683 New Albany v. Burke i. 391, 403 New Bedford v. Cliace i. 193 New Brunswick & Canada Railway Co. V. Muggeridge i. 316, 325, 32C ; ii. 410 New Brunswick Land, &e. Co. v. Conybeare i. 31(i, 382, 333, 013 New Kni;lund Insurance Co., The, v. The Sarah Ann i. 262, 268, 2ry.>, 260 201,200, 278 New Haven, M. & R. R. R. Co. i. 410 New Hope Delaware Bridge Co. v. Perey i. 389 New Jersey Steam Nav. Co. v. Mer- chants' Bank ii. 200, 624 New Orleans v. Clark i. 437 New Orleans, &c. U. R. Co. v. Harris i. 299 New Providence v. Halsey i. 413, 419 New Sombrero Phosphate Co. v. Er- langer i. 343 New York, In the City of i. 291 New York & New Haven R. R. Co. v. Schuyler i. 390, 603 ; ii. 16, 18, 19, 22, 24, 26, 31, 06 New Y^ork Firemen's Ins. Co. i'. Ely i. 320 V. Sturges i. 320 New Zealand & Australian Land Co., The, «;. Watson i. 462, 641 New Zealand Kapanga Gold Mining Co. /n re ; Ex fiurte Tliomas i. 10 Newbery v. Armstrong ii. 623, 626, 627, Newbury v. Armstrong NewcoMib V. Brooks r. Clark Newell r. Hussey r. Radford Newhall r. Dunlop Newry, &c. Ry. Co., The, v. Moss Newsome v. Boyer Newson v. Tliornton Niblet i». Sniitli Nicely v. Nicely Nichol V. Mayor, &c. f. Steger Nicholas v. Adams Nicholo V. Allen Nicholle v. Plume NichoUs V. Le Feuvre 503 ii. 526, 670, 624 i. 299 ii. 016 ii. 278 ii. 618, 621 i. 636 i. 403 i. 200 i. 660 ii. 251 i. 186, 198, 199, 200 i. 428 i. 246 i. 36, 37, 42, 46. 69, 86 i. 111,112 ii. 336, 446, 456 i. 623, 024 Nichols V. Allen I'. Danvcrs V. I)e Wolf V. Johnson V. Raynbred Paoi ii. 581 i. 190 ii. 60 ii. 606 ii. 603 Nicholson v. Bower ii. 400, 401, 402, 408, 404. 406, 406, 408, 410, 417,418, 421, 426, 430, 431, 468, 472, 478, 477, 486. 494 V. Bradford Union i. 318 V. Chapman i. 288 V. Drury Buildings Estate Co. i. 216 i;. Pavitt ii. 468 V. Ricketts i. 478, 491 V. Spencer i. 122 V. VVilborn i. 122 Nickalls v. Ferneaux i. 347 V. Merry i. 322, 323, 840 Nickerson v Nickerson i. 67, 73 Nickson v. Brohan i. 486 V. Jessom i. 9, 17, 21 NicoU V. Muinford i. 497 Niell V. Morley i. 139, 140, 141, 148, 192 Nightingale i-. Withington i. 110, 128 Nimmo r. Walker i. 892 Nissen v. Bendixsen i. 189 Nixon I". Brownlow i. 404 I'. Green i. 404 N. Mitchell i'. City of Glasgow Bank i. 341 Noakes i". Morey ii. 815, 581 Noble V. Kennoway i. 670 i;. Kreuzkamp i. 232 V. Smith i.33, 54 V. Ward ii. 633, 634 Nockels 1). Crosby i. 643 Noel V. Kinney i. 231 Nolan r. Jones i. 133 Norcross v. Rodgers i. 188 Norman v. Phillips ii. 320, 324, 830, 369, 360, 362, 363, 304, 367, 371, 374, 377, 378, 396, 390, 463, 464, 477 V. Villa. i. 194 Norris v. Blair ii. 681 V. Dodge i. 116 V. McCarnia i. 228 V. Vance i. 129 North V. Miles i. 010 Northcote v. Doughty i. 127 Northern Bank of Toledo v. Porter Township Trustees i. 416, 417, 418, 420,421 Northey v. Johnson ' ii. 222 North River Bank r. Ayniar i. 601 ; ii. 26, 27, 04, 66, 08, 69, 70, 71, 72, 73 Northrop v. llale i. 52 North Star, The i. 255 Northumberland, Duke of i. 128 Northwest Transportation Co. v. Beatty i. 299, 304, 306, 308 Norton v. Herron V. Rhodes r. Shelby County t;. Simonds V. Turrill 1. 629 i. 161 i. 410,411,412 ii. 643 i. 201, 203, 205 TABLE OP CASES CITED. Ixiii Norton i'. Woodruff V. Young Norway v. Grant 1'. Howe Norway I'lains Co. Maine Railroad V. Pao* I. 14, 26, 93, 100 I i. am ii. 15 , i. 808. 459 Boston & ii. 107 Norwcjjian Cliarcoal Iron Co., In re ; i. 373 i. 5-J(i, 697 i. 272, 274, 2H8 i. 142 i. 137 Mitclii'll's Case Norwood c. Dri'sser Notara c. Hi-ndiTsou Nottinifton, A'r pmic Nottridi,'c r. Tiie I'riiuv Noyes i-. Rutland & Burlington Rail- way i. 370; ii. 158 r. Spauldins i- 404 Nuctzel !•. Xui'l/ol i. 201 Nutjgent V. Tlie Supervisors i. 382, 4i>4, Nunns v. Givins i. 240 Nurse v. Craig i. 1!M) Nutt V. Butler ii. 247, 257 I'. Morse J. 77 Nutting V. Connecticut River U. R. Co. ii. 106, 107, 143, 166, 171 O. Oakcs V. Insurance Co. i. 409 j V. Turquand i. 315,317, 326, 329, 330, i 331, 337, 341, 3t)(i Oatcs I'. Hudson i. 405 V. National Bank i. 3H(j Ocean, The i. 284 Ockenden c. Ilenly ii. 315 Odell V. Buck i. 142 ()di')rne r. Ma,xey i. 401 O'Donnell i-. Leeinan ii. 559, 562, 609 O'Donoliue v. Stammers ii. 021 Oi'lricks I'. Ford i. 516, 524 Ollicer v. Young i. 428 OgtU'U r. County of Daviess i. 409, 429 Ogilvie r. Foljanibe ii. 580, 598, 629, mH V. Knox Insurance Co. i. 391, 402, 400 Ogle V. Atkinson i. GoO V. Earl Vane ii. 631, 035, 638, 639, 641, 042 Oglesby v. Yglesias i. 635 ; ii. 27 O'llasjan v. O'Hagan i. 200 Ohrloff i\ Briscall ii. 89 picott f. Supervisors i. 383, 4r-'. 414, 434 Old Colony R. U. Corporation v. Kvan.s ii. 614 Oldirsliaw v. King ii. 617 Olivo i: Smith i. 639 Oliver r. Cant i. 454 ». Houdlet i. 110, 118, 128 f. McClellan i. l'Jt4 Oltman r. Mack i. 129 Oniri. The i. 284, 289 Oneida Bank v. Ontario Bank i. 436 Onions r. Cohen i. 021 Pasi ii. 221 i. 129 i. 203 ». 279, 643 i. 312 Oriental Inland Steam Co. v. Briggs i. 3.')5. '.m Orleans i-. Piatt i Ormerod's Case Ormund, Lord v. Anderson ii. Orb, Ex parte Ordinary c. Wherry Orelia, Tlie Organ v. Stewart Orgill's Case 427. 432 i. 371 611, 563. 594. 002 i. 234 i. ii. i. i. ii. Onward, Tho i. 265, 256, 278 Orr V. Wliite Orrok r. Commonwealth Ins. Co. i. 272 Ortlort V. Klitzku ii. 608 Orwiggs V. Myers i. 386 Osborn r. Nelson i. 193 i;. rheli)s Ii. 628 Osborne v. Adams County i. 417 Osey r. Gardner i. 7 Osgood r. Laytin i. 402 Osnianii, The i. 255 Osmond r. Fitzroy i. 144 Osterhout v. Shoemaker i. 142 Ostrander r. Brown i. 631; ii. 120 Ostrom I". Jacobs i. 492 Otoe ('ounty i-. Baldwin i. 420 Ottawa V. Curvy i. 410, 417 V. National Bank i. 388. 417 Ottaway r. Hamilton i. 194 Oulds r. Harrison i. 543 Outram i'. Morwood i. 196 Outwater o. Dodge ii. 287, 497 Overend & Gurney's Case i. 335 Overend CJurney Co., In re; Ex parte Oakes i..328 V. Gibb i. 316. 343 Overend (Jurney Co., /« re; Musgravc & Hart's Case i. 354 Oakes r. Turquand i. 329, 330 Overseers of Poor v. Bank of Vir- ginia Overton v. Bannister Owen V. Goocli V. Legh t;. Long V. Thomas V. White Owens I'. Dickenson V. Phelps Owenson r. Morse Owings (,'. H)dl f. Trotter Owstans v. Ogle Oxenden r. Oxenden Oxford's Case, Earl of Oxley I'. Young Ozley V. Ikelheimcr i. 460 i. 1.34 i. 630 ii. 227 i. 1.30 ii. 652. 606 i. 113 202, 204, 205 i. 130 i. 17 410, 627 i. 122 i. 482 i. 199 i. 5't3 ii. 603 i. 206 1. Pacific, The i. 284 I'aciflc R. R. Co v. Henshaw i. 404 Pack V. Mayor of New York i. 581 Packard i-. Nye i. 623, 601 .; I : HI: ' m (i, r 1 : i; ,i:ii:i 1 m- ♦'fifi f^ Ixiv Packard v.Richardgon ii. 617, 632, 633, 6ii4, 6;}&, 6H7, 638, 689, 640. Ml, 543, 644, 660, 6o2, 664, 656, 502, 6bO Packer v. Steward ii. 316 V. Wilson U. 573 Packford v. Maxwell i. 17 Packet, The i. 261, 278, 202 Packet, The Siiip i. 2: Chase V. Warren Peru, Inliabitants of, v. Poland i. Peruvian Railway Co., In re; Craw- ley & Robinson's Cases i. 366, 366 Robinson's Case i. 366, 366, 367 Wallis's Case i. 365 Peter v. Beverley ii. 278 Peters v. Ballastier i. 100, 201, 203, 202 V. Fleming i. 110, 119, 100 V. Fort Madison Co. i. 87 V. Gooch V. Uayward V, Lord Peterson v. Ayre V. Laik Petrie i'. Clark V. Gueipli Lumber Co. Pettigrew v. United States Pettitt V. Mitchell ii. 362, 412, 460, 451, 470 Petty V. Roberts i. 130 Peyroux v. Howard i. 279, 280 Phelps I'. Walther i. 198 V. Worcester i. 110, 122 Philadelphia & Baltimore R. R. Co. I'. Quigley i. 000 Philadelphia Steamboat Co. v. i. 334 i. 105 i. 126 i. 23, 376 i. 131 i. 405, 400 i. 367 i. 102 Brown Philadelphia, &c. R Maryland Philbrook v. Belknap Philips V. Burg Phillimore v. Barry Phillips »'. Batenian V. Bistolli II. 4.32 V. Graves I'. Hnth V. Kerby • V. McCall V. North Carolina R, V. Ocmulgee Mills v. Purington Phillipson v. Gatty I'. Hayter ii. 268 R. Co., The, V. i. 434, 440 i. 24 i. 195 ii. 613, 5.S0, 547, 503, 002, 007 ii. 520 220, 835, 340, 359. 435, 443, 470, 495 i. 240 i. 641, 042, 643, 045 i. 241 i. 2<.)3 R. Co. ii. 101 ii. 271, 270, 309 1.482 i. 454, 466 i. 168, 163 Philpot V. Sandwich Manuf. Co. i. 130 ■h. V U \ ^ I :\^ lli*l^ll ■ :i ■ ' p 1 ^ Ixvi TABLE OF CASE8 CITED. Paoi Paoi Phipppn V. Stlckncf i. 605 Plosi V. Thomai i. 228 l'lii|i|i8 V. Ki'lly 1. '^41 Plumcr V. Lord 11. 104 I'. Kcdnwkk i. 151, 215 I'lumer's Case, Sir T. 1.650 IMicubi.', Tlif i. 20'. 270. 291 ; ii. W, til I'neuniatic Uas Co. v. Berry 1.200 riioH iliute of Liiiiu Cu. t;. Clreen i. ;121 Pochin V. Robinowa i. 047, 048 ricuid i\ llino i. 201, 202 Podger's Case i. 024 c. McCormick i. 17 Polhili I'. Walter 1. 010 1 ii. 27 Pkkard r. Uauks i. 18, 400 Police .Jury v. Britton i. 420, 433 f. Iliiiu i. 11)2 I'ollak v. Graves i. 280 ?•. Scars 1. ;W)5 I'ollard V. Bailey 1.374. 403 Pickt-rell v. Morso i. l.'its ('. Vinton ii. 64 I'icktTirig ('. Uuok i. 043; ii. 81, 40, (JH, Pollock V. Stables i. 344, 538, 502 60, 70 i>. The National Bank i. 403 r. Dowson i. 010 I'olly I'. Walker i. 241 V. I'ltkeriiig i. 16; J I'olmer v. Murray i. 233 Picket c. Joliiia i. 100 I'omey v. Camors i. 08 Picki'tt V. Cloud ii. 312 I'oinpclly V. Ureen Bay Co. Pontida, The i.412 l'id({iii r. {'rum i. 113, 115, lOo. 1S3 i. 283 Piedmont Manufneturing Co. v. Col- Pool i\ Reed i. 232 umbia, i&c. U. U. Co. ii. 168 Poole's Case ii. 242, 262 Pierci' ('. Hank i. 62 I'oole I'. Middleton i. 362 t;. l)urrout;li8 i. 77 Pooloy V. Driver i. 483, 485. 400, f)01 i;. Insuranco Co. i. 4oy I'opham c. Brooke i. 462 I'. Sclit'iick i. 14, 10, 20, 93. 100 Pope V. Nickerson i. 260, 263, 200, 276, 283 Piety V. Stace i. 466 I'ordage v. Cole ii. 280, 315 Pieve Superiore, The i. 280 Portalis i-. Tetley i. 038, 046 I'igot V. Cubley i. 106 Porter v. Bobb i. 105 Pike V. Ualch i. 259, 200, 269 V. (lilkey ii. 074 V. IJriK'lit i. 24 V. Pittsburgh Bessemer Steel Co. V. Fitzgibbon i. 192,201,204,206, i. 374 216 V. Porter i. 200 V. Ongley i. 569, 570 V. Talcott i. 12, 24 ; ii. 412 Pilbrow V. Pllbrow'3 Atmosplieric Post V. Jones i. 261, 272 lly. Co. i. 641 «'. Kimberley i. 460 Pillaiis 1'. Miorop ii. 524, 568, 680 V. Koch i. 161 Pilling V. Armitage i. 6i»4 V. Pearson i. 601 Pilmore c. Hood i. 600 Potharier i-. Dawson i. 106, 664 Pineliell v. Salter i. 626 Pott I-. Eyton i. 600 Pincke v. Curteis ii. 312 Potter V. Duffield ii. 608, 619,020,067, Pindar v. Insurance Co i. 4!»y 060, 060 I'ine CJrove v. Talcot i. 407 V, McDowell i. 303 Pinkett i-. Wriglit i.448 V. Ocean Ins. Co. i. 272 Finkliam v. Matfox ii. 435, 495, 603 V. The Bank of Ithaca i. 301 Pinkston v. McLi more i. 246 «;. The Ontario M.... Ins. Co. ii. 023 Pinney v. Gleason i. 13, 14 Poulter V. Killingbeck ii. 224, 261 Pitcher r. Lycock i. 131 Powder Co. i>. Hurkhardt i. 14, 16, 93, 94 Pitt I'. Bridgewator ii. :i7 Powell I'. Edmunds ii. 542 V. Shew ii. 260 V. Forest i. 47 r. Smith i. 147, 148 V. HcUicar 1. 79, 87, 88 Pitts r. Mngnum i. 79 V. Hoyland i. 650 Pittfhiirg Car Works v Bank i. 303 V. Lovegrove i. 504 Pittsburg, &c. Railway Co., The, V. V. Mills ii. 165 Morton ii 103 Power r. WelU i. 16 Place 1'. Fapp ii. 244, 247 V. Ix-ster i. 230 Plnnclib V. Golburn i. 621 Powers I'. Fowler i. 620 Plank Road Co. v. Rice i. 402 Powis V. Harding i. 330 I'lantamour v. Staples i. 293 Powlea I'. Innes i. 025 Planter's Bank v. Farmer's Bank i. 100 Pozzi V. Shipton ii. 90 c. Stale Bank ii. 66 Prather v. Prather i. 200 Planters' Bank, The, v. Sharp i. 303 Pratt V. Boston & Albany R R. i. 603 Plaster V. Piaster i. 113 V. Bryant i. 26 Platner v. Platner j. 201 V. Reed i. 280 Pleasants v. Pendleton i. 27 V. Swaine i. 624 Plevias v. Downing ii. 037, 038. 039, 040. V. Swanton i. 410, 026 041, 642, 643 V. Taunton Copper Co. i. 403, 603 TABLE OP CASI-a CITED. Ixvil Prendorgast v. Turton VkOM i. 806, 308, 861. 4ul) Prpntlce v. Acliorn i- HH I'ri'nitlunt, &c. I . Thompson I. 4|ia Pri'ston I'. Mirccau li. 070 ,.. Tulbiii I- :W2 i. 453, 454, 405, 502 i. 1)5 I 130, 141 ii. (CM), 031 i. laa, la-i i. l.'!3, l:U il. 218, 334, 437, 443, 41)1 ii. 5'.):: i. 450 i. 403 i. <)0 i. 205, 241 i. 548, 5-l'J i. 201 ii. 5<.)8 i. 255 I. 137, 144 Provost V. (irntz Pril)lile r. Ki'iit Pricf I'. HiTriiigton V. Dyer V. Funiiaii V, Hfwt'tt V. lil'll V. I'll)f0 f. liiiUton Prioo and Urown's Ca«o Pridit'tt c. Cook i'rii'st V. Cone Priestly r. Fernio Priiuv I'. Oci'aii Ins. Co. r. I'riiifi' Princi' Georno, Tho Priiiscp I'. I \> CO Soinhro Priming Iiduso t'. Uoard of Trustoes i. 75, 82 i. I",t7 i. 1!)4 Proctor V. .Fones ii. S35, 386, 438, 44(1. 450. 470, 478, 4itl I'. Soars i. 130 ProiljiiTs V. Frnzier i. 145 Proiiiifoot V. Mantefloro i. 613, 614, 615 Provincial Insurance Co., The, r. Li'due i. 528 Provost V. P,r 'lin i. 201, 209, 2'Jl Piijfh ('. Sliiirniaii's Case i. 347 Push's III. . .jl's lloirs i. 603 Pullnmn r. Ujuon i. 391, 395, 403 i. 73 ; i. 454 Prolmrt r. Krouth I'roluT ('. Cobli Piilvortoft I'. I'lilvortoft Purcoll i\ McNaniara r. Purcoll Purcholl r. Salter Puryer v. 'I'lionipaon Putnam r. Sullivan V. Wise Pyo, Ex parte Q. Quackenbusli v. Sawyer Quark's r. Lacy (^Uiiniian r. Uurnett (jiiav r. McNinch (iu.vn ■■. Mill i. 201 i. 597 ii. 49 i. 397, 399 i. 40n i. 33, 73, 87 i. 469 i. 40.') i. 274 i. 552 i. 137 Paoi Quincy r. Jp.ckson I. 416 c. Stool i. 381 Quiiicy, Mo. & Pac. R. R. Co. v. Morris i. 419 Quintard v. Bacon ii. 436, 602 R (iueoM, riic, V. Carnatic Railway Co. i. 215 IV Shropsliire Union Co. i. (103 r. Tlio Coinniissionors for the Pav- ing of Choltonhain i. 022 Qui?onsl)iiry v. Culvor i. 417 Qucriiia Stamplialia, The ii. 60 Quicif u. Kittridgo i. 392 Quiniby v. Vanderbilt ii. 214 Quincov V. Ex parte ii. 247 V. Cooke i. 416, 419, 422 Rabonc v. Williams i. 462, 526, 567, 668, 671, 595, 046 Rahorg V. Peyton ii. 5;J5 Hahy r Ridohalgh i 456 Radford r. Mclntosli i. 426 V. Nowoll ii. 003 I'. Wostoott i. 123 Rngdsalo r. Howker . 79 0. Oossott i. 246 Ral.illy V. Wilson i. 15, 03, 94 Raikos r. Todd ii. 602. 571 Railroad r. Koontz 3.S7 V. Pratt ii. 159, 107, 1 72, wi 174 175, 209 I'. Stocknrd ii. 197 Railroad Hank r. Lowoll 410 Railroad Co. v. Falconer 428 I'. lianning 681 I'. Howard 406 V. Manufacturing Co. (157 (>. National Bank i. 386; ii. 171 V. Poor i. 303 Railroati Companies i'. Schutto i. 429 Rail ton c. Hodgson i. 562. 507 Railway Company i>. Allcvton i. 390 Rainsford v. Fonwick i. 111. 119 Rainwater r. Durlian i. 110 Ralls I'ounty r. United States i. 410, 425 liainazotti r. Bowring i. 529 Ramsbottom c Mortloy ii. 007 Ramsdon r. Broarloy i. 215 r. 1 )y8on i. 593 Ramsgato Victoria Hotel Co . r. (■ol(lsn)id i. 304 Ramsgato Victorial Hotel Co . 1'. .Montotioro i. .304 Rnmsliiro v. Bolton i 315 Randall c. Krrington i (121 )'. Howard i 606 r. liUnt i. •J29 RaniU-ll's (^aso i. '••4 Ranger r. (iroat Western Rv. Co i 310, 33-j; r W. 000 022 Rankin r. Tlio American Ins. C( 1. i 628 r. Waguolin i. 37, 3!) r. West i 2-.'8 Rami r. Hughes ii . rc>4 Rimnoy r. Barlow i ,V.t5 Kapliaol r. (loodman i (•)10 Bapploye »•. Adoe ii ,^^,02 Ratcliffo r. Davis i. 105 197 Rathhono c. Budlong i 6;5« Raun tv Reynolds i 457 Ravenscroft v. Hunter ii .592 Raw r. I'ote i 205 Rawlins v. Wickhara i. 326, 827, 466 I' WW i'- '( Ixviii TABLE OP CASES CITED. Paoi Rawlyns v. Vandyke i. 163, 181, 182, l'.)5 PawHuri V. Spviigier i. '£i'I Key r. Siiniiiuns i. 77 Kaybold t;. Kaybold i. 222 liayiiiond v. lieariiard i. 14, 21 t>. LoyI i. 114 V. Sfllick i. 87 Rayner v. Grote i. 570 Kead >.'. Anderson i. iAH V. Nash ii. 677 V. lA'gard i. 143, 152, 158, 161, li»2 V. Pliittsmoutli i. 422 Rende r. Coinniercial Ins. Co. i. 266, 208 Htadlioad f. Midland Railway Co. ii. 93, 04, 1)5 Rcmick v. Sandford Ui-mii'r o. Ringrove Renaux v. Tc-akle Renean v. Teakle Kennie v. Morris Paoi ii. 286. 435, 496 i. 290 i. 110, 152 i. 163 i. 132, 323 Reavis v. Rcavis Rebecca, In re Reildel v. l>(ibrce Tiedden v. Baker Redfield V. Tegg Redgrave v. Hurd Redlich V. Doll Redpath'g Case Redpath v. Wigg Red Hock r. Henry Reed r. Abbey V. Batchelder f. Bditliears V. Evans V. Modraw V. Mi-ore V. Norris V. Heed V. Robinson V. Warner Reedie c. L. & N. W, Ry Reep V, Goodrieli Rees V. Wrtters Reese v. Beck V. Ruth Reese Silver Mining Co. v. Smith Co. i. 1H6 i. 636, 641 i. 70, 87 i. 138 i. 92 i. 60«1 i. 397 i. 3M2 i. 493 i. 423 i. 16, 93 i. 118 i. 130 ii. 5.37 ii. 644 i. 161, 179 469, 502 i. 165 i. 82 463, 469, 602 1. 1. 340 ii 603 i. 201 i. 695 i. 82 I. 324, 325, 613 Reese Silver Mining Co., In re ; Smith's Case i. 325 Reeside, The i. 527, 5ti0 Reeve r. Conyngham i. lt>3 I'. Davis i. 291 Reeves /■. Capper i. 47, 104 c. The State Bank 1- 594 V. VVfiister i IfiO Regeio v. Braggiotti i. 409 Regina v. Churchwardens of St. Mich- ael ii. 274 I', fieiicral Cemetpry Co. i. 328 I'. Inhabitants of Lee ii. 247 Roherd's Adm. v. Clem i. '.♦« Rehoboth r. Hunt i. 469 Rcid's Ciise i. 128, 350 Reld I'. Hoskins i. 17 r. Teaklo i. 162, 158 Roillcy V. Reillpy i. 198 Reilly »• Oglebay i. 2m» Reinicker v. Smith i. 147 Relf »'. Hundel i 387 Relyea v. Rolling Mill Co. ii. 66 Renssalacr & Washington Plank Road Co. V. Westel i. 402 Reorns v. Lewis 1. 267 Reuss V. Picksley ii. 616, 663, 600, 674 Renter i-. Electric Tel. Co. i. 320, 603 Revens v. Davis i. 482 Rex V. Bank of Fngland i. 320 V. jiiggs i. 320 V. Collector of Customs i. 482 V. Coin i. 378 V. Corporation of Bedford i. 424 V. Dvson i. 146 V. Ffintan i. 187, 192 r. Forrest i. 378 V. Great Mario w i. 378 V. Hales i. 397 V. Head i. 378 V. Hull Dock Co. ii. 222 V. Justic' de Dorchester V. Pritchard V. Richardson V. Rodd t. Shalfleet V. The Commissioners, &e. V. The Mayor, &c. of London V. Win wick V. Wykes Reynell i*. Sprye Reynolils, Ex parte V. Carpenter V. Continental Insurance Co. V. Harris «;. Hiwett V. Hicks V. Jex V. New Salem 378 146 222 222 222 222 222 379 378 452 454 581 i. 487 i. 457 i. 465 i. 468, 402 ii. 11 i. 409 I. i. ii. ii. ii. ii ii. i. i. i. i. ii. V. North Eastern Railway Co. ii. 91 V. Swettser »', Tappan Rhadamanthe, The Rhea v. Rhenner Hibon r. Railroad Companies Uicc V. Austin i;. Boyer V, ("arter V. Peat V. Peet I'. Railroad Co. Shepherd I. i. i. V. Rich r. Vnc r. Hatliaway Sydenham 113, 183 i. 291 2«)3. 279 193, 206 i. 404 i. 409 i. 133 ii. 5S1 i. 14H I. 138 ; ii. 270 i. 240 i 194 260, 260, 2'.il ii. 5;!.) i. 147 Richards, In re ; Ex parte Astbury ii. 24'.', 240 In re, Shenstonc v. Brock i. 65, 69, 70, 78, 82, 89 V. Allen i. 24 V. Burroughs ii. f>03 V. Delbridge i *5 V, Insurance Co. i. 297 % TABLE OF CASES CITED. Ixix Paob 435, 495 i. 290 119. 152 i. 163 132, 323 Uoad i. 402 i. 267 , GOO, 074 . 320. 603 i. 482 i. 320 i. 320 i. 482 i. 378 i. 424 I. 140 i. 187, 192 i. 378 i.378 1.397 i.378 ii. 222 i.378 i. 146 ii. 222 ii. 222 ii. 222 ii 222 ii. 222 i. 379 i.378 i. 452 i. 454 ii. 581 i. 487 i. 457 i. 465 i. 468, 4512 ii. 11 i. 409 Co. ii.9l i. 113, W3 i. 2'.«1 i. 2«J3, 279 I. 193, 206 i. 404 i. 469 i. 133 ii. 5«1 i. 146 138 ; ii. 270 i. 210 i 1'.'4 ^60, 209, 2'.'l ii. fi:'.o i. 147 Ibury ii. 24'i. ■ 240 ,, i. 66. 69, h 78. H2. h;J 1. 24 ii. 503 i.:W i. 297 idon Co. Paoi Vxem Ricliardg v. Porter ii. 530, 645, 646, 649 Robbins r. Eaton i. 118 Richardson's Case i. 86 V. Fennell i. 462 i. 324, 34« V. Laaweil i. 468 Kiclianlson v. Adams i.38 Robert A. I p. Wiggin i. 118, 123, 126 I'. lluK^itt i. 501 V. Wilcoxson i. 234 V. Jones i. 465 Robertson v. Bul'.ions i. 20 V. Lincoln i. 91 V. Jackson i. 276 i;. Merrill i. 218 V. Lynch 1. 14, 21 V. Olmstcad i. 15, 93, 94, 97 t'. Lyon i. 137 V. Richardson i. tin, 51 V. Robertson i. 190 V. Hiiknian ii. 277 Robins I'. Enibry i. 297 V Squires ii. 310 Robinson's Case i. 383 V. Strong? i. 142 In re Peruvian Ry. Co. i. 355, 356, V. Tiio Countess of Oxford i. 624 357, 366 V. Younjje i. 699 Robinson v. Aix>U ii. 534 Richmond r. Irons i. 379 V. Bank of Darien i. 392 V. Ricliniond i. 186 V. Batchclder ii. 310, 644 Riclc.'jrd V. Moore ii. 418. 426, 427. 428, V. Commonwealth Ins. Co. i. 259 429, 4.30, 431, 4.')4, 460, 401 402. 463, 464, V. Daucliy i. 650 465, 406, 407, 469, 471, 472, 493. 494 V. Georges Ins. Co. i. 269 Ricketts V. Bennett i. 606 V. (losnold i. 1!>2 Riikev V. Tunbroeck ii. 303. 502 V. Hoskins i. 130 Hi.Miii V. Tiirall i .62, 63,04,09,71 V. Lane i. 394 Riiliik' 1'. Varnum ii. 502 V. Lyall i. 245. 255. 266 Killer >'. Hulse i 150, 216 1;. Jvlemphis & Charleston R. R. i: Union India Rubber Co. i. 298 Co. ii. 55 Ridgwiiy, /fe i. 47 V. Mollett i. 312, 667, 596 I'. Darwin i 138, H5, 148 V. Noble's Admrs. i. .30, 31 V. Inijram ii. 581 V. Reynolds i. 'M\ • V. Wliarton i. 675 ; ii. 605, 650. 651 V. Ring i. 62. 77 652, 653, 060, 0«t> V. Ruttor i. 571 Riepel v. Wooley i. 60 V. Smith i. 297, 299 lUga, The i. 266, 284 V. Stadeker i. 217 Kigiit V. Bucknell i. 205 V. Wallace i. 1.50, 151, 216. 222 r. CuttrcU i. 624 «'. Weeks i. 123, 126 Rightcr '■. Alamon i. 686 r. Wilkinson i. 6;j0 Riggs V. American Home Missionary Robinson & Preston's Brewery Co., Soc. i. 138 In re; Siilney's Case i. 367 V. American Tract Soc. i. 139 Robson r. Drutnmond i. 570 I'. Lindsay i. 684 Roche >\ Laild i. 301 Rieonoy i>. Ncrinan 1. 158 V. O'lirien i, 4.-4 Rili'V r. Farnsworth Ii. 659, 562 Rocher r. Busher i. 261, 205 V. .Mailorv i. 123. 126 Rochfort V. Hly i. Ill V. .MitclicU i. 233 f. Hnnu! i. 145 Rinii >: .Jolin.son County i. 321 Rock r. Fninierling i. 585 Rinu'lovc, The i. 290 Rock River Bank r. Sherwood i. 303 Kiiiiio i: llimis i 596 Rockwell iv Rockwell i. 13 Rio (irande Do Sul Co. ,rn re i. 290 Rodgers v. .Jones ii. 409, rm Riploy V. Buhcock i. 138 I'. Phillips ii. 433, 4:15 Rippy r. (iaunt i. 142 Rodick 1: CJandell i 5!tl Risl>()urfj i: Bruckner i. 615 Rodwell 1". Phillips ii. 224, 225, 235, 2.;8 Rishton t: Whntinore U. 666, 672 Roe V. Birkenhead R/. Co. i 610 Ritch 1'. Hyatt i. 238 V. Harrison ii. 025 Ritchie r. Franklin i. 418 Rogers's Case i. 355. ;i04 Rivers /'. Orcg(i i 121 Rogers v. Atkinson li. 643 Roads 1'. TrunipinRton ii. 240 V. Boehm 1 ♦108 Riilil) r. Mudge i. 500 V. Burlington i 417 Hobbins v. Chicago i. 681 V. Hastitigs & Dakota Ry. Co. i. 298 Ixx TABLE OF CASES CITED. I ■':( ii: I Paoi Rogers i-. Kneeland ii. 571, 573, 616, 65i3 V. March i. 616, 6-i6 V. HogiTH i. 454, 466 17. Saunders ii. 002 V. Turner i. 110 f. Union Cent. Life lus. Co. i. 150 I'. Ward i. 205 Roget V. Merritt ii. 505, 602 Koiide V. 'Inwaites ii. 254, 250, 334, XMi, Roland v. Logan Rolfe 0. Abbott Roils I'. I'earce Rondeau v. Wyatt Rood V. Willey Roof V. Stafford Roosevelt v. Brown Root V. French 341,438,460,476,404,604 1. 103 i. Ill, 121 i. .1.3 ii. 217, 230, 530 i. 247 i. 118, 123 i. 3SW i. 331, 407 i;. The Great Western R. R. Co. ii. 127, 128, 130, 131, 132, 133, 136, 109 V. United States Express Co. ii. 1.32, 133 Roper V. Holland i. 657 Rosa V. Pratiier i. 2.34, 237 Rose I'. Hates i. 103 V. Daniel i. 110, 128 V. Hart i. 639 V. Mynott i. 8-3, 452 I'. Story i. 07 Rosewarn v. Billing i. 600 Ross r. Kstates Investment Co. i. 348 V. iTolinson i. 552, 657 V. Noel i. 108 V. Parkyns i. 480 V. Tiie Active L 266, 208 I'. Tlu' Ship Active i. 278 V. Welch ii. 435 Rossitor V. Miller ii. 60.'), 608, 618, 019, 620, 656, 657, 058, 660, 662, 666 V. Rossiter i. 486; ii. 40, 41, 71 V. Walsh " ' Rotch i\ Mills Rotliscliild r. Brookman V. Kiial) Rothwcll i: Devves Rourke r. Story Routli r. Thompson Rout ledge i'. (Jrant r. Kamsey Po-v r Dawson Ro»v-- V. Mopwood V. Pickford I'. Sharji V. Smith Rowlmulson, E.r parte Rowley V. Bigclow Rowls V. Ciclls i. i. 452 i. 15;] i. 312 23-', 230 i. 457 i. 695 i 023 i. 306 ii. 309 i. 501 i. 127, 129, 130 ii. 451 i, 08 i. 231 i. .50•. Saur Sanders r. Davis I'. St. Ncot's Union Sanderson r. Baker V. Lamberton V. Walker Sandford ;<. Vaughan San Diego r. Railroad Co. Sandilands v. Marsli 397, 408, 412, 432 ii. 545, 603, «n2 i. 47 i.274; ii. K.) ii. 247 I. 817, .'120 010 524 4r)9 053 3(13 4HG Sands ti. Taylor i. 271 ; ii. 313, 368 t4 TABLE OP CASES CITED. Ixxi Paob ; ii. 2&« 614, 615 i. ai li. 605 166, 166 u. liiO 1.189 1.241 1. 1«'.> i. 404 I. 31)9 i. 118 i.244 u 526, 671 ii.on i. 146 ii. 271 i. 165 i. 4'22 4, 445, 450 i. 158 i. 67 ii. 526, 671 i. 454, 406 i. 20 8, 119. 120, 121, 122 ii. 5»2 Paob Sanford f. The Trust Fire Ins. Co. ii. 674 Saiifier r. Upton i. 391, 401, 402, 427 Sariili Ann, Brig Surali Ann, The .Siirchet r. Tile Uavis Sanl i: lihodi'S .Sargent r. Morris r. Webster Sari r. Uourdiiion Saunders i'. Mann V. Topp i. 5!)4 i. 273 i. 27lt ii. 278 ii. 679 i. 297 ii. 606, 607, 650 i. 118 ii. 371. 372, 373, 374, 397, 460, 491 V. Wakefield ii. 516, 62? ''•«, 524, 527, o.y.i, 637, 541, 54i„ .32, 55.J, 663, 568, 5^0, 5'.>5 Sauiiderson's Case i. 330 Sauiiderson o. Gritflt'.is i. 623 I'. Jackson ii. 511, 613. 629, 672, 687, 589, 694, 602, 007, 046, 0«9 V. Saundcrson i. 145 Savage v. Davis i. 153 V. Foster i. 135 V. Insurance Co. i. 499 V. O'Xeil i. 150 Sav,.'ry v. f^ypiier i. 585 Saville i'. itobertson i. 46'J Savings Banic v. Atchison, &c. R. R ii. 32 i. 87 i. 377 i. 62, 88 i. 240 i. 459 i. 52:} 1. l.J8 i. 152, 153 388, 391, 402, 403, 427 i. 140 Co. V. Cuppa V. Davis V. Fogg V. Scott Savory v. King Sawin v. Kenny Sawtelle's Apjieal Sawyer v. Cutting !'. Iloag i V. Lutkin f. Merrill i. 26 Saxiin I'. Harksdale i. 460 Saxton V. Heed i. 291 Say r. Barwick i. 147, 14« Sayers, A'.r parte i. 440 I'. Birniingtiam Gas Co. ii. 412 Sayre c. Nichols i. 5'J'J Scadding c. Lorant i. 376 Scannnon i: City of Cliicago i. 5x1 V. Kimball i. 391 Scanlan l: Cobb i. 140, 14(i ScliiiK'k r. Saunders i. 15, 101 Scliiiiectaily & Saratoga Plank-road Ci). >: Thatcher i. 404 Sehidlelin v. Xew York Ins. Co. i. 260, 2'.t2 '•. Stewart i. 465 Si'liiiiinielpennich w. Bayard ii. 31 I Scl iling (,'. Thoinlinson i. 462 Si'liiiialtz r. Avery i. 627, 570 Scliiiiidlapp i>. Currie i. 500 1 Schneider v. Evans ii. 214 r. (iarland i. 2H8 r. Norris ii. 613, 629, 687, 501, ♦K»2. 007, 029 I School District v. Bragdon i. 134 Paob School District v. Insurance Co. i. 428 V. Stone i. 420, 424 Schooner Freeman v. Buckingham i. 207; ii. 47, 61, 63, 54, 56,69 Schooner Tilton, The i. 25'J, 405 Schrinishire v. Aldcrton i. 568, 571 Schroder's Case i. 10 Schroder's Case, /n re Mercantile Trading Co. i. 31 Schroeder v. The Hudson River R. K. Co. ii. 214 Scliuiiardt r. Aliens i. 584 Schulenl)erg /■. llarriman ii. 240 Scliult/ r. Bosnian i. 208 Scliusterr. .Mcivellar ii. 89 Seiiutz V. Jordan i. 26 Scio, The i. 284 Scotliorn c. South Staffordshire Ry. Co. ii. 70, 81, 80, 102, 111, 126, 1.30, 15.j, 150, 157 Scotland County v. Hill i. ;«2 Scott V. Busii ii. 276,277, 514 V, Conway i. 231 V. Davis i. 459, 466 V. Depeyster i. 298 V. Dixon i. 316 V. Kastern Counties Ry. Co. i. 599 V. Kreeland i. 299 t;. Hudson i. 227 V. Irving i. 678, 686 V. Lannian i. 87 V. Lord Kbury i. 641 I'. Maiiby i. 151 V. Parker ii. 523 i: IVttit ii. 454, 477 V. Savings Bank i. 07, 77 V. Surnian i. 446 V. The Kastern Counties Ry. Co. ii. 217, 289, 303, 334, 365, 404, 4.38. 443, 456 V. Ward V. Watson Scott & Manby's Case Scott's Kx'rs r. (Jorton : Si'ovidl r. Boxall ' Seovill r. Thayer I Serinigeour'.s t 'hiiin ' Scrimsliire r. .Md^rton Scrngnani r. Carter Seudilcr r. Bradbury I V. \'an Aiiiiiurgli I r. Wiirstcr Seull V. Briddle Sealier r. ilavvkes Scaliorne r. .Madily Sealirooke r. Hose Seagood r. .Mealo Searle r. Keeves ! c. Scovell Sears c. Brink j ('. Winirate Soaton r. Benedict Seaver r. Coburn V. Phelps ' V. Seaver 234 i. 134 i. 195 i. 454 ii. 228, 231 i. 390,410 i. 346 1.29 i. 497 i. 98 i. 382, 3H6 i. 26 i. 2.'')3 i. 527, r,;W i. Ill i. 4K2 ii. 573, tiJO ii. 32(», 330, 436 1. 293 ii. 560. 575 ii. 57 i. 152, 179 i. 601 i. 138 i. 192 #1; li'l ;!|t' m .■1 Ml Ixxii TABLE OP CASES CITED. Paoi Seavey c. Seavey i. (W, Td Second Nutiunal Bank v. Walbridge ii. 58 Secretary of State, The, t: Kaiuacliee Uoye Stilmba i. 626 Seed ('. KahkT i. 2;j2 Seeds I'. Kaldcr i. 224 Set^elbauni v. Ensuiinger i. 155 Scgrtdo, Tlie i. 277 Seitz r. Mitchell i. 150 Selby c. Jiickson I. i:jl) r. Selby ii. 688, 689, 5U1 Selden i . Ilondricksen i. 207 Self V. Cordc-ll i. 24 V. Rladox i. 882 Selnia, &c. II. U. Co. r. Rountree i. 2'.)7 Selsuy, Lord i'. Hlioadcs i. 452 Seinenza r. Hrinsley i. 525, 574, 59(5, 640 Semple r. Pink ii. 517 Senhousc v. (Miristiaii i. 450 Sergeant v. Franklin Ins. Co. i. 380, 3'j;5 Sergent r. Morris ii. 484 Sessions v. Mosely i. 42, 86, 87, 8!) Seton I'. Slade ii. 500, 510, 511, 50;5, 572, 502, 594, 602 Settembre v. I'litnani i. 605 Sevier r. Oreenway i. 98 Sewall r. Hoston Water Power Co. i. 40;5 Sewell V. IJiirdiok Sewer i'. I'liclps Sexton '-. Abbott V. (iraliam V. Sexton f. Wlieaton Seymour r. Brown V. Delancy V. St urges V. Wykoti i 10:] . 142 i. 94 1.27 i. 504 i. 208 i. 26 i. 147 i. 402 i. 95 Shackkford's Case i. 364, 355, 364, 306 Sbadwell r. Shadwell Sliaeffer r Slieppard Shakspear, In re Shalcross v. Oldham Shannon i;. Bartholomew V. Bradstreet V. Shannon Shardlow r. Cotterell Sharinjrton f. Straton Sharlanil v. Brandt Sharniiin r. Brandt Sharon r. Salisbury Sharp r. rarroll f. Kinniett t'. Lii)8ey f). Sharp V. 'I'iiylor I'. United States Ins. Co Bhattock f. Shattock i. 65 i. 160, 246 i. 215 i. 502 i.240 i. 594 i 200 ii. 665, 066 ii. 582 i. 620 1.500; ii. 072 i. 410 ii. 270, 275, 276 i. 627. 530 ii. 816 i. 240 I. f*:5 !. 2itO i. 203 Paoi Sliaw V. Port Philip Mining Co. i. 8U8 V. Siiaw i. 24 V. Spencer i. 405 V. Thackray i. 147 Shed V. Blakely i. 2;i3 Shechy v. Mandeville ii. 278 Shettleld Nickel Co. r. Unwin i. 334 Shetiield, &c. Permanent Building Soc. V. Harrison ii. 247 Sheffield, &(;. Society i. 3.17 Sheid ).'. Stamps ii. 600 Sheidle i-. Weishlee i. 236 Sheldon v. Atlantic, F &. M. Ins. Co. i. 590 V, Cox i. 8, 9, 18 Shcllington v. Howland i. 374 Shelthan c. (Jregory i. 165 Shelton r. Hoadley i. 162, 155 V. Merchants' Bank ii. 56 V. Pendleton i. 152, 186 17. Springett i. 112 Shemerhorn ;;. Loines ii. 412 Sheustone v. Brock, In re Richards i. 05, 69, 70, 71, 78, 82, 89 Shephard v. Murphy i. .322, 323 Shepherd i;. Gillespie i. 323, 351, 354, 355, 371 V. Hampton i. 31 V. McKone i. 164 V. Pressey ii. 495, 603 Shepley r. Davis i. 26 Sheppard v. Johnson i. 428 V. Murphy i. 132, 346, 848, 371 V. Shoolbred i. 550 V. Steele i. '2^1 V. The Union Bank of London 5. 107 V. Union Bank of London i. 046 Sherburne v. Fuller ii. 266 Sheridan v. McCartney ii. '240 Sherman r. Bank i. 77 I'. Degrave i. 2'10 Shevman County r. Simons i. 421, 42'i Sherrod v. Langdon i. 500 I Sherwin v. Sanders i. 241 j Shewell's Case 1. 128, ;!50 ' Shillibecr v. Jarvis i. o04 , Shindler l: Houston ii. 304, 4.32, 433, 4'.t5, 5(K), .Wi Ship's Case i. .127 ' Ship Fortitude, The i. r;63, 267, 280 1. Shaw, JC.r parte ; Co. V. Coffin I'. Fisl-.er f). (la It V. Mitohe'l V. Nud-; In re Denton Colliery i. 10 I. 134 i. 322, 845, 3.')2, 371 i. 474, 475, 477 I. 527, 500 i. 14 Ship Middlesex Ship PacV.c, The Ship (Vneral Smith, The Ship Virgin. The Shipbrook, Loi-.i, V, brook Shipley r. Davis V. Kymer Shipman v. Haton Shipppy V. Dennison Sliipton I'. Thornton Shirley r. Heyward Shoemaker r. National Bank Shoenberg v. Watts Shoolbred v. Baker ;i30| 2!M (iH.5 2!12 279 1 201,278 i i. 279, 280, 282 Lord Ilinch- i. 6i: ii, 2:i« i. 642 i. 131 ii. 587, 617. (i.V2 i. 274, 2!*l* ii. 30.'), 45.) i. ot)3 i. 5 i. 158 TABLE OP CASES CITED, Ixxiii Paoi i. 808 i 24 i. 405 i. 147 i. "lli ii. 278 i. 334 ii. 247 i. 337 ii. 600 i. 236 i. 500 i. 8, % 1» i. 374 i. Iti5 i. 152, 155 ii. 50 i. 152. 1>*C) i. 112 ii. 412 ichnrils [1,78.82 89 i. 322, 323 J61,354,i|>5, i.31 i. 104 ii. 495,503 i. 26 i. 428 ,346,348,371 1. 5uO 1. .1.^1 Paoi Sliort V. Skipwith i- 530 Shortrcde i'. Clii-ek ii. 670. 596, 647. 052. 662. 071 SliDultcrs i: Allen i. 140 SliDwcr r. I'ik'li i. 33, 47 Sliriw«l)ury r. Buckley i. 31 Sliritpsliire c. Itussfll i. 503 Sliiiniwav r. RutttT i. 20 Sluir:k-tli.'. Millard i. 123,120 SluisttT c. Kaiser i. 232 Sii'lii-ll's Case i. 10 SidTicy's Case, //i re Robinson & Pres- ton Brewery Co. i. 307 Siiiiiurs ('. Kleeburg i. 205 Sievewriglit v. Archibald ii. 320, 513. 523, 50! t Siffken i: Wray i. 545 SiL'Lters c. Kvans i. b2 Sii-'lir r. Kiio.ic County Bar/k i. 5(K) S:lir lliiiry Webb. The ii. 11 iir T. I'lnmer's Case i. 550 Siter i: Marrs i. 057 Mofnls V. Luseombe i. 0.'!4 Skiiion V. Cole ii, 657, 600 Mi'liiiore r. Komaine |l Tc'l)bitt8 i. V. Tlie lloese Silver Co. V. Thome V. Vodfjes i;. Ware V. Watson V. Webster i;. Weed 130, 137, 144 Minin); i. 324, 341 ii. 309 i. 208 i. 110 ii. 644, 070 ii. 660, 600, 072 ii. 023 V. Wilson i. 5(50 Smith's Appeal ii. 514 Smith Adinr. Terry i. 4'.i2 Smyth V. Anderson i. 508, 514, 516, 648, 549, 502, 503, 664, 565, 508, 572 r. Oliver Sneatlh n r. Grubbs Snee r. I'reseott Snell's Case Snellgrave v. Bailey Snorer v. Blair Snow r. Carr i: Warner Snowden r. Warden Snyder i'. Nations Soanies v. Spencer Soares v. Ralin 1. 230 i 9!) ii. 326, 481, 487 i. 367 i. 37, 39 i. 101 i. 657 ii. 435, 502 i. 527 i. 140 i. 623 ; ii. 546 i. 202, 203 Paoi Souther Life Ins. Co. v. Lanier i. 2',t7 Southerland v. Southerland i. Ul Southern Express Co. v. Dickson i. 032 V. Shea ii. 214 Southwell V. Bnwditcli i. 536, 537 ; ii. H21 Southwestern Kailroad v. Thornton ii. 214 Soutliwick v. Kstis Sowerby v. Butcher Spargo's Case S|)ark8 i;. Marshall Sparnian v. Kevin Sparrow c. Carrutlicrs V. Cooper ii. 40 i. 524, 627, 636, 570; ii. 517 i. 10 ii. m> i. 123 i. 206 i. 033 Society for Savings v. New London i. 410, | (MM) «;. The Kvansville & Crawfords- ville U. It. Co. Spartati r. Beneckc Speakman's Appeal Spear v. Grant V. Travers Speers c. Scwell Speight V. Gaunt Spence v. Chodwick V. Union Marine Ins. Co Spencer's Case Spencer, In re V. Tisne Spering v. Lauglilin Sperry i'. Haflam Sjicyers r. Lar.ibert Spu er V. Cooptr Spittle V. Laveiider Spong, ICx piirtf Sprague v. BlaLc V. Duell V. Woods Spratt c. Ilobhonse S])ring Valley Waterworks v tier i. Sproat V, Matthews ii, Si)rott I'. United States i Squier i-. Mayer ii. St. Andrews Bay Land Co. (>. Mitci.eil i. 404 i. Ticn i. 2:i.') i. 4ntl ii. 463, 477 i. U'.' i. cm i. t;;;;i i. 047 ii. 22i i. 21 Ki I i. 154 i. 232. 247 i. '2-lfi ii. h'i ii. «a| i. 527, m i. I.Jll ii. 270, 287, 289, M i. 139, 140 i. t'2 i. 4ii0| Scot- i. .')Sej 24o Sockctt r. Wray Soles r. Hickman Solly r. Uathbone Solon. on V. Garland Somers v. McLp.ughlin V. Pnniphrey Somes V. Sugrue Sophie, The Sorrell v. Carpen.er Sotilichos I'. Keu!p SoHch I'. Sfrawhridgv'' South Australian Knndell V. Rennie i. 203 ii. 581 i. 642, OriO i. 247 ii. 434, 500 i. 142 i. 259 i. 261,280, 284 i. 382, 3H3 ii. 050 , ii. 513, 514 Insurance Co. r. I i. 14, 24, 20, 100 i i. 4 St. Cloud. The St. .lago de Cuba St. John V. Van Santvoord , .3:'1| ii. !•'-{ i. 2:4 110, ir.f See. of Albany Co. South Baptist Clapp South of Ireland Colliery Waddle So'ith Staffordshire Railway Co. Burnside 308 319 386 St. Joseph Township v. Rogers i. 382, 4"; 418, 432, 438, 440, 4411 St. Lawrence, The i. 2;1 St. Louis & San Francisco Ry . Co. i Wilson i. SnI St. Louis County Court v. Sparks i. 4:'l| St. Louis. &e. Ry. v. Iliggins i. lli St. Mary's Church i. H Sface w Worth's Case i- ; Stacey, Ross, and others v. Deey i 'i^l Stackpole v. Arnold i. 5110. 5' Stadfield v. Huntsman i. 97, W. Stadt c. Lill ii. 514, 616, 625. 52(1. : 638, 539, 543, 544, 645, 648, .MO, ^'^ 654, 655, 561, 663. 570, 571, 67:1 670, 694, 602, 61.-i,• i: SiiJIi !'. Tliu '•■ Thor 1'- Van '•• With; te Hank '• Leavi |ofato Hoard , Citizons' SuufTor V. I Stead ,.. ])av '• Velsoi , ' Thorn |3teadinan v. TABLE OP CASES CITED. Ixxv Stapp I'- Elliott Stiiinliiink '•. Fenning V. Kuriiley Staiiier v. Tvaen Paob i. 897, &76 i. 20;} i. ;jl(j ii. 45, 72, 7li Stair '•. Tlie York National Bank i. 4uO Siiiilwortli c. Inns i- iSTO Staiiilli'V r. lleinn)ington ii. ;il2 Stanfiini r. MarshiiU i. 201 Staiiilaiiil r. Willot i. 'M btankv r. Dowdeswell ii. <5oO V. Stanley Stanton r. Ciiinp r. Wilson Star of Hope Stanrs r. Curling Stark I'. Coffin Siarr r. Vandcrheyden Starri'tt r. Wynn State i: Auckcr V. Binder V. IJriinur V. Carr r. County Court of County r. Dill Ins County Court I'. Douglass I'. Fuel IS V. (Jarroarte I', (jretiie County V. (iregory V. Hayes I'. Ilodpe 1!. Lanier V. Maeon County Court I'. Mayor of St. Joseph V. Maysvillc, &c. 11. K. Co V. Northuinbcrlanil V. Riehland t>. Russell I'. Sellner I'. Sliortridge i. 20;j i. 5',« i. 113, 122, 184, 185 i. 272 I. I'. Staflena V. Stoll V. Sutterfleld V. Taff I'. Winklcmeier I State, The, v. Carroll V. DeWolf I'. Sinit V. Sullivan County i V. Tlio Chatham Nat. Bank i. v. Thome I. Van Home V. Withani I State Hank v. Cooper I-. lioavitt I State Board of Agriculture v. The Citizens' Street lly. Co. i. 4-15 Stauffcr V. Morgan i. 221 Stead V. Dawber Ii. 815, 500. 527, fi2rt, 631, 632, 633, 035, 03(1, 038 r Nelson j- 205 i: Thornton i. I "'2 iSteadinan v. Gooch I 034 Paoi Rteadman v. Wilbur i. 229 Steam Navigation Co. v. Wood i. 3U3 Steamboat Lehigh v. Knox i. 2U*J Steamboat Sultana, The i. 280 Steaml»)at, The, Washington Irving i. 208 ii. 523 i. 304 83, 453 i. 105 i. 378 i. 438 i. l'.»3 i. 433 Sullivan i. 420, 434 i. 425, 420 i. 424 i. l'J3 i. 420 i. 420, 434, 440 i. 230 i. 585 ii. 200, 207 i. 244 i. 420 i. 438 i. 434, 440 i. 101 i. 417 i. la3 i. 193 i. 430, 437 i. I'.t3 i. 415 438, 431) i. 410 i. 438 i. 411 i. 140 i. 220 434, 43y i. 210, 220 i. 417 i. 400 i. 201 I i. 428 i. 435 Stearns i\ iJoe V. Hall V. Raymond Stcdman v. Feidler V. Hart V. Martinnant Steeihnan v. Rose Steel's Case Steel I'. State Line S. S. Co. Steele i: Babcuck V. Hoe V. Stuart Stceves c. Hopper Steinman i-. Magnus Stephen i>. Beall Stephens v. Badeoek 1. 205 ii. 043 20. '.t3 i. 207 i. 142 i. ti39 i. ll'.», 127 i. 140 ii. 89 i. 405 ii. 671 i. 591 21, 22 i. 2f( !.303 i. 4ti2 1. V. Broomfleld, The Great Pacific i. 287 V. Winn ii. 681 Stephenson c. King i. 52 I'. Piscataquis Ins. Co. V. lianney Sterling v. Pott.i V. Sims V. Wilkinson Stetson V. Faxon Stevens v. Briggs V. Cooper V. Dennett V. Faucett V. Low V. Stevens Stevenson v. llardie V. Newman V. Newnham V. The State Stewart's (^ase Stewart, In the Goods of V. Aberdein V. Conner V. Cornier V. Donnelly V. Dunlop 1". F.ddowes V. Lansing r. Smith V. Terre Haute & I. P. Co. ii Stilt V. Keith i. 266 i. 96 i. 154 i. 226 i. 69, 73, 74, 78, 82, 87 i. 297 i. 14, 101 ii. 643 i. 226 i. 408, 492 i. 13, 18, 23 i. 52 i. 198 i. 650 i. 330, 549 i. 11 i. 3.30 ii. 064 i-678 i. 18 i. 24 i. 29 i. 015 ii. (m i. 426 i. 247 72,174 i. 132 Stikanan r. Dawson i. 134, 323 Stiles t: Cowjyer i. 594 f. McCl.ilan ii. 514 Still V. Iluidekopers i. 597 Stillman v. Hurd i. 292 Sioeken r. Patrick i. 194 Stockley r. Stoekloy i. 147 Stoekwell c. Cnited" States ;. 4'.»4 Stoddert r Vestry of P. T. Parish ii. 002 Stokes V. Brown i. 118, 127, 1.30 I'. Moore ii. 685, 688 StoUewerck r. Thacher ii. 48 Stoman v. Bunk of England i. 403 i .'< !• m- f r !' I ■! ■ i i I ■■ I . (if lif: -1 ; t 1 1 J' Ixxvi Stone V. Browning V. Elliott V. lliiiki'tt i;. Miicnair V. HoglTS TABLE OF CASES CITED. Paoi ii. 435, 497, 408, 60() ' i. 888, 484 i. 67, 73, 80, 82 i. 106 ii. 808 { V. Till! City and County Rank i. 330, 331, 338, 380 V Wood i. lit'rd V. Tyler Paoi i. 6<.i4 1. 140 i. 8:!0 ii. r>:i 1 344, 500, 5;i2 i. (SIT ii. G'J4 Morris Canal & i. 301 ii. 013 ii. 453, 478, 4S3 Story *•. Liviiijjston i. I'. Lord Windsor i. t<. Salomon i. Stoughtun Scliool District v. Atlicrton i. Stovall i: Johnson i. Stoveld /•. lliiglics ii. 453, 470, 404 606 406 400 116 477 Stow i: Kimball i. 4(il I-. Wise i. 20 Stowell V. Robinson ii. 530, 030, 631, 6;;2, 043 Stoyston, &c. Road Co. t;. Craver i. 375, 370 Strain v. Wriplit i. 122, 128, 120 Strang r. Hradiior i. 404 Stratford r. Buswortli ii. 602, 020 r. Powell i. 128 Stre.'t r. Hlay i. 16 ; ii. 217, 305, 451, 452 i. 110 Swan V. "North British, &c. Co, i. 397, SW, 4(i:: Swancott v. Westgarth Swanwifk v. Sothern Sweeney i'. Spooner Sweeny v. Supir Refining Co. Sweet V. Harney V. Colgate V. Lee Swcetin{j v. Pearce Swift I'. Barnett V. flewsbury I'. Tyson V. Williamsburg V. Winterbotham V. Street Streeter i". Sumner 20(t 386 Stribley v. Lni)erial Marine Ins. Co. i. 616 Strong V. Black i. 107 I'. Grannis i. 405 V. Holmes i. 20 Stronge r. Ilawkea i. 205 Stroiher r. Butler i. 24 Stnitt I'. Smith i. 334 Stuart 1-. Lonl Kirkwall i. 201, 202 Studds V. Watson ii. 007 Studdv V. Sunders i. KX) Studwell V. Shaptor i. 133 Stupcrt V. Arrowsniith i. 30H Stormy v. Smith i. 610 Sturtevant r. Juques i. 406 ?•. Stnrin i- 105 Stntley r. Dickey • i. 500 Sulliviin I" Sullivan ii. 508 Sully r. Frean i. 334 Sulian, The cargo er i. 258 Sultnnii. Tlie Steiimhoat i. 280 Sujnmers r. City Bank i. 215 r. Wilson i. 120 Sumner r. Bromilow ii. 247 Sun Ins Co. r. Kountz Lino i. 400 Sunderliuiil, In the (^loods of ii. 053 Supervisors v. Galhraith i. 432 V. Schenk i. 407, 408, 412, 418, 432, (iOO I'. United States i. 437 Supervisors, Board of, r. Budlong i. 188 Supervisors of Mercer County v. Hub- bard i. 389 i. 17 ii. 470 i. m i. 2itfl i. (l:;2 i. (i.')0 ii. n2('>, 5',)4 i. 660, 578, 680, 502 i. 122 i. 331, 340, fio:;, Uli i. 380, (ilO i. 435 i. 3.31, .3.30,340, 300, 003, 013 ?'. Wiiilerbothaniand Goddard i. 5!i8 Swire I'. Francis i. 338, 330, 340, 300, 600, 017 Switzcrv. Valentine i. 160,210 Syers v. .lonas i. 500 r. Syers i. 482, 4'.irj Sykes v. Dixon ii. 513, 614, OOO f. Giles i. 603;ii. 40 V. (Jylas i. 4t^t) V. Ilalstead i. 10.') r. I.nffery i. 4:18 V. Mayor of Columbus i. 410 Sykes's Trusts, Jie i. 2(i.') Symesr. Green i. 137 .Sj-monds v. Heard i. 5.36, 0(il Symondson v. Tweed ii. oTU Symon's Case, Asiatic Banking Co., J II re i. 1-28 Symons r. Parnionter ii. 'i:;.) r. Rees i. .'^o Synis V. Chaplin ii. 77, 96, 102, 111, iJti, 156, 150, 157 T. Taft r. Sergeant Tiiggard r. Loring Tainter v. Prendergast i. 130 i. :ii>l i. 610, 524, 6.!^ M') Taite's Case i. ;!70 Talty I'. Frcedman's Savings & Trust Co. i W Talver v. West i. 14, 21; ii. 320. 327, 4'i.f Tangier, The Barque i ''•''' Tanner i-. Christian i. 530, 541, 575, • ■.It' V. Smart i. 127; ii. 273, 309 TABLE OP CASES CITED. Ixxvil i. Paoi i. 228 i. urn ii. 278 i. 131) ii. 2uU i. 5',)4 282. 284 i. 428 i. 33, 38, 42, 80. 87 i. 33, 86, 87. 89 i. 12 i. 451,007 i. 201 i. 6 ii. 511, 573, 580, Tantum v. Arnold 'I'anviiLO I'. Luciis i'liplty I'. MartL'ins Tiirliuck V. Hisi>liam Tarlmnr. Baxter rarraiit c Terry Tartar, 'I'lie Tail' r. H.'ll V. Ilillicrt v. I-i'itlicail 1'. Wi'liiiigs V. Williainson TattiK'll I'. Fenwick 'I'aii]) i: Drew Tawiiey v. Crowtlicr 504,602,028,020,051,052 Taylor v. Waters ii. 234, 240 'iavlor, F.r jHtrte i. 124, 125, 215 " V. Ashton i. 310 1-. lieeeii ii. 044 V. Castle i. 605 I'. Dudley i. 142 V. Fiehls i. 407 V. Great Indian Ry. Co. i. 328, 300, 400 f. Henry i. 52, 77 i'. Kynur i. 100,012, 040 V. Liverpool & Great Western Steam Co. Me Donald Midland Uailway Co. Mueller V. V. V. V. V. V. Patrick Flunier Pratt V. lioblnson V. Hoekfort r. .Salmon V. Skrine I'. Stray V. Taylor i\ Thompson V. Wakeflel.l I'. Whitehead r. Y|)silanti Taylor, The Moses Teal c. Auty r. Woodwortli Teasilale'.s Case Ti'hliets r. Hapgood Teed V. Tc(;d TcK'iirapii Co. v. Davenport Tenipany v. Ilakewill i. 11.80 i. 401 i. 305, 403 ii. 434 i. 147 i. 403, 547 ii. 681 i. 025 i. 454 i. 450, 502 i. 412 i. 538, 500 i. 438 i. 417 ii. 3'.t3 i. 101 i. 414, 417 i. 287 ii. 228, 22fl i. 140 i. 321 i. 105 ii. 3iiO i. 403, t)03 lOJ, 107, 100 Tempest r. Fitzf^erald ii. 220, 330, ;{;-il, 330, 342, 430, 441, 447, 470, 401 V. Kilner ii. 222 Tenant i: Klliott i. 643 Tench V. Roberts i. 408 Tennant, A'.r jxirle i. 480 r. Trenelmrd i. 402, 502 Tennent v. City of Glasgow Bank i. 337, 340, .341 Tennessee Bond Cases, The i. 415 Tennis(m i'. Tennison i. 221 Terney v. Doten ii. 608 Paoi i. 32 V, i. 404 i. 874 i. 201 i. 442 i. 442 i. 4l)d i. 20 i. 000 U. 028 385 001 276 400 277 164 238 238 402 1. ii. ii. i. i. i. ii. i. i. Terrao's Case Terre Haute & Alton R. R. Co. ICarp Terry i'. Little Tevis V. Richardson Texas c. llardenberg V. White Thacker v. Hardy Thatcher r. Dudley Thayer v. Boston V. Fuller V. Life Association V. Luce V. Rock I?. Stearns Theodore, The Theriott r. Bafjloli Thibault ('. (■il)S()n Third National Bank v. Gucnthcr Thoin I'. Smith Thomas, /i'.r imite: In re New Zealand Kapanga Gold Mining Co. i. 10 V. Alsop i. 185 V. Bishop i. 532, 536 V. Boston & Providence R. R. Co. ii. 107 V. Brown i 125. 100; ii.018,057,0(;0 V. Brownville, &c. R. R. Co. i. 302 V. Cook ii. 577 V. Deering ii. 698, OOG, G51, 058, (UIO V. Dike i. 120 r. Osborn 1.267,270,280 V. Railroad Co. i 424 V. Rhyniney Railway Co. ii. '.«>, 01, 03, 04, 06 V. Roosa i- 31 V. The County of Morgan i. 428 V. Thomas ii. 582 V. Williams ii. 231, .571 Thoniasson r. Brown i. 400 Thompson's Appeal i. 450 Tliompson's Case i. 140, 355, .'i04 Thompson v. Alger ii. 280, 290, 201, 203, 205, 502 I?. Bennett i. 215 V. Davenport i. 510, 519, 524, 527. 548, 540, 501, 563, 600, 607, 080 «;. Da vies i. 505 V. Dorsey i. 113 V. Fargo i. 032 V. Finch i. 017 1'. First National Bank of Toledo 1.490 V. Gardiner ii. 070 V. Giles i. 408, 547 V Hamilton i. 122, 527 r. Havelock i, 008 V. Lay i. 118, 130 V. Liach i. 118, 146 «'. Lee i. 550 I'. Maceroni ii. 218, 334. 438, 445 V. McDonald i. 07, 71.72 V. Parct i. 97 I'. Patrick i. 106 V. Perkins i. 460 I F • I m t' ,l\- \ I t< 11. Ixxviii TABLE or CASES CITED. Vkan Tliompgon c. Pcrrinc 1. 388. A-J» V. Snow i. ii!»l, 4t)8 V. Tliompgon i. 43, 85, 80, IbO, 211, &4.1 Thomson v. Dominy ii. r>7, 02 V. Lee County i. 388, 414, 418, 420 Co. i. 401 i. 4»2 i. 301 i. »r) i. 26i» i. 241 i. l;i7 i. G'Vi i. 503 i. 308 ii. 312 ii. 62r), 032 i. 118, 127 i. 601 i. 238 ii. 269, 275 i. 405 i. 73 i. 259, 273, 405 ii. 57 1. Thorin^ton v. Smith Tliorndilce v. DeWolf Tliorne v. Traveller's Ins Tliornell v. Hnll)irnie Tliorniey c. IU-l)son Tliornton r. Guice V. Howe Thorogood v Robinson Thorold r. Sniitit Tliorougliood's Case Tliorjie I'. Tliorpe Thresli v. Halce Tlirupp V. Fielder Tibbits V. George Tienieyer r. Turnquist Tiltbrd I'. Roberts Tillinghast i'. Cliamplin V. Wheaton Tilton, The ochooner Tindail v. Taylor Tinkler v. Cox Tippets r. Ileane c. Walker Tisdale v. Harris Titus V. Great Western Turnpike i: Kyle Titus, The C. M. Tobey r. Harber t;. Robinson Tobin r. The (jueen Tod V. Stokes Todd c. Kmly I'. liCe V. Reid i. 578, 686 Toledo, &c. Railway Co. i;. Merriman ii. 178 Tolson V. Garner i. 130 Tome V. Tarkersburg Branch R. R. Co. i. 003;ii. 62 Tomkins r. Jaffery i 586 r. Tomkins i. 113, 115 Tomkinson r. Staight ii. 388, 380, 401 Tomkyns v. Ladbroke i. 128 Tomlinson v. Ex parte i. 145 I'. Branch i. 434. 440 r. Gill ii. 574, 575 V. Matthews i. 235 Tompkins I'. Tompkins i. 117 V. Wheeler i. 404 Toms w. Cuming ii. 501 Tooley V. Dibble i. ".M Tooth's Case i. 3f.7 Torrington v. Lowe i. 322, 34(i Torrs r. (timing i. 600 Totterdell r. Fareham Brick & Tile Co. i. 003 Touteng v. Hubbard i. IwU Towers r. Barrett i. 21 V. Osborne U. 217, 230 i. 150 ii. 308 i. 001 ii. 286 i. (lOS i. 524 i. 200 ii. 278 300 274 158 480 i. 240 Paoii Towlc V. Dresser i. \\\->, Town of Coloma v. Eaves i. 407, 421 427,432,433,434,440,441 Town of Eagle c. Kohn i. ywi Town of East Lincoln v. Davenport i. 440 Town of Genoa v. RoodrufF i. 3n,'t Town of South Ottawa r. I'erkins I. 440 Town of Venice v. Murdock i. 407 Town of Weyanwega v. Ayling i. 4;;2 Towiiley v. Crump ii. 4hS Towns' Drainage & Sewage Utiliza- tion Co., In re i. 370 Townsend, Kx parte i. 27 t*. Hurnham i. 115, llij V. Ilargraves ii. 285, 286, 434, 405, 400, 504 t». Stangroom ii. 6;iO Township of Rock Creek v. Strong i. 408, 435 Tozer v. Saturlee i. 148 Traccy, In re i. 148 Tradesmen's Bank v. Astor ii. 40, 41 Traill v. Smith's Trustees 1. 338, .itl) Train v. Gold ii. 557 Trappes v. Harter ii. 247 Trask i-. Roberts i. 524 Travcr v. Merrick County i. 417 Treat v. Peck i. 146 Trebilcock v. Wilson i. 5 Tredwin v. Bourne i. 506 Tregelles v. Sewell Trevillian v. Tine Trevino v. Trevino Trevor v. Whitworth Tripp I'. Armitage t;. Bishop r. Swanzev Paper Co. Trish V. Newell Tronsoh v. Dent Trotter t'. Walker Troubadour, The Troiighton v. Hill Troup's Case Trow V. Shannon Trowell v. Carrawny Troxell v. Stockberger Troyncross i*. Grant Trueman v. Loder i. Trull V. Trull Trumbo v. Cartright Trust Co. V. Sedgwick Trustees v. Insurance Co. I'. People Trustees of Ithaca Baptist V. Bigelow Trustees of Vernon i* Tucker r. Andrews V. Humphrey V. Moreland V. Sanger r. Woods Tucker Manuf. Co. r. Tuckerman v. Brown ii. 420, 402 i. 626 i.200 i. 821 ii. 252, 257 ii. 514 i. 6U9 1. 1.S8 i. 272,274, 277 ii. 5tll i. 267, 2H1 i. 20(1 i. 304 i. 88 i. 67 i. 226 i. :n;8 530, 560, 670, 5!fJ, 042, 050; ii. 618 i. .1(10 ii. 816,614 i. -JOH i.m i. i-ii Church ii. .'542 i. 4(i;i i 201 i. ri45 i. 113, 118, i;!l i r.'8 ii (M Fairbanks i 601 i. 402 Hall TABLE OF CASES CITED. Ixxtx 1118 Paoi 1. 1H2 . 407, 4'21, I, 440, 441 i. a«!» nport i. 440 i. ;«•■) i. 440 i. 407 y i. 4:!-2 ii. 4H8 Itilizn- i. 870 i.27 i. llf), 116 ,0, 4;$4, 4'.»5. 400, 504 ii. (WO rong i. 408, 4:'.') I. 14H i. 148 ii. 40, 41 i. 3;w. :mi) ii. .'if)7 ii. -247 i. 524 i. 417 i. 14t'. i. 5 i. 50(1 ii. 420, 4',iJ i. tV26 1 i. '2(H» i. 3-.il ii. 252, 'J.'.7 ii. 514 i. 5',t!( i. 1:18 272,274,277 ii. 51tl i. 267, 284 i. 2*16 i. -.'M i. X8 i.67 i 22fi i. :if,8 r,60, 670, 5'.)2, J,050;ii-t5>» i. Wo ii. 310, (lU i. -M i. 5i)0 i. 42» Church ii. 542 i. 4(« i 201 i. 545 i. ViH ii.t)03 Inks >• "''^ ^"^ i. 402 I. Tufnell I'. Constable J'liftg r. Chiiitnmn I', riyiiiouth Gold Mining Co V. Tufts Tiiller V. Vovt 'I'lilk'tt I'. Armstrong Tiiniio r. .Shi]) .Mary Tiippur I". Cailwell Turcot, The Tiirlcy I'. Hjitc'9 Turiilmll I". Foreman . r. (iiinU'ii V. I'lijson r. Tlu' Kntorpriso TuriRT r. Bis.sc'll 1. V. BiirrowB V. Cameron I'. F.Jtabrook V. Harvey V. Liverpool Dock Trustees I'. Mellier V. Nye V. I'ooria.&c. R. 11. Co. V. Hook.s V. Tlioinas V. Trisl)y V. Yatesi Turney r. Dodwell Turiii)ikc Koad I'o. i'. Van Ncjs Tuniiiaiicl r. Marshall Tiiskor, The Tutt >: Mo TwolmI's Case Tweedy, AV parte Twin Lick Oil Co. v. Marbury 2'.t7, 208, 302, 303, 304, 305, 300, .'lOH Two Ellens, The i. 284, 2W) Twyreross 1: Grant i. GIS Tye !•. Finnioro ii. 425 Tvers v. Tlie lio.xcdalc, &c. Iron Co. ii. 030, 038, 039, 040, 041, 642 Tyler >•. Arnold i. 115 r. I-ake i. 208 Tyrrell v. Bank of London i. 312, 342 Tvsiin'a Appeal i. 208 Tyson i-. Pollock ii. 278 U. Paob !. 144 i. 577 ii. 0()2 ii. 5;17 ii. 40 i. 202 i. 207 i. 110 i. 270 ii. 478 i. 215 i. 008 379, 402 i. 207 408, 46'J, 5(tl i. 528 ii. 210 I. 77 i. 452, 455 i. 546 i. 00 i. 151 i. 380 i. 101, 104 i. 538, .-..•(0 111 i. 0.)4 ii. 27H i. 402 i. 317 ii. 51) i. 405 i. 585 ii. 24() i. 205, Udell I'. Atherton rill r. Harvey L'llman r. Barnard UiiiliTliill V, Jaekson UmliTwood I'. Ilithcox l: Lovelace r. Nichols i\ Kobertson V. Stevens Union Bank v. Coster's Exrs. Union Taciflc R. R. 1 i. 000 i. 500 ii. 435, 500 i. 148 ii. 57:5 i. 241 i. 578 i. 277. 21.2 i. 017 ii. 573, 010, 618, 023 Commissioners i. 417 Union Trust Co. 1;. Illinois Midland Co. i. 420 Pam Union Trust Co. v. Souther 1. 420 United Ports Insurance Co., In vf ; Perrett's Case i. 370, 371 United States v. Arredondo i. 500 r. City Bank of ( 'oluinbus i. 004 r. County of Clark i. 435, 43(), 437 I'. Coin -y of Macon i. 410, 425 w. Ciittiiit; , i. 0l>2 V. l)oil|.'e County i. 417 I'. Fisk i. 436 V. Kirkpatrick •. 585 V. Kiio.x i. 304 V. New Orleans i. 410, 426 V. New Orleans Railroad i. 375 V. Nicholl i. 685 I'. Tracy i. 623 V. Tynen i. 423 V. Vanzandt i. 685 V. Villalon);a i. 640 Uniteil States, The, v. United States Bank i. 380 United States Bank v. Binney i. 48<1 ('. Dunn i. 004 r. Lee i.310 United States Express Co. v. Haines ii. 180, 18.5, 187 United States Reflector Co., The, r. Hushton ii. 494 United States, The. U. S. Co. r The Atlantic & (J. W. U. Ii. Co. 1.208 United, The, Insurance Co. «;. Scott i. 265 Unity Bank i\ Kinp; i. 594 Unity, The, Joint Stock, &c. Assoc. Ej- pnite i. 1.34 Upston e. Clark ii. 70, 102, IO7, 111,1 10, 120, 130, 155, 156 Upton f. Greenleos i. 368 V. Ilainborn i. 401 r. Ilansbrou);!! i. 402 V. Tribilcock i. 391, 394, 401. 402, 428 Urmston i-. Newcnnien i. 112, 121 Utica, &c. U. U. Co. c. Brinekerhoff ii. 514 Utley V. The Clark-Gardner Mininj; Co i. 301 V. Vail V. Strong Vale c. Bale Vallance, Kr parte Vallett V. Parker Vananken, In re Vancasteel r. Booker Vance v. Wells Vandenburgh t-. Hull V. Spooner Vandereook r. Gero Vande water V. Mills Vandyek i;. Hewitt Vantassel v. Hatheway Vanzant v. Daddel Van Bramer v. Cooper i. 24 ii. 326, 440, 481,482 ii. 221 i. 397 i. 146 i. 638 i. 241 i. 408 .621, 60ft i. 233 ii. 61, 56 i. 543 ii 502 i. 428 110, 128 i i-f! Isxx TABLE OP CASES CITED. Van Diizcr r. Ilnwo Van Kmm i: Van Di-uieti V. \ un Kpp« Van llncik I'. Whitlock Van Horn r. Fcmila Van I'oHtrop Paoi I. 307 i. 201 1. •!«.■) I. ;]1»2 I. 4(l.> Mailuon City i. 407,4-j;i. Van Nt '« I', 'iicanl li. a4H Van OriiiTiin c. Dorrick i. "JDU Van Siititvoord r. St. John ii. 110, IIH, Il'.t. 12(). l'2i. i;!0, l:i2, 1^4, 13tJ, 14;i Van StraiilH'n/.i.'f v. Murk ii. M',i Van Vaiki'iihurg v. Watson i. ll-'i, 114, 115, iin Vasoo V. Smith i. Kil! VaHtii'iilmrjfh i: HoiTnian ii. "278 Vaugliai) r. Vandorstcgt-n i. lo4, 202, 2(i:l i;. WalkiT i. 2(15 V. Watt i. 55-_' Vauxhaii Hridgc Co , Ex parte ii. 2i2 Vt-al /•. V.al i. w; Veazier. Williunis i. 207, 505 Vunt'zutla Ky. Co. r. IuhcIi i. 815, lilti, 825, 320, y27, 33;{, ;ui Venning v. Hunter i. KlU Vent r. Osgood i. 12t) Ventri'ss r. Smith i. 401 Vere «'. Anliby i. 02;-t I'. Lewi.s ii. 5ii5 Verianilir v. Codd ii. 044, 051 Vermoiil Central U.R.Co. v. Clayes I. 207 Verner i: Verner Vernon v. Oliver Verplank v. Mercantile Ins. Co, Very v. Lew 1. I". Wutkiiis Vianna r. liarelay Vibliard i: Johnson Vibilia, The Vice I'. Lady Anson Viekers i'. Hertz Vietor r. Strooek Vigersi r. I'ike Vincent i). (lermond V'.Utti'. I'atton 2(M) i. .'J5H i. 2',)8 27, 2!) i. 27 i. 5!t;{ i. f.50 i. 255, 205, 270 i. M\ i. 046, 047, , 681, 58.! Wainnian i\ Kyimuin Wainwright r. I'rawford r. Straw Wait «. Baker 1.108; Waithnian v. Wakefleld Wake V. Ilarrop r. Wake Waland v. I'.lkins Walcott c. Keith Waiden c. MeConib Waldo V. Helclier Wahlron v. Waidron Walford r. The 1 )uehess of I'ienne i. iOO Walker r. Barilett i. 346,352 ii. 3()H 1.200,201, 2(;5 i. 12 ii. 385. 420, 402 i. 161, 163, 158. lt;2 ii. 27 i. 128 ii. 01 i. 628 I. 2!» i 27 i. 180 i. i. 2'.» i. 386 821, 520 133, 134 i. 131 i. 481 L2:m 183, 1H8 ii. 5><1 V. Birch r. Hiitz I'. ('on.>-tal)le !•. Davis V. Kihs V. Ilirseh V. .IcKSlip r. Laighton V. McDonald V. Nussey ii. 271, 275, 280, 306. 307. 315. 308, 404 V. Bcamey i. 160, 210, 220 I', lioxton i. <)■")() r. Simp.xon i. 107 I'. Smallwood i. 3s2 V. Symonils i. 454, 400, 017 I'. Tavlor i. 40.j V. Walker i. 2J'. Wall's Ca.se i. M-> Wall r. Cockerell i. 5t.o r. Coimtv of Monroe i. 3f2.'t 1. 4:i. W7 ii. 11 i. 12'. i, 2'.)0; ii. 4H ii. 570, 00'.) i. M5, HH i. 31, 37, 42, 43, 64, SO, h7. 2l:{ ... Wiiit.T i. .i'.tJ Wiin/iT '•. Trdly i. ('••'•O War Is Cum- i.337, :t(U VViir.l, I'.r ,u„iit i, or I'. .\iil i. 3.'i V. IliTk^hirc Life Iiig. Co. i. 2;l» ).. D.ivi.jsiin i. :!IH> f. (Iririi i. 205, 2!H) V. (iristvoidvilit.. Maiiuf. Co. i. 3'.)2 V. l-'cltoii i. 035 I,'. Miiinif. Co. i. 402 V !'.•( k i. 270 V. I '..Ik i. 2'.»H V. .Society of Attorneys i. .'loo V Soutd Kiidtcrii Hv. Co. i. 32^ V. ■rurnip i. •i\, 41,47,50, «(5, h7 V. \':iiiri. i. \:\\ Wurilcll '•. Kiiilroail rompany i. 2'.t5 V. I'll.. Union I'acilic K. U. Co. 1. 302 Wanifi) i\ (JruiT ii. 50 Wart' I-, (jalvcston City Company i. 505 WardcM (.. Uavisii's i. 230 Wuriiitr /•. ("ox ii. 02, (13, 71 c. Dcwhcrr}' i, (121 V. l-'av(iii'k i. 5(12 V. \Varin;i i. 1,30, 1.37, 144, 145 Warnifoid '■. Wariicford ii. ."iH5 WuniiT r. .Martin i. 050 I'. McKiiv i. 520, 5'.»7 V. Willington ii. 51.5, 50.'?, .')<,»7, .V.W, 5'.tl), 000, 000, 008, (152 Waniliolij /•. S(.lilitini» Warri'M c Krci.nian V. Hii'lianlsoii V. Slio(»k '•• Stajjt^ Warrimr r. KojrLTS WarriMLitoii /■. Fiirbor Warwick r. IJriici' Wartin.imi r. Ilri't'd \Va«lil>oiirn r. liiirrows Wasliliiirn c. Franklin i. 433 \VashMij,'ion Ici' Co. v. Webster ii. 500, 658, 5.5' I, .502 Wa^liiiiijlon Irving, The Steanibon' i. 208 Watii;:!, The i 2H'.» vS alert' 111 ... IVnistono ii. 245, 24(1. 247 Uaierliouse t\ Jniuieson i. 336, 330, .337, Waterman ... Vose i. 4fM) Waters -•. Mrou'den i. 486; ii. 40 '•• .Monarcli Insurance Co. i. 057 ^Vate8e. Clifton i. 47 Watklns, /:.',r/wrt i. 641 VOL. I. i I. .> i. 247 i. 322 i. (J(»2 ii. 025, 032 i. 33 ii. 520 i. 124 ; ii. 2.-.7 ii. 405 ii 237 Watkini >•. Dainl r. I>e Armond I'. Hollies (.. .Mu.^on V. Overneers WatkiiiHon V. lni;li'Hl>y Watkyns r Watkyiis Watson, h'.r jKiitf r. Karl ('liarlt'inont V. ilawkiii!) V. Murrell t'. Haiiilail V. Sprat ley r. Swann I'. Ixxxi i. 405 i. 105 ii. 014 i. 241, 212 ii. 240 i. 21) i. UHJ i. 134, 408 i. 126 i. .103 i. 641 ii. 023 ii. 222 621>, 024 Tlio AmliiTgafo Railway ('o. ii. 7'J, 120, 145, 157 Watson'n Ex'ors v. McLaren ii. 017 Watt r. (irove i. 454 Watts r. Friend ii. 2;)0 I'. Ila'lxwill i. l:)i) V. Steile I. 1 17 Wau({li I'. Hridgcford i. 2.32 I'. Carver i. 407, 472, 473, 474, 478 I'. Cope ii. 30!) Way r. \htx i. 14 ... Wak.fleld i. 12, 14, IH, 21 Waydell r. Luer ii. 278 Wavnec. Steamboat General I'iko i. 500 We.'ilec. Ollive i. 51 W.aver r. Harden i. 40.3 Wel.l. r. Brooke i. 543 r. I'eiree i. 202,207,201; ii. 60 r. iIa.selton i. 240 ('. I'liiminer i. (ViO Wel.l), The Sir Henry ii. 11 Webber /•. Leo ii. 240 V. Tlie Great Western Railway Co. ii. 83. 200 Webster's Ca.se i. 3.30 Webster ('. I'\inmni 1. :>2« r. Ilarwint(.n i. 4(«) r. Ilildreth i. 227 i: Laws i. 244 i: Leeliamp i. 2!il V. Seekaui i. 201) r. S[ieneer i. 4.11 V. ITptc.n i 393, 402, 428 V. Woodward i. 140 1'. Zielly ii. 205 Weed .'. The Saratofr.a R. R . Co. ii. no. 118, 120, 121, 122, 1 23, 132. 131, 140. Il3 147. 151, 153 Weed Sewing Machine Co. i;. W ieks i. 523 \Veede r. Recile i. 123 Weeklev r Weekley ii. 222 Weeks .'.. Fills i. 425 !'. Lei),'hton i. 120 V. Merrow i. 113 Weidner r. Ilofrpptt i. 575 Weightman c. Caldwell ii. 513, 514, 573 r. Clark 1. 428 Weil I'. Sinuiions i. 1.50,220 V, The Merchants Dcspi Ueh Trans. Co. ii. 1.30 M t'-VM •■■.itl .: K\ 'h n m ■ \'\\ !' I I';' t ( r 1 \ I i ' Ixxxii TABLE OP CASES CITED. ^Aa» Paoi Weir V. Rarnctt i. 340,011 Whoeier v. San Francisco & Ala. R. V. Hell i. S38. 330. 340, 013 K. Co. ii. 214 1' lliulnut ii. 20'J, 275 Wheeler & Wilson Manuf. Co. t,'. Weiginer c. Douglas i. 41t) Heil i. 08 VVelcli c. Welch i 218, 21'J Wheelock v. Kost i. 390. 403 Weill r. (^iiiiie ii. 54)4 f. Mouiton i. 377 I'. Maxwell i. 2y3 V/heelwright v. Depeyster i. 450 Weltlin V. I'orter ii. 581 V. Moore ii. 54K Welilon ('. Wiiislow i. 215 r. Wheelwright i. 84, «iO Welles I'. Middleton i. 452 WhelpdUe i'. Cookson i. 450, 464 Wellington, The ii. 50 Whichcote v. Lawrence i. 454, 458, 450, Wells r. Abertietliy i. 14 404 (.'. KinKstoii-u{ion-IIuIl ii. 240 Whilbread r. Jordan i. 450 V. Smith i. 228, 5S(1 Whilden i: Merchants', &c. Bank i. 24 I!. Supervisors i. 400, 420 Whipple r. I'arker ii. 5-18 V. Thonins ii. 130. 158, 150, 100 i: Swett i. 31 V. Tucker i . 3«, 43, 8(i, »8, ;«: Whippy r. Hilary ii. 501 V. Wells i. 104 V. Hillary i. 130 Wimlell's Case i. 145 Whistler v. Webster i. IL'H Weiiilill r. Van Itonssnllacr i. 504 Whitaker v. Simmer i. 1(15 WeniloNer r. Ilojfebooni i. 2!K) Whilbread r. Brockliurst ii. 5Wt Wennall r. Ailney i. 110 Whitcomb . . Miiichin i. 454 Weutwoith i: lAoyd i. 295. 300, 450 t'. Whitcomb i. 2(M) c. Onthwaite ii. 454, 45K White, /v.r fitiile ; In re Nov ille i. 5S3 V. Tubl» i 142, 143 V. Heeton ii. 52:; Wert/, v. MiTritt i. 87 V. Branch i. 123 West r. lJe.ich i. 14 V. Cox i. 147 V. Insuranc;^ Co. i. 4W) r. Dr.'W ii. 27ti c. Mt'ore i. 134 V. Flora i. i;ii V. Skip i. 407 V. Franklin Bank i. 424 West .;!' 'Mijjlnnd and South Wales V. (iarden i 330, 640, 550 District Hank, /» jv i 444, 445 V. llildreth i. 227 West ^'t. l.ouis Savings Bank r. r. Mann i. IKI Shawnee Comity Bank 1.002 V. McNett i. 2(i.J Westerclell r. Dale i. 202 '. Talmer I 47, 50 Western v. Kussell ii. 611, 503, 5H0, 504, I'. Procter ii. 821,52'.t (Mr2 ti44, 051 V. Skinner i. 001; ii. 71 Western & All. R. Ii . Ct ). r. Mc- V. \ermont & Mass. R. R. C 0. i. ;i>2 Klwec ii 105, 100 V. Wilks i. 2 15; ii. 250, 47H Western Bank of Seotlnn d V. Ad- Whitecoi'ii) 1.'. Jacob i. 4^.-) die i. I!.'!! 5'.i0, 013 Whitehead v Anderson 1. C24 ; ii. 4.-,l, Western Cement Co. v. •Tones i. 140 4.-)M Western Maryland 11. It. I . Frank- >•. Izod i. ■■'.-.'i lin Kank i. 00,3 1'. Taylor i. (i-j;i Weston's Case i. 120, 323 c. Tuckett ii. 40 Weston /•. Dowiies i. 1(1, 21 Whiuhouse r. Frost i. 27 ;ii. 463, 4Tt;, V. Uifxht i. 30, 1.3 477 V. I'emiimnn i. 2'.K) Whiteside v. I'liited States i. 5M Wpsfropp >'. Solomon i. 125, 5.',8 Whitewell r. Warner i. 2:17 Weslzintlins, In rr i. 550 Whiltieitl r. Faussct i. 5',i| Wetherbec r. Totter i. 24 Whilini: r. Barrett i. ('.8 V>'haley v. liacnal ii. 530 r. Lake i. 4^7 Wharton r. Mackenzie i. 110, no Whitman r. Abernatliy i. 2;i(' V. Morris i. 31 Whitmarsh v. Mall i. r.V) Wheat ley v. Miscal i 120 Whilnev r. Butler i. .370, :;hi) r. Patrick i. 01 r. Dutch i. 118, 122, i:K( i: I'urr i.07 V. LuddinKton i. )(W Vt'hentlcy's Heirs v. Calhoun i. 505 V. Wyman i 802, 603, (Idl Whenton r. Kast i. 123, 1'.7, 12'.t Whitten r. Tisdalo i. 2';h r. (Jates i. 20 Wliitiicr r. Dana ii. (iW Wheeliin r. Wlioelan i. 453 Whit well r. Wyer ii. 2!^') ■^V hee!e>- r. Collier ii. 570, GOC, (U'.» Whorwood r. Whorwood i. 1!W i: McFarhmd ii. 2H0 Whyte, A'.r /niile i 5<12 V. Itussell i. ;;oi Wick V. Hodgson ii. '.'•■i: (1. Sage i. 6U& Wickinson r. Fra'ier i liiH ^"^ TABLE OF CASES CITED. Ixxxiii Paoi ' faH Paob Paoi la. R. ^:m Wieliler v. Weakley i. 140 Williams r. Jordan ii. 607, 608, 018, Otit), ii. 214 W Wijjgin I'. Free Will Baptist S )ciety i. 20 V. Luke ii. 670, 008, 010, 018, 050 Jo. V. ':m ! W ingi US, AV /""■/(■ i. 4(15 000 i. 08 1 WiL'uk'Swortli v. Dallison i. 5(J0 r. Steers 1- 147, 148 V. Leper ii. 674, 675, 570 i. 396, 403 1 V. Louisiana i. 428 i. »77 '''i Wilbur V. Howe i. 606 V. Merle i. 040 I i>,i\ l| \Vill)y i\ Tlie West Cornwall \{y. (•„: ii. 80, 8(1. 157 V. Milliiigton i. 671 ii. f>4« j-d V. Mobee i. 120 i. 84, V() m Wileox V. Keiloj,'g i. 500 t'. .Moor i. 127, 130 i. 4r>\), 4t)4 J !•. I'arnieke n- 121, 122, 12;{ V. Nixon i. 017 4, 458, 4r)(t, 1 V. Kc.r.tii >• i:i'> r. Norris i. 120 4(>4 Jj t;. Toilil '• i^'>>* v. North China Ins . Co. i. 015 i. 46t) 1 (•.Smith >• ■*2;, r. Owen 1. 98 nk i. 24 ^ ' Wild r lliiiik i- -W.*, Bitu V. I'owiil i. 452 ii. 648 ,;^^ , . Till. iJiink of rassaniaquoilily V. Hobbins i. 573 i. ;!i i 1 i. (')00 V. Robinson ii. 614, 554, 550, 500, ii. W)l ^ 1 Wilde, /» le ,• A'.r /)ii/(f Da^Tliali ii. 21.'), 601, 602, 043 i. i:!0 ,j| ■ 24') 17. .Safford i. 101 i. I'.i8 ;^ I )-. Gibson i. UIO, ()|:l ('. .Shannon i. 18 i. 105 v^M ■ r. WatiTs ii. 248 V. The Wilmington & Weldon ii- &»» 'M 1 WildiT r. Ke.'ler i- 407 U. R. Co. ii. Oi. i. 454 (^ 1 WildiTmiiii r. Hdirers i. 22H V. Wentwoi th i. 130, 142, 143 i. 2(M) iH 1 Wildrijr r. Nuwpi.rt Street Ry. Co. i. 2'.itt Williamson v. Barton ii 27 J i. 5s;^ ■ 'M 1 Wilfurd r. Hi'ii/ilv ii. 587 V. Birry i. 5, 20, 90 ii. 52;: J Wijki'.s r. .McCliiiif; i. lit) f. Dawes i. 200 i. rj:s tjl Wiikius r. Hroiniiuad ii. 255 ('. I'a^e i. 205 i- l'*< ^ r. Casey ii. 272 Willis r. Smyth i. 77 ii. 27(1 :.Wi r. Wdhh )• ''17 r. Twambly i. 120, i;5:< i. 181 ':^mi Wilkinson's Ciiso _ i. 3:!0 Wilmot's, Kli/a, Case i. 2(M1 i. 424 ^ Wilkinson r. Kvana ii. 047, (ii'l Wilmot r. Uieliardson i. 027 30, 640, 5^-.0 M i: lleavenricli li. 514, 5.')0 Wilson's (^ase i. 128, 373 I 227 ^ i:^! r. Kiiij; i. IOC), 2!t', (il.'l Wilson r. Anderton i. 050 i. ll'l '^ Wilkinson's Adni'r r. Wilkinson ii. 503 I'. Barker i. 023 i. 2(1") M Wilks r. Smith ii. 523 V. Barthrop ii. 27 i. 47, .V.I :m Willot'Cliapin, //!/•« i. 138 V. Beddard ii. 504 ii. 321, iVj'i m Will of Cole, /,/ ,r i. 1;18 1'. Boyee ii. 250 . (>()1; ii. 71 M Williir-l r. Kastliain i. 205 V. Carine i. 407 .Co. i. ;:>2 w r. (iornier ii. 269. 275 «». Cooper 1. 16, 05 ii. 25(1, 4TH ,■ V. Killinijwortli i. 4(»'.l V Dickson i. 274 i. 44.') i JH Williiun and Knu-line, Tlie i. 270 f. Ford i. 104 024 ; ii. 4.-.4, mM William Carev, I'lio i. 2ill V. Fuller i. 000 4.')H . i,^M William K. SalTord i. 280 V. (ilossop i. 180, 102 i ;'>'-2 '^'^'i^H Williams's Case i. 3!M) :•. Hart i. 527 i. (i2;; :;^ Williams, K.t imrte i. 500 r. Herbert i. 151, 158 ii. Id «« In n< i. 01) i". Kearse i. 123, 124, 125 ii. 463,47'', fl .'. AIlsup i. 284 I'. Millar i.203 .!■ I'. Ami-bach i. 23<; I-. Mooro i. 100, 4ti() i. r,s4 ''S V. Ila.'on ii. 640, f)28 I'. Oldham i. 142 >' -''' wM V. U.irton i. (ili) V. I'everly ii. 40 i. 5'.tl <^^l 1'. Hrovii i. 122 1'. ^ilamanea i. 4.".l i. ('.s >}iH r. Iliirnesg ii. 3r)0 I' Si.reve|,i)rt i. 422 a V. Hvme.s ii. 509, 607, 008, 009, 010. V. Smith i. 573 .S 011,018 i: The Roval K.xelmnRe Ass. i. I'ji; „■ J V. Callow i. 109 Co. i. 200 i. 37'.', :'.wi S V. Carwardino ii. 018 r. The Hoynl Ivx. Ins. Co. i. 202 18, 122, !;:•> '.■ r. Coward i. 1.54 r Tronp i. 405 .fl V. I'Mwards ii. t',02 r. Tuinnian i. 023 i02, 693, <;i'l fl I'. Kvans i. ft'Xi 1'. Whitehead i. 478. 4SS, 4(»0 i. '.'>;h S V. KviTftt i. ().'0 r. Wilson i. 200 ii. (i4:l fl I'. Fowler i. KM V. Ziileta i. 51.'), 530 ii. 2N^ -« V. (Jivon i. 5 (t Willsheai- r. Cottrell ii. 245, 218 i. nw l^ii r. (Irilllths ii. 272. 301 Wiltsliire r. M'lrshall i. 147 i TitVj ,vM »'. (iuile i. 38, 83, 84, 91 r. Sims i. 20 ii. '-''" "^^^^B 1'. lla'„'()0(l i. 41:! Wind)erley r. .Jones «. 120 i MH ^H V. Iiiabutt i. 147 Wing V. lioswald i. 240 i\ P if !' i; •i ■ i' \H\ .'ti , hi Ixxxiv TABLE OF CASES CITED. Paob Wing V. The New York & Erie R.It. Co. ii. 124 Winn r. Hull ii. 605, 000, 001, (iOJ t'. C.'oliinibinn Ins. Co. i. 2<'>1) r. Inglfhy ii. 2(2 Winston c. WiHtfoldt i. 'Ml, J.^ Winlt-r r. UrockwL'll ii. 2!U V. VVailuci- i. ir.l Wiiiiiirdp r. Unutn InKunince Co. i. 527 VViiv l{i)cii<-S(.'\viiig Mucli. Co. v. Crowfll i. i>8 Winhacli c. First National Bank i. i:i!( WistT /•. HUicliiy i. 422 Wislon r. Kwing i. 4i*7 Wisvvfll V. Siiirr i. .'!lt4 Wiihurington c. Herring i. 4(18 WitliLT.s r. I.vKs ii. 453, 477 /•. Weiiver i. lilJ Witliington v. Herring ii. ."1 Witt t». Amis i. Wtl Witter I'. Uiilianls i. 4117 Wittingliain f. Hill i. II'.) Wittuvvsky r. Wasson i. IM Witzler r. Collins ii. 57 WullI c. (Connecticut Mutual Life ) ' ! •i'i Ins. C". I'. Horncii.'itle Woiidell r. Railroad W(»()irs Cast- Wood, /ii re v. Itenson V. Hroatlley I'. Hiilli'iis V, Donnes V. Dmnnier V. Farniare V. Cill V. Ik'wett I'. Insiiranec Co. V. l.aniliirlh I'. lA'adl)itter r. Manley I'. McCain ('. Midgly V. I'liniell V. I'riie V. Howcliffo I'. Scartti V. Ciiitfd Statog W'loillierk r. llavcns Woodlpiirn ••. \Vo()dl)urn WoiKJi'ock r ncnnt'lt W(mclfi)rd /'. Cliariiley I'. Tatterson r. Sle|>licns Woodgilti' r. Knnti'ld)ull WiiinllioHHe r. Mcredilll Wnodiii r. Hurt'ord Woodland. 'I'lii' Woodrop r. Wr.rd Woodruff r Hoiiiih WoodrulT & Heacli Stetson Woods c. Dnnlap I'. McCiee i. i:58 i. (!2:t i. .'too i. i:(7 i. 14H ii. 571 i. 280 i. 5 i. 452, 4r>4 i. 3'Jl, 40.5, 4(Mi ii. 2titi i. ill) Ii. 245, 247, 2 18 i. 4'J'J. 500 i. 205 i. 050; ii. 240 ii. 2;!;t i. 024, t)25 ii. 508, 044 i. 5(Mt ii. 181 i. 107, (MO ii. 00(1 i 424 i. 150,210 i. (15 ii. 278 i. a:i ii. 50-2 i. 221,225 i. Clio i. 454, 502 i. 480 ; ii. 27, 40 i. 2'.M» i. 407 i :ioo Iron Works c i. '2M 1. 2:«l i. 27 Paqi Woods V. KuBScll ii. 25(i Woodward v. Dowse i. 1»2 Woodworth v. Bank of America i. 400 Worcester v. Katon i. 110, 128 'Vorcester Turnpike Corporation Co r. VVillard VVorinley v. Worinley Worsl'.y r. Scarborough r. SV'ood Worth /•. Case Worthington c. Grimsdltch Worthy v. I'alter VVray ?•. Cox Wreini c. Kirton Wright I'. Houghton I'. Campbell I'. Chard V. Dannali c. Davidson V. Dre-xser r. Kiigletield I'. (Jeer r. Hays )'. Hiighei i. .^20 i. 454 i. 382, 384 i. 85 i, 84. 85 ii. 274, ;!()'.» i. ti;i;i i. 1(15 i. 502 ii. 124, 12,, i.2!i i 202 ii. 072 i. 4(18 i. 2(15 i. 202 i. 24 i. Kl.'i i. 4:t;i i. i:tH i. 5f)() i. 133, i;!4 i. h(i ii. 01,1)4 i. 10!t ■lackson I". Lawes r. Leonanl V. McMillan V. Midland Hallway Co V. Morley V. I'ercival ii. 324, 331, .345, 847, 348. 450, 470, 478, 4'.il I'. Snowe i. 133, lH.'i V. Stewart ii. 21(1 V. Tnckett i ;i44 V. V'anderplank i. 05. K! i: Wakiford ii. 585, 5',i(( V. Wright i. 205, 2(Mi Wright's Ajipeal i. tKio Widsehner r. Sells i. 237, 2;!',t Wyatt r. Benson i. 20 V. Citv of (ireen Ray i. 4;»- Wyble V. Md'helers i. 07, 74, 87 Wycherley r. Wyilurley i. 51 Wyernan i-. (loodrich ii. i'i.hI Wyllie r. I'ollar i. (11;-, Wylson r. Dunn ii. 0(17 Wynian r. Chicago &, Alton 11. U. Co. ii.2U I'. (Jray ii. 581 Wynne's Case, In re United Ports & (ieneral Ins. Co. i 354 Wynne v. Trice i. 352, ;i')4 Wystow's Case ii. 211 Xenia Bank t;. Stewart i. 004 Yale I'. Dodcror Yiiiiger r. Skiinier Yates I'. Boen 1.205,214. 210 i I :'.'.• 138, 140, 117, lltt TABLE OP CASES CITED. Ixxxv Yates I'. Ilnll r. Tym Yi'lliind'.i Case Y.llow Jacket Silver Stovelisoii YdIii' I'. Hariu't York & Nortli Mi'Hn lIllllsKIl Yurk Uiiil(liii}r8' Co. v YouMK. /•-''■ /""■'« t'. AfO ipli ' if it l)c a conniiutafiou of i;ooi|8 f or [ootls it is more jM-operly an exchanire ; ItuI '.{ it be a traiisbrrinjr bf iroMils for money, it is called a sale, wli eh is a method of ex- Ihaiu V I ntroduced for the conveni'ie -< mankind, 'ov establish- liL' ! universal medium which may be e\chan• the deuom- (\'s\\ of sales ojjIv.'"'^ I V, t Kll(. toiii., 44)J, 1 Chitty on Cod., 51S, i:j to the ^01.. 1. ll COMMENTARIES ON SALES. [book I. i|il;i Kent, the American Blackstonc, takes the same view. lie says : " A sale is a contract for the transfer of jtroperty from one person to another for a vahiahlc considerutior;-" * So, too, that otlier very hiuli authority on the law of sales, Mr. Justice Blac'.burn, says: '*A contract concerning the sale of goods mav be defiued to be a mutual agreement l)et\veen the owner of goods and anotiier, that the property in the goods shall for some price or consideration be transferred to the other, at such a tiuie ami in such a manner as is there agreed. If the consideration to be given for the goods is not money, it might, perhaps, in popular language, rather be called barter than sale ; liut the li'gal elfcct U the same in both cases." - And a still later English writer on the same subject says: — " Sale, according to the civil law in the time of Justinian, and ac-j cording to the modern systems of law which avowedly adopt tlii' jirineii»les of the civil law, is considered as a contraei l)etweeu tlicl owner oi a thing and anothei- |»erson, whereliy the parties consent j to the transfer of property in the thing from the one to the other, and the payment by the latter to the former of a certain suniotj nioney (price). In Knglish law, sale, considered as a contnict. dill'ers from the aliove delinition in this, that the oliligation i'uii-| tracted by the .seeoud party is not necessarily payment of a cer- tain sum of money, but may consist of the render of value of iiiiyi description. . . . Sale, considered as a contract, may be defiiKil, aut, ;is \vc have seen, Uluekstone holds that" with rej/ard to the law of .sales and exchani^es there is no diri'erenee.'"'^ Coniyn is (|uite as tar I'loMi licintr an authority for Story's position; the lanu-iuiu'e of tliat old wiiter iieinir, simply, " If a man sell his goods to an- other, the property vests in the vendee."'' And, iis intimated by CaiiililicU, from whom wo have quoted,"* the eivi! law is essentially (htlircnt on that point from oins ; the distinction taken by the civil law^ between "natural contniets" and "civil contracts," umltT which the iiuestion wns raised and was lonu- open, l»einir n(tt at all rtuardcd by the conunon law.'^ Another highly rcspcetalth; Ann lii'aii writer says: "A sale of si chattel is an exehanj^o llicreni for money ; but a sale is distinctly discrimiutited in many n's|M(ts from an exchanire in law, an exchaiiire beini-v the u;iving of one thin;/ and the receiviiiL^ (if another thinir ; while a sale is the LMviu"!; of one thint? for that which is the repre8entati\o of all lies. ' The authority cited for this is one we have already addiu'cd,** in rofrrriuu: to the distinction existin;^' in the matter between the cDiuinon iiud the civil law. We think Salkeld, fairly eonsideivd, is an authority the other way. His langna,L''e is "■ l\rtiiuttjtl'> I'irlnti I'st (■ III jttionl, hut exchauires were the orijiinal and natural way of ciiiiuiiercp, ]ireccdent to buyiiiy, for tliei'c was no buyint: till mill icy was invented ; now, in exehan. 3. ' Ciiinlili. nil Siili'.'i. 1. ° .\iioiiyiiKiUs, :', Silk. 1')", '' S.v i,Mn<. lit,, jii. 14(1; Inst., lili. iii. c. 23; lii'4., lil.. .wiii. c. 3. 1 1'. iiiN, on ( 'on. .'i'.M. 2 A.lili-on nil l^iii., Sii;.. is to ilic s.iinc ('(Vcit ; Imt hi-^ • it:iti"ii. as an authority, Iroin rotlii. r, I Oti!i<;iiiMii<, No. ti, lias rcfcrriici' only to till ttillknowii livil-liivv rule, ami is no! 1 3Iil'li(;ilili' to the coiiinion-law s\ >t(ni. ' .\ III III vinous, 3 Salk. l.'u. ^ I'otliit-r, altliiJii;,'li clainiing that a jsali' is ••sscntially iliU'iTcnt from an ex- cli,nii;i', ill c'tli'ct shows, as in the casiMii Snlkiil, that an cxchanirc is n'nlly t\V(> pal'S ill wiiii'h each of tlir tliiii;;s is both tlic thin;; .solil and the price, ami eaeli of t.Ke niiiti-acting parties is both .seller ami buyer. His lanjriiage is: "The contraet of e.\ihaii,i:e luais soim leseliiblaliee tn the eolitiaet of sale. It lleM the Jilaee ol thai eoiitlaet before the use of money, whi' h J,'ave birth to tin' contraet of sulc ; for which reason tli>' 'sal iiiians thoiij;lit that an exehaiiv'c wa.s ,i tiiii' contract of s-.ile. 1>. Us. 1. 1. 'I'lieopiiiinii iif the I'roculci- alls, wild deciili'that the roiitlai-t of ix- chaiiLTe isditlerelil I loin tiie contract ol sale, is inon- cc--ect. 'I'lu |iiiiici|ial diU'erciice is, th.it in the contract ot sale we di.-^tiiijiiiisii tlie tliini,' and the iiiice; we distiii^'uish between the contraet iiifi jiarlies, one of whoinistlie sellerand tiieoihcrthc laiyei. On the contrary, in the contract uf exi hiinj^i! each is both the tliinf; aiel the price; each of the contraetiiij; parties is both seller and buyer. I). l.H, 1, 1. §1; D. 19, 4. 1." Poth. oil S.ile, Ciishin^'s Trans., I't. 7, art. 6, pi. 620. i I ' i I 1 f| (if COMMENTARIES ON SALES. [book I. As in an oxcliango or barter " both parties are buyers and st^ll- crs," fur which, in the case in Sall lifi; ami luiiirni'. hut tl IC llll>illcss III IlllVIII'' illK (iM'tll in;! loi' I'li'llos fXiliiiMi'cs l»-t Wfrn imlivi'lii inoni'v, iir iiiinnirivc iiiid tiallic j^ciiurally. were i(M|iii>iti' in onii'i lliit tlii'V inul: M ^y Kin, liil v. A. 'j;U. siipplv tiii'nisi'lvfs Willi « hit tin y ili ,\ sale is sinijily a transl'iT of |ii(i|i- Tlnsc vxrliaii^'cs ( cin>titutcil tiailc erty for a ('iinsiiliiatiiin." Wilson, urtju- money was I'sscntial as tlirir niciiinni. enlo, ill An^'lo-l',f,'\|itiaii Navi^^ation Co. as soon as tlie iiatinii 1" rami' tin- moI V. He I-. U. inc. I' Ami mill ilueer ot all sorts of ( ommoilities, li HelijaMiin (see sei li •nj. on Sales), in IS no lleeij ot I'Xeliaiij'es lict ween imliviil' «'liienlatim,' the tlislimtioii lietwcen a sale iials that ihev mi;;ht nt-i what tlnv i* . 11^. llile •'exeliail^'es ■ is tl'eat.il ili ](il, where a salo ami a harter or e.\ihan;,'e merely another name loi sale nre liealeil as iileiitieal, ami whi lulll Ahe.uly iiUsioineil to ai lept money lor romiiii ill;; Sir William .lom's, it was lieM, that ties, the iieii|ile next aire|iteil promi ■'wherever there is a ilelivery ol piopeitv iiionev, ami . lot il to look ,tt all on a coiitraet !or an eipuvalent in inonev the representative loi the thin;, lepreseiilr or aiiiiir ol/nr ni/ii'ihl,- rmiiinnilH ii, ami not .Momv was hut a siijii of leal i omimilili' for the return of Ins itlentieal siil.|eet- Imt eivilit was liiit tho sii,'ii of a -i^'ii matter ill its ori;;iii il or an altereil lorni ihis is (I Iriiiisfrr ,,/ /irn/irr/i/ fir vit/iir, — ///(r/. p. :i-Jii. MiilieV is lilelelv a tori for till it II iml not a hailnieiit. ivimnts I'ietv ; while all tie So, piipiilaily, "All the woiM is a mil- transactions of iiaile am! Iinaie ki«t, «1 It IS a mat kit nml all the m the time I. tied hv eheeks noti ml women mr InnuiKi wiili traiister ol hoi mid silliinj nil till' liiiti'. Till III Ili IT III err C censr.i iirr i-iiii.i/itiiHi/ oijiriiiij tliiii'l ill rjilnnnir fur sniiir/liiiKj cisr, diiil 111 North Aiiiei .lainiary, IS'.'l. p, 111. ills eiHIIll-' lean I •view I : Tl le funetion of inonev. wlietliir Ciiilstanllii liitinii) likr Imrijains inrssnl golil, silver, paper, or other mate vpim illy I 11.1. (liiii's ill genuine smile ireii- ii to iiirnsinr tlnviilurnflliiiiijs In Ir'' II I genuine siiillo rlnni/jnl. III iiiil III. I Jlrr/imi r.irli ni'V tiaek. Sonielioily has .saluted me lespeet- Hon. Houer (.>. .Mills, in N. Am. I I'lilly, and that person is jinid in In.t M luii' (i. ('., sin ill! for smile IH'.MI. And au'ain. from " Money, ami i!i spcct for resiHMt ; a hartor, yot a .sale ; the Meehanism of ];\.h,iiii,'e,' hy I'i.>l'. V essential 71/(1/ /»rt) (/((tl of a sale not heuii; Stanley .levi M. A., I'. 1; waiitinj. Anoiiviiious, 3 S.ilk. l.'i"). The earliest lorm ol exehaiiL Ro.sc 0. f'h'Vi'lamr.s Sludifs, licciprucitij, have eoiisisted in >;iviii>,' what wis 11 14th ed. pp. 27, 31 wanted directly for that which waswuiilfiij PART I.] WHAT IS A SALE? Still another aiitliority for a definition, which, in effect, is the siiiur us tliiit of I'arsons, and which v.o think is a little worse tiiaii that ol" Story, we get from a well-known Knglish work liy an Anicrican writer, Ijcnjamin ou Sales, lienjamin defines "a sale of personal property" as "a transfer of the absolute or li' tr.illii' wo i:ill 'barter,' or 'tni'k, till' Kniii ii ''■'"'. ••"'1 ili>!iM,i,'iii>h it Iruiii ^ali' mill |iiiriliiisi', in wliii li mu' ol' tlii' .nti-lis i.iiliiiii'i',1 is iiitciiilcil to l)c [lirM ciilv I'nr a ^liort tiiix', until it is itiii witli hi a S'fDiiil mi nf i iihiiii'ii-. 'I'lir i.lijirt wlij.li tinis t('iii|"irarily inti-r- |Vi iM s ill siili' .iiiil |iiiiili,i.M' ii iiiiiiiL'y. At ltii~l NJijliI it iiii^'lit seem th.it tlir llic of liii"iii y iiiily iliMiMcs tia- tiiiulilc, liy iiuk- liiu' lii'ii I'.irhiiiKji.i iH'ri':>sMiy wImti' one |v 1^ siitliilriit ■ but a slii;lil analysis nl tlic Idilli'iiltiis iiilii'iiiit iusiiii|ilf barttr shows Itli.il till' lial.ilKi' of tioiiluc lies ipiitr in [tlir iip|io>iti' ilircction. . . . In tlir iiicsriit lilav liartiM- still v'<""< <"' ill -sonic rases, Irvi'ii HI tlic iiMisl ailvaucL'il coninii'ri'ial Itiiiiiitrits, Iml only wlii'u its incunvi'ii- licieis are not cxin'rii'llicil. ildlilestir Si'I- Valits ii rt'ivi' part o\' tlirir \va;,'i's in lioard liiil loiljiiiiLj ; the lariii lalHUoi may par- tially iitcive |iaynirut in iiilci or liariey, or the uso ol' a |pitic cii l.iiul. It li.is always liccn usual I'ol the Uiillrr to Ik; ^lajij liy a portinii nl' tin- corn wli^ 1; ho UmimU. Till- tiiic'k ol barter system, by 111 li wnikiiirii todk tlieir waf^es in kiiul, |l:i> li iliMv yet been extill^'lllslieil ill some it-iii Kii^laml. Pieces ol' laii hum hand to hand, it serves as tie! |li>i>iiie by which the amounts f,'iveii iiiul lived are esllmateil. Cuiiiiiu-nv liiijnis '!i ImiiY, iinil in it c liit'in snisr it iiiiniia '■iriii-i l)ut the last I'orm of bmirr (the iii'liiii sale) is very dill'erent lioni the liM lorui. By I'ar the greater part of Itiliiiiierei d pavmeiits are made at the Jii^.iit i' ly ill Kiiijjaiul a]>pareiitly « ithoiit aid .i| met. dill' money, but they a o •adlly a ijusted, because money ai'ts as lie ciMiiiiiiiii dciiiiMiinator, and what is |iMi;;lit ill oiii' direct ioii is balanced oil by ill It I- >cild ill another direction." iidir statutes rei,'ulatin^' or pro- libitiie,' the ^ale of intovieillillt,' lii|Uors, ^itiitcs 111' limitation, statutes of fraud, id "llici aiialonoiis statutes, sales and Bitcit or evchanj^'cs are treated as in B'l t the same, and payments in sjieciru: •id's are held to be payments within in'Miiiiig uf buidi statutes. Soo cases cited, iiif'rii, in c oniicctioii with our dis- cussion (d' the statute ot fiauils. So, too, money itself is also treated as a coiilliiod- itv, — the sllbjeit id a puit base and sale, .See r.roiisun r. I{udcs. 7 Wall. -J'i'.'; Kaw I'. Mar^tcllei, •! I'riinh, lo; Tiebilcoidi v. Wilson, 12 Wall. iW7; Taiip v. Ibcw, 1(» Mow. 'JIS; ('heaili: Kee v. (uiteil States, 3 Wall. ;i2o; I'aikir r. Davi,. \\> W.ill. 4ri7; Hepburn r. (Jriswnld, « Wall. tiiiO ; Wariihohl I'. Sc lilictiii(,'. It) Iowa, 214 ; Shoeiibei;; !'. Watts, 1(1 Am. I«.iw lieij. .'■).'i;j; Wood r. ItuUciis, ti Alien, ;'.lti. I Ueii|aiiiin •piililii's this with the su|i- pleiueiitaiy lelnaik that it is "a price iu money paid or iiroiiiiMd." If the jii-ifiiuse be in wiitiiij,', it usually takes tie- loriii of a prniiiissory note, which is iKd money. But his remaik, even from his own point of view. Would liMpiire to lie still liiither supplemented. It the plice. III or;e. The deliiiitiiMi which limits a sale to the one case id' a price stiictiv in iiiouey is the Very Worst of all the ileliintioiis id' a sale. The learned author evidently jrave the matter but little thoi|i;ht. The deliniiion and e.xtensioii id' it weie obviously, al- thoii^di not credited by him, adopted from some of the old coniinoiil.iw wi iters. See Williamson r. lidiy, .S llow. .'■)4I, where the liiii,'ua;,'e is identical with that used by 15eii,|amiii ; and where Noy's Max., c. 4"_', and .Sliep. Toindi., 214, are iiuoti-d. liut tlii'se aiithori''es iiiendy mean that to constitute a sale there must be a consider- ation, — a qiiiil jiru i/iiii. Thus Nny says : " In all bargains, sales, contracts, luoiii- ises, and aj;reemeiits, there must be i/uul pro iiiio." Noy's Mix., c. 42, p. S7. And, " It is a Keneial le.iriiinj^ that tlicie must be in every contract i/nul /im '/no, vi/., some valuable consideration between the parties to bo jiaid or performed, either lu'esently or at a dav to come ; or i Ise some e.irnest to be i;iveli present Iv, other- wise the contract is void ; (or cj- nnilo IKido nun orUar udio," Ibid, Ai^ain, i- :!■ ■n 6 COMMENTARTES ON SALES. [nOOK I. ' ' i writer, in the preface to liis first edition, and in other parts of liis work, intinuites tiiat lie follows and virtually ineoi'porutes in In. woi'k, Mlaekbiirn on Sales. As reirards this dclinition, it is eci- tainly a most radical departure from that of lilaekhurn, aiid, \\> think il is, in two important respects, very far from l)ciii judges, the author of jJlaekhiirn on Sales, Mr. .Justice Mlaekliiiin: whose deliiiiliiMi we repeat, in order to place it in direct juxtajiiisi- tion with that of Iji'iijainin. it is, — "A contract eoverin;;' tln' sale of uiiods may l)e delined to In; a mutual aiireement hetwi i.ii the owner of uoods and another, that the property in tin; <>()(jds shall, for some price or consideration, lie transferred to tlie othi, at such a time and in such a manner as is there airreetl. If il|. considciation to be <;iven for the goods is not money, it miuhi. perhaps, in popular language, rather be calh'd barter than hale: l)iit the legal {^I'iL'i'X is the same in both cases." ^ In this same connection, and as being, we think, a still better dcli nition tlian that of IMackbiirn, we re(|iiote from the later luiiili>l. book on Sales,'- and adopt, as one which we think entirely coiaci, the dclinition which we have already (lUoled approvinuly ; — "Side," says Mr. Campbell, '• considered us a contract, may li. delined agreealdy to English law, as '• An aiiieemeiit made lietut'cn a i)erson having power to d;- pose of the property in a thing (who is callctl the seller) an; another person (callecl the buyer), with the joint intention, (\ ])ressed as liy law re(|iiired, that the jtroperty in the thing sku.. at such tinu! and in such iuanner as is then specilii'd, be trai;< I'errcd to the laiyer in consideration of value to be rendereil i the buyer, and vice rrrxa." The <'sseiitial errors made by Henjamin in his definition. « think, are, first, in stating that the consideration for a sale iiii; be " for a price in money;" and second, in simply delining it "; a transfer" of the property in the thing sold; omitting the fa;.j insisted upon in the better delinitioiis of Kent, IJlackburii, ai:;j ('ampltell. of its lieing a mutual confrart between the parties the transfer, etc. Thus while on the latter ground the deiiiiitiur,- of IJIackstone and IJeiijamin arc fairly open to the criticism 'j one of the ablest of the American judges,-' the Ijetter definilioiL' III j,i' [ " I5ar(»aiii niid salo ilutli si^nity tlic trans- iiig it, and (Miinot Iw without it." Sk; li'irini,' (if llii',. inojirrty ol' u tliini; Imiu Toiiili., (. !*, [i. l.''2l. one to auolliii iiiiiin vahialilc roiisjilcia- ' Hlaiklnini nii Sal(>s, Int., ix. lion. Ami liinin on'y it ilotli ililln- lioiu '■' . n gitt, — lliat tins may l)o williout any •' lUf^clow, ('.,1., in (iaidiicr i'. I-""-! ronsidi'iation or cimsu at all, ami that 94 Mass. 4;i, 41, wlioru he sa\>; "Ti-i liath always some luuritonous cause luov- ur linary dchnitioii of a sale, as a tti [book 1. [\rt8 of liis ites in liis 1, it is ccr- ■II, and, wi' inix an im- Kiiiflaml- lUackbiini: t juxtaiiDsi- )V('rin^' till' M\t iH'tWnjll 1 tlui jitHxls o the ()tl»i'i. !(>.!. 11' th. •y, it niiulii. [• tluiu hale; ^llH'ttrrdti itrr KniiliM. ivly conx'i:!. ixly ". — ract, may l- lowor to ill- sc'Ui'i') an; iitcntion, i\- • thinir sliali. i'd, bo tniiiv r(>ndoix'd h; •fmiiion. « a salo laiivj inini;' it "I'l lllii' tlu> I'iK'ij icli'"'t-i"ii'l''''" •*! contract, and tin- I'itnsuli'ratKm. are all jdv-siippnMil.as well as the other retpiirenients necessary to maiie it a lc'i!al euutraot. Oiii' verv .serious evil resiiltiiiir t'roni IcaviiiL' out of siuht that a Ball" is a edntracl, and einhodics all the cssfiitial inLMfilioiits of a ft|fniitract. will In' adverted to iiiorf tiiUy hcrcallcr. it is stttlicient lito say oil the point here, that as in iill contracts, the intvntioit of Mthc paitns. or, in other lannuaL-'e, tiieir muhinl asH<-u!, is what is Wto 'govern in the eonstriietiuii of the contract (»f sale ; and in de- '%teiniiiiiii,i: what the contract of (he parties is, such intention or ,|jiiniitii;d assent as much afl'ects the contract of sale, as it allecls ^ain (itlier cunti'act. It is, therefore, not at all a matter of sur- •Mi)ri>e, that, where courts and text -writers have itMiored such ||j)l;iiiilv iiianil'ested intention as a noNcrninL' principle, and have JlBulot. tilted fur it, for instance, such tests as the weifihinir or not ':fVeii;liiii'-% the measmintr or not ineasurinti', lioods alleged to have |ll)eeii Mp|i|, ill oilier to decide whether the property in such i^oods '^lias or liiis nut pa.ssed, the most ine.vtricaltle confusion has been :;'|.tlie result. IJeiiiaiiiiu's other mistake in his definition is not less serious. i^p'olluuiiii: up his delinition, he adds, — "ll' any other considera- tion than inoiifi/ be jriveii, it is not a sale."' A definition of "money " in the sense in which it is used in the delinition of sale reli'ired to, must entirely exclude, not only all reprt'.seiitatives of money, such as bills of exchaii'.:*', promissory notes,- etc., but it must also, to make (he deliniti(»n of a salt- as distini,niished from an exchange or a barter of any value, also excliHle all such lliiiiiatiiiii (.r 1)1(1) irity fiitiii one person to liiiiHilicr Icir ;i |iii('(', iloi's Mill liilly ixihi'si tlir c>>ifill;il I'lfliii'lils wliuli ilitcl iulo nii'l iiiaki' ii|> till' ('(intnu't. A iiinii' ((nn* hilrtc riiimniiiliuli (il tliisc Wdtllil lie, — I tuiii]iri(iii |i:iiliis to i-rili'i' into a contiiiit, an :ij,'i( iMjiiMt lo sfll, nnij tln' njutniil ii^Miit (if liir |Mllli^ to ill.' .sulpji'ct-rn.ltti'l (if tliu I Male Mn>l to the |>n(i' to 1)1' |)aiil tlicicfor. Tlnis, il c.innot Ix' ilonlitnl tliat if, iiiider j a rontiacl of wile, a liilivcry was niailo tliiDii'.'li niistaivc of an aitnlc (litlcrcnt lion) ili.ii ,i;,'i'('('(l iijioii by the parties, till re Woi'M bo no sale of Ihi' aitlile ile- livciiii. anil no piopi'ity in it woiiM pass, (ill till' sinijiii' nasDii that, till' vemloi bad not auii'i'il to si'll rioi tlie venileo to buy i it. 'I'licie wonld, in faet, lie no c(«ntia('t between the parties in lesjiett to the ni- tiile aitnally fmiiisbeil; or, to express it in (lllli'ii'nl woiiU, when a material mis- taki' (Miiiis III ir^pcil to the natiiic of tli(( Milijei i-niatlci of a sale, tlii'ii' i^ no inn- tiial as^t■nt, ainl tlien lole the cuiilraet is Void." • Ki'iijaniiii on Sali'>, 2. '^ Wliel-e Hooil, ale sold Upon a ('on- trai t to pay loi liii'in by a iiill, and u bill is ^iveii, the pri< aiinol bi leiovcreil until the pi'llod of the bill lias clapx'd; but if delaiill b- inade in !:ivini;the bill, an aetion will ln' at oiiei' to inovcr thi! present Vahie o! .IK ii a bill. Mllsseli V. riiic, 4 Ka^l, 117; I'litton v. .Solomnson, 3 II. .v: I'. ;VS'J; IJiooke v. White, 1 ji. .V I'. N. U. 330; liilps V. Winterliottoni, 2 B. & Ad. 431. 1 ; 1 !i j 1 '.■ li ■If K 1 #> ^%.. ^ n'V. IMAGE EVALUATION TEST TARGET (MT-3) y A <' €?. A :/, 1.0 I.I 1.25 ^ IIIIIM IIIIM iiiin 9 IIIIM 2.0 1.8 1-4 II! 1.6 V] <^ /a >^#/ ^ ^1 W '3 .^ rv^ ^id for in goods, A. cannot declare in debt for the value of the service, but must sue on the special contract. But if B. by his own act render the delivery of tho goods ini)iossible, A. may sue in debt for the value of the service, as he can do if B. allow the goods to be sold under an ex- ecution against him. Keys v. Harwood, 2 C. B. 005. See Baines v. Payne, 1 Ch. PI. 357; Sir Anthony Jlaine's Case, 5 Co. 20, and, in error, Co. Eiit. 244. In Har- rison V. Luke, 14 M. & W. 139, where there was an agreement to exchange goods for goods, and i)art of the goods on one side was not delivered, it was lield that the action must be on the special contract. But upon an agreement between two tra- ders to supply each other, on the footing of goods for goods ; after a balance is struck between them, such balance is re- coverable in money, where there is evidence of an agreement that the balance shall be paid in goods. Ingram v. Shiiley, 1 Stark. 185. And see Carey v. Pyke, 10 A. & E. 512. And in Forsyth v. Jervis, 1 Stark. 437, where B. agreed to purchase of A. a gun for the sum of forty-five guinea.s, but it was stipulated that A. should take a gun of l?.'s, valued at thirty guineas, in part payment ; B. having re- fused to deliver his gun and complete the contract. Lord Ellenborough hehl, that since the contract was for the .sale of goods to be in part paid for by the delivery of goods of a .stipulated value, u|ion tho refusal of the purchaser to jiay for them in that mode, a contract resulted to pay for them in money. The 25th section of the English Com- panics' Act, 1867, provides that " Every share in any comiiany shall be deemed and taken to have been issued, and to be held, subject to the payment of the whole amount theieof in cash, unless the same shall have been otherwise determineil by a contract duly made in writing, and filed with the registrar ot joint stock companies at or before the issue of such shares." In III re Liniehouse Works Co., Coate.s's Case, L. U. 17 Eq. 169, it was claimed, but not establislied, that the necessary instrument under the Act had been tiled to .sust.iin a payment for .shares which was not literally in oa.sh. Having failed in that, it was then claimed, under the fol- lowing facts, that the payment for the shares met the reijuiri'iiiciits (if the Act. The memorandum of association of the eompanj', formed for tlie pui]iose of pur- chasing and carrying on the business of C. , was subscribed by him for 2,5o(i shares, which were of £1 each. It was also sub- scribed by other jicrsn-.s, by which the number taken amounted to 6,265, out of a total capital of 7,500 shares ; and the ■ ri - i i- li i m 10 COMMENTARIES ON SALES. [book I. from a learned American judge,* whose judgments are always worthy of the most careful consideration. Says Mr. Justice Bigelow, in questioning whether there can be any doubt whether an exchange can be deemed a sale at common law : " The dis- tinction between a sale and exchange of property is rather one of shadow than of substance. In both cases the title to property is absolutely transferred, and t'.e same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of barter. It can make no essential difference in the rights and obligations of parties, that goods and merchan- dise are transferred and paid for by other goods and merchandise instead of by money, which is but the representative of value or property."''* company could only issue fresh shares by special resolution. The articles of associa- tion stated that an agreement hail been prepared between C. and the company for the sale of the Inisiness to the latter for £5,000, of which one-half was to be fully paid-up sliares of the company. This agreement was executed shortly after tlie registration of the memorandum and arti- cles of a.ssociation, and was filed with the registrar of joint-stock companies. As between C. and the company, the sliares for which he signed the memoran- dum were treated as being the fully paid- up sliares wliich ho took as part of the l)urchasc-moiiey, and he was debited in the books witli £2,.'J00 due on the shares, and credited with £.5,000 as the price of the business. The company having gone into liquidation, it was .sought to place C.'s name on the list of contributors for the 2,500 shares. Tlie court thus deals witli the question. JIalins, V. C, says : "But, then, it is argued that, assuming that he is bound to pay for these .sliares, in j)oint of fact he has done so. But to this it is replied, that all the cases where payment 'in meal or malt,' as it is called, has been hekl to b(! good payment, were deciiled with "efercnce to companies to which the Act of 1867 did not apply, and that what might have been a good pay- ment formerly may not bo such now. I confess 1 do not so understand the Act. I quite see tlio stringency of the provisions with regard to the liability on shares sub- scrilx'd for ; but I do not understand that the Act of 1867 has made any alteration whatever with regard to what shall be good payment for shares which have been admittedly subscribed for. If a man sub- scribes, as in this case Mr. Coates did, for 2,500 shares, he thereby incurs the liabil- ity to pay .some sum of money, say £2,500 ; and if in payment of this sum he hands over to the company goods which they wanteil for the purpose of their busi- ness, the validity of the transaction would not bo alfected by the Act of 1867; and I think no case has occurred in which it has been held that it would not be considered as payment ; and I taki? it to be perfectly clear, from all the authorities cited, that payment may be made otherwise than by cash." And it was held that C. was enti- tled to treat the shares for which he sub- scribed the memorandum as the same shares as those for wliich he sold his busi- ness, anil that the shares were jiaid for in ca.sli within the meaning of the 25th sec- tion of the Act of 18(i7. See Fothergill's Case, L. R. 8 Cli. 270; Spargo's Case, L. 11. 8 Ch. 407; Kvans's Case, L. R. 2 Ch. 427; Dent's Case, L. H. 8 Ch. 768; May- nard's Case, L. R. 9 Ch. 60 ; In re Baglan Hall Collierv Co., L. R. 5 Ch. 346; Schroder's Case, J.. R. 11 Eq. 131; Cle- laiid's Case, L. It. 14 Kq. 387; Sichell's Ca.se, L. R. 3 Ch. 119 ; Jones's Ca.se, L. R. 6 Cli. 48. In two ca.ses very similar to Coates's case {In re. Denton Colliery Com- pany, Ex piirte Shaw, L. 1!.18 Kq. 16; and Lire New Zealand Kapaiiga Gold Mining Co., Ex parte Thomas, Ibid., 17 n.), pur- chases of pro])erty by the company, payable in shares, were not treated as jiaymeiits in cash ; but sluires were allowed to be issued after the registration of the contracts. 1 Bigelow, J., ill Commonwealth v. Clark, 80 Mass. 367, 371. '■' In this case it was hold, that an ex- change of intoxicating liquor by a distil- ler, for grain from which to distil such liquor, is a sale within the meaning of tlie statutes of Ma.ssachusotts, 1855, c. 215, §§ 15, 17, wliether the liijuor was deliv- ered at the time of receiving the grain or afterwards. By this statute it was en- acted that if any jierson "shall directly or indirectly, on any pretence or by any de- vice, sell, or in con.sideration of the pur- chase of any other property, give to any *r PART I.] WHAT IS A SALE? 11 Resulting from this view of the law it follows, firsts that a sale of personal property is not less such a sale because a part person any si)iritiiou3 or intoxicating liquor," liL' sliall bo subject to the peii- iiltit's jiroviiliMl in the act. The court Iiere licld, that if there can be any doubt on the ([ucstion whether an exchange can be ilcenied a Side at common law, it is quite dear that no such doubt can exist under the provisions of this statute; that tlie intention of the legislature by the pro- vision was manifestly to cover every case of the transfer of intoxicating li(]uors for value, in whatever foi'm the consideration for such transfer niigiit be given or paid. Jn Howard v. lliinis, 90 Mass. 297, the same question came up again, where it was decided that no action lies on a war- ranty given upon the sale of a horse, the price of which was paid in spirituous li(piors, which the purchaser could not legally sell. It was claimed that the only offences specified in the act were a sale and a gift, and that a sale is a transfer of prop(!rty in consideration of a sum of money to be paid for it, and is different from an exchange or barter. But the court refused to sustain this distinction. Bigelow, C. J., in delivering the judgment of the court, said: "The fatal defect in the argument of the learned counsel for the plaintilf is, that it leaves wholly out of view the clear and manifest purpose of the legislature in enacting the provisions of the general statutes regulating the niaiuifacture and prohibiting the traflic in spirituous and intoxicating liquors. If, in giving a construction to the pro- visions of this statute, we could confine oureelvcs to the strict technical definition of the word ' sell,' and interpret it only as meaning a transfer of property in consider- ation of a price paid therefor in money, we sliouM have no difficulty in arriving at tiie conclusion for which the plaintiff contends. But we cannot do this unless we violate one of the cardinal rules of in- terpretation, and, instead of construing and applying tlie words of the statute to fulfd tile intent of the legislature, entirely disregard and destroy that intent by a narrow and restricted interpretation of the words. ... It is too obvious to admit of debate that the main purpose would fail of accomplishment if intoxicating liquors coulil be freely obtained without restraint by biuter or exchange of other property therefor. The jirohibition of sales, in the technical sense of that word, would be of little etl'iM't if the trade were left open to be carrieil on in other modes. Indeed, the construction for which the plaintiff contends would amount to a virtual repeal of the statute in its practical operation, as a means of checking and restraining the evils which it was intended to jirevent. In a general and poimlar sense, the sale of an article signilies the transfer of prop- erty from one person to another for a con- sideration of value, without reference to the particular mode in which the con- sideration is jiaid. It was in tliis sense that the legislature used the word, and not in the technical and narrow sense of a transl'er for a price jiaid or agreed to be ])iud [this is an inqirovement on Benjamin's" prumiscd "] in money. The legal distinction between a sale and an exchange is a merely artificial one. The rules of law are the same as applied to both transactions. Practically there is no dillerence between them. To make such a refinement the turning point of the in- terpretation of a statute, contrary to the plain intent of the legislature, would be a violation of all sound rules of construc- tion." In accordance with the holding in these cases, it was held, in Mason v. Loth- rop, 73 Mass. 354, that a delivery and re- ceipt of intoxicating liepiors, as jiayment for a service performed, is a sale, within the meaning of the statutes prohibiting the unlawful sale of such i" quors. In ac- cordance with the holding in these cases is the view expressed by Ilolroyd, J., in Dcnn V. Diamond, 4 H. & C. 248, 24G, on the question of the meaning of "sale" in the English act, 48 Geo. 3, c. 19 ; where he says, " Upon the true construction of this and all similar statutes, I am of ojtinion that the transaction in question was not a sale of lands within the mean- ing of the legislature. A sale imports a quid pro quo, in some way or other, eiiur- ing to the benefit of the seller." Tliere is a case in Indiana (Stevenson v. The State, 65 Ind. 409), where it is held that it is necessary, to prove the charge of uidnw- fully selling liqU(n\s, that tJ(C sale was maiie expressly or impliedly for cash, but might have been on credit. "A sale on credit might be within the statute." The court itself, by its use of the word "sale," implies that there might be "a sale" which was not expressly or impliedly for cash, paid or to be jiaid. As far as this case can be said to decide that a transac- tion is not a sale, within the meaning of the statutes, because another consideration than money has been given (uv the liipior, wc think the Massachusetts decisions are the sounder. See infra, where wt' consider this question further in connection with our discussion of the statute of frauds. But even with reference to mere mat* ters of pleading, the cases are not all in : rm "-; : i >!! laiiitill" having perfoinicd all that he had stipulated to do, an action mii,dit be sustained on a general uidibiUitus Kssarnpsit for the price of the luopcrty, ami tliat it was not m.'cea- sary to declare spei'ially. So in Way v. WakefK^ld, 7 Vt. 223, it was held, that when i^oods are ])urcliaseil, and the pur- chaser reserves to himself the right to pay in certain pro])erty, lumber, produce, etc., lie may pay within the time without de- nian." Way v. Wake- field, 7 Vt. 223, was approved and followed in Wainwright v. Straw, 15 Vt. 215, in the same court. There a stove was sold for a given sum, payable in cattle or grain at a future day. It was claimed that when goods have been sold and actually deliv- ereil under a special agreement, the gen- eral count could not be sustained, unless till! contract was to pay in money, and the credit had expired. 1 Chit. Pi. 338; Musson V. Price, 4 Kast, 147; Brooke v. White, 1 New R. 330. And if the con- tract was to pay partly in money, and partly in gooils, the general count cannot bo sustained, if the term of credit has ex- pired. 1 Chit. PI. 338. A fortiori, if the contract was to pay wholly in goods, and in the alternative, the count must be special. Pennv v. Porter, 2 East, 2, and note to p. 4; Tate v. Wellings, 3 T. U. 531. But the Vermont court held, that, alter a breach of the contract, a recovery might be had upon a general count for goods sold and delivered. The court considered Way V. Wakefield, 7 Vt. 223, as being accord- ing to the current of Knglish authorities, and must be regarded as settling the law in the State. The .same doctrine was held in Porter v. Talcott, 1 Cow. 359, where we find it was claimed, as we have stated it in the text, that the case of Anon., 3 Salk. 157, instead of being an authority that a .sale and a barter are essentially iliirereiit, is ri-ally to the effect that a sale and barter are the same thing. "Pcrmuttitio vicinc est onptioni," and "in exchanging both IHirt if s arc buyers and sellers." In Porter V. Talcott, 1 Cow. 359, there was a salo or PART I.J ^HAT IS A SALE ? IS ■xclmnge of one vps^^) f„. >-..=iOO°to be ,.ai,rrno?^s""T''''' "'"' were «,ven, but were o n..; ,^'^/.'°'^-^ 'I'i"^' gelatin., to K^^^^^^^^^^ :'i^vny. to ti>,. r.,si,lN... "s,^d fo , f 'r"'i ", **"''■■ "« _t'"^'>umtak«M.ths.^t,„-ii.T^-<'i- ""•"t is ext.,.Mt,,'V]'«t. where an amv- wiii not ,^^'.;;;;ift, ''£^'j-^....U foriii.'d; biitwl,,.,) tl,„ ''""'•^"' >t are i.er- |.i-linK.,,,!';/t2;«» fully recog. Martin Fit,. ^02 aL' "'/•«''' « ^H. it ♦f/r' for, oods"UrSiMh ''*'■"'■■•'"■ "' "'e j,erio,l at w],i,h t '',V,'f ""xinration the ju-iiod of cred t S/./ v''/'^''*""*'"" of will lie. '""^' "'<(<^f"('itus amcmpsit t7-'''I,:lt j-'y^ was heh, in Slay- whore goods are .dd to ?'• ??V •'2' that "'• i» part b/oth r In .f''''"'/°''^^l'olly f«"danfs hi/or o, ff'' "■■ ''•^' t'"' de- •"""^T. the ae ion nn '7'1 *''''"' i" ™"'it on t],e a-'reen,en \\- ^'^ ^'l^^'"'"' " t.and notfo"; , ok" 'A""' '"'',■'', breach i> V. We.stervelt fi7 \V°''''"" ^team This last ca,se .loes'f' ^/'z ^^6, 450. "■'"■'" there i a writter"^"'''^'"" t'-'^t '""•'■ f'"^ tern,s„t !'" T^'^'^ ^' to ''''■'''''''''«'> th fa ion, ""*'■•?'* govern, '■"•u,ts in 7,u/Zl'Z ""■*'"' «^""""o. ''."''"' " lu.re L'oods „..,f I IV' ^'owever, ^"'' to the .hSd toH ''•'>' ^'''' I''''"'- '■''""■'led in lie , h; """■'• Soo'l'^ to be "otret„rned../t?, "••■'""' t''«s.Mvere f;''''ieiivereito,;iI uT'r'"^ «''"''« -I'l f.'x^'leeis.onisaso , '"' ^^'« "''"k ""^wlnelMveSdlT- ^he distine- "f'7 goods (..-, -jr,' to 'c paid for in fioodsaretreate b . ^ ' / ""' «« t^^^^e ^'-- «"'n of money f tl e '""■"'' "' ■■» ^Peei- »'^''*^^.« '^.w. i;, // : f^^' "ot delivired. »- thou,, the 4;i;;^ij-^-g, fS^sK^^-i^'-e given r,r (ai.other of the States , ?." . ^'""'I'sl'ire ren.ark, en pass,iu,[' '"'''' "'' "ould t«/ l-^' found h,Sr."!"^'''«onnd law is tl'e court, says- "T Vf '''^.""'g'uent of ^o""t 'uay son.et ,ne '")■ "'"^ i' «'-'H'ral where tin- goods w'"'';/';' ""!'''tained. other goods.^ Oft L , ""' 1'""' f"'' hy I'laintilf. sold the,, .^ }^^'"^- 4;J7. The "^•7"ineas;.;; '!;-'■;; ^ gun lor A,.;! fendant a gun, in" ,, ^' ^''^' "' ""' 'le- P";'eofthiny ',i ,.l''"t, I'">!'.'':"t. at the ^"■I'l, that a.s In" w' • , "''7'' •.'"'■"horough J'--'>'1 for in part bvoth , '" "«'""'«' ^o bo ;'t«ipn^.e,';,,H,n% '',-,«;';;''%"» ^sti,,u. cha.ser to pay r,.,. , .•^' of the ..up- " ;-ontract' ^e^^l'.e '"i:. ZJ^f -ode, in money, and that tl ," f' ? ,''"' "'«'» ^■■•« K'ight be re,'oyc, ^T''^"^- g"in. fo'- goods .sold. This '""''■'■ '■' «'u..t "•-"teri.stic of a .sale T , ".' . • " .'■^■^■'T ehar- «"" for a .si.,-ei i,' I ■ ''''""t'ff -^"hi the "greed to gf^e j ' ^^T'*''' *'"' '""'Ut, another ^« J'o refused to .leiryer f b'"'^' '^' l"'''^"- «'on that be was i debt' i '' ^""' " ''^"•'i- forUsprie,.a.vord witrb '''"''''^^ I the nuthoriti,J> Si/,"' p'-'-''''! t'-ne ^- H. 31(0, 3()4 '^I'tehell i: (iilHo IS taken in Loomis „ u-' •■"'"'"' ''■'^tinetion C20, 528, where tw-)"''"''^' -' ^'t- transaction Z, an e? T'"^'"''^''' <''"' « -'Je- Theco,;:^:,,':-^rl'i';;f;"-;'inota e^-press evidence that ,„ .^'r'''-''''"^'' "f was intended, a s- 1, „ ,?':''"'-"' only ferredfromth fiSt ,f ,J''!''^''^''''- governed by a fiv,",! , ' ' r " V'"'^" was !'''»grmlpriee ,i, , '''^^or the bor.se; i'l'gainorsah '^, r;;''""o"I'ropc; tl'e ca.se of a n.er, , ' r '' ""'•'"ess in <^on,nK„Iiti,.s e •'},,' ''/''''f- '^'''ere th. «"I'!"«"<1 valued ar'^'::';;""''^'- '"" their fi'iuivah.ntsbj/j";,,' '''^'I'y >v..eiye,las r-ieo of such pro . tv !'',• ^V^'' 'o'' the 't cannot now'/,"',. .."''' i"" 'ielivere,!, t'onofa.s.sun.pstn.v, '""' "''■^t the ac! '; the same e'wSJ:;'-''''l'orfecI.'' See Vt. 201. .See als,f; ;''''' '•/^''''U'S 10 '3; Herrick^.'Car ,.':•,/'•!"■". ^^ ■^^'^^ f; ^Jleason, 5 \ ' ,1 't 'r'''', ^^ • I'inuoy lockwell, 4Hi,, V''-. 'i'^' ''O'^l^w.ll V. "ethmk the bni,i;« • "• '^ ^onn. .IS. ""> position, cannot J"l!r-' -ntrayenes -pie or sound aurrl^y:"^;;:!-^;;^;;^ * '! ; '! : ■!■ 11 il p 14 COMMENTARIES ON SALES. [UOOK I. 1 Hj ; ■wL MflAiiP^ JjH iwhhH ' ■ j^Hii 1 mm 1 flP 1 ffli double sale, in wliich each of Ihc parties Is a seller and buyer, the law affecting seller and buyer applies to each of the parties to the sale, as it may affect him, respectively, as such seller or l)uyer. In the large number of sales made in the agricultural portions of this country, where goods are sold and agricultural produce is received as payment, the effect in every respect in law, outside of such technicalities as arise in exceptional cases, is substan- tially the same as if the goods were sold for money at an agreed price, and the agricultural produce were also sold for money at an agreed price. The fact that in such cases the payment and j'c- payracnt of the actual money is dispensed with, we should say, on what we think is sound principle, sustained by the highest author- ity, renders the transactions in effect no less sales than if, in the cases namod, the medium of exchange, money, were employed ill effecting the exchange, or its erpiivalent, the double sale, of the goods on the one hand and the agricultural i)roduce on the other.^ so, whore a price Ims been fixed by the pnr- ties, so us to put it on a money basis (for whicli only, in assiiniiisit, a judgment can be rendered), it is dilliuult to sen, on prin- ciple, why, where a price has not been fixed, a qnnnfum videhat count in assump- sit would not be sustained; in which case the measure of damages would not be, as usual, the value of the goods sold, but that of those to lie deliv(!n'd. On this view the reasoning and holding in Way v. Wakefield, 7 Vt. 223, and in Clark v. Fairchild, 22 Wend. 576, would accord with a succession of well-decided cases. Where, as has been intimated, the contract remains executory, the declaration would have to be on the special contract, and the measure of damages would be the loss caused by the unexecuted contract. Rob- ertson V. Lynch, 18 Johns. 451 ; Ray- mond V. Bearnard, 12 Johns. 274; Jen- nings V. Camp, 13 Johns. 94; Clark v. Smith, 14 Johns. 326 ; Dubois v. Del. & Hudson Canal Co. , 4 Wend. 289 ; Tal- vert). West, Ilolt, 178 ; Leigli v. Patterson, 5 Taunt. 540 ; Gainsford i'. Carroll, 2 B. 6 (;. 624 ; Shaw v. Xudd, 8 Pick. 9. See also lirooks v. Hubbard, 3 Conn. 58 ; Jones V. Gilbert, 13 Conn. 51G; iJush v. Canfield, 2 Conn. 485; Wells v. Abernethy, 5 Conn. 222 ; Mc.Mpin v. Lee, 12 Conn. 129; Gregory v. McDowell, 8 Wend. 435; Way V. Dox, 9 Wend. 129; West v. Beach, 3 Cow. 82 ; (/lark v. Pinnny, 7 Cow. 681; Pinney v. Gleason, 5 Wend. 393 ; Meason V. Phillips, Addis. 34() ; Kdgar v. Bois, 11 S. & K. 445, where goods purchased were made payable in other goods at a specified price, and it was licld where the payment was not made, the measure of damages was the price specified, and not the value of the goods wiuch was to be paid, on the day of payment. ' The strictly technical distinction be- tween a sale and a barter or exchange is very seldom regarded. Thus it has been repeatedly held, in terms, where the trans- action is umiuestionably one of barter or exchange of goods for other goods, — in many of such cases not even a price, on the basis of an exact valuation of the goods exchanged, being fixed or stated, — that the transaction is a sale, when, techni- cally, it is only a barter or exidiange. Thus, in Powder Co. v. Burkhardt, 97 U. S. 110, 116, agreeing with such cases as Pierce I'. Schenck, 3 Hill, 28; Norton V. Woodruff, 2 N. Y. 153 ; Jlallory v. Willis, 4 N. Y. 76; and Foster v. Petti- biuie, 7 N. Y. 433, as a correct exposition of tlie law, it was held that where logs are delivered to be sawed into boards, or leather to be made into shoes, rags into paper, grapes into wine, wheat into flour, if the jiroduct of the identical articles is to be returned to the original owner in a new form, it is not a sale, and the title never vests in tlie manufacturer. But if, on the other hand, the nianufaeturcr is not bound to return the same wlieat or flour or paper, but may deliver any otiier of equal value, it is a sale or loan, and the title to the thing delivered vests in the manufacturer. See South Australian Ins. Co. V. Randall, L. R. 3 P. C. 101 ; Barker V. Roberts, 8 Me. 101; Smith v. Jones, 7 Cowen, 328; Hyde v. Cookson, 21 Barb. 92; Kingv. Humphreys, 10 Pa. St. 217; Stevens «. Briggs, 5 Pick. 177; Denny v. Cabot, 6 Mete. 82; Judson v. Adams, 8 PART I.J ^HAT IS A SALE ? 15 Among the very manv so? *^ --, is not paid, i, o„c VetoU^ctr:'"" "''""^ --■> ^)''«on I.. Coo,,,, 10 \ ^i"'-''''^' 35^; J^«;non, 106 j„, ^' o"-'-. 200; Ljo,, v. f02; l."ichani:;,„'"\')/;;,«to..t 2 111. i ,; *!l!^''^ is no o, "- «';;Iou.n that «7.ere ciho thing delivf r^y^;:'"''^ tl-o .spe- a<: liberty to ret.i.,, 1'. !i *''"' ''•-■••dvcr is debtor to make a rc^,, .f "^' "' '"'«"",e.s u - property i.s cVu,^^^^ iiut where jroodx «,.,. • . 'i- is a sa e " for sale, wirolrto' et';;',lT '1 -^^ •■"* 'i'^ ^^«fh, lumber, co„ntrv ^ ^V'" I"'"''1><'I otber articles' of "^ /e T"^-'") "'^ "W goods, this does mi i'n ''■"'' '"■• '''« a sale of ^oo.ls hi' tL,T''- 'T'^'^^^^^' -^ — "y mc i.riii,.ij,a to his aimer. 9 ^t.: ., . "'*' Ciisb. 556; Sclieiii'l- 1. e 37; Mansiidd 'r c'o Vf,: "?'I',/3 ^■•".V. -'that the ,.oodsriivlL-t/'^*''« t fi were charged to the ,v ,f '' '''"'"- tbem, and passed in »,!■''"*>' '•^^^'iviiiL' •sionandun.orhisn .^ 1'' '"'^""' I'os-se.s" t''^'V"i«i'tfctdtt£;;;:';^'"'''^'ou«h f?"ods intended to bo sm.r ""'■'"-''"■•' of ''''V?«'''^'l ""^ ?,i'« transaction w^a. 1 " .1 /i""' ''^^t'""- :i S'''Je," the title to hi ° ''""°""t to '^'m at the ele ' tor ?''*''"" »" its re- Prietors of the el "'f'"'"/^ ^° tbe pro- Carb.sl,.\s mill joo I,;!,,! r *', '''"^''-'d in .t'-r'"s that the latt.'r V .° •;'''''''t, "PO" ]t with his own CO ,v, : • ;' ^'^'''^y to mi.v !« pleased, sell "hTE/VM" ""'■'• "•'"'" tbe proceeds to his ou ' '""' ■''I'I'ropriate "■er Wallace sai fit " T\ "'"' "^'^n- [•^■-•et, from CarlKle the s. '"'' ''' '•'"^'t to ■^■'"^1. of wheat o, fl!r •^""' 1"«ntitv, in '"'.•='' wheat wo ,ld mnr""' °'" """>• «" I"''^'" of wheat per bnsfr- °'" *''« tben was held that ,1 ?., ' '" nioney. It r''^'^t nor the- „',/-' 1- the ide'ntical ^ returned, and tl,„ . '^''°'" 't was to jnixed with that nrr r'f'''* '''^^ to be "•^ when he >lea°ed T'"''^""'^ "«^d by ;« -jogarded a one 'of '','°"'S^t "^nst ^'arke, 21 Wend 84 ^\ ®'"^''' ^• • °* ' Hiird f. West, 7 agent, Barnes i,. JUcCrea ^V ^'''- ^f^- Jn ti'e plaintiffs deSeml '■'' ^67, where ,^^nowledge that ' S S" *°- "" ^'f' otber grain, which vvi^.\ • "^ "'"^'''l with .f 'I b>-b,;„^ ;;;;;' «ab,^^^ t'on either to pay fo, /),„ ''.'"' the elec- or to deliver tb'o iS f ■ ^''"" "' n'o"ey t}ty of g,,,in whe ' "•'* r".'"P"«l 'i-'an- tbe transaction, i l^L fT''^ . '" '''"«« "ction, as between he , \^'n^ ^^"^ ^'■'"«- '"ortff,gees, amo.i ted /o a ! "'' ""'^ "•'« also Butterfield ""/ t° a sale. And see 226; Fishbaek ..'V.^"' r^'' '^ !'"• St in, 123. In this .,ff '"'"' 33 xMinn. receipts from ^hSpiS/'^^^ for <,uantitics of -aa , , • '''."''■'tc- Cole, from the banks, b, ^'t , '',' ''"-'t received for advances. Tlie eo , f f' ,''' «'^'^"'ity tbisdid not pass hp , • '" ^'"''li"ff that "' any speei'firg ,• /'^^/jf/'^^^l? tbeLnks nnf have understood 1; rV'' ^'"'^^ and tacitly assented L 1 ^"''-' "'""'J. nn' "-ds to the proposition th.,1 -^ tins day i"^-^. iS/l, mconsidera. ilVh[ i 'M-l 16 COMMENTARIES ON SALES. [book I. ''■■it * 1 >f to millions of dollars where railway companios buy iron and other railway plant, for which they pay stock or bonds at an agreed tion of Olio jiouiiil of wool pi:r head nnim- ally, "said slii'u]) to bi! ivturiU'd as f^ood — ill as good condition and mje — as wiii!ii taken." It was held that this was a sale of the slit'cp and lambs to H., and that H.'s vundce was not liable in trovur I'or their conversion. The same construction was ]>laced on the contract in Carpenter v. (irillin, D I'aige, 3lU, where the contract was that cows and sheep "of iqunl mje and (piality " were to be retiirneil at the end of the term. Iliiid v, AVest, 7 Cow. 752, is to tlu! same etl'ect. In .lohnson v. Mcljano, 7 Hlackf. (Ind.), it was held that where two jiersoiis exchanged horses, with the privilege to one of the parties to re- turn, within a given time, the horse re- ceived by him in exchange, and such party failed within the time to return tlu' horse so received, the contract became absolute. The party claimed that he had been de- frauded; but the court, aj)iilying to the case the principles governing sales, and treating tlie exchange as ii sale, said : "There are many cases certainly in which it has been iield that a vendee acipiired no l)roj)erty in goods obtained un} sal^' and n bnrf.Tn/ ^^""' '"'twoen i'! ;;'•"••"•-' '•• a"c rn .fk'lr^r :'< 7"'"'"^ '•'■^'«r,l o Sn,^'H"/"r another, l-'-'-t payment ntlpSn'rf, 1'^''^"'' '" '■''■■' >W. And tl.es"nf ' ""^ "" ''•v- ""»'< the .lisfinetio I ''"^' ■'"''''•• "We taken. If proper y "is ,^,.^^"'* P>'0}.erly •^■■'1" whether the l.rieeT t.M "'"""^^ ^^ « s''on.;tr™f «43;s' S'r^^v''.:ti:;rl.s^;::;r-,£-M>.iee (^^'-''-'^^^or'Sr'"'''"'^'^'- '"•' ti.p Vermont SMn*" ''^''"nt " woul 1 f"-o -listinS, ^",f, ;■'"<' Court made ''l:-r.2r,,yi;'j.i/''. «°»'t there .said '""■'' "'H-ther the „^"■''^'''^"<^"- ' """^ ^«" >'« .snst L,J '*"'" °f book , '7""^''. that then "v ' ^ ■'1'*'°"' '' t '( horse for ♦),„ .,r^ «» exchniirre of !'S''ty..si.v .vnts rath ; ?h„r''"^'"'d *''« ^7«^t .sense of il '';,., f«n'^«ale in the J"';'.v{..vssl.v finds a sale tn , "* ^^'" ""^'i- I'" ^^ are ineonsist nf „'v,"'' "°"« "f the ▼or,. 1. "'lenea from the 2 '"'""' '■■^^'■"tiai t, a " • ' ■ ,"" "w...d ,,;:i,,,. ^i/''-o.ether';::c''j;.''';p">oria,:,: .".'.'.'.','•' ^•■^■'•'.la/ige. "i; •""«'-'. whateJ r'^/';;' -""-.odi.i,.: ;,;,'''"•• ■y'''m.tuallvr,.eive,;'''' ■'"'''"'■^^''l '" I'aeh other /V .' "'"''Ill valents *'"'t the hos.\v' "!T^ I- taken. 1 1, "^""' I.m:o ^ K;: , '" ""• '''■'^' "t --'• 'i^lv'::: ;!=?^^ "p '■':^li S'-ir ^^^^t^ %:''a;;r^-«'"-^^^^^^ --rlinSatK'^-.-- point f' ns that ,.|as.s of ,,. ,, •^.."''^r; al-s./gov- t'e tune for uhieh , ,V-^J'"-''tion of f,"' -^e*' Camphel] 2; Sei' ";'\^" '■""• Hoskyns V. I'uoeov I ''.^<'''- 60.0; Biit.seeNieksen, ?' ^'""^ •'•"S. .Ml 3;«t it «ill sea,. l?i,f ^ "''"'• 312. a J «alo except for^a • ,. T '""""' '>« « CK'"«nent to tran f '",'»""<% that a,, "i Koo,l.s for a hif fV,'" "l'-^"'"te property °ftl.egood,s. 8eiri'7/p'^i«m.ta'.s£ ^Sl; Ali er (• >si, I'loster, 3 Fo^f «o'. t'. Morse, 7 ^ '\ "'/, .'^ B- ,/i2 ; Owen.' Kisdon, 7Taunt. 18S - f'^ Z^': t'<^'' r «'*•: t-hisnmn ^ Co,',nVi";,'''"''2C. I P"tton V. Solomon *\^n^^-&''- 307 • S««neotti,.West.nA ''/.?•* ''• -''^2 '■ f, ''""T. 11 Kas 1 1 8- n/^'f • ^5 ; Holt f«ttom, 2 H. ^. ^^,f^5 . il-V^^ Lai'o,,,, 2J.:i.&B-g!-^^' "o<'l'.ster v. De 5 fc .. & n. 714 ; V F &1ro^,^"- """-.Ion, «f)"^' between :,,";,"•■' «^e analogy-/^ last above cited and A"'^ ^^^ "f''^^'" TO ^°'fJ th,it a sale "i ''"'"' ^''''-''' affec to sUntiaii .J«;«- liver it. Tlie court held, in ellect, on tho siiine jjriiu'ijile as that whii'h ;,'()Veiiis Musseu V. i'liee, 4 Kast, lt7, and th(! other cases, that nssinn|)sit for the wood sold and delivered would not lie, hut that the deelaration should havo lii;en for a brcaeh of tho aj^reeinent to deliver the wood. The distinetion as to the reineily is ei|Ually aiiiilicablo to lioth classes of (iasos. See further, Mank of <'oluiiiliia i-. Patterson's Kxrs., 7 Crancli, .'i()3; Williams V. ShanTiiPii, 12 Wend. 10'.» ; .Jewell v. .Schroeppel, 1 Cowen, M\; Felton ». Dickenson, 10 Mass. 287; Sheldon v. Cox, 3 B. &0. 420; Harris v. Fowlo, eites(ul) tlie entire price, an arrange- ment was made for the ]>ayment of what- ever sum migiit exceed the amount of tho indebtedness. It is tlie case of a man's buying property, and paying for it partly in cash, and [lartly by assuming adebtiluo by his vendor to another. The latter cir- cumstance does not make the tniiisaction a trust, or deprive it of the essential fea- tures of a. sale.'' Wittowsky r. Wasson, 71 N. Car. 4')1, 4.'j(), is, in principle, an analogous case to Keiler v, Tutt, 31 Miss. 301. There the plaintilfs, being creditarfies to the agreement that the absolute propiMt y in the goods shonld be transfeired to the plaintiffs. Any agreed e(iuivalent for the goods would here, clearly, have been the price ; the quid pro quo which, accord- ing to Noy, is necessary to constitute the transaction a sale. By an act of Congress of June 30, 1864, it was enacted that a duty of ,§2.00 per ton on pig-iron shonld be collected from the producer or manufacturer theroof. By section 97, it was enacted that parties who had made contracts prior to the pas- sage of the act were authorized " to add to the price thereof so much money as will be equivalent to the duty so subsequently imposed and not previously paid by the i4 TAUT I.] u P WHAT rs A SALE? sentativo of money is t k ^^ '^--"tin p«,,„en;. ThoTi,," of':,!"' ''"^^ ^^ P-nium or "Ix" l-iovision.s in tl„. i:,..' -I '"■•'■'• wvio 'in>.su mi,l,.,. this act in fl,:. ii ,'I'"'-'' "M.,i in tI,o ."•'■^ "-'' in tu'V'''^ ''"'"'' t''«t ^■'''|''^^>^'(■on,,w.,, ,• .'" ""• N«''i.-s.' of '••f''t.Mothi.sV'';r'''' '•'*,'''"'•'''' ■"*"''' was Cor a .. , i ""^' "l"'''!^ the W'yu.on,i..to.';^;.^-r!;-''''-.tto j7^''yti;n;^:"^:;;-;.con.n.;n;;;;,;- ;'"""""t of ,h„ ,, ° ^^ •« to whi.h tL "•/"■'^ that it con Lt h l^n "'''''■''• ""'l sections !U an,! or/i? Zi f?""^ "'t'ii" ^;"'' todaim thatan ac ion m '""'" "'^■ ,^ '"« 'l"ty coul.Uot r. '• i'"'""""' theven.lor, distinctly or! """"t«i'><',| hy t'"' statute .suvstimtth '''■"'' '^- ^^''"'^ ""t mean that £ 1?" ^T' '^ ''"^'^ ""l-^t take place, „ i t mf H ' "' ,«^-''tion f'""; time has ,,,,/"."?• ^"-' "^ the }^''"l"ora I.ortion of H,5 "•''*"'" '"o"' the J';''t "'■ the statute is to f":'?" " The ob- t "^ ' t ■'Statute, [an.l \,^r":'"'\ '"^'"l i" «ii"^vs'that '^.t';"!'^'"'-''." ns ^^ »f wn.n.odit -s K ' ""' "" f-xchan^e lr« one sells :''rn:''' ••''''''''''••'• «"!'■ "' "■ "^"t, umy not 1 /;."' •^/r"" '"'■^h.'ls "", "''"■^''' "f terms ' '■"'"''■ "■it'""'t f the farn..^ /n7 ';'"^*''i'^'tth..,,rico tween these parti, ' /'''-^ <-'«iitract l,e. ;7" the iron';;," , 't,;:"i;"!""t'Weesto therefor in iM^iron { , '''""-'iTs to ,,ay "•o" 'ind take tl ,-. " '' '" «'■" l)i"- '"« I"'o(K'rty hot, ; '""'," f"x^'han^r. sellers.'" And y '' V"V'">'"-^ "'^i ""t. the case in Sakel If ..'"'" '""'"t«l usually incorreetlv , ;, . <• ^'"." "'^'i^'h is "I'on the fa,t M-fcthS on'""""" '"'""J "'einhers of the t«n i ". '"""" "'' the «/ the SuprJrt C urt c'ft"^' x"-" /"•'''-'•■ the conveyance of ,, "'' ^"''^ '"or one corporation to tl e otD*"''^^ '"' ^he theS„p,.e„,,e'ourt Lr ' ''"' " '''■"''''; "'■•''"smutation of v'^'ue; and the Tattler thTt ''"^T^'"'^'' i" tract for the transfer Ar " "''''^ ''' " <'°^- person to anothe or a ^Tl^^ ^''"^ ""« «t.on;a.o„,the;e;^3S^J'--^ t!,".ii:j;;i ; I I if ! ■ ^1 • i,n * >l 11 20 COMMENTARIES ON SALES. [book I. commodity. There is then the double sale, the buying and selling of the goods on the one hand, and of the bill of exchange on the being a price (rsed here in the sense of a quid pro quo, as in the definition in Noy's Maxims) mid or to be paid. Tlie court said : " The term as used in the statute should be construed as defined by Hlack- stone and Kent. This would embrace every transfer for a valuable consideration, whether paid in cash or other projwrty. In case payable in the latter, the projjerty to bo received should be specified in the petition [to the court], so as to enable the court to determine whether the proposed contract is judicious on the part of the corporation. Tested by this construction, the arrangement set out in the petition was in no sense a sale of the property by the plaintiir to the defendant. There was no price whatever to be paid therefor. The plaintiff as a corporation was to de- rive no possible benefit as a consideration for the conveyance. True, the members of the plaintiff's church were to be re- ceived into and become members of the defendant's church, and the plaintiff's cor- porators were to become corporators of the defendant. This may be regarded as a benefit conferred upon these classes as in- dividuals, but can in no sense be so to the plaintiff, regarded as a corporation. In- deed, the arrangement could only be made effectual by the dissolution of the plain- tiff, and this result it was the manifest purpose of the arrangement to effect." And see Wheaton v. Gates, 18 N. Y. 395 ; Robei'tson v. Hullions, 1 Kern. 243 ; \Vy- Btt V. IJenson, 23 Harb. 327 ; Stow v. Wise, 7 Conn. 19 ; Wiggin v. Free Will Baptist Society, 8 Met. 401. In the New Ham]).shire case of Mitchell V. Gill, 12 N. H. 390, 395 (supra), where it was held that inckbitntus assumpsit would not lie as for goods sress languac^e of tl,. ' :'''''«"Si> the farther that this S p "' ^""^ « ^ittlo 1 II. J!l. 283; i lanif J'^'Y' "•.^'•^''^er. 287 ; Can,pb,.h""s ,e,l ^'"'';'f/''-'^ ^*-' Alussen t;. IVice. 4 St ,'47 V/'^'-^^^ ' f"Peroy, 9 Ea^t, 498 501 •' k'^i*""-' "' Jessom, 2 Stark 2''7.h; it' ^"^I^'son e;. 7 Taunt. 312 •fce'r '','"-''• "«'<'ey, |S8;Hutchins'orM.'R;i ^;'°"•^1"-"t: ^^ysf. Harwood 2c '.fnr"'"'''^- 329; Jiinrr. X (. ~'^\ ';'«. t'llwon y. Bell. 1 J'- X It r^i) V, '^""'^ >-'■ ^\ hite, 1 H A Joh , 274 /^•^>''"<^'"1 V. iJearnard it Oi . ,u , • ''enninm v. t'anm n V 1 s^-i ; Clark v. Sniifli i j •'-■'"'I'. 13 Johns. "• ''elaware & ilud ' ;'S;'-^ //'^ '^ '^"bois 28!) ; Talver t "west H '/''i^-""' * ^^'"^J- 1 T. R nq . if' . ' Towers v. Barrett 18.- Clark ; FvV- T, ^^"^'^'^^t. 1 C. &P v/iitiK 17. rairneld 00 ii- , ~1** ^Vay e,. Wakefield, 7 Vt '^9,^^ o."^- ^J« .' I'"ke, 14 M. ^ ^\. j'^^- 4<^' . liarnson ». Hernck..Carte-,56-Barb. 41. although 173) the ale o/'t," .'■ "i- '^^"•^••' ^^ ^- V. con.si,ierat.on fbr .'tiP"''' "' ^''e price «; ''■ " ti'e property" is th'e?'"^-'' «"' too, ation forthegSs an » ^ 'f °'' '^""^'''ler: sold to the ]S^Z\T-^'rd "to be with equal correctness i?"'.^ *'"^ «°"^'« J the pr{,p,rty ..s"^7^, be said" that performing the ser;i •' '' if h.*'"-; I'"'''°» case rested on the no«;f;„ ' *'"^''?fore, the P"t it, that, wh le^""' °"' "" ^^'"y bavo price " for labor th.r.'"'^ "''''y be " a of goods or "Ktv '- fof*"^' ."^ ^'--'^'''^f'-''- '^rtv as a sale.^hL [ „.£'a1"1t V"^" f>Ie ;. because the proper v„r"r,'"' ^'''*' •"* he ].aid for by labo ivp?. ??°''' "'^'r*-' to ''»nd be a a"'tuitl!outcon°nve, '""* ""^ 1"-^«tion. °'ay it be pSd for hvT?^''"^'-'°''Jaw othery^./rf/XJ^,;"' by labor, or by any 2 Blk. Com.. S .' 2 > ^ ''-^A'"'' '^^ 42 ; andbeasale 1/ h,^ V'"' <^""i- 468) 0' a sale at con mon f ' ^''^^ ''"«"ition «nleof lands for c^sb'T *° ^'bether a °'' lands in sat sS o"n"nr" "./."^P^^ition w.irrants " u»,„ , '"" °f military land saie, «te".?ron;.tv"^'-'"^ i'-eludc^l i;.".^ ' the ,,nce " of ?.M ^ '■' '-""needed to be think Ihe ase va; vr ^T';'^^'' ^« «bould b'nder a Ntnv H nT -^^Z '^''''^'d- ""h'.s, pavable nfi, ■ that prom ssorv ;;•"'•'' given forT\XMr' 'V^ ^'"'>' the .same as r)ron>. "sin! ! "-onsideration. ""'nt of monr t; X^ "?te,s for the pay! o*" f'e ques ion'w „.r' '''''''' ''•''^^Pe'^tive ""^'htnot h ve b „ '■ ''"'■'"' '''"'-'Ke^ ti"" for fh non I •'''°^*"'*''' '" an ac^ g?t'"'''taCS'S;'"^'VJ'-''i« of the articl,.« l.„ , ^°^ the delivery £::-^n;:t^;mo;;^a*'ir*'"^ fe'^sii^r^i^frS'^^^ ''» the month of v?,?''""°":'"? form: to I'ay I,, s nr K ^^' """^t, I i)romise ."•'■tf' inte est f„7v5',?,''«'-' ^38 iL. 6,;'^ '"%Bdeii;;^rj:t'tm;ir"''''"-^T'''''' ""* miJl. — scantling { , hf ■ I ' i ( 22 COMMENTARIES ON SALES. [book I. The transaction here is no less a sale and purchase of the goods than if the payment were in money. we think it is, uiKiuestionably, wrongly decided, is an important one on tlie sub- ject of barter or exchanges of goods, or the equivalent thereof, sales of goods jjiiyable in goods. In the New Brunswick case stated above, Steeves v. Hopper, 1 Allen {N. B. Rep.), 394, the inclination of the court evidently was (Chipiimn, C. J., a very able lawyer, delivering the judgment), had it been necessary to have decided the question, to have held, and we think cor- rectly so, that a sale of goods payable in goods is, while technically an agreement for the barter or exciiange of goods, also a double sale of the goods ; each of tiie par- ties being a & Her and each a buyer, and all of the warranties usually, as of riglit and power to sell (Anon., 3Salk. 157) ; tlie statute of frauds, etc. (see iiifia, our iJook on Statute of Frauds), attiiching to each of the sales as in an ordinary case of the sale of goods for money, or on creilit, or for any of the representatives of money, checks, bills of exchange, promissory notes, etc. And therefore, on the same principle, for the non-delivery of the goods by either of the i)arties, an action for special dam- ages for such non-delivery would lie at the suit of the othi'r party. Herrick v. Carter, 56 Barb. 41, decides the very opposite of this, we think, un- doubtedly correct princii)le. As the ([ues- tion in this country, where such transac- tions are so very common, is one c)f very great importance, we state the case (piite fully. The action was brought to recover the value of nails, which tiie plaintilfs were to receive from tiie defendant, at the price of $5.37i I""' ^'^'^ l*^^'' ''^'" I't-'i'tiiin dry goods which the defendant had purchased and received from the plaintilfs. On the trial the nails were found to be of the value of .$8 per 100 lbs. Part of the nails were delivered, leavingabalanceof.$191.y2 payable in nails at the rate of .$5.37^ per 100 pounds ; or (including interest) at the proved value of the ((uantity of nails re- (luired to be delivered to meet the balance due, $8 prr 100 lbs. ; i}->S8. .Judgment for this amount, on the liiuling of the referee, was entered for the plaiutills. The referee further found that the agreement and transaction between the ))arties was a pur- chase by the jilaintilfs and a sale by the defendant of a (piantity of nails at an agreed price, to be, and was then, paid for by the plaintilfs in dry goods ; and on the part of the o\ver to sell nails as well to their customers ; and even if such a thing as that would all'ect the construction oi' the contract, the evidence shows on that ])()int nothing else than that the plainliifs bought the nails (payable in goods) to sell them again. Tlie court felt themselves bound to assume, and alike from the eviilence and the un(|Uestioiiably correct finding of the referee, they had no escape therefrom, that the transaction was a pni-ciiuKC by the defendant of the dry goods in i|Ues1ion at a price agreed upon, on credit, and to be paid for thereafter in nails at a fixed ]irice. Then what was the contract ? To furnish a sullicient (luantity of nails to i)ay at a sjiecified valuation (S.'t.Ii'i /)c/' loo lbs.) for dry goods bought for a sjiecific sum. Then if the defendant failed to perform his agreement, and did not deliver such lixeil, ascertained (luaiitity of nails, was he not liable for the direct (laiiiages resulting from his breach of con- tract ! And would not these damages be such as would directly result to the plain- tills fidiii the defendant's failure to deliver the i|iiaiitity of nails which for a valuable consideration lu^ had agreed to deliver ; as such daniaf^cs w.'i'c correctly estimated by the referee in the case / Clearly so. liiit this (luestion of damages is the sub- ject of investigation in a later ]iortion of this work. On the main (|uestion in Her- rick r. Carter, Titj Barb. 11, the misstated decisicm of Anonymous, '•\ Salk. i."i7 (si-e 1 Pars, on Con. i>'2l and )(. sit lies only upon a promise, express or implied, and not to recover damages for torts or trespasses, a mere conversion of the goods of the plain- till", without any sale of them, will not support the action. The doctrine of waiv- ing a tort and bringing assum|)sit is con- fined to cases where the defendant has disposed of the j)laintiff's i)roperty, and received either money, or some article or thing as money. Pike v. Bright, 29 Ala. 336 ; Crow v. Boyd, 17 Ala. 51 ; Strother V. Butler, 17 Ala. 733. If the iirojjcrty has lieen sold, it makes no difference whether the price is received in mouej', or in a chattel at an estimated price, for money. Ames v. Ashley, 4 Pick. 71 ; Mason v. Waite, 17 Mass. 560; Stewart v. Conner, 9 Ala. 813; Cameron v. Clarke, 11 Ala. 259." In the case of tort assumed, trover or replevin would lie. The owner of goods, if a wrong-doer by sale converts them into money, or into that which is re- ceived as the jtrico and the equivalent of money, may waive the tort, and recover the money or the price. The recovery would be limited to the price received, or agreed upon, without regard to the value of the goods; while if he sued in trover for the conversion, the value of the gooiis, whatever may have been the price for which they were sold, would be the meas- ure of damages. Whilden y. Merchant.s', etc. Bank, 64 Ala. 1, 27. In Vail v. Strong, 10 Vt. 457, it was held that in legal strictness an averment of a sale is not supported by tiie proof of an exchange, particularly in a .special action on the case See Wright i;. Geer, 6 Vt. 151. But .sec, where the action is in assumpsit, Porter v, Talcot, 1 Cow. 359; Felton v. Dicken- son, 10 Mass. 287 ; Cotterell v. Cuff, -1 m j '^ payin. 1 L. H. 3 P. C. 101. PART I.J '4 WHAT IS A SALE ?. usual clause that goods J.eldo !,'/''' i-I'-cv containing ^^ surcd as sucli, othoru-iso the 1 "^ "^^ fT'"'''^'^" "^u«t be i ! l^em. The plaintiffs were nil err;7'"'^' '''' ^"^^'^"d to cover ■•aha, and their mode of do ' I ''"» "** ^"«'»*^^«« in Aus iannors, to whom their mode ^nioir'?"^- "'^^ ^'^ ^•-•-ve fto ;;;^oat, .Ineh, on receipt, ^^lt" f J;'?""" ^^^^^ ^-" ^-^-" the larmcrs wJio brought it into i ^''^'' "^ ^''^^ Presence of "^'-^^ed with other wheat shniM ^'' -^ ^°'*-*'-«' vvliorc it becanl f , /'■ 8"'"^""d in their mill T,'?"^'^ '^'^ '^''cat by tho they hked with it. If .rround h « ^'''^ Plu.ntiffs could do wha? ;'as sold and otherwise'dZ l" V"*;' ^^''^'^'"^^^ ^^^'n st.ct Jol -n and as their own p 1; 1 u ^' ' ^^'''"^'^^'^ '^''' they tho S t'os that the idcnticaVwleat^^I "''T."'^^^"^^^^"J^^^1 by^S* ret..ed to them. ThXt'^^ '^t "^ 'r""'''' ^^^^^ equa quantity of wheat of like nnn f ';'^' *""" ^'^''"^nd an ^""1 the plaintiffs, or the maW-^.fT ^ ^ 7'^^' *''^* delivered bv '"y the price as of the day n wl /'?' "^ ^" ^"i"'-^' quantity f.v PJ- "tiffs had tho optic^rV d<^ " '•' "^^^^'^^ ^"« d^unand ' it" P-y;"g such market plo On ?r';^^" T^'^^^* ^^' ''^^« qua ity t ^ >»'t for South Australia) woT n ' !''' ^^'""^ (the Supreme Sf- 285. and other cases cit.,i„ this ""«''«. or oth rSo fS''- °L "■"•^"-'■'' "' «'"' of the rel[,n ;,".'"".?,". ^'"^ <-'"'''''"t ^'*''''' '■" Athe SM tj/„ '[^"'''^"ed. It was ? """f" ?or ti ;•;;;;''.'."? S'-^^^.t^'Hrtifico,: note was Riv'nlZ'J-J''''\ ^■''^'•^' the t;«" oftlt 4^•^^'i^'''|t''e.i..^s,iio- ^I"' ".shop" wl. ,f r •' '^r'' «l"">''gh ei-p'l for tl e nnf„ *''*- .^""''-^ «('re deliv diction. '" """'• ""*« «•ltho^^ their juril. ^ Page loa. i i! i I !: !'i ^ ■ 26 COMMENTARIES ON SALES. [book I. the case of a possession given, subject to a trust, but tiiat it was the case of "a i)roj)crty transferred for value," at the time of de- livery, upon special terms of settlement; that it comes to this, that, " wliere goods are delivered upon a contract for a valuable consideration, ivhether in money or monei/s ivorth, then the prop- erty passes. It is a sale, and not a bailment." Here, it is clear, that a sale and a barter are virtually treated as synonymous (whether payable " in money oi money's worth "), and where goods are delivered upon a contract for a " valuable considera- tion," it is here called " a sale," though the language in its width clearly includes that kind of a sale which is payable in " money's worth," or a barter.^ 1 The case of Seymour v. Brown, 19 Johns. HO, holils coalra to tlio iSoutli Aus- triilian Insuranou Co. y. UandoU, L. H. 3 PC. 101, but Si-ymour v. Hrown has bfien often (luestioncil, and has been more more than once ovcrruliMl. See Smitli v. Clark, 21 Wend. 83 ; Uutfuni i-. Merry, 3 Mason, 478 ; llurd v. West, 7 Cow. 752, 756 ; Ewing r. French, 1 Blaekf. 353, 355 ; Newton v. Woodrntf, 2 Coinst. 153 ; Chase i;. Washburne, 1 Ohio, 241. Where there is a mixing of floods, so tliat the several |)ortions cannot ne distinguisli- ed ; if the internii.xture be by consent, the proprietors liave an interest in common in proportion to their resjjective sliares. Hut if one wilfully intermi.xes his money, or good.s, with those of another, without the latter's knowleilge or consent, the civil law gave the property in the whole to the innocent party, but allowed a satisfaction to the other. But the common law, to guard against fraud, gives the entire prop- erty, without any account, to him whose original dominion is invaded and endea- vored to be rendered uncertain without his consent. 2 HI. Com. 405 ; 2 Inst. t. 1, pi. 27, 28 ; Poph. 38 ; 2 Hulstr. 325 ; 1 Hale P. C. 513. Where the mixing (commixlio) is not wrongful, it has no elFect upon the rights of the resi)ective owners, if separation is practicable ; but, if not, a joint ownership is created. 2 Inst. t. 1, pi. 23 ; Mackeldey, S'l/stcina Juris Rovinni hmlir u/ii/,af,i, §§ 251, 252; 2 Kent's Com. § 581) ; .Tones v. Moore, 4 Y. & C. 351-356; Young v. Matthews, L. R.. 2 C. P. 127. See Pearce v. Schuneh, 3 Hill, 28 ; Wadsworth v. Al- cott, 2 Seld. 64 ; Schutz i'. Jordan, 32 Fed. Hep. 55 ; Ityder v. Hathaway, 21 Pick. 298 ; Pratt u. Bryant, 20 Vt. 333; Bond V. Ward, 7 Mass. 127 : Sawyer w. Merrill, 6 Pick. 477 ; Sluunwav v. Putter, 8 Pick. 443 ; The Idaho, 93 "U. S. 575 ; Mayor of Carlisle v. Wilson, 5 East, 2, 7, per Lord Ellenborough. In Johnston v. Browne, 37 Iowa, 200, 204, the principle was recognized, that where the various owners of property of tlie same kind, and of ecpial value, consent to a mixture of the same, and the ))ropor- tionate shares are known, the loss of iden- tity does not i>revent each owner from claiming his proportionate share. In Young V. Miles, 20 Wis. 615, the plaintilf was the owner of a quantity of wheat, which, with his consent, was stowed in mass with that of others in a warehouse. After shipments had been made from the mass until a ([uantity not greater than that duo him was left, it was held, that this was Ills absolute jirojierty as against the wartdiouseman, and that any invasion of that quantity by the latter was a wrong- ful conversion, and tlnit the plaintilf could follow the wheat wherever it could be iden- tified. So, in Gardner v, Dutch, 9 Ma.ss. 427, replevin was maintained for 7t) bags of coffee, part of 396 bags of the .saiiu! kind, the residue of which belonged to other persons, and from which the 76 bags were not distinguishable, and had not been .separated. And in Stearns v. Pay- niond, 26 Wis. 74, it was held that where logs unlawfully cut upon the land of another, were intentionally intermixed by the tre.s])asser with logs of his own, so that the former could not be distinguished from the latter, the owner of the former might replevy the amount of logs belong- ing to him, from the common nias,s. The authorities on the subject are in irreconcil- able conflict. We do not stop here! to ex- amine them eritieally. See Dawson v. Osborn, 1 Pick. 476; .\usten i'. Craven. 4 Taunt. 644; White y. Wilks, 5 Taunt. 176; Busk V. Davis, 2 j\I. & S. 397; 5 Taunt. 622; Zagury v. Furnell, 2 Campb. 210; Shepley v. Davis, 5 Taunt. 617 ; Low v. Martin, 18 111. 236 ; Dillingham v. Smith, 30 Me. 270 ; Loomis r. Green, 7 Grceiilf. 386 ; Lupton v. White, 15 Ves. 4^2 ; Scudder v. Worster, 11 Cash. 673; PABT I.J WHAT IS A SALE ? 27 So Sir William Jones in hi. , .. effect that wherever thei-; is a del^i'^'^^" «»ilmencs, is to tl,e foi- an equivalent in inoncv LM 7 ""^ ^"'''''^^'*>' ^n a contract "ot fur the return of Z'iZ-Za T '"'"'^'^^ --'-4 Ind or an altered fonn, tkl. U T^;^!:^^-^^^ i" its o^in ' « ^f, a,u] not a baihnent.i T fs ,,-^T:'^^^''''^ ^^^ ^'«^"''. It is b-te. ,,,eh is a deliver,- of , .o ^-t ' '''"^' '^ ^^^'^' ^"<^-'" a a alent in some other valinl, L ^ ^ "" ^ contract for an muk like such a delivery for f t-";'."?'-^' "•^' "^^ in n one ' scnbedhere as a ''sale.'' '^"'^^'"'^ "" "^°"^T, treated and 'de -t iie case of Wm'v ?; Wofi-; 2- V , ^ "^ '^ "'-'^t in spec 1 c answer lur tli.,f ,i * ■ ^ l""^'^'-] of ,,o,,,io -'' '--int.:,;! ';■;•;;,; ',v''-'-<'H-r^ '" <"iy r.'iiticiil„i- hit .r ""'I'loiwity ""'^'''f> till ,■;"„. ^"!'"'', "'°''' tliai. "VH'l. tlK.',ornvtn'sofl,i/o.'''i "'^''^ »« e.Viiiniiii. tJjt' siil,;..,f f FO'" liLsioii. >"g tJ.e ,,,u,ti„ o IS*^^'"^ "' •"•^■'•■"ss- ^■'•tyinoUlsJnnl '.^fr''^'''f '''"P- Jlinn. at p. i-Jg ^auDusen. 33 *"•« took i,|a,.<. i, ""'"■ ^''i'lncs. A t 'e im.i„ s,J ' ' •' ' >;;ved down into "ver, Iron. w}„V Tev , J'"'''';, '"f" *''« ^vero ""warrantully I" J' "■*"":*«'■ it '''"' by the „oli;.;. ,'' ,''■'" t-'l^''" f'oni «""' "' tallow siiMVos-f /'"■ I'°«'^«s- "!"!'l-vlull3.::E^/"^^;;^'l-n stolen ''• ''Huhin, l!) vhiii;^:-;i>f^';va..Jt.'2^^: f-t e. Bennett, 2 S;.i '-sS"^' ^''■°- ^'J'- 108; 'a , . ': \*;" ^•^■'^•. 2 Johns. \pr' '•'•>• clairn "'''"'•« a-''lval,e'„tt;:V''\"'' '''•-' '''^'''''' r'-"ry, 8 How. 4'»5 \rl"n "'"'a'n""" v. 1 "ill. Ill; J looirlih',"-^''^' '"'»'>. rower of sah. oo„,c.,rs ^o rilh " "', ^■'"' ^'a«or to take i., ,..„.;i.-! '""'."J*'. *!'« mort- factor only. It ta. ^''." ''';al'"S «ith a ease, as his b en"^^ , n 'Z';i" °"S '" ^his that a barter ren i. v "" "' 'he to.\t of J'i.s P'ineina To s ', " '"" ""^ "«^'"t r-'-cha.so other gS);'ir'i:'V''''' """ to g'ound that he evee,;,)J ,'■• ''^■^"' "n that ™.n,,Ieting tl e dV', ,' . '" ""tl'o'ity i„ 4Vnony„K„fs. VH T'^'T' «^'« J'o"-. (Mis,,) a'gg tl\^'-'' r- ^''^' 6 •lerton, 2 St • 1 is-' u- ?^'""'*''"'^ «•. Al- 251; W'alker v BwX c''iVT"' ^'""T- [l/^l't to dispoS ti,eLT"-- ^'^ ^'"« "o ^'i« own ,h.bt.s, or bv r^ "" I'''?^""'"* of cnve gocls "; horse. ''""P'-""''^'' to re- •^ash, i," ,li.scham nfTi ' "■ ,''nytJ.ing but ;o/-.pay;)?o'n-trVt'Si?'"'r' following, with 1 ..n\, iv" , November I"-''- bushel. 'SSn ^ r^ ■''t ^^-m at the tin>e sinS/'i ,'''.'"« ^'^livered tbo water preventina. ii ■' 'ow stage of tl.enK,ney\vard e^tlnV',"'"! "^''^ ^hat not bound to receive t « '.' I;'''""titr was -tl'ority in so i i -:"■; ---''eJ Ins Connelly, 4 Yerrr 177 "o*^-. 'Stewart v. "■ i'^WB a & ild !•,« ^° "1 Gnerreiro "'"'t. J3ac. Ab. AeJm ""■' an<"'A't"- Wend. 66; KelIo.'„ ,' P ,'"' ,"• S-nith. 3 116; Steinn,an ^k ; ; :'''';':'\J^ ^-nJ. Lewis ^. Jones, 4 r&'i'r'.' ';,'- 3«0 ; nient in goods of a del, Vw?' .^ '« I'ay- onginal obligation «, 'V'"?"!'''"''* t''e of the action"fo .°t":e ebr,';'?"''^'^''' •■•' ^^r Barber Sir T p "* l""- Case v Du'iie 2Llft-?;:"p'''^?' ^;''atchJ;' :; 2 a & Ad. 32S ,'■.,?;"" • ",■ <^'"-"-^enmn, 3 Joi;ns.C s o 3-. B .i/'^'i',.^- "o»-^ton f8(>; Strong y H, l.>, "^ a^' "^ ''ol"'s. ^. McCreary, 5 Gill & j ' f^'l' .^J'^Creary Sinclair, 15 Vt 4<)'; Vi ' ^■'''""'•r v. "■•tK^les than money an 7' ""-'; ''*'"-''' «g'-eed to be accented f, f T"'"'''^'' ""'1 of a debt, the court u II 1"" ««f'«faction value in monev W^, ' ?°' ?* '"ate their ^n., i.^ jonns ards, 14 Wend. iW. "^ Very ..Levy, 13 How. 345. M 30 COMMENTARIES ON SALES. [book I. aj^rccmcnt by a creditor to receive specific articles in satisfaction of a money debt, is binding on his conscience ; and if lie ask the aid of a conrt of equity to enforce the payment, ho can receive that aid only to compel satisfaction in the mode in which he lias aut no such dilliculties exist in equity. On the broad principle that what has been agreed to be done shall be considered as done, the court will treat the creditor as if he had acted conscientiously, and accej)ted in satisfaction what he had agreed to accept, and what it was his own fault only that he has not received. Indeed, even a conrt of law, in a case free from the technical dilliculties above noticed, will do the same thing.2 An agreement to pay " in the paper of the Miami Exporting Company, or its equivalent," is satisfied by a tender of the ))aper of that company, and the |)romisec can recover in specie only its market and not its nominal value.^ The Supreme Court treated the agreement in this case, to pay, as amounting to nothing more than an agreement to deliver a certain (piantity of Hour or any other commodity on a given day. Tlic court said : " The notes of the Miami Exporting Company purported to be money, and may, to some extent at the time, have circulated as such in busi- ness transactions ; but it is manifest thev were not considered as money by the parties to this contract, but as a commodity, the value of which was to be ascertained by the amount of specie it would bring in the market. And if it should not be convenient for the defendant to make the payment in these notes, he was per- mitted to make it, by the contract, in any other depreciated notes of ecpial value. The defendant failed to make the payment at the time, and is he now bound to ])ay the nominal amount of these notes in specie ? What damage has the ))lainti(T sustained by the non-payment ? Certainly not more than the value of the notes, it' they had been paid." ^ And the actual value of the notes was held to be all the plaintiff was entitled to recover.^ 1 Aldcn V. Rl:ir;uo, Cro. Jac. 99; Kaye firmed by this case in the United Slates r. Waghorne, 1 Tuiuit. 4'28 ; Bayley v. Su|ir<'nio Court. Homan, 3 Bing. N. C. 015 ^ Rradly v. Gregory, 2 Cainp. 383. 8 Robinson v. Noble's Administrators, 8 Peters, 181. * Ibid., at p. 199. And see our view, ill note 2 to p. 10, ante (at p. 14), con- » Oourtois t'. Carpentier, 1 Wasli. C. C. 376, is a case where a note was made in Guadaloupe for 7812 livres, ])ayat)le in sugar as money. Tlie court hehl that, the action liaving been brought in this country, the judgment could not bo ivn- PART I.J "^"•^T^SASALE? 31 '•-•^-•'-l a.,,v,.„ o e,t^^7; '*/!>P<"ar., ,,t / ^^^ "'e block- •""^""'f clue ior fi.e ,,,,^,^'^'^ ^ <^nfo(lt.rat(. homh i! '""""^''"g dl- ^^■'^'' '''^'amount f/?''-''^*"'^ ^''at M.o « n ' V'''"'^''* «f the """'^' '-^^ take,, f c^„ ; r ^^^V'''''"''^'"'''^'n''n T.^^1^^^ ^'' '^'' '»^^"«- ''"■'' "cooptod, u-ore s^ .. """'>'• '^'''^ bonds i "' '*"'>' «« •^^'••'.vs entered as ;'''"'*'^'- ^'•^'*'ited ? ' ''''^''"^"^ "« pay- """. "■'•''''^" after t^;:'*' ''"'^ <''^' 'ettc.- oV t' . ' ^"''"^ '" ^''^^ ''•■'"' '" M,«,.,. ,„„ ..r ' "'"'«^»«^'o»-' ^ i'^^' fanned, did nol "0 use, If Im ! I M i I?. hi' .88 COMMENTARIES ON SALES. [book Resulting from tlic sale being, as properly defined, a contract or ayrcement between the parties tliereto, the general law of contracts as far ns ai)[)licablc to sales applies. Hence, at conuuou law, it is of the essence of a sale that there bo (1) Parties to tlio sale com- petent to contract ; (2) The mutual assent of such parties to the terms of the sale ; (3) A lawful subject-matter of sale ; and (4) A legal consideration for the sale which, as wo have seen, may be either (r«) money ; (/») the representatives of money, as an order or promise to pay money, contained in a draft, bill of exchange, check, bond, promissory note, or duo bill ; or (^.•) labor, or spe- cific articles of goods, or stock. The transaction amounts in the cases where the payment is in something else than money in its strictly technical sense, to a double sale, both of the parties being sellers and buyers ; the subject of such sales l)eing the personal property sold, on the one hand, and the bill of exchange, etc., or the stock, or the specific articles, received as an equivalent, on the other.i but neverthnlpss, nltliouf^h we iiuliiccd yoii to give us ti'ii, you inii.st now piiy flOOO as if Wi' hail taki'u iiotliiiif,' whiituvi'i'.' In tliis case tlioy were at lilierty to take money or money's woitii. Tiie lioiuls were money's worth, and tiiinj^s wliieli they could have turned into money any day tliey tliouf;ht fit. It suited their convenience to take the money's worth, uiul liaving done so, by tliat transaction in my o])in- ion tliey are com|iletely bound. I cannot imagine a more unconscionable claim, and I should never liave allowed it to be brought forwanl if I had been appealed to. I am perfectly satistied uiion the evidence it was the intention of all parties to con- clude the transaction, as tho documents show, by handing over the shares as actual payment and not by way of security. It is a payment which they were on their side at liberty to accept, and having been accepted in the concdusivo manner which I have stated, the transaction was thereby concluded, and therefore Haron Schroder's name must l)u taken olf tlie list of contri- butories." A transaction between the coTujiain niul a shareholder, not literally aniouii' z, to ))ayment in cu.nIi, was treated as i in //(. re I'aragnassa .Steam Tramwa\ ■»!- pany, Adanison's Case, L. U. 18 Kii. 07(1. And see Bush's Case, L. W. 'J Ch. 554 ; Terrao's Case, L. 1{. 9 Cli. 355 ; Druni- mond'sCase, L. 1!. 4 Cii. 772 ; I'eH'sCase, h. \{. 5 Cb. 11 ; In n: IJaglan Hall Col- liery Co., L. U. 5 Ch. 352 ; Vice Chancel- lor Malins' judgment in note. 1 Every case of set-olf is in principle a double sale or barter ; no money, which is the mere representative of value, being paid in either case ; the goods on the one side being set otf against the goods on the other, making that kind of transaction re- ferred to in Salkeld (see ante), in which each of the parties is a seller und each a buyer. wei ii.J oins DisTiNooisneo. BOOK I. PAUT II. GIFTS WSTWGUJSIIED. £:^^:ir "^^o:^;f £-^^^^^^^^ 1 Atk. aru ■ I?;., , ' ^"(-'"s V. Lucas ,Y.iv^'°"'" t-'. Blown ot i, , V. lk\hnd„ '^ . -'ones V. Lock I i> ' '•'''c c Hilli,.,t o i" "'/ ^i- I^. C'as, ^^ves,2 Ir \%'°'"'%.52; Adams..' f k'^J'^i ''V^^'•'»'''^■•'''/I^^•.^G's TT^^^^^^^^^ ,'^'"- 117: AI1(„.; I. ?'■ ^"ns V. Sims 2 T- o^*'' ^^- ^^- « '^-l 19S • i^^ ' ^^"'''^^ L.ncoI„, 31 Me 42V- f?""'"' ^^^ • ^°Ie •^ Zi^i*^ '' ^''"""''^v, 28 Boav ofi ,^^^ ' 20 Vf rnr TF ■^ > '-'arnentpr m n„ i fo'J f. Lawson i J> ii'- "'"V. yo; Law- Lincoln. 31 m:72V.?/^^'^^^ ^^0!? .^ ^^^'f'^ ^'- ^•''-"'-. 8 Bav^^"^: / vc. f ' ^""^- - Hunter, TV,'. E^V'Sz' ^'f' ^-'- ^'^ = 1 Wms 3 '''^'""^ """Monties there dtS .'! • u ;1 on 11 'J I t 84 COMMENTARIES ON SALES. [book 1. misimiircssion has been produced as to the essentials of a donatio mortis causa, particularly with reference to the state or contlition of the donor's health at the time of making the gift. So many of such gifts have been made during illness, that the mistake has been made that a " last sickness " is one of the essential ingredi- ents of such a gift. Jhit this view is entirely unwarranted. The very etymology of the term makes this deai- : donatio mortis eau8(t, — a gift in ])rospect or contemplation of death. Thus Kent^ says of such gifts: " It is essential to them that the donor make them in his last illness, or in contemplation and expectation of death." So in White and Tudor's note to Ward /•. Turner,'- it is laid down that "the gift must be made in contemplation of the conceived approach of death i'^ otherwise it will not be a good donatio mortis eaiixd.^'' * " But a gift will be presumed to be in con- templation of death Av here the donor is ' in his last sickness' or 'languishing on his death-bed.' " '' With these vjews we entirely concur ; and therefore, within this principle, a gift " in contemplation of death," from whatever cause, providing it is one of imminent ])eril, would be valid as a gift mor- tis caiisd, if nuule for the ])urpose of being engaged in battle, by one " going to the front ;" ^ or by one proposing to commit sui- cide, if the intention is then carried out;' or by one incurring the iunninent danger of death in any other way, voluntarily or involuntarily. Thus on the clearest principle involved in the matter, if one is about to jump over Niagara Falls to test his ability to do so safely ; or to descend into a coal-j>it at the imminent risk of his life to save the lives of others ; or to stick to a sinking shi]) in order to make room for another in a boat; and make a gift in the pros- pect or expectation of death, the gift is clearly as valid a donatio mortis causd as though made on a sick bed in contemplation of i 2 Kent's Com. 444. « 1 l,i'a.l. C'lLs. in Kii. ^S;?, 6[>0. ' Dulli.'l.l V. Klwes, 1 Hli;,'li, N. .s. .f.SO ; EdwitnlH V. .loncs. 1 My. & Cr. '2'M, 'J;Ui. * lU'ilf^'cs I'. lIi"l,i,'os, Pnr. Cli. 2C'J ; Waltt'i' t'. lloil^'c, '2 s'wanst. it'2, JOO. 6 Millor c. Mill.r, ;i I'. Wins. ar.() ; Luw- ;,on V. Liiwson, 1 P. Wnis. 441 ; Wultor t>. H()il<,'c, 2 Swanst. ItiO. Si'o Virj^in o. diitlu'r, 42 111. 30, for coiiti'inpliitod it, not as the ri'snlt of any ciicuinslaiu't's of |ii'ril, artiial or conci'lvcil, Imt as icsultiiij; from ii coiitcmiilatiMl act of sclf-tU'slrui'tion. Jn siir/i case l/inr mis no piril to his lij'c." [Tiiis is, <'(r- taiiily, extraordinary reasonini; !] " 'I'lie eoneeived ii]i])roach of deatii (.so far as it nii;;ht arise? from wliat was eontriii-' ])Iiite(l) wii.s entirely witliiu his own ion- trol, nnd he eseaped from the peril ( nul a conditional f^ilt, not strietly ti donatio ,so the condition of the jjift failed), evrry mortis cunsA, lait closely akin to it. moment that ho refraineil from the i\v\ nf ^ The reverse was heltl in a badly do- destrnetion." And tlie note ([noted hy us cidod ea.se in the Province of New Hruns- above from White and Tudor is aitii.illy wick, Karle i;. l?otsford, 2:! N. P>. 1!. 407, ([noted ns tlie authority for this exlraoidi- in which that court f,'ive this extraordi- nary reasoning I It is only just to observe nary reason for their dei'ision : " The de- that but three of the junior inendiers of ceased may Inive eotitem]ilated his deatli the court took part in the judgment, when he made the alleged gift, hut ho PART II.J GIFTS DISTINGUISHED. (k'lxth ; .jiid in eiflior f i ■ -'""-■ essence „f »;;„, ", [/'."f ' "-""I'l I'o acco„,, ° ,-, f? ' '«■ •••".>■ otlmr ;J, ; "'■; ."/'/"v/i,.,,,/,,, ^,,„„, ,t™ . ■ , '•» 'lPI"-o- lirps«M n,„(-I ^ Piff '"'.T ,.,•,■„, ,„.„. , "^ ""'" sickiicsa lors. /{lit in ' <'!• ' of the ,J '^' condition J I , or n,.v(.i. ere. c\[)ro.s.so,i t'jKV, tl (IdllC : :; ':t^ ^-^'''i ti,,,t n(,i!iH-^,„(.y J ' '"L' condition K' liorsoi "IVm.ir f;il, Ken , and no ('oiidii "'''" "» .'ibsolutc -ift nit '"» ('-vpi-osst-d, tl y vcslc'd in tlio ^^t'» a gift of '■^ ''"'"-V ; and iiilt »iorfin C(fu f!f'»^ lulled, and •"'■"» '■evocabi om enlisting ior< I (as tJi c M-ift would Jiavo cl <-''■« wjis no i this d « •» event of ^l^^, ^| ic war) not stinction bet coining back. Tl '"•or not dvin. early inniiiient ii condi/ioiijii w-^'cn gifts i//^t. -3^-Ii.R. jor. "^^v-e think, cleailv ill >• v Humph. 503 ; Gass V. Simpson, 4 Cold. (Tenn.) 288 ; Clough V. t'lough, 117 Mass. 83. 8 107 TT. S. 602, 615. * See, also, 1 Story's Eq. Jur. 607- 6 2 Ves. Jr. 111. * In Louisiiuia, a donatio mortis C'li^a can only be made by a will anil testaiii'iit, and takes effect wlien the donor ecasc^ to exist. Johnson v. Waters, HI U. S.040. ' 2 N. Y. St. Kep. 251. PA an( .sUi me par acti j)ai gift Cj-j took conti in < gi mu ft St ^ U Mo.'. ' 27 Meav * I'rec. in :! PART II.J GIFTS DISTINGUISHED. 89 anco made by the donor about ^iv , . •sushunod by the New York Cot t" T '^'^'^"''^ ^'« ^^^^th, was men of tl,e Supreme Court Thl ^'^'f'^ ''^"''''"'"g the udt i'aralysis previously; but he Wo ^'^f ''^^^ ^'^^ two strojces f; aet.on, and about ^ weis ^on ani .:^"'^ ^''"^ °^ "- - - a alysis, with which he lin.^ered ^ ? 1 ^'?^ '"^ ^'^'''^ attack of « ft was sustained as a good '^if ; ^V' ^=^^^"« ^»<' died. The -ymes .. IlarcV a gift made h^^ ^f " T'''' """^'- So in took j.hico, was sustained as n riu ' ^''^^'"c the donor's donfh continued ill f.o^n the til? h ;'^^t7'--f-^• t'^e dono. ha ^^ ■'on and expected to li^; It a ht?,. ''^'r"°'" ^^^^ ^» of consumn !Hl afterwards got better and , .jlf^V-''?" ^^ -^^o t] e ^X in Kankm v. Wof^uclin 3 fi.„ V «:»;. of dca.l,"gavo J o'dotda""tVf '?'?'""'»'•"» •'•PPrel.cn. 'jiJ's of excliano-o Tf i "''^'-"^ant, a fortn irlit bofm-n i • ' "^" "■"- ".0 do,r;as i ''5.';: "°A»H'oar fro,,,-,,, t * « ^'.1''' " ff'ft of a bond for X1M,„,V ,"""'■ '''' aPPoa,'i,„r ,,.. h'=™ have so.„o«,i„,-r" i,o ImUfulu^T'' •'""J "'<-'" y™ I'm '4nN. Y. ir. ^ j:/ l>eav. 309. i roc. in Ch. 300. ' 2 P.ro. C. C. 612 J'3Atk.214. ; J Bro. r. c. 71. I (J : I ■i''.' '. T ;! ;. P I i; 40 COMMENTARIES ON SALES. [book I. 9' :iH* a gift, made twelve days before death, without any allegation of illness at the time the gift was made, may be sustained as having been made in contemplation of death. Smith v. Smith ^ shows a similar absence of any statement of illness at the time of the malcing of a gift, which was sustained as a good gift mortis causa. In Edwards v. Jones,^ tlie g' t failed as a donatio mortis causa, because the court held that, among other causes, the donor was not in such a state of illness, or expectation of death, as would warrant a supposition that the gift was made in contemplation of that event. And in the old case of Duflicld v. Elwes,^ it was, in equivalent language, laid down by Lord Eldon, that nothing could be " more clear than that this donatio mortis causa must be a gift made by a donor in contemplation of the conceived approach of death." So Burns' definition is : ^^ Donatio causa mortis, or a gift in prospect of death, is where a man, moved with the consideration of his mortality, doth give and deliver something to another, to be his in case the giver die, but if he lives he is to have it again." ^ But while it is manifest that some of these old English cases cannot be sustained, wlierc the gifts do not seem to have been made in what, within the rule as to donationes mortis causd, is an apprehension of death ; on the other hand, the tc Mvriters who have laid down the rule, in effect, that the contemplation of death must be that ^'■from an existirig disot'der," or " if a gift be not made by the donor in peril of death, ^. e., with relation to his decease by illness affecting him at the time of the gift, it cannot be supported as a donation mortis causd^''^ is, as we have shown, equally as wrong in tlie opposite direction. This citation from Willi;. ms is the authority n'hich misled the junior members of the New Brunswick court, in the unsound de- cision of Earle v. Botsford,*' to which we have previously referred. But, in the note to Williams,^ it is said, " In Blount v. Burrow, as reported in 1 Ves. Jr., 546, Eyre, C. B., seems to be of the opin- ion that there must be positive evidence that the gift was made in the last illness ; but this dictum is not found in the report of the case in 4 Bro. Ch. Cas., 72, and does not seem supported hy any other authorities.''^ In Edwards v. Jones,** however, it is said by Vice-Chancellor Shadwell, that " It is of the essence of a do- natio mortis causd that the gift shall be proved to have boon made in contem))lation of the donor shortly terminating life f'y reason of extreme sickness or extreme old age." But this was 1)iit an obiter dictum, and unquestionably is not law by the civil law, 1 2 Str. 955. a 1 Myl. & Cr. 226, 236. 8 1 Bli. N. s. 4St7, 530. ♦ 4 BuruB' Ec. L. 110. » 1 Wms. on Ex'rs, 771, 7th ed. 6 23 N. B. R. 407. ^ Note r. to 1 Wms. on Ex'rs, 771. 8 7 Sim. 325. oil licl is will dot] ma I wlu law niorl is ki niak agc; P4RT IJ.J GIFTS DISTINGUISHED. nor, as derived from tlio • -i i ^^ tlefcasance to tUn .'^^^^^^y of the donor- ,•« „ "'"'tulifr, but '"^'v bo con/ IT ^"^^^^'^'••e^, would be otJ . -"'"'^^ ^y ''^^y of ^^■J^e,-o the "!^/" '" ""mediate illness r "•'' '''^"''^^'^''- it "loro hazardous tha, ' ^^'''"^^ ^ Journey wbiVl. ?• ^^''"^^'^'^ do/easaneo a. 7stf t" .T '"'''''^ '^^ ^^-^e, ..'.t tl '""'^^ "'-» eC' ^'"""'^'"ese haughty ones 2 2 Ves. Sr. 431, 435 3 ^'-« !>■ 438. •"• 'V'O I),^,. J^j'l g ^ „ „ '/ 01 tile smtors of ;)•(!'/ •f > it i It -'{] ,( ! 'i ■ ( 5, t 1 :[ i i" ; i 1 ! i I ) 42 COMMENTARIES ON SALES. [book I. In "Walter v. Ilodge,^ Sir Thomas Plumer, M. R., says : " Nor is it nGcessary that the donation should bo in the last illness. It is suflicient if made in contemplation of death, and on the conditions stated." In Tate v. Hilbert,^ the definition of a gift mortis caund by the civil law is recognized by Lord Loughborough ; i. e., where a person heing in peril of death gives something, but not so that it shall presently bo his that received it, but in case the giver dies ; and the definition of Justinian,^ as quoted by Chief Justice Gibson, in Nicholas v. Adams,* was held to be a clear and correct definition of a gift mortis causd. So, in Parish v. Stone,^ Chief Justice Shaw accurately states the law thus : " It is now well settled, that under certain )'mita- tions a gift may be made by one in present contemplation of death, of money or other property capable of passing by delivei that to give effect to such a donation there must l)e a clear and mani- fest intention of the owner to give a subject capable of passing by delivery, and an actual delivery at the time, in contemplation of death ; that such a gift is inchoate and does not become per- fect till the death of the donor ; that it is revocable by the donor during his life, and if he recovers from the sickness or other cause of apprehended death, under which the donation is made, the gift is void. But where there is such a gift and actual delivery, and the expected death of the donor ensues, the gift is complete, and vests the property in the donee, presently, without its vesting in or passing through the executor or administrator, and it is liable to be divested only in favor of the creditors of the owner." Sessions v. Mosely,*^ is to the same effect. And in a more recent case in the same court, the ruling of a judge was sustained to the effect that to establish a donatio causd mortis, there must be shown a clear and manifest intention on the part of the owner of the projicrty to make the gift ; a subject capable of passing by deliv- ery, and an actual delivery at the time in contemplation of impend- ing death; that where there is such a gift and actual delivery, and the ex])ected death of the donor ensues, the gift is complete, and vests the property in the donee presently, without it vesting in or passing through the executor or administrator."^ In an article in 21 Am. Law Rev., at p. 740 (a. d. 1887), the Mj" deatli, clandestine, under my own roof, And pnrcel my inlieritance hy llit, I nitlior wisli tliese treasures thine, than theirs ; But should I witii success plan for them all A bloody death, then, wing'd with joy, thy- self Brinj; homo these presents to thy joyful friend." 1 2 Swanst. 92. 100. 2 2 Ves. Jr. Ill, 119, 120. ^ Institutes, Lib. 2, tit. 7, Dc Do.ia- tionihus. * 2 Wliart. 17, 21, stated nvte, reversin<; the judgment of the majority of the court in s. c, 1 Miles (I*a.), HO, which sustained a direotion to the jury that a donntin caiiid mortis must b(! made during a last illness, 6 14 Pick. 198, 203. • 4 Cush. 87, 91, et scq. 1 Clough V. Clougb, 117 Mass. 83. PART II.J GIFTS DISTINGUISHED. 43 law is well stated : " The first requisite necessary to constitute a valid donatio causd mortis is that it must be made in ])cril of death.' This necessity that the gift should be made in contempla- tion of death, is suthciently obvious from the very title of the gift, cansd mortis, — for the cause of death ; in consideration of dcatli ; on account of or in anticipation of death. The gift must be made while the donor is under the apprehension, fear, suspicion, or expectation of death, near at hand.^ A vague and general impres- sion that death may occur from those casualties which attend all human at'tairs, but which are still too remote and uncertain to bo regarded as objects of present contemplation and api>rehended danger, is not sullicient. Nor that the donor be ' moved by the gen- eral consideration of man's mortality,' as is usually the incentive which induces men to make wills ; but he must be under some special and peculiar danger at the time.^ The gift is ))resumod to be in contemplation of death where the donor is ^ in his last sick- ness,' or ' languishing on his death-bed.' * It is not, however, necessary that the donor should be really suffering from some disease. If 1i not expressed, is imp ieT) k! T"' ^"''^''^ '^^' ««"<'^H n t'.'en- judgment, where thev sav '' v ' ™"J"'"'*>' ^^ the conrt in •^PO'-nti..n of the CWedeTa '''""' '" ^^"»"«^ 18'>2, o avo d n 'yj-^'-^twl this statemenl; T '^ '^" ' ^"'^ «^^ ^^'c dav he f7 i. ;^-;in.themon;;^S:; Ina tlllTl'''^' ^^ ^^ ^'^^^ ^''^ i ^ «fey the principles ffovei-i,i„° ? . ''°"''*' "^''^tcs verv accu- " 44 Coldw. 288. 4il^ v:]-i'ii i\ I ! I'? J : .■- t iQ COMMENTARIES ON SALES. [book I. was not a valid gift mortis causd. With the statement of princi- ples in the case we fully concur ; as to their application to the facts wo arc more than doubtful. After a just reference to the " very learned and able opinion in the case of Nicholas v. Adams," ^ of Chief Justice Gibson (which, as we have already intimated, is the abl(;st discussion of the question wc have found in any of the common-law cases), and an examination of other authoritii^s on the question, the followinj^ accurate exposition of the law is made : — " After a review and careful analysis of all the authorities to which wc have had access, wo conclude that upon i)rinciplo and in accordance with what seems to be the weight of authority, the essential reqtiisites of a donatio causd mortis are, that it bein<; made during tho sickness of the donor, or whilst under the belief that he is in peril of death, or surrounded by threatened dangers from which he has an immediate existing aj»prehension of death, and in contemplation of death from such sickness, peril, or dan- ger, he is thereby moved to make the donation. But we do not mean by this that the donor must be in extremis, or moved by the apprehension of immediate death ; but the apprehension itself must be immediate. A general apprehension of death from the mortality of man will not be suOicient, but it must be an appre- hension arising from tho particular sickness, peril, or danger." Unless such a case as Jones v. Selby,'^ where the gift was made by the donor, in apparently good health, three years before his death, and which, as " a gift in prcesenti to take effect in fui ro after the party's death,'' was agreed to be a gorJ donatio causd mortis, and impliedly assen ' to by the Lcid Chancellor as such, is law ; and, in the light of p:.. '■> and of the later authorities, we do not think it is; then we thinh. 'at a gift by one who made it imder no more direct or immediate apprehension of death tiiau was done by the donor in Gass v. Simpson,^ in leaving one State to avoid conscription, and going into another State, where, subse- quently, he joined the Federal uvmy, and apparently died a nat- ural death, is not made "under t' c belief that he was in peril of death, or surrounded by threatening dangers from which he had an immediate existing apprehension of death" so as to make the gift a valid donatio mortis causd. And while we think the law of donationes mortis causd is correctly laid down iu the case, which clearly would exclude from its operation such a case as Jones V. Selby,* we think the dissenting opinion of Milligan, J., the better one, — that the rule laid down by the court was inap- plicable to the state of facts disclosed in the record. 1 2 Whart. 17, 22. 2 Prec. in Ch. 300. » 44 CoHw. 2S3. < Prec. in Ch. 300. i'ART n.j «"T'S DISTINOITISHED. 3f' I I And now, u-I./lc wo thini. , "^^ condin-onally on a I''.^'''''^"'''' P roper fv" ''''^^•-'' i''''««e« '" ^'- "-:; : ^;;-' tho propeK;t^;;ft ""•' *'" ^''-^^^^ ^'r: r^-'"^o p,.; 1" «- /nonths, then t],' S '"\^''f ^"^ ^• «'"ch was one that tL V ' °" *''« '''iPDonirn/j *" '''^^'^'"o • vostin-n-nU of h' ' '^'^*'^' *« P'-cvent thn . "»Po«e, there is '^ i>^'-sonaI pronrt!" , ^ ''"''«^>' o» the same n ' , '^' ^''^^ "ot ^-•'»«'- 'eavn^'thXt' '?''" •'^"^ delivered j;T'f',r ''''^^' f^">^"on. a1.o t l/t^^^ V;;'- -"dittnVat'tl''' ^" "'« ^!^°/ '« a condition which a '^ ^- '^'^^^^ "ever ret. ^'°'''''^^ ^'^ this; „or do- ! '^ "° principle of L^ '"^^''^^^ «'one it *"^»«f the subiec '\f ''«Pt to make a tell ? '^'*"^«« ^^ *» i .Mill,,,,,;,,! ' - '■• P- Smitli m. y ,' .S.'»,;.'™n,v',S„fe'i;L«B.ni ii.ds»,,y, ,5 Q. ij. ,;,,'■ '^v'-,!^'' ■«« '■ Jioor,, 25 Q. a jj|f ; ■"' ; c«i,,a„„ 5'-!-r^,;;mt*'ih'«- 3=s. Ab. ]23 ir '■ 2 «!• Com. /ii 48 COMMENTARIES ON SALES. [book I. « • : we think it clear on principle, that if A. sliould die abroad with- out having returned, no title to the chattel would vest in A.'s executor or administrator. As we have already intimated, we think that the holding in "Virgin v. Gaither ^ can be sustained on precisely this principle, as there the gift was only liable to be defeated in event of the donor returning to tlie place he had left ; and if he did not so return, the gift was to become absolute. Wo do not think that such a condition to prevent the gift becoming absolute, if exer- cised, would be at all illegal, because it might be exercised at any time during the life of A. So, too, without straining the principle of a donatio mortis causd unduly, so as, in order to sustain it, to bring Gass v. Simp- son ^ within its jMU'view, we think that that case, like Virgin v. Gaithcr,''^ may be sustained on the same ground ; as there, too, the gift was matle by the donor to become absolute if he never re- turned, and he never did return. While we think with Milligan, J., in Gass v. Simpson,'* that the principles governing gifts mortis cauxd are not apjdicable to tlioso cases, we perceive no reason wliy they are not sustainable as con- ditional gifts inter vivos. Thus in Dexhcimcr v. Gautier,'' stated supra, where the gift was bounty money, and was delivered by an able-bodied man to the appellant, at the time of the donor's enlistment into the army of tlie United States, in 18t!4, after hav- ing successfully passed the examinatiim made by tuc surgeon with regard to his health and bodily fitness, and where the exclu- sive reliance was that it was a donatio mortis caxKci, the gift hav- ing been made about the time the donor wcMit to the war, and who was killed in the war; the majority of the court lield, and we think, correctly, that the peril was not sniViciently iunuiueut to make the gift a donatio mortis causd ; whatever else it might have been. If no condition was attached, it was a gift absolute inter vivos ; and if a condition was expressed that lid not by its nature make the transaction an attempt to make a parol testauiou- tary disposition, then it would be simidy a conditional gift iiifrr vivos. And we think the court were perfectly correct in holdiiif,' that the gift was not a donatio mortis causd. From the statc- nent of the case, the gift would seem to have been a simple absolute gift inter vivos. To hold that, in this case, where tlierc was so little direct apprehension of death, there was a gift in contemplation of death, would be as great an error, on the one 1 42 111. 39. « 4 ("olilw. 288. « 42 111. 39. * 4 Coldw. 288, 300. » 34 How. Vr. 472. PAKT n.] OIPTS DISTINGUrSHED. Jiand, as was, on the oflm,. i ^ "^^ '' funfraet -! ! „ / '' ^^''^^'s, comes uid. i °/ ,?^"''-''>^ts, 3 ••- "1. 39. ■* (-'oldw. 288 VOL. I. 4r I'.irl). ;{-() oo.j , il 1' .,,- '#< ilill':!; !- i i ! ;4i i , r ■'wj m n ij^i w4i'| S'\'; 111 50 COMMENTARIES ON SALES. [book I. of Gass V. Simpson,^ and was on one point less questionable than it was in the Illinois case of Virgin v. liaither.^ So if, in Smith v. Dorsey,^ the gift as a conditional gift inter vivos (for, as in the otJicr cases, we think it cannot be sustained as a gift mortis causa, there not having been the necessary contemplation of approaching imminent death) cannot be sustained, it is equally as clear that it cannot be in either of these other cases. Tlie gift of a gun was made by the donor in Smith v. Dorsey^ after he had entered the military service of the United States, and just prior to his joining the army. The gun was presented to the donee on the condition that if the donor did not return, the gun was to bo the property of the defendant, the donee. The donor then left, leaving the gun with the defendant, and never returned, but died in the army ; the cause of death not being stated. This, we think, with the Supreme Court of Indiana, was not a gift mortis causd, any more than it was in either the Illinois case or in the Tennessee case alluded to above. In an action by the donor's administn.U'!. for the gun, the court below found for the defendant, wlii .Jr . sustained by the court of Common Pleas; but on appeal ■ j ih Supreme Court of the State, the decision was reversed. The co;ii : reached the conclusion^ as in Dexheimer v. Gautier,* and Irish r. Nutting,^ that the gi^t was not good mortis causd. because the decedent was at the tune of the gift in good health, and had no cause to apprehend death from any impending danger or from material causes. But in order to decide for the plaintiff, the court, as they had to do, went fiirther, and held that the gift was not good inter vivos, because they held that there could not be, under the com- mon law, a conditional gift. Buskirk, C. J., in delivering the opinion of the court, said : " To constitute a valid gift inter viros, it is essential tliat the article given should be delivered ahsolutdij and unconditionalhf. The gift must take effect at cnce and com- pletely, and when it is made perfect and complete by delivery and acceptance, it then becomes irrevocable by the donor. Gifts inter vivos have no reference to the future, but go into immediate and absolute effect. A court of equity will not interfere and give effect to a gift that is inclioate and incom})lete." For these propositions, 1 Parsons on Contracts, 234 ; 2 Kent's Commentaries, 438 ; Bouvier, Law Dictionary, tit. Gifts, inter vivos ; Bedell v. Carll,'' Irish v. Nutting,'^ and Dexheimer v. Gau- tier,^ are cited. » 4 Coldw. 288. 2 4-2 111. 39. » 38 Ind. 451. « 34 How. Fr. 472. » 47 Barb. 370. 6 33 N. Y. 581. ' 47 Biirb. 370. 8 34 How. Pr. 472. J'crfoi-ii W;is f "^ ""^ ""' ""'" or ».in.mist,-ators to "? "'." "'<">oato donor „p, ° '"'''>'->• f«)o"n,,„„,..4to.,:orot;t ,''',™ 'f ^ -". '■V'r'"™ l-«". . GaT t . :„ J™"' "• "o.-.c, 3 Zl '--onal ,.,.p„,,,, /'orformanco of ti "''' ''^^'^ol " at onco an,? ' '™''-''"n,« and ii, conditio", ;"f '!;-;!".-<> tl.«n bee tslfaST?' "■"'-^^ '■""'ociiatoandabS t Sr"'"?'''" ^y 'I'oclonor "*"■!' "'"' """ fon being per*:^" '^1="'' ?' "'" »"<"' o .'o„^I.?, ".j"'" "lomodeof vc.,tin..o tT,'"'"®''" i" condition,! " '» , I'clnnd, and a ?,„° „ " P';°'>"'-f3-. is entire. "°"'" ^'"<'' "» '" -■"? fmm Blact „ "'t"^™' of «'ose pr„,,„,it,-„„,, ,, ,, ^ , ''»»y8 aceomnanicd uiti,' I ,■ "° ""<' Proi^er ,.ift „ "^"'^ ;i.'ni<-tiiatelr- a, f ■ ""''''"•O'-yof I'osscssinn '?'■••'"' '« ::-'itri^i^;srSe:-ih^r^^ ^''" /■- ho m i •., '' ""^ "^ tl.c donor's ^'^^ "•^■^«»tcd ,;,.; .'""a 2K(lcn. m.'ii >'''''e'-J<'y V. * "'^''""'^■. 2 Strang i?''"7/""""' "• "'' 'J8; Morris i>. 12 V,.,,. 4/ ' 38 In.i. 451. » CoKIh,. 288 fl 42 'II. 39. ''*• note (s/^"^- ^^<""-. by aitty, 44]. «.„, ■ m 52 COMMENTARIES ON SALES. [book I. IS 11^ III' This simply is to the effect that to perfect a gift there must he a delivery of the subject-matter.^ If on delivery the gilt ho abso- lute," it takes effect immediately " on the delivery ; if conditional, " it takes effect immediately " on the performance of the condi- tion. The giving and the delivery iniitc to make the gift perfect ; and where there are both of these, the absolute giving and the delivery ; or the conditional giving ; when, in this latter case, tlie performance of the condition and the delivery unite, the gift, in the one case as in the other, is complete. Blackstone's jiosition simply is that where the gift is only prom- ised and not made, it is simply a nudum jxtctuin, — a promise to give, and not a gift; and being without "good and sutlicieut consideration," cannot be enforced, lie neither says nor imiilios that, in the case of a gift made on condition, with delivery of pos- session riud the condition performed, the transaction is not a valid, cxv . ■ ' 'lift. So, too, 1 X IS on Contracts," as cited. Professor Parsons, vir- tually using tliu language of J>lackstone, although citing no author- ity for the first proposition, says : " It is es>d or promised gift " will not be enforced. Thus, to be severely elementary, a promise to give. and no delivery, is no gift ; a promise by A. to give I>. his lioiso at C. to-morrow, passes nothing to 1>. without the delivery. A promise Ity A. to give B. his horse to-morrow if H. is at C, nnd no delivery, the gift "regards the future; it is but a promise," and, as " a merely intended or promised gift," will not l)e enforcinj. But if A. gives B. his horse, delivering the horse, and the horse is to become the i)roperty of B. to-morrow, if B. is then iit ('.. and 15. is then at C. ; by the very terras of the gift, the condition has l)een performed, the gift " goes intn effect at once and com- pletely ;" and the property in the horse is irrevocably in B.'^ 1 Sco Tayldr v. Honry, 48 Md. .')50 ; Nolthlop V.' Hall', 7;5 Mo. titi ; Dnli' v. Lincoln, ;{1 Ml'. Vl'2 ; Hohiiison „•. Kiiii^, 7'2 Mc. 140; IMcii'o v. Hank, 12!) Muss. 432 ; Hill v. Stephenson, 63 Me. 3G4 ; Barker v. Frye, 75 Me. 2!) ; Stephonson v. King, 50 Am. Rep. 172 ; Stevens v. Ste- vens, 2 Hun, 470 ; Ciirlcton v. Lovejoy, 54 Me. 446; MeOratli v. l^eynol.N, 116 Muss. 5*)0 ; Frencli v. li.ivinonil, ;>".* Vr. (i23 ; Heiidley v. Kirtiy, 18 Pa. St. :l'2'i I Savings Bank v. Fogs;, 82 Mc. 538 ; I'low V. Hagertv, SI Me. 231. 2 l'nge234. ' ;3ee 2 Blk. Com., 154-167, on Condi- tions. P^RT IJ.J ^''^TS ^^mNomsuED. ^t HiJl he noticed I.ci-o th., , ' ^3 ^i-" of «a^.i,,. .■;„,, "''' '^ ^' palpable o" f /,' ''''^"'- ''^'^s, hut ^"■^^ence of one of j ' "f ^ ' ^^ ^'^y both wdl' ^"'^' «'^"^ eould ^^' '^"^^ ^^ '^col:^ : :;^ - I'-i'- lan,„a;^::^ '^y -ore .et,,,,;^ -«-^^nust.u;a, 'b r/""""'"-^ «'ose .1^,;" ,t«« of gift, that athov o-ifts /' ^ ^^"' ^^ory nature bo "'' '"^''o ''^«^^/. ^ -"^'-^'--ilv ! ei, ^t;r- cannot be I ^ a :""^' '' -^ 3 ^'aJJv ' ^''' "^ effect from m , ^«"a' propertv, and h "-' f '"'^^^tial to?,, '" ''"^ ^"^"^"^ <^«'"es absolute b . -"■''^' «" as to be , n r "^ '"'"^^'o (u-hich ^--nnn.ated .' e, :?, ^.""!''^'-' ^-'4 pc -fo nff ^'' "'^^'^ '^ ^e- ^-^■« not pass. A , J '* " "'''t^'o-t actual, J /.'""^^^'^^^o and ^^"^0 act to pass the n ''''''"' '>' ''"^v,/ ' 'l' • ^^^'^'0' the title n' vent's ?i., ^''' althou.-h nnf .■ ^■'"'•- 't's't',:;.';: '" ^ ■''"'■'"^' «; t'^' ir"- '^ ™-'-"y »"'l »rt"al effbc n/:'''^''-' *° ''''■• '"ture'"! """^ "Gifts . J'"s s""!'!!- mean, tr. '*'-■' '" «o to a gift ' :4';:r-""?' '»» ^^-'ft "'"'"'Tfriftsm-avt'",, *."'•■''''' 0" a co',,, ' ;, " , '•'"•■"•l" sifts '" -'""OS ,.. S b;V '"f ■•^•-»an-|,- a,t" "'"<■* -'» '-ta."c„t. ^ '«<-• lu cji. 300, 303. "■ n'*" n If J I •f t I ' . u ! 1 . \\ v.\ I *i ;i •'V 1 ( ^ p u I if ">' 1:1 III' By : ' . ! ■ If* 54 COMMENTARIES ON SALES. [book I. mortis is a gift inprcesenti to take effect in future, and it is revoca- ble during his life, as a will is, and so it differs nothing from a will, for it is not a present substantive gift." Ami in Walter v. Ilodge,^ it is correctly said : " To constitute a donatio mortiit causa or gift in contemplation of death, the transaction must first possess the requisites of a gift. By the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or an actual delivery of the thing to the donee." ^ This is the very opposite of declaring that as a donatio mortis causa must first possess the requisites of a gift, and as a conditional gift (ac- cording to Smith V. Dorsey) ^ is invalid, therefore a donatio mortis causa, which is conditional, does not " possess the requisites of a gift ;" and, therefore, there cannot be a donatio mortis causa ; it IS not « a gift " ! Tiie only case cited by Bouvier* is simply on the question, which was the sole one in the contemplation of the different writers above quoted, viz., that delivery is generally essential to a gift. Thus the court said : " A gift is not consummate and per- fect until a delivery of the thing promised ; and until tlirri, the party may revoke his promise. A parol promise to pay money as a gift is no more a ground of action, than a promise to deliver a chattel as a gift. It is the delivery which makes the gift valid. Donatio perficitur possessione accipientis" This is very far from saying or implying that a conditional gift of a chattel, which has been delivered and the condition per- formed, is invalid. The principles governing conditions ^ apply as well to gifts of chattels, as they do to assignments of real estate, or to Si.les, bailiiients, or any other agreements or con- tracts. The essential distinction in the gift is simply the deliv- ery ; not that it must be without condition. It must be a gift, — not a promise to give ; but clearly, on principle, it may as well be, as a sale, conditional as unconditional. On this point, between a gift and a sale, we say advisedly, there is no distinction. In Noble v. Smith,** cited in Pearson v. Pearson,'^ the essentials of " a perfect gift " are well stated, as capacity in the donor to make the gift ; an acceptance by the donee, and a transfer of the possession. But, with these, there is nothing to prevent the gift l)eing made conditionally in a gift inter vivos, any more than tliero is in what Kent, C. J., in this case, describes as " the analogous eas^e of gifts causd mortis" in which it is " a delivery that is necessari/ to make the gift valid." * Pearson v. Pearson, 7 Johns. 26. '' See authorities cited supra. 1 2 Swanst. 92, 101, n. h. 2 Irons V. SmuUpicce, 2 !5. & Aid. 552 ; Hooper v. Goodwin, 1 Swanst. 485. 8 38 Ind. 451. 2 Johns. 52. ' 7 Johns. 2G. PART II.] GIFTS DISTINGUISHED. 55 The case of Bedell v. Carll ^ is no better authority for the de- cision in Smith v. Dorsey,^ than are the other authorities cited in it wliicli Avc have examined. The entirely accurate language in IJeiloll V. Carll ^ (in part quoted in Smith v. Dorscy) is : "A gift inter vivos when made perfect by delivery of the thing given is an executed contract [and as a contract or agreement, then, clearly us in other agreements or contracts, it may be with a condition], und clfeetually and irrevocably vests the property in the doneo. Ill short, all that is essential to constitute a valid transfer of proper/^'/ by j)arol ijift is an expression to that effect hy the donory accom- panied hy a delivery of the thing to the donee. Of course neither a donation inter vivos or mortis causd is good without delivery ; but in the one case the title passes immediately to the donee on. delivery [the court was here simply treating of the gift in the case, which was one, without condition, of a. promissory notu of a third person to pay money in the future], and the donor has no more right over the property than any other person ; in the other, the title does not pass immediately. It is a conditional yift [Mark this! It is a conditional gift^, to take effect only on the (lentil of the donor, who in the mean time has the power of revoca- tion, and may at any time resume possession and annul the gift." A gift mortis causa is here shown to come within the class of conditional yifts, in which particular conditional gift the peculiar conditions of a donatio mortis causa are implied. Certainly this neither holds nor implies that there are not conditional gifts. Dexhoimer v. Gautier,* previously stated by us, holds that a gift made by one in perfect health, and not in danger of death from some imminent or impending peril, was not a good donatio mortis causd. The court here too speak of conditional gifts as though there could be no question that " a gift " may " be a conditional one." But they go farther, and intimate that if such a gift (which was expressed only to take effect in case of the donor's decease), if not void (evidently meaning thereby, if it were not void as a gift mor- tis causd), was " an absolute one ;" i. e., one which became abso- lute when tlie condition was performed, and a gift notwithstanding that it was on condition. Irish V. Nutting," the remaining case cited in Smith v. Doi'sey,^ comes somewhat nearer to being an authority for the decisi(^n in the latter case than either of the other authorities upon which it relies. But it too fails to go to the extent of the holding in Smith V. Dorsey.'' In Irish v. Nutting,^ promissory notes of a 1 33 X. Y. 581. * 38 Inil. 451. » 33 N. Y. at p. * 34 How. 472. 684. 6 47 Barb. 370. « 38 Ind. 451. T 38 Ind. 451. ! ! i 56 COMMENTARIES ON SALES. [book I. third party were given and delivered to the plaintiff by the defend- ant's intestate, after he had enlisted in the service of the United States, and before he had entered on actual service, but on the eve of his being ordered to the scat of war ; the words and condition of the gift in effect being : " I give you these notes. If I never return they arc yours." He left and never did retui'n, but died away, of a disease contracted while in tlie service. It is manifest that tills, lilvc the other cases of the same class wo liave examined, was not a good gift mortis causd, us there was no suHicient con- templation of death from any imminent cause. The court below held that it was a donatio mortis causd. On appeal to the Sui)renic Court of New York, it was very faintly contended for the respon- dent that the gift was a good gift inter vivos ; but the main conten- tion was as to whetlicr the gift was good or not mortis causd. The appellant, merely in [)assing, claimed that " it was not a gift inter vivos, because it icas conditional, and made to depend upon an un- certain event in the future. Gifts of this description have no ref- erence to the future, and go into immediate and absolute effect. The donor renounces, and the donee immediately acquires, all titles and interest in the subject of the gift." ^ And the court, Uacon, J., delivering their unaniniv.. s judgment, and entirely misunder- standing the meaning of Blaclcstone, repeated, without explana- tion, by Kent, Parsons, Bouvier, etc., said : — " On the argument some attempt was made to sustain the trans- action as an executed absolute gift inter vivos, founded on tlie consideration [a gift docs not require a consideration] of the ser- vices theretofore rendered the intestate by the plaintili" in the care of his clothing and providing him board. But it clearly cannot be sustained as such a gift, for the obvious reason that it was coupled with a condition, upon the happening of which the owner was to resume possession. An absolute gift which divests the donor's title, requires the renunciation on his pai't and the acqui- sition on the part of the donee, of all the title to and interest in the subject of the gift. It is very clear upon all the testimony that there was no intention on the part of the intestate to part with the absolute title to the notes ; but he contemplated and provided for a future contingency, on the occurrence of which he should resume it, making the plaintiff in the mean time the cus- todian. A valid g\ft inter vivos has no reference to the futinv, but is one which goes into immediate and absolute effect.^ Tlio precise distinction between a gift infer vivos and mortis ca\isd, as is correctly said in Bedell v. Carll,'^ is that in the one case the title 1 Citing 2 Kent's Com., 438 ; 2 Blk. Com., 441. « Kent's Com., 438. » 33 N. Y. 584. PART ir.J GIFTS DISTINGUISHED. 57 passes imtnodiatoly to the donee on ,uv ^' »o more nght to the propertv flL r'^' °»^' "^^ donor hi, ; ti.Io docs not pasf irnel : ^ft it •"' '""^" ^ '" ^'--"' alve eftect only on tlie death oftho . " '' ^'^^^'^/^/.^./Z .//// • to '-;^'.e power of .-ovocatio and^^v ""■' "'' '" *''^' ^^^^^^ J'"'«, it is evident, that the « ' '"""' '^"'' •^"»"' ^.e Jr' come to the eonch,sio;;,^ J ; 'h "" ^^'"'^ <^f ^N'-. ^ork ^ "';!'''r^-'J ^''<' scope and-eta Jt '"\r '' '''^'"'^'''^ f-'lu'-o o '•^•l'ed,thatthereeouIdnotbeava,i ''""?'-'*'^''^ "" ^vhich the' p-i'.;.^y /.... .... J,, haw::;^^;;;;;; ^-'^i ^i^' of porsoS "Kh '.xtra-jndieial; and as far -.^ f) . ', '°"'''' I>''<>I'C-Th-, uas t'Hs ,.o,nt is concerned, Smith, ri ^^^'"''^'"J? ''n this case on po-t of -shall ue snv " * J' ^^^''-^^'r ' increlv roceivos i Tiic error thj' '1'" '^"^"•^''>' "»««""cl .V,/,., ; ; /^'^^ '"I- ^^I'Peals, in Dot . w , ""^ '7'-^*-' '>)' the New ^o c,„,, , iiillaciouslv s'iv<- u A . ^°"'r, 'cforriniT to ini'u ■ , ■'/"^ Jo show how oieilir I„ Smiil, „. „„,„,,. °"Z '"""u-f • ""='' "' ">i«I'"l (1.0 c„„rt, ■ , ;; ^^^ Y 580, 585. «l>ove proposition of M, v "";'*'"-'' '" t''8 t'H' inX.n;5M^"''^ '■'^"'1 «t the foot of °^ ^^^ '^'^- '" '"' ^""^ „„.„ „n""?"' ^vlu-re this iiiporreot «t!f ^^ ^""l- 451 ' '^-"yonre.o„aiPrope,,,.§202. IIP* ; n : i'li"H-'i ii !■ ! 68 COMMENTARIES ON SALES. [book I. 1 ii there could not be a valid conditional gift inter vivos ; but, obvi- ously, tlie author quoted, notwithstanding the strength of the pas- sages in tlio above we have italicized, did not expect to be so understood. For immediately preceding this, in tiie very " last chapter " to wliich he refers, in § 199, on " Qualified and condi- tional - there ! ^I'ooifiod." .» UmT! T"""'""' "'.'' "ood '■"'.?o soitlcraont, or anv oti "-'y '"■«*'c,-iUo, i„ a trust 7 ,°"''' ^■■«0"3 at „1; :;,;;> -^ -"vo,a,.cc. of reai^t-at: ^ ,"^"'"?'"^^ S«'o i.i.s Aa .h n ^;';«* o-^c, Martriek . Li„„„, , „ , «lf Cvhosc dd' ""^ "S'^ "J 'ivino. ;„,;'''' " '""'<='■ P«-for,„cd J T " "'' ">>' 1'»">I. Thot ,■■ "■""'•' '"'"S it fe'l.e.-'s f. v! ■ ° ™"' '"'"■"? boon tal n„ '='""'"'°» ''avini; bocn "■« '"'"p *; hi ;l "" "^^-^ V »" d tors;""" '°'' '-■ ♦"" ^ tn KV ;"• , . ^""itations. So. in the I ^ l''[^'- 3-0, 3^ ^2 III. 39. ^72. 4 ''oM^v. 288. 7 ^' ^'"-h. 370. *»«> 'nd. 451. 1^^ IS'''"'- "* P- 2!>r. ^iiiil see si,pra no? ,y- J-, "1 Nicholas ,. 4, '^■^^'/f'* Gibson, .21; and supra, n 4)' "'' ^ ^^'iiart. 17 "^Pi'k S.''^^«•«'^"•431,435!• fp j"^ 60 COMMENTARIES ON SALES. [book I. i I ii more recent case in Pennsylvania, of Riegol v. Wooloy,' where a brother jiiive his sister his stocic of goods on condition tliat slif would |»;iy two of his outstantling notes, the jury having foiiiui that this w us a gift and nut a sale to the sister, this ronditiomtl l/ij't was sustained l)y the Supreme Court of the State ; it not beiui; even contended that there eould not he a conditional gift. In Iowa too, in lierry v. Herry,- where hy a gift from a fatlu'i' to his son (jf a tannery and its stoeiv, on the comiition that if tlir BvUi kept sober and attended to his business for tlireo years, the entire property in the tannery and stock was to be his; the court correctly laid it down as embodying " a very plain and elementary prineiple, that a donee may not dictate the terms to nor change those made l)y the donor; he viKst take tJic gift with its comlitioHs or not at all." It was claimed in this case that the court below should have instructed Hie jury, in effect, that under the fa'ets in the ca^x, the gift to be binding and irrevocable must be com|)l(jte(l by delivery to the donee by the giver, or by his authority, without conditions ; or, if conditions ivere imposed, that they were complied with hy the donee. Here again, the gross error in elementary law was not even contended for, that there could not be a conditional gift inter vivos of jiersonal property. The Supreme Court h' ' that the jury should have been instructed, as here contended that if the tannery and stock were given to the son upon , condition that he should keep sober and attend to his business, or other condition, which the son did not comply with ; or that ho afterward abandoned the right to the donor or his agent, then he acipiired no riglit thereto or to any part thereof which he could enforee in the action. And the court also held, as the conditional gift was made through, an agent, that, whether the donee had or had not knowledge of the terms or conditions of the gift, he was alike bound by such terras and conditions; that he acquired tli' '"•'"- ••,M,.|o„bk>d." ''''^' ^* '« 80 Clearly j.^ '. ."'""'"' ''^ "»- '^'''" •'^•""o prmcinlo . . '""'^''^t,t should bo ''^> condihon. 1 3 ' f ^•^''•ning those cases / „ ^''" '■-•"t case in f r'''^'''''''"^'too,n'e Jr ^^^^ "''-^'"'o on ^^^'0, of ^fa.: V^j^"/""";" ^'-'-^ o ^" ";;'"' ';""^'"'^ '» "f •'•••i.l ci,il.„.o„ J h .0 r "'"" "P '» ca of" '""'• ;• '■■^'••q.l/n,. •"■.'" "f t ''"".an.,:;; : ';-p'i"t„o e„,.,i,; ,; --"X. ,„ ,„.,. ,t ^■^"«^cd tJ,o pronerfJi! !? '"'"' ^^''^^^0"t cond ; ""^'^'id'"tional "■"-a, gito i„::^°^ course, sustainL;';]:",' -,,--■ '-i- "^v 01 con- •'..( ' ^ i^' 2 Ln. Aim. 16S. 2 30 l,a. Ann. 718, 722. " Ami si'o llui's Executors v, Boni, 6 La. 1!. ((>. S.), y tlie (lienor tiiat the money should be depo.sited in a savings Lank iu the tiaino of the donees j and the suffgestion was held to be not h niniHtion or limitation nf tht gift, but was merely advisory, and that the gift being for the benefit of tlii' doiitcs, their aeeeptanco of it woiiiu be presututd. 6 55 Hun, 185. « See p. 190. 1 Page 189. GIFTS DISTINGUISHED. 68 We return now to the very late and important case on the sub- ject, of Ridden v. Thrall.* There, E., being ill of hernia, and about to go to a hospital to submit to a surgical operailoa there- for, he said to his friend, the plaintitT, that h . was going to the hospital to have an operation performed, and, if he did not re- turn, a box and contents, which he gave to the plaintiff, he wished tlic plaintiff to have. The plaintiff', having the box in his posses- sion, stated, in presence of E., to a third person, that as E. was ffoing to the hospital, " if he doesn't return, ihc box is for me to keep as my own ; " to which remark E. asse ited. On the plain- tiff endeavoring to cheer E., who was appreher.'-ive of the result, t'lo latter said that he did n't fear the operation, but he feared the lesult; evidently fearing that he would die as the result, of the operation. He went to the hospital on the 2nd of October, 1888, and never returned. The operation was performed on the .'jth, l)ut he did not die until the t6th, and then the cause of his death was mifocarditiii, or a thinning oi! the muscular fibres of the heart. The question arose whether the property in the box and contents passed by tlie gift to the plaintiff, or not ; and the court hell that, it (litl, On the ground that Virgin v. Gaither^ and Gass v. Simpson^ are sustainr.ble, as express conditional gifts, wliich un^ucstion- al)ly ca:. be wade, notwithstanding the utterly absurd position to the contrary in Smith v. Dorsey,* Irish v. Nutting," and in Dcx- licinierv. (Jautier;^ the ease of Ridden v. Thrall," holding that by tlie conditional gift, and jjerformance of " the only condition im- prcsssed upon the gift,' the property therein vested in the plain- tiff, is, we think, without going to the length of holdiug that the facts met all the peculiar requirements of a donatio mortis eaiim, manifestly well decided. And the decision in this case, in the Supremo Court of New York, ii.i in the myriads of cases where conditional gifts inter vli'itH of both real and personal property arc made, in marriage sol'lements and in trust-deeds, — and, therefore, w i. -re the subject of the gift admits of it, such gifts can as well I' made by parol, accomjKinied with delivery, — shows clearly that .■>iiiith v. Dorsey^ was badly decided ; as, also, outside of the mere technicality on wliich they were made to turn, were the N';W York cases of Irish V. Nutting,^ and Dexheiraer v. Gautier.^'' 1 55 Ilun {62 X. Y. Sup. Ct), 185. « 42 111. 3;i. » 4 Col.lw. 283, * 38 1 11,1. 451. * 47 Barl>. 370. « 34 IIow. Pr. 472 ' 55 Hun, 1>S5. 8 3S IikI. 451. 9 47 Burl- 370. "> 34 1.. .-. Pr, 472. M illUilraiRa ■A 'mm !..!. ■>' ;; !■. .'•ss » it t ;■ : l\ -5' liliPI Hi 1. i ■' ^ ; i i 64 COMMENTARIES ON SALES. |_BOOK I. In Ridden v. Thrall,^ the court say, Dykman, J., delivering the judgment : — " Tiiere is no reason why gifts should not be upheld as well aa sales. Both are based upon the right of all people to do what they will with their own. Gifts are made witliout money and with- out i)rice, from motives of affection or esteem. . . . Tlie sales throughout the world are made verbally, and perfected by physi- cal transfer and acceptance of the subject, and gifts are made in the same way and consummated by delivery, and one method of transfer should be as free as the other. Devises and boiiuosls, like donations mortis causd, are but gifts to take eiXcct absolutely only upon the death of the giver ; and if they arc to be sur- rounded with safeguards beyond those requisite in transactions between the living, let it be so, but let not the intention of the donors be defeated. In this case, the donor intended to give the box and its contents, if he did not return from the hospital, to the plaintiff, and the evidence manifests the i)resence of every element necessary to constitute a gift in prospect of death. It never was revoked, and the donor never returned from the hospi- tal, and never recovered from the illness from which ho was suf- fering at the time when he made the gift. Much is said by the appellant respecting the immediate cause of the death of the doner at the hospital, and the contention is tliat he died of a disease and from a cause which he did not anticipate, and from a peril whieh he did not foresee when he made the gift ; but there is no insistence that he recovered from the illness or survived the peril from which he apprehended his death. When he made the gift he was under the shadow of a great danger. He was about to submit to a surgical operation which he apprehended would be serious and might be fatal, and if he never returnrd from the ho>i- pital the property was to belonr/ to the plaintiff'. His return was (he only condition impressed upon the tjift, and there is no reason wJiji the court should impose another or any additional continucm-ii."' Hence, whether or not the case met, literally, all the rciiuirciucnts of a technical donatio mortis causa, it was a good conditional uiit; and, the condition, and " the only condition impressed updu the gift," having beon performed, the propei'ty therein vested abso- lutely in the donee ; as, under analogous facts, it did in Virgin v. Gaither,''^ Gass v. Simpson,'^ Smith v. Dorsey,* Irish v. ^wii'wvi;' and in Dexheimer v, Gautier.^ In the very recent New York case (a. d. 1890), of Ilamcrv. » 56 HuTi, at p. 189, • 42 111. 39. * 4 Coldw. 288. • 38 Ind. 451. » 47 Barb. 370. « 84 How. I'r. 472. PART II.J GIFTS DISTINGUISHED. «Hhvay,i the transaction wa. n . ' ^^ -^^"^^^1!^'::^^^ ^ sri;;^. --f ona, ,.. pmuiso to give ij,"^ !' ?« ^'^J^ not to be a ^^' * '« «"Mect less toxt-vv'W e'; i„ ^ ' "^ "'^ «^'"«o u, which thf' ^"^ "^^''^J^' a ^^aM,f. ,/ » ? "I'f ^'^""t'y liuvo used J Of '""'''"''^'^^ care- «.« in „,„-e,, ..far^^"":;^ ;°"-"l; it is not " „i,,,„,„to " ;„ „ "■I'icl.. f ;,„, ,, n" "'"^ '"^IJ "'.'.t ,vl cro a Sr • " '''■"=''^'" '■■ »i^'i.t i.av:",: t:s ;°'':;'°", ^•-■^'•'■« ".c? e 'r , r- ■":'<'° Cfas.,,1, ti,„ ,i„„„ , J "" % "lo donor • int „ ' ,. ""' I'artics, I ill' (I ^^i- it became """«-iuo ,„:,;•..■'.'/ ' ,;t':"'»'™ """ '- i.Mi ;;;7'".'■'• ; 57 ii„„, oo(,. J^^tto^^h^tare vir- ^^^» Slu,hv..l] .. S).a.I«.eII. 96 C. B. x s n, " "'"^ "• Tmis. 8 M * .r « ''.'181 ''I I li •* in 1 i ■ ri ■!;• i ! 'i 3 66 COMMENTARIES ON SALES. [Bv,OK 1. tually conditions, viz., reservations or limitations. Thus, in quite an old case in North Carolina, where there was a gift of a chattel from a father to his daughter, with a reservation to the donor of a life-estate therein, it was held that the gift was good, and that, the daughter having survived her father, the pi'operty in the chat- tel vested absolutely in her at his death.^ So in Seavey v. Seavcy2 (a. d. 1888), a gift of promissory notes, with a delivery to A., with the condition or reservation that the donor was to have tlie interest on them, or such of it as he might need, as long as he lived, and that at his death the notes were to b- equally divided between his two daughters, was held by the Court of Appeals in Illinois, affirming the judgment of the Circuit Court, to be a good gift inter vivos. Love V. Francis^ is to the same effect. The law, without any reference to such an absurdity as that a gift inter vivos cannot be made with a condition, or reservation, or limitation attached, is well stated as to the essentials of such a gift, in this case (at p. 190), thus : " To constitute a valid gift inter vivos, there must be a delivery of the thing given, either actual or constructive. It is not necessary that it be delivered to the person intended directly. It may be delivered to some person for him, or to a trustee for that purpose, and in all cases such a disposition of it must be made in favor of the donee as effectuates the object, and places the jus disponendi beyond the power of the donor to recall. Under some circumstances the donor may constitute himself trus- tee of the thing for the benefit of the donee."* In Ellis V. Secor,^ where the donor mar _■ a gift but reserved a life control, the Supreme Court of Michigan (at p. 189), in sustain- ing the gift as a donatio mortis causa, correctly stated that si'ch gifts were neither more nor less than a branch of voluntary gi^s and settlements ; ami in the case of gifts of choses in action, tlioy fall generally under the doctrine of trusts and equitable assign- ments ; adding : " The cases arc abundant where such transac- tions have been maintained, where the technical phrase donatio mortis causa is not referred to." Such cases, in vast numbers, which are really conditional gifts of real or personal property inter vivos, by deed or by parol, will bo found in the authorities we have cited in this Part, on Conditioiir?. So in the old case of Johnson v. Smith,^ where there was a gift by deed to an illegitimate daughter. Lord Hardwicko held that from the facts it was not to be treated as then absolutely passing; J Duncan v. Self's Admrs., 1 Murph. ♦ Ellis v. S.cor, 31 Mich. 185; Green (N. C.) 466. V. Langdon, 28 Mich. 221. « 30 111. App. 625. 6 31 Mich. 185. 8 63 Mich. 181. » 1 Vc». Sen. 314, 816. th gil de; wit anc the of 8 * i'l-i PIRT II. J GIFTS DISTINGUISHED. the entire propertv in fi . 67 gift mortis caus^ f n /, ^''^^"^^^ ^f the ffmnf u . ^vith a reservation of f. ^'"^^^^^ «« a kind oT I ^"^ ^""^^'s and it u.a.s dec ^d t .1' ' /"f * «^ ''^^ ^'""or n ^^ ^' f . ^'^f^ ^^'vos, tho personal cst.f. ^* '"'^ ^^'^^'^ the dau. / '"" ^"« ^''^o; of JJennett ?;. Cook i ,, "\,^^'■ "P itr^jr'' ''•"" '"« must p„v sometl,i,rr ' ""^ <•»"<"■ stood i„ i ? »»«">, she 'r«'"i«-"aw SCV/'t'"^'' "^ at,,r4-''.'"o donee a sav nsequentJr undorV 5"' '"^^ «"«- An analoC,s .?f/° ' ^''"^^''t^r b> a will ^^^ *^ ^"oatli '^^J'o ve^rSon^l^'"''^'^'■"^''''nf iaLon . p^^^ ^^^'^^'^^ '"valid to take ek'ct tnT'f^^*' '^^Idin J tlat ; t.^^?^ "^ %^^^-ton ^W.. ./...r'' '^'"^^^^•""J^ at the do„;^s d^,^'^^ ^^'^i<^'^ ^vas only ^W of the English to. • '''^^'' ^^"^^ ^ good gift ^"s^r o, "or unconditi()n.1I^ "^'' i 1 ,. •,'^f: ^-w, 363. '^I'uonal), accom c \'* f'- tar. 648, 2^;V'"'. «!'3; Stone '.^'^'r;*'^'"'"-'"'- ;V.;ke,..s„„ .. ^: ,:;;''''-ntt, 32 Md. rt /^•■•nk, IW Mass. 1.-57 i.r . • ""s e gone hi/ the non-performance." "* We find among the many American writers, whose use of the terms " absolute " and " unconditional " in connection with gifts has tended to mislead courts, and to cause wrong decisions to t)0 given, at least one American writer who correctly states the law specifically on the subject, without contradiction, or improper qual- ification, thus : — " A gift may be made in the alternative, or so as to put tlie donee to his choice ; in which case such choice must be made by him before delivery and acce})tanco can take effect. And ax to conditions in general, the usual rides tvould apply. Thus an>i law- ful condition precedent imposed hi/ the c/iver cannot he repudliitcd by the donee ; nor will the latter^ s title vest until he has perfo'iiwd the condition; on the other hand . . , the yift becomes comjih'te throiii/h compliance with the condition. If the condition fails, the thing may, as a rule, be recovered cither from the douce or liis transferee. And it is an equity rule, that where there is nu nl)- solute gift with some illegal condition or limitation annexed, tlic limitation fails, and the donee may retain the whole." ''' And in Whiting v. Barrett," the court went to the extent of hold- ing that where the owner of p rsonal ])roperty makes a verbal liitt 1 See Coclirane v. Moore, 25 Q. B. Div. 57; Irons v. Sniallpiece, 2 B. & Aid. at 552, per Abbott, C. J. « 2 Blk. Com. 441. • Story Eq. Jur. § 1302. < And see fnrtlier, on Conditions, Story's Kq. Jur. §§ 1302-1 3'2ti. * 2 .Sohoul. Pel's. Prop. § 128. « 7Laus. (N.Y.) IC , 109. PART II.] GIFTS DISTINGUISHED. 69 to another, such other acquires a perfect title if he gets possession of it before revocation of the gift by tlie donor, although the sub- ject of the gift *vas not present when the gift was made, or it was not even in esse at the time. At the time " the gift was made " here, it was a mere inclioate gift, and was very far from bi'iiig " absolute " in any sense. lu the very recent case of In re Richards, Shonstone v. Urock* (a. u. 1887), Miss Richards gave her i»romissoi'y note to C, to be dL'livored at her death to E. II., subject to the condition that E. II. should continue to live with the donor until her death. After the donor's death, E, H. claimed the amount of the note from Miss llichards's estate, on the ground that there had been a complete gift of the note to her, subject only to the condition that she should remain in the service of Miss Richards until the death of the latter, and that, that condition having been fullilled, E. H. was entitled to the amount of the note. The court sustained the conditional gift, and held that if the ,£200 had been paid in cash into the hands of C, the gift would have taken efl'ect, in case ihe donee should have fulfilled the prescribed condition ; and that it was not necessary for the completion of a voluntary gift that the money should have been paid over in cash into the hands of the jicrson who was intended to receive it ; it being suflicient if there was either a complete transfer of the property in the note, or a declaration of trust of it.^ A proposition was made by the Supreme Court of the United States in the frequently cited case of Basket v. Ilassell,^ that where a condition annexed to a gift is a condition ])recedent, and wliore the contingency contemplated is the donor's death, the gift cannot be executed in the donor's lifetime, and consequently can never take effect. This proposition is, we think, radically unsound. If it were correct, not only would Ridden v. Thrall,* which we have previously examined, be expressly wrongly decided, but the cases of Virtrin v. Gaither,^ and Gass v. Simpson,^ and numerous otlier eases, English and American, could not be supported. But we think that it is quite clear that the proposition cannot be sustained." 1 :!H I'll. Div. 541. 2 S,.,. Llov.l V. Chnnc, 2 Oiff. 441; Bonii 1.1 V. liasscll, 32 Ikav. 21"; Arthur i'.Cl;iikM)n, 35 IJeavv 458; Hallu. Palmer, 3 liaiv, W.Vl. 3 107 U. S. 602, 616. * 55 Ilmi, 185. » 4J 111. 39. " 4 ( 'oMw. 288. 'In the very recent case (a. n. 18S7) in Vjii,'iMia, of Sterling v. Wilkinson, 83 V:i. 7'.'1, the jirinciple .stated in Basket v. Hiissill, 107 U. S. GO",, 616, was acted on, wliiiu there was an assignment of bonds to a third party, the iiitere.st on tlu'rn tr. he paid to the loiior for life, mid in I'ase of Lis death, the " ineipal was to he divided belvVi-on liv" • irties named; and tills very conimnn *" .a of gift was, undei- the un- sounil d'uiim of the Supreme ( '.ih\, and not testamen- tary, there must be eitlier a delivery of the subject or the creation of a trust, and the lan^^uage used must not bo testamen- tary in ito character. \:V':.' wm 70 COMMENTARIES ON SALES. [book I. In the late English case of In re Richards, Shenstono v. Brock,^ above stated, the condition of the gift taking effect in the doneo was a condition precedent, and the contingency contemplated was the donor's death, and her title to the subject of the gift was held to vest al)solutely in her on the performance of the condi- tion. So in Lloyd v. Chunc,^ " the contingency contemplated " was "the donor's death," and the gift was held good. Hull v. Palmer,^ is to the same effect, where the gift was by deed. Other English and American cases to the same effect might be cited indefinitely, in addition to the numerous cases we have already examined. We think that the mistake made by the United States Supremo Court in Basket v. Ilassell * was caused by their considering that a gift which was only to become absolutely operative on the contingency of death, must, therefore, bo testamentary in its character. Such — as not only the above cited English cases, but numerous other well-decided English and American cases, many of which we have cited, show — is not the case. A gift, when testamentary in its character, will, of course, only take effect by virtue of a valid will, and at the death of the tes- tator. A case of that nature is Mitchell v. Smith,^ where the language indorsed on notes delivered by the holder to S., was, " I bequeath ; pay the within contents to S. or his order at my death ; " and it was held that the phraseology of the indorsement, connected with the remark of the donor that he wished to be master of the notes as long as he lived, but that at his death S. should have them, w held to show that nothing more than a testamentary disposition was intended. So, in Basket v. Hassell ^ itself, an indorsement on a certificate of deposit, " Pay to 13. ; no one else ; then not till my death. My life seems to be uncertain ; I may live through this spell. Then I will attend to it myself," was held not to take effect as an exe- cuted and complete transfer of the certificate of deposit to the donee, of possession and title, cither legal or equitable, during the life of the donor ; that, in effect, the indorsement was an abortive attempt at a testamentary disposition. These cases may have been, and we think were, quite well de- cided, without affecting those which hold that where there is an actual gift in prcesenti, with delivery of the subject, the gift to become absolute in futuro, on the condition being performed, though the contingency be the death of the donor, as in In re J. & S. 422 ; 10 L. T, 1 36 Ch. Div. 541. a 2 0itr. 441. 8 3 Hare, 532. * 107 U. S. at p. 616. 8 4 De G. N. s. 520, 80'. « 107 U. S. 602. PART II.] OIPTS DISTINQUISHED. 71 Richards, Shcnstone v. Brock,i Ridden v. Thrall,' Virgin v. Givithcr,'' Gass v. Simpson,* Smith v. Dorsey,^ Irish v. Nutting,** and ill Doxhcimcr v. Gautier,' there is a valid conditional gift, to be- come absolute on the performance of the condition, or to be defeated (as tlic distinction in these cases on the jjoint involved in them, between what are called conditions precedent and conditions siihse- qumt, is more fanciful than real) on the failure of the condition. In tlie old North Carolina case of Thompson v. McDonald,* the fallacy of the court in Basket v. HassoU '■' is well shown. There C. executed in Scotland (as is common there, as well as in Eng- land, Irohind, etc.) a trust-deed, making dispositions of real and personal pr(j|)erty, to take effect after the death of the donor, and dependent on her death as an event necessary to the full execution of the dispositions of the deed. It was alleged in the bill, that, in the deed, the donor used the language, " 1 bequeath, assign, and convey," and, in the same instrument, that she constituted her trustees her " sole executors." It was claimed that this instru- ment could not operate as a deed, because its dispositions were in their nature merely testamentary. But the court held, and most properly so, we think, that the instrument operated inter vivos, as a deed; that to render it (the instrument) testamentary, it should be made to depend on the event of death as necessary to its own consummation, meaning here its operation ; and, as the general structure of the instrument imported an immediate con- veyance and its immediate operation as a deed, that it was not to bo treated as a testamentary instrument. So in the very late North Carolina case (a. d. 1886) of Egerton v. Carr,^" the same principle was acted on as in Thomp- son V. McDonald." In Egerton v. Carr,i2 K. made m assign- ment of promissory notes, by deed, to C, in trust, to bt equally divided between the grantor's three daughters after her death. The notes were then in the possession of C. as her agent. At the time of the execution of the instniraent, the donor oppressed to C. her wish that the notes should be kept by him until her death, and then delivered to the |)arties named. The notes were payable to her and remained unindorsed, and remained in possession of C. until after the donor's death. In an action by her administrator for the recovery of the notes, the jury found icr the plaintiff ; answering, " Yes," to the question as to whether the ^pm'-^ ■H :i ; i » 36 Ch. Piv. 541. » r>r, Iliin, 185. » 42 111. 3!). < 4 Cal.lw. 288. ' 38 Inil. 4.51. • 47 Barb. 370. T 34 How. Pr. 472. 8 2 Dtv. & B. Eq. 463. » 107 U. S. at p. 616. I'J 94 N. Ciir. 648. " 2 D.v. & B. Kq. 463. " 94 N. Car. 648. 72 COMMENTARIES ON SALES. [book r. :■ 1 ■ plaintiff was the owner of the notes. On appeal, the Supremo Court of North Carolina reversed the judgment, which was rcn- dcred accordinf^ to the verdict, and held that the instrument made a present provision for conferriiuj a future benefit upon the oltjects of the donor's bounty ; that the action was predicated upon the absolute nullity of the deed, or upon a reserved power of revocation in the donor, or upon the idea that because the instrument, nut having been executed as a will, could not prevail as a testamen- tary instrument, it should fail altogether. The court disagreed with all these contentions. Smith, C. J., in delivering the judg- ment of the court, said : — "The execution of the instrument was careful, and with a well- defined intent, not only conveyed in its terms, but orally made known at the time, to make a present provision for conferriui/ n future bene- fit upon the objects of the donor's bounty. It purports to convert an agent into a trustee, and to attach trusts, which the defendant by his assent accepts and agrees to discharge. The trusts involve the retention and management of the securities thereafter, not as beff^i'C, for the donor's benefit and under her control, but to account for and pay over their accumulations at her death; thus vesting/ a present riyht in the donees to have the fund secured, but not to bo put in their possession until the happening of a future specilicd event, which must occur, though at an uncertain day. The funds which the donor declares, 'I leave' in the hands of the trustee, become his to hold and manage, and finally divide among the daughters, for which ends an equitable interest at once is vested in him. The only feature which gives a testamentary aspect to the paper, and upon which its nullity is made to depend, is found in fixing the period of enjoyment at the donor^s death, while most of them point to a present and inter vivos act. It is but a partial disposition of the intestate's estate. A person is designated to manage the funds during her life, and whose functions cease with their delivery over when she dies ; while the functions of an ex- ecutor begin just where those of the trustee end. There is no reservation of authority or of interest in them thereafter, such as are implied in a gift causd mortis. These are the qualities of a deed rather than of a will, and no attempt is made to put the instrument in the form required for the latter. 'It does not follow,' wo quote from the opinion delivered in Thompson v. McDowell,^ ' be- cause an instrument is to produce important results after death, that therefore it must be testamentary. To render it testamentary it is essentially necessary that it should be made to depend on the event of death as necessary to its own consummation.' " 1 2 Dcv. & B. Eq. 463. PART II.] GIFTS DrSTmouiSHED. ^'ofwitlistiindino- Hm , ^* *■""/ --onto. Ttn J";i* ■■'?'^' "^"""'"l '.» "^o' ': >«■• I'ho s'»'«l,.a .-ourt of ?'■,"'.'"''' "hording toZ,- '""""^y, ami lienor iiovoi- „.„... ■.'""■"'='' coujisoi fo? m . ""'"Ko. It ;« » -.0 ■■!;« ;?;./x''°"- o,- li^,-o^o;:;t ,'"»' "■» ^'"s seems to us n„?L ^ ^"^ ''^"""J or rcvoU h 7i"'^P0'tK, am- ,|,>.,.,,. ' «." VV, *''^ ^'"^^t'O" of a vl-?j f ^^^^^at'on is nor- one i-ing J'-'l. f<;tJ. ,.,! V .,,. '.'^'''1 I Load. Cas. in .Jr. Mass. loO; Love „ /' ^''"''' '"^t- 1''8 f / iKSlt %!-4 -'■A.ei);> ■lU Si > ! °d ; « »n,h. ,81. ,»„ ° ' '""'' "^^ """"P'^' does this ves the (/ '•■ (- I '' :;i 76 COMMENTALIES ON SALES. [book I. title in him, and devest A. of all title and possession of it, if he retains the deposit book? In Blasdel i'. Locke,* a bill inequity by the aihuinistrator of the donor against the bank and the donee to recover a deposit, on similar facts, though less favorable to the defendant, it was held ' that the deposit created a trust in the bank in favor of !>., and that, npon information of what had been done being conveyed by A. to B., and accepted by B., ht r title to the money became absolute, although there was no deliv- ery of tlio deposit book,' The failure to deliver the deposit book did not make the transaction an executory instead of an executed trust and perfected gift. " In the cose at bar the father deposited in the bank, in his daughter's name, b(*fore her marriage, the money in controversy. He made no declaration to the bank other than to direct the de- posit in his daughter's name, and receive the deposit book. He intended, however, the deposit as a gift to her, subject to his tak- ing the income while he lived, and his wife's taking it for her life if she survived him. He afterwards showed the deposit-book to his daughter, she saw the entry, and he informed her of the gift, and she accepted it ; he retaining the book during his life to ena- ble him to draw the income. We mulerstand the case to find that the father intended, at the time of making the deposit, to make a presi'ut gift to his daughter subject to ihc taking of the income, nnless the evidence of the imperfectedly executed will was in law conehisive. [The donor, after having made the ^\it in pntxttiti, in 1^74, to take etl'ect in J'uturo, the "contingency contemplated being the donor's death," '^ made an abortive will in 1878, and died in 1884.] The will was not conclusive evidence, even if competent, on the question, and the case stands on the finding of the court on all the evidence, including the will. The admini.s- tratrix of the father claims that the transaction was in the natme of a testairientary disposition of the |)roperty not in accordani'c with the statute of wills. Bartlett v. Remington.'^ In that case the deposit was made in the name of the jierson making it, for Sarah Storroe, on the trust that the depositor was to hold the title and tin; power to dispose of the property so long as slic lived, and then wli.it was left was to go to Sarah. This was InM to bo an executory trust, not an executed one. In this easi* tlio money was deposited in the name of a third party, the depositor inteniling to make a present gift of it, subject to the taking of the income. To establish a valid gift, a delivery of the subject- 616, » .V2 \. H. 2ns. •J Biisket V. Has-sell, 107 U. S. at p. » 59 N. H. 266. PART II.] GIFTS DISTINGUISHED. 77 matter to the donee, or some person for liim, so as to devest the titl(! and possession of the donor, nuist bo shown ; and the in- tjuiry is whether a valid gift in prccscnti can bo made of money, subject to the right of tii'j donor to take the income. Such a gift, we think, may be nnide by a j)roper transfer to a trustee ; aiul the (piostion is whotlior the facts of this case j>rosont such a transfer. If A. deposits money in U.'s name, without )iis knowl- cdiTc, iutendin}.; it as a gift, it is not jierfectod, as tiie assent of liot'.i pjirtics is necessary. Pierce v. Burroughs.^ JJut when J], is notifu'd of the gift, and accepts it. Ins legal title to the money is perfected ; and if not paid on demand, iie may maintain an ac- tion at law to recover ii. A. could have no action for the money, oitlier at law or in equity, as all title and right of |)ossession have jiasscd from him. Again, if A. deposits money in K's name, to lii.>, credit, intending it r.s a present gift, but to remain in the bank during the lives of A. and his wife, and that of the sur- vi\«rr, subject to the income being taken by them [which was the exact ca.se of Smith v. Savings IJank],^ the bank takes the money on tlie trust to hold it for the term, and at the close pay the prin- cijial sum to J>. ; and when J>. is notified of the gift, and «<- »ts it with it)< hnrtlenH ami comJitions, a title to the j»>Iiicipal is per- fected in him, subject to the equitable right of A. and wife to take the income. A.'s title and jmssession, and all right to a title or tile jtnssession of the principal, are as entirely devested at the nionient of the acceptance as if it were to be j)aid l>y the bajik to 1). on dounv d. It is an executed perfect gift as to A. lie has delivered the money to the bank. His dominion and jiower to tcvokc are gone. His situation is not dissimilar to what t ."ould have boon had he given the money accompanied by an uiM,iialilied drliviTv to ]>., vesting the title and poijsession in him, on l>.'s un- dertal\ing to account to A. for the income he might receive from it (luring the term; the important dilTerenee being that the pay- ment of the income to Smith and wife is secured and nuido tlirouL'li a trustee, — practically, at least, the sater wa y." ^ In the leading English case of Drury v. Smilii,'' Lord llardwicko ' r.8\. H. 302. - Ill N. II. 2-lA; All. Uop. 7'.>2. ' Siv I'mtlifr, lUiisdfl r. I.oiki", 52 N. II. -JliS ; S,.,tt 1'. Hank, 140 .Mass. ir.7, I'i.'i; Havis 1). Ncy, \'>r> Mass. .Mmi; i'.v:- lish r. Iiistiiutioii,' 12S Mass. I.IO; Tnnic- I'. I'.stiitii„,,k, l-J'.t Mass. 42:.; lilc v. Piciris l:!4 Mas.s. -jiiit; Ka.stiimn v. Bank, lati .Mass. 2oS; Shcniiaii v. Itiiiik, l'\S Mass. M\: Null r. Morse, 142 Miws. 1; Curtis I' Hiiik. 77 .Me. l.'il; Miirston :•. Marstoi', •>4 N. 11. 140; Uobinaon v. Ring, 72 Mo. 140; Martin v. Kunk, 7.'i N. Y. VM ; VoiiM^' f. Voiiii^.', .So N. Y. 422; Willis i'. Siiiylli, iU N. V. 2'."7; Maliic c. I'.ailcy, i'5 N. V. 20(i; lllirtiili I". I lank, ;i2 Colin .'StS; Mi;ior r. Itoi^vrs, lo Coiin. .TrJ; ('aiii|''«i Ai>iH'al, ;{() (.'onn. SS; .Millspau;;!' r. I'ut- naiu, Iti.Mil-. !'i. ".Si!, Cmidcr •. .\'"rrilt, 32 Mil. 78' liny r. .Sinoiions. 11 )J. I. 2f.fi ; Taylor f. Henry, 4S M<1. .^.■|0; lliwanlf. Hank, M Vt. 284 ; Many v. Aniaj; mii, 01 N. Il.llU. « 1 P. Wins, at p. 405. ! '^ ■ J nil i w ;'i ! m 78 COMMENTARIES ON SALES. [book I. says : " This is a gift in the testator's lifetime, donatio causd mortis, and the possession transmuted, and certainly, notwith- standing tlie will, the testator had a power to give away any i>art of his estate in his lifetime ; he might in his lifetime, after the making of his will, (/ive mcay ani/ part of his estate ahsolulely, and by the same reason might, notwithstanding the will, rsoi ^y the (|„n "x'aiitiiiio, "K'oiiio re.si "•■'e of the c •"xhaiistivel ^^'e hiive \ '^' ''. s. f , fi'i''! ill 2 J ,, '" '''fisw. ^••■IJ iiivuli,!, on ( PART II.J OlfTB DrSTINGDrsHBD. 79 fit all in prcesenti • ''"■■J1.10 ,.,,;,,• ' <-'"ntin!r..rici- arises "7 •-""' 'I'"""- in tl„. ;-.r:..., •f»i"«i.n„., .„,.„., <- I I'll in >) Ij 1 ._ .„ " ^'"". r Taunt. 22^. ' '^"''" '• ^ork. •f l.iH /J :f 80 COMMENTARIES ON SALES. [book I. 11^ i part of the paragraph. This, as the point is made to rest on tlie distinction between a gift inter vivos and a donatio mortis caimi, which distinction is as applicable to the gift of a personal chattel ac "^o a chose in action, is, in effect, that there can be no valid inter vivos gift, unless it be ^'■absolute and irrevocable.''^ We have already shown that if there be a gift in prcBsenti, with a delivery and acceptance, it is a good gift even though it be on a condition.' Hence, as far as the term "absolutely" exi)ressly or impliedly states that a gift cannot be made " conditionally," the proposition is unsound. Equally so, we think it is, where the allegation is that unless the gift be made " irrevocably," it cannot be a g(wd gift. If it can be made conditionally, it is clear that . t can be made revocably ; for the very condition upon which it is made, delivered, accepted, may then be a condition that it may be revoked. A gift is so far a contract, clearly, as, among other essentials of a contract, to involve the consensus ad idem. Hence, to constitute a gift, there must be the meeting of minds of the donor and donee as to the subject of the gift ; and equally so, clearly, as to the terms of tbo gift, if any are im})osed. The essential distinction between a gift as a contract and any other contract is, that b; iiig voluntary, and having no consideration to support it, it genoiaiiy (as there is the locns poenitent ice until it is executed) cannot be enforced so long as it remains in fieri ; — a mere nmlnm pucfinn. But once executed, the distinction between a gift and other con- tracts disappears. Hence, it is clear, that vrhen a gift is made, delivered, and accepted, and the minds of the parties have met on the condition that, on certain terms or conditions, it may be re- voked, the gitt is subject to such conditions, and may as well he subject to revocation as to any other condition ; precisely, fur instance, as the contract of bailment may bo. Tiic gift in Stone v. Hackett,^ fully stated by us supra, besides being on condition that the donor was to have the income of llic subject of the gift — in this case, too, chof,es in action — duriii'.' his life, was expressly made subject to tlie donor's rights to modify the uses or to revoke the gift ; and he having died, without liaviiiir modilied the u'-.os or revoked vhc gift, the beneliciaries were IkM entitled to tlio property as a completely executed " absolute " Lnti inter ri'-os. The court correctly held, as we think is true Iteyoml a pci adventure, that a power to revoke does not affect its validity in default of the execution of the power. So, clearly, there may be a good gift, though an express i)ower to revoke it is reserved. A irift mortis causd is a gift inter vivos.^ H then there can bo a gift > See tlie iiiimeroug cases that wo bavo dtcd to this effect supra. » 12 Gray (78 Mass. ), 2-27. ■ Gass t>. Simpson, 4 Culdw, (Teun.) 2!)4. PART II.] GIFTS DISTINGUISHED. 81 inter vivos when it is technically a gift mortis causa, carrying with it the implied condition of the right of revocation, there wonld soein to be on that ground also, in jirinciple, no reason why any (ithcr gift inter vivos may not be made subject to the express con- dition of revocation. And it is perfectly clear that it can be. Such gifts, both of real and personal property, are made every day. Such a provision — a power of revocation — is often contained in testamentary gifts ; in trust-deeds; in marriage settlements, and in other instruments ot ,i,nft. See Gaither v. Williams,! where there was a gift to become oper- ative in the bcneliciai •< .» oidy after the death of the grantors, wlio reserved to themselves " full i)ower of revocation," '' even to the entire I'cvocation " of the gifts which they had made under the instrument; and which gifts, had the grantors not revoked them, wliieh they did, would have become " absolutely" operative when tlio contingency arose. Subsequently, however, they made another cnnvcyanee of the property, and the court held that, possessing tlie iiower to revoke the siifts, the second convevance worked such a revocation ; although, on its face, it did not purport to be an exorcise of the power of revocation. So in Aylsworth v. "NVhitcoinb.- where an instrument was exe- eiited making a voluntary disposition (a gift ) of the grantor's real and persoual j)roperty, which contained no express power of i-evo- cation; but it was executed by the grantor under the impression that he couM revoke it, the other party to the iustrmueut admit- tinir that it was executed on the belii-f and undi'i'standing ity both parties that it was revocable; the court decreed, in elVeel, on the L'rnnnd of mistake, that tln^ gi-antor had the power to revoke the ijeod. And in K(Minell /'. Altbott,^ when* a legacy was given by a woman to a man in the chai-aeter of her husband, wlnnu she supp(»sed was and described him as sueh. hut wlio at the time of tin' niarriauv (eremony with her had a wife li\ inur ; tiie court, after the donor's 'leatli, on the gnjund that where a legacy is given to a person under a |iartieidar character which be lind falsely assumed, and which alone could be supposed the motive of tlie bounty, the law would not ]>erniit hiiu to avail himself of it. annulled the legacy. l>nt as a ride, where a power of revocation is not expressly re- s'Mved and the gift has been made absolutely and unconditionally, :niil so vests in tlie donee, it then becomes irrevocable; where it 1 !l m\^} \ W ■If- ' .'■.7 Mil. •'.2.1. - l> U. 1. US*!*. vol. I . * i Vcs. 802. I' I 82 COMMENTARIES ON SALES. [book I. has been made without fraud or mistake, and where the donors do not occupy a fiduciary relation towards each other.* And, generally, the very essence of a gift infer vivos is, where it is not expressly made subject to the exercise of the right of revo- cation, and wliether it is made either unconditionally, or if niaiif on a condition, the condition has been performed, that it th* ii becomes absolute and iire vocable.'^ Under the correct decision in Aylsworth v. Whitcomb,^ st.ittd ante, as well as on the principle that a gift possesses generally tin' qualities of un agreement or contract, it is clear that where tlioro is no connensus ad idem, — no agreement between the donor iiiid donee, say as to the subject of the gift, or any mistake between them which goes to the essence of the gift, — the gift can be revoked for mistake, without any express reservation of a power of revoca- tion. And not only may the grantor or donor of a gifc reserve, in the instrument making the gift, a jiower of revocation, but j>o\v- ers of revocation are by deeds of gift frequeufly vested in third parties.* So, when a gift is made on condition, it is thereby necessarily imjdied that the gift, whether it be of real or personal property, may be defeated fo»' non-performance of the condition ; or, in other words, revoked. Thus it \ms held in Eskridge v. Farrar/' llmt where the condition on whicli a gift had been made had not Ikm ii complied with, the gift could be revoked, even though the property were in the hands of a third party.** The same doctrine too, wfth reference to gifts to a charity, w;is sustained in the United States Supreme Court, in Printing lloiisf V. IJoard of Trustees,' wheie ^ they say : — " Where certain contributions to a charity arc proposed to !••; made upon certain express conditions, the rights of the donors > Fellow's Appeal, 93 Pii. 470; Storrs V. Barber, 6 Johns. Ch. 16(5; t'tiiipiri i\ Laytin, 18 Wend. 412; Hunt «. Knisiiiiin- ler, 8 Wht'at. 174; Slifer v. H.-utes. « Scr. & K. 166 ; Spra^'ue v. Wootls, 4 W. «: S. 192; Dtnnison »'. Ga-hrinj,', 7 IIuit, 17;"); K.M-(i V. Uol)ins()n, 6 VV. & S. a2'.»; Dclii- I'li'tci'.s Kst., 1 VVhart. ati2; Uft'sc v. Kiilh, 13 S. & R. 434 ; (:r.rnlu'l.rs Kst., 2 Iliirris, 489; Stone f. llaikett, 12 Cray, :»27; Kllison I'. Kllison, 6 V.s 6ri6; Kcke- wich V. M;innin;T, i |),. (!, M. ^ (!. 176 ; Kgcrton c. Carr, 94 N. ("ar. 648. ^ See Knott's Ailnir. v. Ho>»an, 4 Mctr. (Ky. ) 99: Minor t^ UojjcrH, 4(t Conn. T>\'2; Si;,'gors v. Evan.s, 5 Kl. & !'•. 366; Slerlinf? V Wilkinson, 83 Va. 791. Tlie qncry was raised in Fn rr Ricluii'ds, .Slicnstone I.. Hroik, 36 Ch. Div. S41, ;;44; and see Blasdel v. Locke, 52 N. H. 238, 243, as toil revocation of a k'I"* inter viros, on ((Hi- dition, be re the condition had tii'cii |"i- tbrnji'd; but we tiiink tlie law is iIcmi lli;it where a f,'it't is duly nii'.de, sulijrct t" .i ronditii.n, and then; is no reserviitinn "I .i power to revoke, tiic jiower of the f,'r;iiit"i to revoke is fjoiie, unlesis ihore be u bnMrh of the condition. 8 12 K. 1. 298. * See Smith V. Adkiiis, L. K. 1 1 K': 402; Huckell i-. IJlenkhorn, 5 llan-. lil * 30 i,a. Ann. 718. « IJerry r. iJerrv, 31 Town, 41.';. Mi-- ston V. Marston. .1 Atl. Rep. 713; 64 N. H 146; Dnelaud i'. Ronsseiiu, 2 I*i. Ai"- 168, and Hart's Kx'ors v. Boni, 6 la K ((). s ) 97, are to the same ellect. ' 104 n. S. 711. » At p. 717. TART 11.] GIFTS DISTINGUISHED. 88 stand upon contract, and if the conditions arc not performed, their (ililijrntion to contribute is discharged ;" that is, in elTect, that the •rift can ho revoked. And airain, where fiduciary ndations exist between the i)arties fo !i irift, it may be revolved on the groinid of its havini; been made under unduo influence.' IJut where the jrift has been made be- tween jiarlies bearint? a fiduciary relation, so that the frift is revo- oalile at the option of the donor, and, after the liduciary relation has terminated, the donor elects not to revoke the gift, as it is voidable only ami not void, it then becomes nbsolute, and cannot 1)0 revukeil by the donor's executors after his death.^ The incorrect test of a gift infer vivos, given in Jiaskct v. Ilas- sell,'' that it can only exist where the donor has been devested of control and dominion over it " absolutely and irrevocably," was praetieally, and we think wrongly acted on, in effect, by the New Yolk (,'uurt of Appeals in the very recent ease (November, 18S*.t) of Williams r. (Juile,'* although the case itself was evidently cor- rectly decided in favor of the donee. A gift by deed was made by tln' plaint itf's intesta'e of a policy of life insurance, with its accu- mulations, some six or seven weeks prior to his death. 'I'he deed purported to have been made for a valuable consideration, and contained a clause to the efTect that the assignment was subject to the express condition and reservation that the donor had power to revoke it at any time during Ins life. The deeil was delivered to a third party for the donee, wlio, snltse(|nent to the donor's death, collected the amount, in an action by the donor's admin- istrator against the donee, the Ni'W York Supreme Court held ^ that the gift was good iutvr vivos, and that the fact that the Lnantor reserved the right of revocation showed that he intended tlie deed to Operate then, sidijeet to the condition or reservation of tlie right to revoke; otherwise that thiit condition would have licen insensible ; as, if the gift were iu»t intended to take elTect in }o-(iK>'iifi, the reservation of a p(»wer to revoke wouhl have been unnecessary, as there would have been nothinii- to revoke. We think they were entirely right. It was also claimed that the gift was good mortix causd, but the court found it unnecessary to con- sider that point. On appeal, the New Y''ork Court of Appeals held that the LMft was a good donatio mortis vansd, but not a good gift inter ' HiHwii r. Ki'iincdy, 4 Dc O. J, & S. T>9>1. And se<' «!ic;;nry ?•. Gregory, O. 217; llaiiiii'iiin r. Ii,isi"li'y, 14 Vcs. '273; (.'(lopiT, 'JOl; \Vii;;|it v. Viinlil.:iii.', 1 Hoir. Cti. 4-21; Fiunaiii r. 3 Gill. 337. l)io„ks, Pick. 218; Starr v. Vaiuior- « 104 V. i>>. nt )-. 614. lioyd.n. It.Ioliiis. '253. * 117 N. Y, 343. • Mitchdl V. lliiiifrny, 8 Q. B. Div. » Williams v. Guiio, 4C Hun, 645. \ . ' ! .'■« M ■\^n < t i f 84 COMMENTARIES ON SALES. fBOOK I. vivos. Wc think their reasons for so liolding are not satisfactory. They admitted that the facts were undisputed and not conflictiii!;, and that they evidenced an unmistakable and clear intent that tlie donee should have the benefit of the policy unless the gift was re- voked during the donor's life. The delivery of the deed havin,' been eiiually as effectual to jmss tlu; property infer vii.s, as tnortin rauKtt, we think the better decision is that of the Supreme Court; that the gift of the policy was an existing gift in /ira-sfnli, passing' the i)roperty then therein, subject only to its being devested on the express condition named in the deed, viz., its revocation durin;' the donor's life. And we think, \mder the facts, that had the donor, after the due execution and delivery of the deed, lived a dozen years, so that it could not reasoual)ly have been contemlcj that the gift was valid morfin (-(Vis• I-" c.v, „...,»,,. „ ; ^^^ iliiviiv, t„ |( ' ■'"''J"- Jlie Clerk u-K f ' ' '•" "ot sec linu >l :"''t"i '''■'''■'■"•'1 to Ii ui.r ^'"'' '•''"■'•'< w.is ,viv..,l ,|„. ,;;''- P'-'-scnt,,, it, an.l r.- "";'/,';^ '•""■svf, sui.l:-! ""* " ''""'"'o 7'"'' tli« ^^■hV T ' '""'"'•' ^ '""-^t *''';""■'• tl.o , „ ,p '"sucfon. to see ■ ■• th vo';''^,""'^-<^otoA "• -"'O li|||ll>t 4.1.. .. ""/•■^'""torsln-,, /mmTi :. , '^''""",""-'ya.s I"7"'-"t to I!. 1 i '• y """;• H.an th. for A." '■'""-" "■"■^t-« or4.-:.oo ui ,t Mamott, 2 iii,,.'. N r "i,.^ ^ ,',^"'"" '■•■ V- Balhirni. 2 Ar ;. vi> t^„"^/ i lioiinell in • 1} iwmi 86 COMMENTARIES ON SALES. [book I. I'l ^-i : ; i M' f^ift partakes so much of tho character of a legacy or nuncupa- tive will, that it is implied, even tliouc/- t!ilil).s, C. J.: Tato V. lliU.ert, 2 Ves. .Ir. Ill; Blount r. IJunow, 1 Ves. Jr. 54tJ. TIm' best expositions in this country of the law {;;('M(;nilly, as to thmationes mortia caufiil, will be fouml in Nicholas f. Aiianis, 2 Whart. 17, 22, H s,'q., bv (iibson, C. J. ; in Mrnhant v. Merchant, 2 BnuU". (N. Y.) 432, liv Hradlord, Surroj;ate ; and in (Jass V. Simpson. 4 Coldw. (Tenn.) 2S8, 292, ct scq., per Hawkins, ,1. ; criticised by tho Supreme (.'ourt of the United States in Basket V. Hassell, 107 U. S. at j). 608, et seq. See further, Thompson v. Thompson, 12 Tex. at p. 331; (Jourley v. Linsenbigler, .")! I'iu St. 345 ; Miuhener v. Dale, 22 Pa. St. 5it. '^ For eases as to the subjent of tho gift morHs cin(.«i?, see Wanl t>. Turner, 2 Ves. Sen. 431; Walter y. Uodj;e, 2 Swanst. »2; Miller v. Miller, 3 P. Wins. 3.56 ; Lawson v. Lawson, 1 P. Wms. 411 ; Jones V. Selby, Piee. in Ch. 300; Bailey r. Snel- Urove, 3 Atk. 214; Richard v. Syms, 2 Atk. 319; Hill v. Chapman, 2 lire. C. C. 612; Tate i-. Hilbert, 2 Ves. Jr. Ill; Veal V. Veal, 27 Beav. 303; DufficM r. Elwes, 1 Sim. Jt St. 24.'); 1 Bli. n. s. M; Mitchell V. Smith, 4 De ti. J. & S. i'li ; Moore v. Denton, 4 De (1. & Sni. Tiir; Bouts f. Ellis, 17 IJeav. 121; (lanliiLi' i'. Pmhloek, 3 Madd. 184 ; Hurst v. li.a.li, 5 Madd. 3.')1; Barton i'. (iarner, 3 II. & N. 287; IJeak v. 15eak, L. U. 13 Iv|. JS'.t; Witt V. Amis. 1 P. & .S. 10!>; Amis c. Witt, 33 Beav. tUit; Hulliday v, Atkinson, 5 B. & C. 501; Parish r. Stone, U I'iik. 204; Hill 1-. Ikickniinster, 5 Pick. 3W: Mills V. Wvnian, 3 Pick. 208: llowcrs v. Hurd, 10 Mass. 427; Kilf u. W.avn, 'A N. Car. 274; Fairly v. McLean, 11 inl 158; IJrickhouse v. Brickhouse, 11 in'l. 404; Gourley i*. Fjinsenbif^ler, .11 I'^i. otJ; Sessions i;. Moselv, 4 t'usli. 87; llmi-*''. Clark, 3 Comst. "(N. Y.) 114; Wii-iitr. .McMillan, 1 I'ow. 598 ; French r. liny- niond, 39 Vt. 623; Smith !'. Kittriils,"', 21 Vt. 238; Coutant v. Sdiuvler. 1 I'.iiu'f. 316; Grover v. Orovcr. 24 Pick. 'J'n ; Holley r. Adams. 16 Vt. 206; Crii,' i'. Craiff, 3 Barb. 76; Harris v. Claik, '2 Barb. 94; Cobb i-. Sawyer, 6 N. 11. ^^''>- Wells V. Tucker, 3 Binn. 366; Bornciuau PART II.] GIFTS DISTINGUISHED. 87 The rule as to the delivery is, that it may be made to the donoo (iiiect, Of to any third party for him ; ^ althou^'h, in several badly iliciticd cases, it has been held that a delivery to a third party, with the express condition that the subject of the ]>.s, 91 I'ii. iU.'i; Striliii;; v. Wilkinson, b3 Va. in: Apjual of Kline, 117 Pa. 13i>; Weitz V. Miiritt, 74 Iowa, 083; Seott i-. Laiiinaii, Ml I'a. 5'J3; Daniel v. Smith, 75 Cal. 518. ' See Tate i-. LeithcaJ, Kay, 658. "- Il>,d. » Sic Love r. Franeis, 63 Mich. 181, 190, statcil ((,!/.', p. 6(5; ami see Kllis c. Seeor, 31 Mi ill. LS.'i ; (ii'een v. I.ang'i,i;i'. 2 .Swanst. 92; Hedges ». Hedj;es, Prec. Ch. 269; Jones v. Selby, Prec. Ch. 300; Ilas.sel i\ Tyrett, Ami). 318; Blount V. Hunow, 4 Bio'. ('. ('. 72; Tate v. llil- bert, 4 Bm. ('. C. 286; Miller V. Miller, 3 1'. Wins. 3.''.6; IVwell r. llelliear, 26 Beav. 261; l-:.r /mrtr I've, IS Ve.s. 140; li'jtitt.si". Kllis, 17 lieav. 121; Faiquharsou V. Cave, 2 Coll. \W>>\ ; Ward r. Turner, 2 Ves. Sen. 4^1 ; riiinn v. Markham, 7 Taunt. 221; 2 Marsh. M-1: Hill v. t'hap- inaii, 2 Bid. C. V. (ii:!; Hawkins v. iilewitt, 2 Ksp. 663 ; Kdwards v. .tones, 7 Sim. 325; Gardner v. i'arker, 3 .Maiid. 181; Moore i>. D'.'nton, 4 De tl. & Sm. 517; Pi'iiniii^'ton I'. (Jittings. 2 Gill & .1. 2(i8; lieddell v. Dobree, Id Sim. 244; Mooie v. Dalton, 20 20 L. J. C"h. 626 ; Hills v. Hills, 8 M. & W. 401 ; Itiivmond v. Selliek, 10 Conn. 480 ; Michener v. Dale, 23 Pa. St. 59; Sessions i\ .Moseley, 4 Cush. 87; Jones V. Dever, 16 Ala. 221 ; Bornemaii v. Sidlinjier. 15 Me. 429; 21 Me. 18.'; Peters V. Fort Madison Co., 72 Iowa. 405: Lowther V. Lowther, 30 W. Va. 103; Clough v. ^'^;i I'r 88 COMMENTARIES ON SALES. [book I. In the Now Rrunswick cnso of Earlo v. Botsford,* to which wc have previouHly rcfen'od, where it was wronjrly decided that " a gift made in conteniphition of death" by suicide, was not "adrift made in eontcniphition of death" (^donatio mort'iH cuum(i), the de- cision, on another ground, is still worse. In this case the ^ifts, duly lal)elled, were (hdiverctl by the donor to A., to be forwanled to IJ. " ill case anytiiini^ should happen to him " (the don(jr), wiiich, it was conceded, meant in case of the donor's death taking place, as lie contemplated, by suicide. The junior throe judges of the court held (neither of the senior three judges of the court sitting in the case), that the deliveiy was not suHieicnt. The case on this point is wrongly decided on two grounds: (1) The case was taken from the jury by King, J. (wli.j deliv- ered the judgment of the court in bank, the others simply asseut- ing to it), with the frank admission of his ignorance of the law of gifts morfia causa, solely on the grouud that a gift mortis <-aum must be made in a " last sickness ;" and, therefore, the <|uestioii as to the delivery was not properly before the cc-urt; and (2) A delivery of a gift by A. to B. for C, in contem| lation of death, is a good delivery of the gift mortis causa. In fact, in a very large proportion of the gifts mortis causa, as generally the act is sudilen, the delivery by the donor is to a third party, for the donee. The decision otherwise in Karle <■. IJots- ford,'-^ was the result of the ground of the decision by Sir John Romilly, M. U., in Powell v. llellicar,'^ having not been understood by King, J. In this latter case there was no delivery of the subject of the intended gift by the donor at all, either to the donee or to any other person for her. Tlu^ sul)jects of the 'Mtended gift, a watch and trinkets, were not present, but a third party was directed to take the keys of the dressing-case and box, and after the doUMi's death to deliver, not even the dressing-case and Imx, but the watch and trinkets, part of which were with oiii<-: articles in the dres- sing-case. All tliat the Master of the Rolls held was that lure there was no delivery by the donor at all. To have held other- wise would have l»een enlarging the doctrine of symbolical delivery much beyond its legitimate scope. Cloii;,'li, 117 Mass. 83; Prcsscry. Drt'sscr, 46 Mf. 81; Hciis.licl r. Miuiivi, ; Hathaway I'. Payne. 31 N. Y. !>2; Jlitrlic. Atkinson, 56 Me. 32J ; Kgerton v. Ki;i'iI'>m. 17 N.. I. Kq. 41!); .Millir c. .I.tlVies, 4 (u itt. 472 ; Savings Bank v. Fojj;j,', 82 Me. M.v 1 23 N. li. Kep. 407. 3 Ihi,/. 8 26 Beav. 261. PART II.] GIFTS DISTINGUISHED. 89 A very larpro number of tlio cases cited on the subject of delivery in notes :5 luid 4 to p. 87, ante, are cases where the delivery of the siilijcct of tlif jjift was made by the donor to a third party for the uDiK.'c, and such delivery was held sullicient. The very late Eng- lish case of Jn re Richards, Shcnstone c. IJroek,' fnlly slated Hiipra, is of that nature. So is Tato v. Leithead,'- and numerous otlxM' cases, Kniilish iind American. In Moore r. Denton,^ the donor delivered to her own maid the donee's receipt for £.")00, which he had borrowed from the donor, tile donor directing; the maid not to let tlie receipt f^o out eing there, either, even (luestioned. In Sessions v. Moseley,'' Shaw, C. J., referring to a gift delivered to ii third party for the donee, said : — "The (|iiestion is whether, under the circumstances, the trans- action as stilted by the sister constituted a valid gift of Moseley's note by the intestate, either as a gift inter vivos, or as a good iluii'itio causa mortis. The judge instructed the jury that if the donor, being sick and apprehensive of death, gave into the hands of L. the note in suit, with directioii^ to give it after his death to W. for his own, and L. kept the note till after the death of the donor, and tluMi give it to W. and he accepted it, the' plaintiff was entitled to recover. This we think was correct, ilerc! are all the roi|iii.sites for a good ilonatio mortix causa, A note of hand of a tliird person ; a security for money, or a chose in action, however it may have been formerly eonsiilered, is now held to be a jiroper subject of sii jh a gift. Inhere was an actual delirerif to a person for the use of the donee ; an expectation of death ; the death of the donor ensuing : a subsequent delivery to the donee ; and an aecejit- anec of the gilt by him."" So in (Jrymes v. Hone,' where the delivery of bank stock was ' 3ii (li. Div. f)41. " K:iv, f!:)S. ^ 4 I»,- (!. & Sm. 517. * 1 1'. Wilis. 4U4. 6 4 Cash. 87. •> Palish V. Stone, 14 Tick. 198. T 40 N. Y. 17. i I ItllliBIIU 1 % ■1 i Wi i I, I * ! •■! iiili 90 COMMENTARIES ON SALES. [book I. to the donor's wife for the donee, intended as a gift mortia cattm, the court in sustaining the gift said : — " The dechiration of tlie donor that his wife slionUl keep the assiirnnient and not hand it over till after liis death, as lie did not know what ini,u;iit happen, nor but that they niiuiit need it, wiis simply a statement of the law as to siu-h a uil't, whether tin h'chi- ration was or was not made. Clearly he eould not ti'll wlieiuer he should die or recover from that ailment. If he did recover, tlio law holds {he gift void. The transaction as to such a gift is : The donor says.' 1 am ill, and fear I shall die of this illness; whcn'- fore 1 wish you to take these things and hand them to my graml- daughter after my death, hut do not hand them to her now as 1 may recover and need them.' A good donatio mortin ouhxu always implies all this. Jf delivered al)si)lutely to the donee in |tersuii, the law holds it void in case the donor recovers, and he may tlnii reclaim it.' 'I'o make a valid gift morfis aaiixa, it is not neccssnrv that there shoidd he any expres.Hipialilicatiou in the transferor tljo delivery. It may Ijc found to he such a gift from the attending cir- cumstances, though the written transfer and the delivery mr.y lie absolute. . . . Was there a delivery ? The assignment was dcliv- eretl to his wife for the donee. She thus Itecanje the agent <•!' tiio doner. So far as the mere delivery is concerned, this is sulliciciit." In Wells ('. TuckcM',*'^ the delivery of the gift for the donees was made \ty the donor to his wife. It was claimed that the delivery to the wife was in /act no change of possession, because ilie pos- session of the wife is the possession of the husband. Hut iIks court held that the delivery was siillieient. Tilgliman, V. .1,, in so holding, Uuis correctly laiil down the law: — •* In the first place, the delivery was not to the douee, but, fntlie donor's wife, to be I)y lier delivered over. There is jio objeetieii to this mode of delivery. Whether made to the douee iunnedi- ateb , or to another for his use, is inunaterial. It was so tleciijed in ('li'.ry r. Smith."'' So in Miehener c. Hale,* the donor, iieing on a voyage froiuS;))'. Frane SCO to I'anama, and lieing attacked with cholera of wliiili Ik' 8p"edly died, delivered gold dust and coin to the purser is a (lolivcrv of pci'sonnl property jimi a transfer of a spiTiul Imt not the ,L^<'iicral property in ilie tliiiiL: transt\"':e(i, tlic transfer is a Itailnieiit and not a sale;' the licnoral property re- niaininj^ in the triinsferor of the Mpecial jtroperty. ' Cci.i;;.'s c. HiiiKiiil. •-' l.'l. lliiyiii, '.M"; jjnoil Kmiliiinn hn lic;,'()t it. Affi'i'KiMliii;; Jotii'H on l!;iiliiii'iit. 1; 1 Sill. l.'Mil. (^ls. it, tlic Iikim' raii awiiv ami was iiiiMrtd, 19!', ami iintr^ tiicii- to t'";;;,'s r. lii'rii;iii|. aii'l wais not irtiniiccl. Tin- court ImM \n<[ siirli \A till- |;iii){uav'i' ^'cnriiijly tih' tianMU'tion to lie a hailnii'iit iiniiii-.Nioii of iliattrls in .\. to \»' sold for tlir |ilaintiir, it w.i^ In M wliich the alisoliiti' jTopi'ity is |ia.SM'i|, tliat tlu' conirai't ainoiiiiti'il to a liiilm.-iit and wliirli, tiioii;,'!! in miiIi lasivs tin' ion- and not a .•■alf. Mor.vs r. Stoni', .'> Il.iih. Mdi-ralMii js 'Tiii'iallv not niomv. nsn:illv ili^itjiiiilrd a sail' Htl T\ IS Ills in Siory iUi. Tiio d( ri-ii.l:int orally aiiii'-d to ( \. on HiiliMi'iiis (iitli im|. ), |i. 4, not. rt<'iiviiiij ids f to till' |iiaintili a lot of land vali ii-'i .It roiii aiioili.r, ii|ion an Slim, and to takr, in cxrli^'.nj,'!- or pay- I'liuiit to Sill and a'loiiiit for tlicin to nnnt tlirri'lor, i nioiiiiiniiit, csiiniat. Id tli< (Winr, or to ii'tiirn tlnni as ;,'o(id as lie of the value of .'*'J(io, w h.'ii wlii'ii tiik to I I'll. \VI ill illtrii".!, lias Ik'iIi lii'ld an I tin- lialalici' in liiourv. oni|i|iti-i Alli'r tl >(' a liaiiiiiciit, and not a sail Hailiiii'iil li.i> I' ii Ti'iii'i' to till' trratnii'iit of tri ni'iiiiiiiiriit was fiiiislii'd, till' |>l.iiiiliir I it to till- (li'li'tidaiit, to!"iiiir II c.crlain rlialt'l or iliallils, wliosr jdiii- willi t'l' imlaiiri' in tnoiiry, m'l'oi.jni;; 'n titv is to li'iiMin lllnliaiii^rd vliih' tin- tin' loiitlatt. Tlir di'I'i'lidalit li'lilsul li SI-. il if the d.'livi'rv is I'l'onipli^liid. It is till' iili iitii'al tliiii i'|>t till' nionuiiii'iil (if iiioiii-y, or tii •iw;- til 'I'll- lint hi'ld tli.it nitt an ii/itiri'' III, wlii'li slioiild Iw finally wlnllnr tliis was a sale or an i'\ili:iii),'i' retiiriH'd or lU'livi'ii'd over, '/'/iisran/iiiiil of |iro|ii'rt\ was ininiati'rial. .\ssiiiiiiii;; priiifi/ili iiiiifi iiiil iiiiiistiiiijiiishiiiij lidu'irii tiiat it was an fXclian;;!' of the laud li'f kill I iiti/ uni I Sil/f the liioniiimiit, with a liala in iiiiiiiiV lljllriiii^ Iroiii a haitnieiit, to eoiistitiite to lie |iaid liy the |ilaintilf, it was to In i sale tliiie inii-.t lie an iiiti'iition to |>as>the fioveiiied liy the same rules as a|i|>lv to ;! ]iro|i.ii\ Vi "iiiK .Mat 1 1 I.. H. 'i sail when the whole I'oiisiiler.iiion i'- to In ('. I'. 1'.'7. Ill I.im'i;,'iii ('. .S'rw.iii, ,''i.''i 111. |iaid in money; eitin^; Aifm., W .Sulk. 44, -H', the eoiiit held that win 11 r^ ■ idi'ii- l.'i"; < oniiiionwi'ilih r. Claik, It liray, lieallhlllu'deliveli'd islii lie lestoreil.tllolljjll 'Ml, Ii72 ; Howard I'. Harris, S Allen, 'Ji'T in an aliiii d f orni, the iiitr ■t is one of Th' illlraet Was tlli'lelole held to li' liaillih lit, al|i| the title to the |iro|ii'l'ty is within the ]i|'olijliition III the statute "f not rliaiit.'1'il ; hut when there is noolili^^i- frauds, as i-elatiiii; to the sale of l.iii'l tlon to le-,tiife the >|ie;|||e at tirle d tl Dnwlinu' V. MeKeiinv, f.'l .Mas-,. \:*. reeeiver is at liheity to reliirii aiiotlier Wheiv |iiii|ierl\ has li.en lei t in liloke tllili;; of i'i|llal value, he lieioliies a ilil.lor hands for sale, and he has ell'eeled all i A- ■liali;;e to whieh tl wiier assent^, tin' to III. ike the return, and the title to tli< iiroiierlv IS liair. d. It de in liloker is held to lie entitled to his Hunt r. Wyiiian, Km Mass. I'.is, the de- mission, i.'i'dlield w 'W'i'^, :!S N. Y, •-'t'.'. fetiilant a'_'iee.l with the jilainlilf to take In Smith v. Clark '1\ Wend. s:i. wlinv the iilainlilf's horse, and try it, and if he a lontraet was made Intwien m miller iiid dill not like it he would ret'irn it in as other ik'I'hoiin, for the niiniitaetuii' "I PAIIT IH.] BAILMKNTS DISTINGUISH KD. 98 It is often a nice question to docidc, umlcr the facts of tlic case, wliitlii'i" a transaction anutunts to a sale uv is only a bailnicut. wliiiit into tlnur, ]w rngn,i;iiisr u'l liis iniit of Miinh 3, 187fl, it wns fimctcil, "Tliat for I'Vi'iv four l)U'>li>'l> iiiol fi't |miuiii|s of wliciu'Vcr any j,'r;iiii shiill ]»• ili /ivi ml I'nr ttliiat ircc'ivrij, to ihlivcr oiii- liaiicl of nfiirmji' to any (u r>on, etc., suili lidivi'iy siipi'iliii'' lloiii, aihl tlnii' was no .sti|mla- sliall in all thing's hr iIccmumI ami tira'i'il ti.iii or iiii'l'istainlili;! tiial the wliiat ili'liv. as a liailini'Ml, ami iiiit as a salr of tii<' iiv.l slioiiiil !><• ki'Pt M]iaiati' (loin ntln'i' iiro|i(rty .so iji'livi n .1, nni witli-lanilin;^ i^'i.iiii, or thai tlii'iiiiiitii m1 win, it slmuM Itc .sinli ;^raiii may lie niin^^lcil liy >\u\\ liailrc ii'l\irniil ill the I'lPini of llour ; it was licld, with thr yiain of ollii-r pcisoiis, ami not- ill ti'i'iii--. to 111', ill iU'rct, iiiii' of s'l/c ,• not withstaiiilinj; siirli ),'rain may U- shi|i|H'il .if Iviilint'iit. The I'oiirt Inld, that as tlm or iiinoviMl from tin' wairiioiisc, elevator, miller was only to ihliver ii siwiilie kiml or .ithi'f |ilaie white the same was stoieil. ,it lliiiir, vii'., "slllierlille, wairanteil to All'l in no ease shall the ;ilaiu so stole 1, iH'ar in^lxetioii in Alhaiiy or New York," aiiit lilt, umler the re<|iiireil to keep on haml, lie liaMe to I'liitriict, wlietliir the lloiii was iiianii- sei/iiii' n|ion any ]iri>. ess of any eoiiit ii> fiitiMe.l from the (,'iaiii le.'eived. or from an aeiion aLraiiisi sii. h hailee." An aetion iiiiv other :;rain. The iiici|ierty in the was liroii),'ht in MeCahe r. MeKiiistry, 5 wheat pa'Seil liy tlio sale to the miller |)illnii, rio'.i, by the ]ilaintill', as a--si^'iieu wlii'll it V as ilelivePeil at till mill, and lie in lialikril|itey of the \V. Co., to recover h'l'aiiie a ilelitor, ami was Imii-.ihI to pay ii.'i7t!.iiri alle;;eil, to have heeii paiil hy tlio 'ir the strain in lloiir of the spei itieil cle. eonipany to the tlefeiidant as a fiamliileiit -i riptioii and pro|K'ity. I'a^es in eieal preference nmler the liankriipt Acl. I'li- iiniiiher^ ill this iciiintrv hold siilistaiilially liei a conti.ot eiiteiecl imo I.etween the tie- same doeiiii'i'. See, amom,' "thirs, defendant and the \V. d. alter the pas- I'.vv ler Co. r. Iliirkh.il dt, '.'7 r. •'^. 111', saL;e of the alioVe Act, t!:e iinestiuli aioso li'i (stated iiiti;i) ; I'iilc.' v. .Scheie k, W ill tlli' ease whether, liotwithstiliililit; tilt! Ilill, Js ; Norton r. Woodriill', 'J N. V. Act, the eontrait, under which the W. 1,'.:{ , Malhav f. Willis, 4 N. V. 7'!; <'o. received a c|iiaiitily ..I whc.it l^i the F.i^ti'r r I'etiihone, 7 N. Y. |:'3 ; li.ihilly defend. mt, was one of sah' or luilnient. ". Wilson, :! hill. 4'JO ; Chase v. Wash- The Ciivnit Court, in allirmiun the jiid;;- I'lirn, 1 Ohio St. '214 ; LoiieiHin v. ment nf the court Iwlow, that, under tho Stew.irt, .''i.'i III. 4J; .lohnstoii r. llrowne, f.i.ts in the ease, the traiisaition was ii :t7 Iowa, -Jon : ,Sli'ariis r. Uayinoinl, '2i( .sale, and not a hailini'iit, said: "(iiain Wis, 74 ; drier v. Stout, 'J 111. .\pp. •!"-'; niav he disposed of hy the owner to a llii'liardsoii V. Dimstead, 74 111. •_'!•'!; warelioiiseiiian, or to an elevator or mill 11 i-tivss r. Chickeriii;;, is 111. .\pp. lies; piopiictur, either hy .sale or liailment. In ItiiiMs I'. Mil rea, 7;"> low.i, •Jii7 ; liiiid the fumier the title passes; in the latter '■. Wc.|, 7 Ciiw. 7."i2 : locd r. .\Mmv, it i-inains with the owier. It is some- •JN. Y. Sup. Ct. HSU; Carpiiitcr r. Ciillin, times dillicult to ditermiiii' wleth.r n '.' I'aiue. :!l(l ; Mdiiie V. Ilnll.illd, :!'.• .Me. Ii.ii 1 iciilar ll.ili^act iou is a s.ile (ir iMilmelit. ;io7 ; C.iili^le I'. Wallace, I'J In 1. 'J.'.J. Ifas| illc aniniini of ^'i.iiii is ihimsitcil Sic ti .\ni. I.aw |{ep. 4.'i(t, (I S"j. ; '1 hy the owner, which is md to he eii.inned Kent's ( 'mil., I'Jth ed .litit. hy the hailei", hut retained until lalhil In li'alntly e. Wilson, 3 I>illot|. 4'Jt>, for, when the idciitiial niain is to iie re- it WIS held, where there was in cxpiis-, stond, this is, nf csiti'd for Htoia;,'e d'les not are- Willi till' further a^i iiieiit or undcistaiid- lioiisi'inati, or elevator of mill proprietor, iiii; that, oil dem.iml, he would jiay the with the ;,'iiiii of other persons, .since the p'Tsoli fi'iiui wlmni the ^rain was Icceivecl statute autlioli/es the intermixture of 1,'iaill till' llivlle^| iii.nket price, or deliver the of the same kind and urade, and I cidzes ' amount of yia'n of a like i|Uality, hut the eiuitinued 'iship of the ileposilors not the identical '.'lain deposited, nor ^'faiii to a iiiiaiitity of ^'lain i'.|Ual in amount to frmii ly sp,, iiic mass, that such a tians- iietimi was a sah- at the time of the de livrr<, and not ,i hailmeiit. This )hat Tie tl nin respect ivi ■IV ill an inlieii'iit diirei'i posit' ictWeell ilcii'lc'l ill the Ciii lit t'oiirt for the d was liailment s and sales. If 1 deposit my IS- llUt iheat to Ik' stilled aiid safclv kept for Iiiini'sm,!. Suh.swiut'iitly, by act me, my piopeity niiiaiiis, iin il I c.\tuud '''."'■W- ' t 1 ;■ i 1 ! It1< % >i n 94 COMMENTARIES ON SALES. [book 1. Thus tho question was raised in Powder Company v. Burkliardt,' whether tho transaction in that case was u bailment or a salt;. no cicilit til till' liailci'. lint if I Ifiive my wlii'ut vviili liini, with mitliority to sell it I'lir his own liriiclit, ami not iis luy iij^i'iit, mid M|ioii Ills |iioiiiisi' to |iiiy me tin! valili' of I hi' wju'al, or to ^'ivc uh? il jiki; i|ii;iMtily of wlicat wlii'ii I sliall tlo- iriainl it, tlif tiaiisartioli is in its essence il sale of my wlieat, iiinl thlature that 1 might lake the 1(100 liushi Is by re|>leviii, or even share it pni ruin with you. It seems to iiii" not. The Aet, allhoni.;li not ious to jiersuiis who dl•|lll^it ;^iain lor 'stora^je' or safe keejiinif, and not to those who d' The Aet is eolieeded to in e<)nsei|Uc IM" of the de i;. Wilson. :i ilillnli, ('.JO; in viiW ol the farts of that ease, eoiisider- alili! «Muliarni>-.ii,'iit in aseeitaiiiin;? the jueejse seo|ie i)f the A 't, althou;^h its eili- era! iHir|io-e is manifest. WliiK' it nnist lie admin, d to iiav- made iiM|iiirtant luo- visiims to ]iroteet pei-,i)n.-( who ileliver fiiinn for storaj^e, 1 am ineliiied to think that it was not intendeil to e'ljluaee the case i){ piTMins who didiver jrraiii to the warehouiemau with express aiitliority to •sell the snue on his iiwn aeeoiint, iiinl iilioii an understaiidinj,' that he is to pay the value of a like i|uaiility ol' ^^'raiii, nr to deliver a lik.' amount n|iou demand ; nor to emhriiee the ease of luie who leaves wheat wi'h a miller, with authoiijy, as in liandell's ("a-.e, L. II. .'1 V. t\ lol', to u.se it IS |iart of his eurii nt eonsuinal.li' ..toek, and upin an ai^reeiueiit to tiav the farmer or owner the value, or tn deliver a like i|i'alltity wnen ilemaiided." See II imil- ton I National IViiik. H I>illoii. o;!o, as to (|Ucstions tietweell the assignee and bailieii. il! the V y late case of Lyon v. Leiion, » »7 V jM!^it it for sale. iiave been |MS-.ed •isioii in li'ahiliy and I have felt, (A. 1). ISSt!), 10(5 Iml. 507, the defeinlaiit, L., reeeived a ijuaiilily id" wheat froiu the plaintilf, Hi^'"?:? '''"' " i'i'<'''i|'t theierm. In re|ilevin ajjain-^t the defendants for tlic reeoveiy of the wieat, ihe verdiei iUiil jud;,'ineiit bein;^ for the di'feiidaiits, ilic court, held th.it, fruin the evidenee, tli" jury mi;i;ht have found that L.'s hu^ini-,, was not that of a waniious) man ; thai lie was engaged ill puieliasiiig and slii]i|iiiip' griuii; that the whi'at in (|uestion u •- li- liveied u)i'iu the undi-rstaiidiiig, iiiij'lii(l from the known i.'ourse of L.'s busini-s, that il was in uo event to he kept fur tlii plainlilf, or that either tin' wlu-.it deliv- ered, or other wlieat "f like uiiality, vv.is to be returmd on demiiml; imt thai it v\niilil be sliip[M'd and sold .it L.'s pleasure on Ills own account, and ticit the plaiiiti!! was entitled, ll]ion plesentatioll ol his re- ceipts, to diUiiaml the market jnii e i.| wheat at the date of .such i/ieselit.itinii, and iinthing more. Tho court said: '■ Wheat didivered under sueh a state m facLs as we liave assumed, the jury mav have found woiiM Imi a d(divery in ]ie,i siianee of a sale. In .sU'di a traiisai ;ji.u there would !«' no elelllelit of a baihilelil. A eontrai t of Uiilmelit contemplates llie let urn of the goods bailed, or, glowill;,' out of the nei'essities of ciillinieree, wlielv grain is delivi red in store, uther gi:iiii nf like (piabty and grade may be leturin'l in its ^Iead, We rcogidze the doiliine, lli.ii if wheat is delivelid iu p:irsuailie (it ;i fontr.K t of bailiuelit, the mere fact tliat it is mixed with a mass cil' like ipialiiy, wiili the knowledge of the depiisilur or ball'il, does not convert that, into a sale wiu.li was originally a bailment. Nel-nni r. Brown, 41 Inwa, 4.'.."); Nilson c. Hifwii, ,'>:$ Iowa, 55.'> ; Sexton r. AMx'tt, .'ei Wis. ISL rpon tile facts in this I'asi', tlieiv was nn bailment to bei/jii with. Wliele grain is received by a lealer under a cnii- tract, cither express or implied, to [oy the person d( livering it the iiiark>'t I'li'i' whenever he idioiwes to I'.eniand il, ml .lucli |,'iain is mixed with otiei of lik ipiality in bins from whicli shipments in being made d.iily, there being no innln standing that th owner shall liive tli right to demand i:;her his own m a h'^ (piai'lity of other in retuii), the di-.der I" ■ lines tlio o\\ ff-r of the grain, and is linl'. Ill pay for it ivhoiii'Ver called iijion. As r such a ease the eoiitraet fioiu tie' 1«,'.'!' ning furnishes the criterion by whi' li •! price is to Ik! lixei!, it is not iiiv.ili'i SlcConnell c. Haghes, 2!» Wi-'. .'i:t7 llii'hardsou v. Oltusteud, 74 III. il''- s. no. * m r.\aT III.] BAILMKSTS niSTlN(;UISHED. 96 T))*' iitii!"', .iiul t>:i\<' rfiTi|.(n Im it sl!,,»iii;; till' iiiiinlx'i (>{' ln.^'lici" rtifivoii, ami with li!-! ii'iisrnt iliij'i-il urnl soM (lis •.vluut vitloiit any .i;'""''""''" '-" 's^''"' ;i liki' t|Miiiilitv 111 Hltivi' til I"' iiclivi'r<- 'lit |.l:iiiititr ( !i (Itniimil, tln-n tin- tnin-,i,'. :ii.ii « i« a siilr. T!i'' court, -ii susiiuniiij; ti»M' iiiHtTtutions, Mill : "Tiiis wilk a siib- Miiiiii.iily iwriTi-t sl.itcni.'nt of tin- h\\. ]i tidMi the eir<'>niis»ur!i'i's an ajiu'i-ini ii; .•.iiiM liat-e UiU inlcn-i'*! ti«at tin" jiliiin- !ii!\ will at niijrhl ^<' sold withoMt kvcini^j,' I'ilinT that or any mliiT ti> riji^icf it mi iliiiFaiul. wi- ait' iiiialik' to fon/iH" liow i; .(inltl have bi'cii Ikmhi'C] .i bailim'iit. Wlic'iv wheat is n'rcivi-ii uihIii- \)u- rii- I niii>(a!u'i's .suji(his(mI, it tin- tk-alrr has thf ri^;ht at liis [I'lasiirc cifliffMo siiiji and sell till- saiMi' nil his own .iriouiit, and |iay llic inalkct (^lic*' nil dcnian ). <)V retain .iiiil nililiver the wliciU, or otlni niii at in rill- iihuf of it, the traiisH tioii is a s:i'.c-. It is (piily wIk'I.' till' iiailirt' retains the iiLiliI !Vcini the tH';,''.nnin^ tii- titv, nr iiiher of like (|iuility arid ^rade, that till , (intiiiet will hi- (-onstined to he ..'a- (d' iiiilnient. If he MiMenders to l!ie nilier ihe ii;,'lit of i lection, it will lie e.m- ^idered a --ali', with an O|nion on th" part iif tile iiMn-haser to jtay cither in ii!(;ii If he eaii, tho iriiisa- - tioti 1^ a liailiiienf. If the dealer lias the option to pay for it in money «i oihei wheat, it is a sale. .I(dins|<)iie r. I'lniw-iii'. 17 Iowa, -JIXI; Ch.isi r. Washhuni, 1 <>|n,, *»; •J-X." Anstrie v. S'-lif;iniiii, I* Ke.l. iep. .Ml'; liii;;hes r. Staiih y, «'« low 1, '!2."i ; Wilson v. Coiiper, 'iC low-. .')»!•">; Seyiitiiill 1: Wyekotf, 10 N. Y. "ilti; Kwiii;; Cl'ivudi, 1 "niaeKJ. "M; |hitl"r!i< !•) •• hathnip, 71 Pa. St. 'J-J'! ; Harn.-s r. V- Ciea (\ I, -iiH). ::, lowif, ;i»>7; .\>l'l>y '■. \V.-«-. ■. ii t7o; I'rildile 1: Kent, !'• iud. ::■:.:■ : Ki^himek I'. V.ui Diiwii. ;t:i MiiiM. '. Ii, Vj:t, hold the nt w.is at lilu rt\ to mix il with kis own, 'I'livfif it into floiii- wheii he pleased, .-^ell 'lie floii"-, and a|iprojiriate the proceeds to lii* own use ; and *•; -w rrr the jdainfiff '-^iw lit, he had a richt to *-«wt from '.Iw defendant, the same rjimntity 111 kind of ". h"nt, or the ainoMiil id' Hour .so iiiiieh n iieat wii-iM make, or the tln'ii pric- of wheat jK-r !nis|,el in iniiiiey. 'I'lie wli,'»l w-ius eonsiiined, with the mill 111 whitdi il was, tiy iiiu. Ill an artiop, li,i the priee, the delelldal.t r<-litd Upon an alle;,'ed Clis- toMi ('f the hi.-,ilii\ tl:it when niiliers re- eeive'l wheat oil t!ie telllis nalili'd, it was at the risk id' the seller until he 1 ailed for his pay, '111" eonrt held that no sm h (-ii^toiir, a-sniiiiiiji; even that it was valid, was (-stalili.-heil ; and, further, that as neither the idelitieal W hi-llt liol the tlolir made IVoiii it was to l>e returned to tli»> jilaintitf, and the wheat was not to lie kept sepaiati-, luit to he mixed with that . Keiop, ■!!» Mieh. !», in '• • toiler, 1^7,'), plaiiitilV deliveiid wliiat to di-leiiil.iiil, niider .111 arraiij,'. :ni nl that the wheat wa^ ti> ln' ]iaid for on delivery, or at an;- Mihsi-.nieiit time when tiie ]i!aintilf ili-niaiid 'd. payment, at the ((liee thill eiir- lelif. Till- del'riidalit had the lif^ht to lldv the wheat with ollie. wheat, and to use it. li\ .hint, lS7ti, the pl.'il.tid ealled for his jiayiia Mt, and v:;y>- imh eed hy the defeud- lillt to take till- del'elidalit s ehei k for the aiiuniiil. The deleiithii t was tlhli insol- Vent, and the cheek was no! paid. The ai-tioii was (Ml the easi- for li.iiid in the )i!lli-liiise. The eonrt bi-low held thai the deposit was a hailmeni, and the M-nii.sa(-- tion of .hine the onlv sale, and f^avt; jndn- iiieiit !or the plaiiitill. T!ie .'Supreme four' 0/ Mil hij^ali held, level.-iiii; the jud;;ine|i«, tliat a« till- pliintilf reserved no rij/ht to reeiill the will at, or any wheat m Hour lu its pl.ii-e, iil;d the deteiidalil le.servid 110 li'.dit ti. M-liirn it ai tu.diy or in kind, he was InmiiiiiI at all e\i lit-- to ke"p il, and to p.iv t<» it on deni.uid ; the money l.ein^ payiiliie w-ithout < ontineeiny, and ih'' transai-tiini "f Oeloher hi-iiii.' a sale and ih-livery and not a liailnnnt, the plain- titf's only remedy wa^ tm tl e price of lin- wheiit. Ives r." ilaitley, .M 111. .OJIt, is another ra.se, where, undi-r facts .somew hat similar to those in .lones r. Ki'inp, 4it Mieh. !», till- def.-nd.iiit was held liahie for wheat whli h he 1 lailin d wai. n-ceived foi stora<;e only, and whi.h wan hiiriit, — 1\\^ eontraet Uiidi-i whiidi tin- wheat was re- et-ivid, and JMrl ol Mhieh was paid lor in Hour, U-iu^t held to have lieeii a sale and not H Kidment. Ill Sl.iiigliii'i r. I'IrerM, !< Hand. (Va.) 3. it wap held, will if» wlo-at is delivered •* i 1^ I ^l.:! ii . I I I 96 tOMMENT.VUIKS ON S.\LKS. [«00_K I. (lu'p ; wiiiclj the plaintilTs wen; to have the exclusive riijlit of selling to otljers. The phiint ill's were to advuncu to Diltmai lit fi mill to lu' i»routi(l, u]k)1i an .•i;^ifi'iii( iit that till! iiiilliT slial! li'tillli a fjivcii .m .11- lily of tloilf for so IllilJiy liuslicls ot wll.at, tlir iiiillcr is II Imilfc n>!ii;;h thi- luiilfi'stnliiliii;^ was that the liiilji'l' was imt lioiiiiil to return th>' lloiir iiiaih' from that I'li'iitical uiiiMt, liul mi^;lit iituiii Hour of a ci'rtiiiii quality liiailc fioiii any win at in tlm mill. Sim- Ko.slcr 1. I'lililioni', 7 N. V. 4:{:{ ; MraiJowiiMft v. (ii'rman Na- tional Hank, <),''> III. l'2i : I'anailian Hank I. MrCriM, ini) 111. 2S1, .So. in .Nation il r..ink of I'lintiar V. LaiiKiin (a. i>. 1"*'s.s), 2S 111. .\|i|>. 41)1, it was hrhl, that in a ilrpDsit .if jtt.iin in a |inlilir wai'lioUM', to 111- inivi'd « illi otlii'r ^rain, sii.h (Ifpo^iinr lirciimi's till ottiiiT of an I'lpial i|iiantit; iif i^'iain of till! same kiml ami ijii.ility as tlial ili'positiil, ami that tin' titli' to mk li ili'|io>iti'il 1,'raiii ilocs nut pass to tin- wair- liouM'inan ; it liciii); a liailinriit ami not a sdi'. Bri-tz r. Dirlil ( \. ti. 1H88), 117 I'll. "18!!, is to till' sani ■ .'H'lrt. ."^I'l', alM,, the Canadiin I ascs (if .SiiphiMison r. Kan- ni'y, *2 V. C. ('. I'. llMi ; Isaac 1: .\mliiw>, 2S V. i\ ('. I'. JO , //( ,/■ Willi.iiiis, ai r.(\ (}. W. U:!, in a.conl. In till' vriy r lit rase of Iti'liciil's Ailiiiiiistr. i: (■li'iii (\i>v. II, lS8'.i), Si! Va. :i7l, .1 rri-ripi \\t\ wli'it ivn.jv,,! |,y till- ili'l'i'iidant w.is j^ivi'ii K., rontainiii}; till' I'laiisi' " for wliii li «!• iiic to pay inarki't piii'i- suim' ipiality of wlii'at irlmi- fri-r Mr. Ji. irni/i fn srl/ sitiin." Tlii' vhi'at was iisrd liy tin- ihli'mlants, siiIim'- ipii'iit to whii'h llirir mill, rontainin;^' a l.ii;,'!' 'piantity of wlnMl, was liiiint. .All of till' wliiMl savccl was solil liy tlii' dc fi'ndants. Tlii> drl'mdants ilainii'd that thov weir not p'lii'liaM'rs of tin- wlirat, bill iiailiTs tlnrtiif, and ilainifd that the wheat I ivi'd Ironi i{., Iiiiii',' in >torai,'f "Illy, hlionid hiMir its p!o|i- 1 as niiiielli d a limliii;; c| a liiiilnieiit rtt* :1lii* wheat iinti not a siile. TlK'.''>ii]treni •( uuin .if Viririnia lielii(IjH\\ I,, I'., dissenting,'), that tin- instnii'tion ask.'i lor was iniplo|ierly refllsi'il, iind till III striietiiiii ;;iveii NVa-> wroni; ; tliiit the r i|.I, ciinsti iii'.l in the li;^lit of the suriiiniiilin^ lact>, aiel aecol'lili^ to the a.'cuiille e.\p.>.,|. tion of the law .IS lai.l down in I'nu.l.r Coini-imy c. lliirkhardt, !•? r..S. lln^ti!..! •''■"/"■"). sliiiwed a sale .Hid mn a liailneiil ; and they set asi.le the verdict, reversed tli.' jiiilijiiieiit, and ordered a new trial. Iii;i Vcceiit Illinois case(.lnm' i;5, 18«7), Haul- werk V. f>-.\Mioil, 'Si III. App. 2ii"J, \.iv niiicli us in Hidierd's .Adinstr, r. ('Icin, Mi Va. :J7I, •ivilU was delivered to .\|., the plaintill's a>sij;noi, liy the lh'lelll|.lllt^ nmh r an ac;recnicnt th.it they shuiiM Ik' •diiiwed to ciuiie in at suine future day mil select a market price at which the ;;rini slnuild lie Mtlleil fur. 'I'lie court liiil that the tiaiis.iciion was a sale and nut 1 liieiv liailnnnl, and that the title tn il.. pKiperty Voted in .M., and all that i.- inaitied to lie done was for the .h'teli'liilit- to lix the price iif the j,'rain iin.l.i iji.' iijition yiven them, by dc..,i;;n;itiii^ their selection (l.oiiei^all C. .'sti'M- .irt', ."..'• 111. It ; hes V. Ilirtlcv, Til III. .'i'Jii ; .M. I'lwcn r. .Murey, tin III. ;i'J) ; .ml that this iipti.in must Ih' excriivd withiii a reasiinalili' lime ; and if, on deiiiiiii'l, 11 was nut Ml cxcii is.'.l, the other p.irv I'. the a^'ieeiiicnt i-ollld hilii-elf lix lie .in, and miiify the other parties accm liii_'U. .Sie lliilil.ell r. Villi .>>. h.i niiii!. lit .N' \ :i"Jii ; Ha|i','oiii| r. .'shiw, lii.'i M.i>s. 1:711. r.ink '■. II 1,^^11.1. I I'elers, ).").'i, |i;.'i ; N.I- son r. I'liiii|i|.in, iScc. Co., ;"(.') N. V. ts" ; 'rnimi c. .\Iclli. r, 'i!' Mo. Ci'l<\ : l.v.ni '■■ C11II11 itson, s:! 111. ;.!:i ; |)ii;,'j,'elt c l!r.i»:i. 2S 111. I'.U. In I'liciictt >'. riiok, »VJ I'a, l!i:^ tli- plaintill's deliveri'd ('. a iinaniiiy of hii'^ under a contract tli.it he was to have iliciii at the remilar cash prices; to laii llntu, and L'tiiin the lealliii to the pl.iiiitlll-, who. allel deduitilij,' the price ul liliii\ ciiiiimissiiiii, intei'.'si, .ind other curi. at '■\ pilises, Wi'l.' tocieilit C. with the hiiilic'. I'illcicnt loN ..f hi.liM were filllii-lii-i (J. liy Ihe iilaiiitilf>, lotheiiill 11 ui-'ii'i' of each iiit ( ', si..,'niii!,' a iie'iiiiriiidiiiii to Ihe .llecl that the riyhl of o\Mi.'lsiil|i in III" hides was to lie and leinain in tli.' pliintilfs; C. a;.'rceinj; to I'tiiin thciiitii' amiiiiiit of leather produced iVelii tl"' hill.'.. ,'^..11 1 thi' hnles li.iviii:.' '"•'f taken in e.xeciition a;piilisl V. : illelcr I'l ini.'rpli'adi'i. it was contend. '1. .111 l"' air hic iiv I'l .III I'Npii'MHion in Wiiliaiii"'" I. IWrn-, H II..W .^44. that "11 s,ile i^ 1 .ontf*t to pass the rii(ht to propiit.v I'" t cr. P.\RT fuiul.s luakT llUlllt'i/, M'll.T, " I Jl.lS.Mll ail e^sl■li Ha> a -11 "TlM.l.i tllc will cliar;;c.| tli.y w ami ,1 .,, 'Die |.|.iii ili.>cl...>..| sire I,, hi III/ OMIiiT, III liav.' it IhtII IK.tliil ll.lVe III sjl,. tile tl llisa.l '■'"■IWd, the "lid Wlirii Ic '»' liiil'i hv Illivsiiins {,,!■ I'''ii--cs, and I ||'-fcii.lai/t\ ,1 f" laar oi a i Ili.S Uttll t'OlMl> t'l'iiiiiiis^iiiii.s Sides 1,1 t|„.,„_ '"•iliaci Was I '"'iliiicni. ,Jt **'•'»>■ l:'l, 111 "','n is to 111, '''ii' llliimi.s ( miteiiM. ((.,.,, '-'"'«' rill;,', IS I'lllai).!.. Ul l..iiiir;,'aii V. Sie s*'" '•• 01, „,,,.,„ CUScs He ii,,v,. Ill ■:«f"l'd Lnv nf t j'li'iticiil iliiiij^, , '" ''"■ same or tr.i.t is on,. „(• I tic pr„,i,.,.,y i, 'fw'' is no ii|,|i„ '"''■ article, „,|,|'' '" "t ini aiM„!„.| ';■ '"■'■'"lies n ,|,.|,| "'««"lMo ll„. ,, yf; Im this' ;•'"'"' tl'.tthev I L ''"".' *'" • '"''I "•"f'' •'^'dn„.,it, „ '^'•■""••'f h-lwe,., '*7' •" sell t;,i. ,,ii, f''.' ""■'-. thev I £".""!"li"invoi. 5;'"-^'.^''>ren.nir ""L I. of BAILMENTS DlSTIKomSHED. 97 PART in.J funds for exDcnsoQ nt ^ , ^^ Hits a .sa .. of th.. ),i,l " •.; ^"""«Ktion ",.,„ i \ "■ '"" «a.s Hritf,^, ,' '''• '"■111 iii,|)i,„,,,,|- this ;„ ' '"• "'"I a.(i„n'-i"4iJ,. '11. ■ , •" '": ■•*"''' I'-v 111.' i.i,-.i.,ti I . , ' ^ "■"■•* '" ""-M-'ii.t (or s,il..' '•'"•'■^'11),^ ,,„„. ''is uu„ ,-„ ,1 • '''"^''iW iii(..n..st Hifaint ♦ ''"'""- i-^ f'cm.lMlr,,/ n *-'''""•■■* 'xul f'""'''" '■"■'' 'l'nv'L'v''n'. "•""'" ''''''''■^^■|"t^S|^HH•t\- 11 .'•■'''''"'''■'' ''V -''^^0,n..s,.a,|^' ••;;'•,,■'; K-'.-lunl. «'-^'««vJ,.v,.„l,.v,.,.v ■• ''• "'"' "t'l-r T'''''''''Vof ,/s •''';','■'•■■'■•'!'''■". li- ""•"' '^ "111' ..r I I ' '"'"' «''-• '■..M. '"■'■'■ '^ "" "Mi-,, ,„ " '■ '"'• "'-I' '"' '"''•"""'s 1. ,|.|,t,„ t, I '■''"■■'' *•'''"'. """-•oil,-. .M,.:.";''^"'.'"-""" ami ^''n> i,:,,], ,. '"" I'll' ■ "tl..', ,1, vi, " "''•"•"'••• "* "" i'Htur I" .J.nlvM,.s t- Ki,.i„.„,p . '•'■^''"^ '" tiios. .;i „.;.,' '""'I"""- I'i.s !'• .Hviicr, 'kj. •li-m o.,„. , .' '^^'' «" tli,.y .,,,,1,1 ' "'^ ••"'::>■*'• 'f. I. f.'w;o. & ll . " . '87 i |''"'""l!s ih.. i„;:..i ''*. ^'^ ••'•"'it to (hi, '''''''«asi./,r '''''-'■'* "fill.- ;.i,wi, '"''"fi"v.iic<.o .."'""■"" \ ll' th. ^, H'-".'.ii.'t, r ■> V .■,.f-TJ-'^= '''^'' "iintsman, i,o j" "; "" ! '*tik luiiliin'iit. Jciikiiis V. Kiilii'lliergor, 4 W'litts, I'Jl. WliLTc, howcviT, till' coiisi^iiiiieiit is fouiiil to 1)0 hunti Jiili; luiil the |)io|MTtv in tlii" ffnoiln iviiiaiiis in the (iDU.sigiinr, the tniiis- iit'tiuii will not Im! (leenieil a wile merely liceituso the consignee is allowed all tlio nilvanee on fjootls lie may olitain over their invoiee priie, the loss by sale or hy tire iM'iiig in the eonsijjnor. MiCiilloiif^h v. Porter, 4 \V. & S. 177. Ami in Wheleer & Wilson Maiiut. Co. v. Ileil, ll."! I'a. 487, where thei|uestion arose lii-tween the par- ties to the contract, where there was a letting; by the ]ilaintiirs of a sewing-machine, to the (lernilaiits, lor SKi paiil, ami a monthly rental to lie paici lor luiirteeii moiitlis,iiii the IMiyment of which rental ami $1 purchase- miiney the plaiiititrs were to si'll ami deliver the mai'hiiie hy a good and slltli'.'ieiit hill of Hale to the delendaiits ; the property until the il was p.iid to remain in the iilaiiitills ; the court hi'lil, that, as Ix'twi'cn the parties to til?! agieeiiient, the transaction was to nil intents and iiur|ioses a hailmi-nt and mil a sale. See Kdwards' Appeal, 105 I'a. l(i:{ ; Dando c. iMiiilds, 105 I'a. H ; Forrest V. Nelson, 108 I'li. 4S1 ; Kiilow v. Klein, 7'.t Pa. 488 : ]{owe i-. Sharp, 51 I'a. ;J0; .Sladtfcid V. lluntsiiian, 1)2 I'a. 5:S; llaak v. IJnd.rman, (J4 i'a. 41)7. But ill Will! Hook-Si'wiiig Mach. Co. r. Ciowell (17 .laniiary, 13S7, in the Supreme Court ol Pennsylvania), 8 Atl. I!ep. 22, where the ipiestion was hctweeii the plaill- till's and an execution creditor of N., where the ]ilaiiitill's di-livcred N. a ma- chine, takiiin his promissory notes for the tail pric)! of the m;ic)iiiii-, with a pro- vision that when the notes Were paid, a lull of sale Would ho given N. tor the iiiiichine ; the propi^rty meantime remain- in,' in N. ; if was held, that it was a clear ease of cnipiitioiial s.ile on credit, followed liy a delivery of possession, with a provision to convert the sale into a hailinciit if the piii'e of the machine should not Ik- paid, and that the ell'ei't of this provision was not sullicieiit to convert the contract into .1 hailmeiil (til iiiiHii. We consider the ipiestion of apparent possession fully in a later volume of this work. See further on conditional sales, Carleton v. Sumner, 4 Pick. 5I«; Smith v. Deniiie, 6 Pii k. 662 ; Leveii r. Smith, 1 Denio, 571 ; Dresser Maiiiif. Co. v. Waterston, 3 Met. it ; Fallow V. Ellis, 15 C.rav, 22!) ; Ooodwin V. Boston, &c. Uy. Co., Ill Wiuss. 487 ; Sciiilder v. Hradhury, lot! Maiis. 422; Haiikiiis v. Warren, 115 Ma.«s. 514 ; Frroman r, Nichols, llfi Mass. 301); Boweii i'. Biirk, 13 Pa. St 140 ; Mixer I'. Cook, 31 .Me. 340. In an tlntario case, Moore v. SihtiiiM, 2!) V. C. (l B. 487, the defendant uivc S20 for a colt in his possession, to the plaint iir, under an agreement tli;it In. woiilil give the colt hack to the plaiiitiir on luiymetit of ^20 ami twehe ;)<■/■ ciiit, i.n or l«-lore a named date, with a ]l|Mvi^illIl that if the saiiii! were not paid, tie- iji'. feiidant could do as he pleased wil!i tiio colt. Plaiiitiir jiaid .?I5, hut, piyiii); nothing more, tlie defciulaiit, altir tin- dati' named, sold the colt. The court held that the transaction was a silc with a right of rc-]iiircliase, and as it wa^ nut exercised liy the named date, tie' ii;;lit was gone, and trover woiiM not lli', lint that the plaintill' was entitled to i H" payment of the .$15 as iikiiicv ImiI ;in ; the court held that the coiitnut \» is one of sale and giving in payment, niuiiirh >l by an agreement of the right of ic.|iiii|iiinii in favor of plaintitf, to he exerci-c! hiiImii a siiecilleil time ; and not a li;iiliii<'iil :- trine was laid down tli.il where hv .Hull- tract the vendee leceives a chattij wiiiih he is to keep for a certain perinij, aii'lif ill that time he jmys for it tie- siipii- lated lirice, he is to hecome the owil'i, lillt if he does not pay the price, he i-> li> I'^'V for its use, the transaction is ,i jpiilinint ami not a sale, the right of pinpc iiv nut being changed until the nriee is pai'l. I" this case a team was let by tl. pi iintilfl" M., at J5 weekly, until two hiiielivii smli jiayments to be m.lde, the piopeltv ill tl'' mean lime to belong to and to \f in.inaii-'i by the plaintill', who, on the last p;iymi'i)t, was to relin<|uish his title in tlie piip|«'r;'' to .M. The court held that tie- I'mi'TtV would only vest in M. when lln- li' fJ' meat was made. Clark v. .lai k, " W.i :liii PART III.] BAILMENTS DISTINGUISH KD. 99 |iliiiiitilT.s and the purchaser, uudcr an execution against Dittinar, uf iiKitL'riuLs furnished to Dittmur, or purchased by funds received Ills stock of li(|UorH from the ilrfi'iidiiiitM, loi' which he ^'avr tlit'in liis note ; aiitl i'X|K'ii(|i'cl ii)H)tit ;$lloi)(if Ills own iiioiiny ill titling' ujitht' biiililiii)<. Tlicilt ti'iidiiiitH, liaviii^ olitiiiiiol a juil;;iiu'iit a^'aiiist It., levied on the stock, tixttireH, etc. Thd |i|,iiiitill'> chiiiiicd the owiiei-Hhip therein. Oil tile trial of a feigned issue in tiie Cotii- iiiuii riea^, the court instructed tlie jury tliat if they found that the |iro|ierty ti(in at any time or in any manner. 'I'lie title which is already in the plaintilFs remains in them, and cannot lie d. vested by the execution of any of tlie terms of the contract. Itntli in furiii and iii siili- .staiiee the contract is nothiii;; Imt a bail- ment. The cases cited for the defendants liave no analogy to this because thi'y all contained piovisioiis by which a passa;,'e of the title was provided for, but here there is notliin;,' ol the kind. We cannot iios.-,ibly say that this instriiiiieiit shall liave tile character and ell'ec t of a >ale, when tbiie is no piiit of it whicli c^ni m any evi'iit fjiv'' a ri^ht of punhaM', oi im- pose an olili'jathm of .sale." Iloii^ei r. Kemp, :i I'a. .St. '2ii8, l.esi,>r r. M. Dow-dl, l.H I'a. St. '.Il, .Sneatbeii r.tiriibbs, SS I'a. U7; Chirk r .lack, 7 Watts, :;7.''.; Ib'iiry r r.iltcrs (17 I'a. ;i4l'>, Wlieie the property passiMl, see .Stadtl'cld r. Ilunts- iiiaii, '.ej r.i. .'i:t ; Hiiinswick, &c. Co, r. Hoover, ii'i I'.i. .Ins. lioyiilon f. Isaacs, 10 Weekly Nol. Cis. 1!HI. " In Kant r. Kessler, 114 I'a. tin:?, no (|llestioii .seems to have been raised on till! point as to the eU'ect of the execution otl the "wines" and "lii|iiors," purchased by It. himself from the defendants, and wliieh wi'ie no part id' the stock eonveyeil by thi! |ilaintiir» to It. The p(uiit which we here S. 37.1 ; l.chinli Co. V. Fiel.l, 8 W. & .S. •j:','.;; Ileiirv '•. Patterson, (>7 I'.i. Itftt ; [t.,k(r I'. .Smith, .IK I'a. 4tilt. Kiilow r. Klnii, 7".' I'a. 4s,s, wasdistiii>{ui>lied Ironi .\billiii V. .Malhiot, H .S. & I!. 'Jl I. on the (Jleiil.d tli.it there |Mj.s.sessioll was delivered to the Veleiie ill plirsualic) of a s.i'ii- actually made, with tiie condition addeil liiat tlie lilli- to the chattels soM should rciiiain iii the vendor until the (mrcliase- iiKiiiiy .>lii>iild be paid, and it wa- 'aid, as til till' credltols of the vendee, tll.lt the |ire|«rty li.id ]ia>>ed. In the one ca-e it wa^ lii'ld ill. it there Was a .sale, under wlilcli the title to the chattel pa>M'd ; ill the (itlicr, that tlu'i'i! was no tiaiisiiii.v-iion of the property in the chattel. Thus, in Cliaiiilierl.oii r. Smith, 44 I'a. 4;J1, where M. reci'ivcd liom the plaintil! .in ox-team, "to kiepaiid woik ill a rea.ionable farmer- like iii.innei " fir one year, the te.im to 1m^ thill letimic'il ; lint M. haying the privi- li'^'c, liy paying' ■* III, and lej;al interest, at tlie eX|iil.illiill ol the year, of keeping thu rattle 111 lore the expnalion ol the ycai, aikI witliiiul payini,' the §lli, M. sold the catllc. The Supreme Court of I'eiinsyl- Vailia held, leVelMlltJ the jud^'inent of the Ciriiiit Court, that the property in the cultle had imt passed to .St., and that the sail- was invalid. They said : " Here was ihi I initial t of Side, which is an ai,'ieeinent (if liiitli p.irties that the pio|M>ity shall |a>^ Ihilli one III the othel bir a coiisidera- tiiiii ^ivcn or |ironiised lo tie ;;iveii. At most, lllele wa.^ an .l^^reeinellt to sell at a futiiie lime, 01 r.itlier an oiler to sell, with tiiiii' -liven lor its acceptance. The trans- li-riil piissession also was not in juirsuance lit a sale. M.'s n^ht to tlie possession (!!.»■ nut of the letting, therefore no false triiiil was jjiveii. The delivery is ae- ciiiiiitnl liir without the necessity of iiltriliiitiii;,' fraiiil, ami the possession of M. Wa . coiisisleiit with ownership in the lilaiiitlll." Sii 111 the yer\ late Pennsylvania case (a. II. issti) ,i| k;i„t I'. Kessier, 114 I'a. •in:!, «liiie the plaiiitill's boiij^hl stock, fixliires, etc., for a house of entertainniiiit Mitiil liy It., lor thi' rental of which the jiliinlills were sureties ; It. contributing,' niiiliiii;; til the business, and a^ieeiii)^ to i.ary it mi in the name id' " It., n^i'iit , " tl.i' still k, lixtllies, &c.,"tobe the sole |ir'iiKrtvaiiil beloimiiin" of the iilaintill's; II. Ill |i.iv the relit, taxes, and "jas bills, iilul III liiiy finiii the plailltilfs all the beer II" ri'.|iiirid at $\n per barrel, $'2 [M-r barrel 'if wliiih, beiii),' ill 1'xees.s of the liiarki't luii'i', wiLi to be credited on a .iiidj{iiieiit givi'ii by B. to the plaiiitilf. it. bought I'^m^ '1 I Mii;ii I I I ; i ! lis V 1 ) •'I !Ui ', < I 100 COMMENTARIES ON SALES. [book I. by him from tho plaintiffs. It was contended for the plaiiititT.s and cunccded by tlio cuurt that the question of bailment or not is deterniini'd l)y the fact whether the identical article delivered tu the numufacturer is to bo returned to the party making tli*; ud- vanee.* Thus where logs are delivoi'ed to be sawed into Ijounl.s or leather to be made into shoes, rags into paper, olives into (»il, grapes into wine, wheat into flour, if the product of the identical articles delivered is to be returned to the original owner in u new fornj, it is said to be a bailment, and tho title never vests in tliu manufacturer. If, on the other hand, the manufacturer is imt bound to return the same wheat, or flour, or paper, but may dc. liver any other of e(iual value, it is said to be a sale or a loan, and the title to the thing delivered vests in the manufacturer.'^ The court held that the materials delivered Dittmar were in his actiuil iiiiikf, was iniiilo by tho court in Morss v. Stum-, 5 lliiil). r>\ii, bVJ. Ill tliis c.isu, the main jioiiit di'iudi'il wa.s, wlu.-ru a puiilar rcccivnl Kooils IVdiii tho |ilaiiitiir lo sull ami ai.'i'omit for to him, or ictiini thu .samu as ^'ood as wlicii taken, with intcii'st, thattliis waa a bailiiiiMit and nut a salu ; and that tlie floods weio not siilyct-'t to an t'xocutiiin a^raiiist tliu |H.'illar at thu suit of a third ]>arty. But, as tlic |)c(llar had rei'eived a hill of ^oods from thu plaintiir, for which he hail {{ivm his nuti-, thu court Indd that thu i|ncstioii should liavo l«'un left to the jury whcthur any of thcsi! wcro anion;; the ^oods [>ci/ud under the excnition; ami, if so, they were properly seizeil as thu floods of the pedlar, riiis case, on thu main point, was distin- finished from Marsh t;. Wickhani, H.lohns. 187, when! then! was a sale of tho ;;oods, with .1 privilef;u of return. In this caso thu dufuiidants (the vendues) expressly agn'od to pay a iiameil piicu for the ^'oods, wliii'h slioweil a sale, lint, in Crosby v, Thu Delaware, &c. Canal Co., 11!> N." V. 3;i4 (a. U. 1»',K)), wheie parties receivod foods, aecomp.micd with an account or ill of panels, in thu usual form, specify- ing thu ijuaiitilies, jiricu.s, anil deseriptioini of till! ;;ooils furnislied, as thu facts left it doubtful whotlier tho j^onds wen! received as n. bailment or a sale, the court held that this was a i|uestii)n to lie sulmiittud to tho jury, and unleretl a new trial for that pur- pose. I n .Moses V. Taylor, (5 Mark. (1). C. ), 25,5, '2T.\, it was held (a. D. 1888) that a delivery or loan of chattels, with tho rij;ht of the bailee to appropriate them to his own use and pay tho value, is a bailment coiivurtibl'j into a sale at the election of thu bailee; and that on the bniloe electing to appn)pi'iatu the goods to his own use, assumpsit for goods sold and delivered would lie, as from tho time of the election. Bayley i;. (jonldsmith, I'oaku, 50; I!i:iiir|ii V. Nash, 1 M. & W. .145. See ihoinl.v i'. Co.xw.dl, -2 U. & 1'. 438; Caflin r. Hi!l, 4 Canii)b. 183; Hunter v. Welsh, 1 Stark. '224 ; Lyons v. I5arn.s, 2 Stark. liU; Stiiij.ly V. Sanders, 5 H. & C. ti28. I'.ut, wlu'ie bonds wuru received from thu idaiiitilf, liy thu defendant, " to bu returned nil I. ill," and, as collateral security, thu di riini.iiit gavt! his notes with interest, fur llw amount of tho boiid.s, this was lu'ld to im but a bailment of tho bonds, and nut to givo thu defendant any electimi tu tii:it it as a sale. Moses «. Taylor, 6 M.u k. (i).r.) 255. See Coijuaml v. VVulusc, Iml Mo. 137 (A.I). 1S8!»); Ihilkluy v. Amlnws, 3!) Conn. 70. Where there is the iij;lil of election, as the statute of liinitaliiiii> uiily runs from the time the right nf .uiiu'i no- criiu.s, it Would only begin to run at the tiinu the right of election was exiiviseil; and wheiu there is no right of ilr. timi, and a con version, tho action nt troviT would only accrue at the time ul tin' i hh- version. .See l,ovcll v. Martin, I Tiiiiit. 7UU ; Hristol r. Burt, 7 .luhiis. 2.'. I; M'w V. Taylor, ti Mark. 255; Cole c, lliWi, 7. 24-27, and notes. ' See ante, p. 14, n. 1. ^ I'ien'o V. Schunck, 3 Hill (X. V.>, -3; Norton V. Woodruli; 2 N. Y. 15;i; M ill'^.v I'. Willis, 4 N. Y. 70; Foster r. rittilii.m', 7 N. Y. 433; South Australian liiMiiami' Co. V. Randall, L. H. 3 P. C. 101; RiikiT V. Roberts, 8 Me. 101; Smith v. .Ioiii;», i (hi '"•.'. PART III.] BAILMENTS DIRTTNGUISHED. 101 posscBsion ami under liis absoluto control ; tliat there was noth- inir in tlie agreement that the ideutical materials tlellvcred to him hIioiiM I)c used in the manufacture of the tlualin^ and nothing? to |HTViiit an exchange by Dittmar for other materials, if he found aiiv of the articles to be unsuitable, or if he found that he had too imich of one kind and too little of another, acting honestly in the iiittM est of both parties ; the case being rpiite dilTerent from the siiiirlt' mechanical transaction of turning a specilic set of h)gs into boiirds, or a specilic lot of wheat into tlour, where there is no room for jiidirinont or discretion. The goods in Hpcrifi and the money supplied became the property of Dittmar, for which he was lial)le to iicctmnt to the plaintiIVs us for so much in value to be charged n?a'mst Uio manufacturetl goods which were to be consigned to the pliiiiitirt's. The goods, therefore, were subject to an execution against Dittmar.' The distinction between a sale and a bailment is, of course, im- portant. As but a special property is vested in the bailee, his rights ami thities with respect to the property bailed with him are neces- sarily esseiitially ditl'erent from those of an owner of the property undor a saL'. The following cases sulliciently illustrate thig jioiiit : — S. A' Co. were the owners of the corn-exchange elevator of Os- wego, N. Y., in which they were engaged in the general business of elevating and storing grain for the jtublic, and were also large dealers in grain on their own account. They sent orders to M. & Co., oonnuission merchants in Milwaukee, to purchase for them twoeargoes of wheat, and to draw on them for the purchase-money against each cargo. M. & Co. bought and shipped the cargoes, and drew for the purchase-money on S, «fc Co., part in sight-drafts, and part in time-drafts, selling tliese drafts to the plaintiffs; the bills (»1 lading being made in favor of the plaintiffs. The plain- titls lorwarded the drafts with the bills of lading to the defendants, and instructed them to deliver the cargoes to S. A' Co. if the drafts were paid, but if not paid, to hold the cargoes and advise by tele- graph. S. & Co. paid the sight-drafts and accepted the time- drafts. On the arrival of the cargoes at Oswego, the cashier of the defendants indorsed the bill of lading, making the cargoes deliverable to the corn-exc'iange elevator, for account of the ])lain- Cnw. 32'*; ITvile r. Cookson, 21 Bnrb. 92; 'See also Dittmar v. Norman, 118 Kiiiy c. llmiipliroys, 10 Pa. St. 217; Ste- Mass. 319, where the (lucstioii arose uinlor veils t'. I{rii,'Ks. 5 Pick. 177; Denny v. the same ogreement, ami where the .Su- Calidt, ti Met. 82; Judson v. Adams, 8 preme Court of Massachusetts hehl, as in Ciisli. ",,',('); Sclienk v. Saunders, 13 Gray, tliis ca.se, that the transaction was a sale 37; Maiistield v. Converse, 8 Allen, 182; and not a bailment. Buttfini V. Merry, 3 Mason, 478. illilii: : till i' ' , V I i IJ !i 1! in t, M Hi! w IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IIM IM IM IIIII2.2 uo 12.0 1.8 1.25 1.4 1.6 ^ 6" — ► "/} ,<^ %;». '"<^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.' . 14S80 (7;f 672-4503 m \ iV :\ % V \ a^ 6^ V #. 103 mer- acli o{ cmcnt ic to- ained con- and le de- other them, tor the lit the Id that oy had laving liavinj lit very Ives in [owner b u. s, of the property, yet there are still very marked distinctions exist- in'^ between the two. The question will be found to be consid- ered in a case, under the Bills of Lading Act. On appeal to the House of Lords,^ where the judgment of the Court of Appeals in the case was reversed, the House of Lords held that the mere indorsement and delivery of a bill of lading by way of pledge for a loan, does not pass " the property in the goods " to the in- dorsee, so as to transfer to him all liabilities in respect of the goods within the meaning of the Bills of Lading Act, so as to make him liable in an action by the shipowner for the freight. After a most elaborate examination of the authorities by Lord Selborne, that able judge reached the following conclusion : " Upon the whole, I cannot dissemble that this case appears to me attended with some considerable difficulties. But these diflRculties are mainly technical, arising out of a comparison of the language of the statute with various and not always consistent forms of expression found in authorities not decided with a view to any such consequences as those which the statute would produce. They deal with questions between unpaid vendors of goods com- prised in bills of lading and bona fide indorsees of the same bills of lading for value, or between competing and adverse claimants to priority as bona fide holders for value of the bills of lading themselves. The statute, on the other hand, deals with questions between shippers and indorsees of bills of lading claiming under them, and between indorsees and shipowners. The preponder- ance of principle and reason appears to me to be against the prop- osition that, as between those parties, it can have been intended by, or can be the effect of the statute, to make the creditor of the shipper liable (in effect) as his surety to the shipowner (with whom he Avas never brought in contract) by reason only of the deposit with him by way of security of a bill of lading indorsed in blank ; his right under that deposit being (whether at law or in equity) special and not general, and the shipper retaining (wlicthcr at law or in equity) the real and substantial property in tlie goods, subject to the security. It had not, until the pres- ent case, been directly or indirectly determined by any authority that such is the effect of the statute." ^ 1 SpwcU v. Burdick, 10 Ap. Cas. 74. 2 Lord Fitzgerald, in a very few words, sums up the whole argument in the case thus: "Field, J., in the court below, caino to the conclusion that the traiisiictinu under investigation was in- tcnlod by the parties to operate as a pledge only. There can be no doubt that the inference thus drawn by the learned judge was correct in fact. It seems to follow that the pledf^ees acquired a special property in the goods, witli a right to take actual possession, should it be necessary to do so for their protection or for the reali- zation of their security. They ac(|uired no more, and subject thereto the general property remained in the pledgor. I am of opinion that the delivery of the ia- • I J ; r:i' H V i ' 'I ■!l I I i :it. .1 j'i ■ ■; R' ¥>r^ii 104 COMMENTARIES ON SALES. [book I, The following are also instructive cases in the law of pledge, a3 distinguished from the law of sale, covering all the points neces- sary for our purposes. For a fuller consideration of the law- relating to pledges, the student is referred to the text-books on bailments and contracts. A holder of scrip certificates for shares borrowed of the defend- ant a sum of money on his own promissory note, payable on de- mand, and on the security of the shares, and deposited with the defendant the scrip certificates. He afterwards became bank- rupt, and the defendant, without demand and without notice, sold ten of the fifteen shares to repay himself his debt. The creditor's assignee, without making any tender of the amount of the debt, brought an action of trover against the defendant to recover the value of the shares The Court of Excliequer Chamber held. affirming the decision of the Court of Exchequer, that, even as- suming the sale to be wrongful, the immediate right to the j)osses- sion of the shares was not, by the sale, revested in the plaintiff, and that he could not maintain trover, either for the whole value of the shares or for nominal damages.^ doi'sed bill of ladinjj to the defendants, as a security for their advance, did not, by necessary iini)lication, transfer l/ic prop- erty in tlie goods to the defendants. Tiiey were not, therefore, ' indorsees of a bill of lading to whom the proi)erty in the goods passed by reason of the indorsement,' so as to make them without more 'subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with them.' " Jbid., at p. 105. 1 In following the decision of the Queen's IJench in Donald v. Suckling, L. R. 1 Q. B. 58.5, the law is thus suc- cinctly laid down by the court: "There are three kinds of security : the first, a simple lien ; the second, n mortgage, passing the i)roperty out and out ; the third, a security intermediate between a lien and a mortgage, viz., a pledge, where, by contract, a deposit of goods is made a security for a debt, and the right to the property vests in the pledi.^ce as far as is necessary to secure the debt. It is true the pledgor has such a property in the article pledged as he can convey to a third person, but he has no right to the goods without paying olf the debt, and until the debt is paid otf the pleilgee has the whole present interest. If he deals with it in a manner other than is allowed by law for the payment of his debt, then, in so far as by disposing of the reversionary interest of the pledgor he causes to the pledgor any difficulty in obtaining possession of the i)ledge on payment o( the sum due, and thereby does him any real daiiw^e, he commits a legal wrong against tlie pledgor. But it is a contradiction iu fact, and would be to call a thing lliat which it is not, to say that the pledf;ee consents by his act to revest in the pledgor the immediate interest or right in the pledge which, by the bargain, is out of the pledgor and in the pledgee. 'I'liere- fore, for any such wrong an action of trover or detinue, each of which asHiimes an immediate right to possession in the ])laintitf, is not maintainable, for that right clearly is not in the plaint ill'." Halliday v. Holgate, L. R. 3 E.x. '299, 302. In Coggs V. Bernard, 2 Ld. Ray in. at p. 916, Holt, C. J., says : " As to tlie prop- erty the pawnee ha.s in the ])awn or I'hilge, lie has a special property, for the ]);i\vii is a securing to the pawnee that he sliiiU he repaid his debt, and to compel the pawnor to pay him." See Kyall v. UoIIe, 1 Atk. 167 ; Reeves i>. Capper, 5 Bing. N. C. 140. In Bell's Commentaries, B. 2, eh. li, §2, it is said : " By pledge, a movable subject, or the title deed, vouchers or muniiiionts of a debt or jus incorporalc are didiveivdto the creditor, in security of debt, to iciiiiiir. with him, and be detained in jiosscssion till the debtor shall redeem them ; and, if necessary, to be sold by judicial autliority for satisfaction of the debt ; thi- civditor engaging to restore the thing iih'ilui'd when the debt shall be paid." In Donald PART III.] BAILMENTS DISTINGUISHED. 105 A bailee of goods who holds them as a pledge has a special property which can bo sold and assigned. The assignee in such cases becomes invested with all the legal rights which belonged to the assignor. Such is the rule of the common law, and it has subsiscud from an early period.^ The law was so applied by the United States Supreme Court iu the case of the sale and assign- ment of gold certificates.^ V. Suckling, L. U- 1 Q- B- 585, A. depos- itwl (Irlifiiturus with J5. as .sfciirity for tlie paynii'iit, at maturity, of a bill t'liiioi'sed by A. and (liscoimtcd by B., on the aj^ive- iiunt that B. should have |K)wer to sell or othii'wisi' dis])(is(' of the dcbt'iiturt's if the bill sliould not bu [laid when due. lielorc tin' maturity of tiie bill, B. deposit '(l the dulicntures with C, to be kept by ii.ni as a security until the repayment of a loan from ('. to B. larger than the amount of the bill. The bill was dishonored, and while it still remained unpaid, A. brought (li'tinue a_i;ainst C. for the debentures. It was held that the repledge by B. to C. ditl not jiut an end to the eontract of pledge between ,V. and B., an \ On the principle that a power to sell does not include a power to pledge, where a power of attorney gave to the holders author- ity " for the purposes aforesaid to sign for mc, and in my name, and on my behalf, any and every contract or agreement, accept- ance, or other document ; " the purpose aforesaid being " from time to time to negotiate, make sale, dispose of, assign, and transfer " government promissory notes, and " to contract for, purchase, and accept the transfer of the same ; " the privy coun- cil held, that upon the true construction of this power, the hold- ers were authorized to sell or purchase such notes, but not to pledge thcm.^ Where there is a power by law to sell, a purchaser may obtain from the vendor, even as against the true owner, a good title, but that cannot extend by implication to a pledge. Barrow was a leather merchant in London ; Bonncll was a tan- ner in Canada. Barrow agreed to pay Bonncll lid. per pound for every hide tanned by Bonnell in the mode of the country, and Bonncll was to procure freight and send back the hides. Barrow- sent out a large number of the hides ; they were tanned and freight was procured for them ; but in the mean time Bonncll had obtained from the Toronto Bank advances on his own account on bills, and hypothecated the hides to the bankers as secu- rity for such advances, engaging to hand over to them the bills of lading if his bills of exchange were not duly honored. They were not duly honored, and the bankers (who had acted in entire down the law substantially as it has been done in the late cases named, tluis ; " As a pawnor has a special property in the thing pawueJ, he may assign it ; and his assignee may consequently assert his title to it against the owner, or one standing in his place. He may even use the pawn, provided it be not the worse tor it, if tlie keeping of it be a charge to him ; in re- compense of which he may, for instance, milk a cow or ride a horse. But though it be not the worse for it, he can use it but at his peril ; for a pawn is in the nature of a deposit, and, in the case indi- cated, the loss of it is attributable to the wearing of it, which put it in the way of danger. He is consequently answerable for damage occasioned by his use of it. But though he use it even tortiously he is answerable for the con3e([uences but by action." His lien still remains intact. 1 Jonmenjoy Coondoo v. Watson, 9 Ap. Cas. 561. In the case of the Bank of Ben- gal V. Macleod, 5 Moo. Ind. Ap. 1 ; 7 Moo. P. C. 35, under very similar language, the con- struction was otherwise. But the two cases are perfectly reconcilable on the ground that the language in the two cases, coustrued with the context in the respective cases, gave an authority in the one case that was not created in the other. See I'urtlicr, Bank of Bengal v. Fagan, 5 Moo. liid. Ap. 27 ; De Bouchot v. Ooldsniid, 5 Vcs. 211 ; Wilson V. Moore, 1 M. & K. 337 ; Irllaiid V. Livingstone, L. R. 5 H. L. 395 ; Ta\lor V. Kymer, 3 B. & Ad. 320 ; Atwood v. Jlullings, 7 B. & C. 278 ; Goodwin i-. Roberts, 1 App. Cas. 476 ; Glyn v. Baker, 13 East, 509. If an agent to whom goods are intrusted for a particular ])uriinse, make sale of the goods in a manner or to a person not within the scope of liis au- thority, the principal may disatthni the sale, and recover the goods of the vi'iidce. Peters v. Ballastier, 3 Pick. 495 ; Wilkin- son V. King, 2 Campb. 335 ; Bariiit; v. Corrie, 2 B. & Aid. 137 ; McCoinbie v. Davies, 6 East, 538 ; 7 East, 7. Hut a principal is bound by the act of liis aj^cnt m disposing of his property where the lat- ter is Furnished with tlie external indim of right to dispose of it, notwithstaiidin;? that he may have deviated from the secret instructions of his principal. Comniorcial Bank of Buffalo v. Kortright, 22 V ' i 343. j'lidce. [ilkin- Ins^ I'- ll lie V. luit a la;,'<'nt L'kit- IsflTCt lorcial ■i PART III.] BAILMENTS DISTINGUISHED. 107 ignorance of the transactions between Barrow and RonncU) claimed to retain the bills of lading and the hides until their de- mands were satisfied. On the trial, Lindley, J., held that Bonnell was not an agent within the English Factors Act nor within a similar act in the Province of Quebec, but that as a pledge by the apparent owner of the goods under the law of that province, for valuable consideration, the defendants (the bankers) were entitled to the goods. The Common Pleas division sustained this decision, which was reversed by the Court of Api)eal. On appeal, this decision was affirmed by the House of Lords, which held that neither under the English Act nor the Canadian Act had one in the j)Osition of Bonnell the power by pledging to pass the prop- erty in the goods, which he could not under the circumstances of this case have done by a sale.^ In an action by the pledgor against a bona fide purchaser of property pledged, it was held that the action could not be main- tained where there had been no payment to the purchaser, or ten- der of the amount due by the pledgor on the pledge. A tender to the second pledgee of the amount due from the first pledgor to the first pledgee extinguishes ipso facto the title of the second j)lc(]gee ; but it is well settled that there can be no recovery against him without tender of payment.^ Possession is of the essence of a pledge, and without it, either actual or constructive, it cannot be supported as against third persons.^ A special property may be vested in another than the owner of the general property without delivery of the personal projjcrty by an assignment of the indicia of ownershii) of the prop'^rty, as a bill of lading by way of security. Jenkyns v. Brown * is an in- stance of this kind. There K. purchased corn at New Orleans for the plaintiff, a London merchant, whose agent K. was. The pur- chase was made with K.'s money ; and K. drew for the amount upon the plaintiff, the bill being in its body expressed to be on account of the corn. K. sold the bill to the defendant at New Orleans, and at the same time handed the defendant a bill of lad- ' city Hank v. Barrow, 5 Ap. Cas. 664. See also Haynian v. Flewker, 13 C. H. N. s. .^ilO; Markf. Atten borough, 1 15. & S. 831; Wood v. Rowclitl'e, 6 Hare, 191; Sliopiiiird V. The Union Bank of London, 7 lluilst. & N. 661; Paterson v. Tush, 2 Str. 1178 ; Cole v. The North Western Diink, L. R. 10 C. P. 354 ; Hartfield v. Phillilis, 12 CI. & F. 343; Moyce v. New- inf,'ton, 4 Q. B. Div. 32; Johnson v. Credit Lvoniiais Co., 2 C. P. Div. 224; 3 C. P. Div. 32. ^ Talty V. Freedman's Savings & Trust Co., 93 U. S. 321; Jarvis's Admr. v. Rod- gcrs, 15 Mass. 3G9 ; Lewis v, Mott, 36 N. Y. 395; Batcni&n v. Pool, 15 Wend. 637; Strong r. Black, 46 Barb. 222; Kil- inoiison V. McLeoii, 16 N. Y. 543 ; Bald- win V. Kly, 9 How. 580: Merchants' Bank V. The State Bank, 10 Wall. 604 ; Donald V. Suckling, L. R. 1 Q. B. 585 ; Moore v. Conhani, Owen, 123 ; Ratclilfe v. Davis, Yelv. 178 ; Johnson v. Stear, 15 C. B. N. s. 330. 8 Casey v. Cavaroc, 96 U. S. 467. * 14 Q. B. 495. > 1". !i ll !. ! vw 108 COMMENTARIES ON SALES. [book I, ing of the corn, which had been drawn for delivery to K.'s order, and indorsed by K., who, at the same time, empowered the defend- ant to sell the corn if the bill of exchange should not be paid. Afterwards K. advised the plaintiff of the transaction, forwarded to him the invoice, which stated the corn to be shipped at the risk and on the account of plaintiff, and requested the plaintiff to accept the bill of exchange. The corn having arrived in England, the plaintiff, who had accepted the bill of exchange, failed to pay it at maturity. The Court held that a special property passed to the defendant, and that no property passed to the plaintiff ex- cept upon the condition of his paying the bill of exchange, and that, he not having paid the bill, the defendant had a right to retain the property.^ * See, on the point of the general prop- erty not passing under somewhat siniihir circumstances, the case of Wait v. Baker, 2 Ex. 1. See also Chander v. Sprague, 5 Met. 306 ; Low v. Andrews, 1 Story, 39 ; Frost V. Goddard, 25 Me. 414. We note that, in Wait v. Baker, the offer to sell the cargo, which was accepted in ttrnis, was that the cargo was to be "free oa board" ("f. o. b."); but it was still held, under a very strong state of facts, that tlic jiroperty in the cargo did not pass to the vendee. See, in a hvter volume, where we point out the meaning of this term ("free on board"), and show that the construc- tion placed upon these words by succes- sive English courts, as implying that, hy virtue thereof, the property in goods so shipped passes to the vendee, cannot be sustained. ;!i V i \ ( ■. i ! ' t * i • i ■■ 1 ii' i; FABT I.] BALES WITH INFANTS. 109 BOOK 11. CERTAIN SPECIAL SALES. Pbeliminaky. It may bo said in general that parties competent to become such to any contract may be parties to a contract of sale. { crtain parties, such as infants, married women, lunatics, and drunkards, are under certain disabilities affecting their contracts of all kinds, questions relating to which come up most frequently in connection with the contract of sale. There are also others, such as guardians and trustees, who from their occupying fidu- ciary relations to their wards and cestuis que trust, I'espectivcly, arc likewise under disabilities. The law of agency is also an important one in connection with the law of sales. We shall consider subjects affecting the law of sales connected with these matters so far as may be necessary for our purposes. Htif «'»i' !?; PART L SALES WITH INFANTS. ll There are three important points, which, as regards an in- fant's contracts, require some consideration. They are (1) the power of an infant to contract for necessaries, whether for the use of himself, his wife, or child; (2) as to the power of an infant to bind himself by a contract for purchases other than for necessaries; and (3) as to his power to ratify such last- named contract on his attaining his majority. The cases on these points are very numerous, and it is now well established that, at common law, an infant can legally con- tract, so as to bind himself for necessaries.^ * In answnr to a plea of infancy, in peared that the infant had, at the time the Biirgliart v. Hall, 4 M. & W. 727, the plain- goods were supplied, an allowance of £500 tiff replied, necessaries. On the trial, itap* a year, besides his pay as captain in the K I'i •i »l ; ( iii i ii !• i: M i I: 'i|i'ii' 1 ■ ' ■i :':.' 1 i 1'' ! ■ r i ^.: .. [ 4 t,' 1. 110 COMMENTARIES ON SALES. [book II. For a long timo much confusion arose out of the tcrni8 " void " and " voidable " being confounded with each other with reference to an infant's contracts. It is now well settled that an infant's contracts, at common law, arc not absolutely void, but arc merely voidable at the election of the infant,' the protootiun being that of the infant, and not of the adult who msiy con- tract with him. The plea of infancy can only be pleaded by the infant, and not by an adult party to a contract with an infant.2 As to what arc necessaries, it is laid down by old authori- ties^ that '' An infant may bind himself to pay for his ncci's- sary meat, drink, apparel, necessary jjhysic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards." And a minor is liable for necessaries suitable to his state and degree, and the jury must consider not only whether the article!? were suitable in point of quality but also in point of quan'ity;* the term " necessaries " including such things as are u.seful and suitable to the state and condition in life of the party, and not mcrel^^ such as are requisite for bare subsistence.^ army. Lord Abiiif^or, C. B., directed tlie jury that if tlio iiifiiiit had an iiicomo 8Ut!icieiit to jM-ovide him witli necessaries suitable to liis condition, for ready monej', he couhl not contract even for necessaries upon credit. Tiie jury liaving found for tho defendant, on a motion for a new trial tho learned judge admitted that he had carried the law farther than any jircvions case had carried tho rule, and in delivering the juiigment of the court he laid down the rule that a minor is cnpablo by law of entering into a contract, not merely for necessaries for ready money, but into any reasonable contract for necessaries, al- though he might have an income. This case was followed and a]ii)ruved in Peters V. Fleming, XL k W. 42, where it was decided that it is a question for the jury whether the articles are such as a reason- able person, of the age and station of tho infant, would re(}uire for real use. See the cases of Ryder v. \Vonibw(;ll, L. R. 3 K.K. 90, and L. H. 4 Kx. a2, and .lohnston V. Marks, 19 tj. B. Div. 509, stated infra. 1 The law is now by statute otherwise in England. There, by the Infants' ]{e. lief Act, 1874 (;!7 & 38 Vic. e. 62), all contracts with infants for goods 8ui)i)lied or to be supplied, other than contracts for necessaries, are absolutely void, and in- capable of being ratified. 2 navies f. Turton, 13 Wis. 18.5; Oliver V. Hondlet, 13 Mass. 237 ; Nightingale v. Withington, 15 Mass. 27'2 ; Worcester v. Eaton, 13 Mass. 371 ; Van Bmnor r. Cooper, 2. Johns. 279; Hartness v. Tliomii- son, 5 .lohns. IGO; Rose v. Daniel, 3 Brcv. 438 ; Brown v. Caldwell, 10 S. .'^ 1!. 44. 8 Co. Lit. 172rt; Bacon, Ah., /»/««(•?/ (1). • Burghart v. Angerstein, tiC. & P. 690 ; 1 M. & Rob. 458. 6 Peters V. Fleming, 6 M. k W. 42, And see Manby v. Scott, 2 Sid. ll:i; Brooke v. Gallv, 2 Atk. 34; Bur-li;irt r. JIall, 4 M. & \V'. 727; P.nmker r. .S,„tt, 11 M. & W. 07, and llntr ; Whartmi i'. Jlackenzie, 5 Q. B. tJOti; Harrison v. V.iw, I M, & 0. 550; Chapiiley. Cooju'r, 13 M. & W. 252; Clover i\ Adinr. of Ott, 1 Me- Cord, 572 ; Bnnchcll v. Clarv, 3 ISiw. 194; Rainwaters. Durban, 2 X. .t M.C. 524; Coatesf. Wilson, 5 Esp. 152 ; ILiiuls V. Slaney, 8 T. U. 578 ; Hart v. Prater, 1 .liir. 623 ; Helps i;. Clayton, 17C. P.. \. .s. 553; Tnpper v. Cadwell, 12 .Met. 559 ; Ora.'p v. Hale, 2 Humph. 27; Phelps i\ Worcester, II N. H. 51. And in such casesasaii acliilt would be liable on his imjilicd ciiiitrnct for necessaries for his wife and infant eliilil, an infant would be similarly liable. " It is a well-e.stablished ruleof linv, tlintan in- fant has aright to avoid his contracts, imd it matters not whether his contnn't is luir or unfair, he has a right to rescind it. But to this rule there are some except imis. An infant may bind himself to pay foi' iiis necessary meat, drink, apparel, jiliysie, and liis good teaching and instruction, I'AKT I.] SALES WITH INFANTS. Ill The works on contracts so fully discuss the liabilities of in- fants on their contracts, that we conline ourselves to setting i.lur. |iri' r. stcr, lidult Titrnct IthiM. 'It 111 hi- ll ml i r:iir lUit linns. li' his lysic, Itiuii, wlinrrliy ho iiiny profit liiinsclf nftorwanla. 11,' may iilMi, il'iiiiinicd, takt- up provision liir Ills will' unci iliildii'ii. liiil it must ii|ipciir that till' tliiiif,'s woiv ni'tiinlly iiicrsMiry.iit' n'a.Miiiiilili' pliers, iiiiil siiitiiMu to tlif iiil'aiit's (lt'j,'ii't' mill I'statc ; ton- siihnitioiis wliii'li iv;;iilarly uiust In; li'l't to till' jiuy-" Abi'U r. WiuTfii, 4 Vt. 14lt, 1;VJ. So, ill Bci'li'v V. Youii;;, 1 |iih!>, 5-t', till' L-oiiit said : "The law is .sittifcl, thiit an infant can only l)iuil liiiiisi'li" for ui'cTssary tuition, niiidiciiie, victuals and I'lotlics, and siudi liki; iicci's- saiii's. Within tlu'sc cxpi'i'ssions ' siiidi othiT iirc'i;ssaiii.'s ' may be included ncccs- naiics for an infant's wife, or for nursinj^ his lawful cliilil." It is clear that an infant is liable on his express contract for lU'LCssaiiis furnished liis wife and lawt"nl child ; Init we have advisedly qualified our stati'inciit of the law with reference to his liability on his innilied contracts for iii'ie>naiies furnished them. He is so liable only to the extent that an .idult would be lialije on his implied contract. Henjamin statis otherwise (Heiij. on Sales, § '2i> : " Wiiat is su])plied tliem on his exjiiess or implied credit is considered as jmrcliascd by him"), but the authorities he cites do not sustain his position. Broom's illustra- tion of the maxim " Pcrsoiin mnjunclo (iquiii'irittiir iiileirAir pnipn'n," thus, "So if a man niider the aj:;!! of twenty-one contiiut for the uursiuf; of his lawful eliihi, this contract is flood, and shall not be avoided by infancy," relates clearly to the express contract of the infant. The old ease of Itaiiisford v. Fenwick, Carter 21.5 CJ'J Car. •>) — " Infant of lifteen years of af;c marries a wife, may not he take up lu'ovision for his wife and children ? " — is, also, a o.xse of an express contract. Another old case (Turner t'. Trisby, 1 Str. liiS) holds that necessaries for an infint's wife are necessaries for him ; but if provided for the marriajre, he is not charj,'i'able, thoufjh she uses thoni. He \yoiilil, clearly, as rej;ards his wife, bo liable only for necessaries to lier to the same extent as an adult would be under similar circumstances; a subject whicii we consider in a later portion of this work. See imf, r„)ok II., Part IV. As recrards the liability of a father for neeessaiies supplied to his minor children the authorities are not in harmony, but it is i«Ttictly safe to .say that where an adult piiivnt is not liable for neces.saries furnished liis minor children, an infant is not so. In Nichole V. Allen, 3 C. & V. 36, liord TentciiUn held at nisi prim that if a person knew that his illegitimate daughter of the ago of 16, was boardint,' and clothed by the plaintilV, and neither expresses dissent nor takes his daughter away, he is liable to pay the plaint ilf for such lionrd and lodging without any express promise to ilo so ; and that it lies on the ilefcnd- ant to show that his daughfer was boarded nnd lodged by the plaintilf against his consent, or that he has refused to maintain her any hmger at his expense, lie held further that there was not only a moral, but a legal obligation on the defendant to inaintaiii his child, and, that, knowing where she was, and expressing no dissent, and not taking her away, he was liable for her support. In Law v. Wilkin, 6 A. & K. 7'JO, Lord I'eiinmn lays down the law to the same etlect. He says : "A father is properly liable for any necessary jiro- vision made for his infant son. in this instance the father was living at a short distance from the jilace where the goods were .sujiplied. There was no evidence that he had authorized the muster of the school, or any other person, to jnovide tilt boy with clothes, or that he had in any way furnished a su]iidy for that pur- pose. If he wished to relieve himself from liability, I do not see why he should not have jiroved that ho took such stejis to provide for his son as rendered this supply unnecessary." The weight of authority, in Kngland, nt least, is decidedly the other way. Chief .Instice Abboit, in Baker v. "Keen, 2 Stark. .''.02, states the law thus : " A father would not be bound by the contract of his son, unless either an actual authority were jiroved, or cir- cumstances a|i]ieared from which such an authority might be ini]died. Were it otherwise, a father, who had an imprudent son, might be jirejiidieed to an indefinite extent ; it was therefore neces.sary that .some ])roof should be given, that the order of a son was made by the authority of his father. The ipiestion, therefore, for the consideration of the jury was' whether, under the circumstances of the particular case, there was sutlieient to convince tlieni that the defendant had invested his .son with such authority." The law was similarlv stated by (Juriiey, B., in Rolfe V. Abbott, 6 C. & P. 286, with the addition that the father is the person to judge wdiat is proinr for h's son, and to charM the father it is essential that the goods should have licen supplied with his assent, or by his authority. Blackburn v. JIackay, 1 C. & P. 1 ; Flnck V. Tollemache, 1 C. & P. 5 ; Seaborne v. Maddy, 9 C. & P. 497; Mortiniore v. Wright, 6 M. & W. 482 ; 9 L. J. Ex. 158, \i :tit| III ii lilt 112 COMMENTARIES ON SALES. [»00K II. forth a few cases which make the law sufficiently clear on tlio subject for our purpose ; exauiiuin}?, in our notes, sucli matters in connection therewith as we thinl« require special consideration. anil many other cases, are to the same etrci't. ill the cast! of Mt)rtlii»oi'o v. Wright {.wpra) the deeisions in Ni(;holo v. Allen, 3 C. i P. 3tJ, and Law v. Wilkin, 6 A. & E. 718, were stronj^ly dlsapproveil, and it was decided that a father is not liable for dehts incurred by liis son while under age, unless he has given an authority to the son to incur them, or has consented to pay them ; and that the moral obliga- tion that he is under to provide for ids children imposes no such liability. liOrd Abinger said : "In point of law, a father who gives no authority, and enters into no contract, is no more liable for goods sup- plied to his son than a brother, or an uncle, or a mere stranger would be. From the mere obligation a parent is under to provide for his children, a jury are, not unnaturally, disposed to infer against him an admission ot a liability in respect of claims upon his son, on grounds which warrant no such inference in point of law. . . . If a father does any specitic a(.'t, from which it may reasonably be infernul that he has nuiiionzed his son to contrai't a debt, he may be liable in respect of the debt so contracted • but the mere obliga- tion on the father to maintain his child affords no inference of a legal promise to pay his debts ; and wo ought not to put upon his acts an interpretation which abstractedly, and without reference to that moral obligncion, they will not reasonably warrant. In orler to bind a father in point of law for a debt incurred by his son, you must prove that he has contracted to be bouiui, just in the same manner as you would prove such a con- tract against any other person ; and it would bring the law into great uncer- tainty, if it were permitted to juries to impose a liability in each particular case, according to their own feelings or pre- judices." And Parke, B. ; " It is a cWar principle of law, that a father is not under any legal obligation to pay his son's debts ; exce|)t, indeetl, by proceedings under the 43 Eliz., by which he may, under certain circumstances, be compelled to support his children according to his ability ; but the mere moral obligation to do so cannot impose upon him any legal liability." See Shelton (•. Springett, 11 C. H. 452 ; Moon V. Towers, 8 C. B. N. s. 611 ; Andrews V. Garrett, 6 C. B. n. s. 262. In Shel- ton V, Springett {.lupra), Maule, J., said : "People are very apt to imagine that a son stands in respect to being supplied with necessaries upon the same foot- ing as a wife. But this is not so. If it bo asked, is, then, the son to Ixj left to starve, — the answer is, he must n\>]>\\ to the parish, and they will compel ilie father, if of ability, to pay for his sim's HUjiport. This is the (-ourso which tiif law points out. But the law docs not authorize a son t> iiiiid his father by lii^ contracts." This must now be cousiiliTed the thoroughly established law in Kiii;- land. See Urmston v. Xew(!omiii, 4 A. & E. 8U1), and cases there eite.l. The law (ju the suijjeet in this cnuntry has bjen (piite as unsettled as in Knglaiid. The same irreconcilable coiiilict is siiown in the text- books and in the teases as Iiuh characterized the law in England, |iiiur to" its being settled as it now is. Kent says : " During the minority of the cliilil the parent is atisolutely bound to provide reasonably for his maintenance and eilmii- tion ; and he may be sued for necessaiica furnished, and schooling given to a ihild, uniler just and reasonable eircumstanu's." 2 Kent's Com. 191. Two English casis are cited to sustain this proposition ; both being mere nisi prias decisions. The 'I'st, Simpson v. Robertson, 1 Esp. 17, con, :..j a dictum by Lord Kenyon to tliat eliirt, which has been repeatedly overruled, as wo have shown. The other case, Ford v. Fotherill, 1 Esp. 211, has no bearing on the (piestion at all. It was an action, not against a jtarent at all, but against an in- fant, and Lord Kenyon held, that a per- son trusting an infant did it at his ]ifiil ; and, though it had been stated that a tradesman had no business to inquire into what dealings an infant had with others, he wa. of the opinion the trailesnian wiis bound to make such inmiir}', ami if the infant had contracted otner debts at tiie same time, for the same sort of articles for which the action was brought, such was good evidence to rebut the presumiitioii of necessaries. Parsons, too, while stating the law as established in England, virtually as it is stated by us, states the rule as {gen- erally prevailing here, that, where neci'ssa- ries are supplied to an infant, "tiie father's authority is presumed unless lie supplies them himself, or was ready to supply them. " 1 Parsons on Con. 3i)5. Schouler, on the other hand, says ; — " A father is not bound by the contracts or debts of his son or daughters even for necessaries, as a rule, unless the einnm- stances show an authority actually given or to be legally inferred." Sch. Doin, IJel. § 241. There are very many ca.ses in this country which sustain both of these ton- flictiug statements of law which we have I'AUT I.] SALES WITH INFANTS, 118 The Supreme Court of tho United States discuss at lonjjtli, in Tiicivcr V Moroland * the question as to whether iind in whsit (luntril fiom Kent iiinl HcUoulcr. We .state sciiiii' "f tlii'in. Wiiks r. M.'iTow, 40 Me. 151, iniikoH till' ilistiiictiiiii, tliiit wlicii' a child Iftivus liis pan-iii's lioiisc, vulmitarily, lor the iiiir|in.sc (if scrkili;,' llis t'ol'tUlU! ill till' Will 111, tir to avoid till' ilisi'lpliiu' and iii- .stniini ^o iici rssiiiv lor tiif due ivj^iilatioii nl l.iiiiilii-i, 111' I'aiiifs "itli him no rrrdit ; aii'l il;i' I'iiMiit is uiidi T no ohli;;ation tor lu-.-ii|'|iliiil cliildicn was sustained in Crom- wiU V. i')iiij;imiii, 41 Barl). 558, where the lialijlity was put on ^^rouiids analoj^ous to tiiose ill ris]iect to the lialiility of n hus- band fur Ills wife'.s support. And in Villi V.ilkeiiliufijh V. Wat.son, 13 John.s. 4Sii, it was held, on the authorities in 1 Ksp. eitid liy Kent, as above, that a paiviit is iimlcr a natural obligation to luiiii>li iici'i'ssaries for his infant (diildren ; ami if till' pnient neglect that duty, any otliir piisoii who supplies such necessaries is lieeiiii'il to have conferred a benefit ott the iltliiii[iieiit iiarent, for which the law rai.'ii's an iiiiplied iiiomise to jiay on the part of tlie iiaiciit. But what is actually neces- .>wiy will ill peiid on the jireci.se situation iif the infant, and which the party givinjT the uicilit iiuist be aei|uiiiuted with at his peril. And where the infant is sub potvs- I'll'' paiYiilis, tiieie must be a clear and Jialpalile omission of duty, on the part of till' parent, in order to authorize any otlier liiTsiiii to act for, and charge the expense to the piiient. In Kcaton v. Davis, 18 ni, Iind is not periiiitled to .say it wa.. liMiished without his consent or agaiuff 1 is will. Owen x\ White, 5 I'or- ter (All.), 4;i5, is to the sunie clfect. It was liiere held that a father is not bound 1 the cciitraet of hi.^ son, even for articles I itable and n eessary, unless an actual anthorit', be proved, nv the circunistanccs bo sulHii 'lit to imply one. 'I'liat, so long as t) ■ eliild continues under the direction and control of the father, it is left to the discretion of the jiareiit to deterniinc what is necessary for him, unless it ajipcar that there is a clear omissiMii nf )iaieiital duty in providing for his niaiiitunincc. But where this is the case, the law subjects the father to the jiayineiit for necessaries fur- nislied by a third person, upon the gniund that his neglect to do that which natural, moral, and inuiiiiijuil law have j.iesciibcd as a duty, implies an authority to bind the parent. The law is similarly stated in Pidgin v. Cram, 8 N. II. ;i50, [i',2. See also, Thompson i;. Doiscy, 4 iMd. Cli. 149 ; Gill V. Read, 5 Bh. Is. 343 ; h'uniney v, Keyes, 7 N. 11 571 ; Allen r. .lacobi, 14 111. A])]). 277 ; Tonikins ><. Tomkins, 11 N. ,1. Kij. 512 ; Hillsborough v. Deering, 4 N. JI. 8ti; Piaster v IMa.ster, 47 111. 200 ; Gills' Industrial Home r. Fritehley, 10 Mo. A\f\). 344 ; Courtiiglit v. Court- right, 40 Jlich. (;3'2 ; People v. Strickland, 13 Abb. N. C. 473 (under the New York Code) ; Clark v. Clark, 4(j Conn. 586 ; Jordan i". Wright, 45 Ark. 237; Dennis V. Clark, 2 Cush. 347; Keyiudds v, Sweetser, 15 Gray, 78 ; I'rnw v. Bright- man, 136 M.iss. 187 (a. I). 18.^3). On the other hand, a largo number of what we think are the better considered cases in tliis country are in harmony with what is now the settled law in England. The law is well laid down by Wilson, C. J., in Hunt v. Thompson, 3 Scam. VOL. I. 1 10 Peters, 58. 8 ;;t V K 1 Pit * t. I 114 COMMENTARIES ON SALES. [book II. cases an infant's acts and contracts are voidable or void. As intimated above, a good deal of the confusion which has arisen ia If ■1, . I ; mV'i' (111.) 179, although in that State (Illinois) there are decisions the othi-r way. In fact, so great is the conHiet in this country, as it has been in England, on the ques- tion, that not infrequently in the courts of the same State, decisions as flatly contradictory of each other are found as are observable in the courts of the country as a whole. Wilson, C. J., says: "That a j»arent is under an obligation to provide for the maintenance of his infant children is a i)rinci[)le of natural law ;■ and it is upon this natural obligation alone, that the duty of a parent to provide his infant children with the necessaries of life rests ; for there is no rule of municipal law en- forcing this duty. The claim of the wife upon the husband, for necessaries suitable to his rank and fortune, is recognized by the principles of the common law, and by statute. A like claim, to some extent, may be enforced in favor of indigent and iutirni parents, and other relatives, against children, etc., in ma riy cases ; lit, as a general rule, the obligation of a parent to provide for his oirs[>ring, is left to the natural and inextinguishable affection which Providence has implanted in the breast of every parent. This natural obligation, however, is not only a sulfi- cieut consideration for an express promise by a father to pay for necessaries furnished his child, but when taken in connection with various circumstances, has been h;ld to be sufficient to raise an implied promise to that effei^t. But either an express promise, or circumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child by a third person." And in this case, whic'.i is a valuable one on the subject, it was held tiiat the father was not liable for necessaries furnished, against his order, to Ilia sou. The case of Gordon v. Potter, 17 Vt. 34S, is (.nother valuable case on the subject, in which Redtield, C. J., condemns the principle in the matter laid down by Kent, and shows that the authorities in Espinasso, to which we have referred, do not warrant Kent's con- clusion. The court hold, reversing the judgment of the court below, that to charge the father, it is essential that the goods should have been supplied with his assent or by his authority, adding chat "It is obvious that this rule makes no provision for strangers to furnish children with necessaries against the will of par- ents, even in extrenie cases. For if it can be done in extrenie cases, it can in every case where the necessity exists ; and the right of a parent to control his own child will altogether depend upon his f urn ishiiig necessaries, suitable to the varying taste of the times. There is no stopping-place short of this, if any interference whatever is allowed. If the parent abandons the child to destitution, the public authorities may interfere, and, in the mode pDinted out by statute, compel a proper mainten- ance. But this, according to the English common law, which prevails in this State, is not the right of every intermediUing stranger." Jlaymond v. Loyl, 10 Hmb. 483, is in full accord with the well-decideil English cases, and with the law as laid down by Redfield, C. J., in Gordon v. Potter, 17 Vt. 348 ; and notwithstanding the previous holding in New York, in Van Valkenburgh v. Watson, 13 .Johns. 480, the rule as laid down by Kent is ilis- approved and dissented from ; the author- ities are fully examined, and the law as now held in England agreed with. Tlie law was laid down with what we think is equal correctness in Brown v. Deloai.di, 28 Ga. 486. There, Benniug, J., delivering the judgment of the court, says: "Tin; question arises whether a father is bound to pay for necessaries furnished to his minor child, but furnislu^d without his authority. The English cases seem to answer this question in the lU'gativu [citing several of the cases cited by us, siiprii]. And we very much incline to think that the English cases are right. Not that we know of any very general variance in the American cases. [Hut there is though. See eases cited aiitc] Even if a father is bound to furnish his child with necessaries, and fails to do so, that does not impose an oldigatiou on any third person to discharge the duty nl' the father. If a third person does it, then he does it voluntarily, and what right have voluntary services to expect more than voluntary compensation ? If we mny.of our own accord, discharge this duty for otlicin. and comjiel them to pay us for it, why may we not, of our own accord, ])ay tlieir debts, or discharge any of their other duties for them, and compel them to com- pensate us for so doing /" In Angel r. McLellan, 16 Mass. "28, Parker, C. J., delivering the judgment of the court, says; " The defendant's son had fallen into (lis- tless in a foreign countrj', to which he hail fled to avoid the consecpiences of a crime committed in his native country. He was a minor and without jiroperty. The plaintiff, knowing his father to be a reputable merchnnt, paid his Itoard, and supplied him with such things as were PART I.] SALES WITH INFANTS. 115 the question, in the cases, has been the result of treating the two voids as being synonymous, and thus referring to an act or necessary for his condition, relyinj; upon tlie honor and gnitiuide of the father to reiinlnirsc him. The liability of the father must di'iicnd altogether upon the prin- cililcs of law wliieh govern the relation of liiiiciit ami child." The court then cau- tiously add : " Perluips if he fail to luniish tlieiu with clothing and food iicci'ssary to the support of life, any one who hiniislu's such necessaries may main- tain an aitiun against the father, upon tlie ini'suniptioii of an assent on his jjurt. Peiimiis, also, if he cruelly and causelessly turn tlieni out of doors, they would carry with them a credit on the father for the means of su]iport ; although it may be (|Ui'stioiied whether, in such a case, the suiipnit (if such children should not be provided for pursuant to the statute, re- ijuirinj,' the kindred of poor jiersons within eertiiin degrees to support them." And the court then state a principle in accord with the well-decided English cases, and with the American cases referred to in this para- graiili, thus: "The law has wisely left individual cases of generous interference, to ilejiend U]ioii the honor of those con- nected with the object of it, rather than place in the hands of thoughtless or ill- disposed youth their parent's purse, to supply their wants with, whenever they should incline to deny liis authority, and withdraw themselves from his govern- ment." It was afterwards decided in the .same State, in Looniis v. Newhall, 15 Pick. 151), that the liability of a father under the Massachusetts Statute 1793, c. ay, § 3, to supjKirt his son, who is unable to sujiport himself, does not accrue until proceedings have been luid pursuant to the statute ; consecpiently the furnishing supplies to the son before such proceed- ings have been had, is not a benefit to the father, so as to constitute a legal consideration for his promise, made after the supplies were furnished, to pay for tiieni. i'lie decision in Hunt v. Tluuup.son, 3 S,ain. 17!', was followed in (tolts v. C'liirk, 78 111. 22!l, where ncces.saries were I'urnished a minor daughter, and the father w;is held not liable, there being neither an express pr,)iiiise by him, nor circumstances from whieh a promise could be imjilied. In a later -ase in New York (a. n. 1880), Cartels v. Moore, 9 Daly, 23.1, which was an action against a father for necessaries lurnislied his minor son, the court, in linlding that the father was not liable, said: "The fact that the father ordered from the plaintilf clothes for his son when he was a mere child, and paid for them, would not authorize the plaintiflfto furnish clothes to the son when he was nineteen years of age, on his father's credit, unless the father expressly authorized it." This must not be understood as intimating that a contract might not Ij implied from cir- cumstances, as correctly held in many of the well-decided cases. In Kelley v. Davis, 49 N. H. 187, which is a very valuable case on the ([uestion, an unsatisfactory attempt is made to sustain the holding in Tidgiu v. Cram, 8 N. H. 352 ; but as far as that case follows the law, as it purports to do, laid down by Kent, it is strongly dissented from. Kelley V. Davis decides that the legal obligation of the father to pay for necessaries fur- nished a minor child rests upon con- tract alone ; and where a parent gives no authority, and enters into no contract, he is no more liable to pay a debt contracted by liis child, even for necessaries, than a mere stranger would be. See, also, Farm- ington V. Jones, 36 N. II. 271; Towiisend V. Burnham, 22 N. H. 277 ; French v, Benton, 44 N. H. 30, in accord with this holding ; the deduction from the holding in which cases being that a parent cannot be charged for necessaries furnished by a stranger for his minor child, except upon a promise to jiay for them ; and that such promise is not to be implied from mere moral obligation, nor from the statutes providing for the reimbursement of towns ; but the omission of duty from which a jury may find a promise by implication of law must be a legal duty, capable of en- forcement bv i>rocess of law. Kelley v. Davis, 49 N. 11. 187, 193. So, in Michigan, where a judgment against a father for necessaries supplied to a son was reversed, it was done on the ground that the father had never authorized the son to buy on his account, nor had he in any way given the claimants to understand otherwise ; there being no evidence of either an actual or implied authority, or of any nssutnjition or conlirmation of the transaction. Tyler V. Arnold, 47 Mich. 564 (a. ii. 1882). In Kew .Icrsey, too, notwithstanding it was held and stated, in Tomkins v. Tom- kins, 11 N.J. Kq. 512, 517, that — "The law, as it has been adopted in this State, is as laid down by the court in Van Val- kenburgh v. Watson, 13 Joliiis. 480. A parent is bound to jirovide for infant children with necessaries ; and if lie neg- lect to do .so, a thinl person may supply them, and charge the parent with the amount," declaring, expressly, that the law as held in England " is not the law of New Jersey : " the late case, in that State, of Freeman v. Robinson, 38 N. J. L. 383, i • ^!- ' I f I m li |i \ r; : 116 COMMENTARIES ON SALES. [book II. contract as being void, when it is really only so at tho election of the infant, and is therefore, in fact, voidable and not void. adopts and follows the law as decided in Engliiiid, and by the well-decided cases on the suhjuct in this country. The New Jersey Suiireme Court unanimously held, that tho duty of a father to provide maintenance for his children is a mere moral oblif;ation. ilxeept in cases within the statute of Elizabetii, and by the pro- cedure there pointed out, he is not legally compellable to perform this duty. No action can bo maintained against a father for goods purchased on his credit by his minor child, even though they be neces- saries, unless the father has expressly or impliedly authorized the purchase on his credit. The authority of an infant to bind the father by contract for necessa- ries may be inferred from slight evidence. But, nevertheless, where the jiarent gives no authority, and enters into no contract, he is no more liable to pay a debt con- tracted by his child, even for necessaries, than a mere stranger would be. Tho mere moral obligation of a parent to maintain his child alfords no legal infer- ence of a promise to pay a debt con- tracted by him even for necessaries. And, reversing the judgments of the courts below, tlie Supreme Court held further, that the duty being one of moral obligation only, and the necessaries having been fur- nished without the request of the father, actual or implied, his subsequent promise to pay for them was without the consider- ation which is necessary to the validity of a contract. See further, McMillen v. Lee, 78 111. 433 ; Clark v. Gotts, 1 Bradw. (111. App.) ir,i ; Wallaces. Ellis, 42 Ind. 582; White v. Mann, 110 Ind. 74 (A. d. 1886) ; Burns v. Maddigan, 60 N. H. 197 (a. I). 1880) ; liundy v. Hvde, 50 N. H. 116 ; Cook V. Bennett, 5\ N. H. 85, 93 ; Baldwin v. Foster, 138 Mass. at p. 453 (a. d. 1885) ; Rogers v. Turner, 59 Me. 116. After the very fullest examination of the authorities, both English and Ameri- can, we can but come to the conclusion that in England, on princijile and author- ity, the law is well established, as we have stated it to be ; and that, in this country, on principle and on the overwhelming weight of authority, it is now scarcely less so ; the cases which have followed Kent's statement of the law, and his misreading of the two cases in 1 Esp., and the over- ruled case of \'an Valkinburgh v. Watson, 13 Johns. 480, are, we think, founded on an entire misconception of the law. But it has been held, where the defend- ant's minor son, to whom his father iind given leave to act for himself, and had made publication of the fact, and that he would not thereafter pay any debta of the son, was at home sick, and medical ser- vices were rendered to him upon the credit of his father, to whom, ia good faith, the services were charged at the time ; tlie father knowing of these services Ix'ing rendered and making no objection ; that the law implies a promise to j)ay, by the father, on the general ground, that while one's minor children remain a part of his family and household, and receive neces- saries, with the knowledge of the fathir and without objection on his part, it is the same thing as if he received them himself, or his wife received them. Swain v. Tyler, 26 Vt. 9. See Deaiie v. Armis, 14 Me. 26, to the same elleet. But, where a son, who was of fidlagoaiiJ had ceased to be a member of his father's family, was suddenly taken ill aiiioug strangers, and, being poor and in distress, was relieved by the plaintilf, it was helil that an express jn'omise by the lather to pay the bill would not sustain tin; action, Mills V. Wyman, 3 Pick. 207. See Cook V. Bradley, 7 Conn. 67; LittlelielJ V. Shee, 2 B. & Ad. 811; Parker v. "arter, 4 Muuf. 273 ; Wennall v. Adnev, S B. & P. 249, note ; Mcl'herson v. "llees, 2 I'enr. & Watts, 521 ; Penniiiijtim i', Gittings, 2 Gill & J. 208 ; Smitli r. Ware, 13 Johns. 259; Edwards v. Davis, 16 Johns. 281, 283, note ; Greeves v. Mi- Allister, 2 Binn. 591 ; Chandler r. Hill, 2 Hen. & M. 124. And a recjuest by a father to attend his son, then of full age, and sick at his father's house, raises no implied promise on the pa't of thf lather to [)ay for the services rendeied. Boyd i\ Sappington, 4 Watts, 247. A general order from a father tii supply his daughter with such gooils as slie wanted, made her his agent to coiitraet, and made him liable for her ]MUvliasfs, though siie exceeded what wai actiiiliy necessary for her comfort. Harper v. Lemons, 33 Ga. 227. And thf only ground upon which a father can ii'' in;vle liable for tho jmrchases of his son after lie becomes of age, is on the pronml that the son, either ex]>ressly or inipliidly, lias become his father's agent to make tlis purchases. Townsend v. Bunihani, 33 N. H. 270 ; Wood v. Gill, 1 Coxr (N. J.I, 449. Sec, further, as to tln' litlK'r'i liability for his son's acts and imitracts, Norris r. Dodge, 23 Ind. 190 ; llau'ertyr. Powers, 66 Gal. 368 ; Baker v. MnnJs. 33 Kan. 580 ; Brvan v. Ja(!kson, 1 dmn. 288; Stovall ».' Johnson, 17 Ala. N. s, H; Clinton v. Rowland, 24 Barb. 6o4; Wilkes V, McClung, 29 Ga. 371. •See Matter of Marx, 5 Abb. N. C 2-5, a decision of the surrogate court, as to the 6, P^RT I.] SALES WITH INFANTS. 117 The conclusion reached as the result of the American author- ities, recot ;■!!■ rifiht nf a jiaront to lie allowed for the iiiiiinteiiaiR'f of his fluid out of the hitter's si']iiiiati' istate. We ((uestiou the conect- ncssoftliisdeeision. See, holding; critt^vT, except where the father is iii iiuli<;cnt eirciinistaiiccs, Freeman v. Coit, 27 Hun (N'. v.), 448; Hines v. Bryan, 25 Gti. 6H6 ; Tompkins V. Tompkins, 17 N. J.Eq. 303 ; Myers v. Mvers,2 MeCord (S. C. ), 214; Ad- 'lisnn V. Howie, 2 Bland C'h. (lid.) 606; Kinsley v. The State, 98 Ind. 351 ; Burke f. Turner, 85 N. C. 500 ; Walling's Case, 35 N. ,T. Eq, 105. And then, the nroper eoursi' (if the parent is vo obtain autliority from till' court having jurisdiction to make such exjienditure as guardian. Watts v. I'tofle, HI Ala. 656; Hnase v. Koehscheid, Mmh ()6; Hey ward v. Cuthbert, 4 Des. •^'l' (S- C. ) 445. A step-father who was appointed guardian to Ids step-son, was allowed out of the stefi-soii's estate for maintenance of his step-son as well before as after the appointment. In re Besondy, 32 Minn. 38.".. In « happle v. Cooper, 13 M. & W. 252, an infant widow was held buund by her contract for the furnishing of the funeral of her husban, Bins. N. C. 198; liainsibrd v. FiMiwiok, Carter, 215 ; Grt'cne v. Chester, 2 Rolli., 144 ; Ive v. Chester, Cro. Jac. 560 ; WittingUani v. Hill, Cro. Jac. 494 ; Hands v. Slavey, 8 T. R. 578 ; Brnyslmw V. Katon, 7 Scott, 183 ; Cook v. Deaton, 3 C. & 1'. 114; Stuediiian v. Hose, Car. & M. 422 ; I'oters v. Fleniinc;, G M. & W. 46; Brooker v. Scott, 11 M. & \V. 67. With the exception of these two last- named cases, the j^eneral current of the decisions is th^ the question of neces- saries is for the jurv. a 19 Q. B. Div. 509, July 27, 1887. B L. K. b Ex. 90 ; L. li. 4 Ex. 32. t f'i Iff PiW <■ ii: ^ U - !' ; i 120 COMMENTARIES ON SALES. [book II. Lord Eshcr said that in Ryder v. Wombwell ^ the Court of Ex- chequer Chamber had before them cases which were inconsist- ent with the view taken in the court below, but, holding as they did that the goods supplied could not possibly be necessaries, there was no occasion for them to decide whether this evidence was relevant. A divisional court has since, in Barnes v. Toye,^ decided that the evidence is relevant, and I entirely agree with the decision.'^ ■iM r I 1 L. R. 4 Ex. 32. 2 13 Q. B. Div. 410. " .lohnston v. Marks, 19 Q. B. Div. at p. 511. And see t'urthor, the cases cited in the previous note, and Foster v. Red- grave, 4 Ex. 'A'), in note ; Bainbiidge v. Pickering, 2 VV. lilk, i;525; Braysiiaw v. Eaton, 5 Biug. N. ('. 231 ; 7 Scott, 183. In Jenner v. Walker, 19 E. T. N. s. 399, the decision in Ryder v. Wombwell, 3 Ex. 90, 4 Ex. 32, was very much re- marked on. Cockburn, C. J., there said : "I really cannot understand it, unless it means that it is to be a ([uestion of law for the judge to determine whether the articli^s (lisputed are or are not iieoessarii^s. If that is to bo taken to be law, of course I must act upon it; but I should certainly have preferred the law as it was previously understood to be, — that it was for the jury to say what articles were reasonably necessary with reference to the position of the defendant, the infant." Coleridge, Q. C. (counsel in the cas(^), in reply to the chief justice, said : " I am bound to say that I think Ryder v. Wombwell does in elfect come to what you have stated; nameiy, that it is not for the jury, but for the judge, to say whether an article is necessary. That, certainly, is what it came to, for tlio jury found the solitaires (shirt-fasteners) necessary, and the court directed judgment to be entered for the defendant. That, certainly, is quito con- trary to a long series of decided cases, and to the law as it has always been understood to be; but that is wliat it comes to." Cock ■ burn, C. J., assented to this ; and though he ex]>ressed himself as bound by the holding in Ryder v. Wombwell, he so emphatically ilissented from it that he left the question to the jury as to the articles being necessaries for which the action was brought ; and the jury's find- ing in th J matter agreeing with his own, the decision in Ryder v, Wombwell was not allowed to affect the case. The other point decided in Ryder v. Wombwell (supra) was that where an in- fant is sued for the price of goods supplied to him on crc "'t, eviilenco to prove that at the time the goods were supplied to him he was already sulRciently provided with articles of a similar description, is inadmis- sible, unless it is also shown that the |)laiii. titf had knowledgt; of tin- fact. In Riinics v.Toye, 13 ti. B. Div. 410, Ryder u.Wuiiib- well is dissented from on both puiiits ; and, as we have seen in the text, tliu holding in Barnes v. Toye was fully ap- proved and acted on in Johnston v. .Marks, 19 Q. B. Div. 509. In Barnes v. Tuve, 13 y. U. Div., at p. 412, Field, J., di'alt with both these (piestions. He says : "We have to deal with the (pie>tion whether an infant can bind hiniself for things which are necessaries, in the sense of belonging to the class of necessaries, and being suitable to his jrositiou iu life, if they are not really necessaries in the sense that he couhl do without them. In Ryder v. Wombwell, L. R. 3 Ex. 90, this point was decided in favor of the tniilcs- man ; for the court then held (Braiuufll, B., dissenting) that evidence to show that the infant was already sulliciently supplied was properly rejected, as it was nut pro- posed to show that the jdainiilf liad Icnowledge of that fact. If there had been no authority against this decision, 1 should have declined to go into tlie question whether it was right ; but there is such authority, both in former and iu modern times. In Bainbridgo v. Pirker- ing, 2 W. Blk. 132,5, and in Brayshaw v. Eaton, 5 Bing. N. C. 231, the (juestion of whether the defendant was already pro- vided with clothes was considered as jier- tinent to the incpiiry whether those which the jdaiutilf suiqAied were necessaries; and the learned judges who heard the case of Foster v. Redgrave, E. R. 4 Kx. 35, n. 8, couM not distinguish that ease from the two last mentioneymcnt of money ad- vanced for necessaries is voidable. Therefore, when the plain- for the supply of goods to him cannot be eiilorci'd iiulfss the articles be necessaries, tli(^ policy of the law being directed to the liiutcitioii of infants. In point of fact, a tnuk'.siiian dealing on credit with an infant iloes so at Ids peril, and mnst lose his iiiDUi'y (that is, if the infant does nut voluntarily pay him), unless he can [irove that the goods supplied were neces- saries for the infant according to his sta- tioa ill lif'. That being the law, we come to till' i|urstion, AVhat are necessaries ? To (liU'iiiiiiie this, we must take into account wiiat the infant had at the time of giving the onliT. For example, a watch may be nrimd fitcie in some cases a necessary ; mit if it tiu'ned out that the infant was already siijiplied with a watch or watches, the one ordered could not be a necessary. It is .said, however, that, even if regard must bi' had to the supply which the in- fant had at the time of the order, where it is in the tradesman's knowledge that the iiifiiit is amply supjilied, yet this is not the case if the tradesman is ignorant of that fact. If this contention were eor- ri'ct, the protection given to the infant would de]i('nil entirely on what might be the state of knowledge of the tradesman, and one elfcct would be to deprive the infant of the protection intended to be extended to him liy the law. In my view it is inuiiatfrial whether the plaintitfs did or did not know of the existing supply, just as it is immaterial whether they did c did not know that the defwidant was a minor. In this particular case, evidence as to the amount of clothes the defendant possessed at the time when tiie order re- lied on was given was adndssible ; and [euvering iioth the jioints badly decided in Uyder r. W'ombwell] the jury should hnvc hern Inid thai in arrivinij iit a condiisiun whether the (jondn supplied by the plain/ill's xeere uecessiiries or not, thei, should con- siikr irlidhrr the defendant urts already mijicienthj supplied." But vhiue it is palpable that the ar- ticles could not be necessaries, tlu^n there i^ no i|uestion for the jury, and the plain- tilf should bi. nonsuited'. This was the li'ildiug in Foster t>. Redgrave, L. 1{. 4 E.x. 35, n. 8, where the evidence showed that tlie infant was already provided with an aHiple wardrobe at the time the goods sued for were ordered and supplied, al- though the jilaintiff did not know the fict, and the rule for a nonsuit was made alisolute. The cases of Hainbridge v, Pickering, 2 W. Blk. 1325, and Bray- slww 1-. Katon, 7 Soott, 183, are in accord with this .lohling. See, further, Daltoo V. Gib, 7 Scott, 183; Rolfe v. Abbott, 6 C. & P. 286 ; Ursuston v. Newcomen, 6 N. & M. 454 ; Fold v. Fothergill, IVake, N. V. 229 ; Baker v. Keen, 2 Stark. 501. The decisions in this country harnioni/.e with the well-decided cases in England on both points which were misdecided in liyder v. Woinbwell, L. 1{. 3 Ex. 90; L. 11. 4 Ex. 32. On the point as to the fact of articles being necessaries being sub- ject to bo rebutted by showing that the infant had, at the time, asutlicieiit supply, that doctrine is as laid down by (Ireeiileaf. § 306, Gr. on Ev. And, although Eng- lish authorities are mainly cited for that position, numerous authorities iii this country sustain it. (See Hi vers v. (!rcgg, 5 Rich. E(p {>S. C. ) 274, where the law in the case is laid down in virtually the same language as has been used in the latest English cases, sncli as Johnston v. Marks, 19 C.). B. Div. 509; Barnes v. Toye, 13 Q. B. Div. 410, and the other cases ap- jiroved by these. In Rivers v. Gregg, Dargan, Ch., delivering the judgment of the court, said ; " He who deals with an infant is presumed to know of his infancy. He is bound, at his own i)eril, to make the iiKjuiry. It makes no dill'er- ence whether the inquiries result in correct information or the reverse. It is no excuse, if he honestly suitposed, from his a|ipeaiaiR'e or other circumstances, that the infant was an adult. The protection of this defenceless class of persons would be ver}" inadequate, if this piincii)le is not further extended. The only safe rule, for the security of infants and thidr estates, is, that he who credits the infant for necessaries, should be liound to know whether the infant has been supjdied with a sudiiient amount of those articles by the parent or guanlian, or from some other source. The coiisenueiice, if atiy other rule than this prevails, would be, that an infant's estate might be made liable for double the amount of necessuries that Were necessary for him. , . . The conclu- sion is, that an infant who is furnished with necessaries, or the means in cash cf jirocuring them, by his iiarent or guardian, or from any other source, is, primd facie, not liable for necessaries supplied by a stranger or tradesman on a credit ; and that the party who seeks to evade the operation of the rule, and bring his claim under an exception, must jirove the desti- tution and necessities of the infant." Rivers v. Gregg, 5 Rich. Eq. 279, 281. See, also, Connolly Ads. Hull, 3 McCord, 6; Edwards v. lliggins, 2 MeCord Ch. 21 ; Jones i'. Colvin, 1 McMullan, 14 ; i M » m I r ; ( i>(n ^\\\ '■ I i M^'rl' 122 COMMENTARIES ON SALES. [book II. tiff has advanced money to an infant partly in order to pay for necessaries, and he had by deed assigned to the plaintiff his reversionary interest as a security ; in an action brought against the infant on his attaining twenty-one, for an account of money advanced to him and expended on necessaries, and for repay- ment, and also claiming that the same might be declared to be a charge on his reversionary interest ; it was held, that, though the plaintiff was entitled to an account and an order for repay- ment, the deed was not binding on the infant, and the security could not be enforced.^ Johnson v. Lines, 6 Watts & S. 80 ; Walling V. Toll, 9 Johns. 141 ; Nicholson V. Wilborn, 13 On. 4(57, 474 ct scq. ; Nicholson v. Spencor, 11 Ga. 607. In this last-named case, the court say: "It is a general rule of law, that when a tradesman furnishes an infant with goods on credit, it is inouinbent on him to sliow that the articles furnished were neees- saries, according to the circumstances and condition of life of such inl'ant, before he can recover the price of the goods so furnished. Parents and guardians ai'e the best judges as to what are necessaries for their children and wards ; and whenever a tradesman furnislies them with articles, in addition to what their i)arent3 and guardians liave provided them, it is incumbent on such tradesman to show a necessity therefor, to entitle him to recover the price of the articles so furnished. The tradesman trusts the infant at his peril." N 'liolson V, Spencer, 11 Ga. at p. 611. T! s is the long and .thoroughly well- estalilished law of this country, and, as we have intimated, accords with the estab- lished law in Euglanil, temporarily broken in upon by the iiisa])pioved case of llvder 1'. Woinbwell, L. K. 3 Ex. 90; L. U. 4 Ex. 32. So, too, the law in this country agrees with that of England, that the question as to what are necessaries is a mixed one of law and fact. Thus, Green- leaf correctly lays down the law of both countries, that necessaries are such things as are useful and suitable to the party's state and coiulitiou in life, and not merely such as are ronuisite for bare subsistence. And of this tlie juiy are to judge, under the advice and control of the court. Gr. on Ev. § 365. The great mass of the English cases we have cited in this note sustain this statement of the law. The authorities in this country are to the same effect. Thus in Johnson v. Lines, 6 W. & S. 80, the court holds that what are necessaries is a question of mixed law and fact; but that an over-suj-.ply of goods otherwise proper ceases to be a supply of necessaries as to the excess, and that while the (juestion of extravagance belongs to the jury, where the sujiply has been so grossly profuse as to shock the sense, it is the business of the judge to say so as matter of law, and charge that there can be no recovery for more than was ubsoluiely necessary. So, in Merriam v. Cuniiiiiy- ham, 6.j iSIass. 40, liigtdow, J., said; "It is the well-settled rule that it is the province of the court to determine whether the articles sued for are within the class of necessaries, and if so, it is the proper duty of the jury to pass nyion the ([Ues- tions of the quantity, (juality, and tlieir adaptation to the condition and wants of the infant." See Bent v. Manning, 10 Vt. 225, 230; Stanton v. Willson, 3 Day (Conn.), 37, 56 ; Owings v. Trotter, 1 liilib (Ky.), 157 : Phel[)s i'. Worcester, II N. n. 51 ; Swift V. liarnett, 61 Mass. 436; 20 Am. Jur. 2S3 ; Heeler i-. Vmuig, 1 McCord, 572. See as to nccessuiies the late case of House u. Alexander (.v. D. 1885), 105 Lul. 109. 1 Martin v. Gale, 4 Ch. D. 428. See further, on the jioint involved in this case, Marlowf. i'ittiehl, 1 I'. Wnis. 558; Jeiiner V. Morris, 3 l)e G. F. & J. 45 ; Co. Litt. 171 «; In re Howarth, L. li. 8 Ch. 415, 418 ; Maddon v. White, 2 T. U. 15l», 161; Lumsden's Case, L. 1{. 4 Ch. 31. Not- withstanding the holding in some of tliese cases, it is now clear that all an infant's contracts are voidable, except tliuse for necessaries, for which, for his own protee- tion, ho is personally liable even during his minority. On the other hand, none of such contracts are, at connnon law, absolutely void, to the extent that they cannot be ratified by the infant on attain- ing full age. In many of the eases the term "void" means no more than that the infant's contract cannot be enforced with- out ratihcation. See Strsrin v.Wri^'lit,? On. 568 ; Bryan y. Walton, 1 4 < ia. 185; Williams V. Brown, 34 Me. 594 ; Baker v. l/'vett, 6 Mass. 87 ; Oliver v. Hondlet, 13 Mass. 237; Whitney v. Dutch, 14 Mass. 4r.7 ; Thompson v. Hamilton, 12 Pick. 425: PART I.] SALES WITH INFANTS. 123 III Irvine v. Irvine^ it was claimed that an infant's deed of real estate was void because of his infancy. But, the Supreme Court KJfierton v. Wolf, Grav, 453 ; McCoy v. HiiU'iiiaii, b Cow. 8-t; Alcirich i'. Ahnilmiu.s, Hill & I). Suiiii. (N. V.) 423 ; Statlbrd v. Koiif, !• Cow. t)"J6 ; Slocuin v. Hooker, 13 lJ:iil>. Mti; Wheatoii i;. East, 6 Yurg. 41; liaill'oid I'. Wustcott, 1 Dess. (S. C.) 596. But wlicii; gooils art) sold to an infant on iTi'ilit, and ho avails himself of his infancy to avoid jKiyuiunt, the vendor may reelaiu) till.' gdods, us having never parted with the |iruiii'ity in them. Badger v, Phinney, 15 .Mass. 359. Where an Infant bought a horse, fur which he paid $75 in cash and ffi\ii a mortgage for the balance, and then avuiiliMl the mortgage, it was held that the seller had a riglit to retake the horse — whli.'h, ill the mean time, had been injured tiv the infant — witliout refunding the 875. Heath v. West, 28 N. H. 101. See Liiey V. Bundy, 'J N. H. 298 ; Hunt v. Silk, 5 Ka.st,44'J ; Holmes v. Blagg,8 Taunt. 508; Coriiet). Overton, 10 Bing. 252; Farr V. Sumner, 12 Vt. 28; Fitts v. Hall, 8 N. II. 441 ; Uoberts V. Wiggin, 1 N. H. 71 j Weed V. lieede, 21 Vt. 500. Where an infant rescinds a contract made by him for the sale of jiersonal property, and seeks to recliiini the jiroperty or its value, he must restore, ur oiler to restore, the consideration received, before he can sustain an action for the property sold. Carru. Clough,26 N. H. 2S0; Ketehen v. Lee, 11 Paige, 107; Hubbard c. Cummings, 1 Greenl. 13 ; Tuft r. Pike, 14 Vt. 409 ; Butiington v. Uerrish, 15 Mass. 156 ; Smith v. Evans, 5 Humph. 70 ; Holmes y. Blogg, 8 Taunt. 508 ; lioberts v. Wiggin, 1 N. H. 73 ; liouf V. Stafford, 7 Cow. 182 ; Smith v. Evans, 24 Humph. (Tenn.) 70. Where an iiiliuit had written her name on the back of stock-certificates, by means of which her guardian sold the stock, it was held that she could avoid the sale on the j,Mound of infancy, even if she had signed lii'r name to enable her guarrinciple of the obligations which niigiit be incmred by infants ; the other ease involved other principles. The cases which were referred to had, he thought, determined the ipics- tion against the claimant. Nothing could be more strong than what was said by Lord Kenyon in the case of Wilson v. Kearse, 2 Peake, 196. The case of Holn.es V. Blogg, 8 Taunt. 508, was equally decisive. He thought that the claim of the appellant was rightly rejeeted, and that the appeal must be dismissed." We find that this case is also repoited in 8 De G. M. & G. 254, where Turner, L. J., seems to have used stronger language than as reported in 4 W. li. 305. He is there thus reported : " If an infant buys an article which is not a necessary, he cannot PART I.] SALES WITH INFANTS. 125 i,d in That, iliuii, if the it by IllULT, olllit mUUil ;Ut to rtiiuld lotlier bci'U Ik t'lii; ill tie- f the il by other Ifoi'i-etl icouU id by ,1111 I'- ilii.es liiallv |iin of and ^Ve 8l)e .. .1., ■ than there Ivs an anuot has long been settled that the deed of an infant, being an ex- ecuted contract, ia only voidable at his election ; that it is not 1)0 compelleil to pny for it ; but if ho Joes jiay for it iluiiiif,' liis minority he (.'aiiiiut on" attaiiiiiif; his nmjority recover the money liaek." Turner, L. J., is siiiiiliirly iviunU'd ill '2') L. J. M. 'Mi (a. I). l,sr)ii). Tlio taso of Corpo v. Overton, Id Bing. •152, makes ii distinction whiuli, while it liMVes the lioiding in that case not incoii- iiistent witii the iietual holding in Holmes V. Blogi;, 8 Taunt. 508, and in K>' par/i: Taylor [sK/ifii), is neitiier in accord with till' i-'illii tlirii/i'itdi of Wilson V. Kearse, L' Peake, lUti, nor with the dicta of Lord Kenyoii ill that case ; of Lord Mtinslield ill Druiy v. Drury, 2 Eden, 38, 71 ; of (lihlis, C. .1., as c|iioted by us in Holmes V. iiiogg ; nor with that of Turner, L. J., ill ly jiiiiii: Taylor (supra). In C'orjie v. OvL'itoii, a minor paid iiyoO additional as tiie ijoiisideiiition fur a partnership inter- est iu the ili'feiidant's business. The niinor, liaviiig rescinded the agreement, brought an action fur hisdejiosit. Alderson, J., held tiiat the iilaiiitiir could recover back his (li'posit, because it was obtained by fraud. Tlie court held that, ignoring fraud, the jilaiiitilf was still entitled to recover back tiie (lc|iosit, as, unlike the case of Holmes V. Blogg, 8 Taunt. 508, there was a total faihiie of' consideration ; the minor hav- ing taken no benefit under the contract. t'orpe V. Overton, 10 Hiiig. 252, is distin- guishable from Kc parte Taylor, 8 De 0. M. k Vr. 2.')4, on the same ground. But it must be considered as not only dill'er- ing from the dirta wo have named, but as overruling Wilson v. Kearse, 2 Peake, I'M. Jii tiiat case, as in C'orpe v. Overton, a (ji'jiosit was made on a consideration wliicli totally failed, the minor liavliig taken r.o bcncHt under the contract ; ami Lord Keiiyou held that the infant could not recover back his deposit. In Hohiies V. Bloc;-, 7 Taunt. 511, Gibbs, C, J., liiul this iciiKirk : " What is the point here ? Tliut an infant, having paid money on a valiialiie consideration, and having par- tially enjoyed the consideration, seeks to leci'ivc it iiack." There is, however, some authority in F.uj,'land diri'ctly opposed to the dicta of Lords Mansfield" and Kenyon, which es- eaped their notice. Thus it is laid down in Viner's Ab. tit. Ei)fant, D, 28,— "Money paid by an infant with his own Imnds ill consideration of an horse agreed to ho .sold him for that and a further sum, IS but voidable, to be recovered again by an action of account." And in Austin v. fiervas. Hob. 77, pi. 98, it was moved that the consideration of the money paid in hand by the plaintiff, being an infant, was void ; to which Ilobart, C. J., an- swered : "That becaiLse it was delivered by his own hands, it was but voidable, to be recovered again by an action of ac- count." Treating, then, the nisi priiis ca.se of Wil.son v. Kearse, 2 Peake, lOtJ, as being overruled, and the dicta of Lords Jlanstiidd, Kenyon, and the otUers re|ieat- ing them, as not having been stated with sulhciont care, we would, from the English authorities, tleduce the rules ; — 1. Where an iiifiint has paid money under a contract, from which lie has do- lived no benefit, lu( may, on resciiiding the contract, n^cover back his money as on a contract tlie consideration for which has entirely failed. Viner's Ab. tit. Enfunt, I). 28 ; Austin v. t G. 254 ; 4 W. W. 305 ; 25 L. J. 15. .'56. See, us to the same princ'iple of ]iartial failure of con.sideiiition, Ex imrtc Barrell, Ii. 1!. 10 Ch. 512 ; Thomas v. P.rown, 1 (,). B. Div. 714; Blackburn i;. Smith, 2 Ex. 783; Hunt V. Silk, 5 East, 449 ; Haiiior v. Graves, 15 C. B. 667 ; C'hapiiian v. Mor- ton, 11 M. & W. 534. See also Moses y. Stevens, 2 Pii'k. 332 ; Guliney v. Haydcn, 110 Ma,ss. 137; Breed v. Judd, 1 Gray, 455. The law in this country is thoroughly established in accordance with the rules we have deduced as the ratio decidendi of the Engli.sh cases, as a wliole. There are a few old ca.ses where the court.s, like the mass of the text-writers, were led astray U i * ':.. i;' 1 ■i >' Mil ji . If, n ti ( 126 COMMENTARIES ON SALES. [book 11. void. It operates to transmit the' title. And there are some cases in which such a deed is held to be not even voidiil)lo. Tiuy are those in which the infant, by makinj? the convoyanco, does only what the law would liave compelled him to do. * Whctlior this was such a deed need not bo considered, for concodini? tliat it was not, clearly it was not void." And the court sustained tlio following? instructions in the court below : " The (piestion here is not whether there has been an avoidance. The defence is that the deed has been ratified by the plaintiff. I am of the opinion that the ratification should be, if not e(iually solemn, of a clear and unequivocal character, showing the intention of the party to confirm the deed. An avoidance may be by a deed to a tiiinl party or, as held in this country, in other ways. JJut the deed from the plaintiff to the defendant was not void. It was simply voidable, and passed the title absolutely until by some ade(|uat(.' act he afiirmed it. The question, is, has it been disallirmud (ir ratified by the plaintiff since ho came of age? All the facts in proof, such as leasing part of the property (from liis grantee), remaining in the vicinity a long time without asserting his chum while valuable improvements were b( ' ^ put on the property, are to be considered by the jury in decid. x whether there has l)oen a ratification by the plaintifl:' ; but mere acquiescence does not amount to a ratification. The* authorities are somewhat conflict- ing as to what is necessary to constitute an avoidance. Lord Lyndhurst was of opinion that a deed was necessary to avoid a deed given wliilc under age. I think that this doctrine is perhaps sound, and ought to have been held in this country ; but it has been held in this country that an infant may avoid his deed by by the dicta in the English cases to which we have referred, but those cases have nil been expressly overruled, and are with- out authority. One of them is Harney v. Owen, 4 Hlackf. (Ind.) 336, where it was lield that a minor who rescinded a con- tract for his services, could not recover for the portion of the time in which the ser- vices were rendered. The same doctrine was held in New Hampshire, in Weeks V. Leif;hton, 5 N. H. 343 ; and in New York, in McCoy v. Huffman, 8 Cow. 84. In Indiana, in Dallas v. Hollingsworth, 3 Ind. 537, Harney v. Owen, 4 Blackf. 336, was overruled. In New Hampshire, Weeks v, Leighton, 5 N. H. 343, was ex- pressly overruled ; and in New York, McCoy V. Hulfman, 8 Cow. 84, has been repeatedly overruled. See Millard v. Hew- lett, 19 Wend. 301 ; Medbury v. Watrous, 7 Hill, 110, and Whitmarsh v. Hall, 3 Den. 375. With the overruling of these cases the American law is in entire accoid with the rules wo have laid down. See Willis r. Twambly, 13 Mass. 204 ; Vent v. ih^mi IS) Pick. 572; Breed v. Judd, 1 Cliav, 455 ; CJaifnev v. Hayden, 110 Mass. 137; Judkins i;. Walker, 17 Me. 38 ; Tlioiiias r. Dike, 11 Vt. 273; Peters v. i.onl, 18 Conn. 337 ; Wheatley v. Miscal, ;') I'oit. (Ind.) 142; Robinson y. Weeks. .50 .Mo. 102 ; Derocher v. Continental .Mills, iiS Me. 217 ; Kiley v. Mallorv, 33 Cduii. 201 ; Shurtleff I". Millard, 12 R. I. 272 ; Hmis* V. Alexander, 105 Ind. 100. See ftUo Grace v. Hale, 2 Humph. (Teiiii.) 27; Williams v. Norris, 1 Litt. (Ky.)157; Smith 17. Evans, 5 Humph. (Tenn.) 70 ; Roberts v. Wiggins, 1 N. H. 73 ; Hainhiet V. Hamblet, 6 N. H. 337 ; Fitts r. Hall, 9 N. H. 441 ; Co. Litt. 51 b. ; 4 Cr. Dig. 142. ^ Zoijch V. Parsons, 3 Burr. 1794. TART I.] SALES WITH INFANTS. 127 goincr upon the land, or by brinjBfinjjf suit, etc. It is tho act of avokluncc, and not that of tlio ratification, wliicli the law rcMiuircs to 1)0 equally solemn with the conveyance," * \Vhcro nn infant is sued for the i,:ice of ^onda supplied to hiiii on credit, he may, for the pur|)08e of showing that they were not necessaries, j?ive evidence that, when the order was given, he was aUeady sutViciently supplied with goods of a similar descrip- tion, and it is innnaterial whether the plaintiff did or did not know of the existing supply.'* Where a j)romise of marriage was made by the defendant after ho became twenty-one years of age, who had been engaged to the |)laiiitiff during his infancy, to be married to her; the judge left it to ilic jury to say whether the promise was a new one or a ratifi- cation of the old promise, and the jury having found that it was a new promise ; the court, having held that it was a question of intention whether the defendant intended to make a new promise or to atlinn the old one, and that it was j)roi)erly left to the jury as a question of fact, sustained the verdict.^ L. transferred fifty shares in a company into the name of II., an infant, not known by him to be such, wIjo was also the tians- kix'i of a large number of other shares in the same company. H. .as registered as the holder. H. attained twenty-one more than live months before the winding-up order, and in the interval, transferred some of the other shares. He was settled on the list of contributories for the remaining shares, and did not, at first, raise tlie defence of his having been an infant, but, four months afterwards, took out a summons to have his name taken off the list on that ground. The official liquidator then api»lied to have ' On iiii infant's ratification of Ilia void- abli' cuntiiict, see Cresinger v. Tho Lessee oi Wilcli, 15 Ohio, 193; Drake v. llainsey, 5 Ohio, '251 ; Ferguson v. Bell, 17 Mo. H17; lioslwitk i'. Atkins, 3 Conist. 53 ; Wlieaton r. Kast, 5 Yorf;. 41-02; Wallace's Lessee ('. Servis, 4 Hiirrington, 7'>; Hart- iiiiin V. Keiulall, 4 Ind. 405 ; Cohen v. AnnstroMf;, 1 M. k S. 724 ; Williams v. Moor, 11 M. & W. 256; Harris v. Wall, 1 Ex. -JOti; Howe V. Hdiiwood, L. K. 4 Q. H. 1: Miueor.l v. O.slwrne, 1 C. V. Div. 568; Hartley r. Wharton, 11 A.& K. 934; Hunt V. .Massey, 5 li. & Ad. 902 ; Cole v. Saxby, 3 Esp. 160; Tanner v. Smart, 6 B. & C. 603; Baylis v. Dn.ely, 3 M. & S. 477; Cornwall v. Hawkins, 41 L. J. C. 435; Stokes V. Brown, 3 Pinney, 311. ■■' Barnes v. Toye, 13 Q. B. D. 410. And see Biirghart v. Angerstein, 6 C. & P. 690j Ford I'. Fothergill, 1 Esp. 211; Cook v. Deaton, 3 C. & P. 114; Steedman v. Rose, Car. & M. 422 ; Braysbaw v. Eaton, 5 Hing. N. C. 231; Dajton v. Gibb, 5 lUng. N. C. 198 ; Baiiibridge v. Pickerini,', 2 W. Blk. 1325. And see p. 120, ante, and note 1, , 8 Northcote v. Doughty, 4 C. P. D. 385. In this case tho Infants' Relief Act, 1874, was relied on, and it was admitted that the statute applies to contracts of marriage, anil tliat, tliereforc, if the prom- ise amounted to a ratification merely, and not to a new promise, it was not binding, and that the (piestiou was well left to the jury. Tlie following cases bear on the point : Coxhead v. MuUis, 3 C. P. Div. 439 : Maccord v. Osborne, 1 C. P. Div. 568; Harris y. Wall, 1 Ex.122; Hutton r. Mansell, 3 Salk. 16; Thrupp v. Fielder, 2 Esp. 627; Cole v. Cattingliam. 8 C. & P. 75 ; Harvey v, Johnston, 6 C. B. 295 ; 6 D. & L. 120 ; Carter v. Scargill, L. R. 10 Q. B. 564. ):i 128 COMMENTARIES ON SALES. [book II. the name of L. placed on the list instead of that of H. in respect of tlic fifty shares. It was hold, a transfer to an infant being not void but only voidable, that, affirming the decision of the Master of the Rolls, II. must be held to have alfirmcd the transaction after he came of age, and that the application must be rel'iisod.i But where shares had been transferred to an infant, and his name had been placed on the register, the company being igP'Tuut of the fact of his infancy, and he did not come of age until after the winding up, it was held, affirming the judgment of Stuart, V. C, tiiat the official liquidator might refuse to accept him as a shareholder, although after coming of ago he was willing to confirm the transfer.^ To the same effect is Castello's case J But those questions arise under the 131sfc section of the Knir- lish Companies' Act, rendering the transaction with an infant void, because there must be a transferee on the register wlio ean be made liable in respect to the shares transferred. This does not affect the general doctrine that an infant's contract is not void but voidable, subject to acceptance or rejection by the infant on his coming of age, and binding on the other party to the con- tract or not, at the election of the infant.'' Still, even in these Companies' cases, where, after the infant has come of age, he acquiesces in the contract, and the com- pany are willing, the infant then becomes bound, because it is then, in effect, a new contract between the company and one of ago. Thus, in Ebbett's case ^ an infant was held bound by his aciiiii- cscencc, where, on his application, shares were allotted to him, which, subsequent to his coming of age, he dealt with as his own.'' 1 Blakcly Onlititiiice Co., Tii re TjUIiis- (Icn's Casc,"L. R. 4 <.'h. Ap. 31. In this case it was licld tliat an infant's contract is not void, but voidablo nicioly, and that a translor ot" stock to an infant is not, ah initio, a nullity. See, as explained liy tliis case, Curtis's Case, L. K. 6 Kij. 4^ti) ; Showi'irs Case, L. U. 2 Cli. 387; Capjiers Case, L. ii. 3 Ch. 458 ; Mann's Case, J/i. 4.')9, II.; Hart's Case, I,. R. 6 K(i. [,U ; Roid'a Case, 24 Beav. 318 ; Litchfield's Case, 2 DeC. k S. 141. * Syinon's Case, In ir, Asiatic Banking Co., L. H. 5 Ch. Ap. 298. See, in addi- tion to the eases v'ited in the previous note, Lunisden's Case, L. R. 4 Ch. 31; Parson's Case, L. U, 8 Ei]. C>r>6; Wilson's Case, L. R. 8 K(i. 240; Henessey's Case, 3 De O. k Sin. li»l. And see otlicr case, post, Part VI., on Sales of Shares of Stock. » L. R. 8 Eq. 504. * Oliver v. Houdlet, 13 Mass. 237; Xiglitinf^ale v. AVitliington, ir> Jlass. 2"'.'; AVorcestev ?'. Eaton, 13 .Mass. ',]7\: V;in Bianier v. Cooper, 2 .lohns. .!79; Ihirtiicss V. Thompson, 5 .lohns. 1a. 5«8; Brvan v. \V;ilMn. U Ca. 185; Baker v. l.m-i'tt, (i M:iss. IS; iSlocuni V. Hooker, 13 l*>arb. OOd 6 L. II. f, Ch. A]). 302. " Such an election must, liowcvcr, not be made by an infant ignorant of liisli'!;:ii position, and can only be made liy oin' cognizant of his rights. Tucker r. Siiiipr, McCIel. 430; 13 Price, G07; iiiitriiko i'. Broadhurst, 1 Ves. .Ir. 17;') ; 3 ISro. ('. C. 88 ; Wlii.stler v. Webster, 2 Ves. .Ir. 3tw; Wake J). Wake, 1 Ves. ,Ir. 33.'') ; Aniicrr. Pope, 2 Ves. Sen. 523; Tomkvn.'^i'. I-n'- broke, Ih. 592, 593; Harvev V. Asliliv, 3 Atk. fil5; Pawlett -. Delaval, 2 Ves. Sen. 670; Duke of Northniiibirlnnd f. Aylesford, Ambl. 540; Stratford u. I'oweli, il PART I.] SALES WITH INFANTS. 128 lUit, wlien, as in "VN -jston's case,^ and as in many other cases,'* tlic sliaros are bought by an adult and registered in the name of an infant, the adult is liable to be placed on the list as a contributor. The English act (9 Geo. 4, c. li, s. 5.), like the acts in this country, enacts that the "promise or r<< t'li cation " of the con- tract by an infant must be made by b'm in v riting after attaining full age. In Rowe v. Flopwood,'^ goods, being wines, for which ho was not liable as necessaries, having been supplied by tbo lilaintitf to the defenda^.t whilst the defendant was an infant ; when ho came of age an account with the items and prices was sul)niitte(l to him, at the foot of which he signed the following : '•riiiticulars of account to the end of 18G7, amounting to .£162 lis. (.)-/., 1 ecrtify to be correct and satisfactory." Tijc Court of Queen's Bench held, that this did riot amount to a recognition of the debt as an existing liability so as to be a ratification of the contract witbin tlie statute. Cockburn, in delivering judgment, hiid down tlic following i)rinciplcs as governing the case : " The statute requires a ratification in writing of a debt incurred by a jiorson under age, and the written document necessary as the foundation of an action against the debtor after he has attained his majority is for the court and not for the jury. Therefore, it is for us to say whether this written document is a suflicient ratilieation. 1 think it is not ; for 1 entirely concur in the view adopted by the Court of Exchequer in Harris ?'. Wall,* that in order to be a ratification there must be a recognition by the debt- or, after bo has attained his majority, of the debt as a l)in(ling dolit upon iiim. Is this document such as to amount to a recog- niticii of an existing liability ? I do not think that it is. "What it comes to is this : An account is submitted to the defendant after he is of full age, which contains a statement of goods supplied h ' H ] B;ill >^ B. 24; fJi.l.linss r. Oiildiiigs, 3 l!iis>. -Jll; Curtis v. I'littoii, 11 S. & U. 30,-i; liiuclvr. Miin!;.irit\, 3 rfiiii. VIS; Onliiiiiiy r. Wliony, 1 ikil. (S. ('.) 28; NiMiis ('. Viiiice, 3 Hich. Ifi4. Where an int'iiiit elcets to allir.ii ii coiitrnot, lie imist iitlinii it IS II wli(il( . He cannot nllirni it in ]iait and [vvoid it in part. Bijjilow v. Kiniu'V, 3 Vt. 3ri3 ; Morrill v. Aden, 19 Vt. rid,"). If h« retain property purchased undnr a cnn'raet, lie cannot under a jdea "f in- l^iiay avoid paving lor it. Henry v. Itoot, 33 N. Y. n-Jti ; Forsyth v. Hastings, 27 »t. 04(1; Bartludoniew v. Finnen>on', 17 Barb. 4'JS; Strain v. Wright, 7 Ca. i>C.S: Hiiii(-y r. Bainberger, 11 B. Mon. (Ky.) 113; lliU t,. Anderson, 13 Miss. 21fi ; VOL. 1. Kitchen v. Lee, 11 Paige, 10"; Hillyor i>. Barnett, 3 Edw. 222; Oltman v. Mack, 3 Sandf. Cli. 431 ; Kilgore v. Jortlan, 17 Te.\. 341. Set? as to acts of ratilieation, Kninioiis i>. Murray, I'i N. 11. 38.1; Kline V. Ueebe, () Conn. 4U4 ; Winiheiley v. Jones, 1 (ill. Dec. 91; llartinan v. Ken- dall, 4 Ind. 403; Boody i-. McKeimev, 23 Me. .517; Levering r. lleiglie, 2 Md.' Cii. 81; Willianiii i-. Mo1.ee, 7 N. .1. K.j. .lOO; AVheaton v. Kast, 5 Vcrg. 41; Summers v. Wilson, 2 Coldw. 4(i9. 1 L. K. 5 Cii. Ap. 614. '^ Capjier's Case, L. U. 3 Ch. Ap. 458 ; Mann's Case, fb. 459, n. And many other cases to tho .-.anK cfl'oct. 8 I.. Ii. 4 Q. B. 1. « 1 Ex. 122. 130 COMMENTARIES ON SALES. [book II. ■ !■ i: ml during his infancy ; he is asked to sign it, and he put his signa- ture to the words, ' I certify the account to be correct and satis- factory.' I understand these words to mean that the items are properly set out, and the suras charged in respect of these items satisfactory. I do not think the words mean more than tliat. There ought to be, at least on the part of the debtor, an admission of an existing liability, and we ought not to strain tlie meaning of the words in the document signed by the debtor, so as to defeat the operation of the statute passed for his protection." The otlicr judges concurred.^ In Maynard v. Eaton,^ E. through his broker purchased shares, and had them placed in the name of his son, an infant; the seller not being aware of the infancy. Soon afterwards, the company was wound up voluntarily, and the infant brought an action, by his next friend, against the plaintiff, who was an auditor of the company, charging him v;ith fraud in selling the sliaros, knowing that the company was in an insolvent condition, and claiming damages. There was no allegation of infancy, and the action was not sought to be sustained on that ground. The action was compromised on the terms that all charges of fraud should be withdrawn, and that the purchase-money should be repaid the 1 And see Hartley u. Wharton, IT A. & E. 934 ; Mawsoii v.' Beaiie, 10 Kx. 206 ; Hunt V. Massey, 5 B. & Ad. 902 ; Lohb v. Stanley, 5 Q. B. 574 ; Williams v. Moor, 11 M. & W. 256 ; Cohen v. Armstrong, 1 M. & Scl. 724 ; Whippy v. Hillary, 3 B. 6 Ad. 399 ; Hart v. I'rendergast, 14 M. & W. 741 ; Hinely i>. Margarity, 3 Barr, 428 ; Martin v. Mayo, 10 Maass, 1J7 ; Oay v. Ballow, 4 Wend. 403 ; Miliudi-. Howlott, 19 lb. 301 ; Thon)j)son v. Lay, 4 Tick. 48 ; Pearco v. Tobey, 5 Met. 168 ; Everson v. Campbell, 17 Wend. 419. The authorities in this country are very generally in accord with the holding in Rowe V. Hopwood, L. U. i }. B. 1. See the authorities cited in the previous note, and see Smith f. Mayo, 9 Muss. 62, 64 ; Whitney v. Dutch, 14 Mass. 457, 460; Ford V. Phillips, 1 Pick. 202 ; Barnaby v. Barnabv, 1 Pick. 221, 223 ; Thomjjson v. Lay, 4' Pick. 48 ; Wilcox r. Hoath, 12 Conn. 550 ; Goodsell v. Myers, 3 Wend. 479 ; Procter v. Sears, 4 Allen, 95 ; Kdger- ley V. Shaw, 25 N. H. 514; Taft v. Ser- geant, 18 Barb. 320 ; Ackerman v. Kunyon, 1 Hilt. (N. Y.) 169 ; Alexander v. Hutcbe- son, 2 Hawks (N. C), 535 ; Martin v. By- rom, Dudley (Ga.), 203 ; Armfield v. Tate, 7 Ired. L. 258 ; Ueed v. Boshenrs, 4 Sneed, 118; Buckner v. Smith, 1 Wash. (Va.) 296 ; Stokes v. Brown, 4 Chand. (Wis.) 39; Burdett v. Williams, 30 Fed. Rep. 697 ; Baker v. Kennett, 54 Mo. 82. In this last cited case the court said ; "Tlio rule is well settled, that, to constitute a rat- ilication of an infant's contract, a imie ac- knowledgment that the debt existed or that the contract was made is nut sulli- cient. There need not be a pivcise iiml formal promise, but there must be a iliiect and express confirmation, and a siibstaii- tial promise to pay the debt or fiillil the contract. The promise must be wvmI' with a knowledge of the facts, with a ili-liberate purpose of assuming a liability fnmi whiih he knows he is discharged by law." Ami see Highley w. Barron, 49 Mo. 103 ; Owens V. Phelps, 95 N. C. 286 ; Howard c. Simp- kins, 70 Ga. 322 ; Petty o. Robeits, 7 Hush (Ky.), 410; Hobinson v. lloskins, 14 Bush, 393 ; Phili>ot v. Sandwidi Maiiuf. Co., 18 Neb. 54 ; Necker v. Koi-lin, 21 Neb. 559. An infant cannot n'taiii ptr- sonal property purchased, and pli;iil in- fancy as a defence to a note givti I'nr it. See prior cases, and see Deliiiio v. lilakc, 11 Wend. 85 ; Jones v. I'lid'uix Ban!;, 4 Seld. 228; Kitchen v. Lee, 11 I'ai^ 107. See, as to his mere acknowli'i!;;nii'iit, Bennett v. Calkim, 52 Conn. 1, not amounting to a promise. In Owen r. Long, 112 Mass. 403, an infant's ratilica- tion of his signing a promissory note as surety was held binding. » L. R. 9 Ch. App. 414. PAR5 infar the ] panv Avas t not a the ill in res tiif M-i fi'oin ] Ills d( . infanci and tli( conceal the con for a re, was the bill was In Oc tliem tr; put on tl to be M'oi and Jio di JanuaiT, On rcccip Jiqiiidato but, aftor\ ^Jie re(jiio, him, in co| call, f,) „s ou-iior of t ''is name affirinimr t '•^pi'il, KS7] the sliai-os ; 0^ conti'ilji, r L, rr r, n -■■ '■ \ oil ^•'«''. '-. i;. r c '''I'l"iiilfin|, |,v ;""r-c,..;, FhV/V'"'''"Il's '■ itl(Wr(r Q 'n ^"8; Peterson PART I.] SALES WITH INFANTS. 181 infant. The liquidators, on discovering the infancy, substituted the name of the plaintiff for his, as a contributory to the com- pany. Tlie plaintiff then filed a bill against E., charging that he was the real purchaser of the shares, and that the plaintiff was not aware of that fact when he entered into the compromise with tlic infant, and claiming to be indemnified by E. against all loss in respect of the transaction. Malins, V, C, held that the plain- tiff was entitled to be indemnified, and that he was not precluded from maintaining the suit by the compromise with the infant, llis decision was, however, reversed on appeal, the question of infancy having had nothing to do with the compromised suit; and the infant having sued by his next friend, there was neither concealment of truth nor suggestion of what was false relating to tlic compromise mat' er ; the action having been simply brought for a rescission of the contract, and whether the beneficial owner was the fatlier or the son was wholly irrelevant. The plaintiff's bill was dismissed. In October, 1865, C, purchased shares in a company, and had them transferred to B. as a trustee for him, and B.'s name was put on the register. In March, 1866, the company was ordered to l)c wound up. At the time of the transfer B. was an infant, and he did not come of age till September, 1867. In December, 1867, B.'s name was settled on the list of contributories ; and in January, 1808, a call was made, notice of which was sent to B. On receipt of the notice, B. repudiated the shares, and the oflicial liquidator took out a summons to remove his name from the list, but, afterwards, abandoned the summons. In April, 1871, B., at the request of the official liquidator, wrote a letter authorizing him, in consideration of his not proceeding against B. under the call, to use B.'s name in taking proceedings against C, the real owner of the shares. Afterwards B. took out a summons to have his name removed from the list of contributories ; it was held, affirminir the decision of Lord Romilly, M. R., that the letter of April, l!S71, did not operate as a retraction of B.'s repudiation of the shares ; and that his name must be removed from the list of contributories.^ ! I rv (■^i ' III ri' Odiitrai't Corporation, Bakrr's Cast', L. i;. 7 Ch. A]\ 115. As to nets of rppudiiitidii liy nil infnnt, see Cork & Hnii- Jon l!v. C.i. r. Cuzenove, 10 Q. B. 935 ; Diihliii & Wi.'klow Ry. Co. >.'. Black, 8 Ex. 181 ; Mitohfll's Case', L. R. 9 Eq. 363 ; Ebhctt's Crisi-, L. U. 5Ch. 302; Holiiiea I', lildm-, 8 Taunt. 35 ; Tucker v. More- l^n.l, 1(1 IVt. 58 ; I'itclieru. Lycock, 7 Ind. 398 ; IViuisou v. Laik, 24 Mo. 641 ; Jack- son V. Carpenter, 11 Johns. 539 ; Jackson w.'Hurcliin, 14. Johns, 124 ; Hoyle v. Stone, 2 Dfv. & n. L. 3'.'0 ; Cresiiijrt'r v. VVflch, 15 t)hio, 156 ; McCiuu v. Marsliall, 7 Humjih. 121 ; White v. Flora, 2 Overt. (Teiin.) 426; H.-ath v. West, 26 N. H. 191 ; Shipnian v. Haton, 17 Conn. 481 ; Walker v. Ellis, 12 111. 470 ; Mo-ie v. Abernathv, 7 Hlnckf. 442 ; Can v. Clough, 26 N. H.'230 i Grace v. Hale, 2 Humph. 132 COMMENTARIES ON SALES. [book II. G., a shareholder in a limited company, transferred his shares to A., an infant, more than a year before the company was wound up. A. transferred to D., also an infant, who transferred to B. :hrce months before th3 winding up. The transfers were all re- gistered. B., who was sui juris at the date of the transfer, after- wards became bankrupt. It was claimed, tliat, under section 38 of the English Companies' Act, 1862, B. having become bankrupt, G. was liable as a shareholder ; and the court so held, and that he continued liable as a member till B.'s transfer was registered, and must be placed on the list of coutributories as a past shareholder.' The question of the liability of an agent who purchased shares of stock and furnished the name of one who was afterwards ascer- tained to be an infant, was elaborately examined in Mcrrv v. Nickalls.2 The decision was on the basis that, having given the name of an infant, who was not liable, he had, in fact, given no name at all, and he was himself liable as principal ; and this, although the time limited by the rules of the stock exchange for objecting to a proposed transferee had expired without any such objections having been made.^ Infancy is a bar to an action by an owner against his super- cargo for breach of instructions ; but not to an action of trover for the goods. Still, however, infancy may be given iu evidence 27. In Binghnm v. Barley, 55 Tex. 281, the court said : " We think tlie jiropor rule that must prevail, in liarniony with the de- cisions and all oircunistauces in the contlict of authority upon the subject of the rights and duties of the minor, who, after coming of age, would avoid his deed made during his miiioritj', is this : that he shall be held to do so within a reasonable time ; that his silence or accjuiescence beyond such reas- onable time should conclude him from dis- affirming it, and that what is a reasonable time is such a period as in view of the at- tending facts would rebut any presump- tion of an inteiuled disatfirinance. Tho silence or non-claim of the minor for a considerable length of time, though less than the period of limitation, may as eft'cc- tually prove his allirmance or ratification in connection with the circumstances of the case, as his express acts or declarations to that clVect." See further, as to infant's avoidance of his contracts, Hoyt v, Wil- kinson, 57 Vt. 404 ; Price v. Furman, 27 Vt. 268 ; Person v. Chase, 37 Vt. 648 ; Abell V. Warren, 42 Vt. 720 ; Willis v. Twambly, 13 Mass. 204 ; Betts j;. Carroll, 6 Mo. App. 518 ; Heath v. West, 28 N. H. 108 ; Cogley v. Cushman, 16 Minn. 402 ; Skiimer v. Maxwell, 66 N. C. 45 ; Kitchen V. Lee, 11 Paige, Ch. 108 ; Kerr v. Bell, 44 Mo. 120 ; Towle v. Dresser, 73 Me. 252 ; Bryant v. Pottinger, 6 Bush (Ky.), 473; House V. Alexander, 105 Ind. lO'J ; Dill v. Bowen, 54 Ind. 204 ; Carpenter v. Cariwn- ter, 45 Ind. 142 ; Hayes v. Parker, 41 X. J. Eq. 630 ; St. Louis, &c. liy. v. Higgins, 44 Ark. 2'J3 ; Stitt' i-. Keith, 143 Mass. 224 ; McCarthy v. Henderson, l:i3 Mass. 310 ; Page v. iMorse, 128 Mass. ItH ; M- nett V. McLauchlin, 13 111. A])]). W\ Hall V. Butterlield, 59 N. H. ;i.")4 ; liart. lett !'. Bailey, 59 N. H. 408 ; Braiitlev v. Wolt; 60 Miss. 420. 1 III re Contract Corporation, Oooch'j Case, L. R. 14 Kq. 454. ^ L. R. 7 Ch. Ap. 733. ^ In this case the decision of Bacon, V.C, who followed Rennie v. Munis, I.. II. 13 Kq. 203, holding conl.ni, was rcviT-oJ, and Kennie v. Morris was oveniilcil, Mas. ted V. Paine, L. R. 4 Kx. 81, lii'iii,- ap- proved. See an elaboiate juii;,'im'iit on the same subject by Blackltuni, .1., i" Maxted v. Paiiie (2nd aetioii), L. R. (i ts. 132. See further on the (pustion, (Irisstll V. Bristowe, L. R. 4 V. P. 06 ; C'oN'S r. Bristowe, L. R. 4 Ch. 3 ; Cruse v. Paine, Ih. 441 ; Allen v. Graves, L. K. 5 Q. B. 478 ; Bowring v. Shepherd, L. R. 6 Q. B. 309 ; Paine v. Hutchinson, I.. H. 3 i h. 388 ; Sheppard v. Murphy, Ir. L. IL 1 h 590. PART I.] SALES WITH INFANTS. 188 in an action of trover upon the plea of not guilty ; not as a bar, but to show the nature of the act which is claimed to be a con- version. An infant is liable in trover, although the goods were delivorcd to him under a contract.* 1 Vcisse V. Smith, 6 Cninch, 226, 111 Biu'. Ab. tit. liifunaj, it is laid down, " It' ill! iiit'ant without any contract williilly takes away the goods of another, tiovir lies against him. Also, it is said, tliat if he takes the goods under pretence t!wt tie is oi tall age trover lies, because it ii a wilful and fraudulent trespass." An infant is liable for his wilful torts, and for damages for frauds com- niitteJ by him ; but no fraudulent repre- st'ntation made by an infant can give va- lidity to any contract entered into by him ttliicii woulil otherwise be voidable for his infancy. The action must in all cases arise solely upon the tort or wrong com- niittccl by" him. Studwell v. Shajiter, 54 N. Y. 249 ; V.xsse v. Smith, 6 Cranch, •2'26; Kckerstein i'. Frank, 1 Dalv, 334; Heath V. Mahonev, 14 N. Y. Sup. Ct. KiO; Katon v. Hill, 50 N. H. 235. In Fitts I'. Hall, 9 N. H. 441, Parker, C. J., di'duccd liom the authorities this princi- ple : that if the tort or fraud of an infatit arises from a breach of contract, although there may have been false representations or concealment res])ecting the subject-mat- ter of it, the infant cannot be charged for this breach of his jiromise or contract by a diangc of the form of action. But if the tort is siibsei|Uent to the contract, and not a mere lireach of it, but a distinct, wilful, and positive wrong of itself, then, al- tiiough it may be connected with a con- tract, the infant is liable. But if one attirins himself of full age when he is an infant, and thereliy ])roi'ures a contract to be entered into, he is chargeable in dam- ages for a fraudulent misrepresentation wliereby another has received damage. Tims a representation that the d. IVi'daiit is of full age is not part of the oi > t, nor does it grow out of the contract, or in any way result from it. It is not any piMt of its terms, nor is it the considerat' a upon which the contract is founded. A'o iiaitrai't is made abcuit the infant's age. Tlie sale of goods is not a consideration tor this altirination or representation. The representation is not a tbundation for an aetion of assumpsit. The matter arises purely ,-.,• ddicto. The fraud is intended to iiiduee and does induce the other party to make a contract, t)Ut that by no means makes it part and parcel of the contract. It is anteeedent to the contract ; and if an intant is liable for a positive wrong con- nocted with a contract, but arising after the contract has been made, he may well be answerable for one committed before the contract was entered into, although it may have led to the contract. See Homer V. i'hwing, 3 Pick. 492; Mills v. Graham, 4 B. & P. 140 ; Bristow v. Eastman, 1 Esp. 172 ; Badger f. Phinney, 15 Mass. 359 ; liivermore v. Herschell, 3 Pick. 33, 36 ; Eaton V. Hill, 50 N. H. 235 ; Matthews v. Cowan, 59 HI. 341 ; Hayes i-. Parker, 41 N. J. Eip 630 ; Carpenter v. Carjienter, 45 Ind. 142; Pico v. Hoyer, 108 Ind. 472; Nolan V. Jones, 53 Iowa, 387 ; Lewis v. I.ittletield, 15 Me. 233 ; Walker v. Davis, 67 Mass. 506 ; Ha.xter o. Bush, 29 Vt. 465 ; Green v. Sperrv, 16 Vt. 392 ; Hughes v. Gallans, 10 Phi'la. 618. In Rice v. Boyer, lo8 Ind. 472, the court, in holding that where an intant fraudidently and falsely represents that he is of full age he is liable in an action ex delicto for the injury result- ing Ironi bistort, say: "This result does not involve a violation of the principle that an infant is not liable where the con- seipience would bean indirect enforcement of his contract, for the recovery is not upon the contract, as that is treated as of no eH'ect ; nor is he made to jiay the contract price of the article purchased by him, as lie is only held to answer for the actual loss caused by his fraud. In holding him responsible for the conse((uences of his wrong an e(piitable conclusion is reached, ond one which strictly harmonizes with the general doctrine that an infant is lia- ble for his toits. Nor does our conclu- sion invalidate the doctrine that an infant has no power to deny his disability, for it concedes this, but athrms that he must answer for his ]iositive fraud." In England the rule at law has been held that an infant cannot be made liable for a fraudulent representation that he was of full age, \vherel)y the plaintilf was induced to contract with him. Price v. Hewi'tt, 8 Ex. 146; Liverpool Adelphi Loan Assoc. V. Fairhurst, 9 Ex. 422 : Johnson r. Pye, 1 Sid. 258 ; 1 Keb. 913. And .see Jen- nings V. Hundall, 8 T. K. 335 ; Burnard v. Haggis, 14 C. H. N. .s. 45; Wright v. Leonard, 11 (;. B. N. s. 258 ; Bartlett v. Wells, 1 B. & S. 836 ; Dee lioo v. Foster, 12 C. B. N. s. 272. But in England, ia the courts of eipiity and bankruptcy, the rule has been acted on, as it has generally been in the ,'ainst him on contract, yet when through fraud ho has obtained the money or prii|i(rty of the other contracting part)', and jilcails his infancy as a defence, thereby repudiating and disaffirming the contract, he shouM be compelled by a restoration of the iiKiniV or property to remit the other jiarty to the status quo. The contract is voidalilc, ami if he elect to affirm it he can do so. But if he disaffirm it there would sccui to be no sound reason why he should not, ai,'iee- Stocker, 4 De G. & J. 458 ; S8 L. J. C. 760. But, notwithstanding his fraud, an aetion will not lie against him on the contract, either to support the contract or fur inju- ries resulting from its breacli. Jolinsoni'. Pye, 1 Lev. 169; 1 Keb. 913; I'rio i'. Hewett, 8 Ex. 146 ; Liverpool Addplii Loan Assoc, v. Fairhurst, 9 Kx. 4'22; Wright v. Leonard, 11 C. B. n. s. 2jS; Bartlett v. Wells, 1 B. & S. 836; De Boo V. Foster. 12 C. B. N. s. 2?2; Stikanan c. Dawson, 1 De 0. & Sni. PO. And an infant is liable in nssuiiijisit for money stolon, and for the proceeds of sto- len propertv wlien converted into money. Shaw V. Coffin, 58 Me. 254. And see Walker v. Davis, 1 Gray, 506. ~p?'. PART I.] SALES WITH INFANTS. 185 ably to tlie general trend of the decisions in tliis couiitiy, bo made answerable for his toit, and be compelled to make resti- tution of tlie money or property of the ot!ur I'oiitractinj; party, exactly as he woiiM have to do if he were himself taking piurti'dings for the cancellation of his contnat. We think, decidedly, that the AiiuMiciin cases generally, and the English decisions in e(iuity and bankruptcy, are inori' consistent with sound principle than are till' Kiif^lish decisions at law. Ill the old case of Savage v. Foster, 13 Viii. Al). 53fi, it was deciiled that it is not ii(.'('(>sary tiiat fciucs coverts or infants be active in promoting a purchase if it appear tliat thi y were i)rivy to it, and that it eoulil luit be done without their knowl- cilgt'. Tlieie, A. had two daughters, B. and C. A. was tenant for life of lands, rciiiiiiiiilerto B., iijhiic covert in tail. On a treaty of marriage between J. S. and C, ,T. .S, insisted on £1000, which A. could not give. IJ. and her husband encour- aged the marriage, and solicited A. to con- vey the entailed lands to J. S. and C, which A. did. It was de>'.reed after A.'s death that B. should be bound by the con- veyance, and levy a fine on penalty of pay- ment of costs ; and a perpetual injunction was granted to J. S. and C. for quiet pos- session. In Drury v. Drury, 4 Bro. C. C. 506, note, Lord Mansfield, concurring with Loril Ilardwicke, denied that either by the law of England or any other law every con- tract made by an infant was void ; that contracts for necessaries, such as diet, edu- cation, etc., were good, and the infant's body is liable to be taken in execution for tlieni ; so of a sum advanced for taking an infant out of jail : that infancy could never authorize the committing a fraud, as, if goods wen? delivered to an infant, and lie einbez/led them, an action of trover would lie against iuni ; as, if he took an estate, and was ;o pay rent for it, he should not del'eiul bin self against payment of the rent, and yet hold the estate upon pretence of his int'ai'y; and relied on a case of Watts V. Hailswell, where the infant issue in tail, bi'ing eighteen years old, had en- grossed the mortgage deed, and did not discover his right to the mortgagee. Lord Cowper held him bound, because being of yeara of discretion ho had acted dishon- estly in not discovering his title. Clarke I'. Cobloy, 2 Cox, 173, was decided on tlio ground that an infant shall not take ad- vantage of his own fraud, and was not to be allowed to retain his wife's pronussory notes, which had k'cn surrendered to him on his giving his bond for them, on his pleading infancy to a suit on the bond. In Cory v. Gertcken, 2 Mudd. 40, too, it was held that a minor could not avail him- .self of his infancy as a defence against fraud. The court there said : " Though in general a payment to an infant may bo bad, yet if the infant j)ra(!tises a fraud ho is liable for the conse(iueiice3. At law an infant is liable in tort, and cannot jilead his infancy, as where [a veiy strong case] an action of a.ssunipsit was brought against an infant for money embezzled by him." Bristow I'. Eastman, 1 Esp. i;'2. In Wright V. Snowe, 2 I)e G. & S. 321, 324, the court said : " It is too late to deny that an infant may comnnt a fraud to tho prejudice of his civil rights ; but what amounts to such a fraud is often a delicate question." In the case at law, too, of Bris- tow i;. Eastman, 1 Esp. 172, where a minor had been guilty of embi'ZKlement, and an action of assumpsit for money had and re- ceived was brought against him, the action was sustained ; liOrd Kenyon saying that he was of opinion that infancy was no defence to tho action ; that infants were liable to acticms ex delicto, though not w cnnlrnctu ; and though the present action was in form an action of the latter descrijition, yet it was of the former in jioint of substance ; that if the jdaintiffs had brought an action of trover for any ]iart of tlie property embezzled, or an action grounded on tho fraud, unquestionably infancy would have been no defence ; and as the object of tho present action was precisely the same, his opinion was that the si.me rule should ap- ply, and that infancy was no bar to the action. These princiidcs clearly are more in harmony with the doctrines established by the cases at law in this country *han they are with some of the recent cases at law in England, in which latter the plea of infancy in actions ex delicto has been held as available as in actions ex con- tractu. "I S' I rjii'M' 186 COMMENTARIES ON SALES. [book II. I'H.'l ill BOOK 11. PART II. MENTAL DISABILi. :S. 1. Insanity. According to some of the highest of the old com- mon-law authorities,^ no man could be allowed to stultify himself, and avoid his acts, on the ground of his being non compos tnentU,^ 1 Littleton, § 405 ; 1 Coke's Inst., 2476; Beverley's Case, 4 Rep. 123 ft. '■' A great variety of tests or detiiiitions of insanity are furnished in cases where the issue of insanity or non-insanity lias been involved. Lord Brougluun, in "War- ing V. Waring, 6 Moo. P. C. at p. 354, defines insanity to bo "The belief of things as realities which exist only in thT imagination of the patient." Sir John NichoU, in Dew v. Clark, rejiorted by Dr. Haggard at p. 7; s. c. 3 Addanis, 79; says, it is "A belief of facts which no ra- tional person would have believed." In Smith V. Tebbitt, L. U. I P. & u. 398, both of these are deemed unsatisfactory: the first on the ground that sane people often imagine things to exist which have no existence in reality, both in the physi- cal anil moral world; and the second on the ground of fixing the limit of a rational man's belief. The definition by Dr. Wil- lis, a man of great eminence, quoted in Dew V. Clark (supm), "A pertinacious adherence U some delusive idea, in oppo- sition to plain evidence of its falsity," seems to otf ■.■ surer ground ; but then the evidence of the falsity is to be plain, and in doubtful cases the want of such plain- ness is the very difficulty that arises. To draw the exact line, if there be one, which defines the limits, may be impossible ; but to aflSrm that some instiinces surpass it, is not so. "No one," says Burke, "can say when twilight begins or ends; but there is ample distinction between day and night." In Smith v. Tebbitt, L. 1{. 1 P. & D. 398, the court concluded th.at no tests, however elaborate, beyond the common and ordinary method of judging in such matters, would be competent to bear the strain of individual cases in the course of experience, in atteniptiii;,' to assign limits within which extravagmico of thought is to be [)ronounccd coinpiitible with .sanity. In inijuiring what that com- mon and ordinary method of judgini,' is, and upon what it is founded, the court said : " No man knows aught of tlie con- dition of another's mind except !)y com- parison with his own. And in instituting this comparison, we recognize tlie giMii-ml fact that all mankind are endowed with the same senses, moved by the like umo- tions, governed by the same restraints, und guided by the same faculties. All tlu'se vary in their force and action in dillVient individuals, or the same individual at dif- ferent times. But they vary within ter- tain limits, and certain limits only. It is when the words or deeds of others, ndVrred to our own standard, and that wiiicli by experience is found to be the coiiinirn standard of the human race, appear to transgress these limits, that we suspect these common senses, emotions, and fac- ulties, which we know to exist, to lio the subjects of disorder or disease. If tlie divergence be very marked, and exhibit itself on many subjects or witli uiiifonn constancy in the behavior of the indi- vidual, we pronounce disease witliout hesitation. In proportion as the diver- gence is either casual or trilling, . 1315; I'riiisep V. Dvce Sombre, 10 Moo. P. C. 232; Dew r.'ciark. 3 Addnms, 79. Sir John NiehoU, in Dew v. Clark {stipra), says; "The true criterion — the true test — of tlie absence or presence of insanity, I take to be the ab.sence or pre.sence of what, used iu a certain sense of it, is cian]irisalile in a single term, — delusion, >\ lienever the jiatient once conceives some- thing extravagant to exist, which has still no existence whatever but in his own heated inuigination, and whenever, at the same time, having once so conceived, he is incapable of being, or, at least, of being jiermanentlj', reasonetl out of that concep- tion, such a patient is .said to be under a delusion in a iieculiar, half-technical sense of tho term; and the absence or presence of delusion, .so unilerstood, fornis, in my judgment, the true ami only test or cri- terion of absent or present insanity." See also Cartwright i-. Cartwright, 1 Phill. Ec. 1{. 90; Austen v. Graham, 8 Moo. P. C. 493 ; Miidway v. Croft, 3 Curt. 675 ; The Queen v. Hill, 2 Den. C. C. 254; McAdam V. Walker, 1 Dow, 178. Tho ipiestion as to what is lunacy came up before Hud.son, J., in Kobertson v. Lyon, 24 S. (.'. 266, iu an action to vacate a finding of lunacy, when the court said: "In this present iuciuiry lumicy is a term of general im][)ort, embracing every kind of insanity or unsoundness of mind that incapacitates a person to attend to the ordinary business of life. It is not a mere weakness of mind, nor a want of good business talent, nor is it thoughtlessness and improvidence in business. Men of sound miiul are frequently spendthrifts. Such have the full right to use, enjoy, waste, and destroy their property, and it is nobody's business nor right to interfere. Some nuui waste their all in gambling and dissii)ation, but cannot be pronounced insane in the jiroper sense of the word. That unsoundness of mind, that lunacy, which we are iixpiiring after in this issue, is such an unsoundness of mind as is evi- denced by a total absence of sufficient nusn- tal cajiacity to attend to the ordinary busi- ness of life. When one is entirely inca))ablo of caring for, controlling, and managing Iiis own person and jiroju-rty, he ie, in the eye of tlie law, a lunatic, reciiuring a guar- dian. This may arise from various causes, and among them from old age, when it is termed scni/i.i denKnliu. It happens when the body outlives the mind. ... A nmi coinpoK mentis — a lunatic — is a jierson who is so far deprived, from any cause, of intelligence and sense as to be incapable of caring for and managing his person and property, and who for that purpose ab.so- lutely refjuires a guardian. ' In PMtz- gerald v. Slielton, 95 N.C., with reference to the evidence to prove insanity, the court said: "A very great variety of facts oftentimes make evidence tending to prove the insanity of a person alleged to be in- sane. If his general course of conduct, his methods of business, his particular business transactions, his conversation, his decla- rations made from time to time, his or- dinary speech, his s{)eech and actions on iH!i 5? hi' \& m ■ 138 COMMENTARIES ON SALES. [book II. tract, if it can be shown that the defendant was not of capacity to contract, and the plaintiff knew it.^ But when a person, apparciitly pai'tiuular ouca.sioii!«, liis habits, are very euueutric, tbulisli, uiinutural, absurd, and shuukiii^' to reasonable iH;o[ilt!, what hu so Hays and does is uvidi-nce to prove that he is insane. Snoli (ividcnce would be stronger or weaker in projiortiou to the degree of absurdity, unreasonableness, and unnaluralncss of what sue!) person so did and said. It might be very strong ; it might bo so very sligiit as not to 1)0 sulii- cieiit to go to the jury at all. Merely im- moral, vieioiis, and criminal acts would iiot«f themselves bo evidence of insanity; but they miglit bo, in connection with other facts. In nu ini[uiry in such re- spect, it becomes necessary and pertinent to scrutinize the transactions, declarations, and conduct of the p irty whoso sanity is in question, with a view to asciu'tain whether or not the same are inderd absurd, unrea- sonable, and unnatural. It is not every act tliat seems ti> he thus that is so in fact. It freiiuently ''irus out that what so appears is just the reverse, and tends to prove the intelligence and wisdom of the person doing the act in (piestion. Hence explanatory evidence as to the rea- sonableness, naturalness, justice, and wis- dom of the particular acts or transactions relied upon as evidence of insanity, is competent." And S(;e l{;u'bo v. Rider, G7 Wis. 598 ; In re Will of Chapin, 32 Wis. 657; Li re Will of Coh;, 49 Wis. 179; Wright V. Jackson, 59 Wis. 584; For- Fine's Case, 41 N. J. Ecp 409 ; Brower v. Fisher, 4 Johns. Ch. 441; //(. re Barker, 2 Johns. Ch. 232 ; Dic;kenson v. Bliss(;t, 1 Dick. 263 ; Gibson v. Joyes, 6 Vcs. 2G7, 273 ; Ridgway v. Darwm, 8 Ves. (55 ; Ex parte Cranmer, 12 Ves. 445 ; Riggs i'. American Home Missionary Society, 35 Hun, 650; Jackson v. Jackson, 37 Hun, 306; English v. Porter, 109 111. 285; Doty V. Hubbard, 55 Vt. 278 ; Pavey v. Win- trodo, 87 Ind. 379; Wollf y. Connecticut Mutual Life Ins. Co., 2 Flip. C. Ct. 355; lie Helmbold, 12 Phila. 424. Although the mind of an individual may be to some extent impaired by ago or disease, still if he be callable of transacting his ordinary business his acts will be valid. English V. Porter, 109 111. 285, 291 ; Meeker v. Meeker, 75 111. 266 ; Trish v. Newell, 62 III. 196; Pickerell v. Morss, 97 111. 220 ; Lindsey u, Lindsey, 50 111. 79. When lunacy is once established, the burden is on the party claiming, through any act of the lunatic, to show that it was done in a lucid interval. Wright v. Jackson, 59 Wis. 569, 576; Ripley v. Babcock, 13 Wis. 425. The adjudication of insanity fixes the legal status of the party as to his in- capacity to make contracts. Redileii v. liaker, 8G Ind. 194 ; L'Anioureiix v. Crosbv, 2 I'aigo, 422 ; Wadswortli v. Sharpsteen, 8 N. Y. 388 ; Wadswortli v. Sherman, 14 Barb. 169; Fitzhugh y. Wii- cox, 12 ISarb. 235 ; Leonard v. LedinuiJ, 14 Pick. 280; Imhoirw. Witmer's Adiurs., 31 Pa. St. 243. ' Dane v. Viscountess Kirkwall, 8 C. k P. 679; Gore v. Gilison, 6 M. & W. t;.':j; Mitchell V. Kingman, 5 Pick. 431; lliie V. Feet, 13 Johns. 543; Grant v. TliDiiiii- son, 4 Conn. 103; Seaver v. Plu'ljis, 11 Pick. 304; Barsell v. Chancellor, 5 Wliurt. 374; Yates V. IJnen, 2 Str. 1104; Cole v. Robins, Bull. N. P. 172; Cooke y.\:iay. worth, 18 Ves. 12; Baxter v. Earl of Ports- mouth, 5 H. & C. 170; Browuo v. Joil- drell, M. & Malk. 105. In Browne c. Joddrell, M. & M.ilk, 105, in an action of assumpsit, the de- fenet; relied on was unsoundness of inind ; but it was not claimed that the pliiiititf was aware of the deleiidanl's malady, or had in any way been guilty of liaiid. Lord Tonterden was willing to recuivc the evidence ofFered, but held that the defence would not avail unless it were showji that the plaiutilf imiiosed on tiie defen 111. 296. In this las'-i;ued ca.'s it is said that the English doctrinn, awl that generally recognized by the f'Oi.i'm m this country, is, where a pur- chas;; fruin an in.sane person is made and a conveyance obtained in good faith for a sutficient consideration, and without knowledge of the insanity, the considera- tion must be returned before the convey- ance will be avoided. And the courts have gone further, and held, that where persons apparently of sound mind, and not known by the adverse party to be otherwise, enter into a contract which is sent him. Eaton v. Eaton, 8 Vrooin, 108; Niell V. Morlcy, 9 Yes. 478; Moltoii v. Camro \, 2 E.\. 4S7; Carr r. Holiday, 5 Ired. El,. 167; SpragU(! i'. Duell, 11 raij.'e, 480; Lavere v. Gilkyson, 4 Harr, ;i75 ; Beale v. Lee, 10 Barr, 56; McCorniick v. Littler, 85 111. 62. But though ciiuity in some cases will protect pcrson.s dealiiij; in good faith, and without knowli'ilirt', with lunatics who appear to be ralioiiiil; yet iu no case will a contract with siu'h a person be uphcM as between themsi'lves when the transaction la without any con- sideration. In such a cose, as the insane person has received no benefit, and the other i>arty sutt'ered no loss, no e(]uity can arise in favor of the other party. Hull v. South, 109 Ind. 315; Manning v. Cill, L. It. 13 E(i. 485. See, further, (iiibben V. Maxwell, 34 Kan. 8; Lozear v. Shields, 23 N. J. E(i. 509 ; Darren v. \\'U\h; 42 N. J. E(i. 569 ; Surles v. Pipkin, b!> N. C. 513; Sawyer?;. Lufkin, 56 Me. 308; Van Horn V. Haun, 39 N. J. L. 207- Wluie a guardian carries on the business of an insane person, parties dealing with the guardian only as such cannot hohl the guardian personally liable for debts eon- fair and bond fide, and which is executed tracted in carrying on the business of the and completed, and the property which is insane person. Western Cement Co. i'. the subject of the contract cannot be re- Jones, 8 Mo. App. 373. stored so as to put the parties in statu quo, i Molten v. Camroux, supra. such contracts cannot be set aside either * Beavon v. McDonnell, 9 Es. 309; by the alleged lunatic or those who repre- 23 L. J. Ex. 94. The same doctrine, in Tl.oi into by otiior C( if fair, I. ca.sos wl eijin'ty ',v T-; vitin must 1)0 euni.staiK a rca.son.i of iinsdui lionl V. tlin.s : " 'J contracts, raiico of t wlnV'li mil deci.sion w who sold 1 mind ? . . iiiirs by wa '>"( aftorw agaiii.st the porson of c IJiit it Ji elTwt is held Snu .t (J. 1;-,; i'. Viscountess Klli„tt V. Inc( ^«l-.l. ch. S: ' l-viilcni.'c the insanity of liooti in wliidi to prove tlnit ; "'■It fact. (Jiv 2S4; 24 L. J. ( Pviilcnuo of ins ''iJ««'- I'. C. 2 Atk. 340; 9 I'uistian, 1 K -9. 31'; ifochfor of'; lianiusiy' /''winlcsof jud 1" cases of {„s,i iiett V. Va,I(., 2 ^ H.issard V. /"econrt(|uoteis 'loin Story'.s v2 "■;'■ 'l'<"'e laid ,i: "Pon which cou f i;^' to .set aside f>;^ts, howover so 'J'"ts, lunatics, m PART H.] MENTAL DISABILITIES. 141 Tlio rulo, both of law and of equity, as to a contract entered into by a i)cr8on apparently of sound mind, and not known by the otlier contracting party to be insane, is, that such a contract, if fiiir, fiond Jiilc, and completely executed, is valid ; and even in cases where the contract may possiljly be void at law, courts of equity will not interfere to set it aside, except in the case of fraud. T) vitiate a contract, the knowledge of the lunacy or incapacity must 1)0 not merely actual, but presumably sulVicient, from cir- cumstances known to the other contracting party,' to lead him to a reasonable conclusion that the jjcrson with whom he is dealing is of unsound mind.'^ Lord ('ranworth, in Elliott v. Ince,^ put the reason of the rule thus : " The principle in Molton v. Camroux * was that executed contracts, where the parties had been dealing fairly, and in igno- rance of the lunacy, should not bo set aside. This was a decision which miirht be described as a decision of necessity. A contrary decision would render all dealings unsafe. How was a shoi)-keeper who sold his goods, to know whether the customer wjia of unsound minil ? . . . The result of the authorities appeared to be that deal- intrs by way of sale and purchase by a person apparently sane, l)iit afterwards found to be insane, woidd not be set aside as aiiainst those who had dealt with him on the faith of his being a person of competent understanding." 15ut it has been generally held in this country, not only that l309; L'.in elTuit is hfld in Canipbell v. Hooppr, 3 Sill, k V,. 1;)3; 'J4 L. J. Cii. 644; Dime V. Viscountess Kirkwall, 8 C. & P. 679; Elliott V. IiK't", 7 Do G. M. & G. 475; 26 1.. .1. eh. 821. 1 Kviilcncc of the general reputation of thi> insanity of a person in the iieiglilior- liooil ill wliiili he resides is inadmissible to ]irove that a person was cof^ni/.ant of tliiit fact. Oreenslade v. Daie, 20 Beav. 2S4; 24 L. J. Ch. 490. See fmther as to eviilcnce of insanity, Hume v. Burton, 1 Itid^'w. P. C. 211; Clark v. Periani, 2 Atk. 310; 9 Mod. 346; Blatchford v. niri.^tiiin, 1 Knapp, 73; 1 Hale, P. V. 29, 3(1; liochfoi't v. Ely, 1 Kidgw. P. C. 532 ; liiiniusly's Case," 2 Kii- Abr. 580. The rules of judging in equity and at law ill cusi's (if insanity are the same. Ben- nett V. Vaile, 2 Atk. 327; 9 Mod. 312. ■^ Hassard v. Smith, 6 Ir. R. Eq. 429. The loiirt ijuotes approvingly, in this case, from Story's Kq. Jur., §§ 227, 228, the rule there laid down, thus : " The ground upon which courts of equity now inter- fere to set aside the contracts and other nets, however solemn, of persons who are idiots, lunatics, and otherwise non coni' potcH mentis, is fraud. And so, if a pur- chase is made in good faith, without any knowledge of the incapacity, and no ad- vantage has been taken, coiiits of equity will not interfere to set aside the contract, if injustice will bo thereby done to the other side, and the parties cannot be placed ill sditu quo, or in the state in which they were befoi;; the iiurcluise." In Niell i;. Jlorley, 9 Ves. 482, Sir Wi'liain Grant refused to interfere, and leii the party seeking to invalidate an executed con- tract, entered 'iito bond fuli: and without knowledge of the jdaintiirs insanity, to his remedy, if an}', at law. And in Price V. nerriiigton, 3 McN. & G. 496, Lord Truro acted ujioii the same jiriiiciple, and dismissed a bill to set aside a convey- ance, although the jury, on an issue di- rected by Lord Langdale, iiad found that the grantor was not of sound mind when he executed it, he having been already found a lunatic, by inquisition, from a dAte anterior to the conveyance, and without lucid intervals. 8 7 Dc " M. & G. 475; 26 L. J. Ch. 821. * 2 Ex. 487, affirmed 4 Ex. 17. m j' ■ \s I 'i 142 COMMENTARIES ON S\LES. [book II. I'i I ii ' executory contracts made by a lunatic cannot be enforced,^ but that executed contracts not made for necessaries can be rescinded.^ And wh(;re the consideration is very inadequate, a court of equity or an impartial jury will closely scrutinize the facts, and will give weight to slight evidence of imposition and circumvention wiion one of the parties is of weak intellect ; ^ and to set aside promis- sory notes on the ground of mental incapacity, it is not ncccssai-v to prove partial derangement. It is sufficient if there appears such weakness of mind as to incapacitate the party to guard him- self against imposition and undue influence.* Jiut a want of abso- lute and perfect soundness of mind does not necessarily aft'ect the capacity to make a valid contract, provided the mind is still capa- ble of fully comprehending the import of the act.'' And the cases in the United States Supreme Court estaljlisli the proposition that extreme weaJiuess of intellect, even when not amounting to insanity, in the person executing a conveyance, may be sufficient ground for setting it aside when made upon a nomi- nal or grossly inadequate consideration.^ But, like the contract of an infant, that of a lunatic is voidable and not void.'' In both countries, however, the law is the same, that a lunatic may contract for necessaries suitable to his degree, and that an action will lie against him for necessaries suitable to his degree, notwithstanding an inquisition of lunacy, and notwithstanding the party supplying the necessaries to his order had notice of his inca- pacity in any other way.^ 1 Grant v. Thompson, 4 Conn. 203; Long V. Whidden, 2 N. H. 435; Mitchell V. Kingman, 3 Pick. 43i. 2 Sewer V. Phelps, 11 Pick. 304; Fitz- gerald V. Reed, 9 Sm. & M. 94; Johnson r. Chadwell, 8 Humph. 145; Beller v. .Tone.s, 22 Ark. 92. And see further, Henry v. Fine, 23 .\rk. 417 ; Menkens v. J.ightner, ^8 111. 282 ; Taylor y. Dudley, 5 Dana (Ky.), 308; Uond v. Houd, 7 Allen, 1. » McFadden v. Vincent, 21 Tex. 47 ; Hale V. Brown, 11 Ala. 87; James y. Langdon, 7 B. Mon. 193 ; Wilson v. Oldham, 12 lb. hn. * Johnson v. Chadwell, 8 Humph. 145; Beller r. Joties, 22 Ark. 92. 6 Hovey v. Hobson, 55 Me. 250; Miller V. Craig, 36 111. 109; Speers r. Sewell, 4 Busli (Ky.), 239; Hovey v, Cliase, 62 Me. 304 ; Dennett i'. Dennett, 44 N. H. 531; Odell i>. Buck, 21 Wend. 142; Osterhoiit V. Shoemaker, 3 Den. 37 ; Davis v. Cul- ver, 13 How. Pr. R. 62; Rippy v. Gaunt, 4 Ired. Eq. 443. But see Samuel v. Mar- shall, 3 Leigh, 567; Smith v. Elliott, 1 Patt. & H. (Va.) 307. 8 Harding v. Handy, 11 Whotit. 103; AUore v. Jewell, 94 U. S. 506; Coiiliy v. Nailor, 118 U. S. 127. ' L-eckenridge v, Orinsby, 1 J. J. Marsh. 236; Somers v. Punipliivv, 24 Ind. 231; Gates v. Woodson, 2 l):in:i, 452; Allis v. Billings, 6 .Met.'. 41,i; Hovey v. Hobson, 53 Me. 451 ; AinuM i'. Richmond Iron Works, 1 Gray, 4:U. * Baxter v. Earl of Port.-jrufMuh, 7 D. & \{. 614; 5 B. & C. 170; Strlmim V. Hart, 1 Kay, 607 ; 23 L. J. Cli. I-hS; Manby v. Scott, 1 Sid. 112 ; Wentrt-ortli V. Tub!), 1 Y. & C. 171 ; Mnwanl r. Lord Digby, 2 CI. & F. 6:? ! , Bi^'li- ardson v. Strong, 13 Ired. Lnw, W ; Ex parte Nottiiigton, 1 A' . Scl. Ois 400; Pearl v. McDowell, a J. J. Ma.-. 658; Skiilmoret). Romaine, 2 liiadf. 122. See Fitzgerahl v. Reed, 17 Mi^^. !'4; Crowther v. Powlnndson, 27 Cal. 3"*i; Maddox v. Simmens, 31 Ga. .'ii'. In the case of Williams v. 'V, Dtwoith, 5 Beav. 325, it was claimed, with rcl'iniic'e to costs incurred on a commission ot lu- nacy, and which were held to liavi' Iwn properly incurred for the benefit of tlw' PART II.] MENTAL DISABILITIES. 143 So an insane husband is liable for necessaries supplied to his wife during the period of his lunacy.^ This is put on the ground that as a woman has the power to bind her husband for necessa- ries Avliich she is compelled by his misconduct to procure, if the husband becomes lunatic by the visitation of God, and therefore uuable to i)rovide his wife with necessaries, he becomes as liable to pay foi tiieni as though his failure to provide them was the re- sult of hill own fault or misconduct.^ lu a case where the plaintiff was a ti'adesman, and the defendant had given his wife authority to deal with the plaintiff, and had held her out as his agent and as entitled to pledge his credit, the defeiulant subsequently became insane, and wiiile his malady lasted, his wife ordered goods from the plaintiff, who accordingly supplied them. At the time of supplying the goods, the plaintiff was uuaware that the defendant had become insane. The defend- ant, ou recovering his reason, having refused to pay for the goods, it was held that he was liable for the price of them.^ ■ iH-U lunatic, ioul were necessary for tlie pro- tection ot' Ms person and estate, that however beneruiiil to the lunatic the ex- lieiu'iiture ini^lit have been, yet, as the liiiiiitic was incaiiable of contracting, no debt could be constituted ; but the court held tliat, in the case of money expended for tlie necessary protection of the person and estate of the lunatic, the law would raise an implied contract, and give a valid demand or debt afjainst the lunatic or his estate ; tliat under such circumstances a debt was constituted, and payuient of it ini^'ht be obtirined out of the lunatic's real estate if the pei'sonal estate were insulli- cient. Lord iiangd.de, in delivering the jiidi,'n'ent, said: "Any other conc!usi'.:i would, as it appear, to me, be ext.-eniely dangerous, as well as contrary to the prin- eiplcs upon wliich several cases have been decidi'd. Tliat which is necessary for the protei'tion of the person and estate of the lunatic may well be subject to question and consideration ; but wlien a denianil is niadi- in respect of a necessary of that kind, 1 do not see how it is to be dis- tinguished, in principle, from a demand arising in respect of the supply of food ami clothing. A debt is co'istituted by riason of a contract, which, in such eases, the law will su]iply, and it rests, as I con- ceive, upon a far' better foundation than the rule wliii'h has sometimes been referreil to, — that a man shall not be allowed to stultify himself." Williams v. Went- worth, .■; Beiiv. 325. This furnishes an answer to the position sometimes taken (see 1 Pars, un Con. 435, noted), which we think entireiv unsound, applicable as it would also be to the undoubtedly legal "contracts" of a lunatic for necessarie.s, that, in such cases, "there never was a contract between the parties," because the " jierson in a state of intoxication " [or the lunatic] "has no agreeing mind." This i.y one of the cases where the law im- plies a contract, as an agency is implied in the cases considered jwtif, I'arts III. and IV., of a married woman and a ship-master being agents of necessity, from tlie very necessity of the case. See Light r. Light, 25 Heav. 248, where a suit was allowed to be brought by a jicrson of weak mind by his next friend. And see further, Hrown V. Joddrell, 3 C. & r. 30 ; Dane r. Lady Kirkwall, t^ C. & 1'. 679 ; The .''larl of Bath ?'. The Earl of Bradford, 2 Ves. Sen. 587 ; Wentworth v. Tubb, 1 Y. & V. 171; Is'elson /'. I)unc(inii;e, 9 Beav. 211. J LVed V. Legard, 6 Kx. 637 ; 20 L. J. Ex. 309 2 See, also, Alexander v. Miller, 4 Har- ris, 213. Aithougii one who has been a lunatic may, either by special plea or tm- der the general issue, avoid his express contracts, yet upon contracts implied in law, a.' for necessaries for his wife, his liabiliti'M continue. Pearl ». McDowell, 3. J.J. Marsh. C58. 8 Drew V. Nunn, 4 Q. B. Div. 661. In III re Wood, 1 De G. J. & S. 465, proof was allowed in equity against the estate of a testator for money advanced to his wife during his lunacy, and a))plied by l.er in jiayment of her nec ' r*i '5 144 COMMENTARIES ON SALES. [book II. But where in an action for the price of necessary repairs done to the defendant's house, it appeared that he was a lunatic, and that the work was done by order of his wife, with knowledge on the part of the plaintiff of the husband's lunacy, the wife having always received a suthcient allowance from her husband's estate, it was held that the husband was not liable, as under the circiim. stances the wife had no more authority to pledge his credit than she would have had if he had been sane, and had provided her with means for all necessaries.^ Acts done by a lunatic during lucid intervals arc valid, but, general lunacy being established, the proof is thrown upon the party alleging a lucid interval, and he must establish, beyond a mere cessation of violent symptoms, a restoration of mind suffi- cient to enable the party soundly to judge of the act.^ Du Bois, L. 11. Q 1 Richardson i". B. 51. 2 Hall V. Warren, 9 Vcs. 605, 610 ; Attoniey-Oeneral v. Parnthcr, 3 Bro. C. C. 411; H.issard i'. Smith, 6 Ir. 1!. E'l. 429. It' .1 man has been insane and afterwards recovers his reason, it is not sudicient, in order to impeach an act done by him after liis recovery, to show that he was not as sound a man in Ids judgments as before liis insanity. All that tiie law rennires is that a man should have possession of his reason so as to know the elVect of the act he is abouc to ]ierform, and to bo cafial)lo of eairying that act into effect. Creagh V. Blood, 2 J. & L. 509 ; 8 Ir. 11. Ei[. 434. See, also, Jie 3. B., 1 Myl. & C. 538, as to distinction between lunacy with lucid intervals, and a state of sound mind subject to occasional unsoundness, arising from accidental and temporary causes ; and Harrod v. Harrod, 1 Kay & J. 4 ; 18 Jur. 853, as to distinction between unsound- ness of mind and mere dulness of intel- lect. See, further, as to insane delusions, Creagh r. Blood, supra ; Be Dyce Som- bre, 1 Maen. & G. 116 ; 13 Jur. 857 ; Ditchburn v. Fearn, 6 Jur. 201; Banna- tyno V. Hannatyne, 2 Uob. Ec. 11. 472 ; 16 Jur. 8ti4. The mere existence of a delusion in the mind of a person making a disposition or contract is not sudicient to avoid it, even though the delusion is connected with the subject-matter of such disposition or coTitract. It is a (pU'stion for the jury whether the delusion alfected the disposition or contract. Jenkins v, Morris, L. K. 14 Ch. 1). 674. See, also, Waring v. Waring, 6 Moo. P. G. 341; Smith I'. Tebbitts, L. R. 1 P. & 1). 398 ; Banks v. Goodfellow, L. R. 5 Q. 15. 549 ; Kougliton V. Knight, L. R. 3 P. & D. 64 ; Smee v. Smee, 49 L. J. P. & M. 8. Weakness of mind and forgetfulness are not iufficient to iuvalidate a '.viH or con- tract, if it is proved that the mind of the testator or contractor was, when ciilkil to exertion, capable of attention aiui ap- plication. Tufin^l . i;. I'.stahL', 3 Knupp, 122; Osmoi.u •; F' 1 P. Wms. 130. In Smith f. I' )'.i i , ,. R. 1 P. & D, 398, it was he.,i tlKil a diseased stiitt- of mind once proved to haveestablislu'd itself will be presumed to continue, and the burthen of showing that health lias been restored falls upon tho.se who assert it. In The Attorney-General v. Parnther, 3 Bro, C. C. 442, Lord Thurlow said : " If de- rangement be alleged, it is clearly incum- bent on the party alleging it to prove such derangement. If such derangiMnciit be jiroved, or be admitted to have existoil at any particular period, but if a hu'id in- terval be alleged to have prevailed at tiie j)eriod particidarly referred to, tiieii tlie Durthen of i)roof attaches to the nartv al- I '.vLen irthen of proof attaches to tin leging such lucid interval, »vlio inn- sanity and competence! at the jieri. the act was done, and to which (' ■ li ' M inter' al refers; and it certa' • , Ij >f equal importance that the :• i.i "i" support of the allegation of li! 'lu " val, after derangement at an_, )r. . ' I been established, should be a.* str.'i I'.l us demonstrative of such fact as wliei if object of the proof is to establish (iitniin^- nient." Although this, not stated with exact fairni'ss, is disapproved bv hord Eldon, in Ex part,' Holland, 11 Ves 10, it was apjiroved and followed in Prinsep V. Dyce Sombre, 10 Mno. P. C. 2:!2, where it was hehl that the presuiiiiilinn of law is, that the verdict of a jury '.iiiiliT a commission of lunacy that tl;e piity, tin' subject of the commission ■ of unsoiiiid mind, is well founded, an * i'' mp lonniii.s- sion remained unsuperseded, 'i.^* t! ■ piniy continued to be a lunatic dn: i- .r-t life- Such presumption, howev'er, n; ly be re- batted and displaced by positive proof of PART II.] MENTAL DISABILITIES. 145 2. Idiocy. The law relating to idiots and lunatics is very much the same. An idiot is defined hy Lord Coke as one non compos from liis nativity.^ Bacon adds to Coke's definition, that he is •' Olio wlio never has any lucid intervals." ^ tiitiiL' ivtuvi'iy, or j-.,ssession of a lucid jiiti'ival, wlii'U ill! act was performed. '[W iiiKi^ I'l'iibiiiidi, tliouf^h, lies upon tlio liiiiiiiiii,' under such act, done dur- puity the of of iMj; iiie subsistence! ot a coniniussiou liimicy, to estiililish the allirniatiou (■i)tn|iiet(' iir ]i;irliid recovery of the lunatic at till' time of the [lerlorniance of the act. And it liiis been held that if the nund is uii.-ouiiil on one subject, provided that uiisDiiiiiliiess is at all times existing upon tliiit subject, it is erroneous to sujiposo such a iiiind is really sound on other sub- jects. It is oidy sound in appearance, for if tlie subj(!ct of the delusion be presented to it the unsoundness would bo manifested liy such a iierson believing in the sugges- tii)iis of fiiu'y, as if they were realities. Any act, therefore, done by such a i)erson, howuver rational that act may appear to be, is oi"ii to attack as the act of a mor- lm(i unsound mind. And to constitute a lucid iiitirvul in such case, the party must fiveiy and voluntarily, and without any di'sif,'n at the time of pretending sanity auil freedom from delusion, confess ids dehisinu. Waring r. Waring, 6 Moo. 1'. C. 341. See Ellavs u. Mossbenger, 9 111. App. 122. As in tlie case of infancy, the deletiee of disability to contract can- not be raised by the other party to the contract. Tims, in Alien v. Berryhill, '27 Iowa, nnt, it was held that where a |H'rsuii of uiisdund mind makes a contract which is beneficial to him, the law sujt- [ijifs or presumes the existence of the r«|iiisite capacity, or, for his prottotion, esto|is the otlier party from setting up and sustaiiiin;; the insanity. 1 Co. Litt. 247 ; 4 Co. R. 124. See 1 Hales Hist. P. 0. 30 to 37. ■^ IJaciiii Ab. tit. Idiots and Lunatics, A. 1, 3. ISaeoii heresays; "Though this siilijcct rf madness may be si)un out to fjri'iUcr hiigtli, and branched into several liiiuls and ilegrces, yet it appears that the liii'vailiiig ilistinetion herein, in law, is ("'tween i(iiocy and ainaey ; the lirst, a taliiitv 'I nii/iviliitf, vel dftiicntiii natural is, wiiicii ex( uscth the party as to his acts, iiiidiiitilles the king to the receipt of the iviits and pi ilits of Ids est.ate dtiring his htc, witiioiit I'liiig obliged to render any ai'Cdiiiit lor the sai:io : the other, accidental iir adventitious niailness, which, whether Iii'iinaiuiit and fixed, or with lucid inter- vals, ffcH's under the name of lunacy, and •''inally cxcusetli with idiocy, as to acta done loiiiig the idirensy. '4 Co. 125 a. But hci, .11 they differ, that in the latter VOL. I. 10 case the king, as hath been .said, is only a trustee for the lunatic, and accountable to him, if he happens to be restored to his understanding, or to his representatives, if it happens otherwise." The most ma- terial dill'erence is that as an idiot has no lucid interval, therefore the law a|)|diuable to lucid intervals of lunatics is inappli- cable to idiots. The word "idiot" is a technical one well known in our ancient law, and confined to the precise ca.se of a jiersou "/(»^«MS n nativitatc." The wonls of the statute 17 Kd. 2, c. 9, are " AVx hahcbit custndiain tirrarum fiituorum natural iiim," whereby, says Cowell's In- terpreter, it ajipears, an idiot must bo "J'atuus a nativitatc. For if he was ever wise, or became a fool by chance, etc., the king shall not have the custody of him." Tiiere are, however, some Ibrms of writs directing in(|uiries, "«;(. iitiarte Barnsley, 3 Atk. 168 ; Wendell's Case, 1 Jolin.s. Ch. 600 ; ISiasher's Kx'a V. Cortlandt, 2 Johns. Ch. 233. Formerly, one born deaf and dumb was considered, in presumption of law, an idiot. 1 Hale V. C. 34. But where, from education, they manifest fair under- standing, as under instruction in deaf and dumb institutions they now do, there is no longer such presumption, and they are ordi- i! •^i Mh a i W 1 . \ H 1 1 ■is ■.isii s ■■■*• : ■' i , «,. 1 .:'r, ; ; ^i;,i^. Ini'« " ' 1 ||f 1 ' Iib 1 >', 146 COMMENTARIES ON SALES. [book 3. Drunkenness. Coke classifies drunkards with lunatics and idiots, as those who are tion compos. His fourth class is : " Oue that is drunk; which last is so far from coming within the pro- tection of the law, that his drunkenness is an aggravation of wiiat- ever he does amiss." * Coke's remark is generally true as to tln' criminal acts of a drunkard, but where a party, when he enters into a contract, is in such a state of drunkenness as not to know what he is doing, and particularly when it appears that this was known to the otiier party, the drunken man cannot be conipelkd to perform tlie contract.'-^ A person who takes an obligation from another under such circumstances is guiltv of actual fraud. The modern decisions have qualified the old doctrine, that a nmn shall not be allowed to allege his own lunacy or intoxication;^ and total drunkenness is now held to be a defence.* ■larily as iespoiisililc for their acts, ami as 'lie to make biiidinj; contracts in <;ood (iiitli as tlio.se who have not been ■■iurdus ft mutus a loitiviliitc. For eases liearing on this question, see Steel's Case, 1 Leauh, 4;'>1 ; .loues' Case, 1 Leach, 1U2 ; Kex v. rritchanl, 7 C & V\ 303 ; Hex y. Dyson, 7 C. i P. 30'!, note (<;); Thompson's Case, 2 Lewin C. C. 137 ; Snvder v. Nations, 5 Blaekt'. 2;>5 ; The People v. McUee, 1 Denio, li) ; Commonwealth v. Hill, 14 Mass. •2(17 ; The State u. DeWolf, 8 Conn. i)3 ; Cliristinas v. Mitchell, 3 Iivd. Kq. 535; Dickenson v. Hlissott, 1 Dick. 2i>S. In .Snyilerw. Nations, 5 Blaekt'. (Iml.) 2it5, it was held that a witness tieiiij^ deaf and duini) forms no objection to his admissiliili- ty ; but that such a person, who can be ooni- municated with by sij,'ns, is a competent witness at coininon law, if he has sullicient discretion and a proper sense of the sanc- tity of an oath. A fortiori, where a deaf and dumb person can be coinmunicated with by means of writing, as usually now can be done, the old presiunption against liis ability to contract, or his liability for his acts, is virtually of no force. See John lUiston's t'ase, 1 Leach, 455. The act of an iiliot before iiiijuest found is voidable oidy, like the e, which was held a crime in itself, ami. therefore, as not all'ording any excuse Im other crimes, or for avoiding a civil cui- tract. Co. Litt. 247 n, >' ,• Bcvcrlev'' Ca.se, 4 Co. 123 b. All the old aiitlioritu- were to this eH'ect. See Jeiik. Cdit. ■!"; Fitz. N. B. 202 I) : 1 Rolle, 2 ; Br. T'-iA. 62 ; Cr. Eliz. 398, 622 ; Johnson v. MeJ- dlicott, 3 P. Wms. 130, note A. •» r,r Parke, B., in Gore v. i^H'S'i". 13 M. & W. 62(i ; Yates v. Bocn, 2 Stni. 1104; Cole (.. Hobins, Bull. N. !'■ 1'- Cooke V. Clayworirli, 18 Vcs. 1:2; rii"i'ip- son V. Leech," 2 Yen. 198 ; Sniitli r. Carr, PAKT II.] MENTAL DISABILITIES. 147 A drunkard, like a lunatic, is liable for necessaries,^ and his contract is voidable only and not void, and is therefore capable of ratification l)y him when he becomes sober.^ citeil in V;it(s r. lioeii, supra; Molti'ii v. Caiiiiniix, 4 Kx. iit !>. li). In Uoiu i'. Gib- ..011, 13 -M. & W. C-Jo, ToUuck, C. 15., siiitl ; " Ahln)ii,i,'li Ton lie ily it was coiisid- (■reil that a man sliuiilil bu liablu uiion a (iiiitiact iiiadc by him \vhi;n in a stato of intoxiuatiuii, on iht; j,'rounil that he sliouhl not lie alliiweil to stultify hiniself, the ri'sult of tlio motk'iii iinthoritii'M is, that no coMtiaet mailu by a jwison in that state, when he does not know tho coiise- iliU'iices of his aet, is bindin,!,' ujion liini. That iloi'tiine a[iiiears to me in aeeordaneo with reason and justice. With ref,Mrd, however, to eoiitraets which it is soui,'ht to avoid oil the giouiid of intoxication, there is a ilistinction between cj-pirss and implicil eiiiitraets. AVheru the n;,'ht of .lution is grouiiiled upon a s[)eoifi(; distinct lontraet ivijuiriiii: the assent of both par- ties, and OIK- of them is incapable of as- seiitiiij,', in such a case there can be no hiiidinj,' eoiitiaet ; but in many cases the law lUies not rei|uire an actual agreement hetweeii the parties, but implies a coii- tra't from the circumstances. In fact, the law itself makes the contract for the ]«utii's. Thus, in actions for money had ;md received to the jilaintitr's us(>, or iiioney paid by him to the defendant's ii>:o, the action may lie against the de- fiiidaiit, even though he may liavc pro- ti'steil against such a contract. So, a trailosniaM who supplies a drunken man with iieii'ssaries may recover the jirice of thiiii if the party keeps them when he K'cmnes solier, ahluuigli a count for goods liaivaiiK-d and sold would fail. In tliis t'dsi' the d<-feiiilaiit is still lialile for the oonsiilciati(jii lor his indorsement, al- tlifmi;li tlie indorsement itself can give the I'liiimiirno title." And, accordingly, the jili'a of the defendant, in ail action by till' iinlorsee of a bill of exchange against !h'' indnr.er, that when he indorsed the liill he was so intoxicated, and thereby so eiUiiily deprived of sense, understanding, aiul the ii>e of his reason, as to be unable to coinpfeheiiil the meaning, nature, or ttr''i't of tlie indorsement, or to contract tlifietiy ; of which the jilaintiff, at the tinii! of the indorsement, iiad notice, was InM a good jilea. (iore v. (iibsoii, 13 M. & W . (i'j:i. Courts of eipiity, on firoiinds of pulilic policy, do not incline, oil the 0111' hand, to lend their assistance to a pefMiii who hasiibtainedan agreement 'Tilt'iil from another in a state of intoxi- fatioii; iiiiil, on the other hand, they are e'lually unwilling to assist the intoxicated party to get rid of liis agreement or deed, merely on the ground of his intoxication at the time. Tliey will leave the parties to their ordinary remedies at law, unless there is some fraudulent contrivance or imposition practiseci. Caniplit 11 v. Ketch- am, 1 Bibb, 4U0 ; Wiiite v. Cox, 3 Jlayw. 82 ; \Viggles\vorth v. Steers, 1 lien, k M. 70 ; Taylor v. Patrick, 1 ISibli, Kis. See, also, us to tlie etl'ect of intoxication on contracts, Barrett v. Baxton, 2 Aiken, 1(57; King v. Bryant, 2 Ilayw. (N. C.) 394; IJornaighs y. liiciiman, 1 (Jieeii, 243; Keiuicker v. Smith, 2 Il.ir. &: J. 423; Arnold v, Hickman, C Muiif. \i> ; AVil- liams V. Inabuot, 1 Bailey, 343 ; Seymour V. Delancy, 3 Cow. 445 ; Dorr v. Munstdl, 13 Johns. 430 ; Butler v. Mulvihill, 1 Bligh, 137 : Cole v. Hobin.s, Bull. N. 1*. 172 ; I'itt r. Smith, 3 Campb. 34 ; Stockley v. Stockley, 1 Ves. k Bea. 31 ; Itich V. Sydenham, 1 Ch. Cas. 2(»2 ; Say t'. I5arwick, 1 Ves. & I5ca. l'.»'J; Dunnage v. White, 1 Swanst. I,"i0 ; Alountain v. Ben- nett, 1 Cox, 3.')3 ; Faille v. Brown, cited in 2 Ves. Sen. 307. But a contract ob- tained by fraud and circumvention from a person in a state of intoxication is void in e(|uitv. Buth'r v. Mulvihill, 1 liligh, m ; Rich V. Svdenham, 1 Ch. Cas. 2ii2 ; Say V. Barwiek^ 1 Ves. & r,ea. Hi!» ; Dun- nage V. White, 1 Swanst. ITiO; Mountain V. Beiinet, 1 Cox, 3.")o ; Faine v. Brown, cited in 2 Ves. Sen. i5o7 ; Anonymous Case, cited in 8 Ves. (57 ; L'owlv v. Nai- lor, 118 U. S. 127- And where there is any unfair advantage niaile of his situa- tion, or any contrivance or management to draw him into drink, he is a proper ob- ject of relief in a court of ei|uity. I'ooke V. Clavworth, 18 Ves. 15; Cory v. Cory, 1 Ves". lit; Jdlmson v. Medlicott, 3 P. Wins. 130, note n. But a jiarty cannot, in general, resist s])ecilic ]iei rormaneo merely upon the ground of his intoxication at tiie time of making the contract, tho other partj' not liaving been aware of liis condition. Lightfoot v. Hi'ion, .'5 Y. & C. .ISi! : Shaw r. Thackiay, 1 Sin. & (I. .537. But a contiaet, unreasonable in itself, en- tered into by an habitual drunkard when in a state of exciteineiit from excessive drinking almost amounting to madness with a person who, at the time, had liiii in complete subjection, will be set aside It is not necessary in such a case to ]irove actual madness. Wiltsiiire v. Marshall 14 W. K. 602 ; 14 L. T. \. s. 39t5. J . Ea of Ports- mouth, 7 D. & Ry. 614 ; Cou^e v. Clav- worth, 18 Ves. 12 ; Gore v. Gibson, 13 M. & W. 623; Yates v. Boen, 2 Str. Ilfi4; Cole c. IJobbins, Bull. N. P. 172 ; Jlitch- ell V. Kingman, 5 Pick. 431 ; Sainiul v. Marshall. 3 Leigh, 567 ; Barrett v. Bux- ton, 2 A :en, 167 ; Prentice v. Achorn, 2 Paige, ou. h i 'If '11 ' ! PART III.] MARRIED WOMEN. 149 BOOK II. PART III. MARRIED WOMEN. 1. General Principles. At common law a married woman is incapable of making a valid contract so as to render herself liable thereon, and any at- tempted contract made with her, unlike those made with infants, lunatics, and drunkards, is absolutely void ; ^ and, therefore, is in- caitablc of being ratified by her after her coverture has ceased.'-* The personality of the wife is merged in that of her husband,'^ and so far as her contracts at common law are binding at all, they are binding on the husband.* 1 "Tlie contract is void, for a feme covert lias not jwwerot' herself to make any contract. And it is not like to the case of infants, for their contracts are to some intents good, and may be made good by them at their age ; but the contracts of femes covcrfs are absolutely void, for they have not any i)ower of will, but are subject to tlu' will of their husbands." Manby v. Scott, 1 Lev. at p. C. •i Sou .Marshall v. Rutton, 8 T. R. 545 ; Moirir, V. Norfolk, 1 Taunt. 212 ; France V. White, 1 Jl. & G. 731 ; Burch i'. Leeke. 7 M. & (t. 377. AVhen a married wor.ian, wlio is also an infant, execute-s an insvru- nicnt witli her husband, which is void be- canse of her infancy, she has a reasonable time after the coverture has ceased to avoid the act. Sims v. Everhardt, 102 U. S. 3U0. ' They are "one person in the law." Co. Litt. 112 fit. * In Carn v. Rrice, 10 L. J. Ex. 28, a wile's clothes, bought with her separate income, were seized under an execution asainst her husband. And this rule still prevails wherever the common law is in torce, and is not varied by married women's relief acts. By the common law the per- sonal jiropcrty of the wife is the absolute liroperty of the husband, and, at his tleath, becomes assets in the hands of his personal representative, and if the hus- band and wife sell and convey her land, and he receives the consideration-money without any reservation of rights on h«r part, the money belongs to him. Ken.ser V. Trigg, 98 U. S. 50 ; Ham bin v. Jones, 20 Wis. 536. It was held in Illinois, that, as it is a presumption alwavs indulged in by the courts that the common law prevails in such of the States of the Union as are formed from territory which onee bi^longed to the colonies of England, unless it is proven as a fiict to the contrary, it will be j>resumed in Illinois that the common law prevails in Indiana and Wisconsin, as re- gards the marital rights of the husband. It was hence held tliat furniture bought by the wife, out of money given to her by her father before her marriage, and earned by her after her marriage, and which moneys she had with her in Indiana and Wisconsin, kept in her own possession, control, and management, was liable, at common law, to be taken in Illinois under an execution issued against her husband ; such furniture not having been brought within the protection of the Married Woman's Act of 1874. Hanehett v. Rice, 22 111. App. 442. Accord, Dubois v. .lack- son, 49 111. 49 ; Cummings v. Cummings, 143 Mass. 340; Farrell v. Patterson, 43 •'H: . !8 m''\ wi i\ ^ tin n mhi 150 COMMENTARIES ON SALES. [book II, 2. Married Women Living with thkir Husbands. While a wife is living with her husband, the general rule is that a wife cannot bind her husband by her contract, except as liis 111. 52; Tinkler v. Cox, 68 ill. 119; Siivagu V. O'Ncil, •14 N. Y. 2'.i8; Liuhtuu- burg(!r V. (Jniliaiii, [A) I ml. 288 ; lifcvcs v. ^Webster, 71 111. 307 ; Walker v. IJcaiiiey, 36 Pa. St. 416. So, in Hainill v. Henry, 69 lowii, 7r)2, it Was held, in nn action in chancery to subject certain n.'iil estate, the title whereof was in a wife, to a jii(lf,'ineiit against her husband, that moneys paid for the purchase of the property from the earnings of the wife (who was living with li(!r husband), in keeping boanlers in the family, selling butter and milk and the like, belonged to tho husband, ami the property to that extent was subject to the judgment against him. See Croup v. Morton, 49 Iowa, Itj, to the same ell'ect. In (Jeorgia (Code, §§ 175()-17t;o), where a wife has been living sejiarate from her hus- band, or has been declared "a jiublic or free trader," under the Code, then, in either event, her ac(|uisition3 become her sei)arate e.-'ate, to which the marital rights of her hu au\ do not attach. IJut when she is living with her husband, anil ha.; !iot been declared " a public or free trader," her earnings, no matter in point or princijile ot law how claimed, whether from keeping a boarding-house, or from washin", ironing, or cooking, vest in her husband, and real estate bought by him with such earnings is liable to his debts, and is not alFected by any trust in favor of his wife. Gorman v. Wood, 73 Ga. f.70 ; 68 Ga. 524. And, notwithstanding the statutes which have been passed giving to married women rights of property against the husband and his creditors, property purchased by a woman on credit, or with her earnings, has been held to be subject to the levy of nn execution against her husband. Rob- inson V. Wallace, 3 Wright, 129. And where the contest was between a wife and her husband's creditors, it was ruled that mere evidence that she purchased the prop- erty during the; coverture was not sufKcient to give her title ; that it must bo satisfac- torily shown that the property was jiaid for with her own separate funds, and, that, in the absence of such evidence, the presumption is a violent one, that the husband furnished the means of payment ; and it was held that this rule applies to the purchase of both real and personal estate. keeny v. Good, 21 Pa. St. 349 ; Camber V. Gamber, 18 Pa. St. 306. And to over- come this presumption theie must be satis- factory evidence that the money was her own and not that of her husband. Seitz V. Mitchell, 94 IT. S. 580; Walker v. Ueaniey, 36 Pa. St. 410 ; I'.irvin v. Ciipo. well, 9 Wright, 89 ; Uradi'md's Ap|iciil, 5 Casey, 513 ; Aurand c. Sbaetler, 7 \\'ri;,'lit, ?A')'-i ; Switzer v. Valentine, 4 Ducr, iiti; Glann v. Vounglove, 27 Harl). 4Sii ; Wod.l. beck V. Havens, 42 Marl). 66; llidcr v. Hulse, 24 X. V. 372; Cainors v. Cainors, 4 Wis. 131 ; Klliott v. IJentlev, 17 Wis. 610; Edson v. Ilayderi, 20 Wis. .N2; Duncan v. lluselle, 15 Iowa, 501 ; Cnii: it V. Redford, 17 N. J. Ivj. ;5(;7. In .Vis. souri, too, it has been held, tl::it tiie ilarried Women's Acts are to be siiiiily construed, on the ground that st.ituti'S innovating upon well-estal)lishcd coininon- law principles are. to bci restricted to the limits of tlie precise extent to wliiili tlii' language of the statute goes, and to e.\ti'ii(l no further. Hence, on the coniiuuii-liiw presumption that personal pi'operty t'ouiij in the possession of a fciiic covcrl is the l)rcperty of her husband, — her possession being his po.ssession, — whei'e a niarriid woman undertook by her own testitnony, unsupported by any other eviilcnce, to overcome this presumption, and the jury found against her, the court refused to disturb the verdict, llenielreieh v. Carlos, 24 Mo. App. 264. See, also, McKciriui <: Kinney, 22 Mo. Apji. 555 ; Weil v. Sim- mons, 66 Mo. 619, 620. In Alaljaina, also, it has been lu^ld that the eainings of the wife are the property of the husbiUhl, ami though the husband may renounce ail rii,'lit to the earnings of the wife, and pcniiit iier to retain them as her own, such rcmin- ciatiou is void as against his existing creditors. Glaze v. Bhike, 56 Ala. 379 ; Gordon v. Tweedy, 71 Ala. 202 ; rioyitt V. Potter, 80 Ala. 476 ; Pvnum v. FnMer- ick, 81 Ala. 489 ; Shaetler v. Slic|iiiar(l, 54 Ala. 244 ; Carleton v. liivers, //-. 4; Kciiiv i>. ("rood, 21 lb. 34t» ; Ilallow- v\\ V. llusiei', .'!,'. Ih. 375 ; Wititci- V. Walter, :!" ///. l.'>5 ; liobinson v. Wallace, ;i'.' ///. I'J'.i. But, ill Alnhamn, under the Co,le (if lS7t'>, § 'J709, it was lield, where lui'Miiiid iir(i|icrty jinrehased by tlie hus- iiaii'l w.is [laid for with money that was of tliu ('ii/7/('.< of the wife's statutory separate cs ate, the ]iroiieity tlius purchased became tlic .S('iJarate cslate of the wife, and that the iModiuts of lands which were the statiitiiiy estate of the wife, could not be taken fur [layineiit of the husliand's del)ts. Ivniiiiii V. Dibble, 75 Ala. 351. Sec Fldiininy i'. Owens, 74 Ala. 44<3. And set' lirl(li,'iiiaii I'. Uridfonan, 138 Mass. 58 ; Howard' V. Bryant, <» Gray, 23!* ; Alex- ander !'. Crittciideii, 4 Allen, 342; Com- iiioinvealtlw. Manley,12 Pick. 173 ; Turner r. N'vc, r Alien, 17(), as to reduction of a wife'.'; i7/i.s,,s' /,) action to possession. .And '(■(', also, as to a husbaiul's ri^'hts therein, ill Indiana, on surviving his wife, not liaviiiL; reduced the chmc into possession, I'dinii V. CritclKdl, 110 Ind. 31. See as to tin; cxeiniitidi) of a feme cnv-rt fr.>m lia- liility under her contracts, where her sepa- rate estate is not cliarf,'(!(l. Post >•. Koch, 30 Fed. hep. '2ii8 ; or where she has none, ''"11(1(111 V. r.iur, 4!) N. J. L. 53 ; Eckert v. R'Miter, 4 Vidoin, 2ii6 ; Von Kirk v. Skill- man, 5 VrooMi, 10!» ; Lewis v. Perkins, 7 Vrooni, l.'iH ; Wilson v. Herbert, 12 Vroom,4r(i, Penty u. Simonson, 2 Heas. 232, Iteal estate paid for by a member of a firm out of the assets of the firm, and conveytul to his wife, was, on the bank- ruptcy of the firm, held to be the assets of the linn. I'hipps v. Sedgwick, 95 U. .S. 3. In the National Bank of Railway v. Brewster, 49 N. .1. L. 231, an action was brought, by the indorsee before maturity, against a married woman, on a note given by her to a lirm of whi(di her husband was a member. It was Indd that the con- tract between husband and wife was null and void, and that the defect was inherent in the contract, which, thcrcl'ore, iiould not be enforced at law. In Oould i». Oould, 8 Stew. Eq. 37, anirnied, Ih. 5tJ2, a wife lent money to her husband's lirm upon their jironiissory note. After his death, she brought suit at law against the surviving members of the lirm. .Shi! was nonsuited, and it was held that in order to recover the money she must have re- coursi! to e(iuitv » Ereestone"( Butcher, 9 C. & P. 643, per Ivord Abiii^er ; Atkins i'. Curwood, 7 C. (& P. 756 ; Waithniau r. Wakefudd, 1 Camp. 12(1 ; Etherington v. Parrot, 1 Salk. 118; Scott v. .Manby, Sid. 109; Montague V. Es|iiinisse, 1 ('. (& P. 356, 5112; Ilouliston v. Smith, 2 C >& P. 22; Mainwaring J'. Leslie, /(/. 5(i7 ; < lillord v. Lalon, 3 (''. &. P. 15 ; Heed v. Moore, 5 C. (.t P. 200 ; Atkins v. Curwood, 1 C. & P. 756. In Lane v. Iroiiiiionger, 13 .M. & \V. 368, the court Indd that the law as laid down in Ereestone v. Butcher, 9 V. Si, P. 647, is substantially correct, though there may be a trilling inaccuracy in stating that the cvtravagance of the bill would nhme repol the inference of agency ; that that alone, perhaps, would not lie sufficient, but it might be repelkd by that and other ""'Mi il ,i: it' 152 COMMENTARIES ON SALES. [book 11, As stated above, the whole question is one of agency, express or implied. Where a plaintiff seeks to charge a husband or a circuiiistaiicps to^jethor. But in this cnso (Liiiio V. lri)iiiii()ii,i;er) the judgf, iit thu triiil, read, aiiinovcd, nnd adopted tiie law ns laid down in B'reestone o. Butcher by Lord Abiiijjer ; and the Court of Exclieijuer, in Lano (.'. Ironmonger, by their ju management of the house, was doulitwlbv Brain well, L. J., in Debenham v. .Mellon', 5 (J. B. Div. at p. 3!)'.>, where it was lieM that the wife is the general agi nt ot Ikt husband with reference to sueli matters, is are usually under the control of the wife, and, therefore, where the wife of a laborer incurred a debt for provisions for tlie nsc of the family, the husband was lieM liuMe, " with reference to the circuni.itaiioes of this ca.se," thougli ho had supplied liis wife with money to keej) the lioiise ; and Read V. Legard, 6 Ex. 636, wheie it wis held that a husbanrovido for her and them vliatfvcr is necessary for their suitable I'lutliiiif,' and maintenance according to his and tlicir situation ami condition in life. .\n(l unlinarily he will be presumed to as- sent to her making such i)urchases as in tlm cdMiluit of the domestic concerns are proiiiM- tor her management and supervi- sion ; but he is at liberty to withhold such assent and destroy such presumption by an express proliihition ; and if lie do so, no one, having notice tln^reof, may trust the wifi' in reliance upon his credit, uidess the Inisband so neglects his own duty that suiiplies become absolutely necessary ac- cording to their condition. In the pres- ent case, therefore, tlie sale of the goods being iMoved, or not being denied by the (lel'endant, the burden of proof was ujion the ilefendant to show that the credit was given against his express dissent, and no- liee thereof to the plaintilfs. This being prnved, the burden was upon the plaintilfs to slinw tliat the defendant did not suitably ]irovide for his family according to his and their condition, (if that the plaintiffs were nut to bo the judges excejit at the risk of establishing it by proof, anil of that they oll'ered no testimony whatever ; bnt on tJie trial objected to the defendant's lirovini; al!irmativ(dy that he did so, and tile justice excluded evidence offered by liini tending to show in what mode, and in iKut to what extent, that provision was inaile. The defendant was not bound to siinw alliriuatively that he did so jirovide, an(l \et, so far as he appears to have been lienriitted, his testimony went to show that he did niaku suitable provision. Nor is it enough that the articles sold are in their nature and description necessary and suit- able for the use of the wife and family. If they were not so there would be no pre- sumption of the husband's assent to the purehase in any case. It is indispensable, where the vendor has boon forbidden to Hell upon the wifii's reiiuest mi the hus- band's credit, that the vendor show not only that the goods were in their nature .suitable and necessary, but that the bus- banil neglei'ti^d liis duty to jirovide su|i- plies, and that for that reason they were necessary. Tliese rules are elementary. Modern le'.dslatioii, in preserving to the wife all her own property, has taken nway some of tlie grounds upon which tiic duty of the husband wns placed by the common law ; but it has not yet gone so far as to invest the wife with a discretion which the husband cannot control, and enable her to siM'iid his proj^rty or involve him in debt against his will." This .sound ex- l)osition of the law has been folioweil in this country witii even greater uniftu'iiiity than it has been in Kngland, where, as will be seen from the authorities we cite, some of the decisions cannot be sujiported, and have been in elfect overruled by some nf the hitest cases. See, further, Mott v. Comstock, 8 Wend. .'')44; Kimball v. Kcyes, 11 Wend. 33; Blowers v. Sturtevant, 4 Denio, 49; Oilman i-. Andrus, 28 Vt. 241; Waithman v. Wakefield, 1 Camp. 121, pi'.r lioril EUenborougli ; Sawyer v. Cutting, 23 Vt. 486 ; Heiijamin v. Benjamin, 15 Conn. 347 ; Fclker i". Kmerson, 10 Vt. 653 ; Church v. Landers, 10 Wend. "!• ; Kotch V. Mills, 2 Conn. 638; Hughes r. Chadwick, 6 Ala. 651. In Savage r. Davis, 18 Wis. 608, the law is succiiictly laid down thus : — " A wife may undoubtedly act as the agent of her husband, and in that char- acter transact his business, coiitnd his property, and make contracts in respect to it which will bind him. This agency, its nature and extent, and whether it in- cludes the particular contract, may, as in other cases, be inferred from a variety of eirciimstances. It is a question for the jury to determine from all the evidence, whether the wife li.id the authority to do the act or make the contract in c|Uestion, or whether her act, unauthorized at the time i'i i-i performance, was rendered valid ' ■ ■ siibse(iuent ratifii'ation by the husband, in the management of house- hold affairs it is said that it will he pre- sumed, until the contrary apjiears, that she acts as the agc^ of her husband (I'iekering i'. Pickering, ^ ... 11. 120); but her j)ower to bind her husband by her contracts rests upon the sole ground of agency, .she having as wife no original and inherent jiower to bind him by any contract made by her." Leeds v. Vail, 15 Pa. St. 185 ; Freestone v. Butcher, 9 ,^!1 j>^i.l !' 1 .^y V I' I I ,1 \i \) n '■ I' iii I I' A ?! Mi ill ' N .i 154 COMMENTARIES ON SALES. [hook II. if there be express authority, there is no room for (loul)t; nnd if the authority ia to be inijilied, the presumptions whieh may be ud- C. & I'. 043 ; Diiy v. Huriilinm, 3rt Vt. 37 ; ilohnstoii r. I'ikc, 14 Lii. Ann. 731 ; Mur- Him V. IIii>,'lii!.s, 'JO Tux. Ill; Fuilonj; v. llysoiii, 3,1 Mu. 332 ; Ktlicriiigtoii v. raiTot, 1 Sulk. 11« ; AI.;f 'utcliuii v. Mc (iiilmy, 11 .lohiis. 2Sl. Tin- liiw as laid (luwii ill Holt V. Hi'ii'ii, 4 H. & Aid. 25'2, was fdllowt'd ill ilai'shiiw v. .MtM'rviiiuii, 18 Mo. iDii, that it' tln^ liu.stiainl inakuH a ri.'asoiialilo allowaiKso to thu wile fur lu'ct's- mirit'N, diirinj^ his tciii|iorary alisuiicc, aiilinH hor with ^foods, tho hiushaiid is not lialilo uu!(!ss the tradi'sinan can hIiow that tho nllowMiico was not siiii](iii'd. Si't! further, ».H to the husband's lialiilitii's on his wife's contracts, .Sterling' i". I'otts, f) N. .1. L. 773 ; VVillianis v. Oowaid, 1 (Irant (Pa.) Cas. 21. Ill Thciiott i\ na^ior, 9 Bosw. (X. Y.) i»78, th(! ]ilaintill's sold j^oods to the de- fendant's wife, after having been forbid- den by the husband to do so. The court held that the plaintill's coultl not re- cover, unless under a .subseiiueiit jironi- iso to pay, or that they niadu it appear that the articles funiislicd were necessary and suitable to her condition in life, and tliat she was not otherwise jtrovided for by her husband. The husljand is bound to provide liis wife with necessaries suit- able to her situation and his condition in life. He is liound by her contract, for onlinary purchases, from a ])resunici as- sent-on his part ; but if his dissent be jjieviously made known, the presumption of his a.ssent is rebutted, and he is not liable, unless the seller shows the abso- lute necessity of the purchase for her comfort. Ktherinston v. Parrot, 1 Salk. 118. Outside of the matter of necessa- ries, a wife, as such, has no oiif^inal or inherent i)ower to make any contract which is obligatory on her husband. No such rif^ht arises from the marital relation be- tween them. If, therefore, she possesses a power in any case to bind him, by her contracts made on his behalf, it must bo by virtue of an authority derived from him, and founded on his assent ; although such assent may be precedent or subse- iiueiit, and cx[)ress or implied. Whore such authority is conferred, the relation between tlieiu and the conseiiuences of that relation are analogous to those in the ordinary case of principal and agent. Anrl that she has the capacity to be consti- tuted, by the husband, his agent, and to act as such equally with any other person, there is no doubt. Fitz. Nat. Brev, 120 (x. ; Vin. Abr. tit. Baron rcsuiiiptioii would cxi.-.t as to aii- other person; and also will, in soi mm.s, imply a larger authority to the \\\{r liiiiri to an ordinary agent ; and this piiliajis, whether the hllsiialld be alisi'iit liiiiii liiimu or not ; and that, in other cases, wlieii' lio III! is absent, a presuiiiptioii would aiise that his wife has authority to ait in liis behalf, which would not exist if he wimv at home ; thesit inferences being fouiiiliil on the fact that it is usual and eusuiMiuiy to permit the wife to act in such cases. See ileader v. Page, 3i) Vt. Iloi!, whm the wife's agency was sustaiiieil ; .\ii(ia., 1 Str. r>i7 ; Church v. Landers, In Wcml. TJ ; Spencer v. Tisne, Addis. It, ;jlij. I!ut this does not sanction the ilmlriiie that the wife, whether the IuisIhiimI is abroad or at home, is presumed to lii'tiii' agent of her husband geni'rally, y her contract for artieU's suitable to that station which he per- mits lur to assume, still this prosumption is always open to be n.'liiiltcil.' Hut this does not militate ajj^ainst the rule that the liusband, as wi'li as every principal, is conelud(!d from dcnyinir that the a<.'ent luid siK'h iiutliority as he was held out by his priiuMpal to have, in .siicli a manner as to raise a belief in such authority, acted on in inukiau'tiie contract sought to l)e enforced. On these principles, it was held that a verdict for necessaries suitable to the estate and ilcgree of the husband, ol)tained from th(! plaintiffs by tin; wife of tlie defendant without his authority and contrary to his order, could nut be sujiported.^ This case has iicen since repeatedly fol- lowed and approved, and it seems in harmony with all the well- (k'cideil cases on the subject. We follow up the consideration of flic siiiiject under the liglit cast upon it by the latest cases. \\'lic'ro the husband neither does nor assents to any act to show that lie has held out his wife as his agent to i)ledgc his credit for irooils supplied on her order, the question whether she bears that clianioter uuist be examined U|x)n the circumstances of the case. That question is one of fact. The management of the husband's house would raise a presumption of agency as to matters neces- sarily connected with that management, which miglit not be got rid of liy a iww i)rlvatc arrangement between husljand and wife ; otherwise where such management did not exist. Thus, A. was the manager of a limited conqiany's hotel at Brad- ford, where his wife acted as manageress. They cohabited. He made his wife an allowance for clothes, but forbade her to pledge his credit for them. She purchased clothes in London, the bills i < wifi>, sn Inng as she dops not violate her duty as will' ; that is to say, so loii<{ as siic is not f,'uilty oC ailulti-ry or elopoiiicut. Till' Jmsliaiiil may ilisciiart^c tliis ohlij;a- tii>ii hy suiiplyiii;,' her with necessaries liiiiisi'li' ur liy his a^'eiits, or giviiij^ her an ■iilii|iiiite alliiwaiiee in money, and then lie i-i not iialile to a tiaih-snian who, witliout liis authority, t'uniishes her witli necessa- • ii'.-' ; hut it he does not himself ]tlier the liushand is liahle for services rpnilireil his wife, or goods supjilied to nor, though the general rule is that the husband is not liable without his assent, express or implied, yit this assent may he inferred from eiri'iiiiistunres, such as the necessity the wile stood in lor them, and the relative situation of the ]iarties, as connected with the treatment of each otiier ; the (iiii'stioii ol necessaries being a relative lact, de|iendiiig upon tlu; stand- ing and cireiimstances of the party. .*>hel- ton V. Iloadley, 1;") Conn. 535 ; Ford v. Fothergill, 1 Msp. 211. .See .Scgelbaum V. Knsniinger, 117 Pa. St. 248, where the wifii's purchases, against the husband's notice, were liehl not to bind him. 1 Manby «?. .Si'utt, 1 Sid. 10!); Kthering- ton V. Parrot, 2 Ld. l!avm. 100« ; 1 Salk. 118; .Tolly v. I tees, 15 C. B. N. s. tJ28. '•^ Jolly I'. Rees, 15 C. B. N. s. 628. if 156 COMMENTARIES ON SALES. [book II. i'iii mj.i for wliich were made out in her name and were paid by her. She iifterv/ards incurred with the same tradesmen a debt for clothes, payment for which was deraanded from the husband, with wliom, previously, they had had no communication. On the trial before Bowen, J., the jury found that, at the time the goods were ordered, tht defendant had withdrawn from his wife authority to pledge )iis credit, and had forbidden her to pledge it. Judgment liaviii" been entered, accordingly, for the defendant, the Queen's Bench Division refused a new trial. On appeal to the Court of Appeals, the lords justices, following and adopting the decision in Jolly v. Rees,' affirmed the ruling in the court below.'* The House of Lords sustained the judgment.^ - 15 C. B. N. s. 623 ; 33 L. J. C. P. 177. 2 Debonham v. Mellon, 5 Q. B. D. 394. 8 Ibid., 6 App. Cas. 24. The law on the (iiu'stion is thus laid down by Lord Blarkbuni in his judj^iupnt : " I premise, as did the majority of the court in Jolly v Bee? (15 C. H. N. s. 628 ; 33 L. J. C. P. 177), by saying that no question arises here as to what would be the case if the wife had been left destitute, and had not been allowed what was i)roper for her estate and condition. If there had been desertion and cruelty, so that she had not been supplied with what was proper, no question arises here as to wliether she would not have had authority to pledge her husband's credit to get such things. That is not the case here at all. This is simply a case where a husband is living with his wife, though they are not keeping up any household e. tablishment ; and he in fact makes iier an allowance which both husband and wife seemed to think, so far as one can judge from appearances, would be sutlicient to enable her to supply herself with all necessary clothes. She did get clothes, and there v"i. Th(! question is whether the plnin- t'i;.-. \.-ho had ncverdeiilt with the husband fefu.e, were entitled to assume that th "» was such an authority to the wife im]ilied in the mere fact that the wife was living with her husbaml ; and I think the law is not so." See Moylan »'. Nolan, 17 Ir. (.'. L. U. 427; the Irish ca.se referred to above. » In .lollv V. Hees, 15 C. B. N. .s. 628 ; 33 L. .1. C. r. 177. a Per Willes, J., at p. 42. >l H.J I 158 COMMENTARIES ON SALES. [book II. necessary and suitable to the style in which the husband chooses to live, in so far as the articles fall fairly within the domestic department which is ordinarily confided to the management of the wife. And it is incumbent on the tradesman who relies upon the goods coming within that description to prove affirmativeh' that they do so. The burden of proof lies on him. Ho must show, not that they must have been such articles as come vvitliin that im[)lied authority, but so strong a probability that they were as to induce any reasonable mind to infer that the wife was actinfr under the authority of her husband. It is not enough, where the burthen of proof lies on the plaintiff, for him to prove facts which are equally consistent with the affirmative or the negative of the proposi- tions sought to be made out." A nonsuit was entered accordingly.' Kl » Phillipson v. Hayter.L. R. 6 C. P. 38. And see Freestone v. Butcher. 9 C. & P. 643 ; Kelly v. Phillips, 40 Barb. 390 ; Cromwell v. Benjamin, 41 Barb. 5.i8 ; Lane v. Ironmonger, 13 M. & W. 368 ; Ruddock V. Marsh, 1 H. & N. 601 ; Manby V. Scott, Sid. 109 ; 1 Lev. 4 ; Dyer -k East, 1 Mod. 9 ; Tod v. Stokes, 12 Mod. 244 ; Ethevington v. Parrot, 2 Ld. Raym. 1006 ; Waithman v. Wakefield, 1 Camp. 120 ; Bolton v. Prentice, 2 Str. 1214 ; Holt V. Brion, 4 B. & Aid. 2:)2 ; Montague V. Benedict, 3 B. & ('. 631 ; Ryan v. Sams, 12 Q. B. 460 ; Read v. Legard, 6 Ex. 636 ; Johnston v. Sumner, 3 H. & N. 261 ; Reid V. Teakle, 13 C. B. 627 ; Munro v. lie Chemant, 4 Camp. 215 ; Atkyns v. Pearce, 2 C. H. N. s. 763 ; ,\tkins v. Car- wood, 7 C. & P. 506 ; Mizen v. Pick, 3 M. & W. 481 ; Uichardpoii v. Du Bois, L. R. 5 Q. B. 51 ; Eastland v. Burcheil, 3 Q. B. D. 432 ; Shoolbred v. Baker, 16 L. T. 1357; Moylan v. iNokn, 17 Ir. C. L. R. 427. By section 2214 of the Iowa Code it is provided " that expenses of the family are chargeable ujioii the property of botii hus- band and wife, or either of them, and in relation thereto they may be sued jointly or separately." In Devendorf w. Emerson, 66 Iowa, 698, the defendant, in writing, forba very aiicli less of the " agreeing mind," of which Prof. Parson speaks, than in the cases to which he refers. For not only, in clothing l^w nilo in rogard to the presumed author- ity of tin; wife to bind her husbi^iid hv her coiitriK ts for iieeossaries has been heiu "not to lie cliauged in Minnesota by the stat- iiti's ivhitin}; to the rifjhcs and liabilities iif niiinircl women. Flyiin t'. Messenger, 28 Minn. 208. Henee.'it has been held tilcrc, where a wife living witii her hus- liainl einjiloyed a servant for ordinary iloinestic '.-ivice in their family, her hus- Iwiiil was iniiiliidly liable forsueh services. It is not necessary to show any exjiress aiitiuiiity fniin the husband to make the contract. This is within the presumed authority of the wife, and in employing such servant she is prcsunn 1 to be acting for the husband. "\Vagner v. Nagel, \i'i Minn. 348. 1 1 Pars, on Con. 434, note d. 2 Gore V. Gibson, 13 M. & \V. i,t ]. r.25. In this case both Parke, I!., ni i .Xlder- son, H., make the very conininn mistake of using the word " void " where tboy evident- ly meant only "voidable," and as e(|uiva- lent to " he cannot be compelled to perform the contract," i. c, without aflirming it. See this reflected on by Martin, B., in Matthews v. Baxter, L. U. 8 Kx. 133. See Molton v. (^amroux, 2 Fx. 487, for another instance of such a mistake. :i! ' ' • -mi ill I M'i i "! T'l I, III) : _ \ II I ^ ' 'n - i ' "' fi ■^ i M ' it ;■■ i ' » i : 1 IH 160 COMMENTARIES ON SALES- [book II. the wife with such a power, is there generally no- agreeing mind; but, as a rule, such power is exercised by the wife against the express dissent of her husband. She is clothed with the implied power to bind him as his agent, which arises out of the necessities of the case ; and she is, therefore, not infrequently, and very prop- erly, called an Agent of Necessity.^ Tlie usual cases of agency of necessity are those of married women and ship-masters ; ^ although there are many other in- stances where such a power springs into existence from the neces- sities of the case.* 1 In Johnson v Sumner, 3 H. & N. 261, 265, I'ollock, C. B., says : " We havo not to interpret a positive law, but to as- eortain the iirincipie on which a husband has been held hable for goods furnished to his wife, and see how far, or wliether at all, it applies to this case. Now, the principle seems to bo merely that of aj?ency ; the wife is spoken of as the hus- band's agent, as having his authority, and the declaration is as upon a contract by him through his wife as an agent. The ((Uestion then to be resolved is, had the wife authority to pledge the husband's credit. Now, authority may be express or implied, or arising from conduct, as where one person holds out another in such way as to induce a Ixdief of authority ; or there may be an aiUkorily from necessity, as in the case of the captain of a ship under cer- tain circumstances. If a nian and his wife live together, it matters not what private agreement they may ntake, the wife has all usual authorities ' " a wife. If the husband turns his wife away, it is not unreasonable to say she hasajt author- ity of necessity ; for sl»e by law has no property, and may not be able to earn her living ; but we should hesitate to say that if a laboring man turned his wife away, she being capable of earning, and earning as much as he did ; or if a man turned his w'.fe away, she having a settlement double his incomi! in amount, the wife in such cases couid bind her imsband." And see, per Lord Kllenborough, in Lidd- low V. Wilmot, 2 Stark. 86 ; and Clifford V. Laton, 3 C. & P. 15. In Manljy v. Scott, Sid. 109, it is somewhat quaintly said : " Here the question is, will the contract of .i wife for necessaries make her husband liable ? For nobody will dispute that usually the contracts of wives are voit', as all their power is transferred to the husband by their marriage. This is founded on the necessity of the thing ; and our law allows many persons who are otherwise disabled, in cases ot necessity to enter into contracts ; as an instance, it is a general rule that the contracts of all infants are void, but, nevertheless, in cases of necessity their contract siiall bind them. And that not only quoad cssr, sed quoad nccessitalcm cnnvenientim. (Peters V. Fleming, 6 M. & W. 45 ; Burgliart v. Hall, 4 M. & VV. 727.) As our law gives all that the wife has to her liusbaiul on marriage, if wives shall not be allowed to obtain food and other necessaries, wives will be in a worse condition than those who commit treason or felony, for felons shall be allowed from their goods reasona- ble estovers, to save them from starving. And the statute, Art. Cler., provides that l)ersons who abjure the realm shall have sufficient estovers of their goods. 13ut women cannot enjoy this privilege if they can take nothing without the permission of the'r husbands, but they will be left to perish, Tantalus-like, from thirst and hun- ger, amid the overHowiiig exuberance of their husbands' plenty." 2 If the master of a ;.hip contracts for the necessary repairs therefor, this binds the owner, although in that case the mas- ter was not obliged to lepair the shii). Yet, inasmuch 4s the repairs were necessary to save the ship from foundering, the law en- ables him to bind the defendant by his contract. Bridgman's Case, Hob. 11; Manby v. Scott, Si.l. 109. * " For when siie returned to her hus- band ai:d he woulii not receive her, nor pro- vide a maintenance for her, if iKibody would trust her so as to charge the hus- band, she must starve, for she canuoi; earn her living by her labor, for wliaU'VT she gains by her labor the husband sliall have, and therefore of necessity she must be trusted, and the thii-gs being neeessim' for her living, tlie husband ought to l* charged for them ; and the iiusbanJ's prohil)iting the plaintiffs to trust Inr, caii- not deprive her of the liberty \\]\'w\\ tk law gives her for preservation of in'i HI'': for the law for necessity ilispeiiscs «ilh things which otherwise are not lawful t' be done, as to throw down my neif^liboi s house for preventing the sjjreading nf lir'' to throw goods out of a boat when it is PART III.] MARRIED WOMEN. 161 The law is well established that if, through the misconduct of the liusband, his wife is driven from home, the law presumes an authority conferred on her as his agent to contract for her neces- sary sustenance, and he is liable, even though he may have cau- tioned tradesmen not to trust her. In Read v. Legard,' it was decided that when a man contracis marriage with a woman, he thereby becomes, in point of law, liable to maintain her ; and if he fail to do so, unless under circumstances which justify him, she has authority to pledge his credit; the true principle being that when a man marries, he contracts an obligation to support Ills wife, and in point of law he gives her authority to pledge his credit for her support, if circumstances render it necessary, she, herself, not being in fault. By the marriage contract, the parties contract a relation which gives the wife certain rights which the law recognizes. One of them is that the wife is entitled to be supported according to the estate and condition of her husband. If slie is compelled by his misconduct to procure the necessary articles for herself, as, for instance, if he drives her from his house, or brings improper persons into it, so that no respectable woman could live there, according to the decided cases he gives her authority to pledge his credit for her necessary mainte- nance elsewhere ; which means that the law gives that authority by force of the relation of husband and wife.^ And if a wife quits her husband's house under a fair apprehen- sion of personal violence, or because he brought a disreputable oveiladen, and Uie like." Manby v. Scott, 1 Li'v. 4. Closely analogous in principle, as lUrivti] fioiu the same ncccssUy, is the way of necessity, with reference to which it lias been held that if a way is claimed and enjoyed as one of necessity, and the way pii'vimisly in use shall be obstructed withuiit the fault of the owner of it, by lliiiid, li)r instance, he may, if necessary, Iiass over other lands of the owner of the .-"il, doinj; no unnecessary damage thereby. Wash, on Kase., lit? ; Leonard v. Leon- aid, 2 .Mien, 543 ; Farnum v. I'latt, 8 I'iek, :m ; Holmes i;. Seely, 19 Wend. J5n7; T;iyl..r v. Whitehead, •,: Doug. 749; K'apeis r. MeKee, 1 Strobh. \(iS ; Henn's I Case, W, Jones, 296. And where a pub- jlic way beeoiTu's impa.ssable, by being luverllowed or out of repair, the namsih/ Iwill j\i.stily a traveller in removing enougli ol tlie fences of the adjoining close to en- ible liini to ))ass around the obstruction, piling no unnecessary injurv. Wash, on "ase., V.iQ; Taylor v. Whitehead, 2 l)oiif,'. 74.1 ; Campbell v. Race, 7 Cush. |fS ; liiiilard I'. Harrison, 4 Mau. & S. ^■; ibdnies V. Seely, 19 Wend. 507; ptate w. Northumberland. 44 N. H. 631; TOL, 1. U Williams i'. Safford, 7 Barb. 309. In ■\ later part of this work {/lost, Hook II., Part 1 V. ) we treat of ship-masters as agents of necessity. 1 6 Ex. 636. '^ Per Alderson, R., in Kead v. Legard, 6 Ex. at p. 642. If the husband turns his wife away, it is not unreasonable to say she has an authority of neeessity ; for she by law has no property, and may not be able to earn her living. Johnston v. Sumner, 3 ^ & N. 261 ; Evans v. Fisher, 5 tiilm. 569 ; Snorer v. Blair, 1 Dutch. 94 ; Nortor v. Hhodes, 18 liarb. 100 ; Zeigler V. David, 23 Ala. 127 ; Clement V. Mattison, 3 Kich. L. 93 ; Mayhew v. Tliair, 8 (Jrav, 172 ; Emery v. Emery, I V. & J. SOI ;■ 6 Price, 336 ; Horwood v. Hetfer, 3 Taunt. 421 ; Baker v. Sampson, 14 C. B. N. s. 383 ; Williams v. Fowler, McClel. & Y. 269 ; Turner v. Rooks, 10 A. & E. 47 ; Brown r. Ackroyd, 5 El. & Bl. 819 ; Johnston v. Manning, 12 Ir. C. L. R. 148 ; Forristall v. Lawson, 34 L. T. 903 ; Harris v. Morris, 4 Esp. 41 ; Harrison v. Grady, 12 Jur. n. h. 140 ; 13 L. T. 369. n i : ] m 162 COMMENTARIES ON SALES. [book II. woman to reside in it, that is equivalent to her husband's turning her out of doors ; ^ as is also the reasonable apprehension on the part of a wife of being placed under improper restraint ; ^ or of being actually restrained improperly in a madhouse.^ If the husband has turned the wife out of doors, and does not give her adequate means of subsistence, according to his degree in life and his fortune, the law makes her his agent to order such things as are reasonable and necessary for herself, but it givca her no liberty to go into any extravagance, or to pledge his credit for anything beyond what would be reasonable and necessary for her sulbslstence. If she be living in open adultery, her husband is not bound by any contract which she may make even for necessaries. If the husband has not turned the wife out of doors, and they have separated in consequence of domestic differences, and they do not live together, another consideration arises, which is this : Has the husband given the wife sufficient for necessaries suitable to his de- gree ? For if he has he is not liable for her debts, even for neces- saries; for if the wife has from her husband wherewithal to provide herself with necessaries, she cannot go as her husband's agent and bind him even for necessaries.* If a married woman be living separate and apart from her hus- band, it is the duty of tradesmen to inquire under what circum- stances the separation took place, before they part with their goods ; and if a tradesman do part with his goods to a woman living apart from her husband, the onus lies on him to prove that the separation took place under such circumstances as will entitle him to recover the price of those goods against the husband. If a tradesman will trust any woman that comes into hi '. shop, be must do so at his peril.^ If a husband improperly compels his wife to leave his house, he thereby gives her power to pledge his credit for necessaries ; but if she goes away without his consent and against his will, a trades- man giving her credit docs so at his peril.^ Where the separation is voluntary on both sides, the husband is liable unless he has made sufficient provision for her maintonance.' » Houliston V. Smyth, 3 Bing. 127. '* Teinpany v. Hakewill, 1 F. & F. 438. * Houliston t». Smyth, 3 Bing. 127. * Per Ld. Abinger, in Enunett v. Nor- ton, 8 C. Jt P. 506. * Clifford V. Laton, 3 C. & P. 15. And see Montague v. Espinas.se, 1 C. k P. 356; Montague v. Baron, 5 D. & R. 532 ; Houliston v. Smith, 2 C. & P. 22 ; Mnin- Wf.ring !'. Leslie, 2 C. & P. 507 ; Hine ey V. Marquis of Westmeath, 6 B. & C. 200 ; Waithman v. Wakefield, 1 Camp. 120 ; Metcalfe t>. Shaw, 3 Camp. 22 ; Rentleyr. Griffin, 5 Taunt. 356 ; Etli.iiiit'ion r. Parrott, Ld. Kavm. 1006 ; 1 Salk. IIS. • Hindley v. The Marquis of West- meath, 6 B. & C. 213, per Biiytcy, .1. "> Hindley v. The Marquis of West- meath, 6 B. & C. 215 ; per I.ittWalf, J. ; Allen v. Aldricks, 9 Foster, (J3 ; Fmid V. Eves. 4 Harring. 385 ; Ciilkiiis v. Ung. 22 Bare. 97 ; Cary v, Pattou, 2 Ashm. 14U. her lius- circum- ith their woman ove that entitle nd. If sliop,he !,he js ; but a trades- usbandis touaucc.' ; Uontley^ |j,,.ington r. vilk, US. ts of ^Vesl• l,ittle.l»lf; , 03 ; Ftfn»' y v. '■riftiii, 5 Taunt. 3.56. S.^e also, ' iinston I'.Sumner. 31I.&N. 261; E Iw ..sv. Tow- els, 6 Seott X. R. 641 j f M. &.. G. 624. » Wall is V. Bi.Klick, 12 \V. R. 76. See Jolly V. hi'es, 16 C. B. N. s. 628 ; Renean I'. Teakle, 8 Ex. 680 ; Phillii.son o. Hytcr, L. R. 6 C. P. 38 ; Johnston v. mnwr, 3 II. & N. 261. • iliiclrjkinson v. Fletcher, 4 Camp. 70 ; M»'n I'. I'i.k, 3 M. & W. 48i ; Rawlvns "Vandyke, 3 Esp. 260 ; Roeve t. Conyng- ham, 2 C. * K. 444 ; Holder v. Cape, 2 -:". k K. 437 ; Biffin v. Bignell, 7 H. & N. f77 ; Mallaliei. v. Lyon, 1 F. & F. 431 ; Eastland v. Hurchell, 3 Q. B. D. 290. ' Hartniann v. Tegart, 12 Kans 177. * BaiT i>. Armstrong, 56 Mo. 5. 7. ' Alniy V. Wilcox, 110 Mass. 443. AVith the exception stated above, where some of the American cases (im])roperly we think) place the burden on the hus- band of showing that he has provided necessaries for his wife, who has left him without her fault, and is living separate from him ; the mass of the cases in this country are in perfect accord with tiiose in England on the subject of the hus- band's liabilities for the wife's oontracta for necessaries under such circumstances. We examine some additional ca. 164 COMMENTARIES ON SALES. [book II. There is a case in the Supreme Court of the Province of New Brunswick ^ on the question of a married woman as an " agent of Marshall, C. J., of the Kentucky Court of Appeals, well lays down the law. This was a case where a niai'ried woinau commenced proceedings for a divorce, which, after bill and answei tiled, were stayed, at her instance, on bciiifj recon- ciled to her husband. An action was brought against the husband by the wife's attoriioy, for the expenses in hling the bill. The defendant proved tiuit his wife liad no cause for bringing the suit. Under the directions of the .judgi? of tiie Circuit Court, that if the bill was tiled in good faith on the wile's representations, tlie plaintiff was entitled to recover against the husband, the jury found for the i)laiu- tiir. On error, tlie juilgnieiit Iwlow was reversed. The law, as laid down by Chief Justice Marshall, is applicable to the whole subjuet. He says : " It is well set- tled that a wife who is wrongfully turned out of doors by her husband, or from ill treatment is ol)liged, by a regard to her own .safety, to leave his house, carries with her an implied credit, ot an implied authority to charge him for necessaries, which, as a wrong-doer, he shall not be ])ermitted to repel. The ]irinciple is, that Ijcing bound to support and protect his wife, he cannot relieve hitnself from this obligation by his own wrongful act ; but that if by his own improper conduct towards her, he drives lier to seek support and protection from others, or justilies her in so doing, the law, still holding him to his duty under the new circumstances which ho has brought about, implies an authority from him to any one who may furnish at his charge the necessary supplies or assistance, or an authority from him to his wife to ])rocure them upon his cn^dit. But the essential basis of this implication is that the bus- band shall have wrongfully i)rodueed, or shall at le;ust have assimted to the .st:pa- ration which has rendered it necessary that the wife should receive from others the supplies or assistance which are essen- tial to her support or jirotection. Hence it is laid down that if a tru lesman deal with a wife sc[)arated from her imsband, it is incuml)cut on him to make in- quiry ; that he trusts her at his peril, and that, if he would make the husband re- sponsible for the articles furnished, he must prove that the separation occurred under such circumstances as will render the husband primd facie li.ible. The same principles apply to the case of legal assist- ance furnished to the wife. If the con- duct of the husband towai-ds her makes it ecessary that she should apjjly to tlw law for securing either i)rotectiun oi sup- port, or if it be such as justifies litr in so doing, the husband will be chargciililV lor the expenses thus rendered neccs.ian In his own im|>roiier conduct. We liavi- sciii no case and perceive no sound ]iiiii(i|ilH which sanctions the iloctrine that tlic mi thority of the wife to bind her liii>liaii.i, or the rights of others who deal w itii lur or render assistance, to charge; her Inis band, may be established either by tlio mere rei)resentations of the wife, ')r bv the credit which those representations iniiy gain with the i>ersons to wIkmh .slie ap. peals. The authority rests not upon tlie representations ol the wife, nor ii]k)ii the credit given to them, but upon the ovi- dence of the facts upon which the law gives the authority. In case of s.'pura- tion, good faith renuires that thoso who deal with the wife, intending to chaise the husband, should iiKiuire t'nnn otlier sources, whether the circumstances will authorize them to charge iiiiii. Ami if they trust to the mere representations of the wife, they do it at their peril." See Shepherd v. McKone, 3 Camp. 32 -.^aiv on his credit ; and the rpi-'slion as to wlnther the articles sold and dc 'vercd are such a* iire actually necessary and propor uinli'r the circumstances of the particular cas)', is properly left to the jury. And wiifr*- the defendant's wife left hiiii, and niitaiiieii a divorce from him for cruelty, a suit for her board down to the time of olitainiii; the decree, was sustained ai;aiiist liiiti. Hancock v. Merrick, 64 Mass. 41. So, if the husband introduces a woniii: of profligaie habits into his honsi-, an! permits her to remain there as aii in- mate, his wife will be justified in with- drawing from his protection, and he m" be liable for necessaries furnislu'd her The law requires the husband to sup- ply his wife with necessaries, such as meat, » Bennett v. Jones, 4 Allen, N. B. R. 397. PART III.] MARRIED WOMEN. 165 necessity," which is of sufficient value to justify very full reference to it. It is a case where the defendant turned away his wife with- iliiiik, clotlifs, iiicdicines, etc., suitable to lii,, lif^'ive iiinl ciivuiiistauces ; iiiul if ho hv his trcatiui'iit sliall rciuler hi-r sitiiu- tidii iinsal'i', or tliuir lioinc unlit for a iiunli'st ami cliiiste woiiiuu to remain in, 111' si'iiils licr from liomu as olfectually as if 111- tiinu'J her out of iluors without luiiso, aiul uiuli'r such circumstnnct's he (.'ivcs liiT a general credit for ncct'ssaries, lor wliii li lie will he liable to any one fur- iiisliiii^' them. De.scelles i: Kailmus, 8 luwa, ;'>1. In Mott v. Conistock, 8 Wend. 544, the (leliiiilant, who was liviu}; anart troiu his wile, claimed that he supplied liis wile with necessaries suitable to her cuiiilitioii ; and the court held, that as ho |iiulV.>seil to imividc for her, it was ineum- heiit iii"iii a jiarty who had been exi)ressly fiirliiilileii to i;ive credit to a wife, in order to riiuhr tlit^ husband liable for subse- i|iaiit supplies, to show allirniatively and iliaily that the husband did not supply luT with necessaries suitable to her condi- tion. Kdf cases where, under the appli- latioii ol these and analoj;ous ])rineiples, tik' hiisliaud has been liable, and not lia- ble, le.speilively, under the circumstances, for necessaries furnished his wife living aiiait limn him, see Wrav i'. t.'ox, 24 Ala. 337; Black v. Bryan, 18 Tex. 453, Ferren V. M'KMv, :>!• X. H. 106 ; iMinck v. Mar- tin, ;'>4 N. V. Il5t) ; Lord v. Thompson, 41 N. V. Sni)ei. Ct. 11."); .Svkes v. Hal.stead, 1 Sandl. 4>;i: Eiler v. Cmll. 99 Ind. 375; ^V,Ukins i: l)e Annond, 89 Ind. 553; Lit- son r. r.iowii, 26 Ind. 489; Loekwood v. Thomas, I'J Johns. 348; Horner v. Lewis, li' .iohns. 38 ; Shelthan V. (iref^ory, 2 Wen.l. 4'J'J ; Tebbets i'. Haj.good, 34 N. H. 4'Ju; Pidjjin v. Cram, 8 N. H. 351; All.n V. Ahliich, 9 Fost. 73 ; Kiitherford I'. Cuxe, 11 Mo. 347; Cany v. I'atton, '2 A>hni (I'a.) 1|0; Heed v. Heed, 52 Mich. 117; Collins I-. Mitchell, 5 Harr. (Del.) 3tii'; Kemp V. Downham, [b. 417; Hall y. I'aviil, 'io Ala. 127; Sturtevant v. .Starin, I'.i Wi.s. 21)8; Brown v. Patton, 3 Humph. nVnn,) l;J5; I'orter i\ Bobb, 25 Mo. 36; Haislmwc. .Merrvman, 18 Mo. 118; Fredd ». Kves, 4 llarr. 385; Kimball c. Keyes, 11 ^\l■n(l. .34. .S'c also Mainwarint{ V. Leslie, 2 C. .^ 1'. 507; Hindley v. Westmcath, 6 li. &C. 200. But see Uuinney v. Keyes, " N. H. .'.71, wliere, contrary to the gen- «n\ 1 nhliiijT, ;uid to wiiat wo think is the law ii, the case, it was held that proof of the n nrrinse, and that the articles were iii'cissiiies suitable to the condition of the husl.iinil in lif,.^ }» primd facie evidence of tile hnsliiind's liability, and it rests upon him til rebut the presumption in law aris- ing from the obli.'ation of such relation and expenditures. This is ordinarily the law when a wife is living with lier hus- band. But when she is living separate from him, a dill'erent rule applies; and, in accordance with the English and the mass of the American a\itliorities, we think that any one trusting the wife does .so "at his own jieril," anil that the burden ol jjroof is east on him ti> show both the non-lault of the wife in leaving her husband, and that the articles supplied her art' nrces- snrii'fi, to the full extent of their being suitable as to degree, and as to their not being supplied by the husband. The rule at common law is, that where the husbaiul abandons the wife and leaves the country, or where he is banished, even for a limited time, the disabilities of coverture under which the wife labors are so far re- moved as to enable her to lie contracted with, to sue and be sued, and to ac(piire, liold, and dispo.se of jiroperty. Gregory v. Paul, 15 Ma.ss. 32; Starrett v. Wynn,' 17 S. & H. 132. Un th(! principle ol tliese cases, it has Ix'on held in Texas that when the husband abandons the wile and fails to provide for the family, this authorizes the wife to manage, control, ami dispo.se of the comuion property, so as to secure a su]i[iort loi' herself anil children, lleiden- hemer v. Thomas, 5 Tex. Law llev. 205 ; Fullerton v. Doyle, 18 Ti-x. 13; Cheek v. ilellows, 17 Tex. 613; Wright v. Hays, 10 Tex. 130. And the conviction, sen- tence, and confinement of the husband in the 'cnitentiary, rendering it impo.ssible for li.ni to manage and control tlii> com- mon p.-operty, or to aid in supporting his wifj :;!!'! children, is eiiuivab. nt to and is enisidered .such an nbandonnient of his wife as would authorize her to manage, control, and dispone ol the common prop- ertv in securing a support for herself and chi'ldren. Slater v. Neal, 64 Tex. 222. As the decisions, both Fnglish and American, are virtually uniform, that, where a married woman is living separate and apart from her husliand, parties suji- ])lying her even with necessaries do so at their peiil, a^;' can only hold the husbip;id for the i)riee )f Mich necessaries when the wife is not in fau't, and when the hus- band has not himself supplied the neces- saries, there would .seem to be no fiue.tion that the onus jirohnndi on both tin .•. Why wouhl not the principles of that case e(iually apply ? Why should not the husband be pennitted to say,— as the leavinj; was the wife's own wronfjful act, — no lei^al oblijjation o.xists at law, till she obtains a restitution of eonjugal rights by a decision of a spiritual court I " The lirst duly of a husband is to i)ro- vide for his wife, in his family. While willing to provide her a lumie and all reasonablo necessaries there, 1 cannot understand on what princi])le he is bound to furnish thern el.sewhere. When he turns her out without a cause, he does so wrongfully, and clothes her with author- ity. When he opens his door to her, makes provision for her, and remcy?' Or, in the language of Bac. Ab. Vol. i., p. 721, — 'As the husband's liability is grounded on an implied authority to the wife to contract the debt, it is rciiiiivtd when the circumstances rebut the pie- sumption of such an authority.' Or, jf lie cliiposes to take the contraiy ctmisc and niiike her advances, ouglit he tint to do so at his ])eril i And who, I tliinkit may be fairlj'asked, is injured or ii;.'^iiiveil by such a view of the legal rij,'lils uiui duties of the parties, or what prinri|ilM does it impugn ? Ou the other liaml, U not the contrary at variance with a well. recognized principle of pulilic pulley piv- erning the marriage contract ; ami it' it does not directly infringe the Divine rdni- nianil against putting asunder those wIkhu (iod hatli joined together, does It not in- directly do s , by assisting to keep liiem asunder ? Is it not discouraging;, iiitlur than encouraging, a re-union ! is It not, in fact, establishing a divorce a iniiinil d thoro, which has never been proniiinncil, and which a court of law has no imwerto grant' We find it well establlsheil, that though the law allows provlsinn to be made for a sep.iration already deteiiiiiin'il on, it will not sanction any, the must solemn, agreement, the effect of whiih ii to provide for the contingency of a I'litiire se)mration ai the pleasure of the pintiis \ Why ? %'ciw this has a tcnileiit y to promote that ■ vent, contrary to the poliev of the law.' 2 Steph. Com. 310 : Dnrint V. Titlev, 7 Price, 577 ; Hin.llev v. Mar- quis of Westinenth, 6 B. & C. 2i')(). "These impressions have not been adojited without a careful consideration of the ease of Emery ». Kmery, 1 Y. & .1. r>01,— an authority certainly opposed to the views now expressed, — an authority, in llscK, to my mind, very un.satisfactovy. It was really only the decision of two jiidijes out of four ; the chief baron not coneiiniiiR in it, and, though he had not sullieiently investigated the case to give a iliivrtly contrary deci.sion,he expressed such ilouhis as, 1 think, show that, though lie w;is unable fully to make u)> his mlinl, liis impressions were against the jmlu'ineut delivered. The fourth judge ( Vaiii;h;iii, B.) did not hear the argument, and, on that account, though expressing the strong impression on his mind In favoi' of the decision, abstained from entering into the grounds upon which that opinion was formed. Barons Garrow and Hullook, who decided the cau.se, do not appear to treat the question as one of contraet at all, but, rather, as a (|ue.stion ot jinisdio- tion between the spiritual and cuiiimon- 1 4 Allen, N. B. B. p. 397. Ree post, p. 169 n. PART III.] MARRIED WOMEN. 169 for board nnd lodging 8upj)lied to the defendant's wife in June, 1858. Tiie pleas were never indebted, and an order for protection law cmirtH. Hat 1 can sec no contlict of iiiri>.cliiti(iri, iiur iiiiy imictical ililllL'ulty likely t ' >■ '«'". 8u|iiiiisiiif,' the two courts t:iki' till' siiiiic view of tlic factH ; nil wi'll. SiiiipciM' tln'.v slidiild (lill'iT ill the eoiiclii- siuii llii'V arrive at ; all that eaii be said is, that aimlhel court coinpetclit to deal witli till- fat t.-- lor the iiiirjpose for which till V Writ' pii'sciited, took aiiotlier view of till III. Siipiiose a jury, in an action f''- crnii. '■till., .sliduld not he satixtied that tlio ollVnii' was ]iinvi'il, tliey would tind for till' (lirtiMliiiit, and th(^ court of coiiiiiioii liiw wmild ;,'ive jud^'inclit iiccordiiigly. iiut, till' saiiic facts niij,'ht be .submitted to till' loiii t of iiiariiaf;e and divorce, and it iiii,:,'lit think the cliiirj{e of adultery fully >iist:iiiii'd, and jn'onoiincc? ii divorce. Ihri' wiiiild lie two courts dilferin<{ on the suiiii' flits, on, substantially, the .saihu i.'i>',if. 15ut where i.s it |irojioiinded that till' coiiit of coinnioii law would hesitate to ileal with the ca.sc before it, or be ilitlu- eiii'i''! ill any way by what ii court of iiwi liiij,'!' mid divorce iiiifiht or niif^ht not ilo I And, ccitainly, there is nothing like the eniillicl that arises ill the same court ill KiiL;liiiid, under the recent decisions, wliieli alliiw the confession of a wife to bo cviili'iiee :ii,'iiiiist lior of adultery, but re- fuse to ii'ci'ive it against tlie alleged mliiltercr,* tlioiif,'li a co-resjiondent; iiiak- iiiK the I'liiirt in the .same suit, nnd in the same lueiitli, .say, as to A., 'A. and H. ci)iiiii;itti'd adiiltd'y together,' and as to Ii., ' .\. and U. did not commit adultery toxetlier.' "Tliii'e is one position of Garrow, B., in wliicli I licai'tily concur. After stating a |iossilil,' ('(iiillict between the sjiiritual eouit iiiiil a I'liiiit of i;ommon law he .says : ■ III this state of diliicultv the strong iin- • Y'leie is nothing by any means execp- tioiial in this. A confession, while evi- ileiiee ai;aiiist the jiersoii making it, is, of eoiirse, !iii evidence whatever against an- (itlier alleged to be guilty of the same otl'eiu'c. An estoppel arising from the ad- niissioiis of A. does not estop H., though A. in liis ailniissions may allege that B.'s acts Well' the same as those of A. In the.se eases, like tliat named by the learned judge, it !s >iiii|ily a matter of evidence, and not aemilliet in decision at all. A better in- stiiiee III' Mi,.]| cfiiitliot would be, IIS ill the ease (il'Vi'iiiiiiij,,,, Hunter, in the Province olXew I'liiiiiswiek (not regularly reported), wlieie tlie spiritual court refused a divorce ill Hiintei r. Hunter, but where, notwith- stiiuiiiiig the ilccree to this etlect, it was jire.ssion on my mind, and which, upon con- sidcialioii, 1 have been unable to remove, is that if a husband drives his wife from home by his misconduet, and sends her forth with an implied ciedit arising from their relative relations, it is his duty by some |io.sitive act to deti'iniiiie iJiat' lia- bility. This is just as 1 would ]iiit the law. The liiisband's condiiet and oll'cr should be char, distinct, unei|uivoeal, — jierhaps niicoiidilioiial, — certainly without any improper or (picstionaiile coiiditioii.s. I'ut the actual decision in that case goes much further. It not only rennircs the lialiility to be jiiit an "iid to by a [losi- tive act, but by a positive judicial act, for whii'li, I humbly think, there is neither authority nor |irinciple. I laniiot liiid that this authority has been recognized or acted on in any siibseiiueiit case, nor do I see that it has been impeached. The only case that i have seen wiiere the point has been mentioned is Tompany i'. ilakewill,t and the only re|)ort of that is a newsjiaiier one in the TimcH of Feb. 9, 1859. Mr. Haron ChanncU, in summing up, is re- ported to have said, after stating what would justify a wife in leaving her home, and what would clothe her with her hus- band's credit, ' If under these circum- stances she left her home, she was clothed with her husband's credit, and In^ would be liable for all iicces.saries which were supplied her. She wouhl also be justitied in remaining away if, after the lajise of time, her hustiand reipiested her to re- turn, jirovided .she had a well-grounded belief that the indignities or cruelties would be renewed on her return.' If this is an accurate report of what the learned judge said, it is adverse to the ca.se of Eincry v. Emerj'. But the decision not held by Uitcliie (then C ,T.) himself, fol- lowing the priiiiiplcs laid down in iiciinett V. Jones, that Hunter's wife, being driven from her home by her husband's cruelty, became thereby his agent by necessity, and had the right to pledge his credit for her sup[iort. This is a better illustration ot the point in the ]iriiici)ial ca.se than the one put. Here, on the .same facts, the spir- itual court refused to decree a separation, and the common-law court sustained the separation; coiiijxdling, by its decision, the husband to do what was ncce.s.sary for its continuance ; and there is no tpiestion as to the correctness of the decision in either of the cases. t This ca.se is rejmrted in 1 F. & F. 438. See ante, p. 107 . II i'f t S i m \ - i4 170 COMxMENTARIES ON SALES. [book II. ivm'' under the English Divorce Act of 20 Vic. The facts were that the defendmt and his wife separated in 1851, ho making hcr an aHowance. Siie returned to his house in 18.32, and, as slie al- leged, was expelled. He then [)rovid('d her a rc.-idence, whieli slie left. In 18o4 she was put into a lunatic asylum, with the coneur- rcnee of her father, whence she escaped in 18.')0. In 18.30 slic oh. tained a decree for restitution of conjugal rights, and her hu.sliand provided for her a residence in the upper part of which he liiiast,]' li\cd : but the whole of which, except a single room on the groiuul floor (which she occupied), was divided from the latter liy a screen door. There was evidence as to apprehension on her part of liis intention to confine her as a lunatic, and, having left the house, she obtained the protecting order under the act (the elTcd of which is to make her lial)le as a fonc so/e for her contracts, etc., and to exempt her husljand from such lial>ility), and sho went to reside in the house of the plaintilf. The act!o:i was brought for her subseipient board. She lived under a feigiud name, and, I)oth before and and after her going to the plai'itifi', the defendant had searched for her without ell'ect, and he swoiv that he had always desired to find her in order to make a p.u\i- sion for her. The |)laintilT had made no incpiiries. The order under 'he act having been produced, and the necos- sary evidence having iieen given with reference to it, the jiiiIltc. Channell, IJ., after having consulted other judges, was pnyaivd to direct a nonsuit, on the ground that the protecting order l)aiiiil the action. Counsel for the plaintilf, however, )»ressing to lie al- h)wed to go to the jury, and the counsel for the defendant assiiit- ing, th(! learned judge in summing up said : — "There are manv thinirs which would iustifv a wife in Icaviiii: her home, such as being exposed to indignity by her Inisliainl; bringing into tlie house a kept mistress, or ciuelly. If, miiiIit these circumstances she has left her home, she was elotlu'il with her husband's credit, and he will lie lial)le for all necessaries which were supplied her. Sh(> Wfxdd also be justilied in n maiii- ing away, if, after the lapse of time her husl»and reipiestetl lier ti) return, provided she had a well-grounded belief that the iinlleni- hiiviitj; :i]»|ii'nrt'il iti a i( j.Miiz(cl rrpovt I And flicy stiouM liiivi' Immmi ti>lii tliit if have Mi)t iilliiwi'il it til iiillui'iii'c my iniinl. she diil slie wa^ jiisiilii'il in iiiiiiiiiiiii),' "'riu- rt'siiit, tiu'ii, lit' niy |iicsi'iil juilj,'- inviiy. Hut it' llic oII'it was rli'iir, ili^timt, tni'iil is tlmt tins It'anii'il ,jiiilj{t' .slioulil jtositivf. anil /«)»«? //he tiis wil'n 11 ()iind fill'' reiiui'st to r'tiirn, rt-- wa;* lioiinil to rt'tiirn ; ami, if slir liiil ii'>f. Cfivu siij)|iort, ami live witii liiin ; and, tln' ri^lit to |iii'di,'(' her iin^liiiini's iTi'iiit if so \vlii'tlit>r sltf ri'l'iisi'd on any well- .casi'd. 1 tlnMrfori' tliiiik tin' nili' slimiM pn.indi'd iM'lict' that indifjnitics or crnid- t«' niadi' alisnliiti' lor a im'w triil. " link tics wuiild bf rcuuwud upon her ri'turii. aUsuliUu lor u uew trial ai'conliii.uly. i» lie al- IlSSl'llt- IcaviiiL' iisliaiul: iiiiili'i' i.'d with jrssai'ic^ Ircinaiu- ll lirrto liiuli'iiii- ,1,1 lli.it if li.'iimiiiiiii; ili^nii''- Ji,. hii'l II" 1 sill' wKiil'l Im.'ii'., >li'' I,, ili.l 11"'. U'S I'lT'lit ||1l' slioiiM ll." Uii''« •iv. PAUT III.] MARRIED WOMEN fr>lii llic ■/'■»(',< l)y llitrliii', .1., Ill li..lilirlt ''• ■! ^. Tlii-i iiiiipdsiiiiiii i.-i till' niiiviTsr 1)1' llii- liiiMiiii; ill Hciiiii'tt I'. .Iiiiii's, JMit it is iiKviuiis that it \v,is i|uitc witliiii ltii> llliuiili;; (pf CliMilicll, 1',., Iliiit llif will' VMiiiM iini lio jiistilic'd ill I'liiiiiMliiL; iiwiiy tr.iiii li;ilii| if iii'tc'i- tlir iiil'si- !l!: Ill' ii(|ni-lril lur til iitiirii ; piux iilnj slio llni ;i vvill.i;ii,ii||,l,..,l iM'liit' tiiill tlic ill- ili:,'iiiliis or iiiirltii's woiilil )iiit 1h> iciii".vc(1 U|iiin liip I'lliini. 'rill- ciisc iiiiiy tiicrcriHf l«'tiiirly l'^lll^il|( ml us sustiiiiiiii},' tlic ]H(i|h)- Mlimu l.'iil ijiiwii ill Ui'iiiictt V. .loili's ; tlio iunixtiR'.ssot till' iiiw II') laiil down iu Ujth ti-'s or cruelties would be renewed upon her refuriJ.^ But when a V ilo is living with her husband, and she leavt^s him without jusu ciiiiso, then she lias no right to j.ledgo her husband's credit. Any ]Hist)n wl.o supplies a married woman living apart ivnn her hus- liaiul with gooils, must do so at his own peril, and must make out tht' authority of the wife to pledge her husband's credit, to enable liim tu r('e()\er. It is important in the present ease; to ob-serve tlie ftinduet of Mrs. Ifakewill previous to the lunaey, because if vou liml that before that period she had ende..vored to live sepa- rate Ironi her husband, that will throw eonsideralile light upon lur sui-seipient {proceedings. The plaintiff proved nothing with ics]itct to the point of authority, and the only eviaence with re- •ranl to that wan the statement of Ttlrs. llakewill, contradicted bv the ti'stimony of her husband, who was corrol)orated by several wiuif^scs. Tht> plaintiff admitted that he hutl made no iu(piiries lospeeting Mr. llakewill, or the terms upon which his wife was living apart from him, and, although he was not bound l)y law, or even i)y conunon honesty, to niitkt^ such iuipiiries, yet if he was so iuiiisereet as to supply goods without doing so, he n»ust take till' eonsiMpiences, mdess he cati 'nak»} o.u the necessary facts rthiiii would render the husi)and liable, lie has uot done so if you Lu'Iii'\e that the luisband provided a houio for the wife, unless VDii think that she left it under a reasonable dread of unlawful LMiiliiii lUL'Ut as an alleged lunatic." The jury found a vei'diet for the defendant. A Icained author on Marriage and Divorce''^ says: " If th(^ wife was justilied in leaving the husband on .ir -ount of his misconduct, a notice to her to return will lie of no ii'ail to abridge tlx' credit." Tht' oidy authority cHed for this [iroposition is that of Kmery v. Knicry.'' Thr cfiso of Emery v. Kmery,* is to our mind eminently unsatisfac- tiiiv and unsound ; and wc very nuu;h doubt if it woidd be fol- lowed in this country or in Kugl.ind. As we have pointed out, it has licrii expressly repudiated in the province of New lirunswick.'' ' Tills i< I'Xiii'tly till' l;iiit;u.i'.,'i' i|iiiiti'il hI" llicsc rases liiiii;,' (III |iriiui]il iimn.cs- tioiiii'ily riiiint. - I>isliii|i, Vol. i. § .")72. 'I'lir otiit'f tl'XtWlitiTS lll;lkr tlic SilllH' lllistakc. Sl'O ritMtioiis, iiifi I. ■I 1 V. \ .1. ."lOl. It is also litt'.l liy I'ii~.|iii|i. iiiiil ill siiiiii' of till' Ani'iii'iii I ,,si s, s r"|Mirti'il ill t! I'ui c, H:!ii ; Imt tliiit (:il'<) I'.iiit'ry I'. KiiH'iy) is an riitinly ilillrli'llt I'MSf, not o!i thi' i|lli'stiiitl lit all, mill ili'i'iil' il siiiiio cij^'lit years prior to tlio ileeisioli iif liie ea'te in YoUllg & .lervis. < 1 V. .^ .1. r,((i » In n.'iinett '•. Jotii's, i AUi'ii, X, H. 1{. 'M7, fully f',ati'(l, aiiti; ji. 104 it xiq., lunl iioti! to p. IfiO, '■ I ihi M H't. Il:i I 172 COMMENTARIES ON SALES. [book II. As the question involved in it is one of considerable importance we shall examine it fully. The marginal notes of the case are : " What will justify a wife in leaving her husband ? Where circumstances justify a wife in leaving her husband, a request on his part that she should return to his protection will not determine liis liability for nocessaiies supplied to her during the separation. Alexander, L. C. 15., ihihl. tante.^^ It may bo that, from the facts in the case, these luiu'- ginal notes furnish a correct statement of what the case really holds. If so, we would not be prepared to dissent from such a projjosition, that a mft'f mjiiest, or such a request iis was made in the case, with the facts connected with it, shotilu not liave determined the husband's liability for tiie necessaries suji- plied, nor should have availed to abridge the wife's credit fur such necessaries. The facts of the case as they appeared on the trial, showed that the defendant, from the time of his marriage, which tuok place on Nov. 19, 18:20, had continually ill-treated, and on one occasion, struck his wife; and that, on June '2[\ 1821, he lieat lier so brutally, at the same time abusing her and swearing' that he would rim her through, that she, in consequence, left his house that night in a state almost of nudity, and went to the residence of a friend, where she was, by reason of the lll-tnat- ment received from her husband, confined to her bed for seveial days. For four years she resided partly with her friends and partly at lodgings. She then went to the house of her iatlnr. where she remained for iifty-four weeks ; and to recover a ouni- pensatiou for her board and lodging during that time the aitioii was brought. Under this state of facts we are quite of the opinion that a uicre notice to the wife to return, or a mere rcMjuest on his jmrt thr.t she should return to his protection, mny " not avail to abridiiv the credit," or to "determine his liability, for necessaries supplieil to her during the separation." After such a course of treatment as that described, the onlv evidence of anv effort on his nart tn \>v'nv: her back was contained in the fact that it was )»roved on the trial that, when the defendant's wife was residing with her fatliei-. ///•" hrof/tcr cdUed and Intjuired after her, and conveyed the wish of her husband that she should return home. Hut if what was [•roved in the case amounted to anything more than a men; yiii- tiUa of evidence of an honest, hnnd fide ofTer on the j)art nf the husband to take back his wife to his protection, an». All ' On ' Wi rMMinin .' 1. Ii"int w, >iM ri't't (.'oiu Insi PART III] MARRIED WOMEN. 173 question which should have been submitted to the jury. And, in- deed, altl»ou!j;li there seems to have been no request on the part of the defendant to have had that question submitted to the jury, and as there was no such point reserved at the trial, the case, on that Lnoiind, may be well decided. But although from the state- iiH'iit iif the case it seems that that question was not expressly siiliinitted to the jury, evidence seems to have been given — i)er- iiajis itself not amounting to more than a mere scintilla — from \\liii;li it was claimed that it might be inferred that the husband snlisefiuently refused to receive the wife ; and it was claimed by tlie aide counsel for the plaintiff, that, as this view was submitted in ar'_niineut to the jury, they, by their verdict, appeared to have a(l(i|ite(l it. The j)laintifrs counsel thus, in effect, admitted that this was a (piestion for the jury. The main reliance of the ct of the marriage contract: and if the husband by his misconduct forces hor tn leave his protectiim,^ she may seek the means of subsist- iMirc elsewhere, and those who from charity or other motives are williii.;- to pr()vid<> them, are entitled to recover a conqtensation from the liiisitand." The correctness of this i)rinciplc was fully concnricd in l»y the otlier judges. On the other point, the case is much less satisfactory. The wifi' iinlv olitaiiis a cii'dit for tin' ncri'ssa- ri''s (if lil'i' liy tlir nii-ioiiiluit of Iht lius- haiid, i'i)iii]iclliiif; her tn li'jive his jnoti'i;. tioii, (Iocs nnl tlic vrry coiivcisi' of tlii.s jirojiDsitiim sujfKist itself as tlic lo^jii'al si'niu'iu'i' tliat, wlii'ii, hoiiii Jill-, liis iiii.Moii. iluct ci'ases, Jy tlic iiDtluT of this work on the Principles oi tin ('i)tii- mon Law, in fi Am. Law Keg. .v. s., pp. 6.5, 129, ;521, ft si-q. " Coinmoii !;uv is but another name (or common sense, tostiil PART III.] MARRIED WOMEN. 175 reasoning of the case), is, that when the wife, by the cruelty of lier liiisband or by his failing to provide her with necessaries, is compilled to leave him, she, as an agent of necessity, carries with hor tlic implied power to bind her husband, as the principal, l)y Irt contracts for such necessaries. But, in such case, the burden of piuuf is on the party who claims under such agency for sup- plying such necessaries, to affirmatively establish such agency, wliicli he can only do by showing its creation by tlio ne- cessities of the case. I>ut when this is once done, and the hus- band seeks to put an end to the agency, the burden of proof shifts, and he must show affirmatively, to the reasonable satisfaction of a jir ,hut the agency has ceased because the very necessity which crc'ucd it, and upon which alone it rested, has ceased. We tliiul\ the argument based on the theory of conflicting jur- isdiction in the spiritual and common-law courts, is entirely un- tenable. It is strange that it had not occurred to the learned barons of the Exchef|uer that if their argument with reference to the ceasing of the liability of the husband at common law for necessities of the wife, was sound, because, in a manner, the spir- itual court had jurisdiction over that question ; that, for pre- cisely the same reason, the common-law courts should never have assumed jurisdiction over the altogether cognate (piestion, as to the liability of the husband for necessaries supplied to tl 10 wife in the first instance. For, in that case, is it not quite competent for the wife, on the ground of the cruelty of her liiishniKJ, and of his failing to supply her with necessaries, to apply for a divorce a mensd et thoro and alimony ? And might it not ])e, to take the very position of Garrow, !>., that while a court of common law might refuse to hold that the facts would justify a claim for necessaries supplied the wife on her imj)licd a'.'eiiey; "the s[)iritual court, a court of competent jurisdiction, niiirht, notwithstanding, decree a divorce a rnenm et thoro and alimony, upon the ground of cruelty ; and thus, a court of law haviiii: pronounced the obligatifm of the hus'-ijid to supply neces- saries ' not to e.\ist ; " a court of competent jurisdiction, upon the very same facts, might arrive at a decree diametrically opposite." * The case of liorwood v. HelTer ^ was the ca.se relied on in Emery V. Kmoiy,3 for the non-liability of the husband for necessaries supplied to his wife. Horwood v. Ileffer, although really less ami s\Ntiniiitionllv nrrnngrd by lonf» ex- Iioriiiiic.' Harvard Law Tracts, Vol. v. 1-. '.il. ' it is not « littlp singiilnr thtit Mr. .'iisticc iJitcJii,., now C. J. of tlie Supreme Court <.iC;ina(lii, cntirclv failed (as did the counsd in the case, and all the rest of the rnurt), in Bennett v, .lores, 4 Allen, N. R. R. 397, to notice this point, whi
  • a the ic CllSO jn.TV I'. Imti'vor jl-^t ill- intin'ly PART irr,] MARRIED WOMEN. 177 jurisdiction, decided that at common law the courts, which, not- withstanding thivS antagonistic jurisdiction (or in one sense, it might more correctly be called a kind of concurrent jurisdiction), could give a decision recognizing or establishing tlio agency by necessity; could not, in consequence of such alleged antagonistic jurisdiction, give a further decision to the effect that such inijilied agency had ceased. As well might they, in any other case where courts have concurrent or antagonistic jurisdiction, such, for in- stancf, as where courts of common law and probate can decide questions in a directly opposite way arising out of wills, repudi- ate the jurisdiction of one or other of the courts. And, even in the cuninion-Iaw courts themselves, there may be two actions in the same matter, as, for instance, in an action for the price of goods furnished, and a cross-action on a warranty connected there- with, where the effect in the two actions may be to neutralize or counteract each other. Or, even a better instance, where for libel a criminal and a civil remedy are given ; in the one case a verdict of not guilty might be rendered, and be in direct antagonism to the decision uf another jury, which, for the same alleged libel, miudit find ground for substantial damages. And yet in these cases no one has ever thought of suggesting that, because of such concurrent or antagonistic jurisdiction, the jurisdiction itself does not exist. We are, therefore, very strongly of the opinion that the doctrine in Emery v. Emery, which we have deprecated, can- not 1)0 sustiiined ; and, for the reasons alleged, we consider that llorwood V. Ileffer, when reversed on one of the grounds on which it was decided, was logically and of necessity reversed on the other; and tliat the doctrine in Emery v. Emery which we have boon considoring, which has been adopted by numerous text- writors. and whiidi, as far as we are aware, has uevor been ques- tioned or icpudiated by any text-writer,' is not law. We there- fore think that, on authority as well as on princi[de, the law on the subject is as wc have stated it.^ The law in the matter is simply that of ageney. It is an im- pliod iigoncy ; an agency of necessity, like the strictly analogous agency of a shi|)-master,''' and in the one case as in the other, ' SiM> 1 ni>li. on Miir. k Div. § ,'>72 ; lioMiiii; in tluM-asc, I.crtkc in KiiKliiml, anil 1 I'm-. :iii Coll. ;{'.'3, note (o)\ I Ailtl. Sti.iy (W. \V.) in this innntiy, liavf nut "iiCon. 141; Lciikc on ("on. 571 : 1 Cli. citi'il it for the iiioiid iin)|M)siti(in whicli 'mCon, 2H!; Sli.'lf. M.ir. k Div. 4:58; liisho]). us c|uoti'.l liv us (.(/f^, p. 171 ), ;inil Srlimilir, |)(iin. IM. § (iti ; Sflioui. IIus. tho otlicrs liiivc ilonc ; I'liitty, liowcvcr, & \Vil'i., § 111 ; Story, Suk's, §(14 ; 1 Story in doin^' so, (■iiutio\isly (|niilifyin^' it with "II '"'i. § 178, It U but rij,'ht to oKscrve lui " It has Imm'U hrld," etc. tbt wliil,. nil these writers have cited ^ Ante, p. Uiii. Kimry v. Kuiery, 1 Y. & J. 501, without » See posl, Book II., Part IV., where •■itlur oi them jiointing out the wrong this i.s fully consiilereJ. N in VOL. I, 12 ; |s 178 COMMENTARIES ON SALES. [book II. being created by necessity, is terminated when that necessity has ceased.* This doctrine is established by numerous authorities. We will examine some of them. In Hindley v. The Marquis of West- meath,^ where, in pursuance of articles of separation (which, how- ever, were declared invalid) securing a maintenance to the wife, she left her husband's house against his wishes, and continued to live apart from him, although he was willing and wished to re- ceive her back and provide for her in his own house, it was held that he was not liable to be sued by tradesmen for debts contracted by her, even for necessaries. ** It was held in Harris v. Morris,* that a husband who has turned his wife out of doors, cannot, by a general aclvortisemont in the newspapers, or by particular notice to individuals, not to trust her, exempt himself from a demand for necessaries fur- nished to her while so living apart from him; and though a wife has been guilty of adultery, if her husband takes her again into his house, if he afterwards turns her out, he is liable for necessa- ries furnished to her.^ 1 The f^round of claim is put in one of tlie Amoricixn cases as resting; on marital rights nlo!io ; thus, it is stated, doing away witli the necessity of the introduc- tion of any legal fiction. We do not con- cur with this view. Tiie aijency of neces- sity is, undoubtedly, founded on the mari- tal rights of the wife to support from her husband ; but it is the iirci\isifi/ of her re- reiving such support, from the improper conduct of the husband in improperly forcing her from his home witliout mak- ing provision for the supply of such neces- sity, that, ex neccmtiite, clothes her with lier powers as agent. There is no more of a legal fiction in holding h'^r to be such agent, from the necessities of the case, than tiiere is in any other c.ise where the neces- sities of the case bring into existence full agency powers. The very common case of tiie ship-master is, in this respect, strictly analogous to the case of the deserted wife. The ship-master is not only the agent of the owners of the ship, and, as such, is clothed with extraordinary powers when the circumstances arise whicii call for their exercise ; but he also becomes, under a like necessity, the agent For the owners of the cargo, with similar extraordinary powers. From his position of trust, the necessities of the case cause a duty to de- volve on him, in the performance of which he has full powers of agency, e,x inxemlnte, as the wife has who has Im-cu improperly driven from her home, by her husbamf, without being provided with adequate means for her support. See the cases in this section on the subject, supm and infra. And see Brown v. Mudgett, 40 Vt. 68. 2 6 B. & C. 200. * Bayle.s, J., thus, correcth', lays down the law : " If a husband improperly I'uni- pels his wife to leave his house, lie tlnreliy gives her power to pledge his cri'ilit fur necessaries ; but, if she goes away with- out his consent, and ag.iinst his will, 1 am of opinion that a tradesman givinj; her credit does so at his peril. If, under siitb circumstance.s, a deed is executed by the husband .securing a provision to the wife, I think that he cannot be sued by any persnn who may supply goods to the wife, b that he is only liable to the tnisti'cs fur the money which ho has covenanted to pav, which was the form of action inloptod in Jee v. Thurlow, 2 B. & C. .517. Smh.i mode of proceeding will make liini liahlf to the extent of his covenant, and not to an indefinite amount, subject to no lim- itation ; provided a jury can \«' proviiili'd upon to think that the artidiy fuiiiishcl are necessaries, taking into cniisiili'ratinn the rank and stiition of the wife." Hiiil- ley V. The Marquis of Westmeatli, 6 b. 4 C. 200. < 4 Ksp. 41. * Lord Kenyon, in .so luildini;, said: "With respect to her having i«'pii forni' erly guilty of adultery, and having '*'•''' in tlie Magdalen Asylum, lliuiiKh an adulterous elopement will prevent the Iius- PAUT III.] MARRIED WOMEN. 179 In the case of HoiilistOi r. Smyth,^ where Horwood v. Ilcffer was ri'ijudiatcd,'-* it was held that, where a wife leaves her husband under such an apprehension of personal violence as a jury shall esteem to have been reasonable, her husband is liable for neces- saries furnislicd for her support. In this case, alimony was act- ually decreed ; but as the decree was not for several months until after the cluim for the necessaries arose, the actual granting of the alimony was held not to have affected the case ; so not only was llurwood v. IlelYer '^ here overruled, but the ground upon which it was decided was treated as unsound, and Ilouliston v. Smyth* is entirely void oi the inconsistency manifest in Emery v. Emery .^ tanil from being liable for articles fiir- nislieil to tiie will' during tilt; term of her il(i]'iiii(nt, that is no answer now. The luisKiiini lias taken her back, and she was, frmn tliiit time, entitled to dower. She WHS s/w/i''' rdradit, and of course entitled to iiiiiiiitcnanco during coverture, if her hn>li;iiiil turned her out of doors." And, ;i;;aiii : " Tlie next ,lefence is, that he acivurlis.'il her in a newspaper, and forbid iMTsoiis to trust her. That cannot avail Iiim ; i'or, if lie put her out of doors, tliiiM','h he advertised her, and cautioned all jK isiiiis not to trust her ; or if he even i;avi' [laiticular notice to individuals not III i;ive Inr credit, still he would be liable fur in'('( ^>aii(s furnished to her; for the law hxs sai'l that, whir a man turns his tiufe "III (if il'iors, he .sends with her credit for hi-r nnsnnidik crpcnscs." i{arris v. Morris, 4 Ksji. 41. ' ;i Itins. 127. - " The doctrine in that case cannot be law." /Vz-Hest, C.J. ^ 3 Taunt. 421 ; fully discussed supra, p. 17.') i-t srq. * 3 I'.iiig. 127. 5 1 V. & ,1. 501. Hnlinyil, ,1., in Montague i'. Benedict, 3 B. & < '. »)31, 636, where a wife was liv- ing witii her husband, and certain articles Were sujiplied her which the court held Were not iieees.saries, thus lays down the law ; " riidoubtedly the husband is liable for necessaries provided for his wife, where ill' nijjlci'ts to provide them himself. If, linwever, there be no necessity for the articles provided, the tmde.sman will not Ik' entitled to recover their value unless Ih" e:m show an exnress or imjdied n.ssent to till' idiitraet made liy the wife. Where » tiiulestnan takes no pains to ascertain whi'thcr the necessity exists or not, he suiiplies the articles at his own peril ; and if it tarn out tiiat the necessity does not fxi^t, the husband is not resjionsible for what may be furnished to his wife without bis kuuwledge." And Bayley, J., " 1 tike the rule of law to be this : if n man, without any justifiable cause turns away his wife, he is bound by any contract she may make for nece.s.saries suitable to her degree and state. If the husba'id and wife live together, and the husbiind will not supply her with necessaries or the means of obtaining them, then aWumgh she has hfV remedij in tlu, ceclcsiiistical court, yet she is still (il lihcrty to pledge the credit of her husband for what is strictlij necessary fir }ur support. [Here again is a virtual repudiation of the doctrine of both Hor- wood V. Heifer, and Krnery v. Kmery.] Hut, whenever the husl)and and wife are living together, and he provides her with necessaries, the husband is nut bound by the contracts of the wife, excent where there is reasonable evidence to snow that the wife has made the contract with his assent. Ktherington v. I'arrott, Lord Uaym. 10(l6. Cohabitation is presumptive evidence of the assent of the husband, but it may Iw rebutted by contrary evi- dence ; and when such assent is juoveil, the wife is the agent of the hus))and, duly authorized." Alontague i*. Benedict, 3 B. & C. at p. 635. And, in Seaton v. Benedict, 5 Bing. 28, where it was hehi that a husband, who sup- pli(^s his wife witii necessaries in iier degree, is not liable for debts enntiaeted by her without his previous authority or subse- quent sanction, the law is thus laid down by ISest, C. J. : "A husband is only liable for debts contracted by his wife, on the assumption that she acts as bis agent. If he omits to furnish her with iiectssaries he makes her impliedly his agent to pur- chase them. If he supplies liprobation." Keed v. Moore, 5 C. & P. 205, is an- other case almost going to the extent of holding contra to Emery v. Emery. It was there held that to make a husband liable for his wife's board and Iwlgiug at ! I (1 M v^im t .M I dill? 180 COMMENTARIES ON SALES. [book II. A very nice point in connection with the law as to the husband being liable for necessaries to the wife when justifiably livin g sej). tlui liouae of a third jM^rson, wlu'ii tlio wifo louves ill i.'(iiisi'4Ut'iii!0 of a (lixputt.-, it iiiUHt bi> shown, uithcr that \m coiiiliict rtiiittiTcil it iiiii»i(i|it'r fur her to livf with him, or thut hf knew whcri! nlie wiis rt-siil- illg iilld (//(/ not lU'tkr (III;/ njl'ir Id litkr lu'r buck; rxiupt iifKDi cnniliHiiM irkich he hud no riijht to iiud-r. I^onl Aiiiii;,'i'r, C. B., in HUiniiiint; u|i, in Kiiiini'tt v. Norton, 8 C. & 1'. fiOtJ, furiiislii's II very clear anil satis- factory exposition of the -{('ni'ral law relat- ing; to the wifi-'s power to himl her hnshand for iieeeNsaries, in the following: "I take the law with resp.'ct to Imshainl ami wifo to In; this. Where a wife is liviiif^ with her hiisbainl, nml, where, in the onlinary Hrrangcnient ot her hu.'thand's hoiHehoM, h\w j;ive» orders to tradesmen for the Ix'ii- efit uf her hnshaiid and family, and tiiesi> orders arc moper and not extravaj;aiit, it is presumed that she has tho authority of her hiisliand for so doin<;. This rule is foumled on comiMon sense, for a wife wonld he of little use to her hushand in their domestic iirraiii^emeiits, if she could not order such tliiii<{s as are proper for the use of a house, and for lierown use, with- out the interfcrciKte of In r husband. The law, therefore, iiresumes that she does this by her husb:inil's authority. " When the husliand and wifo are sepa- rated from each other, and do not live in the same house, new considerations arise. If the husband has turned the wile out of doors, and docs not };ive her adei|Uate means of subsistence accordinj; to his de- cree in life and his fortune, the law makes her his a^^eiit to order such thiiiiis as are reasonable and iieccssnry for herself, but it nivcs her no liberty to jjo into extrava- Knnce, or to pledj^e iiis credit foranythiiig beyond what would l)e reasonable and necessary for lier subsistence. If siic 1h> living; in opi'ii adultery her husl)aiid is not bound by any <'ontract which she may make, even for necessaries. If the hus- band has not turned the wife out of doors, and they have separated in conseiiuciice of domestic dillVrciices, ami they do not live to;;ctlicr, another consideration arises, which is this. lias the husliand jriveu the wife sulliciciit for lU'ccs.saries suitalile to his dcfrree > For, if he has, he is not liable to her delits, even for necessaries ; for, if the wife has from her husliand wlierewithal to provide herself with neces- saries, she cannot go as her husband's agent and bind him even for necessaries. Suppose the husband has a given income, and it appears that he has settled it upon his wife ; or he assigns to her and pays her a portion of tliut adeciuate to her situation and necessities, the law iIoh, not iiiithorize u trudesnuin to sii|>|ily jnr faijiies in any way, even for iitci^siiii., ; and, even where she has an itiitiioritv lu order neue.ssarie.s, she cannot j,'o aiiil onlcr furniture ainl the like, wliich, tli>iu;'li they may be necessaries, are not suil.ihle to her condition, as her husbaiiir> n^'i'iii.' A i|ncstion came up in the very iviTiit rasi' oi" Wil.son o. (Jlossop, l'.» <^i. |i. |). 37i*, when it was held tiy th' '.'in'ciri Bench Division, in an action lin-it a husband for necessaries supplied to iili wife, that the husband was liaijjr ; \\\,,.\,. it ap|icared that the wile had coniiiiit- ted adultery with the connivance o\' lnr husband, and tho husband siiii.siM|Ui.iitly turned her out of doors ; that slie liail no means of support ; and that tiii> ]il,iihtilf supplied her with the nccessaiiis in cjiim. tioii when she was living separate hum her husband. The Court of A|>[»ai, sustaineil the juilgmcnt. Wilson r. (ilds- sop, '20 (^ B. 1». U.'il. Lord l^liir, in the Court of Ai)peal, put the law ilms: " When a man marries he is hounil to keep and maintain his wife, uiil ^> >lie has committed adultery. Ami iiiiliier, lie is iMund in honor to protect her from in- famy. This man has done the reverse. The argument for him to exonerati' him from liability to maintain his wite wmilil, if it is sound, establish that it lie liul forced his wife to prostitulioii and liidl on the procei'ds of her shaiiie, he mi^'lit slill, whenever he ]i|eased so to ilo, turn her out of doors for that very adiiltriv, and declare that he was no loiiL.'er li;iiii« for her niaintenaMi'c. NothiiiL,' wmiM in- dui!e IMC to d(M,lai(^ that such ^va^ tlieliw except a superior authority which wmild bind nie, 1 do not can' to cdii-iliT whetlier the wile can, nmler tln'M' Wr- cumstances, claim restitution ol cdnjiij^l riglits. That a husband, even al'ttr his wife has committed adulleiy, sliouM mm her out without means of support is li;u4; but to say that a man who lia> beni an accomplice can do so is dcjfradiii';. Tli're is not and there could not be a syiii|'i"in of authority in support of such a piii|"'. B. I'. at n. 536. The following ar I(liti.|iial authorities for the huslian'l's liil'iiity. I"" redd v. Kves, 4 Harring. :iHo; lllow-rsp. Stnrtevaut, 4 Deiiio, 4rt : Hiiiis r. Mt- ris, 4 Ksp, 41. Kustland v. UiucIm-I Q, B. 1), ii\2,pfr Lush,.!.: "Tlie ority of a wife to pledge the cndii of lie: husband is a delegated, not an inln'niit. authority. If she bind him, sl:e lii";'* him only as an a^^eiit. If she Icavis liim ,5 iiiitli- PART III.] MARRIED WOMEN. 181 anito from her husband, came up in Bazclcy v. Forder.' There the plaiiitilY, un the order of the defcndant*H wife, supplied ch)the8 fur tilt' (lol'ciuhvnt's child. The defendant's wife was livin;j; sepa- rate from him for reasons which justified her in doing so ; and the diild, which was under seven years of ajre, was livin<,' with her a!.raiii3t the defendant's will; an order of the Master of the Uolls liavini,' lu'cn niatle under the Knglish act, enipowerinj: him to make siR'h un order where the child was under that age (l)ut whieh act contains no provision relative to the support of the child), giving the wife the custody. The wife had no means adecpiate to sup- port luT according to her husband's degree. It was held by IJhukbiirn, Mellor, and Lush, JJ. (Cockburn, C. J., dissenting), that, as the child was by law properly in the care of the wife, tluj reasonable ex[)enses of pro^ iding for it were part of the reason- alilc e.\|)('nses of the wife, lor which she had authority to pledge her hiisl)and*s credit. It is in one sense carrying the principle of agency by ne- cessity a step fnrtl'er than any other ease which so far has come under our notice. The very foundation of the doctrine of agency by necessity is, that it is an involuntary agency, — an agency not couiinL' into existence at the will of the principal, but by the necessities of the case ; and as regards the case of a married wiiniati as such agent, the agency is as a general rule in opposi- tion to the will of the principal ; and yet it is so far elTeetive, that as long at least as the separaticm is justifiable, the express notice and declaration of the princip I that his wife is not his agent, has no e^V(•^ whatever to relieve him from the liability of the acts of his agent by necessity, — an agency which not he. but the law, has created and established. In the case of Rawlyns v. Vandyke,^ Lord Eldon said it was a question f o • the jury whether a husband living apart from his wife, and allowing the children to remain with her, did >iot con- stitute her his agent, and authorize her to contract debts for clothing and necessaries for them. But then, as Lush, J., in effect pointed out in Bazeley v. Forder, the agency was created by the voluntary act of the husband in allowing the children to live with hor. Here it was against the will of the husband that the child remained with the wife. But against his will, in liazeley v. Forder, the law gave the wife the custody of the child. If the agency were voluntary, as in the case of Rawlyns v. Vandyke, the hus- withniit ( iuwe and without consent, she See MoCutthen v. McOalmy, 1 1 Jotms. carries ho implied authority with lur to 281 ; McGahay v. Williiuns", ]'.' .lohns. maintain herself at liiseximnse. But if he 293; Baker r. Barney, 6 Johns. 72. *roiij;f,illy eoni|K.'ls her to leave his home, » L. R. 3 Q. H. 5.59. lie Is liound to maintain hor oliewhere." * 3 Esp. at p. 252. 182 COMMENTARIES ON SALES. [book II. .1 band would be liable. If involuntary, — the law taking tho cliild from him and placing it with tlio wife, — it comes pretty closy in analugy to tiic cuhc ut' the wife herself, to huld that the law iiujilitii, by the necessity of talting tho cliild from tho father and giving it to the mother, that tho same agency is given by necessity to the motlwr as she would have been clothed with if she had tlie mis- tody hy the voluntary act of her husband ; as in such euso sho would have had, according to Ilawlyns v. Vandyke.* ' Kxci'pt on tliis ground, we see no HdtUfiii'toi'y iinswur to tlic vt-ry iiblu dis- H«ntiu){ ,|iid;^nu-nt of (_'o(;kbiirn, C, J. As thu |iohit is oiiu lK>t)i of intui'i-iit ami inii>iirtiiui!(<, wo iiimti! fully fri>!.i tia' ,jud>{- niiuit of till) court, dflivend liy Hluck- burn, .1., us follows: "A wile, v.hin sopu- rated from lnu' liuslutiid in uonHui|Ucnou of ntisi;ondiii:t on liis (lart renduring it iin- |iro|ii'r for licr to riMuuin with liini, is in the sauiH position as if hi; turned her out of dctors, and is by law clothed with power to pleilj,'(! his credit for her reasonable ex- jionses, ai'eording ti' her husband's de;,'rec, unless she is in M)niu other way supplied with thu means o'" providing? them. If, therefore, the plaintilfs claim here had Iwoii for reasonai)le apparel supplied to the wife herself, or for tho supply of food for her household servants, such as, ae- cordini; to her husband's def,'roe, would be reasonable, there was evith-nee sulheient to be left to th(! jury in support of his claim to charge thu husband. And thu only ({uestion remaining is, whether, thu wife having tho custody of the infant, against tho husband's will, but by forco of nn order made under tht; statute, thu reasonable expenses incurreil in |iroviding for the infant are part of the wife's reasoii- ablo cxpe >es within tho meaning of thu rule of law. If they are, tln-ro was cvi- denco that tho defendant's wife was sepa- rated from tho defendant under such cir- cumstanucs as gave her, by law, authority to plr'^e hor husband's credit for them, and tho verdict must stand ; if they are not, I do not see any legal principle on which tho defendant can l)e madi; liable. There is, I believe, no authority or case* bearing on the point ; but, I think, on lirincijile, that as soon as the law becanu^ .such that a wife se|)aratod from her hus- band might ]iroperly and legally have tho custody of her infant children under the age of seven years, though the husband objectecl, it Iwcatne a rensonahle and necessary thing that .she should clothe and feed those chihlren according to their degree. It is true that in one sense this is an expense voluntarily incurred by the wife, as she is not obliged to ask for or take the iiistoily of hor ihild; bul 1 think thu wife's authority in such c.isi.i is to pledge the husband's credit for I'lr icnju- ultle expenses, though they cXi-i'imI whjt hIio is obiigetl to incur, 'i'he uile ol' tli« richest subject ill the realm, wlu'ii ihiviMi from her husband's roof, is not oliliL,'i'il to have HorvuntM or clothes suitalile ii) lur degree. If she tdiooses to clothe liri*.||' ccoiioniieally, and dispense with iitti-iicl- aiice, she iiiav do so ; yet I appreliiiul it will not be disputed that shi,' iii.iy liin't her husband by ordering clotln's aiil Iiir- ing servants reasonably (it for her iIi^mw; and if her husband's station b>- lii^'h enough to make it reasonable, or'iiii;> liveries for those servants. All tliuM ix- peiises are voluntary in one sense, fill if the wife ciiooses she need not iinui tlmii. I cannot but think that tho very objntut the statute was that a wife shoidd iiit U compelled to do violence to her lei'liiu'iu a mothur by parting from her iiilant I'iiild, when she was nut in lault; and tli.it wlun she does choose to keep her child, jiikI u by law empowered to do so, tiie ixjiiii^ts necessarily incurreil in doing so ,iie niifs- sary and reasonable, having relVii iht U her station, not merely as the wile ul'i liei'son in the station of the defend, uit, but us the wife properly having the ciislu'lyof tho infant children of the mania;,'!', iti* argued that if this is so, the liiKility J the father is changed; for a fitlicr's I'lal obligation to su|)port his child is not mure than to supjily such food and ilniliiii,' « are necessary for health; whilst il'tli'^b any authority given by law to tin' witi', it is to pledge the husband's credit for siiii necessaries for the child as may I'l' ii'i*""' able with reference to the IiusIkiii'I'i *t|" tion. This is true, bat the sann' ivimrk ap]ilies to the wiT'. A hushitil. wi.il-: his wife resides with him, chooses h\*»n style of life, —at least in theory, hub quaint language of Hvde, J., in .Mnuliyr. Scott (1 Mod., at p. llVS), if ' the wil';' «i" have a velvet gown and n satin ii''iti'oi'» and the husband thinks mohair or (mm- ton for a gown, and watered tabby Kt » See infra, Hancock v. Merrick, 10 Cush. 41, PART HI.] MARRIED WOMEN. 1S8 Tlic (jucstion as to the liability of the hu8l)and for noccssarios to hid wile who, having left him fur sutlicicnt reason, refused, ttiioat, in as rii»liioiml>lo, and fitter for iisi|Uulitv, till' huslmiid !!« to ili'ciilc, mill iiPitliiT till' wile nor n jury, it may be, cdiiM^tiii.i; of ilrupcrs anil inilliiifrs.' But wlii'ii till- liusliiiihl liaH without ciiu.su tunii'cl iiin will' out of doors, or by liis iivvii I'aiilt I'l'iiili'ii'd it ini|>i).sNibK' for licr to I'oiilr with him, tlu; rulu in ehnnf,')-d : tiji' hiislniiiil iN no h)np!r the Hoitt ju(l>;e (pf Mli.it is ht; liut th(! law j{ivt'.s tin- wilt-, ill Mil ii a rase, authority to |ik'il{{e hi.s iii(iit fur luT reii.soimlile ('XiH'nw.s, leaving it to lie (leteriiiiiied by otliurH what i.s reii- H.iiiiilile. 'I'iiis inereiuse of the hu.sband's lialiility only eoines into jilay when he i.i in the fault, and so in not unjUNt. I think tlie ineieased lia)>ility incurred in ivsiHit iif the wife having; the custody of till' I'liildreti falls witliin thu 8aniu prin- riple. and therefiiie I think that this rule sliiiul I lie iliseliarjied." It has been freijuentlv hold in this (Diniti V, wlieie a wife justifiably leaves her iiiisliaiiii, and takes her child or children with lur, and the husband makes no ob- ji'i'tinii til her doinj; so, that it will Iw ini]ilieil that he is us liable for thesujiiiort of till' rliiltlieii with their mother as ho is fur the siiii|MPit of his wife. This accords with iiiu' own view, as stated above. In Iti'vniiMs I'. Sweetser, 81 Ma.ts. 78, the t'viilini'i' .-.hiiwed that u husband had been puilly uf viiilcnie and cruelty towards his wife, in ei)iisei|ueiii'e of which she left his lumse, haviuf,' reasonable and well- grounili'il a|iiiii'lii'iision of further violence frmii hlni, taking' with her their child of uliuiit six years old, which was taken by its iniitliiT to the |ilaintitr to board, thu hiis.lj;Miil liaviiij,' made no .suitable jirovi- sioii fur their suiiport. The court held, tli.it .!' the father kiu'w the child was tlii'P' III toiik nil steps for reclaiming it, or pioviilin;; for it in any other way, ho was lialile fur that which its mother pro- iiiri'il tn lie aironled by the iilaintilf. In Kuinncy r. Keyes, 7 N. H. r>71, 5«0, fol- l2, it Was lii'lil, that if a luisbainl, living in a state of -ipiM'.it ion from the wife, sud'ers his rliililivii til reside with their mother, he is liiililr fur necessiiiies furnished them; fill', as a latiier, he has the right to the iiistdily iif his children, and may obtain ]iiissessiiin of their jiersons by habfns cor- Ji'ii: Init where he does not a.s.sert that rii-'ht, and siili'ers them to remain with lliiir niiitlier, In- thereby constitutes her liis au'i'Mt, and authorizes her to con- t'.ii't debts fur clothini,' and nncpssaries. This case was followed and alfirmed in Allen V. Aldrich, 29 N. H. 63, 73, and in Walker i>. I-aij;hton, 31 N. II. Ill, 115. Kimball i: Keyes, 11 Wt'inl. 33, uUo holds that one living seiiamtii from his wife and daughter is undoubtedly bound to furnish them with necessaries suitable to their condition, and his omission to do so would furnish them with a general credit to that extent. But in I'idgin v. Cram, 8 N. II. 3.1ii, where a husband anil wife separated bv niutual consent, it was held that, in order to cliargi' her husband for the support of their child living with her, there must lie a clear and palpable omissiun of duty in that respect on the part of the father; and where there was nothing in the case to show but what he was ready and willing to furnish all that was wanted for the u.se of the child, he was held not liable for supplies to till' child furnished by the plaintill'. The ca.se of Hancock V. Merrick, lo C'ush. 41, is very neiirlv identical in ellect with liu/elcy rJ. Fonler, L. 1!. 3 (^ B. [,:,{>, und the deci- sion at rived at is contrary to the holding in liazeley v. Korder. In Iliincuck V. Merrick the defendant's wife left him, for the cause of cruelty, on Dec. 13, 1848, taking their child witli her. On May 12, 18l!», she obtained a divorce from her linsliand, and at the same time the cus- tody of the child was awarded to the wife until the lu'xt term of court. In .Septem- ber, 1849, alimony was granted to her, to commence at the date of the divorce (May 12, 18410, and was jiaid as it fell due. The custody of the child was continued with the mother until the next term. The child had resided with the niuther at the jilaintiirs, and had been fuiiiislied bv him with board from Dec 13, 1S»8; biit thi.s had lieen contrary to the wish of the de- fendant, who had repeatedly rei|Uested to have the custmly of the child. The claim was for board from Dee. 13, 1848, to May 12, IS (It, and also fruni .Mav 12. l.S4ft, to .Sej.t. 2'.t, l.s4!t. It w;is held that no lia- bility atlailieil til the lather and husband for the board of the child taken away from his home. The decision went upiui the ground (see lleynolds r. Sweetser, 81 Mass. at 11. .'^l), not only tliat the cliild was absent witlniiit hi> consent, but iim- trary to his wishes ; and that he had \v- jieateilly reipii'>ted to l>e ]ierniii;id and oUowed to have and retain the iiistody of the child. It was upon the ground that, in manifesting an earnest wish and desire to receive the child into his own care, ho impliedly, but distinctly, indicated and expressed also an intention and willing- ness to discharge liis jKircntal duties, that it was adjudged that he was under no ; f 5 'i \ t . "ii: :l- ^ 184 COMMENTARIES ON SALES. TbOOK II. from expftctation of the ill-usage she had previously received from him being resumed, to return to him again, notwithstinding his legal respoiisibilfty to the i>laiiitiff for *;he Bupplius hi! iiiiil tin iiisliuil, or tlie ex)>ens4-s ho hail iiicurrud in su|iiK.>rtiii<; tlie child. As closely as tlii! t'acU in tliu two casus ai)proai;li «ach otliur, we are inclined to think that Imth iJazdcy »). Fonler, L. 11. 3 Q. B. 5.')9, and Hancock o, .Muriick, 10 Cash. 41, iiotwithstanilin;^ thu holding in the one cisu that tlm fathiT was liable, and iu tint iitliur tiiat he was not, are cor- rectly decidi'd. Tiicre is one point in tho two cases wliere there is an essential dif- ference lM!twi'i!n tlii'in. In thu Enf{iish Act (2 it 3 Vic. c. .'.4, § 1), there is no provision inadi; for tho support of tho child or children; and on the princi|tle of agency of necessity, it mif^ht well Ixj held, that where, under siU'h an ai't, tho law placed the custody of tlio child with its mother, it was implied that she was clothed with tho same jjowers as an agent of necessity, as lhi)ii:,'h she were, on com- mon-law prini,'i|)les, in pro|H'r custody of it without any 'ault on her part, and that tho liability of thi> liushiiid and father would iMpially attadi in the one case as in tho other. Hut in Hancock v. Merrick, lo Cash. 41, it was unite otherwise. There it is clear, without room for con- troversy, that down to M ly 12, 1H4!>, there was no claim a;,'ainst tlie father, for the chilli was voluntaiily kept from him against his will. And althnugh the cus- tody of the child was legally given to the wife on May 12, 184'.t, yet, in Septemlier, 184"J, alimony « is i^rauled to her, iH'giii- jiiiig at .May 12, ISt'.t. It was tlieiefore coin|ieli'nt lor the coui't to consider the sup- lK>i't of the ciiild in inakiu'.^ the allowance of alimony, as jurisdliliou over the whole matter, as well the aiiiiiuiit of the allow- ani'o as the decree top the divorce, was with the court ; and lieiu'e, it would well Heeni, that no claim agiinst the defeiidaut could 1h3 sustiiiui'd in excess of the ali- mony, any more for the support of the child than for its mother. Making this distinc- tion U'tween the cases, wc are inclined to think they are both cnrrei'tly decided. In support of this dislini'lion which we have taken, we liud that by the statute in .Mas- sachusetts, iu eH'cct when Hancock ('. Mer- rick, 10 Cush. 41, was decided, |irovision was made for the granting of nliinony for thu suitable support and maintenance of the wife on being divorced, "and such children of the marriage as are comiiiitted to her care and cnstncly." See (ieneral Statutes of Massachusetts, A. l>. 18(50, chap. 107, 8 4;i. We find a quite oil American case (A. D. 1808), Stanton v. Will-ioti, 3 Day (Conn. ), 37, where the same point i« di-- cided and in the Naiue way as in lia/A'lvy V. Forder, Ii. K. 3 Cj. B. 551) ; and in tliK one case us in the other by a divided cDurt. Although the facts of the case are dill'er- ent, the ratio dccidemli of the one ease is identical with that of the other. In Sun- ton V. Wilhon a husband and wife win; divorced by a decree of the legislatinv, a . mony was allowed her, and she was r.ui n tuted sole guardian of two of tlieir iiil.u. children. In a suit against the latliiTnl' the children for the uducatiou and si;{.|Min of the children furnished by the phuniill', it waa uluimed, inter nlUt, that a.s the ali- mony was given " for tho nurliire aiui education of the children as well a.s fur the support of the woman,'" the failier wiis not liaole for their snp]K)it. But ih.' court said : "By the divorce the ivlatiuu of husband and wife was destroyed, but not the relation k-tween Bird (the Iitliur) and his childi^Mi ; his duty and lialiility as to them remained the same, except w far forth as he was incapnciti'ted or ills- charged by the terms of the decree. This decree takes from him the guariliansliip of two of his children, and with it the rij;lit which as natural guardian he iniglit have otherwise exercised ; and releases him Irum those duties only which a guardian as such is bound to perform. This transfer nt' the guanlianship to the plaintiff vestnl Ikt with powci-s similar to guaidians in uther cases; and the aitpointinent of the pliiii- titfto this trust ilid not subject leT U\ tho maintenance of the children, lier w;iril,«, any more than a stranger would have Iwfii subjei'ted by a like appuintmeiit. iiy iic- ce)>ting the trust she became bnuml to pro- vide for, protect, and educate tlietu at the expi use of Bird, iinli'ss llw. licnr of • l/riliT'll ILtSi'lltllh) k'lS lU'llll- lllllir tlilKJit'lt. jiriirisioii, which by the terms of that ile- ciee she is bound to apply. This is not the ci.se here. The sum allowed wan di- rected to be paid to her n.v li. B. 5.ii». And the decision is put upon pre iselytlie ground which, iM'I'oie w.' had i\,iiiiiiii'il Stanton i>. Willson, we intimate 1 wa the only ground upon which Bazeh y v. For- der could be sustained. The iniirt saiii; "It may lie gem nilly true that niiimrs under the government of )Kin'iit.s cciiiot bind their parents for necessaries without their consent. The daugei of ennmragiiii! children in idlenisH and disiiliediem e, leiu of their being inveigled into exi«'iise by PART III.] MARRIED WOMEN. 185 offer to receive her back, is considered in Thomas v. Alsop.* The decision is in accordance with the views we have exi>rcsscd in llif artful mill designing, furnishes a suf- ti.'itiit reason for tlio rule ; but neither tilt' mil' nor the reasoning will apply to tlic cli;ii>;e.s in resjiect to two of the cliil- dri'ii in liii'< «asi'. The aitich's were fur- uisliiil liy tlie fiuiirdiiin hers'df or at her ri'i|Uf.>t, wild '/// virtue ofhcrtrunl hid fall ii'iinr III cuiilrmi, iniil make thr J'titln r Ha- hie fur ii'Oiniirii:', mil onli/ wi/JiinU but u'luiiint Ilia '■iiiixnU." Stanton f. Willson, ;J !»iiv, ]). ;i7. She thus by virtue of her tiibt Kcranie an iij;ent of necessity, just as u ,->lii|i-iiia.sti'r does in eases of emerfjeney by virtiif of his trust ; or as ii niarrieci Wdiiian (Iocs, wlio by virtue of her marital rights for support is clothed •I. powers to liiiid liir liusbaiid as his a<5"tK rx uiccn- siUw. On this ground we tiiink that Biizeley r. Fonler, I.. R. 3 (,>. B. 55!*, liaiu.iik V. Mcirick, 10 Cusli. 41, ami SUintdii r. Willson, 3 Day, 37, are all well ili'i'idi'il, iiotwitiistanding tiiat the llist and last (if llicic cases were decided by only a iiiajdi'ity (if tlie judges. On tile same |>rin- i'i|ile tiiat W( think is the sound one, and on wliiili W(^ think tiiese eases are to be Mistaiiicii, We are also of the opinion that the liter Connect jcut ease of Finch v. Fiiieli, '2'.! Conn. 411, in the same Slate in whi'ii St.inlou r. Willson, 3 l>ay, 37, was (li'ii(|e(l, i.i also to be sustained. Finch V. Filiili wa- also (iecided by a bare m.'ijoiity of the court ; and wldle we think that tiii! case was correctly "l('ide(l »ve do not tiiink that tlie nasoning of eitln^r the majurity or the iM'iioriiy of the court, as niiplicablo to the '.Ills in the ease, was sound. It Will lie notic-il that the decne in the oaji' of Slant. Ill c. Willson was made by the |e^;isl;itiire, while in the later crse of Finrli e, Fiiicli the decree was by the Su]H'- rior C 't. |!y the Coiiuecticnt act in i.iici' at I e time the decree was niaile in finch V. Filicli, it was provided that the Sii|MMior C(aiit shoiiM iiave e.xclusive jn- risditioii of nil pe'itions for diviwce ; tiii^lit assign to any woman divorce(l such rcaMiluiMe part of the estate of ler late hii.>liaMd, not exceeding one third |iiiit tluTcdf, as in its discreti(Ui the circuin- staiices ol the estatt^ would admit, and iiiiu'ht make sucii order as between the parties fill- III,. eusto(ly. care, and educa- tion (if the children of the marriage as »Ui'h court iiiiglit (leeni necessary and lil(i|ier (see (Jeiii'iiil Statutes of ('(Hiliecti- I'lit, A. II. IStiO, lit. 13, e. 3, §§ 32. 3t'., and S^. Se( tioii 4(1 iilso relates to the subject, hilt that SM'tioii was not passed until after Kiiidi V. F ncli was decided, and was prob- ably passed in consequence of the decision in that cose). In the case if Finch v. Finch three of the judges held that the divorced husband was not liable for the 8upi»ort of the minor children in the cus- tody of the mother, while two of the judges held that he was. The decision of thu majority of the judges mainly rests ujton the ordinary (diimiondaw legal lia- bility of the fatlier lor tlie support of his minor children, iiiioting on that jioint very largely from the Kngli.sh ca.ses, and from the American ear"s which correctly lay down the law on that iioiiit. True, they dissent from the holding in Stanton i*. Willson, 3 Day, 37, yet we think a correct appreciation of what we have shown to bo the riilwiiali: of that case would have led them to have sustained it without alfect- ing their decision in Finch v. Finch, 22 Conn. 411. The minority of the court undertake to follow the (leci>ion in Stan- ton r. Willson, but they tail to notice the essential dilfereiice between the two cases. While Stanton v. Willson is, as we have shown, identical in ]iiinci|ih! with the re- cent Knglish case of Ba/elev v. Folder, L. H. 3 (,». B. fl.'iit, the later Connecticut ca.se of Finch v. Finch, 'J'2 Conn. 411, is identical in jirinciple with the Massachu- sett; case of Hancock c. .Merrick, 10 Cnsh. 41. Aud while in two of these ca.ses it was decided t.hat the father was not liable for the suppoit of his minor cliildreii, and in the other two ca.ses it was decided that ho was liable, ve think tliey were ail cor- riH'tly decided within the nrinciple on which Stanton r. Willson, 3 Day, 37, was exjiressly (Iecided, and the groiiinl o) which decision, in our coiiiiiiiiiis on lia/ehy v. Folder, we had aiiticiicilcd liiioi to our having examined .Stmioii cWiilMiii at all. The bill in this case (Fiinh r. Fiiieh) prayed for a divorce from tlie defendant, for ali':;.)iiy from his otaie, and lor tho custody, control, and education of saiil children, n i'li mirh priivisiiui fir lUrif sii/i/iiir/ mil' I'iifiiti'in as slmnlil hr just null Infill. The court jiasseil a decree granting ilie (li\( ice, assigned the cus- todv of the ( liildieii to tlleil llintic'l, iiml "decreed that the sum of .'¥1,2J2 be as- signed to 'he pies'iit jilaiiitilf as such ali- mony mill iilliiirniin . ' On Ibis state of facts we can see lo ground what.'ver — this sum ai'couiit the children of the maniaye, respecting; whom there may by possiliilitv lie an order of the court founded upon their necc.s.sitie.s." IndepeUilellt of the fact that, in this case the hill was ex- pressly liled, inter alin, I'l - such provision for the support and education of the chil- dren as shoulil lie Just and le;{al, anil that tlie dei-ree ordered a payment for "such alimony 'HI'/ i(//"(/vfH('c '' (see find. p. 41'!), yet indepetidiiit of this tlh' minority jildp's were wroiif; when they .said : " No court in li\iiiv' the pfo]M'r sui!i hu'alimouy has a li^ht to take into the account the children of the niarria;.'"," etc. The rule is the reverse, hoili in ''.iijjland and in this eonnti V. Thu-.. in Cramwell n. Cramwell, Ht K. r s. fill, it was ^stated by Wihle, .!., that .in the jjiantinj,' of a divorce the court makes a peiinanent provision fur the ehiMreli alnii;r xvlili the innocent party. Anil sec l5ii>co I'. IJrisoo, 2 Hav'K- Cousis. lOy, 'Jill, and Cooku V. Cooke, 2 I'hillim. 40, as to the piinciplcs jjoverninjj ti," court ill their decidiut; as to the alimony which will be idlotted. The same |iriuci|iles are reeomd/ed and acted on in this country. See Amos i'. Amos, 4 N. J. Ch. 17i, whore it was held that an allowance shoiiM not be imide on uecoiint of the children whtH theij ur.rc grown up. And as to the mat- ter Vtein'i one of judicial discretion its in Kngla;iil, III be exeivised Wlih refereiiie to the facts of the ease in K'''i"'i"^' ahinni ;,, .see MctJce v. Mcdee, lu (ia. 477; 'ii'r- mond i\ Oenuond, 4 I'ai^re Cu. t!4:!; Law- rence V. I,;iwicnce, ;; I'aijie C'li. •Jo? ; Fishli c. Fi.shli, -J Litt. (Ky.) L':i7 ; Ihuiis V. Duvis, 1 Ala. 2.'.!t. In Iteavis r. Reavis, 1 Scan.. (111.) •24'J, the (U'der was that there should he ilinwi'd yeaily such "alimony" for the wite mid her child as the cvideiiee should .shuw, from the circum.slances >f the paitie.-, ti> U- tit. reasonable, and Jus : the llliiinis statute lieiuf,' on the pKJnt " -inie in suKstaiice as that of C'oliuecti >l X\\<\ see Hickeii i\ hicki'U, :iN (ill. (!i),> ; U'aldrnii r. Wal- dron. .-1.-. Pa. St. 2;!1 ; .lollilf c .Inllitf, .32 111. Wll ; l'.er;,'cn v. lieifjcn. 22 111. 1-7; Foote V. Foote, [!>. 42.'i ; .Marker v. .Marker, 11 N. J. Kii. 2.'.i) ; Nicely c. Ni.dy, 3 Head (Teiin.), 18 t ; Tllolllp^oll v. Tliiiiii|'- .son. 10 Hie'l. K,l. (,S. ( .) Jlti. Ill lle.lellr licdell, 1 .iohi.s. ell. tiol, Chaiicelloi K>'ir; f,'iautcd the cu>tody and caic df a diiliiof six years old to i'cr mother, and ;,'iaiitiMl u aliuioiiy for the niaiiilcnancc of the iiintlirr aiul her child the whole of the ihreu'lints ini'ome. It is laid down in IlicliiiKinil r. liiehmoud, 2 N. ,1. Cli. '.m, n;!, hy Ciian- eellor I'eiininuton, as a luiiiciplc. lliit the court in placing' the childieii uicler tlio cl'.arge iif their mother means to iiiiiK»e no bunh'iis u|ion her of a peciiniarv eliar- acter ; but, whatever rules may nSl.iiii ;i> to the allowance lor the wile, tiie i liiMren sliould Ih fully maintained in a iii.itiiuT corresponding' with the condiii.iii in life ol their father. On the whole, we tliiiik liazeley V. Folder, I.. 1!. :t <^ H. :>:>\\ was eoirectly decided, and that, cii the siiine and only |iiiuciple on which wi lliiiik it can l«' sustained, the three .\meiii ,iM cisfi We h.ive examined in connection with it an; also .sound law. ' 1 Y. &J.601. r\ ;.y ,..' (lll.)'24i will' lltld illllW, fiuiu , to lie tit. )is statute sllll.^tau^.■e IV liii'ki-ii 1, V. Wal- lolliti; ■)•! 111. b7; •. Maik.r, Nirily, 'i '. Tliiiniii- 1 r..'.|.-llr. 11,11 K.'ii. ll,l,ll^l.i!' rant' 1 ;is ,' i,i<>thrr lll'll'i lilt's lilii'iiul I', liv ("liaii- , ilnt the ni'liT till' liilitaiii :» |i ( hililren iiialitur ■ ill in lil'' Iwv tliii'k .'i',', was I till' ^aiiii' Ihilik it li.'.lll I' ist'« In \vill> i' PART in.] MARRIED WOMEN. 187 (iixtccn Years before on account of his ill-iisaf»c of her, from the effects of whicli slio was still sufferinj? ; and slio had then lately received piirish relief «nd was still chargcai)le.' The hiisl)and had not cuiitrihuted to her support diirinj^ the separation, but had ap- iilied to her to return to cohabitation. At the hearini^ ho ottered to rcei'ive licr back at his house, and promised not to ill-use her, l!iit she refused to return on account of the brut ility she had pre- viously received. The justices were satisfied by evidence that it was ihin,L,a'rous to the health of the wife to n^-turn to cohabitation ; ami tliey made an order on the husband to pay a weekly sum towards the reliei' of the wife. On appeal from this order, the Court of (Queen's IJcnch held that the order w?.s rit^htly made, iiotwiliistimding the husband's ofYer; as the (jue.^tion (just as at coiuMiDii law it would be for the jury) was for the justices to liccitli' whether or not the wife was justified in leaving, and, not- witiistauding the husband's offer, refusing to rctuiu to her hus- liaiid; and that, in ett'ect, they had found that she was justified. Klaisagan r. l>ishopwearmouth ^ was relied on by the counsel for till' a|i]M'llant, but as that was decided under the Vagrant Act, making a man punishable for refusing to support his wife, an otTer to iiitiiii'ain her at home would prevent a conviction under that Oft i'lir '' refusing" to maintain her, and that case was held to have 110 application to this. Although in the judgment of Cockl)urn, C. J., there are some not well-considered sentences which, isolated f.-uiu their context, would imply otherwise, the general trend of his jiuiginciif, as well as that of his colleagues, is that, when a wife troiu ill-usage by her husband justifiably leaves him, liis mere olTer to rect'ive her back need not necessarily be accepted by }':r; Ijiit on her refusal to return, the continued liability of theV..iSband will (l('|)eJid upon the fact whether or not the wife could safely ntiiiii. — a matter which, imder the act named, and at common law, would be K'spcctively for the justices and the jury to determine.'^ ' It lias U'l'ii lu'lil tlmt a Wdinan i< imt "i'liar;:ialili' " to tlio purisli, wliiTi' slu' lias a hiiiiii' til ri'tiini to, or otln-r iiii'iins of Mi|il>i>it. Si'i- i liuiiis' Inst. 'ilt'J ; Ut'x V. Fhiilaii. 1 H. & A.I. '1-n ; .Sweclu'V i'. SjMMiii, I, a H. .V S. ;j-JS» ; Carf,'ill r. »"ar- «ill, 1 Sw. K Tr. 235 ; '17 L. .1. V. & M. ou. ' 8 v.. Si n. 451 ; 27 L. J. M. (\ 46. •' The liiM' ot llorwood r. Ilcircr. 3 Tiiiiiit. 421, has Im'1'11 rt'innliatcd ii) tliU I'nmitiy nil till' jioiiit ill whii'li Kinciy »'. KiiiiTv, 1 Y. & .1. 501, (lisaj^ivcs with" it, nt i'iii|iliatiially as it lias ln'cii in Kii>;- lainl. Aiul lici'i', as tht'l't', llofwood »». Hi'll'iT ha.i bt'cn di'iiuuiiccd us not law. Si'i' Rlowcrs I'. Stiiiti'vaiit, 4 Dciiio, 4(1 ; lies tUi's v. Kiiiliinis, 8 '.'wa, 51, 54. iiul wliili' tliis is till' lasi with ri';,'aiil to lioi-wooil V. Ijitl'i'i', wr kii >w of no caso, citlHT ill KiiKlaiiil or ill this i-oiintiy, « lici'o Kiiii'iy ('. Knii'iy, on tlir jmiiit mi wliicii it lines not ilill'iT trolll lloiwooil r. lli'H'cr, lias hi'i'ii cxjirfsiily ovi'IiiiIimI or iviiuiliati'il. As wi' li.ivi' iHiiiitcil out. till' (li'siTvcilly coiiiloiniii'il (li'i'isioii of lIorwiMid r. llrdiT is, in its way, while iinsiminl, really lesH illo>;ieally nnsoiiiid than the ease of Kini'ry r. Kiiiery. .And, as wo have seen, though Kiiiery r. F.niery has not heen expressly overruled in Kii^IhikI, on the jmint on which it i^ wrong, it haa not heen lollowi'd ;»: n w |irobiiti:>n (ir exposure of the fallacy on which it is bas^d ; while we cannot find that it has been expressly repudiated in any Aiiu'iicau e.iso, we lire ipute salislied that it has never been followed by any case (lecidctl in this country ; and numer- ous cnsi's are, and t)i(! whole trend of the coses all over this ei.untry is, opposed to the wron^ lidldiny in Kniery v. lliuery. TliJ ease of Wi.lker v. Laishton, ai N. U. (VI Kost. ) 111 is H valiial)lo one ou the subji'ot. Ileie, directly contra to Kinery V. Kniery, it was held that tiie hnsbiind who has eareli'ssly deserted his wife inav seek a ri'eoiiciliation, and if the wife, under sii'di einiiiustaiices, refuses to live with iiini a>.'aiii without gooil cause, slie IxH'ouies IViiin liiat time the partv in tho wriiij;,', and has no longer any authority to pie(!<,'e his cri-dir, even for necessaries, more tlian slie would have had if she had hers( If iirij-'iiially left him without eaiis.-. Inde|)endent of the f{ro\uul3 of the decis- ion in Kniery i'. Kniery, the actual holdiiiiiieeic wish that his wife and da'u.'hti'i's should remove to h'n resi- dunc" to live with him. It was a formal re his house; but it waM ai. ■iiop.iiiied Aiih such thr<'iiteMiuj» l»»Mf{H!,'e, and siicli u'lreiwoTinble cImuis a|H>n tliiiii, as wrre cii'.ciUated, and, .is it ■eeins t<> ns. must have been desi;;ned to prevent iln'ir removal. The elVc. t of tlie whoJK cfiiiversaiion, as it iinp'vsses our minds, is rather a notice to them imt to conic to his house, a threat of uii'h lined evil, if they diil come, nither than n si:i- oere invitation t" them to I'ome. " The court held that the otfcr, not having been made in good faitii, was no defemc to an action for necessaries furnished sulis'iment to the conversation. See McCutilna v. Mc(!ahay, 11 Johns. '281 ; McCaiiuy v. Williams, 12. Johns. :>!«. In Calkins ». Long. 22 Barb. '.'7, lot?, jt was hi'ld, where there was an a.Mei'iiii'iil lot a .se[(a ration, that, unless the h'^m cMniit was for a separation during life, if the iiissiininl olicr to take back his wife inid to iiiaia. tain her, it puts an end to the ugrii-Mi;'iit, and a court of eipiity will not eiilon r the I)ayineiit of the se|mrate allowanc.' tn the wife. The principle on vvhiidi tli.' Bnnnl of ,Su]H'rvisors, etc. v. Bndlong, ."il Uarli 41^1, was dc'-ided, is, that the hiisl^ijiig liability for neeessarics provided hy otbtr persons for his wife's support, n'sis en- tircly upon the ground of his iii'<.'leet or (lel'.uiit. Erg,), when this iieglei t or ih- fault ceascK, the liability .vould i cusi'. .So, in the- i'V'oph! V. Niiehr,' Ho Iluu (N'. Y.|, 4t)l, the folli)win Mo. Ap)i. ■^\>'<, wherf dilfcrenees t<)ok ]da( e lietwceii a hii^'inml and wife, and a separation with lii^ con. sent, it was hehl that he was lial.le fiirliiT support, but, expressly, tli.it sneli lialiil- ilv Wi old cease, on her refiisiil to liUini, after a h(»i man leavi's her husband and livi^ ■^••y.i- rately from him, he is not liabl.' to hrr contracts for in»eeM.*iiries, aJtuoiigli tli' person giving tniii, and her Ir.isli.ind r-fuse- lo ivcei^'e her, his lii.bilify to her cmtrniH fet iiei'»- sarics revive* from that time, Tlie con- PART IIT.] MARRIED WOMRN. 189 insuffioiont for her wipport, the wife has no authority to pledge Iicr !iiisi)iintr3 credit.^ Ill EaHtiand v. Uurclicll, the defendants — linsband and wife — cxociitcii a deed of separation, by the terms of wliieh the wife re- taiiicii tlio income of jnopcrty settled to lier separate nse '»n lier marriirt', which bronyht her iji i-:i!)7 15*. 2r7„ per annum. The iiusldiiKl eovciiunted to pny her i.'20 a year towards the miiinte- naiu'i' of three of the children of tlic marriujxe, and the wife cove- muitvd to maintain tiiesc children until they were twenty-one, and jioi ti« ii|tply to her husband fur further assistance. Tlie husband Ivvl kept u]» tlie annual payment of £'20 in aceordancf with the ientH of the lieed, Plaiiitiff sued dcbjiidants in the county court h recover the price of meat supplied to the wife after the separa- tion, and the jnd;i;e at the trial, on hearin<,' the wife's evidrnco, found that her income was insuHieient ior her support, and rided tliat she hail authority to pledi^e her husband's credit for ih<> iiriee of tlie jneat. On aj)peal to the Queen's Bench Division, the de- cifiion v/aa reversed.^ vcrsf of il'.i'* propos' Ijji is clearly, eqnnlly corriv'. Si-c Mi-rutflicn r. McfJaliny, Ti.Iiilip- SSI. So in CliMu lit r. .Mii;'i- son. ■! Itifli. (S. C.) I'S, it wiw licM. that ;i will', not iiavinji li^t-n ftiiilty of mlulti'iy, wt'iitiiimi.-cil \vil!i I liiis'.mtnl's cri'ilit for iii'- cessii/ns, (!)«ii'''i '"' li'nl trctttcil licrwifii naridii. ,'iriiiM;i;li no may not imvt' (li'siivil tocspi'l Iht !'iiii!i Ills !>ouMc ; (•_') wlion In' liiiii I'.iiviii liiT away, intcmUiiK to cxi'c'i hiT ; iiiii i'i) wli'i! he liiiil '.('fiiscil lo iC' "••vr her \i|)(it) lioi '■ftiirii altlioiif^li she inav have ili'imrtfil wiilioiit ciiusi', Sc(,' Hoiits r. Ho, Its, 17 Ml. App. i'M, wlicri! a wife nfiisiil to "'ivc v itli lu-r laisliainl, (III a ii(iii:1 fiilf ,','cnip;.,t from him, ain! lii-r apjilii' ition, iiinlcr n statiilt' of tlic Stat-.-, I'lr scjiar'ti' :iia'iitPtian''<', wns ih- iiiol. In California, hy mcc. 175 of the Civil ("ui!i>, it is proviihvl tlint » hiishiunl nh>!iiioniil hy Ills \\\U' is im* liuhlc Tir luT Mi]i(inrt until she •iH'iTM to return, iinU'-^s nil" Viiw ji ti)U't|, hy hJR tu'sroiiiiu.t, in abiinil<'iiliiv' hiui ; nor \f \\o hahlc for h^'i .s;i].|:<:r! »u>'n she is livift({ lVii|>ii- IrttP't ni the iiirri'tnii'nt. Sec, iimlvr thi-* ■iiNMin'i, .hi. ..hs f. Si'ott, ft^J C;il. 74 ; Himv V. S;iiL'i'iit, .14 V,i\\. 3i»« ; Nimhph r Itcrnlivs, 11. ti^i Cil. ;"ij1. ' Ka^fl.iKl i>, It«,r,l..,.ll, .'1 Q. n. I), 4TJ. ' l.ii>ii, .'., in ilijivrring the |ii, thus laid down the iawiippli- i-ahlp i;i ill,. ('Use: -''rhc niittioritv of a *ifc t'l |il.iljr(. till' credit of her hushand is ' 'leitpi'id, not an inherent, atitliority. tiie -inds j'iin, .<<('«' hinds hitii oid\ as iM aj^ut. This in a wvll-estaMishnt doe. trine. If ."lie Icavptj liim withont e.inw nnd without eonsent, she entries no iia jilied aiiiliority with her to maintain h.er- Kell at his expense. Hut, if he \Mo!i;;fiillv compels her to leave his hc^iiie, he i-. iionud to niailitaili her elsewhere, aiiii if lie nnikes no ade<|Uate pidvision (or this purpose, she heennies an af;ent of lieeessily to s\ip. I'ly her Wants upon his credit. In -ueh a ea.se, inasniueli as .she is entiijeil to u jiiovision siiitahle to her l.ii-lMiid'.s -neaiis »nd ]iositi(>n, thi- ^utli'iemv of any allow- .nice whieli he makes under ihese cireniii- stanc'-i is necessarily a 'ine.stioi' for the jury. Where, how<'»ei, the parties kv\v\- r.ite hy mutual consent, they may nrnke their own terms : and so I'.nj^ ha tht'y continui' ihe separatior, these terms »re l)iiidinf{ on hoth Where the terms are, IIS ill this ca.se, that the wil. -.hall receive a specified in ei.oiij,di that site has a provision which si ■ iiuieea to accept IIH slllliiiiMlf . She ciTi;io( avuil liersell of 111 1 .Uushand's coll* yil to the se|Niri4'ioii, which alone jiistihes Imt hi living; apart from liim, iiiid repiiduito the (ond'iion.s upon which tiiat consent ^■iK ^riv.'H. And it Hcenis supeiHiiMiis tn add that uu third [M'rsoii can ciaim tu u if' m tx ;} t 190 COMMENTARIES ON SALES. [book II. Two questions in connection with the agency of a married woman came up, and were decided in Drew v. Nunn ' in the Court of A|)[)cal. These were, first, as to the effect of insanity in revokiuj; the agency ; and second, as to the limitation of such revocation as to parties continuing to deal with the agent with- out linov lodge by them of the principal's insanity. The plaintiff was a tradesman, and the defendant had given his wife autiior- ity to deal with the plaintiff, and had held her out as his a<,'eMt, and as entitled to pledge his credit. Afterwards the defondaiit became insane, and whilst his malady lasted, his wife urred goods from the plaintiff, who accordingly supplied them. At the time of supplying the goods, the plaintiff' was unaware that tlie defendant liad become insane. The defendant afterwards recov- ered his reason, and then refused to pay for the goods supplied to his wife by tlie {)laintiff. On tiie two (piestions arising' in the case, the Court of Appeal decided that insanity does rcvoki; the agency ; but tliat, in the absence of knowledge or notice of the insanity on the part of those to whom the agent had been licld out as such by the principal, the authority to trust the agent was con- tinued, and that, therefore, in this case, the plaintiff was entitled to recover.^ disturb the nrrangrmont mailo between tbo husband and the wiCc, and to way that ho will, Ity suii|)lyin;{ goods to the wife ou credit, compel tlie husbiind to nay more than the wife could have clainicil, that is, the stipulateil allowance. He can derive no authority from the wife whirh she is incoinpi'tent to give." See llodgkiuson V. Fli'tclior, 4 I'anipb. 70; Hunt v. Dc BliHiuiere, 5 Hing. .OoO ; Nursi! t'. t'raig, •2 B. & P. N. I{. 148 ; .rohuston v. S\inincV, a H. & N. 2nl her husband takes licr place. And it hna been argued that by aiiaiiijjy the lunatic continues liable \iiiiil a fresh )irineipal, naniely, his eumniitiec, is aii- pointed. But 1 cannot think tliattliUi* the true ground, fur exeriitors are, at It'.is' in some instances, bc.uiid to canv mit tin- contracts entered into by their testators. I think that the .satisfactory I'liiicijilt! t" be adopted is that, where sue li a clianif'* occurs as to the principal that lie can no longer act for himself, the agent wlmm h* h;w appointed can no longer :ict I'nr him in the present case a great chaiifji' !ii"l ot.'currcil in the condition (4' the piiii''i|iul ; he was so far allccted with tii.s.niity as to be disabled from acting for himsell ; there- PAVT III.] MARRIED WOMEN. 191 In an action against a husband for necessaries supplied to his wife, it appeared that the wife had committed adultery with the fiire liis wife, who was his ajjeiit, could no loiigiT mt for him. Upon the ground whiili 1 i>'>vi' iiointfd out, I t)iiiik that her iiiitliiiritv was teriaiiiiitcd. It sccnis to nil lli:it all agent is liabh; to b«! HUi'd bv II third jMisiiii, it' hit ns.sunicH to iii't on hi.'* priiKil'iil's liohalf alter lie iiad knowl- i»|i,w iif liis iiriiii'ipals inconipeteiiey to Alt. Ill a (iiM- of tiiat kind he is acting wrorifjlally. The di-feiidant's wife must Ins tikcii to iiavi' iM'eii aware of her liusliand'H iiin:ii'V : and if she had assumed to act on his Ix'li.iir witli any onn to whom lie hiiii- s.'li' li:el not lield her out as his iit'eiit, «ii« woalil liave tieeii iietiuj? vvrongf\illy, and, lint till the eiti'umstaiie(! that siie iii iiianiel, woiiM huve Ix'en lialilo in an !ii;tliiu to eoin|ielisate the pL'tsou witli uliMtii sde assumed to lU't oil her hus- tianil'> III lialf. In my o|iinion, if n jiersoii ullii ll.is not heeli held out IIH ll^ellt IIS- siinies to ait on helialf of a luiiatie, the (iiiitr.iit is V'liil • rtfjainst the .sui)|i(ised )iiiiiii|iul, and tlie ju'etended aj;ent is tiaiili' to an aetioii for niisloudin;; iiit in- llWI'll! IMTSDII.' I Ml till' (illirr (luestion, the same learned juilK'' S'lys : "As iH'tttet'ii the defendant iliwl his wife, the iii^eiicy expired n]ii)ti Ids bcKiiiiiiii; to her knowledge in.sane ; but it si'iiii-, to nie that tlie peison dealiii({ witll the :\iir\]\ without kir)W ledge of tllO prii)i ii'ids in-aiiity his a liylit to voter into a I'litiii'i' t witii liim, and the prineipal, altiioiii^li a luiiatie. is Ixiiind so that he i-aiiii'it repudiate the e.uitraet assumed to be iiiaiii' ii[>iiii liis Ixdialf. It is didiciilt to a.ssii;nllii'j;n>iiMii upon whiehfhisdnetriue, wliirli liiiwi'ViT seems to me to )>o the tr ]iriiii'i|.li', exists. It is saiii that the rigl • tdhnlil the insane principal liable depends niicin n.iili'ii 1. I have a ditlieiilty in as- seiitiiis; lu this. It has been said alsn that tlieri^'hf ilepi'uds upiill estoppel. ! ■.■aiiuot see that an estoppel is eieated. IJut it has iH-eii said also tli.it the ri^^lit depends tipoa ri']ire.se-ii.itions made by the piiu- I'ipal mill eiititHiig third persons to act u|Kii, tiiein, nniil ihey hear that those rep- r-'seiitatiniis are withdrawn. The author- ities enUected in .Sloiy on Agency, ch. 18, s'''\ 4Hi, p. ;ndaiit e.innot escape from the con- seiiuences of the representation which ho has made ; hi. cannot withdraw the agent's authority as to third jiersons without giv- ing them notice of the withdniwal. The principal is bound, although he retmctsihe agent's authority, if he has not given notice and the latter wr JUgfully enters into a con- tract upon his iH'half. The defendant h*-. came insane and vsm unable to withdraw the authority whicl> he had conferred ui>on his wife ; he may Im- i.\n innoeeiit sulferer by her conduct; but th.' ))laintill', who deati with her bund fiile, i.s also innocent, o:id whore one of two persons, both innci-eiit, sutlers by the wrongful .;ct of a thiol person, that imtsoii making the repreiien- tation which, as between the two, was the original cause of the mischief, must Im; the siillerer and must In-ar the loss. Hi re it docs not lie in the defendant's mouth to .say that the plaiutilV shall lie the stdferer. .•\ ililliculty may arise in the c.pplication of a general jirinciple such as this. .Suppose that a jier.son makes a rcprcseiilation which after his death is acted upon by another in ignorance that his death has hap|N'Ued : iii niy view the estate of the deceased will be bound tii make good any loss which ii'ay have oecuried through acting U|Kin that representation. It is, howeier, unnecessarv , to deiide thi.s point to-day. rpon the ;;ioiiiiils uIhivc stated I am of opinion that, although t!ie autlioi- •ty of the delendant's wile was put an end to by his iiis.inity, and alliioui:!' she hail no aiitbiirity to ib-al with the |ilaii ulf, 111 veltheliss the latter is entitled In re- cover, because the deleiidaut. whilst hts was sane, mado reprcsi'iitations to tlh- pluintilf upon which be was entitled fci act until he had notice of the defeiidaMH insanity, and he bad no notice of the i»- sanity until alter he had supplied tht goods lor the price for wlii' li lii- now sues." And see, on the same [loiiit^, I! van c. .Sams, 1-J (}. 15. »i;o ; i: 1 .1. •,>. 15.' 'JTl ; JJrownc V. .loddidl. Moo. & .M. 1«»5 , ! r ■S! .' ' • " Voii! " is here again u.sed where ho could iffirm it. The contracts of a ''mIv voidable is meant. If void there lunatic, like those of an nilant, or drunk- ■Hii'.i b<' no i|uestio!i as to "repudiating ard, at common law, are voidublu and uot till' cotitnn.t. " If he could repudiuta it, void. Secaa/t, p. 14(1, note. 192 COMMENTARIES ON SALES. [book II. rif connivance of hoi husband, and the husband subsequently turned her out of doors ; that she had no means of support, and that the plaiutiiT supplied her with necessaries in question while she was living separate from her liusband. The Queen's Hench Division held, under the maxim volenti non Jit injuria^ that the husband was liable for the necessaries furnished.' An order having been obtained in Durrant v. Ricketts^ fur leave to sign final judgment against a married woman, in uu action against her for the price of goods supplied to her during coverture, but living apart from her husband, tlio order was set usido, inas- much as there can be no judgment against a married woman per. Bonally in respect of such a claim; but un order was made for an inquiry as to her separate estate, and to declare that it was charge- able for the goods supplied.^ Rrtjctor V. Enrl of Portsmouth, 5 B. & C. 170; s. c. noin. IJa;{ster v. Earl of Porta- nioiitli, 7 l>. & H. «!U ; Moltoii v. Cmn- Toux , 2 Kx. 487 ; Dhiil' i>. Viscountess Kirkwall, 8 C. k P. (J7l> ; Niell v. Morlcy, 9 Ves. 478 ; Stcnd v. Thornton, 3 B. & Ad. 3.")7 n. ; Head u. lA'ffxnl, 6 Kx. 630 ; Davidson <>. Wood, 1 l)e (J. J. k S. 4(55 ; Jenncr v Morris, 3 Dn (t. F. & J. 45. Tho a^fui^y of the wife of a lunatic and the authority to |ilt'dge the hushand's credit ilo not dilftT from those ordinarily implicil from tin; relation of husband and wife; and whcro tiie wife receives sulli- cient money for all necessary iiur[>o.ses, incliidiuj^ nccesssjry repairs to her hus- band's house, the insane husband is not liable for such rejiairs made under the directions of his wife, any more than he would be if sani-, and had given his wife monoy, ami directed her to give the orders for the re|iair.s and pay for them. Uichard- son V. Dubois, !-. It. 5 Q. B. 61. See Mizen V. Pick, 3 M. & W. 471 ; Baker v. Barney, 8 .lohns. 72 ; Fenner v. Lewis, 10 Johns. 38 ; .Mott v. Comstock, 8 Wend. 644; ('assy v. Patton, 2 Ash. 140. » Wilson V. (}|osso|). 19 Q. B. D. 379. See Uoliiuson v. (iosnold, 6 Mod. 171: (Joviir v. llaiieoek, 6 T. K. 603; Morton V. Kazan, 1 M. & P. '22t5 ; Hunt v. De Hla'iuicre, .5 Ping. efiO ; Cullcy v. Charinan, 7 (,). B. I). 8i) ; Cox v. Kitchin, 1 B. & P. 338 ; Harris v. Morris, 4 Ksp. 41 ; Mainwaring i\ Leslie, M. & M. 18; Drew V. Drew, 1 Notes of Keel. ('as. 31,"i; Woodward r. Dowse, 10 (". B. N. s. 722. In Uobinson e. (Josnold, (i .Mod. 171, Holt, V. .1., is iiuoted as saying : " Let the woman bo ever so vicious, yet while she will cohabit with her liusband he is bound to provide necessaries for her, and is liable to the actions of such persons as furnish her with them; for his bargain was to take her for bettor or worse. In like manner it is if the husband turns liis wife away for her wickcdnes.-, ho riMnaiiis still ihargeable for her necessaries.'' .Vml in Manby v. Scott, 1 Keb. tJl> ; Sid. lu'J ; 1 Lev. 4, Hale, C. B., says: " AU,, if the wile cohabit with her husband, and is ever so li.'wd, he shall be liable for licr maintenance ; for he took her for U'ttcr for worse ; so, if he runs away from her, or turns her away, or I'oiics her by cruelty or ill usage to go away tmiii liiiii." Again, in Hunt v. |)e Bla(|uiei<', ,'< lilng. 650, .''i57, Best, C. J., says: " If a iiiun turns his wife out of doors, it lias Inch said by judge afti.T ju Q. B. 1). 371), 381; "But, however this may be, it is at all events admitted that a husband has no riulit to turn his wife out of doors under < ircuM- stances that would not ilisentitli' Iter to succeecl in an action for restitiition of conjugal rights." And sec Bac .\li., liaroa it Fiiin' (IH ; Seaver v. Simvit, 2 Sw. k Tr. App. 2. p. (iO.'i : Hiipc v. Il"l«'. 1 Sw. & Tr. U4 ; Hex v. Flintuii, 1 Ad. 227. a 8 b.iiiii was an alien beyond sea. The eM'i|itiiiM has lieeii a|i|ilied in this country ill nil I'iises where the husband has nhan- il.iii.ijiir di'M'iti'il his wile and acce|>ted an aiiii.|i(ir re.siili'iiee ill another State or juris- ilictimi. In thiMiiiiiliiMtionorthisexi'e|)tion till' States ail' re<,Mrileil as foreign and sep- aiati' jiirisilii'tions. Abbott t'. Bavley, 6 I'li'k. ,s!l; (ire^^ory v. Teiree, 4 Mel. 78; Barb. 3.')7. Ill tile late ease (if I'lielps v. Walther, "^ Mil. 3'Jii, it was held lliat the eonimon- l.iw ]iiiiiri|ili. ]ii'iivailed in Missouri, and Iliat till- st iiiite there providinj? j-eneinlly, with fxii.]itiiiiis only not apiilicaiiie to this I>|iii;t, tliat when a married woman is u jiiirty til her suit her husband must Im jniiH'il with ln'r, did not take uwny from InT riijliis to sue in her own name in thi) fniniiiun.law ex.'eiitioiml eases. And in tlip .same St.'iie, in the still more recent J^wlv. 11, isstl) of Morris v. Bohle, 19 Mo. App :,•>'.<, under tlio statute juovid- TOL I. 13 ing, in eirect, that when the Imsband, withmit good cause, abindons iiis wife, and refu.ses or neglects to niaintain her, she is entitled to her earnings, it was held that where her husband was conlineil in a lunatic asvluin she could sustain ail action in her own name lor her earnings. But the aliandonnient and failure to sup- jiort must concur in order to give the ac- tion. State V. StaH'ilis, Hi Mo. A|ip. 563 ; Statu V. Itu.ssell, //'/(/. 1(! , State v. Bruner, //'/(/. '274 ; State r. Silliier, 17 Mo. Alip. 31t. So that, thiiitgh the lius- band abandon Ids wile, while she is liviujo; on means provided by him, such right does not accrue. State v. Fuchs, 17 Mo. App. 4."..S. In Maine, too, it has been held, where the deleiidant was a inarried woman, de- Rirted by her husband, who had lel't the State, that as she was thus eiiaiiled to make express or implied I'ontraits for her support, which voiild be binding on her as il sole, so that any per.son furnisliing her needful supplie., iit her rei|iiist could niaintain an uition therefor against her, despite her coverture, that an action would lie against her by the lowii for jiauper 8U|>plies liirnished her. Inhabitants uf Peru V. I'oliiiKl, 78 Me. 2\r>. And see Ibewer v. Kasl Miichia.s, 27 Me. 4!»5 , Cutler V. Maker, 41 Me. ;<'.n ; Deer Isle r. Eaton, 12 Mass. 3°28 , Kcniiebunkport i>. Smith, 2-2 Mi. 441* ; Augusta r. KiiiKlield, 36 Me. 23!» ; I.ewistoii r! Harrison, 6t» Me. 5U4 ; New Bedlord v. Cliace, .1 Crav, 28. Ill Montana, in Palmer v. Mr.Masters, 6 Mont. ICii, m an action by a married woiiian for the recovery ot property, which she alleged U'loiiged to her, taken in exe- cution against her Iiusband, she claimed that he had deserted his wile and left the territory, leaving her in destitute circum- stances, and, theielore, that the aban- doned wife had a right to maintain the action at common law, not having brought her.seir within the piotectinii 111 the Mar- ried Woiiiiin's Act of Montana The court said : " We think a married woman who has been deserted and abandoned by her husband should be treated as a fivie .«(/«', and Mibject to sue and be sued a.s such This was so at comnion law, if the husband had alijiired the realm, and there is not iiiiii'h practical dillereiice, so far a.s the wile is concerned, whether her hii.s- biiTid abandons; her by abjuring the realm or desert.s her by departing the territory of Miuitann. It i.s not of vital importance whether the desertion is called alijiiration or abandonment." The court held, that while desertion of the wife by the hug- ^''■ill-.i' ■. :til'''' f . 194 COMMENTABIES ON SALES. [hook II. ■if counscrs opinion on the effect of an antenuptial agreement for a settlement ; in obtainin*;^ prufeH^ional advice as to the pr(>|)cr imxlu of dealing with tradespeople, who were pressing her to pay tlicin for various necessary articles supplied to her since she hud licoii (in- serted ; and also of preventing a di.strc8s threatened on fiiniitiiie l)eIonging to her husband, in the house she occupied, — are ut'ct'ssa- riesfor which she has implied authority to pledge his credit tliiiiiiir his lifetime, and for which alter his deuth his executors arc then- fore liable.' A solicitor employed by a wife to take proceedings against her husband to obtain a divorce on the ground of cruelty and adulten. may sue the husband for " extra costs," i. f., costs rea.S()ual)ly in- curred by him beyond the costs taxed and allowed, as IkjIwocii party and party. His common-law right to sue the husl)an(l for these as for "necessaries" supplied to the wife, is not to Ix: lim- ited to the statutable rights and remedies given to the wife under the divorce acts.'' In an action to recover the value of necessaries 8U|)plitMl l)y tin' plaintiH to the wife of the defendant, whilst living apart I'lom him, the answer set up by the defendant under a plea oi' never indebted, was that the agency of the wife was destroye I by tlio circumstance of her having in a suit in the divorce court been found guilty of adultery. To establish this, the proceed inirs in the suit were put in, from which it appeared that the adultery of the wife with the co-respondent had been established, but that ])ro[>orty, linil clmngoil tlio ooinmnn l:i», mill iiiiiilu a iniiri'icil woiiinn hvu'H M'pa- rati! mill a))art from her liusliainl ii:ilili' to 111! sui'il, notwithstamliiif? Iht fovirturf. .S,.|. Fri'ikiiig V. Uollaiiil, M N. V. 4'.'i 42r» ; Ailaiiis v. IltirniuHH, t'i'2 Itnli. IIW; I'liiiiior «. I.oril, 5 Alli'ii, 4t)0 ; ll'ilinoir. lloliiii's, 4 Conn. 117, 120 ; clMpiiMii ' IJrijj^'s, 11 Alli'ii, 540 ; Vntixt v. Cobh, 104 .Mass. .'iSD, 5!»0. > Wilson V. Koril, I.. «. 3 Kx. M. S^-* Brown I'. Ai-krovil. 6 K. & li. ■'sl'J; UM V. I.vnii, 2 .M. fc'W. 2t!5. ■i Ottaway r. Hamilton, 3 C. V. D. .IW, by the ('ommon I'li-aa Division ; nllimii^ on appoal hy tlin (.'ourt of Ai'pi'al ; /'■!''■ 31t8. Si'o also TiirniT i'. Rnoki's, lO.Vl K. 47 ; Brown v. Arkrov.l. 5 K. -*c n 813 Hill! V. Shcplionl, 12 C. I!, s. s. ;i:i2; ^ lloo|)cr, 33 L. .1. (Ml. 300; Di.koiis r, Diikfiis, 2 Sw. k Tr. 103 ; Siockin r, I'attriik, 29 L. T. 607 ; Wills r. Wills 1 Sw. & Tr. 308 ; Alli-n v. Alliti. .'Swi Tr. 107 ; 30 I,. .1. V. k I). 9 ; Biviiiiirn. Brimncr. L. U. I 1'. & 1) 2,-iJ; I'W"' .lonos. L. H. 2 V. & I). 333; VUvi't '■ Fli.wiT, L. U. 3 r. & 1). 132 ; N')rra« V. Villars, 2 Ex. Dir. 869. band removes tlioiiisal)ilitii>!t of covortiiri', nnil authorizes till! wiff to art as wfi'mc mile, yet till! riimoval of this lUsahility shoulil lie alli'^uil ami provnl, ln-uaiise tho fact of marria^ji' raisi-s the pri'siimption that tho disabilities still exist. See an elal»oriiti! juilgmeiit in Teck c. .Marlins;, 22 W. Va. 708, where, with refi-reiice to an aetion in West Virginia a^^ainst theailministrator of a married woman, for eosts and expenses of iibtaiiiiii^ a divoreo from her husband, it beiii;( alle}{ed that at the time the eon- tract was mado tim intestate was livin<; separate and apart from her husband, the court said; "Would tlie fact tlir.t when the contract was made she was livinj; sep- arate and apart from her husband vary tho case and render sncli contract valid a^^ainst her in a court of law > At com- iiion liiw her contract would, in a court of law, bu re;rarded as invalid and null as Ap;ninst her, when made while living sepa- nto and apart from her husband, pre- cisely as it would be if she were living with him." Hut the court held that the statute of the State, enabling a married woman, living separate and apart from her hnsband, to carry on business in her own namo, and making the issue her separate PAHT m.] MARRIED WOMRN. 195 tliL'iT was no decree of diHRulution of inarriajjo, by reason of the fiiKiiii;: of the jury that her husband aUo had been guilty of adul- torv . Till" court hold that the judj^inent of the divorce court \uu\ iKit iilli'icd tlic MtatiiH of the parties. The woman still conUniipd llu' will' of the defendant. There was nothing? in the case in the ilivoirc court but the mere verdict of a jury, bindinji^ as between the parties to the suit, luit it was ni)t an estoppel as airainst other |);iiti(S wlio came to litii;;ate th(^ same (juostion. The verdict a.Miu-t file defendant was, aecordinj^ly, sustained.* A |»('is(»n who has advanced money to a married woman deserted liy 111 r liiisbuml, and whieli has been actually applied towards lier sii|i|init. is tiititled in e<|uity, though not at law, to recover such Slims troni the husband.''' I Nrnlliiim f. liiiiiintT, I.. U. 1 (\ p. 583. liiii ii v'litriit'f ill II iiiiitiiinoiiiitl ('(iiirt is iiiiK'iiisivf, lor it is nii adjuilira- eiilliiii ll|"ili the slut IIS of till' |i:irtii'M, liiiii.^t.i r. Villi l{.':il, -2 Str. mi ; Hiiiit- iiiij's Cisi', 4 Cii. it. 'i\>(i: K«!iiir.H Case, "in. |{. tj/<.- .MlMllloWl'l-dlt r. IIiiKiii'iiilii 4 M.».. r, r. ;l>li ; I'ciiv V. M.Mlil.iWclnl't, M llciv. 12-.'; i'l.ili|w r. I'.uik, '>T. U. :U(i. Sm' .!< Ill inIi)|i|iiI ill siH'li cnsc, Outiaiii v. MNri'KHixi, :i Kiisi, 34ii ; lliiniialcir:i, 'J ('. A: I'. 14>< ; (iciiciiil .Strain N;ivii,Mli(ili Cr). I'. Ciiilloii, 11 M. & W. Kl ; i'iii' I'lirln'ss (if Kiii^;st'J ; .li'iiiirr r. M'Tiis, 1 Dr. & Sm. 'JIH : 3 Put!. V. & .1. \'<: IliitiJiiiiMiii r. Siandlry, .Vim. lU'^. IT'ii, citi'il in Doare v. .Soutti'ii. !,. It. !» Ki|. |>. i:,'J. May V. Ski'V, lit Sim. f.S8, liiiMiiii,'tli'' iivi'isf, i.s ovi'iriili'il liv .loiiiior I'. Mollis, ;( li.. (i. F. ti .1. 4;'.. .S..(. Clin- lii'll r. i;.h|iiiiiiii|, .1 A. & K. 7r)."» ; In re Kiir.1, :\i l!,;,v. tl-Jl; ilawlyns i'. Vaiiclvkf, l'i>i|'i'>siii- i'aisdiis sav.s on this Kulijcct ; "Wlii'tlni- a III iirii'il wumaii imii lionciw motii'v, rviii I'lir iicTi'.s.siiiii's, and iicr hiis- ImiiiI \v liil.i lialili' nil lii^ ilii|ilic(i lllltlior- ity, M'i'iiis lint til lie srtllnl." ] I'aM. oil Con. (7i!, ,.,!,) :i|i'j. Ot, thn coiitraiy, \\<'. think till' liw, liiiMi ill Kiiijlaiiil aiid .\irirr- ii;i, is ili..r..iii;iilv well sctilcil, and is a.s is almvi' 111, I down liy lis. As to thf law in Khiiliihl M.,. ill,, uliovc-citi'd I'rt.scs, in which tlic liw i^ , Irmiy l;iid down as \vt> havi! «tat.'d it. Tims ill .IfiiniTi'. .Morris, 1 Dr. i Sm. 21S, :i 1»,;(!. F. k .1. 4.5. .M, l.or.l ('atii|ilwll siys on tho |ioint ■ " .\ii iiction »l l:iw niiili'l lint he inaiiitaineil for hiicIi » 'lii'ii. Tliosf who supply tlio ni'ci'ssa- rii's ti> till' di'si-rtiMJ wifo may sui> tin* hns- Miul ;it I iw, .,hi' hfiiig cotisidorcil his ngi-iit with uiiroutit<'nnandaMo authority to or- ih'r till' iii'Cfssiirii's on his cii'dit. But courts ol' law will imt r«'r(i;;iiizc iii,y privily lit'twi'i'ii till' hiisliand and a pir.Miii who lias Kiipplivd his will- with inoiii'y to piir- cliah« iH'icssarii's, or pays the tradi'sprnph; who hiivi: rnrnishcil thmi. Ni'vcrthrlcss, it has ht'fii laid down tnuii aiiciriit times that a court of cipiity will allow the party who has advanced the iiioncy which has proved to have Ih-cii actually employed in payiiii; for iieccs.saries fiiriiisheii to the de- Bcrted wile, to stand in the .shoes of the tradcs|K-opl(> who furnished the iiecessn- ries, and to have a remedy for the niiiiuint a;raiiist the hushaiid." And as far hack a.s A. II. 1718 it was decided that, admit- tin;,' the wife <'aiiiiot at law Ikmiow money, tholl^^h for nece.s.saries, so as to hind tlio husliand, yet this money heint; applied to the Use of the wife for her cuie and for necessaries, the ]ilaintiir that lent tliLs money must in eiiiiily stand in the place of the ]ieisoi.-> who liiiiiid and pruvidud Niich necessaries for the wife. And, there- fore, lus such persons wiillld he ciedltors of the husliand, so the plaintilf shall .stand ill their place and he a I'leditoi also ; and it was ordered that the hiisliiiid's trim- tees .should pay hiiii his iiiiiiii'v mid like- wise his costs. Harris r. I.ee, 1 1'. Wins. 4!S'J. And ii^nin : If a tradesiiMii trust a married woman for ini'essaries he shall recovei a<{ainst the hiishaiid, so tar as the f;oods taken up appear to he mcessai y, ai;- ciiiiliiiL; to the dejjrec and (|iialily ol the llUsliaiid ; hut ll a man lends a inanieii wnliian iiioney to htiy iieceM.saiie.s, and she does MO, he has no rciindy apiiiist ti.e hus- haiid ; and this was aereed to he ii milled (ii'^linriiiiii (.\. n. 1718) in .Scott and .Man- liy's Case and other cases (at law, An'h. ) ; nnd therelore the plaintilf, who in this eu.se has supplied the woman with nioiiey in her necessities, and now hroiight his hill aguin-st the husband's e.\e( utors for ii dis- 1 ill t; V I m !^\S 1i m M 11 I: ■ V f i ; 1 IH IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I «tf|||||M 1112.5 3,6 itt III 2.2 It (40 12.0 1.8 \ ' - ■ 1.25 1.4 1.6 ■ _ ■ •» 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y '15E'' (716) 872-4503 \ V'^ V ,\ % > 196 COMMENTARIES ON SALES. [book II. 4. Married Women binding their Separate Estate. The separate estate of married women against which the rights and remedies of their creditors exist and can be enforced, is the covery of assets, and a satisfaction thereout of his debt, could have no relief, though tiie utmost unkind and cruel usage of the husband was ])roved, and that the money lent was actually laid out and applied for necessaries. But yet the Master of the KoUs said the plaintilf should stand in the place of the tradesmen of whom such ne- cessaries were bought {Mich. 1718, Awm., MS. Kep. Free, in Chan. 502), and be let in for a satisfiiction for so much as he could ])rovo to have been advanced or delivered to her by them as necessaries, as they themselves should have been if they had been plaintilfs, but for nothing more, s. C. Free, in Ch. 502, 503. The siinie principle was applied in Marlow v. Pit- field, 1 F. Wms. 558, 559, to tlie Btrictly analogous case of an infant, where it was held that though the law be that if one actually lend money to an infant, even to pay for necessaries, yet as the inftint in such case may waste anil misapply it, he is therefore not liable. It is, however, other- wise in eipiity ; for if one lends money to an infant to pay a debt for necessaries, and in consequence thereof the infant does pay the debt, here, although he may not be liable at law, ho must, nevertheless, be so in ecpiity ; because in this case the lender of the money stands in the place of the person paid, viz., the creditor for necessaries, and shall recover in equity, as the other should have done at luw. This has been the well-settled law ever since, the only exception being the overruled case of May V. Skey, 16 Sim. 588. The case of May V. Skcy, which was deciiled by Siiadwell, V. C, was, in Hirst v, Tolson, 16 Sim. 620, 623, put by the same judge on an entirely untenable basis ; and the case was expressly overruled by Jenner i'. Morris, 3 De G. F. & J. 45, 53; Lord Chan- cellor Campbell saying of it : "One ad- verse case was cited which I must notice, — May I'. Skey, 16 Sim. 588, —the mar- ginal note being, ' A. having gone abroad and left his wife unprovided for, the jilain- tiff lent her money to purchase necessaries, and she applied it accordingly, — Held, that the plaintiff could not sue A. for the money in a court of equity.' But it ap- pears that the vice-chancellor, who decided that case, not holding that there was not a debt due from A. to the plaintiff which might be recovered, proceeded upon the notion that this was a kfinl debt, the pay- ment of wiiich could not be directed by a court of equity. His Honor more fully explains this as his ratio decidendi in the subsequent case of Hirst v. Tolson, 16 .Sim. 623. But this is clearly erroneous. Tlmt no action at law could be maintained for such a demand was considered too cIm: for argument in the recent case of Knox i<. Bushell, 3 C. B. N. .s. 334." The case .seems to us to be put by Shadwell, V. (.', in Hirst v. Tolson, 16 Sim. 623, on a still more untenable ground than as stiittd liv Lord Campbell in Jenner v. Morris, 3 De G. F. & J. 45, 53. The ground upon which Shadwell, V, C, seems to us, in Hirst V. Tolson, 16 Sim. 623, 624, to put the cases of May v. Skey and Hirst v. Tol. son was simply that in the loniier case the bill was Hied against the hutiband him- self, and in the latter case it was (ikd against his executors; i. c., that sucii a liill would lie against the husband's execu- tors after his death, but would not lie against the husband himself during his lifetime. This position being so utterly untenable, it is not strange that a slijrhtly less untenable basis was sought fur it in Jenner v. Morris, 3 Ue G. F. & J. 45, 53. But the ground of the decision secuis to us clearly stated, thus : "In May v. .Skey, 16 Sim. 588, a lady had advanced money to a married woman (whose husband had gone abroad and left her wholly unpro- vided for) to enable her to procure clothes and other necessaries ; and the lady sued the husband [the italics are his own] lor the money. In the course of the arnii- meut two cases wer ' cited in which the court had ordered money advanced under similar circumstances to be rt'paid. But in each of tho.se cases the. husband tm dead, and the suit was against liis assets. In May v. Skey, however, the hi'shniid ir-'f alive, and, therefore, I held that the hill would vol lie. in this case, there licinjiii debt, and payment of it bidiig soiii ' t out of the a.s.sets of a person who is d'na J. t., a bill filed against his executors], I am clearly of opinion that it is a case in wiiicli this couit lias jurisdiction." Shailwell, V. C, does not intimate thnt the bill in equity against the livinj; hus- band was not sustained beciiuse an ao- tion at law would lie against him ; ii^r does he state or imjdy that an action t law would lie against the husband, lut not against the executor ; but wha* If does expressly hold is, that a hill wnuM not Ue against the living liusliaiid, Imt after the death of the husband it wouli lie against his executors, because they have assets on which the court can ait. But how the fact of the assets king in in ;' PART in.] MARRIED WOMEN. 197 creature of courts of equity, and such rights and remedies them- selves, therefore, can exist and be enforced in those courts only. the hands of the executor would sustain a claiiii in cijiiity which could not be sus- miiicd iiijuiiist his testator does not satis- faLtorilv"ai.iH':ir. Hy every analogy, an ac- tion at l:i\v would as well lie against an (Xi'i.'Utur hiiviiig assets as it would have hiiii a^'aiiist his testator ; and any claim iiciiii^l tliu estate of the testator which coiiM iiiily he enforced by a bill in equity coiilii as wi'U be enforced by similar bill ai;,iiiist till.' testator in his lifetune. How- ever, wlii'tlicr the ratio decidendi of May V. Skcv, 16 Sim. 588, as distinguished from Iliist r. Tolson, 16 Sim. 623, is as stated liy Lmd C'amitbell in Jenner v. Mor- ris, 3 I>e (i. F. & J. 45, 53, or as it i)re- sents itself to us, it is entirely untenable, and has been, we think, properly overruled and rciiudiatiMi in all the later cases. Lord .lustii'o Turner stated a much sounder jirineiide (as we think, with all (leleience to Lord Cain])bell) than that re- lied upon by Shadwell, V. C, of the ability of the court to control the assets, as fol- lows : — " It is an ancient head of the jurisdiction of this court to interpose in cases in which the principle of the law gives a right, but the tonus of law do not give a remedy. Kow what is the case here i It is beyond question that the i)rinciple of law is that the husliand deserting his wife is liable for necessaries supplied to her ; but it is oipially beyond question that if money be ailvaneed to the wife to juirchase necessa- ries, tiic money, although in fact so ap- plied, cannot be recovered at law, because, aicnrdin},' to the necessary form of action for tiie recovery of the money, the court of law cannot look behind the advance and enter into tiie ajiplication of the money. It seems to me, therefore, that the old eases are W(dl founded in the prin- ciples of ilio court of ecjuity, and that we are liouml to follow them." Jenner v. Morris, 3 \)i- C. F. & J. 45, 55, affirming the jud'^nient ; s. c. 1 Dr. & Sm. 218. See, also, /,V j.'ord, 22 Beav. 621, where an annuity was granted to a wife who was deserted tiy her liuslmnd, a!id supported hv her sister, and which was ordered to be lid to the sister in exidusion of the hus- laiid And •- .• Cuy v. Pearkcs, 18 Ves. 1 96. The same ]nin(Mple, both ns to married women and iiifiiiits, has been repeatedly held in Knfjiand in f'e courts of law. See Darin- v. KmK-her, 1 Salk. 279 ; f^arle r. I'eale, 1 Sulk. 386 ; Stone v. Macnair, 1 Moo. T2ti ; (;rinrocuring necessaries. , . . Had the de- fendant supplied the plaintilf's wife with necessaries, instead of money, suitable to her situation and the condition of the phiintilf in life, and have shown this on the trial of the cause, together with the fact that the plaintiff had without suffi- cient cau.se eom]telled her to separate her- self from him, hi! might have defalcated the price thereof from the amount of the bond. Or if he had shown that under such circumstances the money advanced by him to her had been applied to the payment of such necessaries jMirclmsed for her u.se, he might, upon prin iples of equity, have been permitted to have stood in the place of the creditor for necessaries, i\, >' I : i li I'.'ti t\\\:\ h. ' . 193 COMMENTARIES ON SALES. [book il For courts of law recognize in married women no separate exist- ence, no power co contract, and, except for some collatoiul and :lli^'i and to have defalcated the money ad- vanci'd fiom the aniuunt due on the bond. All this is nMiuiiiMi of the party who un- dertakes to fuiiii.sli the wife necessaries or money to pay for the same while in a state of separation from her husband. For al- tliouj,'li the liu.sliand is to blame fo" hav- hv^ caus(;il the separation, yet he is only eharj,'eabie at law for necessaries sujtplied to his wife at her reipiest, and not with money lent or advanced to her, because money cannot be considered necessaries, which consist of food, lodj^inj^, and rai- ment. But wliere the money lent or ad- vanced has been applied to the payment of necessaries fuiiiishcd to her, ei(uity will put the party lending or advancin^i; the money in the plact^ of the jiarty who sup- plied the necessaries." So tliat, in this country, such proceedinjjs would have to be in eipiity in such of the States as have not given eipiitable jurisdiction to the common-law courts. Tiie same iirineiple is establislied in Connecticut in the }nU\ rase of Kimyou v. Farris (a. d. 1880), 47 Conn. 510, where a bill in e(i\iity was liled to recover money ailvani'ed to the wife of the respondent for the purchase of necessaries by her wliilu deserted by her liusband, which, on de- nmrrer, was dismissed by the Sujjerior Court. But on error to the Supreme Court of Errors the judgment was re- versed, and the bill was sustained. We know of no decision in this country which i.s contra to these well-decided cases. In Gill V. Read, 5 U. I. 313, 347, after stat- ing the principle that neitlier a wife nor an infant has credit to borrow money, — the credit being for necessaries, and not for money to buy them with, — which may be misapplied, this distinction is made, that if the lender lays out the money, or sees it laid out for necessaries, he may charge them as j)rovid(.'d by himself; and thus the application of the loan is left, as it should be, at his jieril. The same jirin- ciple is laid down in Karlc v. Peale, 1 Salk. 38(3, where it was ludd that a Jcmc covert may buy necessaries, and her act shall make the liusband chargeable ; but siie cannot borrow money to lay out for neces- saries. So it is of an infant. He may buy necessaries, but he cannot borrow money to buj-, for he may misapply tiie money; and therefore the law will not trust him but at the peril of the lender, who may lay it out for him, or sec it laid out, and then it is liis providing, and his laying out so much money for necessaries for him. And assumpsit will lie for a loan to the wdfe at the request of the husbaml. Ste- venson V. Hardie, 2 W. IJlk. ti7'J. Su where the declaration was for nitiit, etc., furnished by the jilaintilf at tiie ilifcnil. ant's ro(£uest, and the evidence was tlwt it was furnished to the delendant's wil'f, at his request, in his absence, it was hiM tiiat a delivery to the wife at the huslmml's re- quest is a delivery to the IiusIkuhI. Kos V. Noel, Bull. N. P. 136. See iiac. Ab. Assuiii//.iit, v.; Com. Dig. Burtmd Fcmt, A. And in Pennsylvania it has lutn lail, under their Acts of 1718 and I8,'j."), that a married woman could herself oliiaiii an attacliment against her husband's |ii'iiji- erty for money expended by her lur the support of herself and chiidivii en liis de- sertion of them, and could iiavc ai;ai:ist him therefor the same remedies iit law as a feme sole, lleillev v. Heilley, 4 Bivw.st. PJ9, And see Burke v. Weiikle, 2 8. &. W. I'.t. There is another question closely ikhi- nected with that of the ability of mw who has lent or advanced money to a iiianii.ii woman to buy necessaries, to rei'uver therefor from her husband, of iiiueh greater nicety than that is, and iu i.uii- nection with which the conliiit in the authorities, in both England and Amer- ica, is unquestionable. It is as to the riglit of the wife, independent of tlii' stat- utes pa.ssiid for her relief, to cdiiipi-l iier husband, by }iroceedings in equity, to [no- vide for her maintenance, outsiili,' of any apjilieation for divorce. It is statnl iu some of the text-books (see 2 Sto. Ki|. Jur, § 1422), and iu some of the cases, that the doctrine held in England is, thai the obli- gation of the husband to pioviili' a suit- able maintenance for his wife is not a iluty of wiiich courts of equity will dciici' the specilic performance, by requiring liiiii to furnish a separate niaiiitenaiice. That the remedy is in the courts of law, by ai:tioii against the husband, in favor of any one who may, under such eireumstaiici's, have sujipliod the wife with necessaries suitaMe to her condition in life ; that the jiiiisilic- tion of decreeing alimony beloiij,^ to the spiritual court, and can be jnopi rly i xer- cistd in that court as incidental to a ile- creo of divorce only, and is not within the jurisdiction of a court of eiiuitv. Nieely V. Nicely, 3 Head (Teiin.), "iSl, 1^'i. But it is added in this ease: "Saih siinij to be the general doctrine of the Klll:!i^h cases, though the cases upon this .Miliirt do not altogether agree." It was I'liriher said in that ease: "But in soiin' of the American courts a more reasoiialih' iloe- trine lias prevailed ; and the jmis'lii'tion of a court of equity in such casus has r-t-- ■ PiUT III.] MARRIED WOMEN. 199 incidental purposes, no possession or enjoyment of property sep- arate and apart from their husbands. They deny to married been iiiiiintiurieil upon gt'nerul principles, ;iiiil fs|icciiilly upon the utter inadequuey lit' till! icmcdj' at law." Tiie court ox- iiKs.sL'cl their intention, hiul it lieen ncces- sirv to liiive done so, to have Ibllowed the lioliliiitr in tlioso cases ; but they decided tliut ill Tennessee this power was expressly iDiifeireJ on courts of eipiitv liy stat- ute, - Aet of 183;-), ch. 2(3, §§ 18 and 19 ; Nicely 0. Niiely, 3 Head, 184. Altiiiiiiuli the En{j;lisli cases are f^ener- ally to the elleit as slated ill Nicely v. Njicly, 3 Head, 184, there are cases in ljij;l;iii(l where the court, liavinj^ control of hiiels to which the husband was en- titled, has laid hold of such funds, and i'oiii["il'Hl the husband to make suitable provision fur the sup|)ort of the wife out uf siieh funds, and in other cases has giaiili'd alimony where such a state of allairs docs not seem to Iiave existed. See l.iisliliidok V. Tyler, 1 Ch. U. 24; Ashton r. A.-htuii, Iliid. 87; Uussell v. Bod- will, ;/'/-/. Oil; Wliorwood v. Wlior- H(jod, //'/'/. 118; Nichols v. Dan vers, i Vein. 7<)1; Oxenden v. Oxeuden, Ibid. iK : Aiij,'ier v. Angier, Gilb. Ch. l.')2 ; Williams r. Callow, 2 Vern. 7.'')2 ; Wat- kviis I'. Wat ky lis, 2 Atk. 96 ; Bullock v. Miii/.iis, 4 Ves. 7!>8; Guth v. Guth, 3 Bio. e. C. (!14; Wright v. Morley, 11 Ves. 20; UuiuMii V. Dniiean, 19 Ves. 394. Ill a verv old case (a. I). 1706), Oxc^ii- (leii r. Oxeiideii, Gilb. Ch. 1 ; 2 Vern. 493, it was olijeeted that the court had no juris- diitioii ill till! case of alimony; but counsel said, to which the Lord Keeper agreed, "that this was as projier, if not a ])ioperer, Place tliaii the Spiritual Court ; For the Siiiiitual Court has only a coiiseijuential Juiisdietion for Alimony, always subse- quont to a Separation, unless ])ru iiiinis ct ('//iii/.s/s, and a present Subsistence ; but this Court has an original Jurisdiction, or lit least a eonciirient Jurisdiction with the S|iiiitiial Court, as in the Cases of I.e;,'ai ies, I'lcdiates, &c. Hut the Lord Keeper said this Court couhl neither sep- arate II Mnina <£,• Thoro, nor « Vinciilii ; these Iieiiig matters merely spiritual." IJiit in Aiigier v. Angier, Gilb. Ch. 153, it was said, that " tho' this Court could not ikcnr Alimony, yet it might decree Exeeiitioii of Articles according to the Parties' own Agreement; and several I're- i^edeiits had lieen in this Court to that Purpose, as Sir James Oxenden and his Lady, and a case of Cutting and Cutting, and several other Cases. My Lord Cliaii- cdlor was of the Same Opinion, and said, todeerc'an Execution of Performance of these Articles, was not to invade tho Juris- diction of the Si)iritual Court." And in Whorwood V. Whorwood, 1 Ch. R. 118, the judges certified in Mich. Term, 1662, that decrees for alimony made in the Court of Chancery " in the late times" were con- iirined by the act for confmnation of judi- cial proceedings. And this is explained by Lord Loughborough, in Legard v. John- son, 3 Ves. 359, thus: "Soon after the civil war there had been a decree by the Ijonls Coininissioners. There being no Ecclesiastical Court, the jurisdiction, some way or other, got there." The ca.se, liow- ever, of Oxemien v. Oxenden, Gilb. Ch. 1, rei'erred to above, was long subsequent to thi.s. But there is no doubt thiit for a long period back no such jurisdiction has been exercised iii the Knglish courts. See Hall V. Moiitgoniery, 2 Ves. 191; Legard V. Johnson, 3 Ves. 352; Mildniay v. Mild- may, 1 Vern. 53 ; Ilincks v. Kelthorpe, Ibid., 204; Head i\ Head, 3 Atk. 547; Duiii^an V. Duncan, 19 Ves. 394. In Head V. Head, 3 Atk. 547, 550, Lord Hard- wicke said: " 1 do not liiul that this court ever made a decree to com])el a husband to ])ay a separate maintenance to liis wife unless upon an agreement between them, and even upon this unwillingly." In this country the courts in some of the States have a.ssumed such jurisdictior in chancery, while others have refused lo exerci.se it. In some of the ca.ses where such jurisdiction has been assumed, it lias been claimed on the giound of avoiding circuity of action. I'apiity, however, never obtains a special jurisdiction on that ground. Another ground taken is that inasmuch as the system of s]iiritual courts as in England was not adoj)ted in this country, chancery, in this country, possesses all the powers of the spiritual courts in England. To this it might be rejdied that even in the s]dritual courts alimony was never granted, except either pi:ndcntc Ulc on an application for a di- vorce, or as incidental to a divorce on that being granted; whereas, in this coun- try, where the ei|uity (ourts claim the right of granting the wife a separate main- tenance, it is not as an incident to a di- vorce, but on an indejieiulent a]iplication. It seems clear that there is no well-de- cided ease in England in which a sejiarate niaintenance was granted to a wife out of her husband's estate, either by the eccle- siastical or ecjuity courts, on a simple ap- jilieation for such separate maintenance, as has been repeatedly done in this coun- try. In Duncan v. Duncan, 19 Ves. 394, 397, Sir Wni. Grant say.s, quoting Lord Loughborough : " It is contrary to the es- • i • 1 III i I \ 'O if 1 1' ! <1 200 COMMENTARIES ON SALES. [book II. women both the power to contract and the power to cnjov. Courts of equity, on the other hand, have, through the medium of tablisheil doctrine, that a tnarrii'il woman bIiouUI h: u |ilaiiitiir in a suit in tins courc for s('[)iirato ;naintenanun ; takin;; it now to 1)0 the cstahlislied law, that no court, not evon the ecelesiastical court, has any original jurisdiction to give a wile a separate ni:iintiMiaiice. It is always as incidental to some other matter that she becomes entitled to a separate jirovision ; as if she applies in this court for a .iiip/di- cavit for security of the [leace against her husband, and it is necessary she should live a])art. As ini'iderital to that, the ciiancellor will allow her separate mainte- nance : so in the ecclesiastical court, if it is necessary for a tlivorce a incusn cl thoro propter sicvUinm." See Hall v. Mont- gomery, 2 Ves. 191, 195, per Lord Lough borough. In tills country, in Massachusetts, an applicati in was matle for alimony, in con- nection with an application for a su/ipli- cavit, and was refused. Adams v. Adams, 100 Mass. -Mu). The court held that it never was the direct object of the writ of supplicnvit to give alimony, and that an attempt to use the ])rocess for the direct purpose of obtaining alimony to enalile the wife to have a permanent sejiarate maintenance was an abuse of the writ. And .see (!oil. Framuscus, 2 Hland, 565; i nuie V. Meginnis, 1 Gill & J. 463, 474; nniin- ock V. Drnmock, 3 Md. Ch. 140, 142, ct seq. We think the weight of reason and authority is with this holding ; Imt iis the question is one degree farther reliKivrd from the law of Sales than where a lliiiil party has ailvani'ed money to the wife for the express purpose of ])ur(liasiiig luces- saries, we do not hen; piirsiK^ th.' ipiisiion further, ex d. Whitcomb, 46 Iowa, 437 ; Graves v. Graves, 36 Iowa, 310 ; Farber v. Kniber, 64 Iowa, 362, under tlic Iowa stitiite. (But see O'Ma'.Mii r. O'llau'an. 4 In«a, 516, 517; McMuUen y. .M.'Mullen. 412, 414, cutitni).- Nicely r. Nieclv, 3 llcwl PART HI.] MARRIED WOMEN. 201 trusts, created for married women rights and interests in prop- erty, butli real and personal, separate from and independent of their liusbands. To the extent of the rights and interests thus created, whether absolute or limited, a married woman has in courts of iMpiity power to alienate, to contract, and to enjoy. In fact, slio IS considered in a court of ecpiity as a feme sole in re- spect of pr()i)erty thus settled or secured to her separate estate. It is from this position of married women, and from the rights and pouui's incident to it, that the claims of creditors against separate estates of married women have arisen.^ Tlie eases are very numerous which have established that the bonds, bills of exchange, and i)romissory notes of married women are payal)le out of their separate estate.^ The separate ])ropcrty of a married woman is also bound for her general engagements, if it appears that such engagements were made with reference to and upon the faith or credit of that estate, and whether it was or not is a question to be judged of by the court upon all the circumstances of the case.^ (IVnii.). 18-*. 186; Puivfll v. Piircdl, 4 lli'ii. >^ .M. 507, 50!) ; Aliiioml v. Alinoiul, 4 Hand. (Jii'J ; Dauiuls v. Daniels, 9 Col. 13:!, 117, ct SCI]. ; (Uovur r. (ilovcr, 16 Ala. 44(1; Hiiuls I'. Hiiuls, 22 CVnt. Law J. 308 ; I'latncr i". I'latiier, 66 Iowa, a78 ; Kiiiii r. Finn, 62 Iowa, 482 ; Paterson v. I'atcTson, 1 llalst. Cli. 889 ; Thompson v. Thompson, 10 Rich K(|. 416. As far as these cases are deuided on the pronint that eiinity has an ori<,'inal juris- (lictiiiii over tlie question of aliinony or a si'parale allovvanee to married women, in- (l(]ioii(lent (if iiiiy other subjeot connected witli it (and these cases are nearly all dc- dded DM that j;round), we think they are wroni;iy decided, Wliile it is, of eour.se, unijiiestidnalile that such powers may he Kiaiitcd to I iinnnissioners, or he loijalized hy act of |iailiainent, as well as conferred upon courts of (diancery or any other courts by statute: yet we think these cases do not sustain the ]M)sition that sucli pow- ers jiiTtain to cliancery, as that court and its piiiiiiplcs were derived by this country from Kniiland. .Some of the cases purport to lie ilccided on the ntaxiin, Uln jus ibi mni'illidii (" There is no wrouR without a iviiicdy "), hut a similar ajtplication of tliat ]iriii(iple to the case of an infant would, with almost eijual consistency, ad- mit of a minor filiur; a hill again.st his father for separate nuiintenaiice. We think the maxim more applicable to such ca.scs is, iliDiiniim absque injuria. For .\tnevicaii ca.scs where a remedy Iws liccn i,'iven in accordance with the English eluince.y decisions, see Glen v. Fisher, 6 Johns. Ch. 33 ; Cape v. Adams, 1 Des. .'-.67 ; Tattnell v. Fcnwick, 1 Des. 143; Tucker v. Andrew.s, 13 Me. 134; Heath V. Heath, 2 Hill Ch. 104 ; Kees v. Waters, 9 Watts, 90 ; Perryclear v, Ja- cobs, 9 Watts, .^09 ; Myers v. Myers, 1 Bai. Eq. 24 ; Helms v. Franciscus, 2 Hland, 54.'J ; Ti^vis v. Richardson, 7 Mour. (Ky.) 660 ; Van Epps r-. Van Dcusen, 4 Paitje, 64 ; Howard v. Moll'at, 2 Johns. Ch. 206. And see, further, as to relief under statutes, Nuetzel v. Nuetzel, 13 111. Ajip. 542 ; Pell v. Walsh, 130 Mass. 163 ; The State v. Witham, 130 Mas.s. 473; Harris v. Harris, 101 Iiid. 498 ; Peck «;. Marlinji's Adm'r, 22 W. Va. 708 ; Vohe I'. Barnet, 1 Hiun. 358. 1 Johnson V. (iullasher, 3 De G. F. & J. 494, 509, per Turner, \,. J., approved in Picardu. Hine, L. H. 5 Ch. A).. 274, 276, 277, per Hatherley, L. C, and Gifl'ard, L. J. ; hj' the judicial committee of the Privy Comunl, in the I^ondon Chartered Iiaidv of Australia v. Lamiuere, L. P.. 4 P. C. 572, 594 ; and in Pike i-. Fitz<;ih- boti, 14 Ch. Div. 837, 841, hvMalins, L. C. •■2 X.irton r. Turvill, 2 P. Wnis. 144; Stanford v. Marshall, 2 Atk. 68 ; Peacock V. .Monk, 2 Ves. Sen. 190 ; Hulme v. Tenant, 1 Bro. C. C. 15 ; Dillon i-. Grace, 2 Sch. & Lcf. 456; Heatley v. Thoma.s, 15 Ves. 596; Bullpin v. Clarke, 17 Ves. 365 ; Field v. Sowle, 4 Russ. 112 ; Stuart V. Lord Kirkwall, 3 Madd. 387. ' The leading ca.se on this question is Hulme V. Tenant, 1 Bro. C. C. 15, in which it was distinctly laid down by Lord Ro.sslyn that the separate estates of mar* ; :M !l y J, ' . 202 COMMENTARIES ON SALES. [book H. VVhoro a married woman is living separate from her husljand, that is a strong reason for saying tliat she intended to bind tluit property out of whicii alone she could pay that which she con- tracted to |)ay. When she by entering into an agreement allows the supposition to be made that she intends to perform the agree- ment out of her property, she creates a debt which may be recov- ered not by reaching her but by reaching her property.* vm\ woiiicu are liable I'or their general eiij^a'^eiiieiiU. This has been followed by numerous eases. In Milnes v. Busk, 'J Ves. Jr. 488, iionl Loughborou;;h saiil : "As to all her (lel)ts anil en^^a^cnients, with re;,Mril to that she shall be answer- able as ii/rinn soli; would be to the extent of that." .See also .Murray v. Barlee, 3 llyl. >i K. '.'uy ; Owens v. Dickenson, Cr. & I'h. 48 ; Hm ke v. Tiiite, lit Ir. li. & li. \l. 4iJ7 ; Vauj,'han c. \'and(U-ste;,'en, 2 Drew. 1»;5, 2S!t, ;5(i3, 403 ; \Vii7;i. Hut, as slated in the text, to bind her separate estate, it must aii[)ear that the enj^aj^einent was made with refi.rent^e to and upon the faith or credit of that estate. With rel'erenee to this Lord Justice Turner, in Jolmson o. Gallaj,'her, 3 De (i. K. & J. 4'.tt, .'Ji4, while saying, " Xot only the bonds, bills, and prouiissory notes of married women, but also their general engageni'^nts, may aU'eet theii separate estates, exee|)t as the statute of frauds may interfere wherif the se|)arate pro[)erty is real estate," adds, " To alfect the separate estate there must be .some- thing more than the mere obligation which the law would create in tin; case of a single woman. What that something more may be must, I think, dip 'ud in each ca.se upon tiie circumstancits. What might alfect the se]iarate estate in the ease of a maii'ied woman living separate; from her husbanil might not, as I apprehend, alfect it in the case of a married womm living with her husband. What migiit bind the sejiarate estate, if the credit be given to the married woman, wouhl not, as i con- ceive, bind it if the credit be not so given. The very term 'general engageiiKuit,' when a|)i)lied to a married woman, seems to im- port soin thing more than mere contract, i'or ni'ither in law nor in ei|uity can a married woman bo bound by contract merely ; Aylett v. .Vshton, 1 .Nlyl. & Cr. 10,5." And see Jones v. Harris, l» \'es. 41(3; Aguilar y. Aguilar, 5 .Maibl. 414; Greatlev w. Xoble, 3 .Madd. 7it ; Stuart v. Lord Kirkwall, 3 Madd. 387. And in Tullett y. Armstrong, 4 Heav. 319, Lord Langdale said : " It is perfectly clear that when a woman has ju-operty settled to her 8e)>arate use, she may bind that property without distinctly stating that she intends to do so. iSho may enter into a bond, bill, jiromissory note, or other obligatinii, which, considering her statt; as a niiuiiid woman, could only be sitislied by iieiins of licr separate estate ; and thcntdre the inference is conclusive that theii' wu.s aii intenticni, and a clear one, on lur [ait that her separate estate, which WdiiM be tiie only means of satisfying the oliliijiitiuii into which she entered, should Ijc buiiiiil. Again, 1 apprehend it to be clear tlwt where a married woman having sc|iaiat(! estate, but not knowing perfectly tiie iiatun; of her interest, executes an in.stni' inent by which she plainly shows an iiiteii- tion to bind the interest which bcloiij,',s to her, then, though she may make a mis- tak(! as to the extent of the estate vested in her, the law will say that such estate m she may have shall be bound by her own act. But in a case where she enters into no bond, contract, coviMiant, or oliligatioii, and in no way contracts to do any act on her pai't ; where the instrument wiiicli .she executes does not imr[)c)rt to iiiiul or to jiass anything whatev<'r that bilcmgs to her; and where it must cunsci|Ucii;ly be left to mere inference whether she intiinkJ to alfect her estate in any manner or way whatever, the case is entirely liill'iTLiit either from the case where she exciutcsa bon ilie ri^lit to make her seiiariitc estate liiilile ; ami tlu' ([uestioli wlietlier tlie ohli- "iitiuM was eoiitnicieil in tlie manner 1 liavi' nuiitioned must ilepenil U|ion the liiil.-. aiiil ( in-iimstanees of each partieuhir (M.-r. ll eleaily is not necessary tliat tlie iiiiitiact shoulil lie ill writini,', hceause it is iiMW aJiiiitteJ that if it married woman i'iil Hare, 47!), and Shattock I'. Shattock, L. 11. 2 El). 182. In John.soii i'. (!allajrher, 3 De (I. V. & J. 517, l.onl Justice Turner considered that Sir Win. (liant treated the jMiiiit as doubtful in Heatley v. Thoina.s, 15 \'i's. 5SH). Sir Win. (iiant's observa- tions are these : "The i|tiestion is, w hetlier this was separati! juoperty to all intents and purpo.ses. lii Lockett v. Wrav, 4 Bro. (-'. C. 483, Lord Alvanley did' not consider a inarried woman who had only a jiower of appointment by will as having se[iarate property, distiiij^iiishiiif; that case from Norton v. Turrill, 2 1'. Wins. 144, where the creditor was allowed to resort to the .separate property after the death o the wile, as she had a jwwer of appointing by deed or will. Upon the (|iiestion in Lockett i>. Wray, 4 Bro. C. C. 483, whether the wife eould give the projierty to her husband. Lord Alvanley held that she could not ; that she could not allect it in any way but by a revoealile instrunient ; and the bond was an iastruniunt not re- :ll 204 COMMENTARIES ON SALES. [book II. mi rate estate to wliicli she was entitled, free from any restraint on anticipation, at the time when the engagements were entered into, as remains at the time when judgment is given, and not against separate estate to which sh.e became entitled after the time ol' ilie engagements, nor against separate estate to which she was enti- tled at the time of the engagements subject to a restraint on an- ticipation. The reasons for this doctrine we consider are twu; First, because, as the very essence of the whole liability, the .si'|)ii- rate property of a married woman is only bound for her genoral engagements when it appears that such engagement.s were niado witli reference to and upon the credit or faith of that estate, and not on the credit or faith of an estate which she does not possiss, or over which slie has not the j)o\ver of anticipation ; ^ and second, because to hold otherwise would be to dechirc .that a marrit'd woman, Avho expressly has no power of anticipation, can in el't'oct anticii)atc.2 vowiblo. If tliU was absolute separate lirnpcrty in Mis. Joliiison, upon the plain- till's construction of the ileetl, tliat takes it out of tiie ease of Loekett v. Wray, 4 I5ro. C. 0. 483, an.l brings it to tliat of Hulniu V. Tenant, 1 Bro. C. C. 16." Ill this case, a bond creditor of the married woman sought payment out of {jroperty appointed by her will. A doubt was raised ill the case, on the true construction of the settlement, as to whether it did in fact give lior a power of disposal, by deed or otherwise, iidrr vivn>i, as well as by will, and that doubt beinr; resolviid in the atfirmalive, tl;e plaintilf olitained the de- cree sou^^ht for by him. Commenting on this, the I'livy Council say : " In that case it is obvious that Sir Win. Grant considered that property settled to a mar- ried woman's separate use for life, with power to dispose of it by deed or will, wa.s, ill etfect, separate property. That case was in one respect a strong one, as there was no gift over except in tlio event of her dying in her husband's lifetime. She survived him, and, therefore, irre- ..^.-fctive of the settlement, became again possessed of the projierty in her original right ; .so that, upon the death of her lius- band, the properly stood settled to herself for life, remainder as she should by deed or will ajipoint, remainder to herself abso- lutely. But, having ])roperty, over which at the time of making the bond she had absolute power of disposition notwith- standing her coverture, the bond by which, notwithstanding her coverture, she had bound hciself, was decreed to be .'iatisHed out of it." The London Chartered Bank of Australia v. Lempriere, L. R. 4 P. C. 605. In this latter case, the gift was to the married woman for her separate use for life, with remainder, as she sIkhiM, notwithstanding her coverture, by dird or will appoint, with remainder tn Iut e.xeeutors or admiiiistiators. In deliver- ing judgment, the Privy Council siy : "Their lordships are satislicd tiiat, on tlie weight of authority and on princi]ile, they ought to treat this, as what in c oiiiiiioii .sense and to eomnion appreiieiision it woiilil be, — an absolute gift to the sole and siji- arate use of the lady. The words ai v an ex- pansion of what would be implieil in the words 'sole and separate use;' and tlnv conceive themselves at liberty to hold tliut such a form of gift to a inamed wninan, without any restiaiiit on anticipation, vests, in ecfuity, the entire corpus in her for all purposes, as fully as a .similar gilt t.i a man would vest it in him," Ihid. We think, with the judicial committee of tlu' Privy Council, that on the weight uf authority and on principle this is tliu sounder view of the law on this ])oiiit. 1 See Hulme v. Tenant, 1 Hro. V. C 15 ; Millies v. Rusk, 2 Ves. Jr. 48S ; Murray v. Bailee, 3 Myl. k K., •JOii ; Owens V. Dickenson, i'r. & Ph. 4S; Huike V. Tuite, lit Ir. E. & L. li. -107; Johnson v. Gallagher, 3 De G. ¥. & .'. 494, per Turner, L. J. '^ It was so held by Vice-Chaiieellor Malins in Pike t,'. Fitzgibbon, 14 Cli. Uiv. 837, and by him again in Pike v. Kitzu'ib- bon (2d Ca.se), 17 Ch. Div. 4.'')4. H^' there held that judgment on the covenmit of a married woman entitled to separate estate binds the se])arate estate which she has at the time when the judgment is given, including, if her husband is then dead, estate given to her separate use with a restraint against anticipation. The com- plete fallacy of the Vice-Chancellor is con- PART III.] MARRIED WOMEN. 205 A iiiairicd woman is bound by estoppel in a deed ot' her inter- est in her separate property, duly executed and aciiin'- liciisi'iii 111 tlui iiiw wiii'i-i' lii^ .sliiU'8 ; " It is iii'ilictiy itiiinatfiiiil wlictlifr ii iniinicil wiiiiMii has .sfpai'iiti' cstiitt! at tin; tiliiu (i'. c, at till' time sill! iiiiiilu tliu I'li^'ajjo- iii'-iit] iiij,' what tlii'y meant." Jhid. 14 Ch. hiv. at ]). 842. In the second case tin; Vii('-Chanci'lli)r adhered to his deeis- iuii : " 1 liiild it to be i leal' that all sepa- rate iHiiiii riy which she had at the tinio (if tile jud;,'iiient, whether slid had it at the time (if the debt bein^' contracted or luit, is liable to fiillil her ;^eneral i'nf;af,'e- iiieiit^." II)iiL 17 C'h. l)iv. •1.55. On a|i- ]ieal, liiitli decisions were reversed. Jhid. 17 (li. Uiv. 1.'.4, iol. Brett, I.. .T., jmt the liter tersely, thus: "I diller from sn iimeh of the jud),'ment of the Vice- t'liaiii illor as says that the jiropositiou api'lles til se|iarate jirojierty coniinj,' into existeiieu after the time of the enr;age- iiieiit, (Veil thou;. B. :<-:2 ; /,V Svkcs's Trusts, 2 .1. & H. 41.",; Kiiijf r. Luc'as, 23 Ch. Div. 712; Stanley r. Stanley, 7 Ch. Div. .181). See, alsii, on the (General ipiestion, .\twood v. ' liiehester, 3 (J. B. Div. 722; -Mellenry !'. Davies, L. K. 10 K.]. 88 ; Chubb v. ■Stretch, I.. 1?. 9 Eq. .^.")5 ; In re Spencer, 30 Ch. Div. 183 ; Chapman v. Ri<;gs, 11 Q. B. Div. 27 ; In re Andrews, 30 Ch. I'iv. ]:,u ■ Meaf,'er v. Pellew, 14 Q. B. piv. !'7;i ; Hodges v. Hodges, 20 Ch. Div. 74!) ; Lancashire & Yorkshire Bank v. <)ee, W. N. for 1875, 213. Moneys ailvanced by a stranger in pro- viding necessaries for the support of a inaiiied woman, living se[iiirate from her husband, are debts binding lier separate estate ; and being debts payable out of funds held ill trii.st for her separate use, are not barred by the statute of limita- tions. Hodgsiin I'. Williaiiisnii, 15 Ch. Div. 87 ; Norton r. Turrill, 2 I'. Wms. 144. In Vaughaii r. Walker. S Ir. Ch. U. 458, 404, Lord .luslice Lilackbinnc, dis- senting from the Lord I'liamellor, dill'eied with the holding in Norton i'. Turrill, 2 P. Wins. 144 ; but was condemneil in Hodgson V. Willianison, 15 Ch. Div. 87, 1)1, as proceeding cm a fallacy. The law in the I'liitcd States, with ref- erence to the separate iiidperty of inurried women before the jiassage of the ^larried Woiiiun's Acts, is very iniich to the same ellect as in Kiigliiii(l. See Kirksey v. Friend, 48 Ala. 27ii ; Bi andry v. IS'elch, 47 Cal. 1^3; /.V Kiiikead, 3 Biss. 405; Davis I'. Davis, 43 Iiid. 5til ; McCaleb r. Crichticld, 5 Ilei.-k. (Teiin.) 288 ; Sienier.s V. Kleeburg, 56 Mo. I'.t6 ; Wright v. Dresser, 110 Mass. 51 ; May v. Smith, 48 Ala. 4^-3 ; Conn. Life Ins. Co. v. Mct.'or- niick, 45 Cal. 580 ; .Ionian r. Peak, 38 Te.x. 42i" ; Yale v. Dederer, 21 Barb. 286 ; Bell V. Kellar, 8 15. Mon. .^81 ; Ozley v. Ikclheinier, 26 Ala. 8112 ; Collins v. Ru- dolph, 19 Ala. 616 ; Priest v. Cone, 51 Vt. 495 ; McVey v. Cantiell, 7o N. Y. 295 ; Patrick r. Lit tell, 36 Ohio, 7lt; Wil- lard I'. Kastham, 15 (liav, 328 ; l.'ogers v. Ward, 8 Allen, 387 ; White v. MeNett, 33 N. Y. 371 ; Partridge v. Siockcr, 36 Vt. 108 ; Frary ?;. Bdotli, 37 Vt. 78 ; Imlay o. Huntington, 2ii Conn. 146 ; Meth. Kpis. Church I'. Jacipies, 17 Johns. 548 ; Yale (,'. Dederer, 18 N. Y. 265 ; Carter v. Howard, 39 Vt. 106; P.ugbee v. Blood, 48 Vt. 4U7 ; Dale v. liobiiison, 51 Vt. 20. But see Kwiiigy. Smith, 3 De.s. 417; Carter v. Kveleigb, 4 Des. 19; James v, Mays.int, 4 Des. 591. i Jones I'. Frost. L. 1!. 7 Ch. Ap. 773 ; Crofts t'. Miihlleton, 8 De G. M. k G. 192. See, further, Wright v. Wright, 1 Ves. Sen. 409; Wood w. Lanibirth, 1 Ph. 8 ; Dowell v. Dew, 1 Y. .& C. C. C. 345 ; Ben.sley v. Bunion, 2 Sim. & St. 519 ; l?ight 1-. Bucknell, 2 B. & Ad. 278; llobbs I'. Norton, 1 Veni. 136 ; Raw v. Pote, 2 Vern. 239 ; Stronge v. Hawkes, 4 De G. M. & G. 186; Legh v. Legh, 1 Bos. & P. 447 ; Roberts v. Lloyd, 2 Beav. 376 ; Fortcscue v. Barnett, 3 Myl. & K. 36 ; Stead v. Nelson, 2 Be.av. 245 ; Owens V. Dicken.son, Cr. & Ph. 48. !' ''i • I- 1 UK ■ : i 200 COMMENTARIES ON SALES. [book II. The law is W(;ll settled that when the wife is left without m;iin. teuanee or support by the husbantl ; has tnuletl as a fenii- «' Klica V. Klicmior, 1 rt'ters, 10.5. Tliis iliM'triiH' has Imtii liiii;^ f.stahlislii'il. It iiii]n'iirs liy the Yi'iir I'xiok, 1 lli'ii. 4, 1. a, that Sir 'I'lioiims Belknap was haii- islit'd to CascDiiy, llnTi- to ri'iiiaiii until li<^ obtaiiictl the kill's favor, and liis wil'c! wns iMTMiiltcil to sue in licr own name as a Jiiiie sii/e. ('(J. I.itt. 13;5, trado and f,'ain credit as a fniic avi, the duke was a for- eigner, who left Kngland in 171*3, with an intention of returning soon. The suit was brought against the duehes.s in 171*7, and the (-ourt held that the husband's ab- sence, thus continued, should be consid- ered as a desertion of the wife, and ns sullicient to enable her to contract oti her own account. But in Bogget v. Frier, 11 East, 303, the wife was not permitted to SUA in her own name, although her hus- band had gone to sea without making any provision for her support. But, in that case, the hiisbanil was born within lln' realm, was then a sulijcct, hail nut linri banished, and had not abjured the riaiiii. The Court held that, umlcr such ciivuin. stani'cs, his abseni'c might be idMsiili icil temporary, and, therclure, as not vaiyiii;' the rights of the husband or wife. Tlii' wife, too, of an alien enemy has Ihiu held liable to suits, as the? husliaiiil wjs not amenable to the process of the cmirt. Dcerley V. The Duilie.^s of .Ma/aiii]-, 1 Ld. llaym. 147; lSalii.llf>. In The (miii- tess of I'ortlanil v. Prodiicrs, 'J Verti. I04, where the husband of l.ady Sandys «a>, by act of parliament, banisheil for life, the court sustained the validity nf liir will, holding that, in sucii la.ses, the wiff might act in all things as a fnnr sn!,; an(l as if her husband was dead, and tliat the necessities of the case rcipiired tiiat sl.e should have such power. See, fur- ther, on these y i> 'ho. 4, c. 84, § 20, convicts might s\ie upon obtain- ing remission of their sentence; and tiiiir capacity to acrpiire property was ne- knowledged by 19 <^ieo. 4, c. 74. See, further, on this |)oint, iiifnt, on the cH't'ct of the Married Woman's I'roperty Acts. r.\uT III.] MARKIFD WOMEN. 207 woiiiaii for j^i'ocerics supplied diiriiij? her life, to a liousehold in wiiit'li the Imslmiid and wife and their children were livini; to- irrtluT, and lor wiiicli the huHhiind had j^jiven promissory notes, si^'iiiiij,' thcui as triistoe for his wife. The jj^rocer did not testily to any express contract with the wife, and ho admitted that slu^ Iiad never promised to jrive him secjirity on her real estate. The fiiitrd Slatt-s Supreme (,'ourt held that the ol)li,t(>red under \hr> act, the furniture remained in the oi'der and disposition of the bankrupt, and could not lie protected ajrainst the assignee.^ It was pointed out that, prior to the JJills of Sales Acts, if a trans- fer of t^oods were made, and the u'oods were retained bv the as- si: H'urle, 5 Vcs. f)40 ; Tyler v. Lake 2 IJuss. & Myl. 183; Neinieewicz v. Oalin. 3 I'lir. 614; 11 Wend. 312; .lohns v. \lr:nS.' ; iLu'tli'V !'. [(', '2 I'.iiss. Ji, » riiiS^"' lli'dvilon, ii. r,i Mo. B8. Modern statutes in England and in this country have very ma- terially altered the status of married women with respect to their sepiirate property. In England, by 20 and 21 Vic.,c. 85, s. 2'), it is provided that a married woman, while judicially separated from her iiusband, is to 1)0 considered nfetne sole with respect to property of every dosL'ri|ition which she may acquire, or which may come to or de- volve uiiou her ; and such property may be disposed of by her in all re.s|n'ets as nfeme sole, and on he? decease the same shall, in Ciiso filio shall die intestate, go as the same would have gone if lior luisliand had been then dead. IJy the 21st section, a wife (lesci'tod Iiy her lHisl)and may obtain an order for the protection of her property, under which she has the right to contnd her sub- sequently ac(piired property and earnings as a. feme solv ; and, by the 2tjtli section, when judicially separated from her husband she is to be considered as a feme sole for the ))urposes of contract, and wroDirs, and injuries, and suing and being sued in any civil i)ro- ocediniis. ]>y 21 and 22 Vic, sees. 0-10, further provisions arc made tor the j)rotection of her property where she has obtained !ui order for prof ction or a decree for judicial separation. By the Married Women's Property Act, 1870 (amended by the Married Women's Property Act, 187-1), such protection is extended to all married women. By section 1, it is provided that the wages and earnings of any married woman, acquired and gained by her after the passing of the act, in any em|doyment, occupation, or trade in which she is engaged, or which she carries on separately from her liiis'.KUid, and also any money or property so accpiired by her through the exercise of any literary, artistic, or scientilic skill, and all investments of such wages, earnings, money, or property, shall lie deonie(l and taken to be property held and s(>tfled to her sejiuiate use, independent of any husband to wh(»m she may ho married, and her receipts alone shall l)e a good discharge for such wages, earnings, money, and property. Sections ;>-7 make ]tro- visions ndative to her ]>roperty before or aC(iuirod aflcu" marriage, and section 11 gives her the right of action in her own name for the recovery, jirotection, and security of her separate pi'operty. The act also provides that she may effect insurance on her own or her liusl)and's life for her own itcnefit, and a married woman hav- ing separate property is made liable for the support of her chil- dren, the same as a widow, ai\d for the support of her indigent husband under The Poor Law Amendment Act, 1808. Tiiesc acts arc consolidated and amended by the Married VOL, I. 14 r * k , I ] M; i' •till I t i I 1 wi w 11' l, W ^ 1 V M ) 210 COMMENTARIES ON SALES. [book II. Women's Property Act, 1882,^ in, which the powers of a married woman are still further enlarged. By the first section she is de- clared capable of acquiring, holding, and disposing, by will or other- wise, of any real or personal property as her separate property, as if she were a feme sole. She may enter into and I'cnder herself liable in respect of and to the extent of her separate property, on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a, feme sole; and she is made liable to the bankruptcy laws if she carry on trade separately from her husband, in the same way as if she were a feme sole. By subsequent sections her separate property, real and personal, owned by her at her marriage, or acquired by her subsequently, vests in herself ; and the act gives her, in effect, generally, all the rights and powers of a feme sole, with respect to her property, real and personal, whether vested or con- tingent, and whether in possession, reversion, or remainder, he- longing to her at the time of her marriage, or which shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any em[)l()yment, trade, or occupation in which she is engaged. or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. Tlic act other- wise makes the fullest provision for the protection of her prop- erty, and her rights therein and growing thereout. in this country, in the State of Louisiana, in 1855,^ an act was passed enabling married women to contract debts and bind their property ; the first section providing that from and after the pas- sage of the act, all married women in the State over the a. 818. * There seems to be no ant of the kind in foree in the I'rovinee of Quebec. .See art. .5809, He v. St. of Quebec for 1888. In Ontario acts very siinihir to those en- acted in Kn^Iand are in force. See Rev. Sts. of Ontario for 1887, chaps. 132, 134, pp. 1250, 12(54. In Nova Scotia, by the " Married Woman's Property .Act, T^-^l," llev. Sts. of Nova Scotia, ."ith scries c. '.). I)p. 661-684, a married woman's ipnijii'tv is vested in her, and .she is ;i;iven as lull powers and i)rotection with rcfeniir.' f'l her property and contiacls as in any t;'** whicli lia.s come under our notice. » 5 Ch. Div. 923. PART III.] MARRIED WOMEN. 213 they must see her. She paid the wages, ordered and paid for fruit aud sugar, and made all the sales. It was claimed that, untlcr the Act of 1870, although the earnings after the marriage might belong to her, the elleet of the marriage was to vest the biisiuoss and property, as at connnon law, entirely in the hus- baud. The court (Malins, V. C.) hold that oven independent of the Aet of 1870, in equity she would be held to have been carry- ing on the trade on her own separate account, apart from and without the interference of her husband, and that there was onoudi in the case to show the ac(iuicscence of the husband in allowing her to carry on the business for her own benefit, and making the property her separate property ; ' the rule in equity being that if a husband permit a wife after marriage to carry on a business for her own separate use and benefit, that becomes her se])arate jiroperty, which, as between him and her, is binding, and makes the property her own separate estate, and that this was confirmed by the Married Women's Property Act, 1870. On appeal the Cliaiicery Division aflirmed the judgment, and held that, the act being passed with the knowledge and in view of the then existing state of the law as administered by courts of equity, the protection under the act was carried not only to the " wages and caiuings," but to those things which were necessary to make the wages and earnings which were to be protected. ^ ' Sliiniiiiif; V. Style, 3 P. Wms. 334 ; WiiltiT )'. Ilodf,'!', 2 Sw. 92; Mews v. iliws, ITi Biuv. 529 : MiK'Xeillie v. Acton, 4 Dm;. M. .to. 744, 7.");'). - Miiliiis, V. C, ill his judjiniont ]iiit till' iiKiltcr vciy I'lcaily and conclusively : " Wliiit Wiis the object of the iict ! It was foiiiiil tli.it there WHS a great iiunilier of CiiM's (il r;iiiuli:ir occiineiicu where a woman is cnnyiiii,' on a trade. A familiar in- stuii'e isthat If they do, then, how- ever much she may desire to sing, anil however much the iiulilic may desire her to sing, if the husliaiid chooses he may have every jewel and dress sold. The act must have u raliuuul interpretation. ^^Hip i . ! m i !" i I In 214 COMMENTAIilES ON SALES. [book II. A very similar doctrine was established by the United States District Court, in In re Kinkead,^ on both points, to that which was held in Ashworth v. Outram.'^ The court held in this case, as in that, that a married woman, in equity, may hold her sepa- rate property ; can control and dispose of it ; incur liabilities on the credit of it ; and that it can be subjected to the payment of debts contracted in or about the management, improvement, or purchase of such property, independent of the statute.-^ And, under the Illinois Married Women's Act of 1861, the wife bceaine absolute mistress of her own earnings, and could bring snit in lier name to collect them. Slie might superintend her separate property, make binding contracts in relation thereto, and devote her time to such occupation as was most congenial to her tastes, and control her earnings,'* It has also been held, under the English Act of 1870, that see- Therefore when it says slio is to liave the fruits of her oecupatioii or tniile, or the re- sult of her artistic skill, it seems to iiu' that if she has the consent of her Inishand that she shall do these thinj^'s she must also have the means of doiiit; so. if, therefore, he consents to her continuing to act as a painter, she must have her easel and canvas and various tliinf,'s she uses ; if she be a sculptor, she must have marbles and chisels and those things ; if she be an actress or singer, she must have the dresses and jewels and those things, with- out which she cannot appear in public ; and if sho be, as in the present case, a preserve-maker, my opinion is she must nave the pots and pans and stock of sugar and of fruit, and all the appliances which shall enable her to make money by that occupation. Consenting that she shall do the thing means that she shall have the means wliereby it is to be done ; and to hold that all the stock-in-trade and every debt owing to her, and everything she has in the world except tlie skill, is to belong to the husband, and that she shall have the skill and power of carrying it on without any means of doing it, would in my opin- ion be an utter al)surdity, and a narrow construction of the act of ])arliament. Therefore my construction is that when a man consents to his wife carrying on the particular operation, and thereby gaining money, that is a consent to her having those things whereby those moneys are made. In this case, without the stock-in- trade, without the debts owing to her, and a little capital, she could not have caiTied on that occupation. I am of opinion he consented to that, and consenting to that moans that he consented to her having the business and everything belonging to the business. That is the conclusion, therefore, on the act of juirliaiiieiit, to which I arrive." Ashworth r. Outnui], 5 Ch. Div. ^3:5 ct scq. See Level! v. N,.w. ton, 4 C. r. Div. 7, following Ashworth v, Outrani. 1 3 Hiss. 40.5. 2 5 Ch. Div. 923. 3 Carpenter v. Mitchell, 50 III. 470; Jones V. Crosthwait, 17 Iowa, VSi ; Vale V. Dederer, 18 N. Y. 265, 22 N. Y. 4,^0; Howe V. Wildes, 34 Me. 566; GuinMitcr V. Mitchell, 54 111. 127; Miller v. iliown, 47 Mo. 504; Kimm v. Wcippeit, lii M^, 532; Darby v. Callaghan, 16 N. V. lil ; Knapp V. Smith, 27 N. Y. 277; Ivetelmm V. Walsworth, 5 Wis, 95. * The court concluded further: "She may, therefore, it seems to me, eiig;ij,'(' in trade either with or without her lMl^ll;lIK^s consent, — certaiidy with his consent,— using her own property in the enteipiisp, and may bind herself by all eontniels slu' makes in her business. Slu> may own the whole of a stock of merchandise, or the machinery ami furnishings of a nianutk- tory, and liave the entile prolits iiml he liable for the losses." It was al^o held further that she could enter intu ii co- partnership with another, even thnuj.'h that other was her husband, ami as sivh partner be liable to be adjudged a liaiik- rupt. In re Kinkead, 3 Biss. ■U^:<. 410. Under the English Act of 1882, seriieii 1, sub-section 5, a married woman eaii'liig on a separate business is expressly uiiiii' liable, with respect to her sepiirate |imp- erty, to the bankrui)tey laws; but, uml'r the Act of 1870, it was held that a mar- ried woman — at least one who liiil n" sejiarate property — could not be adjudi- cated a bankrupt. Ex parte HoUaml, 5 Oil. Ap. 307. PART III.] M&BRIED WOMEN. 215 tioii 11 enables a married woman to maintain an action in her own name to recover damages for dishonoring cheques drr.wn by her in the course of a trade which she carries on separately from her husband, or for not duly presenting or not giving due notice of dishonor of a bill of exchange acquired by her in such trade, and intrusted to bankers by her for presentment ; it being a rem- edy '• for tlie protection and security " of her separate pro[)erty.^ Under the English, act of 1882, it has been held that the con- tract wliicli is to bind separate property of a married woman must be ontored into at a time when the married woman has existing separate ])roperty. If she has such property, her contract will bind it. If «he afterwards commits a breach of the contract, and proceedings are taken against her for the breach of contract, any separate i)roperty which she has acquired since the date of the contract, and which she has at the time when judgment is recov- ered against her, will be liable for the breach of the contract. But tlie act does not enable her, by means of a contract entered into at a time when she has no existing separate property, to bind any possible contingent separate property .^ And it is also held that the act is not retrospective ; and, therefore, in an action on a contract made by a married woman before the passing of the act, judaincnt cannot be ordered in such terms as to be available against separate property to which the defendant became entitled after tlic date of the contract.^ Tlic court, in Huntington v. Saunders,* adhered to the princi- ples laid down in Phipps v. Sedgwick," relative to the obligations and liabilities of a married woman with respect to property re- ceived i»y her from her husband, that while State statutes have i*ec- ognizcd certain rights of the wife to deal with and contract in reference to her separate property, they fall far short of estab- lishing the jirinciple that out of that separate projjcrty she can be 1 Siiiniiicrs r. Pity Bank, L. R. 9 C. P. 580. As to tlic lights of ii married woman whuliiisdlitaiiii'il a " protection" order iin- (liT tlic 21 St section of the Act, see Hamsden V. Hiviulcy, ID Q. n. 147; Nicholson v. Dniiy Biiililiims {'".state Co., 7 Ch. Div. 48; //( re Coward & Adam's I'urcliase, L R. -JO F,i|. 17!». As to further ([ues- tioiis aiisiin; uiiiler this Act, see Mattlicws V. Wliitil,., i:{ cli. Div. 811; Thompson v. IViitictt, i; Cli. Div. 73!>; Holt 17, Everall, 2 Cli. Div. 2iiti: Hancocks v. Lablache, 3C. r. Div. 1117; Dc Oreuchy v. Will.s, 4 C. r. Div. ;5(!J ; The Queen o. Carnatic Uailwiiy Co., I,. |{. 8 Q. B. 299; iJcU v. Stocikcr, 10 (). B. Div. 129 ; King i;. Voss, 13 Cli. Div. 504. ^ /" re Sliiikspcar, .'?0 CIi. Div. 169. 8 Tunihull V. Forman, 15 Q. B. Div. 234. See also Weldon v. Winslow, 13 Q. 15. Div. 784 ; Conolan v. I.evland, 27 Ch. Div. 632 ; Bmsill v. Tanner," 13 Q. B. Div. 6! 1. Sec as to the law before this act came into force, Tike (•. Fitz^'ilihon, 17 Ch. Div. 454; Kinij v. Lucas, 23 Ch. Div. 712. Under 45 & 46 Vic. c. 75, § 3, when a married wonii.n seeks to prove, under her husband's bankruptcy, for money lent by her to him, she must show that the money was not lent for the purposes of his trade or business. If she fails to do .so, she cannot prove or vote until all the other creditors have been paid in full. In re Gencse, 16 Q. B. Div, 700. See Ej- parte Taylor, 12 Ch, Div. 366, under an analogous Act. < 120 IJ. S. 78. » 95 U. S. 3; stated ante, p. 151 n. ]1 I'M • ill. W\ » y > 5?'i ■ i 21G COMMENTARIES ON SALES. [book II. made liable for money or property received at her husband's hands which, in equity, ought to have gone to pay his debts. Equity has been ready, where such property remains in her hands, to rwstorc it to its proper use, but not to hold iier separate estate for what she lias received and i)robably spent at liis dictation. Such a proposition would be a very unjust one to the wife still under the dominion, control, and personal influence of the husband. In receiving favors at his hands, which she supjiosed to be the ofTer- ings of affection, or a proper j)rovision for her comfort, she would be subjecting that which was her own, or which might afterwards come to her from other sources, to unknown and unsuspected charges, of the amount and nature of which she would be whollv ignorant. It answers the demands of justice in such cases if tlic creditor, finding the property in her hands, or in the hands of one holding it with notice, appropriates it to pay his debt. IJiit if it is beyond his reach,' the wife should no more be held lial)le for it than if the husband himself had spent it in support of his family, or even of his own extravagance. Purchases of either real or personal property, made by the wife of an insolvent debtor during coverture, are justly regai'ded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife ; such purchases arc so often made a cover for a debtor's property ; are so frequently resorted to for the purpose of withdrawing his property from the reach of his creditors and preserving it for his own use, and they hold forth such temptation'^ for fraud, that they require close scrutiny. In a contest between t re creditors of the husband and the wife, there is a presumption against her which she must overcome by athrmativc proof. Such has always been the rule of the conunon law ; and the rule continues, though statutes have modified the doctrine that gave to tlic husband absolutely the personal property of the wife in possession, and the right to reduce into possession and ownership all her choses in action} In Mississippi, by their code of 1871,^ married women may rent their lands or make any contract for the use of the same, and may loan their money and take securities for its payment, and cni|iloy 1 I-citz V. mu-XwW, 94 U. S. 580 ; Gamber v. Giiiubcr, 18 Pa. St. 306; Keeny V. (Jood, 21 lit. 349; Walker v. Kearney, 36 lb. 410; Parviii v. Caiiewell, 9 Wrifjht, 89 ; liradlbid's Apiieal, 5 Casev, 513 ; Aurand v. ShatTer, 7 Wri-jlit, 363. So property purchased by a married woman on credit, or with lier earnint^s, has been held to lie subject to the h^vy of an execu- tion against her husband. Robinson v. Wallace, 3 Wright, 129; Switzor r. Vnl.ii- tine, 4 Duer, 96 ; Glann i;. Youii!,'lovr il Harb. 480 ; Woodbeuk v. Havens, 4J /'-. 66 ; Rider i'. Hulse, 24 N. Y. 37J : Con- nors V. Connors, 4 Wis. 131 ; Kllintt i: Hentley, 17 lb. 610; Edson v. Haydcii. iO //;. 682; Duncan v. Rosellc, 15 lowu. ,^(il; Cramer v. Uedlord, 17 N. J. Eij. 307. , 2 Section 1780. JOOK II. 8 hands uitv has restore or what Such a id('r the Lud. In lie offer- iO would ter wards uspoctod c wholly cs it' the :1a of one But if it )lc for it s family, c by the rcirarded side ration naunity of so often resorted reach nf lioy hold scrutiny, the wife, come by common iiied the property ossessiou linay rent 1 and may euii)loy lur r. \aW- liin!j;lovc, ^7 I.M1S, 4-: /'■. \-i7i: Cun- KUintt r. iHayacii. '20 lou-.i, 'lOl; ',t^. 307. PART III-] MARRIED WOMEN. 217 it ill trade or business, and the express enactment is that all con- tracts made by the husband and wife, or by either o them, to ob- tain supplies for the jdantation of the wife, may bo enforced and satisfaction secured out of her separate estate. Provision is also uiade that when a married woman engages in trade or business as a feme a^h', she shall be bound by her contracts made in the couise of such trade or business in the same manner as if she was nniuarried.i Wo examine more particularly some of the late decisions in this country under the Married Women's Acts. 1. Her Status. As those acts have to a greater or less extent affected the status of husband and wife in connection with the rights to property and the power to contract, we examine, first, some of the cases on these questions. The Supremo Court of the United States, in an ajipcal from the Supreme Court of the District of Columbia, the judg- ment in wliicli was reversed, in a case where a wife had a separate estate of which the husband was trustee, and the plaintiff claimed for groceries supplied to the household in which the husband and wife and their children were living together, and upon promissory notes given by the husband, describing himself as trustee for the wife, in j)aynient for the groceries so supplied, — ■ held that, as the oldijiatiou to pay for the su|)plies of the family is, ordinarily, a deijt of the husband, where the wife had never promised to pay for the goods or authorized her husband to promise that she would pay for them, nor gave her husband authority to give the promis- sory notes on her behalf, the contract bound her husband person- ally anil not her estate.^ So, in McCoy v. Ilyatt,'^ it is laid down that under the common law the acquisitions of the wife accrued to the benefit of the husband, and became liable for his debts. As her legal existence by fiction of law was swallowed up in that of her husliand, her possession was his. In the progress of law and justice, the courts of e(iiiity inter- fered, under certain circumstances, as against the husband and his privies, for the protection of the wife, securing to her the enjoy- ment of i)ropcrty as a feme sole. It was long held that a tnistce for her was essential as the depositary of the legal title. Courts ^ See, as to a married woman's con- tracts ill Mississip)ii, Bank of America v. Bank, Inl I'. 8. '240; Clopton v. Matheiiy, 4S Miss. '2M\ 29."); t'ook v. Ligon, 54 lb. 368, 37:i; Herman i>. Perkins, 52 /?;. 813; ftnilihs v. Collins, 54 Ih. 485, 489; liob- iiLsoii V. Stadukcr, 59 lb. 3. 2 Dodge V. Knowlcs, 114 U. S. 430. This is a principle in etpiity as to the wife's separate estate, indepeudeut of statnte. 3 80 Mo. 130, 134. 5 !i 'f ■ i >l f >'■ i;] 218 COMMENTARIES ON S.VLES. [book II. ;(•: . 3li!liJ of equity, however, soon held that rather than injustice should b done, they would constitute the husband, where he held the pos- session, a trustee for the wife.* And like every other principle of juris[)rudcnce, though not changeable, yet possessing so uiucli flexibility as to adapt itself to the growing necessities and varying circumstances of civilization, and of social and domestic lii'o, it has so extended that courts of law, as well as of equity, recoiriiizo and adjudicate upon personalty as the absolute property of the wife under certain conditions. Both as to the real and personal property, no particular or set phraseology is essential, in the instrument vesting the property, to create a separate estate in a married woman. It is only n(>ces- sary to this end to emi)loy such terms of expression as indicate clearly and unequivocally the intent to vest in her the title and estate indei)endcnt of the husband. And in respect to personal property, the title to which may pass without deed or other instru- ment of writing, as by word and delivery, the separate title thereto of a feme covert can bo established by acts, conduct, and words, as any other fact, in pais."^ And, as was stated in Ilolthaus v, lloin- bostle,* where the proof is clear and convincing that the j)roperty is so placed in her, the fact of the husband's indebtedness cannot affect her proprietorship and right; the object often, in giving or transferring property to the wife of an insolvent husband, beinj; to save her from his improvidence and worthlessncss. The existence of this separate property interest in her may be drawn and established from the fact of her long and uninter- rupted control over it with the acquiescence of her husband in her dominion over and management of it.^ In Richardson v. Merrill,* and in Caldwell v, Renfrew,'' it is held that courts of law, as well as of equity, will protect property coming to the wife by gift or purchase, and though no apt words in the donation or purchase may be used to create, in the linst instance, a separate estate, yet where her husband has by his ac- quiescence conceded her right of dominion over it, troatinji- it as her property, it may nevertheless be regarded and ju-otected as her separate estate ; and this too against creditors of the hus- band, where the property has not been so mingled with the hus- band's, or so used by him, as to create a credit in his favor on the faith of his assumed ownership. Redfield, C. J., in Richardson V. Merrill,'^ says : " All who are familiar with the subject are aware that creditors and purchasers are always bound to respect 1 Holtliaus V. Ilonibostle, 60 Mo. 442. < 32 Vt. 27. 2 Ihid. p. 443. 6 33 Vt. 213, 3 Welch V. Welch, 63 Mo. 67; Cough- « 32 Vt. 35. lin V. Ryan, 43 Mo. 99. r.v IIT III.] MARRIED WOMEN. 219 counter-equities in third parties which come to their knowledge before tliey have actually made advances, or otherwise changed their position, in faith of the absolute property being in the per- son ostensibly holding it." So, in Welch v. Welch,^ where it was conceded that the wife never liad any separate estate conveyed to her l^y any separate ostate trust-deed, the court said, touching this, that if the gift fiuni a husband to his wife will be upheld, it is not i)erceived why the same result will not follow when the gift emanates from a tliird person, when the husband assents to it, and treats the properly as belonging exclusively to the wife. Having regard to these principles, it was held, in McCoy v. Hyatt- (reversing the judgment of the court below), with refer- ence to a mowing-machine taken in execution against a husband, wliich liis wife alleged to be her property, that the Act of Missouri knt)\vn as the Married "Women's Act, passed March 25, 1875,^^ in no wise interfered with the right of a married woman to acquire, or witli tlie manner of her acquiring, a separate estate in personalty Ijy trit't or purchase, as it existed prior to its adoption ; the act being designed to enlarge its operation, to simplify the proof of its existence, and to afford protection, especially against the effect of the luisband's reducing the property to possession, by provid- ing that no such reduction should bo effectual which was not evidenced by writing signed by her. And, accordingly, it was further held, that if, as a matter of fact, the wife received the mowing-inacliine by gift or purchase, or both, from an outside person, and she, or some one for her, held the possession thereof, claiming it as hers, exclusively, for several years prior to its hav- ing been taken in execution, these would be facts from wliich a court or jury might conclude that she owned the property, and, if fiee from fraud on her part, she could hold it against her hus- band's creditors.* It was held, in accordance with this, in the same State, that where a married woman brought into Missouri from a foreign country money that belonged to her, which by agreement between herself and husband, both before and after she came to Missouri, was to be invested as her individual property, free from the con- trol of her husband, then such fund, and any property in which it was invested, continued to be her separate property, so long as it was so held, managed, and used by her, and during such time was not subject to seizure or sale under execution as the property • ('.3 Mo. 59. - 81) Mo. 130. a 1-iiws 1875, p. 61 ; R. S. 1879, § 3296. * And see Uammons v, Keufrow, 84 Mo. 332; The State v. The Cliathain Nat. Bank, 80 Mo. 626 ; Kidwell v. Kiikpat- riuk, 70 Mo. 214; Baiigert v. Baugert, 13 Mo. App. 144, 153. !'■ tft 1 '' i 1 ' '■ ' ^i 'i 'n4 if-[ I f ;■ I I: '8 I -if 220 COMMENTARIES ON SALES. [book II. HH i^'l! (:r. i ' ||J3 of the husband, or for the payment of his debts.* And in Tiic State V. The Chatham Nat. Hank,^ it was held, that chattels su brought as her separate pruperty she would eontinuc to possess as such, after she came to this country, irrespective of the consent ot her husband, and b(( protected against the acts and doings (jf her husband, which iuight be in derogation of her rights and estate so ac(}uired to her separate use. IJut if sucii chattels had not liecu impressed with a trust of her separate use, exclusive of her iuis- band, then whether they become so impressed after her arrival in this country would depend upon the consent of her husband. And this independent of the Married Women's Acts. In the same State, luuler their Act vi 187;'), it was held that in a contest be- tween a wife and her husband's creditors, mere evidence that slie purchased the property during coverture is not sulHcient to give her a title. It must satisfactorily appear that the |)roperty was paid for with lier own separate funds, and, in the absence of such evidence, the presnm|)tion is a violent one that the husband fur- nished the means of ])ayment. While the statute enlarges the rights and throws additional safeguards around the rights of mar- ried women in respect of certain personal property, the same proof as before the statute is essential to establish the fact of the pur- chase having been made with her separate means.'' The presumption of law is that ))roperty acquired • a marrieil woman during coverture was paid for with the mean.s of her hus- band.* The burden of proof, therefore, rests on a married woman to show by evidence to the satisfaction of the jury, that she is in fact the sole and separate owner of property for which she lirini's an action.'' And wliile the general rule as to the presiun|ition from possession is, that the possession of personal projjeity is prima facie evidence of its ownership, this rule has no just, ap- plication where the question of ownership arises between hiishaiul and wife, because the possession of their personal property is ne- cessarily in a large measure a joint possession. The general rule is held to be that whether the possession be physically in tlic hus- band or the wife, the title is presumptively in the husband.'' In Burns v. Bangert,*' it was held, that the Missouri Act of 187.3" has not changed this rule ; that if a wife were carrying on l)iisi- ness in her own name as a feme sole trader, her name on n siirn above her place of business, her money deposited in bank in lior I TIic Stato V. Smit, 20 Mo, App. 50. a 80 Mo. 62(5. * Mcl'Yiiaii V, Kinney, 22 Mo. App. 554. ♦ Sloan V. Torrey, 78 Mo. 625. See Leitz V. Mitchell, 94 U. S. 580, supra ; "Weil V. Simmons, 66 Mo. 620, Gamber v. OaniLer, 18 Pa. St. 306 ; Keenv r. r.ond, 21 Ta. St. 349; Walker v. l!eaiii>'V, M Pa. St. 410. ^ Heinelreich t;. Carlos, 24 .Mo. Af]'. 264. » Burns v. Rangert, 16 Mo. App. 22. "> Key. Stats. § S296. I'ART HI.] MARIUED WOMKN. 221 (iv,n name, and in her own name checked out by lior, — such cir- cuinstaucos would rebut the j)rt'8umption. Jlut the mere fact that liiisl)aiiil and wife are living together on a farm and accumulating moiioy liy tlie joint earnings of themselves, of the minor children of tiie wife, and of hired men, and that the moneys so accumu- hkd arc kept at home by the wife, are not sutlicient tc rebut this |iresiiiu|ttion.' And in Texas, where a wife claimed personal property as her own separate projjerty, in distinction from its being community piDperty, which was taken in execution against her husltand, the court lield tiiat, the jjresumption being that all property ac(iuired by citiii'r the liusband or tlio wife during marriage, by onerous title, is cniuuumity estate, the burden of j)roving that any portion (if it thus ac(piired is the separate estate of the wife rests upon tlio party asserting that fact.'-^ Wli( re the property has been paid for in money, it must be made reasonably clear that tliis money was derived by the wife in such manner as to constitute it her own separate funds. The wife may become a merchant ; but she must conduct the l)usincss with goods which arc her separate pro[)erty, and must not invest tile comnumity estate, or the credit of her husband, in the pur- ciiase of the goods, if she wishes them to be exempt from her iiusbaiul's debts. For this reason she cannot purcliase on credit, Imt must confine he 'self to buying for cash only, and be ready to sliow that the money so used is her separate means. If the profits made upon sales of the goods are mingled with her sepa- rate lujuey in the purchase, — such ])rofits becoming the connnu- nity estate of herself and husband, — she must be prepared to show how nuich of her own money entered into the purchase. The liurdon of proving this is on her, and not upon the creditor who seizes the goods for her husband's debts. So where, in Texas, a married woman in carrying on business mingled all her j)ur- cliases together ; buying goods from time to time, presumably with tlio i)roceeds of such as were sold, as there was no pi-oof to the contrary, and as she in all rcs))Octs carried on business as any other merchant who buys for cash and credit, and invests the l>roceeds of the sale of his goods in the replenishment of his stoclc; as it is establis'icd law in Texas, under their statute, (bat tlie profits of the wife's separate estate are community property, ' As to rasps lipfore the passage of tlie Cox v. Miller, .54 Tex. 26 ; Ezell f. Dod- Aet, sec WiHiilford v. Stephens, 51 Mo. son, 60 Tex. 332; Braden v. Gose, 57 Tex. ^♦3, 417; Kidwell v. Kirkpntrick, 70 Mo. 41; Wallace y. Fiiiberf,', 46 Tex. 35; Oieeu 214, ovcniiliiiff a dictum to the contrary v. Ferguson, 62 Tex. 52i); Gilliard v. Chess- iiiTennison v. Tennison, 46 Mo. 77. ney, 13 Tex. 337. ^ Epperson v. Jones, 65 Tex. 425. See ' ■ I . * \l I; tli' HI M iii 'i£ •9 II: II i fi^Hi '''Ml fell ii:^ ■ 222 COMMENTARIES ON SALES. [book II. if the profits made upon the sales of the goods are mingled with the wife's separate money in the purchase, it was held that she must be prepared to show how much of her separate means she used in buying the goods; the burden of proving this bciiijron' her, and not upon the creditor seizing the goods for the husl)aiid's debts.i But in Wisconsin, under their statute,''' it has been hold, that even where the wife claims title to property seized on cxocutiou against her husband by virtue of a conveyance from him to her. as it is the established law in that State, that a married woman having a separate estate may deal with her husband respecting the same ; loan him money ; take a transfer of property from him in payment thereof, and buy property of him, provided tlic transaction was fair and honest and not in fraud of creditors ;5 the burden of proof is upon her only to show that she purchased the property for a valuable and ade(|uatc consideration puid out of her separate estate, or by some other person for her. That being shown, the burden of proving such conveyance to have been made in fraud of her husband's creditors is upon the party attack- ing the conveyance.* In Massachusetts and some other States, contracts bctwceji husband and wife are prohibited.^ In Pennsylvania, their Act of 1848 provides that property of whatever nature or kind which shall accrue to a mari-ied woman during coverture, shall be owned and enjoyed by her as her own separate property, and shall not be subject to levy and execution for the debts and liabilities of her husbarid. It has been lield that it was her property only that the legislature intended to protect under this act ; her earnings, her efforts, and her credit beitii: her husband's, since the Act of 1848, as before. What she may be said to acquire, as the result of her skill and industry, or on her merely personal credit, accrues to the husband, and as to credit- ors is to be taken as his.^ A married woman there must liave a ' Epperson v. Jones, 65 Tax. 425; s. c. nom. Joufti i\ Kppi-ison, tjy Ti'x. 586. See Cleveland v. Cole, (55 Ti'X. i02; Mraden v. Gose, 57 Tux. 41; Green v. Kergnscn, 62 Tex. 5-29. 2 Laws of 1872, ch. 155: R. S, §§ 2343, 2345. 8 Beanl v. Dedolph, 29 Wis. 136 ; Hoxie V. Price, 31 Wis. 82; Breslaner v, Geilfuss, 65 Wis. 387 ; before the stntnte of 1872, the powers possessed by married women being greatlj' enlarged by that en- actment. Krouskop V. Shoutz, 51 Wis. 215, 216; Houghton v. Milbnrn, 54 M'is. 654 ; Carney v. Gleissner, 62 Wis. 497. * Evans i-. Rupee, 57 Wis. 623; liri/k- ley V. Walker, 68 Wis. 56:?. 5 See Mass. I'uh. Stilt. 1S82, ■li. U:, §§ 2. 3, 7, and 11; and see F.onl i-. I'arki-r, 3 .Mien, 127; Edwards v. Stevens, n Allen, 315; Smith I'. Gorman, 41 Me. i<-:>. -M.- Keen v. Frost, 46 Me. 239 ; Dw/.ly f. Dwellv, 46 Me. 377. « Haybold V. Kaybold, 8 Harris, 311. Goods i)urchased by a marricil woiiiiin nn her own credit are not her separate prop erty. Robin.son v. Wallace, 3 Wiii^lit, 133. Her credit is nothing in the eves of the law. When she does eontraet, tlio In* esteems lier the agent of her husband. PART III.] MARRIED WOMEN. 223 separate estate to protect her purchase upon credit, — an estate available, and proi)ortionate to the credit it supports. The pur- chase must in fact be made, not upon her credit, but upon the credit of her scpai ite estate ; upon her ability to pay out of her own funds. ^ But the later Pennsylvania Act of 1872 provides that the sopa- rnto earnings of any married woman, howsoever realised, Rhall u..cruc to and inure to her separate benefit and use, md be under her exclusive control, as if she were a fetne sole, and not be liable to any claim of the husband or his creditors ; and that " in any suit at law, or in equity, in which the ownership of such property shall be in dispute, the person claiming such property under this act sliall be compelled, in the first instance, to sho»v title and owner- ship in the same." It was held, that, under this act, it was not the intention of the legislature to dispense with V/.e presumption which ordinarily and of necessity arises in favor of creditors, in transactions between husband and wife, affecting the ownership of property in the wife's name. Hence, where a business belong- ing to tlie husband was transferred to his wife, the business there- after being carried on by the husband, but as " agent " for his wife, it was held that property purchased with the earnings of tlic business was the property of the husband, and was liable to be taken under an execution against him ; the earnings of the busi- ness being those of the husband and not of the wife, the business having l)een really his.''' And in lilum v. Moss,^ where a husband purported to carry on business as " the agent " of his wife, buy- ing goods as her agent, giving notes therefor signed by her, and paying the notes out of the proceeds of the business, it was held that, as the whole business was conducted by the husband without the slightest reference to his wife's personal estate — her name heing, from the evidence so ooviously used as a cloak to cover the property from the claims of the husband's creditors, — that it could not Ijo overlooked or ignored that the property was his and not hers; the oourt holding that if there was any one thing settled in relation to the subject, it is, that whilst a married woman may buy goods on credit, it must be on the credit of her (^eiiaratc estate, and, as against the creditors of her husband, she must ailirniativoly establish that fact. IJut whovc a feme covert owns property of value sufficient to serve as the foundation of a ci'Lilit, direct proof that the credit was based upon it may not i)c necessary, as the jury may infer that fact from the circumstances Hourr], I., jntios, 8 Casey, 432 ; Hallowell t'. Hiiter, 11 Ciisov, 375. ' Gault V. SiilHn, 8 Wright, 307. 2 Loinbach v. Tonipliii, 105 Pa. 522. 8 116 I'u. 163. ■ 1 1 1 lilij) h m 224 COMMENTARIES ON SALES. [book II. surrounding the transaction, where they are of that nature that such an inference can be drawn from them.^ But, as against the creditors of her husband, slic must affirmatively establish the fact that goods bought by her on credit were bought on the credit of her separate estate.^ In Louisiana, the presumption of the law is that property pur- chased during the marriage belongs to the community and is lia- ble to its debts, because purchased during the marriage, wliothor the purchase was made in the name of both or cither of the spouses. But when the purchase is made in the name of the wife, she has the faculty of rebutting this presumption by proof that she purchased the property, as her separate property, by the investment of her paraphernal funds, which were administered by her separately and apart from her husband ; so, where tlic pur- chase was made in the name of the wife, under her autliuritv, the price being actually paid by her with her i»araphcriial fuiuls, and the property thereafter having been regarded and treated as lier own, it was held that she had successfully rebutted tlio jire- sumption of law that the property purchased during the marriage was community property.^ In California, property acquired by either spouse after marriage is community property. But in Harris v. Ilarris,* a womnu be- fore marriage filed a declaratory statement in the proper United States land office, of her settlement u[)on and intention to pre- empt land on which she was then living. After marriage she, with her husband, jointly occupied the land, which they cultivated and improved. She borrowed money upon her own faith and credit ; paid the government for the land, and the patent was issued to her in her own name, with her husband's kno\vl(>dge and consent. The court held that, as between her husband and herself, the land was the separate property of the wife, and was not community property. r II 2. Reduction into F^^-session. Resulting from the relation existing betv;een husband and wife. many cases under these acts have arisen as to tlie effect ou the wife's property of such relation, and as to the acts of the husbniid which amount to a reduction into possession of the wife's ptr- sonal property. Wo examine some of the cases bearing on those questions. 1 Blum V. Ross, 116 Pa. 163; Bonnrd V. Kittc'ririK, 101 Pa. 181; Hess «;. Brown, 111 Pa. 124. 8 Seeds V. Knhler, 76 Pa. 262; Blum v. Ross, 110 Pii. 163, 168. » Stttutr.'i' ?•. Morgan, 39 La, An. 632. « 7lCal. 311. PART III.] MARBIFD WOMEN. 225 In Woodford v. Stevens,* it was held that the husband, by mar- '•iaiie, ac(iiiires an absolute rip' 'y. And to the same effect, it was held in King v. Yoos,* that if a husband cliooscs to give his services to his wife, in the management of her separate property or business, the fruit of such labor is not his but another's, and on principle, the creditor cannot seize and appropriate it to the payment of his debt. So that if a hus- 1 rSooth V. Smith, 117 111. 370. 2 Hv.lc V. Fn>v (Inil.), 28 Fod. Rop. SIO, SJ.l S.'c Bimlfre v. IJolin (Iiul.), N. K. Ucp. 140; Cooper r. Hiiiu, 49 Iii.l. 3y3; Sciit 1'. Hudson, 8() Iiid. '288; Mc- I."!iii i: Hoss (Ind.), 7 N. E. R.'p. 5«7; Hwt V. Sorrc'll, 11 Ala. 386; Coriiiiif,' v. Fowlur, 24 Iowa, 584; Hamilton r. Light- nor (Iowa), .''. N. \V. Rep. 680; Whito r. llildivth, 32 Vt. 265; WohstiT v. Hil- drith, ;{3 Vt. 4,^7; Vooihccs i". Boncstell, 16 Wall. 16; Aldridfje v. Muiihead, 101 U. S. 3i)7. » 44 N. Y. 343. * 14 Greg. 91, 97. i?i ■ I m 1 >l-^l^; M 1 II ' It ifi ■ ■ t i Mi; -k-r^:^ :'• .f Ij T ■ \ » 228 COMMENTARIES ON SALES. [book II. band chooses to give his wife his services in the conduct of her separate business, the creditor, having no power over his volition, or to compel him to work for his benefit, is not defrauded. Xur is the fact of such service being rendered any ground for subjoctin? her interest in sucli business, or .he profits arising out of it, to tlio payment of her husband's del)ts.^ Where an action was brouglit against a husband and wife on a l)romissory note and a check, the signatures on which were both hy tlic hu.sband, he cUiiniing that he so signed them only as am;iit for his wife ; the court held that if he did so sign them, then they were not jointly lial)le, and if he did not so sign them, I)ut siL,ni(?iI for both as i)rincipals, they would, even then, not be jointly lialile without evidence of the agency in the husband to sign his wife's namo.2 Speculations in stocks and securities upon margins being hold, in Now Jersey, as wagers within the act to prevent gambling', un- lawful ; ^ it was held that a promissory note and assignnu'iits of bonds and mortgages, given to a broker by a married woiuuii. un- der her husband's inducements, for the purpose of being used in such irambling transactions, would, on a bill filed '/ the wife, be ordered to be given up by the broker (who had taken tlicm witli knt^wledgc of the facts) to be cancelled, as being void for illegal- ity of consideration.* In Xorris v. McCarnia,^it was held that while a married woman, whose money was being used by her husband in business, iniilit be estopped from claiming she was a partner in the business witli her husband, when she had allowed her husband to use tlic ])ro])- erty as his own, and when her assertion of a claim upon it as a partner would disappoint her husband's creditors, who had be- come such while the appearances held out were that the property was that of her husban(l ; yet if she was estopped from olainiin': tiiat she was a partner, and so entitled to an interest in the busi- ness, she was not estopped from asserting that her husbaml was a debtor to her, if such was the fact, for her actual advances to him as a loan. 1 See Cooper v. Ham, 49 Ind. 393 ; Millur V. \W\i, 18 W. Va. 81; ISucklcv i'. W.'lls, 33 N. V. ,518; HosstVldt v. Dill, 28 Minn. -lUy ; Davton v. Walsh, 47 Wis. 117; Cuhbeiley v. Scott, 98 111. 38; Ben- nett V. Stout, 98 111. 47; Lewis v. Joliiis, 24 CaJ. 98; Parker v. Bates, 29 Ivans. 598; Coon V. liigileii, 4 Col. 275; Jlnrtinez v. Ward, 19 Fla. 175; Wells v. Smith, 54 (ia. 2t)2; Kankin V. West, 25 Mich. 200; Ploss I!. Thomas, 6 Mo. Am. l;')" I'. Williams (N. J.), 3 Atl. l!op, 2 Wildernian i\ liogcrs, ii(i And see Lowekamp v. Korc Md. 95. ^ Sec Flagg v. Baldwin, 11 219 * Tantiim v. Arnold, 42 X. •) 6 (Mich.) 29 Fed. Hup. 757. ; Kiitclior 2,J7. M.i. -.i:. lllilltr, ':i Slew. E'l. PART III.] MARRIED WOMEN. 3. Her Separate Property. 229 The enactment of statutes recognizing the separate existence of a married woman, by securing her separate property to her exclu- sive use, as against the husband and his creditors, and by confer- ring upon her to a greater or less extent the power of entering into contracts respecting her property, and of disposing of it indepen- dently of her husband, has clianged the common law in many ros|iL'ets, and among others the rule which was based on the idea uf the legal unity of husband and wife, which disabled them from entering into contracts with each other, or from enforcing such conti'uets by suit. In liliude Island it was held that, under the provisions of tluir statute,^ a married woman might purchase the property of her liiishand, paying for it out of her separate estate ; might loan him money from her separate estate, and had the same right to cxpeel iuid receive security and payment as any other creditor.^ It was also held, in the same 8tatc, that if the husband and wife treat each other as lender and borrower, the contract of loan carries with it its usual incident of interest ; and that the wife is entitled to lie credited, in an account between her and her husband, with the jiroeeeds of the sale of her property, although they have been applied to defray family expenses with her consent and approval.^ It has also been held there that she can accpiire by purchase, or irift from a third person, the note or other obligation of the hus- band, given for his indebtedness, and that she is entitled to pay- ment therefor out of the estate of the husband, precisely as such third ])ersou would have been. Should it become necessary for her to enforce payment by suit, she can do so bv her next friend in equity, or through a trustee of her estate appointed by the court on her i)etition, under R. I. Pub. Stats., cli. 100, § 18,* So, in Maine, it was held that a husband, though insolvent, might convey real estate to his wife in payment of a note which he had given her for money loaned, if there was no intent to de- fraud or delay creditors ; ° and that the assignment to the wife of a mortgage given by the husband did not discharge the mort- P'^c; l)ut that the mortgage, and the debt secured by it, were property which she had the same right to purchase and hold as any other person could do.^ And in New York, that the marriage of a female mortgagee with the mortgagor, after the New York act for the protection of ' li. S. c. 136. * Franklin Savings Bank v. Greene, 14 • Steailnian v. Wilbur, 7 R. I. 481, R. I. 1. ^85. 6 Rantlill V. Lunt, .'il Mu. 246. ' Iluilges V. Hodges, 9 R. I. 32. « Bean v. Bootliby, 57 Me. 295, 302. i' '/M ii n ; <-! \\\ 230 COMMENTARIES ON "ALES. [book II. the rights of married women ' had been enacted, did not extin- guish her right of action upon tlie mortgage.^ But in Massachusetts, the common-law doctrine has not been clianged by statute, and, therefore, there can be no valid contract there between husband and wife ; such being a nullity.^ In Missouri, it has been lield that money saved by a mamed woman in iiceping boarders, washing and mending for them, witli the consent of her husband, as well as money given her liy Ikt father, and the proceeds of land bought by her money is her own; under sects. 3:21)5, 821)6, Kcv. Sts. of Missouri.* But in Alabama, while, under the statutes, a married vuman takes and holds property to her sole and separate use, liiuing therein a legal estate, yet the statutes do not confer upui icr u general power to dispose of such property. The power of dispo- sition is limited, and is confined to the specific mode prescribcil bv the statute. The joint conveyance in writing of herself and lius- band, attested or acknowledged, is the only mode of disposing uf such property that will operate to devest her title, whether a sale for money is intended, or the exchanging of one article of |)eis()nal projierty for another." Hence, it was held, that where a horse be- longing to a married woman had been exchanged by her hushuiul, with her consent, but such consent had not been consummated in writing under the statute, her legal title was not devested in the one, nor did it inure to her in the other.* So, in Woods v. Ihiu- lap," where cattle, a part of a married woman's statutory se|i;irato estate, were exchanged for a mule and a sorghum mill, and tliese exchanged for a wagyn and oxen, — the exchanges being made by the wife, and by her husband acting for her, and with her autliur- ity, but no writings were executed, evidencing either exchange.— it was held that the title to the wagon and oxen never vested in the woman, and, therefore, that she could not maintain trover for their conversion. In New York, it has been held that, in all contracts relating to her separate estate, a married woman stands at law on the same footing as if unmarried, and she can, therefore, make negotiable paper which will bo governed by the law merchant, and wliicli can be sued upon in the ordinary way by general complaint, ana 1 Laws, N'. Y. 1848, ch. 200. 2 Power V. Lester, '23 N. Y. .IS?. 8 ClmiMiiiiii V. KellDRf,', 102 Muss. 216, 248 ; Alibott v. Winchester, 10.5 Mass. 115. But see Moilel Lodging House Assoc. V. Hoston, 114 Mass. 133. ■» Hartlett V. Uiiifrie.l, 94 Mo. 530. Ami see C'oughliii v. Hyan, 43 Mo. 99 ; Kidwell V. Kiikpatnck, 70 Mo. 214 ; Wood V. Broadley, 76 Mo. 23 ; State i. Gregory, 14 Mo. App. .')82. 6 Sniytli V. Oliver, 31 Ala. 3'.» : Wi.!!- manu. Abernathv, 33 Ala. \rli'r it ; to carry on any trade or business, and perform any labur or service on her own account ; and they protect her in the enjovuiont of her carnintrs from her trade, business, labor, or 8crvioi'S, and permit her to use and invest such earniugs.^ it is settled that those things which the statutes permit her to do in person, she may also do by another as her agent. This is uoccssurily so, for she is allowed to act in respect to them as if iiimiarried, and the improvement of her laud, or the management ul hei- jiersonal property, whether for preservation or business, may Ijo conducted by her by means of any agency whicii any other owner of j)roperty may employ, and the produce and increase thereof will be hers.* She may do those things through her hus- band as her agent.^ And she may also have such a community of interest with her husband in relation to real estate, as will render liei liable for his frauds relating to it; and when he, professing to act as her agent, makes false representations, although without hur knowledge, and she receives the proceeds, she cannot retain the fruits of his iraud.*^ In I'ennsylvania, by the Act of April 3d, 1872, a married wo- man's separate earnings were vested in her ; but to obtain the bene- fit of the act, it is provided that she must, by petition to the Court of Common Pleas where she resides, bring herself within the ben- efits of the act. It has been held under this act, that, where a married woman who has brought herself within the act, has a separate estate, and she buys property on the credit of this separate estate, she may hold it against the creditors of her husband. And it is not necessary that she should have paid for it at the time of the purchase. She is not precluded from buying on credit, {)ro- vided it be on the credit of her separate estate. In all such cases it is incuiubcnt upon her to establish the fact that the purehase was so made, to ])rotect her title against the ereditors of lier hus- band. A nuirricd woman having no separate estate cannot, as against her husband's creditors, acquire real or personal property oil her personal credit, or on tiic credit of her subsequent earn- ings. Nor does the fact that she is a, feme sole trader modify the It . ' K Freckins v. Holland, 53 N. Y. 422. * i-aws of 18G0, ch. 90 ; Laws of 18t)2, ch. 172. " N.kI )'. Kiiincv, 106 N. Y. 74, 77. * Km\>\> V. Smith, '27 N. Y. 277, 278; Abbcv V. Dcvo, 14 N. Y. 343. ' I'owc V. Smith, 4'. N. Y. 230. " Knimm <. Bcadi, Pfi N. Y. 398. As to the riijlit of a niaiiied womau in New York to form a Imsinoss partnersliip with her hiisband, sou Noel i'. kiniioy, lo6 N. Y. 74 ; Fiiii'lit! v. IJhiomiiigdiile, 38 Ilnn, 220; Zimiuui'man v. Krhiird, i>8 ijow. 11 ; Cnilf V. Kinuoy, U> Ahb. N. C. 309, aflirmud 37 Huii, 140 ; Scott v. Conway, 68 N. Y. Cl!»; l'>ittfr v. JJathman, 61 N. Y. 512. Butseo Kaufman v. Suhouffel, 37 Hun, 140. iH^ k i I ;i : 'K '^■:ii' '4 m: :i 232 COMMENTARIES ON SALES. fuOOK II, rule as to the burden of i)roof being upon her to show the owner. sliip. Where the married woman has no separate estate, pntpeitv boujrlit by her upon her individual credit, and subseciucntly puid for from profits in business, is to be regarded as Ihe jjroporty of lur husband, and is subject to execution by his creditors. J>iit wheio she has a separate estate of her own, she may purchase propertv, and it will be protected as stated ; and it has also been held tiiat she may employ her husband to superintend the business and liavc the benefit of his skill and labor. Additional property purchasi'd by such means belongs to her, and if it be actpiired as the njsult of the original investment, the creditors of her husliand haw no right to levy ui)on it; she having as much right to cmplny her husband as she has to employ any other person.^ And, in tlio same State, under their act of 18')5, giving a wife the priviUgus of a feme sole trader, where her husband, from drunkeniiL'ss, pro- fligacy, or other cause, neglects or refuses to provide for his wife, or deserts her, it was held that in sucl\ a case, she is to this extent relieved from her marital duties and disabilities ; tliat she may devote her energies on her own accnunt, for the support of herself and her children, and has a right to her own earnings to that ond.^ In Iowa, under § 3078 of their Code,*^ as property exonipted from execution by statute may be transferred by its ownrr, free from any claim of his creditors, without regard to the uses to whicli he devotes the proceeds, as no prejudice or injustice can be wrought to the creditor by such transfer, for the reason that the property is beyond his reach, and his conditions, rights, ami rem- edies, would not be affected by the transfer;* so, where a debtor absconds and leaves his family, the wife holds the exempt pro]> erty ; and her rights thereto and authority over it are the same as those of her husband when he was holding it, and her sale of snch property passes the title to it.° In the same State, by § 2214 of their Code, the expenses of the family arc chargeable upon the property of both the hus- band and wife, or either of them, and in relation thereto they may be sued jointly or separately. In Smedley v. Felt,'' it was licld that the purchase of a piano for use in the family is a family expense which may be charged against the property of the wif", 1 Baxter V. iMiixwell, 115 Pa. 469 ; Gibbs & SturrctMiiimf. Co. v. Goe, 1 Pcn- iiyp. 238 ; SlciI v. Kahler, 70 Pa. 262 ; Spering v. Liuiglilin, 113 Pa. 209. See further, Noblu v. Kri'uzkiiinp, 111 Pa. 68; Hess v. Brown, 111 Pa. 124; Leiii- bacli V. Teinplin, 105 Pa. 522 ; Kceney v. Good, 21 Pa. 349 ; Shuster v. Kai.ser, 111 Pa. 215. a Ellison V. Anderson, 110 Pa. 486. 8 See sec. 3075. ♦ Bovan v. Haydon, 13 Imva, 12-2; Frost V. Shaw, 3 Ohio St. 270; I'onl v. IJeed, 15 Ala. 826 ; t'ook v. B.iiiio, 37 Ala. 350 ; Godmaii v. Smith, 17 lii'l. l'^'^. 6 Waugh V. Bridgffonl, 69 Iowa, VA; Malvin v. Christoph, 54 Iowa, 562 ; VuW- son V. Spenglev, 62 Iowa, 59. 6 41 Iowa, 588. PAUT III.] MARRIED WOMEN. 233 It has also been held that, under this section, the husband and wife are each personally liable.^ i>y the Montana Code (§ 7), it is provided that the property owiiL'tl \>y a married woman before her marriage, and the increase, use, and profits thereof, shall be exempt from all debts and liabil- ities of the husband, provided a list of the property of such mar- ried wuniau is recorded in the oflicc of the register of deeds of the ] r(j|icr county."'^ In ruliuer v. Murray,'^ it was held that this provision was sub- stantiiillv foiuplied with where a list was filed bv a woman before mari'iiige, in her maiden name, in which she gave notice of her iiitoiuJL'd marriage ; and that, as against a wrong-doer to her sep- arate property, she had a right to sue in her own name. And it has also been held there, that creditors of a husband, whose wife has made her declaration under the statute as a sole trader, and is carrying on business in her own name and on her own account, caiiiiut seize the money or property belonging to such business in satislaction of the debts of the husband. The declaration, when ]iroi)erly recorded, is notice to the public not to trust the husband on account of the proj)erty used in the business of the wife as a sole trader. In order to impart such notice, the declaration must spe- cifically set forth the nature of the business the wife intends to cany on and transact. But where the declaration designated the business to be carried on "as farming and ranching, keeping and iniiiiilaining a hotel, and buying and selling property, real, per- sonal, and mixed," it was held that the married woman could, under this last clause, as well purchase a saw-mill, engine, boiler, and fixtures, as, under the previous clauses, she could have bought a cow or horse for her farm, or provisions for her hotel.^ And in ^[innesota, a claim by a married woman for nursing l»er Inisbaud's boarder, under an agreement between the husband and wife that she was to be paid for such services, the boarder, how- over, not being cognizant of such an agreement, was sustained, there having been no question of set-off or counter-claim mixed up with the matter.*^ In Indiana, a married woman may execute a promissory note 1 Hiiipdlcy V. Felt, 41 Iowa, 58S ; Law- icnci' V. Siiiiiaiiii'ti, 24 Iowa, 80 ; Finn v. Hii^c, 12 Iiiw.i, M'i\ .loiiL's i>. (Uas.s, 48 Iowa, 34,') ; Kain r i\ hjiiciy, 52 Iowa, 725. In Fru>t n. Vavkvr, t>:> Iowa, 178, it was held tliat an oij^aii wliieli was kept as an article f>i taniily usu for several years came witliin this section, altIiouj,'li it" was alleged that it was lioii^'tit for sale, and that the wife's lands were liable to bo subjected in equity to a judgment against her husl)and for tlic priee of the organ. And see Vaiidereook t'. Gere, li'J Iowa, 467, and Kniieking v. Selioltz, lb. 473, as to liabilities of the wife in connection with transactions be- tween her and her husband. 2 K. S. Jlont. p. 588, § 866. 8 6 Mont. 125. < Shed V. niakely, 6 Mont. 247. 6 Kiley v. Mitchell, 36 Miuu. 3. h I * 1 ti , I ■ ■ .' M tl \\ ii i'- I f : r ■ •j' I I >. I 234 COMMENTARIES ON SALES. [book II, ■f i IH- for property purcliascd by her, and her ability to contract there is now the rule, and disability is the exception.' IJy statute, too, in Indiana, she is expressly bound by au es- toppel in paiH. Wliile mere representations will not estop a mar- ried woman, it has been held there that, where they are aetoil on in {food faith by the i)er.son to whom they are made, and who has no information that would lead him to believe they are not true. they will e.stop her. If made to one who knows that they are nut true, or to one who is chargeable with that knowledge, they will not have the effect of an estoppel. Where, however, to permit the married woman to deny what she has positively atlirnn.d wouid operate as a fraud upon one who has acted in good faith, sho will be held to be estojiped. It may be that mere silence when sho should speak will not create an estoppel, but whero sh(> makes positive representations and thus misleads one who acts in jruud faith, an estoppel will arise.^ But if a man colludes with the husband to secure from the wife a representation, whether in the form of au allidavit, or in auv other form, he cannot insist that the wife is estopped from show- ing that the representation was not true.'' IJut such repirseiita- tions estop a married woman from defeating negotiable paper in the hands of a bond fide indorsee, who acquired it without notice; for value and before maturity.'* The earnings of a married woman arising from labor and ser- vices done and performed on her sole acco'int become 'or so|)a- rate property in Ar'-ansas.^ It has been held there that she may sell her separate proj "tv to pay her husband's debts." Sho may also devote the earnings^ ' ■^\' labor to the same purpose if she desires to do so ; and where '^ore is no other objection to the contract, an executed agreement uy a married woman to pay a debt due by her husband and son for board is binding on her." A married woman purchased fixtures and furniture in her own name and with her own ir.oney, and allowed her husband to use them for the purpose of fui-i' shiu^ him with facilities for carry- ing on business in a market ; he paying her rent for the articles. 1 Arnold v. E\\l)ell, 103 Ind. 213 ; Ward V. Burkshiro Lite Ins. Co., 108 Ind. 301. And see cases in note to 27 Am. Law Rcj;. 50, et S(!q. 8 Keller i'. Orr, 106 Inr would still retain tho title to the property as against creditors, and would have a I'ight t(i retain it as against them. Under the present Illinois statutes, till! wile occupies the same position, and the mere fact that she loans her pro|»erty to her husband to be used in carrying on his trade or business, docs not make it his property or subject it to liis deljts."'^ A corporation in Massachusetts was summoned as trustee of a married man, and by their answer it appeared that they were in- dolited for washing done by his wife ; that the contract for the wasliinji: was made with the defendant, but that the corporation were informed and believed that the husband, in making the con- tract, acted as the agent of his wife, and the corporation muler- stood that the indebtedness was to the wife. By the statutes of that State,^ the work of washing by the wife for a person other than hor husband and children must, " unless there is an express agreenicnt on her part to the contrary, be presumed to be i)er- fornied on her separate account." The court held, that, on the answer of the corporation, the case having been rested on it, it must be taken to bo true that the husband acted as the agent of his wife* 4. Her Contracts. The Pennfylvania Act of 1848 secured to married women their separate estates, but their earnings still belonged to their hus- bands.^ To remedy this the Act of 1872 provided that her sepa- ' Tonilinson v. Mntthews, 98 111. 178; Sec Fay v. Soars, 111 Mass. 151, \r,6 ; Muik i\ Ciillv, 22 111. App. 542. Clinton Nat. Bank v. liright, 120 Mass. ^ MiiiL- i< '('.ill., oo III A.,,^ r>io roK ^ Muik V. Ciillv, 22 111. App. 542. ' Mass. Pill,. Stilt, c. 147, § 4. * Liiiioiul V. Anns, 145 Mass. 195 i35. ^ Speakman's Appeal, 71 Pa. 25. •■( i ■t t . I : m .'! I ] - ' ■ ■?.i ■ i I 14 if [ ' ^ '^ 236 COMMENTARIES ON SALES. [book II, rate earnings should inure to her separate benefit and use, and be under her control, independently of her husband, the same as if she were a feme sole, and be exempt from the claims of her lius- band and his creditors. It was held tiiat this act conferred but a single right upon a married woman, who availed herself of the act. viz., the right to retain her earnings, from whatever source de- rived, as against her husband and liis creditors ; but that, tlioiigh she is not liable ui)on her contracts generally, yet so far as it be- comes necessary to the use and enjoyment of her separate estate, a married woman may both sue and be sued.^ And that, in a suit against a feme sole trader, her husband need not be joined.^ And in a case where a married woman, within the act, kept an inn or tavern, it was held that she was liable, in an action by liei' bar-lceci)cr, for his wages, on the principle that if she assumes tin' rights of a feme sole, incidentally she is also subject to the duties and liabilities of afnue sole, and where a married woman obtaiiLs the services and property of others in keeping a hotel, she is lia- ble to the parties in a suit at law precisely as if she were a ffme sole. Were it otherwise, a married woman, no matter how aiuiilc her estate, could not put a new roof on her house when neces- sary, nor rebuild it if destroyed. If she loaned hor money out, she could not recover it back ; and, on the other har.'l, the me- chanic who repaired her roof or rebuilt her house would have' nu remedy to recover his money .^ lint in a case under the Pennsylvania Act of 1855, giving a mar- ried woman the right and privileges of a feme sole trader, where her husband has neglected or refused to provide for her, and an action was brought for services in the general management of lier business without proof of an agreement of hers to pay tln'refor, and without evidence to show that the services were nccessarv, she was held not liable.* Yet, whore a married woma i owns in her own right an improved farm, she is held liable, under the Act of 1848, for services for which she contracted, wliicJi biml her separate estate, such services being necessarily required and ren- dered in harvesting, housing, and marketing for her bcnclit tlio gro"'ing crop on the farm.'' In Hair v. Robinson,*^ it was held that, under the 8th sccti ir, of Act of 1848, which provides that debts contracted by the wil'' for " articles Jiecessary for the support of the family of the liKsmuiil I-. 1 Slu'idlo V. AVoishlcp, 16 Pa. St. 134; JIuiray v. Kcyi's, ;?,'> I'a. St. 384 ; Lippin- cott i'. Hopkins, 57 Pa. St. 328. 2 l?ufko ('. Wiiiklo, 2 S. & R. 180. 8 Hovanl v. Ktittering, 101 Pa. 181. « Miller v. Gleutwoith, 103 Pa. 84. 6 Botts V. Knahb, 116 Pa. 'J-!. ■'^'•'' Lipiiiiicott V. Hopkins, 57 Pa. ■'>'> ; I-il'- pincntt V. Leed.s, lb. 4'JO ; .Mahuu f, (ionnlv, 24 Pa. 80 ; Genuauia Suv. lik Appeal, 95 Pa. 329. « 108 Pa. 247. ART III.] MARRIED WOMEN. 237 and M'ifc," fi married woman was lialjlc an her contract for the rcasontiblc expenses of the burial of her mother, who had been liviii!:' witli thorn. But, uuder this section, a married woman is not liiiljle for damages resulting from a breach of her contract, but only for articles actually furnished, which were necessary for the siippoi"'^ of the family.^ A married woman who liad purchased stock in a building so- cietv, whtu under disability, continued to pay monthly instal- ments for a year and a half after the passage of an act removing lit.T diriability. It was held taat she could not recover payments made by lier prior to the passage of this act.^ In Connecticut, the statute of 187*2 ^ i)rovides that an action may ho sustained against a married woman upon any contract made witli her upon her personal credit, for the benefit of herself, her family, or her separate or joint estate. She was held not liablo. on )ier contract, for supjdies furnished her son and his tamily. who were living apart from her. The court held that tlie word " family " was to be taken in its ordinary and popular sense. While in a broad sense it might include all of a woman's children, whether living '.vith her or not, and even other relatives ; vel in a more limited sensO; and which it was held was the sense intended by the statute, it includes only those who are living toiretlicr in one household.'* Tlie statute in Indiana^ provides that all the legal disabilities of married women to make contracts are abolished " except as lierein otherwise j)rovidcd." It has been held under this act that incases of married women in that State, ability is now the rule luul dis!il)ility the exception ;'' and that as the act confers on mar- ried women a general power to make executory contracts exeei)t such as are pi'obibited by tho statute, and the purchasing of wear- iii'i api'arel for herself is not prohibited by tho statute; slie may purcliasc wearing apparel for herself, and h or promissory notes I'xeeiilcil fovthc price which she has agreed to pay for it. are valid, and may be enforced." In the construction and expo.^'ition of the New Yoik ^larriod Women's Acts, by the courts, it is now well defined and settled there that a married woman cannot bind herself by contract, un- less j'/vY. the obligation was created by her in or about carrying ' IMl !'. ' ,, ; 115 Pa. 218; Bevgnr ♦ Hart v. OoLlsiiiith, 51 Ct. 479; ''■ Cliik, 711 I'a. a4e : Murray v. Kl-vs, 35 Clipsliiic v. Bmiiu^toii, 31 Ct. 326. !''i- :!S1: I'.irk v. Klfcbcr, '37 Pa." 251 ; & Sco. 5115. R'iir'.s Kvtatc, ^«i- Kothschild V. Kaab, 93 ind. 488 ; Wuls- » iav. of 1875, p. 417, § 9. chner v. Sells, 87 Ind. 71. ■ ! ■ , ; I iiiip III-'' m 238 COMMENTARIES ON SALES. [book ii. on lier trade or business ; or, second, the contract relates to or is made for tlie benefit of her separate estate ; or, third, intention to ch-irgc the separate estate is expressed in the instruuiont or contract by which the liability is created ; or, fourth, the debt was created for property purchased by her.^ In the Third Xat. Bank t>. Gucnther,^ in an action upon a promissory note made by a married woman who was carrying on a mercantile business for her own account, under the manage- ment of her husband as her agent, she claimed that the note was made for the accommodation of the payees thereof, and was not created by her in or about carrying on her trade or business, and was not made for the benefit of her separate estate, and con- sequently that it was a void contract upon which the plainlift could not recover. But the court held that, as upon its face it purported to be made in her separate business, being signed in the firm name in which she carried on business, and was olt'crcd and sold to the plaintiff under such circumstancos as to war- rant the assumption and inference on his part that it was tlio defendant's business paper, given for value, the defendant was estopped, as to a bond fide holder who relied upon those facts and her credit, from showing that the note was otherwise than per- fectly legitimate. Tiie same principle was acted on in Alabama, in Lc Grand i\ Eufaula Xat. Bank,'^ where a married woman was carrying on business in the name of '* Stow & Co.," and it was held that site could not be permitted to deny the existence of such firm where the name had been assumed publicly, and credit ohtiiincd from the plaintiffs on the faith of its alleged existence. This is precluded by the principle of estoppel, the chief purpose of which is the promotion of common honesty and the prevention of fraud.* JJut in the District of Columbia, their statute^ merely vests cer- tain property in her as a four, sole, and gives no power to married women to buy and sell as f'me sole traders ; and the decisions have settled the question there that the act confers no such capa- city.*^ So, in Hitchcock v. Richold," where the defendant, a mar- ried woman living with iier husl)and, was carrying on business ns a retail dealer in boots and shoc3, on her own account and with 2 13 Abb. N. C. 428. 8 81 Ala. 123. « Cftklwell r. Smith, 77 Alii. 157. 6 liev. Sts. §§ 727, 729. Hitch V. Hyatt, 3 MiicArth. 53C; Schneider v. Garland, 1 Mack. 350. 7 5 Mack. 414. 1 Saratoga County Hank i'. Priiyn, 90 N. Y. 250. Si'o Tlio Manhattan' Brass and Manui'. Co. (>. Thoin|is()n, .^8 N. Y. 80; Nasii V. .Mitchell, 71 N. Y. 199 ; Tiuincvor V. Tiirn(ini.st, 85 N. Y. 516. All her other olili,!,Mtions arc void. Hudson v, Hudson, 1 .Sheld. 386 ; IJogert r. (Jnlick, 65 Uarb. 322 ; Downing v. O'Brian, 67 Biub. 682 ; Bukur v. Lamb, 11 Hu.i. 51«. Im:" * rrvmii on PART III.] MARRIED WOMEN. 239 her separate estate, in the District, and, for the purpose of keep- ing up lier stock, she bought goods and gave her promissory notes for thera ; in an action on the notes she was held not liable.^ In Indiana, in an action against a feme covert, on her promis- sory notes, she claimed that she signed them only as surety, and tlmt she received no part of the consideration. The court held that while a married woman might bind herself by an executory contract, the consideration of which is personal property pur- chased by her for her own use, and the ownership of and title to wliicli vest in her, even though such property be contracted for and delivered to another in her behalf, yet she cannot so bind herself, in that State, when property is purchased the title to which is to vest in another.^ A suit was brought in Louisiana against a married woman, by a niece who had been living with her aunt and her husband, for money and goods alleged to have been received by the aunt, after ''0 had been judicially separated in property from her husband. !.ie court t)"low held that the wife was liable ; but this decision was reversed on the ground that the receipts of the wife had not hocn from the representatives of the niece but from the husband, who had received the same in his capacity of "tutor" of the niece, and that he alone was liable.^ A married woman, the owner of real property as her solo and separate estate, in Missouri, may charge it in equity by the exn- cutinn of a note for the payment of money, and in equity a note made))y a wife payable to the husl)and is, in the hands of a third party, capable of enforcement as a charge against her separate estate* it follows from this, that since the Missouri act of 1875,'' a married \ oinan, as to her sole and separate property, can act as ^feme .so'. , - - has ihd jtts dis(pone.n I .Ml, Just as tiicy must ho lu-ld to KiiMW i' ' r.v as to tlic caiiilcitii'S of in- deal VI i^^noranue, tlu'y f.ll)t!l. J, iiiust n('ci'[,i J ' consi'ijucnccs, Cei-tainly it is not fui us to add to or straii. this statute. Our duty is simply to construe it." //'/'/. I'J'2. ••2 (handler r. Spencer, 109 Ind. h:,^. See UothsehiUl !•. ]{iiah, it3 Ind. 48S ; Wulscdmer v. Sells, 87 Ind. 71. » (ilass V. Meredith, ;i7 La. Ann. 625. ♦ Morrison v. 'Ihistle, 07 Mo. 6<)6 ; McQuie I'. Penv, 58 Mo. 59 ; Kimm ». Weipi)ert, 46 Mo. f)3.'). * Kev. Sts. § 321)6. (ii , ■ • ! ; y\ 1 1 ' ' n |l m » . !, ill i '!.^ it Il' 1 i .,1 1 .1 i , 'I r i ■! 240 COMMENTARIES ON SALES. [book n, on the principle that if a coiirt permitted a married woman to retain property she had purchased, and at tlie same time refused payment of the consideration money, it would bo unjust.' And in Missouri, recognizing the correctness of this decision, it was held that a feme covert is bound by her promissory note or deed of trust to secure the payment of a purchase matle by her.^ In Nebraska, where, under their statute,'^ a married woman is enabled to carry on business on her sole and separate account, it was held that, as the statute enables her to carry on a separate "trade or business," her defence that a promissory note given liy her was not given in relation to her separate " estate," was not sufficient ; that when a married woman sets up her covertiu-e to avoid liability on her contracts, she must in her answer negative all the causes 'rxm. which otherwise her liability might be inferred, as that " the C( i did not concern her separate property, trade, or business." ^ Married women nave general power in Michigan to contract concerning their own property, and have been authorized tu sue singly for all causes of action, and to be sued sei)arately for all their torts. Their power to purchase on credit has been fully rec- ognized.'' And where a married woman is abandoned by her hus- band, her contracts for family necessaries will bind her." And, as such necessaries she can contract for medical attendance which she may require, as she can for food and clothing.' In Oregon, sec. 10 of the Act of 1878 *^ provides that " the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately." The general effect of this act has been to extend and enlarge the riudits and liabilities of married women much beyond previous limitations. It removed the disability to make contracts and incur liabilities, which formerly existed at law ; and now a married woman may do either, and her contracts and liabilities may be enforced i)y or » Bo\vi'i',s Appeal, 68 Pa. 123. - Diiilpy V. The Singer Maiiiif. Co. 88 Mo. ;K)1. 3 Cm. Sts. oh. .')3, § 4. * (iill.'spii' 1-. Smith, 20 Neb. 455. See Ifalo V. Christy, 8 Neb. 264 ; Davis v. First Nat. Bank of Cheyenne, 5 Neb. 242; Yale !'. Dctl.'rer, 18 N. Y. 265 ; 22 N. Y. 450 ; Corn Kxehaii;;e v. Habcoek, 42 N. Y. 4.">0 ; Savings Bank v. Scott, 10 Neb. 83 ; Barnuin u. Vouiij^, 10 Neb. 300 ; Welili v. Ha.selton, 4 Neb. 308; Boarinan v. (Iraves, 23 Miss. 283 ; Dolin v. Hiibbanl, 17 Ark. 196 ; Nunns v. (iivin.s, 45 Ala. 373 ; Todd V. Lee, 15 Wis. 380; Ballin v. Pillaye, 37 N. Y. 37 ; Bank v. Miller, 63 N. Y. 639 ; Kimm v. Wiepert, 46 Mo. 5.'i2 ; I.iii.olii r, b'owe, 51 Mo. 571 ; Bank v. Taylor, (12 Mo. 338 ; Kantrowitz v. I'ratlier, .".l lii-l. 105 ; Hasheagaii v. Sjx'cker, 36 Iii'l- 4H; Jlodson V. Davi.s, 43 Ind. 258; Slimim!: I'. liartlKdoniew, 53 liid. 61; riiil.ip^ i'- Graves, 20 Ohio St. 3ii0 ; Hiee v. Hail- road Co., 32 Ohio St. 3.S0. " Paul V. KohertH, 5() Mich. 611; C:imp- bell w. White, 22 Mieh. 17S. « Paul i: Uoherts, 50 Mi,h. 6n;GHly ^'. Pheliis, 47 Mieh. 431. See Avlt c. Warren, 47 Me. 217. ' Carstens v. Jlanselman, 61 Mich. 426. 8 Sess. Laws 1878, p. 94. tOOK II, I'AIIT lit.] MAURIED WOMEX. 241 man to refused } And , it was or ckod omfin IS count, it scpiirato i-'iveu liv O * was not crture to lu'irativc iut'orrod, •ty, trade, I contract cd tu sue ly for all I fully rcc- y her luis- [>!•.'"' And, ittomlancc Uini^.' oexiienscs -;liar;j:eablc thcui.aud dy." The the ri'ihts limitations. lialtilities, lan may do ■ced l»y Ol- io ; Liii.'olnr. I,-. 'I'iivlor, tii |llii'V,':U 111'!. I5f) lu'l. 4U; |r,8 ; Sll Mlllnll ', riiii.il"* '■• llUoe V. ll'iil- [h. ()1 1 ; C.hIv 1 Sci' Ayor I'- CI Jlicli- against licr to the same extent and in the same manner as if she WL'it' luunarricd. For liabilities incurred as a family expense, she may be sued at law jointly with her husljand, or separately, and a porsiiiial judjrment may be rendered against her.' And in Pliipps )'. lu lly,'- it was held, that though there is a remedy at law which niav be enforced against her for an indebtedness incurred as a fam- ily expense, for which her property may become liable, yet as there is no intent clearly manifested by the. statute to exclude the jiiris- dictiun which {)reviously existed in equity against the separate |iio[iLrty of a married woman, the creditor may resort to either ioruai to enforce his claim.^ 5. Hkr Liahilities, independent of ITer Contracts. Under the statutes in some of the States, a feme covert is held liable under certain contracts to which she is not herself a party. Siieh is the case in Iowa, where it has been held that, in the ab- sence of fraud and collusion between the husl)and and the credit- ors, tbo acts, agreements, and promises in relation to the family expenses, etc., are binding upon the wife, without any express consent or action on her part. The husl)and may change the form of indebtedness, as by giving his note for the account without 1 Wiitkiiis V. Mason, 11 Orrg. 72. See aUo Pcilly /■. Walker, 00 Iowa, 88 ; Jones f. (ilass, 4S Idwa, 345. - li'.OiVi,'. -21:5. ' S,,. Mitclu'll V. Otey, 23 Miss. 236. The cast' u[ iifo v. Mnggoiidtjc, 5 Taunt. 3ii, wns an a"tion ol' assumpsit liasod on tlio ]ii(iiiiisi' of a widow having a soparate estiite til pay a debt contracted on the iivilit of Mirli estate during coverture. llif inii";ti(m was wlietlier lier jiroinise af- ter ciivcrtiuc was liased on sutiicient con- si'lfnticiii. l,(inl Manslield .said : "It lias loni; liirii i'>taMislied tliat v.diore a ])ersnn is lioinid nmndly ami conscientiously to pay a ilclii, tliougli not legally lionnd, a Milwipii'iii ]i|(iiiiis(' to pav will give a right III 'iilion." ileatli, J., said : "The notion tliit a |iroiiiisc may he su)>ported hy n nmnil ,,hli;^ritiiiii is not modern." Parke, B., in Kill,. V. Oliver, 2 Kx. 71, said: ''Tlie priiiriplc of the rule laid down by h"nl Maiisllrld is that when the consid- ewtion was originally benelicial to the jiiirty jiimiiiMiig, yet il'lie bi' protected from lialiiliiy liy some provision of llie statute "rii'Miinnii l,nv incaiit for his advantage, he iiwy iiiKiiiii, ,. the benefit of that law, and il 111' pruiiiiM's to pay llie debt, which is [""lyMlMt an honest "man ought to do, ho IS thwi 1,111111,1 by law to iierforni it." Tlie saiiio ill), triiie was held in Vermont, where VOL. I. 10 it was held that the promise of a married woman, made during coverture, who had received value to her own u.se from tlio plaintiir, who relied upon her promise to pay, and upon her sejiarate estate as tho means of enftireing pay, was by the acei- diiit of her coverture void at law, but valid in equity ; that her subsequent promise to j)ay after coverture was cleaily founded upon good consideration. Slier- wiu V. Sanders, WJ Vt. 4it!t. in Itusliiig V. Kusliiig, 47 N. ,1. L. 1, in discussing an analogous jirinciple, tlie murt said : " 15y such a jironiise what In liiie was an eijuitable obligation is converted into a le- gal ol)ligatioii." And in Vanc(^ v. Wells, 8 Ala. 3!t!i, it was held that when goods are furnished to a married woman on the faith of her .separate estate, there is such a moral obligation to jiay the debt as will sup- jiort an action at law, on a ]ironiise to |iay niter the coveiture lias cea.sed. See Cioul,' ing I'. Daviilson, 2t) N. Y. 604; La Toucho V. La Toiiche, 3 II. & C. 576 ; Priest v. Cone, f)! Vt. 495 ; Dale v. Robinson, .ll Vt. 20 ; Hubbiird i'. Hugbee, 58 Vt. 172; Howe V. Clie.sley, 5G Vt. 727; Doss v. Peterson, 82 Ala. 253; Hixon v. Hether- ington, 57 Ala. 165; Thornton c. Guico, 73 Ala. 321 ; Underwood v, Lovelace, 61 Ala. 155. \iV i '.I, ' i ■ itSiHi \\ \\>\ 1 ; I i ! 5 iii 242 COMMENTARIES ON SALES. [book II, releasing her.* And the husband may maVo such contracts for necessaries without using the name of the wife, and may •rive his individual note therefor, for whicli the property of the wife will be liable.2 In'Frost v. Parker,^ where the husband gave his note for fhr goods, on which a judgment was subsequently obtained n^fainst him individually, it was held, in an action in chancery to stiljjcct the wife's property to the payment of the judgment, that it was liable. And in Phillips v. Kcrby,* it was held that where tlic hus- band gives liis promissory note for goods purchased and used as family supplies, the cause of action is not barred against tlic wife jntil action upon the note is barred as against the iuisluii'd, and that this is true where the note has been reduced to judgment against the husband. And in Oregon, where the statute on the subject is the same as that of Iowa, the decisions have been to the same effect. Tims it was decided in Watitins v. Mason,^ that a wife is liable for i:oo(l> for familv use, although sold to tlie husband on his in ' vidual credit; and in Black v. Sippy,^ that the wife is liable for necessa- ries incurred as a family expense, although originally t'lKiii:.') 7 ; " Hudson v. Kinjj, 23 111. Ai>p. 118. Snicill. V r. l-rlt, 4;{ Iowa, (!07 ; Smcdlev See Voii I'latfii v. Knu'^cr, 11 HI. App. '•• IVlt, 41 I(.w:i, f,88 ; Jones v. Gliiss, 48 627 ; Miir(|iiitnit v. Kiaii«licr, 60 Iowa, •'i«a, 34.'i ; iManiuaiJt v. Flangher, 60 148; Liiwit-ni'i' r. Sitiiianion, 24 Iowa, 80. '»«". 118. 8 24 111. App. 423. i' V* S. ' . 11 A' I I i ■ K • ill IS! 1 f I n II 111." i\ V: I m 244 COMMENTARIES ON SALES. [book II, f 1 ! expenses of the family within the meaning of the statute.^ But that a reaping-machine, merchandise, and live stock, and a Ijrcak- ing plow, money borrowed to pay family expenses, attorney's fees, and the expenses of an insane wife in a hospital, were not family expenses under the law.^ And the Illinois Court of Ap- peal, reversing the decision of the Circuit Court, held tliat tin; law, by judicial construction, should not be carried further tliaiiit had been ; that the buggy was not a " family expense " fairly wiliiin the meaning of the statute, and that the wife was not liable.^ In North Carolina, where a married woman is similarly made liable under their code * " for the support of the family," it wiis hold that she is not liable for family supplies procured to keep n\) a boarding-house ; that her liability is confined to goods bought for the direct benefit of the members of the family, such as food, clothing, and other necessaries, and not for the successful prose- cution of a business, from the profits of wliich such su[)port is to be obtained, whether by keeping a boarding-house or hotel, or bv engaging in any other general occupation.^ She may become a free- trader with her husband's approval, and thus emanoii)ate herself from the restraints of her coverture, under § 1827 of the oodo; but otherwise she can only exercise the power given her l)v the act over her separate estate in entering into an executory contract with others." By the Code of Mississippi of 1880,^ it is declared that unless hv written, acknowledged, and recorded contract between luishanJ and wife, that relationship be changed, the husband, transacting business with the means of the wife, as to all persons d'.'aling with him without notice, shall be held and treated as her agent and manager in business. It was held that, by fair and necessary im- plication from this statute, it secures to creditors the right to hold the wife to answer for all debts contracted by her luishand with her means in all cases in which there is not a recorded con- tract or notice to the creditor. If the credit is given to the hus- band, as her agent, she is chargeable as a known principal. If it ue extended to the husband in ignorance of the facts, she is liiihlo on discovery as an undisclosed principal. But she is respunsiblc as an undisclosed principal for those items on the account, and 1 Fun V. Rose, 1'2 lown, fi67 ; Hawke V. Urban, 18 lown, 83 ; Sineillfy «. Felt, 41 Iowa, 588 ; Miiiiiuardt v. Fliiiifiher, 60 Iowa, 148 ; Frost i;. Hakcr, 65 Iowa, 178. a MuCorinick v. Mertli, 49 Iowa, 536 ; Knssfill V. Loug, 52 Iowa, 250 ; Davis v. Ritchie, 55 Iowa, 719 ; Fitzgerald v. Mc- Ciirty, Ih. 702; Delaware Co. v. McDowell, 46 Iowa, 170. 8 Dunn V. Pickard, 24 111. Api). ^23, 427. * § 1826. 6 flark V. Hay, 98 N. C. 421. 6 Doiigliertv v. .Sprinkle, 88 X. r. 3(i'i; Wehstei- v. Laws, 89 N. C. 22.) ; State t. Lanier, 89 N. C. 517. T § 1177. PART IIF.] MARRIED WOMEN. 245 tliose only, bought for the use and benefit of tlie business trans- acted with her [(roperty, and the burden of proof is upon the sellers to show what items fall within that class.^ IJiit tlio connnon-law obligation of the husband to provide sujh |)lic8 lor his iuniily is not changed or modified by the statute, which liiis relation only to the debts contracted in the business in which the wife's ))roporty is cmi)l()yed ; nor is the wife's estate to be siihjectod to the ])ayment of debts contracted by the liusliand for family s'lpplies, on the ground that he, by devoting himself to her affairs. (ilMihlcs himself from making provision for the support of tile family.- Yet the ordinary ineid<'nts 'v^inectcd with the rcla- tioiishipof principal and agent apply to t'.iem; and where the hus- band is dealt with as the agent of the wife, and the goods sold are siieli as fall within the scope of his ap|)arcnt power to purchase, the wife will be liable, where the creditor sells to him in good faith as agent, though the goods purchased be ap|)ropriated for the support of the family ; for this is a matter to be settled be- tween the i)rincipal and agent, and the rights of the creditor are not to be affected by any sul)sequent misap[)ropriation by the agent either to his own use or to that of a third person.^ A married woman in Kansas advanced money to her husband with wliieh he bouglit goods. Subsequently, on selling the goods, the piireliaser in part jiayment therefor conveyed lands to the wife, which were afterwards sold. The court held, that even if there had been fraud between the husband and wife in the transaetion, while that might have been a ground to set aside the transaction itself, it did not make other property of the wife, wliicli she had owned long prior to the purchase of the goods, lia- ble to the creditors of the husband for his debts.* In Tennessee, a stock of goods was conveyed to a married woman by her father, with which her husband, in the name of liis wife and ostensibly as her agent, carried on business. He purchased other goods in the name of his wife, for whieli he gave a promissory note in her name. The note not having been pnid, the |ilaintitTs filed a bill in chancery, seeking to charge the wife's separate estate for the amount of the note ; her plea of coverture there heinir an answer to an action at law, as she is not charge- able personally with such debts,'' it being conceded that there was nothing in the contract stipulating for or creating a lien on the wife's separate estate." The court held that the contract of sale ' Piter f. Statcii,64 Miss. 421. • (^ildwell V. Iliiit, 57 Miss. 123. ' I'lt-r w. Stateii, 64 Mi.ss. 421, 426 ; Cul.lw,ll V. il;irt, hi Miss. 123. ♦ MiKiiimy V. Wiiid, 39 Kan. 279. * Jackson v. Rutledge, 71 Tenn. 626, 629. » Ragsdalo v. Gossuttt, 70 Tenn. 729, 736. ! • i ! .\ A Ml ^i'M 246 COMMENTARIES ON SALES. [book ir. \ i r," having been repudiated by the wife, the title to the goods solj would bo ill the vendors, and that chancery would conipd thu return of the property if in the possession or under tlio '-outrul of tlie feme^ but that other goods belonging to her could nut be charged with such a liability.'^ Down to 1887 ^ the common-law rule prevailed in Alabama, that tlio earnings of the wife, or such property as she aciinirud by her labor, skill, or economy, belonged to her husband ; the law re- garding her merely as a servant.^ But tlio husband might cuii- tract Avitli her, upon a suthcient consideration, to release such earnings, or he might by gift invest her with a separate estate in them ; and such renunciation of his marital rights, in the absence of actual fraud, will be upheld as valid, except as against existing creditors, who may avoid such gift as tliey could any other volun- tary transfer or conveyance.^ All that is required to this end is, that the evidence of the gift must have been clear, and it must have been apparent that the husband intended to devest himself of all right to them, and to set them apart to the separate use of the wife ; the essence of the whole transaction being the assent of the husband, clearly and satisfactorily manifested ; and this may be shown by evidence that the husband permitted the wife to carry on a trade or business, in her sole name and on her sole account, without any participation or interference on Ids part.* And lands conveyed to a married woman after debts had been contracted by her husband, but paid for by her out of piolits and earnings, which she had prior to the accrual of such debts, de- rived from her trade as a milliner, and constituting part of her separate estate, by reason of the assent of her husband that tliej should be hers and enure to her separate estate, were not liable to such debts." And it has been held there that the husband mav lawfully spend his owr. personal labor in improving the wife's estate, without any fraud on his creditors.^ And he may, with equal right and justice, permit his wife to enhance the value of her own property by her personal industry, and no creditor can complain of the act as a fraud on his rights.^ Where a woman after her husband's death paid off all of liis debts except one, and it was not proved that this was done in t i 1 See Nichol i\ Steger, 76 Tenn. 393, affirming same case, 2 Tunn. Cli. 328. 2 i-'ederlicht f . (ilass, 81 Tenn. 481 . 8 Ala. Acts 1886-1887, p. 80. * Gordon v. Tweedy, 71 Ala. 202 ; Evans v. Covington, 70 Ala. 440 ; Carle- ton V. Rivers, 54 Ala. 467. 5 Wing w. Roswald, 74 Ala. 346; Pink- ston 1'. McLemore, 31 Ala. 308 ; Cohalan V. Monroe, 70 Ala. 271. « Evans v. Covington, 70 Ala. 140, 412; Sha ♦fer v. Slieppard. 54 Ala. 244. " Carter v. Worthington, 82 .Ala. 331. See also Wing v. Roswald, 74 Alii. 346; McLemore v. Nuckolls, 37 Ala. (iiiJ. 8 Holt V. Sorrell, 11 Ala. 3Sti. 9 Sharp V. Sharp, 76 Ala. 312 ; Allen V. Terry, 73 Ala. 123 ; Crockett r. Li'le, 74 Ala. 301 ; Lee v. Tannerbauni, 62 Ala. 501. [book II. foods sold OlUpl-'l tli« ho <'()nti'ul could nut Alabama, ,C(\uiri;J by the law 10- ini;j;hl con- ilease such te estate in the absence list existing ither volun- this cud is, and it must ^•cst himself larate use of f the assent i ; and this ted the wife on her sole ,n liis part.* its had been profits aivl ;h debts, de- part of her d that they not liable to lusband may g the wife's Ic may, with ;he value of rcditor cau p.i KT III.] MARRIED WOMEN. 247 imrsuar ^ of an ncknowledgmcnt of an obligation to pay them, the nieio fact that she paid all such debts but one would not tend tu establish a liability on her part to pay that one.^ 1 Biiswaltcr v. raloiiiiircs, 66 C'al. 259. Sic, riirllii r, us to u iimnifd woman charg- iii" litr si'iiiiiiitt! estate, Solomon v, Gar- lan.l, 2 Miirk. (I). C.) 113; Stewart v. .Sinitli, ;t Mark. '281 ; Cooksou v. Toole, r.'.t III. ;")!;'); Spfiin;;!'. Liiuf;hliii, 113 Peiin. •jiUt; Ziiiii r. Noeilul, 113 Peiin. 336; Fowler r. Jutub, 02 Mil. 32ti; Uamoii v. Deevos, 57 Mich. 247 ; Hiil)l)ard i-. Biigbee, 68 Vt. 172 ; Rood V. Willey, 58 Vt. 474 ; Habe- nicht t;. Uuwls, 24 S. C. 461 j Hank of Lonisville v. (iray, 84 Ky. 565 ; Jordan v. Kecble, 85 Tenn. 412 ; Wan en v. Free- man, lb. 513 ; Eckeiley v, McGhee, lb. G61. •*v r t i. n Iff all of his ivas done i" \o Ala. 140, 412. lla- '^^^- „., In, 82 .Ma. S^*' ^,74 Ala. 340 ; Ala. «*J-' Ma. ;U2 ; Allen lockett r. L"j''' Terbaum, 62 Ala. mrr mil V. 248 COMMENTARIES ON SALES. [book H, BOOK n. PART IV. PURCHASES AND SALES BY SHIPMASTERS AS AGENTS OF NECESSITY. By the civil law the master of the ship had power to impawn the ship and tackle in case of necessity, if he had no other means to provide such tilings as were necessary for her ; and, ouiiy iu the seventeenth century, as far back as the time of Ilohnrt, the same principle was declared to be a part of the common law of England.^ In another old case ^ it is laid down that if the master of a ship contracts for the necessary repairs thereof, thi- binds the owner ; although in that case tiie master was not obi' to npair it, yet, inasmuch as the repairs were necessary to lie sjiip from foundering, the law enables him to bind the defendant by his contract. As the authority which the master possesses is pmely one which arises from the necessities of the case, the legality of his acts in any particular case will depend upon the fact, wlicthei' under the circumstances such necessity existed. If it did exist his authority is very extensive. Thus, when the safety of the ship requires it, he can jettison the deck-load or any other part of the cargo; he can sell the cargo or any necessary part of it; lie can have the ship repaired, and for such purpose can purchase such materials and have such work done as mav be necessarv ; ho can agree as to the terms of the salvage ^ of the ship and cargo. 1 Brulgenwn's Case, Hob. 11. 2 Manby v. Scott, 1 Siil. 109. 8 III the case of Houseman v. The Schooner North Carolina, 15 Peters, 40, the United States Supreme Court stated the well-established jn-inciples governing the rights of the master ;is an ngent Oi necessity iu eases of salvage, as follows : " We have no doubt that there may be cases in which the contract of the captain in relation to the amount of salvage to be paid to the salvors, or his agreement to refer the question to arbitrators, would bind the owners. In times of disiistir it is always his duty to cxccisi' liis l»jt judgment, and to use his best cxiitiiins for the benefit of th(! owners of Imtli ves- sel and cargo ; anil when from his sitiu- tion he is unable to consult thciii or tlii'ir agent without an inconvenient ami inju- rious delay, it is in his power to compro- mise a question of .salvage, and ln' is not bound in all cases to waii for the (loi:isioii of a court of admiralty. So, too, wiien [book II. ^vuT IV.] SIIIPMASTKUS AS AnFNTS OP NECKSSITY. 249 NTS OF o impiiwii icr nw.am i, otu'ly in oliart, llio ou law of aster of a binds tlie to rrpair lie sliip cndiuit by luroly one llity of his , whctlicr did exist ity of the icr part of of it ; he purchase Issary ; lie ,nd cargo, liitors, woulil ])f tlisiis'iT it list' lii:* '"■*' [of biitli ves- 111 his sitiw- Ihoiii i>r thfir lit and iiiju- |r to cniiipro- ,1 111' is not I till' ilecision too. wlitn iiiid, in oxticnio cases, he can sell and pass a valid title to tlio prop- eitv in l>oth ship and carjro. The principles by which he is to be (rovciiH'd in such ea.soa will appear by the authoritie". wo cite. Tin- sale of a ship becomes a necessity within the nieaninj^ of the couuiii'feial law, when nothing better can be doni* for the own r or those eoncerneil in the adventure. If tht^ master, on hi.s I'.irt, has iin honest purpose to serve those who are interested iu slii|) and carji^o, ami can clearly prove that the condition of his vessel n(|iiir('d him to sell, then ho is justilied. As the power is lialile to aiuise, it must l)e exercised in the most perfect j^ood faith, and it is the duty of courts and juries to watch with great care tlic t'unduet of the master. In order to justify the sale, good faitli in making it and the necessity for it must both concur, and tilt' piiichasi'r, to protect his title, must be al)le to show this eon- cunvnce. The (piestion is not whether it is expedient to break up a voyage and sell the shi|>, but whether there was a legal nc- Cfs.sity to do it. If this can be shown, the master is justilied; otherwise not. And this necessity is a question of fact, to bo (iotriniined in each (;aso by the circumstances in which the mas- ter is placed, and the perils to which thr ]»roperty is exposed. If the muster can within a reasonable time consult the owners, lie is riMpiircil to do it, because they should have an opportunity to decide wiii'ther, in their judgment, a sale is necessary. And ho sliuidd never sell, when in port with a disabled ship, without hrst calling to his aid disinterested persons of skill and experience, who are competent to advise, after a full survey of the vessel and her injuries, whether she had better be repaired or sold. And altlidngh his authority to sell does not depend on their reeom- niciidation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnisli the court or jury reviewing the proceedings, strong evidence in justilication of his conduct.^ These principles were applied in the case of The Amelie. There, when the voyage began, the ship was seaworthy and well provided, but after she liad been at sea a short time she became the sulv.ii,'!' service has not liccn iinimr- taiit, ami the coiiiin'iisatioii cloiiiaiKkvl is a small diu-, jt may often \h: tlic interest of the owiit'i'.s that the aniomit should be si'ttli'cl at oiii'e i)y the caiitaiii, ami the Vfssil iHoci'ed on her voyaj^e, witliout wait- iiij; I'Viii a dav for the jmrpose of consult- iii;,' thciii. But in all such cases, unless tile acts (if the enptain are ratilieil by the owners, his roiiduet will be care'fully wiitrlii-d ami senitinizedby the eourt, and liisioiitijits will not be" regarded as bind- iii<; niioii the jiarties concerned unless they Rlipeur to have been bond fide, and such as .1 discreet owner placed in the like cir- cumstances would |irobal)ly have made. If he settles the amount by agreement, those who claim under it must show that the salva<;e allowed was reasonable and just. If he refers it to arbitrators, those who claim the benefit of the award must show that the jn'oceediiigs were fair and the referees worthy of the trust." In this case the acts of the master were very strongly comlenined, and set aside a.s un- justifiable and illegal. » The Ainclie, 6 Wall. 18. 250 COMMENTARIES ON SALES. [book II. mi' ■^liiiil'; ^il disabled during a violeiil storm, and with great difficulty was taken into the harbor of Port au Prince. Tl e niastcr at once en- tered his protest before the Dutch consul-general (the ship being owned in Amsterdam), who caused three surveys to be made of the condition of the vessel. No action was taken on the first sur- vey, but the result of the second was the incurring of an expense of SIOOO in portial repairs, decided by the surveyors to bo pi-acti- cuble, who recommended the partial repairs in order that the ship should be put in a proper condition to proceed on her voyage to Boston. In making these partial repairs, one of the sides of tlie vessel was uncovered, disclosing additional damages of a serious character, not previously ascertainable, which caused the consul- general to order a third survey. This third and final survey was thorough and complete, and was made by Lloyd's agent, the agent of the New York underwriters, and three masters of vessels, who reported fully on the facts, and advised that the vessel should be sold. The vessel was accordingly sold at public auction for $407. The purchaser took possession, repaired her at a cost of #1695.31, and sent her to Boston. She was then libelled by one Fitz, a cargo owner, part of whose cargo had been sold by the mas- ter without accounting for it. The vessel was sold for ;f'2138 ; the purchaser expended |il43 for additional repairs, took off her cop- per, which he sold for -fllST, and sent her to England, where she arrived after a good deal of bad weather, appearing staunch and strong. Fitz claimed the proceeds of the sale. The District Court dismissed the claim, and the decree was affirmed by the Circuit Court. On appeal to the Supreme Court, the decision of the courts b«'!ow was sustained. The court held that, after the advice given in their report by the surveyors, than whom no per- son could bo more competent to advise, or from the nature of their employment better acquainted with the structure of vessels and the cost of repairing them, the master, who was bound to look to the interest of all parties concerned in the adventure, had no alternative but to selL In the fa3e of the report, had he prncoodcd to repair his vessel, he would have been culpable. Being in a dis- tant port with a disabled vessel, seeking a solution of the diHieul- ties surrounding him, at a great distance from his owners, with no direct means of communicating with them, and having irood reason to believe the copper of his vessel was displaced, and that worms would work her destruction, his most proper course to pur- sue was to obtain the advice " of that bodv of men who, Itv tlie usage of trade, have been immemorially resorted to on riuch occa- sions." * The court were of the opinion that no prudent man, 1 Gordon v. Mass. Ina. Co., 2 Piuk. 264. PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. under the circumstances, would have failed to follow their advice, and the state of things as proved in this case imposed ^ji the master a moral necessity to sell his vessel and reship his cargo.^ ing out of the ultiiiiii'.e oliject "I' tho whole adveiituiv, thiTu iiiu>it be a jiowtT ill the nuistt'i' not only t.- hyjiotheciitc the ship, but the ciiigo. Tl.iit jiowcr of the master does not arise oih' ol tl\e bill of liuling, nor out of the eharti'r-iiaity, be- cause it may exist where there is neither bill of lading nor ehartcr-jtarty. It arises out of the eontraet ol r.iaritinio carriage, by the shijisnent of grjds on boaril a, ship lor the imrjiose of bci ig earrietl from ono country to another, a id il exists the mo- ment the goods are ]>ut on board for Mich a ptirjiose. It is reguhilru, and often lim- ited, by terms in the bill of hiding, or by terms in the charter-party; but unless such terms speeilically do away with this authority ol the master, the authority of the master existi' by virtue of the contract whicli arises between tlii' shijiowncr and the cargo-owner by the shii'ment of the gutds. It is not necessary to decide whitlier this authority is given to the master by way of contract or by means of the h.w."' 'J'lien, again, as to the law in the nuittrr, when the ship is an Knglisu ship : " Now, if thif. ship had been an Knglish ship, if the <'aptaiu had been an Kngiish master, and if the owners of the carg-i had been Knglish Siibjects, t!;ere is no doult that the master would have liad no authority to bind the owners of the cargo unless cerlain necessities had arisen. The ship must have been in a state of dis- tress, and in a port of distress where the owner of her iiad no means or credit by vvliieh to find the money reipiired for doing the necessary rejiairs ; and bi sides this, in oilier to re(|iiire the hypothecation by bottomry of the cargo, the value of the siiip must not of itscll be large enough. Jlorcover, il this had been an English ship and an Knglsh raiitain, even th.)Ugh all these necessities l.ad existed, yet tho nii'ster would not be authorized to cliargo the cargo il before dning so he had tho mciiiij of conimuiiicatiu" i'h the owner of the cargo within a reas liable time, so that on receiving notic'' li e owner of tho cargo mighi; iliter!!;'ni >i '."iher he woiilil allow the cargo to ; " iiottoniried, or whether he would take other means for the ilis|K).sal of the cargo." The (Jaetano and Maria. 1.. H. 5 I'r. Piv. at ).. 143. See Tlie Haniburgli, Br. & Lush. 2i>'i: The (iratitudine, :3 R )b. Ailm. 24(1; The Buonaparte, 8 Moo, 1'. t". 4[>9 • 1,1. ivd i'. (iuibert, L. 1!. 1 i). B. ll.'i; The Ka'rnak, ].. H. 2 I'. V. .003; Khimoort v. The Uassa .Marittiinn, C App. Cas. ITjO. The piiueii'les relali"-^ to the right of 1 The court continued : " I5i,t it is said, llie fact that the vessel was repaired by tlie purchaser and sent to Boston liis- piovis this necessity. Not so. It uuiy teiul 111 prove that the surveyors 'vere tnis- takiMi. but dues not alfect the ipiestioii of the 'iiity of the master to follow their aiiviuc, when given in such strong terms, anil with no evidence before him that it was ciiuiicous. but, in fact, tho surveyors dill not err in their conclusion that the ve.ss<'l was not worth the cost of repairs, as till' .;:Mouiit in the registry of the court for wliiili the vessel was sold in Boston will lull to reimburse the claimant the inoiie.y ex|ienileil by him in purchasing and rijiairing her." The Amelia, 6 Wall, at ]>. 211. See The (Jla.sgow, 1 Swabey, 150; The Australia, lb. 484; The Mur- gttivt Mitchell, Jh. a82. Ill dealing wiih the power of the mas- ter ol a ship to bind the car") for neces- saries, ill The Gaelani) and Jlaria, L. R. 7 Pr. l»iv. 137, 145, Brett, L. J., said : " 1 doiiht myself (b'l.t it is not necessary ti) ili'iiilc it in this case) whether the mas- ter is ever the agent of the owner of the car^'o. The master is the agent of the owner of the ship, and it may be that the niiiMti'i', as agent of the owner of the ship, has certain riglus with regard to the cargo. But siiiipose that the master can be, under circiiiiistances of necessity, the agent of the owner of the cnrgo, out of what does the authority of the master arise ? Now, this aiitliority of the master of the siiip to hypDtlit'cate the sliip or cargo is pvculiar. Uitois not arise merely out of a contract of hailniint, for that contract gives no suoli right. It does not arise even out of a I oiitiiiit of c.irriage on land. I doubt wlii'ther it arises on a contract of sea car- liaf.;.-, where it is all within tiie realm; but it is not necessary that this .should be now ilt'i'ided. It does arise where goods arc sliiiiiied on board a ship to Ik.' carried fimii one country to another. That is ac- kiiowliilged by the niaritinie l.iw of Kng- laiid, and, ns far as I know, is eipially aikiiowliilged in e\ery maritime country. It tirisn; from the ncassilij »:' Ihiiiija ; it arises Iroiii the chliiratioii if the ship- fiwiier aiiil (he master to carry the goods from line country to another, and from it heing inevitable from the nature of things tliai the sliip and cargo may; at some time orotlir, he in a strange jKirf, where the laptai I may be without inean.s, and where the s lipowner may have no credit, l)e- ^aiisi he is not known there ; that, for the safety of ull concerned and for the carry- 252 COMMENTARIES ON SALES. [book II. The Lizzie sailed from Minatitlan, January, 1866, with a cargo of mahogany and cedar, for the United Kingdom. Having suf. the shipmaster to sell the ship and her apparel are considered by the United States Supreme Court in The New Eufr- land Insurance Co. v. The Sarah Ann, 13 Peters, 387. As the whole question is considered by the court in their inquiry as to what is the rif;ht of the master to sell a ship in the event of an admitted stranding, we quote fully from tlieir judg- ment, in whidi they say : " This involves tiie necessity for a sale, in the circum- stances under which it is done, to make it justifial)le in tlie master, or otherwise. All will agree that the master must act in good faith, exercise his best discretion for the benefit of all concerned, and that it can only be done upon the compulsion of a necessity, to be determined in each case by the actual and impending peril to which the vessel is exposeii ; from which it is jtrobable, in the opinion of persons competent to judge, that the ves- sel cannot be saved. This is, as it is de- cided in some of the English courts, an extreme necessity. The master nui.st have the best information which can be got, and must act with the most pure good faith. So says Lord Ellenborough, in Hayman v. J'olton, 5 Esp. 65. " xt is also properly termed a moral necessitj', becai.se when the peril and in- formation concui, as we have just stated, it then becoini'<; an ' urgent duty upon the master to sell for the preservation of the interest of all concerned.' It should not be termed a legal necessity, as it is in the argument of the counsel for the liliel- lants; for though the necessity, informa- tion, and gooil laitli of the master will make the sale legal, the term ' legal ' is not descriptive of tlie prerequisite upon which the master's right to sell depends. Nor can the necessity for a sale be denied when the peril, in the opinions of those capable of forming a judgment, makes a lo.ss probable ; thoiigli the vessel may, in a short time afterwards, be got oil" and put alloat. It is true, the o])inion or judgment of competent jiersons may be falsified by the event, and tliat their jmlg- ment may be shown to have been errone- ous by the better knowledge r',' other persons, showing it was probalile the ves- sel coulil have b.'en extri Mted from her peril, without great injury, or incurring great expense ; and the master's incom- petency to form a judgment or to act with a proper disrretion in the case, may bo shown. Hut from the mere fact of the vessel having been extricated from her peril, no presumption can be raised of the master's incompetency, or that of his ad- visers. It is right, also, to test the pnril in which the vessel may be, by infoiination of the Ircality v. here she is stranded, by the season of the year, and by a conqiari- son of the number of vessels lost or saved which have been driven on the .same lieaeh or shoal. But in doing so, tlioii;;h it shall be found that a larger number of ves.sels stranded have been got ofi' tlian were lost on the same beach, it is very diliicult, in a case of stranding iiium a shifting beach of sand, with the wind blowing hard on shore, and in a month when the Ainh are usually strong (uid stormy, to disprove the necessity lor tlie master to sell by what raiiv have hapiienwl in other ca.ses. The evidence taki'ii in this case establishes that five to one nf the vessels stranded where the Sarah Aim was driven on tiie beach have been altogether lost. The evidence in such a case, and under such proof of the loss of vessels there, must be ve.y strong before it can prevail to show that there was no necessity for tiie master to .sell. It must also lie proved, in a particular case given, that the means in the master's power, or which he may command from tliose to gcft his vessel off, had not been applied, and thiit there would have been wliat we shall call, and what ought to be so estecinid, a controlling difference between the value of the vessel, as her condition may be when she is sold, and the expense to be iiicniwd in getting her off. Nor will any asccr- taiiiiiu'nt of the cost of repairs, subsi'i,.i(nt to the extrication of the vessel, raise a presumption against the necessity to sell, wh.itever may be her condition as to strength, and though she may not lu' in- jured in the hull, if the actual and nn- mediate prospective danger menaces a )irobable total loss. We tliink such was the Sarah Ann's danger. The court, then, having stated its opinion as to what makes an extreme necessity, it lollows that it cannot be laid down as a universal rule, that the master's power to sill is limited to cases of extreme necessitv in a foreign port, or in a port of the I'nited States of a different State than lli; t to which the vessel Mongs, or in whieh her owners may bo or reside when the necessity occurs. " The true criterion for detorminin2 thi- occurrence of the master's autlmiiiy to sell, is the inquiry whether the owners or insurers, when they are not distnnt from the sceiu! of stranding, can, by the laili- est use of the ordinary means to ((invey intelligence, bo informed of the sitnation of tlie vessel in time to direct the master tt'( value of be when inclined raise a y to sell, oil as t(i ot be ill- ami nil- liaees a such was eoiirt, to wliat I'iiIIdws universal ) Sfll is ssitv ill a I'liited ii 111. ! to liiili lier nei'e>>ity PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 253 fered sea damage, she put into Key West, Feb. 27, and tliere prop' crly underwent some necessary repairs which detained her until May 21. The master, not being able to raise money on personal security to defray the expenses of the repairs, gave a bottomry bond, dated May 19, on the ship, freight, and cargo. The mas- ter, before hypothecating, did not communicate with the owner or consignees of the cargo by reason of the groat delay and un- certainty in the transmission of letters from Key West at that time. The vessel sailed on May 21, and arrived at her port of destination on July 2. A suit having been instituted against the vessel for freight and cargo by the holders of the bottomry bond, tlie validity of which was contested by the consignees of the cargo, it was held that, under the circumstances, the master was not bound to communicate with the consignees before hypoth- ecating, and that, therefore, the bond was binding on the cargo.* befmeslie will probably be lost. If there is ii i)iolialiility of loss, and it is made more liazanloiis by every day's delay, the master may then aet promptly, to save somethiiif; lor the beiietit of all concerned, tlioiifili but little may be saved. There is uo way of iloiiij; so more efleetual than by ex|w.siiif,' the vessel for sale ; by which the eiiterjirise of such men is broiif^ht into comiMtitimi as are aeenstoined to encoun- ter siuli risks, and who know from expe- rience how to estimate the jirobable ]irolits and losses of such adventures. And we hero sny that the power of the m;ister to sell the hull of his stranded vessel exists also as to her ri^f;ing and faith and sound discietion of the master. This certainly, in the case of such sales at home, gives to the owners of a stranded vessel a stronger guard against imposition and fraud, tliaii they can have in sales made in a foreign port ; and serves to support the correctness of the o])inion that the mastci's power to sell is not confined to a foreign port, or to a stranding in another Stiite. This doctrine holds out no encouragement to the master to sell I it gives liim no facility to sell, when it is not authoii/ed by necessity clearly made out, and exercised with good faith and sound di.scretion." 1 The Lizzie, L. U. 2 Ad. & £c. 254. ! >. 1 ' ■ V 'II J * I ' ii n i'^ - Mill t? J. Ill ' r.l till i ■ s '•ill '■ i ! II 1 til 1; 254 COMMENTARIES ON SALES. [book II. The following principles were acted on in the case of The Kar- nak : ^ 1. That it is the duty of the master before resorting to bot- tomry, to communicate or to endeavor to communicate witii the owners of the cargo as well as with the owners of the ship, if, in the circumstances, it be feasible. 2. Where a master fails to obtain funds from the owner to pay for repairs which the necessities of the ship compel him to order, he is warranted in raising money on bottomry of ship, freight, and cargo for that purpose from per- sons other than those who had supplied such repairs. 3. In tlic case of a bottomry bond for money already supplied without any previous agreement, it is to be presumed, in the a' jcnce of all evi- dence, that the foreign lender made his advances in contemplation of bottomry security, and this presumption is increased where the lex loci empowers the lender to arrest the ship in satisfaction of his demand. 4. The question whether money advanced is to be considered a loan or an advance of freight, must principally de- pend upon what appears upon the face of the instrument.^ PA age In delivering the judgment in this case Sir Robert rhilliiiiore said : " Now the principles of law wliich I must apply to this case are those laiihI- son, 278. In Beldon v. Campbell, fi Kxch. 886, Parke, B., said : "The master is ap- kkf PART IV.] SHIPMASTERS AS AGENTS OF NECESSITY. 255 A vessel being in distress at Cuba, the master applied to B.'s agents there for an advance of money for necessary repairs. The agents, after telegraphing to B., who resided at Liverpool, received B.'s authority to make the advance on bottomry of the vessel, and this was done. B. was second mortgagee of ^'ic vessel, and knew at tlie time he authorized the advance that the owner was insol- vent, and that he and the first mortgagee both re idcd in Liver- pool ; but before authorizing the advance, he did not, nor did the pointed for the purpose of conducting the iiavig.'.tion of the sliip to a favorable ter- mination, and he has, as incident to that eni|iloymcn', a right to bind his owner for all tliiit is I'ecossary, — that is, upon the legal maxim, 'quundo aliqnid mandatur, mnndatur ft oinnc per quod pcrvciiitur ad illud.' Coiise(inently the master has per- feet authority to bind liis principal, the owner, as to all the repairs necessary for the purpose of bringing the ship to its port of destination ; and he has also power, as ineiiliMitiil to his appointment, to bor- row money, but only in cases where ready money is necessary, that is to say, where certain payments must he made in the course of tiie voyage, and for which ready money is reijuired. An instance of this is the payment of port dues, which are re- quired to be paid in cash, or lights, or any other dues which require immediate cash payments. So, also, vhere a ship being at the terniiniition of one voyage, and alwut to proceed on another, money bor- rowed to pay the wages of seamen, who would not go on the second voyage with- out being paid, was considered necessary. Robinson v. Lyall, 7 Price, 592. But these instances do not apply where the owner of tiie vessel is living so near the spot as to be conveniently communicated with. In that case before the master lias any right to make the owner a debtor to a third person he must consult him, and see whetlier Iin is willing to be made a debtor, or wiiether h" ".'ill refuse to pay the money." In the ease of The Karnak, L. R. 2 Ad. & Kc. 2S!», 30!), Sir Robert I'hillimore, in referring to his decision in The l,izzie, L. R. 2 Ad. & Kc. 254, .says : " In the retjent case of The Lizzie I stated at length my view of tlie law which has l>een laiil down witii respect to tiie duty of the master to communicate with the owner of the cargo before he hypothecates it. That duty arises from the peculiar character of his relation as agent for the shipjwr, a rela- lion freed upon him for the nonce by a tnijinmrtj nere/t/tih/, and therefore different from his original and abiding relation as s^ont for the owner of the ship. It must be o'.)scrved, however, that the law docs not say that the necessity of communicat- ing with the owner of tlie cargo is ditler- ent in kind from the necessity of commu- nicating with the owner of the ship ; but there mu.st be a separate communication, if in the circumstances it be feasible, with both. Keferring to my judgment in The Lizzie, it is only necessary to state here that it is, generally s])eaking, the duty of the master to conmiunicate with the owner of the cargo. The law looks with .jealousy upon the exercise of authority by the mas- ter over the cargo." Lord Stowell, speak- ing of the master's aiithority with respect to the cargo (The Gratitudine, 3 C Kob. at p. 261), observes : " It is the same con- sideration which founds the rule of law that applies to the hypothecation of a ship. In all cases it is the prospect ot benefit to the proprietor that is the foun- dation of the authority of the master. It is therefore true that if the repairs of the ship produce no benefit or prospect of benefit to the cargo, the master cannot bind the cargo for such repairs ; but it appears to me that tiie fallacy of the argu- ment that the master cannot bind the cargo for the repairs of the ship lies in supposing that whatever is done for the repairs of the ship is in no degree and under no circumstances done for the lien- efit, or witii a jirospect of a benefit, to the cargo ; whereas the fact is that, though the prospect of benefit may be more direct and more immediate to the ship, it may still be for the preservation and convey- ance of the cargo, and is ju.stly considered as done for the common benefit of both ship and cargo." .See The Hebe, 2 W. Hob. 14ti ; The Piince George, i Moo. P. C. '..I ; The North Star, Lush. 45 ; The Kdmond, Lush. 57 ; The Ht-r.sev, 3 Moo. P. C. 7i» ; The Ariadne, 1 W. Kob. 411 ; The Osmanli, 3 W. Hob. 198 ; Heldon v. Campbell, 6 Kx. 86 ; The Gosfabrick, Swat). 344 ; The Aurora, 1 Wheat. 96 ; The Laurel, Br. k Lush. 191; The Alex- ander, 1 Dod. 278 ; The Vibilia, 1 W. Rob. 1 ; The Prince George, 4 Moo. P. C. 21; Robin.son v. Lyall, 7 Price, 592; The Augusta, 1 l)od. 283; Tiie Zo- diac, 1 Hagg. 320; The Lochiel, 2 W. liob. 31. fifjt I fill; ' it Hi? ml ilU: { ■ M m ! t : 'i : l\ 256 COMMENTARIES ON SALES. [book II. A.v^',n': J ■< &;. . i;!'-^l! master, communicate with either of these. The first mortgairee contested the validity of the bond. It was held that the bond was invalid, for that, under the particular circumstances of the case, I], ought to have communicated with the owner before authorizinir his agents to enter into the bond.^ In this case, it was found that all the charges were quite proper; that the bottomry premium was not excessive ; that there were none of the items which could have been stricken out ; and that the recourse to a bottonuy bond appeared to have been a matter of necessity ; but, altliougli tlie owner was insolvent, as he miglit have thought it expedient. had he boon communicated with before the bond was onicicd into, to have endeavored to raise money, either through his cred- itors, or from the first mortgagee, or from some other source; in absence of such communication, the bond was pronuunced invalid. The same doctrine was held in The Onward.^ There an Amer- ican vessel laden with a cargo of timber, in the prosecution of a voyage from Moulmein to Queenstown for orders, sustained damage, and was compelled to put into the Mauritius to repair and refit. She arrived there on June 11, 1870, and her master, being without fimds, placed the ship in the hands of U. it Co., a firm at the Mauritius, and they, before any attempt had been made to obtain money on the personal credit of the owners of the ship, who were allluent merchants in New York, proposed to ad- vance money for the repairs on the master's draft on London, on liis giving a bottomry bond on the ship, freight, and cargo, as col- lateral security. The master and H. & Co., on July 10, wrote to the owners of the ship, informing them of this proposal, and on the same day, the master and H. & Co. wrote to the own- ers of the cargo, informing them that the vessel had sustained damage, and would have to undergo repair ; but the letters to the owners of the cargo omitted all reference to the pro|)oscd loan on bottomry, and informed the owners of the cargo that they should hear further particulars by the next o|)portuuity. The letters written by the master and H. & Co. to the owners of the ship were forwarded by the owners of the ship to the owners of the cargo; but the owners of the cargo did not receive liiese letters till Sept. 8, when it was too late for them to loni- municatc with the master by post. On Oct. 13, after tlie re- pairs had been completed, the master gave bills and executed a bottomry bond on the ship, freight, and cargo, accordinir to the terms of the proposal made by H. & Co., which had long » The Pannma, L. B. 2 Ad. & Er. 390. « L. R. 4 ^l & Ec. 33. PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 257 before been assented to by the master. TIic bills were mado pay- able to 11. & Co., and were drawn on B. & Co., H. & Co.'s agents in London, at ninety days' sight. 11. & Co. gave the master a memorandum, stating that the bills were taken as collateral secu- rity, and that the bond should be cancelled on the prompt pay- ment by the owners of the vessel to B. & Co., of the amount of the bills. On Oct. 15, the ship sailed from the Mauritius, and safely arrived at Liverpool, her port of discharge, on Feb. 7, 1871. After tiie ship had sailed, the owners of the cargo were for the first time informed by letter from H. & Co., that the bottomry bond had been given. The bond was transferied, and the bills of exchange were indorsed to B. «fe Co. Neither the master nor the owners of the vessel had any funds in the hands of B. «fe Co., and they neglected to provide funds to take up the bills, and informed B. & Co. that they had determined not to take up the bond. Proceedings in admiralty were instituted by B. «fe Co. against the ship, her freight, and cargo. No appearance was entered ou behalf of the owners of the ship and freight, and the judge pro- nounced for the validity of the bond as against the ship and freight, and condemned the ship and freight in the amount due in the bond. The proceeds of these not being sufiicient to satisfy the bond, the plaintiffs carried on the suit against the cargo. The owners of the cargo appeared and defended the suit. The princi- pal question raised in the suit was whether the bond was invalid so far as related to the cargo, for want of sufficient communica- tion with the defendants, It was also claimed that tiie master shouhl have transshipped the cargo at the Mauritius ; and Sir Rob- er, PhlUimore held that it was competent for the defendant to set up ilie special defence that the master, being in the circumstances, and Ijy the force of necessity, the agent for the cargo, should have transshipped the cargo rather than have contracted a loan on bot- tomry. I>ut as it would have involved an amcndniciit in the plead- inirs to have raised that question, it was not pros-^cd. The court held that suflicicnt communication had not bi'cn had with the owners of the cargo, and the bond was declared invalid. In doing so, it was laid down as a ^k)ctrinc at which the English courts have slowly but steadily arrived, that, according ^o the law, the master is always llio agent for the ship, and in ' jcial cases of necessity the atrent for the cargo also. Ho h the appointed agent to the former; the ii; voluntary agent of the latter. 'I'hat, flowing from these jirinciples of jurisprudence, the conactpience flows, that when the circumstances permit, the master must communicate with the owne- before he does any acts which seriously affect VOL. I. 17 i! ; •.-H ni;l 1 III I n! i i 1 258 COMMENTARIES ON SALES. [book II. i the value of the ship in the one case, or of the cargo in the other.^ The Australian Steam Navigation Co. v. Morsc,^ is another case whicli decides that the authority of a master of a ship to sell the goods of an absent owner, is derived from the necessity of the situation in which he is placed ; and consequently, to justify his selling, he must establish a necessity for the sale, and inability to communicate with the owner. Under these conditions, and by forco of them, the master becomes the agent of the owner, not only with the power, but under the obligation, within certain limits, of act- ing for tlie owner ; but he is not in any case entitled to substitute his own judgment for the will of the owner, in selling the goods, where it is possible to communicate with the owner. The possi- bility of communicating with the owner depends on the circum- stances of each case, involving the consideration of the facts which create the urgency for an early sale, — the distance of the poit from the owner, the means of communication which may exist, and the general position of the master in the particular emergency. Such a conununication need only be made when an answer can bo ol> tained, or there is a reasonable expectation that it can be obtained, before the sale. Where, however, there is ground for such an expectation, every endeavor, so far as the position in which ho is placed will allow, should be made by the master to obtain the owner's instructions.'^ 1 The Onward, L. K. 4 Ad. & Ec. at p. 51. Oil the nuestidii of coniinuiiioation see Tlie Buoimpaite, 3 Hob, 2!)8; 8 Moo. P. C. 4.59 ; Olaseott v. Lung, 2 Phillii)S, 310 ; The Cargo ex Sultan, Swab. 504 ; The Hamburg, Hro. & Lush. 253, 273 ; The Lizzie, L. R. 2 Ad. & Ec. 254, 259 ; The Panama, L. K. 3 P. C. 199 : Tlie Kar- nak, L. R. 2 Ad. & Eu. 289 ; L. I{. 2 P. C. 505 ; The Lord Coclirane, 2 VV. Hob, 320 ; Duncan v. Benson, 3 Ex. 644 ; The Grati- tudine, 3 C. Rob. 240. i L. R. 4 I'. C. 222. * Ibid. The cases in this country are very generally to the same effect as those cited l)y us in the above notes. We examine some of the numerous cases which have been decided in the State and Feileral courts of this country. A ship by stress of weather had been driven out of her course. The court held that, the charge of the cargo devolving upon the master, it was his duty to take proper care of it. 'u such case the master has power to sell goods which are damaged or of a perishable nature.* But those which are in good condition and not i^rishable he has no right to sell without the order of the owners, to whom he is liound to give immediate information. If he sell with- out justification he makes himself person- ally liable. Smith v. Martin, 6 Binii. 262. In Butler v. Murray, 30 N. Y. 83, it was held that the master of a vessel is for most purposes the agent of the owners of the ship and cargo ; but that agency does not extend to a sale of either unless there is a necessity at the time for so doing ; and this, citing Lord Ellenbor- ough, Abbott, C. J., an(i Bayley and Piirk, JJ., "must be an appnvnt necessity;" "a case of absohile necessity ; " "a case of inevitable necessity ; " or, as was lielil in Bryant v. Commonwealth Ins. 'c, 13 Pick. 543, 551, "a neccisili/ or, as it is sometimes expressed, a legal neces'iifii, be- fore the master' can sell." The ccv.irt lieM that in order to justify the .sale o! ii cargo at an int"rmediate |>ort sevcnil thing's must concur. (1) There must be ;i neces- sity for it arising cither from the nature or condition of the jiroiierty, or from the inability to comi)lete the voyage liy the same ship or to procure another. ('2) The captain must have at^ted in good faith. (3) He must, if practicable, consult with the owners before selling. Butler v. Mur- ray, 30 N. Y. 88 ; The New. Eng. Ins. Co. V. Brig Sarah, 13 Peters, 387. Parker, C. J., in an old Massachusetts ^VRT IV.] SHIPMASTERS AS AGENTS OF NECESSITY. 259 Tlie principle is well established by numerous cases, that the master oi a ship being an agent of necessity, his agency is limited case, Oonloii v. Mass. Fire & Mar. Ins. Co., 2 rick. 24!>, 201, suy3 : " It is oer- tiiiii that the iiiiister of a vessel as such bs IK) luithdiity to sell tlie vessel or the cari'i) uiili'ss in a case of extreme nccessUij, iimrwluii' he acts with the most perfect guoil f:iitli for the interest of tiiose who aiv coiiecrnetl in the jjroperty. Tlie very grmiinl uiiou which the authority rests, iiiimily, i.r/rcme acccssilij, is j)re;;nant with uiu:iTt.iinty, as the facts which create it will vary iii their elfect ujion minds ditfer- intly constituted. ... I think we may tike it to lie established law that the mas- tiT of a vessel ins\ired, which has received damage by the perils of the sea, may in cases of necessity sell the vessel, and that ii|Hin a sale so occasioned may be founded ailaiiii ajjainst the underwriters for a total loss ; wlietlicr with or without abandon- iii'Mit h. another question for consideration. Whetlier such necessity existed or not must be always a tjuestion of fact for the juvy. Tliis necessity must be of a moral nature, resultinj; from certain facts and cireunistances, which are to be judged of first by the master himself, and afterwards rejudtjed by a jury, and perhaiis, willi soino strietiiess, on account of the danger there may lie of an abuse of this authority by I'oliusioii between the master and the own- ers to the prejuilice of the underwriters, or by the i'niud of the master alone to .iiiswer some private purpose of his own, or to delVaud the owners (See Somes v. SuRrue, 4 (.'. & I'. 276 ; Pata|)sco Ins. Co. r. Soutligate, 5 Pet. 621). iJut the jury will judge of the conduct of the master from the state of things at the time and jilaco when and where the sale took place ; Irom the conduct of the master in the measures jireliininary to the sale, and from the actual circumstances attending it. If the ve.asel has met with any consid- erable sea damage, tlie usual course is to ohtniu the opinion of competent j)ersons iis to till! degree of injury, the means of rcpairuig it, ami the titness or unfitness of cneoiiiitering the e.\pense which may have been necessary. These opinions, founded oil facts which are known to the persons composing the board from actual ohservatioii, and from personal e.vamina- tion of the vessel, though not conclusive, are certainly very strong evidence of the condition of the ves.sel, and if the pro- priety of repairing her or L caking her up as unfit for repair." Anu see Smith r. Robertson, 2 Dow, 479 ; Milles v. Fletcher, 1 Doug. 234 ; Green v. Koyal Kx. Ass. Co., 6 Taunt. 68 ; Idle v. Koyal Ex. Ass. Co., 8 Taunt. 765 ; Hayman' v. Molton, 5 Ksp. 6.5 ; Thormdy v. Hehson, 2 B. & Aid. 518; The Gratitudine, 3 Kob. Ad. 240 ; The Hettv Catheart, 1 Kob. Ad. 220; Hall v. Franklin Ins. Co., 9 Tick. 477; Winn v. Columbian Ins. Co., 12 Pick. 282 ; Ihyant v. Cominonwealtli Ins. Co., 6 Pick, isi ; Carman v. Meabnrn, 1 King. 243 ; Freeman v. Kast liulia Co., 5 B. & Aid. 617; Fanny ami Klmira, Kdw. Ad. 117; The Schr. Tilton, 5 Ma'^on, 475 ; American Ins. Co. v. Center, 4 Wend. 52. See the distinction as to a sale by a master as to the owners, and a sale by a master to bind the insurers. Idle v. i{oyiil Kx. Ass. Co., 8 Taunt. 755 ; The Schr. Tilton, 5 Mason, 475; American Ins. Co. v. Center, 4 Wend. 52. It is the well-known rule on the sub- ject, that to warrant a sale, it must be made to apjiear to the satisfaction of the jury, not only that there is an actually existing, in- evitable necessity for breaking up the voy- age and abandoning the ship, but that in determining upon that measure the master acted with competent skill and judgment ; with due care, diligence, and attention, and with strict fidelity. In testing the con- duct of the master in these [larlicuhirs, it is not an unfit illustration to incpiire how a prudent and discreet owner, interested to the amount of the property, would act under like circumstances. It furnishes, at least, a test of the honesty and sincerity, the zeal and perseverai.re with which ho acts, for the lienefit of those concerned in the preservation of the juoperty under his charge. Winn t>. Colnmbiau Ins. Co. 12 Pick. 279, 286 ; The Patapsco Ins. Co. v. Southgate, 5 Pet. 604 ; Uobia. on i;. Com- monwealth Ins. Co., 3 Snnui. 2'.:7. It wius held in Pike i>. Balcli, 38 Me. 3U2, that if the voyage be broken up, in the course of it, by ungovernable circumstances, the master, in that case, may even sell the ship or cargo, jirovided it Ik- done in good faith for the good of all concerned, and in cases of supn'iiie necessity which sweeps all ordinary rules before it. lii case of necessity or calamity, during the voyage, the ma.ster iK'coines the agent of the owners and insurers of the ship and cargo. He is bound to act in good faith, and fcr ihe benefit of all concerned, and is not .pisti- lied in selling either ship or cargo but in case of extreme necessitv. N. li. Ins. Co. V. Brig Sarah Ann, 13 Pet. 387. A sale is the last thing tiie master .should think of, because it can only be justified by that necessity which super- sedes all human laws. The merchant should be consulted if pos.siblp, and, un- doubcedly, as a general rule, the earliest i'5i iW ' A'rS i' '1:t>- : >:\l'' i; 260 COMMENTARIES ON SALES. [book II. by the necessity ; and therefore tliat he cannot, as a general rule, bind the shipowner even for " necessaries " at the home port ; use of tho ordinary means to convey intelli- gence in such cases would be the most uvailable and elFoctual means in the power of the master ; but where the calamity occurs in a place so situated and limited in its ordinary means of trananiitting intel- ligence by mail, that a resort thereto would be obviously fruitless and nugatory, it is not going beyond the re(iuiri!ments of well-established law to holtJ the master iKiund to avail himself of such other means as may be in his power, and by which notice might be speedily communicated to the owners. I'ike v. Halch, 38 Mc. 3li'.s of the maritimo law clotlio iho iiiastor with the power of nj^i-nt of tlic i:ait;'i whi'n cast's of extremity occur, lio iii.iv SI 11 a part, or he may hypothecate tin' wliolc carj. Unless it appears that a sale of cargo is a nuci'ssity, the master has no authority to sell it, at ail intermediate jiort. In order to justily suili a sale it must appear that the caif^o could not have been sent forward liy the vessel in which it was shipped, or by some other vessel. Dodge v. The Union Mar. Ins. Co., 17 Mass. 471. In The William Carey, 3 Ware, 313, the sail- of a ship by a master was sustained, but with coiisiilerable hesitancy. The ne- cessity lor the sale was eonsidereij clear ; but this alone is not sufficient. There must lie entirely good faith in the sale on the part of the master. He is ap- ])oiiiti'(l to navigate the vessel, and ior that purpose he is the agent of the owners, ami has all the powers that such an agency rei|Uires ; but the agency to sell the ship is cast upon hini by the law in extreme cases, and it is his duty to obtain as much for her, and for the benefit of the owners, as he can, .Some doubtful conduct on the [•art of the master was unexplained, but the liliel to set aside the sale was dismissed, with eviileiit doubt ; but, on appeal, the juil^'nieiit was atfirmed, but ivUfumt cnsts ; a further expression as to the necessity of thornufjh good faith on the part of 'the agent of necessity. The William Carey, 3 Ware, 313, 317. The following cases further exemplify the jiriiii'iples governing .sales of ship and cargo liy the master under circumstances in which by law he is created the agent of necessity of all parties interested : Peters V. Ballister. 3 I'ick. 4i>5 ; Milward v. Ilallett, 2 Gaines (N. V. ), 77 ; Wainwright V. Crawford, 3 Yeales (Fa.), 131 ; Merritt V. Walsh, 32 N. Y. 68;". ; Fit/ v. The Galliot Amelie, 2 I'lilf. (Ciret. Ct.) 440; The I'atapsco Ins. Co. v. Soutiigate, 3 I'et. 6-JO ; N. E. Ins. C. v. Sarah Ann, 13 Pet. 400 ; Tost V. Jones, lU How. 157 ; Prince v. Ocean Ins. Co., 40 Me. 41*3; Hariied v. Cliuichman, 4 I.n. Ann. 310 ; Hugely V. Sun Mut. Ins, Co. of N. Y., 7 La. Ann. 279 ; The Ship Packet, 3 Mason, 2.'i5; The Kugene Vesta, 28 Fed. Uej). 762. Where the circumstances of the case do not di.sdose that urgent necessity which alone autlioiizes the sale of the vessel and cargo by the master, the sale is an act of barratry on his part which confers no title on the purchaser. Graham v. Underwood, 15 La. Ann. 402. The authority of the master to bind the ship or owners being only for necessaries, the ])arty furnishing the supplies is re- quired to give some proof that they are necessaries. In England, it has been held that the proof that the articles furnished were neces- sary should come from the party supplying them, to the extent of showing that they were what a reasonable and prudent owner would have ordered . that there must be sure evidence ; and that, as founded on great and important principles, and as wisely framed to prevent great abuses, the doctrine casts the onus /irobundi on the tradesman or material-man who jiiovided the articles. The Alexander, 1 W, Hob. 361 ; The Sophie, lb. 369. And see Uocher v. Husher, 1 Stark. 27 ; Palmer v. Oooch, 2 Stark. 428 ; Beldou v. Campbell, 6 Ex. 886. In this country a difFerent rule has been laid down, viz., that while the supplies are confined to such as are neces- sary, it leaves the decision as to what i.s necessary rather to the master than the creditor. Ford i-. Crocker, 48 Barb. 142, In Provo.st v. Patchin, 9 N. Y. 23.*), it was held, that where labor by way of re- pairs is performed on a ship, or sujiplies furnished, the |)resumption is that it was done and furnished for the benefit and at the request of the owners. See Flanders V. Merritt, 3 Barb. 201. And where the master told the storekeeper that the sup- plies were needed for the vessel, the own- ers were held liable. Kenzcl v. Kirk, 37 Harb. 113. But in The Medora, 1 Sprague, ' Per Brett, J., in Guun v. Uoberts, L. R. 9 C. P. 331 ; at p. 332. I li ti if ,! ! ! X' \i 262 COMMENTARIES ON SALES. [book II. This principle in Giinn v. Roberts' and in other cases has been still further applied, lu Guun v. Roberts, the defendants were !■ r'' 139, the ncccsHity of the supplies is put upon tho tiiiiim ^'loiiutl iis iu 'Ihu Aluxiiu- (ior, 1 \V. Uob. ;}t51, — as noci'ssary, if thfv aro tit and proper fur tliu si-ivicu in wliicli tliu vessel is engiigoil, ainl what the owner of tiuit V(!.ss(!l, as a pnidout man, would havo ordered if present. In Webb v. I'ioree, 1 Sprnfjiie, 1!>2, VJ^, t\w ;,'encral doetrine is laid down, which may bu .said to bo universally true, that, amuti;r the usual and well-known powers of a master, is that of obtaining necc.is'inj sitpplifs in a foreign port ujwn the credit of his vessel and own- ers. As his [lower is that of an agent to obtain only neecsnari/ siipplict, it would seem, on principle, that he who claims against the ship or owner, on the eontract of the master, would, in order to bind the ship or owner, have to show the necessity for the supplies. Precisely the same bur- den would seem to rest upon tho furnisher of tho supplies in this case as in the closely analogous case of that otlua' agent of ne- cessity, — a niarric there held that in a voyage tho muster of a ship is the owner's servant, and !iis duty if- (piires him to provide nficc«s(ii-ii:i lur tho ship.and it is the owner's interest lliit th. ' should bo iirovided; therefore what thi' imir tcr )ifcissiiri/i/ takes up, anil eiN|ili)ys for that purpose, the owners must pay. This clearly places the burden of proof, wiidi' we think it umpiestionalily rest , mi !!• party sup|)lying tho money or iiiatti: Is. There was an issue ordereil in this ease to try whether any, and what sums of iiionry, were ncccsxdrilij laid out by, or liy the order of, the a|ipellant for the jiayiiirnt of .seamen's wages, provisions, oi other- wise, for the ncccsmnj rcpnirs and use of the ship. The aliirnuitive of llie issue would here lie on the plainfitf, to shnw what was ncccssarilij laid owi fur the ntc'i- sarij repairs and use nf the slii/i; m\ on .such an issue tho shipowner wnuLl not be called on, in the first instaiie, to prove the negative, — that the iiiomy was not necessarily laiil out, etc. See s. c. 15 Vm. Ab. 348; 2 Ivp (as. Ah. 722. In a case before very able judcr"s (Lni^l Brougham, Baron Parke, Bo.saii'HU't, ■'.. and Dr. Lnshington), the rule wis luil down thus: "The foreign merchant nui;lit to know that the master's aiitlmrity ti biml the ship and cargo by a iHittomry bond is fnunded on necessiti/ nlimr; anJ that it is his duty, before hi> takes a se- curity so onerously affecting the |iniiifrty of others, to satisfy himself, by a roason- able inquiry, that the circitm.itivi'rs of thi case justify the master in this excrdif y his authority." Sjares v. liahn, 3 Moo. 1 L. R. 9 C. P. 331. [book II. has been lilts were viis ilio (.on- vv, ami tilt) 'ssary, ti'iii. count. .\ii. ;>• >\\\M Wrii; iii'U. Al:il;;i! lie ildly; uii- , fli.'. This tu till' jury." I till' part of ;s sliiiwuil tlie aiirutl ti) the hi]). It «;1S Uhoii/''il llie lu; |>laiiitllli. •d, ;iit;. iivy ('. White, :h is ' • I in don <"i.), 'J4, I rcpllltrll iU I. ;vr. ciiei, it \Vll> tlllTO lister lit' a ship i his iliity re- v,s'(i)'/V.s' liir the ,LMvst lliitthv' Mvliat tlli'llKLr 1(1 t'lniiliiys fur list pay. Thii f priiof, wiiep' r icst-. im tl ■ ■ or inati-i , '.li in this case to iinis of money, .)y, or hy the tho payinriit Diis, or other- u-.s and line 0/ ol' the issue iitiir, to siiow t for the Htiw- \hv ship; M'l Ipowiier wniiU first instaive, |iat tlie "">'"■;' mt, etc. See ¥a\. Cas. Ab. 1 judge's (I.onl Josaii'piet, .'.. Trulo WIS lail liereliaiit o»!;lit authority t) ly a liottomry lie takes a «• the proiierty f by a roiisi'ii" mnstiivesoftht l/i(s m-rfis( «j lllahn, 3 Moo. PART 17.] SHIPMASTERS AS AGENTS OF NECESSITY. 263 owners of tlic ship Aracanu. The action was brought for money and supplies furnisheil by the plaintiff, on the master's order, for r. C. 1. Ill this e.iso tho .sliiji wuh in the iHirt ol' Lisbon, hound, witii a uai';,'o of (luii ksilver, Iroru tlie port of Cndi/, 'o Lon- (lull, and ni'i'ilin^ ropaiiii ; iind it was ad- vertised tiiat a puhlic Hulu would tako place of a loan on bottomry, "to defray till' exjielises oecasiolifd by tll(i vu.ssel luiv- w^ heeii I'liieeii to put into the pori of Lisbon." It seemed that the master could have ;;ol the money lor tho necessaiy re- pair« ol the ship on thi! personal credit of till' iKviier ; but it did not appear that tho phiinliir, who boii<{lit the bond at the auc- tiiiii, was aware of this fa(!t. The Privy (.'oiiiiiil, alliiniiiij,' the judf;inent of the riiiiit ol Admiralty, held that the plain- titr loiilil not recover. See The Augusta, 1 Doil. 283 ; The drelin, 3 Haf;«. 75 ; llcatliorn t'. Darlinj;, 1 Moo. 1'. C 5 ; (lore r. (iardner, 1 Moo. I'. ('. 76 ; Stain- hank I', l-'enninf,', 11 C. B. 88; The Rlia- (laiiiaiithe, 1 Doil. '2U1; Tho Alexander, 1 Uoil. :i78. The ease of Soaros v. Kahn, 3 Moo. 1'. C. l,\vas, as will be observed, the case of a sale of bottomry lx)nd. We think that, in sueli a case, as well as in that of a siile hy the master of the ship or cargo or lioth, as the agency is created ex neci-s- silali, and is within the strictest rules of special agency, in connection with extraor- dinary (liitiijs that are tliru.st upon him, the rule as to showing the necessity for the iiiiistei's acts would, on principle, bo mill h more rigorously applied than in the imliiiary case of a master purchasing usual necessary supplies for the ordinary re- qiiiivnicnts of the vessel. In this latter ease the master would occupy more uciirly, for t'.ie jiurpose of obtaining such ncccvsary supplies, the jiosition of a gen- eral agent, — limited, of course, by the suo[«' (if his empl()ynient. See Morton 0. Dav, l.a. Ann.'7»!'2; General Interest Ins. Co. V. Ruggl.'s, 12 Wheat. 412 ; I'eters V. Halleslier, 3 Pick. 49:.; Pope v. Nickcrson, 3 Story, 46,i; The Oiapesliot, Wall. 13G; Miller r. Palmer, 58 Md. 451; Party i-. Clark, 41 Md. 327. This distinction may tend to harmonize .some of the cases which otherwi.se seem irre- concilahle. With reference to the general agency for such jiurpose, a very high authority on the siihjcct says : "Tlie nia.ster is the pre- sii d and accreilite(t agent in fitting out, victualling, and manning the ship abroad; and that for his engagements in those re- sjH'cts, or even for money borrowed for tlie purpose of furnishing necessaries for the sliii), the owners will be bound, pro- dded the loan appears to be fairly sup- ported by evidence of existing necessities." 1 Hell's Com. (7th ed.), 550. Wo think thiH a fair statement of the law, and that, even in the case where the master is the agent of the owners to obtain ordinary necessary 8U|(plies, the burden of proof of showing the existing necessity is on the party supplying them, which, wo think, would be met by fairly showing that thoy were necessaries furnished the niiuster, in good faith, lor the ship. See an elabo<- rate judgment by Storv, .1., in The Ship Fortitude, 3 Sumn. 2'J8, 241», in which, on tho point, he says: "The point can only arise where no necessity lor the repairs or supplies exists, and where, by the use of reasonable diligence, the absence of such necessity could have been known and as- certained. If the re]iaiis and supplies are neccs.sary, then the creditor will be entitled to recover the amount from the owner (for I am speaking of cases of ordinary supplies, where no bottomry bond is taken), with- out making any iiKiuiiy whatever. On i\w other hand, if no iiupiiiies whatever could have put the creditor in pos.scssion of the real tacts, and he has acted upon the representations of the master with good faith, and under circumstances af- fording no ground of suspicion of ill faith in the master, I conceive that he is dis- jiensed from all responsibility in regard to such impiiries. Thus if he should be de- ceivcd in making advances for repairs, or supplies for imaginary injuries or losses at sea, which lie could have no means of knowing or tracing, but which the master and crew fraudulently pretended to exist [such, we would instance, as the pre- tendeil loss of bis boats at sea, when they h.id been fraudulently parted with], I pre- sume that lie would be enabled to recover against i\w. owners I'oi' icasoiialde advances inad(! by him to rejiair such injuries or su[ndy such losses. But where the cred- itor could, by due diligence, ascertain the necessity of the repairs or supplies, then, under such circumstances, if he makes no iniiuiiie.s, and no such necessity in fact exists, ho will have no claim upon the owner." But all this is consistent with the ])rin(;iple that the burden ol proof is on the ])1aintiff to show atlirmatively that lie sujiplied necessaries to the master for tho ship, as the burden of pioof is on the purcha.ser of the ship or cargo to show the nec(>.ssity for the sale. In a note to 1 B(drs Com., 556, we find tho case of Carey i-. White, 5 Bro. P. C. 325, referred to, in which it is stated that in two several trials (one at bar) on the issue ordered, verdicts were given that nothing was necc.inarily laid out, and so Carey's suit was dismissed. ' tl 111: 264 COMMENTARIES ON SALES. [book II. the necessary purposes of the ship while she was at Quebec, to which port she had gone in search of a cargo. The ship was consigned to R. & Co., at Quebec, and the defendants sup- plied them with funds, anl authorized and instructed them, as their agents, to advance any further sums for the purpose of sup- plying the necessities of the ship for her voyage. The defend- ants had forbidden the captain from applying or pledging tiicir credit to any other persons than R. & Co., in respect of the shi|)'s necessaries. The plaintiff was ignorant of this, and of the fact that R. & C'>. were the defendants' agents ; but the jury found that he might, by making ordinary inquiry, have ascer- tained the fact that R. & Co. were the defendant's agents fi>r the purposes of the ship. R. & Co. were ready and willing aiul able to advance any sums which might have been necessary for the purposes of the ship. The verdict was entered for the plain- tiff, with leave reserved for motion to enter it for defendants. On rule granted, Benjamin, Q. C, on showing cause, claimed that the master, as general agent for the purposes of the ship, had power at a foreign port to pledge the owner's credit for necessa- ries ; and that the fact of the owner having an agent at the for- eign port to furnish the necessaries, would not affect the right of any one else furnishing necessaries to the master to recover therefor from the owner. The court (Brett and Dcnman, JJ.) held the reverse.* 1 Thft case was put by Dcnman, J., as one of (ir.st instance. Ho says: " In all the statements of tlio law of tlic subject, it scents always to be assunieii tliat it is well settled tliat the captain lias no au- thority to pledge the owner's credit when ho has ait authorized agent in the port. Though there is no actual c:ise deciding the jKiint, all the eases scent to (orrubor- Bte this view." At i*. ;iH8. Thi; conten- tion of tlie counsel fur the plaintilF was thus disposed of by Brett, J.: "It was said tiia' the captain is tiie general agent v'>f the ov. ;icrs. That proposition cannot be sup|>orted in the fullest .sense of the terms in which it was stated. Tlie captain has autliority to bind the owners to pay for supplies or repay money advanced, only when the necessity of tlie case gives him that authority In order to give rise to that authority it has for tnany years been recf)gnized that two tilings are neces- sary ; first, it must appear that the money borrowotl or goods su)>|ilied were necessary for the uso of the ship, not absolutely necessary, but reasonably necessary ac- cording to tile ordinary course of prudent conduct, in the opinion of the Jury ; 2dly, it is not KUllicient that the moneys lent, or goods supplied, were necossury for the .ship's use, but it must be shown, also, that it was reasonably necessary that the captain should obtain or onlcr tlniii on the owner's credit. If the captain lie in a foreign jiort, and the owner is not tlnTe, and there is no agent of his there, and tlif captain has not been himself |)ui in tiiii(l.s by the owner, then it may be rca^iiii.ilily necessary that he should order sniiphis uii the owner's credit for the necessary jmr- jKtses of the ship, as in the case nf I'M- wards v. Havdi, 14 C. H. 107 ; 2:5 1. .1 C. 1*. 8 ; but if no is either in a jiort in the owner's e(uintry, or a foreign port, and the owner is there witii means to pay for goods, orcnidit to order them for liiiii- se't', the owner is tlie master of iill'airs, and there is no necessity for the cajitain to order them or to jijedge tlie owni'i's credit; and so there is no iiecessifv fortl.i' caittain's making a contract to liiid tiw owner. Accordingly, if it be found tlwt the owner is present at the port, aud liiW the means or credit to obt.iiii suiiplies I think it is the law of Knglaiul that tlu' judge should direct the jury tliat tlnriMS no necessity for any autliority on ilie pnrt of the captain, and the jury would ii>it l* justified lit finding that ilieie wi< any such necessity. The :>le up- PART IV.] SHIPMASTFRS AS AGENTS OP NECESSITY. 265 Where a master sold a vessel was adiuilted, did not authorize plies even \vli"n the owiiur ; ' not present, if liH has citliiT in a jiort in his own or a foreij;ii loiiiitry I'dustitutfil an aiieat to stand ill hi"* Jilaif, and intrustt'd such ai'i'iit with his ilisiirtion to act in the riwiiiii.'iiiH'iit "f thf shij), and such ap'nt Iws iiiiiltitakcii and has tlie ni'cu.ssiiry nii'ans ov i'ir't Tor hiniscll in the matter." For lunlicr cases aii|ilicalih' to the point involved, see Arthur v. Barton, •) M. & W. l;iS ; (inuil V. Norway, lo ' . B. CtJ;') ; ThP Failhrul, ■il L. .1. (i'. M. vv .A.) 81 ; Johns r. Syiiiiiiis, "J (,). B. 42;') ; Tlie Ah^x- anilcr, 1 W ■ lloh. ;J4»i; Brayshaw r. F;iton, 14 C. H. 111? ; Kdwards i-. Ilavell, 14 C. 15. Iii7 : -Maekiiitosii v. Mitel, eson, 4 Kx. 17'i; \Villia7nson v. I'aije, ] C. & K. 581; IVh-terr. la'ekanip, 4 B. Jii, Aid. ;i.')2 ; Ilk' Hi-a, I,. U. ;i Ad. & Ke. f)l»> ; Mac ri'ady r. Thnrii, .'.1 N. Y. A)i. Cas. 4.'i4 ; KoliinsiiM r. Lyall, 7 Price, .'i'.t'i ; Borher V. liiishcr, 'J Stark. \17 ; I'alnier i'. (looch, '.'."^tark. 4'JS ; Kvans r. Williams, 7 T. li. 481 n. ; .Milward r. llallett, i> Cai'ies, 77 ; T1h> I lilted Ins, Co. V. Scott, 1 Johns. 106, 111 ; iJeade v, ( (iHnieriial Ins. Co., 3.1nl;ns. :f.VJ ; Ward r. Creen, H Cow. 173; Waiiiwiiulit V, ('rawfiiiii, 3 Yeates, 131 ; Uo.ss V. The Active, '.i Wash. 22i!, 236. in The Ceiieial Smith, 4 Wheat. 43S, the law is thus l.iiij down as to a lien on a diip I'or iiece saries furnished ; " Where rt|iaiis have n-er. made, or necessaries have lieeii luriiished to a foi'eij^n >lii|i, or to a ship ill a iiiirt of the State to whicii she (lues lot liclom,', the j,'eiieral maritiino law, fi)li(nviiiy the master to salvors, who had expended in their work about $250. The master, without waiting for authority, had submitted the claim to arbi- tration. The purchaser put in a temi^r- ary rudder at the expense of alrout §100, and, the vessel being perfectly tight, saihnl her to New Orleans, and had her thor- oughly repaired there at a cost of alwut $800. The owners claimed for a total loss, and tendered an abandonment, whicii was rejected. Tiie plaintitfs liaving brought an action, on judgment of nonsuit against them, ajijii-aled, claiming that they were entitled to recover for a total loss, in con- .se(pienco of the vessel having passed from them by a necessary and justiliablo sale. The court held thit it was not the mere fact of a sale by the master which entitles an assured to abandon ; but the ship's being reduced to such a state as to justify the sale. And, further, that the master's submission of the ipiestion of salvage to arl)itration was without authority (see Housemain v. Schr. North Carolina, 15 Pet. 4')) ; tiiat the advice of the surveyors or their opinion was n<)t coin'lusiv(? (see Gordon v. M;iss. Fire & M. Ins. Co., 2 Pick. 2tJ4) ; that the muster should have brought tlio vessel to New Orleans for re|):iirs (s((o Hall y. Franklin, 9 Pick. •'67) ; and that, as there was nothing in the distance from the scene of disaster, or in the pressing imminence of the danger, to prevent the master from communicating with tli(! owners or nnilerwriters, the sale was unnecessary aid unjustitial)le ; and thc^ judgment wasatlirnii'd. Peck i'. Nash- ville Mar. & Fire Ins. Co., 6 La. Ana. 148. Ill general, the master has no authority to sell the ship. Tiiere is, however, an exception t(» this rule, when she meets witli a disasti'r wliicli renders it necessary to sell hi'i', ill order to save a part of her value, rather than to run the risk of a total loss. Tile master's right to act in such an emergeni'V arises from the neces- sity of acting bei'ore the owners can bo consulted. Ffc acts for them, because they have no op])ortuiiity to act for themselves. If they are present, bis authority to sell ceanus. He is bound to exercise the same di.seretion that an uninsured owner or agent of the underwriters would exori'JM. if present. Hence it is his duty to iiutifv the parties interested of the disaster, when it can seasonably bo done, that tiny nmv send him instructions, or be picvnt to judge of the situation for tlu'iii«'|ves. When their discretion may be culKid juto exercise, there is no occasion I'ur the master to exercise his ; there is no iieoc*. sity for him to sell, when they may jmK' of the necessity for a sale tlK•lllselve^. The chance of recovering the vessel is worth as much to the owners as it is to the purchasers. They have a lii^iit to the benelit of the choice of the alUfiiiativesot risking or selling her, when tiuie is an op])ortunity for the master to give them seasonal)le notice of the disaster ; mid lit cannot devest them of this right. Nor is it necessary that the master slioiiM Iraiidii. leiitly neglect to give such iintiii', to in- validate the sale. It is the iiiasli r's duty to use the earliest means, ordinarily avail- able, to convey intidligence of the disaster to his owners, when they may llms Ite reach(>d in season to act before the sale; and if he neglects to do this, cither from indilferenco, earidessness, or igiiuiaiu'e of duty, tho sale will be void as to siidi owners, r.at(!s v. Thompson, ,'.7 .Me. -lli; Ninv Knglaiid Ins. Co. v. The .Sarah .\nn, 13 Pet. 387 ; Amciican Ins. Co. v. Ciiilii, 4 Wend. 55 ; Hallo. Franklin Iii>. (•o.,it Pick. 4()t5 ; lirvant t'. CoimiKjiiwcaltli Ins, Co., l;{ Pick. 'r,r.\; Pierce v. (K<-.m h\<. Co., 18 Pick. 83 ; Stephenson v. PisLataqiiis Ins. Co., 54 .Me. 55. And part-owners of a vessel aiv not lo- partners, but tenants in coniiiion. Ntitiie to one part-o vner is not notice toaiiotln'r, nor has one part-owner any right to >ell, or authorize a consent to the sah' of the interest of his associate ])art-owiii'r. The tluty of the master to give the iiotiee in question extends to all the part-owners within his means of inti'ivoiiiiiniiiiiation. Ami if the master sell the whole, when h" has authority to sell only a part, the sale will be valid as to that part, and void as to this rest. (Jates c. Thoinpson, ,")7 .Me- 44'2, 4 to, f/ ftc/. ; Pierce v. O.eau Ins. Co., 18 l'i"k, 83. It was held in Pentz v. Clark, 41 M.l. 327, that the cpiestion as to the iiithoritv of the master to jdedge the credit of the owner for necesnary supplies and ie|iairs rests upon and must be determined hy the general priii(d|des which goviTii I he law nf agency. To a certain exli'iit at le;Ht tlif master is and must necessarily 1"' treated as the ujjent of the owner, and us nA Mm^ BOOK II. owners, 3 under- owner or iM exori'iw ty to notify iistiT, when t llii-y nuiy I'lVMMlt to tlu'MiM'lves. cuUtitl into m tor the s no necc>. ni;iy judgo tliuiuselve.-, K' Vl'SSl'l i^ Its it is to linlit to tlif Lttniatives of tliiif is ail i^ivi' tlu'iii itrl' ; mill he ,'lit. Nnris Diil'l inmilu- lotii.'''. to in- lastiT's iliity inaiily avail- ;' till' iliMVitw nay thus tie ore till' sale; , citluT from ignmanoe of ^ as to such r.7 Mo. Ui ; Saiah Ann, V. C'l-nlrl, li,~. ro.,i* althlns, (Inall luv ri-.i.atai|uis luv nut I'o- lon. N'otiie tcianotli'T, .,'lil M sell, sail' of the iwinT. The • liotin- ill i,ut-iiwuers imuiiiiatiu". wlo'U he .ait. till' sale mill voiil as iisi.ii, :>! Me. (). .all Ins. larK, 41 Mil. Uv aiithoritv PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 267 writers, affirmed, by way of ratification or estoppel, the title of the claimant. The court held that nothing but extreme necessity llUVi v.ht of the airl li'!«''" niln-il I'V the 111 till- law "f ,t llM't til* ly li,. treatt'il and iid s"^''' tlothed with iiiitliority to do whatever may I).' loii^idi'ivil fairly to bo within tho scope of liis a[i[ioiiitint'nt. Ho nnist, of course, liavf till' [lowiT to do whatever may be lU'CiK-sari/ t" enable him to jirosecute the vova},'!'. I f lie should bo in a foreign port, anil ii|i.iiis are necessary to be done, and tlie owner is not there, and has no agent tlieu' aiitlioiizeil to act for liini, the master must liiiiii the necessity of his position bo (oiisiiliivd as having the authority to or- ihr sinli repairs to be done. But in the '■inii' port, where the owner resides, where ..: can lie consulted, and where he can |iers(ui.illy interfere, no such necessity ex- ists, ami iliere is no reason why the master siioiilil pli'il^'e his credit even for ncce.s.sary ivpaiis without special authority. See to the same ellect, (iunn V. Uoberts, L. 11. y ('. 1'. ;i:il; Arthur v. liarton, 6 M. & W. 141' : .Mvi'is r. Willis, 17 C. H. KW ; 18 ('. B. Ss7; .Miteheson v. Oliver, 5 K. & B. 414; Heriianl v. Aaron, 11 C. B. X. .s. 88l»; llil,l.> r. Hiiss, L. R. 1 Q. B. .-.34 ; The Tronba.loiir. L. H. 1 Ad. & Kc. 303 ; The (;ivat Kastirii, L. It. 2 Ad. & Kc. 88 ; Siliiioiier Kieeinan v. Buckingham, 18 llinv. IS'-*; Thomas v. Osborn, 19 How. 22; Morj^an's As>ii,'ne(s i.-. Shinn, 15 Wall. 110; llowanl V. (tdi'll, 1 Allen, 8;">; Blanchard V. Kiaiiii-,', 4 Allen, 118 ; Webb v. IViree, 1 Ciiit. 104 ; .Mavo v. Snow, 2 Curt. 102 ; .Ma.'V r. Wliei'ler', 30 N. Y. 241 ; lieonis I', f.i'wis, 2 I'aiiie, t'ir. Ct. 202 ; Stedman r, l-'(i.iii 1-, 2.'> I'.arb. 605 ; The PIkcIk', 1 Waiv, 'Jijit. Ami the fact that the master was ]iart-invner at the time does not confer upon liiin any greater authority to pledge the eiiilit (if his co-owners for work done ami III iterials furnished tin? vessel without tliiii autlinritv. I'lntz v. Clark, 41 Mil. 327; Cales v. Tinuiipson, 57 Me. 442; lli'lnii' r. Smith, 7 Hing. 70!». In The Uiiliert I,. Lane, 1 Lowell, 388, the jiiiwer of the master to hypothecate the vis^,.] was upheld, where he had coin- niuniiatiil with his owners, ami they tliioiiijli tluir silence and neglect, alter full ainl sutlji'ieiit ciiniinunicatioii li.-nl been inaile III tlii'lii, left him no alleiiiative but to sill 111 liypotheiate. The court held that tlnir silence and neglect authorized him to lake sui'h measures as were most i'V|ie.!i.'iit. and such lis a iirudent master woiiM take who could nut eommunieate with his Dwiii'is ; that as liis alternative Was til M'll or hypothecate it (!ould not In; inaiiitaiiied that lie had a more amjile ilii- jilii'il power to .sell than to hyiiotheeate. •Ill the coiitrary, tiiey held lie had less; " for liypiitheration on its face is a saeii- fiec of part, while a sale usually saurilices the whole. " But the master cannot pledge a vessel by giving a bottomry bond for money borrowed for repairs when the own- ers of the vessel are iiresent at the jdace where the repairs are made, or where he has funds of the owners for the purpose which he has not n.sed. I'atton v. The Schr. l!anilol]iii,(;ilp. (I)ist. Ct.) 457. See Tunno t: Ship .Mary, 15ee's Ailiii. U. (a. i». 1785) 120; Sloan v. .«!liip A. K. 1., Boe, 250; Turnimll v. The Knterprise, Bee, 345. In uii action broiiglit to recover the value of a chronomet"r, let in New York to a vessel belonging to Maine, it was laid down that the master is the agent of the owners for the purpose of obtaining repairs and supplies for the ship in a foreign port in the absence of the owner, but his au- thority as such agent is not nnlimited. He can only procure such supplies and re- J)airs as are, properly speaking, necessary for the ship ; that is, the repairs and su)"- plies are to lie such as are rea.sonably lit and proper, having regard to the exigen- cies and re(|uirenieiits of the ship, for the port where she is lying and the voyage on which .she is Ixinnd. The Fortitude, 3 Si.mn. 233 ; Kdwards v. Ilavell, 14 C. B. 107; Miteheson v. Oliver, 5 Kl. & Bl. 41t». It is nowhere said that this authority of the master is limited to the ]iurehase or procurement of any particular kind or class of supplies. On the contrary, it is uni- formly held that it embraces everything which a prudent man w the exigencies and rei|uirenients of the vessel at the time the articles were procured and the credit given. Bliss V. Hopes, !tl Mass. 33!t, 3tl. The following additional cases further exemplify tlie jirinciples governing the powers of a shipniastir to bind the ve.s.sel, 268 COMBIE^NTAT'IES ON SALES. [book II. I :i,':f; could justify the sale of the vessel by the master. The abandou- Hicnt was based on the damage done to the vessel at the time of cargo, owners, and all concerned, by his acts ill a I'urui'rn port for necessaries, by hypotliccation, u'kI bv sale. Crawford v. The William Pcnn, '3 Wash. 484 ; The Aiuui'iuan Ins. Co. o. Coster, 3 I'aige, 323; Ross V. Tiw. Sliip Aotivi', '2 Wasli. 226 ; Keade v. Tlio Coinuiercial Ins. Co., 3 Joiuis. 352 ; The Hark Herald, 8 Bened. 409 ; Barker v. York, 3 La. Ann. 90 ; Webb V. Pierce, 1 Spnigue, 192 ; The Lulu, 1 Abliott (U. S.), 191 ; Selden v. Hen.lriikscn, 1 Hioiik. 396; The Never- sink, .'» Blatch. 39: The Jeanie Laudlos, 17 Fed. Hop. 91; Desiiadillas v. Harris, S Mo. 296 ; WhittfU V. Tisdale, 43 Mo, 451 ; Leddo t>. Hughes, 15 111. 41 ; .lames v, Bixby, 11 Mass. 34 ; The Brig Kledona, 2 Bened. 31; The Brig Jacmel Packet and her Cargo, 2 Bened. 107 ; The Steamboat Wasliington Irving, 2 Bened. 318, 323. The principle relating to tlie master's authority to contract for supplies and re- pairs at tiie home port is quite dilFcrcnt trom that governing his powers at a for- eign port ; tlie nature of his agency, from the ditrt'riiig circumstances surrounding him, being of a diircrcnt and nuich more restricted character where the owners of the vessel are present to act for them- selves, a I 1 therefove, do not as necessarily nor usually to as great an extent recpiire the action of the master, as where they are distant iVom the scene, ami have no power to act for themselves. Thus, the master has not usually authority to pledge the credi*- of till! owner for necessary repairs made at the home port, where the owner resides and can be consulted, and can per- sonally inlei fere, unless the owner has held out the UMstcr as having such authority, or has ratilicd his contracts. The reason of this is that the foundation and nature of the authority of the master arises from the rei|uir('mciits of the peculiar and re- sponsible duties of his position, and his authority must bo commensurate with those ilutics. Wh(^n the reason for his authority disa])pcars, then his authority ceases; therefore, the authority of tho mas- ter to bind the owners of the vessel is more (■xtfiisiv{! abroad thar ni a homo port. Ill foreign ports (ai'.i ports of States othiM- llhiii wlii'ie the v- ssel belongs are ('or that purpose cons' Icred fjiei};ii jwiii •; i* is unlfonnly liclc' that the muster has an- thoiity to c iiitract on the mvilit of the owner for .lUch sup',)lies and .•eiiaiis as are reasoi'.oly lit and proper for the ship and the voyagi'. This authority arises fiom the necessity of procuring the supplies, the absence of the owner, and the pre- sumption that if he had been consulted he would oa a pnident man have ]irocured them, and would not have allowed the voyage to be broken up or the .ship to sutler for want of them. It is only so far and just to the extent that the reason and necessity for such authority ceases in j home port, that the authority of the mas- ter IS restricted. It is no inllcxibli) rule arising from statutory legislation or any question of jurisdiction, and the lestric. tion should not be pushed farther tljaii the reasons of it require. When, thcicfore, although the port where materials or sup- plies are furnished may Iw in one seiisi- a home port, if it is not the port wlicic the owner resides, and if he is not within easy ac(;ess of it, and the repairs or sup- nlies are not unusual in amount, ami are . 'ich as a reasonable and prudent owner would have sanctioned if present, ii has been held that the master has power to bind the owner. Schultz v. Bosnian, 5 Hughes, 97 ; John v. Simons, 2 (^. B. 424 ; Stonehouso v. Gent, Ibid. 431, note {/)). Of course, the supplies and re| airs wliioh are reasonably fri. and proper, under such circumstances, for the master to contract for u|)on the credit of the owner witliout consulting him, are much more restrietod as to kind and amount than wov.ld be the case in a foreign port, and g. eater caution and in(piiry in giving the credit slimild be exercised by the material man liefere furnishing them. Schultz v. Bo>iii;>n, 5 Hughes, 97. But the rule may iw con- sidered generally correct that the master of a vess.d without any other autlmiity than that derived from his otiicial cipaiity is not entitled to order rijiairs to be made in a home jiort. Jordan ». Young, 37 Me. 276 ; Dyer v. Snow, 47 Me. 2.';4. .And where the vesse.' was lying at a vlmri' in Portland, Maine, and the owner was a 'csi- dent of the adjoining town of Ciipc r.liai- beth, the principles as to the home ]«irt were; held to a|)jily. Jordan v. Yiiiin|;, o7 Me. 273. And authority to ^'ive a piomissory note at a home ])ort by a mas- t'.'r to bind the owner, is not to be iiiiiilied from the relation that subsists lietHviMi master and owner. Cregg v. Jiobliiis, "28 Mo. 347. Nor to give a bond to r I • i>e a vessel from seizure. Carr v. liuike, 'ii Mo. 233. Whe-e in the same State tlie Icpil owner of a vesstd resided iu the citv "f New York, and the master, who was the actual owner, obtained, in Biilfiiio, the jtlaintiir as bail for the vessel's diseliarffe upon her being lilMdled for illcynlly eariy- ing passengers, no coammnicatioii having BOOK II. 3andon- time of e iirocured llowL'd the lie ship to only so far rt'usuii and i'iisi-3 in a )t' the mas- Icxiblo rule ioii or any the restric- ler than the , thi'ri'fore, ials or sup- olio suusc a t wlit'ic thi! not within nil's or sup- int, uiul are iiltMit owner sent, i*. hiw as jinwer to V. Bosnian, iiiniis, '2 V. Ibid. 431, PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 269 tlio l.'pil kho citv i>f |io WHS the liirih". ti'« ,iis,tmrge pillv ' iiriy- loll hnving the accident wliich had happened to her. If accepted, the master became the agent of the insurer ; and whether accepted or not, his act, without authority, could receive no ratification from alle- ffations or admissions made by any party in a dispute on the con- tract of assurance, where tlie inquiry as to the act of the master was irrelevant. The claimant, having obtained possession unlaw- \wn niaili' to the legal owner, ho was held not liahli' to the ]ihiiiititr for the amount the jil.iintiil' was coniiiclh'd to pay as surety nil thi' lioinl. (lager r. Babcock, 48 N. i. 154. In Crawl'onl v. Rolierts, 50 Cal. 235, it was held that the niu-ster's power is pre- snnii'il, in the absence of evidence to the lontrarv, to extend to making contracts for supjilii's in the home j«o -t which shall biiiil the owners ; the dut. i.iid relations of the master furnishing |iesunnitive evi- ilciu'c of his authority to purchase sup- phes, I'lovost V. Patchin, 9 N. Y. 235 ; hich r. Coe, Cowp. 636; llusseyr. Chris- tie, '.• Kast. 432 ; Hoskins v. Shiyton, Cas. Temp. Ilai'dw. 360; James v. Bixby, 11 Mas.s. 4(1 ; Flanders v. Merritt, 3 IJarb. 2ol. Ami if the purchases are made by the master with the knowledge and con- sent of the .ship's hu.sband, the owners are liriiiiii fnrir liable. Crawford v. Roberts, fid Cal. 2:i."i. And for the necessary sup- plies of the ves.sel even at the home port, furni>hed by order of the master, the owner is j;eiierally liable, as agency to that extent is u.sually to be implied ; and wiieii hi' seeks to escape the liability he must make out by satisfactory -proof the fiiets upon which he claims the exemption. .\lil)ott V. W. k R. Steam Pajket Co., 1 M.l. ("h. -)42. In Iloliiiison V. fJporges Ins. Co. 17 Me. ni, it was held that where a vessel had lii'eii stranded on a sand bar within the I'niteil ."states, and within one hundred miles of tiie place of bidding a court of the I'liited States for the distrii't, and hail tieeii put alloat and rejiaired by sal- vors, the master had no power to refer the ilaim for salvage to arbitration witlmut the coiisi'iit of the owners. But in a case of };rea* iier"ssity, where there were thir- teen owiiirs iif a vessel, living in dilfereiit States, ami with whom it would have been ilillienlt to I'oininuniciite with the iiecis- s:iry pr(iiii|itiii'ss, their agent being pies, ent on till' .>|)ot where the repairs were inaile, and pivsiiniably approving of tln'in, itwas lii'lil that though the general priii- eiple is iiirreot that if the owner or his agent for tlie piiri>ose is either at the port "rat smli a convenient distance that the master ran hax-e cominiinication with him without surli a delay as wonhl materially prejudice his interests, the authority of the iiiMter to bind the owuer for repairs does not exist; yet, under the circuni.stances, the master has a right to charge the owners with such exi>eiises for repairs, even at a homo port, as the interests of the owners render it neces.sary that he shouhl incur. Woodrul!" & Beach Iron Works r. Stetson, 31 Ct. 51 ; Webster v. Seekamp, 4 B. & Aid. 353 ; John v. Simons, 2 q. I?. 425. In Steamboat Lehigh v. Knox, 12 i\fo. 508, it was held that in order to give a lien on the steaml>oat for supplies fur- nished it is not neccs.sary for the party furnishing such sup])iies to ascertain whether the master or agent actually in jiosse.ssion, and having control of the steamboat, is li'gally entitled to that pos- session and control; the presumption be- ing that he is so. In accordance with tiie principle that where the owner is in such a position to be communicated with, when any unusual act is to be taken in respect to the vessel, the master's act is not bind- ing on the ves.sel or owner without such communication, it wa.s held in The (iiulio, 27 Fed. Re[i. 318, where a master executed an instrument which amounted, in legal elfect, to a contract of bottomry, and he was at the time within easy reach of the owner by telegraiih, where a letter would have reached liim in live days, and where the owner was in actual coniniiiniiation with the master, and was not notilied of the master's intiMition to borrow nuniey on the security ot the vessel, nor his approval obtained, the instrunient was invalid. And see Astrups v. Leroy, l!> Fed. Rep. 536; Miller i'. Thomp.soii, 60 Me. 322; (Jates I'. Thiimpsou, 57 .Me. 442; Acatos r. IJunis, 7 F.x. Div. 282; The Auslial- asiaii Strain Nav. Co. v. Morse, 1,. R. 4 P. C. 222; The Bonaparte, S M..o. P. C. 45!'; The Cargo ex Hambmg, 2 Moi>. 'VO. \. ,s. 289: The Lizzie, I,. U. 2 Ad. ^ Kc. 254 ; Atkinson V. Ste|)hins, 7 F.x- .'^^67; Kwlviiik V. Nutting, 7('. B. 2',t": V. The Fast India Co., 5 H. & I'ammell l'. Sewell, 3 11. & N Cratitudine, 3 C. Itob. 24ti ; ' P.lake. 107 r. S. 418 ; 16 Bla The C. M. Titus, 7 Fed. l!.i>. Butler i<. .Murray, 30 N. Y. f|it ijoods contracted for, the vendor, as his ag>'iit hy necessity, may re-sell the Roods on his account, and in an action for the inicc cd' the floods recover the dilfer- eiiee hctwccn the contract price and the price on the re-sale. Sands v. Taylor, 5 ■loliiis. 3;'.". ; (iirard v. Ta<,'sart, 5 S. & R. lit. And suidi an nRem^y is sometimes created hy necessity, in the case of a ne- cessity ari'-iuK ''"■ ^hc sale of perishable iirticK's. ,Si'c Chapman v. Morton, 11 M. i; W. 5:irt, .',:)8, .'ilO. ' ;i Kx. Div. 282. '•^ Hntt, !,. F., makes the law in the case clear, thus: "Had the master au- thority to sidl, and was tlie sale lawful or wrongful? On the present findings we must take it that the goods were of a I>eri>hable nature, and had an inherent vice at the time of shipment, and that was the cause of their being landed at Smyrna, and if something had not lieen done with them they would have perished. The sale was a reasonable sale us regards the nature ami condition of the goods, but it was a sale without the consent of the owner. The i|Uestn)n therefore is, whether the master, under such circum- stances, had authority to sell the goods? The first jmint made was that the author- ity of the master to sell goods is to 1k' measured dilfcrently when the goods be- come perishable, owing to tlndr own in- herent vice at the time of shipment, and wheii they become so from ludng ilaniaged by jierils of the sea. There Is no grontid for any such distinction. The authority of the master is the same whi'lher the sale is rendered necessary from injury arising from the itdierent vice of the goods or from sea damage. I'riiiut facie, the mas- ter has no authority to sell. lie may have such authority under certain cir- eumst.ances which may arise from .some- thing happening to the shij), or from something ha]>pening to the cargo ; but the law of Kngland looks with jealousy on the nnister selling any part of the cargo without tlie consent of its owner, and it gives the master no authority unless there is an urgent necessity for the .sale. Now, an urgent necessity for a sale may arise from several causes. There may be an ". \ il 272 COMMENTARIES ON SALES. [book II. mm ll#'" 'I Repairs such as are necessary to remove the inability of the ship to proceed on her voyage, cannot be made by the master un- less he has means or credit, and if he have neitlicr, and his situa* tion is such that he cannot communicate with the owners, ho may sell a part of the cargo for that purpose if it is necessary fur him to do so in order to raise the means to make the repairs, Sacri- fices made to raise such means are the subject of general aver- age, and tlie rule is the same whether the sacrifice was made by a sale of a part of the cargo, or by the payment of marine interest.^ In the case of the sale by a master of ship and cargo, the orig- inal owners claimed the cargo on the ground that the sale by the master was unjustifiable. The claimants averred that tlie sale was a fair, honest, and valid sale of the property, made from ne- cessity, in good faith, and for the best interests of all coucorned, and that they were the rightful and bond fide owners of the jjor- tions of the cargo purchased by them.'' The District Court decreed in favor of the claimants. On appeal to the Circuit Court, tliis decree was reversed ; the sale being pronounced void, and the re- spondents treated as salvors only, and were permitted to retain a moiety of the proceeds of the property as salvage. On appeal to the Supreme Court tliis decision was aflirmcd. The facts of the case were peculiar, and the court held that the cases justifying,' a sale assume the fact of a sale in a civilized country, whore men have money, and where there is a market and competition ; but that they have no application to wreck in a distant ocean, where the property is derelict, or about to become so, and the person who has it in his power to save the crew and salve the carjjo, pre- fers to drive a bargain with the master. The necessity in such a urgent necossity to sell goods, arising from tlio fact that if the goods are not sold they will perish, or that they will have to be kept in warehouses at great expense, so that as a matter of business it would be wrone to warehouse them ; and it must be sliuwii that the master has no means of eonimuniuatirig with the owner, and taking his iviii<; diree- tions to the contrary. The jury ln'i>' Imve found that there was no urgent iH'ccssity for a sale ; therefore in the pri'sciit ease the sale was wrongful." Acatos v. Iliiins, 3 Kx. Div, at p. 2S9, See ColKMiuicl Mar. Ins. Co, V. Hart.aux, L, R. ti 1". C. 31?; Tronson v. Dent, 8 Moo. P. ('. 41!>, 448; Notara v. Henderson, L. H. .1 (}. li. Md; Bra.s3 V. Maitlanil, (5 K. & B. 471; Aus- trala.sian Steam Nav. Co. v. Moisr, I,. R. 4 P. C. 222 ; The Cargo ex llamlnirg.J Moo. P. C. N. s. 289. 1 Star of lIoiH', 9 Wall. 203. 237; Orrok v. Commonwealtli Ins. Co., 21 Pick. 469, See further, Duiiont v. Viiiice, 19 How. 162; Barnard v. .V.ianis, 10 How. 303; Patten v. Darling, 1 Cliff. 262; Uw- rence v. Minturn, 17 How. 110; Potter r. Ocean Ins. (^o., 8 Sumn. 42; The Bng Mary, 1 Sprague, 18. ^ Post V. Jones, 19 How. 150. PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 278 case may bo imperative, because it is the price of safety, but it is not of that character which permits the n "tor to exercise his power of sale. And the claimants were, acL .Sec Frost v. Olivor, 2 E. k R. 301 ; Mitrlit'soii V. Oliver, 5 K. k l\. 4U»; Dean V. Ihini^, 10 Biiig. 350; Huttoii v. Uragg, 2 Miirsh. 3;i9. * Wagstatr V. Anilerson, 4 C. P. D. 283. For further cases apjilieable to the point involved, see Mitcheson v. Oliver, 5 E. & B. 419; Siiipton v. Tliornton, 9 A. k E. 31 4 ; Acatos v. Burns, 3 Ex. Div. 882; Sandcman v. Saiir, L. R. 2 Q. B. 86; (lilkinson o. Middlcton, 2 C. B. n. 8. 134; Lloyd V. Guibert, L. K. 1 Q. B. 115; Hunter I', rrinsep, 10 East, 378; Wilson V. Di.-ksoii, 2 Stark. 1; 2 15. k AM. 2; The Oratitudine, iJ C. Uoh. 2ii>: N(>tara V. Henderson, L. U. 7 Q. 15. 2.'r>; Quar- man v. I5urnett, 6 M. & W. 4!t!t; Tobinr. The Queen, 33 L. J. (". I'. !!)!», 204; Kingston v. Wendt, 1 i). B. Div. 367; Tronson v. Dent, 8 Moo. V. C. 41!»; Hoolan V. Midland Uv. (^o. 2 App.Ciia. :'.»'2; lla)'" V. Calliford, 3 C. P. Div. 410; Colvin r Newlierrv, 1 fl. k F. 283 ; Ewbank ». Nutting," 7 C. B. 797. P.VIIT IV ] SHIPMASTERS AS AGENTS OF NECESSITY. 276 af^iiin, on appeal, to the Court of Appeal, when the judgment of Dinman, J., was sustained.' Wlioro the master of a ship, without any authority from the owners of the ship or eargo, executes bottomry hunds on ship, fiviirlit? !Hid carjro, under circumstances which justify him as agent of necessity in doing so, for repairs to the sliip, and where the contruct of alTrcightmcnt does not otherwise provide, as between tlie piirtics to tli • contract, in respect of sea-damage and its inci- dents, he law of the country to which the ship belongs must bo taken to be the law to which they have submitted themselves. Tims, tlie plaintiff, a IJritish subject, chartered a French ship bc- ion;:ing to French owners at a Danish West India port, for a voy- a,'cllt of the df- ft'iidiints, he was iiitiiig within the geiienil stiipc iif liis authority, mid that ciinse. iliii'iitly, iiithoiigh ill this iiarticiilar case the siiie was and has Ihh'Ii found liy the jury to he iiiijiistifiatih', yet the delend- iitiis iiiv respoiisihle for thi' act of their Hijiiit, upon the ]iiiiieiple jaiil down in KwiMiik V. Nutting, 7 C. M. 7!»7, and siiiiiliir cases. This eontelitinn involves SL'Vinil propositions. The {ilaintill's have t" iiiakv nut that the tnaster was the agent "I till' (ii'fii.daiit.s, and I luii of opinion tliit ill lliis they have failed. The goods, the Mill' (il whiili is the snliject of dispute, Were i;irii,.,| uiiil,.)- 11 liill of lading, and, liriiiii'i f.irii; the iiiiLster, in sii:niiig that liil! Ill lading, would be neting on helialf ol tlie peisDiis who were the shipowners, mill till' sliipowners would he the (icrsona re'ijiiiiisiliic tor the carriage of the goods, and lor all things to which the agent would Ih» aide to li d the .sliiiKiwners in eoimectioii with the goods, lint it is open to the phiiiitilfs to negative the presiini]i- tioii of the lialiiliiy of the shipowner- in two wiiy.s, — either by showing l\\n the transnctioiis betwei'ii the shipowners anil the (lef<'iidiiiits wen- sueii as really put the defendants, lor that particiilnr voyage, in the position of the sliipowners, iieniiding to the principles laiil down in Colvin v. Newherry, 1 (1. & F. '283; or that, al- thougii the tran.sactions iietweeii the ship- owners and the defendants did not put the defendants in tiie position of ship- owners, yet tlie\ had so coiiiliicted them- selves, or so contracted with the shippers of the goods, as to make themselves per- Komilly i'es|ionsilile." And on a full e.\- nmination of these two (|iiestioiis, the conclusion was ieachi'cr allowance for salvage and other cxiiriiscs.' In the Julia Itlake,^ the United States Supreme Court laid down the law as to the powers of the ship-master to sell or hypothecate till' (- iiro, in tlie same manner as has hecn done in the English cases, namely, that the master can neither sell nor hyjtolliecato the i'arj,'(), except in case of urgent necessity, and his authority for that purpose is no more than may reasonably be implied from the linunistanecs in which ho is placed, lie acts for the owner of the cargo because there is a necessity for some one to do so, and, like every agent whoso authority arises by implication of law, he can only do what the owner, if present, ought to do. Ne- cessity develops his authority and limits his powers. What he ' Atlantic Mutual Ins. Co. v. Iluth, Ifl ( li. Hiv. 474. Cotton, I.. J,, in de- liviiini; tln' jii(lj,Mncnt of tlii; Court of Aj)- ]K'»I, laiil down the following |ii'ini-i]>U's : "Till' mil' liiid down iti the cases wiiero the Silica of ('iirj,'o have been (lUCMtioneil is, tiiiit tlif master becomes agent for salo cf till' i.'iiif,'o ; that is, ha.s authority to 8tll, sii us to hind the owiuts of the goods t'litnistt'd to him for a dillereiit jturjiose, naiiiily, caniaije to their port of destina- titiii, (iiily where there is a necessity for tli.'it ciiiirse, and that it lies on those wiio ciiiiin title to cargo, as (lurchasers from till' (iiiitain, to prove tliat this ne- cessity dearly existed ; fnrtlier, that it is nnt Miliicient to prove that the master tiioii^jlit he was doing the best for all eon- ei'iiied, or even that the cour.«' adopted WHS, so liir as can be aacertainej, the best fur 111! coMcerniMl. (.*>ee Tronson v. Dent, 8 Moo. 1'. C. 41!t; Aeatosv. Burns, 3 Ex. I>. 'JMi.) The principle is, that the mas- ter is iiutliorized by the owners only to coMvpy tlie goods to the jwrt of discharge, ami that nothing but necessity can au- tlinii/i' iiliii to adopt any other course of aetiiiii. \Vc do not enter into the nues- liiin whether what will justily a sale is to he called extreme or stringent, or the stroiii,'e>t necessity, or commercial neces- sity, ill our opinion, })ur('hasers of cargo fiiiiii a master cannot justify the sale un- less it is estalilished that the master used all reasonable elloits to have the goods coiivived to their destination, and that he eonld iidt by any Tiieans available to him eaiiy tlie goods, or prooure the goods to ne (ariiid, to their destination as mer- clmutahlu articles, or could not do so without an exjwnditure clearly exceeding their value after their arrival at their des- tination. Here the sale was of the ship and cargo as an entirety, and a large and valuable part of the cargo was tin, which, if saved from the wreck, would have been practically uninjured, and certainly ca- llable of being sent on in a nieichantable state. The <|uestion therefore is, whether it is established that the master could not, with the means available to him, have landed, or procured to be landed, at lea.st this portion of the cargo." And, then, after stating the facts, — " It is, in our opinion, umler these circumstances, impossible to hold that it is established that the captain could not have induced some person to undertake the salvage of the cargo. Certainly the master did not use all means within his power, or make any ell'ott either to (uocure funds for en- abling him to save tlie cargo, or to induce others to save the cargo. For both rea- sons, We are of opinion that it is not shown that there was such a necessity for the sale as would authorize tin' master to sell, or !nake him the agent of the owners for thiit purpose." See further. The Karnak, L. U, 2 I'. C. 5(1.1, 512; The (Iratitudine, 3 C. Uob. 240, '258 ; The Au.stralia, Swab. 480; The Margaret Mitchell, Swab. 382; llayman r. Molton, 5 Ksp. 65; I'ndcrwooil V. Hobertson, 4 Camp. 138; Freeman v. Kast India Co., 5 B. & Aid. 617; The Segiedo, 1 Spinks, 36; The Kliza Cornish, 1 Spinks, 46, 47; The Theodore, Swab. 351 ; The Firefly, Swab. 240; Idle v. Hoyal Ex. Ass. Co., 3 Br. & B. 151; The Glasgow, Swab. 145. a 107 U. S. 418. i tl II 1 1 jHi i I 'u i: I u ii; 1^ s;.i I Ii ' 'Hi i^ 1 278 COMMENTARIES ON SALES. [book U, uoea must be directly or indirectly for the benefit of the cargo, ooiisidcrin*; the situation in which it has been placed by the acci- dents of the voyage.* And the louder, upon the hypothecation of the cargo by a mas- ter of the vessel under his implied authority, is chargeable witli notice of the facts on which the master appears to rely as a jiisti- ficatiou for "vhat he is doing. Such a lender is presumed to know that the power of the master is to be determined by tlie nccossi- ties of the case in their legal operation oji the owner of tlio lai^'o, As necessity creat'^^a the agency, and that only can be aiithoiizwl whic''., under tlie circumstances, is reasonable and just, lie must make !>"s own inquiries and judge for himself, and at b.is own risk, whether if the owner were present, he would do or ought to do that, or something croof is clearly on the Icinlcr. The rule is applied also to the hy|)othecation of the ship by the masttv, wl ere less strictness will ordinarily be required than in the hypothecation of the cargo, because the master is the appoiiitod agent of the owner of the ship, but the involuntary agent of tiie owner of the eargo.'^ And where it is for the interest of the shipper that his proiicity should be forwarded by some other vessel ratlier than that it shmM bo hyputihocated to pay for repairs, and where the facts point to the conclusion that such repairs could not be effected without an expense to him of more than it would cost to reclaim his pnipertr. to pay all lawful charges on it, and to send it forward In .soiuc other conveyance; the master has no authority to pledge the ca'go without the consent of the shipper or consignees.'' Maritime hypothecations had their origin in the neeessilleH of CO nmerce, and they are said to be the creatures of necessity ami distress. When j)roperly authorized and duly executed, they mo o a high and privileged character, and are held in gn^it sanctify ' Tim (JiatiUKliiio, 3 ( . Uob. 240, 2'n ; Duncan v. Iti'iiHim, 1 Kxcti. iV)'; Th« Onwiir.l. I-. It. 4 A.l. & !■;.•. :?3, f)7; Hohh V. Til.' Slii]. A.tiv.-, 'J Wnsli. C. ('. 228, 2:<7; Tim I'ackct. 3 .Miis..n, 'i'l.';, 2.19; Npw England Ins. Co. v. TItu Surali Ann, 13 I'ot. 3S7, 400 ; Tlh- Atn.-li.-. (5 V'.Jl. 18, 27. a Tlio Aiirorn, 1 Wli. at. Ort; Tlioinn^ v. (>M!.(irn, lit Mow. 22; TIm' Ainrlif, i! W. 1 18; Till' (JniiM-sl.ot, l> Willi. 1-Jy; 'ni« Lulu, 10 Wall. llfj. * Tlio Julitt Uluki', giiprn. ART IV.] SHIPMASTERS AS AGENTS OF NECESSITY. 879 ()y maritime courts.^ The United States Supreme Court held, in Insurance Company v. Gosslor,^ in the case of a bottomry bond, that as long as the ship exists in specie, the bond attached to her, and that, under the terms of the bond in this case, the bond-hold- ers liad a claim on the cargo saved as against the underwriters on it to witom it had been abandoned and assigned, for the unpaid balanco on the bond. In T' )inas v. Osborn,'' it was conceded that, in England, it has been J"!initoly settled that by the law of England the master of a ship h.iS not power to create a lien on the vessel for the payment for repairs and supplies obtained in a foreign port, save by a bot- tomry hi)iid ; that ho can only pledge his own credit and that of his owners, but cannot, by any act .if his, give the creditor secnritv on the vessel, while, at the sani'.; iime, the personal liabil- ity of the owners continues. These decisions rest u|)on the want of authority in the master, to create, by his own act, an absolute hypothi'cution of the vessel as security for a loan. Hut, it was artiniicd that the maritime law of the United States is settled otherwise, in harmony with the ancient and general maritime law of the coniiucrcial world ; that the master of a vessel of the United States being in a foreign port, has |)ower, in case of necessity, to hypothoeate the vessel, and also to bind himself and the owners, |)ersnnally, for repairs and supplies, and that he does so without any express hypothecation, viicn, in a case of neee8:;ity, he ob- tains them on the credit of the '.essel without a bottomry bond.* Hut the liinitation of the authority of the maater to cases of necessity, not only of repairs and supplies, but of credit to obtain tiieni, and the retpiirement that the lender or furnisher should see to it, that, apparently, such a ease of necessity exists, are as ancient:*" ! well established as tlie authority itself/' To eoi. itute a :u-,e of apparent necessity, not only must the repairs and supplies le needful, but it must be apparently neces- sary for the m; ^ter to have a credit to procure them. If the mas- ter has funds of his own, which lie ought to apply to purchase the supplies wliii'h he is bound by the contract of hiring to furnish liiniself ; and if he has funds of the owners, which lie ought to ap- ply to pay for the repairs, then no ease of actual necessiiy to have ' n<' Viliiliii, 1 W. Roh. 1 ; Till' Wh.uhx- mantli,', 1 |),„1. 201; Tlio Hero, '.: 11...1. 13|i; Till' Ki'ioHTsloy Oiujtlu, 3 Ilugg. 1. ' '.'<> I'. S. (iir), « t!» How. '>'2. * Thi' ^liiii (J.'nnrftl Smiih, 4 Wlirnt. ISS; I'lyioux V. Howiinl, 7 I't'liTs, :t2», •W ; rii,« Virgin, 8 I'i'Iitm, jIMS ; Tho Nwtor, 1 Si.piy, 7;t ; TIk-CIuisiki, 2 Story, 4:.:. ; Tho rii.f Im', Watv's R. 2(i« ; D.ivU V. CUM, Diiv.'is" 1{. I'J. 71 ; Tl..' Willliim iiiiil Ktii<'liiii>, 1 ltlat<'li. & ll.<))! ; I)ii;i.s ". A Ni'W llriji, (iilpiii'.s U. 487 • .Sarchi-l t«. Th.' Mavis. Cial.l..''s W. 186. » .). 14, 1, 7 ; Coiiaiilat M Mure, ch. 107 ; Viiliii. art. li) ; Fmcrifjoti, >"presentatii)ii, to l)e necessary. 2. VVIuM'e proof is made of necessity for the n'|iair8 or supplies, or for funds raised to pay for them by the master, and of (credit given to the ship, a presuin|>tion will arise, cm- elusive in the absence of cvidenius to the contrary, of necessity for credit. 3. Necessity for repairs and supplies is proved where such circumstances of e: gency arc shown as would indiiee a prii- dent owner, if present, to order them, or to proviile futids for the cost i)f them on the security of the ship. 4. The orderiiiL'. liy the master, of supplies or repairs u|H)n the credit of the sliip, is 1 Tltc Miii-iiuo Luuiit, Tboiiiaav. Osbort), It How. 22. a //'/./. ' Tin' Stoaiiil)oiit Saltiina, Pratt v. Reed, ID How. Ml*. « The Soplii,.. 1 Will. Uob. 369. » 9 Wall. 12l», 141. * !» Willi. 7r.S. Ami sec Til.' H'U'wl Siiiitli, 4 Wheat. 44:»; I'eyioiix '•. Ihht.inl, 7 Pi't. ;J'-M ; llik' .Nestor, 1 Sumiii. el; The Foiiilinlr, :>'8iiiim. 'j;!2. -J I'!; I'l'" I'. Iteil, li» How. U.'iii; Thoiimi r (i.lKirn, lit How. '2\); The Aurora, 1 \Vh..it. 'J«, 105 ; The Virgin, 8 IVlers, 55.'i. PART IV.] SHIPMASTERS AS AGENTS OF NECESSITY. 281 sutVieiont proof of sucli necessity to support an implied hypotheca- tion in favor of the material-man, or of the ordinary lender of luoiioy to meet the wants of the ship, who acts in good faith. 5. To sii|)port hyjiothecation by bottomry, evidence of actual ne- cessity i'or repairs and supplies is re(|uired ; and, if the fact of iieci'ssity l»e left unproved, evidence is also recjuircd of due in- (juiiy and of reasonable grounds of belief that the necessity was rciil and cNigent.' Tin; presiunption of law always Is, in the absence of fraud or (!(illiision, that where advances are made to a captain in a for- ci^'ii port, ujion his re(|uest, to pay for necessary repairs or sup- plies to enalile his vessel to prosecute her voyage, or to pay harbor (lues or for pilotage, towage, and like services rendered to the vi'sscl, tliiit they are made upon the credit of the vessel as well as upon that of the owners. It is not necessary to the existence of the iiypothecation that there should be in terms any express plcdirt' of the vessel, or any stipulation that the credit shall be ^ivci on hor accoimt. The presumption arises that such is the fact from tlie necessities of the "essel and the position of the par- ties considered with reference to the motives which generally gov- ern the conduct of individuals. Moneys are not unsually loaned > in th.' ciiHc Df Till' Aniilic, fi Wall. 18 (itw till' tnits as Ntnttd iiiilr, 'Jl'.!), it wns iiisiMrd that fvi'ii if llif ciiouiu.slaiii'r.s I'lilil Inl «itii till- .sale 111' till" Vfsscl hy till' iiiaslfi wi'ic HUcli as to jiistiiy the sale ami I'l^n a valiil titli* to tlic |iiii'i'liasfi', li<-, ni'Viiihcli'ss, took tlic titli' Mil)j('ri to all cxi^tiiii; liens. 'I'lic Siiprciiic ('unit, ill hoMin,' uilitTvvisc, said : " If this jiositiou Wen- Miiiiid, it woiihl iiiutiTially atti'ct iho iiilirrsi, lit roiiiiiii-i'i'c ; lor, as i-xij^ti cics art' ^l'l|^|,llltly aiisiii;;, itM|iiiiiii({ thf iii, ster tii ti iMiin.ili' the voyafic us hopcli'ss, and soil the innperty ill lii'^ ('liar;;c tor tin' lii;;lie>l |iiiee he call p't, Would any man ot ii.iiiiii.ili liilldeliee Imy a ship sold under sileli iiivuuis'.al s, il' lie took the tilh' I'liiMiinlrt red with seerct liens, alioiit wliiill, ill thi' ^'re:it niajoiity of ca-ies, he (ouhl lint liive ihi' o|>|ioitniiity of leaniiii}; aiiy- tliin;; / The jjround on wliiili the ri;^iit to sell lists is, that ill casi' of disaster, tlio mastii, fmni iiecM'ssitv, liceonies the a;;eiit ot all the jiaiiies ill interest, and is liouiid to ill, ilie liest for thfiii that 111' eiiii, in tlio ■'ii,.|iiiiHi ill which III' is iilaced, iiiid, tliiiiluie, hiis the |)ow T to disposi' of tliu |iiii|" iiy fur tli.'ir iH'tielit. When iititliiii;? Ix'tler ran lie done for llle interest of those 'oiiceriii'd ill the ]irii|M'rly than to sell, it is II IM.M' of necessity, and an the iiiiiHlur ^I'N fur all, and is "tl, • ap'iit of all, lie ■<|'IU lis Well for \\,.- lien-holder «.s tlio "wiicr. Till! very object of ihu sale, ac- cordin<.j to the iiiiifortn lurrciit of tlio de<'isii>ns, is to save soniethiii),' for tlie iH'iieflt of all concerned, and if this i.s 8o, the proceeiLs of tile ship, liecc s.sarily, liy operation of law, .stand in place of tho ship. If the ship can only he sold in case of necessity, where the (^ooil faith of the master is iiiiipiestioiied, ami if it he the Jiiirpose of the sale to save soniethiii^ for the )iarties in iiiteie>l, does not solilid Jiolicy recpijre a clean title to he j,Mve!i tiie jainhaser in onler that the property may liriii>{ its full value ' If the sale is iiii- jieached, the law iiii|«)sesoii the purchaser the hiiiden of showing the necessity for it, and this he is in a po>ilioii to do, iHiau.so the f.uts which constitute the Ic^jal neces- sity are within his reach ; hut he cannot know, nor lie expected to know, in tli« exercise of reasonalile diiij,'ence, the nature and extent of tin- liens that have attached to the vessel. Without plllsuill},' the sub- ject furl her, we are clearly of the opinion, when till ship is lawfully sohl, the pur- chaser takes an absolute title devested of all lii'iis, ainl that the liens are '. rails I'er red to the proceeds of the ship, which, in the sense of the adiniialty law, Immoiiii' the Hlllistitllte for the ship." See, further lUt to the liability of the vessel, in inn, for iieei'ssaricH and repairs, allirming the hold- iiiK in The tirajicshot, l» Wall. I'Ji) ; Tiie I.iilii. 10 Wall, llf2 ; The Kaluruina, lb. 20i ; The Custer, 10. 2l.'>. li 'mJ:|| t* !l ' t $ m i; !ti' .. i u \ ; ■( !• i 282 COMMENTARIES ON SALES. [book II. to strangers, residents of distant and foreign countries, without security, and it would be a violent presumption to suppose that any sucli course was adopted when ample security in the vessel was lying before the parties. The presumption, therefore, that advances in such cases are made u[)on the credit of the vessel, is not repelled by any loose and uncertain testimony as to tiie siifn positious or understandings of one of the parties. It can be ic- pellcd only by clear and satisfactory proof tiiat the master was ii> possession of funds applicable to the e.vpensos, or of a credit of his own, or of the owners of his vessel, upon which funds could bo raised by the exercise of reasonable diligence, and that the posst.s- sion of such funds or credit was known to the party making' the advances, or could readily have been ascertained by proper in.jiiiiv. Acting on. these princi[)les it was held in The Kiuily Soudci-,' thut drafts for such expenses were only conditional p.iymuat, and, on their n()n-|)ayment, a lien on the vessel could bo enforced.'^ In Tlio Ship Virgin^ the following principles were decided hy the Su|)rem<,> Court of the Unitod States: 1. A bottomry bund may be good in part and bad in p;irt, and will be upheld by a cdurt of admiralty to the extent to which it is valid. "2. If the supplies and advances were necessary for the vessel, it is incumbent on the owner to prove they couid have been obtained on bis p(M'S(in;il credit. 3, The non-existence of funds, and the inability of the master to get at them, are equally valid causes for a bottomry. 1. A bottomry bond, given by the master after the advances bad all been made, is valid, providing they were made with an uiidor- standing that such a bond would 1)0 given. 5. If the master changes his voyage, without any participation or fraudulent inttiit of the bottomry lender, the security is not thereby invaiid^itt'ii. 6. If the owner receives the vessel, upon a 8tipnlati(m to pay into court its appraised value, with interest and costs, lie cannot insist on allowances because he lias discharged liens for -ioameij's waii's; and if much dtday has inter. eiied, of whieh he has had tlie hnn'- fit, he must p:iy interest. 7. A bottomry bond doe.' not make the owners, personally, debtors.* 'IMie master of a n;.ui.sh vi>*4>*cl being without funds and credit at llaml)urg, in onior to obtain nee(\ssaries t enable his vessel to proceed on a voyage to Alrica an'u, L. H. 4 Ail. \V.sll. -h , . Tl.(! Patiipsn., 13 Willi :i-J!t; k V.r.. 1; Tlir IiidoMiiCiM.', Swat). 4W: Tli.^ lunUall, ;i Wall. 37; Tho Bark The Ndsoii, 1 Hiigg. Ad. U;». UU. Ohusaii, ■> .StDiy, 15(1. PART IV.] SHIPMASTKBS A8 AGENTS OP NECESSITY. 283 «el and bound liimsclf for tlic repayment of the sum ailvanccd, H'itliiu six days after the arrival of the vessel in London No sUuiihUiou WHS nuulo for interest oi any kind. Held in au action of liottoinry instituted in aJnuir.ilty aji-ainst the vissel, that the iiisi'riiiiK'nts were valid bottoniry bonds, an I (hat the holdei"^ were; until led to paynu'iit out uf the procceiis of the vessel, of the sum mivani'ed,to«ifetl»or witlj four per cent interest from the time when the i Minds lu-eamo due.' l;i :in ;icti()u on a bottoniiy bond granted at a forciif!) port on »hi|). carut), and f relight, the owners of ihe eargo j»i( aded that the uKist. r might liave counnunicated with them before hypothecatin}; tlie eaiifo, and llnit !»e had neglected to do so. Tlio plaintiflM in roply alloii-i'd that the ship was an Italian sliip, ;ind tliat by (ho hiw of Itidy such coim/ninication was not ueees.sary. Tiio court JK'ld, on demurrer, ll;at tije reply was bad in law ; that communi- C!itit)n by the master with the eaifro-ovfuer.s, if reasonably praeti- calilo, was necessary to constitute an atrency and to ena!>le him to liyjintiuMMie the cargo; that the ,<4ener!'.! maritime law as adminis- ti.'inl in Hngland was to be a|)p!iLMi, and not (he lex Lei contractus ^ nor the law of the ship's flatj."'^ On appeal, the Court of Appeal reversed the decision of the court below, and held (hat the owner of c-.W'xo who ships it in on boanl a forei'in vessel, sliips it to be (Ji'al'i widi by tiie m:'.s(er aeeordiuii to th<' law )f (he flag, that is, (lie law of the country to which tlu" vessel belonus, unless (hat aiidiordy be limited by express stipulation at the time of the shif)- mont. ThtM-eforo a bond, made by tlie master of a foreign ship liv|)ntlir>catinsi cargo laden on hoard siicli ship, if -lalid according ('i(l>e liiw of the (lag of the 8hi|i, will be enforced i)y (lit; Kuglish Aijiuiralty court, on (he arrest of the ship and cargo at the port of liOininn {\hKj port of discharge witliin (he meanini: of the bond), altlinULdi the conditions iinpo^'d bv Knulish law as essential to tiii> validity of such bond bavo not Im-i-u complifd witlr^ hi The I'ontida,'* i( w.v* decided that to c.>iisti(u(e a valid bot- toiury boiui ihe money uiusl l)e reipured for the necessities of (lie shin, and the authority of the mas(er iu borrow money on bot> t" I . liiMsed on fuich necessity. Reasonable incjuiries by a i'.ii V in.iy be (^videnco of his fnna Jit/in, but will not make a I'Oiul valid in rcs|K}.t of the several ittMus for which it is given to ' Tl,o renilo, r.. V. 4 IV. Div. 210. .•'.•.•Til,. KIpis. I.. K. 4 A'i & Kc. 1. • Till' biiPtauo atiJ Miiria, I.. R. 7 I'r. I'ir 1 ' Til.' Hii..t*;io n'vl (Anr.n, I,. It. 7 Pr. l>iv. i:t7. S.-.' Tit. Htmhurj,'h, Br. k I, '-'":!: Kliinwon r Tl*' ''iiasa Mv.ritim* "1 iH-i:.Mk, 2 App. Ci««. JJ>« ; L!c} J v. Oiiihcrt, (.. I!. 1 Q. n. \\r, • Vuyp r. .\ii-k.T.smi, 3 S»ury, if>'> ; 'I'liC (iliititii- •liiic, 3 •'. K.,K. 240 ; Tin Bii(>iin|ii\itii, 8 M.m. (\ C. ».'.» ; Til" K..rimk, I, li 2 P. »'. .'iO,'; ; Th" Kli/i f oitiish, 1 Sj.iakM, W . I'Ik' Hallfv. I, \i *-' P (' i;»3 ♦ I., t;. -» IV Dp 102, 177. I'llilL; It-; M xi I:: :i 284 COMMENTABIES ON SALES. [book II. the full extent of such items unless they are actually and entirely necessary. Bowcn, L. J., in this case, said : " Shortly expressed, the rule of law is, that tl e master is only the agent to bind the cargo-owner in the hour of necessity, and his authority must be measured by this principle." And Brett, M. R., notwithstamling his expressions in The Gaetano and Maria,^ which we have (luotcd,* said : " The rule that a bond, though valid, is so only to tliu ex- tent to which money is needed for the actual necessities of the ship, is founded on the doctrine, that, by the law of England, the master has no authority to bind the shipowner or cargo-owner, except in case of necessity. The rule should bo even more strin- gent as regards the cargo-owner, for the master does ncjt take goods on board as his agent, and in not his aijent at all uhIchs an overruling necessity arises ilurinij the voi/aije.^^^ A claim for necessaries supplied to a ship does not take priority over a mortgage existing a'c the time the supplies were furnishod, and the mortgagee in possession is not liable for necessaries to the ship, unless the master, in ordering the necessaries, was act- ing as the agent of the mortgagee.* And in The Scio,'' it was held that mortgagees of a ship are entitled to payment in priority to material-men, who, at the time of supplying the materials, were not in such actual possession of the ship as to give them a posses- sory lien over her.* Transactions between the owner and mortgagee of the vessel which might render the voyage illegal, cannot invalidate a bot- tomry bond given by the master to a bond fide lender, who lias only to look to the facts that the ship is in distress ; that the mas- ter has no credit, and that the money is required for necessary purposes.^ A County (\)urt having admiralty jurisdiction has no greatrr jur- isdiction in respect of u claim for necessaries, than that possessed » L. R. 7 Pr. Div. \ir,. * See mi /mi, ji. 'iM, ii. • See, also, lis to what. nro. ami wlidt are »i, Tlif Hcinrich Bjorii, L. R. 8 I'r. Div. i:.], ami io !'r. Div. 44 ; Till' Iliira, a \. &, K. Til (I ; The I'eila, .Swab. Si>.i ; Tlie .Vlfxaii.l.T, 1 W. U(.l.. ;{4(5, 3i)l ; Tlii^ .S,)|.lii«', 1 \V. Rol). ;tti8 ; The Oci-ail, 2 VV. U..l> 2ii8 ; Til- Aii!,'nsta, 1 Dod. 283; Thedtmi, l.iish. 154: 'I'lif [.oclik-l, 2 W. Kol). ;{4 ; Till' Klla .\. ("lark, Br. & L. 32 ; The I'w.. IvI.mis. I, U. 4 P. C. Kil ; Tlic I'a.itic, Br. & L. 'lUi ; The Jatii.'S :H ; Milehesoii r. Oliver, .') K. & U. ll'Jl The .loiiathaii (inodlme, .Swab. i>-l. 5 i.. U. 1 Ad. & Ke. 3.^3. « The j'a.ilie, Br. k L. 243 , Williiinis I). Allsiip, 10 ('. B. N. s. 417. ' riie Marv Ann, L. li. 1 Ad & Kc. 13. .See The Mary Ann. L. I!. 1 A.l. 4 Ec. S, as to the iiiaster'M lii'n tiikiiu.: piece- doane uver tite claim ol thij iiioi tj; ijj^es. MRT IV.] SHIPMASTERS AS AGENTS OF NECESSITY. 285 bv the Admiralty Division of the High Court, and, consequently, ciuniot entertain an action for necessaries supplied to a British 8iiil>, the owners of winch are domiciled in Great Britain.* A suit for necessaries was instituted in llie Swansea County Court, in personam, against the owners, unlinown, of a foreign briir, wliicli was, at the time of the institution of the suit, at Swansoii. It becoming necessary to issue a commission to take evidence from abroad, which the County Court could not do, the cause was transferred to the Admiralty Court. It appeared that tlie claim of the plaintiffs was for money advanced by them to execute necessary repairs to the brig at a British port, and that the money was advanced on the security of an instrument by wliicli the master pledged himself and vessel, and her owners, for tiic npayment of the money, except in case of the total loss oi the vessel on her intended voyage. It was held that the claim was i'ounded on bottomry ; that the County Court had no juris- diction to entertain such a claim ; that, as the cause was trans- ferred from the County Court to the Admiralty Court, the latter had no jurisdiction, either, to entertain the suit; and that it was not competent for the plaintiffs, upon the facts, to waive the in- strument of bottomry and insist on their claim for necessaries, because the claim for necessaries must be considered to be merged ill the instrument of bottomry.^ As the master, in obtaining extraordinary supplies, cr in per- forming such an act as executing a bottomry bond for such sup- plies, is simply an agent of necessity; where the owner can bo conuniinieated with, the necessity for sucii ag icy, and tlierefore such iigency itself, does not exist. It was, accordiugly, held by the Privy Council, sust.-ilning the judgment of ihe Court of Ad- miralty, that, before resorting to bottomry for raising necessary su|i|ilies, it Is ab.soliitely necessary, where practical, that notice shiiuiil lie given by the master to the owner of tlie vessel ; and an alle^r;,tii,ii that sucli owner was insolvent is no excuse for not coinmunieatlng with him, unless he has been judicially declared insnlvfiit. and the ownership of the vess(d has vested In his as- sit'iiees. in which case such notice should then be given to them. And under such circumstances, notice to the mortgagee of the vessel would not suffice.^ The existence of the necessity which validates the hypothc ' All^n 1-. Oiirlmtt, fl Q. B. D. 165. S.'o Th,. Dows.", L. R. 3 Ad. & Kc. 13.5 ; Kv,T:inl V. K.-n.lall, I.. K. 5 C. P. 428 ; Th.' ¥\h A. Clark, Br. &h. 32. '^ Tlir i;i].is, h. U. 4 A<]. k Ko. 1. See Tho lii.loimtnhle, Swab. 446; liray v. Bates, 9 Mi-t. 237. ' Rnrron v. Stownrt, Tho " Piiiiiiiiiii," L. R. 2 I'. C. 11)9 ; nllinMiiiKtlii'.iti'ljfiiicnt of tho Court of Atlinimlty, L. U. 2 Ad. k Eo. 390. Sen Thu Boimpnrtc, 8 Moo. P. C. 459 ; Tho CnrKo ex Tlw lluiuburg, ii Moo. P. C. N. B. 289. it I N ii s ! U 4 '. 286 COMMENTARIES ON SALES. [book II. ; ; !•■ n I (. tion of cargo by bottomry is to be ascertained by evidence in the usual manner ; and the moaning of " necessity," in respect of liy. puthccation by the master, is analogous to its meaning in other parts of the law. It has been described as a liigh degree of iucmI ; a degree which arises when clioico is to be made of one of soveral alternatives under the peril of severe loss if a wrong choice should be made. In the case of a voyage, it is probably correct to say that any alternative for the captain is better than total loss of the ship and cargo, and that he is under a necessity of choosing another alternative, if any should be possible; and in res|)ect of bottomry, any combination of events which would prevent the completion of the voyage with profit, unless money should lie obtained l)y l)ot- tomry, would raise the question whether there was need for bot- tomry in such high degree as to create a necessity.' In this case, the master of the vessel, chartered from Galveston, U.S., to Liverpool, received before sailing from the charterer vari- ous sums in part payment of the freigiit, and after taking on l)oanl a cargo, sailed for the port of destination. Tiie vessel, ImviiiLr in the prosecution of her voyage met with bad weather and sullVrtd damage, put into Hcrmuda, where the master incurred heavy ex- penses for repairs aud supplies. The repairs were executed and the supplies furnished, witiiout any promise of a bottomry bond; but the law of IJormuda giving a right of arrest of the ship to the creditors for the repairs and supplies, the master, to complete the voyage, having written to the agent of the owners of the ship and of the cargo, and not receiving any answer within the time an answer might have been returned, raised the funds necessary for the payment of such supplies, on bottomry of the ship, cnrj^o, and freight. On a suit brought by the assignees of the bond, tlie own- ers of the ship not opposing, the Court of Admiralty ^ pronounceil for the validity of the bond, so far as it regarded the ship, carjro, and freight, aud the ship was thereupon sold, but })ro(luce(l a sinn far less than sullicicnt to cover the sum due on tlie bond. The consignees of the cargo, who were also entitled to the fiiiirht, claimed to retain in their hands the amount of freight, witli inter- est and insurance advanced by them in part-payment before the commencement of the voyage, and j)aid the freight, short <•! tliat auiount, into court. The court below disallowed this abatcnunt. and ordered the whole freight to be paid into court. On appeal, the judicial committee of the Privy Council held that, under the circumstances, the master was warranted in resorting to a l»i>t- tomry bond, and that the necessity of the case warranted the liy- " Kainak," « The Karnuk, L. R. 2 Ad. & Ko. 2S9, * Droogp r. Snnrt, Tlie L. li. 2 V. C. 505. J13. PART IV.] SUIPMASTEllS AS AGENTS OP NECESSITY. 287 pothccation of the cargo as well as the ship and freight ; but, as the latter was, by the agreement between the charterer and the iuastor, in part paid in advance, the retention of the amount of such prepayment by the consignees of the cargo was upheld, as the master, by hypothccatiug the chartered freight, could give no riglit to more freight than the owner had a right to demand from the charterer.' A maritime lien does not arise in a contract to build a ship, or in a contract to furnish materials for that purpose. In respect to 8ucl» contracts, it is competent for the States in this country to cicuto such liens as their legislatures may deem just and oxpe- diont, not amounting to a regulation of commerce, and to enact rea.sonaljle rules and regulations prescribing the mode of their eniorconicut, if not inconsistent with the exclusive jurisdiction of the Admiralty courts.^ In lliugstou V. Wcudt,^ whoro expenditures were mi^de for the purpose of saving the cargo of a stranded ship, under circum- stances wliich would have justified the master to make them as an a},'((nt of necessity ; the master put tiie plaintiff, a ship-agent, in po.ssession of the ship and cargo, with authority from the master to do, as his agent, what was for the benefit of all concerned. The plaintilT did work and expended money in discharging the cargo, and brought it to a place of safety, whore he retained |)osses8ion of it. The expenditure by the plaintiff was not for the purpo.sc of enabling tiie shipowner to perform his contract and to earn frci tion to enfur);c sucli a lien by that mode of proceeiling is exclusive in the District courts. Edwards v. Klliott, 21 Wall. 632; 557 ; Brookman v. Jiamill, 43 N. Y. 554 ; The Josephine, 39 N. Y. lU. See, also. The Lottawanna, 21 Wall. 558 ; where the whole (piestion of the Jurisdiction of the Admiralty courts is most claliorately examined in the opiidon of tin- court, and in the dissenting judgment of Clitford, J. » 1 Q. B. I). 307. ' •t 1 t ! ! 1 ! ♦ i \ ) i. ;■ i ; i'' i . . 1 " ( : ! i'i i 288 COMMENTARIES ON SALES. [book II. N '• ' ! fi H l& ■ i ■ by an assignment of the bill of lading, after the expense had been incurred. Although the judgment is given with sunie hcsitution, there seems to be no reason to doubt its soundness.' The master may become, as he did in Attwood v. Sollar,^ ex necessitate the agent of the shipper to transship the cargo, while he is, at the same time, the agent of the shipowner, la such a case, as representing antagonistic interests, questions of ilitli- culty may arise as they did in Attwood v. Sellur, in whicli case it may bo a matter, as between the conflicting interests represented by the master us agent of necessity of the shipper and slupowucr, of great micertainty as to the course the master should pursuo in such an anomalous position.^ W. was the registered owner of certain shares in a sliip, and had been entered on the register as managing owner. The de- fendant subsequently became the registered owner of other sliuies in the ship. The defendant was not aware in fact that W. was so registered as managing owner. W. sent the ship on a voyage without the defendant's knowledge, and contrary to the terms of an agreement made between them. The defendant did not i)ar- ticipate in the adventure, and had previously informed W. that he did not intend to navigate the ship or take any part in her management. The plaintiffs supplied necessaries for the ship previous to such voyage, upon the order of W., without tlie knowl- edge or consent of the defendant. The plaintiffs, before supply- ing the goods, consulted the register, and found the defentlaut's name entered therein as part-owner of the ship. It was liold, by Bowen, J., that the fact that the defendant had allowed tlio entry on the register describing VV. as managing owner to remain un- altered, did not, per se, amount to a holding out of W. as his agent, so as to render the defendant liable for the nccessuriis sup- plied by the plaintiff, and that, inasmuch as W. had not, in fact, authority to bind the defendant, the plaintiffs could not recover against the defendant for such necessaries.* The plaintiffs, in an action of necessaries against a foreign ship, having, at the request of the master, advanced money to pay wages to the crew, pilotage, towage, light and dock dues ; for re- porting the vessel, and for telegrams and postage, claimed to bo paid these charges in priority to the claim of a bottomry bond- holder who had advanced money on bottomry at the port of loading. > See Moran v. Jones, 7 E. & B. 523 ; Notnin V. Henderson, L. K. 6 Q. B. 34G ; 7 Q. B. 225. See, where the parties acted witliout authority, Nicliolson p. Chapman, 2 H. BI. 254 : Castcllain v. Thompson, 12 C. B. N. 8. 105. « 4 Q. B. Div. 342, 347. « See Maude k P. on Ship., p. 433; Shiplon V. Thornton, 9 A. & K. 314. ♦ Frazer v. Cuthbertson, 6 Q. B. Div. 93. I'AHT IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 289 It was conceded tliat all these claims except for the dock dues ; for reporting the vessel, and for telegrams, should have the prior- ity clainu'd. The court held that dock dues come within the rule as to priority, but that the advances for reporting the vessel, for tc'li'irruuis, and for postages, did not.' The statement of ehiim in an action of necessaries In rem iilK'givisiou ou (lenuu'rer, that the statement of claim showed no right of action in respect of the vessel as against the defendant.''^ The master of a foreign vessel lying in the port of Quebec, lieinir without funds and credit, by means of a bill of exchange drawn upon a firm of shij)-brokers in Lt)ndon proi'ured the ad- vance of a sum of money for necessaries for the ship. The bill of exohauge was accepted and paid, but the acceptors, not having received the amount of the bill from the shipowners, instituted an action against the ship for the amomit of the bill. It was held l)v Sir Robert Phillimore in the Admiralty Division, and atlirmed by the Court of Appeal,'^ following the cases of The Omri,'* ami The Wataga,'' tiiat the Court of Admiralty had jurisdiction to e:. ^ /^. w '/ Hiotographic Sdences Corporation ^ 4< \\ \ <=.'' #k ^.M.<^ 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 '<^ "s "q.^ ■<" MP. * . ^0 y. # ;\ \ ;\ A 290 COMMENTARIES ON SALES. [book II, 'W im the bill of sale, applies only to the character and privileges of the vessel as an American ship. It has no application to a for- eign vessel sold by the master by necessity.^ In The Cobequid Marine Insurance Co. v. Barteaux,^ the Priw Council held, reversing the judgment of the Supreme Court of Nova Scotia, that, although a master may under circumstances of stringent necessity effect the sale of the vessel so as thereby to affect the insurers ; yet such power is jealously watched hy the courts, and is rigorously confined to cases of extreme necessity, such as where the circumstances, after sufficient examination of the vessel's condition, after every exertion in the master's power, within the means at his disposal, to extricate her from peril, or to raise funds for her repair, leave him no alternative but to sell her as she is.^ Where drafts are fraudulently drawn on the owner of a vessel for pretended repairs, supplies, insurance, and commissions, althou[.'h expressing on their face that they are " recoverable against the vessel, freight, and cargo," as they bind neither the owners nor the vessel, and the drawer of the drafts has no lien on the vessel which he or any one else can enforce in admiralty, bond fide hold- ers of the drafts for value, while they are not affected, so far as their remedies against the parties to the drafts are concerned, by the fraudulent character of the transaction, have no more claim against the vessel, not\> ithstanding what is expressed on the face of the drafts, than their fraudulent assignors had.* The master has a maritime lien on the ship for his expenditure for necessaries, even against a botid fide purchaser of the sbip.^ » The Amelie, 6 Wall. 18 ; Wendover V. Hogehoom, 7 Johns. 308 ; Sharp v. United States Ins. Co., 14 Johns. 201 ; Weston V. Penniman, 1 Mason, 306. a L. R. 6 P. C. 319. 8 See Keniier v. Kingrove, 6 Ex. 263 ; Navone v. HaiUIon, 9 C. H. 30. ♦ The Woodland, 104 U. S. 180. 6 Tlic Uingdove, 11 Pr. Div. 120; The Feronia, 2 A. & E. 65 ; The Jenny Lind, 3 A. & E. 529 ; The Alary Anne, 1 A. & E. 8; The Fair|.ort, 10 Pr. Div. 13; In re Rio Grande Do Sul Co., 5 Ch. Div. 282. The master of a vessel when abroad is the agent of tlie owners, and has power to make contracts iu relation to freight which are binding upon the owners. But when an owner is on hand, and is exclusively attending to the shipment of the cargo, he is not bound by the master's contract ; but to relieve himself from liability he must show the fact that he was exclusively attending to the shiriment of the cargo. Iu Ward v. Green, 6 Cow. 173, it was held that it is not enough that one of the own- ers is on board tis supercargo ; aiul wliere this was the case, and the master of a gen- eral ship gave a receipt for a quantity of Spanish dollars for transportation without the knowledge of the owners, ami which was not put in the freight list, tin- niomy being stolen on the voyago, it was iitlil that the owners were lial>l(\ See Boucher V. Lawson, Oas. Temp. Hardw. 83, IS3; King V. Lenox, 19 Johns. 236 ; Walter i'. Brewer, 11 Mass. 99. For a case of en larged agency to a master to sell aini l>i v cargoes, see Bicknell v. Smith, 31 X. V 259. And for a case where tiic facts coii' stituted the master agent both of the shipper to deliver the cargo ami of the purchaser to receive it, see Smith v. Dav- enport, 34 Me. 520. In Eads i;. The Steamboat II. D. Bacon. 1 Newb. Ad. 274, it was held that the master when upon a voyage is tlu' ircneral agent of the owners, and as they aic hoiinl by his acts whilst acting as such agent PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 291 within the scope of his authority, he haa power as tlte af,'ent of his owners to use and emjiloy at their expense every neces- saiv TiR'aiis to save his sunken vessel. The owners of a lishing-vessel may hire iiii'ii to navigate the vessel, and to fish, for aiooiiiit of the owners, on wages instead of sliari's; and if one of the owners act as iiiiistcr, and the others do not interfere in the iiiaiiafjement of the vessel, he will be (ii'L-mi'd tiieir agent, and such a contract mailt: by him in his own name will inure to thiir use, and he binding on them. Baker i". Corey, 36 Mass. 496. The mas- ter is the owners' agent for all pui'poses cominj; within the scope of his authority lidriiifj the voyage ; but he does not tliereljy become authorized to pay claims against his owners which do not accrue ihuiiig the time while he has charge of the vessel. His agency is but for a lim- ited time, and he caimot extend it beyond the time ])rescribed by his principal. Kel- ley I'. Merrill, 14 Me. 228. If the owner charters his vessel to the master lor a certain period, the master covenanting to victual and man her at his own cost, lie is to be deemed the owner pro hac rice, and he, like any other char- terer under similar circumstances, is alone resiioiisible for supplies for the intended voyage. Hallett v. Col. Ins. Co., 8 Johns. 27-2. But where the transaction is not a posi- tive chartering, but a letting of the vessel on shares, although the master engaged with the owners to provide the supplies at his own cost, the owners are still liable, unless tlie pi^rson from whom the supplies are purchased is aware of the arrangement. In the absence of any notice to the seller that the vessel was let on shares, or of an ep]iortnnity by reasonable care and cau- tion to ascertain the fact, the case is the ordinary one of the master of a vessel buy- ,' ne. The Marine Ins. Co., 1 Mason, 344, Story, J., expresses a strong doubt whether the master, even at a ju5. The steward of a steamer was in tlic habit of purchasing daily sui)plies for litr use. During the continuance of his cm- ploynie- t he made a contract with the owners by which he bound himself to keep, for his own account, on bduid of the boat, a restaurant for the convenience of passengers, and at the same time to feed the ollicers and crew, about twenty in number ; to provide servants for tlie lioat, and to have all the washing of tlic limi] of the boat propcsrly done, 'i'lii.s coiitrart was never made jiublic ; and the iilaintilF, who had been furnishing meat to the steamer, continued to do so without being aware of its existence. The court hM, that as he had not given credit to tliu steward, and as he was justilicd, by tiie course of conduct of the owners, in be- lieving that he w..s dealing with tiie iioiit, the owners and steamer^ were liiiblc. GrisL'l V. Steamer Olivia, 6 La. Atin. 4fil. Th(! master of a ship has by law no authority to sell the cargo, unless in c;ism of absolute necessity. In case of ship wreck, without the power of transsliip- ment ; of capture, or other casualty inter- rupting the voyage ; or where it becomes necessary to sell part of the cargo to en- able the vessel to prosecute the voyap', and in like eases, the master beconics, of necessity, the authorized agent of the owners, freighters, and all coiioiTiieii. And he has power to sell the f,'""'!' which are damaged, or of a perislmble na- ture ; or if any other necessity exist for the sale ; but not othi^rwise. J5iit the mere possession of the goods, without any such authority, express or iinplici!, pves the master no power, and his sulc [msse^ no title. Stillman v. llurd, 10 Tix. lOS"; Freeman v. The Kast India Co., :> B. & Aid. 617. It is an estahlisheil principle at common law that a possessor of pi'r- S(mal chattels cannot transfer to fuiotlnr a greater right than he has himself. If he have neither projjcrty nor aiitiiority, his sale will be invaliil. Lickbanwv i: Mason, 1 H. Blk. 360 ; B;utop i\ Iloare, 1 Wils. 8; Wilkinson v. King, 2 Camp. 335. It is the duty of the master, when his vessel is disabled in the course of tlie vny- age, to procure another if he can, and tike on the cargo. Em?rig., tom. 1, 4'27; ^\il- son V. The Royal Kx. Ins. Co., li Camp. 623; SchefTelin v. The New York his. Co., 9 Johns. 21. This duty arises from the character of agent for the owner of the cargo, which is cast upon him Iroin tlie ne- cessity of the case, and in that cbarncter he is bound to act for the best interest of PART IV.] SHIPMASTERS AS AGENTS OP NECESSITY. 293 !' kU all coiici'rned. His acts, in the execution of such a trust, and in relation to the prop- irtv iiiiiler his care, are valid and binding Hjioii the property, except in cases where his power is limited by positive rules. Kmcrigoii lays down this doctrine, and Jecliuv.s th:it if the shii) bo forced by ne- cessity into a foreign port, tlie master be- loiiu's tlio agent of the owners of the cargo as well as of the sliip, and he is bound to sue to the jireservation of the cargo, and lo ilu whatever the circumstances of the case shall dictate to be for the best, and wliat it is to he presumed the owners woiilil do if they were present. His char- acter of master invests him with the care and responsibility of a general agent of the ship and cargo ; and he would be very blaniable if lie left the cargo at a foreign port while he liad it in his power to carry it by another vessel to the port of destination. Knierig., tom. 1, 429, 433. And the master lias no right to sell the cargo at the i)ort of necessity, and then put an end to the adventure, if he can hire another vessel to carry the cargo to its destined port. See Miller v. Fletcher, Doug. 231 ; IMantamour v. Staples, 1 T. R. 511, n. ; Tlie Gratitudine, 3 C. Rob. 240 ; Van Orncron v. Derrick, 2 Camp. 42 ; Wil- son V. Millar, 2 Stark. 1. And whore a ship puts into an inter- mediati' port in distress, and is condemned as unseaworthy, and it becomes necessary, for the transportation of the cargo saved to its destined j)ort, to hire another ship ; tlie caigo, on its arrival at the port of destination, is chargeable with the in- crease of freight, if any, arising from the clwrti-r of the new ship; that is, the extra freight beyond what the freight would have been under the original charter- paity if the necessity of hiring another ship had not intervened. SearTe v. Seo- vcU, 4 Johns, Ch. 218 ; Mumford v. The Commercial Ins. Co., 5 Johns. 262. Where goods were shipped at one jiort, consigned to particular individuals at another, and the vessel put into an intermediate port in distress, and the mastin- transferred the goods to another vessel, but instead of taking a bill of lading for their delivery to the original consignees, took a bill for delivery to his own order, and by his di- rections the goods were delivered to a mer- cantile house dillerent from tlie original consignees, who sold the same ; the pur- chaser, notwithstanding that he paid a bond fide ])rice for the goods, is liable for their value to the owner, the master with whom the goods were originally shipped having no authority to ilispose of tlie gooils, either by himself or hi,-' agents. Evt ; Cov- ington & L. R. Co. V. Bowler's Hciis, 9 Bush (Ky. ), 468. But tiiere is no lule of law which prohibits a slmreludder from dealing with the company or fr')!!i suiiis or being stied by it. And it has been luM that the president of a company bus the right, with his own funds, to " purchase PAIST V.J CORPORATIONS. 297 A stockholder must make a proper showing of wrongs which he has sufl'cred, and also of efforts to obtain relief against thcni, the coiiipauy's notes ami drafts, and, when hi- Joes .so, to succeed to all tho rij^hts of tlio iufviou.s liolder.s. IJeach v. Miller, 2 111. \l<\<- 151. Ill Harts v. Brown, 77 111. ■J-il, it is said : " We Iiave never known it lau'stidiiLiI, that a director or stock- liuMiT may trade witli, borrow from, or loan iiiuiicy to the comiuny of which he is a incnilii I', on tho same terms and iu like luiiiuicr as otiior persons." Tho same (luctriiu' is licld in Twin Lick Oil Co. c. Marbiiiy, HI V. S. 587 ; I'.uell v. Biickiii},'- k\U], 10 liiwa, 235 ; Whitewell f. Warner, 20 Vt. 42 j ; Sarjjent v. Webster, 13 Met. 497; ILivwood r. Pii(,'rim Soc, 21 Pick. 270 ; Kills V. Boston, H. & E. Ky. Co., 107 Mass. 1. DiriTtors are jirohibited, when a corpo- ration is insolvent and about to go into lii[uiilati()n, I'rom preferrinj; debts due to theiusflvcs from tiie corporation, or from pivfiMiiiig debts in the payment of which tiu'v liave a personal interest. A corpora- tion, tiioiii,'h insolvent, has the jwwer to jiR'tcr creditors, but tho relation which (liiectois bear to the corporation as trustees ot its assets is sudi as they cannot lawfully I'Xti'cise such power for their personal ad- vanti^i'. Ivoeliler v. IJlack Kiver Falls Co., 2 Black, 720 ; Drurv i-. Cro.ss, 7 Wall. 21111 ; Biadlcy u. Farwell, 1 Holmes (Cir. Ct.), i-i:i ; Corbctt v. AVoodward,5 Sawy. (Cir. Ct. ) 417, 419 ; Richards r. Insurance Co., iS N. H. 2t)3 ; Lippincott v. Carriage Co., 2.') I'cd. Iicp. 58C ; Duncomb v. Rail- road Co., 88 N. Y. 1 ; Hopkins' Appeal, 90 Ta. 7t) ; Robins v. Embry, 1 Sm. & M. 207 ; Ciirran v. Arkansas, 15 How. 304. In Adams V. Kehlor Milling Co., 35 P'ed. Kep. 43:!, it was held, tliat if the directors of an insidvent corporation, in the distri- Imtiou of its assets, pay a creditor iu full, to the exclusion of others, the choice ought not to lie iiilluenced solely by relationship existing between the directors and the cieditor so jircfci'ied, or by other considera- tions of a purely selfish nature. And a prcl'iTcncc given by directors (the majority of whom being brothers of the deceased) to the estate of a deceased director and presi- dent of the company was declared illegal. In liundy i-. .lackso'n, 24 Fed. Kep. 628, it was held that although the president and cashier of a bank could not make a sale of the stock of the bank to themselves that would bind the bank, but that the directors might have sold tliem the stock ; and when the bank elects to ratify the sale they made to themselves, the president and cashier will not be heard to set up their own illegal or unauthorized act to avoid their contract ; nor will they be permit- ted to allege that the sale and purchase were merely colorable, or to avoiil a for- feiture of tlie bank's charter, or for any other deceptive or illegal purpose. For other cases of sales between cor[ioration8 and directors see note to 35 Feil. Ken. 436. A stockholder purchased stock with the knowledge that it was illegally issued, and witli this knowledgi! voted for direc- tors, and subseipiently applied lor a writ of quo irnrninto to the ilirectors to show why thev exercised the jiowersof the com- pany, 'lie court refused the apidicatiou on the ground that he who has concurred in inducing a party to e.\ercise an ollice cannot be lieaid on an application to turn him out of ollice. Cole v. Dyer, 21) Go. 434. For cases of .sales of stock where it was claimed that tlu; sales were illegal as between the purchasers and the comjiany, see the Souther Life Ins. Co. v. Lanier, 5 Florida, 110 ; Vermont Central R. U. Co. V. Clayes, 21 Vt. 31 ; Selma, &<•. IL R. Co. V, llountree, 7 Ala. 670 ; Henry v. Vamilia, &c. K. R. Co. 17 Ohio, 190; Chester Glass Co. v. Dewy, 16 Mass. 94 ; Minor v. Mechanic Bank, 1 IVt. 46 ; Zabriski v. The Cleaveland, &c. R.R. Co. 23 How. 381. A minority of the stockholders of a corporation may maintain a bill in erjuity, oil behalf of themselves and the other stockholders, for conspiracy and fraud, whereby their interests have been sacri- liced, against the corporation and its officers and others who jjarticipatcd in the fraud ; but they will forfeit their right to e(|uitable relief by unreasonable delay. I'eabody v. Flint, 88 Mass. 52. See Veazie V. Williams, 3 Story, 610 ; Nash v. Adam-s, 10 Cush. 252 ; Fuller v. Melrose, 1 Allen, 166. In Smith v. Poor, 40 Me. 415, the plaintiff, being a member of a corporation, ami having made a contract with it, brought an action against some of the directors, claiming compensation from them, for certain alleged fraudulent acts and votes, by reason of which he had been damnified ii» his various relations with the corporation. The court held lliat the directors of a corporation, being chosen by the votes of the corporators, are the agents of the corporation, and are responsible to it for official miscoiidiict and I rand in the discharge of their duty, and are not liable to such action at the suit of stockholders. See Franklin Fire Ins. Co. v. Jenkins, 3 Wend. 130 ; Smith v. Hurd, 12 Met. 371 ; Robinson v. Smith, 3 Paige, 222 ; Horsey V. Veazie, 24 Me. 9 ; Allen v. Curtis, 26 Ct. 456 ; Stetson v. Faxon, 19 Pick. 155 ; m^ iHv I" , n :u ;; 298 COMMENTARIES ON SALES. [book II. I%1\ "in before a court of equity will interfere and set aside the transac- tions of a railway company or of its directors. It is not enough Piitrkk V. Oaa Co., 17 Mo. App. 4tl2 ; Halts V. Wood, 37 N. Y. 318 ; Buniutt i', St. Louis Car Hooting Co., IS) Mu. Ahp, 349. Ill V'erpliink v. Mercantile Ins. Co,, 1 Edw. Cli. 84, it was iu'M tiuit tlie rdution of cesluis quii trust and trustees does not exist between stoeklioldeis of an incur- jwratod coniiiany and the eorpuiation it. self; nor are they in the relative .situation of partners; nor are the stoeliiiolilcis eicil- itors of the eonipany. The e(ini[i:iny [a merely a creature of tiie law, — a politic and not a natural body. It is made ii|iliy the compact entered into by the stock- holiU'rs, each of whom becomes a cor- porator identilied with and foiniiiij; a eonstitU(!nt part of the eorpoiate lioily. Wlien a corporation a,:^i;regate is ri)iiiii'4, and the management an:. Turner, 7 Bro. P. C. 2r>r> ; (liav v. Chap- lin, 2 lluss. 126; The Maidiattaii Hank c Lydig, 4 Johns. 347. It is a well-settled principle of equity Jurisprudence tliat a party holding a fiduciary relation to trust property cannot become the jiurcliaser of such property, cither directly or iii'j'" reetly; and if he does, the sale is void- able, and will be set aside at the mere Cunningham v. Pell, 5 Paige, 607 ; Hod- son V. Copeland, 16 Me. 314. Wiiero a company used the invention of one of their directors without an express contract to pay for its use, it was held that an implied assumpsit for the value of the invention would lie. Deane v, Hodge, 35 Minn. 146. And a corporation has been held liable, upon an implied assumpsit, to l)ay the reasonable value of services ren- dered for the corporation by a director outside of his duties as director. Rogers V. Hastings & Dakota Ry. Co., 22 Minn. 25. But he could not, as director, aid by his vote in fixing the amount of such com- pensation, lor in that case there would bo II conflict of interests inconsistent with his otHcial duty. Jones v. Morrison, 31 Miini. 140, 148. See Rider v. Union India Rubber Co., 5 IJosw. 85, 97 ; Gardner v. Butler, 30 N. J. Ivj. 702; Marston r. Swett, 66 N. Y. 2u6, 212; Marsh v. Dodge, 4 Hun, 281. Purchases nuidu by a corporation cannot afterwards be im- jieached by those who at the time of the purchase constituted a majority of the directors, whore there is no impress of unfairness or characteristic of fraud about the transaction. Hill v. Nisbet, 100 Ind. 341 ; Kit.hen v. St. Louis, &c. U. W. Co., 69 Mo. 225 ; Merrick v. Peru Coal Co., 61 HI. 472 ; Bristol Milling Co. v. Probaseo, 64 Ind. 406 ; Ward v. Polk, 70 hid. 309. A company was held liable to a director for a loan to the corporation, although ho was one of four directors present when the order was made for the issue of a note for the amount, the other three directors vot- ing for the order, and there being no issue or charge of fraud, or want of good faith on the part of the director holding the note, with reference to his vote at the meeting of the 'irectors, nor charge of fraud against the other directors, Leavitt V. Oxford & (}. S. M. Co., 3 Utah, 265. See Buell v. Buckingham, 16 Iowa, 284 ; Hayward v. Pilgrim Soc, 21 i'ick. 270 j Smith w. Skeary, 47 Conn. 47 ; The Unitecl States R. S. Co. v. The Atlantic & G. W. R. R. Co., 34 Ohio, 450 ; Twin Lick Oil Co. V. Marbury, 91 U. S. 587. But a contract with a director, where there were but three directors, and he and one other, only, voted in favor of the contract, the contract was held invalid, Bennett v. St. Louis Car Roofing Co., 19 Mo. App. 349 ; for the ilirector must establish his contract by proof that he dealt with other agents of the corporation who had power to act in the premises. If his own vote was essen- tial to give life to the contract, then it cannot be upheld against the corporation. I'ART v.] CORPORATIONS. 299 tliat there may bo a doubt as to the authority of the directors, or as to the wisdom of their proceedings. Griovauces, real and Bub- tileasnri' nf the bent'fiuiarics, although such HiiiaiiiiT may have {mid u full prico and cruiiicil ni> iidviiiitiige. See Newcomb v. ?iroiiks, l(i VV. Va. 59, and oostes there I'itfd. Tliis rule is not contined to tru.s- ti't's aiul lidiiciaries in the technical sense uf tlii'sc terms, but it extends to every litTSdii cemiii^ witiiin the reason of the mil'. It embraces trustees, guardians, t'Xfcutors, ndininistrators, agents, cash- iers of blinks, factors, auctioneers, .slier- itfs, coMiiiiissioners in bankruptcy and tlifir siilicitors, assignees of bankrupts, iittDiiii'Vs-.it-law, directors of corporations, mill otlicr parties lietween whom liduciary ri'latidiis exist. Fo.\ v, Macbeth, 2 Bro. (.'. C". 4110 ; Br.ithers v. Brothers, 7 Ired. Kip l.'iO ; Pa ton v. Thompson, 2 Jones Kip (N.C.) 28.5; Scott v. Freeland, 7 Sm. & M. 417; Davone v. Fanning, 2 .Johns, eh. 2,VJ; Xewcomb v. Brooks, 16 W. Vn. H3. Ill .\bbott V. America.. Hard Rubber Co., 3:i Harb. [>7S, a sale of the corporate [iiopcity was set aside because directors of the coiiipaiiy were interested in the pur- chase. Tile same rule as to purchasers of corporate property by directors has been applied ill many cases, Cumberland Coal Co. r. Sherman, 30 Barb. 553; Banks v. Juilali.S Conn. 145; Hoffman Steam Coal Co. V. Cumberland Coal & Iron Co., 16 Mtl. iiiC)-, Abeideen l!y. Co. v. Blaikie, 1 McQueen, 461 ; llobinson v. Smith, 3 Paige, 222; Percy v. Milladon, 3 La. 568; Hoilges I'. New England Screw Co., 1 R. 1. 321 ; Benson v. Hawthorne, 6 Y. k C. ,S26 ; The York & N. M. Ry. Co. V. Hudson, 16 Beav. 485; Sweeny r. Sugar ReliiiiiigCo., 30 W. Va. 443. The .same rule does not generally apply to the stockholders of a corporation wlach is iiirtMa;;(Ml by a Vioard of directors. Whetlier it does or not niu.st depend upon the special facts of the particular case, — the general rule b<'ing that a stockholder of such corporation may purchase. But in cases where the stockholders assumed and iieii'ormed the duties which ordinarily heloiig to a board of directors, it has been held tliat the usual disabilities of the di- rectors attached to them. Reilly v. Ogle- l«y, 2.'. \y. Va. 36, 43. And see" Banks v. .bulali, S Conn. 145; Moore v. Schoppert, 22 \V. Va. 282. But where the matter is entirely void of fraud, the purchase by a director (^an be ratified by the stock- holders. Cumberland Coal Co. v. Sher- man, 30 Barb. 553, 573. It is said in tliis case tliat the confirmation by the ■stoekholilers cannot be by a majority, but that, " to bo complete, it must be the joint act of the whole body." But the authorities cited for this proposition — A> parte Hughes, 6 Ves. 622 ; Ke parte Lacey, 6 Ves. 628; A'.c purle James, 8 Ves. 337 ; Davouc v. Fanning, 2 .lohns. Ch. 264 — do not sustain it. While the re- lation iH'tween directors and stockholders is in some res])ects that of trustees and cestuis qui' trust, it is submitted that in one e.s.sential particular in this connec- tion it is radically ditrerent. Thus, or- dinarily, the act (d" one cestui que trust, like that of one of the co-owners of per- sonal property, will not bind the other cvstuis que trust, or the other co-owner.s, yet, as a general rule, in the absence of fraud and bad faith, the votes of a ma- jority of stockholders, duly taken, bind their co-stockholders. See the Northwest Transportation Co. v. Beatty, 12 App. Cos. 689, 593 (stated infra, ji. 306 ct svq. ), where the law is clearly laid down; and ca.ses there citeil. The mistake niaile in Cumberland Coal Co. V. Sherman, 30 Barb. 553, 573, is cau.sed, we think, in conloiinding stock- holders with ordinary ccsluis que trust, wherea-s, as we have jwinted out, there is a very marked distinction between the two. In Fliteroft's Case, 21 Ch. Div. 634, the distinction we take is sustained. There, proj)erly, directors are designated *' quasi trustees for the company." The same distinction is siistaincil in In re Darham, 25 Ch. Div. 752, 761, 763. The proper distinction is taken in Greg- ory V. Pat(diett, 33 Beav. 606, applicable to all cases where there is an absence of bad faith, that the power of the majority applies to all matters of their business, but not to matters beyond the ])owers of the company, nor to measures inconsistent with the object for which the company was constituted. The case of the New Orleans, &c. U. R. Co. V. Harris, 27 Miss. 517, 537, accords with the holding in the Knglisii ca.se3. The court there say : " Incorporated com- panies are subject to the same jirinciple which prevails in the community at large, that the acts of the major it i/ in cases within their charter pou-crs are Migatury on the viinorilij." The general rule on the sub- ject is well expressed by Tilgliman, C. J. He says : "The fundamental principle of every association for .self-goviuMinieiit is that no one shall be bound e.vcept with his own consent, exi)ressed by himself or by his representatives ; but actual a.ssent is immaterial, the assent of the majority being the assent of all; and this is not only constructively but actnolly true ; for that the will of the majority shall in all cases be taken as the will of the whole is an 1; m^ H':l 800 COMMENTARIES ON SALES. [UOOK II. ■^■3 stantial, must exist, and before an individual stockholder can be heard, he must show that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress ol his }j;rievance8 or action in conformity to his wishes.' A corporation, organized and existing under the laws of Ohio, where it liad its principal place of l)usiness, entered into a con- tract in Colorado, with the defendants, who were citizens ui Oolu- itnplied, but an cssoiitinl, ati|iulati()ii in all associations of tliis sort. St. Mary's Chmrli, t» S. & If. 517. When tho char- ter has niaili! no provision on the subject, ersons owning a majority of the stock had the nnifuestioned right to com- bine, and thus secure the board of direct- ors and the management of the property. Corporations are governed by the republi- can ])rinciple, that the wlwle are hound by tlie acts of the major it i/ ivhen the acts con- form to the law of their creation. The co- operation, then, of these parties in tho election of the olficers of the company, and their agreement not to buy or sell stock ex(H'pt for their joint benefit, cannot properly be characterized as dishonest and violative of the rights of others, and in contravention of pul)lic policy. If one man owned a majority of the stock ho surely had the right to select the agents for its honest management." The same mistake that was made in Cumberland Coal Co. V. Sherman, 30 Barb. 553, 573, in treating directors as trustees instead of quasi trustees, is made by Ritchie, C. J., in Beatty v. North West Tr. Co., 12 Sup. Ct. of Can. R. 605 ct seq. (stated post, p. 306 ct seq.), the whole of whose judgment pro- ceeds on the ground that directors and stockholders • ccupy the strictly relative position of trustees and ccstuis que trust, which, as we have pointed out, is not ac- curate, directors being at the utmost but quasi trustees, and in their relation as mere stockholders to the other stockhold- ers (the point wdiich was involved in Beatty v. North West Tr. Co., 12 Sup. Ct. of Can. K. 598) they are not even that. On the other hand, as we have pre- viously shown, it is an undisputed princi- ple of law that directors and ollicers of corporations occupy a position ul' tiiist, ancl must act with the utmost ^'(jdij I'iiltli. They will not bo allowed to deal with thi' corporate funds and property for tiicir ini- vato gain. They have no right t> \rn\ with themselves and for the corpDnitiou at the same time, and they must accuiint for tho profits made by the use of the com- pany's assets, and for moneys in.ele liy i\ breach of their duty. To that e.\tir.t tlitii position is very much the same as that of trustees. Wanl v, Davidson, 89 .Mo, 44j; Wondell V. Railroad, 103 U. S. OS! ; Keo- kuk Packet Co. v. Davidson, 95 Mo. 4«"; Attaway v. The Bank of St. Louis, W .Mo. 485; Bliss v. Matterson, 45 N. V, 22; Tobey v. Robinson, 99 111. 233 ; Ci.pelaiid V, Johnson ALuuif. Co., 47 Huii, 235; Butts V. Wood, 37 N, Y. 317 ; (oleiiian V. iiailroad, 38 N. Y. 201 ; Jletropolitan ]{. R. Co. V. Manhattan R. U. Co., 11 Daly (N. Y.), 367, 492 ; ManNawghtoii v. Osgood, 41 Hun, 109 ; Hovle i'. I'latts- burgh R. R. Co., 54 N. Y. 314; Blake ». Buffalo Creek It. K. Cj., 56 N. Y. 486. But in Branch v. Roberts, 50 Biuli. 435, it was held that neither stockholders nor creditors could sue directors for diunages on the ground that stock or tiie oMiga. tions of the company became vaUieh'ss liy the ndscomluct of the directors. And see MacNaughton v. Osgood, 41 llun, 10ft; Brown v. Vandyke, 8 N. J. Kq. 795. hi GiH'ord V. R. R. & Tr. Co., 10 N. .1. Eq. 171, it was held that a court of e(iuity will interfere on behalf of a single stock- holder if he can show that the corpora- tion are employing their statutory jiowers, funds, etc., for the aceomplishiiient of piii- jioses not within the scope of their insti- tution, and an injunction in such oases will be granted ; but that when acting' within the scope and in obedieiue to tin' provisions of the constitution of the coi])!)- ration, the will of the majority, duly ex- pressed at a legally constituted assembly, must govern. See Ward v. Soe. of At- torneys, 1 Coll. 370; March v. Extern Railroad Co., 40 N. H. 548, as to the riglits of minorities of the stockholders of a corporation. 1 Dimpfell V. Ohio & Mississijijii Ry. Co. 110 IT. S. 209 ; Hawes v. Oakland, 104 U. S. 450. 'ART v.] CORPORATIONS. 80t rado, by wliicli it was agreed that the plaintiffs should sell to tho (Icfondaiits, and deliver to them on the ears in Ohio, a steain-en- friiic and other macliinery, in consideration whereof tho defend- ants were to pay tho plaintiffs the priee stipulated in tli(! contract for such machinery. By Art. 15, see. 10, of the constitution of ('oli)rudo, it is provided that " no foreign corporation shall do any liiisinoss in this State without having one or more known places of business, and an authorized agent or agents in the same upon wlioin process may bo served." IJy sees, 23 and 2(J of an Act " to jirnvidc for the formation of corporations," passed in 187(5, the leg- islature of Colorado enacted provisions to carry such clause of tho constitution into effect. In an action brought to recover from the defondants damages for breach of the contract, they relied for their defence on tho fact that this clause of the constitution and act of tho legislature had not been com|)lied with. On demurrer, tlic jud;ios of the Circuit Court divided in opinion, and ccn'tified tiifir division of opinion to the United States Supreme Court. Tho right of the people of a State to ?»i .cribe generally by its consti- tution and laws the terms upon wiiich a foreign corporation shall lie allowed to carry on it business in the State, has been settled.^ And it was conceded that if the contract on which the suit was brought, was made in violation of a law of the State, it could not 1)0 enforced in any court sitting in the State charged with the in- terpretation and enforcement of its laws.^ But the court held that the constitution and statute related to the regular and customary liusincss operations of the corporation, and did not apply to a sin- f,'le transaction like the one in question.*'^ Bonds were given by a railway company to a construction com- pany for work for the railway company, the payment of which bonds was resisted by the stockholders of tho railway company, who cliiirged that the bonds were fraudulently issued, two of the directors of the railway company being members of tho construc- tion company, and the construction company having agreed to re- lease from their subscriptions for their stock, certain of the stockliiddcrs of the railway company, including all the directors, such subscriptions amounting to ir>10,.500 of the whole •'5!41,000 ' Hank of Augusta v. Earle, 13 Pet. M9 ; Piiiil V. Virginia, 8 Wall. 168 ; Ducat V. Chicago, 10 Wiill. 410. - Hunk of the United States v. Owens, 2 Pet. U-17 ; Groves v. Slaughter, 15 Pet. 443! Harris v. Runnels, 12 How. 79; Brown v. Towkington, .3 Wall. 377 ; David- son r. LnnWr, 4 Wall. 447 ; Hananer v. Doiine, 12 Wall. 342 ; Wheeler v. Russell, 17 Mass. 258 ; Law v, Hodson, 11 East, 300 ; Little v. Poole, 9 B. & C. 192 ; Tliorne v. Travellers' Insurance Co., 80 Pa. St. 16 ; Allen v. Hawks, 13 Pick. 79, 82 ; Roche V. Ladd, 1 Allen, 436, 441 ; /t re Comstock, 2 Saw. 218. * Cooper Alanufacturing Co. v. Fergu- son, 113 U. S. 727. And see Utley v. The Clark-Gardner Mining Co., 4 Col. 3t)9 ; Potter v. The Bank of Ithaca, 5 Hill, 490 ; Suydam v. The Morris Canal and Banking Co., 6 Hill, 217 ; Graham v. Hendrick, 22 U. Ann. 523. I ' ■iPi m h ; 1 u i:^ H 302 COMMENTARIES ON SALES. [book II. stock subscribed ; which stock was worthless, and for which the individual stockholders were liivble. The court held, that as the contract was fraudulent, it was voidable at the election of tlie par- ties affected by the fraud, and, on the stockholders repudiating the contract, the bonds were held void in the hands of parties who were not bond fide holders for value ; ^ but that, although the origi- nal contract was fraudulent and "void," the construction company could recover against the railway company for the worlv, labor, and materials actually furnished to the latter, not as estimated by the prices named in the contract, but on a quantum meruit, for their real value to the railway company .^ A single stockholder in a corporation has, undoubtedly, the same right to institute legal proceedings against the coiporation for the protection of his individual rights, that a third party, not a stockholder, possesses ; but when he resorts to such proceedings to protect, not simply such interests, but the property and rights of the corporation, against the action or threatened action of third parties, thus assuming duties properly devolving upon its direct- ors, he must show a clear breach of duty on their part in neglect- ing or refusing to act in the matter, amounting to sucli grossly culpable conduct as would lead to irremediable loss to him if he were not permitted to bring the matter before the courts. And such neglect and refusal must not be simulated, but real and per- sisted in, after earnest efforts to overcome it.^ - Thomas v. Brown ville, &c. R. R. Co., 109 U. S. 522. See Twin Lick Oil Co. v. Marburv, 91 IJ. S. 587 ; VVsinlell v. The Unioft Pacific U. R. Co., 4 Dill. 339 ; 103 U. S. 651. ^ See also Gardner v. Butler, 3 Stew. Eq. 702. 3 Detroit v. Dean, 106 U. S. 537 ; HawHs V. Oakland, 104 U. S. 450. The maua9, §§ 5130, 5137), prescribing the business ot banks, and prohibiting the dealing by them in real estate except in exceptional cases. The act authorizes loans to be made "on personal security." Money was loaned on a promissory note, secured by a deed of trust to a third party on real estate, wide h was, in effect, a mortgage on real estate, with a power of sale. The United States Supreme Court followed the doctrine laid down in the First Nat. Bk., kc. v. Itaire, 36 Iowa, 443, where it is said : " Kvery loan or discount by a bank is made in ",m\ faith, in reliance, by way of seoiirity, upon the real or personal jiroperty of the obligors ; and uulesa the title by mort- [book II. PART v.] CORPORATIONS. 303 which tlie tiat as the of the par- cpudiating )artios who li the origi- in company ('ork, bxbor, jtimated by meruit, for ibtcdly, the corporation i party, not proceedings ' and rights tlon of third 1 its dircct- [ in ncglect- 5uch grossly to him if he ourts. And •eal and per- The rpstriction ■ as a si:!iiile in- clarc, that what lor was any pen- t the Stiiti' could valid as to the ight to raise the " Whitney V. National Bank 11. tonal Bank i'- arose umler the 1999, §§ 5136, siness ot hunks, injr by them i'l oe^itiiinal cases. ;o be inatle " on ■y was loaiU'il on il by a (led "f •al •-■state, which oti real estate, .0. United States he doctrine laid • &c. V. Haire, said : " Kverv is niado in f;ood ay of security, provi'i'ly "f '^" titiu by mort- The president of a company purchased with his own funds, and with the icnowledge and approval of the directors, the outstanding bond of the company. In an action by the assignee of the bond for the amount thei'cof against the company, the United States fiupreme Court held, that the relation between the president and the company at the time of the transaction did not furnish any defence, either at law or in equity. The relation undoubtedly was one of a confidential and fiduciary character, but there was no ground to challenge the good faith with which the business was conducted. The bond of the company was purchased with the president's own means, and not those of the company ; the value paid was full ; and every step, when taken, was made known and assented to by .the directors of the corporation. The transaction was legitimate in itself and beneficial to the company, and the dealing was not by the president with himself, but with the cor- poration, in fact, represented and acting by other directors, with full knowledge of all the facts.^ In Hotel Company v. Wade,^ where a bill was filed to foreclose a mortgage given to the plaintiffs to secure bonds issued by the defendants, a corporate b.dy, it was claimed by the defendants that the bonds and mortgage were invalid, by reason of the trust re- lation which the lenders of the money, who were a majority of the board of directors of the company, sustained to the stockholders.^ The court below found that the bonds and mortgage were not void upon the ground that the lenders of the money were also the di- rectors of the company ; the terms of the contract having been sanctioned by the stockholders ; the money loaned having been necessary to complete the company's building, and having been aj)- plied to effect the purpose for which it was borrowed. The United gage or conveyance is taken to the bank directly, for its nse, the case is not within the jiroliibition of ihe statute. Tiie fact that the title or security may inure indi- rectly to the security and beneht of the bank will not vitiate the transaction. " The utmost that c:an he. said in favor of this view is that th(! strict letter of the statute is not contravened. There is, however, quite a nuinber of ca.ses in which a similar lirinciplc has been held in connection with analosious statutes. See Silver Lake Bank ». North, 4 .Johns. Ch. 370 ; Harris v. Kunnels, 12 How. 79 ; The Planters' Hank v. Shari>, 12 Miss. 75; The Grand tiull'Bank I'. .Archer, 1« Miss. 151 ; Hock Kiver Hank v. Sherwood, 10 Wis. 230 ; Mott c. The United States Trust Co., 19 Bi.rh. 5()8 ; Baird v. The Bank of Wash- ington, U S. & H. 411 ; Potter v. Me- 1>owp11, 43 Mo. 93 j Watson v. Hawkins, 80 Mo. 550 ; Greeu v. Hart, 1 Johns. 690; Chappel V. Allen, 38 Mo. 213; Shoe- maker I'. National Bank, 2 Abb. (U. S.) 416 ; Pittsburg Car Works v. Bank, Thonip. Nat. Bk. ('as. 353 ; Smith v. Sheelv, 12 Wall. 3 Ht u States Supreme Court affirmed the decree founded on this decision, saying : " Transactions of the kind have often occurred, and it has never been held that the arranijement ivas invalid, where it ap- peared that the stockholders tvere properly consulted^ and sanctioned what was done, either by their votes or silence." * The plaintiff, having borrowed money from the defendants, gave them stock as security for the loan, subsequently authorizing the bank to sell the stock at their discretion. The stock was then much depressed, ranging from $15 to $70 per share. Three of the directors, to protect the firm from loss, purchased the stock at 887 per share, and received an assignment of it, purchasing it only on the condition that the plaintiff should be apprised of the transaction. The stock, at $87 per share, just paid off the indebtedness of the plaintiff to the bank. The directors, after the purchase of the stock, paid all the assessments made on it, and received such div- idends as were declared on it. Some four years after the trans- action (the company, in the mean time, having consolidated its stock with that of another company, and the stock having become profitable) the plaintiff filed a bill to set aside the transaction. It was found that the plaintiff had been duly apprised of the pur- chase of the stock, by the directors, and, that if he did not ex- pressly assent to what had been done, the most favorable construc- tion for him which could be put upon the evidence was, that he was at least silent when notified of the proposition, and made no objection to its acceptance. The court held, that the facts pre- sented insuperable obstacles to any decree in favor of the i)laintiff. If the sale made by the bank was originally impeachable by him, the right to question its validity was lost by his acquiosceiico, as he was then in a condition, immediately after the sale, to enforce such rights as the law gave him, being, as he was, fully apprised of their nature, and of all the material facts of the case, ilc was held, also, to have lost by his laches any remedy which he might have had. So the case failed, both on the ground of ac(puesoence and of lapse of time.^ The director of a company which was in embarrassed circum- stances, lent money to the company, taking a note therefor; to se- cure which a deed of trust of the property and franchise^, of the 1 Sne Stark v. Colfiii, 105 Mass. 328 ; Imperial Merc. Cicdit Assoc v. Coleman, L. R. 6 Ch. 558 ; Troup's Case, 29 Beav. .353 ; Hoare's Case, 30 Beav. 225 ; Smith V. Ijansing, 22 N. Y. 520 ; Busby w. Finn, 1 Ohio St. 409. See a rather remarkable case. The North-West Transportation Co. i;. Beatty, L. R. 12 Ap. Cas. 589, stated infra, p. 806 et seq. * Hayward v. National Bank, 96 U. S. 611. See Smith v. Cliiv, Anib. fi45; Twin Lick Oil Co. v. Marlmrv, '.a l'. .^. 587 ; Bu.lg.'r v. Badger, 2 WmU. 87 ; Marsh v. Wliitmore, 21 Wall. 178 ; Har- wood V. Railroad Co., 47 Widl. In this last-named ease it is said : "A party cannot be allowed to remain passive, \iw- pared to RiHrm the transaction if the con- cern should prosper, or repudiate it if that should prove to his advantage." PART v.] CORPORATIONS. 805 company was made to a third party, with the usual power of sale. The property was sold under the power of sale ; was bought in by tlie director's agent for the director, and was conveyed to him soon after. Four years after, the company filed a bill to invalidate the sale. There were charges of fraud, but the court expressed itself satisfied that the defendant had loaned the money to the corpora- tion in good faith, and honestly, to assist it in its business in an hour of extreme embarrassment, and took just such security as any other man would have taken ; that, when his money became due, and there was no apparent probability of the company paying it at any time, the property was sold by the trustee, and bought in by defendant at a fair and open sale, and at a reasonable price ; that, in short, there was neltlier actual fraud nor oppression ; no advantage was taken of defendant's position as director, or of any matter known to him at the time of sale, affecting the value of the property, which was not as well known to others interested as it was to himself, and that the only mode left the defendant to make his money was by the sale and purchase. The court ac- cordingly hcld,^ that while it is a doctrine founded on the strictest morality ^ that a director of a joint-stock corporation occupies one of those fiduciary relations where his dealings with the subject- matter of his trust or agency, and with the beneficiary or party whose interest is confided to his care, are viewed with jealousy by the courts, and may be set aside on slight grounds ; and that, while it was true that the defendant, as a director of the corpora- tion, was bound by all those rules of conscientious fairness which courts of equity have imposed as the guides for dealing in such cases ; it could not be maintained that any rule forbids one direc- tor among several from loaning money to the corporation, when the money is needed, and the transaction is open, and otherwise free from blame. A doctrine to the contrary of this, while it would afford little protection to the corporation against actual fraud or oppression, would deprive it of the aid of those most interested in giving aid judiciously, and best qualified to judge of the necessity of that aid, and of the extent to which it might safely be given. Tlie decree of the Supreme Court of the District of Columbia, sustain- ing the transaction, was affirmed by the Supreme Court of the United States. The court also held that proceedings to set aside such a sale and purchase should be promptly taken. Those who seek to set it aside cannot delay, in order to speculate upon ' Twin Lick Oil Company v. Mar- Wall. 299 ; Luxemburg R. R. Co. v. Ma- onry, 91 U. s. r,S7. quay, 25 Beav. 586 ; The Cuniberlnnd Co. '^ Koeliler V. Black River Falls Iron v. Sherman, 30 Barb. 553 ; Hoffman Co. v. Co. 2 Hlack, 715 ; Drury v. Cross, 7 Cumberland Co., 16 Md. 466. VOL. I. 20 II K m 1 .1 ■ I'; 306 COMMLNTARIES QN SALES. [book II. the chances which the future may give them of deciding profit- ably to themselves whether they will abide by the bargain or rescind it. In order to exercise the right of rescinding or avoid- ing a contract or transaction, the necessary steps must be taken as soon as it can be reasonably done, after the party witli whom that right is optional is aware of the facts which give him that option .1 The North- West Transportation Co. v. Beatty,^ is an extremclv simple case. The singular feature about it is the almost ridicu- lous antagonism of the Canadian courts, in their various decisions in the case, over the simple question which it involves. The case starts with the admission all around that it is one entirely free of imputation of fraud or collusion, and that all suspicion of unfair dealing must be discarded. So the simple question resolves itself into this : Where a voidable contract, fair in its terms, and within the powers of the company, had been entered into by its directors with one of their rumber as sole vendor, has such vendor the right to exercise his voting power as a shareholder in a general meeting of shareholders to ratify such contract ; and can his doing so be deemed oppressive by reason solely of his individually possessing a large number of votes, acquired in a manner author- ized by the constitution of the company, and which, with the votes 1 Badger v. Badger, 2 Wall. 87 ; Har- wood V. Railroad Co., 17 Wall. 78 ; Marsh ». Whitman, 21 Wall. 178 ; Vigers v. Pike, 8 CI. & F. 650 ; Wentworth v. Boyd, 32 Beav. 467 ; FoUansbee v. Kilbreth, 17 111. 522 ; Bliss i;. Ednionsou, 8 De G. M. & G. 787 ; Prendergast v. Turton, 1 You. & Coll. Ch. 98. In Twin Lick Oil Co. v. Mar- bury, 91 U.S. 587, 593, the court say: " The officers, and probably all the stockholders, who were not numerous, knew of the sale AS soon as made. As there was no actual fraud, they knew all the facta on which their right to avoid the contract depended. They not only refused to join the defendant in the purchase when that jjrivilege was tendered them, but they generally refused to pay assessments on their shares already made, which might have paid the debt. The defendant then had a survey made of the ground leased to the corporation, the lease being the main thing he had acquired by the sale. When the lines were ex- tended, the lease was found to embrace a well, then profitably worked by another company. Of this piece of good luck he availed Iiimself, and by suit and compro- mise he obtained possession of that well. He put more of his money into it, and changed what had been a disastrous specu- lation by the company into a profitable business. With full knowledge of all these facts no action was taken until nenrly four years after the sale ; and not, until all the Iinzard was over, and the defeiulant's skill, energy, and money had made his |mrchase profitable, was any claim or assi'ition of right in the property made by the ooriwra- tion, or by the stockholders." On this ground, also, the decree of the court below was affirmed. A., who had covenanted with the super- visors of a county to construct a nuol, subject to the approval of a superin- tendent, who was autho.'izod to stop the work if it and the materials fuiiiisiuMldid not coniorm to certain plans and specifica- tions, entered into a contract witli B. to manufacture and erect in its propfr |iositinn all the wrought-iron work for tlie gaol, according to such plans and sjx'iitii'ations, but made no provision as to the approval of the superintendent. The court luldthat B. was entitled to recover on his contract the value of the work done and materials furnished by him, if he substantially com- plied with the plans and specifications, or if a strict compliance therewith hail been waived by A., although the supervisoi's, in the exercise of their power umlor their contract with A., condemned li.'s work, and required A. to replace a portion of it- WoodruflT V. Hough, 91 U. 8. 596. 3 12 Ap. Gas. 689. PART v.] CORPORATIONS. 807 of those voting with him, constituted a majority of the votes of tlie shareholders? The Ontario Chancery Division* held (a. d. 1884), that without any regard " to the fairnesss or unfairness of the transaction," the shareholder, because he was a vendor, had no rifrht to vote on the question at the meeting of the shareholders. The Ontario Court of Appeal (a. d. 1885) unanimously reversed this holding, on the ground, in effect, that the case being entirely free from imputation of fraud or collusion, there was no principle of equity to prevent the vendor exercising his rights as a share- holder and voting as a shareholder in favor of the purchase, although he had a personal interest in such purchase. The Su- premo Court of Canada, on appeal (a. d. 188G), with singular and unaccustomed unanimity, but on the most varied and inconsistent grounds, — scarcely any two of the judges holding the same view in the matter, — unanimously reversed the decision of the Ontario Court of Appeal, and affirmed the decree of the Chancery Divi- sion. On appeal to the Privy Council (a. d. 1887), the decision of the Supreme Court of Canada was reversed and the decision of the Ontario Court of Appeal was sustained. Sir Richard Bag- gallay, in delivering the judgment of the Judicial Committee, thus referred to the well-known principles governing the case : " The general principles applicable to cases of this kind are well estab- lished. Unless some provision to the contrary is to be found in the charter or other instrument by which the company is incor- porated, the resolution of a majority of the shareholders, duly convened, upon any question with which the company is legally competent to deal, is binding upon the minority, and consequently upon the company, and every shareholder has a perfect right to vote upon any such question, although he may have a personal in- terest in the subject-matter opposed to, or different from, the gen- eral or particular interests of the company. On the other hand, a director of a company is precluded from dealing, on behalf of the company, with him?"'^- and from entering into engagements in which lie has a personal interest conflicting, or which possibly mtiy conflict, with the interests of those whom he is bound by fiduciary duty to protect; and this rule is as applicable to the case of one of several directors as to a managing or. sole director. Any such dealing Or engagement may, however, be affirmed or adopted by the company, provided such affirmance or adoption is not brought about by unfair or improper means, and is not illegal or fraudulent or oppressive towards those shareholders who op- pose it. . . . It is clear upon the authorities that the contract entered into by the directors could not have been enforced against 1 6 Ontario R. 300. Bts f J v i" » ■ iv f- 308 COMMENTARIES ON SALES. [book II. I f I ¥ i1 the company at the instance of the vendor, but it is equally clear that it was within the competency of the shareholders at their meeting to adopt or reject it." ^ If an agent employed by a principal to purchase property for him sells to the principal property of his own, which he acquired before the agency existed, concealing from the principal the fact that it is his own property, the principal has a right, on discover- ing the real facts, to rescind the contract. But if he declines to rescind, or, with a knowledge of the facts, so acts with the prop- erty as to render rescission impossible, the principal is not enti- tled to call on the agent to account for the profit which he has made by the sale, i. e., either the difference between the price which he himself gave for the property and the price whicli he 1 North West Transportation Co. v. Beatty, L. R. 12 Ap. L'as. at p. 593 et seq. See Hotel Co. v. Wade, 97 U. S, 13 ; Twin Lick Oil Company, v. Marbury, 91 U. S. 587, and other cases, supra, in this Part. And see Mason v. Harris, 11 Ch. Div. 97 ; Smith v. Anderson, 11 Ch. Div. 274 ; Davidson v. Tulloch, 3 Macq. 783 ; Hiiyle v. Plattsburg & Montreal R. 11. Co., 54 N. Y. 314 ; South Baptist Soc. of Albany v. Clapp, 18 Barb. 35 ; The Board of Commissioners, &c. v. Rey- nolds, 44 Ind. 409 ; Foster v. Tlie Oxford, &c. R. Co., 13 C. B, 200 ; Cobb v. Good- hue, 11 Paige, 113. In Chesterfield, &c. Colliery Co. v. Black, 37 Ij. T. N. s. 740, Bacon, V. C, said : " That the directors of this company were in a fiduciary rela- tion is plain beyond doubt. If, therefore, the sale, being made by two directors of the company to the company, were open to any suspicions of any of the misconduct which lias happened in many such like ca.ses, of course it could not stand. On the other hand, if that transaction was in itself fair ; if there was no conduct on the part of the trustees which could mislead the cestui que trust; if every disclosure whicli the nature of the case required was made, then I know of no reniton tvhif the bargain is not as valid as if it had taken place between strangers." See further Me- Dougall V. Gardiner, 1 Ch. Div. 21 ; Gregory v. Patchett, 33 Beav. 605 ; Ex parte Moss, 14 Ch. Div. 394 ; Pender v. Lushin<;ton, 6 Ch. Div. 70 ; East Pant du United Lead Co. v. Mert-yweather, 2 H. & M. 254 ; lie Haven GoldMg. Co., 20 Ch Div. 151 ; Mozley v. Alston, 1 Ph. 790 ; Foss r. Harbottle, 2 Hare, 461 ; Gray v. Lewis, L. U. 8 Ch. 1035, 1051 ; M;'nier u. Hooper's Telegi-aph Works, L. R. 9 Ch. 350 ; Lord v. Governor & Co. of Copper Miners, 2 Ph. 740 ; Stupert v. Airowsmith, 3 Sm. & G. 176 ; Kent v. Jackson, 2 De G. M. & G. 49 ; The Lon- don Merc. Discount Co., L. R. 1 K(i. ill ; lie Hanen Gold Mining Co., 20 Ch. Div. 151. But it has been repeatedly laid down that thorough good faith is ie([uirfil on the. part of directors in their tnuiMic- tions r>'ith their companies, and it is thdr duty to use their best e.xertions for the benefit of those whose interests aie com- mitted to their charge, and they are bouml to disregard their own private iiiteiesU whenever a regard to them conlliets with the proper discharge of such (hity. Im- perial Merc. Credit Ass. v. Coli'iiiaii, L R. 6 Ch. 563, n., per Malins, V. C. ; AVy-flite James, 8 Ves. 345 ; F'awcettw. Whitchouse, 1 Rus. & M. 132; Hichens «;. ConRivve, 1 Rus. & M. 150, n.; Benson r. Ilciitliorii, 1 Y. & C. Ch. 326 ; Beck v. Kantcrwicz, 3 K. & J. 230 ; Aberdeen By. Co. v. Blaikie, 1 Macq. 461 ; Bank of London v. Tvinll, 27 Beav. 273 ; 10 H. L.Cas. 26 ; Cliaiiliii V. Young, 33 Beav. 414. Directors are under an obligation to the shareholders at large to use 1 heir Iwst exertions in all matters which relnte to the affairs of the company, for tlio welfare of the concern thus entrusted to tluir charge. And, without any speeiiil pro- vision for tlie purpose, it is I'y law an implied and inherent term in tin' eiitfiiri'- ment, that they should not make any other profit to themselves of thattiusto' employment than tiieir remuiieiailim m directors, and that they shall not aei|uire to themselves, while they remain diieetcirs, an interest adverse to their duty, lienson V. Heathorn, 1 Y. & C. Ch. 326, 311. i^ce Gregory v. Patchett, 33 Beav. .')9.i ; lie- man V. Ruflford, 1 Sim. N. a. 550 : llenrv V. The Great Northern Rv. Co.. 4 K. &•'• 1 ; Foss V. Harbottle, 2 Hare, 4(!1 ; M»zley V. Aistv^n, 1 Ph. 790 ; Norway v. l!"'"';. 19 Ves. 144 ; Prendergnst v. Tmtnii, 1 ^. & C. Ch. 98 ; Hoare's Case, 30 Beav. 225. PAUT v.] CORPORATIONS. 809 obtained from the principal, or the difference between the latter price and the market value of the property at the time of the sale to the principal.^ The facts in this case were, that, in 1871, cer- tain coal areas were purchased for £5,500 by six persons, of whom F. was one, and were vested in G, as a trustee for them without disclosing the trust. In 1873 a company was formed for the pur- pose of purchasing these areas and other property. F. was one of tlic directors, and as such he concurred in effecting a pur- chase by the company from G., for £12,000 cash, and £30,000 in fully paid-up sliaes, without disclosing the fact that F. was a part- owner. In 1875 the company was ordered to be wound up. In 1878 a meeting of contributorics was called, at which two rival schemes were brought forward, one — a knowledge of the facts having, in the mean time, been obtained — for repudiating the purchase of the coal areas ; the other for adopting the purchase and selling the property. The latter scheme was adopted, and was confirmed by the court. The liquidator accordingly sold the property, but at a heavy loss. A contributory then took out a summons, under the English Companies Act, to make F. liable for misfeasance as a director in allowing the company's seal to be affixed to the agreement for purchase by the company. Pear- son, J., dismissed the summons. On appeal, the decision was sustained,^ by Cotton and Fry, L. JJ., Bowen, L. J. dissenting. It was conceded that the right to apply under the Companies Act created no new rights, but only gave a summary mode of enfor- cing rights which existed independently of that act.^ 1 In re Cape Breton Gp., 26 Ch. D. 221. 2 n>i(l, 2<> Ch. D. 795. ' Tlic (lissentiii<5 judgnient of Bowen, L. ,1., is vi'iy alily roasoneil ; but, on the facts of the ease to which th<* law is applica* Me, it is, we tliiiik, conclusively answered by Fry. L. J. As the |ioint is nn iinpor- tint one, ami covers (|uestions in principle in ('(luiicction with the law of sales liable at any time to arise, ami as the ca.se is in some respects one of first instance, we quote at some lenjjth from the rea.soning of Fry, ii. J. He says : "This case is not the case of an af;ent who, after he has acct'ptcil tlie aj^eiicy, has acquired ))rop- iTty, tlie purcha.se of which was within tlit> sco]i(' of his agency, and then has re- sold that property to his princii>al at a larger smn. in which case it is obvious tlutt the principal may say that the orig- iiiiil purchase by the agent at a smaller price was a )mrchase on behalf of the prin. filial. Nor is this the case of a man who accoptp an agency to buy some article in tlie market, and then sells to his principal his own goods, in which case it may be that the agent is liable for not performing his agency by ]>urchasiMg in tlie market, 8up]>osing it was possible for him so to do. This case is distinguished from that by there being a direction to buy a specifin property. Nor, again, is this the case of an agent who, by any subseossiblo. I express no ujiinion whether or no in that case the jirincipal would have a right against the agent, notwithstanding tho non -rescission of the contract. This is a case in which the agent, belore accepting the agency, had an intej-est in the pro|i- erty, and during the agency sold that property to his principal without di.scios- ing his interest. Tiiat in such a case the principal would have a right to re- scind there can be no doubt. The option which the principal had has in this case been exercised by confirming the contract with Knowledge of the facts ; and the question is whether, after that affirmance, the agent is liable iu any sum to his prin- ^ w ' ill V.sk H 810 COMMENTARIES ON SALES. [book II. The case was appealed to the House of Lords,* and the deci- sion of the courts below was affirmed, but on entirely different grounds from those taken by either Pearson, J.," or by the Court of Appeal.^ The House of Lords simply held that the appellant had failed to make out his case, the evidence adduced by him not showing (the burden of proof resting on him), either that the director had not disclosed his interest or that the purchase price was above the value. The case was fully dealt with in all its different aspects. As the respondent was interested in the ])io|h erty bought by the company of which he was a director, the House looked upon the matter as one of no doubt, that he was bound to disclose that interest to the other directors of the company who were entering into a contract for the purchase of the property, and that his failure to make that disclosure would entitle the company, upon discovering hi? interest, to rescind the sale. And cipal. There is no authority which deter- mines this point, and it therefore is to be determined upon principle. Now, not- withstanding tlie very powerful criticisms of Ijord Justice Bowen on the judgment of Mr. Justice Pearson, I think thut.judg- niont right. I think that the case is one in which the adoption of the contract by the principal puts an end, and ought to put an end, to any further rights against the agent. It appears to nie that to allow the principal to affirm the con- tract, and after the affirmance to claim not only to retain the pro|)erty, but to get the dillerence between the price at which it was bouglit and some other price, is, however you may state it, and however you may turn the proposition about, to enable the principal, against the will of his agent, to enter into a new contract with the agent, — a thing which is plainly impossible, or else it is an attempt on the part of the principal to confiscate the prop- erty of his agent on some ground which I confess I do not understand. It is said that, notwithstanding the ratification of the contract, the princii)al may claim some profits from the agent because those profits were made surreptitiously or clan- destinely. It appears to me that the answer to that is this, that whatever the profits are, and however they are to be measured, those profits result, not from the original contract, but from the affirm- ance of the contract by the principal, and that, therefore, the profits which are made by the agent are neither clandestine nor surreptitious. I can conceive two possible claims being made. The one would be on the view that the profits were the differ- ence between the jmrchasing and the sell- ing price in the hands of the agent ; but. as has already been observed by LorJ Jus- tice Bowen, that cannot possibly be the measure of the claim of the priuc'ipul, be- cause at the date when the agiut pur- chased he was not the agent of the prin- cipal, and the principal therefoie had no right to go back to tliat date and lix it u the time at which he acquired a right to retain the property at the price paid lor it by the agent. The other claim would be on the view that the profits were tiie dif- fer 'ice between the real value, or the ma cet value, if a market value exist, and the actual price at which tiie prop- erty was sold by the agent to the jirin- cipal. I think the principal cannot claim that difi'erencft; because it appeals to me that in such a case as this, wlu-re the principal had no right to claim the prop- erty as having been purchased on his be- half at a smaller price, the voluntary ratification of the purchase by the prin- cipal is equivalent for this purpose to a new sale by the agent to tlie primijial after the relation between tliem Lad ceased, and that it is only in coiise(]UPnee of that ratification or adoption that any 1)roHts remain in the hands of the agent, n other words, therefore, I tliiiik it is not a case of profits made clandestinely or surreptitiously, because those protits have not arisen from the original tiausaction alone, but from the adoption of it l>y the principal. I think, therefore, that the de- cision of Mr. Justice Pearson was right, and that this appeal must be dismissed. In re Cape Breton Co., 26 Ch. Div. 795, 811. 1 Cavendish Bentiuck o. Fenn, 12 App- Cas. 652. i 26 Ch. Div. 221. » 29 Ch. Div. 795. PART v.] CORPORATIONS. 811 although rescission had become impossible, the House of Lords were clearly of the opinion that if it had been shown that there waa a secret profit, improperly made by the respondent, the appel- lant would have had a remedy, under the 165th section of tlie Companies Act, for the Iocs which had been sustained by the al- leged misfeasance of the respondent in failing to make the dis- closure of the facts as to his position in connection with the property bought by the company .^ I do not think it is necessary to come to any absolute determination upon that I)oint, bucause it is of tlie very essence of 8uch a case as this to show tliat the price at which the property was sold to the company was in excess of what has been called the real i)riee, or tlie true value. Now, what evidence is there here upon which your lordships would be entitled to act, that the proiH-rty in question, when purchased by the company, was sold to them at a price in excess of the real value, or the market value, in whichever way you put it ? I admit that there may be considerable ground for susjiicion that the price was in excess of it. But obviously for such a case as the appellant seeks to make out here much more than that is necessary. It is of the very essence of the case, which rests upon his jjroving what he claims, namely, a secret profit improp- erly made, that he should prove that there has been that excess which he alleges." And on a full examination of the facts the conclusion was reached that there was not the slightest evidence to show that din- closure was jiot made, or that the other directors were not well aware of the re- spondent's position. All of the other lords were of the same opinion, both as to the failure of the evidence and aa to the sufficiency of the remedy against the respondent, had the facts sustained the claim made, and had the claim been made by one entitled to tlie remedy. Cavendish Bentinck v. Fenn, 12 App. (.'as. 652. liord Blackburn, in Mcl'herson v. Watt, 3 Ajip. Cas. 254, lays down the rule applicable to these cases thus : "The mere fact, therefore, that he does not dis- close that he is a purchaser, or that he is interested in the purchase, in cases where the client might say, ' It was your duty to give me such advice,' gives the client a right, upon discovering the fact that the purchaser was, in whole or in part, the attorney whose duty it was to give him advice, to say, ' I have an option either to set the purchase aside if I please, or to let it stand if I prefer to do so.' He is entitled to say, • This may be a very fair and proper bargain, but I do not choose to let it stand.' " But the relief which 1 Lord Herschell thus dealt with the appellant's material contentions in the matter: "First, it is said to be a case of A secret profit made by an agent, which profit he is therefore bound to hand over to Ills principal. Of course it cannot be doulited that the respondent, as a director of the company, was in the iwsition of an agent ; and undoubtedly if he filled any fiduciaiy jmsition towards them at the time when he purchased this property, he would be bound to pay to the comjiany the diiroreiice between the price at which he purchased it and the price at which it was sold to the company. But here it is beyond (juestion that at the time when the purchase was made, Mr. Fenn and his coudventurers were none of them in any sort of fiduciary relation to the company, the existence of which at that time was not even contemplated. Again, there ]irobably is iittle doubt that if an agent of a company is employed by that com- pany to make a purchase for them in the market of goods of any description, and if instead of making that purchase in the market at the mai-ket price he sells to his com|iaiiy goods of the required description which he happens to own, at a price in excess of the market price, he can be made to ]iay to the company that excess, so as to leave their purchase, as it ought to have been, at the market price, according to the obli ••tioiis which he is under to them. E,ii, ill the jiresent case, the purchase that was made was a purchase of a specific propcity ; it was that specific property alone which the agent, the director, was authorized to purchase. It was not left to him to jiurchase, at the best price at whioli they could be obtained, goods or land (if a particular description ; but his agency, so far as it existed at all, was an agency to ]>urchase this specific property in which it is proved he had an interest. Now, 1 am by no means prepared to say that the argument of the appellant is well founded that such a case as this is a par- allel case to the class of cases to which I have alluded, where an agent employed to go into the market and buy at the market price sells his own goods to the company at something above the market price. But V R" I [lib ml -'* "11:] iri ,,. Ill ! n If ■ : tllEfl ', ^l! jt, „ r 812 COMMENTABIES ON SALES. [book II. The followin); are propositions relating to directors of a com- pany, as laid down by Lord Romilly, M. II. : (1) Directors of a company issuing a prospectus are bound to disclose every mate- rial fact ; and, if they do not, they will be held liable to indemnify any person who takes shares from the company on the fuitli of the prospectus, against any loss which may be occasioned to him by reason of such concealment, even although they may havi; be- lieved that the conccalmont will be bencticial to the persons in- duced to take the shares. (2) A fact which, if disclosed, wuuld have so discredited the company as to prevent its formation, is a material fact within the meaning of tlie foregoing proposition. (3) The estate of a deceased director is liable in equity in respect of such indemnity, to the same extent as tlie director would liuve been if living. (4) A transferee of shares has no greater right to be indemnified by the directors in respect of their misconduct in issuing a prospectus than the original allottee would have liad; the court will give is to rescind the con- tract, if the parties are willing to rescind it ; but the court will not, because the agent who sold to his principtil, without informing him that he was roully the seller, was in error in so doin^, compel him to pay back to his principul the dif- ference between the price at which he bought the [iroperty, it may be years be- fore, and the price which he obtained for it from his principal. Nor will tiie court ascertain what was the market ]>rice of the property at the time of the sale to the principal, and say that the principal is entitled to recover back from his agent the ditferenue between the sum which he paid him and that which the court ascer- tains to have been the market price at the time. la re Cape Breton C'O., •16 Cii. Div. 221, 259, The jirinciplf would be that the com[)any were at lil)erty to treat the sellers as trustees of the property for the company, and, treating them as trustees, to allow them only what they paid for the property^ and, if they got anything else out of t.he cotters of the company, to make them account for that. But in In re Am- brose Lake Tin & Copper Manuf. Co., 14 Ch. Div. 390, it was held that neither on principle nor on authority can that he maintained, unless, at the time when the so-called vendor ac(iuired the property, he either acp. Cis, 317; Clarke v. Dickson, El. B. & E. 148. ¥. M V.J COBPOBATIONS. 818 and if the allottco would have been debarred of his remedy against tlie directors by laches, coudoaution, or otliorwise, the transferee is also debarred of remedy. And (5) Any person seekinj? relief against directors of a company in respect of misconduct in issu- ing a prospectus, is bound to come promptly for relief. All of these propositions are covered by the important case of PcL'k V. (Jiirney,^ where Lord Romilly, M. R., delivers a most elab- orate iiKlerson going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good if ho knows it to be false." The i)rinciple of these eases was acted on in Burrowes v. Lock, 10 Ves. 470; Slim r. Croucher, 1 De G. F. & J. 518; Colt V. WooUnston, 2 P. Wnis. 154; Green V. Barrett, I Sim. 45 ; Cridland v. Lord De Mauley, 1 Do G. & Sm. 459 ; Ram- shire V. Bolton, L. R. 3 Kq. 294 ; Hill v. Lane, L. R. 11 Eq. 215; Barry v. Croskey, I ; [it 316 COMMENTARIES ON SALES. [book II. In The Overend Gurney Co. v. Gibb,^ it was held by the House of Lords, in sustaining a demurrer to a bill filed by the company against the directors : — 1. That facts which may show imprudence in the exercise of powers undoubtedly conferred upon directors, will not subject them to personal responsibility ; the imprudence must be so <^rcat and manifest as to amount to crassa ne(/ligentia, or malfeasuuce, which, to make the directors liable, must be distinctly charged. 2. In a company formed for the purchase of a business, where the power to make the purchase was distinctly conferred on tlie directors, thougli the character of the business turned out to be ruinous, unless that cliaracter was obviously aj)parcnt when the purchase was made, the directors will not be personally responsi- ble for making it. 3. Where directors of a company act as in this case, rather as agents or mandatories, than trustees, and are authorized to do au 2 J. & H. 1, 30, in equity, although iu these eases it was claimed tliat there was ail aJec[uate remedy at law lor the plaiu- titlk 111 Burnes v. Peunell, 2 H. L. Cas. 497, it is laid down that it is the suppressio veri or the sM/ijeslio falsi which is the foundation of the right to relief in enuity, and this exists whether it was fraudu- lently or mistakenly done. The super- added guilty intention gives the criminal jurisdiction, but this does not take away the eijuitdble jurisdiction. A man may not have intended to deceive, and may have believed tliat he did not, when he was really suppressing the truth or suggesting what was false. If so he is not liable to an indictment >n a criminal court, but he is equally responsil)le iu equity as if he had while committing these acts done so with a view to injure others or to benelit himself. See Bargate t\ Shortridgc, 5 H. L. Cas. 297; New liiunswick Laml, c&c. Co. V. Conybeare, 9 H. L. ('as. 711 ; Central Railway Co. of Venezuela v. Kisch, L. II. 2 H. L. 99, 110; Cornfoot v. Kowke, (5 M. & W. 358 ; Fidler v. Wilson, 3 Q. K .58 ; Evans v. Collins, 3 Q. B. 78, n. ; 5 Q. B. 804 ; Taylor v. Ashton, 11 .M. & W. 40} ; Langridge v. Levy, 2 M. & W. [>l[) ; 4 .M. & W. 337; Kvansy. Hi.kuell, Ves. 171; Pasley v. Fidemau, 3 T. 11 .'il ; Stniubauk V. Feruley, 9 Sini. .O;")*); Daniel v. Mitithell, 1 Story, 172 ; Napier r. Klam, 6 Yorg. 108 ; I'arkhani v. H.iu.lolph, 4 How. 43.5 ; McAllister y. Barry, 2 Hayw. 290; Livings- ton V. Peru Iron Co.. 2 I'aige, 390; United States Bank v. Lee, 13 Peters, 107; Bur- rowes I'. Lock, 10 Ves. 470. In Barry v. Croskey, 2 J. & H. 1, 22, the piinciples applicable to such cases are stated as fol- lows : First, every man must be held re- sponsible for the consequences of a false ivjiresentatioii mcde by him to ancither, upon v.hich that other acts, and so ucting is injured or danniified. Sccond/ii, every man must be held resjionsible for the uoii- sequences of a false lepresentatiuii niiule by him to another, upon which a third person acts, and so acting is injured or daninilied, provisley v. riveiiian, 3 T. U. 51 ; The Royal British Lank V. Nicol, 5 .Mir. n. s. 207. 1 L. II. 5 H. L. 480. ill >!' PART v.] CORPORATIONS. 817 act in itself imprudent, and one which the principal ought not, as a matter of prudence, to ha'e authorized, the directors arc not to be lu'Ul responsible for the consequences resulting from doing the act which their principals authorized them to do.' Directors of a company were held liable for cheques signed or sanctione jy them, used for the purchase of shares in the ;om- pany, where the articles of association empowered them " to buy, sell, or loan, on all descriptions of shares, including shares issued by tlio company, — not being speculative transactions for the rise and fall of shares;" where the transaction was of a speculative character."^ 2. Incorporated Companies and Municipal CoRPORAr.f ns. As to Necessity of Company^ s Seal to Contract i. The old doctrine that a corporation could not contract except uiidcr seal has been, in modern times, largely broken into. It liiis been held in England, that whenever a corporation is created for particular purposes, which involve the necessity for fieqiiently entering into contracts for goods or works essentially necessary for carrying on the purjioses for which the corporation is created, into execution, a demand in rospcct to goods or works wliich have actually been supplied to and accepted by the corpora- tion, and of which they had the full benefit, may be enforced by action of assumpsit, and the corporation will be liable, though the contract was by parol only and not by deed.^ ' Sop Tuninand v. Marshall, I/. R. 4 Ch. 376 ; Oakes v. Tiiniiianards the employment of the funds of the company, trusteijs for the shareholders, and are answerable to their ce^!tuis que trust for the due employment of the lunds entrusted to thcin. ... A pica of ignoraticc by a director, or that anytliinf; was dune by him for the sake of conformity, is merely a jilea of guilty, and it is an admission of lialiility to account for the SUMS misapplied." 8 Clarke v. Cucktield Union. 21 L. J. Q. 15. ;i4!i; Haigh r. N(Uth Hrierlcv Union, K. IS. & K. 878 ; 28 L. J. Q. B. (52; Sand- ers V. St. Neot's Union, 8 Q. H. 810 ; Paine v. The Strand Union, T/>. 326 ; Church V. The Imperial (!as Li^ht & Coke Co., 6 A. k K. 84(5 ; De Grave v. The Mayor, &c. of Monmouth, 4 C. & P. Ill; Beverley I'. The Lincoln Cas Light & Coal Co., ♦) A. & K. 829 ; The Coj.per Miners Co. v. Fox, 20 L. J. Q. B. 174; Bac. Ab, tit. Corporations, K ; Com. Dig. tit. Frir7tr/ii.ics, F, 12. 13 ; The London Gas Light & Coal Co. v. Nicholls, 2 V. & P. 36.5 ; The Maypr, &c. of Stafford v. Till, 4 Ming. 75 ; The Fast London Waterworka Co. V. Bailey, 4 Bing. 283. M ' M 1 ! ! 1 * ■■.< P ^ ., AH ■'■! H « m r ■^r-ywW .......AM' .1 1 ■ f 318 COMMENTARIES ON SALES. [book ii. The case of Clarke v. Cuckfield Union,^ was followed and ap- proved in Nicholson v. Bradford Uniou,'^ where the plaintiffs sup- plied coal from time to time to the defendants, the guardians of a poor-law Union, for the use of their workiiouse, under articles of agreement between the plaintiff and the defendants executed by the plaintiff, but not under the seal of tlie defendants. The de- fendants received and used some of the coals. In an action for goods sold and delivered it was held that, as the goods had been supplied and accepted by the defendants, and were such as must necessarily be from time to time supplied for the very purposes for which the defendants were incorporated, the defendants were liable to pay for the coals although the contract was not under seal. Lord Blackburn, in delivering the judgment of the court, refers to the important distinction between an action against a corporation where the contract is not under seal, where the con- tract is executory, where the corporation has not derived any licn- efit under the contract, and a case such as Nicholson v. Bradford Union where the contract has been executed and the corporation has received the full benefit of it.^ A company entering into a contract for the purchase of goods, and having power to do so, is bound by such contract, althoujxli the goods may not be intended to be used for the purposes of the com- pany, and although this fact may be known to the person with whom » 21 L. J. Q. a 349. 2 L. R. 1 Q. H. 620. 8 The following are the remarks of Lord Blackburn on the j)oint involved : " It is not necessary to express any opinion as to what might have been the case if the plain- tiff had been suing on this contract for a refusal to accept the coals, or any other breach of the contract whilst still execu- tory, or how far the principle of I^ondon Dock Company v. Sinnott, 8 E. & B. 347, would then have ajtplied to such a con- tract. The goods in the present case have actually been supplied to and accepted by the corporation ; th^y were such as must necessarily be from time to time supplied for the very purposes for which the body was incorporated, and they were supplied under a contract, in fact, made by the managing body of the corporation. If the defendants had been an unincorpo- rated body nothing would have remained but the duty to pay for them. We think that the body corporate cannot under such circumstances escape from fulfilling that duty merely liecause the contract was not under seal. The case of Clarke v. Cuck- field Union, 21 L. J. Q. B. 349, is in its facts undistinguishable from the present caae. We are aware that very high au- thorities have questioned the soundnoss of thi:t decision, and, as jwinted out in the judgment in that case, there are prior l. ■i- sions in the Court of Exche(iupr win. h it is difficult to reconcile with it. Wc tliink, however, that, as far as it extends to such a case as the present, at least, the wise was rightly decided. T'tere may he cnsi's in which the circumsta ices are 'diUVivnt from those in Clarke v. Cuckfield Union anil the present case, aii.l which would still he f;ov- erned by the principles laid down in the decisions in the Exchequer ; tliose we leave to be decided when they iirisi' ; but so far as those prioi aecisions iiri' incon- sistent with the decision in Clarke i'. Cucklield Union we prefer to follow the authority of Clarke v. CucktieKl I'nion, which we think founded on justii'o ami con- venience." Nicholson i>. Hradfor 1 I'nion, L. R. 1 Q. B. 620. See The Mavor, &;. of Ludlow V, Charlton, 6 M. & W. 815; Diggle V. The lioudon, &c. Ky. Co., r> Kx. 442; Lamprell v. The Billericav I'nion, 3 Ex. 283 ; Smart v. West Ham I'ninn, 10 Ex. 867; 11 Ex. 867; The London Dock Co. V. Sinnott, 8 E. & B. ;il7 ; Ar- nold V. Mayor of Poole, 4 M. >V (i. StiO; Copper Miners' Co. v. Fox, 16 Q. B. 229. PART v.] CORPORATIONS. 819 the contract is entered into. A company, C, formed for the pur- pose (amohgst others), of constructing railways, by a letter from the secretary gave an order to company E. for 500 tons of rails at a certain price, to be paid for by three months acceptances from the date of delivery. The managing director of Company E. was also a director of Company C. The rails were intended to be used in the construction of a line of railway which the managing di- rector of Company C, and not the company itself, had undertaken to make. The rails were made, but were not delivered, in conse- quence of Company C. being ordered to be wound up. Held, that tlie secretary's order was binding on Company C, although not under seal, and although the managing director of Ccnnpany E. might have known the purpose for which the rails were to be used ; and also, that Company E. was entitled to prove in the winding up for damages occasioned by the non-acceptance of the rails ; and that the court would not sanction the giving of accept- ances by the olticial liquidator for the price of the rails.* 2 III rr. Contract Corporation, Claim of Ebbw Vale Company, L. R. 8 Eq. 14. The (|iicstiou tliat was raised in this case, but not pressed, that a corpoiaiion cannot contract without seal, was decided in, ainon^ other cases, South of Ireland Collieiy Co. V. Waddle, L. R. 3 C. P. 463, where Bnvill, C. J., says : "The objection is entiiely a technical one ; but, though techni'iil, if it be in accortlance with law the court is bound to give effect to it. Originally all contracts by corporations were reipiired to be under seal. From time to time certain exceptions were in- troiluced, but these for a long time had reference only to matters of trifling impor- tance and fre(juent occurrence, such as the hiring of servants and the like ; but in jiroffress of time, as new descriptions of cnrporatioiis came into existence, the c mi'ts came to consider whether these exceptions ought not to be extended in the case of cor[ioratious created for trading and other pur|ios:'s. At tirst there was considerable coniliet ; and it is impossible to reconcile all the decisions on the subject. Hut it seems to ine that the exceptions created by the recent cases are now too firmly established to be questioned by the earlier lieeisioiis, which, if inconsistent with them, must, I think, be held not to be law. These exceptions apply to all contracts by trailing; corporations entered into for the purposes for which they are incorporated. A company can only carry on business by agents, managers, and others ; and if the eontrnets made by these persons are con- tracts which relate to objects and pur- poses of the compa.iy, and are not incon- sistent with the rules and regulations which govern their acts, they are valid and binding on the company, though not under seal. It has been urged that the exceptions to the general rule are still lim- ited to matters of frequent occurrence and small importance. The authorities, how- ever, do not sustain that argument. It can never be that one rule is to obtain in the case of a contract for £50 or £100, and another in the case of £."50,000 or £100,000." In Henderson v. Australian Koyal Mail Steam Nav. Co., 5 E. & B. 409, the existence as well as the propriety of the modern rule was affirmed. In this case Erie, J., said : " I cannot think that the magnitude or the insignificance of the contract is an element in decipoint a bailiff to take n distress. 3 Lev. 107. But in case of anythitig of conse- quence, or the employing any one to act on tneir behalf in a matter which was not an onlinary service, a corporation aggregate could not do that without deed. "This was the distinction taken in Home and Ivy's Case, rejMjrted in 1 Vent. 47; 1 Mod. 18; 2 Keb. 567. See Damper v. Synims, 1 Rol. Ab. 514 ; Rex o. Biggs, 3 P. Wms. 419. At length it seems to have been established that though they could not contract di- rectly except under their corporate seal, yet they might by mere vote or other corporate act not under their corpomte seal appoint an agent, whose acts and con- tracts within the scope of his authority would be binding on the corporation. As soon as the doctrine was estal)lished that their regularly appointed agent could con- tract in their own name without seal the whole doctrine that a corporation aggre- gate could not contract without sciil was overthrown, for clearly anything that it is competent for a iiriucipal to do by bis agent he can legally do himself. Hence it is now, and has been for a lonj,' time past, well established both in EngliUid and in this country, that wherever a ci)i|iora- tion is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the oorpo. ration ; and all duties imimsed on them by law, and all beuetits conferred at their request, raise implied promises, for the enforcement of wliich an action will lie. Bank of England v. Mottat, 3 Bd. I'h. 2()2 ; Rex v. Bank of England, Doug. 524, n. ; i$ank of Columbia v. Tatterson's Admstr., 7 Cranch, 299, 305; (!ray r. Portland Bank, 3 Ma.ss. 364 ; Worci'ster Turnpike t'orporation v. Willard, 5 Mass. 80; Gilmore v. Pofie, lb. 491; AuJover, &c. Corporation v. Gould, 6 .Mass. 40, It was decided in Me .Masters v. Heed's Executors, 1 Grant (Pa.), 36, 4!», ujion principle as well as upon authoiity, that corporations are bound by all contracts, whetlier express or implied, whi'tluT by bond, bill of exchange, or negotiable note, entered into in tiie usual and iieccssary course of their legitimate business, exi'ept where there is a statutory proliiliition. See The People v. Tiie Utiea Ins. Co., 15 Johns. 383 ; New York FirenuMi's Ins. Co. V. Sturges, 2 Cow. 675 ; New York Firemen's lus. Co. v. Ely, Fb. (iyi» ; Dana V. Tiie Hank of The United States, 5 W. & S. 243; Mott v. Hicks, 1 Cow. 513; Kelley V. Mayor of Brooklyn, 4 Hill, 265; Moss V. Oakley, 2 Hill, '2ti5 ; BarkiT v. Mech. Ins. Co., 3 Wend. 97; Gassi'tt o. Andover, 21 Vt. 342 ; San Antonio v. Lewis, 9 Tex. 69. In general a corporation is restrii'ted to the mode of contracting ])rescribi(l i\v the charter. But wh'-re no particular nioile is ju'escribed i)y the act of incorpoi-atimi it is well settled in this country that tin- acts of a corporation, written or uiiwritton, evidenced by note, are as conipli'tily hm\- ing on it, and are as complete antliority to its agents, as the most solemn acts done under its corporate seal ; that it may as well be bound by express promises through its authorized agents as by il''«l i and that promises may as well be implied from its acts and the acts of its njjints as if it had been an individual. Abby ». PART v.] CORPORATIONS. 321 while applicable in analogous cases in this country, as they have incidents peculiar to themselves, we devote a separate section of this Part to cases connected with such questions. A limitod company was incorporated under the English Joint Stock Companies' Acts, with the objects, as stated in its memo- raiKlum of association, of acquiring and carrying on a manufac- turing business, and any other businesses and transactions which the company might consider to be in any way conducive or auxil- iary thereto or in any way connected'thcrewith. The memorandum did not authorize the company to purchase its own shares, but its articles of association did so. The company having gone into liquidation, a former shareholder made a claim against the com- pany for the balance of the price of his shares sold by him to the company before the liquidation and not wholly paid for. The House of Lords held,^ reversing the decision of the Court of Ap- peal, that such a company had no power under the Companies' Acts to pi'vchase its own shares ; that the purchase was, therefore, ultra vires ; that a transaction not within the scope of the memo- randum of association is incapable of ratification, and that the claim must fail.^ The jjlaintiff having through his brokers on the stock exchange Billnps, 35 Miss. 618, 630. In Ring v. .lohiiscm County, 6 Iowa, 265, the well- establislu'd doctrine is laid down that cor- porations of all kinds may be bound by contracts not un. The Bur- lington, &c. Co., 11 Iowa, 74. In Blanch- ard !'. Tlie Maysville, &c. Co., 1 Dana (Ky.), 87, it is .said : " Whatever diversi- ties may be suppo.scd to exist between the aneient and modern decisions as to the capacity of a eoiporation to bind itself by I'spress contract without its common seal, and liowcvcr undefined the cases may be supposed to be, in which, according to many autlioritie.s, such a capacity exists, there can be no doubt that a statutory corporation may be liable to an action "pon a liability imposed by its charter, or r"siiltiiig by iiniilication of law from its nets ; and records and judgments, even erroneously rendered, on parol contracts, but nmi> versed and not void, may impose lesal liabilitv on all corporations'." See. further, Frankfort Bii. The VOL. I, 21 Bank of Kentucky, 3 .T. J. Marsh. 201 ; St. Andrews Bay Land Co. v. Mitchell, 4 Fla. 192, 199 ; Kverett v. The United States, 6 Port. (Ala.) 166, 181. • Trevor v. Whitworth, 12 App. Gas. 409. 2 A company cannot employ its funds for the purpose of any traui^actions which do not come within the objects specified in the memorandum, and a company can- not by its articles of asiiociation extend its power in this resjiect. Ashbury Hallway Carriage and Iron (.'o. »'. Riclie, L. 1{. 7 H. L. 6.53. This ease also decides that a transaction not within tlr scope of the memorandum is incapabl ■ ot ""tiliiation. See also Teasdale's Case, . ) Cii. .54 ; Ilojie I'. International Financial Soc, 4 Ch. Div. 3'_'7, 336 ; Guiniies- •. Land Corp. of Ireland, 22 Ch. Div. .4?, 375; /// re Dro.ilield SilksloneCoal Co., 17 Ch. Div. 76; I'hospbate of l,iiueCo. r. Cireen, L. R. 7 C. \\ 43. It is inconsistent with tlie essential nature of a company that it should become a meniber of itself. It cannot lie registereil as a shareholder to the effect of becoming debtor to itself for calls, or of being placed on the list of contribntories in its own liouidation. In re. Dronfield Silkstone Coal Co.. 17 Ch. Div. 76, 83 ; Trevor v. Whitworth, 12 App. Cas. 409, 424. M hi r •■ \m r II i f, I -ll 322 COMMENTARIES ON SALES. [book II. sold to the defendant, a jobber, ten shares in Overend, Gurney A- Co,, Limited, tlie defendant on the name-day gave to the plaintiffs brokers the name of Goss as the ultimate buyer. No objection was made to the name, and the plaintiff oxccutcd a transfer to Goss of the ton shares. It was afterwaiJs discovered that the brokers named on the ticket as the brokers of Goss had been in- structed by S. to buy, and had in fact bought, a large number of shares for S. as undisclosed principal. The ten shares in ques- tion (the dealings not being for specific shares) were delivered to them as part of the shares so purchased, but the name of Goss was passed in pursuance of S.'s instructions, and according to an arrangement by which Goss, who was a person of no means, con- sented to allow his name to be passed in consideration of a sum of money paid to him. The purchasing brokers, as well as the defendant, were ignorant of this arrangement. Calls having been made on the shares, which the plaintiff was compelled to pay, and which he was unable to recover from Goss, he brought this action to recover them from the defendant. It was held by the Court of Exchequer (Cleasby, B., dissenting) that Goss was an ultimate purchaser within the meaning of that term as applied in the u&>,^j of the Stock Exchange ; that the defendant had fulfilled his ohVm- tion by passing a name to which no objection was taken accord- ing to the usage ; and, that, in the absence of any fraud, either in the defendant or in the purchasing brokers, the defendant could not be treated as ultimate buyer himself or be made liable for calls.' On appeal to the Exchequer Chamber ^ this judgment was atfirnied, Rush, J., dissenting. The case of Merry v. Niekalls ' was taken, on appeal, to the House of Lords,* when the decree of tiie court below was alBrnied. The argument on the part of the appellant was, that, as there were ten days during which the vendor could object to the name of the ultimate purchaser, unless the objection were made within that time the seller was concluded. But the House of Lords held that this only applied to the case where the name given was that of one capable of contracting, and did not apply to the case where a name is handed in which is, in fact, no name at all ; as a licti- » Maxted v. Paine, L. R. 4 Ex. 203. See, also, Muxted v. Paine (first ac- tion), L. R. 4 Ex. 81, where a somewhat similar question is decided. See, also, Grissell v. Bristowe, L. R. 3 C. V. 112; L. R. 4 C. P. 36; Coles v. Jbristow, L. It. 4Ch. 3 ; Cruse v. Paine, L. 11. 4 Ch. 441 ; Torrington v. Lowe, L. R. 4 C. P. 26 ; Shephard v. Murphy, Ir. L. R, 2 Kq. 544 ; Payne's Case, L. R. 9 Eq. 223 ; Bunk of Hindustan v, Kintrea, L. R. 5 Ch. 95 ; Castellan v. Hobson, L. R. 10 h\. 4"; Whitehead v. Izod, L. R. 2 ('. 1'. ii'.'S; Shaw o. Fisher, 5 Dc O. M. & C. 596. See post, Niekalls v. Merry, L. I!. 7 11. L. 530, where Maxtud e. Paine (1st action), L. R. 4 Ex. 81, is approved. a L. R. 6 Ex. 132. « L. R. 7 Ch. 733. stated bv tis ante, p. 133. ♦ Niekalls i-. Merry, L. R. 7 H. L. 530. PART v.] CORPORATIONS. 823 tious name, or a name given without authority, or the name of a person who cannot contract, as being an infant or married woman. Lord Ilathci'lcy put the case as being as phviu as possible ; as one of the simplest elements of the law of contracts ; that, it being once admitted that a jobber had made a contract by which he was bouml, he could not discharge himself by saying, — " I have intro- duced a ])crson who is utterly incapable of being bound ; you must take him in place of me, for the rule of the Stock Exchange savs so, "1 1 Lonl Iliithi-rlcy, in disposing of this, praeticiilly the contt'Ution for the appel- lant, said : " If sudi a rule existed, it eoulil not be alleged that there was any comimm sense, if 1 may say so, on the face of such a rule ; hut if ever such a rule should he made, it will he time enough for the courts of law to consider how far such 11 rule should be admitted, or how it can lu! reconciled with common sense. At present it appears to me that there is no such rule, and that the jobber is bound to liberate hinisolf from liability by producing the name of a person who is capable of con- tractinr;. A pi.rty who is supposed to be inca|iablc of performing the contract for want of means, but who is capable of en- terinj; into the contract, may havo given authority to give his name. That is one tiling. In that case ten day3 are given, uiiilcr the rule of the Stock ?jxchange, to say whether or not you will accept the contracting party whose name is given to you ; for he is really a rontracting party. But it is another thing if ho is a person who cannot, by law, contract. That a contracting party must be produced I think is beyond doubt. . . When the case comes to be silted, it is almost de- filled by a simple enunciation of the facts." Tiie other Law Lords expressed similar views. In this ease the holding in Rennie w. Morris, L. R. 13 Eq. 203, was disaj)- proved. There it was held that by the usai,'!' iif the Stock Exchange the jobber, or dealer in shares, is, in the absence of fraud, discharged from liability when he ha.s ;,'iven the name of the transferee and paid for tlie shares. Therefore, where a joiiber contracted on the Stock Exchange to purchase the plaintiff's shares in a com- pany, and gave in to the plaintiff's brokers a til kct with the name of the intended transferee, which had been passed in to liini ; and, after the execution of the trans- fer, it was discovered that the transferee was an infant, of which neither party was j'reviously aware ; and the plaintiff became liable foi- calls ; the jobber having given the jihiintiff all the information in the matter which was required ; in a suit by the plaintiff against the jobber seeking indemnity for the shares, the court held that, nnder tiie (drcunistanees, the jobber was discharged. Rennie r. Morris, L.R. 13 Eq. 203. The two cases of Maxted v. I'aine (1st action), L. R. 4 Ex. 81 ; (ind action), L. R. 4 Ex. 203; L. H. 6 Ex. 132, exemplify the distinction established by the authori- ties as to the performance or nonqx'rform- anee of the jol)ber's contract. In the first action, the defendant, the jobber, pa.ssed the name of a person as purchaser of the shares without his .sanction or authority. Tlie seller, therefo.e, could not compel liim to accept a transfer of the shares. It was accordingly lield that the jobber was not exonerated from liability upon his con- tract. In the second action, the jobber was held to be released by having given the name of a nominee of the real buyer of the shares ; a person, it is true of no means, but capable of contracting, who, in con.sideration of a small sum of money, had consented to allow his name to be used as tlie proposed transferee of the shares. The jobber's contract, therefore, is of this description. It is at lirst a tem- porary and conditional contract ; but it becomes absolute upon his failure to fur- nish by the named day the name of a per- son capable ami willing to become the transferee of the shares, so that the seller by executing a transfer may make with him a new contract in substitution of the original one with the jobber. This being the .iature of a jobber's contract, it follow.s as a conseijuence that he does not perform what he undertakes by giving the name of a person umler disability, with whom no new binding ('ontract could be made, to be substituted for his own. Nickalls v. Merry, L. I!. 7 H. L. 530, 544, per Lord Chelmsfonl. See Allen r. (Jraves, L. R. 5 Q. B. 478 ; Bowring v. Shepherd, L. R. 6 Q. H. .^09 ; Paine v. Hutchinson, L. R. 6 Kx. 132; Shejihard r. Murphy, L. R. 3 C. r. 112 ; Castellan v. Hob.son, L. R. 10 Eq. 47 ; Stikeman t'. Pawson, 1 Do G. & Sm. 90 ; Nelson v. Stocker, 4 De G. & J. 458; Shepherd v. Gillespie, L. R. 5 Eq. 293 ; Duncan v. Hill, L. R. 6 Ex. 255 ; Weston's Case, L. R. 5 Ch. 614 ; Dent v. % y 324 COMMENTARIES ON SALES. [book II. V'i 'i 1 1 Mil A. read a prospectus issued by certain persons, the directors of a company, which proposed to carry on the business of mining, and getting and crushing minerals in connection therewith, and, on the faith of the representations there made, among others of a similar nature, that a valuable mine in America had been con- tracted for (the claims in which were described as very profit- able), wrote to apply for shares. It turned out that tho mine contracted for was valueless. On Dec. 30, 1805, this fact, with- out the particulars, was communicated to him in a circular sent out by the directors. On Jan. 19, a second circular explained the particulars, and announced that another and a really valuahlo mine had been purchased by the agents sent to America by the directors. On Feb. 6, 1866, A. filed his bill to be relieved from his shares ; to be repaid the money he had already paid on their allotment, and to restrain the directors from suing him on calls. On April 29, an injunction to restrain was grunted.^ On the 27th, a petition was presented for an order to wind up the com- pany. On ^lay 28, a winding-up order was granted, A.'s name being placed on the list of contributories. On July 19, A. took out a summons to have his name removed from the list ; bnt his application was, on July 13, refused by the Master of the Rolls.'- On appeal, the Lords Justices ordered A.'s name to be removed from the list.3 The defendants then appealed to the House of Lords,* when the decision of the Lords Justices was affirmed. Tho con- tract being ab initio voidable, tnc House of Lords held that the agreement subsisted until rescinded ; that is to say, until re- scinded by the declaration of him who was sought to bo bound by it, that he no longer accepted the agreement, but entirely re- jected and repudiated it. Tlie moment the company wcic told that the contract was rejected, and that he claimed no interest luider their fraudulent act, it was their duty (to spare all further controversy) to have removed his Jiame, which could no longer be retained there, the contract having been avoided. This not having been done, and the respondent having filed his bill, i)ray- ing to have his name removed from the lists of the company, he was entitled to have his name i*emovcd, even though between tho date of his filing his bill and the decree of the court upon it an order had been obtained to wind up the company ; the " rescis- sion" of the contract, as far as the rescission is necessary to Nickalls, 22 W. R. 218 ; Richardson's i Smith r. Thp Roose lUvcr Silvii Case, L. R. 19 Eq. 588 ; Hawkins v. Mining Co., L. U. 2 Eq. 2(il. Maltby, L. R. 6 Eq. SO.") ; L. R. 4 Cli. 200 ; 2 /^rf. 36 L. R. Ch. 385. Hofrkinson v. Kelly, L. R. 6 Eq. 496 ; » Ibid. L. R. 2 Ch. Ap. 004. Maxted v. Morris, 21 L. J. N. s. 535. * Reese River Silver Mining Co. t\ Smith, L. B. 4 H. L. 64. PART v.] CORPORATIONS. 825 lie the act of a court of competent authority, dating from the moment when proceedings were taken invoking the aid of that competent authority, so that the party seeking such aid is not to lie iillectcd by the subsequent acts of the company or its credit- ors. Lord Wcstbury, on the ground that it was necessary to be extremely cautious in tlie case, in view of the numerous dicta and dccisi(ms bearing on it, based his opinion in the case on the dis- tiniiiiishing feature in it, that a suit was instituted, and was in lull progress, and had given birth to a judicial order at the in- stance of the respondent, anterior io the making of the winding- up order. ^ In Henderson v. Lacon,^ where there was misrepresentation in the jirospoetus, issued by the authority of the directors, In re Reese River Company, Smith's Case,^ was followed ; and the plaint ilV, who had bought shares in the conijiany, on the faith of the prospectus, and had paid dej)osit and allotment on account of the purchase of shares, had a decree against the directors and the company to have these repaid and to have his name removed from the register of shareholders.* I 1 1 i > L. R. 4 II. L., nt p. 76. In dealins with tlio iiuestion of fraud in this ca.so, Lord Caiiiis s.iid ; "As to the first part of till- case, namely, that whiuli rests ujion tliL' rif,'hts of the resiiondent, apart from the ciivumstances of the winding up of the coiiijiany, to repudiate his shares in the eniii|iany, I never have entertained, and 1 certainly do not now entertain, any doiilit ; and I hardly think that it was gnively ar<;iied at the bar that in this case a fraud had not been connnitted against the resiiondent. When I say 'a fraud,' I do not enter into any (luostion with regard to the ini]iutation of what may be called fraud in the more invidious sen.se against tlie directors. I think it may be quite liossilile tliat they were ignorant of the truth of the statements made in their Iirospectns. But I appreheml it to be the ride of hiw, that if persons take upon them- .selves to make assertions as to which they are ifjnorimt whether they are true or un- true, they must, in a civil point of view, Ik- hehl iis responsible as if they had inserted that which they knew to be un- true. I'pon that part of the case I appre- hend that there is no doubt." Reese Hiver .Silver Mining Co. v. Smith, L. R. 4 H. L. at p. 79. See Central Ry. (.'o. of Venezufda v. Kisnh, L. U. 2 H. L. 99 ; Ayre's Case, 2.^) Beav. 513 ; Rawlins v. Wiekhani, 3 De G. & J. 304 ; Oakes v. Tuniuand, L. R. 2 H. L. 325. " L. R. 5 Eq. 249. 8 L. R. 2 Ch. Ap. 604 ; L. R. 4 II. L. 64. * Those who issue a prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and in- viting them to take .shares on the faith of tlie representations therein contained, are bound to state cve''ything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not .so, but to omit no one fact within their knowledge, the existence of winch might in any degree atfect the nature, or extent, or quality of the ]>rivilegcs and advantages which the prosjM'ctus holds out as inducements to take shares ; and they have no right to turn round upon those who refuse to fulfil their contracts to take .shares, and say to them, "You ought to have been more prudent, more circumspect, more cautious, more vigilant ; you ought, Viy aiiplying your reasoning powers, to have concluded that otir repre- sentations could not be true in the sense which the language we used in the pro- spectus naturally and fairly imports." New Brunswick & Canada Ry., &c. Co. v. Muggeridgo, 1 Dr. k Urn. 363, 382, per Sir Richard Kindensley ; referred to with marked approval by Sir W. Page Wood, who says : " In this instance it ai>pears to me that the scienter is clearly fixed upon the directors, from the moment yotj find a representation concerning their own acta which is incorrecc, and which they must i-'' I s ■m \'i- *? , I Ih \\ ' ! . ill'! i^:'r ' 826 COMMENTARIES ON SALES. [book II. A bill was filed by the purchaser of shares to have the purchase declared void on the ground of fraud. The bill having been dis- missed by Stuart, V. C. ; on appeal to the Lords Justices, the orilir of the Vice-Chancellor was reversed.^ On appeal to the House of Lords, the judgment of the Lords Justices was alhrmed.'^ In the decision of the case, the following principles were cstablislKul : — First. Where a person believes that ho has been misled by ropre- sentations which arc false or deceptive, into taking shares iu a proposed company, it is his duty to raise the objection at an early period, and to be guilty of no needless delay. Seooml. The same rules as to false or deceptive representutioiis which are applicable to contracts between individuals, are alsoapidi- cable to contracts between an individual and a C(nnpany ; therolore, no misstatement or concealment of any material facts or circum- stances ought to be permitted in a prospectus issued to invite ])«- sons to become shareholders in a projected company. Third. The public are, in such a case, entitled to have the same opportunity of judging of everything material to ii knowlodixo of the true character of the undertaking as the promoters thcmsolves possess. Fourth. Where there has been fraudulent misrepresentation, or wilful concealment of facts by whicli a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it that he might have known the truth by proper inquii y. Fifth. The phrase " available capital of the company " is not a true, but is a deceptive description of capital, which may be raised under the borrowing powers conferred upon directors. Sixth. Where a prospectus described a contract for the con- struction of a line of railway as entered into at a " price consid- erably within the available capital of the company," aud the facts were that, from the nominal capital of £500,000 were to be de- ducted X50,000 as the price of purchasing the concession to make the railway, and the contract price for making it was £420,000, the representation was held to be untrue and deceptive. be tnkoii to have known to be incorrect, and to have knowin<5ly stated, and thereby to have misled the party complaining of the misrepresentation. I must say 1 think the result of all the cases which have oc- curred shows the great value of that goMen legacy, if I may so term it, which has been left to us by Sir Richard Kindcrsley, who has condensed in a few words the whole doctrine as to the rule of conduct be- tween shareholders and their directors, in the case of the New Brunswick & Canada Ry. Co. V. Muggeridge, 1 Dr. & Sm. 363; a case cited with approbation in the case of the Central Railway Co. of Vene- zuela V. Kisch, L. R. 2 H. L. 11;?, in tlie House of Lords." Henderson v. i.innii, L. R. 5 Eq. 2I!>, 2()-2. See Ciinvslmy c. Thornton, 7 Siiu. 391 ; Atwood v. S.iwll. 6 CI. & F. 232 ; Hallows v. Yvnw, L. W- 3 Ell. 520 ; Warren v. Richardson, 1 Voii. Ex. Eci. 1 ; Clement n. Tasburf,'li. 1 .l:ii'- 'i W. 112 ; Cadinan v. Horner, IS Vcs. lid ; Conyt)eare v. New Brunswick .i: i iiiiii'li Co., 29 L. J. Ch. 435 ; AK/rarniaii Iron- woiks V. Wickens, L. R. 5 E(i. iS,'), iinJ cases there cited. 1 Centrivl Railway Co. of Venezuela v. Kisch, 3 De G. J. & S. 122. a Ihid. L. R. 2 H. L. 99. [book II. PART V.]" CORPORATIONS. 827 purchase been (lis- the order ! House of 1.2 la the ilishtnl : — I by ro pre- pares in a it an early iseutations jalsoaitpli- , thcrofiji'c, or circum- iuvitc per- •c the same owloilge of themselves cntatlon, or I induced to be relieved inquiry, y " is not a ly be raised 11- the con- Irice consid- [1(1 the facts to be de- Ion to make je 420,000, IL. li:?, ill Oie koll V. l.iu'iill, I'l' Criiwsliay r. |\vo.)il V. S.iwll. . Fi'inii', !'■ 1^' lanlsoii, 1 V>Hi. l)Ui^!li. 1 •':"'• '^ ]•, 18 Vcs. lit'; |.,.i-iinniin Iron- Ivi. ii'>, ii'w If Venezuela f. Seventh. Where a prospectus of a railway company stated that " the cnjrinccr's report, maps, plans, etc., may be inspected, and further information obtained at the offices of the company;" an applicant for shares signed the printed form of application, in which, as usual, it was stated that he agreed to be bound by the conditions and regulations contained in the memorandum and ar- ticles of association. An examination of all of these papers would have afforded him the information, the want of which he alleged as a ground for rescinding the contract ; but, trusting to the fraudulent representations made to him with reference to them, he dill not examine them all : Held, that his neglect to do so was no answer to his demand to bo relieved from the contract.^ A broker employed by the plaintiff to purchase shares, which the plaintiff paid for, procured the instrument of transfer to the plaintiff, and the plaintiff's signature thereto, and received from the plaintiff the certificates and transfer for the purpose of regis- tration. Soon afterwards he fraudulently procured the plaintiff to cancel his signature to the transfer, and, by means of the can colled transfer and the certificates, induced the vendor to execute a fresh transfer to himself, and thereupon procured the shares to 1)0 registered in his own name, and then mortgaged them to one of the defendants. On the part of the innocent mortgagee, it was claimed that the principle of the court of equity is, that where the owner of pro})erty puts it into the power of another to represent himself as the owner, and to obtain credit from third persons in that character, the loss must fall on the true owner, rather than on those who have advanced their money f)ony whicli a iit'isoii h.is been induced to enter into a coiitniit, it is no answer to iiis claim to he relieved from it to tell him that he might have known the truth by proper ini|iiiry. He has a rif,'lit to retort upon his ohjeetor, " Vou, at least, who have stated what is untrue, or have concealed the tnitii, for the jiurpose of (h'awinj; mo into 11 eoiitraei, cannot accuse >nc of want of caution because I relied implicitly uj)on your fiirness and honesty." Per Lord Chehnsford. in Central Ky. Co. of Vene- zuela V. Kisch, L. U. 2 "ll. L. 99, 121. hord l.yndlmrst, in the case of Small v. Attvvood, (5 CI. & F. 232, 395, said: "Where re]iresentation3 are made with respect to the nature and character of property which is to become the subject -' Muvhiise atfectinj; the value of that of pro[ierty, and those representations after- wards turn out to be incorrect and false, to the knowledj,'e of the party making them, a foundation is laid for maintain- in>; an action in a court of common law to recover d:imaj,'es for the deceit so j)rac- tiseil ; and in a court of equity a founda- tion is laid for setlinj? aside the contract which was founded upon that basis." And in the case of Dobell v. Stevens, 3 B. & C. 623, to which he refers as an authority in supi)ort of the jjroposition, whi(di was an action for deceit in falsely representing the amoimt of the business done in a publicdiouse, the iiurchaser was held to be entitled to recover damages, although the books were in the house, and he might have had access to them if he thought proper. See Ship's Case, 2 De G. ,1. & S. 544 ; Jennings v. Hroughton, 17 Heav. 234; Kawlins r. Wickham, 3 Ue G. & J. 304. 2 2 H. & M. 424. » 2 De G. & J. 21. ill ! ■ : ! lUtl h t\ 828 COMMENTARIES OM SALES. [book II. IIh'h wcro cited. But thiH conteniion did not prevail. It was held, that as there was no negligence or laches proved against tiie plaintiff, his prior and better title must prevail over that of the mortgagee ; and, as the effect of the first transfer was not de- stroyed by the cancellation fraudulently procured, the registration in the name of the broker, and the transfer to his mortgagee, were decreed to be set aside. ^ But In re Overend, Gurney and Company, Ex parte Oakos and Peek," the principle that, where one of two innocent parties must suffer from the fraud of a third, it should be the party who, by his negligence or supineness, has enabled the third party to commit that fraud, was freely applied by Sir R. Malins, V. C. The ! shares on the ground tliat he had been defrauded, make, himself no longi'r a sharehoMer, and tlius get rid of his liability io the cred- itors of the bank, who had given credit to it on tlie faith that lie was a shareholder. It would be monstrous injustice, and con- trary to all principle. Wlietlur h,< could say that with regard to otiier shareholders not privy to the fraud, we ne.nl not say. There may be some dilliculty aiiout that. lint that is not tlie (piestion which we have to determine ; wluch is simply whctlK^r this is ,in answer to a creditor who ha.-i given trust ujion the faith of his being a sliarehoMcr. Supjiose this were a conimou partnerslii]), and that there was credit given to tiic tirm, would it be any answer to an action by the creditor against one of the partners that the defendant was fraudulently induced by the other partners to become a piirtner ? Inter. tc, that might bo consiileriM'. ; but as bi'tween the firm and a crediter, it is a matter wliolly im- material." Tills ease was iui)iroved and followed in Dorset! v. Harding, 1 C. 1$. N. s. 5'2t, 632; in To wis v. Harding, lb. 533; and in Daniell v. The Official Man- ager of the Royal British IJaiik, 1 H. i N. 681. In these cases it is luM that, where it is .sought to charge a shaitliolJer for the liabilities of a company to a jiul^'- nient creditor, such shareholder caiiiint resist the claim on the ground tliut lie was induced to become a sharelioliliT liy fraud on the part of the com[wiiy, anil repudiated the shares alter the coiniiaiiy had become bankrui)t, but as soon as he discovered the fi'aud ; the Judgineiit urwl- itor being no party to the traml. .S,c further, Bright v. Hutton, 3 II. L. Cas. 341; The Bwlch Mining C'o.'s Case, L.ll. 2 Ex. 324; Mi.xcr's Case, 4 De C. & .J. 575; Clarke «. Dickson, E. B. & K. 143; Ship's Case, 2 De (i. J. & S. 544; Suwart's Case, L. li. 1 Cii. App. 574 ; Wibsur's Case, L. II. 2 Va\. 741; Saundrrson s Case, 3 De O. & Sm. 66; Dodgson's Casr, 3 De ii very clear grounds, thuM ; "It was urgid liclniv us that, even if in a voluntary win tin;,' u|i, a pcr.son wlio has been imluced to lin-onie a member of a company by fnuid (aiiiiot get rid of his liability "by lesriniliuf: within a reasonable time his coiiiiai't to take shares, and must bi^ iilaced ii|i"n the list of eontribntories for the beiirlit of rivd- itors, nevertheless, as between liiiii-rlfan'l the other meinl)ers of the compaiiy with whom he has liecome associated thnmnh the fraud of their agents, he n.ay be en- [book II. ion of Mai ins, 3t be removed, which had, iu tlio vohmtan- Vet, 1802 and ng' iiisuilicicnt ihai'choldor iu shares by the repudiate his of them, nor id by him for The Offidal Man- :,ish Bank-, 1 H. & I's it is liflil that, iiiii'gi! a shiiiuliuldtr jiuiiaiiy to a jiul;^- iliari'holilt;!' cumwt 10 grouiul that he B a sliiircliolikr by the coiinnuiy, and alter the coiii[iany but as soon as he he Jiulginoiit creJ- tile I'nuiil. Su ^ton, 3 II. L. Cas. Co.'s Cii.sc, L. H. ase, 4 De C. & J. E. B. .^ K. 143; S. r>44; Stewart's 574 ; W.'lisicr'j iiliulri'soii s Case, {son's Ca.-ii', 3 De use, 3 l)el!.A:Sm, ,s Ca.so, L. 1!. 3 K'|, ge, b 11. !.. (.'as ()('. n. i»l',t; \k Avscdugh, '"' K' ^ wiihaiii 13 C. li. e, L. !!. li Ch. . L. U. 2 Ch, 111 County Rank, i(in iu tills cisL' is iiwcll nil vi'iy clear ,s nr<'i''l lii'tiirc us tiiry win iini; "I'l niluVeil to liivoMii' IpV IVaiicl ralili''t ty "l>y ivsiniiiliuj; i". hi.s eoiiliai't to I placeil \<\". Ap. 145. - The cases jir.or to the deeisioii of Western Bank of Scotland v. Addie. E. K. 1 Sc, & 1). Ap. 145 (whore the hiw was .settled as stated in the text), were by no means harmonious. In Dodgson's Case, 3 Do G. & Sm. 8,5, Vice-Chanecllor Knight Bruce held that any, and Brockwell, relying upon the truth of the reports, puichased some new shares which were issued by the company, upon which it was sought to make him a contributory, Vice-Chancellor Kindersley held that the reports of the directors, designedly publislied, must be considered as reports of the company, and Brockwell was removed from the list of contributo- ries. Hrockwell's Case, 4 Dru. 20.5, was overruled by Lord Campbell and the Lords Justices in Mixer's Case, 4 De G. & J. 575. Lord Campbell, in his judgment, said : "Clearly there was fraud, and gross fraud, on the part of the directors, and I have no doubt that Mixer was induced by fraud to take his shares. I think, how- ever, that it was a fraud on the part of the directors which cannot be attributed to the company," and the shareholder was continued upon the list of contributories. In this case tliu correct reason was given wliy, even it the })urchase of shares was induced by tlio fraud of the comjiany, the person defrauded could not resist his liability to contribute as a shareholder. Lonl Campbell said : " It is a settled rule that a contract obtained by fraud is not void, but tlnit the party defrauiled iias a right to avoitl it if he does so whiles mat- ters remain in their former jiosition." In the case of the National Kxchange Com- pany of (Uasgow u. Drew, 2 Mac(i. Sc. Ap, 103, with reference to the responsibility of a comi)any for tlie fraudulent misrepresen- tations oi' its directors. Lord Cranwoith said ; " What is the consecjuence of the company receiving a report and publish- ing it to the world ? 1 confess that, in my opinion, from the nature of things, and from the exigeni'ies of society, that must be taken, as between the company and third persons, to be a representation by the company. The company, ns an abstract being, can represent or do nothing. It can only aCt by its managers. When, thercfoa*, the directors, in the diacharg) of their duty, fraudulently, for the ]uir- pose of misleading others as to the staii/ of the concerns of the company, rc[iri'sci); the company to be in a different statu fiom that in which they know it to iw, innl when the persons to whom the reprisciitu- tion is iiddressed act upon it in tin' huhil that it is true, I canii'-^ think that suiuty can go on without treating that as ;i mi.-. representation by the company." In the same (;ase Lord St. Leonards said ; " 1 have certainly come to this conclusion, that if representations an; niadi' by a com- pany, fraudulently, for the purpo.M' of in- liancing the value of their stock, ami tlicv induce a third ])er.son to purchase stoik, those representations so made by thorn lur that purpose do bind the comi>an y. I con- sider representations by the dircturs of a company as representations by tlic com- pany. Although they may be rcpivsonta- tions made to the comjiany it is tlnir own representation." Lord Westbury, in tlie New Brunswick & Canada lly. Co. r. Conybcare, 9 H. L. Cas. 725, comurred with these views, where he said : " 1 cer- tainly am not at all disi)osed to advise your lordships to tiuow any doubt iijion this doctrine, that if rejiorts are made to the shareholders of a company by tlicir di- rectors, and the rc[)orts are adopted hy tlii' shareholilers at one of the appoiiiteil meet- ings of the companj', and these ivports are afterwards industriously (■inuliitod, misrepresentations must undoubtedly K taken after their adoption to be ini,sre]i- rcsentations and statements mmle with the authority of the eomjiany, ;;nil there- fore binding tipon the company." I.onl Cranworth, in this same case, iidheringto the views he had expressed in the National Bank of Glasgow v. Drew, 2 Miu'ij. Sc. \\<. 103, and in Hanger v. The (Jreat Wi'stcrii lly. Co., 5 H. L. Ca.s. 72, Sti, to tlie clfcct that if the shareholder had been iiidiicii! to go into a transaction by tli;it which cotdd be called a fraudulent repivsciita- tion on the part of those tliron,i,'h whom the negotiation proceeded, namely, the di- rectors, ♦hat that was a fniiid tliiii wiuild bind the company, said; "Tn that (i|iiiiiiMi I entirely adhere, and I think it wonld have been apitlicable in this case if it had been proved that there hai' neen a iVaiidii- lent representation or conceahiieiit liv 'he directors in order to induce the sliiiicludder to purchase, not shares in the market (that is a very different thing), but '^lii"""'* belonging to the company, iiannlv, for- f"ite<'. shares, if the direcu.in or tin- see- r« .ly acting for them liml frainlnhntly represented something to hiii! wl;'' ""^ yt I'ART v.] CORPORATIONS. 333 to be tested by considering the grounds of such belief. And if an untrue statement is made, founded upon a belief which is des- titute of all reasonable grounds, or which the least inquiry would imracdiateiy correct, it is fairly and correctly characterized as misrepresentation and deceit. Third. Although the directors arc merely agents of the com- pauy themselves, and, therefore, according to the well-known rule, tliey could not depute any other person to act for them, yet if they employ their manager to make false rcpresentati''. Corporate bodies may bo made responsible for the frauds of their agents to the extent to which the company has profited iroiu the frauds ; but the incorporated company cannot be sued for frauds committed by directors before the incorporation. Second It is necessarily to be inferred from the very expres- sion r(')'e former cases, that tho nmiiiiiny woul' Jji't licon bound by thiit IViinil. r>ut t'l • j'.inciple cannot hi' carrii.l to the wih? i )igtli ':!iat I have hoanl siigiji'steil, ' ai ." . , .hat you can hiiiii; (III iiriiiii iig; ns. , I' C" npany upon tho jjrniiiid of ileeei: lie. i^ - i)i(> directoVs li:ive ddiic an net whict i*ii<.'lM render tlicin liiilih' to such an ai Tliiit I take iiiit til be tlie hiw of tl\e land ; nor do I hclirvc that it would be the law of the laiul it the directors were the ap'Uts III' siiiiii' ]uMso!), not a company. The i'niiil timst tic a fraud that is either jier- <'inal DM ihc part (if the individual making it, iir soiiii' fraud whiel) another j)erson has itiiiilinlly authorized him to be guilty "f" Ni\v iliimsviii k & Canada Ily. Co. f. Conyhrare, it I ■ . Cms. 711, 73i). See Kyrer. liiunies', , M H. L. I'as. 97; Cen- tral li. (■„. „r \eii...-i<';;i i\ Kisch, r.. u. '-' H. I., m: : Dout II- !/• :i."il ; Krnest r. Cas. 401 ; Hiirnes v. I'm. 4!»7, .'■,•. Ayscough, tj E. & B. 763. •lii i. V. Shin, I'- K- 3 Ni.hoUs, 6 H. L. Pennell. 2 H. L. Heposit liife Ass. Co. v. 1 This i.s the doctrine of the civil law. Calviiius, Lux. It has also been adujited into the common law. 'J'lius, it was held in Clarke v. Dickson, K. B. & K. i 18, that a person induced by fraud to enter into a contract under which he pays money may, at his oplioi', nscind the contract, and recover liack the price as money had and received if he can rrturii wliat he has re- ceived under it. But when he can no hin;,'cr plarc the parties in statu qim, as if he lias liecomc unable to return what he has received in the same plight as thai in wliich he h:is receivi'd it, the riglit to rescind nil hiiifier exists ; and his remedy must ho by iiU action fur deceit, and not for money hail .nid n-eeived. Cromi>tiin, .1., said in this case : "When once it is .settled that a contraei induccil by fraud is nut void, but voidalile at the option of the party defiaiidi'd, it seems to me to follow that when that party exercises his option to rescind the contract he must be in a state < rescind ; that is, ho must be in siieh a situation as to be able to put the jiarties into their oriRinal state before the con- troct. The piairititr must rescind in Mo \h\ {M !! ii : 834 COMMENTARIES ON SALES. [book II. Third. Where a person has been defrauded by directors, and the subsequent acts and dealings of the company and himself have been such as to leave him no remedy but an action for tlic fraud, he must seek his remedy against the directors personally. A Scotch company, whose nominal capital was <£ 10.3,000, an- nounced that £100,000 had been paid up, and that only £5000 could be called for. Relying upon this representation, a ^vntk- man, resident in London, purchased, as a transferee, 300 shares: and paid his proportion of the outstanding <£oOOO to the compaiiv, The liquidator alleged that this gentleman " knew or ought to have known," that the company was a bubble; and proposed to make a call upon him of £30 for each of his shares ; the £100,000 represented as actual capital not having been paid up. The appel- lant resisted the ap[): ; ''^".contending that, as he had performed his contract, no furthc» iind could be made upon him. The Court of Session of Scoth.iid, after much deliberation and differ- encc of opinion, decided in favor of the respondent, the liquidator.' or not at nil. Ho cannot both keep the shares and recover tiie whole price. That i.s founiled on the plainest principle of justice. If he cannot return the article he must keep it, and sue for his real dam- age in an action on the deceit. Take the case of a butcher buyinj; live eattl. , kill- ing them, and i^ven selling the meat to his customers. If the rule of law were as the plaintiir contend.s, that butcher might, upon discovering a fraud on the ])art of the grazier who sold him the cattle, re- scinil the contract, and get back the whole price ; but Iiow could that be consistently with justice ? The true doctrine is that a party can never repudiate a contract after, by his own act, it has become out of his power to restore the parties to their origi- nal condition." The principle was laid down by Ijord Kllenborough in Hunt v. Silk, 5 F.ast, i\\\, that where a contract is to be rescinded at all it must be rescinded in toll), and the jtarties i)ut in statu quo. This has since been acted upon in nu- merous cases in Ktigland and in this coun- try. Parke, B., said, in Blackburn v. Smith, 2 V.S.. 783, 790, "There can be no rescission of the contract unless the parties can bo placed in statu quo." So, in Shef- field Nickid Co. V. Unwin, 2 Q. B. Div, 214, 2-23, Lush, J., said : "A contract void- a!)le for fraud cannot be avoided when the other jiarty cannot be restored to his statim pto ; for a contract cannot be rescinded in part and stand good for the residue. If it cannot be rescinded m tot^) it cannot be rescinde ; l''i- guson V. Carrington. i) 15. k C. ;>'■> ; Stnitt V. Smith, 1 C. M. & 11. 312 ; Caniiibell i'. Fleming, 1 A. & F. 40; llaiiKU- v. Ornvas, 15 C. B. 667 ; Fitt v. Cassanet, 4 M. & C. 903 ; Beed v. Blandford, 2 Y. & ■'. '-'iS ; Norton v. Young, 8 (Jreeid. 30 ; .liuikins V. Simpson, 14 Me. 364 ; ("oolidge r. Brig- liam, 1 Met. 547 ; Peters v. i-'w\\, 4 Blackf. 515 ; Brown v. Witter. lO Ohio, 142; Johnson v. Jackson, 27 iMiss. 498; Allen I'. Fdgerton. 3 Vt. 44J. ' Jamieson v. Waterhouse. Scotch Rep. 3<1 .series, vol. vi. p. 691 ; Scotti.>,h Jur., vol. xl. p. 306. PART v.] CORPORATIONS. 835 ,1 ' -S On appeal, the House of Lords held, reversing the decree of the court below, — First. That the liquidator was wrong, the shareholder having done all that could legitimately be dcinauded of him under his contract. Second. It is not incumbent on a shareholder to suspect fraud or institute inquiries where all seems fair and conformable to the requirements of the statutes. TltinL Tlio liability of a shareholder is to be measured by his contract, as based upon the statutory documents, which are regis- tered lor the purpose of protecting the shareholders on the one hand, and the creditors on the other. F""rth. The court cannot expand the contract ; nor will it fix upon a party any engagement larger or other than that into which he has entered. Fifth. Tliere is nothing to warrant a contrary doctrine in Over- end k Gurney Case,^ where the shareholder's contract was en- forced, but in no respect altered ; the contract, as it existed at the time of the winding up, being the sole measure of liability. Sixth. A shareholder has a right to stand upon his contract, and is not bound beyond it, at the suit of the liquidator,'^ 1 I-, U. 2 H. L. 825. - Wiitciiiousc r. Jiiiiucson, L. R. 2 Sc. k I). Ap. 21). 'I'lie ()U('stion is put very clcailyby Lord Hathcrk'y, L. C. : "The rual and siihstaiitial question appears to W this: Wlietlicr or not a jiersou taking sliarcs in a n ami issued to the jmblic without tile fact being known tliat while they were t'lflS sliiircs only .€."> or some very small iimmint liinl been paid upon them, whether suih a shaiclioldcr can be sued on behalf "I the cicilitors of tiio company for the £100 ]icr share whi(!ii remains un]m(l ; whether, the ijuestion being raised between the creditors and the alleged shareholder, the shareliolder can set u]) the defence that he is not liable to the creditors whieh ho has contracted to i>ay. " In answer to this Lord llatherlcy, with whom agreed the whole House, said : " I confess, after some considerable hesitation, 1 have come to the conclusion that a shareholder is entitled to say : The contract I have entered into must be found in the deed into wiiich I have entered. For all purposes as between nie and third jicrsons I am oidy to be held to have entered into those engagements wliieh the deed itself rejiresents me to have en- tcHMl into ; and as regards the shaves whieh I have takei\ and purchased, iiaving a doenment signed by those who are ena- bled •■.ogive siteh a certilicate, certifying that a certain amount per share had been ])aid, which certilicate is entered and duly registered as the act re<|uires, for the very l)iirpose of lU'otecting the sharehohlers on the one hand and the creditors on the other, I am entitled to say, no fraud be- ing chargeable against me, that 1 am only liable to the extent of the money which appeared by the certilicate itself, given me bv the directors of the company, to be un- paid." The marked distinction between the de- cision in this case and in the Overend & Onrney C'a.se, L. ]{. 2 H. L. 325, is thus clearly pointed out by the F,oril (^iiancel- lor : " I think the principles upon which ■r^ 41 :i\ iil !: ill!.' m\.r i I t ; 1 ; ' i , in i< 336 COMMENTARIES ON SALES. [book II, A person purchasing cliattels or goods, concerning which the vendor makes a fraudulent misrepresentation, may. on findiiii' lii ■^ M'. !:■'■■■¥ that cnse was decided liave re«lly no bear- ing whatever upon the present question. There Mr. Oake.s had uniioubtedly become a member of the company. He knew all the objects for which it was founded, and the terms of its constitution, and he entered into the ordinary engaqenients. Then ho said : True it is I have entered into those engajjements ; but I setik to bo relieved from tliein because 1 was induced to enter into tliem by misrepresentations, without which I shoidd not have become a shareliolder. IJut this House held that whatever rights he might have acquired against those who made the fraudulent representations, he had as regarded the outer worhl executed an instrument by which every creditor had a right to be- lieve that he was bound, and that he could not extricate himself after the winding-up, although before the winding-up lie might have instituted proceedings to liberate him- self from tlie engagenu-nts into which he liad been led by tliose misrepresentations," Waterhouse v. Jamieson, L. U. 2 So. & D. Ap. at p. 33. Lord Cairns said, iu the case of In re Duckworth, L. R. 2 Ch. 578, "The li(|ui- dator represents tiie creditors oiilii because lie represents the compatiy, and through the company the rights of the creditors are to be enforced." Lord Westbury, adopting this, in Waterhouse v. Jamieson, L. U. 2 Sc. & I). 38, comments upon it thus ; " Now, here the appellant is a bond fide holder of shares, upon which, no doubt, there was a false statement m.;ao by the company of which he had no knowledge, and as to which ho was under no obliga- tion to inquire, and therefore he cannot be subjected to liability by having im- pufcd to him a knowledge of the false- hood. Could the company recover against him ? If there had been no winding-up order the question would not have admit- ted of a moment's doubt, and the winding- up order does not jilace the liv Lord Cairns in III re Duckworth, L. li."2 Ch. :>78. that " the liquidator represents the creditors onli/ because }ic re/nrsenh (lie cnidinivii, ami through the coiiipitnt/ the rights of the creditors are to be enforceil." .\s I-'"^' Westbury has well jmt it: "Tlw rights of creditors against the sharehoMcis ot a company \vhen enforced by a li(|iiiiiator must be enforced by iiim in riirht of the company. What is to be paid by the .shareholders is to be recovered in that right. What is due to the company is PAUT v.] CORPORATIONS. 837 ■H* .k out tlio fraud, retain the cliattels or the goods, and have Iiis ac- tion to locovei" any damages he has sustained by reason of the fnuiil.' Hut the same i)rinciple does not apply to shares of stock ill a joint stock company, for a i)erson induced by the fraud of the agents of a joint stock company to become a partner in tliat com- |)any can bring no action for damages against the company whilst he remains in it ; his only remedy is reatitntio in in(c(/rumy and rescission of the contract; and if that becomes impossible, by the winding up of the company or by any other means, his action for ilamaucs is irrelevant, and cannot bo maintained. Thus, II. houuiil from the City of Glasgow IJank (a co-partnersliip regis- tered under the Companies' Act, 18G2), £4000 of its stock, in Feb., 1877. lie was registered as a partner, received dividends, and otherwis acted as a partner thereafter. The bank went into lii|nidation in Oct., 1878, with immense liabilities, and II. was en- tered on flio list of contributories, and paid calls. In Dec., 1878, 11. brougiil an action against the litjuidators, to recover damages in respect of the sums he had paid for the stock ; the money ho liad already paid in calls, and the estimated amount of future calls. lie founded his right to relief upon the ground of fraud- ulent misrepresentations made by the directors and other bank ollieials to him. He admitted that, after the winding up had com- menced, it was too late for him to have rescission of his contract, and nstlfKfio in integrum. The Court of Session of Scotland dis- missed the action as irrelevant.^ On appeal, the House of Lords held, alTirming the decision of the court below, that, even although the fiaudnlent misrepresentations might, if the bank had been a going concern, liave entitled him to rescind the contract, rescis- sion being now impossible, as decided in Oakes v. Tunpiand,'^ and Tennent t'. City of Glasgow IJank,'* they afforded no ground for quis of Abcrcorn, 27 L. .T. C'li. 6t)6 ; Ex pirlc Ciiriie, 3'2 L. J. Cli. r>7 ; Slielliclil, &c. Soc, 34 L. J. Cli. (>9:i ; Leifi-liild's C':isp, L. |{. 1 F.ii. 231 ; In rr Aiii,'h'si'a (,'olluMV Co., L. K. '2 K(i. 37!' ; Wind's ra.se, L. H. 2 K(]. i'H) ; I.. \i. 4 Kc). 189 ; Li. id's Ca.sc, '27 IJ.'av. 4C)r> ; Hvaiii's Cusp, 1 Di' O. V. & J. 75 ; Biuld's Ca.se, 10 W. 1{. t>\ ; Acpiilfiital & Mar. Ins. Corpo- ration, L. R. .I K(i. 22 ; in re Kli^Ush Joint Stock Hank, h. 11. 3 Iv]. 341 ; An- derson's Case, L. H. 3 K(i. 337 ; Need- luun.s (,'as, , L. U. 4 Kq. 13;'.. 1 Per Lord Cairns, in IIouMsworth v. that only wliich is in fact recoverable by till' odiiii'iiiiy. The li(Hiidator, therefore, stiiiiiliiit; ill the place of the comiiany, the lllll'^ti(lll is. has he a rifjht to impeach the iiU'iiiDiatuliiiii, set a.side the urtirle.s, re- ihioi' the ci'i'tilicate, and recover in right of tile c'liiiiiniiiy that which tlie company t'oulil not toi- one moment, as afjainst a hfin'i Jhh shareholder, be entitled them- •vlves to recover y" Waterhouse v, Janiie- snn, L !!. i Sc. & I), at ]>. 37. And the ilii'isioii of the Mouse of Lorils, reversing thiMlciision in tiie Scotch court, was that the lii|iii4ator afjainst such bond fide sliare- hnKlcr has im such rit,dit. The decision is fiu-ii'ii hin;:; in its consequences, anf sus' tained, for fraudulent misrepicsentiiti'Hi by the directors, unless there can be n^i- tiitio in integrum, yet that for any lOii- tract made between the company an! anotiier, with respect to any othei' nuittor than its shares, the company is resi»:i- sible, as an ordinary principal wonKl l*. for the fraud of its agent. The reason for this distinction, we take it, is even tiiu't than the distinction itself. Tli" piini'i|i,il is only bound for the acts of his ag'iit within the .scope of the agency. In the case of purchases of stock from a eoniiMny, it is rather the purchase of a ri;,'lit to be- come a member of the company and thus to become a .sharer in the acts and ccintiiids of the company, than it is the entoriiiiJ into a contract with the company. It is in cases of contract with a company that the company acts by its agents, luid is bound by their acts and repiesentations within the scope of the agency, lint, in the selling of the stock, it is, in a .'oiisc, merely giving the party a right to beoome a member of the company, wiiieli Iws a corporate existence, not for the innpcsi' of selling its shares, but for carrying <'ti some specific bu.siness. So long then iis th« contract, so to call it, simply amounts to PART v.] CORPORATIONS. 839 Since 1873, A. had appeared on the register of a joint stock l)anking company as the holder of £G00O of stock. On Oct. 2, the riplit of tlio party jnirclm8inf» tlio sliiirrs of bi'coniiiif; ii inenibcr of the cor- ininitioii, the imrty, wliiUf in a iiosition to inaki' rt-slitnlio in intajriim, hy a rctuni of tlic stock, thi' nxtiVti selliii},' of which was all that was in tlic povvnr of the company, is, as between himself and the (iiiiipaiiy, entitled to cancel snch trans- niiicin lor the fraud of those acting for tlir idiiiiiniy ; the agents having no power liv siicli sale, by their reirvsentations, to make tlie company any fiuti. 'r liabhi than tliat of having the sale rem ored invalid. Tlic selling; of the stock is a thing apart from the object for wliich tiie company is created. If the company were createtl for the purpose of buying and .selling other stocks than that of tlie comi)any, tliosp would bi^ simply diattels, and rcpre- si'Utalions made with reference to them on such sales, by the agents of the com- ]mny, would be representations with ri'tcr- ence to contracts of the company, and, as bucli, binding on the company, witliiu the scope of the agency. The only ground upon which we think the cases on these dill'erent questions can be reconciled, is, that tlio .scope of the agency is very dillcrent in the cases where tlie sto k of the company is .sold, where the transaction is oidy the creation of a rifjiit to jiartake in the comjiany's con- tracts, as distinguished from those cases where the representations of the eomjiany's ."ij^i-nts are made in connection with tlie company's contracts, within the scope of its corporate eajiacity. Lord Cairn.s, in Houlilsworth V. City of Glasgow Hank, 5 .Apji. Cas. !i23, says : " There is no doubt that according to the law of Kiigland a per- son purchasing a chattel or goods, concern- ing wliich the vendor makes a fraudulent iiiisrepresentation, may, on finding out tlie fraud, ret.iin the chattel or the goods, and have his action to recover any dam- ages he has sustained by reason of the fraud. . . . But does the same rule apjdy to the case of .shares or stock in a ]iai tiier- sliip or company ? We are .iccuistomed to Use lan!,'uag(> as to such a .sale and pur- ciiasp as if the thing bought or sold were goods or chattels, but this it certainly is uct. The contract whicdi is made is a contract by which the ivr.son called the linyer agrees to enter into a partnership nlrendv formed and going, taking his share of past liabilities, and his chance of future profits or losses. He has not bought any I'liattel or piece of property for himself. He lias merged himself in a .society, to the piopcity of which he has agreed to con- tribute, and the property of which, includ- ing his own contributions, he has agreed shall be used and a]i]died iu a particular way and in no other way." The tlecisioii in this case tnnis upon the peculiar character of the transaction where that which is purchased is the stock of the company, ami where the <{uestion that is decided is that a man who has been induced, by the fraudulent misrepro- sentations of agents of a company, to take shares in the coin|iany, cannot, after he discovers the fraud, and is unable to make restitutio in inli(jrinn, recover daniagefi from the company. Lord Blackbuin, in commenting on the language used by Lord Chelmsford, above stated by us, says : " I cannot say whether Lord Chelmsford meant to conline his observation to the particiilar kind of contract then before liim, without deciding whether the same doctrine would apjily to all kinds of con- tracts, or whether it was only by accident that he conlined his language as he did. There are strong reasons given by the noble and learned lords who have already spoken in this case for holding that when one has been induced by the fraud of the agents of a joint-stock company to con- tract with that companv to become a partner in that company, he can bring no action of deceit against the company whilst he remains a partner in it. There are reasons which would not apply to every case in wliich a contract has been induced by fraud, as for example, if an incorporated company .s(dd n ship, and their manager falsidy and fraudulently represented that she had been tlioroughly repaired and was (piite .seaw(>rthy, and so induced the purchase, and the purchaser first became aware of the fraud after the ship was lost, and the underwriters proved that she had not been repaired and was in fact not seaworthy, and so that the insur- ance was void when it would be too late to rescind." And Lord Blackburn (piotes apjiroviiigly from Lord Shand : "The whole question has been very carefully coiisidei'i'd in recent cases in Kngland, in whiidi it has been well settled, on prin- ciples which I am satisfieil are sound, that an iiicorjioration will be answevabh^ in damages for the fraudulent representations of its agents made in tlie cour.se of the business intrusted to them." Barwiek v. The English Joint-Stock Bank, L. R. 2 Ex. 2.'»9 ; Swift i». VViiiterbothnm, L. R, 9 Q. B. 3ni ; Mackay v. The Conunercial Bank of New Brunswick, L. R. .5 P. V. 394 ; Swire «j. Francis, 3 App. Cius. 106; Stone V. The City and County Bank, 3 C. P. Div. 283 ; Weir v. Bell, 3 Ex. Div. 3 H r u:;i t '' '• { 340 COMMENTARIES ON SALES. [book II, H :)■ mi t 1878, the bank stopped payment. On Oct. 5, the directors issued circulars summoninj; an extraordinary general nieeting to puss a resolution to wind up the company. On Oct. 18, a report uuuli; by independent investigators was sent to all the shareholdiTs, which showed that the insolvency of the company was of such an overwhelming character that large calls would have to be madi' to meet its liabilities. On Oct. 21, A, raised an action for reJiic- tion of his contract to take stock, on the ground that ho was induced to purchase by the fraudulent misrepresentation of tlio directors. The summons in this action was served on the roni- pany on the same day. On Oct. 22, an extraordinary resohitiou to wind up the company voluutarily was passed. A. was put on the list of contributories. The first division of the Scotch Court of Session refused the prayer of the petition, holding that the action came too late after the bank had stopped payment and had declared its insolvency.* On appeal to the House of Lords, the 238 ; Itoulilswortli v. City of filnagow Bank, 5 App. Cas. 340, 33!>. Tlio qiu'stion is ) '.it by Kurl Ciiiriis on the peculiar cH'iu't of tlio Windinfj-uji Act on tlio rights and obligations of the share- holder, and that consideration entered largely into the decision. But where the Winding-up Act does not apply, and where the company is selling its own stock, strictly as a commodity, as the stock of any other company in which it is deal- ing, — ns, for instance, where the stock has been surrendered by a stockholder after some of the calls have been paid, and the stock, under fraudulent misrepre- sentations by the 'igent of the company, lias been sold for more than its value, the company being solvent, — we see no rea- son why the purchaser of tiie stock, wiio has snll'ered loss by the fraudulent mis- representation of the company's agent, could not as well recover against the com- jjany, without the restitutio in integrum, as in any other case where a right of ac- tion would accrue to one against a com- pany for the fraud of its agent, as in the cases above cited. See previous notes con- taining dicta to this effect. A case analogous to this is decided in the Scotch case of Howe i'. City of Glas- gow Bank, Sc. Rep. 4th ser. vol. vi. p. lll>4, whero the seller was a third party, and where the purchaser sought to make the company liable for nii.srepro- sentation, on the ground that the bink, through its oflficiol.s, acted as agent for the seller in .selling the bank stock belonging to the seller. The court held tliat the bank was not liable ; but on the ground that neither the manager nor the direc- tors had any power whatever to carry through an agency tran.saction lictHceii third parties which could in any way allect the bank or its sharelioMcrs. In tlie cas(( which we have put, and wliich is liable to occur in this country, as iIumv would be no ((uestion as to tlic aijiMicv, t\u'. converse of the holding in llmvi'i'. City of (Jla.sgow Hank would .seem In ap- l)ly to such a case, in which the lioMiii!,' would be, " the ollicials had . . . iiiitlinr- ity to bind the bank as brokers in I lie sale of stock," and, therefore, in such a case the bank would l)e liable. See tlic fol- lowing Knglish and Scotch cases in this connection on the (luestions iiivnlvcd. Barwick v. Knglish .Foint Stock I?;iiik, L. H. '2 Kx. 2.'.!»; Mackay v. Ci.iniiiciciiil Bank of New Brunswick, L. It. f. V. C. 394, 410, 4112; Swire v. Francis, H .\it. Cas. 10(), 114; Denton v. Great Nurtliini Bail way Co., H E. & B. 8(10 ; Suilt i: Wi'iterbothain, L. R. 8 I,). B. -J t i ; Swilt V. .lewsburv, L. U. 9 Q. 15. :'.i)l. lili; Weir I'. Barnett, 3 Kx. Div. ;!2 ; Weir r. Bell, 3 Kx. Div. 238 ; Hecdi.; v. L. A N. W. Ry. Co., 4 Kx. 244, 2:>'> ; Ib'in r. Nicholls, 1 Salk. 288; Cornfoot r. I'cnvke, 6 iM. & W. 3.58, 373 ; .lardiiie v. Ciir.m Co., Court of Sess. Cas. 3d .scr. vnl. ii. p. 1101; National Ex. Co. of (ilas^'dw i'. Drew, 2 Mac(|, 103; Burnes y. I'ciiiicll, '2 H. L. Cas. 497; Forth Main Ins. Co. i'. Burnes, Court of Sess. Cas. 2d scr. vol. x. 689 ; Traill v. Smith's "nistecs, //>. 4tli ser. vol. iii. p. 770 ; Clydesdale Bank f. Paul, I/>. vol. iv. p. 626;"Adilic v. Wi'stcin Bank, L. K. 1 Sc. & D. 145. 1 Tennent v. City of Glasgow Ikiik, Scot. L. R. vol. xvi. p. 238 ; Court Sess. Caa. 4th ser. vol. vi. p. 554. PAUT v.] C0RP0IUTI0N8. 341 decision of the Scotch co \ was auntninod on tlic ground that the ridits of innocent third parties had intervened, and that A.'s no- li >ii for reduction of his contract was too hite to exempt him from liiiltility.' liiiril Cairns, L. C, in delivering the judgment of the House of L(iiils,aih>pU'd the three propositions hiitl down by the Lord I'resi- ik'iil in his judgment in the court below, as follows: — In till' first place, a contract induced by fraud is not void, but only voidable at the option of the {)arty defrauded. Socondly, this does not mean that the contract is void till rati- lied. but it means that the contract is valid till rescinded. And, thirdly, the option to void the contract is barred where innocent thirtl parties have, in reliance on the fraudulent ccui- tnict, iiciiuii'ed rights which would be defeateil by its rescission." IV'r.sons who jturehase property and then create a company to 1 ///,//. \ A p. Ciis. 01 f). - Siiplili 1,. If. vol. xvi. p. 241; Court S.ss. ('as. Itli SIT. vol. vi. J). .'i.''.8. The luiniipli's iiivolvcil in flic iiisc wen' tliii.s stiiiiil liy I'onl Ciiiriis: "In iiii oiiliniiry ]i;iiiihislii]i, not loiincd on tlu- joint-.stock ]iriiici|iii', it is inipossiMc, as a j^cncnil mil', tiii' a ]iartnc'r at any time to ret ire fniiM oi- ri'imdiatt' the partni'i'shij) without satisrviii;,'. or rcniainiiij,' houinl to satisfy, till' iialiililics of the iiartni'r.ship. llo may have been induced by his co-parlncr.s liy iVaiul to enter the partnership, and that may lie a f,'r()nnd for relict' af,'iiinst tlu'iii ; tmt it is no ground for fretting rid of a lialiility to creditors. This is the iMsc wliethcr the partnershi]) is a ^o\w^ ('(iin'iTli, or whether it has stoppeil jiay- iih'iit or lieconie insolvent. In tlic case of a Jiiint-stoek company, liowcvcr, the siians aic in their nature and creation traiislcralilc, ami transferable without the eoiisciil of creditors; and a shareholder, so Imij,' as the uoni|tany is a fioiuf^ coii- ccin, ran, by transferrin^,' his shares, j^'ct rid (it his liability to crcditois, either ini- iiicdiatiiy or alter a certain interval. 'J"ho asMiiiiption is that, while the company is a ;;iiiiii,' concern, no creditor has any spe- I'ilii' riL;iit to retain the individual liability iif any particular shandiolder. It i.s on till' .same, or on a similar, princijilc that, so Iciiil; as the coin])any is a >j;oiiifj con- ri'ir., a shareholder who lias been induced to take uji shares by the fraud of the eoin- l«iiy has a right to throw hack iiis shares U]ioii the company without reference to any claims of creditors. Ho would liavo a iij;lit to transfer his shares without ri'fi'ii'iii'o to creditors. The company, as asoiiiif concern, is a.ssunied to ho solvent, and able to meet its engagements, and to have a surplus ; ami the compuny being solvent, its duty to i»ay the repudiating shareholiler what is due to him, and to take the .shares olf his hands, is an alfair of the <'oiiipany and not of its creditors, lint if the company has become insolvent, and has slop|icd payment, then, even irre- spective of winding uji, a wholly diU'erent state of things appears to nic to arise. 'I'hc a.ssnmption ol new lialiilities under such <'ireunistances is an alfair not of the company but of its crcclitors. The repu- diation of shares which, while the eom- jiaiiy was .solvent, would not or need not liave inllictcd any injury upon creditors, must now of necessity inilict a serious in- jury on creditors. 1 should therefore he dispo.scd in any case to hesitate before adndtting that, after a company Itas be- come insolvent and stopped jiaynient, whether a winding up lias coinmcnced or not, a resci.'-sion \ Kent r. Freehold Lund, &c. Co., 3 Ch. App. 4it;{ ; N. Mitchell v. City of (Jlasgow Bank, Court of .Scss. Cas. 4th ser. v(d. vi. p. 4'J() ; A. Mitchell v. City of (Glasgow Bank, Ih. 4:i'.); Henderson v. Koval Briti-sh Bank, 7 K. & B. :i.'')6 ; Mi'x.-r'sCase, 4 Do C.. & J. 57.'); Clarke v. Dick.son, v.. B. & F,. 148; Blake r. iMownt, 21 Bcav. 003; Venezuela Ry. Co. i'. Kisci), li. B. 2 H. L. 99; Allin'sCase, L. B. 3 Ch. 493. M 'i? *, ■ ! I 842 CUMMENTAIUBS ON SALES. [book II. «'i ? . purchase from them the property they possess, stand in a fidu- ciary relation towards that company, and must faithfully slute tu the company the facts which apply to the property, and would in- lluence the company in ducidinj^ on the reasonableness of acquir- in}5 it. This principle was adopted in Erlanger v. Tiu.' St^w Sombrero Phosphate Co.,' reversing a decree of Malins, \'. C. On appeal to the House of Lords, the decision of tho Coui't uf Ajjpeal was sustained. In this case the facts and circumstances of the original sale and purchase by the parties coating the company were n(jt dis- closed to the company, who adopted the purchase without a knowl- edge of the fact ; but, on their becoming subsequently awaio that the promoters of the company had themselves been the purchas- ers of it, at a lower price than the comjmny wore to pay lor it, tho company, on filing a bill to rescind the contract, obtained a decree to that effect. The ilouse of Lords sustained this decree; the only question in the case at all of any doubt existing as to whether the company had a right to the relief sought for was, as to whether there had not been, on the part of the company, such delay in applying for relief as to constitute laches which deprived the company of the title to obtain it. But, with Lord Cairns very doubtful on this point, it was held that the contract could not be sustained.^ 1 5 Ch. Div. 73, 2 Ibid., 3 Ap;,. Cas. 1218. Tho gen- eml priiu^iplesf coiiiiucted with siiuli trans- actions are ('onuisely stated by ijord Uath- t-vley, at p. 1243, us follows: "There aro thrc-o partieular classes of cases of what tu- cv-urt terms 'fraud' whi(!h may be pointed to as having some analogy with, or some bearing upon, the present case. Tixe fir8„ is us bi^tween vendor and pur- chaser ; the next is as between partner and co-partner; atid tho third is the case in which an agent for a purchaser receives a gratuity from the vendor. As to the first of these, a veiulor need not do what was at one time asserted by this bill, namely, disclose what ho has paid in elfecting his own anterior purchase be- fore asking an eiihauced price from him to whom Tie seeks to sell the property ; but he must not be guilty of any conduct which amounts t;) unfair 'oncealment on his part of the real rx'ts of the case, which ought in common fairnoss to bo disclosed to a jn'i-son seeking to purchase or enter- ing into a treaty with him foi' that pur- pose. As regards ])artners, there is no doubt that one partner is bound to exer- cise uberrima fide.s with regard to any transactions in which the j)artner3 may be engaged in common. There is another class of cases well known in couit,-! li equity which has some bearing u|kii the case before us, ami that is where a piTsoii acting as agent for a purchaser — that is lo say, for a person who is minded to imrrliase — receives a gratuity or a brilit' nl' some description from the intending vendor. In that case, again, the courts intciti'ii', ami say that a negotiation carried on bctwivii the agent for the purchaser and vnnloi as jjrincipal, in which the agent for the inn- chaser receives benefits or advaiitai,'i's of any kind from the intending vcmloi. is one which can be impeached, ami which would be set aside in a court of c'lnity." The cases are numerous which >iiow that iwrsons who act on behalf of otliei-s forming a company cannot obtaiii n jiri'lit for themselves out of tho tran.-aitioii. Aberdeen Ky. Co. v. Blaikie. 1 Min^'l- 461 ; Imperial Merc. Credit Assoc c. Coleman, L. 11. 6 H. L. 18!); I.iinlsiy Petroleum Co. v. Ifurd, L. H. T) 1'. •'. 221 ; Fawcett v. Whitehouse, 1 Hnss. & M. 132 ; Tyrrell y. Hank of Loii.lon, 10 H. L. Cas. 2C, 32 ; Charlton i'. H iv, 23 W. R. 12i>; Cornell v. Hav, I- !!• « (^^ ''• 328; Beck v. Kantorowic/, 3 K. A: 1. '-^O: dreat Luxembourg Ky. Co. r. Ma^'iiiiy, 25 Beav, 586 ; Hichens v. Coimr-v.', 1 Russ. & M. 150, n.; Foss v. Harbuitle, 2 PAitT v.] CORPORATIONS. 843 In Dlock V. Ilavorshani,' a question arose as to the party enti- tled to rt'C'jivo the (JiviUonds on a sale of stock under the t'oUow- iii!,' facts, Tliu shares of a company wore sold by auction on Aii6-2. But hIuh' II siUcr oi' property is not actinj; in n liiliiiiiii y capacity, it is open to him to sill his property to a Joint-stock company, anil to invito ]>er.sons to form thoni.selves into ii joint-stock com[)any to jmrchaso frmn liini, just as it is open to any man to sell to any ]iersons in the world the rii,'lit to ln'iDMii' his partners in any property or nmli'itakini,'. Wliiie not actin}^ in a tidu- liiuy capacity, until the formation of tlio iwrtncinliip lie is siini)ly a vendor of the wares. lie may ask wiiat i>rico ho likes, ami 111. tain wliat price he can, and he is umler III) ohlii^iition whatever to say what lirici' he I'ave, or lias to give, for them in onli-r to (uMiplete his title to the goods. Oov.i's Case, 1 Cli. Div. 182, 187. Hut a promoter of a company is in a fiduciary rplatiiiti to the company which ho jiro- nioti's iir ciiusos to come into existence. If that iiriiiiioter has n property which he ilosires til sell to tlie company, it is (juite open tn hini to do so ; but upon him, as iipoii iiMv other person in a fiduciary posi- t'.oD. it is incumbent to make full and fair disclosure of his interest and position with res|iect to that juoiierty. There is no dif- ference in this respei.'t between a promoter of a company and a trustee, steward, or nf,'ent. ^ew Sombrero Pliosphate Co. v. Eiianj,'er, 5 Ch. Div. 73, 118. 1 4 Kx. IJiv. 24. '■' Nothing having been .said about the dividends, there would seem to bo no doubt that tiie purchaser would bo en- titleil to all dividends declared after the ]iurchase. There is, in fact, as an inci- dent of the contract, a presumption as to the intontiun of the parties very similar to the ]iresum|iti()n in England in connec- tion with the punhasos of the home agent who is buying for a foreign ]irinci]ial. Tiie value of stock being allected by the accretion of dividends, the selling j)rice of tile stock is necessarily gieater or less in proi)orti()n to the greater or smaller amount of dividends ; and when the stock S(!lls, notliiiig being said about dividends, it is deemed as of course that all dividends accruing after tiie sale pass with the stock. Tiio one fact that a na/f is made passes to the purchaser — the owner — all the in- crements, just as the jmrchaser of female niiinials takes all their increase following the sale. It was sought to put the case as analo- gous to that of a sale of real jiroperty where the increments are in the vendor until the completion of the sale ; but it was held that the analogy did not hold good. A more strictly analogous cose .)• i u i .ll ti I r I ;i \i t\ I i I ins 1 m •fP 4 ll 344 COMMl'iMTARlES ON SALES. [book II, N i 1 ■* ■) I In Duncan v. Hill ^ the plaintiffs, brokers on the Loudon Stock Exchange, were instructed by the defendant, who was not a mom- ber of the house, to buy certain shares in various public uinlor- takinjrs for him for the account of July 15, 1870. Subseiiiu^ntlv he told the plaintiffs to carry over the shares to the account of July 29. This was done, and the defendant was furnished with au account showing him to be liable to a difference of <£lt!8S lOjt, On July 18, the plaintiffs were declared defaulters, and, in ac- cordance with the rules of the Stock Exchange, all their transac- tions were closed, and accounts made up at the prices current on that day, without the knowledge of or any reference to tlio do- fendant. The result was that there was a difference against the defendant of <£G013 13s. dd. In an action to recover this sum, the Court of Exchequer held that, the rules ol tiie Stock Ex(;liiuiuo, regulating the mode of dealing with defaulters, bound the delciul- ant; that the plaintiffs, though themselves the defaulters, niiirlit take advantage of those rules, and that, therefore, they were enti- tled to recover. On appeal to the Exchequer Chamber, it was lield,^ reversing this decision, that the defendant was not liable for anything beyond the £1688, there being no implied piomisi' by a principal to his agent to indemnify him for loss, caused, ,iot by reason of I'is having entered into the contracts whicli he was authorized to enter into by the principal, but by reason of his own insolvency.^ liie usage of the Stock Exchange is that in transactions bo- tween members of it there is an implied understanding that, un the purchase of the stock or shares, the buying jobber shall lie at liberty by a given day, called the " name-day," to substitute an- would bo that to which wi have rt-ft'iTnl, of tlie sail' or nii)rtga',;e of fciii-ilo doiiitstic aiiiiniils, wlu're it has hoen held that the accessions pass to th< biiyiT or inort<,'ai;eo. Thus in Fonnan v. Proctor, 9 B. .Nlon, 124, 120, •■ . was held that a inortgaf,'!' l)('in<» upon horses and swine must he regarded ns coverinj; and includin ; (Jmnly v. Biteler, 6 111. App. 510. In Junl^ 18<).'i, a dividend was dtfclnred upon sliaies hehl hv tiie testatrix, ])ayab!e on .July 1.5. ISfi.l, aiid ,Ian. \[>, 1866. Ten- titrix tlied on Dec. 31, ISf!,'). It was held that the January dividend formed part of the corpus of her re.sidu.ary estate, and did not pass under a beiniest of the aiinuiil income of smji residuary personal estiiti'. Do (iendre i: Kent, L. 11 4 Ki|. 2-: Cliv,', Kav, 600; AV Ma.xwells Trusts, 1 ll.iJl. 610. 1 L. R. 6 Kx. 2'>5. •^ I.. U. 8 E.\. 212. ' .See, also, Duncan ;•. Peeson. I.. R. li Ex 263, n., in tiie CiMirt of Kx.li' .|iior ; and, reversing their judiiiiieiit, in lli'! Kxchcpu'r Chainber, L. 1!. 8 j'.v 2li; Sutton V. Tatham. 10 \. & V.. ■27: I'ei- lick V. Statile.s, 12 i). 15. 7'i;' I .Mnliott '. Robinson, L. 1!. .1 C. I'. 64(i ; .M;i\fl J- Paiiu', L. K. 4 Kx. 203 ; I.. W '' l-'f- 132 ; Hodgkinson v. Keliv, !.. K. •' I'']' 496; Grissell v. Bristowej L. l!. :i ' '■ !'• 112; L. R. 4C. 1'. 36. [book II, Oiitlon Stock 3 not a mom- public iiiider- !Subsc(|iiciUly ;e account of rnislu'(l with if XltlHS 19*. , and, ill ac- hcir transac- ts curi't'iit on cc to llic lie- ;c against tiie (ver tliih sum, ick Exciiaiiue, id the di'lciul- lulters, luiglit icy were cuti- imbor, it was van not liable ijdied pniiniso iS, caused, .wt whicli lie was on of ills own lansactiiins be- iding that, uii or shall he at substitute an- (l-V cstilti', lUid did ,'t of till' aiiouid |v ])i'rs()iial (': 21^ I. & v.. -17 : l'"l- [. y.i;- ; Mnil.'U ■. (ilii ; M.i\l''i J. |3 : I,. 1! '■ •■■'^• lUv, 1.. K '•• l';l; ■ L. li. :■■''•'■ PAHT v.] CORPORATIONS. other ]»crson as buyer, and so rolicvc himself from further liabH- itv oil the contract, provided &uch substituted person be one to whom the original seller cannot leusonably excei)t, and tliat such j)erson accept a transfer of the stock or shares, and jiay to the ori- uinal seller the price. It was held by Bovill, C. J., and Wilier and Keating, dJ. (IJyles, J., dissenting), that this was not sucli a ueiieral well-known and reasonable custom or usage as could bo supiiorted.' In this ease the plaintiff, the holder of shares in a ciiinpauy 'called Overend, (lurney it Co., thntugh a broke • sold tliL'in to the defendant's jobbers on the Stock Kxchango. After various sub-sales, the names of four jicrsons were given to the plaintilFs broker as the persons to wliom the shares were to be tiansi'ei reti. The plaintiirs broker thereupon prepiarcd four trans- fers to those jicrsons, and the plaintiff executed them, and the broker delivered them with the shares t^ the brokers of the pro- posed transferees, who thereupon accepted the shares, and paid the price to the jdaintiff's broker. The *"ansferees not having oxeeuted the transfers, or caused them to bo registered, the plain- titT remained the registered holder of the shares, and was com- pelled to pay calls thereon. The Court of Common Pleas held (l>yl(s, J., dissenting), that the defendants were liable under their contract for not having indemnifu'd the plaintiff against the calls. But, on error to the Excdiequer Chamber, reversing the decision of the Court of Common Pleas, the court held, with JJyles, J., that, as the i)lainriff had transferred the shares to the defendant's UDininees, and the latter had accepted and paid for them, though they had not executed or registered the transfers, the defendants weie released from all further liability on their contract to the plaint! I'f. 2 1 Cnssrll r. Bristo'vo, I.. R. 3 C. P. - (liissrll V. Biistow.-, L. R. 4 f. P. 3ii. l:i (liM'.iiig with tlir c'jiiiiii tli.it tlie usii;;i> WIS liiiil licciiuso it WMs iimiMsun- aldi', till' court saiil : "As ri'ijmds tlu' al- li'j;ril iiiiri'a cm \'r iiotliiiij^ iiini'asoiiaMi'. any iiiorc ihuii niil.iwful, in a pi'ison to wlior.i it i-* innposi'il to jiiircliasi' n piiitii'iilar tiiiu'.'. siyiin;, ' I will njjriHi to huy, pro- ^id'.l tliai. it', wlii'ii till' time lor roiniilct- iiij,' III'' iiiiitnii'l nnivcs, it should suit me to suli^titutfaiiotliiT liiiycr, utile ami will- habit or usajie of always ilcaliiif:; on surh an uiKii'istandiiii;, evrii when not I'X- jifcsscd, should liccome i'staiilish"d, .such a iisai^c would no more he iiiircasonahk' than siicli a .stiimlatioii would ha iC intro- duced expressly into eadi iiaitiiiilar ''nn- tract. IWsidia, a iisaj^e founded w,, ■ le general eouveiiieiice of all parties (•n",ii,'ed ill a ]iartieular departnicnt of la i.css, can never he said to he iiiireiisi .mide." (irissell V. liristowe, L. H. 4 ('. I . iit )). 47. There are iiunicroiis eases to show that a court of ei|iiity wouhl compel sjiecifie perforinaiice of a eont.act such as tiiis in reality was, viz., a contract for a sale to A., with a eontract si;\ieradded to lii^ to take my idace and perform tliP noiivey to a person who shoiilu he named cnitract, I shall he at lilierty to do .so.' by A., aceoriliiig to the UKa.j('s of tin; \\liat wiiiild !>o'. he unreasonable in n .Stock F.xchanire. Walker n. i?arlletf, 17 sin;,'ii' hiiver wouid not lie so in a class of C. B. 44t) ; l.S V,. H. SI.". ; Sliaw v. Fisher, lK>isiiiisil(aIiiiir ill ii |ii,itii'ular commodity; 5 Dp (J. M. .^ (!. i'lini ; I'aine y. " :.,'liin- "iiil if, liuiu a long suiies of dealings,' a son. L. »J. .3 Eii. 257 ; L. U. 3 Ch. App. :l!i I ' h \ it 1 ,11, if': \, i I 1 I 'i « I ill I ■ 346 COMMENTARIES ON SALES. [book II. '■• ; It ■;■ Where jobbers buy stock on the English Stock Exchange and give the vendors the name of an infant as a transferee, on tlie winding up of the company, and the removal of the name of the infant transferee, the factors are liable to indemnify the vendors against all liability in respect of the shares.^ By the usage of the London Stock Exch'iugc, stockbrokers who have entered into contracts for the purchase of stock, uru. in the event of the insolvency of their principal, justllied in im- mediately selling the stock. A principal is insolvent witliiu the meaning of this rule, when he is unable to pay his deltts in the ordinary course of business. And, in eipiity, an agent is entitled to be indemnified against liability, as well as loss, incurred ou be- half of the |)rincipal.'' W. D., one of the seven persons who subscribed the memoran- dum of association of a company, to work a certain concession, agreed to take one hundred shares. A recital of the articles of association was that K., who assigned the concession to the com- pany, had agreed to cause to be allotted to the persons subserih- ing the articles, shares to be deemed fidly paid up, ai'd the lifth article stated that the shares of each subscriber of the moinonui- dum should be allotted to him as fully paid up, and that a compe- tent number of shares should be allotted to E. in i»ursuani'c of the arrangement which had been previously come to. The CDm- pany was registered on Sept. 22, 1805, and on that day the di- rectors issued to E., for work already done, etc., £50,000 in debentures, and 40'^0 shares. W. l>. was a director. On Oct. -i 1805, E. re(iuested the secretary to place shares of the 4000 in the 388; Hawkins r. MalUiy, 1.. U. 4 V.<\. 572; L. K. 3 Cli. Apj). 18S ; Kvaiis v. Wood, L. U. .0 lv|. 9 ; Shojipiird v. Murphy, 10 W. U. mii:m V. Mill, L. I!. 8 Kv. 24-J ; r.iik.rr. I .wis, L. H. 8 Ch. lo;!."i, lii:.8 ; Colliii,-o i'. I ley wood, U A. & L. (J;J3. I'AItT v.] CORPORATIONS. 847 names of the persons mentioned ; W. D. being one of them, for one liundred shares. The eonipany was afterwards ordered to be wound u].. The ofTicial liiiuidator phiced the name of W. I), on the list of contributories in respect of the one hundred shares for which he subscribed, and on suaunons askini; that a call of £3 a sh;ire might be made. Held, that VV. 1).'« name had been rightly phacd on the list, and that he must pay the call, and that it was not eniupetent to persons who had bound themselves by the mem- oraiidiuii to take and pay for shares, to introduee an article into the articles of association to the ell'ect that they ishould not be culled upon to pay anything.' All ;ipplication for shares in a false name puts the applicant in the same position, as regards lial)ility, as a transfer in a false nunic ; and, in both eases, the nauie of the applicant will be sub- stitiiU'il for the false name. This princij»le was acted on in the following case: S., who was a large shareholder in a company, wished to take more shares, but the directors refused to allow his name to appear for any larger number. He then, at the sugges- tion ot' the secretary, and with the concui'it'nce of a local agent of the company, sent in an application for shares signed by his (Iniigliter I*., a married woman residing elsewhere, Imt then on a xisit to liim. Jler condition was not stated in the application, and the i':i(li( r's residence was given. The deposits on a[»|tlication and allotment were paid by S., and he received the notice of allot- ment and a dividend, which was paid, and all the notices relating to the company, which were posted to 1*. at his address. I', signed the application without being informed or knowing wha' il was, and never told her husband anything al)out it, and neither <.! them knew that she was on the list till an application was made by the olVicial liquidator. It was held that the case was similar i.o that of an application for shares in the name of a lietitioiis person, and that the name of S. must be substituted for 1'. in the list of contril)utorie8.^ 1 /„ ■'inirtiiiii liiiilwiiy ('oiii|iativ, Ofiit's Casi', I. 1.'. i:. i;.|. t»7. Sir W. '.hinirslirMtli.it \\'. !'. li.iviiiL; liDund liiiiiscir liy iln' nicin- "iMinluiii ci| iissiiciatiiiii ti> ImUc .sliaivs ami t'i]i;iy I'cir tlifiii, it was not ii)iii|irli'iit tii in- trmliiii' Mil arlicii' into tlii' aitlcli's of a-^so- I'iiitiuii, whiili ill fact ami in trrins says tliiit, iMilvvitiistanilinj,' licilicl iimlciiakc, liy wlio was im'aiialili'ol'accrjiliii^^siiclia t^ 'is- .iiliM riliiiiL; till' nii'iiKiramliiiii ami tiic tcr, and tliat, tlicicl'orc, his naiin' should Im iirtirli.; urnssoi'iatioii, to take and jiay for siilistituti-d for that of his (laii<;liti'r. Si'o till' sliMics, he should not lie calh'd iiiion lli'mniinj; v. Maddirk, L. U. 7 Di. a'.t.l ; '■' I'ly lor llicin. Si'c I'cH's Case, L. IJ. .') .Musi,'iavc .t Marl's Case, I,. H. [> Ivi. ''Il- il ; DruMiinond's Cast', I,, ii. 4 I'h. lOa; Nickalls r. Kerncaux, cited in I'ugu 7rJ ; .Ihihs' Case, I.. H. ti Ch. 48. & Sliarmaii's Cuso, L. H. 13 Eij. 661). • /'I re llurculi's Inaurunco Co., I'ugh A iij;lo- Moravian ITunfjariaii .<; Sliarnian's Case, L. K. 13 V.i\. ftfiS. 'I'lic roiirt di'i idrd that it was char that till' dau<,'liti'r's naiiii' Ii.i'l to In" lakcn olf the list, and that the casr was thi' .sanii' as tlioui,')! S. l.id ln'cn orii;inally jiut upon liic list of I iiiitrihutorirs, and he liad at- tcnipli'd to ;;> I lid of his lial)ility hy tru';.,- fiTiiuu' tlicslian's into tliu iiuuic of a |i rsou :.: ■ : .'VI ^ i -'."i i i 111 I ' s 1 f Im tt '• . 1 i I '■ I I: il 348 COMMENTARIES ON SALES. [book II. Where a party buys shares under a fraudulent misreprcsonta- tion wliich would entitle him to be relieved from them, on a prompt application on his obtaining knowledge of the misrepre- sentation, yet when he sleeps on his rights and is guilty of luolies, he will lose the benelit of his position, and will be held liable as a shareholder to the creditors of the company.^ A., throiigh his broI|iliennt to make liiiu li and that solicitors apiitarinf? fur hi ojipose a call was neither a couliiin nur uut^uiescence. Ml- Si-e ■ss V. 1 •!•) . - -- » ■atiou ..K. hfir the il.hS IM to itiiin PART v.] CORPORATIONS. 349 a desire to retain the shares.^ But, when there were laches on the part of the company in permitting an infant's no me tj remain on the rouistor for nearly three years after they becamo aware of his infancy, witliout informinj? his transferor of the fact, they were not entitled to snbstitute the name of the transferor for that of the infant, on the list of contributories."^ A. bought of a jobber on the Stock Exchanire shares in a com- pany, and afterwards, the company in the moan time having st ipped payment, 1>. sold to another jobber on the Stock Exchanjre shares in tlic same company at a lower price for the same settling day. On till' name-day, A.'s name was given to !>., as the }»iirchaser of B.'s shares; li. execnted a transfer of the shares to A., and deliv- ereil tlie transfer i nd certilicatcs to A.'s broker, who paid him the j)riee for which A. purchased the shares. A. afterwards repaid ills own broker, and took away the transfer and certificates, bnt dill not execnte the transfer, and it was never registered. It was lioM that A. was liable to indemnify B. against all conseqnences flowing from the ownershipof the shares subseqnent to the execntion of the transfer, and that this liability arose from the natnre of A.'s original contract, according to the custom of the Stock Exchange, by wliich tlie buyer or seller of shares undertakes to buy or sell from or to tlie person wliose name is given to him on the name-day." Wiiere the litpiidators of a company seek to place on the list of oontriiiiitories a person as the holder of shares, and he objects, on the ground of his having transferred the shares, it is incumbent on him to show that at some time or other there was on the regis- ter a transferee of his who could be made liable at law in respect of tlie ijliares. Hence where ten shares were standing on the re- gister ol a company, in the name of an infant, npon the company being wound up, the court, on the application of the licpiidators, removed the name of the infant frtmi the register in respect of the shai'es. and sid)stituted that of the transferor ; although tlie ten sbuns originally formed part of a batch of eighty shares which ' /■' /•<• Coiitiiipntal Bank V ,r|i<)iatioii, Ciistillu'.s Case, I,. l{. o lV(. i")!'!. Tin- s.''(/»v 111' tlu' tiiiiisffiee lit the ilati- of tlu' tlaii>tri- aiiil of \viiitliiieuii Central Railway Co., riiiMiii's Case, L. R. 8 Eij. tiSG. In this oase till' ciini|iany had knowledge of tlie infaiii y. Imt tlie transt'erof liail not. In an Hitioii tiiiial!.-., the infant pleaded iiifuney ill aubwir, and they gave uu uotiue to the traiisfi'i-nr. In Ca])]iei's Case, I,. It. ,3 Cli. 4.")t>, notice was j,'iven to the transferor that the transferee was an infant, and the transferor was held liable. See Mann's Case, 1,. i;. 3 Ch. 4;")1>, 460, n. ; Liims- den's Case. I,. I{. 4 Ch. 31, 33. •' lIodj,'kinson v. Keelv, I-. li. fi V.q. 4!)t!. Sre (irissell v. lillstowe, L. R. 3 C. P. 112; and, on appeal, L. H. 4 C. P. 3t) ; Cni.se n. Paine, L. R. (> V.<\. tJ41; llawkin.s V. Maltby, L. R. 3 Ch. 18S ; In re London & Provineial Starch Co., (!ow- er'.s Case, L. H. 6 Etj. 77; Evans v. Wood, L. li. 5 Eq. 9. M ' '■ ■ ; I ; y. ■ i •! : ■ m tiiat of Birmingham v. Sheridan,''^ relied on for the defend- ant, where it was held, and considered rightly so, that where it was impossible for a person to be put on the register, the con- tract could not be carried into execution, because part of the con- tract was, that the name of the purchaser should be put upon the register, and that part could not be performed. But this case dilTers from that, for this reason that the defendant, not from any intentional misconduct on his part, but owing to his accidental absence from home, did not send uj) the transfer to be registered before May 11, which if he had done it would have arrived in time, and would have been duly registered, at all events, by the liquidator, who would have had authority to register it ; but as it cani(! up too late it could not be registered, and the liquidators had no ])ower or authority to register it.^ four inontliS wilhont takiiif; any stop to rt'|niiliiiti' the traiisuction, lie was lial)le as tlk' |iiii(liaser. See Picmlergast v. Turton, 1 V. & C. Cli. 98: Clej;? v. Edinoiulson, 2])c(;. M. &(;. 787; Sheplierd v. (Jilles- liii', 1- 11. ;') K(|. 293 ; 3 Cli. 7C4. As to till' i|ni>tiiiii ol' contract hetween the jur- tiis, that was setth'd liy ('oh's». Uristowe, !'■ II. 4 ( 'h. 3. See post, •■vhero tlie case of Hawkins v. Maltliy, L. W. 4 V\\. Ap. 200, DM appeal, is more fully staled. ' Kv.ins (.. Wood, L. H. 5 Er,. 9. " ;!:! Heav. 06(1. ' Till' court said : " Now, I can liardly Mil that laches, beenuse a man cannot be blamed lor being absent from home on business for twenty-four hours; 'mt Ptill, if any evil eoiisei|iienc('s follow iioiii that absence, tiicy must fall uitoii hiiiiscir. A court of eipiity does not treat it as a case of laches for which a man should lie irnn- i'licd ; but the question is upon wliom ihc injury occasioned by tli" absence is to fall ? If the dci"i>ndant hiM been at home, tlie re<;istration ol the ' .iisfcr would have l)een duly made, } .. was not at home ; and the eonseijuence is, whether his nb- sence was nci.'ii ental o.' intentional, that ho cannot get any benefit fr> m his ab- .'■ence ; but the parties must bo put in tlie same situation as if he had been at home, and the delay had not taken place." See ■m (>• i\ 352 COMMENTARIES ON 8ALE8. [book II. The question of the effect of the non-communication of the allotment of shares was decided in In re National Savings Bank Association, Hebb's Case.^ On Aug. 28, 1857, H. signed and gave to the agent of the company at Lincoln, an application on a form provided by the company, and, at the same time, paid to the agent a deposit of 5». per share, for which the agent gave liim a receipt, with a memorandum that a duly authorized rcct'i|)t would be forwarded from the head office within eight days. fJu Sept. 4, 1857, the directors allotted ton shares to 11., and entoicd his name in the allotment book, and, on the same day, scut to their agent at Lincoln, the letter of allotment with a receipt for the deposit signed by two directors, but the agent did not deliver the letter and receipt to IL until Sept. 9. In the moan tiino, II. wrote a letter to the directors, withdrawing his application, and requesting the return of the deposit. On Aug. 20, 1858, II. liav- ing insisted upon repudiating the allotment and threatening to sue the company for the deposit, the dii'ectors repaid him the dopusit. The allotment was not formally cancelled, and II. 's nann? re- niaincd on the register, but he had no further communicatiou from the company until June, 1866, when the company was or- dered to be wound up. It was claimed that the contract was com- plete as soon as the shares were allotted ; that the directors could not, either as against the applicant or as against the other .sliare- holders, have recalled the allotment, whether or not it had itcon notified to the applicant, and that H. might, at any time after Sept. 4. 1858, have enforced specific performance. Duiilop v. Iliggins,'^ in which it was held that a coutract was complete as soon as a letter was posted a^ pting the ofTer, was relied on, The court (Lord Romilly, M. R.), dissented from this contention; deciding that if a person applies for shares in a couipany, ami tlic directors write down his name in the allotment book, they may, at any time before the allotment has been communicated to the allottee, alter or cancel the allotment. Applications fi»i' and allotments of shares are to be treated on the same principles as ordinary contracts between individuals. The party to whom tlie applicaticm is made is not bound by communicating the aeco|it- ance to his own agent. Thus, if A. writes to B. o(T(>ring to \m land of H., for a certain sum of money, and B. accepts the oITi r, and sends his servant with a letter containing his acceptaiioe, until A. receives the letter, A. may withdraw his offer, and B. Walker o. Bartlett, 18 C. B. 845; Wynne Shepherd, L. R. 2 C. P. 22S ; Rurn.tt r. V. Price, 3 De G. & Sin. 310 ; Sha'w «;. Lynch, 5 B. & C. 58!) ; Emniersou's (.'ase, Fisher, 5 Do G. M. k G. 596; Piiine v. L" R. 1 Cii. 4.33. Hutchinson, L. R. 3 Eq. 257; Poole v. i L. U. 4 V\ 9. Middleton, 29 Bcay. 646 ; Chapman v. > 1 H. L. Cus. 381. PART v.] CORPORATIONS. 353 may stop his servant on the road and alter the terms of his ac- ceptance, or withdraw it altogether. Lord Romilly distinguished this case from tliat of Dunlop v. Higgins, on the ground that, the post-ollice being the common agent of both parties, the jest- ing of a letter accepting an oiler constitutes a binding contract. It was accordingly held, that, II. not having agreed to accept the shares, there was no contract.* There were negotiations for an amalgamation of the P. com- pany with the U. company, and VV., who was a paid-up share- holder in tlie P. company, made an application to the U, company in pursuance of the amalgamation, for paid-up shares of the same value as his former shares. He received a letter of allotment, sigueil by a person professing to be the managing director of the U. coni]»any, giving him notice that the directors had allotted him the luuuber of shares applied for, on which he was to be credited with an amount proportionate to the assets of the P. company. There was no evidence on what authority this letter was written, but W.'s name was placed on the regi.-ter as an ordinary share- holder. W. received the letter at the end of August, while he was on a yachting cruise, and, on his return to London, early in October, applied personally to the chairman and solicitor of the company for an explanation of the letter, and objected to take the shares, but was informed by them that his name was not on the Hi: ' If tlie ajijilicaiit had authorized the ajMit (if tlic I'oiiipaiiy to accppt tlio iilloliiuMit oil liis iH'half, there wouM have liccii a liiiitliiif; ((mtraut ; but as lio gaw nil sill li authority, and as he hail witliilrawii his ()ri<^iiial oifer Ix'fortj he re- iciveil thi' litter of the dir'.'.-tors, the posi- tion (if till ]i.irties was (•hanf,'e(l, and tlie letter liccainc an otler whieh required liis acei'|itaii(T to constitute a hinding con- tllii't. Ilchli's Case, L. K. 4 Kq. 12. An otfiTildcs iKit liind the ]'erson who makes it until it iiiis liccn acc('[itiil, and its ac- ceiitance lias lie( ii coniiininieated to him 111' \\U ai,'iMit. Ii. Martin v. Mitchell, 2 'ai. & \V. 113, ILV, Sir J. PliiMier said: " Whiii' line |iarty having entereil into a loiitrait that lias not lieen signed liy the "thcr aflciwanls repents and refuses to Iinieccil in it, I shonld have felt great ilitliiiilty in saying that he had not a Imis i>i,iiiin)/i(r., and was not nt litierty to Tci>n\v until the other had signed, or in >nMii' manner made it hinding upon liiin- self. lliiw can the eontraet lie eoniph'te licfore it is mutual ? And can it he coni- plctc as to the one and not to tlie other ! " In tli(> cascof Punloi) f. Higgins, 1 II. L. t'as. :!81, the olfer was received hy post, and the acceptance of the offer was coni- TOL. I. 23 mnnieated in the same wav. So, in Adams V. Lindsed, 1 15. & Aid. 681, the oiler was liy mail, and was made sillijeet to reet-iv- iiig an answer liy post. In all siieh eases the post-dflice is made the agent of the iirst party to r< ive the aeciptanee, and tlu^ contract is held to be eoiiijileted when the letter accepting the oll'cr is mailed. In this last-named case it was claimed that until the answer was actually re- ceived there coidd be no bimling cdntrael between tlu^ parties. But the cdurt said, that if that were so, no contract eciuld ever be comphted by mail. Foi' if thfi defendants weiu not ImiimkI by their oiler, when accepted by the jilaintills, till the answer was received, then the iilaintill's ought not to be bound till after they had received the initiliciition that the defend- ants had received their answer and as- sented to it. And s(i it might go (in nd infiiiitum. The paiiy making tln^ oH'cr nnist be considered in law as making, during every instant of the time the lett;r is travelling, the same identiral oil'"." to the other jtarty ; and then the contract is coiniileted by the neceptanc(! of It by the latter. Sec further, in a later volume of this work, on Contracts hy Letter. '■' it is 854 COMMENTARIES ON SALES. [book II. iill ! u I. ::i ■■': ■ i'l register. On Oct. 15, he wrote to the secretary, formally repu- diating the shares. On Nov. 9, the U. company was wound up on a petition presented on Oct. 7. It was held, on appeal, re- versing the decision of Bacon, V. C, that there was no contract between W. and the company to take shares, and, that, under the circumstances, W. was not bound to take shares in tlic com- pany ; and his name was, therefore, removed from the list of contributories.^ If A. sells shares in a company to a member of the Stock Kx- change, and B. buys shares in the same company, at a dii'fcront price, from another member of the Stock Exchange, and, on the name-day, B.'s name is given to A. as the purchaser of A.'s sliares, and A. executes a transfer of his shares to B., and B. accepts the transfer and pays to A. the price for which B. originally bought the shai'cs, the transaction constitutes a contract between A. and B., for the sale and purcliase of the shares, which a court ot equity will compel B. specifically to perform.^ On the instructions of \V., shares in a company subsequently wound up were purchased for him by a broker, who, on the set- tling day, also on the instructions of W., gave the name of G. as the purchaser, and the deeds of transfer were made out in G.'s name and delivered to him for execution, and he for some time retained possession of and dealt with them. W. informed G. that he had passed his name as transferee, and had also passed a cheque on the company's bankers for the purchase-money to the debit of his firm. G. took no step to inform the vendor that he did not assent to the contract, though he did express his dissent to W. Held, that the vendor was entitled to a decree for spocilic performance against G.^ 1 Wynne's Case, In re United Ports and General Insurance Company, L. R. 8 Ch. Ap. 1002. In this case there "^as no con- tract between the parties ; tliere was an ofFtT, but no acceptance of tlie offer. See Shacklyford's Case, L. U. 1 Ch. 567; Don- jjan's Case, L. U. 8 Ch. .')40. An agreement to place shares, even although the person making it binds himself that within a specified time, or within a reasonable time, he will place a ccrtiiin number of shares, is a materially diUVrcnt thing from an agree- ment to take a certain number of shares. If a person agrees to take shares, then by so agreeing he becomes at that moment a shareholder, and the company are entitled, and are indeed bound, at that moment to put him on the register. But if he agrees to place shares he doe^? not agree to be- come a shareholder, nor are the company entitled to put him on the register as a shareholder, but he simply agrees that he will procure other persons to take the shares. While he might be liable for lii< breach of contract to jilace the shaiv.s, tlii< would not jdace upon iiiin the liability of a shareholder in case of the wiiiding-up of the company. Gorrisscn's < 'ase, L. II 8 Ch. 507. 2 III re Overend, Gurney & Co., Mus- grave & Hart's Case, L. H. 5 Ivi. 1!»3. See Marino's Case, L. R. 2 Ch. IM: Wynne v. Price, 3 De G. & Sni. 310; Paine v. Hutchinson, L. 1{. 3 Ki]. 2J7; Bud.l's Case, 3 De G. F. & J. 207. « Shepherd v. Gillespie, L. K. 5 Eq. 293. The principle on wliicli this imsc win decided is that it is essential to the ri,!,'l:t to enforce a contract that then; slumU be sufficient testimony of the assi'iit i>t the contracting parties. An assent wliidi is to be implied from conduct may !•«' «'' binding as an express as.sent. Where a man who has a title, and knows of it, [book II. mally repu- J wound up appeal, re- no contract that, under in tlio com- the list of 10 Stock Kx- t a dii'forent and, un the : A.'s shares, 1. accepts the nally bouglit ween A. and .1 a court ot subsequently ), on the set- ! name of 0. made out in he for some W. informed 11 also passed [money to the ;ndor that he Is bis dissent e for spccilie >Tis to taVe tlio be lial)le fur lib le the sliiiivs, tlii'i liiii the liiil>ility jf the wiiuiing-ur Iseu's ( 'iisi', L. 11 iiey & Co., Mus- Ir. 2 <'h. Mtj; Id. & Sin. 310; |& .1. 2'.>7. lie, L. K. 5 Eq. Iiich this case was Itiiil to the riillit theiv shoiiM be lie assent of the 1 assent which is llnet iimv I"' "^ Vsent. Where a id knows of It, I'.VUT v.] CORPORATIONS. 855 In Bridgcr's Case, In re General Provident Assurance Co.,' B., the local agent of an insurance company, being requested by llic manager to take shares in order to induce other persons to k'conie shareholders, offered to apply for 100 shares on condition that he should not be called upon to pay anytliing for the shares, but that all payments on the shares should be deducted out of his conunission on shares sold by him, and upon being told by tho manager of the company that he would " bo allowed the privilege of paying them up as convenient," he sent in a formal application for IdO shares, which were duly allotted, and he was informed of the allotment, and was registered as the holder of the shares, but ho never paid any money on application or allotment, or any calls. His commission was insufficient to pay for the shares. It was held that he had entered into an absolute contract to take tho shares, with a collateral agreement as to the effect of taking them which did not prevent him being made a contributory ; and, also, that having allowed his name to be registered as a shareholder to induce other persons to take shares, he was j)recluded from dcny- inir himself to be a contributory .^ In Wallis's Case, In re Peruvian Railway Company,^ Wallis applied for 200 shares of stock, at the instigation of J. P., the managing director of tho company. The company allotted 60 shares to Wallis, but no notice was sent to him or to J. P., but E. P. had notice of the allotment. The court below confounded the two names of J. P. and E. P., and, holding that E. P. was agent for Wallis to accept the shares allotted, hold that Wallis was liable as a contributor. It was held, on ap[)eal, that this was wrong, and that Wallis, neither by himself or his agent having received notice of the allotment, was not liable. The cases of Crawley and of Robinson, In re Pei'uvian Rail- way Company,* differ from Wallis's Case in some respects. In stands by and cither encourages oV does iKit forbid the jmrchasc, it is the doi'trine of equity tliat he and all claiming under him are bound. 1 Fonbl. Eq. 163. A eniitraet for sale so far coniitlet^'d as that the vendor has executed the conveyance and leicived the purchase-money, can only lie anmiUed or altereil by the contracting parties. Shejtherii v. Gillespie, L. R. ft Ivi. 2i_':i. Sec I'iekard v. Scans, 6 A. & K. 409, 474; iMiehess of Kingston's Ca.se, 2 Sni. Lead. Cas., 6th ed., 769. ' L. H, 9 En, 74, affirmed on appeal, L. R. .'iCh. A p. 305. ^ The delil)erate representation by B. to others that he was a shareholder, when, acennling to his own view, he was not really a shareholder, for the purpose of inducing them to take shares, was a false representation, which as between hiinself and the other shareholders precluded him from the right to deny that he was what he represented himself to be. Hridger's Case, L. 11. 9 Eq. 74, 80. For cases of conditional contracts, see Shack leford's Ciise, L. II. 1 Cli. 567 ; Roger's Case, L. 1{. 3 Oil. 633 ; Pellatt's Case, L. K. 2 Ch. 527 ; Oriental Iidand Steam Co. v. Briggs, 4 [)e tJ. F. & J. 191. See El- kington's Case, L. K. 2 Ch. 511, 522; Thomson's Ca.se, 34 L. J. Ch. 525 ; Harri- son's Case, L. R. 3 Ch. 633; Lunger's Case, 37 L. .T. Ch, 292. » L. R. 4 Ch. Ap. 325, n. ♦ L. R. 4 Ch. Ap. 322. s I I ; Bl ' 856 COMMENTARIES ON SALE!?. [book U. Crawley's Case the facts were very similar to those in Walliss Cciso. The point in which they differed was that although Craw- hy, not having receive*! the notice of allotment, might have npii. diated the shares, yet, as subscqticntly to their allotment ho oxc- 'juted a transfer of them, he thereby anirmcd the contract.' Robinson's Case goes a step further than Wallis's Case. In this case, Robinson applied for shares in Company A., at the instanco of G. P., the managing director of Company B., who gave him a let- tor on behalf of Company IJ., indemnifying him against all respon- sibility. Robinson then sent in the application for the shares, and paid the deposit by a chequo on his own banker, althoui;li tlio money was supplied by Company li. The shares were allottuil to Robinson, and Jiis name was placed on the register. No notico of allotment was sent to him, but the notico was sent to the ollicc of Company IJ., of which E. P. was the managing director. Com- pany A. being afterwards wound up, it was held (reversing the decisions of Malins, V. C), that there was no contract to take the shares, and that, therefore, Robinson was not liable as a contributor.2 Levita's Case, In re International Company,^ was a case where shares were allotted to L. without his knowledge, on the ap|»lica- tion of M, Afterwards L., at M.'s request, sent in a formal appli- cation for the shares. No notice of allotment was sent to him. M. paid the deposit on the shares and received the share cortili- Gates, and also a dividend which was subsequently declared. L.'s name was on the register when the company was ordered to be wound up. It was in this case held (alhrming the decision of Stuart, V. C), that L. had constituted M. his agent to accept tlic shares, and that he was properly placed on the list as a contribu- tory of the company .* In all these cases, the ordinary principles as between principal and agent; accpiiescenco or repudiation of the agent's acts, ami recognition or refusal to adopt the contract of the agent, apply as m other cases of sales, or as in any other contracts. I It was similarly held in Levita's Case, L. H. 3 Cli. 36, where ii inaii knew he coiihl not iii;t as director uidess shares had boon trantitVrrcd to liini, and he made an application tor the shares, and then after- wards attended the Imard ot direelors and actcil as a director, tiiat that was a strong circunistanee to show tliat he knew the shares were allotted to liim. See the Mar- quis of Abercorn's Case, 10 W. R. 548 ; 8 Jur. N. s. 951, where the shareholder, although elected a director at his own re- quest, but never having acted as such, was not liable for the amount of stock necessary to qualify him as a din'ctnr, he. in fact, not owning that amount (if stock, although witliout liis consent it liinl liccii allotted to him. ■■* Therij was nothing in the ciki- tn show that Company A. either by it -'11" oi its agents was authorized to coniinmiii'at'' on Robinson's behalf with Compniiy B. so as to bintl him, and, therefore, in im no- tice of allotment had bi-en sent to liim- he was held not liable. Roliinsiiii's f'as^ L. R. 4 Ch. 322, 330. 8 L. R. 5 Ch. Ap. 48!). « The court held in this case, distin- r.vKT v.] CORPORATIONS. 867 Lord Cairns, L. J., in Pcllatt's Case,* lays down the doctrine tiiat where a person applies for shares in a conipany, there is in goiienil no binding eontraet to take shares tnitil the company have t'uuiimiiiicated to him an allotment of shares ; the decision in IlldXiim's Cusc"'^ bi.'injr referable to its special c'rcumstancea. In IVUiitt's Case, the application for the sliarcs made by the party applying was subsequent to the matter having been arranged bc- twiun tiie promoter of the company and the 8ubs( ipient applicant, but tills did ni>t render the allotment of the shares, and the due no- tice tliereof, any the less necessary in order to complete the contract for the shares. On the argument, Lord Cairns, referring to Bioxam's case, said, that there — " There had been a conversation iu wliich Hloxam was informed that if he did not receive an answer within a certain time, he was to consider his application granted. But i I ihe ordinary case, where a person applies for the maximum lumiber of shares, undertalving to acce[»t them, or any less num- ber, and the company is under no obligation to give him any, is nut a reply to the application necessary ? " And, on the facts in the case as stated, he subscfjucntly held as above.^ In this connection, we refer to a case decided in the Supreme Court of Canada. Nasmith v. Manning* is a case on the allot- ment of shares, of very great simplicity, but it is one over which tlie Cun.alian courts struggled almost helplessly and hopelessly. It w;i- 'to' 1, on the facts of the case, by three judges, in the Court of Queen's Bench of Ontario, that the contract was complete, and that tiie defendant was liable for the stock for which he had sub- scrilw (l. On appeal to the Court of Aj>peal for that Province, it was licld by three judges, the fourth judge contra, that the defend- ant was not liable. On further appeal to the Supreme Court of Canada, the court again divided, and it was held, this time by three judges to two, that the judgment of the Court of Appeal was right. It was conceded in the case that there was no evidence of notiec of allotment having been given to the subscriber (the de- fendant in the case) for the shares, but it was claimed by the two dissenting judges in this court (Ritchie, C. J., and (Iwynne, J.), that til is was not necessary ; that there was a completed contract without it. piistiiiir; it from Robinson's Case (supra), tliiit it was as cliNir as jiossible that L, in- temiod M. to Ir' his nf^eiit for all purposes io connection with the tninsaction. ' L 11. 2 Ch. Ap. .-.'27, 53.5. - ri.i Brav. r.29 ; 12 W. 1{. OO,"). ' S.(. also Cockney's Casp, 3 Dfi 0. & J- I'll; Yolland's Case, 5 l)e G. & Sm. M5; Klkington's Case, L. U. 2 Ch. 511. Tlii< Inst case was distinguished from Pel- liilt' C ise, L. K. 2 Ch. 534, by Lord Cairns, thus : "The circunistanoes are somewhat similar to those of Klkington's Case, but there are material diiriTcnccs bctvveen them. In Klkington's Case the agreement was constituted by an actual aiiplication for and allotment of shares, followed by acceptance of them, by which agreement Messrs. Elkington were made sharehold- '« 5S. C. of Can. R. 417. ill) 1 I .1 ' ■- i J; i I > :i! .1 I f;tl % i! 858 COMMENTARIES ON SALES. [book n. ■! i lilt By the language in the stock-book, signed by tlio dcfondunt, under the unusual solemnity, in stock-books, of a seal, the dofoii- dant agreed to become a holder of fifty shares of stock of the T., G. & B. Com|)any, and, it was further provided that, '' upmi the allotment bi/ the said company of mij or our mid respective i^hnreg, we severally and res|)ectively agree to pay to the said coniiuinv ten per centum of the amount of the said shares respectively, junl to pay all fiiture cflls that may be made on the said shares ro- spectivcly." This is the ordinary case of a contract to take sliaros in a company on allotment ; the subscriber to become a share- holder only when the othei party to the contract, the company, shall have boimd itself to a specilic contract, by allotting' the shares and notifying the subscriber of having so done. In this case, to make this even more than usually apparent, the company had not, in fact, been really organized at all, much less had it bound itself to the subscriber by any definite contract, under its seal, or in any other way. Singularly, too, in justifying tlie liolJ- ing of the two minority judges, Ritchie, C. J., quotes the folluwinir language : " When an individual applies for shares in a eonipany, and there is no obligation to let him have any, there must be a response by the company ; otherwise there is no contract." ' The applicability of this language to that contained in the head- ing of the stock-book, signed by the defendant in this case, is pal- pable. That there are many cases where an agreement to tal'ncant was the company ; and the sealed undertaking of the respondent was the acceptance of the coinj>any's offer, and fixed on the com- |)iiiiy the obligation to allot them, and when so allotted they be- came', eo iiistantl, vested in the respondent. In other words, the company sent an offer by whi'^li they were bound,* and under wliich, on receiving back the offer accepted, signed, and scaled by the respondent, a contract complete and binding on both sides was constituted." ^ True, the learned chief justice pays : " I think there was quite enough to satisfy the judge who tried tliis case, that the resimn- (Icnt knew that the company had acted on the agreement, had treated him as a shareholder, and had ))laced him on the register, and so had notice that the company had allotted to him the stock ; anti hud the application come from the respondent to the com- pany, that would have been suflicient to show that he knew that tlic company had assented .o his rcijuest, and had completed the contract. " '' If this had been correct, the case would have l)oen even siinjder than it is. Dut the learned judge, having entirely failed to show that this was correct, in effect abandons it, and says : " Hut apart from this, I think there was a eomi)leted contract, and no notice of allotment was necessary to constitute the defendant a subscriber til the stock, and a shareholder." * From this it can be seen that in the view oi' the learned chief justice of that court, in order to make a sealed instrument, such as that in this case, itself govern the contract, it must depend upon the more accident whether a subscriber had made the application to a canvasser for subscribers, to put his name on the stock list, or whether the canvasser liad made the application to the sub- scriber, in th(! OIK! ease, according to this minority holding, there wonhl be a perfectly good contract without any communicatit)n on the part of the other parties; while, in the other case, it would only be a contract when the subscril/er had sulliclent " to show M ' It is this nssuinjition, wliirU lias iiolliiiii,' wiiiilcvcr to H'st upon, that is tile Imm' oI' tiie li'anii'd juJye's fallacy in tilt; iiKitter. « l'|.. 431, 432. » l'|.. 432. 433. * Page 435. !-i ■ If \\H\U t 51, i : i 8t;o COMMENTARIES ON SALES. [book II. I; him tliat ho knew that the company had assented to his rerjuent [manifested by his subscription to the stock list, appai'cmly], and had completed the contract^ ^ All this is well answered by Henry, J., one of the majority judges in the court, covering the facts in the case. lie says : " It is only, at the most, a unilateral contract, if one at all, ami oiu' which could not bo enforced by the party subscribing. He could not, by his offer, oblige the provisional directors to allot any of the shares to him. A larger amount of stock than rcijuired luiglit be subscribed for, and no one will doubt the power of the provis- ional directors to reject such applications as tiiey pleased. So up to the time, at least, of the allotment, any subscriber could with- draw his offer to take the stock ho subscribed for. The agrut- ment in this case was to receive fifty shares when allotted ; and, that, in my opinion, threw upon the provisional directors the oiui* of not only allotting the stock within a reasonable time, but uf giving him notice that they have done so, also within a reasonable time."'^ And again,^ "The appellant claims that the res])ondcnt was a shareholder in the company from the time of the allot uiunt of shares, but, if the signature of the respondent to the agroemLUt was sulHcient to bind him, then no allotment was necessary to l)e shown. If the agreement, however, is not sulhcicnt alone, sind the allotment was necessary, does it not legitimately follow that a notice of it became necessary ? . . . Does not the acknowkiiirod necessity for showing the allotment at the same time eharactL'iizc the document signed as an incomplete contract? If so incom- plete, does it not necessarily require, to com[)lcto it, that iiDticf should have been ju'oved within a reasonal)le time ? ... No on.' can bo a subscriber to stock so as to make him a sharolmldi i' without the concurrence of the company through its oIVkm is. 1 must say I think the evidence of his ever having been a share- holder is wholly insuflicient." The two French-Canadian judges, Fournier, J., and Taschoroau. J., of whom the latter confessed that he had '' felt eml>arrassiu('nt in coming to a conclusion," and had " vacillated a good deal al)oiit it," concurred with Henry, J. In the case the Judicial Committee of the Privy Council graiitod leave to appeal from the judgment we have been con !ii'l?{'' in tlui Ciise, previously delivereil a jud^iuent in the same ease, iu wiiieli lie held Just the reverse of his holdiii<{ iu the ultimate Canadian Court. His tirst juilj^meut was ilelivered in the (')nlario Court of Common I'leas, where he says: "Looking at the terms of the ai^reemi'Ut hy the defendant in the hooks of tin; company, which was si;;iied and sealed hv the dcfenilant upon the I'.tth of .lunc, IS'iit, tiie defendant agreed to Intcome a holder of lifiy shares in the capital stock of the cMinpany, and np'iii itllotiiiiiit to pay ten per cent of the amount of such shares; and looking upon the ronstrui'tion put hy the coniii.iny upon that a,L;ieeiiicnt, treating it as an applica- tior- for shares, . th<-rc shoiihl he shnini lit li'iBi' ben .si/tf »v- Kfthfi- , ri/liir ill wriliitii iir V rb'ilhi or bi/ coititac/, Cdiiimiiiiii'dfiii'i til llir ill I'l Hilt III, t/uif till' rmii/i mil h id iinip/iil liis up/ili ciilioii ifiiil liiiiiii'//' iM II i/imrh iti/'i; fur tin; Ji ft If sliiirr.i iii'iiiioniii in kii iiijniiiinil, III' /'lire, fir oiii br If hi liiili.'r as a sli'irr- hiili/ir." Nasmith v. Manning, 2!> U. C. c. P. :.->. The case seemed sulliciently unsatisfac- tory before : this would seem to he ii'l that was reoiiircd to niake it supreme!;, so. But even tiiis is not all. In th. en.se \'.\ the Cuninon I'leas, Magarty, C .1., con- curring with iJwynne, .!., s!-.id : " '. concur iu thinking that our !>est course is to direct a new trial, .'lo .s to have it expressly found as II fact whi-lher the dch'udiint was notilied, (>/• ri"; iml im/iiv in miif .ilia/ir, nr lo.is miilr iii'iiiY III' the niiiipaiiii huriinj accepted 'liiii us a stmUwlUer accunlimj to /lis iiiliscri/iliiiii ; notice, in sulistaiice, that tlie diri'ctors or the company ussentKl lu or accepted him as the holder of the siil<- .si-rilx'd shares." Vet, in the ca.-e in (,>ueen's Itcnch (N'asmith r. M.iiiMiii^', .', Out. Ap|i. I'J'.t n ). we liuil tili^ >,iiiir Ilagarty, C. .'. alter declaring tliat "Tln' general priliciple was stiiv (iwyiiiie, 21) C. 1'. Wl, 'he shown to li;uv heeii some response, either in wriiiii;,' ^i verhallv, lU' liy condact, I'liiiiiiiiuiir iim i ' • thr ilr I'l- nil lilt that the comiiany liad ;ii- cepted his application and hi'iisill us ,i shaii'h'ilder,' " actually lioldiiig tii,;' tlir defendant was lialile, where the eviileiu" and tiiuling simply were, in cll'ert, tiiiit there was an attempt to coiiimniiie:ite ijn' fact to the dctendani, hut noactaal "oim- mail inil ill'/" of it to him. We do not find that Hitchie, C. ■!., or any of tlu' other Judges in the case delivered iiinrc than OIK! Juiigiueiit eai'h. We eoiisiilir the case entirely too clear fiU' doiiKl liiut the Judgments of the niajouty of tlie On- titrio Court of Appeal aiol of the ninjority of the Supreme Court of CiiM.eli \m:v right ; and therefore, necessiiiiy, lli:it tin' Judgments of the majority of tlie Out, iriu Court of (,)iieen's Iteiich, and ol the mill- orily of the .Su|)renie Court of < ';ui;i'l:i hiti' wrong; the judgment of Cwyniie. .1.. in the Comnion I'leas, Iv.ing niMeh >ouiHl(r than his reverse ju'lgnient in the .Snpreiiii' Court of Canada. There is another point in tlii> i';isi' (Xismith V. Manning, .'. Out. .App. i:!'', i.'is) which rec|uires notice. In the i o'lii of .Appcil, ihij'iin, .1. A., said: "Tli'' learned Judge who presiileil at the list trial, -vhilst finding that the diveitor'i allotted to the defendant lifty sli:liv< el Htocl;, has not found, and the evjili'ini' would not h.ave warranted him in liiidiiiL', that any letter or notice of alloliiieiit \va^ sent to him. The fair inl'ereiiie. niHriii fact the only iiifereiiee to he fairly dr;i«ii from the evidence is that no siiel: iioticf was iieiit. . . But it i.s uf cuur.se iiiimu' 5 'ii [hook II. Ige of such to cuiitract this follow absence of accoi)tam;i'. ) {tarties tu easoniiij^tjf itii ('. Man- fuuiuiutiuii uibstanci', that iiy assi'iitnl tu lll'l- lit' tilt' suli- tlic ca.-i' in I.'. M.iiiiiiiiu', iml tlli^ sanii' inj{ tliat "Till' /(•(/ tlial, ulur •liptioii, tlicrt' )!' Mr. .Iiisticy .shown til liavi' • ill vMiiiiij; i>r iiiintiiir'ihiij In ii|iaiiy liail at- 1 iiiiiisi'll' as a liiiiif,' til.;' till- 1' tilt' fViill'IlO" lili fll'fit, that liiiniuniiati' tlif u'ttial " i'""i- Wf till not any '<( tlio livfii'il iniirf \Vl' filllsiillT iliiiihl that y 111' !li.' On- till' liiajnrily Caiiaila wfiv ilv, that till' i iW Oiitaliii 1 111 ill-' iiiin- • 'aiiii'la «iTi' WVIIIIi', .1., ill nil siilllliliT lilt" Sii|iri'llii' It III tlii-i i'a iliri'i'Iars rty sliaiv^ I'f tllf .'Vill'lll'l' III ill liii'liiir' lliitiii.iit wa> it'iifi', anil 'ill fairly iliawii II siirl; U'ltit'' couf.sf iiiiiiw- I'AUT v.] CORPORATIONS. 363 hi a case stated by us, antt' p. 355, B., the local agent of an insurance company, being retiucsted by the manager to take shares ill oilier to induce other persons to become shareholders, offered to iipl'ly fi'i" 1^^ shares on condition that he should not be called ii|i(in to pay anything for the shares, but thtit all payment on the .shares should be deducted out of his commission on shares sold l)v iiini, and upon being told by the manager of the company that lie would "be allowed the privilege of pitying them up as ctiuvenicnt," he sent in a formal application l\»r 100 shares, wliich wciv duly allotted to him, and he was informed of the allot- ment, and was registered as the holder of the shares; but he never ptiid any money on application or allotment, or any calls. He .sii;!ie(l a proxy paper under 5 Mrotest that it should not cancel his iigfcement as to the non-i)ayinv.'nt8 on his shares, and attended two meetings of the company, ilis commission was insidlicient to |iay lor the shares. Held, that he had entered into an absolute ti riiil hi'« 111' rcitivcil notice if he diii in iiiit /I IV, If- i7 within a rcasoiiiililc time altfi tilt' niitiif. Till' Icanit'il juilp' has iio- whiiv loninl that lit' diil ri'i'civf notice." Thru Inlliiws thisfXtraiirtUnaiy laii^ua;,'!' : '• Willi. lilt cxiircssin;,' imy tiiiiiiinii as tu till' f,'iiii ml t'll'tit tif till' ai't'ciitaiiif iit' an olhi I \ httfi- tiiily |nisti'il, till' ]iiiiiiiiilt' i'>lalili.slii'il liy l>iiiilii|i I', llii^'^'ins, 1 II. L. ('as. ".,S1, li.is no n|i|ilii'atiiin to tin- |irf.s- fiit c:iM'. In rcvi. ■Willi,' that tlt'ri.sion in HniiM'liulil Fill' &!'. <'iini)iiiny t'. (iiaiit, -11 1.. T. s. .X. ti'.iS, Ha^'allay, 1- .1., say-s at |i. 'Jii'i ; ' I think tlif )ii'iii('i|ili' t'stahlishftl iiy that rasf is liniitcil in it.s aiijilii'ation It) la.Mv iiittliiih, liy j;i'iii"al usa^f, orot'thr if- hitimi l>i twi'fii till' iiartifs to any jtai tlfiiliii' tra'is.ii'tiiiii, or of tiif tfriii.s in whiih tin' tilli'l is iiiaili', till' iiici'jilmhr «/ siic/i ojl, y Int II litur Ihviniifh tin' pusl is rxjiirss/ii or imjiIiiiVii aiithiifKiil.' If till' h'ariii'il jiiili;i' hail I'oiliiil ii.s a fiii't that llotift' of alliiliii.iil hail Iwi'ii st'lit hy (lost to tlif ili'I'iiiihiiil. tlit'ii 1 think wt' must havf lii'lil, ill ilt'lt'i'i'iii'i' to till- aiithoritii's, that ihi'i'r was a t'oiiijilt'tftl I'ontiaft liftwffii till |iarliis." Ami this. aftiT liavin<; just IhIihi- .|iiiitt'il till' lanj,'iia;,'t' of llai^i,'iillay, h. .1., slmwili;,', in fH'i'i't, that that wtnilil Mill liiiki' a i'o|ii|ili'trtl t'ontiart ln'twrfll till' putiis ; tlii'i'f liriiif,' iititliin;: what- vtT ill Na>iiiitli I'. Manning,' to show that '•///!' ii'WIiliiiiir (i/ Kiirli (I /fir III/ (I tiltir Ihniinih Ihi' /lost ini.i i.i/irisslii or iinitlirilhi iiulhor- niil." This is rt'ally worst* tlmn t'ithor of thf awful iiiiii;i'rii's of hliititlfrs with whirh till' . a^.' ahiiiiiiils on tilt' othi'r jKiiiit whifli «i' havr I'xaiiiiiiftl. Thi' case of Diinlop '■ lli;,".'iiis, 1 II. I,. Cas. ;{81, wn.H a nisti wilt If till' wlioli" I'ontriiL't was "by jtost," nnil not a i|iii>Htion of allotnu'iit of .sli.'ircs, notitifti liy |iost, wlicri' thf a|i|ilit'ation was not liy jmst. So, in thf othfr fiisf fitfil hy thf C'aiiatliaii JikIki' (liiirton, ,1. t\.), r.aj,'i;ally, I-. .1., whinn hi' t|notfs, niakfs thf .sanif ilistiiiitioii, thus : '• It lias hfi'ii fstalilishfil liy a sfrifs of aiithoritifs, iiii'liiiliiii{ I)iiiilii|i f. Ili>.';;iiis, I II. I.. Cas. lis], in thf lloii.sf (if Loials, aii'l Harris' Cast', I,. IJ. 7 Ch. fiS", in thf Court of Ap- peal in I'liaiiff ry, that, if mi ojli r ii iikh/i- hi/ litli r, whii h expressly or iinplii'tlly author- izes thf sfiitlin;,' of an lUt'eptaiH c of sneli an tiller hy post, ami a letter of iieeeptaneL' ;.iiipeily ailili'tsst'tl is ]iiisteil in tliie tiinc, a i'ti|ii|ilete eontraet is niaile at the tiini! when the letter of aeeeptaiu'e is postetl, thoii^'h there may he ilelay in its thlivery." The lliiuseholil Fire, &e. Co. V. (Jrant, 41 L. T. N. s. ;Ki1. What was i lainietl in the case simply was, that, where a letter accepting; an olh'r is ili'iippeil into the ptist-olliit! liy the .11 Tt'ptor III llir rii/insl nj lln- njliirr, whellnr the rei|llest he express or illl- plitil, l/iiii the loiitiact is eoinplfte, and the iliieptor is lint respiiii>ilih' for thhiy or llif^liiieliee tif the post -iilliee ollieials. III. 2'.'!'. This IS Very tar fioin waiiant- iiii; the statement hy riiiitoii. .1. .\., that the inert' tart that notice of allntllient is st'lit hy post, no niatti'i' in what way the ap|ilii'atioii for shares may have '. eeii lliaile, eom]i'etes the contract lietWfell the |iartifs, without aiiythinj^ whatever to show that the postiny of such letter has 1 n " ex|>re.ssly or iinplieilly aiitlioii/ed." We examine this t|iiestiiin further in a later voliinie of this work, in ilisciissiiij; the general tiuestioii of Contract hy LettiTs. H n. I ^11 I- 4 1 ,1 i 864 COMMENTARIES ON SALES. [book II, contract to take the shares with a collateral agreement as to tlie effect of taking them, which did not prevent him being made a contributory ; and that, having allowed his name to be registered as a shareholder to induce other persons to take shares, lie was precluded from denying himself to be a contributory.* In this case the application was made by the manager of the coinpanv to B. to take the shares, — a point influencing the mind of Hitcliii'. C. J., in Nasmith v. Manning,^ but nothing was thought of tiiat as rendering unnecessary an allotment, and a notice thereof to B. Notwithstanding the ai>plication was shown to have been ,so made, Malins, V. C, laid down the rule generally, — " In order to bind a person us a shareholder or contributory of a company. it is surticient to show an application for shares, an allotment in consequence of such an application, and a communication uf tiic fact of allotment to the applicant." ^ Two actions were brought by the plaintiffs * for non-acceptance of shares, and for calls ; and cross-actions were brought for rocov- ery of de[)osits, and for damages for not duly allotting shares; turned into a special case. The defendant in one of the actions applied for shares on June 8, but no allotment was made till Nov. 23. On Nov. 8, he withdrew his api)lication. The facts in the other action were the same, except that the defendant had never withdrawn his ai)p'ication. The Court of ExehequtM- iicld that the allotment must bo made ivithin a reasonable time ; that the interval from June to November was not reasonable: and. therefore, that neither defendant was bound to accept the shares allotted, and they gave judgments for both the defendants.'' The case of In re British and American Steam Navigation Com- pany, Ward's Case,® was one, where, at the instance of the pro- moters of a limited company, and, as he was was io\{\, pro forimU W. signed an application for 200 shares, and at the same time executed a blank transfer. He paid nothing, never exocuteil the articles of association, received no notice of allotment, and lieurd nothing about the company till he received noti o from the li(|ui- J Biiil^'oi's Case, L. R. 9 Kq. 74. See r.'lhitt's Case, L. K. 2 Ch. 527 ; Klk- ington's ras.-, L. H. 2 Cli. .'51 1 ; Thom- son's Case, 34 L. J. Cli. 525 ; Harrison's Cuso, L. K. 3 Ch. 633 ; Simpson's Caso, L. 1{. 4 L'h. 184; Ko^.-rs's Case, L. U. 3 Cli. t.'?3 ; Oriontai Inland Sti'am Co. v. Brijj-^s, 4 Do <;. K. & .1. 191 ; Shack'.!- ford's ("as.-, L. R. 1 Ch. 567, 570 n. ; Lanjji-r's Case, 37 L. .T. Ch. 292. « 5 S. <'. of (an. K. 417. • Hridger'sCase, L. R.9 Eq. at p. 78. * Ranisgato Viutorial Hotel Co. v. Montefiore; S.ime v. Ooldsmid, I.. 1!. 1 Ex. 109. * In this case it was chiimcil that slmips might be complete!}' allottfil witiuint any conimunieation to the applicMnt, ni ;ii> ceptance by liim, and Ex pm-l'' I'.l.ixnni, 33 L. J. Ch. 519, 574, and /:-■ /"/'' Cookney, 3 Do (5. & .1. 170, wimv ivliid on ; but the eourt di.stingiiislicil thi'^i rases, and referred to the (iiiljiiiiciit ot Turner, L. ,1., in Ex jinr/i' ISiox mi. .'ill L. J. Ch. 575, 57(i, and dissuntL'd I'roiii the claim maile as aliove. « L. R. 10 Ei\. 659. [book II, eat as to the oing made a be registered larcs, ho was ry.* Ill tliis the company 1(1 of Ritcliic. light of tliiit thereof to B. ave been so — "111 order f a cunipanv. aHotniont in cation of tiic >n-accoptanci' rht for rocov- iting shares; if the actions :as made till The facts in L'foiidaiit had cheiiucr held le time ; that oiiable : and. )t the shares ndaiits.'' ligation Com- of the pro- , pro fiintiiU e same time xcciitcii the t, and lieard 1)111 the liiitii- Lil, L. \l 1 Ex. Jitni'iltliat •shares Itnl witlidiU any l)|ilRMHt, or ai> jtitrt'- lil'ixaiM. mill A'.'' i>'ii't' 170, wiTi' ivlii'il |ii;^uislii'il tlii'M' le jiiilL,'iiii'iit ot \r>r Uiox Mil, :W dissontiMi I'rom PART v.] CORrORATIONS. 365 dator appointing a day to settle the list of past members. It was held by Stuart, V. C, that he was entitled to be taken off the lists, though it appeared that the shares liad been, in fact, allotted to him ; that deposits and chills had been paid on them by some persons without his knowledge ; and, that by the tran.«fer executed i)y him in blank, and subseipiently lilled up, the shares had been transferred to one of the promoters. In dealing with the case, the rcmaiks of the court are peculi- arly applical)le to the dissenting, and, we tliink, entirely errone- ous jiidgu.' :it of llitcliic, C. J., in Nasmith v. Manning,' in the Supremo Court of Canada. It will be noticed that, in this case, a.s ia that, the application for shares was made at the instance of the promoters of the company, as, in fact, in large nunil)ers of such cases, applications are so made. As that is, notwithstand- ing the extraordinary stress laid upon it by Ritchie, C. .J., an entirely immaterial matter, it is in this case altogether disre- irarded. Ihit the necessity of a notice of allotment undcM* such a state of facts is clearly shown. In dealing with this point in the ease, Stuart, V. C, said : — "The case against them is rested upon two grounds: First, that Messrs. Ward became by contract shareholders or partners in this company. In my opinion, th.at ground is unsustaiuable, and, indeed, it was not very much relied on by the counsel for the liipiidator. In order to have a binding contract, then; must be certainty as to the 8ul)ject-matter, and the assent and full kuowl- edire of both the contracting parties. What is said in this case to constitute the contract is an application for a certain ninnber ot shiires, or for such other nunibei' as should be allotted. lUit tiiis is no agreement to take any certain number of shanks. When an a|)plication for shares is made, and that a[)plication is granted, and certain shares allotted, and the allotment is conimunicatcd to the applicant, a contract may be said to be entered into. IJut in this ciise nothing Avas communicated to the applicant as to the iiunilier of shares allotted, or whether any shares were allotted to liim at all. There is not, therefore, here that sort of assent or iieceptaiice, or that certainty as to the sul>ject-matter, which is necessary to the validity of a contract." ^ ' nS, p. ofCnn. R. 417. • Wallis'Oiisr. I,. It. 4Ch. 32.'); Craw- l-',v'< Ciis,.. //.. ;iJ2 ; Koliinson's ('use, //;. Mil; (iiinii's Ciis.., L. 1{. 3 Ch. 40, and tli.Mvli.ilf tivn, I of tliL' wcll-dt'cidiMl Kn^- li»li casi's, nro to tlic siiine rll't'rt. Any Mses wliicli, ii|iiiarcntly, hold a difTcrciit liwtrini', arc citluT explained on their spe- cial ciiLiiDistances, or are disapproved. In Oiinn's Case, !.. R. 3 Ch. 40, .Sir .lolm Holt fullv discusses the easi-s, .showing that liotli llloxarn's C ise, H:\ I'.env. .O-Jit, ami Cookney's Case, 3 I)e C. & .1. 170, deiieiidi'd on s| iai circuinstaiiees, and dill not, as was contended, deteiiiiine the simple i|nestion that all that was ne- cessary to constitute a shareholder in a company was, that there should be an I '1 1 1 866 COMMENTARIES ON SALES. [book II. Where a party signs the memorandum of association of a com- pany he contracts to take the number of shares for which iii' subscribes. Thus S., in 1865, agreed to become a director of a company, and signed the memorandum of association for 200 shares. The articles of association empowered the directors tu decUne to commence business unless two-thirds of the capital were subscribed. S. attended the lirst meeting of the diicctofs, and liaving unsuccessfully opposed a resolution to connntiicc Ijiisi- ness before two-thirds of the capital had been subscrilitd, stated that he should resign his directorship; but, at the recpicst of the directors, postponed his resignation till a further day, wiien it was accepted. The company carried on business and niiul'' sorac dividends, but was in February, 1870, ordered to be wound up. S. was not treated as a member of the company after his resi<;iia- tion, and no shares \vere allotted to him, and his name was never placed on the list of shareholders. Held, that he was not, liy the lapse of time, and by the circumstances of the case, exouorateii 'iV Bppliciitioii for sliares to tlio compiiny, and thiit thu iipplicant's name shoiiUt he placed by the company on the i'('{(ister in pursuance of that application ; that mere appliuiitioii and entcrinj; on thu i-i'iri-iter of shareholders must Iw held sulficirut. Lord Justice Rolt, in refutiii<; this i-dmIvii- tion, said: "I think that on principle, and without reference to the authorities, that proposition is not sound. I cannot a^ree that there is any fallacy in likenin:. Lord Cairns says, clearly : " i tliiiik that where an individual applies for >li:irtsi:i a company, there In'iiig no oMi^jalioii to let him have any, tlurc must hr c iys))iw^r by the company, otherwise fkrri- is nn con- tract." tlunn's Ca.s»', L. U. :{ cii. ji. \-\ et scq. And sec Fletcher's Cusi' (licfnri' Wood, V. C, Nov. 11, 181)7, ntnl m Gunn's Case, I,. R. 3 Cli. 4:i ) ; Slmciil'- ford's Case, L. K. 1 Ch. Ml ; Moziiv r Tinkler, 1 C. M. & U. 6!»2 ; Hoiitl..lj;M-. Grant, -I IJing. C.IS ; Kennedy r. I.e.'. :i Mer. 441. So, in Kobin.sons Case, 4 Cli. 332, Lord Justice Selwyn said : " It h clear, whether in the case of a tnistci' ur any other per.son, that tliere must W tluit which the law requires in onliT to cim- stitute a contract, and one of tin' tliiiif'i now determined to be essential to tin' inn- stitution of a contract is tli;it tlu' li'ttcr of application should be fdlinwi'i by an allotment and communication of tliut illicit- ment. The form of the i-ominiiiii •ntinn \* not material ; but it litis been li'i i'l'il i" ca.ses of which (Junn's Ciisc, I,. I!. '■) 'li 40, may !« taken as an exainiili', that tcnlfss there is a comminiicninin i\f tli' allotment to the jierson irho h'ls nt'idi' Ik application for the shares, thnv /« no (•««• eluded contract, and he dois iu>t lu-comt ii shareholder. That rule npplii s to a [lor- son in the position of a trustee as much as to anybody else." fi;r^^ PART v.] CORPORATIONS. 867 from liability to take the shares for which he had subsf^ribed the mcinoranduin of association.' The defendants, metal brokers, having previously sold ore of an American mine on a commission of two and a half per cent, ar- raii^'od with a proprietor to assist in selling the mine to a company to bo raised by him in Kiigland. He was to procure the appoint- inoiit of llie defendants as metal brokers of the company, at the usual rate of English commission, viz., one per cent., and he prom- ised that the defendants should be liberally remunerated, to the ex- tent, at least, of £5000 for their assistance, and to be comi)cnsatcd for the loss of the higher commission. Thoy were, as he knew, acquainted with facts detrimental to the rcputaticm of the mine, and ho promised the liberal remuneration to ensure their silence respeoting them. The defendants assisted him in his endeavors to sell the mine to a company to bo formed for the purchase of it, hut loft him to fix the price, get up the company, and manage all details respecting the sale. He procured the formation of the plaintiff company, and the purchase by it of the mine for j£100,000, liulf to 1)0 paid in cash, and half in paid-up shares. The defend- ants were appointed metal brokers of the company, at the one per eont commission, allowed themsolves to be named in the pro- spectus as being ready to answer any inquiries relating to the mine, and answered such inquiries, but kept silence with respect to the detrimental facts known to them. Payment having been made for the mine to the proprietor, 2o0 fully paid-up shares out of those recovered from the company were transferred by him to the defendants, and were subsequently sold, and the proceeds re- ceived bv them. This transaction was not disclosed to the com- ' In re Itoliiiison k Preston's Brewery Company, Si.lnfy'sl'iisc, L. 15. , 13 Ivp 228. Tlic luitliiiritif.s are rlcar that a imrty, by sigiiiii}; the iiu>innraii(liiin of a.ssociation of a cuniiiaiiy, contracts to take tho iuiiiiIkt of s'lures for wiiicli lie siiliscrilHss. In liiiU's Case, L. K. f. Cli. "07, it was lu'lil, tliat where a man had si<,'ni'(l a nii'inoraiiiluni for 500 shares, he was liable for the whole .lOO siiares, thcinKh he had ai'ttiailv been allotted oldv 250 shares. It wa^ Ii.M in Kvans' Case, L. U. 2 Ch. i'l', that a snbscrilH'r to the nieniorandnni of assiiiiation, being a direi'tor, having eiitiMi'd into a contract to take a certain miniU'r of shares, is Ixnind to see, in his iliarailir of director, that that contract is carricil into ell'ect as regards himself and the sliaii'li.ilders. Hut in Snell's Case, h. R. T) ('h. 22, there was jiower in the dwil fur the directors to accept the sur- ri'iiiicM of shares, and Snell, after sub- Scribing the memorandum of association, resigned his office of director, ami sur- rendered his shares, which thi' directors accepted, and it was held tliat the sur- render was good. See I lot ton v. Scar- iKirough, &c. Co., i:$ W. It. tjiil, 105'J. .See as to hability, notwitlistanding lapse of time, Levick's Case, 40 L. ,1. Ch. 130 ; Kvans' Case, L. R. 2 Ch. 427; Touth's Case, before (iitl'anl, I.. J., cited in Sicl- ney's Case, L. K. i;{ K.i. 230. When a party becotiKs a member of a company, induced to do so by niisre|ire- sentation of the promoters of the forma- tion of the company, and, after lieconiing aware of the groiinil.sof misrepresentation, acts as a shareholder ami allirms his contract as owner of shares, he cannot threafter, on the affairs of the company becoming disastrou.s, obtain a rescission of the contract on the grouml of fraudu- lent misrepresentation. Petrie v. (iuclph Lum1>er Co., U S. C. of an. U. 460. ■ it- ^? '•■ ' I : i|i I hi I! ,[• ii! ill f 1 \ ': II ;s,i 1* i':i 868 COMMENTARIES ON BALEfl. [book II. pany. In an action to recover the proceeds as secret profits made by promoters, the judge left the (juestion of promotcrship without any definition to the jury, who found tliat the defendants weio promoters, and gave a verdict for tlic plaintiff. Held, that tlutc was ample evidence for the jury, and the learned judge was not bound to give them a definition of the term " promoter ; " tliat it has no very definite meaning, but involves the idea of exertion fur the purpose of floating a company, and also the idea of some duty towards the company imposed by, or arising from the position which the so-called promoter assumes towards it ; and that tiio defendants were in a fiduciary relation to the company, and tlieio- fore liable to refund the secret prolits, even although the contract ot sale was not rescinded.* It was the duty of the secretary of a company to procure the execution of certificates of shares in the company with all requisite and prescribed formalities, and to issue them to the persons entitled to receive the same, liy a resolution of the directors of the com- pany, it was provided that certificates of shares should be siirncd by one director, the secretary, and the accountant. The secrctaiv of the company, having executed a deed purporting to transfer cer- tain shares in the company to one G., a purchaser of such siiaros, issued to G. a certificate stating that he had been registered astlie owner of the shares. Such certificate was in the usual and author- ized form and sealed with the company's seal ; but the signature of the director appended thereto was a forgery, and the seal <»f the company was, in fact, affixed thereto without the authority of the directors. G. deposited the certificate with the plaintiff as a se- curity for advances ; and subsequently executed a transfer of tlie shares to the plaintiff. Neither G. nor the plaintiff had any knowledge or reason to suspect that the certificate was otherwise than a genuine document, or that the matters stated therein were untrue. The company refused to register the plaintiff as owner of the shares, stating that there were no such shares standiiii: in G.'s name in their books. On a special case to the Queen's Hench Division, it was held that the company were estop|)ed by the cer- tificate issued by their secretary from disputing the plaintilT's title to the shares.^ The ground of the decision is that the company was responsiide for the fraud committed by its agent while acting within the or- 1 Tho Emma Silver Mining Co. v. Lewis, 4 C. 1'. D. 396. See Hagnall v. Carlton, 6 Ch. Div. 371 ; Emma Silver Mining Co. v. Grant, U Ch. Div. 918; Troyncross v. Grant, 2 C. P. Pi v. 469 ; In re Barry Ry. Co., 4 Ch. Div. 315 ; Upton V. Grecnleos, 2.'> L. J. C P. 5) : VAinvr V. Now Sombrero Piiosiihiite (.'o., 3 .\!'l'' Cas. 1218, 1'2:?6. 2 Shnwr. Port Philip Gold Mining Co., 13 Q. B. Div, 103. PART v.] COBrORATIONS. 869 diiiary scope of his employment,' and that there was no difference us to .such responsibility between a fraud carried out by means of forjroiy and any other fraud. IMuiutilT, the owner of railway shares in two companies, took certilicutes from tl»c companies, for wiiieh he gave receipts, lu .so (loiiijr, he gave his address, in one instance, at the ollice of a liaiikiiiii company ; in tlie otlier, at u club. He deposited the cer- tiliciiti's witli the manager of tiie baulv for safe custody. Tlie man- aL'ci- Iraudulently sold ti. ' shares, and forjred the name of tho plaint ill to transfer deeds of the shares. The companies wrote to tiie |ilaiiitill', informin*^ him of the transfers ; and receiving in one iiistaiR'c no answer, and in the other an answer purporting to ooiiii' Intni the jdaintiiT, i)ut, in reality, forged by the manager, rcg- istiivd tiie sliares. On bill (iled against one of the companies and tiic purcliaser, |)raying that the purchaser miglit be decreed to de- liver up tlie certificate to the plaintilT ; that the comjirny might be dcciccd to cancel the alleged transfer, and the entry of it in their hooks ; to deliver to the plaintirt" a stock certificate, and to pay the dividend then due, and all future dividends, — it was held tliat the plaintiff was entitled to the relief prayed, but without ppfjiKlice to any question at law or in equity between the co- (lolViidaMts.^ M. airrced to take shares in a company incorporated by an Act of Parliament, providing that the con)pany should not issue any sliaro. nor should any share vest in the j)ers(m accepting the same, unliss and until a sum not less than one-fifth of the amount of such share had been paid in resi>ect thereof. M. transferred his shares without paying one-fifth of the amount thereof ; the trans- fer was duly registered, and Jl.'s name was removed from the re- sistor of shareholders. More than a year afterwards, the company commenced to be wound up. Held, that M.'s original agreement ' t . ' III ?v Riiliiafc Sun Franrisro Hv. Co., L U. :! (.». H. r)84 ; P.unvi.k v. Kiis^lisli ■li>iiii St(.,k liaiik, L. It. 2 Kx. -ly.i ; Swilt I-. Wimiilidltoiii, L. 1!. 8 Q. I'.. '244; Swire c. I'iMiicis, L. K. 3 .App. ('as. Idii. * .Idhiistiiii I). Kt'iitoii, Joliiistoii V. Parsiv, I,. U. 9 Kij. 181. Cottnin »•. Kiistmi Coiiiiti.'s Hy. Co., 1 .1. & 11. 2lS, was a casfl siniihir to tlii'so. Tlicrt! a fit'gid iiistriiini'iit, to<;cthi'r with tho powssidii dl' liilc-doctls, was presented to till' cDiiiiiaiiy ; the company acted upon that ; tlie person who claimed under tho t'ir<;p(l iiistiiiiiu'nt was made a defendant ; theeiiiii|iaiiy Was also made n th'fendant ; anil the ijeereo in the case wa.s to restore the delieiiiures to the plaintiff whose name VOL. I. 24 had been forj;ed. In all of these cases, however, it wa.s held thai the ne<;lifjenea or mistaken eontideine of the plaintiffs disentitled tlieni to costs ai,'ainst litlierdu- fenilant. See further, on the niain jioint involved, Ilililvanl r. South Sea Co., 2 P. Wms. 7<>; Ashi)y v. Hlarkwell, .\nii.. .503; Hare r. London & N. W. Uy. Co., Johns. 722 ; Tayler v. (ireat Indian liv. Co., 7 W. 15. 182; SlDUian f. Hank of Knfjland, 14 Sim. 475; l>.ivis v. I?iink of Knf,dand, 2 Binj». 3!t:! ; B.ink of Ii-eland v. Kvans' Trusts, 8 W. H. 4(11 ; .I II. L. Cas. 389, 413 ; Tavlor v. Midland Hv. Co., 8 W. K. 401 ; C.irter v. Carter, 3 Kay & .1. 617; Cottani I'. Eastern Counties liv. Co., 1 J. & H. 213. ! I 870 COMMENTARIES ON SALES. [book II, to take shares was discharged by the transfer, which operated as A new contract biitwccn the company, M., and the transferee' Where A. signed an application for shares in a company, upon condition that lie siiould be ap|)ointcd secretary, and his acceptance of the oftiee was to be subject to further in(piiries, which he had cauHod to be made respecting the position of the company ; the shares were allotted the next day, but A., in consequence of infor- mation he received, declined the appointment, and required that the allotment should be cancelled ; the court held, that his namo mua be removed from the register of shareholders.* A shareholder in a limited company, A., which was being amal gamatcd with an unlimited company, H., received a printed foT of applicatiim for shares in li. company, which he filled up with an application for ten shares, inserting in writing after the word ♦' company," the words, " if limited." The answer ho received in May, 1869, was that the directors of B. Company had coiisidoml his application, and had allotted him ten shares " in pursuance thereof," and had entered his name in the register. On June 1. 1869, he wrote : " Send me certificate for my ten shures in ex- change for this allotment letter." Tho certificates were sent Nothing more was done until Nov. 6, 1869, when the company was ordered to be wound up. In the form of application for shares. and in the allotment letter, the A. Company was always propeih described as " limited," and the B. Company was properly de- scribed without that word. The applicant, upon being settled on the list of contributories, sought to be relieved, on the grouiul that what he had contracted for were shares in a limited company; held, that the absence of the word " limited " was sufTicient notice to the applicant (especially to a shareholder ih a limited com- pany), that the company, for shares in which he was applyinir, was unlimited; and that the insertion by him of the words "if limited " into the form of application, was not eFectual in impos- ing a condition upon the contract ; and held, further, that he had lost any right to relief against the company which he might other- wise have had by delay and acquiescence.^ * In re. Towns' Drainage and Sewage Utilization Co., L. H. IG K(i. 104. The agreement to take shari-s rested in fieri, and was (;«pal)le of Iwing discharged by a freah agn-einent, as was decided in Ex parte Beresford, 2 .Mac. & G. 197. 2 In re National Kiiuitable Provident Society, L. K. 15 K(i. 236. • /» re United Ports Insurance Co., Perrett's Case, L. R. 15 Eq. 250. Though under Lawrence's Case, L. R. 2 Ch. 412, 421 : Kincaid's Case, lb. 420, 426 ; Peel's Case, R. 674, 684 ; Heymann v. European Central Ry. Co., L. R. 7 E^]. IT)), an^l Taite's Case, L. R. 3 E.[. 705, it wm m- dent that Perrett was condinliii I'.v lii' delay and acquiescence ; the v.im' iiwiiily turned on the fact that the giiicml la* requires that a limited company sliiiil nm exist unless the word '* limitcil " is an- nexed to the namo of the coMiiniiiy, ami if that word is not so annexed the loiiipiny is prohibited from having any liiwfiil ex- istence as a limited company. !^t>. i" •'" form of application for snares, luid in the allotment letter, he had suflicieiit notice [book II. pcratcd as force.* pany, upon acceptance ch he hail ipanv ; the CO of infor- ■0(1 tliat the name must )cing amal inted fo"i". 0(1 up with r the WDrd received in considered niu'suaiicc )n June 1. lires in c.\- wore sent. )inpany was for shares. k's properly iroperly de- f settled on rround that company; Mit notice mited eom- a|»plyin|r, words "if in inipos- lat he had lij^ht other- El]. V>\, nn'l )5, it w;w fvi- llllilfii I'V Ill's e ciisi' Miiiiiily ircni'nil lii* imiiv sliiill nut iiiiti'il" is an- imimiiy, ami if 1 tin" i''OMi|wny nny iawful ex- y. So, in the cs, II ml in the .fticicnt notice PAUT v.] CORPORATIONS. 871 31( C. applied for and was allotted Hharcs In a hanking company; paid the first instalment in tho usual way, and received provis- ional certificates, which, on payment (if the second instalment, iuid in executing the degd hy a given day, were to be exchanged for siiaies; hut in default of payment the rights and privileges appur- tenant to the certificate W(;re to he forfeited. lie failed to pay the second instalment and to exchange his certificates. The company passed into liquidation. It was held, tiiat he was under no obliga- tion to take shares; that his interest was forfeited, and that he was, therefore, not liable to l)o phicod on the list of contriltutorios.' On May U, tho [tlaintifT, through his brokers, sold 200 shares in 0. eonipany to the defendants, who were 8tock-jobl)ers, the settling day being May 15. On tho lOtli tho company stopped payment, and the |)ctition for winding up was presented on May 11. The piuehase-moncy was paid by tho defendants on the 15th, and the certificates of tho shares wore tlien delivered i>y tho piaintift', and transfers were executed by him to seventeen persons as nominees of the defendants. Tho transfers could not bo registered in con- sofpienee of tho winding up of tho company. It was held by Malins, V. C, upon bill for specific performance, that tho defend- ants were bound to fulfil the contract; to reftay tho amount of calls paid by the plaintiff, and to iiulemnify him against future calls.^ In so holding, Malins, V. C, cx|u'esscd his satisfaction with knowing that tho defendants could recover over against the seventeen princi|tals to whom they had resold tho shares. Ihit on appeal, it was hold, reversing tho decree of Malins, V. C, that the contraet between the plaintiff and tho jobbers must bo inter- preted according to tho rules of the Stock Exchange, and that after the jobbers had paid to tho vendor his purchase-money, and [riven the names of the transferees to whom t..e vendor executed transfers, and after these transferees, through their brokers, had received the transfers and paid their purchase-money to the jobbers, the lial)ility of the jobbers cea.sed.^ The plaintiff, a holder of 40 shares in a public company, sold that number on tho Stock Exchange, through his broker, to a tliat the romjiiiny was not a liniifeil com- iMiiv. iVm-tt'.s I'Hsp, L. li. 1.') Ki|. '.i.')4. ' III n: ,\siatic Banking; ('oriioratioii, Er iiin-lc C.illmii, L. K. '.« K-i- 2:{ti. Till' rii,'lits a(-i|iiii-L>il by tht' allDttccs are ii'it iiliMiliitc, but are rijjlit.s which, nc- foriliiij; to tlic authorities, ilo not cnipo.vtT the ilirei'toi-s to compel the holiiers of these \m\Ui il certificates to clothe themselves Willi the I'haracter of sharehoKlers. Kns- tme v. Diil.lin Trunk Ry. Co., L. R. 6 K.]. I*''.', and Ortnerod's Case, L. U. 6 Va\. 110, are cases in [mint. And by non-payment of tlip second instalment the certificates and the ri;;lit to shares were forfeiteil, and after that tiie allottee could not claim to be a shareholder or be liable to be placed on tiie list of coiitributorins. Ex parte Beresford, 2 M.ic. & (J. ll>7. ■•« Coles V. BristowK, L. It. 6 Eut in another case,'* where the qu ?stion was between the seller of shares and the jobber, the latter, under the state of facts there, was held lia- bh to indemnify the estate of the seller for calls made upon him. In this case a firm of stock-jobbers agreed on the Stock Exclianirc to buy 100 shares for a certain day. and on tlie sale-note were the words " with registration guaranteed." The jobltcrs, before the day, gave the name of a transferee, who duly paid the pnychase- money ; the seller executed the deed of transfer, and delivered it to the transferee. The transferee never registered the traiisiVr. and calls were made upon the seller, who filed a bill against tin' jol)- bers for I'ldemnity, which was sustained. In this case tin re was a special co itract by the jobber, which he had not |)erforni(Ml, ami for the breach of which he was liable. The other cases dillereil from this ir that respect, and the question here was between the seller and joblter; not between the jobber and the buyer as in some of t'lc other cases.* 1 HawkiiiH V. Maltby (second cnsc). ' Cruso it. Painr, L. R. C Iv]. ')<1: L. K. 6 K(j. TpO.'; ; alliimod, on iii)peul, afliniiml on appc-il, I,, k. 4 <'li. A|i. 4il, 1. !l. 4 Ch. Ap. 200. « Lord IIhiIi.tI.'V siiid tli.it Vol-, r. » L. K. 4 Ch. Ap. 3, reversing Uio Rristowe, L. It. 4 t'li. 3, nii.l i'lim' t'. judgment of Malins, V. C. ; L. li. 8 E:i. Hutchinson, I.. It. 3 Ch. 3S8, lial i^t^il" 149. lislicd tlmt in the cane of an orJiimry sale 3 .' !' PART V.j CORPORATIONS. 378 A pcrso.i to whom shares in a company had been transferred while he was an infant, became adult nearly two years before the company commenced to be wound up, and during tiiat time tooic no stoi)S to repudiate the shares, thou<;h proceedings had been taken to enforce calls, was held to be a contributory.' It is a good plea to an action against a shareholder for calls, tliiit tlie defendant was induced to become a shareholder by the framl of the plaint' Ts; that he had never recognized since Jioticc of the fraud any rigiits or liabilities in iiimself, as such sharc- hokler, nor receiveU any benefit from his shares ; and that, within a reasdualjle time after notice of the fraud, he had repudiated the sharrs and given notice to the plaintiffs of his repudiation.'^ The (hstiiietiou is taken in this case, as in many o+i>'m-s, between the liability of subscribers f )r stock as between tin mselves and the KinijKiny, and as between themselves and creditors of the company. In the latter case, a liability has been held to attach in luany instances where the reverse would be held as between subscribers and the company. 4. Saj.es of Stock in Incorpouatkd Companies in the Umteh States. It was held by the United States Supreme Court in Fourth National l>ank v. Francklyn,'' where stockholders were made liable (or the debts of the corporation, that the remedy given by tlu! statute must be followed ; and tlat where the remedies were e(juliued to pro(!eedings ia equity, or to an action upon a jiKh^nient against the corporation, an independent action at law upon the original liability of the stockholder could not be maintained. The individual )) ''"ty of stoc'rholders in a corporation for the ' /)( ■/•(• Niirwt'fiiaii ('Imrcoiil Imii Co., MitclifU's I'lisi', I,, li. It K.(. ;}t;:j. s«'o liUiiisdi'ii's Citsc, I.. H. 4 I'll. Ul; Duljjiii & \Vi(klow Uv. Co. V. Bhuk, 8 Kx. 181. In \Vil.son'.s Case, 1,. 1!. 8 K.i. i>10, tlic inlaitl dill iiiit attain his niajmity nntil after tin' \viiiilin.i,'-ii|i liad coniimii I, iind lii> waH liidil niil lialili' as a rontriliutoiy. - IJwlcli-n-riwni Lead Minin;,' (^o. v. HayiK-.s, L. H. 2 V.y. :VJ4. Tlit- rnlin;,' of Willt's, t)., II! Claniuiji.in.sliirL- Iron K Coul Co. r. Irvine. 4 I''. & F. '.'47, i.s in fitvor to a jdliliiT till' rcil oontraet was, that iit till' siitliiii!-(lay he would either take the shiiii's liiiiisi'll' or give tlu! inunes "!' onit or liiHii' tiiinsl'eree.s who wo\ild pay sor th,' sli;ii'is, and to whom no reasonalile idijee- tiun riHiid hi' taken, in the rase of Cruse I'. I'.aiR' {siiiini), liowever, there wa.'-: Mi|»riiiMiil an e.xpress |irovision that tin! siilc Hiis not inadi' ordiinirily and .siniply, but Willi refiistratioli j;narant(ed. These wiirils iiiiriiilui'i'd ii material distinelinti, tliiiliivi hviu^ not merely that the johlier i 8e tie I" It. He. tile shares and aeeept the tranidVr, liosil I,ife .\ssoe. Co. i'. Ayseoii„di, ti K. & but tlial the johher .should tind ii juir H. 701; Mi('rei^'ht v. .Stevens. I II. & C. fiiiisiT who would do tliat, and wmild 4r)4, show in;,' the necessity ol aviirin>{ not iil'o r'^'i>ter the trauKler ; and until that mlv the fraud, hut a repndiation of the liul liirn done the jolilicr was not di.s- thares, in defeiiee to an action against a iliiiii,'iil iViini his eni^'aKemuut. Cruse v. B.uireholder for rall.s. ''■iiiie, I,, i;. 4 Ch. 443. * 120 U. S. 747, rOS. i 1 ! II iiii i \ X ♦ ■ » ' ■? : Mi 374 COMMENTARIES ON SALES. [book II. Hi r ■V payment of its debts is always a creature of statute. At common law it does not exist. The statute which creates such liability may also declare the purposes of its creation, and provide for the manner of its enforcement. The liability and the rcmcdv beiiv created by the same statute, the remedy provided is exclusive of all others. A "general liability created by statute, without a remedy, may be enforced by an appropriate common-law action. But where the provision for the liability is coupled with a piovj. sion for a special remedy, that remedy, and that alone, must be employed.^ In Le Sassier v. Kennedy,'^ the question involved was as to the remedy of the vendors of bank stock aj^ainst the i)urchascr, be cause the latter had failed to insert his own name, or that of some other responsible person, in the blank which had been left liv the sellers in the transfer they signed on the books of the liaiik. for the stock sold to the defendant. The bank havinfi^ failed, the le- ceiver had recovered against the plaintifTs for their individual lia- bility under sec. .0161 of the Revised Statutes. The court held that the defendant's liability to them, if there was any, arose out of his contract vith them us a purchaser, and not out of the banking law, thus presenting no federal (juestion. There is noth- ing in the banking law which makes it the purchaser's duty to save his assignors from harm by reason of their former owner- ship, or which recjuires him to register his ownership for tlioir protection. In the absence of a statutory provision, unsecured floating (1( htsi for construction are not a lien on a railroad superior to the lion of a valid mortgage didy recorded, and of l)onds secured thcpbv, and held by bond fide jmrchaser for value.-^ The judgnicnt in this case was, on application for a rehearing, aflirnied.^ The court held that, whatever is tl.e rule applicable to locoinotivis and cars, and loose property susceptible of separate ownership and separate liens, and to real estate not used for raihoail pur- poses, as to their being unaffected by a prior mortgage giver, liy a railroad com{)any, covering after- acquired property, it is well settled, in the decisions of the court, that rails and other aitichs which become allixed to and a part of a railroad covered !»y;i prior mortgage, will be hehi, hy the lien of such mortgatn' in favor of bond fide creditors, as against any contract between the I Sen Polliicil V. naili-y, 20 Wiiil. 520, B2fl; Mills v. Sootf, l>l» II. S. 2.'» ; Tci rv ». liitllc, 101 IT. S. -21(5; riitti'i-soM w. Lvnile, )0t( IJ. .S. f,Ii); FIiinIi v. Conn, 10!) "U. S. ..,1; Bliiir v. V,n\\ I04 U. S. 7rt!»; Chnso V. Curtis, 1111 I'.'S. 452, 4»iO; ShillinKtoii V. lluwliinJ, 53 N. Y. 371; AtiHonia liru.sii & CoppiT Co., 53 \. Y. 123; HI V S. (i'jfi: C'lmnittfilin r. Hiij^ctiot Maimt. I'o., lis Misx. .IS-J. ■■« 123 V. S. 521. • I'ortiT 1'. rittsliurcfh Rt'sspiniT SU'd Co., 120 IT. .S. »!4t», t!71. * Ibiil., 122 L'. S, 2(57, 283. f J .! ,1 in ^ I PART V.J C0BP0RATI0N8. 875 furnisher of the property and the railroad company containing stipuliitions such as that the furnishcrt* was to retain the posses- sion of and title in them until payment was made in fnll.' A purchaser of all the stock in an incorporated associatiim as- siiriK'd portions of the stock as collateral security to meet his notes, lie subsecjuently sold the mass of the property of the asso- ciation, which consisted of real estate, t(} the plaiiitiff, j^-ctting the (jiroftors, as he met them, to execute a deed of the property, but whicli deed was executed without proper legal formalities or au- thority. The holders of the assigned stock transferred it to oth- ers, who had notice of the plaintitrs deed, and a sul)se(pumt deed was executed by the directors to tiiose otheis. The court held that those others simply took the rights of their assignors, and that, although the plaintilFs deed was not K'gal, he was the e(iuit- al)li' owner of the property, and was entitled to redeem it on pay- iiiont of the amount of the notes to secure the payment of whicli the stock had been assigned.'^ 1 Duiilmin V. I.'iiilway f o., 1 Wall 254; (l.ilvr^tu,! i{ailr.;Mil r. Cowdicy. 11 WmI!. 4'il', f*", 4H-.'; I'liitfil Stitcs i). Now Or- Uiu> K. it.. 12 ^Viill. ;}•)•->, -Ml,; Dillon v. Bainml, 'Jl Willi. 43(!. -140 ; Fos.lick i: S.li;iii, !i!» I'. S. ii:J'., 251. It (> a Wfll- M'ttii'il |iriii ipli' that i,iilisci|U('!it cri'ililors r.ii.'iot Ire inard to iiii|)fai li an i-xnutcil inn' t wlirn- their ili'alinf,'.s with tlu' Kiiii ■ '■ which tlicy <'laini the lii'iiclit, iK'cii : .iT tliy the liiiirtors, '.las (loti'rniini'il. 15y thf ar- I'lli's (il iiirorjioiatioM, thr niana;,'('in('iit III Its all'airs was vi'sti'il in tin; Uiaril of iliiviliirs. Thi' court hi'hi, that the 1c<,m1 I'tl'ict (if this was to invest the ilirectois Willi Miih (iiiverninent and inana^i'iiii'nt OH a Ik ii-d, and not olln'iwi.sc. This is in itcciiidancc with the fjencril rule that tin ({iivcriiiii;; iKiily of a cor|Hiraticin, as sucli, ail' uiidits of (lie cor|ioration only as a Iki;iii|, and not individually. Hence it tiilliiws that they have no authority to ;iit Kave when assemliled at a lioard rneel- iiitf. T!ie se|iaratc action, iniiividually, III the |ieisons coni|iosin},' .such >;(pvi mini,' l«iilv is not the action of the constituted luiily of men oloth.d with cor]H)raie |H)\vcTs. In re Marseilles K.xlen.sioii i!y. Co.,7t'h. Ap. Itil; It'Arcv v. Taiiiar. &c. Ry. Co., I,. It. 2 Kx. \M ; Inhuniin r. Si'ymuur, 24 N. J. E.trictioiis in the charter or hy-laws, have all the authority 'if the corporation itself ill the conduct of its ordinary biisi- IIC-.S : addin;{, "And it is not important that this aiitliority b<' eoiileried at un na- .senilily of the directors, unless that is tho usual mode of tlii'ir doiii},' such acts. If they ailopt the piaciice of ^ivin^j a sepa- rate absent to the execution of contracts liy their a^jeiits, it is of the .same force ns if done at a regular nieetiuu of tl.e lioai'd. If this were not so it would le.id to Very >;re,»t injustice ; for it is notorious that the tran.saction of the ordinary lni.siiiess of railway.s, hanks, and similar corpuriitclj', ha.s Ihh'Ii liclil hinilin;; U|i>in tliu i'uni|iaiiy. Anil if it Were not mi lu'lil, it il.l able till- n\iijoiity of tin; Imsini'ss corporu- tioiis of till! country to I'scapc from many contractii whicli rc(|uirt! tlic action ol tlio iil •reil cases in this I'ountry, wlieri) till' iia'/iiiriziil ((ijciils 1/ the roiH' pan;) [the italics art) ours, Ai'rii.J have exteniletl its liusiness lieyctiiil the strict limits of those functions lor witicli the charter wis j^ranted, tin' ccuuiiauy lias been hehl liuunil l>y iIk' cxliniiun unl(^^« thd corjioralors interfereil to restriiii sucji extension ;it tin • iiiest Mioniint, I'll mill was s'liiciiiiui'il l)s ihiseourt inNoves V. Uutlauil & IliirliiiKl'Ui \ly., 27 Vi. 11<). Tl lere IS now, 1 aopn'Men 1, " 10 ^roum 1 t.i question that a .'oi{Mir:iiiy tilt' arljoii of a niaj.irily of ilie luanl of •iircetori, e\|uesse(l in tho Usual mode whi.h tiiey adopt in tin" transaction i>f th e hiiNllir^s I d' the lioanl. tml Hor thb jiosiiion noaiithority ih ei Nov'M c. It iiliii>l, Ate. Uv. (w'/'/'f), ill whii h, ttNo, It.'dlield, ('. ,i., delivers tho judi;in. lit, iieiiiu' slliljilv to the elfi'ct that a c.>m|iaiiy is lioiiud hy the acts (within the s:-o|ie id their auliioiity, of cnurM') of " tilt) aut!iuii/ed a;.;ciil:t (d' tin' eiiin|i my." A cm jionili'in usually ads hy its author- U{. Ills, Not int'rei|ileully the jiresi. hody, they must 111. 'el in smiie |i|ai iziil tl'.'iit nets in miiiiairei, and, theref till) atrent ol' tic roiujiuny. In so lar as allirnied.) In I)"Arcy r. The Taiii.ir, &c. Ify. Co. L. 1{. 2 Kx". Ia8, tho jaonilH-,! iiuorum of (lireckors in the deriiid.n.i'^ ciiinpany heiiig three, the secreiai y ;iilix,.ii the seal of the coiiiimny to u iMind, ;ii(.,r having; ulitaineil the written autliouiv i>! two directors at a iiiivati- iiilerviiw, iii:,| at anotlur {irivate interview the \.'|>m1 lu'oinise of a third to si<{n the amliuii'.v. I'he coni|iany liciiiji{ sued i.i|iiin tlii> ii.Jiii, it wjs held thai ihe seal of Ihe ediiiji.iny was allixed without lawful autiioiiiy. anil that the coliipaiiy was tlicreliHe liul lublr on the lioiid. Karon .Martin says : •'hi,* not m ressary that tin re slioulil I'c any lixed jilace of liiectinjj, liiil it is c|iii|.' , icar thai the directors iie to act toni tiei. .iiid in a iiieciiuK' ' And liiamiveil, li. : ••|tis llcre shown alliiinalivcly lliat the .-.cd hjj not |irii|ieily atlixed ; lor this couid net In; done, exce|i' liy the alilliniily ild.' ■Si. too, Channel, II.: " WilliMiit savuiu til at the hoard are luiuiid to unit a! .my [larticiilar jiLicc, yet whiii an iniiliDniy i» Kiveii to a less iiuinlier to hind the wlnilc ho or aiiv other inemoer o f ;h. d, is llni ai^eiiJ of the comniiiv, tin* ]irinei|de .f th il.'d iiiphes to I, IS acts. \V, think that Itiiield. <'. .)., has cmfounded the acts of a director as aj^eiit of a 1 (i>m. |iiiiy, and as ni'inlxM' of the Uiard liy which the all'iirs of the c paiiv aro r case the wlol governed. In the latti ri)aHoninf{ w.eil.l s,.ein to he with the Mm- iiosota ih'cisioii in BildAin v. Canli. I 1, 2d Minn. t:l, and a^^.iiiiit the deiiNJun of lite Vermoir, Court. .\s a inemher u! the hoard a director his no in.l.' it'O'l-'iit entilv. He acts .aniply as i>iie ni a hoiiiil, as an Hrliitiiilor does nil an uliitration ,see i'ct«>r- Non 0. .11 re, 1.-, «'. II. 7-i\ • \Vi Dowl- in;(, 4 Kl. k n\. U : llinton r. Mead, 27 L. .1 Kx. 11(1; St; Iwortli I', Inns 1:! M. of \V. Itltt) ; or as, in K,i.;land, a nienilici- 1 1 sirv il les in rmineelion \Mth vesfrv mei'liniLfs. (.See .■^rail.li'n; ''. l.iKaiit. :t II. li. Can. 413 ; h. r. in Q. H . It (.,». U. 7»,'0, all miy lie pfi'Miil, ami m.iy havi' tin' opportunity of ■•\pti's-.inn their ,l^sellt er disseii!." 'Ah.I l'ii;olt. IJ. : ' N > .l.i'ilit this is the dci'd of tin" e.inip.iliV if It !•* tin" deecl of the directors pi-.|>,'tly done Tin' ipicstion is. whctli"r it w so done. Tli'' special act in.'ikes lh"i|uonni ><( a iiii'>t iin; "( directors, three, ainl the i;i'liinU iii't speak.^ al.so of nie.'tinifs cif dii' lor*. Thici' directiu's have iiivi'ii their as..nt to the issul.it; uf this hind ; Iml wei.' ilieya nieetiiij; .' Clearly they weie nut: Imt, on the contrary, the se. letarv c.isa:diy piclceil up three ineiiihers of the Imir I nf direrlors, and ohiained their ii'^seiil -.I'lia' lately. T' seal has Id'cn li\ed williuit the aiithoiity of a n tini? oi diieetor.s !in I tl'.e bund is tliei.lorc invalid. " The dceisi.iii W.IS under the Kiij^diili Ciiiniiil- nie» .Act, IHJ.'i, ami a speiial a.t, but Ihe r as ai'l'li- c.ahlf (o iiK 'iiporateil ciunpinies lur ui Kn^laiKl. .So, ill St..ys|..n, &r. C. . v. Ciav.'r, [j V,i. .St. 3»ti, it was well held, 1. 1 PAUT v.] CORPORATIONS. 377 such as arc registered on the books of the iussueiiition, the stuck being transl'oraiile un[y in that way. Nu person becomes a Htoek- v^lidi- ii mlilrurii liml !h".'|i lliaili' l?y the Kwiil "I i!pi!i.i;^fis on OIK' .-^iil'' ami Ihnvt-r on tiie uihi'i, licit >li 1 Kiiiiiioiis ot oiu\ or iiifii of tiji' lriaim>;cr.s (in cllV'-t, " tiiivct- ors ), !!"' ■'! ■' iin Ttiiig of tilt' iMwrii, tli;it t!uv wi'M lit' 'Ajlliii^ to chaii}.';c tlio cou- tiiii, 'liil not iiiiiii llu' ii>iii|>any, iiiul \v,>8 Hut I'viilfiiiv i:;!!!!!.-.! ilii'ciiiiniiiiiy. ''Thf I'liiiinu't "ouiil 1)1' 1 liiiiii;ii| only I'.v the inu'- l!(,s, uii'l till' i(j!ii|iaiiy c.iiiM iiiiitc in tlif cl),ii!;;i' oi:l,\ liy st.s !i '.inl m'tini^' in ntntfii i'oi;ii>'l. i'li'l iii>t liy Uie si'Vcral iiji'niliris ol till' luaiil, aiiswi liuj^ III ,i[i|hmU oI tile iitlii'i' piiily. Ndili • .inviTNitiiiiis :iiiil (ii'c l;ir.i'.i"ii^ '•ii;;ht not to lj<' iciiivrtl in wi litii.i'. Till ml ol ilic iiiiitcil l)onni, .iinl ii.ii i>l if> ilifiunitfii I'li'ini'iit-i, is tile niiu'iT to Ih jii'i'Vi'il. " /'"'i('> not only to tin rasrs of iiriii- tr.itoi^ an. I \ff-U\ nii'ii, as \vc Imvc jminti-i! out, iiiit to nil laif.s wiiirc two oc inorc jiiiiiii^ li.'.M- to a' t III II .iiiclnial rliar.'-'trc. Tim-, in liix c. llalnslall-Uuiwari', '■'•'['. II. 'M>K it wa. licM, thai wlii'ii' iin aiit!uii;ly mis^iviii !iy Vi Kli/. cli. 2, to iiinil i liilif- ri'ii a^ a|i|iirntii-i"( •' liy till' u.sscnt of two jiwict's" iin iinli'iitnif ol an iipiiri-ntiic as- SCillrll to liy till' two JllMlilcS vyij /•((/.' // was viiiil, ami no .scttirini'iit was^ainril liy sciviiii; nndi'r it. So, ajjain, tin- >;ciirial piiii' ipli- in M'lalioii to ajii n' i.'s is tlnit wii.ii an antlioiity i- ^.'iv' n to twoor inon- ]H r^iiii-- til ilo a piivat. art, tin' act issaliil, to Kill. I till' |iiinii|ial, ■•iily wlu'iiall of tln'm iiiii'iii in 'loiii',' it. Ainlovt'r c. (Iiul'ti'n. r .\. 11. :io| ; .Irwctt i\ Alton, /A 'J.;i. 1m l>i>|i;ilrli Lilli' of I'a.ki-Is IV Itijlainv .M.uml. I'll., TJ N. II. •JO.-,, -j.jr. I'arkcr, <'. .1.. -.aiil: " W'r ari' lit ii|iinioii, that vvlicn' till' li\!a«:< 111 a |>ii\ati' I'oriioralion ((iiiliT iij".!! ll\i' ilin I toi- jiowir to act in liilialf 111 till' .'.ii|iciration, witliont spiciul li'nila- limi 1- tn tin- niaiiiii r, a niaj.irity may .nt, wiliiiii '.111' M'o|if 111 till' aiitlimily '^ivi'ii to till' li<.;ii'.|, mill liiml '111- <'or|iiii-atioii, citlnr wlini' lliL-ri' is II rollMlllatliil' ol all to- X'' till I, ami u roni'mi-i'iic'i' ol a inajoiity ; Mr ttl;,),. till. re is a if^ialar tai'i-tiiij,;, at wlii.li.ill ,,iii;lil l«. |ii'i'si'nl,iiiiil a inajiii'ity iitiiilly ini'ri iiiiil art Uy a major votr. Siivinijs Hink ■•. Davis, M <'oiim. ii'l. Amf wl.i 11 ill.' ai'l |iiM|iii|'t..> lo Iw ilif in't i»f tin- 'iiaiil, it may Ih- |.|i-siiii,. -I li', or nsai;.', wlii.'li Hill irrv ii> i:!rtlii.r Mian this. 'I'l asi s ilii.'li liiiM tli»t, a majoritv of u ilrtiniti' ■ niL! avw-mlilnl. a inaji-r jinrf of — nililfil nniy iU't, |iri'siiiii«i«i»» a ll'^;.li■ll iii..i'*ii|o, or oiir ml noliri'. ' ,%!iil A^nr. ; " Tlii'ic lif* MilVguartls in eoiiBul- tation . ami ■ onsiiknttion i of [mliry, ns well as ol roii.^tniitioii, which, in tin iiliscncf uf MjK'cial aui.hiirity aiiili'Mixin;; u ilill.i'tnt ciiiii'sr, lui'iiisit all ai^nnifiit in tavor uf till' |Hisitioii, Hull Hit authority tn two or inori! o!lii'i'i> m ajjdits of a i';ivi'n (HI rail tn th. \h'> iti'ii I inc ol Tavki'ts r. Hilliiiin Manul. Co., 12 .N. 11. •Ji:>i,,>,r I'aiii.r, V. J. Nolwiilisti.niiiiii; the holiliiig of livd- tii'M, (' .1., in lii.iik of Miililli'linr\ r. Kutia &i. U. \i. ( io Vt, l.'i'.i, 17ii, ami hi.' stalciin'iit thrir, tiiat " tli ail' nnmiions ivoiii' ilo ioiity ol thr iliiri'ti 111 hdil I' ra.-i'.'i 'iiscnl of a mil.. ^'ivi n si'iiaialily, iniiiii); n|iiin tin conipany, think till' hiiiiir(iiiiali.iii, is i:ot tin' iirtioli "t iht' con.stitnlril IwkIv of ini'ii I'iothri! with mr. jmra'i' |iowiis, is thf morr rational .-iin', anil i.s snjiiiorti'il hy tii-' j;it'!it wciijht ol I'l tl ontv. loiii'.ii'): Was ailnl th. In (.'aiif.irii ill' 111 r.'.solnluin an- riuiiiitioii iiio|ii'rty it a stork nolihrs' iiirit ftl vihirii ihi' tni.sici's ol till' i'om|iany, ainl !l>l tl Th. n' oihi'r s torkil. I" miiliinrrnnt ol Ilif ('iiiii||iii'iy was vi'sli'd ill till' trii>ti i ithont aliN llii'.'t- in^ as IS lioini, tli> y a.tril on tin- ri'so'iitioii of till' sl'irkhi'li'.fl- ini'rting Tin' rn'.irt Inhl that tin ri' .Mis iioihin),; in thr inlni'i' if 111" I dill's, ,'i.s riimii'i'lril \Mlh till olijii't I hii'li aim Inisin s, i •f 1 1 a ;.;rm'ial |.ii\m'I in II romiiai'.N IliSll'l I'l on I I hi' t 1 hi'i I I not arlim,' as a iKaii'., to si il ami mnvrv thii n.ijiriiy I 111' roiiit ifth. M|.|.!i!iy, I'Miili lU i|ilii'i|. Till' roiiit sav : ' Tin tioil Was the |i|i.l.rlly id the artillri.l 111 |iiiilnity in i|n. int, fpaii'il liv l! si itlltl', rii. wlioh' ti;h' was in th«' rnriiniaiion. Tin- stork- liol.l TN Wi-n* i.ot in till ii imlividnal i aju ritlis oWiirrs <» f thi |iiii(ii'rty lis truants tn i-omnion, .jomi ii-nanls, ('o.|xirini'r.s oi iilhi'rwi-i. ((.i.ihain I', (illisoii, 'J8 Cal. fil; Mi. (..li'.s r. Kmh.'-t. r ( iiy Ihink, II I'ai);! . 1','."*.) This jijin-'iinoii is s-i plain that no citation of ainhoiitii's is iii'cih'il. Had the stoi kti'ihliTs ali cxcciiti'd ,i ih'iil of the )i|..|>« ify, they loiihl have conv.'yid no title, lot the reasiiii Ih.it it Was liot in th.Mi i WTii'i'Iock V. .Monllon. I'l Vi, .''.■.'1 ) , and what they ill not tl irliisclv(rc»<'nliL'y the trustees when assembled and acting as a board." Gashwiler v. Willis, 3:J Cal. 11. See, fur- th"r, ,\li'(_"iillouj{h V. Moss, 5 Denio, ."»7.'> ; Conrou. I'ort llenry lion (,'o., 12 Marb. 27, «:j ; Hex V. llend, 1 Uurr. -^jIj, '2.V.J1 ; Cainineyer v. United (iernian Lutheran Churches, 2 .Siiidf. Ch. 208, 221, 228 ; State V. Aucker, 2 Uich. 215, 281, 283. VVo have ivl'errecl to the faitt, in answer to the position taken by Kedlield. C. .(., in the liank of Miildlebury t>. Uutlanieed !iy the president attaching the seal, the aci of at- taching the seal lould Mi!isei|Ui'ntly be dime by the president ministerially, with- »iut the presence nf the rest of iho board. Or if property were vestcii in a board of trusti-es, and at a meeting t»4' the board an onler was made fur I lie conveyance of such property, the act of ixecuting tiie deed be- ing then not jiidii'ial, the deed would be valid, though siibsecpieiitly <'Xecuted sep- aratelv bv the trustees. In the California case, (iasliwiller i'. Willis, 3;{ Cal. 11, 20, and in other cases cited in this note, the 17), and appuintiiniit of overseers (Ui'X r. l''oie.st, :i 1". IJ. :;«|. Ill this last-named case Lord Keliyoii s.iij: " It is admit ti'd that in the case of nnlii^ of removal the magistrates iiiiisi let In. gether, and for this reason that they slmiilil assist each other, and that the result et their conference should be the gioiiiil iil their deti'rmiiiation. Now 1 e.iiiiint iliv tinguish this ca.se from that. This is not merely a minixUriitl act ; if it wcic, hko signing a rate, that might perhajis vaivtlu' i|Uestion. But it is a judicial act, wlniviii the justices are to exercise a discictinii. And in order to make this a ^'ood a{>|"iint- nii'iit the Justi(tes should have arii-.l tn- gether." Hex v. Forrest, ,> T. i;. •'!'.! ; H'.v V, (Jreat .Marlow, 2 Hast. 241, me in m- coitl. So, ill Buttye i\ (iressli'V, 8 Kiist, 3h<, it was lii'ld that where juiliiial ait< are to 1m' done by two or inoh' peisoin it is reijiiisite that tliosi- acts should lie ai^'r 1 Upon by such persons together ; Imt alur they have di-lilieiatcil and agreeil toLirtliiT upiui the act to be clone they liiiv tlii'ii si'paratidy sign the warrant or iinler to carry that act into execution, Tlie same principle was acted on in IJi'X r. .iiistii' il" Don'hester, 1 Str. ;{'.»;>, with refeiiiicc to justi(!es si;;ning a ]ioor's rate, wlieie it was held that the two justices are i es- snry to sign the rate only by way of Innii, for it is the chiirch-wiirdens and ovriseeis that have the power of making it, aiid tin' jiistiei-s liaving insisted on their riL;lit to act judic ially instead of niiiii>ii'iially, an altaclinieiit was ordeied a^zain^t tlii'iii. W.' think these distinctions lully meet [book II. :U rights, huldor is I'livtl liy llic iunili^ as a ilil |«rloriii er iiutliunty iiiWlTS UJiun ' uiiuii any IS llic ,ij5i'i]is Uc.^tliiii li;ia \ liiii-lics act \[o\\\\i'\ si'||. b jiiilii'i;illy, lor lliciii Id ihe siilijirt, .'II tlll^i'llllT. ii,i{l.iiilniuii, III al it iiii't't' I's III' iniiiival •i Sir. lu;i-j; ilcls of tilia- 80 ; Uilli'i'fs a|>i>'jiimiiriit ;! T. 11. :!-). Ki'iiyiiii -..lij: use 1)1' iiiilirs iiiu>l iiii til. It llicv -li.iilU VMXl v.] CORPCilATIONS. 379 IVlUlt (it i^ni iii'l 111 llllliil (lb- riiis is nut WiMi', lilic |1S VillV till' ■1, whi'iviii iji^rrilinll. m1 ii|i]iiiiiit- ' aili-.l I"- ;. :v.i ; H's; HIT ill ill'. y, 8 Kast, liliiiill lU'tH |ii'rsiins it ,| lie ai^iwil ; Imt iilU'r ,m1 to'ji'tiii'r V 111. IV tlll'Il ul' .inl-r I'l rill' siniP .liiNtii' till iv|i':i':iri' ti) wlii'iv it arc iii'i'i'S- V of li>riii. |(i (iVllTil'lT" it, ami till' lir riu'lit t» .ii'iiailv, an in-t ilii'iii. lullv mi-'i't tlio stockholder for all purposes of law. ITcnce, in Richmond v. lions,' it was held that the delivery ut" certilioutes, and a power of attorney authorizing their trausfrr, to the proslilent, not as prcsi- lii nt, but as vendee, did not relieve the vendor tioni his liability as stockholder on the insolvency of the bank ; tuid that, in respect to such shari'S, sales made by him in l"'el)ruury and June, 1873, left liini still the statutory owner of the shares on tlie insolvency of till' biiiik in St'ptemlKjr, 1873. llis liability Jis such stockholder was the same as if he had sold and transferred the shares to the presi- dent tin the day of the insolvency of the bank, when, as siieh a sale could only have been made by him in contemplation and actual knowledge of the suspension of the bank, it would operate us a fiaud on the creditors ; an eil'eet which the law would Jiot |>ermit. Where, with reference to the ownership of stock in a company, the issue is between the receiver representing the creditors, and tile person standing on the register of the bank as a shareholder, the creditor's generally are entitled to know wlio, as shareholders, have pledged their individual liability as set.'urity fur its delvis, en- ijiigeinents, and contracts. If a perstuj permits his name to appear and remain in its outstanding ecrfilieates of stock, iuul on its rc- etweeu himself and the cieilitnrs of the liank, to deny that he is a sliarrholdi'r : and his iinlividual liability continues until there is a transfer of the stock on the book of the bank, even where he has in good ftiilh pre- viously sold it and delivered to the buyer the certilieate of stock, \vitli a |)ower of attorney in such form as to enable the tninsfer to 1)1' niade.- lii Whitney r. Ihitlcr,'' tlie court held that where the seller de- liveis the stock certilicates and iiower o( attorney to the buycu*, relying upon the promis(> of tiiu latter to have tin' nec<'ssar_; trans- fer made, or where the certiliciite and ptuvcr of attorney were de- ili. ililliiiiltii's wliii'Ii li'il to till' ili'i'i.-.ii>n 111 111.- I'.aiik nf MiiliUi'hurv v. l.'ullainl A; Wa-liiii-Kiii K. \{. Co., :{•» Vt. ir.i'. -i» iliiUiuii whiili, obviously, not \vitlisia!iiliti« till' >tii'iin o|iiiii(iii of its coir-fnii'-'' i-x- |M-^.il liy Iti'il'ii'lii, C. .1., wf think li iiiil'-ntiirc ot' iiipH'iitii't-sliiii, till' a^si'iit III' till- two niHi^istnitt's is surti- 'ii'iitly --iiriiilii-il liv oni' of tliciii first iiiai- iiij; it aliiiic, ami Ix'ini,' aft< vituls pii wnt «lii'ii till iitluT .'*ijrris it ; Cortlii'i. in I'lfi't, i-* :is tlioiiyh both sipni'il totri'tlK-r, fortlii'V tin II MMit ami ,iit juiliiiallv in a;Tt'cm|[» tilth.' |iro]>rii'ty of tli** nn.iisiiii>. Rc-x r. Wiiiwiik, 8 T.R. 454. St-u Uatik of ln«- laiiil . Kviuis'Cliaiitii's. f. II. I., ('as. S89, ^ilni. ili'iih iliily si^;iii'il liy Irnsift's uf an incoriMii'iituil I'lniiity, Imt to >\liii'h tlin I'orponiti' .si'iil wus liaiiiliili iitly iillixiil l>y till' scrli'tary of tlic llUsti'cs, Well' lirld invuliil. ' I'Jl IS. 27, 58. - havis I' .'f the place where the C(u*poration is created governs the Iraiisiir t)f its shares, yet if there bo no positive ()r customary law to the contrary, a transfer good by the law of the place of the owner's domicile is valid everywhere.* 4 fn ' This ciise is ilisliii^iiishcil from tiioso ill notii 2 to |i. U7'.' ill tl.Mt in tliosc cusi's the fortillrilli's of stm'k iiiul tlic iiowits of attorney wcii- ;{ivi'ii to llic imri'lmscr of tlm Htock illstt'Uil of to the liiillk, Hi w;is itollu ill Wliilncy v. Hutl.T, 118 I'. S. (i.'i.'j. In this ciiM^ it is tl'cati'il IIS iiiiiilo;;i>iis to that of a ^I'lintor of a tlt'cil (lc|iosititii; it in tin! projHT olllif to be iccoriicii. Tilt' ^mi'tul mil' thru is tliat the ilcfil is I'onsiilcii-il us ri'coidcil lioin till" tinii' of sii.'h lit'iiosit. 2 Wash. U. r., H. .1, oh. I, § h-Z. ••' W How. 4S:l. ' Till" ;,'i'ni'ral construction wliii-h has In'imi put u|ion till* I'liartrrs of Itiinks con- tainiii;; similar |>i'ovisioiis us to tlii> trans- fer of tlicir stock is that tlu' provisions urn dcsi^llfil solely for the safety rtlid seeiirily of tlie hunk itii'lf, and of purchasers with- out notice ; mill that, as Is-twcen vciiilor and veiiih-e, a tniiisfcr not in conforn.ity with such provisions is frood to |msH the fiiuitahle title, and ijevrst the vendor of til iiiluruHt iu the stuck. Bank of Utica V. Sinalley, 2 Cow. 778 ; OilU.rt iv M in- cheater Iron Co., 11 Wend. tiJS ; Cniii- inercial Kaiik of lliitfalo r. KoilwiiL'lit, 'I'l Wend. ;tt;2 ; Qiiiner r. The .M.irliMira.l Ins. Co., 10 .Mass. 47ii; Ser(,'eant v. Flank- tin Ins. Co., H I'ick. IKi. * It is Well retlled ns rt (hxlrilic of international jurisprudence that |irrs.iiial property has no locality, iiiid Ih.il I lie liw of the owner's domicile is to d't'tnillii' the validity of the transfer or alii tiii'i"ll thereof, unless there is some |Mi>llivc or customary law of the country where it is found, to the contrary. This do. nine wis rcc(ii{ni/ed and iillirmed by tin' Sii|iiviiie Court of i.ouisiana in the case nt I'lii' I'liited States f. The I'nited States H.iiik, 8 Uoh. (I.a.) 'liVl, as a part of its int. iiia- timial Jurisprudeneo. It was appiicij m support iin aKsit;nment made in rcimsyj- viinia hy the liank of t!ie I'liitcd St.ili> lo certain assijrnecs, who wen' iiitervciiois nf Koods, di'liLs, credit.s, ami elfects, in Luiii-.- lann. Thu court hehl that tliu asMi^'ie PART v.] CORPORATIONS. 881 The obligation of the contracts of a corporation is not impaired l)v its liiasolution; such ohlij^ution Rurvivt'9,nn(l the creditors may I'liltdio their claims, in any mode permitted I»y tlio h)cal laws, ajruinst any property beh)ny Rule 1)4, of the rules of practice for courts of ecpiity of the I'liilid States,- rijrht of action is pfiven to stockholdi'rs of a cor- poral iou where the directors fail to take proceedin<.'8 to enforce tiic iJLilits of a corporation. Hut the stockholder so nctinji: must show tliut he has made an honest and earnest effort to induce the coi|M)rulion to take the necessary steps to obtain relief.'* In QiiiiKV r. Steel,"' the plaintilV, without so brinjrini; himself within this rule, filed a bill to i'uforcc a claim of one corporation ajjainst aiiiitlicr for a violation of a coutruet, but the court held that it was piiiily ami simply a suit to reeitver money on a written contract ill an iiftion in the nature of assumpsit, and dismissed the bill.^ .\ii au'reement for the purchase by a syndicate of the controlling interest in a mini; that one of tlp'ir numlier was to " control Mjo maiiaircment of the mine," was held to be necessarily subject to ^iii'li reascmable rules and reirulatious as should be adopted in a |tr()|it'r way, cither by the stockholders or the directors, for the f,'()V( rmiient of the conduct of the oHieers of the company.^ An aetual manual sultscription on the books of a railroad com- pany is not indispensably neccssaiy to bind a municipality as a iiH'iii, lH'iii<; nrovrd to l)c vali>l iiiiil vfti't'.- net ill t)ii> iiiiittcr, iini(iuiitiiiK tii Hiich tiiiil I'V till' law of I'fiinsylviiiiiii, was to ^'rossly i'iiIikiMi' coiitliiit iis woiiM Iciid to he lii'i'iiiril i'(|iially viiliil ami rll'i'c'tiial to ii'ii'iiK'iJi.ililc loss to iiiiii if lie were not pii" till' >,'i">'N, iTi-iIits, iiiitl I'lfivts of the |ii'iiiiiltri| to liiiii^' tlif matter IwConi tlio Imiik to till- assi^iii-i's ill Louisiana au'iiiiist coiirts, Aiil rcfiiHal till' lilt iiliini,' I'l'i'ilitors, who )ia>l iiotii-r of must not be siimilafcii, Imt real and jicr- till' a>'-I^Mnii'iit lit tliu tiiiM! of their al- t.irlllli'lll. I M iMima V. Tht' rotoiniu; Co., 8 IV- li-rs, 'Jsj. ■ Ml IT. S. ix.. X. ' ll.iwes V. Oakliind. lOi V. S. 4.'iO. sisiiij ill, after earnest elfuits to overeuiiio it. jietroit r. jieaii, Inti f. S. M7. 1 Ciaiit I'. Parker, \\r, V. S. 51. The ('i>iii|>l.iiiiant was the ]iresiilciit of the eoiii|)aiiy, and the rules and regiihi- tioiis, whiili Were held leasoiiahle, |)ro- 4*51; lltiulinu'ton M. I'uliiier, //). 48'2, 'LSil ; liihileil the tnasiirer from j'ayiii); tlin Di'llMit r. jleail, 10(5 U * IJo |-. .S. -Jtl. ' .\ Miii;le stoekholder in it eor[ior,iti'>n has iiii'liiiilitedly the same rii,'ht to itisti- tiili' I'',m1 |iroeeedinxs ai,'ainst the enrpoia- tieii I'lir the |iroti!ftioii of his inili\idiiil riiilils that a third jiarty not a stoi-khoMer |xissessi'H ; hut when he lesoi ts to siieji |iro- ('iM'iliiii,'s to proteet. Hot sim|ilv siieli iiiti'r- eit<, hut the |iro|M'rty and ri;u'lits of the eorpiiration against tlio aetioii or threat el ks of the eom|>aiiy unless tliey wuro si>;iied by the )iresii|ent or viee-presideiit, aiel i'i);intersii;neil by the .seeretary ; di- lerti'i! that sll|i]ilies reiiuiled should U) ordered tlirou^di the lii'ad olliee ; and ail- thoii/i'd the vii'e-|iresident to si;;n for the eom|iiiliV ill the absi'lii'e iif the ]iresidellt, and the sii|ieiiiitendi-nt at the mine tu draw III the aliseii i' the |iresident on the loMipany for debts incurred at th« mine. It WIS held that there wa.s lioth- Ptii'd ii'ti'in of third jmrties, thus assuming; in^ in this to interfere with the eoiiiiihiiii- iliitii's |iro|>erly devolviii|( iipoii its diree- ant's control ax general iiiaiiugiT. Grant tors, he must show h clear breach of duty v. I'arkcr, siijini. on till ir part in neglecting or refusing tu \i: : m hi h ''■ ' I ■' I ♦ ^ I i .1 S'M I i y I I V 882 COMMENTARIES ON 6ALES. [book II. Hiibscribcr to the capital stock. If the body or aprciicy having aiithurity to nmko such a subscription pusses an ordinance or rcsohitiun to the eiToct that it dues thereby, in the name iind on behalf of the municipality, subscribe a specified amount of stuck, and presents a copy uf that ordinance or resolution to the com- pany for acceptance as a subscription, and the company docs in fact accept, and notifies the municipality, or its proper a<;cnt, to that cifect, the contract of subscription is complete, and binds tin- parties acconlinj; to its terms.' Thou<;h purchasers of negotiable securities arc not ehargoal>le with constructive notice of the pendency of a suit affect iiitf llio title or validity of the securities,*'' those who buy such securities from litigating parties, with actual notice of the suit, do so ut tliiir peril, and must abide the result, the same as the parties from wliuni they got their title.' > Rates County ». WintPis, 112 U. S. 325 ; NiiKi'iit i'. Tlie Sii|M-rvi.s()r.s, 111 Wall. 241 ; Countv of Mnultrii; v. Itui'kiiij^haiii .SiivinjfH Hiiiik, '.•2 L'. S. C3I ; C.miity of B.ites t>. Wintt'is, 97 I'. S. «:), !•(». ■■^ County of Warivn r. Maivv, l>7 V. S. 96 ; White v. Vermont At .Mass.'ll. R. Co., 21 Mow. tt7ii ; Moran v. Ci>niniissii)iicrH, 2 Blutk, T2-2. ; M.-icei County v. Hackct, 1 Wall. 83; (ielpcke «. l)ulm(|ue, 1 Wall. 175; Cityot Lexinjiton i>. Ihitler, H Wiill. 'JS'i ; St. .losciih TowiLsliip c. lioj^erf), W Wall. (S4t. • a.otlimil County v. Hill, 112 U. S. 183. The established rule is that a lin j)f.iutem, duly prosecuted, and not eollu- sive, is notiee to a purehaserso as to alleet and hind his interest l>y the decree ; and the Uh pciitlr)i.i, under the old ehaneery pnmtiee, hesjan from the servieo of the subpiuna al'tiT the hill was tiled. The leading Aiuerieaii ease on this sulijeet is Murray r. Ballon, 1 .lohns. Ch. 56«J, when) the (|ue»tion is exhaustively diseussed. The same >{iMieral principle that all per- sons who (^ome in as purchasers, pcniU'ntc lite, thouj;h they are no parties to the suit, they and their interests shall lie hound and avoided bv the decree, is very old Kn^lish law. Haens v. Canning, 1 Ch. ("as. 301; Fleming r. I'asjc, IJcp. temp. Finch, 321 ; Cnlpipia'r v. Austin, 2 Cli. t'as. 115, 221 ; Preston v. Tulthin,! Vern. 28rt ; Anon, lb. 318; (Soldsoii i*. 'lard- ncr, cited in Self v. Madox, lb. 45!) ; Fineli v. Newnhani, 2 Vcrn. 216 ;.Sorr«ll V. Carpenter, 2 P. Wms. 482 ; Bishoj) of Winchester ». Paino, 11 Ves. 200. Ixird Haiilwieke hail fretiuont occasion to review tho doctrine. Mid ne always held that a purehasiT, pendente litr, was Imutul by the decree in the suit. The iicndeney of the suit was, of itself, notice ; and he nh- served that the rule was to prevent u fjreater mischief that would arise Ky pen. pl(^ purchasing nmler liti^'atinn. (laitli V. War.l, 2 Atk. 174 ; Worslcy e. S,;ir. Iiorou^'h, 3 Atk. 3!)2. In Walker i'. Sinui- wood. Amb. 075, Lord Camden said ; "I hold as a general rule, that an alii'iiaiinii pendiii<{ a suit is void." And Sir Win. • Iraiit, in the Bishop of Windn stcr r. Paine, 11 Ves. I!t4: "lie who puriiiUM's during the pendency of the suit is Unuul by the decree that may be made aj;aiiist the person from whom he derives title The litijfatin^ parties are excniptnl liom the necessity of taking; any notice of a title so acipiired. As to them, it is as ii im such title existed. Otherwise, suits «(iul.l be interminable, or, which would !"' tlu' same in elfcct, it would be in the |>|ea>iir>' of one party at what peri'id the suit sliouM be dctermiin-d. The rule may sniiirtinii's operate with hardship, but general ciiiivt- nience reijuircs it." The courts in this country have gcin'r- ally adopted the same rule as well to >ali's of personal, as to sales of real, propeity. •"'I'l' Murray i'. liylburn, 2 Johns. Cli. 141 ; Park V. .lohiison, 11 Wend. 4");i ; Kellnu't,' V. Fancher, 23 Wis. 1 ; McCutiliemi r. Miller, 31 Miss. 83 ; Scudder r. Van .\ni- bulbil, Ftlw. Ch. 30; Maddens c. Spulii-t, 20 .I.dins. .'173 ; Mcllary v. Files. 4 .Imi'S (N. C.) Ki|, 234; Fletcher r. Feirell. !' l>aua (Ky.), 377 ; Lcitch r. Wells, ii Barb. 650. In tho County of Wamni'. Marcy, »7 U. S. 101), tlie court say : " Whilst the doctrine of constnn tive nn- tice arising from lis pendeni>, thoni,'li often severe in its application, is, on the wlioli', a wholesome and necessary one, all'eiiing the authoritative admiiiistratioucfjustii'i'; PAIIT v.] CORPORATIONS. 383 In a suit for the transfer of stock claimed to bo wron^rly stand- ing ill tlic name of another, not only that other perbun, but the the i'Xi'i'|itioii (of sftli'Mdf ii<-){otiuhli> |iu|«'r til its a|i|ilii'iiti(>ii iH ilciiiiiii(lc(l Ity otlicr I'liiisiiii'iiitioiis t>i|iiiilly iiM|Nii'tant, iiHiitlVi't- jiijj till' In-f o|M'riitioiis of (■oniiiifi'cc, and tli.il I'liiilidi'iK't' ill tliu iiiNtiiiiiii-nts by whi.li it in I'airinl on, whicli Im .ho nccfs- Miiv ill a liii.>iiit M'l' Lciti'h v> Wcll.s, 48 N. Y. fiSti : Si. III.' V. Klliott, 11 oliio St. '2^2; Ki.lli I r. Khlcr, IS I'li. St. ;i«8 ; Diiniiit V. huva t oimtv, 1 Woolw. ((l» ; Winston r. W.stli Mt. 'h Ala. 7»>0 ; National Hunk of WiisliiiiLiioii r. Tixas, 20 Wall. 7'.; ; Oi.'dtt r. Sii|iiTvisoix, l(i Wall. «i78 ; Minis V. Wist, ;\H lia. IS. In Diaiiiontl v. hiwivim- (bounty, U7 i'li. St. ;J.'»3, it whh licld tli:it till' piii'i'lia.st'i' ol county IkiihIs ) Hiiit ami tln'ir nxHigtiH nrr con'onii'd, Ity till* suit so |M'nilin^. If it witc not so, us lias ol'ti'n Ihtii statcil, tlic lit ignition Moiilil III! intcrniiiialili*. Wlicn wi- ronsitii'i- what lis /M'litlnis is, we ut oner must SIT how con- cliisivf this is. LokI Cranuiii'tli, in \M- laniv V. Sal.iiii', 1 He (i. & .1. Titlil. .178, m'cII i«i>> It is ai'i'ily I'oiii'it to spea k of /i.«;»')i held to iipl'ly to rliDsis in actiim (ill that case, it liond and niort<;ii;{e), as- si;,'iicil l>y one of the parties funili'iiti' lite, an iiii|»iiiaiit distinction was taken liy till' ciiiiit as to the ell'ect of the doctrine, ill till' sales of pcr.soiial property, thus : "II \V. hull held a mimU-r of iniMtjiiifjes, mill other securities, in trust, when the suit was coiiiliienced, it eaniiot he pre- ti'inli'd that he nii;;iit Hafcly defeat the oliject of the suit, and elude the justice of llic court, hy sclliii}; these securities. If lie piHscsscd cash, as the proceeds of the trii.-.! estate, or Iie),'otiahle paper not due, or jierliaps movahle |H'rsoiial prujierty, Hiiih as horses, cattle, f;raiii, in-., I am not pii'parcd to say thi' rule is to he car- ried so fir as to ullV'Ct such sales. The srtlety of commercial dealing would reipiire A limitation of the rule ; hut bonds and niiirl},Mi.'cs are not the subject of ordinary coimiieive." Ic is, lis will hp. seen from what we hnvc stated in the forej^oinj,', now well settled that the sale of nc<;otialile paper is an exception to the rule, as it is an ex- ception to most of the rules relatiii;^ to sales, \Vc can see no good ground, how- ever, \\\\\ till- rule should not as wi" apply to iH'i'siuial property as to real estate, ir A. and It. are'iii litigation with refcieiice to either real or personal property, and, iicnding the suit, one of tlieni siimild sell the subject of the suit, that should not nlfect the rightii of the other party to the suit to have, as bo- twi'cii themselves, and nil parties deriving interest under tlieni, the question of title disposed uf, 80 far as tho parties to the estate, the necessities of inankind rei|uir« that the decision of the court ill the suit shall )m' binding, not only on the litigant parties, but u/.tn on tfin.ir irlio ilirivf tdle iimlir l/uin by uliiniition.i niai/f iifmliiifi thf suit, whetlicr such alienees had or had not notice of the pending proceedings. If this were not so. tli< ihl I le no icr- tainty that the litigation would ever come to an end. A mortgage or sale made Im'- fori- liiial decree to a person who had no notice uf th(^ pending procei'dings woidd always render a new suit necessary, and .so iiitciiiiinable litigatinii might Ini the consei|ueiice." This is ijuitc as ap]ilicable to the sale of pcrsoiiallx, pending litiga tmn, as it is to th< e sale ot realtv I t»f course the iirinciiile onlv applies to a title pp derived fiiiiii a party to the litigation, and not to title or claim of title dfhitrs the litigants. The principle simply relates to niattt'l's that are rev Jiiiliriitu, whether the silliject 1m' realty or pefhUiiilty. See Uob- iiison's Case, r> Co. ;i'J, where a plaiiititr was defeated who chiinied as administrator jh iiiliiitf lilr, and yet was held, notwith- standing the judgment, to Ih- able to main- tain an action as executor. The doctrine of ("uliii'iipcr r. Aston, 2 eh. fas. ILI, I'Jl.aiid Snricll v. Carpen- ter, 2 r. Wins. 48'J, is, that, iicnding n litigation, the defendant cannot by alieiia- 11 tion allcct the rights of the idaiiititf to the propel ty in disiiute, and the same prin- ciple is applicalde against u |)hiintiti', so an to |)i event him from alienating to the t>.cjudice of the defendant, where, from the nature of the suit, he may have in the result a right against the plaiiitilf; as, on a bill by iidevi.see to establish a will against an heir, if in the result the devise is de- clared void, the heir is not to be preju- diced by the alienation of the devisee ] -M if i! 1 m \ i \f lids ■ \\:\ > I ! Il 111 > I : i ■li I i ■ I tl; ■,%. <^;a ^^:\%^.% IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ''"IIIIIM IIIIM ^y IM |||||22 1.6 ij 1.4 VI A? 'm ;> * '/ W W /A Photographic Sciences Corporation 23 WEST MMN STREET WEr-TiR,N.Y. 14580 (716) 872-4503 ^^ C/j >> 884 COMMENTARIES ON SALES. [book II. company also must be made parties to the suit. No relief what. ever can be granted unless it is found to be the duty of the (plaintiff) pendente lite. See Garth v. Ward, 2 Atk. 174 ; Worsley i^. The Earl of Scarborough, 3 Atk. 3&2. In these ca.«e3 it is .said that lis pendens i.'i implied notice to all the world. Lord Cranworth, comiiicntinf; on this, says : "I confess I think that is not a per- fectly correct mode of stating the doc- trine. What ought to be said is, that, pendente lite, ncit/ier party to th£ litigation call alienate the property in dispute so as to affect his opponent. The doctrine is not peculiar to courts of equity. In the old real actions the judgment bound the lands, notwithstanding any alienation by the defendant pendente lite." Bellamy v. Sabine, 1 De G. & J. 580. So, in "the same case, Lord Justice Turner said : "The doctrine of lis pendens is not, as I conceive, founded upon any of the pecu- liar tenets of a court of equity as to im- plied or constructive notice. It is, as I think, a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this foundation, — that it would plaiidy be impossible that any action or suit could be brought to a sue- cessful termination if alienations pendente lite were fiermitted to prevail. The plain- tiff would 1)6 liable in every case to be defeated by the defendant's alienating be- fore the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding. This doctrine belongs to courts of law no less than to courts of equity (2d Co. Inst. 375). No case, so far as I am aware, has yet oc- curred in which the doctrine has been applied so as to affect the title of the alienee of a defendant by virtue of a claim not interfering with the title of the plain- tiif in the pending litigation. What is said in the cases of Worsley v. Lord Scar- borough, 3 Atk. 392, and Mead v. Lord Orrery, 3 Atk. 243, and also in Metcalfe V. Pulvertoft, 2 Ves. & B. 200, seems to me to tend the other wav." Bellamy v, Sabin?, 1 De G. & J. 584. All this is applicable, as expressed, to judgments in law and decjrees in eijuity, and, in jjrin- ciple, equally to persoinilty ns to realty. Precisely the same evils would result from a violation of the principle in the one case as in tlie other. Lord Romilly said, in Berry v. Gibbons, 28 L. T. N. s. 5, in deci(ling that lis pendens applies to per- sonalty, "The whole doctrine of lis pen- dens would be cut away if, when a suit was registered, a person could say he did not know of it, or if the doctrine only ap- plied to real estate. The old rule, that when a bill was filed every one was bound to take notice of it, was a nuisanoe ; but the provisions of 2 & 3 Vic. c. 11, §7 with regard to a Hi pendens, were reason- able, and any person lending inoiiey is bound to see that the property on which he lends it is not affected by any suit so registered." By the above statute'iii Eng- land, and by statute in many of the States in this country, registration of the suit is now necessary to cause the* doctrine of lis pendens to api)ly. The decision in Berry v. Gibbons, 28 L. T. N. s. 5, was, with reference to per- sonalty, — a picture. On appeal, it was contended that the doctrine of lis priidem does not apply to chattels. The decision of Lord Romilly was reversed (Bcriy v. Gibbons, 29 L. T. N. s. 88 ; L. 1!. 8 Ch. 747); but not on the ground that the Joe- trine does not a])ply to personalty, but that the decree in the previous suit did not affect the title to the picture, tlie de- cree being merely that the defendant in that suit should administer, and did not take the sale of the [(ersonulty out of her hands. Numerous authorities were cited to show that Lord Romilly's decision as to the applicability of a lis pendens to per- sonalty was wrong; but none of the cases cited, nor any otlier English cases, as far as we are aware, sustain such a view; nor did the court question the correctness on that point of Lord Romilly's statement of the law. We think the law is correctly stated by the Mississii)pi High Court of 'Errors and Appeals, in McCutclien v. Miller, 31 Miss. 60, 83, thus: "The gen- eral rule is that a purchaser, paid'-ntc lik, takes the i)roperty, subject to the rislits of the complainant or phiintiff, as settled by the final decree or judgment of the court; for otherwise there could never be an end to litigation. The rule had its origin in con'. ;■ iversies touching real es- tate; but it may be conceded that at this day it applies with etpial force to contro- versies in regard to personal property; and it is only by analogy to the law that it is applicable to proceedings in courts of equity. Where the suit is brouijlit to recover property, and tlie party is suc- cessful, the rule is one of almost uiiiversal application :" the purchaser pendrnic /'■ takes, subject to the righlr, of the plain- tiff, as settled by the judgment of the court. Nor can the ])urehaser in such case complain of the harshness of the rule, since the plaintiff, even if driven to an original action, could recover upon the strength of his title to the property, as settled by the judgment. The pur- PART v.] CORPORATIONS. 385 Glibbous, 28 'lice to per- pi'iil, it was ;' lis prndens The deuision ;d (Berry v. L. H. 8 Ch, that the Joc- ■souiilty, Ijut iou3 suit ilid ture, the de- det'entliuit in anil tlid not ,ty out of her ies were i:ited 's decision as endcns to per- 3 of tlie cases I ciises, as far h a view; nor jovrectiiess on statement of is correctly company to transfer the stock, and as to that controversy, the company is an indispensable party.^ The stockholders of a Rhode Island corporation, unable to meet its liabilities, were individually liable for the debts of the corpo- ration. C, one of the stockholders, transferred to the plaintiffs bonds of the company held by him, to meet debts due by him to the plaintiffs. On C, becoming insolvent, his assignee disputed the title of the plaintiffs to the bonds, on the ground that their trans- fer was a fraudulent preference. The dispute was settled between them, the plaintiffs agreeing to indemnify the assignee against any loss as a stockholder of the corporation. In an action by the plaintiffs to enforce the individual liability of the other stockhold- ers, it was held that the plaintiffs did not by this contract agree to become stockholders of the corporation, nor to indemnify C. against his individual liability as a stockholder. The contract cliasor from the defendant, pending the snit, acquires only such title as the de- fendant can convey ; and the judgment against the defendant is, by operation of law, a judgment, so far as it relates to the recovery of the property, against all who ucqitln his title or possession of the thing IHHilln;! the litiijation. This rule, whether it operates harshly in some cases or not, is nevertheless one of necessity, and as such must be applied in all cases wlicrc a pnrtij is adjudijcd to be the rightful owner of properly ; and where another, pendiitg the conlruvcrsy, comes into possession of it nmlrr the defendant to t/ie suit." We almost wonder how there ever could have been a doubt, as expressed by Chan- cellor Kent in Murray i'. Lylburn, 2 Johns. Ch. 441, 444, or a contention, as made by counsel in Berry i'. Gibbons, 29 L. T. N. s. 88 ; L. 1!. 8 ( 'h. 747, on the question. The doctrine of lis pendens is, in effect, nothing more tiiiin ati applieation of the unques- tioned doctrine of res judicata, which is palpalily as iqiplieable to adjudicated ques- tions connected with personalty as with real estate. The doctrine of res judicata extcnd.s io all matters of fact litigated be- tween the parties and adjudicated upon Ly a court of conij)etent jurisdiction ; the parties and all persons claiming in the same ri<;lit are concluded or estopped by the results of the litigation, and cannot a,s,'ain dispute the same facts against the same jiarties, or those claiming under them, See Hoilenu v. Rutlin, 2 Kx. 6t)5, 681; Synjons v. Uees, 1 Ex. Div. 410. " When there is res judicata the original cause of action is gone, and can only be restored by getting rid of the res judi- (ttln." Per Lord Selborne, in Lockyer «. Ferryman, 2 App. Cas. 528. And per Lord Blackburn; "When a competent tribu- TOL. I. 25 nal, having had a case before them, have given a final judgment, it is res judicata." Ibid. Lis pendens is simply an apjdica- tion of this doctrine. The case of Murray V. Lylburn, 2 Johns. Ch. 441, was itself a ease of a chose in action, to which it was held the rule applied. The same doctrine was held in Diamond v. Lawrence County, 37 Pa. St. 353; and there is, in principle, no more distinction between the ap)dica- tion of lis pendens to other iMTsonalty than to choses in action ; and, unquestion- ably, there is no more doubt as to the application of lis pendens to either than there is as to the application to either of the principle of res judicata; and, we think, the application of them both is beyond (piestion. The simple principle is that, as a general rule, the seller of per- sonalty can give no better title than ho posses.ses, which is the ba«is of the doc- trine of lis pendens, and is as ajiplicable to personalty as to realty. Sci^ fui'ther. Park V. Johnson, 11 AVend, 453; Kellogg v. Faneher, 23 Wis. 1; Sciudder v. Van Am- burgli, Edw. Ch. 30; Haddons v. Spaders, 20 Jolr.s. 573; Mclinrv «'. Fries, 4 Jones (N. C), p:q. 234; Fletcher v. Ferrell, 9 Dana (Ky.). 377; Leitch v. Wells, 48 Harb. C50; Grillith v. Gritfith, 1 Ilolfman, 153; Jackson v. Ketchum, 8 Johns. 479; Harris v. Carter's Adnn., 3 Stew. 233 ; Orwiggs I'. Myers, 3 iiibb, 279; Jackson V. Andrews, 7 Wend. 152; Lodge v. Sini- onton, 2 Pa. 439; Boiling v. Carter, 9 Ala. 921; Chandron v. Magee, 8 Ala. 570; Green v. White, 7 Black f. 242 ; Walker I'. Butz, 1 Yeates, 574. ' St. Louis & San Francisco Rv. Co. v, Wilson, 114 U. S. 60; Central Ry. Co. V. Mills, 113 U. S. 249 ; Thayer «;. Life Assoc, 112 U. S. 717. Ill HI ■i^ 386 COMMENTARIES ON SALES. [book II. i^'IflB # was made for the benefit of the assignee, by which he took an in- demnity for himself and the bankrupt estate. And as the assignee was not liable as a stockholder,* the plaintiffs by their contract of indemnity assumed no liability, and held the bonds unfettered by any equities or conditions, and retained their right to enforce the in- dividual liability of tiie stockholders for the payment of the boiids.^ Statutes icquiring water companies, gas companies, and other companies of like character, to supply their customers at prices to be fixed by the municipal authorities of the locality, are within the scope of legislative power, unless prohibited by constitutional limitations or valid contract obligations. Wiiethcr expedient or not, is a question for the legislature, not the courts.^ Bonds were issued by a railway company in the Dominion of Can- ada. By an Act of Parliament there, it was enacted that new bonds were to be exchanged for the old ones ; an arrangement to that effect having been previously assented to by a large majority of the stockholders of the compan , and of the bondholders. Tiie United States Supreme Court held : 1. That as there was no con- stitutional prohibition in Canada against the passing of laws impair- ing the obligation of contracts, and as the Parliament there had exclusive legislative authority over the corporation and the gen- eral subjects of bankruptcy and insolvency in that jurisdiction, that, therefore, the act was binding there. 2. That parties in this country who were holders of some of the original bonds, having bought them with notice, in legal effect, that they were entering into contract relations with a foreign corporation created for a public purpose, and carrying on its business within a foreign jnr- isdiction, took the bonds subject to the principle that whatever disabilities were placed upon the corporation at home, it retained abroad, and whatever legislative control it was subjected to at home must be recognized and submitted to by those who dealt 1 South Staffordshire Rj'. Co. v. Burn- side, 5 Ex. 129 ; Furdoonjee's Case, 3 Ch. Div. 2(J8 ; £x parte Davis, 3 Ch. Div. 463 ; Streeter v. Sumner, 31 N. H. 542 ; Aniory v. Lawrence, 3 Clitf. 523 ; Hugely V. Robinson, 19 Ala. 404. * American File Co. v. Garrett, 110 U. S. 288. As purchasers for value, they were entitled to all the rights of bond fide holders for value, among which was the right to enforce payment from the stock- holders of the company. Swift v. Tyson, 16 Pet. 1 ; Gates v. Natioual Bank, 100 U. 8. 239 ; Railroad Co. v. National Bank, 102 U. S. 14. * Spring Valley Waterworks v. Schot- tler, 110 IJ. S. 347, 353. The question was settled by what was decided in Munn V. Illinois, 94 U. S. 113, that it is within the power of the government to regulate the prices at which water shall be sold by one who enjoys a vir- tual monopoly of the sale, and that such regulations do not deprive a person ot his property without due process of law. Where, by the constitution and the le- gislation under it, municipal authorities have been created a special trihiinal to regulate such matters, their duties are judicial in their nature, and they are hound in morals and in law to exercise an hone-st judgment as to all such mat- ters submitted for their official (iotcnnin- ation. Spring Valley Water Works v. Shottler, 110 U. S. 354. PART v.] CORPORATIONS. 887 with it elsewhere ; and that, therefore, the Canadian Act of Par- liament relating to the bonds was binding on them. 3. That the Canadian Act of Parliament, in dealing with an embarrassed and InsoKcnt railway company, and in providing for its reorgan- ization in the interest of all concerned, was not passing an act which, if passed in this country, would have been in conflict with tiie Constitution of the United States, which, although prohibiting States from passing laws impairing Iho obligation of contracts, allows Congress "to establish uniform laws on the subject of bankruptcy throughout the United States ; " the Canadian act being in entire harmony with the spirit of bankrupt laws, the binding force of which, upon tliose who are subject to the juris- diction, being recognized by ?.ll civilized nations.^ Where an individual liability attaches to a shareholder in a company, that liability continues to attach itself to him until, without fraud as against the creditors of the company, for whose protection the liability is imposed, he relieves himself from it. That he can do by a bond fide transfer of the stock. But where the transferor, possessed of information showing that there is good ground to apprehend the failure of the bank, colludes and combines with an irresponsible transferee, with the design of substituting the latter in his place, an*! of thus leav- ing no one with any ability to respond for the individual liability imposed, in respect of the shares of stock transferred, the trans- action will be decreed to be a fraud on the creditors, and he will be held to the same liability to the creditors as before the trans- fer. He will be still considered as a shareholder quoad the credit- ors, although he may be able to show that there was a full or a partial consideration for the transfer, as between himself and the transferee.^ ' Canada Southern Railway Company f. GebhanI, 109 U. S. 527. See Cam- brian Hallways Company's Scheme, L. \l 'A Cli. 294, per Lord Cairns ; London Financial Association v. Wrexliam, &c. R. H. Co., L. R. 18 E(i. .566 ; Bank of Aiig\ista r. Karle, 13 I'et. 588 ; Railroad P. Ivwiitz, 104 U. S. 12 ; Relf v. Run- ilfl, 103 U. S. 226 ; Paul v. Virginia, 8 Wall. 1G8. ■^ liow.lcn V. Johnson, 107 U. S. 251. The question in this case arose under the Hanking Act of 1864, c. 106, which declares that every person becoming a shareholdiT by transfer succeeds to all the liabilities of the prior holder. But it was held in National Bank v. Case, 99 U. S. 628, that a transfer on the books of the bank is not in all coses enough to extin- guish liability. The court, in that case, declared, as one limit of the right to trans- fer, that the transfer must be complete and entire, or one really transferring the ownership as between the parties to it. But there is nothing in the .statute af- hrniing, as another limit, th.at the transfer must not bo to a person known to be irre- sponsible, and collusively made, with the intent of escaiiing liability and defeating the rights given by statute to creditors. In such case, the assignee may be liable as a shareholder, succeeding to the liabili- ties of the assignor ; but that is no reason why the assignor should not, at the elec- tion of creditor.s, .still bo treated as a shareholder ; he having, to escape lia- bility, peri)etrated a fraud on the statute. This is the view enforced by the Chief Justice in Davis v. Stevens, 17 Blatchf. 259 ; liowden v. Johnson, 107 U. S. 251, 261. 'VI V^ I tit I il, ill i 1 i , ■■ I, ' : I 388 COMMENTARIES ON SALES. [book n. A subscriber to the stock of a company is not liable at law to creditors of the company, for his unpaid subscription. The sub- scription is part of the assets of the company, so far as creditors are concerned. The stockholder is liable to the extent that the subscription represented by his stock requires him to contribute to the corporate funds, and when sued for the money he owes, it must be in a way to put what he pays, directly or indirectly, into the treasury of the corporation for distribution according to law. No one creditor can assume that he alone is entitled to what any stockholder owes, and sije at law so as to appropriate it exclusively to himself.^ Coupons detached from bonds which have not matured, tbough the coupons are overdue, have not thereby lost the quality of negotiability by the lav/- merchant ;2 and being made payable to bearer, they are payable to anybody, and the holder is not al'lectcd by the disability of the first receiver thereof to suc.^ Section 201 of the Revised Statutes of the United States prohib- its banks making any loan or discount on the security of their own stock, but no penalty is imposed for contravening the provisions of the act. The plaintiff, having borrowed money from a bank on the security of its stock, brought an action after default by him and sale of the stock by the bank. The United States Supreme Court held, reversing the decision of the Circuit Court, that, as the bank and borrower were equally the subjects of legal censure they would be left by the courts where they had placed themselves; that, after the contract had been executed, and the security no lon- ger subsisted in the hands of the bank, no one but the government could urge a prohibition against the legality of the transaction.* In Ottawa v. National Bank," it was contended that an assign- ment or indorsement of the bonds by the payee named in them is, by the laws of Illinois, a prerequisite to pass the legal title in the bonds, and to authorize a suit by the holder in his own name, al- though they are also made payable to bearer. But the United States Supreme Court held that in Illinois as in New York," the 1 Patterson v. Lynde, 106 U. S. 519 ; Sawyer v. Hoag, 17 Wall, 610 ; Ladd «. Cartwiight, 7 Oreg. 329. * Thompson u. Penine, 106 U. S. 589 j Cromwell v. County of Sac, 96 U. S. 51. 8 Thompson v. Perriiie, supra ; Bank of Kentucky v. Wister, 2 Pet. 318, 326 ; Thomson v. Lee County, 3 Wall. 327 ; Bushnell ti. Kennedy, 9 Wall. 387 ; City of Lexington v. Hutlcr, 14 Wall. 282 ; Cooper V. Town of Thompson, 13 Blatchf. 434 ; Coe v. Cayuga Lake R. R. Co., 19 Blatchf. 522. * National Bank of Xenia v. Stewart, 107 U. S. 676. There i^, also another view on which the holding in the caso ciin be sustained. The borrower autlimizi'd the bank, in a certain contingency, to sell his shares. This was not, in itsolf, uiilavifiil. The shares being sold pursuant to tiic au- thority, the proceeds would be in tlic l>ank as the borrower's property, and tin' money loaned would bo an offset to the iirofmU. Ibid. p. 678. 5 105 U. S. 342. ' Brush V. Admstrs. of llcpvcs, 3 Johns. 439 ; Dean v. Hall, 17 Wend. "'4. [book II. jle at law to 1. The sub- as creditors cut that the to contribute f he owes, it directly, into :'ding to law. to what ar.y it exclusively fcured, though he quality of le payable to is not affected States jn-ohib- ,y of their own the provisions •om a hank on efault by him tatcs Su[)reme ,rt, that, as tiie I censure they id themselves ; 3curity no Ion- ic government Tansaction.'' lat an assign- icd in thorn is, ^al title ill the own name, al- ut the United cw Yoi'l<,Hhe also auothi-r view 11 the ciisfi ''•"' 1^"' er lUitlioi-izt'J the ngeiicy, H) ••^I'H '''* in itself, unliiv'ful' mrsniiiit to tin' au- uld bn ill the IwnK •ty, and tlu' iiniiiey let to the prdfeeds. rs. of Ui'ovcs, 3 all,17Woml,''l4, PART v.] CORPORATIONS. 389 V' holder of negotiable securities payable to a person named, or bearer, whether they are indorsed or not by such payee, acquires, by delivery merely, the legal title, and the consequent right to sue thereon in his own name.^ Parties who have purchased stock, have accepted it, and re- ceived interest on it for years, are estopped from questioning the validity of the transaction, and of repudiating their character of stockholders in the company whose stock they thus hold.^ The following is a statutory provision of the State of Pennsyl- vania, regulating banks : — " The stock of the bank shall be assignable and transferable on the books of the corporation only, and in the presence of the president or cashier, in such manner as the by-laws shall ordain ; but no stockholder indebted to the bank for a debt actually due and unpaid, shall be authorized to make a transfer or receive a dividend until such debt is discharged, or security to the satisfac- tion of the directors given for the same." In National Bank v. Watsontown Bank,^ it was held that while this gave the bank a lien on the stock for the indebtedness of the stockholder, which would follov/ the stock in the hands of an as- signee, yet the clause docs not prevent the bank from waiving its right, nor prevent the cashier from acting fo:' the directors by virtue of an express or implied authority. In that, as in other matters of ordinary business within the general scope of his offi- cial duty, he is their appropriate representative.* 1 Jolinson V. County of Stark, 24 111. 75; Roberts i-. Holies, 101 U. S. 119. The. cases of Garvin o. WiswcU, 33 HI. 21 fi, and Turner v. Peoria, &c. II. R. Co. 95 111. 134, are distinguishable, be- cause, ill these cases, the instruments sued on weie not negotiable, in the sense of the law nieieliant, so as to exclude defences or evidence of invalidity, even when held by A 1)0:1(1 fide purchaser. See Wall v. County of Mi)moe, 103 U. S. 74. In Johnson v. County of Stark, 24 111. 75, Walker, J., said, ill reference to municipal bonds and coupons issued to railroad companies : " It seems to be the wdl-settled doctrine that state, county, city, and other bonds and securities of this character are negotiable by delivery only, without indorsement, in the same manner as bank-bills, especially when they are payable to bearer." In that case, the coupon was not payable either to order or to bearer, but the prom- ise was to pay the amount named " on this coupon." The court ruled that the holder of the coiipon could sue and recover in his own name. See New Hope Delaware Bridge Co. V. Percy, 11 111. 467 ; Super- visors of Mercer County v. Hubbard, 45 111. 139 ; Town of Eagle v. Kohn, 84 111. 292. 2 Branch v. Jesup, 106 U. S. 468. 8 105 U. S. 217. « So, in Case v. Bank, 100 U. S. 446, it was held, that the cashier, who repre- sented the bank in the act of transfer, was authorized to bind the bank, in consum- mating the transaction, by virtue of his office, in the absence of any by-law, ac- cording to the usage of t:he business and the practice of the particular bank, pre- sumed to be known to and approved by the directors. See also, Wild v. Bank, 3 Mason, 505 ; Lloyd v. Bank, 15 Pa. 172 ; Bank v. Warren, 7 Hill, 91 ; Bank v. Steward, 37 Me. 519, 522. It may be fairly presumed, that the principal officer or clerk in attendance at tlie bank during the usual hours of business, is authorized to permit the transfer of shares when the case presented is one proper to be allowed. Bank v. Kortright, 22 Wend. 348, 350. A special assumpsit will lie, in the name of the party injured by the refusal, against a corporation for improperly refusing to make a transfer of shares of capital stock. Kortright v. Bank, 20 Wend. 91. : \i A '•■. m I I I ' '■"'•''I £ , if ^- 890 COMMENTABIES ON RALES. [book II. Under the above statute, A . borrowed money of B., to whom lie assigned and delivered his certificate of stock as collateral secur- ity, with authority to sell in case of default in payment. On A.'s default, B. sent the certificate to the cashier of the banii, who made the requisite entries on the stock ledger which he kept, it being the only book except the book of certilicates showing the truusfer of stock, and it was his practice to keep the account of such transfers without consulting the directors in each case. The lat- ter had adopted no by-law on the subject. On B.'s instructiiii; tlie cashier to sell the stock, the latter informed him that it would not be necessary to send him a certificate, but to forward a power of attorney, which B. did. Part of the stock was sold ; the proceeds were remitted, and the proper entries were made on the stock ledger. A. subsequently became insolvent. Ho was indebted to the bank, and, on the directors refusing to approve the transfer, B. brought suit to compel the issue to him of the customary cer- tificate of stock. It was held, 1. That, as between A. and B.,tlie titld to the stock passed by A.'s delivery of the certificate with the accompanying power of attorney. 2. That the acts of the cashier were binding on the bank, and the transfer by him, made on the stock ledger, vested in B. a complete and unincumbered title to the stock, and a right to the usual certificate as evidence of his ownership. 3. That had B. acquired merely an equity, based on his contract, the legal right of the bank to assert its lien was lost by its own laches, and the enforcement of it would, under the cir- cumstances, operate as a fraud.^ In Scovill V. Thayer,2 the following principles were laid down : — First. As a general rule, corporations can have and exercise only such powers as are expressly conferred on them by the act of incorporation, and such implied powers as are necessary toll- able them to perform their prescribed duties.^ Second. A corporation has no implied power to change the amount of its capital as prescribed in its charter, and all attempts to do so are void.* The attempt to increase the stock of the com- pany beyond the limit fixed by its charter being ultra vires, the 1 National Bank v. Watsontown Bank, 105 U. S. 217. The court held that the clause which denies to the stockholder the privilege of making a transfer of his stock, while a debtor, until his debt is discharged or secured to the satisfaction of the directors, does not forbid the bank to waive its rights, or prevent the cnsliier from acting for the directors, by virtue of an express oritnjjlied authority. In this, as in other matters of ordinary busintiss, within the general scope of his otBcial duty, he is their appropriate representa- tive. Ibid, at p. 221. 2 105 U. S. 143. 8 Fertilizing Company r. Hvdi^ VA 97 U. S. 6.59 ; Salomons v. 'l-iiing, 1'2 Beav. 339 ; Eastern Counties Railw uy i'. Hawkes, 5 H. L. Gas. 331. ♦ Mechanics' Bank v. New York & N. H. R. R. Co., 13 N. Y. 599 ; New York & N. H. 11. R. Co. v. Soliuylci', 34 N. Y. 30; Railway Company v. Alleiton, 18 Wall. 233 ; Stace & Worth's Cm, L. R. 4 Oh. Ap. 682, n. PART v.] CORPORATIONS. 391 increased stock itself is therefore void. It confers on the holders no riglits, and subjects them to no liabilities. The contract to pay for spurious shares is without consideration, and cannot bo enforced. Third. Where a corporation is absolutely without power to in- crease its stock above a certain limit, the acquiescence of the siiareholder can neither give it validity, nor bind him or the cor- poration.* Tliercfore, where one has attended by proxy the mect- iiijrs at which the increase of the stock beyond the limit imposed by law was voted for, and having received certificates for the stock thus voted for, and after such increase the company, by its agents, has held itself out as possessing a capital of 8400,000, and iuvitoH and obtained credit on the faith of such representations, he is not estopped from setting up the nullity of the unauthorized stock ; the case differing from that where the corporation has the power to issue stock, and where the stockholders have been held estopped from setting up informalities in such issue. ^ Fourtii. As it is a general rule that a holder of claims against an insolvent corporation cannot set them off against his liability tor an assessment on his stock in the corporation, in a suit by an assignee in bankruptcy ,** therefore one who has paid calls on unau- thorized stock cannot set off such i)ayments against calls on his authorized stock. Fifth. An agreement between a company and its stockholders that the latter shall not be called upon to pay any further assess- ments on their stock, is valid as between themselves, and in Eng- land it has been held in recent cases that not only is the company, but its creditors also are bound by such a contract.* But in this country, it is held that such a contract, though binding on the company, is a fraud in law on its creditors, which they can set aside, — that when their rights intervene, and their claims are to be satisfied, the stockholders can be required to pay their stock in full;S the reason being that the stock subscribed is considered in equity a trust fund for the payment of creditors.'' Sixth. When stock is subscribed to be paid upon call of the company, and the company neglects or refuses to make the call, as a court of equity will do what it is the duty of the company to ' Latliiop V. Kiieeland, 46 Barb. 432 ; Macklov'a Case, 1 Ch. D. 247 ; Zabri-skie v. Cli'vclutwl, &c. K. R. Co. 23 How. 381. •^ U|,toii V. Trihikock, 91 U. S. 45 ; (ImW) V. Ui)ton, 95 U. S. 665 ; Pullman I'. Upton, 96 U. S. 328. ' Sawyer v. Hoag, 17 Wall. 610 ; SaDRor V. Upton, 91 U. S. 56 ; Scaminon V. Kimball, 92 U. S. 362 ; County of Mor- gau V. Allen, 103 U. S. 498. * Waterhouse v, Jatniuson, L. R. 2 H. L. (Sc. ) 29 ; Currie's Case, 3 Do O. J. &S. 367; Carlins;, Hespeler, and WnUh's Casfis, 1 Ch. 1). 115. 6 Sawyer v. Hoas;, 17 Wall. 610 ; New Albany v. Btirki', U Wall. 96 ; Burke v. Smith, 16 Wall. 390. fi Wood V. Dummer, 3 Ma.ss. 308 ; Mumma v. Potomac Co., 8 Pet. 2S1 ; Oi^ilvie V. Knox Insurance Co., 22 How. 387; Sawyer v. Hoag, supra. ! 1 ; f!f i I I \i I i m I ■ 1 U U ;„ Ml .J i: '■ I' i; 892 COMMENTARIES ON SALES. [book II. i ' do, the court may itself make the call, if tho interests of the cred- itors refjuiro it.^ But, under such circumstances, before there is any oljligation upon the stockholder to pay without an assessment and call by the company, there must bo some order of a court of competent jurisdiction, or, at the vci'y least, some authorized de- mand upon him for payment. And the statute of limitations does not begin to run in his favor until such order or demand.^ The defendant was the owner of eightj-five shares of fully paid- up stock in the National Bank of Missouri. On May 10, 1877, he sold his stock to a broker, to whom he delivered his stock cortili- cate, indorsed with a blank power of attorney, authorizing the attorney, whose name might be subsequently inserted by tlie broker, or any other party becoming the owner of tho certilicute, to transfer it on the books of the bank according to its regula- tions. He was paid by the broker, who withhe'd from the doiend- ant the name of the purchaser. The broker was representing the president of the bank, one of the bookkeepers of which filled iip the power of attorney with his own name, by direction of the broker, and transferred the stock on the stock register of the baniv in tlie president's name, as trustee. By the regulations of the bank, stock was only transferable in person or by attorney. The president gave his own check to the broker for the stock, and the check, on presentation, was paid out of the president's own funds. The president was in the habit of dealing in the stock, and, on May 29, he voted on the stock bought from the defendant. Tlie stock in the other bank books was entered as bought for the bank, and, by the president's directions, he was credited with the pur- chase-money, which was charged to the bank. Neither the de- fendant nor the broker had any knowledge of this, but the book- keeper, whose name was filled in the power of attorney, had such knowledge. The purchase on the part of the bank was illegal. The bank having failed on June 20, the receiver brought an action to set aside the purchase of the stock, and to have the defendant declared a stockliolder, and ordered to repay the money which he had received, on the ground that the knowledge of the attorney who transferred the stock was the knowledge of his principal, the defendant. The court held ^ that the validity of the sale and ii:s completeness had to be determined by the relation which the con- tracting parties at the time openly bore to each other ; that, there 1 Curry v. Woodward, 63 Ala. 371 ; Robinson v. Bank of Darien, 18 Ga. 65 ; Ward r. Griswoldville Manuf. Co., 16 Conn. 593. 2 Van Hook v. Whitlock, 3 Paige, 409 ; Salisbury v. Black's Admstr., 6 Har. & J. 293 ; Sinkler v. Turnpike Co., 3 Pa. 149 ; Walter v. Walter, 1 Whart. 2it2 ; QuigS V. Kittridge, 18 N. H. 137 ; Ninimo i'. Walker, 14 La. An. 581. « Johnston v. Laflin, 103 U. S. 800. PART v.] CORPOHATIONS. 898 being no imputation of fraud, the validity of the sale could not be made to depend upon the accident of the immediate purchaser, or of the party to whom he might transfer the ccrtiiicate, employ- ing, to make the formal transfer, one who was acquainted with the secret interests of others in tlie shares. Of course the result would have been otherwise if the sale had been made by the de- fendant merely to evade his just responsibility as a stockholder. Of to work a fraud upon other stockholders or creditors of tho bank.' The agent of an insurance company applied to the defendant to subscribe for stock. He assented, and executed a bond, acknowl- edging the receipt of ten shares of the stock, in consideration of wliich be bound himself to pay the price of the stock in instalments, twcnty-dve per cent '• upon receipt of stock certificate," and tho balance at later dates. At the time of executing the bond, he paid twenty-live dollars on account of the stock. The defendant's name was entered on the books as a stockholder, and published in their publications as one of the stockholders ; the defendant having no knowledge of the publication. Scm after, in consequence of losses by fire, the comjjany became bankrupt, the defendant hav- ing paid nothing further, and no stock certificate having been delivered to him. In an action by the assignee in bankruptcy, the judges of the Circuit Court were equally divided as to whether the delivery of a stock-certificate was necessary to make the de- fendant liable. The United States Supreme Court held ^ that his receipt for the stock was an acknowledgment, so far as he was concerned, that he had become a stockholder, and, after an accept- ance by the company, his liability was fixed whether any publica- tion was made or not. The publication was only important as a means of showing that his subscription made to an agent had been accepted and ratified by the company. The entries on the book ^ Tlie transfer of shares in the national lianks is not governed by different rules fioni those wliieh are ordinarily applied to the transfer of shares in other corpo- rate bodies. Jolinston v. Laflin, 103 U. S. 804. The entry of tho transaetion on the hooks of the bank where stock is sold, is required, not for the translation of the title, but for the protection of the parties and others dealing with the bank, and to enable it to know who are its stock- holders, entitled to vote at their meetings and receive dividends when declared. It is necessary to protect the seller against subsequent liability as a stockholder, and perhii]is also to jirotect the purchaser against proceedings of the seller's credit- ors. Purchasers and creditors, in the absence of other knowledge, are only bound to look to the books of registry of the bank. But, as between ilie parties to a sale, it is enough that the certificate is delivered with authority to the purchaser, or any one he may name, to transfer it on the books, and the jirice is paid. If a subsequent transfer of the certificate be refused by the bank, it can be compelled at the instance of either of the parties. Bank v. Lanier, 11 Wall. 369; Webster V. Upton, 91 U. S. 65 ; Bank of Utica v. Smalley, 2 Cow. 770 ; Gilbert v. Man- chester Iron Co., 11 Wend. 627 ; Com- mercial Bank of Buffalo v. Kortright, 22 Wend. 348 ; Sargeant v. Franklin Ins. Co 8 Pick. 90. 2 Hawley'c. Upton, 102 U. S. 314. '■i m\ V-^ ^ I I , i ! !'-f 894 COMMENTARIES ON SALES. [book II. had the same ciTuct. And although tho company could not have recovered against hira without a tender of the certificate, the as- Hignec, as representing the creditors, had a right to recover from him on his general liability to pay for his stock, which, by lijs subscription, ho agreed he would pay.* Under tho Bank Act of 1804,''* the stockholders are lialjlo to the e.vtcnt of the amount of their stock tliciein, at tho par value thereof, in addition to the amount invested in such shares, but they are responsible equally and ratably, and not for one an»thcr. Hence, solvent stockholders are not liable for deficiencies caused by the insolvency of other stockholders.'* This rule has been applied under statutes not containing such words as we have italicized.* 1 III delivering judgment tho court say: "It cannot bo doubted that one who has become hound as a subscriber to tho capital stock of a corporation must pay his subscription if required to meet the oblij^ations of the corporation. A cer- tificate in his favor is not necessary to make him a subscriber. All that ne(;d be done, so far as I'reditors are concerned, is that the subscriber shall have bound him- self to become a contributor to the fund wl'.ich tho capital stock of tho corporation represents. If such an obligation exists, tho courts can enforce tho contributiou when reiiuired. After having bound him- self to contribute, he cannot be discharged from tho obligaticn he has assumed until the contribution has actually been made, or tho obligation in some lawful way extinguished." Upton v. Trebilcock, 91 U. S. 45; Webster v. Upton, 91 U. S. 65. This is a very different case from those we have considered previously in this Part (see ante, p. 352 ct scq.), where a party was simply an applicant for shares. In this case there is the express acknowledgment of the receipt of a definite number of shares ; a payment is made on account of them, and a written agreement to pay the balance for tho specified number of shares is signed by the party, and delivered by him to the agent of the company. The court, on these facts, say : "The paper he signed was delivered to the comjjany by the agent who got it. That it was ac- cepted by the company as a subscription [not as an application, maik. AuTH.] is shown conclusively by the fact that his name was entered on the books as a stock- holder, and publication made accordingly. It nuitters not that he had no knowledge of such a publicatio!!. His receipt for the stock was an acknowledgment, as far as he was concerned, tlint he had become a stock- holder, and after an acceptance by the company his liability was fixed, whether any publication was made or not. Tlit publication is only important as u iiiuiiii:! of showing that his subscrintion uimle to an agent liad been accepted and ratitieii by the com]mny. The entries on the books had tiie same effect. The publication only made it more notorious. The ultiiimte fact to be established is, that a subscription had not only been made by Hawlcy, but accepted by the company. ' H: v v. Upton, 102 U. S. 314. The dilUreiiM between this class of cases, where tlii' party subscribes for shares, and binds him.self definitely by his subscription for the specified number, and that where a mere application is made for shares, ns in the other class of cases, is as marked in its legal effect as is the case where A. writes B., " Will you sell me from 500 to 1000 barrels of XX flour at $5 ]ier Imrrel, deliverable on board of ship at your port?" in which there is no contract on the part even of B. (much less of A.) until he eoni- municates a definite reply to A. ; from the case where A. writes B., "Ship ine 1000 barrels of XX flour, at $5 per biirrel, f. o. b., at your port, and draw on ine at sight," in which A. is bound, without any communication, on the ordered flour being so shipped. It was in the failure to notii'e this distinction which led to such strange confusion in the Canadian courts in deal- ing with the case of Nnsmith v. Manning, 5 S. C. of Can. R. 417, which we have examined, supra, p. 357 et scq. 2 Rev. Stats. §§ 5, 151. 8 United States v. Knox, 102 U. S. 422 ; Crease v. Babcock, 10 .Met. 525. ♦ Crease v. Babcock, supra ; .Vttwood V. R. I. Ag. Bank, 1 R. I. 276 ; In re HolUster Bank, 27 N. Y. 393; Adkins v. Thornton, 19 Ga. 325; Robinson v. Lane, lb. 337; Wiswell v. Starr, 48 Me. 40L I'AUT v.] CORPORATIONS. 895 Stock in a bank was pledged to the plaintiffs to secure the pi^y- inent of a note, with power to sell the stock in event of the note not boiiij^ paid. The note not having been paid, the plaintiffs sold the stock, which the casliier of the bank refused to transfer on the ground that the bank had a lien on the stock for the indebtedness of tlio pledgor. The bank having failed, tiio court held that, the bank not having the lien which they claimed, the act of the cash- ier wiiH the act of the bank, and that the plaintiffs had a right to recover against the receivers of the bank.* By statute in Georgia, an unlimited liability was imposed on stocldiolders in banks for the redemption of all bills and notes in proportion to the amount held. In Mills v. Seott,^ it was held that though ordinarily the proceedings to enforce this liability against individuals was in equity, yet as the actual amount of the outstanding bills and notes was known, is well as the proportion of the defendant's stock, which was ouc-twentieth of the whole stock, debt at law would lie against him, as his indebtedness was thus (ixed, and recovery could bo t id against him at law for one- twentieth of the amount of the bills and notes. Suits may be maintained upon unpnid coupons in advance of the maturity of the principal debt, and witliout ])roducing the bonds, and the holder of such coupons is entitled to recover interest thereon from their maturity .^ And, under usual statutes of lim- itations, such as that of Iowa, the right of action runs as to the coupons from their maturity, which is the period at which the riirlit of action on them accrues ; and this rule is not affected bv the fact that the coupons have not been separated from the bonds.* An agreement by one association to pay the bonds of another (Iocs not give the holder of such bonds the riglit to maintain an action in his own name, for the amount of the bonds, there being no privity of contract between the bondholders and the associa- tion which agreed to pay the bonds.^ In National Bank v. Case," the court re-affirmed their holding in Pulhnan v. Upton," that one to whom stock has been trans- ferred in pledge or as collateral security for money loaned, and 1 Case V. Bank, 100 U. S. 446; Minor r. Michanics' Hank of Alexandria, 1 Peters, 46; Wild V. Bank, 3 Mass. 505; Smith v. Northampton Bank, 4 Cusli. 1, 11; Lloyd p.The Wist Branch Bank, 15 Pa. St. 172 : The Bank of Vergennes v. Warren, 7 Hill, yi; Franklin Bank v. Steward, 37 Me. 519, 522 ; The Commercial !?ank of Buiralo V. Kortright, 22 Wend. 348, 350 ; Kortright v. The Commercial Bank of Buffalo, 20 Wend. 91. » 99 U. S. 2,5. ' Commis.sionors of Knox County v. Aspinwall, 21 How. 539; Gelpcke v. City of Dubuque, 1 Wall. 175 ; The City i-. Lamson, 9 Wall. 477; City of Le.\ington V. Butler, 14 Wall. 282 ; Clark v. lowu City, 20 Wall. 583 ; Town of Genoa v. Woodruff, 92 U. S. 502. ♦ Amy V. Dubuque, 98 U. S, 470 ; Clark V. Iowa City, 20 Wall. 583. 6 National Bank v. Grand Lodge, 98 U a. 123. - 99 U. S. 628. » 96 U. S. 228. ai I r. i?!' [' ml t r i I ? ' nil M|! k : It 3. :M' 396 COMMENTARIES ON SALES. [book II. who appears on the books of the corporation as the owner of the stock, is liable as a stockholder for the benefit of creditors ; ^ tlie reasons being, (1) That he is estopped from denying his liability by voluntarily holding himself out to the public as the owner of the stock, and his denial of ownership is inconsistent witli tlie representations he has made. (2) That by taking the legal title he has released the former owner ; and (3) That after having taken the apparent ownership, and thus become entitled to receive divi- dends, vote at elections, and enjoy all the privileges of ownership, it would be inequitable to allow him to refuse the responsibilities of a stockholder. The court further held that the fact of a trans- fer of the stock having been made by the bank when the corpora- tion of which the stock was held was in a failing condition, to a third party, who was bound to i*e-transfer it when required to do so, Avas merely colorable ; made to escape responsibility, and void.'- Bonds were partially prepared for issue by a railway company in Louisiana. They promised to pay .£225 sterling in London, or $1000 in New York, to the bearer, the president of the company to fix the place of payment by indorsement. This was never done, nor were the bonds e^er issued, but were seized and carried oHf during the war. After several of the coupons which were attaclied were overdue, the bonds were purchased in New York for a very small consideration. On appeal by the holders, after an adverse decision in the Circuit Court, the United States Supreme Court held,3 that the appellants had abundant cause to question tlie in- tegrity of the bonds ; that they were affected with notice of tlieir invalidity, and could not be allowed to sustain the position of bond fide holders without notice. The presence of the past-due and unpaid coupons was itself an evidence of dishonor, suHicicnt to put the purchasers on inquiry. The imperfection as to the place of payment was another strong evidence of want of gen- u'lioncss. While, generally, it is not necessary for the validity of a bond that it should name a place of payment, the bonds in this case expressly declared that they were to be payable at the place which should be determined by the president's indorsiMucnt, and that the sum payable, whether J225 sterling or ilOOO, should depend on that indorsement, and yet no indorsement appeared » Adderly v. Storm, 6 Hill, (524; Roose- velt V. Brown, 11 N. Y. 148 ; Holyoke Bank v. Buriiham, H Cash. 183; Ma- gnider v. Colston, 44 Md. 349; Crease v. Babco(;k, 10 Mote. 525; Wheelock w. Kost, 77 III. 206 ; Matter of the Empire City Bank, 18 N. Y. 199; Hale v. Walker, 31 Iowa, 344. 3 Williams's Case, L. R. 9 Eq. 225. n.; Payne's Case, lb. 223 ; Kintrca's Case, L. R. 5 Ch. 95 ; Chinnock's Casi', .Tclins. (Eng.) 714; Hyam's Case, 1 Do C. V.& J. 75; Budd's Case, 3 Dc C. F. & J. 206; Nathan v. Whitlock, 9 P«i«e, 1:V2; Mc- Claren v. Franciscus, 43 Mo. 4r)2 ; Mnn-y V. Clark, 17 Mass. 329; Johnson i-. Laflin, 6 Cent. Law Jour. 131. « Pai-sons V. Jackson, 99 U. S. 134. 99 U. S. 134. PART v.] CORPORATIONS. 397 thereon. While this defect might not have invalidated the bonds if they had in fact been issued by the company, and the amount had been certain,^ yet it was a pregnant warning to the purchas- ers to inquire whether they liad been issued or not. These facts, taken in connection with tlie price at which the bonds were of- fered, were held abundantly sufficient to affect the purchasers with notice of invalidity in their issue. The circumstances went farther than merely to cast a shade of suspicion on the bonds. They were so pointed and emphatic as to be primd facie inconsist- ent with any other view than that there was something wrong in the titlc.2 » See Aii^'le v. N. W. Life Ins. Co., 92 U. S. 330; Bank of Pittsburg v. Nt-al, 22 How. 'Jti ; Kedlich v. Doll, .54 N. Y. 234; (lairanl v. Haddan, 67 Pa. 82; Montague V. I'erkiiis, 22 Eng. L. & Eq. 516; Fleck- iier V. I'liited States Bank, 8 Wheat. 338; Mitchell v. Culver, 7 Cow. 336; Meclianics' Bank v. Schuyler, 7 Cow. 337; Boyd v. Brotherson, 10 Wend. 93 ; Flint v. Craig, ■W Barb. 319; Michigan Ins. Co. o. Leav- enwoitli, 30 Vt. 11. In Redlich o. Doll, 54 N'. V. 234, the maker of a note left a blank alter the word "at," which was filleil uji liy the holder with the name of a bank and negotiated. The court held that the insertion of the place of payment in the note did not avoid it in the hands of a ban It fide hold(;r for value, upon the lirinei|ile that where one of two innocent liarties must siiH'er by the fraud or wrong of a third person, the one who put it in the power of such third person to commit the fraud or wrong must bear the loss. In .Mitehell v. Culver, 7 Cow. 336, a note was made iind indorsed on November 27, payable in sixty days, the note as to date iti'inr; blank. By direction of the maker, the plaiiitilf iilled the blank with the 5th .Novenibi r. It was held, in a suit against the indi)rser, that where the indorser of a note commits it to the maker with the ilate in blank, the note carries on the face of it an iin]ilied authority to till up the blank. See Page V. Morrell, 3 Koyes, 117; Van Diizer v. Howe, 21 N. Y. 531; Vallett V. I'arker, 6 Wend. 616 ; Kitchen ''. I'laee, 41 tJurb. 465. In Young v. Oroto, 4 Bing, 'J.-.y, a husband left blank checks with his will', signed by himself. In (111- inj? up one with " tifty pounds," she left a space before the word "tifty," which was filled 11), In- hor husband's clerk with tlte words "tjiree hundred and." The lianker having paid the whole amount, it was held that the loss must fall upon th3 drawer, on the ground of his negligence. A party purchasing negotiable paper in open market, without reason for susfieet- "Dg fraud, and without actual notice or knowledge of any defects or irregularities in the issue, as a bond Jidc ])urcliaser for value, takes a good title. Murray v. Lard- ner, 2 Wall. 110; County of Pay c. Van- scycle, 96 U. S. 675; Goodman !>. Simonds, 20 How. 343 ; Galveston U. It. v. Cow- drey, 11 Wall. 459; Hotclikiss i'. National Bank, 21 Wall. 354; Cromwell v. County of Sac, 96 IJ. S. 51; San Antonio v. Me- haffy, III. 312 ; Henderson v, Anderson, 3 How. 73 ; Morgan i". Pailroad Co., 96 U. S. 716; Duncan v. Scott, 1 Camp. 100 ; Marston i;. Allen, 8 M. & W. 494; Harvey v. Towers, 6 Ex. 656; Putnam v. Sullivan, 4 Mass. 45 ; Ingham v. Prim- ro.se, 7 C. B. K. a. 82, 85; Awde v. Dixon, 6 Ex. 869; Stagg v. Elliott, 12 C. B. N. s. 373; Pex v. Hales, 17 How. St. Tr. 161; Swan V. North British, &c. Co., 2 11. & C. at p. 184, per Byles, J. •■* See Andrews v. Pond, 13 Pet. 65 ; Fowler v. Brantley, 14 Pet. 318. And in some cases where negotiable ]iaper has been obtained fraudulently, without any negligence on the jjait of the person de- frauded, it has been hidd void even in the iiands of a bond fide pundiaser, with- out notice or knowledge, and without any reason apparent to cause him to suspect the bona ftden of the transaction. 'Ihus in Foster v. Mackinnon, L. P. 4 C. P. 704, the defendant was induced to put his name upon the back of a bill of exchange by the fraudulent representation of the acceptor that he was signing a g\iarantee. In an action against him as indorser, at the suit of a b(md Jidc. holder for value, the jury were directed that "if the de- fendant's signature was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it without knowledge that it was a bill, and under the belief that it was a gunrantee, and if he was not guilty of any iH'gligence in so signing the paper, he was entitled to the verdict. A verdict having been ren- dered for the defendant, this was hebl a proper direction. The facts in the case aro £)cculiar. The defendant was a gentle- ■'si' 41 ^1 ■if- 1 J, i ! ! i ^' iff 1 f 1 1 I ; 1 , I ; I. ' 3* I ( ' i ' I, il ■ I 398 COMMENTARIES ON SALES. [book II. While it is undoubtedly true that it is essential to a sale that both parties should consent to it, yet the intent to sell, or the as- iiian far advanced in years. The secretary of a company (wliicli was en<;aged in building a railway near tlie defendant's property) obtaineil a guarantee from the defendant for .£3000, in order to enable the company to obtain an advance of money from their bankers, which was duly paiii without any liability resulting to the defendant. Subs{'(|uently the sec- retary took a bill of exchange lor £3000, which was drawn and indorsed by one Cooper, and asked tlie defendant to put his name on it, telling him it was a guar- antee; whereupon the defendant, believing that he was signing a guarantee similar to that which lie had before given, put his signature on the back of the bill, imme- diately after that of Cooper. The defend- ant was only shown the back of the paper. It was, however, in the ordinary shape of a bill of exchange, and bore a stamp, the impress of wliidi was visible through the paper. The court, in deciding the case, said : — " it seems plain on principle and on au- thority that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature alto- gether dilfcrent from the contract pre- tended to be read from the paper which the bliiKl or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, wluue fraud exists, but on the ground that the mind of the signer did not accompany the signature ; in other words, that he never intended to sign, and, therefore, in contemplation of law never did sign, the contract to which his name is ai)])ended." Thoroiighood's Case, 2 Co. 11. !) b; Keilw. 70, pi. (5; Com. Dig. Fait, B. 2 ; Kdwards v. Brown, 1 C. & J. 312, aTid Swan v. North British, &c. Co., 2 H. & C. 175, were cited to show that this principle applied to deeds ; and the court contiiuuHl : " But the principle is equally api)licable to other written con- tracts. Nevertheless, this principle, wheu applied to m^gotiable instruments, must be and is limited in its application. These instruments are not only assignable, but they foim part of the cunency of the coun- try. A iiualification of the general rule is necessary to protect innocent transferees for value. If, therefore, a man write his name across the back of a blank bill stamp, and part with it, and the paper is afterwards impro{>erly filled up, he is lia- ble as indorser. If he write it across the face of the bill, lie is liable as acci-ptur when the instrument has once passed into the hands of an innocent indorsee for value before maturity, and liable to the extent of any sum which the stamp will cover. In these cases, however, the party sign- ing knows what he is doing ; tlie iiuluiser intends to indorse, and tlie accei>tor in- tended to accept, a bill of exchanf,'c to !« thereafter filled up, leaving the amount, the date, the maturity, and the other ])arti('s to the bill undetermined. But in the case now under consideration the dct't'tulant, according to the evidence, if believwl, anil the finding of the jury, never iiitemli'il to indorse a bill of exchange at all, imt in- tended to sign a contract of an cntin'iy different nature. It was not his dosign, and if he were guilty of no negligence it was not even his fault, that the iiistnimi'nt he signed turned out to be a bill of ex- change. It was as if he had written his name on a sheet of pajK'r for the piirfio.se of franking a letter, or in a lady's allmni, or on an order for admission to tlie Teinplu Church, or on the lly-leaf of a book, ami there had already been without his ii)ly, but the second reason does ajiply. The de- fendant never intended to sign tliat con- tract or any such contract. IL; never intended to put his name to any instru- ment that then was or therealiiT might become negotiable. He was deceived, not merely as to the legal clftict, but iis to the actual contents of the instrument." This ease is a breaking in, but wo think a very sound one, on the rule laid down by the same judge (Byles, J.) who deliv- ered the judgment in Foster v. Mickin- non, L, R. 4 C. P. 704, in his judgment in Swan v. North British, &c. Co., i H. & C. Bt p. 184, where he says : " The object of the law-merchant as to bills and notes PART v.] CORPORATIONS. 899 sent of the former owner to a sale, need not be expressly given. It may be interred from the nature of the transaction. Thus, made or become payable to bearer is to secure their circuliitioii as money ; there- fore, honest acquisition confers title. To this despotic but necessary principle the ordinary rules of the common law are made to bend. The misapplication of a genuine signature written across a slip of stumped paper (which transaction, being a forgery, would in ordinary cases convey no title) may give a good title to any sum fraudu- lently inscribed, within the limits of the stamp, and in America, where there are no stamp-laws, to any sum whatever. Negligence in the maker of an instrument payabh' to bearer maki'? no dilference in his liability to an honest holder for value ; the instrument may be lost by the maker witliout his negligence, or stolen from him, still he must pay." Hyles, J., qualified this by saying: " If that be right it can only be with reference to the case of a complete instrument ; it can hardly be applicable to a case where a man's signa- ture has been obtiiinetl by a fraudulent representation to a document which he never inten i It' i'lii^ ■* HI. K> ' County of Macon v. Shores, 97 U. S. 272. "^" 16 Mo. 88. ' See also Smith v. County of Clarke, 54 Mn. .IS, to the same effect. * County of Macon v. Shores, 97 U. S. 272. * Diitdipss Collar Maniif. Co. v. Dnvi.s, U Johns. 237 ; Sanger v. Upton, 91 U. S. VOL. 1. « 56 ; Upton v. Tribilcock, md. 45 ; Buffalo & Alleghany R. R. Co. v. Gary, 26 N. Y. 75 ; Bissell v. Mieiiigan Central K. R. Co., 22 N. Y. 258. • Methodist Episcopal Church v, Pick- ett, 19 N. Y. 482 ; Upton v. Hamborn, 3 Biss. 417. f Chubb V. Upton, 95 U. S. 665. 26 402 COMMENTARIES ON SALES. [book II. i who receives a certificate of stock for a certain number of shares, at a given sum per share, thereby becomes liable to pay the amount thereof when called upon by the corporation or its as- signee.^ Nor is it necessary, to sustain the action, that there should have been a subscription for the whole amount named on the articles.^ Where the name of an individual appears on the stockbook of a corporation as a stockholder, the primd facie presumption is that he is the owner of the stock, in a case where there is notli- ing to rebut that presumption; and in an action against iiim as a stockholder, the burden of proving that he is not a stock- holder, or of rebutting that presumption, is cast upon the defendant.^ The names of the owners of stock certificates having been forged to the transfers of stock, transfers of the stock were made by the company on their books, and the stocks were sold. On bill filed against the company, it was decreed that the plaintiffs should have their names replaced on the books of the company, and proper certificates issued to them, and be paid the dividends which accrued on the shares after the unauthorized transfers ; or 1 Upton V. Tribilcock, 91 U. S. 45 ; Webster v. Upton, lb. 65 ; Sanger v. Upton, lb. 56 ; Ogilvie v. Knox Ins. Co., 22 How. 380 ; Chubb v. Upton, 95 U. S. 665. '^ Renssalaer & Washington Plank Koad Co. V. WesteJ, 21 Barb. 56. The acceptance and holding of a certificate of shares in an incorporation makes the holder liable to the responsibilities of a shareholder. Brigham v. Mead, 10 Allen, 245; Buffalo City U. R. Co. i;. Douglass, 14 N. Y. 336 ; Seymour v. Sturges, 26 N. Y. 134. The obligation of the subscriber to pay his subscription can- not be released or surrendered to him by the trustees of the company. The capital paid in, and promised to be paid in, is a fund which the trustees cannot squander or give away. They are bound to call in what is unpaid, and carefully to husband it when received. Sawyer v. Hoa. Bell, 36 Barb. 57; Plank Road r. Rice, 7 Barb. 162 ; Turnpike Road v. Van Ness, 2 Cranch, C. C. 451; Mudgett V. Horrell, 33 Cal. 25; Coffin v. Collins, 17 Mo. 440 ; Merrill v. Walker, 24 Me. 237. In Turnbull v. Payson, 95 U. S. 418, the defendant denied that he was a stock- holder in •* bankrupt company, in which it was sought to charge him with liability in proportion to stock standing in hia name. The books of the corporation, in which the name of the defeiuiiiiit was entered as the owner of fifty shares, and the stock-book of the company, with a duplicate of the stock certificate issued to the defendant, showing that ho wns the owner of that number of the shares of the capital stock, were in evidence. Testi- mony was also introduced to prove that the certificate was sent to the agents of the company, to be delivered to tiie defend- ant when he paid twenty per cent of the shares ; and that he made the required payment. The jury having found that the defendant was a stockholder, as al- leged, the court held that satisfactory proof having been exhibited that the com- pany was duly incorporated and organized, It followed that the evidence given, taken in connection with the fact, also proved, of the receipt by the defendant of a divi- dend upon the shares standing upon the books of the company in his name, was conclu.sive to show the liability of the de- fendant ; there being no contradiction of such evidence. Upton i;. Hansbrough', 10 Natl. Bkr. Reg. 369 ; In re Bank, 12 N. Y. 17; Alder v. Bank, 13 Wis. 61; Ward V. Manuf. Co. 16 Conn. 593. Where a company becomes bankrupt, the stockholders are liable to the assignee for the unpaid portion of their stock, which is recoverable in the district court. Turn- bull V. Payson, 95 U. S. 418. [book II. jer of shares, B to pay the ion or its as- in, that there int named on stockbook of resumption is here is noth- L against him } not a stock- ist upon the 1 having been )ck were made ssold. On bill iaintiffs should company and the dividends [ transfers ; or the corporation, in the defeiiiiant was lof fifty shares, and J company, witii a certificate issued to ig that he was the of the shares of the I evidence. Testi- need to prove that it to the agents of vered to the defend- nty per cent of the made the required having found that stockholder, as al- 1 that satisfactory ibited that the com- •ated and organized, idence given, taken e fact, also proved, lefendant of a dm- standing npon tin- in his name, was f liahility of the de- no contradiction ol V. Hansbrough, W ; In re Bank, 12 iank, 13 Wis. 61 ; }. 16 Conn. o9i. omes bankrupt, the to the assignee tor their stock, whieli itrict court. Turn- 418. PART v.] CORPORATIONS. 403 have alternative judgments for the value of the shares and dividends.' An assignee of corporate stock, who has caused it to be trans- ferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company, after it has become bankrupt.^ The capital stock of a company, especially its unpaid subscrip- tions, is a trust fund for the general benefit of the creditors ; therefore, a transaction between a purchaser of stock designed to turn the unpaid subscription for stock into an ordinary indebted- ness, is a fraud upon the public, and a set-off as between the com- pany and the stockholder will not be allowed, as it would work an injustice to the creditors.^ In a multitude of cases decided in England and in this country, it has been determined that a subscriber for the stock of a com- pany is not released from his engagement to take it and pay for it, by any alteration of the organization or purposes of the com- pany which, at the time the subscription was made, was author- ized, either by the general law or by the special charter ; and a ' Telegraph Co. v. Davenport, 97 U. S. 369. The same doctrine has been i-epeat- edly sustained both in England and thi.s country. Davis v. Bank of £ngland, 2 Bing. 393 ; Hilgard v. South Sea Co., 2 P. Wms. 76 ; Stotnan v. Hank of England, 14 Sim. 475 ; Taylor v. Midland IJy. Co., 28 Beav. 287; Ashby v. Blackwall, 2 E^en, 299 ; Lowry v. Commercial, &c. Bank, Taney, C. C. Dec. 310 ; Sewall v. Boston Water-Power Co,, 4 Allen, 277; Pratt V. Taunton Copper Co., 123 Mass. 110; Chew V. Bank of Baltimore, 14 Md. 299; Pollock v. The National Bank, 7 N. Y. 274 ; Weaver v. Bardcn, 49 N. Y. 286 ; Cohen v. Gwynn, 4 Md. Ch. Dec. 357 ; Ualton v. Midland Riiilway Co., 22 Kng. L. & Va]. 452 ; Swan v. North Brit- ish, &c. Co., 7 H. & N. 603. ■^ Pullman v. U|)ton, 96 U. S. 328. The transferee of the shares is respon- sible for whatever remains unpaid upon his shares ; for by the transfer on the books of the corporation the former owner is discharged. It makes no ditference that the legal owner, that is, he in who.se name the stock stands on the books of the corporation, is in fact only, as between himself and his assignor, a holder for secu- rity of a debt, or even that be has no beneficial interest therein. The Newry, &c. Ry. Co. I?. Moss, 14 Beav. 64 ; Hoare's Oase, 2 J. & H. 229 ; The Empire City Bank, 18 N. Y. 200 ; Adderley v. Storm, 6 Hill, t^t. In Holyoake Bank v. Bum- ham ,11 Cush. 183, it was decided that a transfer of stock on the books of the bank, intended merely to be held as collateral security, makes the holder liable for the bank debts. It was said, the creditor is to be considered tlie absolute owner, and that his arrangement with his debtor can- not change the character of the owner- ship. And in Wheelock v. Cost, 77 111. 296, the doctrine was asserted, that when shares of stock in a banking cor{)oration have been hypothecated, and placed in the hands of tlie tran.fcree, lie will be subjected to all the liabilities of ordinary owneis, for the reason that the property is in his name, and the legal ownership ap- pears to be in him. See Fetinick's Case, 1 De G. & S. 557 ; Luard's Case, 1 De G. F. & J. 633 ; Price and Brown's Case, 3 De G. & Sm. 146 ; Burlinson's Case, 3 De G. & Sm. 18; Pollard v. Bailey, 20 Wall. 620 ; Bank of Utica v. Smalley, 2 Cow. 770 ; Curtis i-. Harlow, 12 Met. 5. 8 Sawyer v. Hoag, 17 Wall. 610. See Burke v. Smith, 16 Wall. 390 ; New Al- bany V. Burke, 1 1 Wall. 96 ; Curran d. State of Arkansa.s, 15 How. 304; Wood v. Dummer, 3 Mason, 305; Slee v. Bloom, 19 Johns. 456; Briggs v. Penniman, 8 Cow. 387; Trustees of Vernon v. Hall. 6 Cow. 23 ; The People v. Bank of Niagara, lb. 196 ; Slee v. Bloom, 20 Johns. 669 ; The People v. The Washington & Warren Bank, 6 Cow. 211. I in ■ i ; I. ; ' m ^1 A: if I m H I; ■ l: ■1 . ii> 404 COMMENTARIES ON SALES. [book II, clear distinction is recogjnized between the effect of such altera- tions, and the effect of those made under legislation subsequent to the contract of subscription. The contract is made with reference to the law existing at the time of making the contract.^ A majority of stockholders and creditors of a railroad company being anxious to sell the railroad, the sale being opposed by other stockholders, under an arrangement between the majority and mortgagees in trust for the creditors, the railroad was sold un- der a friendly foreclosure of one of the mortgages. On a bill filed by the dissenting stockholders against the railroad company and tlie purchasers, to set aside the sale, the Supreme Court of the United States held ^ that the bill had been properly dismissed by the court below ; the trustees and the majority holders not having been made parties to the bill, as they should have been, as their interests would be affected by the decree sought to be obtained.^ Where the appellant made a sale and assignment of his stock in a railroad company to the respondent, for valuable considera- tion, and then sought to set the assignment aside on the groimds of hardship, imposition, and oppression, the assignment by the appellant having been voluntary ; the court decided that the fact that he was in straitened circumstances, embarrassed with liti- gation, and pressed for want of pecuniary means, for which the respondent was not responsible, and did nothing to cause, and that the sale and assignment were not caused hy any act of vio- lence, or threat of any kind, calculated to intimidate the party or to force the result, or to compel that consent which is the essence of every valid contract, he must abide the consequences of his own voluntary act, particularly as the arrangement was not inequit- able or unconscionable. Having performed the act after he had ample time for inquiry, examination, and reflection, neither a court of equity nor of law could release him from the obligation of fulfilling his contract according to its terms.* 1 Nugent V. The Supervisors, 19 Wall. 241 ; The Cork & Youghal Ry. Co. v. Paterson, 37 Eng. L. & Eq. 398; Nixon V. Brownlow, and Nixon v. Green, 3 H. & N. 386 ; Sparrow v. Tlie Evansville & Crawfordsville R. R. Co., 7 Porter (Ind.), 369; Bishop v. Brainerd, 28 Conn. 289; Schenectady & Saratoga Plank-road Co. v. Thatcher, 1 Kern. 102; Bish v. Johnson, 21 Ind. 299 ; Hanna v. Cincinnati, 20 Ind. 30 ; Buffalo & N. Y. City R. R. Co. V. Dudley, 4 Kern. 336; Meadow Dam v. Gray, 30 Me. 547; Agricultural Branch R. R. Co. V. Winchester, 13 Allen, 32 ; Noyes v. Spaulding, 27 Vt. 420 ; Pacific R. R. Co. V. Renshaw, 18 Mo. 210; Fry V. Lexington, 2 Met. 314; Illinois River R. R. Co. V. Beers, 27 III. 189; Terre Haute & Alton R. R. Co. v. Earp, 21 111. 292. 2 Ribon V. Railroad Companies, 16 Wall. 446. 8 See Caldwell »-. TagRart, 4 Peters, 190; Story v. Livingston, 13 Ppters, 359; Marshall v. Beverlev, 5 Wheat. 313; Coy V. Mason, 17 How. 580; Russell v. Clark's Exrs., 7 Cranch, 69. * French v. Shoemaker, 14 Wall. 314. A contract or written obligation pro- cured by means of duress is iiiojjerative and void both at low and in equit}'. And actual violence, even at common law, a not necessary to establish duress, because consent is of the very essence of a contract; :i PART v.] CORPORATIONS. 405 d Companies, W Where bankers received stock certificutes from a trustee (the certilicates showing on their face that they were held in trust), for loans made by them to the trustee, the loans being for his own private benefit, they are liable to account to the cestuis que trust lor the value of the stock. The statement in the certificates that they are held in trust is actual or constructive notice to the bank- ers, and puts them on inquiry, so that they take them at their peril when they receive them as security for the trustee's own debts.i Subscribers for stock, who have not paid up their subscriptions, but have bond fide assigned their stock, and the assignees have been duly substituted for the original subscribers, will not be held liable to the creditors of the company .^ Bond fide purchasers of railway bonds purchased them in good faith in the open market, the parties supposing them to be valid obligations of the railway company, and purchasing them as such for a valuable consideration, they are bond fide holders for value of such bonds, and will bo protected as such, though the bonds may have been improvidcntly issued by the company.^ held that if ,i party dealing with an exec- utor has at the time reasonable ground for believing that he intends to nu.sa])iily the money, or is, in the very transaction, applying it to his private use, the party so dealing with the executor is responsible to the persons injured. And Shaw v. Spencer, 100 Mass. 389, decides that if a certificate of .stock, e.\presse. Grant, 15 Mass. 522 ; Spear v. Grant, 16 Mass. 14; Currau v. Arkansas, 15 How. 307. '^ Zabriskie v. The Cleaveland, &i'. Ry. Co., 23 How. 381. And see Clm[iiiiaii v, Mud River Ry. Co., 6 Ohio, N. s. 119; The State v. Van Home, 7 Ohio, x. s. 327 ; where the Supreme Court of Ohio recognized the obligation of corporatoR to be prompt and vigilant in the exposure of illegality or abuse in the eniployiiient of their corporate powers, and denied assistance to those who waited till tiie evil had been done, and the interest of innocent parties had become involved. 8 Ogilvie V. The Knox Insurance Co., 22 How. 380. In order to obtain relief in such a case, prompt action is required, The party who seeks to be relieved on the ground of fraud will fail where there is laches or acquiescence on his part. Mm- son V. Bovet, 1 Denio, 69 ; Wheiiton v. Baker, 14 Barb. 594 ; Munn v. Worrall, 16 Barb. 221. He wlio has been indiueJ to part with his property on a f'niudnlent contract may, on disclaiming the fraud, avoid the contract and claim a return of his projwrty. Fraud destroys the con- tract, and the fraudulent purchaser ac- Suires no title. But a party who would isaffirm a fraudulent contract must act promptly upon discovering the frau^l, and he must return or ofll'er to return whatever he has received upon it. He cannot re- tain what he has received, if it is of any value, and proceed to recover the jirojierty fraudulently purchased of him. He must Cleavelanil, &l'. Ry. Vnd see CluipiiKiii o. 6 Ohio, N. s. 119; orne, 7 Ohio, x. s. ■ome Court of Ohio .tion of corporatoR |liint in the exposure in the einiiloyiuent (owers, and licnied ho waited till the land the interest of jcome involved. nox Insurance Co,, r to obtain relief in action is reijuired. |o be relieved on tlie fail where there is Ion his pnrt. Mus- [o, 69 ; Wheatou D. Munn V. Worrall, .0 has been intliued •ty on a fniuiliikut ilaiming the fraud, claim a return of destroys the eon- [lent purchaser ac- a party who would contract must act .•ing the fraud, and to return whatever lit. He cannot re- ■ed, if it is of ""y .cover the jirojierty of him. He must PART v.] CORPORATIONS. 407 5. Municipal Corporation Transactions, Sale of Bonds, etc. By an act of a State legislature, the power to issue bonds for a subscription to railway stock, by a municipality, was made condi- tional upon a vote of the electors. The United States Supremo Court held, in Town of Coloma v. Eaves,^ in an action on such bonds, tliat they having been issued, indorsed with a certificate by tbe oHicers empowered to judge as to their validity, wliich, with the recitals in the bond themselves, showed that the bonds had been properly issued, and that all of the prerequisites to their issue had been complied with ; the bonds, as between a bond fide purchaser and the municipality, were valid. The court held, that, after what had been done, it was not an open question as between a bond fide holder of the bonds and the municipality, whether all the pre- requisites to their issue had been complied with. Apart from and beyond the reasonable presumption tliat the officers of the law, the municipality officers, discharged their duty, the matter had passed into judgment. The persons appointed to decide whether the necessary prerequisites to their issue had been completed had decided, and certified their decision. They had declared the con- tingency to have happened, on the occurrence of which the author- ity to issue the bonds was comjilete. Their recitals were such a decision, and beyond these a bond fide purchaser was not bound to look for evidence of things in pais. He is bound to know the law conferring upon the municipality power to give the bonds on the happening of a contingency ; but whether that has happened or not is a question of fact, the decision of which is by the law confided to others, — to those most competent to decide upon it ; and which the purchaser is, in general, in no condition to decide for himself.^ rescind the contract in toto, and thus place the party in the position he was in before the sale. Gary i\ Hotailing, 1 Hill, 311; M\ V. Putnam, 1 Hill, 302 ; Root v. French, 13 Wend. 571 ; Vooriiees v. Karl, 2 Hill, 288 ; Baker v. Robins, 2 Denio, 186; Hogan v. Wcyer, 5 Hill, 390; Moyer V. Shocmai. Killingworth, 8 Conn. 247, 254; Brown- ell i>. I'lilnier, '22 Conn. 107 ; Avery v. Stewart, 1 t'ush. 496 ; Fleelier v. Fuller, 120 U. S. 534; State v. TalF, 37 Conn. 392; Isbell V. New York & New Haven R. R., 25 Conn. 556 ; Society Cor Savings v. New London, 29 Conn. 174 ; Haldwin v. North Brantl'onl, 32 ("onn. 47; New Haven, M. & W. R. H. Co. V. Cliathain, 42 Conn. 465 ; Brooklyn Trust Co. r. Hebron, 61 Conn. 22, 29. 1 (Swings V. Hull, 9 Pet. 607 ; Ben- neck(! V. Insurance Co., 105 U. S. 355. ■•2 Burgess v. Seliginan, 107 U. S. 20; Seovill V. Tliayer, 105 U. S. 143; Brant v. Virginia Co., 93 V. S. 326. 8 .Marsh v. Fulton County, 10 Wall. 676 ; Daviess County i>. Dickinson, 117 U. S. 657; Norton v. Shelby County, 118 U. S. 425; Pratt v. S wanton, 15 Vt. 147; Landi'r v. Sinitlifield School District, 33 Me. 239 ; American Tube Works v. Bos- ton Macliiiie Co., 139 Mass. 5. And see Sharon v. Salisbury, 29 Conn. 113 ; Ladd V. Franklin, 37 Conn. 53 ; Goff v, li.,ho- both, 12 Met. 26 , Burlington v. New Haven & Northampton Co., 2G Conn. 51; Benoit v. Conwav, 12 Alien, 487; Arlington v. Pierce, 122 Mass. 270; IJean V. Hvde Park, 143 Mass. 245; Kinsley i'. Norris, 60 N. H. 131 ; Railroad li;ink f. Lowell, 109 Mass. 214; Agawaiu liiuiki'. South Hadley, 128 Mass. 503. * Bloomfield v. Cliarter Oak' Hank, lil U. S. 137. ^ See Concord v. Robinson, 1'21 V. S, 165, as to municipal bonds, invniiil in tiie hands of purchasers befon; maturity wilb- out notice, notwithstanding tlu-ii' roiitals, their issue having been without st.Untory authority. See also Middh'iiort r. .Etna Life Insurance Co., 82 111. 5»)2, .">tiS; As- pinwall V. County of Daviess, 22 IIdw. 364; Wadsworth v. Supervisors, 102 V. S. 534; Crow V. Oxford, im U. S. 215 ; Katzem- bergeri;. Aberdeen, 121 V. S. 172; Dixon County r. Fiel.l, 111 U. S. 92; Sykes f. Mayor of Columbus, 55 Miss. 115;(liiuinila County Supervi-sors v. Brogden, 112 U. S. 27L PART v.] CORPORATIONS. 411 municipality that they were legally issued will not avail to render such bonds legal. Recitals or certificates reciting the actual facts, Uiid alleging that thereby the bonds were conformable to the law, when, judicially speaking, they were not, will not make them so ; nor will such recitals or certificates work an estoppel upon the luunicipality to claim the protection of the law.^ The doctrine which gives validi./ to acts of officers de facto, whatever defects there may be in the legality of their appointment or elect ion, is founded I'.pon considerations of policy and neces- sity, for tljc protection of the public and individuals whose inter- ests may be affected thereby ; offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. For the good order and peace of society, their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called into question. But the idea of an offi- cer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a j)ublic office can only exist by force of law. An unconsti- tutional act, which in terms creates an office, does not, by the apparent existence of the ofiice, give validity to the acts of the as- sumed incumbent. An unconstitutional act is not a law. It con- fers no rights ; it imposes no duties ; it affords no protection ; it creates lo office ; it is, in legal contemplation, as inoperative as though it had never passed.^ 1 Ciow7>. Oxford, 119 U. S. 215; Dixon County I'. F\-l(l. Ill U. S. 8a. If the otlii'cis iiiithori/.ed to issue bonds ujioii a coiiilition are not tlie appointed trilmiuil to ilecidu tlie fact which constitutes tl»e coiHlitloii, tlu'ir rc'.citiil will not he iioci'ptcd as u siibstituto for proof. In otlu-r words, wlu'io the validity of n bond depends u])on an cstop]iel, I'luimed to arise upon the re- litiils (>(' the in-itruuieiit, the question lie- M'^ IS to tlie existence of power to issue tlii'iii, it is necessary to estalilish that the oltiiH'is exeeutinj; the bonds hud lawful aiitliority to make the recitals and to make tliein conclusive. The very ground I'f tli( estoppel is that the recitals are the nliiiial stateuR'tits of those to whom the the judj^ments have depended upon tho question whether, in the purtieular ease under consideration, a fair copstruetion of the law authorized the officers is.suing the i)omls to ascurtiin, determine, and certify the existence of the facts upon which their jiower by the terms of the law was nuido to . Carroll, 3S I '■I n : 1 ■ ■. : I I i 1 !;i: m u [I ; ■} '< 412 COMMENTARIES ON SALES. [book II. The court, in Nortou v. Shelby County,* where it wa claimed that bonds of the county, which had been issued without author- ity, were subsequently ratified, in holding that the bonds were . invalid, adopted the principles laid down in Marsh v. Fulton County ,2 that a ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party rati- fying possesses the power to perform the act ratified. Officials who iiad no power to make a subscription in the first instance without a vote of the county, could not ratify such subscription without such authorization. It would be absurd to say that tliuv could without such vote, by simple expressions of approval, or in some other indirect way, give validity to acts, when they were in terms directly prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his jtrinci- pal, could have validity given to such act by its indirect recognition.^ Conn. 449; Taylor v. Skiine, 3 Brev. 516; Cocke V. Halsey, 16 Pet. 71 ; Clark v. Commonwealth, 29 Va. St. 129; Brown v. O'Conuell, 36 Conn. 432; Blackburn v. The State, 3 Head, 690; Fowlor v. Beebe, 9 Mass. 231. In Daviess County v. Diek- inscMi, 117 U. S. 657, it was licld that bonds issued in excess of the statutory limits were invalid and void even in the hands of a bond Jidc purchaser for value, without notice and before maturity; and that an ollicer's certificate of a fiet which he had no authority to dete mine was of no legal etfect, and did i)jt estop the municipality from showing that all the bonds whicli were is.^ued alter the statu- tory limit had been reached were void. See Dixon County v. Field, 111 U. S. 83. ' 118 Mass. 425. a 10 Wall. 676, 684. ' See County of Daviess v, Dickinson, 117 U. S. 657; McCracken v. City of San Francisco, 16 Cal. 591, 623 ; Aspinwall V. Commissioners of Daviess County, 22 How. 364; Wadsworth v. Supervisors, 102 U. S. 534. A town hnviug no general power to issue negotiable bonds, but hav- ing power to issue bonds for certain spe- cilieil municipal purposes, was sued on bonds which contained no statement of the purpose for which they were Issued, and no recital which could bind the town by way of estoppel. The court hehl that the plaintiff was bound to allege and prove the authority of the town to issue them, and a demurrer to a declation which con- tained no such averment was sustaiiKd. Hopper V. Corington, 118 U. S. ]4S; Pumpclly V. Green Bay Co., 13 Wiill. Iiio", 175; Cragin v. Lovell, 109 U. S. ]ii4; Kennard v. Cass County, 3 Dill. 147; Broome v. Taylor, 76 N. Y. 564 ; Cot- ton V. New Providence, 18 Vrooni, 401. When a ooi'poration has power uiuli-r any circumstances to issue negotiable scrii- ritics, the bond fide holder has a rii,'lit to presume they were issued under the cir- cumstances which give the requisite au- thority, and they are no more liable to te impeached for any infirmity in the haiuls of such a holder than any other cotmiier- cial paper. Gelpcke v. Dubuipie, 1 Wall. 175, 203; Supervisors v. Schenck, 5 Wall. 772, 784; Lexington v. Butler, 14 Wall. 282, 296 ; San Antonio v. MehatlV, % U. S. 312, 314; Macon County v. ."^ii'Mcs, 97 U. S. 272, 279. But the circumstances referred to in those cases were the \m- liminary facts re([uisite to the exercise of the power, not the limits fixed by law of the objects and purposes for wliiili tlie power could he exercised at all. In each of those cases the defects suggesteil were in the retpiisite preliminary proeeeiliiigs, and the bonds sued on appeared by lecitals on their face to have been fssued accord- ing to law. When the law confers no au- thority to issue the bonds in (piestinn, tlie mere fact of their issue cannot bind the town to [lay them even to a purchaser !«- fore maturity and for value. Jiarsli r. Fulton County, 10 Wall. 676 ; Eait Oak- PART v.] CORPORATIONS. 413 The Court of Errors of New Jersey decided ^ that purchasers of bonds issued under a statute limiting the amount, had the right to roly on the decision of the commissioners as concUisive in re- s])ect to tlie amount that could be put out under the statute. In Now Providence v. Halsey,^ the United States Supreme Court con- curred in these decisions, and held that when the commissioners issued bonds, they averred that the issue was within the limit. Construing the act by the rule laid down in New Jersey, the le- gislative intent that their decision on the subject should be final, appears. The holder of the bonds had, therefore, the right to rely thereon, and bonds issued beyond the limit would be enforceable.^ Where State revenue bond scrip contained a provision that it would be received in payment of taxes, the court held that it was a contract with the holder for the time being, who has taxes to pay; and that altlu ugh such a stipulation, laithfully executed, would give commercial value to the paper, in whosesoever hands it niinht hai)pcn to be, it could not be said, as a matter of law, that the contract was broken until the scrip had been tendered for taxes due from a holder, and been refused ; nor that the legal right of the holder was threatened unless he was in a situation to make a present tender for that purpose. He had no legal right to have the scrip received for taxes, unless ho owed taxes for which it was receivable ; and in order that it might be used for the payment of the taxes of another, he must transfer it to the new holder, and that would devest himself of all right to enforce a contract to which ho was no longer a party, and in which he had ceased to have a lojral interest.* Where the liability of a municipal corporation upon negotiable laml r. Skinnor, 94 U. S. 255; Bunlianan r. LiHiliclil, 102 U. S. 278; Dixon County I'. I'i.'lu. Ill II. S. 83 ; Hayes v. Holly Si'iiiiL's, 114 U. 8. 120 ; Diwii'ss County r. IHrkinson, 117 IJ. S. er.T. ' Cotton I'. Now Proviilence, 18 Vroom (47 X. ,1. L.), 401, following thii ruin laid down in Mutuiil Benefit Life Ins. Co. v. KliziiliMth, l:i Vroom (42 N. J. L.t, 235. - 117 r. S. 33rt. ' Si'c IVniard's Townsliip v. i^itebbins, HW r. S. ;541. The position was also taken in N.w I'mvidenee v. Halsey, 1 17 IT. S. 33(5, tliat the Imlder of the bonds could not re- covcron thciu, inasmuch as lie got them by assii;iiiiii'nt from citizens of New Jersey, who iciuld not sue in the courts of the I'nitcd States, and ho was compelled to rely on the title of his assignors to avoid till' mattiis jdaced in bar to the action. But the court held that a municipal bond, in the ordinary form, such as those sued on, is a promissory note, negotiable by the law merchant, within the meaning of that term in the act of March 3, 1875, 18 Stat., 47o, ch. 137, § 1, which allows a suit on instruments of that class to be brought in the courts of the United States by an assignee, notwitlistaiuliug a suit could not liave been prosecuted in such court if no assignment had been made ; and, therefoH', that it was u matter of no importance that the holder made title to the bonds through assignments by the citizens of New .lersey. To the same ell'ect is the holding in Ackley School Districts. Hall, 113 U. S. 135. « Hagood V. Southern, 117 V. S. 52 ; Marye r. Parsons, 114 IJ. S. 325 ; Wil- liams V. Hagood, 98 U. S. 72. See Harshman v. Winterbott(un, 123 U. S. 215, on warrants issued in Missouri, re- ceivable as payment for taxes. See Kast St. Louis V. Zebley, 110 U. S. 321 ; Clay County V. McAleer, 116 U. S. 616. 1 ; ? : 1 ii ' ; M r I It. i' ■A 111. flit* ■I * :1 If n i If s il 414 C0M11ENTARIES ON SALES. [book II. securities depends upon a local statute, the rights of the parties are to be determined according to the law as declared by the State courts at the time such securities were made. After u statute lias been settled by judicial construction, the construction becomes, so far as contract rights are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in effect on contracts as an amendment of the law by means of a legislative enactment.^ But when contracts and transactions have been entered into, and rights have accrupd thereon, under a particular state of the decisions, or where there has been no decision of the State tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the State courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid con- fusion, the Federal courts will lean to an agreement of views with the State courts if the question seems to be balanced with doubt.- All persons taking securities of municipalities having no power to issue them, except as specially delegated by law for a particu- lar purpose, must see to it that the conditions prescribed for the exercise of the power existed. As an essential preliminary to protection as a bond fide holder, autliority to issue them must ap- pear. If such authority did not exist, the doctrine of protection to a bond fide purchaser has no application. This is the rule even with commercial paper purporting to be issued under a delegated authority. The delegation must be first established before the doctrine can come in for consideration. ^ There is a class of cases where recitals in obligations are held to supply such proof of compliance with the special authority del- egated as to preclude the taking of any testimony on the subject, and estop the obligor from denying the fact. These have gener- ally arisen upon municipal bonds, authorized by statute, upon the vote of the majority of the citizens of a particular city, county, or town, and in which certain persons or officers are designated to ascertain and certify as to the result. If, in such cases, tlie bonds refer to the statute, and recite a compliance with its provisions, and have passed for a valuable consideration into the hands of a * Green County v. Camess, 109 U. S. 105 ; Douglass v. County of Pike, 101 U. S. 677 ; County of Kails v. Douglass, 105 IT. S. 728, 732 ; Olcott v. Supervisors, 16 Wall. 678 ; City v. Lainsou, 9 Wall. 475, 485 ; Boyd v. Alabama, 94 U. S. 645 ; Taylor v. Ypsilauti, 105 U. S. 60, 71; Thompson v. Lee County, 3 Wall. 327, 830 ; Brown v. Mayor, 63 N. Y. 239, 244. 5" Burgess v. Seligman, 107 U. S. 2rt. 33 ; Anderson v. Santa Anna, IIG U. S. 356. ' Merchants' Bank v. Bergoii County, 115 U. S. 384: The Floyd Acceptances, 7 Wall. 666, 676 ; Marsh v. Fulton, 10 Wall. 676; Mayor v. Ray, lU Wall. 468. PART v.] CORPORATIONS. 416 bond fide purchaser, without notice of any defect in the proceed- ings, the municipality is held to be estopped from denying the truth of the recitals. The ground of the estoppel is that the offi- cers issuing the bonds and inserting the recitals are agents of the municipality, empowered to determine whether the statute has been followed, and thus bind the municipality by their (letennination.^ Even a bond fide holder of a municipal bond is bound to show legislative authority in the issuing body to create the bond. Re- citals on the face of the bond or acts in pais, operating by way of estoppel, may cure irregularities in the execution of a statutory power, but they cannot create it. If legislative authority is want- ing, the bonds have no validity. And where bonds have been is- sued without legislative authority, as a subscription to stock, if the legislature intend to legalize them, they must do so openly, intelligently, and in language not to be misunderstood ; and as a doubtful or obscure declaration would not be justifiable, so it is not to be imputed.^ In an action brought by a State against the officers and stock- holders of a railroad company, the bonds of which company were indorsed by the State, on demurrer to the declaration, it was held that as the liability of the defendants to the State was only statu- tory, there could be no recovery unless the facts stated in the declaration are such as to bring the defendants within the opera- tion of the liability clauses in the statutes.^ Where bonds were held void as having been issued by a muni- cipality in excess of authority,* the court held that the holders of such bonds, and the agents of the city, being particeps criminis in the act of violating a constitutional prohibition, equity would no more raise a resulting trust in favor of the bondholders, than the law would, against public policy, raise an implied assumpsit against the municipality.'' By act of the legislaiuio of Illinois, of Feb. 14, 1863, sect. 4, clause 3, the city council of Quincy was empowered to levy and collect, " to pay the debts and meet the general expenses of said city," not exceeding fifty cents on each f 100, per annum, on the assessed value of the real and personal property in the city. The ' Northern Bank of Toledo v. Porter Township Trustees, 110 U. S. 608 ; Dixon County w. Field, 111 U. S. 83. "^ Hiiyes «;. Holly Springs, 114 U. S. 120 ; Stiito I'. Stoll, 17 Wall 425, 436. ' Alabama v. Burr, 115 U. 8. 413. ♦ Biiclmnan v. Litchfield, 102 U. S. 278 « Litchfield V. Ballou, 114 U. S. 190. Seethe Tennessee Bond Cases, 114 U. S. 663, as to the construction of the Tennes- see act of February 11, 1852, as to whether a lien given to the State on a railroad sys- tem, to secure the payment of bonds issued by the State to the railroad company, en- ured to the benefit of the bondiiolders. See, also. Hand v. Savannah & Charleston R. R. Co., 12 S. C. 314 ; Sinking Fund Cases, 99 U. S. 700, 725. :i r; r 1^ ■ \ 416 COMMENTARIES ON SALES. [book II. court held that this related to debts and expenses incurrbd for or- dinary municipal purposes, and not to indebtedness arising from railroad subscriptions, the authority to make which was not im- plied from any general grant of municipal power, but was ex- pressly CO ifcrred by statute.^ The general grant of legislative power in the constitution of a State does not enable the legislature to authorize counties, cities, or towns, to contract, for private objects, debts which must be paid by taxes ; nor can it authorize them to issue bonds to assist merchants or manufacturers, whether natural persons or corpora- tions, in their private business.^ Thus, bonds issued by Missouri to a private manufacturing company, formed and established for the purpose of carrying on and operating a rolling-mill for the manufacture of railroad iron, expressed to be issued in pursuance of an act of the legislature, were void upon their face ; the act being unconstitutional.^ Municipal corporations are created to aid the State government in tlie regulation and administration of local affairs. Tiicy have only such powers of government as are expressly granted tlicm, or such as are necessary to car..^ into effect those that are granted. No powers can be implied except such as are essential to tlie ob- jects and purposes of the corporation as created and established. To the extent of their authority they can bind the people and the property subject to their regulation and governmental control, bv what they do, but beyond their corporate powers their acts are of no effect. As power in a municipal corporation to borrow inonc) and issue bonds therefor implies power to levy a tax for the pav- ment of the obligation that is incurred, unless the contrary clearly appears,* it follows that the power contained in a charter to bor- row money does not authorize the issue of bonds unless they were issued for a corporate purpose, where there is a constitutional pro- hibition against taxation by the municipality, except for corporate purposes. It was, accordingly, held in Ottawa v. Carey ,^ where the charter conferred all the powers usually granted to a city for tlie purposes of local government, authorizing the imposition of taxes for everything which, in the opinion of the city authorities, 1 Quincy v. Jackson, 113 U. S. 332 ; Qiiincy v. Cooke, 107 U. S. IH9 ; Parkers- burg V. Brown, 106 U. S. 487, 501 ; Ralls County V. United State.s, 105 U. S. 733, 735 ; United States v. County of Macon, 99 U. S. 582 ; United States v. New Or- leans, 98 U. S. 381, 393 ; Loan Associa- tion V. Topeka, 20 Wall. 655, 660. •■' Cole V. La Grange, 113 U. S. 1 ; Loan Association i>, Topeka, 20 Wall. 655 ; Purkersburg v. Brown, 106 U. 8. 487 ; Allen v. Jay, 60 Me. 124 ; Lowell V. Bo.ston, 111 Mass. 4.54 ; Weismer v. Douglas, 64 N. Y. 91 ; In re Euivka Co., 96 N. Y. 42 ; Bissell v. Kankiikpi-, 64 111. 249 ; English v. People, 96 111. 566 ; Central Branch Union Pac. K. R. i- Smith, 23 Knns. 745. » Cole V. La Grange, 113 U. S. 1. * Rolls County Court v. The United States, 105 U. S. 733. 6 108 U. S. 110. PART v.] CORPORATIONS. 417 would promote the general prosperity and welfare of the munici- pality, the city was not invested with power to raise money by public taxation to be donated to private persons or corporations, as a bonus for developing the water power in the city or its vicin- ity, for manufacturing purposes, and that bonds for such purpose in the hands of purchasers thereof with notice of the object for which they were issued, were void.^ Merc recitals by the officers of a municipal corporation in bonds issued in aid of a railroad corporation do not preclude an inquiry, even where the rights of a bond fide holder are involved, as to the existence of legislative authority to issue the bonds!" In Northern Bank v. Porter Township,^ it was held that, as was held in Anthony v. Jasper County,' purchasers of municipal bonds are charged with notice of the laws of the State, granting power to make the bonds they find on the market. If the power exists in the municipality, the bond fide holder is protected against mere irreirularities in the manner of its execution, but if there is a want of power, no legal liability can be created. So that, while the township is estopped by the recitals in the bonds from saying that no township election was held, or that it was not called and > The cftses of Haskett v. Ottawa, 99 U. S. 86, and Ottawa v. National Bank, 105 U. S. 342, were decided, as was IKiiiited out in Ottawa v. Carey, 108 U. S. 110, 118, upon the ground that the bonds in suit ajuK-ared on their face to liave been issued for municipal purjioses, and were therclore valid in the hands of fcojct fide liolders. In l-ivingston v. Darlington, 101 V. S. 407, the town subscription was towiinls the establishment of a State re- I'orm school, which was undoubtedly a puhlic purpose, and the question in con- troversy Wits whether it was a corporate puriiose, within the meaning of the con- stitution of Illinois. In Burlington v. Beaslcy, 94 U. S. 310, the gristmill lield to be ft work of internal improvement, to aid in constructing wliich a town might issue bonds umler tlie statutes of Kansas, was a pubUe mill which ground for toll for all customers. See Osborne v. Adams County, 106 U. S. 181, and 109 U. S. 1 ; Blair v. Cuming County, 111 U. S. 363. Sub- scriptions and binds of towns and cities, under legislative authority, to aid in estab- lishing railroads, liave been sustained on tlie same ground on which the delegation to railroad corporations of the sovereign right of eminent domain has been justified, — the aeeoniinodation of public travel. Rogers I'. Hurlington, 3 Wall. 654 ; Queens- bury V. Culver, 19 Wall, 83 ; Loan Asso- elation i>. Topeka, 20 Wall. 661, 662 ; Taylor v. Ypsilanti, 105 U. S. 60. Statutes VOL. 1. 27 authorizing towns and cities tn pay boun- ties to soldiers have been upheld, because the raising of soldiers is a public duty. Middleton v. MuUica, 112 U. S. 433; Taylor v. Thompson, 42 111. 9 ; Hilbish V. Catherman, 64 Pa. l.''^ ; State v. Rich- land, 20 Ohio St. 362 ; Agawam v. Hampden, 130 Mass. 528, 534; Montclair V. Ramsdell, 107 U. S. 154. In United States V. Dodge County, 110 U. S. 156, it was held that a bridge across a river is a work of internal im))rovement within the scop(i and terms of the Nebraska act of 1869 (see County Commissioners v. Chamiler, 96 U, S. 205 ; Fremont Build- ing Association v. Sherwin, 6 Neb. 48), and a mandamus was granted for payment of bonds for that purpose. In Blair i'. Cuming County, 111 V. S. 363, it was licld that improving the water-power of a river, by constructing a canal for water- power purposes to propel public grist mills, was a " work of internal imiirove- mont of a public nature,' within the Tiieaning of the Nebra.ska act, Genl. Stat, of 1873, ch. 13, §§ 7, 14 (see Union Pacific R. R. v. Commissioners, 4 Neb. 450 ; The State v. Thorne, 9 Neb. 458 ; Dawson County v. McNaniar, 10 Neb. 276; Traver f. Merrick County, 14 Neb. 327), and municipal bonds issued for such ])urpose were valid. 2 110 U. S. 608. 8 101 U. S. 693, 697. 1: ii|. ■ 1! il ! '< f u I \ , f' :■:. i 1 t 418 ;2MMENTABIES ON SALES. [book II. i conducted in the particular mode required by law ; it is not es- topped to show that it was without authority of the legislature to order the election or issue the bonds. The question of legislative authority in a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals ; but, the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of the power ; or, when the law prescribes conditions upon the exercise of the power granted, and commits to the officers of such municipality the determination of the question whether those conditions have been performed, the corporations will also be estopped by recitals which import sucli performance.* The transfer of coupons which is a acre contrivance, a pre- tence, the result of a collusive arrangement to create in favor of the plaintiff a fictitious ground of federal jurisdiction, so as to get a rc-examination in that jurisdiction of the question decided adversely to the owners of the coupons by the highest judicial tribunal of the State, will not enable the plaintiff to maintain an action in the federal courts upon such coupons, tlie bonds or in- struments to which they were attached not having been assigned to him, but having been issued to and having always been held by the assignor of the coupons.''' Municipal bonds in the customary form, payable to bearer, are commercial securities, possessing the same qualities and incidents chat belong to what are strictly promissory notes negotiable by the law merchant ; and when issued under the authority of law, and made payable to a named person, or order, have like qualities and incidents. And a provision, such as that in the statute of Iowa, of April 6, 1868, that bonds issued under the authority of the act shall be " payable at the pleasure of the district at any time before due," does not affect the complete negotiability of the bonds, for, by their terms, they are payable at a time which must certainly arrive ; the holder could not exact payment before the ^ Northern Bnnk v. Porter Township, 110 U. S. at p. 618. See Dallas County v. McKenzie, 101 U. 3. 086 ; Brookly v. In- surance Co., 99 U. S. 362. See County of Macon v. Shores, 97 U. S. 272, as to amendment in the constitution of a county not affecting acts previously authorized. Where what was done by the constitu- tional majority of the qualified electors, and by the board of supervisors of the county, would have been legal and bind- ing upon the county had it been done under legislative authority previously con- ferred, subsequent ratification by the legis- lature, in the absence of constitutional restrictions upon such legislation, is equi- valent to original authority. Grenada County Supervisors v. Brogdon, 112 U. S. 261 ; Cutler v. Board of Supervisors, 56 Miss. 115 ; Supervisors v. Sohenek, a Wall. 772 J Ritchie ». Franklin, 22 Wall. 167; Thompson v. Lee County, 3 Wall. 327; City v. Lamson, 9 Wall. 477, 485; St. Joseph V. Rogers, 16 Wall. 644, 663; Campbell v. City of Kenosha, 5 Wall. 194. * Farmington v. Pillsburv, 114 U. S. 138 ; Hawes v. Oakland, 104 U. S. 450, 459; Hayden v. Manning, 106 U. S. 586; Detroit v. Dean, lb. 537, 541; Bernard's Township v. Stebbins, 109 U. S. 341. PART v.] COBPOBATIONS. 419 day fixed in the bonds, and the debtor incurred no legal liability for non-payment until that day passed.* Prior to the adoption of the Illinois constitution of 1870, an incorporated city, its corporate authorities being thereunto author- ized by the legislature, could make a subscription to the capital stock of a railroad company, without referring the question of subscription to a popular vote.^ The United States Supreme Court, therefore, held, that it was competent for the legislature of that State in 1869, to make an election of 18G8 legal and bind- ing as an expression of the popular will, and, upon tho basis of the election thus legalized, empower or authorize the corporate authorities of the municipality to issue the bonds for the amount indicated by the popular vote.^ By the charter of the city of East St. Louis it was provided that the city council should levy and collect a tax not exceeding three mills on the dollar upon each annual assessment made for general purposes for the purpose of meeting the liability on the city bonds ; the city being limited to an assessment of one per cent per annum for all purposes. The United States Supreme Court held that while a mandamus would lie requiring the full levy of one per cent and the devotion of three-tenths thereof to the pay- ment of the bonded debt, the court had no power to make a simi- lar order with reference to the remaining seven-tenths required for general purposes ; that while the surplus thereof at the end of the year might be subject to the order of the court, the question what expenditures were proper and necessary for the municipal admin- istration, was not judicial, but was confided by law to the discre- tion of tlie municipal authorities, and no court had the right to control that discretion, much less to usurp and supersede it.* Recitals in municipal bonds, containing no statement of any election called or held, or of the vote by which the issue of the bonds was authorized, and not even embodying a general state- ment that the bonds were issued in pursuance of the statutes to which they refer, nor saying anything whatever as to any com- pliance with the requirements of the statute in respect to which the municipal officers were authorized to determine and certify, but at the utmost making a statement that the subscription for which the bonds were in part given was authorized by the stat- utes mentioned, serve simply to point out the particular laws ' Ackley School District v. Hall, 113 U- S. 135. See New Providence v. Halsey, 117 U. S. 336, also, as to negotiability of municiiial bonds. » Keithsburgr. Frick, 34 111.405,421; Quincy, Mo. & Pac. R. B. Co. v. Morris, 84 III. 410; Marshall v. Silliman, 61 111. 218, 225; Quincy v. Cook, 107 U. S. 549. « Jonesboro City v. Cairo & St. Lonis R. R. Co., 110 U. S. 192. ♦ East St Louis v. Zebley, 110 U. 8. S21. I j I i 1- : :;: ■! Ill :■: ^4 I I ^1 ft 1 420 COMMENTARIES ON SALES. [book II. ! under which the transaction may lawfully have taken place, but they do not, even as to bond fide holders, w^ithout notice, consti- tute an estoppel which prevents inquiry into the alleged invalid- ity of the bonds.* Mere political bodies, constituted as counties arc, for the pur- pose of local police and administration, and having the power of levying taxes to defray all public charges created, whetlier they are or are not formally invested with corporate capacity, havo »o power or authority to maice and utter commercial paper of any kind, unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot be fairly exercised without it.'' The legislature of a State, unless restrained by its organic law, has the right to authorize a municipal corporation to issue bonds in aid of a railroad, and to levy a tax to pay the bonds and the interest on them, with or without a popular vote, and to cure by a retrospec- tive act irregularities in the exercise of the power conferred.'* Bonds purporting to have been issued by a municipality, but which were neither signed nor registered, in accordance witii the statute under which their issue was authorized, were decided to be invalid.* Thei'c must be authority by statute for every issue of bonds by a municipality, as a donation to any railroad or other work of in- ternal improvement. Where bonds have been issued without war- rant of law, as all parties are equally bound to know the law, a certificate verified by the signature of the municipal ofiiccrs and the seal of the municipality, reciting the actual facts, and that thereby the bonds are conformable to the law, when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law ; oth- erwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority by de- claring that its assumption was within the law. This would sup- pose such corporate bodies to be superior to the law itself. 1 Carroll County v. Smith, 111 U. S. 556 ; Northern Bank of Toledo v. Porter Township, 110 U. S. 608 ; Dixon County V. Fielil, 111 U. S. 83; School District v. Stone, 106 U. S. 183. ^ Claiborne County v. Brooks, 111 U. S. 400, 406; Police Jury v. Britton, 15 Wall. 566. 8 Otoe County v. Baldwin, 111 U. S. 1; Thompson v. Lee County, 3 Wall. 327; Camnhell v. City of Kenosha, 5 Wall. 194. See Union Trust Co. v. Illinois Midland Co., 117 U. S. 434, where necessary ex- penses, incurred subsequently to the issue of bonds secured by a mort^ige by a rail- road company, were allowed priority over the bonds. See also Wallace !•. Looniis, 97 U. S. 146 ; Miltenbcrgur v. I-oi,'.iiisiiort Ry. Co., 106 U. 8. 286, 311, 312; L'liion Trust Co. V. Souther, 107 U. S. iiltl ; Burnham v. Bowen, 111 U. S. 77i) ; Fns- dick V. Schall, 99 U. S. 235, i:>S, 2.^4 ; Mever v. Johnston, 53 Ala. 237; Hoover V. Montclair, &c. Ry. Co., 2 Sti-w. {H N.J. Eq.) 4. * Bissel V. Spring Valley Towiisliip, 110 U. S. 162; Anthony v. County otJas- Ser, 101 U. S. 693, 697; McGarralian v. Lining Co., 96 U. S. S16. PART v.] CORPORATIONS. 421 In Dixon County v. Ficld,^ the effect of recitals in municipal bonds is considered at length, and while the principle is conceded as laid down in Town of Coloma v. Eaves," that where it may be gathered from the legislative enactment that the ofticcrs of the 'luunicipality were invested with the power to decide wliether the coiulltion precedent has been complied with, their recital that it has been, made in the bonds issued by them, and held by a bond fiile purchaser, is conclusive of the fact, and binding upon the uumifipality ; for the recital is itself a decision of the fact by the appointed tribunal. Yet the converse of this is embraced in the proposition, and is equally true. If the officers authorized to is- sue bonds, upon a condition, are not the appointed tribunal to de- cide the fact, which constitutes the condition, their recital will not l)c accepted as a substitute for proof. In other words, where the validity of the bonds depends upon an estoppel, claimed to arise upon the recitals of the instrument, the question being as to the existence of power to issue them, it is necessary to establish that the oflicers executing the bonds had lawful authority to make the recitals and to make them conclusive. The very ground of the cstop[)el is that the recitals are the official statements of those to whom the law refers the public for authentic and final informa- tion on the subject. This is the rule which has been constantly applied in the numerous cases in which it has been involved. The difference in the result of the judgments has depended upon the question whether, in the particular case under consideration, a fair construction of the law authorized the officers issuing the bond to ascertain, determine, and certify the existence of the facts upon which their power, by the terms of the law, was made to depend ; not including that class of cases in which the controversy related, not to conditions precedent, on which the right to act at all de- pended, but upon conditions affecting only the mode of exercising a power admitted to have come into being.^ On the principle that when the seal of a party, required to make an instrument valid and effectual at law, has been omitted by ac- cident or mistake, a court of chancery, in order to carry out his intention, will, at the suit of those who are justly and equitably entitled to the benefit of the instrument, adjudge it to be as valid as if it had been sealed, and will grant relief accordingly, either by compelling the seal to be affixed, or by restraining the setting ' 111 U. S. 83. 2 92 U. S. 484. ' Marcy v. Township of Oswego, 92 U. S. 637 ; Commissioners of Douglas County V. Belles, 94 U. S. 104 ; Commis- sionois of Marion County v. Clark, 94 U. S. 278 ; County of Warren v. Marcy, 97 U. S. 96 ; Pnna v. Bowler, 107 U. S. 529 ; Sherman County v. Simons, IDS U. S. 735 ; Buchanan v. Litchfield, 102 U. S. 278; National Bunk v. Porter Town- ship, 110 U. S. 608 ; Anderson County Commissioners v. Beal, 113 U. S. 227. ! ' ! ■! :|| iilli I U* li 1 I I 422 COMMENTARIES ON SALES. [book II. up the want of it to defeat a recovery at law,* the United States Supreme Court held, where one had purchased for value, in ^uod faith, municipal bonds, on which tlio seals had been omitted by oversight and mistake, and without observing the omission, that a court of equity would, at his suit, decree that the bonds ho held as valid as if actually sealed before being issued, and would re- strain the setting up of the want of seals in the action at law.2 Unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, all bonds of the municipality issued for such a purpose, and bearing evidence of the purpose on their face, are void even in the hands of bond fide holders, and this whether the people voted the aid or not. Every purchaser of such a bond is chargeable in law with notice of the want of power in the municipal authorities to bind the body politic in that way. It is a matter of no importance that the municipality employed agents to sell the bonds, or that its law officer gave an opinion in favor of their validity, or that they were recognized in otKcial statements as binding obligations, or that taxes had been levied to pay either principal or interest. Corpo- rate ratification, without authority from the legislature, cannot make a municipal bond valid which was void when issued for want of legislative power to make it.^ Where it becomes necessary, in a suit on bonds, where fraud or illegality in their inception has been established, for the holder to show that the bonds were purchased 1 r value, it is not absolutely ""cessary that he should show that he purchased for value, for, if an^ "ovious holder of the bonds in suit was a bond fide holder for vaiu 'vO plaintiff, without showing that he had himself paid value, coula i. "il himself of the position of such previous holder.^ 1 Smith V. Aston, Freem. Ch. 308 ; 8. c. Ciis. Temp. Finch, 273; Cockerell v. Cholmeley, 1 Riiss. & Myl, 418, 424; Wnddswovth v. Weiulfll, 5 Johns. Ch. 224 ; iior.tvillo e Haughton, 7 Conn, 643: R'.tl;..n.l v. Paige, 24 Vt. 181; Wiser V. Dlaclily, 1 Johns. Ch. 607; Green v. Mollis S-. -.ssex R. R. Co., 1 Beas. 165; 2 M 'Cai'., 469; Druiff v. Parker, L. R. 5 E(i. 131 ; Drai)er v. Springport, 104 U. S. 501; Harris v. Pepperell, li. R. 5 Eq. 1; Elliott v. Sackett, 108 U. S. 132. * Bernaril's Township v. Stebbins, 109 IJ. S. 341. Knox County Court v. United States, 109 U. S. 229, fellows other cases named on municipal liability for bonds. See Howard County v. Paddock, 110 U. S. 384; County of Callaway v. Foster, 93 U. S. 567, as to effect of subsequent legis- . lation on charters of railway companies, and on municipal bonds as subscriptions therefor. 8 Lewis V. City of Shreveiwrt, 108 U. S. 282 ; Wilson v. Siireveport, '29 Lsi. An. 673. In Quincy v. Cook, 107 U. S. 519, it was held that the act of the State ii'jjis- lature legalizing an ordinance for the is- suing of bonds, which ordinance had been Cassed without legal authority, rendered onds issued subseijuently to the juissatfe of the act valid. And see Read v. I'lutts- mouth, 107 U. S. 668. An act einpinver- ing a city to issue bonds for pniposes of internal improvements was held to ;ui- thorize the guaranty of a city to the bonds of a railroad company. City of Siivniiniili V. Kelly, 108 U. S. 184. And see Green County V. Conness, 109 U. S. 104. On estoppel by recitals, see Sherman County V. Simons, 109 U. S. 735; Grenada County Supervisors v. Brogden, 112 U. S. '2til. * Montclair v. Kamsdell, 107 U- ». 147; Hunter v. Wilson, 19 L. J. x- »• (Ex.) 8; Commissioners v. BoUes, 94 U.S. PART v.] COBPOBATIONS. 428 A statute authorized a township to subscribe to the capital stock of any railroad company within tlio State, " building or proposing to luiild a railroad into, througli, or near such township." Bonds were issued as a subscrijjtion to stock of a railroad company pro- posing to build a railroad within nine miles of the township. The court held, reversing the decision of the court below, that the nearness of the railroad to benefit the township, was, within rea- souublc limits, a question which the people of the township and the Connty Court of the county were qualified and authorized to Hcttlo for themselves ; and where their action in favor of such sub- scription was supplemented by payment of interest for three years, the court should acquiesce in the determination of the qualified voters and the local authorities that the road in question was " near " to the township, and the bonds, as between the township ami a bond fide holder for .value, were sustained.' Bonds issued under the law of the State, which recite that the company to which they were delivered, by a municipality, had fully performed the conditions upon which the municipality had promised to issue the bonds ; and which, after their issue, and be- fore the maturity of the first coupons thereto attached, were sold, transferred, and delivered to a bond fide purchaser, for full value, with no knowledge with reference to the manner in which the bonds have been issued, except what he derives from the recitals in the bonds, are not affected by an act of the legislature passed several months after the performance by the company of all the conditions on which the bonds were issuable by the municipality. Such legislation would be unconstitutional and void.^ 104. This question was directly adjudged ill Cuiiiiiiissiunei's v. Bolles, 94 U. S. 104. One of the issues there was whether the pliiintilFs were bond fide holders of certain iniinii.'i|)iil bonds. After stating that the legal inesuniiition was that they were, the court said ; " but the plaintilfs are not forced to rest upon mere presumiition to support their claim to be considered as havinj; the riglits of purchasers without notice of any defence. They can call to their aid the fact that their predecessors in ownt'i'ship were such purchasers. To the riiilits of tiie predecessors they have succeeded. Certainly the railroad com- piiny paid for the bonds and coupons by paying an equal amount of their stock, which the county now holds ; and nothing in the special facts found shows that the company knew of any irregularity or fraud in their issue. And, still more, the con- tractor for building the road received the bonds from the county in payment for his work, either in whole or in part, after hia work had been completed. There is no pretence that he had notice of anything that should have made him doubt their validity. Why was he not a bond fide purchaser for value ? The law is un- doubted, that every person succeeding him in the ownership of the bonds is entitled to stand uiion his rif,dits." * Kirk bride v. Latayette County, 108 U. S. 208. See Van Hostrup v. Madison, 1 Wall. 291 ; Meyer v. Muscatine, lb. 884 ; Howard Countv i'. Hooneville Central Nat. Hank, 108 IJ. S. 314. '•' Ked Kock V. Henry, 106 U. S. 596. If possible, the act of the lef,'islature will be construed so as to relieve the State from the imputation of bad faith. Broughton v. Pensacola, 93 U. S. 266. And will not, if it can be avoided, be held repugnant to the act under which the issue of the lionds was authoiized, and an implication of repeal of the prior act will not, in >.^ii case, readily be allowed. McCool V. Smith, 1 Black, 459; United 1 I i II I ■ I 1 i. V. [ >. n 111 ^ i y' -I yfe s i -■' 424 COMMENTARIES ON SALES. [book II. ♦, i ia,iv:t; i ;ili:i i; j||:|p;p'rf!; A municipality is not estopped by the payment of interest by its officials, from denying the validity of its bonds which have l)eeii illegally issued, but the municipality is liable to account to the bond fide holders of such bonds for the proceeds received from the original purchasers, less such payments as have been made on the bonds.^ County bonds issued in Missouri by a de facto County Court. sealed with the seal of the court, and signed by the de facto presi- dent, cannot be impeached in the hands of an innocent holder bv showing that the acting pi'csident was not de Jure one of the jus- tices of the court.'^ states V. Tynen, 11 Wall. 88 ; Wood v. Uniti'd States. 1(5 Pot. 312 ; HoiHlorson's Tobacco, 11 Wall. 652; King v. Coiucll,. 106 U. S. 3!)5 ; Muidock v. City ol' MiMiipliis, 20 Wall. 5!)0. Recitals are estopiK'ls only as to facts which such recitals fairly import. Where the holder relies for protection u|>on mere recitals, they should, at least, be clear and uiianibij,'Uous, in order to e.stop a niuniei))al corjioration in whose name such bonds have been made, from show- ing that they were issued in violation, or without authority, of law. School Dis- trict V. Stone, lOd U. S. 183. 1 Parkersburg v. Brown, 106 U. S. 487. Where there has been a total want of po.vcr to issue the bonils originally, under any circumstances, and not a mere failure to comply with prescribed requirements or conditions, the case is not or.e for apply- ing to the municipality, under any state of facts, any doctrine of estopi>el or ratiti- cation, by reason of its liaving j)aid some instalments of interest on the bonds (Loan Association v. Toi)ekri, 20 Wall. 655), or by reason of any nf ilie lets of its olli>\ers or agents in dealing with the property covered by the deed of trust. No such acts can give validity to the statute or to the bonds, however they may alfect tlie sf.iifus of the ]iro|)erty ilealt witii or the relation of the municipality to such prop- erty. I'arkersburgy. Brown, lOti IJ. S. 487, 501. Where the illegality of the eontru't does not aiise from any moral turi)i- tude, and where i)roperty is transferred tea municipality under a contract which is merely tnii/iim prnhihitian, and when: the miini(^ipality is the ju-incipal offender, the municipality may be made to refund to tiie person from whom it has received property for the unauthorised purpose, the value of that whic^h it has actually received. White v. Franklin iJank, 22 Pick. 181 ; Morrille v. American Tract Soe., 123 Mass. 129 ; Davis i'. Old Colony hailroad, 131 Mass. 258, 275 ; In re Cork & Youghal lUilway, L. R. 4 Cu. 748. But when the corporation lias act- ually received nothing in money or |iiu|i. erty, it cannot be held liable u|iiiu an agreement to share in, or to guarantto tlio profits jjf, an enterprise which is wliolly without the scope of its corporate powers, upon the mere ground that conjectural or speculative beiu'lits were believed by it'- ollicers to be likely to result from the making of the agreement, and that the other party has incurred exjiense iipoii the faith of it. East Anglian Railways r. Kastorn Counties Hail way, 11 0. 15. 775; Macgregor v. Dover & Deal Railway, IS Q. H. 618 ; Ashbury Hy. Co. v. liiclie, L. U. 7 U. L. 653 ; Thomas v. Uailroail Co., 101 U. S. 71 ; Downing i\ Mt. Wash- ington Road Co., 40 X. II. 230 ; iMaiiklin Co. I'. Lewistou Ins. for Savings, 68 Jle. 43. 2 County of Ralls v. Douglass, 105 U. S. 72!); State v. Dougla.ss, 5(» .Mo. 5!t3, 596 ; llarbaugh v. Winsor, 38 //). 32:. The distinction between an ollicer df facto and an olRcer dc jure is well estab- lished, and is of ancient origin. It is .said in the case of Parker w. Kett, 1 Ld. Ka;- n. 660, that an ollicer dr fitch) is one who has the reputation of being an ullicer, and yet is not a good oltieer in i>i>iiit of law ; and this definition is (|Uoti'd ami api)roved by Lord Kllenlioiougli, in He.v V. Corporation of Bedford, 6 Ivvst, 36S. A person may be disciualilied and ineli- gible to hold an ottiee, yet, as a df /'"''" ofiicer, his acts, until liis removal, will be valiti as to third ])ersons. St. bonis County f'ourt v. Sparks, lO Mo, 117; Kiiight I'. Corporation of Weils, 1 Lutw. 509, 519. And where an appointiinnt is regularly made, it is a c-' -ralile aiitli' for the appointee, and renders him, "i.- exercising the functions of the olli'e, an ofiicer de facto, and Ins acts valid, so Tarns third p-rsons are eoncerneil, even tlion^'ii he has not pursued the neee .sary foimaii- ties to make him an olli. er <"• jiii'i\ l""' People V. Cook, 4 Seld. 67, 81». It is said in this case ; "An ollicer dc fnclo is ono PART v.] CORPORATIONS. 425 It is no defence to bonds issued by counties in Missouri, in pay- ment of subscriptions to the capital stoclc of a company, and in the luuids vf innocent holders, that the company to whoso stock the subscription was made was not organized within the ti-no limited by its charter.^ Wlien authority is granted by the legislative branch of the gov- cnimeiit to a municipality, or a sub-division of a State, to contract an extraordinary debt by the issue of negotiable securities, the power to levy taxes sutlicient to meet, at maturity, the obligation to be incurred, is conclusively implied, unless the law which con- fers tlie authority, or some general law in force at the time, clearly manifests a contrary legislative intention. The power to tax is necessarily an ingredient of such a power to contract, as ordina- rily political bodies can only meet their pecuniary obligations tln'oiigh the instrumentality of taxation.^ The prohibition in the constitution of Missouri, of 1805, art. 11, sec, 14, prohibiting a county from becoming a stocivholdor in or loaning its credit to a corporation, without a vote of the j)eople, tt { t ( wild I'oini -. into office by color of a legal apiiiiiiiliiic'iH 'ir ck'ctioii. His acts in that ca]Miiity alt' as v:!liil, as far as tlu- public is (.'oiiciTiiid, as till) acts of an oliiccr dc juir. Ills tititi cannot be ini|uirc(l into lolhitiMiilly." The doctrine on the subject will 111' Iciuml in the following; cases ; The Pt'oplc t'. lio]ison, 1 Dcnio, 570 ; Cocke !'. llil^cy, lii I'ct. 71 ; lVo[)le v. Stevens, .'i Hill, tjlf) ; McKinstry v. Tanner, 9 .Iiiluis. 54ii ; Wilcox i'. Smith, 5 WtMid. m ; lierrvinan r. Wise, 4 T. 1{. 30() ; BeviMi V. VVillianis, 3 T. U. t);{5, n. ; Had- lonl V. Mcliit')sh, 3 T. U. t)3'J ; Crosse v. Kiiv, t! T. i;. t))i3; 17 Vin. Ati. 114 ; The l'e»|ile V. I',;,ith'tt, (5 Vend. 432 ; Weeks r. Kll'.s, -2 l!;irb. :5-:4. The doctrine that till' acts 111' ;in olhi er de fartu are v ilul e^- tt'inN iiiily to [irevent mischief to sucl; as ciinliili' in iiiHii'rs wlio are acting without li^'lit. Th" cilice is void as to the otiicer liiiiM'lt', tliiini,'li valid as to strangers. The l\'o|i|'- r. Collins, '/ Johns. ,")4'J ; Fowler V. lii'lHc, '.I Mass. 231 • Commonwealth v. Fowler, lo Mas;,. 2i>ii; Hmknian v. Uuggles, iri Mass. ISO ; Uiddie V. The County of I5ed- funl, 7 S. & H. 3St;, 392 ; Parker v. LufF- l")n)ii,;;li, 11 S. & U. 249 ; Keyser V. iMc- Kissiii, 2 11 lule, 139 ;Cro. KHz. fi99 ; King f. l.ysle, .\iidre\v.s, 1()3 ; Hii/psly y. Tucke, 2 l.iv. IS t. Ill Cro. KHz., 699, the reason is 1,'ivi'ii !',,r the rule : "That the net of an ollii'i-r ilr fiu-to, where it is for his own lii'iii'lit, is void ; because he shall not teke ailvaiitai,'!' of his own want of title, which lie must he conusant of ; but where it is foithehi'iielitofstrangersortliepublio, who are presumed to be ignorant of such defects of title, it is good." In llarhaugh v. Win- sor, 38 Mo. 331, the court say : "The rule ini|)arting validity to the acts of a dr facto otiicer is indispensal>ly necessary to pre- vent the failure of justice. Tin; business of the coinnmnity could not be tiansai'ted without it. Irrepanible wrong would re- sult from any other doctiiue. Thi? public are necessarily compelled to do business with an ollicer who is exercising the duties and privileges of an ollicer under color of right, and to .say that his acts as to stran- gers should be void, would be gross in- justice. It would cause a susjicnsion of l)U.'-iness till every ollieer's right t/c jure Viiu eEt''blished. This would not only jiroduce inci-^wenience, but it wo;;ld be a sheer absurdity. The law will therefore not permit otiicial acts to be impeached collate- ally. Tlii-s view of the law is well settlcii, and we a"e not aware of any uu- thoritv CO the contiary." I County of Halls v. PouLdass. 105 U. S. 728'; Hal! Bank v. .Mcichants" Hank, 10 .Mo. 123 ; Kayser v. Trustees of jlrenien, Iti Mo. 88 ; Smith v. t'ounty of CI.Mk, 54 Mo. 58 ; City of St. I.oin's V. Sh.elds, ti2 .Mo. 247 ; County ol .Macon V. Sl.( V, ,■., 97 U. S. 272. a Ralls County Court v. United States, 105 U. S. 733 ; Loan Association v. To- pcka, 20 "Wall. 645 ; United States v. Now Orleans, 08 U. S. 381 ; United States r. County of Macon, 99 U. S. 58'2 ; Stale V. Dallas County Court, 72 Mo. 320. : !■• t: i 1 426 COMMENTARIES ON SALES. liHM [book II. was intended as a limitation on future legislation only, and was not intended to retroact so as to have any controlling application to laws in existence when the constitution was adopted.* Bonds were issued by a municipality in New York and given to a railroad company, which, as between the municipality and tlic company, were decided to be illegal. Wlicther good as be- tween holders and the municipality depended upon whether the holders were bond fide holders for value, without notice, and the municipality was held not to be estopped by the fact that the same holder had previously obtained judgment on similar bonds, as non constat but he may have obtained those now sued on after the illegality of the bonds had been decided, and under circum- stances which would show that he was not a bond fide holder without notice.^ Although tlic records of the municipality contained no evidence of a township meeting at which the qualified vo.vs assented to the issue of bonds, yet the court held that Jici (';< "^utes con- ferred ample authority upon the township to i,- ,ae Moads in pay- ment of the donatioil voted, the qualified electors assenting thereto 1 Comity of Ralls v. Douglass, 105 U. S. 723. The Supreme Court of iMis- souri has many times decided in this way, and the Uni'^ed States Supreme Court, fol- lowing such decisions, has always held tiie same doctrine. State v. Macon Countv Court, 41 Mo. 453; Kansas City, &c. R. R. Co. V. Alderman, 47 Mo. 349. In State v. C.)iiiity Court of Sullivan County, 51 Mo. 522, it was said : "It has always been held that the provision of the Constitu- tion, art. 11, § 14, was a limitation upon the future power of the legislature, and was not intended to retroact so as to have any controlling application to laws in existence when the Constitution was adopted." State v. Greene County, 54 Mo. 540 ; County of Callaway v. Foster, 93 U. S. 567 ; County of Scotland v. Thomas, 94 U. S. 682 ;' County of Henry V. Nicolay, 95 U. 8. 619 ; County of (."ass V. Gillett, 100 U. S. 585. When all these cases W(!re decided the act of March 23, 1861, was in force, wliii;h provided that it shouiil not be lawful for counties to sub- scribe to the sti.ck of railroad companies until an election had been held under tiie provisions of that ai^t, yet it seems never to have been specially referred to, either by counsel or tlio court, except juco in Smith V. Clariie County, 54 Mo. 58, 70, when Napton, J., said: "So tliat tlie provisions of the revised Code of 18.')5, and tiie amendatory acts of 1860 and 1861, anl the constitutioiial prohibition, and the > -l'' I.itive adoption of that pro- hibition iuiuieiliately after its passage, have been held by repeated adjudii.'ations, and without any coiillictiug oiilnions of the court, or any individual judf,'c thereof, so far as their rei)orts show, not to eH'cct the repeal of the privileges contained in special charters." By later decisions in Missouri, in State v. Garroute, 67 Mo, 445, and State v. Dallas County, 72 Mo. 329, this whole line of ca.ses was sulistaii- tially overruled. In County of Hulls c. Douglass, 105 U. S. 728, 731, the tiiiineme Court of the United States i 'fiiseil to 'ol- low tiiese later d;'cisions on the <^r "id that the bonds involved in the sui' . :" all in tl e hands of innocent holde' sh> ■ the law of the State was so jjiuli';, •!>•»'■ tered by its courts ; and that t' ^ nc'- '«• the parties to the suit were to be i. tci : i p by tiie law as it was judicially .oiimi' . to be when tlie bonds in (|a.'stion if: Eut on the market as commcnial pr.per. louglass 1). I'ike County, 101 l'. S. 6S7, ^ Stewart V. Lansing, loi l'. S. 50.'i. And see Cromwell i: County of ."^ac, I'l U. S. 351. It is an elementary nilc that if fraud or illegality in the iui'c|itioii ot negotiable paper is shown, an inddist'c bo- fore ho can recover must prove tiiat ho is a holder for value. The mere pussission of the paper under such circi'" ;trtin'i's is nit enough. Smith i». Sai' i- 'itv, 11 Wall. 139; Hall r. Fcallici tr •• 1 If. i N. 284; Bailey w. Bidwell, 13 M. . ' -'3; Fitch V. Jones, 5 K. & H. 238; .' ryv. Al('"rman, 14 C. B, 95 ; Mdn.iiiuls c Groves, 9 M. & W. 642; Smith i'. Uinine, 16 Q. b. 2*4 [book II. only, and was ng application •ted.i ork and given micipality and 31' good as be- »n whether the notice, and the ! fact that the similar bonds, r sued on after under circuiu- nd fide holder led no evidence ;'i'h assented tu e : /^utes con- e ooads in pay- isenting tliereto )eated iidjudii.'iitioiis, itlicting oiiinioiis of ifiiluiil juilst: thereof, I show, not to ellk't |vik'j;L's coutiiiued iu Inter decisions in Giirvoutc, 1)7 Mo. IS Coiiuty, 72 Mo. (!asos was siilistiui- County of lialls c ;, 731, tlu! Siipremf itatcs ! .'fiiseil ti. ■id ions on tlie {,"■ ed iu till' sui' - "" o(!ont holtk'i ii' lis so malt'!., i.v a'^ ,d that '.' ' r,:'. ^; ■ere to bi' >. tt". i "■ udicially >on.Mir ■ in (la.'siioi, ff! coinincn'iiil I'-per. tv, 101 r. S. OSJ. iiL', 101 r. s. ou'i. lunty of S;k', lU ii'iufntiiry nili' tliiit in tin- iiiVi'|itioii ot Avn, an imloisee Iw- jirovn tiiat I'.o is lie mere |i(issi siinn h i-iiri" ^tiUii'i's is , Sa^' '..■ -ity. " iitlit'i ic •. 1 H. i H, i:! '■!. - ■ ''^i Be H. '23.S; .- ■I'V- it;') ; Kdlioimls i'. ; tjuiith V. Hruiue, PART v.] CORPORATIONS. 427 at a regular or special town meeting, and as the bonds recited that they were issued in pursuance of the autliority conferred by those statutes, the validity of the bonds, in tlie liands of a bond fide purchaser, did not depend upon proof that such an election was in fact duly called and held, at which the qualified voters as- sented to an issue of bonds in j)ayment of the donation previ- ously voted. The recital imported a compliance with the statute, and the township was estopped from asserting, as against a bond fide holder for value, that such recitals were untrue.^ A municipality having power to issue its bonds, under which it issues them and puts them into circulation as commercial securi- ties, the bonds, particularly if they are negotiable, are primd facie obligations of the obligors, if they had power to issue them, and are binding according to the terms and conditions apparent on their face until the contrary be shown. All the holder of them has to do, in case of non-payment, is simply to sue on the bonds. If there is any defence to them by reason of want of perform- ance of any of the requisites necessary to give them validity, or for any other cause, it is necessary for the obligor to show it. Whether an alleged defence, when set up, is or is not good against the |)urticular holder, is to be determined by the court in each casc.2 The capital stock of a corporation, especially its unpaid sub- scriptions, constitutes a trust fund for the benefit of its general creditors, and its governing officers cannot, by agreement or other transaction with the stockholder, release him from his oljligation to pay, to the prejudice of its creditors, except by fair and honest dealing and for a valuable consideration.^ 1 Bonham v. Needles, 103 U. S. 648. See liarter y. Keniochiui, lb. 562 ; Bii- cliaiiiiii I'. Litehlield, 102 IT. S. 278. In Kenicott V. Sm(ervi,sors, 16 Wall. 452, tile rule was thus stated : " If an election or ntliei' fact is re(iuired to authorize the issue of the bonds of a nuini(!ii>al corpora- tion, and if the result of that election or tlie existence of that fact is by law to bo iisiertained and declared by any judge, utlicer, or tribunal, and that jud<,'e, ofHcer, or tiiliuii.d on behalf of the corporation, executes (II issues the bonds, with a recital tliiit the eleition has been held or that the I'lut exists or li.'s taken place, this will be siilTieieiit cvidenci, of the fact to all lumd ,t!'k liolilers." County of Moultrie v. Sav- iiij-'s B;iiik, 92 U, S. 631 ; Marcy f. Town- ■sliip of Oswego, Ih, 637; Conunisfioners of Knox County v. Aspinwall, 21 How. Ml' ; -lenns v. Pratt, 99 U. S. 676 ; Tuwn 1,1 Colonia t-. Eaves, 92 U. S. 484 ; Hninliolilt Township v. Long, lb. 642. 2 Lincoln v. Iron Company, 103 U. S. 412. 8 County of Morgan v. Allen, 103 U. S. 498. See Sawyer v. Hoag, 17 Wall. 610. tn Sawyer i;. 'Upton, 91 IJ. S. 56, tlie United States Suju'enie Court said : " 'Die capital .stock of an iiicorjiorated conipnny is a fund .set apart for the payment of its debts, it is a substitute fur the pei'sonnl liability which sulisists in private copart- nerships. Wlieu debts are incurred, a con- tract arises with the creditors that it shall not be withdrawn or applied otherwise than upon their deniantls until sueh de- mand.; are satisfied. The creditors have a lien u|ion it in equity. If diverted they may follow it as far as it can be traced, anil taibject it to the payment of their claims, except as against holders wlio have taken it bomt fide iov a valuable considera- tion and without notice. It is publicly pledged to those who deal with the corpo- ration for tlieir security. Unpaid stock V ;.. t^ ! » i t i: I I Hi !i{ U ; \i\ \\\ 428 COMMENTARIES ON SALES. [book II. (i ^;^!J;! :•■ I By the constitution of Tennessee of 1834, the legislature was prohibited from granting special immunities to individuals, but it had "power to grant such charters of incorporation as may be deemed expedient for the public good." In County of Tipton i'. Locomotive Works,* it was held that certain acts passed by the legislature were not repugnant to the constitution by reason of their having conferred authority on a limited number of counties, to make, and on a particular corporation to receive, a subscrip- tion of stock, nor because they dispensed with the previous assent of the people of such counties expressed at a popular election.^ A congressional township, being, under the constitution of Illi- nois,-^ a body incorporated for scliool purposes only, comes within the limitation of the constitution on the power of the legislature to authorize taxation by public corporations or the political sub- <>'; isions of the State.* Taxation, therefore, on persons and proi)- v within the jurisdiction of such township, to build railroads, i;. iiot taxation for a corporate purpose, and their bonds issued for such a purpose are invalid.^ Until the legislature authorizes an election, a vote of the people is as imifili a part of this pledge, and as imicli a jiait of the assets of the coinpaiij', as tlie cash which has been paid in upon it. Creditors liave the same right to loo': to it as to anything else, and the same right to insist upjn its payment as upon the payment of any otiier debt due the company. As regards creditors, there is no distinction between such a demand and any other assets which may form a part of the property and elfects of the cor- poration." Tlie same doctrines are held in Ui)ton v. Trihilcock, 91 U. S. 45; Wel)- ster V. U])ton, lb. (55; Hatch v. Dana, 101 U, S. -H)'); Morgan County y. Thomas, 76 111. 120 ; Thomas v. Tiie County of Mor- gan, 39 111. 49u; 59 111. 479; Henry «. The Vermilion, &c. Ky. Co., 17 Ohio, 187; Miers v. Z. & M. T. Co., 11 Ohio, 273 ; Morris v. Cheney, 51 111. 451. 1 103 IJ. !S. 523. 2 See School District v. Insurance Co., 103 U. S. 707 ; County of Wilson v. Na- tional Hank, lb. 770. And see the follow- ing T<'nnessce cases. Hudd v. The State, 3 Iliimi.li. 4S3; Vanzant i;. Waddel, 2 Yerg. 2tiO; State Bank v. Cooper, lb. 599; Tate V. Bell, 4 Verg. 202; Ollicerr. Young, 5 Yerg. 320; Kisher v. Dabbs, 6 Yerg. 119; Jones V. P(!rry, 10 Yerg. 59, 78; Marr v. Enboe, 1 Yerg. 452 ; Sheppard v. .John- son, 2 Humph. 235; Hazen v. Union Hank of Tennessee, 1 Sneed, 115, 118 ; Nichol V. Mayor, &c., 9 Humph. 252 ; City of Memphis V. The Memphis V'ater Co., 5 Hcisk. 495 ; Memphis City l!d. Co. v. Mayor, &c. of Memphis, 4 Cold. 406; McCallie v. Mayor, &c., 3 Head, 317. * Art. 9, § 5, of the constitution of 1848. * Johnson v. Campbell, 49 111. 316; Harward v. St. Clair Drainage Co., [d 111. 130; Madison County v. People, 58 111. 456. . 6 Weightman v. Clark, 103 U. S. 256; Trustees v. People, 63 111. 299 ; People v. Dupuyt, 71 111. 651; People v. Tru>t(!i's of Schools, 78 111. 136; Hackett v. Ottawa, 99 U. S. 86. In AVilliams v. Loiii.-'in.i, 103 U. S. 637, bonds were held vcjid as having been issued in e.vcess of the cdiisti- tutional limitation allowed in the State. See also Railroad Co. v. Falconer, 103 U. S. 821 ; and see Thomp.son v. P rrine, lb. 806, where the invalidity was lieW cured by the pas.sage of a later act. lioiiJs issued under an act authorizing their issue on a majority of the electors voting in favor of their issue, were declared void in Missouri, the constitution ri'i|uirini; ii two-thinl vote. Jarrolt v. Moheilv, 103 IT. S. 580. See Insurance Co. v. Hnu'f, 105 U. S. 328, on a numicipality lu'lng estopped from contradicting tlie niitul in its bonds that tliey conformed to the htat- utory requirements. See a'so County of Moultrie v. Fairtiehl, 105 U. S. 37o; Han- nibal V. Fauntleroy, lb. 408 ; l-i«is v. Commissioners, fb. 739 ; Paiia v. Howler, 107 IT. S. 529 ; County of Cluy v. Society forS.ivings, 104 U. S.579. [book II. Bgislature was ividuals, but it on as may be ty of Tipton v. passed by the 1 by reason of cr of counties, ve, a subscrip- Drevious assent iar election.^ titutioii oi" llli- ', comes within the legislature e political sub- sons and I'l-o])- >uild railroads, onds issued for ;e of the people Ms, i Cold. 406; i., 3 Head, 317. the constitution of pbcll, 49 111. 31tj; )riiiiiaj;« Co., Td 111. f V. Pt'oide, 5S 111. ark, 103 U. S. 256; 111. 299 ; reiiple i'. 'eoiile V. Ti'iiNtci's of Hackett V. Ottawa, liains V. Louis'ni.i, were lu'M void as exoes.s of the cniisti- lowed in tlu' State. V. Fidcoiicr, 103 loinp.son V. Ptrriiie, iivalidity was lielil fa later act. lioiiJs authorizing their the electors voting were dechnvd void itutioii rc'iiiiriiii! a It V. .Moherjy, 103 raiioe <'o. v. Biiu'e, nmnicii)ality l"'ing Ming the rcrjtal in iifornied to the stat- See a'so Cimiity of Oa U.S. 3711; Han- lb. 408 ; I-ewis r. i9 ; Pana f. liowler, y of Clay V. Society 579. PART v.] CORPORATIONS. 429 cannot be taken which will bind the municipality, or confer upon the municipal authorities the power to make a subscription. The legislative authority to obtain the popular assent is as essential to the validity of the election as it is to the subscription.^ Bonds of the State of Florida, which had been fraudulently- issued and delivered to a railroad company, and notwitlistanding a resolution that they should be destroyed, were fraudulently sold ; although not recoverable against the State, the railway company was hold liable under a statutory mortgage as security for the pay- ment of the bonds to bond fide holders.^ No legislation can confer upon a municipal corporation author- ity to contract indebtedness which the constitution expressly declares it shall not be allowed to incur.^ Therefoi-e, where it appeared by evidence, of which the corporation could rightfully avail itself as against a bond fiJe holder for value of its bonds, that they created an indebtedness in excess of the amount to which municipal indebtedness was restricted by the constitution, the bonds were held void for want of the leajal authority to issue them at the time they were issued ; there being no such recitals in the bonds as to estop the corporation, as against a bond fide holder of the bonds, from denying that they had been illegally issued.* The plaintiffs, having done work for the city of AVashington, received a certificate from the city auditor, certifying that he had audited their account and allowed them 88,451,88. By law in the District of Columbia, these certificates could be surrendered to a board of audit in lieu of interest-bearing bonds of the District. 1 Allen V. Louisiana, 103 U. S. 80. - Haili-oad Companies v. .S(duitte, 103 U. S. lis. It was contctided in this case that even if the railroad company were liable on the bonds, that as they were fraudulently put out by the olKiM-rs of the coniiiany. and were unconstitutional, the recovery must be confined to the amount actually paid for the bonds to the agents iif the ciiiiiimnies. But the court .said : "As we have endeavored to show, the homls, although void as to the State, are valiil as to till! company that sold them. Ilavini; been ]>ut on the market by tlie ciini]iaiiy as valid bonils, the company is i'*tii|i]icd from setting up their nni^onstitn- tioiiality. As ajjainst tlie com()any, they (ii'cupy in the market the position of com- iniMcial securities, and may be dealt with and enrcirced as .such. The company, through their faithless agents, are in a jwsitioii where they must meet tliose they nave dealt with eonnnercially, and respond aecorduigly. In commerce, commercial I'nper ineatis what on its face it repre- sents, regardless of what its maker or promoter may liave got for it. The bonds of the State in the o|)en market purported to be what they called for. The company put them out, ami in legal eilect, as wo think, indor.sed them. A band fule holder can now require the indorser to respond to his indorsement connneicjully ; that is to say, by paying what he in eilect agited the maker nnist [>ay." ////-/. p. 144. 8 Law V. Thi' Peojde. 87 111. tiS.'.; Ful- ler c. Citvof Chicag<, 8!t 111. 2.s'J. < Buchanan v. LitchlhM, 102 U. S. 278. In such case the money receiveil by the corporation for the bomls can bo re- covercil back. Louisiana v. Wood, lb. 294. See Lonisian.'i v. Pilsbury, 105 V. .S. 278, on legislation imiiairing the obligation of a contract, in providing a less ade(]nate remedy for the eiiforceiinMit of tlie obligations of a municipality to pay the interest on its bonds. And see Louisi- ana V. Taylor, lb. 454. Invalid bonds for want of authority to issue. Wcdls v. Su- pervisors, 102 U. S. 625; Ogdcn i". County of Daviess, Ih. 634. li ■■' ! I 430 COMMENTARIES ON SALES. [book II. After receipt of the certificate, they borrowed from B. the sum of $3,160 for six months, leaving with liim the certificate indorsed in blank, to be returned to them on the repayment of the bor- rowed money. When it became due they called with the amount and accrued interest to take up the certificate, and found that H. had absconded. Having traced the certificate into the hands of the defendant, they filed a bill against him to compel the restitu- tion of the certificate. The defendant alleged that he had bought tlie certificate, bond fide, for value, without notice. The Supreme Court of the District of Columbia made a decree against the de- fendant. On appeal to the United States Supreme Court, the decree was sustained. The court held that the defendant must be treated as standing in the place of B., and holding the certili- cate subject to the claim and equities of the plaintiffs. The certificate, was not a negotiable instrument which could pass by indorsement and delivery. It was not a promise to pay any sum, nor was it an order upon any one or upon any fund for the payment, or for the delivery of anything of value; and any one taking it took it subject to all the ights and equities of the actual owner as much as if it were tangible property in the streets.* After an order had been made by a county court for the issue of bonds, an act was passed requiring that all bonds should l)e registered and certified or be invalid, it was held that l)onds issued under such order, but after the act named came into force, were invalid, in the hands of homl fide holders, without such registration and certificate.^ Bonds of a township in Kansas, payable to A., a railroad com- pany, or bearer, were duly executed by the township trustee and township clerk, acting in their official capacity as its legal repre- sentatives. They recited that they were issued pursuant to an order of the proper officers of the township, made by authority of an act of the legislature which was therein cited, and were ordered by the qualified electors of the township, at an election duly held. An action was brought by a bond fide holder for value of the interest coupons attached to some of the bonds, who had no notice of any fact impairing their validity. It was held that it was not a defence to the action that at the time of voting and 1 Cowdrey v, Vandenlinrgh, 101 IT. S. 573. Tho jnirchasers of non-iiegntialilo demands from otlnrs than the original owner of them can take only such rights as he has parted with, except when by liis acts he is estopped from asserting his ori- ginal claim. They must in suoii ca.se abide bv the case of the person through whom they claim. Cutts v. Guild, 67 N. Y. 229; Ingraham v. Disborough, 47 N. Y. 421; Bush V. Lathrop, 22 N. Y. fiSa : Mi-Nfil V. The Tenth National Bank, 4(1 N. Y. 325. See Mena.sha v. Hazi.rd, lt.'2 U. S. 81, on conclusivene.S3 of certificate on bonds. " Anthony v. County of Jaspor, 101 U. S. 693. See Bayley v. Taber, 5 Mass. 285. PART v.] CORPORATIONS. 481 issuing the bonds their entire amount was in excess of the propor- tion which by law they should bear to the taxable property of the township, or that after the vote at said election had been cast in favor of subscribing for stock in B., a railroad company, the sub- scription was made for stock in A., and said bonds issued in pay- ment therefor; B. having, under a law existing at the time of said election, become merged into and consolidated with A. to form a continuous lino of road.^ The township trustee and the township clerk who made the subscription and issued the bonds in this case were the officially constituted authorities of the town- ship, and when they subscribed to tlie stock and issued the bonds they acted in their official capacity as the legal representatives of tiic township, and not as mere agents. In this particular they oc- cupied the position of the County Court in the County of Scotland V. Tliomas.'-^ They were to all ir.tcnts and purpo..cs the township in its corporate capacity. In Harshman v. Bates County," the case was different. There the County Court was the mere agent of a corporation with which it had no official connection. The difference between the two cases is precisely that between a prin- cipal and an agent, and it is so expressly said in the County of Scotland Case. In the one case the corporation is bound if the action of the officers is within their corporate powers, while in the other tiic action must be within the corporate powers delegated to the agent. Power to issue bonds for public purposes being lodged in the corporate authorities, and they having put on the market negoti- able securities which purport on their face to have been issued by a city that had charter authority to issue bonds for municipal pur- poses, the defendant is estopped from setting up that in point of fact the purpose was not municipal, when the bonds themselves recite that the loan is for municii)al purposes, and they have come into the hands of a bond fide purchaser, who took them relying on such recitals, and without actual notice of the purpose for which they had been issued oMier than as disclosed on the face of the bonds. The United States Supreme Court held, in Ilackott v. Ottawa,* that a corporation, quite as much as an individual, is held to a careful adherence to truth in their dealings with mankind ; ami cannot, by their representations or silence, involve others in onerous engagements, and then defeat the calculations and claims their own conduct had superinduced ; that it would be the gross- est injustice, and in conflict with all the past utterances of the court, to permit a municipality having power under some circum- stances to issue negotiable securities, to escape liability upon the » Wilson V. Salamanca, 99 U. S. 499, 2 94 U. S. 682. » 92 U. S. 569. « 99 U. S. 86, 98. 1*1 I f i ! 11 m ip m u 1 s ! if r > 'mi . i t '>i I ] h ii: it: 1 1 1 r 432 COMMENTARIES ON SALES. [book II. 1 I % ground of the falsity of its own representations, made tlnough official agents, and under its corporate seal, as to tlie |)Uiposes with which bonds were issued. Whether such representations are made inadvertently, or with the intention, by the use of inaccu- rate titles of ordinances, to avert inquiry as to the real object iu issuing the bonds, and thereby facilitating their negotiation in the money markets of the county, in either case, the municipality, both upon principle and authority, is cut off irom any such defence.* A city issued its bonds, engraved with vignettes on banknote paper, and having the form and appearance of treasury notes of the United States, or bank bills, and it paid them out to its creditors for property sold, materials furnished, and labor per- formed. It received them for taxes and other dues, and to some extent re-issued them. They formed a considerable portion of the circulating medium of the city and vicinity. Under the autliority of a statute of the State, empowering the city council of any city to issue bonds for the purpose of extending the time of paying its indebtcdnes?, which it was unable to meet at maturity, tlio city passed an c.iinance providing for the redemption of the bonds first described. A., the lawful holder of some of them, whicli liad been issued to other parties in payment of valid claims against the city, and were overdue, surrendered them to the city, and received, in lieu of the amount due tliereon, bonds for which the ordinance provided, and a credit on the books of the city. The city failing to pay, A. brought suit against it. A recovery was resisted, on the ground that the bonds engraved on bank-note paper had been issued in violation of law, and that the surrender of them was not a valuable consideration for the bonds and the credit received by A. The court held that whether the original bonds were illegal or not, the city had the right to reconsider their act, and to purge the transaction, if it was illegal, of its illegality. They liad the right to say : " We had the authority to accept from you, in satis- faction of amounts received by us for legitimate purposes, tiie sums * Commissioners of Knox County v. Aspinwall, 21 How. 539; Bissell v. City of Jt'ffersonville, 21 How. 287; Van Hos- trup V. Madison City, 1 Wall. 291; Mer- cer County V. Hackctt, Tb. 83; Suiiervisors V. Sclienek, 5 Wall. 772 ; Grand Chute v. Winegar, 15 Wall. 355; St. Josepli Town- ship V. Rogers, 16 Wall. 644 ; Town of Coloma V. Eavns, 92 U.S. 484; County of Moultrie v. Savings Bank, lb. 631 ; Marcy V. Township of Oswego, lb. 637, Hum- boldt Township v. Long, lb. 642 ; Com- missioners V. January, 94 U. S. 202; Com- missioners V. Bowles, lb. 104 ; Cromwell V. County of Sac, 96 U. S. 51 ; San An- tonio V. Mehalfv, lb. 312 ; County of Warren v. Marcy, 97 U. S. 9(5 ; Mi'.iley V. St. Clair County, 3 Dill. li!3; Allon ». Cameron, Ih. 17.>; Wyatt w. City of Oreen Bav, 1 Biss. 292; Town ot Wi'Viiuwe<;;i v. Ayling, 99 U. S. 112; Supervisors i-'. Cai- braith, 99 S. C. 214 ; Brooklyn r. Insur- ance Co., lb. 362; Orleans v. Piatt, 99 U. S. 676 ; The Royal British Itank v. Turquand, 6 El. & Bl. 32."); Lyans v. Mun- son, 99 U. S. 684 ; Block v. Commission- ers, lb. 686. [book II. lade through the jjui'poses cntations are 30 of iiiaccu- eal object in tiatioii in the municipality, 111! any such on banknote sury notes of !m out to its lid labor per- and to some portion of the the authority ;il of any city ! of paying its urity, the city of the bonds em, which had ms against the , and received, the ordinance 10 city failing IS resisted, on 3cr had been hem was not it received by were illegal and to ])urge They had the you, in satis- OSes, the sums 1 S. 51 ; San An- 312 ; County ot IJ. S. 0(5 ; M''!il('y )ill. lt)3; AUiMif. ,tt ». Cityofdreen ot Wi'Viunvefjii V. Supervisors i'. <'i"- Brooklvn r. Insiir- MHS V. VIM, 99 British ISank v. 2.-)-, l-vans i;. Mun- i;k V. Commission- PART v.] CORPORATIONS. 433 in question. "We did so receive and expend for legitimate pur- poses. Wo erred in making the payment to yon in an objection- able form. We now pay our just and lawful debts by cancelling the bank-notes issued by us, and delivering to you obligations in the form of bonds, to which form there is no legal objection." The case was compared to one where the city borrows on itr note at usurious interest, from a bank, a sum of money ; the bank sub- sequently cancelling the illegal note, refunding the excessive in- terest, and receiving a new note for a lawful amount. The new note would be valid and collectible.' The right to recover on the bonds was sustained.^ The purchaser, in good faith, of bonds issued by a county for railroad stock, where the subscription by the county to the railroad, the receipt and holding of the stock by the county, the necessary assent of the qualified voters that such subscription should be made, tlie actual issuing of the bonds, and their purehase by the plaintiff without knowledge of any objection to them, were con- ceded, was held entitled to recover the amount of the bonds ; the defendants not being permitted to urge as a defence that such rail- road company was not a legally organized corporation when the election was held, and did not become such until after that period.' 1 Kent V. Walton, 7 Wend. 256. ■^ Little Hock v. National IJaiik, 98 L'. S. 308 ; Hitchcock v. Galveston, 96 L'. S. 341 ; The Mayor v. Ray, 19 Wall. 468; rilice Jury v. IJritton, 15 Wall. ot36; Mullarky v. Cedar Falls, 19 Iowa, 24; Sykfs V. LalTery, 27 Ark. 407; Wright v. Hiigiies, 13 Inil. 109. So where the con. sideration of a contract declared void by statute is morally good, a repeal of the stitute will validate the contract. Wash- burn I'. Franklin, 35 Harb. 599. In Key i>. Goodwin, 4 Moo. & P 341, 351, Tindal, C. J,, said; " I take the effect of repealing a statute to be to obliterate it as com- pletely from the records of the parliament as if it had never passed, and that it must be considered as a law that never existed, excejit for the pnrpose of those actions or suits width were commenced, prosecuted, and concluded while it was an existing law." Sei, Butler v. Palmer, 1 Hill, 334 ; Curtis c. Leavitt, 15 N. Y. 85; The People » Livinrrston, 6 Wend. 526. A repeal- ing clause is such an express enactment as necessarily devests all inchoate rights which have arisen under the statute which it destroys. It was held, in the Central Bank v. Empire Stone Dressing Co., 26 Barb. 23, that a repeal of an act which made a contract illegal on the gi-ounds of public policy, repealed also the conse- quences of the act, even as to contracts entered i-ito while it was in force. * County of Davie.ss f. Huidekoper, 98 U. S. 98. The court held that, if assent is given to a specified aid to a railroad named, a perfection of the railway corpo- ration before the subscription was made and the bonds issued was a comidiance with the statute. The decision of the voters, and the action of the County Court, under such circumstances, in issuing the bonds, and subsequent action in receiving and retaining their benefits, gives validity to the bond.s, and they are to be taken as valid instruments. 'I'own of Coloma v. Eaves, 92 U. S. 4o4, 491 ; County of Kandolph t-. Post, 93 U. S. 502 ; County of Leavenworth v. Barnes, 94 U. S. 70 ; Commissioners of Dour^iass County v. BoUes, lb. 104 ; Commissioners of John- son County V. Thayer, lb. 631; County of Cass V. Johnson, 95 U. S. 360; City of St. Louis >. Shields, 62 Mo. 247 ; Smith v. Clark County, 54 Mo. 68, SI. In an ac- tion on bonds from a municipality to a company, a plea of nul ticl corporation will not be permitted where the munii-ipality has solemnly admitted the company's cor- porate capacity by entering into the obli- gation and signing the bond.s. State v, Carr, 5 N. H. 367 ; President, &c. v. Thompson, 20 111. 200 ; Hamilton v. Car- thage, 24 111. 22 ; Kayser v. Bremen, 16 Mo. 88. VOL. I. 28 ! • w III , If ^ ; ; <-'ity tier, 14 Wall. 233; ^a.shinKton v. Texas |t V. Supervisoi's, 10 e Murray v. Ballou, which is tho \ed; m the sul.jo.'t ot /i< ante, p. 3S-2, n. 3, fe court lu'ia, ni tlie 'isycle, 9«U. ^-.^'^l vs to the vaUaity ol it the doubt I'xisting favor of tlu'toiid.n*' pro the aKi>nl3 of the d with the iiowcrol ests of the muuicf with that duty, Iw'l '.suing of the honcS was conclu.led, m\y^ icts of their othcial . own faihire, either I neglect, to assert h) ngs the legal right they had. r.\RT v.] CORPORATIONS. 485 r tic power to contract for grading and paving its streets, and which had contracted for the doing of such work to an amount greater than *jer cent for their pay- ment in any one year. This limitation was enacted, not for the bondholders, but for tho benefit of the taxpayers, so that they might not be harassed with a rail- road tax in any one year too grievous to be borne .... The only taxes that can be levied by counties are such as are pro- vided for by the statute. The power of taxation is a sovereign right which be- longs alone to the State, and which can only be exercised in pursuance of laws i)assed by the legisK'nie for that piiipo.sc. There can be no such thing as an iiii|ilii'.l power in a County Court to levy a lix. The power must be clearly and ex|iriv>ly given by statute. We are called ii|i()ii tij compel the County Court of Macon Coiinty by mandanms to do that which tlic law does not authorize, but expressly pmliil). its. In my judgment this inandanms was properly refused." In United States i'. County of Clark, 96 U. S. 211, tlicic is an attempt made to distinguish that rasi! from State v. Shortridge, 5rt Mo. 12ti, which we do not tiiink is successful. In the one case the mandamus was gnuitoil, and in the other it was relused. lintli applications were tor payments in exrcss of those provided for in the statute. Tlie one application was refused on the gnninJ that the statute did not authorize l\w ex- cessive payment ; the other was f^'atitcJ on the ground that the statute did au- thorize the excessive payment. Tin- idiirt, in the ^ne case, decided that it hail no powe' make the older for such pay- men court, in the other case, di'- cide 't had such )iower. Tln' 'lis- tinction which was sought to be iiimli' was, we think, a distinction without a diiference, namely, that while the i(niit had no jmwer to order the payment hy a special tax in excess of tho one-twciitiutli of one jier cent limited by the statute, it had the jwwer to order the payment (if a sum greater than tho linntation lixnl, to be taken out of other taxes ; /. <•.., the tax called a special tax shall be levied for the one-twentieth of one per cent, ami the other taxes shall be increased (without calling the increase a special tax) lievonJ the limitation fixed by the statute. The case of State v. Shortridge, 56 M". l'2t), was decided expressly on the ground tliiit the taxpayers might not be harassid with a railroad tax in any one year beyond the limit fixed by the statute. The case of United States v. County of Clark, '»ti L'..S. 211, decided that, notwilhstaiidiiif,' the limitation expressly fixed in the statute, they might be. The cases, we think, are in direct antagonism, and that it is only by excessive refinement to an intangihle point that they can be deemed otherwise. The holding of the minority judges in United States v. Clark, 96 U. S. 211, and of the court in State v. ShortI■id^'e, 5ti Mc. 126, we think essentially the same, namely, that the act under whieh the bonds v.-cre issued limited the power of PAIIT v.] CORPORATIONS. 437 la New Orleana v. Clark,* it was held that whcro an ordinance provided that a gas company was to " guarantee " bonds to ho issued to t!iem by a municipality, bearing interest, payable semi- monthly, " and assume the payment of the principal thereof at maturity ; " the guaranty of the company for the payment of the principal and interest was within the ordinance. It was claimed that tlie guaranty as to the interest was unauthorized by the or- dinance ; but the court held that that view was not justified by the language used in it. The guaranty of the bonds embraced butli the principal and the interest. The payment of bonds, with- out other designation, always implies a payment of the principal Sinn and its incident ; and a guaranty, in similar terms, covers botli. The ordinance contemplated two undertakings by the com- pany ; one to the bondholder, and the other to tlie city. The guaranty was to be for the security of the bondholder. It was to be an undertaking to answer for the city's liability, and to be col- lateral to it. The other undertaking was to be for the security of tiic city, by placing the company under obligation to provide for the payment of the principal of the bonds at their maturity ; an obliiration which otherwise would not have existed. Where municipal bonds arc invalid from some irregularity or omission in the proceedings by which they were created, so that they could not be enforced in the courts of law, but they still rep- resL'ut an equitable claim against the municipality, for which an equivalent has been received, and payment of which can only be escaped on technical grounds, the power of the legislature to pass an act requiring the payment of such claim is clear.^ And the constitution of a State which provides that no retroactive law shall be passed, does not forbid such legislation. A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law; any more so than an appropriation act providing for the payment of a pre-existing claim. The inhibition is to pre- vent retrospective legislation affecting individuals, and thus pro- tect vested rights from invasion.^ taxation "for their payment," and that relief could not be looked for from the courts, but from the legislature. See in aeenid with State v. Shortridge, 56 Mo. 126; Clark v. The City of Davenport, 14 lo'.va, 494 ; Supervisors v. United States, 18 Wall. 71. The language of Strong, J. (wlio also delivered the judgment of the coiirt in United States v. Clark ), in Super- visors V. United States, lb. 83, where he refers to the notice that the holders of the obligations of a municipality had of the conditions connected with the levying, un- der the laws of the State, of a sjH'cial tax tor their payment, is, we think, as appli- cable in the one case as in the other. 1 95 U. S. 644. 2 New Orleans v. Clark, 95 U. S. 644 ; The People v. Burr, 13 Cal. 343; Town ot Guilford v. Supervisors, &c., 18 Barb. 616; 13 N. Y. 143. ' New Orleans v. Clark, supra. \\ ,1 \' u\ H n' *; i 41 ■4 m 1 438 COMMENTARIES ON BALES. [book II. u m The majority of the court ir* County of Cass v. Johnstoii,^ on the question of the validity of bonds, held, following local deci- sions in Missouri and other cases,'^ that, where the constitution required the authority of " two-thirds of the qualified voters " of the municipality, to authorize the issuing of the bonds, two-thirds of the voters who actually voted on the qutistion were sufficient to justify the issuing of the bonds, although these might not leji resent "two- thirds of the qualified voters" of the municipality. The minority judgment by Bradley and Miller, JJ., dissenting from this holding, we think the better one. Suppose that, as in other instances, the election could only be held on the requisition of " two-thirds of the qualilied voters of the municipality," tiie registration list would, unquestionably, furnish the test as to whether there was the necessary number of requisitionists to war- rant the holding of the election. The provision that the credit shall not be incurred " unless two-thirds of the qualified voters of such municipality . . . shall assent thereto," we think is equally as clear. The majority of the court, we think, are not at all war- ranted in the conclusion they deduced from the holding in State V. Winklemeier.3 There the court say : " The act expressly re- quires a majority of the legal voters ; that is, of all the leijal vot- ers of the city, and not merely of all those who at a particular time choose to vote upon the question." And although the court afterwards referred to the fact that there had been more than 13,000 votes polled of which only 5,000 were in the affirmative, saying, — " It is evident that the vote of 5,000 out of 18,000 is not the vote of a majority," that meant no more than declaring that as a majority of "all the legal voters" was required, and as there was not even a majority of the votes actually polled, it was clear that there there was not a majority polled of •' all the legal voters ; " the part, at all events, not being greater than the whole. And, as Bradley, J. shows, an analogous clause in the same con- stitution * which declares that ' no bill shall be passed unless by the assent of a majority of all the members elected to «'aeh branch of the General Assembly," has always been construed as meaning that no law can be passed unless a majority of the nuni- bers vote for it, whether all are present or not. So, in annthor case, in even more exact parallelism with County of Cass i\ John- ston,^ where jy sec. 30 of art. 4 of the constitution, it is provided 1 95 U. S. 360. " Sen State v. Mayor of St. Joseph, 37 Mo. 270 ; State v. IJimlor, 38 Mo. 450 ; State V. Sutterlield, 54 Mo. 391 ; St. Jo- seph Township V. l{oj?t'rs, 16 Wall. 644 ; Louisvilh' & N'ashvill.' H. R. Co. v. Tlie County Court of Davidson, 1 Siiueil, 6^3 , Taylor v. Taylor, 10 Minn. 107; IVoiil.' \\ WarfieM, 20 111. 1.59; People v. (h\nv-, 47 111. 24d, People r. Wiant, 48 111. 'lf>'i « 35 Mo. 103. ♦ Act IV. of the Coastitutiou oi" Mis- souri of 1865. ' 95 U. S. 360. EKS PART v.] CORPORATIONS. 439 " that the General Assembly shall have no power to remove the county -seat of any county unless two-thirds of the qualified voters of the county, at a general election, shall vote in favor of such removal," it was held that these terras requirv;d a positive vote in the ailirmative of two-thirds of the q-alificd voters of the county ; the court saying, — "There is no diH'culty in ascertaining what that number is, since the same constitution provides for a regis- tration, and points out who the qualified voters arc." ^ Had the cUiuse re(]uired only the assent of owo-thirds majority of such of the voters of the county as voted at such election, the meaning would i}e clear, and County of Casi i. Johnston would have been correct ; but, as it required the asscp*- of " two-thirds of the qual- IJied voters of the counti/" we think it is equally as clear that the assent of a less number than " two-thirds of the qualified voters of the county " was not sufficient, and that County of Cass v. John- ston was wrongly decided, and that Harshman v. Bates County ,2 which it affected to overrule, is the better law. Tlic charter of a railway company contained the power to con- struct a branch, and gave the County Court power to subscribe stock for it, and an act of the State legislature authorized such branch and stock to be an independent interest. The bonds of the county showed that they were made to the parent company, to the use and in the name of the branch, to aid in building said branch. The court held, that the purchaser, therefore, was ap- prised by the law that power existed in the County Court to issue sucli bonds without any election of the people, and, there being nothing on their face to show that they were not regularly issued, it was not incumbent on the purchaser to inquire whether the railroad company had pursued all the regular steps necessary to entitle it to receive the bonds. The agents of the branch road having had the bonds for sale, the purchaser had a right to pre- sume that they were lawfully entitled to them ; and the fact that, after the subscrijttion was made, but before the bonds were issued, the parent company had sold and assigned a portion of its route with its franchises to anotlnr compaiiy , did not alter the ease.'' A prohibition in the constitution k^* a State against the legisla- ture's authorizing municipal subsc ij lions or aid to private cor- porations, does not take away any authority previously granteu. It only limits the power of the legislature to grant such author- ity for the time to come.* And, where such a power has been ties County of Henry v. Nicolay, 05 U. S. 619, and County of Warren v. Marcy, 97 ' Stiito V. Sutterfield, 64 Mo. 391. ti •^ U2 v. .S. 6(i9. 619, ~ ' ( oiinty of Henry v. Nicolay, 95 U. S, U. S. I(l7. filit. Tlic^ court in t^ic County of Case v. * County of Scotland v. Thomas, 94 'jillftt, 100 U. S. 585, followed ns aiUhori- " o. 682; The Stato v. Sullivan County, n 11, ■\ i: 1 i ?" ? V 1 ) i H 'nl.| ■|! U li^'' 440 COMMENTARIES ON SALES. [book II, granted, the fact that the company which has been granted such aid has consolidated with another company, will not affect the right of the municipality to subscribe, nor the privilege of the company to receive the aid, nor affect the bonds of the municipal- ity issued for such aid.^ A municipal corporation ^nnnot issue bonds in aid of extrane- ous objects without legislative authority, of which all persons deal- ing with such bonds must take notice at their peril. ^ Not only the courts, but individuals, are bound to know the law, and cannot be allowed to plead ignorance of it. The iKjlder of municipal bonds can claim no indulgence on that score, and can take no advantage from the allegation that he is a bond fide purchaser without notice. Want of legislative authority by the municipality to issue bonds is a fatal objection to their validity, no matter under what circumstances the holder may have ob- tained tliem.3 Bonds of the kind executed by a municipal corporation to aid in the construction of a raih'oad, if issued in pursuance of a power conferred by the legislature, are valid commercial instruments, and, if purchased for value in tiie usual course of business l)efore they are due, give the holder a good title, free of prior oiiuities between antecedent parties, to the same extent as in case ol' bills of exchange and promissory notes. Such a power is freiiucntiy 51 Mo. 522 ; Tho State v. Greene County, 54 Mo. 540; County of Callaway v. Fos- ter, 93 U. S. 567; State v. Maysville & L, Railroad Co., 13 B. Mon. 1. 1 County of Scotland v. Thomas, 94 U. S. 682 ; The State i>. Greene County, 64 Mo. 540; The Philadelphia & W. Rail- road Co. V. Maryland, 10 How. 376 ; Tom- linson V. Branch, 15 Wall. 460; Branch V. City of Ciiarli'ston, 92 U. S. 677; Smith V. County of Clark, 54 Mo. 58; The Han- nibal & St. .1. Railroad Co. v. Marion County, 36 Mo. 294, 304 ; Hanna v. The Cincinnati, Fort Wayne & Ch. U. R. Co., 20 Ind. 30; Town of East Lincoln v. Dav- enport, 94 U. S. 801. In a suit by a bond Jidv. owner of the coupons of municipal l)onds, questions of form merely, or irregularity, or fraud, or misconduct, on the part of the agents of the town, caimot be considered. There must Ihj nuth.jrity in the municipality to i.ssue the l)onds by the statutes of the Stat*;. If this cannot be found, the holder musi fail. If it exists, he is entitled to recover. The olficers of the municipality are not the agents of the owner of the tonds, but are the agents of the munici- pality, and if there has been misconduct on their part, the muuicipality rather than a stranger must bear the cotiscijuen. ces. Town of East Lincoln i-. Davi'iiiuirt, 94 U. S. 801. A municipality is fstupiied from denying its liability on tln:if bomls, in the hands of an innocent holdiT, where the bonds have iK-en issued iiml''!' the order of the (.'ounty Court, that court litiiig authorized by law to onler thr issuing of such bonds, even though tlif Cmiiity Court in ordering such issui' nmy li.ive had some misajjprehi'nsion in tlu' matter. County of Cass v. Shores, 95 U. S. 375. In the County of Leavenworth . IIhiik's, 94 U. S. 70, the United States SiiiHvme Court, following the decisions of the Su- preme Court of tho State, held iiiuiiieipal bonds to lie gotxl as to a homi ./''/'• I'Ui- ehrtser of the bonds without notiee ol' the defences, although the Ixinds hul been issued without a strict coniiiliaiiee with all the iireliniiiuirv formalities re(|uiie(l. " Town of South Ottawa i-. Perkins, 94 U. S. 260 ; Pendleton Coiintv v. Aiuy, 16 Wall 297 ; Kenicott v. Tlie Super- visors, 16 Wall. 452 ; St. .loseph Town- ship V. Rogers, Ihid. 644 ; Town ol Colonia V. Eaves, 92 U. S. 484. 8 Town of South Ottawa v. Peikius, 94 U. S. 260. II .11- PART v.] CORPORATIONS. 441 conferred to be exercised in a special manner, or subject to cer- tain regulations, conditions, or qualifications; but if it appears that tlie bonds issued show by their recitals that the power was exorcised in the manner required by the legislature, and that the bunds were issued in conformity with the proscribed regulations and pursuant to the required conditions and qualifications, proof that any or all of the recitals arc incorrect will not constitute a defence to the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecodont compliance with the regulations, conditions, or qual- ifications which it is alleged were not fulfilled. ^ A municipality must have legislative authority to subscribe to the capital stock of a bridge comjiany, before its officers can bind tlie body politic to the payment of bonds purporting to be issued on that account. Municipal officers cannot rightfully di.spense with any of the essential forms of proceeding which the legisla- ture has prescribed for the purpose of investing them with power to act in the matter of such a subscription. If they do, the bonds they issue will be invalid in the hands of all that can- not claim protection as bo)i4 fide holders. To be a bond fide holder one must be himself a purchaser for value without notice, or the successor of one who was. Every man is chargeable with notice of that which the law recjuires him to know, and of that which, after being put upon inquiry, he might Have ascertained by the exercise of reasonable diligence. Every dealer in municipal bonds wliieli, upon their face, refer to the statute under which they were issued, is bound to take notice of ti ■ statute and of all its require- ments. And where bonds, by then recitals, show that the bonds were irregularly issued, and not binding upon the municipality, they carry upon their face unmistakable evidence that the torms of vhe law under which they purported to have been issued, have not been complied with. While a purchaser may be {)rotcctcd, as he sometimes is, by false recitals in municijtal bonds, thf munici- pality lias the l)onefit of those recitals that are true. And whore coupons, detached from the bonds, are purchased, and on their face thoy refer to the bonds and purport to bo for the interest due thereon, the purclia.icr is put upon inquiry for the bonds, ami is charged with notice of all that they contain.^ ' <'iimmissioners of Miirion County v. Clark, 94 IJ. S. 278 ; St. Joseph Town- ship V, l{ii;,'(>r.s, 16 Wall. 659; Town of (-'ulniiiii ,.. Haves, 92 U. S. 484. ^ ^ Ml dure V. Townsliip of Oxford, 94 ^^ S Vl\^ ; GeorRfi V. Oxford Township, 16 KuQs. 72. A State act passed prohibit- ing a niunieipnlity from becoming a sub- scriber to tlie capital stocit of a railway company, does not render invalid the bonds of a municipality issued for stock, sub- scribed for after tlie passage of tlio pro- hibiting act, but under an act in force passed before the prohibiting act was en* ^: . ^1 iiir; Mm ' • ! ■■ :■:■ ll 1 1 I 11 . '1 442 COMMENTARIES ON SALES. [book II. Where the authority of the majority of voters w&s required to authorize the issue of county bonds, and the County Court judge, who was the officer designated by the statute to decide whctlier the voters had given the required sanction, executed and issued the bonds, and the requisite popular sanction was set forth on their face, it was held, in Lynde v. The County,^ as a settled rule of law, that where a particular functionary is clothed with the duty of deciding such a question, his decision, in the absence of fraud or collusion, is final. It is not open for examination, and neither party can go behind such decision. And, under such circum- stances, where the bonds are in the hands of a bond fide purchaser; he is not bound to look beyond the P'erment on their face. In National Bank of Washington v. Texas,^ where there was no evidence that bonds of the United States which had been issued to Texas in 1851, and after the rebellion had broken out, and wliile it existed, were transferred by Texas, were issued for unlawful purposes, the bonds being payable to bearer ; the fact that in 1851, Texas had passed an act providing that the bonds should not be available in the hands of holders until they were indorsed by tlie governor of the State, neither caused those bonds to be unavail- able in the hands of the holders where tliey were bond fide talnrpose of the alienation. If that was just in itself and laudable, the alienation was valid. If, on the contrary, the object and jmrpose were to break up the Union, and to over- throw the constitutional governineiit of the Union, the alienation was invalid. 14: i ; f ■■ i r . ; 1: ■* V n '< f-i i I ♦ n \h 444 COMMENTARIES ON SALES. [book II, BOOK n. PART VI. SALES BY PARTIES WHERE FIDUCIARY RELATIONS EXIST. Fiduciary relations exist between the directors and stockliold- ers of a company, as well as between co-partners in business, We have already ^ discussed some matters relating to sales as be- tween directors and stockholders, and in the Part following this we consider some questions of a special character relating to part- nership sales. This Part we devote to the examination of tlie subject connected with other parties between whom fiduciary rela- tions exist. The relationship between a trustee and a cestui que trust is one, and the leading one, of a fiduciary character ; and a fiduciary re- lationship may generally bo described as one in respect of which, if wrong arise, the same remedy exists against the wrong-doer on behalf of the principal as would exist against a trustee on be- half of the cestm que tru%t? 1 In Book II. Part V. ante. 2 Per Fry, J,, in In re West of Eng- land and South Wales District Bank, 11 Ch. Div. 772, 778, and per Jessel, M. 11., ill In re Hallett's Estate, 13 Ch. Div. 696, 712. In tliis latter case, it was held, that if money held by a person in a fidu- ciary character, tiiough not as trustee, has been paid by him to his account at his bankers, the jiersou for whom he held the money can follow it, and has a charge on the balance in the bankei-s' hands ; that the rule in Clayton's Case, 1 Mer, 572, attributing the first drawings out to tiie first payments in, does not apply ; and that the drawer must be taken to have drawn out his own money in preference to the trust money. The rule in Clayton's Case, 1 Mer. 572, 608, specifically is, that, in cases, as of a banking account where there has been a continuation of doalings, the appropria- tion, in the absence of express denhiration, can only be made on the grouml of pre- sumption arising from the priority of re- ceipts and pu^nents. it is the first item on the debit side of the account tlmt is di.scharged, or reduced, by tlie first item on the credit side. The appropiiatidii is made by the very act of settin<; tli- two items against each other. If any other appropriation is to be made, it is iiicu:n- bent on the creditor to declare his inten- tion at the time of payment, lint when a trustee pays trust-money into a bank to his credit, the account lieing a simple ac- count with himself, not marked or di tin- guished in any other manner, the ileht thus constituted from the bank to liini is one which, as long as it remains due, Ix^- longs specifically to the trust as in\u li and as etfectually as the money so \y.\\A (Muld have done, had it specifically been phued by the trustee in a particular reimsiton' and so remained ; that is to say, it' the specific debt shall be claimed on bt half of the cestuia que trust, it must be deemed specifically theirs, as between tliein, on the one hand, and the trustee, and hia executors and the general creditors after his iud could "tically been I'liiceil rticular rt'iiository ,t is to say, i!' tiie aimed on behalf of ,t must be ilci'iiiid between tla'iii, on .6 trustee, and his eral creditors after cr. This state of varied by tlie cir- PART VI.] FIDUCIARY RELATI0N9. 445 The principle relating to contracts between parties where fidu- ciary relations exist between them, has been long settled oy many cumstanco of the bank holding also for the trustee, or owing also to him, money ill evcrv sense his own. Pennell v. Delfell, 4 De ti. M. & G. 383. And as between the (eat id que trust and trustee the mixing up ot tlie fund is immaterial so long as there is a fund on which the cestui que lni.^1 <'an lay his hands. And it makes HO (litl'erene.e that instead pf trustee and cestui ijiii' trust, it is a case of fiduciary ivlatioiislii[). In re West of England and South Wales District Bank, 11 Ch. Div. 77-.', 778 ; per Fry, J. ; but who, in the ease really liolds the contrary, but is over- nilc'il on the point, and the above stated iiriiiii|ile sustained, in In re Hallett's Es- tate, l.JCli. Div. 708. Tlie iiiiidern doctrine of equity as re- garils ]ir(>iierly dispostid of by persons in a fi(liiiiiiiy relation is a very clear and well-estaliiishcd doctrine, and is thus laid down by .iessel, M. U., in the last above rited ease, In ra Hallett's Estate, 13 Ch. IMv. 7t'8 : " You can, if the sale was ni,'litriii, take the proceeds of the sale, if you eaii idenaty tiiom. If the sale was wronjjt'iil, you can still take the proceeds of the sale, in a sense adopting the sale for the [iiMpose of taking the proceeds, if you eaii identify them. There is no dis- timtioii, therefore, between a rightful and a wron,i;l'iil disposition of the profwrty, .so far as ngaids the right of the beneficial owner to follow the proceeds. But it verj- often liiiiipeiis that you cannot identity the proceeds. The proceeds may have Km invested, together with money be- loiijiiiig to the person in a fiduciary posi- tion, ill a purch.iso. He may have bought land with it, for instance, or ho may have bought chattels with it. Now, what is the iiositiiin of the l)eneficial owner as re- gards siidi purchases ? I will, first of all, take his position when the purchase is eleaily made with what I will tall, for sliorttiess, the trust-money, although it is not eoiilined, ,as I will show presently, to cxincss trusts. In that case, according to the now well-established doctrine of e(iuity, the beneiieial owner has a right to elect either to take the property jmr- chaseil or to hold it as a security for the amount of tiie trust-money laid out in the [luivhase ; or, as wn genendly exprc , it, he is entitled, at his election, <"•' .er to take the projierty or to have a i,laintiir, with money of his own, to an agent in London, to be laid out ; and tho securities were changed for the purpose of misleading, and making it iinpo 'le for the plaintilf to distinguish his pruiicrtj', part being clearly iiroperty of the defendant. The court held, that, the confusion being occasioned by him who so dealt with the property, the dis- tinction lay upon liini ; and if he could not distinguish what was his own, the whole must be considered as belonging to the other. The same principle was acted on in Armory v. Delamirie, 1 Str. 505, where a goldsmith imi)roperly detained from a poor boy a diamond which the lioy had found ; and the court held, in an ac- tion of trover for the jewel, that as the defenda.it did not |)roduee the jewel, and show it not to be of the finest water, tho valuo of the best jewels was the measure of damages. The principle of these cases was applied by Lord Eldon, in Lujiton v. White, 15 Ves. 432, with reference to the niixturo of money by one in a fiduciaiy relation, in which it was helurposes, and as such paid various sums into a bank to his own credit, which were mixed with his own moneys. Various sums having been di;iwn by (ireen on dilferent accounts, the MnstiT of tho HoUs held that the balance fDiiiiid a part of his general personal estate. Tlie Court of Appeal in Chancery icversed tin; decision. 'Iho princi|ile goveriiiiii^ smh cases is so clearly and conclusively statt'il by Lord Justice Turner in his juil;,'iiiiiit, that we (juote from it at coiisidiiaUe length, as tho case must be eonsiili'ioil one of the leading cases on the iiiinlcrn rule. He says: "The balance due to Green at the time of his death, on his account with the Bank of Kiii,'l,iiiil, amounted to jei'JSS lis. 8(/., and the lial- ance due to him at the time of his death on his account with the London Joint .'^tink Hank, amounted to 412174 Os. lOi/. ; and these balances form the subject of the pivs- ent contention. ln(|uiries having been di- rected by the decree upon the subject of these balances, the Master, bv his reimrt, found that tho whole of the t'llKSH 1 Is. 8'/., the balance on the Hank of Kngland ac- count, and £2088 14». 8'^, jiart (d' tin; £2174 0?. 10(/., the balance on the Lon- don Joint Stock aci.'ount, belonged to the estates represented by tJreen as assignee or trustee ; but this reiwrt having been excepted to, the Master of the Rolls, upon hearing the exceptions, decided that the whole of the i:i!)«8 Us. 8i/., the bahince of the Hank of England account, and tiie whole of the A'2174 Os. lO*/., the balance of the London Joint Stock Hank acc;- ing to a trust, however much it may be changed or altered in its nature or i liar- acter, and all the fruit of such ]ivv,- rty, whether in its original or in its altered state, continues to be subject to or all'ccted by the trust; and from this principle I do not understand the Master of the Hulls PART VI.] FIDUCIARY RELATIONS. 447 ings of persons occupying; those relations, by defining the exact limits of its exercise. The general doctrine, however, is that to have in any ilcf^ivu dissented. Several iiiscs illiistratinf{ tliu i)i'inci|)lu were eited ill the iirgiinient ; but perliaps it cannot be liL'tter illustrated than by referriiij^ to a case of familiar, almost daily, oeeur- ri'iue, — the ease of trust-moneys em- pleynl in trade. An executor of a de- (cascd partner eontinues his capital in the trade with the concurrence of the sur- viviiif,' partners, and carries on the trade witli them. The very cajiital itself niay ciin>i>t only of the bulani,- which at the (Icalh of the paitner was due to him on the result of the partnership account. Tliat capital may have no existence but ill the stock-ill-trade and debts of the Iiaitiiershi|i. The stock-in-trade and lU'bts may uii(lei>;o a continual course of change niiii lliictuatioii; and y> t this court follows the trust capital throughout all its ramiti- catioiis, and gives to the iKjneficiaries of the deceased partner's estate tlie fruits (lerived from that capital so continually altered and changed. We have here, I think, the most perfe(.'t instance of the extent to which the doctrine of following trust jiroperty has lieen carried by the court, — an instance, too, which exempli- fies tilt; dilliculties with which the court has felt bound to grajjple for the purjiose of carrying out that doctrine; for nothing can he more diilicult, nothing more iucon- veniciit, than to follow out such a case to its results. But of course in tho.se cases, as in other cases, the jiroperty which is the subject of th(^ trust must in some manner lie ascertained ; and it is upon this point of the .suppo.sed impossibility of nscerlaining what ]iortion of the balances at the bankers' belonged to tlie trust, and what jiortion to the se|iarate estate of Oreeii, the judgment of tlie Master of the Rolls in this case has proceoded. These halances, it is said, are derived from two sources, — the trust estate and the pri- vate estate. How is it to be ascertained what portion of them is derived from one souive, and what portion from the otlier ? Is it, I Would ask, more ditlicult to asecr- tiiin this than to ascertain what part of the prolits of a partnership are to be nttriliUted to the capital of a deceased jiaitner, with the sujieradded diHiculty, jii'ihaps, of jiortions of tha' capital having Wen from time to time drawn out ? It may be said that, in the case to which I have referred, the court has a sub- stratuui on which to proceed, — the as- certained amount of the deceased partner' .s share ; but is there not eciually a sub- stratum in the case before ua, in the amount of the trust-moneya paid into the banking house ? Again, it may be said, that in the case to wliich I have referred are rules and principles by which this court is guided in deterniiniiig what belongs to the estates of deceased part- ners, — rules ami iirin('iples which are not even yet, perhaps, clearly settled and dellned. But Ufore we part with this . Then sup- jiose the trustee subse(|ucntly pays in moneys of his own, not belonging to the trust, to the same account. Would the character of the moneys which he had before paid in, of the debt which had before accrued, be altered ? Again, sup- pose the trustee, instead of subseciuenfiy I'iiying moneys into the bank, draws out part of the trust-moneys which he has before paid in, would "the remainder of those moneys, and of the delit contracted in respctt of them, lose their trust char- acter ? Then, can the cinnimstancc of the account, consisting of a continued .series cf ni'iiey paid in and driwn out, alte' the ]irinci|ile ? It may, indeed, in- crease the dilliculty of ascertaining what belongs to the trust ; but I sec no possible ground on which it can allect the jirin- ciple. . . . With deference to the Master of the Rolls, I do not think that the case of Massey i'. Iianiier, 1 Jac. & W. 241, on which he has mainly relied, sup|iorts the conclusion at which lie has arrived. That case, as 1 understand it, establishes no more than thi-'; that a trustee who pays in moneys to hit own account at his banker's is liable to his trMiiLi que tri^- tent for the moneys which he has so jmid in, as he well may be. lie has no ri^tht to mi.K the trust-moneys with his own, cr to subject his cestuis que trimtent to the dilliculty of separating them. It is one tiling, however, to say that the trustee is liable for moneys so paid in, and another *t. m I I i'i t: iif ■W lU 1 448 COMMENTARIES ON SALES. [book II. wherever two persons stand in such a relation, that, while it con- tinues, confidence is necessarily reposed by one, and the infiut-nce it I. that the eestuis que trust arc not entitled to the benefit of separating tiie trust moneys, if it be in their power to do so." With all this which wo have qtioted we fully concur, as well as with all, to the same purtxirt, in the judgment of Lord Justice Knight Bruce in the same case ; and think that the judgment of Fry, J., on the point, in Ex parte Dale & Co., 11 Ch. Div. 774, where he, in elfect, held, contrary to the holding in IV-nnell v. Def- fell, 4 De G. M. & G. 372, that where a bank stood in a fiduciary relation towards the claimants, though money which they had received under their special agency, if it hail been kept separate from all the other moneys in the bank, or if it had been invested rightfully or wrongfully in some property into which the specific money could be traced, the money or the proiii-rty into which the money had gone could be followed, but not if any tnixtiire had taken place, ia not on this latter point law, and was very properly, though very caustically, condemned, am', in elfect, over- ruled in III re Hallett's Estate, 13 Vh. Div. 696. See Cheetworth v. Kdwards, 8 Ves. 46; Lupton v. White, 15 Ves. 432; IMnkett V. Wright, 2 Hare, 120; Harford v. Lloyd, 20 Beav. 310; Frith v. Cartland, 2 H. & M. 417. But when it is suggested in that case (Pennell v. Detfell, 4 De G. M. & G. 366) by Lord Justice Knight Bruce, and as- sented to and elaborated by Lord Justice Turner, that the rule in Clayton's Case, 1 Mer. 572, would apply to funils paid into a bank by a trustee, so that "'checks drawn by the trustee in a general manner upon the bank would for every purpose be ascribed and affect the account," accord- ing to the rule in Clayton's Case, namely, that if the first item in the account were for trust moneys the first check paid out by the bank, "drawn by the trustee in a gener.ll manner upon the bank," though used by the trustee for his own purposes, would be treated as a payment of trust money, we think that an entirely unsound principle is stated ; that it is contrary to the whole general reasoning of both Lord Justice Knight Bruce and Lord Justice Turner themselves, and is really incon- sistent, as shown in Frith v. Cartland, 2 H. & M. 417, 420 et seq, with the ac- tual decision in Pennell v, Deffell, 4 De G. M. & G. 366, itself. We think the law is correctly stated in Frith I'. Cartland, in referring to Pennell i>. Deffell, thus: "The guiding principle is that a trustee cannot assert a title of his own to trust property. If he destroys a trust fund by dissipating it altogether, there remains nothing to be the subjict of a trust ; but so long as the trust iiropi ity can be traced and followed into other prop- erty into which it has been converted, that remains subject to the trust. A mvmi principle is that if a man viixes trust fundi with his own the wlwle will be trruial as the trust pro/H'.rti/, except so far as he wvi be able to distinguish what is his inn." And to show how completely the reason- ing and holding in Pennell i*. Dell'ell art; in accord with this correct statement of the law, and against the obitrr ilirin in the case, of the application of the rule in Clayton's Case to trustees or ])artie.s in a fiduciary relation, we iiuote further I'rnin Frith V. Cartland, 2 11. & M. at p. 421 ct seq. : " Upon these two principlis t!ie case of Pennell v. Detfell was deciiie'l, ami it illustrates very strongly the maiiiier in which the court will follow trust iirop- erty. The solo question in every ease is whether the property can or canimt be identified. In the i)resent case tlie mi- dence amounts to this : The baiikniiit took £2,500 of bills belonging to the plaintiffs, and discounted them tnijether with bills of his own. He received a check for £3,500, besides a further sum which was paid to his credit at the Hank of England. These dealings, and the con- version of the proceeds into creiits on foreign banks, raise the .same kind of case as was suggested by the Lord .lustioe Knight Bruce in his judgment in renncll V. Deffell. If a man has £1,000 of his own in a box on one side, and £l,iiOOof trust property in the same box on the other side, and then takes out tfiOO ami applies it for his own purposes, the court will not allow him to say that the nionoy was taken from the trust fund. Tin- trmt must have its £1,000 so long as a snilii-ii'nt sum remains in the box. So here Ivlwanls could be not allowed to say that the t"2Sl deposited in the Bank of England was liis own, and that the trust iiortion of the fund was that which he took aliroa.l with him, anil from which he drew as le re- quired for his own jmrposes. There is, therefore, no difficulty in treating tliat sum at the bank as belonging to the trust, together with what remains of the sum which he took abroad. It appears that Edwards (the fiduciary), after passing the property through various transformations, had at last a sum nearly sullicient, to- gether with the money at the hmk, to cover the amount of the plaintiirs trust fund. During the interval he had sp«Qt I'ART VI.] FIDUCIARY RELATIONS. 449 which naturally grows out of that confidence is possessed by the otlier, and this confidence is abused, or the inliucncc is exerted to >oiiietliiii}; out of till! iiiixi'(l fund, wliich t'.\|K'iiilitiiii! must lie iitti'iliutcii to tliiit iiuitiiiii wliirli 1 may cull his owii. Uu- li'ss, tlit'i't'luiv, till! biiiikiuiitcy iniikus ii iliiriiciR'c, tlii'iv can be no gi'ouiul for de- nying' the iilaintiir.s title to tliu fund rc- e()Vi,'ri'ro rata. The court attriliiitcs the owiicrship of the trust |ii(i]ii'ity to tilt' cculni que trust so long as ii call lie traced. Here there is no ditli- Liilty ill identilyiiif^ it. Tliroii<;liout the whole series of transfonniitions the bank- rupt ,ilH;iys held a fund available to meet the 'l.iiia of the trust. In i'ennell v. 1 111!' 11 part of the trust fund had boon |iai.l into a bank, hut it ions not marked, luid WHS irljml. oat hij subsequent drawings, aii'l till' whole ultimate balance could not ill' lixtd with the trust any more than a iii'oiiil t'l,iitiO of stock which a trustee mi^'iit happen to acciuiro after selling jtl.iiiin of trust stock and spending the |iioct'('(ls. So loiifj, however, as the fund em be Irfieril the trustee cannot assert his (IICK /('//(' /ii it. " And altiinugli, as above intimated, the "ultimate bulance" in I'ennell v. PefTell, 4 1)0(1, M. & (i. 372, was tixcd with the trust, and although the whole general rfawiiiiiig of both Knight Bruce and TiiniiM', Lord Justices, was exactly in ae- curiliini f with the actual general holding ill that ease, and in Frith v. Cartlanil, 2 11. i M. 418, yet while deciding, under tlie facts of the case, that " when a trus- tee pays trust moneys into a bank to his croilit to a siinjile account with himself, not ilistiiinuished in any other manner, the debt thus constituted from the bank toliini is one which belongs as specifically totiie trust as the money would have done had it s))i'cirn ally been placed by the trus- tee in a particular repository and so re- niaiiied ; and the case would not be varied by the ciicunistance of the bank holding also for the trustee, or owing also to him money in every sense his own ;" they ex- pressed the o|iiiiion that "checks drawn hy the trustee in a general manner upon the hank would for every purpose be as- fribed ami affect the account in the mode explained and laid down in Clayton's Case, 1 .Men fiZ'J," they involved themselves in a very paljiable contmdiction, and greatly Ifsgened the value of two otherwise clear and able judgments. The whole general reasoning of both the jndges in Pcnnell j;. Deffell is so ut- terly opposed to the idea of the rule in Clay*nn's Case being applicable to the case of a trustee or fiduciary, that it seemed al- most impossible to believe that they meant TOL. I. what they say ; and it was not until wo fouiiil our .jiidgnieiil on the puiut Inrtified by the reference to the case in Frith v. Cartland, 2 II. & M. 418, and the wrong jiriiniple stated by them in jiidgiiiruts otherwise well-reasoned, condeiiined in In re liallelt's Case, ]:i Ch. iJiv. at it. 72it, that we could satisfy ourselves timt wo liad not in aii inexjilicable niauner iiii.Hnp- lueheiided the meaning of their statements on the pciint, which seemed so utterly un- sound, and so contrary to their aitiial gen- eral holding and to the general tenor of their judgments. The whole ipiestion is most elaborately examined in In re Hallett's Kstate, \,i Ch. Div. 6St6-75:{, where it was held thai if » jiei-sciD who holds money as a trustee or in a (iduciary character pays it to his aiMount at his bankers, and mixes it with his own money, and afterwards draws out sums by checks in the ordinary manner, the rule ill Clayton's Case, 1 Mer. 57'-', attributing the first drawings out to the first pay- ments in, does not apply ; and that the drawer must be taken to have drawn out his own money in preference to the trust money. Jes.sel, ^\. 1!., in so deciding, thus deals with I'ennell v. Deffell, 4 De G. JI. & (J. 372, after referring to the ajipli- cation in that ca.se of the rule in Clayton's Case to a trilling jiortion of the trust es- tate : " But that was not the wlicde case of Pennell v. Deffell. The m::in part of Pennell v. Deffell was giving 'fleet to the right of ecsfilis que trust in the case of blended moneys, and upon the very jiriu- ciple which I have explained, and which, if I may say .so, was so clearly explained by Mr. Justice Fry in his judgment. If, therefore, we are to ascertain the priucijile on which I'ennell v. Di'lFell is dei.'ided we must look at the whole of the Judgment, and not at one part of it only. That lieing so, I have come to this conelusioii, that the priffciple is rightly laid down, and it is rightly apfdied throughout the .judg- ment except us to this por/imi, and that as to this portion there has been « mis/uke, not in the |iriiiciple, but in the ajiplicatioii of the |iiini'iple. Therefoie, if I am to be guided liy the principle as hiiil down, I think the |irinciple must ])revail without regard to a mere slip in its application." Tlie "principle" here referred to is that if money held by a person in a fiduciary character has been ]iaii.l by him to his ac- count at the banker's the jier.son for whom ho held the money can follow it, and I ^ a charge on the bilance in the banker's hands. See also the opinion of Fry, J„ as above approved of by Jessel, M. B., in 29 ^'^ i M ' { ' "1 I- iH i I ' ' : ! I i*i \\\. f :■ i : li- r ■dp * 450 COMMENTABIES ON SALES. [book II. obtain an advantage at the expense of the confiding party, the person so availing hiiusulf of his position will not bo punnittud to nt p. 778, Ex parU DiiIp, 11 Cli. Div. where he states tliu j;tMini'ul logit of I'l'iiiifU V. DcU'ell to Ih) II (iL'cisioii tlmt as bt'twoen cestui qiu: trimt and tnistiiu tho mixing of till) I'liiul U iiiiiiiati-iiiil "so long as tlieio is a fiintl on wliicli tliu cmltii que friut can lay his hamls," ami tlmt, with reforenco to this, it makes no dilffiunco that instead of trnsteu and cestui que trust it is a case of lidiiciary ielationslii|) ; af- fecting, tiiL'ieforc, all such cases ot sales where tho <|iiestioii would arise in connec- tion with funds in the hands of agents or factors or other lidueiaries. See City Dis- count Co. V. MisLean, L. K. 9 C. P. 692, 701, where tho rule in Clayton's Case, 1 Aler. 530, was held inappli(;ahle, and was nut acted on. Si^e also Henniker u. Wigg, 4 Q. n. 4!)2; Ex parte Cooke. 4 Ch. Div. 123 ; Mi.ldleton v. I'ollock, lb. 4i> ; Birt«. Burt, 11 Ch. Uiv. 773, n.; I'inkett V. Wright, 2 Hare, 120; E.c parte Kelly &Co., 11 Ch. Div. 303. And see conn- gel's opinion of the contradictory holding in Pennell v. Detfell, 4 De Cr. M. & (S. 372, 384 ; la re Hallett's Estate, 13 Ch. Div. 725, arguendo. In this country it has boon held, in accordance with the well-decided English decisions cited in this note, that if a ]iarty having charge of th(! property of others, 80 confounds it with Lis own, that tho line of distinction cannot bo traced, all the inconvenience of the confusion is thrown upon the party who produces it, and it is for him to distinguish his own property or lose it. If it is a case of dam- ages, damages are given to tho utmost value that tho article will bear. Hart v. Ten Kyck, 2 Johns. Ch. 62, 108 ; Armory V. Dalamire, 1 Str. ."iOS ; Lupton v. White, 15 Ves. 432 ; The Attorney-Gene- ral V. Fullerton, 2 Ves. & B. 264. If the goods can be easily distinguished, and separated, then »io change of property takes place, and each party may lay claim to his own. If the goods are of tlie same ua- tare and value, although not capable of an actual separation by identifying eai-h par- ticular, yet, if a division can be made of equal value (as in the c.;?© of a mixture of corn, or cotfee, or tea, or wine, of the same kind and quality), there each may claim his/aliquot i)art. But if the mix- ture is undistinguishable, and a new in- gredient is formed, not capable of a just appreciation and division, according to the original rights of each, the party who causes the wrongful mixture must bear tho whole loss. See Bond v. Ward, 7 Mass. 123. And it has been frequently hold that the confusion or mixture of the trust es- tate with the trustee's own property pre- Hunts no obstacle in the way of sepaiatui); the former from the mass, and ilealinj^ with it as trust estate. .Vnd into whiUu- ever character of goods, securities, or |ii'o|i- crty a trust fund may be converted, it is still impressed with the trust. Monisuu V. Kinstrae, 55 Miss. 76 ; Thonip.'iuii r, Perkins, 3 Mason, 232 ; Overseers of Poor V. liank of Virginia, 2 (iratt. 5t4 ; Na- tional Bank v. King, 57 Pa. 202 ; t'uuk V. Tullis, 18 Wall. 332 ; Price v. Ralston, 2 Dall. 60 ; fJoodenow v. Tyler, 7 .Mass. 36 ; Stair v. Tho York National Bank, 55 Pa. 364 ; Frazier v. The Erie Bank, 8 W. & S. 18. In National Bank v. King, :,1 Pa. 208, there is a reference to Pennell p. Detfell, 4 De G. M & «J. 383, to the etitct that it is to be n nMcd in that case tiiat the monitys of several distinct trusts were carried into the a(;count, and that the trustee's own money had been mixi'il with them. The court continued : " Hut ii is insisted there was no ear-mark to tin: monev. What of that, if tho money cm be followed, or if it can bo traced iiitoii aubstitute ? This is ol'ten done throiifjli the aid of an ear-mark. But this is only an index enabling a beneli"ial owner to follow his properly. It is noevidena'of ownership. An "ar-iniu'k is not inilis|iens- able to enable a i'. vner to assert his right to property, or lo its luoduet or sub- stituto. Evidence of substantial identity may bo .ttached to tho thing itself, or it may be extraneous." But there are some cases in this cnnntiy which follow tho old exploded Knijlish doctrine, that the trust i)roi)crty caiiiiot be followed wh<'re it has been turneil in- to money, and mixed with other nioney, "because money has no ear-mark." Per Lord King, in Deg v. Deg, 2 P. Wins, 414. There is a caso to this etfeot in Pennsylvania, — Thompson's ApjH'al, '11 Pa. St. 16, which is .lecidtnl on the authority of Story's E(|uity, § li.'i!', which cites and relies on the ohl ease to which wc have referred in this note, of Ryall ». Rolle, 1 Atk. 172. Storv also cites a later ease, that of I.eigli v. M.uau- lay, 1 Y. & C. 260, for the iHwition, Imt the case is very far from sustaiiiintt it. Tho defence in this case was (p. 'I'i^'i) "that tho moneys received by the ilelVml- ants on aceonnt of Li'igh's estate hail not been invested by them for the lieiiclit of that estate, but had been mixed with thiir own moneys, and applied to their uwn uses ; " and (p. 264) "tho defen i.ints ad- mitted that tiiey never accounted lor any part of this balance, but that they paid it [book II. ing party, the 5 permitted to own property pre- ! wiiy ot Mi'piiiiiiiujj imss, and ilciiliiig Ami into \vll,ll^u• suL'uritios, or inuii- 1)0 coiivurti'il, it is u trust. Monisuii 7() ; Tholll|i^oii (. ; Ovti'si'tM's ol I'lwr i limit. ."iU ; N.i- 57 I'll. iO-i ; Cuulv ; I'ricu V. llalstDii, ■ V. Tyler, 7 .Miss. Natioiuil Bank, 55 Tlu' Krii! Biuii<, 8 111 IJiink V. King, 57 M'onci) to iVnnfli i'. U. o8:3, to the ell'wt 'd in that caso that (li.stint't trusts wire nut, anil tliat the ail Iwun niixi'il with nitiuMfil : " Hut ii no car-nnirk to th« t, if the nn)ni'y ran :an bo traced iiitoii ol'tLMi dono throiiKli k. lint this is only lM'noli"ial owner to It is no evideiiceof •k is not inilisiiens- | vner to assert his . its product or sub- substantial identity lie thing itself, or it rases in this cnnntrj' exploded Kni^lish nst property cainiot "nis been turui'd in- with other n|()iii'y, no ear-mark." P(f )e<;, 2 r. ^V.ns. .«o to this elfcct in nipson's Appeal, i2 is decided on the , K(,uity. § lir.?. ■s on the old case to red in this imte, of » 172. Storv also . of Lei^h V. Ma««- for the po^ituMi, ml from HUstainiiii; it- case was (p. -•>3) •eived by the .lelewl- ifdi's estate had not nrfor the heiierit of (oen niixtul with their pplied to their own "the defendants ail- er n H i^ I it ■ t [ ; 452 COMMENTARIES ON SALES. [book II. Michoud V. Girod ^ was a case where third parties bought for executors the whole estate of the testator, which was bid in iu the application, and the cases in which the jurisdiction has been exercisttd, those of trustees and cestui que trust, guardian and ward, attorney and client, surgeon and patient, to bo merely instances of the application of the principle. In this case there can he lo doubt that a relation of confidence subsisted, and tiiere can be equally little doubt tiiat advantage has been taken of tliat contideace. Why was the amount of the eing so ; and no doubt it would not if such were his intention ; but intention imports knowledge, and lib- erality imports the absence of influence ; and I see no evidence in this case either of knowledge or of the absence of influ- ence ; and wiiere a gift is set up between parties stamling iu a confidential rela- tion, the imuJi of establishing it by proof rests upon the party who has reieivod the gift." Uent i'. Bennett, 7 Sim. 539 ; 4 My. & <.\ 2(5!) ; Popham v. Brooke, 5 Russ. 8 ; Gilwon v. Russell, 2 Y. & C. Cli. 104. As between a solicitor and his client the rule is, not that there is an aetual incapacity to purchase from the client: Montestjuieu v. Sandys, 18 Ves. 302 ; Cliaini)ion v. Kigl)y, 1 B. & Myl. 639 ; Kin-istand v. Barnewell. 4 Bro. P. C. 154 ; Cave v. Lord Allen, 2 Dowl. 294; but, th:ii, inasmuch as the parties stand in a relation which gives, or may give, the solicitor un advantage over the client, the nnni lies on the solicitor to prove that the transuction was fair, (til)son ». .leves, 6 Ves. '2tIH ; >Iatch v. Hatch, 9 Ves. 2"!t2 ; Wood V. Donncs, 18 Ves. 120 : Bellow v. Russell. 1 B.ill & B. 104 ; Welles .-. Mid- dleton, 1 (ox, 112; 8. c. cited 18 Ves. 127 ; Hunter i-. Atkins, 3 Myl. & K. 135, per Kurd Brougham : .Fones r. Thomas, 2 Y. k C. 4!t8. In Gibson v. Jeyes, « Ves. 278, Lord Kldon says that an attorney may contract with his client, but that he bhouM say, "if ho was to deal with her for this, she must get another attorney to advise her as to the value ; or, if she would not, then out of that state of cir- cumstanc.s this clear duty results from the rules of this court, and throws upon him the who'.', omis of the case ; that, if he will mix with the character of attorney that of vendor, he shall, if the prctpricty of the contnict comes in question, muni- fest that he has given her all that reason. able advice against himself, that he wuiijii have given her against a thinl jterson. It is asked, where is that rule to Ix^ luund ] 1 answer, in that great rule of the court, that he who bargains in matter uf advant- age with a {>erson placing confidence ii: liim is bound to show that a reasonable use \\,a lieen made of that confidence ; a rule a|i- plying to trustees, attorneys, or any one else." An attorney is not inciipalilc of contracting with his client. He may fur a horse, an estate, etc. A trustt-c may also deal with his cc^ui que tmul ,■ Imt the relation must be either ilissolvcd, or the parties must be put so nundi at arm's length, that they agree to take the cinir- acter of purchaser and vendor ; ami you must examine whether all the duties of those characters have been jicrf'ornieil. Gibson r. Jeyes, 6 Ves. 277. Tiiis was not denied in Fox v. Macreth, 2 lire. Ch. 400, a leading case on tho (inestioi'.. See Rossiter v. WaLsh, 4 Dr. & VV. 4*^^, where a lease of premises from an agent to liis sub-agent was set aside. In MoIodcv i\ Kernan. 2 Dr. k W. 31, it was held that an agent may take a lease from his ]irincipul, but he must always bn- sidertMl by the court Indow as hiivint; Invn done in good faith and with full knoui- edge by the principnl, aim the jiiU'ineiit having Iwen sustained in the lluiisi' o' Lords on tho ground of delay an I aii|ui- eseence. See further, Murpliv v. D'Slea, 2 .1. & Lat. 422 ; Turner v. Unrvev, .lac. 169 ; Reynell v. Sprye, 1 De (;. M k i!. 6ff0; Ilugenin v. Baselev, 14 Ves. 273, 300 ; Harrison r. Guest, 6 De (!. M. & '!■ 424 ; 8 H. L. Cas. 481 : Chaniliers r. Betty, Beat. 488 ; Farnain v. Brooks 9 Pick. 212 ; Williams v. Powell, 1 In-1. Eq. 400 ; Rose v. Mynott, 7 Yerg. 30 ; 1 4 Kow. 603. PART VI.J FILUCIABY BELATIONS. 4o3 name of the third parties, and by them conveyed to the executors. Proceedings having been taken to set aside the purchase of the executors, the excsutors denied any fraud in fact or in intention on their part, and declared that the sales were judicially ordered and conducted ; that the purchases were kightfuily made, for a fair price, at public auction, and that the plaintiifs were barred by long silence, laches, acquiescence, and lapse of time ; and that two of the complainants had given the executors receipts and acquit- tances which wciC valid and obligatory. The Circui*^ Court for Eastern Louisiana set aside the purchase, and the United States Sii|»remo Couiv affirmed that decision, laying down and adopting, from Davouc v. Fanning,* the following doctrine, which a7Cords with the mass of the Eiiglish and Americu!* decisions on the sul)- jcct : " If a trustee or person acting for others sells the trust es- tate, and becomes himself interested in the purchase, Uic cestuis que trust are entitled, as of course, to have the purchase set aside, and the property re-exposed to sale, under the direction of the court. And it makes no difference in the application of the rule, tliat a sale was at public auction, boiui fide, and for a fair price, and that the executor did not purchase for hin- . ^, but that a third porson, by previous arrangement with the executor, became tlie purchaser, to hold in trust for the separate use and benefit of the wife of the executor, who was one of the cestuis que trust, and who had an interest in the land under the will of the testator. The inquiry, in such a case, is not whether there was or was not fraud in fact." ^ The case was also examined with reference to the Bemon v. McLane, 1 HofT. Ch. 421 ; Wlioiliin V. Wbcelan, 3 t'ow. 537 ; Stiirr V. Vaiidcrlieyden, 9 Johns. 253 ; Mills v. Erviii, 1 McCord, Ch. 524 ; CoiHshiiid v. Mcri'. Ins. Co., 6 I'ick. 196 ; KimhI v. Wiiriier, 5 Puigi!, 650 ; Bcal v. Mt^Kior- naii, Mill. Lii. 407 ; Bartliolonicw t'. I.i'iiili, 7 Watts, 472; Provost v. (Jratz, 1 Pit. ('. C. 364; Davoim v. Fanning, 2 .Inhiis. ("h. 351; Green v. Winter, 1 Johns. Cli. 27 ; Chiircit v. Mar. Ins. Co., 1 Mas. 341 ; itarkfr V. Marine Ins. Co., 2 Mas. 3«!i; r.iikistf. Alexander, 1 .lohin. Ch. 3!U ; ItutiiT V. Haskell, 4 Dess. 651 ; Mosrirv V. Hack, 3 l^unf. 232. ''i.ioims. Ch. 252. " The general nilo sta'ids npon our great mond ohligatiou to rer'nin frou) placing ourselves in relations which ordinarily ex- cite n conflict between self-interest and iiitc^'rity. It restrains all agents, (inblic anil jirivatc ; but the value of the pro- liibitidii is most felt, and its application is nunc frefjnent, in thy private relations in which the vendor and purchaser may itand towards each other. The disability to purchase is a <■<>. iipijuenoo of that rela- tion between tln'i:, which imposes on the oiie a duty to protect the interest of the other, from the faithful dischuif^e of which duty his own personal interest may with- draw him. In this contlii t of inten-st, the law wisely interposes. It acts not on th« possibility that, in some ca.ses, the 8«'nso of that duty may prevail over the motives of self-interest, but it jirovides against the proliability in many cases, and tlie danger in all ca.se», that the dictates of self-iuter- est will exevcis*! a prcvn account that which his duty or trust requires him to sell in account ot another, and from purclusing on iccount of another that which he stUs on his own account. In eiliv;!, he IS not allowed t« unite the two op|iosite ch'X'.'actein of buyer and 8«dler, Wause his inten^sts, when he is the seller or buyer on his o» n account, are directly conflicting with those of the la^rson on whose account he buyg n sells. Michoud V. Girud, 4 How. at j'. r>;>6. No rule u ^ Hi mm 454 COMMENTABIES ON SALES. [book II. questions of laches and acquittance, and these, under the rules re- lating to purchases by parties occupying a fiduciary position, did not prevail.^ better settled tliaii that a trustee cannot beuoine a puruhaner of the trust estate. He cannot m at once vendor and vendee. He cannot reprusL-nt in liinisulf two o|ti>o- site and conlliuttng interests. As vendor he mu.st always dosire to sell as high, and as purchaser to buy as low, as possible ; and the law has wist^ly i>rohil>ited any person from assuming such dangerous and incoin|)ati))le characters. Wormley v. Wormiey, 8 Wheat. 421, 441. Davoue v. Fanning, 3 Johns. Ch. 252, wliere Chan- cellor Kent delivers an elaborate judgment, ia the leading case on the question in this country. The principle is there laid down as quoted by the court in Michoud v. Girod, supra, and it is then said, — " The earliest case I have met with, containing any full recognition of the principle that a trustee cannot act for his own benetit on a subject connected with the trust, is that of Holt V. Holt, in the 22 Car. 2, 1 Ch. Cas. 190, where it was held by the Lord Keeper iiridginau, assisted by the judges, that if an executor in trust renewed a lease, it should be for the l>enelit of the cestui que tru.it. The next case that occurs was that of Kccch v. Saiidford, before Lonl Chancellor King, in 1720. 3 Kq. Gas. Ab. 751. A lease of the prolits of the market was devised to a trustee, in trust for an infant ; before the expiration of the term the trustee applied to tiie lessor for'a re- newal for the infant's benetit, which he refused, because he could not distrain, but must rest singly on covenant, which the infant could not make. The trustee then took a lease to himself, and the chancellor decreed that the leiise should be assigned to the infant, and that the trustee should be indemnihed trom the covenants in the lease, and the trustee account for the prof- its since the renewal. Ho said he must consider it a trust for the infant, ' for if the trustee, on refusal to renew, might have a lease to himself, few trust estates would be renewed to ccstni que trusts ; and though it might seem hard that the trust<^o was the only person of all mankind who might not have the lease, yet it was very proper that the rule shruild be strictly pursued, and not in the least relaxed, for it was very obvious what would bo the consequence of letting trustees have the lease on refusal to renew to cestui qtte trusts.' If we go through all the cases, I doubt whether we ahall lind the rule and the policy of it laid down with more clearness, strictness, and food sense." 8ee further, Harrod o. Norris's leirs, 11 Martin, 298 ; lionhottom's Ex'r *. Babcock, 9 La. 48; Scott's Ex'rs v. Gorton, 14 La. 114, 122; McCluskey v. Webb, 4 Rob. 201 ; I'revost v. tJiau, 1 Pet. C. C. 3t)8 ; Wormley v. Wormley, 3 Wheat. 421 ; Case v. Abeel, 1 I'aigc, 4U7 ; Rogers v. Rogers, 1 Hopk. 525 ; Fux v. Mackrath, 2 Bro. Ch. 400 ; Hall v. Xoyes, 3 Bro. Ch. 483 ; Kellick v. Flexny, 4 Bro. Ch. 161 ; Whitcote v. i awrence, a V.s, 740 ; Campbell v. Walker, 5 Ves. iiji. As to purchases by agents, see York ISiiiM- ings Co. V, Mackenzie, 8 Bro. P. C. 42 ; Lowther v. Lowther, 13 Ves. 95 ; Watt v. Grove, 2 Sch. & Lef. 492 ; Whitcoiiil) v. Minchin, 5 Madd. 91 ; Woodhuii.*; «. Meredith, 1 Jac. k W. 204. And s.'e Ex parte Hughes, 6 Ves. 617 ; Coles v. Treoo- thick, 9 Ves. 234 ; Oliver v. Cant, 8 I'lice, 127 ; Expirte Reynolds, 5 Ves. 7o7 ; Ex parte James, 8 Ves. 337 ; Ex pni-l': Ben- nett, 10 Ves. 381 ; Ejc parte Mi)i«iiu, 12 Ves. 6 ; Ex parte Spong, 1 Koso, 13:i, as to purchase by auctioneers, commissioneis, etc ' As long as the dejiondonce uf the cestui que trust upon the trustee, and the fiduciary relations continue, an allfi;ei{ ratification will always be scrutinii^eil with the utmost jealousy ; and a party possess- ing only imperfect information ciiniiot he held guilty of laches. Butler v. Haskell, 4 Dess. 651-717 (where a full examina- tion of the cases will be found) ; Murray V. Palmer, 2 Sch. k L. 486 ; I'uruell r. McNamara, 14 Ves. 107, 120; Colo v. Gih- bons, 3 P. Wins. 293 ; Brooke v. (iailv, 2 Atk. 34; Cole v. Gibson, 1 Ves. .S.n. Mr, Taylor v. Koekfort, 2 Ves. Sen. 281 ; li')die V. O'Brien, 1 Ball & B. 230; Morse p Royall, 12 Ves. 364 ; Wood v. Dowries, IS Ves. 120; Ilyder v. Bickerton, 3 Swan. 81 ; Bowes V. London Water Works, 3 Mailil. 375. As to acquiescence, see Walker v. Sy- monds, 3 Swan. 61 ; Broadhurstw. I?al«iiv, 1 Y. & C. Ch. 16 ; Clifton v. Coiklnuii, 3 Myl. & K. 76 ; Clark v. Perrier, 2 I'leem. 48 ; Phillipson v. Gatty, 7 Hare, r.Ki ; 2 H. & Tw. 459 ; Ex parte Smith. 2 M. P. k l)e G. 113 ; Munch i-. Cockerell, ;> Mvl. & C. 179 ; Byass r. Gates, 2 W. 11. 4.h7 ; Hawkins v- (iardner, 2 Sm. k (i. 441: Brewer v. Swirles, 18 Jur. 10tii»; Har- rows V. Walls, 5 De G. M. & <1. 2:"; Bate V. Hooper, 5 De G. M. k C ;!•'!'<; Locklmrt v. Hcilly, 25 L. J. Ch. iVM ; Fat- rar v. Barradough, 2 Sm, & G. •.':!1. A cstui que trust is not bound liy ai'i|uies- cnce, unless fully informed of his rights, and of all the material facts and cireiun- stances of the case. And altlioiifili the ontu lies u|K>n a party relying upon iH'T''- escence to prove the facts uimn whii'li the consent of the cettui que trust is to be in- PART VI.] FIDUCIARY RELATIONS. 455 Where the plaintiff, a single woman, was informed by her bro- ther's agent, that on her brother's death she liad succeeded to a small estate, of which she knew uotliing, and, on the agent's rep- resentations of its value, which were inaccurate, and without legal advice, she conveyed the estate for an inadequate sum to the agent's daughter, the court, while holding that there was no such relation between the parties as to incapacitate the agent from pur- chasing bund fide, set the deed aside on the ground that the agent's statement was not a mere purchaser's assessment, but a deliberate false statement made to the plaintiff by a person having full knowledge ; which statement was asked by her for her guidance in the transaction, and was acted on by her in reliance on its good faith and accuracy.^ A sale of bonds was made in 1867, at public auction, by the at- torney of the plaintiff, and bought by the attorney at their full value at the time. The plaintiff took no steps to set aside the purchase at the time, which was voidable at his election ; but, af- ter having adopted and approved of the transaction, which was entirely clear of any fraudulent features, the court held that the plaintiff, after lying by for twelve years, was guilty of laches, and that, having shown no impediments in his way preventing an ear- lier prosecution of his suit, he could not then, on the bonds having reaclied a higher value, maintain an action which, but for his ap])roval and long acquiescence in the purchase, he could have sustained.^ ferri'd, there may Vje cases in which, from great length of time, such facts would be im'sumeil. Lifi! Assoc, of Scotland v. vSidilall, 3 De tJ. F. & J. 58. See GrilKths «. Pditer. 2.1 Bcav. 236 ; Cope v. Clark, IS W. R. 279 ; UriRht i). Legerton, 29 Biav. 60 ; Haby v. Kiik-hnlgh, 7 Ue G. M. &(i. 104. ' linvKarth ». Wcarinp, L. R. 12 Eq. 320. InadtMjUiU'y of cunsidt-ratioii, under such circiiiii.Htiinci-s, is a niittorial eh'uient, as goiiij{ to show fraud in one in a quasi liiliiiiary relation. See Cooke i;. Laniotte, IT) liiiiv. 234 ; Cariunail v. I'owis, 10 Bfftv. W ; Kvans v. Idewellyn, 2 Bro. Ch. 1.1(1. iScc 'rurner v. Harvey, iw. 169, 178 ; Itawlins v. Wickhain, 8 Dl G. Ac ,1. 304, as to the cU'ect of' such mtsreim'scnta- tioiis wiicn made bv even nn entire stranjji'r. ■^ Marsh V. Wliitiuore, 21 Wall. 178. Till' 1(111 rt say : "The <|uestion i whether, «ft('r this long aci|uiescence in the acts 1)1 till- clofi'ndant, with knowledf^ of the tniiisacti.in, the couiidiiiiiant can cali \\\mn iiiiii to acc'dunt for the iirnsent value of tlif IhiihIs purchaseil by him. Most un- doiiliiiMJly tliat sale wiis voidable. The chBruutcr of veuJor and (jurchnser cauuot be held by the same person. They im- pose different ohlij^ations. Their union in the same ])ersoii would at once raise a conflict between interest antl duty; and, constituted as humanity is, in the ma> jority of cases duty would 1k' overliorne in the struj;gle. The law, therefore, wisely prohibits a |iarty selling; on another's ac- count from becoming; a buyer on his own at the sale, ami will always condemn transact lulls of that charuiter whenever their eidorcement is attempted. The de- fendant could have treated the purchase made )iy the deteiiihiiit ii.s a nullity. He could have insisted that the relation of the dcreiidant to the property was not chanj^eil by the proceeding;, and that he stiiod charged with the same trust respect- iiij; it with which lie was ehnr^ed previ- ously. And w( re thi'ie nothing; more in the ease than the faet of the siili and pur- chase, the com|iliiiiiant would be entitled to call the defendant to account for the full value of the bonds. But unfortu- natidy for him there is more in the case. He has adopted and approved of the trans- action. Ills declaration to the ilefendant at Augusu the year following the sale ia ri h %} 1 r Iflflfli 'if* {flip • -''.■■ : -i. \ I :' -, i ' ?i < 466 COMMENTARIES ON SALES. [book II. Van Felt, not wishing to be known in the transaction, had a steamboat purchased in the name of Vanderbilt, Van Pelt supply- ing the funds. After the death of Van Pelt, the steamboat was purchased by the appellants, innocent third parties, for full value. The Supreme Court of the United States held, reversing the judg- ment of the Circuit Court for Maine, that the title passed to the purchasers, for although, as between Vanderbilt and the represen- tative of his principal, the legal title would not avail ; as respects third persons who had bought in good faith for a valuable consid- eration, the equity of the case turns against the party who has en- abled his agent or any other person to hold himself forth to the world as having not only the possession, but the usual documen- tary evidence or pr(>perty in the article.^ Where a bill was filed to set aside a sale of property, belonging to infant tenants in common, made under order of court, upon the ground that there w^s constructive fraud by the purchasers, the Supreme Court of tiie United States held that, though some of evidence tending to that eflect, and con- sidered in connection with Iiis long acqui- escence in the tranfiaction, must be deeuied conclusive. Had he at once denied the validity of the transaction, or by any dec- laration or proceeding indicated dissatis- faction with it, or even refrained from expressions of approval, he would have stood 11 a court of equity in a very dif- ferent position. Tiiere is no doubt that the prices bid at the sale were all that the bonds were then worth, and there is no reason for imputing intentional fruud to the defendant. Under these circum- stances he may very well have bt-en jus- tified in assuming, and in acting u]x)u the assumption, that the complainant was sat- isfied with hia proceedings." Ibid, at j). 183 et seq. In Hadger v. Badger, 2 Wall. 87, 94, t'le court state the principles gov- erning sich cases, as follows : " In such cases courts of equity act upon their own inherent doctrine of discouraging, for the (teace of societj , anti(iuated demands, re- fuse to interfere where there liave been gross laches in prosecuting the chum, or long acquiescence iit the assertion of adverse rights. Lou;; acquiescence and laches by parties o>U of possession are pro- ductive of much hardship and i:>justice to others, and cannot bo excused but by showiu!^ some actual hiiidrance or im- ped'iiient, causeii by thv fiuud or con- roalmeiit of the parties in possession, which will appeal to the conscience of the Chancellor. The party who makes such appeal sho\ild set forth in his bill specifically what were the imi^edimeuts to aQ early prosecution of his claim ; how he came to be so long ignorant of his right's, and the means used l)y the res[ion- dent to fraudulently keep him in igno- rance ; and how atxl when he first came to a knowledge of the matters allcgMl iu his bill ; otherwise the Chancellur may justly refuse to consider his case, on his own showing, without inquiring whether there is a detnuiTor or formal plea of tL« statute of limitaticns contained in the answer." And '.ee the authorities cited in the previous note. 1 The Calais Steamlwat Co. v. Scudder, 2 Black, 372. As to the necessity of in- quiry in such case, see Jones v. Smith, 1 Phil. 244; Hiern v. Mill. 13 VVs. 114, 1 20 ; Jackson v. Kome, 2 S. & St. 47J, 475j Whilbread v. Jordan, 1 B. k C. 303; Kennedy t>. Green, 3 M. & K. 69tt, 713; Forrars v. Cherry, 2 Vern. 384 ; Miles d. Langlej', 1 R. & M. 39 ; Plumb v. I'iiiitt, 2 Anstr. 432; Evan? v. Bicknell, 6 Ves. 174 ; Cothay v. Sydenham, 2 Hio. Cli. 391. And see Over v. Pearson, 3 B. & C. 38 ; Mowrey v. VValsh, 8 Cow. 238, as to purchases bj innocent parties from par- ties fraudulently obtaining title. Seo also Horwood V. 8mith, 2 T. H. 750 ; I'arker V. Patiick, 6 T. K. 175 ; Wheelwiif.'ht r. Depeyster, 1 Johns. 471 ; McCaity r. Vickery, 12 Johns. 348. Jackson v. Walsh, 14 Johns. 407, 415, per Tiiompson, ('. .1.: " It has been a long and well-scttliil prin- ciple that a purchaser for a valualiii' lO"- sideration without notice has a good title, though he purchase of one who has oh- tained the conveyance by fraud." See Jackson v. Ileury, 10 Jolms. 185, 197. FAKT VI.] FIDUCIABT BELiTIONS. 457 the defendants who stood in fiduciary relations with tho infants appeared to have become interested in the property, it was not un- til after those relations had ceased ; and that, therefore, the bill could not be sustained.^ The assignee of bankrupts sold tug-boats, dredges, and other j)er80ual property to H. ; which sale was confirmed by tho court. fi. not paying for the proiKjrty, the court made an ex parte order setting aside tho sale to H., and directing that the property be sold to the defendants, which was done ; they paying the purchase- monoy. The sale to the defendants was subsequently cancelled by the court, and the original sale to H. was carried out. II. and his principal, C, filed a bill to compel the defendants to account for the profits from the use of the property while in their posses- sion, on the g^^^'uid that they were constructive trustees for tho plaintilfs. Tut Supreme Court, reversing the decision of the Cir- cuit Court, held, that the defendants, having purchased the property under a judicial sale, — receiving the property from the hands of the court, — did not occupy any fiduciary relation with the plain- tiffs, with whom there was no privity of contract, and against whom they lield the property adversely and without any liability to acount for the profits ; and directed that the bill be dismissed.^ Wliere one, whose duty it was as the agent of his jirincipal to pay taxes on his principal's property to prevent its sale, in viola- tion of his duty jiermitted the property to be sold, and himself became the purchaser, the Supreme Court of the United States declared that there was nothing in law or morality plainer than that the purchase must be held to be in trust for the benefit of the principal, on his re-payment of the sum advanced by his agent.* ' Kearney v. Taylor, 15 How. 494. » loiiio V. <'rane, 110 U. S. 403. See Rami c. Iteyuolils, 1;') C'ul. 460 ; Heynolils V. Harris, 14 Cal. (i67; I^upton v, Aluiy, 4 Wis. -242. ' liolhwell r. Dewes, 2 Hlack, 613; Ex jxtiii' ,]iuws, 8 Ves. 337. In this lat- ter luse, Lord KMonsaiil: "The (loctriiie as to iHuvliast's by trustees, assignees [('. «., in baiikniittcy], and pei'sons havin<; a I'un- fidential diaraeter, stands much more uiM>a general |)rineii)le than upon the cir'nuu- stances (if any individual case. It rests upon tliis, — that the purelmse is not jM-r- niitted in anj cnse, however honest the drcunistances, the general interests of justice re(|uiring it to be destroyed in every instance ; as no court is ecjual to the examination and ascertainment of the tmtii in much the greater number of cases. The principle has been cairied so high that where a trustee in a renewable lease endeavored fairly and honestly to treat for a renewal on account of the centui que trust, and the lessor positively refusing to grant a renewal for his Ijenefil, tUe trus- tee, as he very honestly might under those circumstances, took the lease for himself, it was held, that even in such a case it is so (iitticult to Ix! sure there was not nuin- agenient, — a dilliculty tiiat might exist in a much greater degree in many other cases having the same asjiect, — tliat the lease, taken by the trustee <'(';im a person who would not renew foi the beuelit of the cestui que trusi, should be considered taken for his benefit ; and should Ix; de- stroyed rather than that the trustee should hold it himself undc *hoseeireumstaiices. The principle as to trustees is certainly stated very ditterently in ditfeient author- ities. It is not, in my opinion, that it must be shown that the trustee has nuulo an advantage, as it is stated in some of them. The case I put of tho infant as to the lease negatives that, Tlie principle t '^"i 14 t : 'V! t' '■ 1, U \ T, h .: ■s Hi lU' n. t ' ii : ' 463 COMMENTARIES ON SALES. [book II. Unless restrained by statute, an executor can dispose of the personal assets of his testator, by sale or pledge, for all purposes is, that, as the trastee is bound by his duty to ac(iuire all the knowledge pos- sible, to enable him to sell to the utmost advantage for the cestui que trust, the question, what knowledge he has ob- tained, and whether he has fairly given the benefit of that knowledge to the cestui que trust, which he always ae({uires at the expense of the cestui que trust, no court can discuss with ttomiietent suttioiency or safety to the parties." Ex parte James, 8 Ves. 337, 345, 348. It was therefore, on the application of these principles, held in this cii.se that the purchase at pul>lic auc- tion of a lunkrupts estate by the solicitor to the connuisaiou at a price much bttyond its appraised value, and at a much Ingher price tlian it would liuve realized if he had not bidden on it, should, on the applica- tion of the Imiikrupt's representative, be •et aside, the Lord Chancellor refusing to allow the solicitor, discharging himself from his character as such, to bid u{H)n the re-sale of the estate, without the pre- vious consent of the parties interested, frecl}' given, uiion full information. It was further hehl that the purchase of divi- dends by the assignee and solicitor, under a commission of biMikruptcy, could not l)e for their own benelit, and that, to set aside a purclia. by a trust^-e of the trust i)rop- erty, it is not necessary to show that he has made any advantage. As to the purchase of the dividends by the solicitor, Ijord Eldon said: "As to the dividends, it is not contended that ai assignee can buy dividends. It goes upjn the old principle that an executor cannot buy the debts due from the testator. First, the possession of the property gives him the opportunity of dealing for the purchase. All the gain he gains, upon ordinary princii this, —not that a trustee cannot buy front his crstiii que trust, but that he shall not buy from liimself. If a trustee will so de.i! with his cestui que trust tJiat the amount of the transaction shakes off tht- oliligntion that attaches upon him as trustee, then he may buy. If that case (Wliiihonti' i'. Liiwrence) is rightly understood, it cannot lead to much mistake. The true iiitfiiirc- tiition of what is there reporteil docs not break in upon the law ns to trustees. The rule is this : A trustee who is intrusted to sell and manage for others undertakes, in the same moment in wliii h he iK-eoines a trustee, not to manage for the liciietit and advantage of himself, it does not pre- PART VI.] FIDUCIARY RELATIONS. 459 connected with the discharge of his duties under the will. And even where the sale or pledge is made for other purposes, of which the purchaser or pledgee has no knowledge or notice, but takes elude a new contract with those who have intrusted him. It does not prechide him t'ruiu bargaining that lie will no longer uut as a trustee. The ceatuis que trust may bv a new contrnut dismiss him from that (•liarat.ter ; but even then that transaction by which they dismiss him must, accord- ing to the rules of the court, be watched with intinite and the most guarded jeal- ousy; and for this reason, that the law supposes him to have acquired all the kiiHwli'dge a trustee may ac(|uire, which uiay Im; very useful to him, but the com- munication of which to the cestui que trust the court can never be sure he has made when entering into the new contract by which he is discharged, i disavow that interpretation of Lord Kosslyn's doctrine (in Whichcote v. Lawrence) that the trus- tee nmst take advantage. 1 say, whether he makes advantage or not, if the connec- tion does nut satisfactorily apmar to have been dissolved, it is in the choice of the asltiis que trust whether they will take biek tlu! projwrty or not, if the trustee has made no advantage." The ground of the rule is, that though you may see in a par- ticular case tha^ the trustee has not nuide advanlagi', it is utterly impossible to ex- amine, uiMin satisfactory evidence in the (tower of the court, in ninety-nine cases out of a hundred, whether he has made advantage or not. The question is very elaborately examined by Chancellor Kent in Davouc v. Fanning, 2 Johns. Ch. 252, where the rule as above laid down by Lord Kldon is concurred in ; and it was held that if a trustee, or person acting for others, sells the trust estate, and becomes himself interested in the purchase, the ccs- iuix que trust are entitled, as of course, to have the ])Urcha8e set aside, and the prop- erty re-exjiosed to sale under the direction (if the court. And it makes no ditference, in the application of the rule, that a sale was at public auction, bond fide, and for a fair III ice, and that the executor did not imrchasc for himself, but a third person, by previous arrangement, became the pur- chaser, to hold in trust for the si'|)aiate use and benefit of the wife of the executor, who was one of the cestuis que trust. This ilwtriiie is now well established. The ca-ses to this effect are very numerous. Heme i\ .Meeres, 1 Vern. 465 ; Ayliffe tj. Muiiav, 2 Atk. 60 ; Fox v. Mackreth, 2 Bro. (. C. 400; Coles v. Trecothick, 9 Vcs. 2;U ; A> parte Lacey, 6 Ves. 625 ; Morse r. Royal, 12 Ves. .372 ; Hunter v. Atkins, ;j M. & K. 135 ; Whichcote i'. Uwreuce, 3 Ves. 740 ; Scott v. Davis, 4 M. & Cr. 87; Kerr v. Lord Dungannon, 1 Dr. & \V. 609, 641; Whelpdale v. Cook- son, 1 Vos. 9; Lister i*. Lister, 6 Ves. 631; Sanderson i;. SValker, 13 Ves. 601 ; Downea V. Grazebrook, 3 Mer. 200 ; Campbell v. Walker, 6 Ves. 678 ; Lees v. Nuttall, 1 Kuss. & M. 63; 2 M. & K. 819; Copeland V. Merc. Ins. Co., 6 Pick. 196; Reed v. Warner, 5 Paige, 650 ; Reed v. Norris, 2 M. & Cr. 374; Heal v. McKieim.in, 6 Mill. La. 407; Matthews i'. Dragand, 3 Dess. 26 ; Monroe v. Alaire, 2 Caiites, Ca. 192 ; Taylor v. Salmon, 2 C. & M. 130. If the trustee liaa made any benefit by the trans- action, he must account for it. If he has sustained a loss, he must bear that him- self. Ex parte Hughes, 6 Ves. 622 ; £x ])arte Lacy, 6 Ves. 628 ; Ex parte Hiv. 109; Cock- eriU V. Cholmeley, 1 Russ. & M. 424; Savory v. King, 5 H. L. Cas. 627. By the civil law it was the rule that a guardian could not buy the property of his ward. The same rule was extended to like cases ; that is, to curators, attorneys, and those who conduct the affairs of othei-s. Dig. 18, 1. 34. Again, Dig. 18, 1, 46: "It is not allowed any one from the office which he jHiiforms to buy any- thing through himself or another." Our law, though derived from the civil law, differs from that, inasmuch as by the civil law one in a fiduciary jtosition could pur- chase the trust property at public auction. Dig. 18. 1, 34. \ V {\\ i 460 COMMENTARIES ON SALES. [book II. the property in good faith, the transaction will be sustained ; for the purchaser or pledgee is not bound to see to the disposition of the proceeds received. But the case is otherwise where tlio pur- chaser or pledgee has knowledge of the perversion of the property to other purposes than those of the estate, or the intended perver- sion of the proceeds. The executor, tliough holding the title to the personal assets, is not absolute owner of them. They arc not liable for his debts, nor can he dispose of them by will. He holds them in trust to pay the debts of the deceased, and then to dis- charge his legacies, and, as in all other cases of trust, he is per- sonally responsible for any breach of duty. And property thus held, acquired from him by third parties vith knowledge of his trust and his disregard of his obligations, can be followed and re- covered. The law exacts the most perfect good faith from all parties dealing with a trustee respecting trust property. Wlio- ever takes it for an object other than the general purposes of the trust, or such as may reasonably be supposed to be within its scope, must look to the authority of the trustee, or he will act at his peril.* Where one entitled to the property of a deceased person brings a suit against the agents of executors de son tort for money re- ceived for the sale of the property of the deceased, he ratifies and affirms the sale, and assumpsit for money had and received will lie for such proceeds.^ A ratification of the sale is also a ratifica- tion of the act of the agent in respect to the payment of the pro- ceeds of the sales to the executors de son tort? If a principal ratifies that which favors him, he ratifies the whole.* » Smith V. Ayer, 101 U. S. 320. It is laid down by Savage, C. J., in Colt v. Las- nier, 9 Cow. 342, that the purchaser is siife if ho is no jiarty to any fraud in the execu- tor, and has no knowledge or proof that the executor intendetl to misapply the proceeds, or was, in fact, by the very transaction, applying them to the extin- ffuishing of his own private debt. Uut he buys at his \w\'\\ ; yet if he has no such proof or knowledge, he is not bound to inquire into the state of the trust, be- cause he has no means to support the inquiry, and he may safely rei»ose on the ^neral presumption that the executor is in the due exercise of his trust. Field v, Schietfclin, 7 Johns. Ch. 150 ; Saxon ?». Barksdale, 4 Dess. 526; Miller v. William- son, 6 Md. 219; Thnmasson v. Brown, 43 Ind. 203 ; Petrie v. Clark, 11 8. & R. 377; McLeod V. Drummond, 17 Ves. 152. Any person receiving from an executor the as- sets of his testator, knowing that this dis- position of them is a violation of his dut}', is to bo adjudged as conniving with the executor, and such a person is resiionsible for the property thus received, either as a purchaser or a pledgee. Colt v. Liisiiier, 9 Cow. 342. The jiaymcnt by the e.xi'cu- tor of his own private debt with tii** assets of his testator is a devnalavit. C)it>i;k c. Watkins, 2 8. & S. 199; Cubbidgo r. IJoat- Wright, 1 Russ. 649; Panncll v. Hurley, 2 Coll. 241 ; Wilson v. Moore, 1 Mv. * K. 337; Kcane v. Robarts, 4 Mmlil. 3.1"; Eland V. Eland, 4 M. & Cr. 427; .Miller V. William.son, 5 Mil. 219; Hill v. Simp- son, 7 Ves. 152 ; Allendcr v. Uiston, 2 ('.ill & J. 98 ; Allwrt v. Savings Hank, 2 Md. 168. a Pickord v. Bankes, 13 East, 20; Spratt V. Hobhonse, 4 Ring. 173; Israel V. Douglass, 1 H. Bl. 2.39; Bt'ttnlslcv »■ Root, 11 Johns. 4fl4; Hule v. Marston, 17 Mass. 675; Claflin o. Godfny, 21 Pick. 1. « Gaines v. Miller, 111 U. S. 395. ♦ Skinner v. Dayton, 19 Johns. 513, PART VI.] FIDUCIART RELATIONS. 461 Itlier M a Liisiiier, lie ext'cu- the assets Clici'k I', r. Boat- llnrlev, ,1 Mv. k ul.l. 3S7; 17; Mill" i>. Simp- Ion, '2 ('.ill Ik, i Ma. fast, 20; li; Isratl Trilsley »• JMarston, Ificy, 21 SOS. |ui3. 513, An agent, who, as to his principal, occupies a fiduciary relation, will not be allowed to put himself int< position in which his in- terest and his duty will bo in conflict, riicrcfore, where a profit has been made by an agent, without the knowledge of his princi- pal, in the course and execution of his agency, the agent must account to his principal for such profit. This rule is an inflexible one, which the courts will inexorably apply. And a trustee or 554; Odiorne v. Maxey, 13 Miiss. 178, m; Munkiiia v. Wiitson, 27 Mo. 163; Small ('. Atwooil, 6 CI. k Fin. 232. Ill Coriiett V. Williaiiia, 20 Wiill. 226, tlio validity of the Hiile of a (lecwiswl pei- gon's piojierty wiis (juestioneJ in collatfinl procvuilings. liut the court held that thi.s fould not be done. The jwwer to review Hiiil reverse the decision nwde by a court haviii<; jurisdiction in the matter is clearly appellate in its character, and can he exer- cisi'd only by an apiwllate tribunal in a iiroceediiig had directly for that purpose. It cannot and ought not to be done in another case by another court, where the subject is pn'sented incidentally, and a reversal sought in such collateral proceed- injj. The settled rule of law is that juris- ilictiun having attached in the original ias«', everything done within the iiower of that jurisdiction, when collaterally cjuos- tionvd, is to be held conclusive of the rights of the parties unless inipeaclx d for finud. Every intendment is made to sup- itort the proceeding. It is regarded ns if It were regular in all things, and irrever- sible for error. In the ai)sence of fniud no iiuostion can he collatenilly entertained as to anything lying within the jurisdic- tional sphere of the original case. Mc- Nitt r. Turner, 16 Wall. 366 ; (irignon's L'ssee I'. Astor, 2 How. 341 ; Voorhees e. Th.' Bank of The United States, 10 Pet. W ; Stow V. Kimball, 28 ill. 93 ; McCoy I'. Morrow, 18 111. 594; Cody i>. Hough, 20 111. 4.5 ; KemiKi's Lessee t>. Kennecly, 5Cmni'h, 172; Canden r. Hurford, 4 Ohio, 133 ; Taylor t>. McDonald, 4 Ohio, 1.14. Where there is a sale of goods by ex- ecutors, even though they may not in sinvic hive iH'longed to the testator, if the proceeds when recovered would In? as- sets of the testator, the executors can sue in their rcpivseiitativo capacity. Ablnitt ». I'aititt, I,. K. 6 Q. B. 346. See t'owell I'. Watts, ti Kast, 409 ; Heath v. Chilton, 12 M. k W. 637 ; Webster v. Spencer, 3 B. & .\1.1. 360 ; Aspinail v. Wake, 10 Rin<;. ,11 : Brassington v. Ault, 3 Biiig. 177; Dowiiiggin v. Harrison, 10 B. & C. 666 : Hoggs V. Bond. 2 llawle, 102. In Vcntress v. Smith, 10 Peters, 161, the United Sutes Supreme Court held (1) that, under the laws of Alabama, an ex- ecutor or adminutrator cannot sell per- sonal proi»erty at private sale tinless so di- rected by the will of a testator ; nor can he sell at all without un authority from the orphans' court ; and (2) that executors i>nd adiniiiistnitors must pui-sue strictly their powers of sale, otherwise they do not devest the title or conclude those in- terested. Emos V. .laiiKvs, 4 Mini. (Va. ) 194 ; Knox v. Jeiiks, 7 Ma.ss. 488 ; Lock- wood V. Sturdevaut, 6 Conn. 387 ; Bcrger V. Dutr, 4 Johns. Ch. 368. In Lamar i;. Micon, 112 U. S. 4.12, 475, it was held that a guardian has the au- thority without any order of court to sell jH-rsonal projierty of his wanl in his jios- scssion, and to reinvest th(! proceeds ; Field V. Schiefl'clin, 7 Johns. Cii. 1.10; Ellis v. Essex Merrimack Bridge Co., 2 Pick. 243; and the fact that sueli a sale during the rebellion was made by the guardian with the motive of avoiding its conti.scation to the L'liited States has no btmring on the question. The application of the funds of the ward to the ))urchase in New York of guaranteed lH)nds of the (-ities of New Orleans, Memphis, and Mobile, and of bonds of railways in the .Southern States, indorsed by the .States in which they were chartered, having Immmi made with due t;are and prutlcnce, and regard to the pecuniary interests of his ward, was sustained. But investment of the ward's funds in bonds of the Confederate States was held unlaw- ful, and mi legislative net or judicial de- cree or decision of any .State could .pistify it. The court h.'Id that the Confederate Ctovcninient was in no sense a lawful gov- eminent, but was a mere govcriiiiieiit of force, having its origin and foundation in rcliellion against the United Slates; that the noti's and bonds issued in its iiniiie and for its sii|)])ort had no legal value as money or property except by iigieemeiit or acceptance ol parties (lapable of contract- ing with each other, and could never be regarded by a court sitting under the au- thority of the I'liifed States as securities in which trust funds might be lawfully invcsteil. Lamar v. Micon, 112 U. S. 452; Thorington o. Smith, 8 Wall. 1; Head i;. Starke, Cha.se, 312 ; Horn r. Lockhart, 17 Wall. .170 ; Confederate Note Case, IS) Wall. 548 ; Sprott v. United States, 20 Wall. 459; Fretz v. Stover, 22 Wall. 198; Alexander v. Bryan, 110 U. S. 414. f ( a ^?Ul i 1 \M 462 COMMENTARIES ON SALES. [book II. agent for sale is precluded from purchasing from his own pur- chaser property which he has been entrusted to sell (except with the liability of having the transaction treated as for the benefit of his principal), so long, at least, as the contract remains ex- ecutory, and the trustee or agent has power either to enforce it, or to rescind or alter it. This principle is fully sustained in the important case of Parker V. McKenna,^ where Lord Chancellor Cairns delivers an elaborate judgment. The defendants in that case, in 1864, were four of the directors in a joint-stock bank. In that year resolutions were passed to increase the capital by the issue of 20,000 new £50 shares, which were to be offered to the old shareholders at the rate of one new share for each old share held by them, each allottee paying for each share .£25 premium, and £5 as a first call. The shares not taken up by them were to be disposed of by the directors at .£30 premium. The directors entered into an ar- rangement with S. for him to take at £30 premium all the shares not taken up by the old shareholders. In pursuance of this, 9,778 shares were allotted to S., who paid only £5 per share, it being arranged that the certificates for these shares should bo withheld ; that the bank should have a lien on them for the premiums ; and that no transfer from him to any purchaser should bo registered till the £30 per share on the shares transferred had been paid. S., being unable to take up so many shares, applied to the defendants to relieve him of some of them, and they severally took from him considerable numbers at £30 per share, and after- wards disposed of them at a large profit, the £80 per share being paid to the bank at the times when the shares were respectively registered in the names of purchasers. It was held, affirming the decision of Bacon, V. C, that the defendants must account to the bank for the profit made by them respectively by sale of the shares.' » L. R. 10 Ch. Ap. 96. *' See, where the same principle has been established, York & North Midland Ry. Co. V. Hudson, 16 l^ar. 485; Blissett V. Daniel, 10 Hure, 493 ; Hamilton v, Wright, 9 CI. & F. Ill ; Tennant v. Trenohard, L. R. 4 Ch. S3. And see The New Zealand & Australian I^and Co. V. Watson, 7 Q. B. Div. 374, and Harris V. Truman, 9 Q. B. Div. 264, with refer- ence to tiducinry relations existing between principals and agents ; in the former of which cases it was held that, as the de- fendants did not stand in any fiduciary character towanls the plaintiffs, the latter conld not follow the proceeds of wheat into the hau^s of brokers employed to sell it by the plaintifTs' agents, without giviiiR credit for the sum due the defendants by the agents on their general auonunt (see Bobbins ». Pennell, 11 Q. B. 248; Stephens V. Badcock, 3 B. & Ad. 354 ; ('obb v. Beeke, 6 Q. B. 930 ; Sehmaling i'. Thorn- linson, 6 Taunt. 147; Armstrong f. Stokes, L. R. 7 Q. B. 698); and in the latter case it was held that, as a fiduciary relation ex- isted between the plaintiff and his agent, the plaintiff was entitled to follow the pro- ceeds of barley bought for him by his agent in the hands of his agent's trustee in bankruptcy, as the trustee could not stand in a better jwsition than the bnnk- rupt himself. Rabone v. Williams, 7 T. R. 860, n.; Sims v. Bond, 5 B. & Ad. PART VI.] FIDUCIARY RELATIONS. 468 389 ; Mann v. Forester, 4 Camp. 60 ; Mitans V. Henderson, 1 Kust, 335; Knatch- b\ill V. Hallett, 13 Ch. Div. 708; Ex parte Kingston, L. R. 6 Ch. 632; Ex parte Cook, 4 Ch. Div. 123; Taylor r. Plumer, 3 M. & 8. 562; UodtVey v. Furzo, 3 1'. Wnw. 185; Thomiwou V. Giles, 2 IJ. & C. 422 ; Frith V. Ciirtliind, 2 H. k M. 417 ; In re Hal- lett's Estate, 13 Cli. Div. 696, 707. As we huvi' intimated ante, Hook II., P.irt I. (and •u also ante. Book 11., I'll ♦ 111., § 3, p. ISi), n. 2), the terras votd itnd voidable liave in numerous cases, particularly with referonct! to the contracts (it iiii'ants, been used with much carelegj- iiess, the term void often being iniprojicrly employed where voidabfc is really meant. This looseness of expression has led to much discussion as to what contracts of inlnnts are absolutely void and what are only voidable ; and in some of the cases there is much refining and not less confu- sion in connection with tlu'se terms. It is now scarcely at all contended that any contracts of infants are absolutely void. Where they are not binding on the infant they are voidable at his election ; and wliilp the plea of infancy is a good defence fortlie infant, it obviously is no defence at all for the adult who has contracted with the infant. Nor <'an the adult derive any henetit from the fact that, as being bind- ing on the one at the election of the other, there is no mutuality, and, therefore, no contract. There is no mutually binding contract until the election has been made by the party entitled to make it, ond then there is not only the mutuality, but the power to avoid the contract is gone ; and while it was never absolutely void it has ceased to hv. voidable. The same princi- ple applies to contracts which may be avoiilcii for frauen held that an executor may pur- chase, if it be without fraud, any property of his testator at open and public sale for a fair price, and t/uit such purchase is only voidable, and not void, as we hold it to be." They then ad' : "But with oil due re- spect for the liarned judges who have so decided, we say that an executor or ad- ministrator is in equity a trustfe for the next of kin, legatees, nnd creil tors, and that we have been unable to find any one well-considered decision, with other cases, or any one case in the books, to sustain the right of an executor to lieconie the purchaser of the proin-rty \vhiiiile the court watches the proeeediiigs with great jealousy, " // is in the choice nf tki ccaluis que trust, whether Iheij will luki buck the firopertj/ nr not ; if the! trustee jms made no advantii}{e. ' In Wliel|Htule i>, Cookson, 1 Ves. .Ir. U ; 5 V.s. 682, wli.re a bill was tiled by a creditor iigainst tlie defendants as execiitois and trustees, to set usiile a purclnisc by the trustees, at iiublic auction, of tlic trust pro|H'i'ty ; iord Mardwiiki? ordered the credildrs to elect u'hHiicr they would abide by the fmr- chase. The court further ordered ihiit if the majority (»f tliein elected not to abide by the purchase, then the property was to be put up again, and sold befort! the iiiai*- ter ; but if tht! majority elected to alijiie by the purchase, the trustee was to ac- count for the iiincliase-monoy with inter- est. Lord Kliloii, in Ex parte Laeev, 6 Ves. 625, 628, dissented from this latter holding, but only on the ground tiiat the majority of the ccstuis que trust could not, at their election, bind the minority ; but, as we have seen by the language he him- self used in Ex parte Laeey, he was very far from dissenting from Lord Hanlwiiku in his view that it was the right of tii« ccfl- uis que trust " to elect whether they woiiM abide by the purchase." In such case, nf course, the sale was not "void," but void- able only, at the election of the cestuit que trust. The cases are very numerous in which it has been held that, even whent the case has been lacking in liona fides, tin' emtui qu« trust, having knowledge th<'re*ii> becau.se of a laj>so of elj^hteen years, dis- missed upon the length of time only. In Campbell v. Walker, 5 Ves. 678, ilie law is thus laid down : " The question will always be, whether the cestuis que Irint have lain by ; or whether there has been any ratitication. I will lay down the rule as broad as this ; and I wish trustees to understand it ; that any trustee purchas- ing the trust property is* liable to have th« 1>ABT VI.] nDUCIARY RELATIONS. 466 Lacny, 6 ya tlown uoiitruct till' imtui lUslllisH 'll tint Vi'u\k iij;s with >ici: iif tlu I liiki buck ■uhIi'i' has I'11mI;i1(( I'. mi, wliiTe j^iiiiist the fllnlci'S, to rusti'rs, at ln-DiM'Vty ; •vi'ililors (o 'iij //('■ ;'l^^ ■red that it lot to iibiile erty wii'< to in; the iiinn- J J to iihiik WHS to At- with inter- ne liiu'cy, 6 I thin hitter nil that the st cottM not, lority ; hut, mgo 111' him- WHS very far liiiilwiflce in |t of tliu «■'(• r tlipy wnul'l 9\ji;h I'.a-ie, of • hilt void- tho «s(iiu 1« imnhaw set uide, if, in any rensonable tune tlie cestui que IruM ciiouHflM tu Hay lie i;t not satiiifled with it. The trtutuo pur- chiM!!*, gubject to thut equity ; that it the (utuis que truat uonie iii u ivaHoiiable tinitt, thvy limy cull to have the vntate ruHulil. I will lay ilown the rule an broad an that." in ColuH V. Tr«eothi(:k, l> Ves. U34, L.urd Kiiloii fxpro^uily HiiJittiiiiod tiui'li a piir- ihttso, where the cestui que trust had full inl'iiriiiiitiun uiid assiMtrd in thu sale. Tho |iriu<:i|il<'tt gi)Vt!riiiiii{ the luattt-r are thus ttiiti-il. Siiys Luiu Kldoii : " Uiiun the i|uestioii uit to a purchiMu from the cestui ifue !niiit, 1 uf^rve that the cestui que trust may deal with his trustee, ho that the trustee may lieL'oine the jmrohuHer of the t'jtiite. But, though permitted, it is a traiiMictiuii of great delicacy, and which the court will watch with the utmost dili- gi'iice ; so much, that it is very hazardous for a truhtee to engage in such a transac- tion. ... A trustee may buy from the ctslui que trust, provided there is a dis- tinct and clear contract, ascertained to be such after a jealous and scrupulous exanii- uatiun of all the circumstances, providing the eistiii que trust intended that the trus- tee should buy ; and there is no fraud taken l)y the trustee, of information ac- i|uired by him in the character of trus- tee," So the sale by a trustee of atock which a trustee holds in trust, is not abso- lutely void, but voidable only, at the elec- tion of the cestui que trust, who has the option either to have t)ie stock replaced, or to take the money produced by tlie sale with interest. Forrest v. Elwes, 4 Ves. 497; Piety v. Stace, 4 Ves. 620. And if a trustee niisaj)ply the funds of the ctstui que trust and purchase a judgment or other security therewith, the act is voidabh; at the election of the ccslui que tnul, who can elect to take sui*^ judgment or security, or require the tri e to make Kooil the original purchase. Steele v. nahcock, 1 Hill, 527. So the master of 1 ship, piiruhasing the ship at a sale by public uiitliority, cannot purchase for him- self, unless the owner afterwards elects to allow him tho right. Chamberlain v. Harrod, 5 flreenl. 429 ; Church v. Marine Ins. Co., 1 Mas. 341 ; Barker v. Maine Ins. Co., 2 Mas. 369 ; The Schooner Til- ton, 5 Mas. 462, 480. In Morse v. Royal, 12 Ves. a,")."), a purchase by a trustee from the eesliii que trust was established under the circumstances of the case, where there had been continuation and aci|uie8cenco. It has been repeatedly held in this country, that the purchase of the trust property by the trustee, vr one occupying » position of that character, is not abso- lutely void, but is voidable only at the flection of the cestui ijite tnut. Davoue « Fanning, 2 Johns. Ch. 252 ; Rogers v. VOL. I. 80 Rogers, 1 Hoplu. 615 ; Van Horn v. Fonda, 6 Johmt. Ch. 388 ; Saltmarah «. Beiiiie, 4 Port. 283; Litchtield v. Cud- worth, 16 Pick. 23, 81 ; Copeland r. Merc. Ins. Co., 6 I'ick. 198 ; (i rider v. Payne, 9 Dana, 190 ; Ricliardson f. Jones, 3 (iill k J. 163; Iladdix v. iladdix, 6 Litt. 202 ; Davis v. Simjison, 6 liar. & J. 147 ; Biackenridge v. Holland, 2 Black. 377 ; Arnold i<. Hiown, 24 Pick. 96 ; Da Caters V. I.e Hov De Chamont, 3 Paige, 178 ; I'eny i-. Dixon, 4 Dess. Kij. 604, note; ISutler v. Haskell, Ik 6,'i4 ; Davis 0. Simpson, 5 liar. & J. 147; Boyd v. Hawkins, 2 Bat. & Dev. Kij. 207 ; Wade V. Pettilmie, 11 Ohio, C7 ; Mills v. Good- sell, 6 Conn. 476 ; I'nvost v. Gratz, 1 Peters, V. C. 368 ; Hnrriiigton v. Brown, 6 Pii'k. 519 ; Deiin v. Me Knight, 6 Halst. 685 ; Wilson v. Troup, 2 Cow. 196 ; 7 Johns. Ch. 25 ; Jackson v. Woolsey, 11 Johns. 446 ; Denn v. Wright, 2 Halst. 176. And such sale is capable of conlinimtion. Pievost V. Gratz, 1 Peters, C. C. 368 ; Jackson r. Woolsey, 11 Johns. 446; Gal- latin V. Cunningham, 8 Cow. 361 ; Crowe V. Itallard, 3 Hro. C. C. 120, note (c» ; Gwynne V. Heaton, 1 Bro. ('. C. 3, noto(l). Hut in all tlicse cases, if the principal, after a full knowledge of all the circum- stances, deliberately ratifies the act of the trustee or ac(|uieHces in it for a great length of time, it will become obligatory upon him ; not by its own intrinsic force, but from the consideration that he thereby waives the protection intended by the law for his own interests, and deals with the trustee as a person, qwxid hoc, discharged of his fiduciary character. Hawley v. Cra- mer, 4 Cow. 717 ; Van Kppsv. Van Epns, 9 Paige, 237 ; Scott v. Davis, 2 Myl. & C. 87 ; Prevost v. Gratz, 1 Peters, C. C. 368 ; Fox I'. Mackreth, 2 Bro. C. C. 400, 401 ; Hayward v. Ellis, 13 Pick. 276 ; Ball v. Carew, Ih. 28. Length of time will not, however, fur- ni.sh a ]iresuniption of aciiuiescence in such a ]mi'chase, unless it appears that tho cestui que trust had notice that the trus- tee had become n purchaser. Prevo.st v. Gratz, 1 Peters, C. C. 370 ; Sihietlelin v. Stewart, 1 Johns. Ch. 620 ; Quarlcs v. Lacy, 4 Munf. 251 ; Mc(Juire v. Mc- Gowan, 4 Dess. 486; I'eny v. Dixon, lb. 504 ; Anderson v. Fox, 2 Hen. & M. 245 ; Eichelberger v. Bariiit?:, 1 Yeates, 307 ; Hawley v. Marcius, 7 Johns. Ch. 174 ; Ex parte Wiggins, 1 Hill, Eq. 354 ; Davis v. Simpson, 5 Har. &J. 147 ; Boyd». Hawk- ins, 2 Bat. & Dev. Eq. 207 ; Lazarus v. Bryson, S Binn. 64 ; Campbell v. Penn. Life Ins. Co., 2 Whart. 53 ; Brackenridge V. Holland, 2 Blackf. 377 ; Wade v. Petti- bone, 11 Ohio, 67 ; Mills v. Goodsell, 6 Conn. 476 ; Lovell v. Briggs, 2 N. H. 218; Curlier v. Green, lb. 225. And see Hi-' V' %i J * i vM 466 COMMENTARIES ON SALES. [book II. Ryder v. Bickerton, 3 Swans. 81 ; Harden V. PArsons, 1 Eden, 145 ; Walker v. Hy> nionds, 3 Swans. 64 ; Broadhurat v. Biu- guy, 1 Y. & C. Ch. 16; Philli|>Kon v. Gatty, 7 Hare, 616 ; affirmed 2 H. & Tw. 469 ; Munch v. Cockerutl, 6 Myl. k C. 179 ; Hawkint. v. (Jardnor, 2 Sin. k O. 441 i Farrar v. Barraclough, lb. 231 ; Re McKenna, 5 L T. k. 8. 211 ; Far- rant V. Blanchfurd, 1 I)o G. J. & s. 107; Avelinu i>. Mellhuish, 2 De G J. &S, 288 ; Life Ammo, of Scotland v. Siddall, 3 Ue G. F. & J. 68 ; Butler v. Carter, L. U. 6 E(i. 276 ; Griffiths v. Porter, 25 iiiar. 236 ; Jte Cross, 20 Ch. Div. 1U9, as to acquiescence. PAOT VII.] partners' sales. 467 BOOK II. PART VII. PARTNERS' SALES. 1. What Constitutes a .Partnership. The contract of partnership, according to the civil law, is nothing otherwise than the contract of agency.^ A man who allows another to carry on trade, whether in his own name or not, to buy and sell, and to pay over all the profits to him, is undoubtedly the principal, and the person so employed is the agent, and the principal is liable for the agent's contracts in the course of his employment. So, if two or more agree that tlicy should ostensibly carry on a trade, and share the profits of it, cacli is a principal, and each is an agent for the other, and each is bound by the other's contracts in carrying on the tiade, as much as a single principal would be by t!ie act of an agent, who was to give the whole of the profits to his employer. Hence it becomes a tost of the liability of one for the contract of another, that he is to receive the whole or a part of the profits arising from that contract by virtue of the agreement made at the time of the employment.* Foi hundred y-^ari the common-law caHcs wandered away from tlko principles ol the civii law, as statiid above, in reference to the test of a partnership. " Perhaps the maxim that he who pnitakcs the advantage oughr to bear the loss, often stated in the earlier cases on this subject, is only the fonnrqnence, not the cause, why a man is made lial»le as a partner." '"^ Among the various tests in the old cases, as to the existence of a partnership, were (1) the sharing in the profits; CZ) the ahar- injr in the profits as profits, nut as wages, etc, ; (8) the sViaring in the mt rather than in j m n i<'. 468 COMMENTARIES ON SALES. [book II. t In Ex parte Hamper (aupra). Lord Eldon said: "Tlic cases have gone farther to this nicety ; upon a distinction so thin, that I cannot state it as established upon due consideration ; that if a trader agrees to pay another person for his labor in the concern a sum of money, even in proportion to the profit, ecjual to a cer- tain shure, that will not make him a partner; but if he Iuih a specific interest in the profits themselves, iis profits, ho is a part- ner." And again : " it is clearly settled, thougli 1 regret it, that, if a man stipulates, that, as the reward of his labor, ho shall •;ive, not a specific interest in the business, but a given sum of lUDiioy oven in proportion to a given quantum of the profits, that will iiut make him a partner ; but if ho agrees for a i>urt of the prolit.s, as such, giving him a right to an account, though haviag no proiKity in the capital, he is, as to third |>crson.s, a partner; and in a question with third persons no stipulation can protect him fruiii loss." » The doctrines in these cases have been largely acted upon in this country.'' The case of Cox v. Hickman^ brought back the law in princi- ple to where it started in the civil law. That case has bcu n- peatedly followed. In Kilshaw v. Jukes,* it was hold, ()i. the authority of Co.x v. Wickinan, that the test whether a person is not an ostensible partner in a trade, is, neverthel(>SH, in i ... templation of law, a partner, is — not whether he is entititd to partici|)ate in the profits ; although this a(Tords cogent, oltcn conclusive, evidence of it — but whether the trade has Imou car ried on by persons acting on his behalf. There is this tiiiiiir for- tain, that if the test of partneii^hip were simply as to fhe riirlit of sharing in the profits of a business, then not only would (dx V. Hickman — holding, as it does, that the creditors of a cttncorn, the business of which was carried on by trustees, the profits ol V. Cnrv«r, 2 H. Bl. 235; Ilonre v, D.iwm, 1 Doiifj. 371 ; <" Ihid. at pp. 404, ( . J. 8(>fl further Er pnrte LriikiIiiIo, 18 Vcn. 300; Kx park- Wiitsoii, 11> VoH. 4()'J ; Ex fxirtf, llml«kini«)ii, 19 V.'s. 2!>1 : fn r.- Oolbcck, Hiu'k, 48 ; AV /mrle l)iKl>v, 1 l)<-iir. Ml ; Tfiiih V. li'.lM'its {( Mk.I.I; H.1 ; WitlK-r- ingtuii V. Hi'i'iing, 3 Moo. &. V, 3(1 ; Clicik|> V. CriiiiiDiiil, 4 K. & Alil. A(I3 ; Wilkiinon V. Fia/inr, 4 Kmii. 182; IVrmt w. Biy;iiit, 2 Y. &('. «1 : Mnir v. Clennio, 4 M. & S. 240 ; Ikrry i-. N'fulmiii, 3 C. H. 641. * See Lootnis v. Murahall, 12 Cuud, 60; Champion v. Hostwick, 18 W.n.l. ITS Vilnili'iilMiixh V. Hull, 20 Wm.l. :■ . ThotiipHoti V. Snow, 4 (Ircciil. 2•■ IW tholil I'. (Solilsniitli, 24 llow. M>\ : <>ili'* ; Vonrlici's r. .IciP' • 5 Diitcli. 270 ; SUiVftiH V. Faiifrt. 2t I" 483 ; UoWhiiiH v. I.usw.'ll, 27 ll>.. :>'''. Faw.-itt V. (NlKirn, 32 III. Ill ; .Mi'V r. Coiiilm, l.l lu.i. IW; lU-VuMs V. Ilhi'. lit Iii.l. 113; iiriili>v V. (io.lc|itnl. I',' M>' 108; AthiTton v. Tiltoii, 44 N. II. 45J, Whitney v. I.iulinjjtoii. 17 Wn IW; Wri)(lit V. rmvidrtoii, 13 Miuii. 411'. • 8 II. of L. Ciu. 2'. .i"i"-. i7 111. ;it'.'. II I ; M'"'*' "■■ ll.ls r. lli'l". l.l.»r.l. 4'.' M"' N. II. *^'^' \Vn. UO; In. ii'')- PART VII.] partners' sales. 469 wliich were to go to the creditors, and yet that tills did not con- stitute the creditors partners with the trustees — be wrongly de- cided, but all that largo class of cases which holds that clerks, sailors, etc., who may be paid their wages by a share of the gross or net profits, would, also, be wrongly decided. Not only so, but in very many cases, in which a mere co-ownership exists in property, wIhtc, by virtue of such co-ownership there is a participation in tlio piolit derived from the hire or other use of the property, it wonld have to be held that a partnership existed. Jiut it is (|uite clear tiiat in a simple co-ownership, while the co-owners might have the right to divide the profits gained from the hire or other use of the property, this would not constitute a partnership, nor miiko the mere co-owners liable as partners.' Vet, while the cu-<»tt'ne;'8hip would entitle the co-owners to a share of the profits resulting from the hire or use of the common property, and still, ;is w(> have seen, this would not constitute them partners, mere c'l-uwners, as such, would not jjo.ssess the power necessarily and iii« ,t sfij cnsfs .itiii. An.l wr Mt. §S Mil, a'Jl ; Co. Lit. 201) a; Iti-lioliotli r. limit, 1 Tirk. 'J'.M ; HriHio v. Met iff, '> .1. .1. MiiihIi. 37a; Allfti t'. tiiltMon, 4 Kiiiiil. ItlS ; JoIiiihoii v. liiirrlH, 5 lliivw. 113; Iliiu'N v. Frttiitlmm, 27 Alu. ILMi; lltiKlif«) r. Iloiiiilav, 3 Orofiif, 30 ; Youii>{ •'. Adrtiiis, 14 M. Mon. 127; Williiimnon IVwnnnI I'roiMTtv, 2M2. » JSullfM r. Slmiii, 18 C. II. N. i-. 014, ^rv('l^^l•cl, on nji|HMi!, in tho Kxfli«<|Upr , -, ) "JM""' ■^'tiiiHr M.irHlmll, 12 Conn. fll«; rntnnin ChnniK'r ; !.. II. 1 C. P. 86; 35 L. J f ^Vi„., 1 Hill, 231» . Honktth r. HInnfh- C. V 105. •fl, 4 K,ist, 144 ; Mo/sy v. Whitney, 10 ♦ 8 H. L. Cns. 268. JcliDi. 228. '1 ii \ 1' \'iU i ' i li. .:fj 470 COUMENTABIES ON SALES. [book 11. PART after providing for all known losses, I hereby promise and agree to pay to you during your life, in case 1 shall so long live, an annuity of j£500. being equal to £10 per cent per annum on £5,000, and further, that, if at the end of three years from ilie date hereof, it shall appear that one fourth of the net avoragc annual profits during that period made by nio in the said business shall amount to more than £500, the said annuity shall tliciico- forth be increased to a yearly sum equal to one fourth of such net average annual profits made by me in tho said business dur- ing the said three years." And tlie memorandum concludod with these words : *' Moreover, in no case are you to be couHidcitHl a» a partner with me in the said business of an underwriter," It was held, by the Court of ('omnion I'tcas, and afiirmed on tliis point by the Exoheipicr Chamber, that this memorandum did not constitute the defendant a partner with his son. By a settlement afterwards made on his marriage, S. assigned to ti)e defemlaiit and one 0., as trustees, " all and singular the sums of njomv, earningi', profits, and emoluments whieh are now in the hamJsof F., and all such as shall hereafter come into the hands of F,oii aceomit or in respect of the said underwriting business." Tiie deed also contained a power of attorney, authorizing the dotViul- ant and his co-trustee to receive the whole j)roceeds of the Ixisincss; and the first trust was to pay the defendant £500 a yeai-. wiili an additional sum when the profits of the business should liaM- nal- i'/.ed a given sum, and a covenant that, when the aceuniulatcd profits should have reached tS.oOO, ami continued at that aimmnt without reduction for two years, the trustees should rc-assiiru to.*'. " the said monie.s and |)rofits arising from the aforesaid underwrit- ing business." In an action upon a polie// nhpial Ay F, in Oif name uf A'., it was lield by the K.\che(]uer Clinmber, Pigntt, R, and Shec, J., dissenting, t'eversing the judnuent of the Cii' III tliis i-anr ..it it. wiw of that tritmiinl is binding, not only "H coiiw>ili.il ot| all >.i(ii'H tliat tiny wci'uIjoiuhI nil infiiiur tril)nnal.s in tliis cuiiiitry, '>' by tin- 'Ir. isitin lit Cox r. Ilnknian, 8 II. pvcii on tlial H(>nsi> itscll wlnn sii'm; L. C. '.i'lS. Blai'liliMin, .1.. coriwtlv stali-d jn-ti.iallv." Hnllrn v. Siiarj". I- 11- 1 •'■ Ihc cIliM.! (it that I :is(. llius ; "I'lii" caHc of I*, ut p."l(>8. I'inott, B., onr "f ll"' '*' Cox I', lii^kiiiaii ticinn! a •!«'( iKimi of tho liissfntin^ judt'c s, also miiil, " Tli- priii'i' Hoii.si> of I.Dnls, t'lc oliiniatti <',mi't ,if |il* of tlir law ;i)ii>liralil.' to ttt^ 'it*' '* Ap-jwnl, ovi'irulfs all cailiiT authorities in- sfatcii in (.'ox c. Hickman, in a k"'y rhr consLsti'iit with tli.it 'l-'i'i.sion, anil, so far jntljjint'nt of l^inl Cranwortli, 'l.n' m the jnilj?niiMit ^oes, (i.vcs tlii- law in tJiiw 'Tho iral ^TonniS of lialuiity (a< .i \«^ touiitry. Wi! iiro not |y)nml liy all that nfir| i.s, that tlii> trHrto him htuii ■ irii...! 'H is said in the foursc ol a )niij/ii.<'iit of tho bv |H'rsnns mtituf fn- ',,-i b< hall I'tiii i"" HtHiw- o( LonU ; Imt that wl u-h ttptienre bi'half ol tin ,;.r^oii siaifjlit to !«* '"^''* to be >hf rule fstabliahwi by tho deuwion . liablcj, so thtU he would stand in tin' f'*" As man •i tioa of (' ii.X o.ttfcii Ijiiiiiiitio (imilr. ■ . till- |U)V o pK'M'Ilt C iiNiii.. hy li.'filioii I «! in i)tli .ittili;,' liii anting for m Ti„. 'it'lfv (Icali .i.asiiij,' uii »i'.iiriii^ ( A'JiKi, th;.. i>ti aii I >lin [irofit.s, an lit |>i(»lit..i, |iri)lpal.lv, ii "f [Tolits ; ciiiisidi'iatii »;is liaicly wlucli tho Mn.siilcrcd i not colli lii.i- ami iialiilit' «(io aiiiini fi'iiii uit out fwi.l lilt won l«ci( liahli! if « i«rin(.>i "''.■." t,it(. '"*"y ahrrci !"''lit,af(,./-tl| ''"'Vioii.sly to « 'ilSvlllll,.^ V ■;'"'"iii- t!i. m '.'""K, .11 'i,,. '." tiirryii)^/ ''""ot'tli,. Sl; ^-r.»fit „f „„. •'iniili & ( ■„. '''*'. til,' ,|,.f, *''l» till' cartv "wiiics., n.f 111 «»n ha.l i„ ,.,.r PART VII.] PARTNERS SALES. 471 As was stated in Biillen v. Sharp,^ the holding in Cox v. Iliok- mim '■^ is conclusive on all courts in England. Jn this country, as liot only ■otin •rv. I.- lli'H si! !'■', I- U. 1 I', • ol t!i.' !■*■> ri. )'r Il'l- t ti- • ■I* IS ll V •■rv ■l-ar ll il.ii ' i'' i a ;itirt- ■I'. irii liil |, r.ll to '.-e \w)h \\\ till' ct'l»- tioii i>i prinvipai tDwards tbe jjei'sons a<:l- iwf? ostensibly an the triuler.s, by whuin th' liabilities have bt'eii iiii'urred, niul iiiului- wim.-r .aumgiiiii'iit tliu protits hi»v<: bt-eii iiiiiiif.' Now. ii|ii)lying this (>\|K>H\ti(>ti of tin' \\\s of ]inrtu"isl(i|i to tlm fm;tii of tlu* pii'Miii ciiso 1 till. I tl.at the contract ii ii:ailr by F. ill Siiui|), ,lr. 's, iiiMnc, and ti»c li!i"ition tlicicforc !H, wliosc ugcnt was F. ? .,• in other wonls, iilth'uigh Hinutniitly utiii;^ h)r Sluirp, Ji., aloitc, was he r«;illy utiii),' f, itJ<, with the question iiisiii;,' under the luemoratKluii), aloi.e. sniuiii;; tti'' jMiynnnl of the iinnuity of iJDO, th:.s : - "Though lixeil 'ipparently, inij(ht employ, the hiiMltieK* of the Stanton Iron Coriipmiy for the lieiielit of tiie crwl- itors of .'^ii'ith & to. The business of the Stanton iron Company, in Cox i;. Hick- niu-i, was th-! busjni.ss of the trustees, car- ri.'.t on V>y them f^n i;b).Mts with whioh the {parties dealing with tlnni !iml no conenrn ; the trustees were, tlierefore, held liable for its debts. In this cfise, the underwriting business had beconic the busii\e.ss of th.) defendant and Peimiso!! (the defetldant';) co-tnistec), and they, iis I think, had Iw- come liable for its debts ; not la'eause tiiey shared Uie profits, whiih one of them did not share, but luraiifc it vas their biisiiii'ss. earriecl on !(ir theni with their funds, by F. , as thvir a^rent, in the name oil .111 I >tini3tii of tie pndwl.le amount of of Sharp, .Jr., ai it saliry to be paid to F. (irutits, and to increase with an inciease i;l prolits, it wiH not luct'ssarily, or even |iri)liablv, in the firet instance, payable out oi pnilds ; and rcganl bo»nj» liad to the loiisideraiion for it, was not within, or w:is Iruely within, tln^ nnsehief to prevent will, h the sharidg of the profits h.is been 'Oiisidered in many eases as cogent, ihoiigh not I'otK IiiKive, evidenoe of ix pnitnership, mil liiiliility for its debts. \Vhelhe'.' tlio KMi\ annuity was in tact paiii to the de- ti-nil lilt out of the profits r.r not, the i.lr- fi'ii.i lilt would not ri'hit.i v/,- nfidiUhiis, liave !«cn liable for its de'.iis. The (ieiinitnin oi 11 p.ii'lnersliip, — ' l'i>iitrfiiii.: cmmcusii- 'tis (ic re v< I ojttrin coininaniiMndi t liuri ihfommurn; faciiiidi caii^a' (I.. 6-'!, w. t'f. So'ictatej, was not satisiied by the ri'l itioii U'twi'i'Ti liim aiid bis son. They did not '.iti!iid to N' partners ; and I'lie bubiuess was ;!.>t iMvrieil on by the d.'liu lant or by any ithiT |MMso!i on his I'eli.dl', in pai'nership riiiif ill partnership '.vitb liiin ; " • pro- ivilstiideal with the .nhor ipii'stioii thus: "Tlii-. .■•t.ite of ',liin)t;Si howevt r. was male- Mill!) altereii uiiih r Ihe nuirn»jr' s'ttle- '"•■at, after the inarriaf,',"if Simr|», .Ir. . . . i'lTvioiisiy to tlie date of marri.ip', unhsf «:Mvssiiiiie, vliii'li ihiTfi 'oeias no j;roiinl f'lt il'iiiii:, the whole mheniu lo have in-en iliiwer i,ii mIIusIv" fr.im its in.'ption, '■ lit had no nio'e to do with the . I'y himself or hif n^jent o( the .ui'ii.g biisirievi •lmu(''i\ oi \\ iieat- 'tiiu, 111 the ease ol Cii> r. lii.-krnan, had 111 ciirryiiiK on the ousiness .il the iiew lirni lit lii,. Stanton Inin ( Onipany for the ''•rrfit .i| the en-dit.jrs of the old iirm of Sniitli & i'„. After tl.* dat ■ of the mar 'iiifii', till' defendant bnd ft* nr.ieh to do »i!ti ilie carryinjj on of the underwriting l>"»i'icss as Die ;ru»itepf in Cox r. Iliek« man hid iu carryiuK vm by any agent* iln-y » L. R. i C. P. at p. 108. by hiiviself onl ol theii eapitai which ho held, or out of profits which he made for them." it wiil thus be seen that boti' of the ilissentiiif; jud^jiH fully as^-'iited to tlie law a;, hud down in ("ox r. Ilicknian, and botii thevidj coni'iiiied iu the fact that the old doctrine of \Va\igh v. Carver, 2 li. Iilk. TM}, tfiat " he wlio takes a moiety jf all the jirolUs indeiinitely, shall by operation of law, be H.ilile to losses, if losses arise, n|io.i the principle that by tiking a part of ihe [is'ilits he take,', from the eieditors », pail of that fund which is the projier sociirit\ te them lor tlie jwy- nielit of thi.'ir debti," was e>.|iiessly over- niled. and is not law. It '^ also eiiservablo til it Shee, ,1., consiilered tlie dtieiidani in Bulleii I'. .*>hiirp. no Initlur, or othirwise liable as a pariuer tliau wa-- lii-i co-trustee, DeiinisJii, who vis not to share the profits ai all ; who was not made a party ii the -lelion, and r.f'ainst uliom no claim what- ever of liability hid been inadr;. The only ouesiioii in dispute in the Mxidieipier Clianibei was, ji.it as te wlie;!i. r the do- leiidant's ri^ht to the prolits Diade him a partner with ."*haip, .!r., but whether F. Ill carrying on the business as agent of .'^liarp, .'r., was not also doing so as aj,'ent •% the trustees. This ^ji.se difTers from thut (if Cox v. liiekinan, inasiuucli as in that lase the trustees wereearr)ing on the business, and it was noufiht to make the creditors, who were to receive the prolits, liable as pariiier" with the trustees, and it was held (bat the receipt of the prolits did not cllll^lllute them part- ners. In Hull"ii I', ."^harp, it was sought to make one of the InMtees under a inar- ringe settleinent liable for the losses, be- eaie-e it Was elaimed the business was rr»liy his, as well a« that of his .son. The court in this caw, m a 2 H. Bl. 236. PART VII.] partners' sales. 478 exist, either as between the parties themselves or as to third per- sons. Even before the principle that sharing in the proiits made one a partner, with the ground on which it rested, that that vas taking from the funds to which the creditors had a right to look, was refuted in Cox v. Hickman, the cases were numerous in which it was held that a clerk might receive a share of the profits as wafres, and yet not be a partner. But it is stated, in effect, in one of the late English cases, not- withstanding the holding in Cox v. Hickman, that there has neen no case which has decided that where there has been a participa- tion in both proiits and losses, that a partnership has not existed.* We think, however, that this is wrong. In the very case of Cox (1. Hickman, the creditors, who were decided by the House of Lords, not to be partners, while they were to participate in the profits in payment of their claims, would also have to bear the losses resulting from the business to the relative extent of their Bcveral claims. It was this very fact with which, in Cox v. Hick- man, the House of Lords stood confronted, that the business was to he carried on by the trustees for the actual profit or loss of the creditors, that forced them to an invcstigaticm of the rule in Wau^rh v. Carver, and to its overthrow. For, in only one degree more remote, any ordinary creditor of one carrying on busines-i is affected by the profits and losses of his debtor tlmn was the case in Cox V. Hickman ; and had the creditors in that case been held liable as partners, because the business was carried on by trustees, it would be diOicult, on principle, to stop short there ; but, con- sistently, as the next step, the creditors shoulti be held liable as partners with their debtor, where the business was carried on by himself, as ordinarily, without the intervention of trustees, and not with llicni as in Cox v. Hiekman. Affiiin, in that very common case of whaling voyages, where the oflicers and crew receive tiicir wages by a certain " lay " in pro- portion to the oil obtained, they are not only entitled to tlieir acrccd simre oi the gain from the oil obtained, but are liable to thoir share of the loss to the extent of their wages — their contri- Imtioii to the capital — if the fishing should prove a failure. The I' case, too. of the clerk who is to receive his salary from a share of the proli' •., is one. also, where the clerk shares in the loss to the wtcnt of liiH wages where the losses are as great us the profits. 'X» mere cf^owiiers of son»; descriptictns of personal property, as !ivf 8t()(>k (the relationnhip of principal and agent not existing), niiirlit be mutual Hharors in the increase and from the luring of the (!ommon property, and liable relatively also to the losses ' See Er parU Dclhasae, 7 Ch. Div. 622, citing Lind. on I'ftrtu., 3d ed. p. 19. i^ firi hi t! : fi li •>■■ r, I -r i Wm ^Mi w , . ,M ^ ;l 474 COMMENTARIES ON SALES. [book n. resulting from depreciation or death, and yet be simply C0H>wncrg, as they very frequently are, and not partners. On the other hand, one mi^^ht be a member of a firm, with all the liabilities as such as to third parties, and yet, as between them- selves, not be liable to a share of the losses. And it would also be within the power of the members of a firm to agree that, for a certain specified time, one uf their number might have no right to a share in the profits, and yet, as between themselves and ns to third parties, still be a member of the lirm, having his capital in it, and having his rights and powers as to the management of the business, with all his legal remedies as a partner, as before or after the limited specified time in which ho was not to receive a share of the profits. > Since the case of Cox v. (lickman was decided, some confusion has arisen with reference to the principle which has been decided by that case, which renders it necessary, for an accurate statement of the law, that we should examine it still further. In the Iriith case of Shaw v. Gait,'* O'Uricn, J., after quoting from the judg- ments of Lord Wensleydale and Lord Cran worth, in Cox v. Hick- man, says with reference to those passages : " Tlio principle to be collected from them appears to bo, that a partnership, even as to third parties, is not constituted by the more fact of two or lUDrc persons participating or being interested in the net profits d a business ; but that tiio existence of such partnership implies ulso the existence of such a relation between those persons ns that ' each of them in a principal, and each an aifcntfor the others^' " This is spoken of approvingly, in Holme v. Hammond,^ by two of the judges who sat in the case of Cox v. Hickman.^ One of llicni, Martin, H., says : "Lord Wensleydale and Lord Cranwortli took part in ihe judgment, and it seems to me that the principle on which • As to whether the partners nro prin- cipals and agents or not is open to be tested, us was done in Biitlnn i;. Sliarp, not on tile iissunicd ground tiiiit tliity are |Hirtiiors, but from tiiu facts of the case and the surrounding^ cin.'uni.stiinci-s, us an nj{t'ney would he proved in any other caw ; the holding out as sucli, etc. If sucdi facts nnd circumstances show the parties to ho partners, with its essential ingredient of priii<:ipal and af(ent, then they have the authority and ri){lits of partners, and have to bear the liabilities and res|>onsibilitie8 incident thereto. The old theory that one wos a partner who shared the profits was simply reasoning in a circle. If a partner, he shared in the ])rofits, and if ho 8hare Story on Partnership, S 1. i ;!i' H i ■ . I \M %§] li I I 476 COMMENTARIES ON SALES. [book II. sibly a partner, in nevertheless, in contemplation of law, a partner, is, whether he is entitled to participate in the prulits. Thin, nu doubt, is, in (general, a sufficiently a<;curate test ; for a ri^ht to par- ticipate in profits affords cogent, often conclusive evidence, tliitt the trade was carried on in part for, or on behalf of the. person m-tling up such a claim, lint the real ground of the liability is, that the trade ha» been carried on bif persona actinu on his brhalf. Wliin that is the case, he is liable to the trade ubiigutions, and cutitlid to its profits, or to a share of them. It is not strictly conoct to say that his right to share in the profits makes him liiil)lo to the debts of the trade. 2^he correct mode of statimj the propositian t'l to say that the same thing which entitles him to the one mafcru him liable to the other, namelif, the fact that the trade has been cnrrml on on his behalf, i. e., that he stood in the relation of principal towards the persons acting ostensibly as the traders, by whom th( liabilities have been incurred, and under whose management the profits have been made." This, Lord Cranworth states, and most correctly so, as the ground of the liability of a partner, and this is the one principle decided by Cox v. Hickman ; which case is far frum huKiin>; tlie proposition stated in effect by O'Hricn, J., that in order to consti- tute a partnership, there must, in every case, and necessarily, exist between the [larties that relation that '^ each of them is a princi- pal and each an agent for the others.'^ This latter proi)()sitioii, although generally true, which is about all that was intcndoil Ui be implied by Lords VVensleydalo and Cranworth, and by Story, is not invariably true, without exception, and is not held to bo su by Cox V. Hickman, or by any other well-decided case which has fol- lowed that case.^ of the others. Partners may stipulate uiiioiig thcmsolvps that suiiie oiiu ot llniu only shall enter into jmrtioiilar ODiitriiLts, or into any contracts, (»r that as to ler- tuin of their cuntmcts none shall Ih' liuble except those by whom they arc lutimlly made ; but witli such private aiiungo- ments third persons dealing with tlu' Arm without notice UvilfwiU notice, mark] Inive no concern. The public have a ri;,'lit to assume that every jMirtner has aiitiinrity from his copartner to bind the whole linn in contracts made according to tlio onli- nary usages of trade. This priiiii|ilt' ap- plies not only to jiersons actiiii,' o]ii'niy and avowedly as partners, but to others who, though not so acting, are liy secret or private agreement partners with those who apiHsar ostensibly to the world as the persons carrying on the business." Here clearly is the implication thst parties dealing with a firm with notice of i It is true that language is used in the caiie of Cox v. Hickman, wliioh, though generally correct, is subject to an excep- tion noticed in tiie case, and which gen- eral language misled O'Brien, J., as to the at^tual holding in Cox o. Hickman. The following is one such passage, which con- tains language, a portion of which, as is clearly implied in it, is subject to an ex- ception. Lord Cranworth says : " The liability of one partner for the acts of his conartner is in truth the liability of a principal for the acts of his ogent. Where two or more persons are engaged as part- ners in an ordinary trade, each of them has an implied authority from the others tn bind all by contracts entered into ac- cording to the usual course of business in that trade. Every partner in trade is, for the ordinary purposes of the trade, the agent of his copartners, and all are there- fore liable for the ordinary trade contracts PAUT VII.] PARTNERS* SALES. 477 stiimlate llIU lit' llllMU • cDiitriicts, as to oer- : Ik- liulile iictuiilly nrningi- th till' tirni iiiaiklliavc u ri;;lit to iiutlmrity wlidlc linn till' onli- lini'i|ili' aw- liner (l|ll'nly to others liy secret Iwit'h those lorltl as the liition th«t notice of Kilsliaw V. Jiikos ' is but a reiteration of tlio law in Cox v. Ilick- mau uiid Bullou v. Sharp, with tho additiuual feature that, in this tract uf ugcnry. And evoii auconliiig to tilts uorruot UuciHiuii in C'ux v. llirkiiiun, OH wu hitvu iHiinUtil uut, it ii not iiucrHiiitry t<> mIiow agfucy un tittt {Mtrt of him wlidni it is mu^it to churp) im a piii tner ; all thut is nt-iuisHitry tu tlo in to hIiow tlntt lie in 11 |iriiici|>!il, mill that tliu otluT nii-iiilNira of tliu tiriii arc his a^ttniit to uuriy on the buttinrss on his ImjImII'. Not only iH this tlio clvar, Hiiii|ilit nile o.stal)liHh(Ml by Cox v. ilickiiiiin, luit it is a iiotablu fact that in virtually vvcry caitu whi-ru it itt Hoiij^ht to <-liari;«> onu mIio in not un ONt<-n-<iit that lit' is tin; priiici- IHil, and that the othiM'H havo iirtiil an IiIh ap'iits " in carrying on tlu; business in his U-half." Thus, in thi; i.-aso of Cox v. Ilickiiiaii, L. K. 8 II. L. C. at p. '284. Lord Kl.u:kburii, who had not a^roiHl with thu holding that was arrived at in that cast', said : " I agree that the (|uestion is one of agency, vi/., whether the defend- ants iiiithori/ed tho nmnagers of this iirm to bind them." And in Cox v. ilickniaii, 8 II. Ii. ('. ut p. 310, he states the case of Barry f. Neshani, ;{C. II. ^41, thus: "Tho i|iiestioii wiis whether the defendant was liable for giHxIs furnished to one Lowthin in the way of his business as the i)riiiter and publisher of a news|ui|K!r. Ne.shaiu had sold tho stock and gooil-will of tho |Ni|M-r to I»wtliin in consideration of ill 500, and on a further stipulation that for !M!ven years the iirolits were to lie an- )>lied as follows : that is to say, Lowtliui was to have the first i.'l.'iO of the annual |)rolits, then Nesliani »'as to have them to thu exti^nt of jLTiUO, if they made so iniii'h, and Lowthin was to have all be- yond. It is clear that I^iwthiii was con- ducting the business fur the coniinon biiiiefit of Itoth, subject to tliitir private arrangements us to the shares they should se|)iii'ately be entitled to. Lowthin was, therefore, clearly the agent of Nesliain." This, then, was sullicient to establish the pnrtner.ship ; that Lowthin was an agent of his copartner, Neshani, carrying on the business for their common lienelit. It was not deemed necessary to establish that Nesliam was also acting as agent. Ilia being one of the principals was enough. Tn another important ca.se, following Cox V. Hickman, Bullen v. Sharp, L. Ii. 1 C. P. 86, it was not for a moment contended that the elder Sharp was the agent of the younger, but rather that the younger Sharp, who signed the policy in question S. 847. thoie private arrangeniuiits aro atfocted by thiiii, and the general tenor of l.ord Craii- wurlli'x jiidgmuiit shows clearly thut thu whoii,' |iaragrapli we have ipioted is to bo riMiil siilijeet tu the exception to which by iniplii'iiliiiii he refers. It was with a mis- uinli'i'stauding of what ('ox v. Ilii^kmun rt'ully liiilils that Cleasby, It., in llolinu v. lluMiiiioiid, L. U. 7 Kx. at p. 'i'.V.i, in ani- miulvi'iiiiig on the statement of O'Brien, J., ill .^haw V. Gait, 10 ir. C. L. U. :)57. ml : " Neither does [lartiiurship always iiiiply this mutual iigeiiey. In the com- moll ease oi' a partnership, wheru by tho tiTiiis of thu |).'irtnersliip all tho citpital is »u|i|ilii'd by A., and the business is to )io ciuiit'd on by It. and C. in their own iiuiiii'-i, it being a stipulation in the con- tract tiiat A. shall not ap|iear in the busi- iwsa or interfere in its inanagement, that he .shall neither buy nor sidl, nor draw uruccrpt bills, no one would say that, as anion;; theinsidves, there was any agency uf caili one for the others." In reply wo woiiM (iliservo that Cox v. Hickman holds iiosucli doctrine us that there iiiu.st be an ■ifi'ury of "eaith one for tho otliew ; " but ill the ease put thero Would be the (Hjem:i/ iliiit was sought to bo established in Cox I. Mil kiiiaii, of B. and C. for A., without wIiIlIi tlieru would Ih; no {Nirtiiership ; for to make A. a partner with B. and C. there must lie " thu fact that the trade has been ranii'il on on his behalf, /. c, that ho stMMl ill the relation of princi}ial towards tlie jKTsoiis acting (wtensibly as tho trad- ers, f)y whom the liabilities huvo U'cn in- currecl, and under whose managi^ment the prulits have been made." Per Lord Cran- worth, in Cox V. llickniun, 8 11. L. C. 306. But Cleasby, B., seeing that ho has stated the case too broadly, added : " If, indeed, niiide (loi'iintiit partner were known to bo > luirtnir, and tlio limitation of his au- thority were not known, he might be able to draw Kills and give orders for goods *hich wonlil bind his copartners ; but in tlic (inliiiary case this would not bo so, •ii'l he w uuld not in tho slightest degn-o lie iti till! position of an agent for them. Islmuld, tliereforo, hesitate very much in •weiliiii; to the id»a that agency is tho fwiuliitioii of the idea of |»artnersliip." The very exception that a partner can- lot lijiiil liis copartner in cases where his power lias iimitations, in contracts with We knowing of such limitations, is of the 'irj- essence of the principlo of agency it- I *■"> ami is part of tho law of partnership, w'caiise, as is stated in the civil law, tho [ Mntraci of partnership is in effect the con- 1 SB. & }i' ii.f [•I ,v ^' \' t ' 111 .11. it 111 ? 1 ■I l( m ! > ■m ! u] Kl - IMAGE EVALUATION TEST TARGET (MT-S) // A ^ fe I ,.'< /. /a 1.0 I.I 1 ilM iilM m ilM IIIII2.2 m lliAO 12.0 1.8 ^ 1.25 1.4 1.6 .41 f^" ► ^m V. <^ r Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ■1? V ^<^^ . \\ % s k k %\j # C^ arate account of the partner. In that case, au- thority by virtue of the partnership con- tract ceases ; and the person dealing with the individual partner is bound to inquire and ascertain the extent of his authority ; otherwise ho must depend on the right and title of the partner, or on circum- stances nufficient to repel the presump tion of fraud. These principles have been established by a long series of decisions, — if, indeed, decisions were at all required to show the proper application of the rule of law, which is so plain and obvious as that which results from the ordinary law of agency, as applied to partnerships." The doctrine now established being that of agency, as intimated before by us in this Part, the doctrines of general and special agency are respectively applicable to general and 8{)ecial partnerships. See, besides the previous cases cited in this Part, Smith v. Craven, 1 Cr. & J. 600 ; Donnally v. Ryan, 2 Am. Law Reg. n. s. 312 ; Heap v. Dobson, 15 C. B. N. 8. 460. > 1 H. & M. 85. and an old New Brunswick Case, Mc- Pherson v. Haskins, 1 Kerr, 430, where very much the same principle is acted on. But see a very badly decided case in New Brunswick, Jones v. Foster, 12 N. B. K. 607 (decided since Cox v. Hickman), where Ritchie, C. J., delivering the judgment of the whole court, rested under the delusion, as laid down in the case of Heyhoe v. Burge, 9 C. B. 458, which he cited, that, "It has been decided in so many cases that an agreement between the parties to be jointly interested in the profit of ona transaction constitutes a partnership and authoriz(;s them to do all that is necessary to obtain profits, as usual in such matters, that the rule cannot now be shaken." This, of course, is a complete fallacy. The contention of the defendants' counsel in the case, not very accurately reported, that where the agency of a purchaser of goods was strictly limited and defined, in an agreement of partnership for a single or special transaction, as his position was that of a sjjecial agent merely, he could not, as sueli, go beyond the limits of the autiiority that was conferred upon him, so as to bind his principal for purchases not autiiorizfd by the agreement. The principle which really governed Jones v. Foster, 12 N. B. R. 607, on the fe^ts of that case, is, as laid down in Ex parte The Darlington and Stockton Banking Co., 11 Jur. N. 8. 122, by Lord West- bury, thus ; " Generally speaking, a part- ner has full authority to deal with the psrtnership property for partnership pur- ■*■ I': - : If If ''i:[i ji;' h ! < h ■' I -i I i . 1*' i: 480 COMMENTARIES ON SALES. [book II. participation in the profits. On the principle of Cox v. Hickman I must hold that they cannot, and that these policy-holders still remain creditors no less than the holders of ordinary policies." The same principle was acted on by the Privy Council i)i MoUwo V. The Court of Wards,^ where it vas held that, having regard to the restrictions and modifications made of late in the rule of law formerly prevailing, that participation in the not proceeds of a business made the participant liable as a partner to third par- ties, where the whole scope of the agreement shows that the pri- mary object was to give the participant security as a creditor of the ostensible partners, contracting to give him a participation in the net profits was not sufficient to make him liable as a partner to third parties ; the relation of principal and agent not hav- ing been shown to exist between the participant and the ostensi- ble partners. And, further, where a man holds himself out as a partner, or allows others to do so, he is then estopped from deny- ing the character he has assumed, and upon the faith of whicli creditors may be presumed to have acted. He is then held lialjle as a partner by estoppel ; or, whenever the agreement between parties creates a relation which is in substance a partnership, no mere words or declarations to the contrary will prevent, as re- gards third persons, the consequences flowing from the real con- tract. And although a right to participate in the profits of a trade is an important incident of a partnership, so that there may be cases where, from such participation alone, it may, as a pre- sumption, not of law but of fact, be inferred ; yet, whether that relation does or does not exist must depend on the real intention and contract of the parties. The effect of Cox v. Hickman is to put on an intelligible basis the old cases, where clerks who were to receive a share of the profits in lieu of wages, or seamen who were to receive a portion of the profits of whaling voyages, were held not to be partners. The relation in such cases is simply that of master and servant; not of principal and agent. The case of Ross v. Parkyns,^ where the plaintiff was to carry on the underwriting business in the name of the defendant, and was to receive a share of the profits, was decided on the same ground ; viz., that the business was that of the defendant, and that the plaintiff in carrying on the busi- ness was doing so simply as the servant, not as the agent, of the defendant, so as to constitute a partnership between them.^ » L. R. 4 P. C. 419. ingof Lord Cran worth, in Cox v. Hick; * L B. 20 Eq. 331. man, where he uses the term " on behalf," • See, also, a somewhat similar case, as not thereby referring to a mere right ti) Ex parte Tennant, 6 Ch. Div. 303. In share in the profits, but tliat \w niwint to this caae, Cotton, L. J., explains the meau- Hpeak of the acting of one partner tor the i.: ii:" OE II. ;kman s still es." ^loUwo rejijard ic rule •oceeds tvd par- the pri- ditor of ation in partner lot hav- ostensi- out as a im deny- jf which ild lial)le betweea irship, no lit, as re- real con- Diits of a icrc may as a pre- ler that utoution blc basis re of the a portion partners, servant; 13,2 where ss ill the ic profits, was that tbe busi- lit, of the 1' on bclift'ii liere right to I hi! UU'H'.lttO Irtucr lor the PART VII.] partners' sales. 481 Moore v. Davis * was decided on the principle to which we have previously referred, that where the contract between the par- ties shows that it was the intention to form a partnership, and that a partnership, in fact, has been created, the legal effects will follow, even though they may have expressly declared that they shall not be considered partners. There, an agreement in refer- ence to a building speculation upon the S. estate, bought with the money of A., provided that B., in consideration of his services to enable A. to realize the estate, should be paid one-half of the pioiits after A. had made certain payments ; that U. should bring in a third of certain fees which he might receive from builders, and bear one-half of any losses, and generally it was agreed that he should receive and bear one-half of the profits and losses upon tlie whole transaction ; but the agreement was not in any way to be construed into a partnership between the parties, and should wholly and solely relate to the S. estate. B.'s services were to be the consideration for the agreement, and he was not to charge for his time and trouble, but only for actual disbursements made by him for the benefit of the estate, and for realizing it for A. and B.'s mutual benefit. The court held that if the words " only and solely relate to the above estate " had been left out, there would not have been a partnership, but, as the words would be unmean- ing if a partnership were negatived by the use of them, the agreo- ment constituted the parties a partnership only and solely relating to the above estate, and not a general partnei'ship. In Pawsey v. Armstrong,^ Kay, J., held, that an agreement for sharing profit and loss in certain proportions confers all the riglits of partnership inter se. In this case, Kay, J.,^ states that he had asked for any authority to show that where two persons agreed to divide the profit and loss of a business in certain de- fined shares, they have been held not to be partners. We have already, in this Part, referred to various classes of cases where the mere participation in profits and in the bearing of losses, does not constitute the parties partners ; and now, in Walker v. Hirsch,* in the English Court of Appeal (where Pawsey v. Arm- strong was disapproved), thus presenting another case in response to the demand of Kay, J., it was decided that although the plain- tiff was to receive one-eighth share of the net profits, and bear one-eighth share of the losses, this did not, of itself, constitute the parties partners inter se ; but that, on the proper consti-uc- tion of the agreement, the plaintiff was in the position of a ser- "Aer, when one partner is the agent of we Mrtnership, and the agent, therefore, I Mhis co-partner. Ibid, at p. 317. ' 11 Ch. Div. 261. 2 18 Ch. Div. 698. 8 At p. 704. < 27 Ch. Div. 460. ▼OL. I. 81 h I'lr 1 ■. r ■• ., \. f1 ; H k\ i [%\ i\ in ii k m ' r 482 COMMENTARIES ON SALES. [book II, vant, and that therefore, he had not the right of a partner, as against the defendant, to an injunction and receiver.' Part-owners of ships, too, share in profits and losses in definite proportions, and yet are not partners ; the essence of the partner- ship relation of principal and agent not existing. The distinc- tion between such an ownership and a partnership, in the conse- quence or result, is marked ; each partner being liable in soUdo for the obligations of the firm, while it is generally held, as re- gards part-owners of ships, that no such liability exists.^ The English Partnership Amendment Act. The English Partnership Amendment Act of 1865, generally known as Bovill's Act, which act we state in a note below,^ is 1 See Syers v. Syers, 1 App. Cas. ] 74, where, uiuler a ditfeient state of facts, the parties were held to Iw partners. * See the following oases in which the different kinds of interest are considered. Graves v. Saweer, T. Rayui. 15 ; Ex parte Young, 2 Ves. & B. 242 ; Ex parte Harri- son, 2 Hose, 76 ; Owstansv. Ogle, 13 East, 638 ; Helnie v. Smith, 7 Bing. 709 ; Rex V. Collector of Customs, 2 Mm. & S. 223 ; Green v. Briggs, 6 Hare, 395 ; Bulkley v. Barber, 6 Ex. 164 ; Mumford v. Nicoll, 20 Johns. 611; Thorndike v. De Wolf, 6 Pick. 120 ; French v. Price, 24 Pick. 13 ; Jackson v. Robinson, 3 Mas. 138 ; Hop- kins V. Forsyth, 14 Pa. 38 ; Lamb v. Durant, 12 Mass. 54 ; Merrill v. Burtlett, 6 Pick. 46 ; Hajding v. Foxcroft, 6 Greenlf. 76 ; Patterson i'. Chalmers, 7 B. Mon. 595, 598 ; Milburn v. Guyther, 8 Gill, 92 ; Macey v. De Wolf, 3 Woodb. & M. 193, 205 ; Knox v. Campbell, 1 Pa. 366 ; Buddington v. Stewart, 14 Conn. 404 ; Revens v. Davis, 2 Paine, C. C. 202; Phillips i>. Purington, 15 Me. 425 ; Sea- brook V. Rose, 2 Hill, Ch. 553. Share- holders in comi)anies, too, participate in definite proportions of proHt and loss, but their rights and liabilities are essentially different from those of partners. The more thoroughly the question is examined, the more satisfactory the principle laid down by Pothier in the civil law, and estab- lished by Cox v. Hickman, 8 H. L. C. 2G8, is found to be. 8 By the Act of 28 & 29 Vic. e. 86 (An Act to Amend the Law of Partnership), it was enacted that a loan of money by a person on a contract to receive a share of the protits. or a contract for remuneration of a servant or agent by a share of profits, or the receipt of certain annuities out of profits, should not make those parties, re- spectively, responsible as partners. In Holme V. Hammond, L. B. 7 Ex. 218, 223, it was claimed that this act was a rccoc;iii. tion, that, notwithstanding Cox u. Iliik- man, the law before the passage of the act was contrary to what it became aftpr the act was passed. Kelly, C. B., con- sidered that the effect of the statute \va.s merely that, as respects the protecteil classes, the sharing in profits sliouM be no evidence at all of a contract of part- nership, but, with regard to others, it was evidence, though insufficient of itsi'lf to establish the liability. Ibid. 227. Brani- well, B., says: "It is asked, if the dp- fendants are not liable, what was the use of the 28 & 29 Vic. c. 86 ? If 1 say none, it would only show that the act was use- less. In truth it was passed before I'ox V. Hickman was understood." In Molhro V. The Court of Wards, 4 Ap. Cas. at fi. 437, the Privy Council say : "Some re- iance was placed on the statute, 'J8 & 29 Vic. 86, § 1, which enacts, that the ail- vanco money to a firm upon a contract that the lender shall receive a rate of in- terest varying with the profits, or a share of the profits, shall not, of itself, consti- tute the lender a partner, or riMniiT iiini responsible as such. It was avijiied, tiiat this raised an implication that tlie lemler was so responsible by the law existiiij; be- fore the passing of the act. The enact- ment is no doubt entitled to great weight as evidence of the law, but it is hy no means conclusive ; and when the ixistinp' law is shown to be different from that j which the legislature supposed it to be, the implication arising from the statute j cannot operate as a negation of its exist- ence." As a better explanation we wouM suggest that the act is little more than declaratory or an affirmation of the com- mon law. The last clause, provi(link company, and a corporation," •' ■•°"^"*' IS usaally, [BOOK II. ■ p^„^ ^„^ partners' sales. 483 little more than a declaration or affirmation of the common hiw. Hence, it virtually leaves the question as to whether parties are partners in business transactions as it v/as before the passage of the act ; the act not changing, to the slightest extent, the princi- ples of the law as regards the ascertaining whether parlies are partners or not. Tiie question is still one as to the creation of agency ; as to whether one has the power of binding another as principal in the alleged partnership transactions. Pooley V. Driver ^ is a case under that act, which decides that the first section of the act does not apply to any contract unless the advance of money under it would, independently of the act, have created the relation of debtor and creditor as distinguished from the relation of partners. In this case, Jcssel, M. R., is "almost sorry" that the word "agency" has been introduced into the question of partnership. We are not at all inclined to share his regrets. The effect has been to establish a clear, well- defined rule, instead of the hazy, shifting views that were enter- tained before the rule was clearly established by Cox v. Hickman.^ He says : " Of course everybody knovvs that partnership is a sort of agency, but a very peculiar one. You cannot grasp the notion in similar statutes, so construed at common law. See I'ars. on Partn. 93. So, long before Cox v. Hickman was decided, it was held in many cases, covering those of clerks, whaling-scamcn, &e., that a con- tract for the remuneration of a servant, engaged in any trade or undertaking, by a share of the profits of such trade or undertaking, did not, of itself, render sufh servant responsible as a partner therein, nor give liim the rights of a partner ; so the second section of the act, making a provision to that elfect, is clear- ly but declaratory of the well-known com- mon-law rule in the matter. All the other sections of the act, except the fifth. Were, at the time of the passage of the act, established as common-law principles. The oiuy new provision is that in the lifth section, which gives the other creditors of an insolvent debtor priority over tiie sharers in the profits as remuneration for money borrowed by the debtor, or in payment for a good-will purchased by him. It is therefore a fair presumption that the act was more particularly intended to establish the law as in the fifth section ; the rest of the act being simply estab- lished common-law principles. Professor Parsons was of that opinion. In his *ork on Partnership, p. 93, he says : ''We will add our ho ~, and our belief, 'hat the courts of thit. country will re- ^fil this statute rather as declaratory of M>e law merchant in respect to partner- ships, than as changing that law ; and will apply to cases which come before them the princiiiles on which the statute is founded. ' Of course these remarks were not intended to be applied to the fifth section of the act, which is purely legislative. Very many English statutes have been enacted in that way, being simply declaratory or an alhrniatioii of the common law. Thus, the greater part of tlio 25 Edw. 3 is. And by The Mirror, cap. 1, § 5, and Britton, c. 23, fo. 43, the act declaring the violations of the ()ueen reg- nant to be treason, was so ; and so, also, according to Biiu.ton, The Mirror, Brit- ton, Fletii, and (ilanville, was the Statute of Treasons. Hide, in his Hist, of the Com. Law, 9, 49, enumerates the statutes of Magna Cliaita, cnj). 29 ; 5 Edw. 3, c. 9 ; 25 Edw. 3, c. 4 ; 27 Edw. 3, c. 17, and many other statutes of Hen. 3, and Edw. 1 and 2, as having been "made but in affirmance of the common law ; " and such has been rep 5 Ch. Div. 458. a 8 H. L. C. 268. » 8 H. L. C. 268. ■''■ V 8' .If i) Ih '■I'- t i 1 I' ( ! i: I i- h :i \ 1' r ' I? I 11 1 -'h:. n I if *£ i 486 COMMENTARIES ON SALES. [book II. nership is the relationsliip, in carrying on the business, of princi- pal and agent between the parties. Hence it follows that paitners being nothing else than principals and agents, constituting firms to carry on business for tlieir mutual interest, the rules of agency apply to them precisely as they do to any other persons occupyini; the relative positions of principal and agent. ^Ve know of no well- decided case where this question has been squarely brouglit ii|i ; but the cases arc numerous, both before and since Cox v. llickmuu was decided, where the principles are acted on. One important principle is as to general and special agency. The rule of agency is that in general agency the principal will be bound by the acts of his agent witliin the scope of the general authority conferred on him, although he violates by those acts his private instructions and directions, which are given to him by the principal, limiting, qualifying, suspending, or prohibiting the exercise of such authority under particular circumstances.^ But, with a special agent, if the agent exceeds the special and limited authority conferred on him, the principal is not bound by liis acts, but they become mere nullities, as far as the principal is concerned, unless, indeed, he has held him out as possessing a more enlarged authority .^ So, also, it is evident, on principle, that the same rules of evi- dence applying to the appointment and powers of an agent apply equally as well to the creation and powers of a partner. The same rules apply to both. Where there is a holding out of one as an agent, the principal is liable ; so, where there is the holding out of one as a partner, the other is liable as a partner ; as a prin- 1 Story on Agency, § 126 ; Duke of Beaufort v. Neeld, 12 CI. & F. 248, 273 ; Nickson v. Brolian, 10 Mod. lOS) ; Allen V. "^den, 1 Wash. C. C. 174 ; Bryant v. Moore, 26 Me. 84; Fitzsimnions r. Joslin, 21 Vt. 129. So, in a general partnership, each partner is held oat to the public as the general agent of the partnership, and consequently his acts will hind it, notwith- standing he may have violated his private instructions or the express terms of the secret articles of partnership. Sandilands V. Marsh,-2 B. & Aid. 673; United States Bank v. Binney, 5 Mason, 176; H Pet. 529. a Flemyng v. Hector, 2 M. & W. 178 ; Todd V. Einly, 7 M. & W. 427; 8 M. & W. 505; East India Co. v. Hensley, 1 Esp. Ill; Woodin v. Burford, 2 Cr. & M, 391 ; Jordan v. Norton. 4 M. & W. 155 ; Sykes v. Gylas, Tb. 645 : Waters v. Brog- den, 1 Y. & J. 457; Daniel v. Adams, Ambl. 495 i-Munn v. Commission Co., 15 Johns. 44, 54 ; Rossiter v. Rossiter, 8 Wend. 494 ; Andrews v. Kneeland, 6 Cow. 354 ; Brown v. Trantram, 6 Mill. (La.) 47; Boals v. Allen, 18 Johns. 363; Hatch V. Taylor, 10 N. H. 538; Alleiir. Ogden, 1 Wash. C. C. 174. Smith, in his Merc. Law, 172, says: "A gnneral agent is a person whom a man ])Uts in liis place to transact all his business of ii par- ticular kind. Thus a man usually retains a factor to buy and sell all goods, ami a broker to nefjotiate all contracts of ;i cer- tain description ; an attorney to transact all his legal business; a master toinrform all things relating to the usual einplnyment of his ship ; and so in other iiist.incei!. The authority of such an agent to jurform all things usual in the line of business in which he is employed cannot \w liniitcii by any private order or directinn not known to the party dealing witli him. But the rule is directly the reverse eon- cerning a particular agent ; i. c, an agent employed specially in one .single transi- tion ; for it is the duty of the party ileal- ing with such an one to ascertiiin the ex- tent of his authority ; and if he n which the person making that assertion vas employed as agent. For instance, if it was a material fact that there was the bund of the defendant in the hands of A., that fact would not be proved by the as- sertion that A., an agent, had said there was : for this is no fact ; that is, no ]>art of any agreement wliich A. is making, or of any statement he is making us induce- ment to an agreement. It is mere nar- ration, — connnunication to the witness in the course of conversation, — nnd, there- fore, could not be evidence of the exist- ence of the fact. The admission of au agent cannot be assimilated to the admis- sion of the ])rincipal. A party is bound by his own admission, and is not per- mitted to contradict it. But it is im|)os- sible to say a man is precluded from ques- tioning or contradicting anything a person has a.sserted as to hin), — as to his conduct or his wprnueiit, — merely because that person has Wen an agent of his. If any fact, material to the interest of either jiarty, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion." Carrying out this doctrine, Lord Keiiyon, in Maesters i>. Abraham, 1 Esp. ;!75, refused to admit an agent's letter containing a statement of wiiat he had done for his principal ; hold- ing that such facts must be proved by him- self, not by his statement of them in a let- ter. See Bauerman i;. Uadenius, 7 T. U. 663; Bank of Scotland v. Watson, 1 Dow. 40, 45; East India Co. v. Hensley, 1 Esp. 112; Daniel v. Adams, Ambl. 498 ; Howard v. Braithwaite, 1 Ves. & B. 209 ; Fenn v. Harrison, 3 T. K. 760 ; 4 T. R. 177. As the creation of an agency and the fomia- tion of a partnership are both contracts, and as a contract is an agreement between two or more parties to do or not to do some particular thing ; so, for the forma- tion of a partnership, as well as for the creation of an agency, the "agreement" of the parties, expressly or impliedly, must, in both cases alike, he shown. * In the New Brunswick case to which we have referred in a previous note , \ t'\ m ,* !i ■41 '■ *iip J 488 COMMENTARIES ON SALES. [book II. 4. Partnership Purchases and Sales. A largo proportion of the cases which wc have examined in this Part are cases whicli have arisen out of purchases by partners, or to this Part (Joiies v. FohIit, 12 N. IJ. U. 607, 8eH ante, p. 47!*. "■), nil these priii- cii)lea Were disrcf^iirdcd and (umtiaveued. We exauiiiic that raso more t'liUy in thi.s noto, after having first examined some other authorities. The easo of Denny l: Cabot, 6 Mote. 82, is, as to tlio faets, us appliealile to the matter we are consider- ing, very nmuli the same as Jones v. Fos- ter, siiitra. One ('o')iiur had leased a woollen mill in Milfonl, and agn-ed with the defendants, of Huston, to ntunufaeture wool for them, — the stoek to be delivered to him at his mill, and he to deliver the manufactured goods to the defendants at Boston. Ho was to bo paiil a fixed sum per yard for manufacturing the goods, and in addition was to receive one-third of the net profits on the business, the defend- ants charging all expenses, interest, etc., and a conunissiun and guaranty on gross sales of six per cent. Cooper bought dye- stuffs, etc., from the ]>laiiitifrs, .showing them his agreement with the defendants, and stating to the plaintitls' that the de- fendants would accept his drafts for pay- ment. All the articles supplied by the plaintiffs to Cooper under this sale were used by Cooper in the manufacture of the defendants' goods, the goods as manufact- ured being sent to the ileleudants. After delivery of the dye-stuffs, etc., to Cooper, he drew a draft on the defendants in favor of the plaiutifls, which was refused accept- ance. Previously to Cooper's application to the plaintiffs for the goods, he had failed, owing the {)laintifrs, who had lost their debt, ho having no property, and being discharged in insolvency. After obtaining these supplies. Cooper manu- factured no goods, except under his agree- ment with the defendants. Having again failed, an action was brought against the defendants for ])ayment for the supplies. The court held that the defendants were not liable, tho facts not constituting them partners with Cooper. The case was de- cided on the basis of the old, airy distinc- tion made in many of the old cases ; dis- approved by Lord Eldon, and condemned in Cox V. Hickman, 8 H. L. C. 268. Now, under the principles decided by that case and the others following it, it would be perfectly clear, under the rules of evidence applicable to agency, and to partnership as embodying agency, that, even admitting that the agreement be- tween Cooper and the defendants consti- tuted them partners, it was simply a special, limited partnership, and there- fore was but a special, limited agi'iioy ; and thence the laws of evidence reliiti'ng to a special, limited agency were iM|imlly applicalde to a tplied as a portion of his part of the capital, and no authority whatever shown from F. & S. to D. to make notes in the name of M. & D. to bind them ; the plaintilf was allowed by the presiding jntlge (A'len, J.), to give in evidence that he wen«. in January, 1867 (at which time, mark, " D.'s indeht- edness to him was large "), and saw D . who told him (!) of the partnership be- tween him and F. & S., and said he should want som£ goods : that prindpaUy all the business he was doing on tlie river waa a » 8 H. L. C. 268. i ( u Iw^ f [ It 4 1 1 .V-il 490 COMMENTARIES ON SALES. [book II. within this class of cases There, debtors in embarrassed circum- stances assigned their property to trustees, for the bcnelit of cred- joint business with F. & S. ; that A., uu outside (luison, knew all about the business between them, and he referred him to A. The plaiutitt' then went to A., who told hint (!) that there was a partnership between F. & S. and U. ; that they were buying and shipping lumber, and he believed- they were perfectly good. The pluintiir did not ask the particu- lars of the agreement, and A. did not inform him. The plaintilf stated that from this information and otlixr causes he was led to make further advances of goods to D. There was no change in his books, the goods being charged to M. & D., be- cause, the plaintilf said, he understood the business was carried on in that name. It is only necessary to name these facts to show how monstrously the rules of evi- dence were violated. But still worse, after he hail put in the written agreement to prove ilio partnership, the plaintiff, again against objection, called D., — who was then in antagonism to F. & S., — who "states" that, a month before tlie agree- ment W(is entered into " it was agreed that the three defendants and one li. should enter into an agreement relative to the buy- ing and shipping of lumber." " D. states that the business was to be carried on," in elTect, in contravention of the whole tenor of the proved written agreement ; making F. & S. really general partners in the (irm of M. & D. ; and, still worse, statin!^ in effect that they were to furnish, not one-half the capital for the " purchase " of the shingles, — not for the purchase by D. for goods to be used by him as he pleased, as A. could have done in the analogous case of Wilson v. Whitehead, 10 M. & W. 503, stated supra, — but, in eflfect, the entire ca])ital, for their own ha'f, and for D.'3 halt" as well. The charge was in accordance with all of this im|)rop- erly received evidence, and was, in ell'ect, that there was a partnership under tlie agreement which gave D. power to bind F. & S. for goods purchased bij him for the purpose of getting out shingles on joint account ; that it was immaterial whether F. & S. had contributed more than their share of the capital or not ; and that D. had a riglit to bind F. & S. by draioinq joint notes and bills in the name of M. & D. for the goods bought from plaintiff (many of which were bought bclbre the agreement was made), if F. & S. had re- cognized notes and bills drawn in that name. Of this last, which is most disin- genuously put, there was n't a tittle of evidence except that F. & S. accepted and paid M. & D. « drafts on thorn to furnish their share of the capital. The jury, under this evidence and charge, huvinir found for the jdaintilf, the defemlants moved for a trial on the grounds of the improper reception of evidence, misdirec- tion in the charge, and verdict against the weight of evidence. The (wsitioii wiis taken, under Cox v. Hickman, 8 11. h. C. 268; Bullen v. Sharp, 12 .lur. .\. s. 247, and other cases following them, that, D.s ogency being limited and strictly deliiuil by the agreement, ho was in a imsition of a special agent merely, and had iio j)ower to bind F. k S. beyond the scuiie of the agency, and that all the evidence in which, an attempt was made to enlarge the agency was wrongly received. Tlie verdict was sustaincnl by the court, on a principle that would (|uite as much have made D. liable to the bankers of F. & S. for moneys they might have obtained for their share of the capital, as to have niade F. & S. liable on D.'s own notes, fur goods purchased by hin: as the only and small contribution made by him towards his share of the capital. The case furnishes a fair exemiililica- tion of the effect of the reliance upon the old fallacy that the right to share in the profits constitutes a jmrtnership. It was simply the wrong application of this old doctrine that led to the sustainiiinrtc The Darlington & Stockton Banking Co., 11 Jur. N. s. 1'22, was, in ell'ect, decided on the principles laid down by us in the text. It was there held that although a partner may have full author- ity to deal with the partirership a.ssets, and to diaw, accept, and indorse bills of exchange, it is the duty of jier.sons having dealings with them, wlien they have rea- .son to believe that a particular act is being done in the ])artnership name for the private benefit of the partner, to ascer- tain the extent of his authority ; other- wise the persons so dealing with him must dej)end on the right and title of the part- ner, or on circumstances sulUcient to repel the presumption of fraud. The iiuestion is simply one of authoritj', as in the case of an ordinary agency ; the same evidence being applicable to establish the authority of the principal in either case. Lord Westbury well saj's ; " 1 take it that the law on the subject is perfectly clear and well established. Generally sj)eaking, a partner has full authority to deal with tl;e partnership property for iiartner.ship pur|)oses. If the business of tlie partner- ship be such as ordinarily requires bills of exchange, then, unless restrained by .agree- ment, any one partner may draw, accept, and indorse bills of exchange in the name of the partnership for i>artnersbip jiur- poses. All persons may give credit to his acts, and his authority, unless they have notice, or reason to believe, that the thing done in the partnership name is done for the private pur[)oscs, or on the separate account of the partner. In that case, au- thuritij, hy virtue of the partnershi]) con- tract, ceases ; and the person dealing with the individual partner is bound to inquire and (iscertiiin the extent of hi.s itutlwrily ; oth'.'rwisc he must depend on the right and title of the partner, or on circum- stances suHicient to repel !he iircsuini>tion of I laud. These principles have been cstab- lislied by a long series of decisions, — if, indeed, decisions were at all renuired to show the proper application of the rule of law, which is so plain and obvious as that which results from the ordinary law of agepcy, as applied to partnerships." Ibid. 123. Here, clearly, was simply an appli- cation of the rules of law as to an agency being held applicable to partnerships. The principle is clear that a party is not liable as a partner, exciept he give to his partner express or implied authority |.-':;,.;l Ii ^: I P.ir^ i." i'l :■': f ':■ t r, - & I ;: I "!| i ^■ (, .'J 111 I i I St 11 -Mi] f 81 J 492 COMMENTARIES ON SALES. [book II. were named among the trustees. C. never acted. W. acted for six weeks and then resigned. The other trustees subsequently purchased goods from the plaintiff, for which they gave the ac- ceptance of the S, Company. In an action against C. and W., it to pledge his credit in tlie trarisiiction out of wliicli the uluini arises. It is, as stated bet'ori', a iiu'ro ([uestion of author- ity ; of agency ; tlie law as to agency be- ing eleariv ai)|ili(able to show the au- thority. See Thorn v. Smith, 21 Wend. 3G5 ; Oracir v. Ilitchinan, 5 Watts, 454 ; Ostroin V. Jacobs, 9 Mete. 454. Smith v. Craven, 1 Cr. & J. 500, is applicable to further show the absurdity of the holding in .Jones V. Foster, 12 N. IJ. R. 607 ; the two cases being singularly alike. In Smith V. Craven, 1 Cr. & .1. 500, which was de- cided long l)cf()re Cox v. Hickman, 8 H. L. C. 208, the (|uestiou of liability is put upon the jirinciples of agency. It was held in Smith v. Craven, where A., B., and C, not being general partners, entered into a joint speculation, and eacli was to contribute a third, that A., who had paid his share, was not liable to the bankers of B. for moneys ailvanced by such bankers on the individual credit of li., without the knowledge of A., though such moneys were applied in payment of bills drawn upon B. in the course of the joint specula- tion. Hca]) V. Dobson, 15 C. B. n. s. 460, is to the same effect. There a ship belonging to A., with which he, B. & C, had had prolit and loss transactions, was chartered to B., and it was arranged be- tween A., B., and U. that the ship should go to the southern coast of this country for a cargo which A. represented he had there, and take it to England, on joint account of the three, and that goods to the amount of i;;5000 should be shipped by each of the three for an outward cargo, and sohl on joint account, the profits to be divided in proportion to the value of the goods sliipped by each. A. shipped, among other things, goods to the value of £1377, which he obtained from the plain- tiffs on ci'edit. A. having became bank- rupt, the plaintili's discovered that the goods were shipped as a joint adventure, and sued B. for the price. It was claimed that the outward cargo having been the joint adventure of the three, notwith- staniling the private arrangement between themselves, they were, quoad third per- sons, clothed with all the authority and responsibility of partners, and that each of the three was liable for the whole amount of the goods shipped on the joint account. Byles, J., said : " If the agree- ment had been that each of the three should contribute to the joint adventure £3000 in money, instead of that amount in goods, you would have hardly eon- tended that B. would have been respon- sible to the person from whom A. borrowed his £3000 to come into the cniiccin." The court held that B. and C. were not liable ; |iutting it again on the (picstion of authority or agency ; that there was notli- ing in the arrangement to authorize one of the three to bind the others as their agent in respect of the third share of tlie cargo which he undertook to sujiply for the joint adventure. The decision is (piiie as applicable to the facts in Jones v. Fos- ter, 12 N. B. K. 607, that there .M. and 1). had no more authority to purciiasc goods in his own tirm's name to bind V. & S., than the latter had to make M. &*P. liable for moneys which F. k S. miglit have obtained, through their bankers, for the payments made by F. & S. In Pennsylvania, where, as in Mas- sachusetts, and in others of the Statos, we tind so much sound law, wt; find the same princii)le laid down in the case of Donually v. Ryan, 41 Pa. St. 306, by Woodward, J., who says: "The jjoint stands as clear on reason as on autliority; for when no credit is given to a tinii, which, in law, is a distinct person from the members who compose it, wliy should redress be sought against the lirni .' As well might a creditor who had loaned his money on the credit of an individual, at- tempt to pursue it into the business or property of third persons, and hold them responsible to himself." See, also, Mrook V. Evans, 5 Watts, 200 ; Graelf v. liiteh- man, 5 NVatts, 454 ; Clay e. Cottnll, 6 Harris, 413; Gibson v. Stone, 43 Ikrb. 285, 2ltl ; Smith, Adst. Perry, 2'J N. J. 74 ; Stevens v. Faucett, 24 111. 483 ; Faw- cett V. Osborn, 32 111. 411 ; Macy r. Combs, 15 Ind. 469 ; Reynolds v. Hicks, 19 Ind. 113; Looniis v. Marslndl, 12 Conn. 69. in Voorhees v. Jones, 2'.' N'..'. 270, 277, in a suit by a creditor of a lirii, against the firm, it was lield thit it was incompetent to show V)y parol cviili'iife that the contract of partnershi]) was othir- wise than it was constituted by tlie written articles. In Macy i\ Comhs, ]i< Ind. 469, 472, it was held that tlic com- mon reputation and understanding as to who were members of a firm was not lepil evidence. The evidence received iiv Alliiip J., in Jones v. Foster, 12 N. B.'l!. 60?, and sustained by the whole court, is op- posed to the proper holding in VoorhiH< V. Jones, supra ; but such holding in Juues PART VII.] partners' sales. 493 was held that they could not be sued as partners on the bills, and that they were not liable for goods sold and delivered, there being no distinction between the bills and the consideration for wiiich they were given. The case of Redpath v. Wigg,i was somewhat different from Cox V. Hickman. The facts in Redpath v. Wigg were that a trader, carrying on business as M. & Co., ordered goods of the |ilaiutiff, and before their delivery, executed an inspectorshij) deed (»f wliich the defendants were inspectors. The plaintiff afterwards wrote a note, addressed to the debtor, informing him that the goods were ready for delivery, and the defendants replied, request- ing him to send the goods, and signing " for AI. & Co." The court held that the inspectorship deed, and the acts of the defend- ants under it, did not constitute them principal traders, so as to make tlie debtor only a servant or agent of theirs, and tliat they were not liable under the contract. A third case with elements very similar to those in Cox v. Hick- man and Redpath v. Wigg (^mupra} is Easterbrook v. Barker.'^ Hero, under a deed of composition under the English bankruptcy Act, 1861, the debtor assigned his works and effects to trustees, the business to be carried on by him under their control. After this the debtor continued to manage the business under the direc- tion of the trustees, paying all moneys received by him to the banking account of the trustees ; who met at the works weekly, inspected the books, and furnished the debtor with money to meet all disbursements which would be required during the ensuing week for wages, materials, etc., but they gave him no power to pledge their personal credit. In an action against the trustees for goods supplied to the assigned works during the period of their trustee- ship, the County Court held that they were liable ; but, on appeal, the Court of Common Pleas reversed this decision, and, following the decisions in Cox v. Hickman,'^ and Hullen v. Hharp,'* they held that there was no partnersliip ; and, following Redpath v. Wigg,^ hold further that no such relation as that of master and servant, or that of principal and agent »vas constituted by the deed between the trustees and the debtor ; that there was no liability in respect of ostensible authority, for the credit was given to the debtor, and that the deed itself gave the debtor no authority to pledge the trus- tees' credit. Each ostensible partner in a firm is its agent and rcpresentaiivc with reference to all business within the scope of the partnership. f. Foster is only one of the many legal errors with which that case abounds. ' L. R. 1 Ex. 335. * L. K. 6 C. P. 1. » 8 H. L. C. 268. * L. R. 1 C. P. 86. s L K. 1 Ex. 335. '■' \^' '' ll yf J i k. I ?'!■■ It r I j,J| tl II .1 f i'. 494 COMMENTARIES ON SALES. [book II, And if, in the conduct ot partnership business, and with reference thereto, one partner makes false or fraudulent misrepresentations of fact to the injury of innocent persons who deal with him as representing the firm, and without notice of any limitations upon his general authority, his partners cannot escape pecuniary re- sponsibility therefor upon the ground that such misrepresenta- tions were made without their knowledge. This is especially so when the partners, who were not themselves guilty of wrong, re- ceived and appropriated the fruits of the fraudulent conduct of their associate in business.^ A sole surviving partner of an insolvent firm, who is himself insolvent, can make a valid assignment of partnership assets for the benefit of the joint creditors, with preference to some of them, and such assignment is not void because of the fraudulent omis- sion from the schedule by the surviving partner of certain prop- erty which constituted a part of the partnership assets, and was appropriated by him to his own use. Such fraud does not affect the rights of he assignee and of the beneficiaries of the trust who were ignorant of the fraud of the grantor. If the assignment was valid when executed, no subsequent conduct on the part of the grantor or the trustee, however fraudulent, can avoid the deed, and deprive the creditors, accepting it in good faith and not par- ticipating in the fraud, of their rights under it.^ D. and 1, were partners, engaged in carrying on a small business in buying and manufacturing wheat and grain, in a small town in an interior county in Indiana ; shipping the flour and such sur- plus of the grain as was not required for manufacturing, in a rail! of an average capacity of thirty barrels of flour per day, to Indian- apolis and Baltimore, for sale and immediate delivery. Their whole working capital varied from $2000 to $4000. D. carried on the business, while I. resided in Pennsylvania, and rarely vis- ited their place of business in Indiana. In 1877, and five years subsequent to the formation of the partnership, D., without the knowledge of I., gave orders to the plaintifTs, commission-mer- chants and grain-brokers in Baltimore, for sale of 165,000 l)ushels of wheat for future delivery. These orders were executed by the plaintiffs ; the price amounting to $251,794.84. No grain "vas shipped by D. to meet these sales, and the plaintiffs paid as differ- ences, $17,215.94. In an action against I., as surviving partnei' Hampstead v. Johnston, 18 Ark. 123, 140; Cornish v. Dews, 18 Ark. 172, 181 ; Man- del V. Peav, 20 Ark. 325, 329 ; Hunt r. Weiner, 39 Ark. 70, 75 ; Marbury v. Brooks, 7 Wheat. 656, 577 ; Brooks d. Marbury, 11 Wheat. 78, 89 ; Toinpkin' V. Wheeler, 16 Pet. 106, 118. » Strang i'. Bradner, 11 4 U. S. 555; Stock- well V. United States, 13 Wall. 531, 547 ; Chester v. Dickerson, 54 N. Y. 1 ; Locke v. Stearns, 1 Met. 560 ; Lothrop v, Adams, 133 Mass. 471 ; Blight v. Tobin, 7 T. B. Mon. 612 ; Durant v. Kogers, 87 111. 508. « Emerson i>. Seuter, 118 U. S. 3; PART VII.] partners' sales. 495 of D. & I., for this sum, it was claimed for the defendant that the transaction was not authorized by the partnership agreement, nor within the regular course of the partnership business, nor within its apparent scope. The court charged in favor of the plaintiffs, for whom the verdict and judgment were entered. The Supreme Court, on error, held that such liability did not arise from the partnership agreement between D. and I. ; nor from any implication arising out of the previous transactions between them and the plaintiffs ; and that the court below was in error in hold- ing, and, in effect, directing the jury, that the business of dealing in grain involved, as a matter of law, as an essential characteris- tic of the business, not only dealing in grain on hand for present delivery, for cash or on credit, but, also, dealing in futures by means of contracts of sale or purchase for purposes of specu- lating upon the course of the market. The judgment was reversed and a new trial was ordered.^ Wft npM w!f 'i: i ; M'fIv j.!* 1 i;' i iiii [ff i 1: I ( ■ 1 • ■ ff' s !i ; '■''-?'- m 1 -'■■■ r ' ' i % V' ' ' w i 1 Irwan v. Williai, 110 U. S. 499. Two (juestions of iiiiportauce are involved ill this case, one, as regards the genera! doctrine of a<;ency as applicable to a partnership ; the other, as to dealing in "futures." The court below assumed, be- cause I. & D. were dealers in grain, that, tiicrcfore, all dealings in grain by one member of the firm, in the name of the firm, would bind the firm. The United States Suiireme Court, in dealing with this fallacy, said : "In this, we think, there was error. The liability of one partner, for acts and contracts done and made by his co- partners, without his actual knowledge or assent, is a question of agency, if the authority is ilenied by the actual agreement between the partners, with notice to the party who claims under it, there is no partnership obligation. If the contract of partnership is silent, or the party with whom the deal- ing 1ms taken i)lace has no notice of its limitations, the authority for each trans- action may be implied from the nature of the business, according to <■>>•> usual and ordinary course in which i, i.. carried on, hy those engaged in it in the locality which is its s. Beesley, 2 Bing. N. C. 108 ; Champion V. Bostwick, n Wend. 671; 18 Wend. 175 ; Patterson v. Blanchard, 6 Barb. 637; '1 .' 1 I f t > I m- I ' ^ ! t ' ; [^1 !. i' i 1, 600 COMMENTARIES ON SALES. [book II. Even though a partnership is not dissolved, if one partner al- lows the other to appropriate the partnership property to pay hiij individual debt, such appropriation is good as against the credit- ors of tlie firm ; such creditors having at the time no specific lieu upon the property, and no trust upon it which they can enforce. It is only necessary that the disposition of the property should bo bond fide on the part of the partners and the assignee of the prop- erty, and without any intent to hinder or delay the creditors of the firm.* If, before the interposition of the court is asked, the property has ceased to belong to the partnership ; if by a bond fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and, consequently, the derivative equities of the creditors are at an end.2 Where one partner, with the consent of his co-partner, receives goods of the firm and is charged therewith, he becomes the owner of the goods, and, in good faith, can make a valid as- signment of them.^ In Davis v. Patrick,* the manager of an English company, proprietors of a silver mine in Utah, was held liable, under the in- structions of the judge of the Circuit Court, as principal ; but the judgment of the court was reversed, the plaintiff's contract having been formerly made with the company, and not with the defend- ant, and the evidence showing that the defendant was not the principal, nor a partner with the company, but was its agent and manager, altbough he was to receive out of the profits of the busi- ness payment of moneys due to him by the company.^ 1 Seld. 186. In Dickinson v. Valpy, 10 B. & C. 128, 140, Parke, J., saya: "No person can be fixed with liability on tlie ground that he has been held out as a partner, unless two things concur, viz. : nrst, tho alleged act of holding out must have been done either by him or by his consent ; and, secondly, it must have been known to the person seeking to avail him- self of it. In the absence of the first of these requisites, whatever may have been done cannot be imputed to the person sought to be made liable ; and in the ab- sence of the second, the person seeking to make him liable has not in any way l}een misled." See Mclver v. Humble, 16 East, 169, 174, 176 ; Carter i;. Whalley, 1 B. & Ad. 11; Pott V. Eyton, 3 C. B. 32, 39; Martyn v. Gray, 14 C. B. n. s. 824, 839; Edmundson v. Thompson, 8 Jur. n. s. 235 ; Benedict v. Davis, 2 McLean, 347; Hicks V. Cram, 17 Vt. 449; Fitch v. Har- rington, 13 Gray, 469; Wood v. Pennell, 51 Me. 52 ; Sherrod v. Langdon, 21 Iowa, 518; Kirk v. Hartman, 63 Pa. 97; Hefner V. Palmer, 67 111. 161 ; Cook r. Perhyn Slate Co., 36 Ohio St. 135 ; Uhl v. Har- VKV. 7 Ind. 26: CcMitral City SavinjjM Bank r. Walker, 66'N. Y. 424. 1 Howe V. Lawrence, 9 Cush. 553; Locke V. Lewis, 124 Mass. 1 ; Ex jiarti Ruffin, 6 Ves. 127; Ex parte Fell, 10 Ves. 347; £x j9ar; Coiu-land v. Mure. Ins. Co., 6 riik. lltti; Reed v. Warner, ."i I'aino, 650 ; Keed v. Norris, 2 M. & Cr. 374 ; Bealv. MeKit'niaii,« Mill. (l.a.) 407; Bar- tholouuiw V. Leach, 7 Watts, 47'2; Pivvost V. Oratz, 1 Peters C. L". Mi ; Taylor v. Salmon, 2 Cr. & M. 130; Baker v. Whit- ing, 3 Suniii. 47ti ; Davore v. Fanning, 2 Johns. Ch. 2.')1 ; (iroen v. Winter, 1 Johns. I'll. 27; Chureh v. Murine Ins. t"o., 1 Mason, 341 ; Barker v. M.irine Ins. Co., 2 Mason, 3t)i> ; Woodhonso v. Meredith, 1 Jack. & W. 204 ; I'arkist v. Alexaii- der, 1 Johns. Ch. 3!t4; Butler y. lltskell, 4 Dcss. 651 ; Mosoly v. Buck, 3 Munf. 232 ; Ex purte Uystcr, 1 Meriv. 172 ; Lowther v. Lowtlier, 13 Vcs. 103; Wren v. Kirton, 8 Ves. 502. In Gillct v. Popixsr- corne, 3 Beav. 78, A. employed 15., a stoc'k-brokor, to purchase some canal shares. B. apmrently bought them fronj C, the ostensible owner, but who after- wards turned out to be a mere trustee for B. Tho court after the lapse of several years, and without entering into the ijue.s- tion of tho fairness of the price, held that the transaction was void on grounds of public policy, and set it aside. See Brook- man V. Rothschild, 3 Sim. 153; 2 Dow. & CI. 188; Bick v. Motley, 2 Myl. & K. 312; Bate V. Scales, 12 Ves. 402 ; Munch v, Cockerell, 9 Sim. 339 ; Clements v. Hall, 24 Beav. 333; Miller v. Mackay, 31 Beav. 77; 34 Beav. 205 ; Shallcross v. Oldham, 2 J. & H. 609 ; Hodge v. Twitchell, 33 Minn. 389 ; Hichens v. Congreve, 4 Kuss. 662. A., B., and others were common car- riers from London to Falmouth, a separate portion of the road being allotted to each, it being stipulated that no partnership should exist between them. A. for himself and the other parties agreetl with tho Master of the Mint to carry coin from London to Falmouth, and afterwards made another agreement with the Master of the Mint to carry other coin to places not on tho road. As it appeared that A. in making this sec- ond agreement did not apprise the othcers of the Mint that he was treating for him- self alone, it was held that tlie otlur iiar- ties had tho right to sharo with liim in the prohts of the second transaction, liuv sell V. Austwick, 1 Sim. 52. A imrtiier who superintended exclusively tin' iii- counts of the linn agreetl to piiiehaM^ Im copartner's share of the business for a sum which he knew fioni accounts in his puv session, but which lie concealed Imiii liis copartner, wiis au inadeipiato coii^iiK'ni- tion. The court held that he couM nut in fairness deal with his partner witliuiit putting him into posses.sion of all tin' in- iormation which ho himself had witli re- snect to the state of the accounts bctwoi'ii ttiem, and that he could not lie permitted to maintain an advantage which \\v had gained over his partner's ignorance. The agreement was set aside. Maddclunl r. Austwick, 1 Sim. 89. See, further, iw to the gooil faith reipiired in such liiiiisac- tions, (ilassington V. Thwaites, 1 S. i S. 124, 133 ; Crawshay v. Collins, 1 .\.w.. i W. 279; Featliersto'nhaugh v, I'^nwick, K Ves. 298, 309, ct scq. ; Ben.son . Icatlwni, 1 Y. & C. 326; Murphy v. ( ' a, -1 J. 4 Lat. 422; Dunne v. English, I!. 13 K.|. 524 ; Molony v. Kernan, 2 D. oc War. 31; Lowther v. towther, 13 Ves. 95, lOJ; Im- Eerial Mercantile Cretlit Assoc, i'. C'ulcniaii, ,. R. 6 H. L. 189, 194 ; Do Biissclic i'. Alt. 8 Ch. Div. 286; Parker v. McKciiiu, L. R. 10 Ch. 96 ; York & North .Mi.lhni,! By. Co. V. Hudson, 16 Beav. 485; lluiiiil' ton V. Wright, 9 CI. & F. Ill; Teiiiwnt V. Trenchard, L. K. 4 Ch. 53 ; Leach ' Leach, 18 I'ick. 68. The prineiple .state,! in tho text, and the reason for it, were acted on in Burton v. Wookey, 6 JliuiJ. 367. There tho plaintitl" and dclcmlaiit entered into partnership together to deal in lapis mlaminaris. The dcli'miant, who was a shopkeeper, wa.s to take the active part in the concern, and was to imrchas« the lapis calaminaris from the miners in whose neighlwrhood he lived. .Muny of the miners wore before tho [lartnersiiiii in the habit of dealing at his shop, ami con- tinued so for some years after tlie partmr- ship, receiving from the defendant rcaJy money for the lapis calaminaris, and [lay- ing for their shop-goods afterwaida, as they would have done to any other sho|i- keeiier ; but subsequently a new course of dealing took place between the Jeleudant and the miners. In the place of iwyinj; them for the mineral with money he [KiiJ them with shop-gooils, and in his account with the plaintilf he charged him as for cash paid to the amount of the price ot the goods. The court decreed an account of the profit made by the dol'eudaut ou [book II. rust and if, cither (' otluT lar- vilh liiiii ill utioii. Itii.v A iiitrtufr I'ly till' lu- |)uri'li;ist' hit J.SH lor 11 sum I in liis iiiis. lltd Irnlll \[[i to coti.siili'ni- no I'oulil Hut •tucr witliuut of nil till' ill- j Imil witli rv- UlltS In'twoi'D lie iii'iniittivl fliicli 111' liaJ loi'iiiH'c. The MiiiMi't'oiil r. t'ui'lhi'i', us to such liiinsai:- OS, 1 S. i S. ,ilis, 1 .lac. i i;, l''i'iiwii:k, 1" 1 r lleatlioru, ) .'il, i J. i , . U. 13 K.i. D. i, \V;ir, ai; . Dr., 102; Im- 1)0. 1'. Coli'imii, )o Bii.ssclie I'. D. MoKt'iiiia, oith Mitllauil . 485; llMiil- 111 ; Ti'iiiiiint 53 ; lA'iu'li ' .■iiu'il'l'" ''t''''"'' II for it, WK key, (5 MiuU. .11(1 lU'ri'iuliiit ^otlu'i- to deal ofomliviit, who jko lilt! ni^^ti" to imrehase tho iiiintTS in ;d. M:"')' '^^ j)artm'i'sliip in hoi>, mill i.'1'n- . tlie partner- fomlunt reaiiy , .-is, and I'll)'- iftorwiirJs, as ly otht-T slwj'- now course of the dt'l'i'iidaiit ico of I'iiyini! loiiey he pw in his account td him »s '»' the price of 'd an account fdorcudant on I'AllT VII.] PARTNKRS* SALES. 608 personally or lu regard to tho particular property which is tho »ul)ject of the contract, which inipoHo upon liini a special and |)ociiliar oblif.;ation to deal with the other person towards whom lie httinds HO related, with u candor, a fairness, and a refusal to avuil himself uf any advantages of superior information, or other favorable circumstance, not required by courts of justice in tho business transactions of life, the princii>les applicable to llSllill liduciary relations will bo applied. 1 till' floods, and that tho (ihtintin' was (>n- titled to an ciiiial division of that |irotit with tho defendant. In delivoriiiK tho juil^'iiient tiio ooiirt said : " It i;* a niaxini uf courts of ('i|uity that a i>ei'son wlio >tiuuls in a relation uf trust or eonlidoneo taaiiiithcr shall not bo |K'rniitted in pur- suit ul' his ]irivate advanta^'o to niaeo him- Dt'lf in a situation which (fives liini a liias ajfitiiist tho duo discharge uf that trust ur cunliilence. The defendant hero stood in a relation of trust or conrulen"o towards the jilaintitr, wliich made it his dutv to imrcliasc the lapis C(ilami>iaris at the low- est pdssilde price. When iu the plac' of lurclia.sing it iio obtained it by barter for iiis own shop-goods, ho had a bias af^ainst a fair dischargo of his duty to tho plain- tiff. 'I'iie more goods he gave for tl : arti- cle purchased tho grc'cr wa.s tho jirolit which ho derived fi' o tho dealing in store-giiods, and as this protit belonged to hiui iiiilividually, and as tho saving by a low jirii'e of the article purcbiused was to be ciitially divided between iiim and tiie |ilaiiitiir, ho had plainly a bias against tlio due (lischargo of his trust or conlidence towards the plaintitf." Burton ». Wookey, 6 MiuUl. JiOS. Tho same principle was acted iMi ill Hlisset v. Daniel, 10 Hare, 493, .'i'J'J, 536, where a majority of tho liartiu'i's had the power of expelling any rartiier from tlie firm, and appropriating liis iiliare at its valuation based on the immediately preceding profits. The court held that sucli a power could be exercised, but it must be in good faith; not against the truth and honor of the uoutract, nor merely to enable the continuing partners to appropriato to tliemselves tho share A the expfiled jwrtner at a fixed value leas than the true value. ' Acting on this principle in Brooks v. Martin, 2 Wall. 70, where such relations existed between the parties as partners, it was held, where one partner possessing peculiar knowledge of the business and proiierty of the firm, purchased the sbare of his ])artner in the firm, who did not possess that knowledge, and whose posi- tion towards his partner was one of trust »nd confidence, that, in order to sustain such a sale, it must bo made to appear. first, that the prico paid n|iproximates ren- Bunably near to a fair and adei|uato consid- eration for the tiling piirchasi'd ; and sec- ond, tliat all the information in jiussessioa of tho purchaser, which was necessary to enables tlie seller to form a sound judgment of tho value of what he sold, siiould have been conimunicntcd by the former to the latU-r. See Anderson v. Lemon, 8 N. Y. 230; Church r. Church, 2.) I 'a. 278; Hunter I'. Atkins, 3 Myl. & K. 113 ; I'ugh's Heirs I'. Bell's Heirs, 1 J.J. Marsh. 31»U ; Morse V, Uoyal, 12 Vos. 335 ; Maddoford v. Anstwick, 1 Sim. 8*.) ; Michoud v. (iirod, 4 How. 503 ; Bailey i'. Teakle, 2 Brock. 51-54. A (lerson employed on behalf of himself and his co-partners in negotiating tho terms of a Tease, is not entitled to stipulate clandestinely with the lessors for any private advantage to liimself. Where, therefore, a sum of £12,000 was paid in pursuance of such a .stipulation, the party receiving it was declared to ludd it in trust for the partnersliip, Fawcett v. White- house, 1 Ku.ss. & M. 132. See Carter o. Horno, 1 K(i. Ab. 7 ; Hichens r. Con- grevc, 1 Kuss, & M. 150, noto ; Lamar's Kx'r I'. Hale, 71* Va. 147, 157. Where one of a co-partnershii>, by any means, gets a fund belonging to the firm, he is not at liberty to appropriate it to his own exclusive benefit, but must share it with his co-partners. Enson v. Cherry, 9 Jones Ell. (N. C.) 361 ; Allison i-. Davidson, 2 Dev. E(|. 79. After the dissolution of a partnership and jieiidiiig its li(iu'''ition, a partner is not permitted to do any act, still less to make use of the partnerahip funds, in a manner inconsistent with the purpose of a just and proper settlement ; and where a partner has collected partner- ship money under circumstances from wliich an agreement on his part not to re- ceive it may be inferred, and where his receiving it was contrary to good faith, he may be re(iuired to pay it into court. Gridley v. Conner, 2 Lh. An. 87, 89. See Shropshrie v. Russell, lb. 961. In Brad- bury V. Barnes, 19 Cal. 122, Baldwin, J., said: "There can be no doubt that one partner may purchase with his own funds and on his account, the interest of his co- partner iu real estate at public sale, if w"i'fra 1 a\ f\AI \ ■ : il ■L m. ■ WWPf ■ r i ;;:l^ I i ■ i ■ ^,1' ■- ■™f''; \.h • _ ■■ ■ .' : 0'A ■ \ iM ^ 'i4li 1 t 504 COMMENTABIES OK SALES. [book II. A partner has not a right to prefer his own interest to that of the firm, nor deprive the partnership of a profitable bargain, by taking it to his own account. The doctrine is deducible from the nature of the contract of partnership, on entering into whicli the partner promises to his associates his efforts for the comnion benefit. This promise he would violate by seeking his individual advantage in preference to that of the partnership. Hence, the books abound in cases, many of which we cite in the notes in this section, where a partner, who, while his relations as such existed, has stipulated clandestinely for any private benefit to himself, has been compelled to divide such gains with his associates.^ there be no circumstances of fraud or of a trust apart from this rehition, and so pur- chasing, hold the property as a stranger might. It is true that partners occupy confidential relations towards each othei, but this is in respect to the firm business ; but this relation does not forbid one from buying of another, when both have an equal opportunity and means of knowing the value of the property and its condi- tion. The fact that the sherilFs sale is public and open, is itself priind facie proof that no advantage is taken ; and no reasons of policy exist to restrain bidding by other partners than the defendant, and who would be more disposed to bid, prob- ably, than strangers. . . . Generally, one partner has a right to buy the whole or a portion of the interest of his associate at private sale, iis he might purchase of a stranger, and we can see nothing which should deny or qualify this right in the fact that the sale is made through the in- strumentality of the orticer acting in this respect for the partner." And sec Gunter V. Laffan, 7 C'al. 588. 1 In Lowry v. Cobb, 9 La. An. .'592, the court held that these principles were not applicable under the following state of facts. The plaintitf and defendants owned a plantation in partnership, DilBcultics having arisen between them, tho property was placed in the har.ds of a receiver, and arbitrators, clothed with the powers of amicable comiioundei-s, appointed. After flagrantly violating the award and usurp- ing the administration of the property, the defendants confessed a judgment in favor of a mortgage creditor, who seized and so'.d the property. At the sale, the plaintiff, through friends, bought the prop- erty, and the defendants claimed the ben- efit of the purchase for the partnership. The court htdd that they were not entitled to it. Slidell, C. J., in delivering the judgment of tho court, said ; " We con- ceive that the circumstances of the pres- ent case do not fall within the rule, and that by their own ine bad faith of his co-proprietors, who had thus flagrantly violated the coiniiaet for their common preservation, the instinct of self-defence necessarily conii>elleil hira to seek tho assistance of his friends ; ami having sheltered himself in some ilej^ee through their interposition, from the calamity which would otherwise, have crushed him, the j)romoter of the mis- chief has no equity to share that shelter with him. A contrary doctrine would hold out to bad faith the chance of a suc- cessful wrong, with a certainty of inipun- ity in case of failure." Lowry v. t;obb, 9 La. An. at 593. In Sexton v. Sexton, 9 Graft. 204, two partners carried on iin extensive business, embracing various suit- jects, and they kept no regular sot of books. One of them attended exclusively to the out-door business, made tlie con- tracts, and executed notes for the lirm, o( which no regular account was kept. They at length quarrelled, and the in-door part- ner insisted upon a dissolution of the partnership, and there was a pro[)osition to buv and sell. The out-door partner, in making an estimate of the value of the property for his own guidance in any proposition he might make .r receive, at- iterest to that table bargain, leducible from lUg into which •r the common his individual p. Hence, the 16 notes in this s such existed, to himself, has lates.^ suitable conduct the Lhemselv(!S from its iiitiir had ftiithfully rard, by which the vaa jilaeod uiulcr the receiver, and which lul, by every coiisid- » and moral duty, to ly just cause tliey ar- from the receiver; use the crops which ippropriated to imr- y to the protection of rests ; awakened the )rtant creditor ; aiui ivited, a forced sale he i>artnership estate When the planitili in iinpei>^li"f5 ^'5' '*'" proprietors, who had ted the conijiact for [rvation, tlic instinct mrily conii>eUed him of his friends ; ami iself in some dcOTee •position, from the iuld otherwise have remoter of the mis- to share that shelter Irary doctrine would tlie chance of a snc- certainty of imiuin- p." liowry r. (-'H^^ In Sexton v. t^cxton, Hners carried on m [nbracins variouj sulv V no rej^ular set ol attended exclusively inoas, made the con- Utes for the linn bunt was kept. IW? [and the i-'-^lx-'r I'''*;^: I dissohition of ttie [re was a proposition I out-door l«"""7'.,"! of t\>o value of the [„ guidance in any make .r receive, ai- PART VII.] partners' sales. 505 tempted to make out a list of the debts line from the concern, and ho estimated thera at about one-half what they turned out to be ; but it did not appear ihat he represented them to liis partner at any amount, or that his partner did coniide or would have confided in any representa- tions he might h.ive made. IMie court held that t' ]iosition of the seller called for the ext.^ise of the utmost good faith on liis part, and that he was bound not only to disclose truly any information in his possession that might In; called for, and if he perceived that his jwirtner was labor- ing under incorrect views in reference to the amount of the debts due by the con- cern, by which he might be misled into too high an otfer for the interest to be sold, it was his duty to furnish all the data he might have, by which such views might lie corrected and the mischief prevented. But, as there was no evidetice of any abuse of contidence, or any etfort to ob- tain an unfair advantage on the part of the partner selling, nor any information with- held which was called for, nor any knowing ac(piiescence by him in any mistaken views or estim'ites on the jiart of the purchaser, by which he might be ensnared into self- deception and loss; the sale was sustained. See Latfan v. Nnglec, 9 Cal. 6G2 ; Ander- son V. Lemon, 4 Sandf. 552 ; Coder v. Huling, 27 Tn. St. 84 ; Kvans v. Gibson, 2!t Mo. 223; Wheatley's Heirs v. Calhoun, 12 Leigh (Vn.), 264; Smith v. Ramsey, 6111. (1 Gilm.)373. A linn carrying on a general produce business had a debt due to them, whicli was secured by a mortgage. A., one of the (inn, became one of the owners of tlie niuitgaged property, which the fir;ii had been anxious to purchase. The debt was \m\ to ihe firm. The remaining membei's of the lirm claimed a share in the benefit of A.'s purcliase. The court thus laid down the law applicable to the case ; — "Kach partner is the agent of his co- partners in all transactions relatiii'r to partnership business, and is forbidden to traffic tlieicin for his own advantage, and if he does will he held accountiiblo for all protits. But beyond the liiie of the trade or business in which the him is en- gaged, there is no restraint on his right to tniinc. As one partner has no authority to bind the firm outside of their ordinary business, he cannot of course be held lia- ble to account should he make a profital/ie adventure in a matter not legitimately connected with the business of the firm. Tho dilliculty generally is, to ascertain wliat acts are within the scope of the par- ticular trade or business. But in this case there is no embarrassment whatever in tho ipplication of the principle. This was a putnership to do a general produce busi- ness. It contemplated no dealings in real estate, and each partner was at liberty to buy and sell real estate, and was under no legal liability to account to his co- partners." So far as there was fraud in the case, the parties were in pari delicto, and the plaintilfs were without reuic'v. Wheeler v. Sage, 1 Wall. 518. See Kati- dall I'. Howard, 2 Black, 585; ' liipiwn V. Stickney, 3 Meti;. 384 ; Hexwell v. Chris- tie, 1 Cowp. 395 ; Howanl v. Castle, 6 T. R. 642 ; Veazio v. Williams, G How. 134; Hawley r. Irnmer, 4 Cow. 717; Fuller i>. Abrahams, 3 Br. & B. 116; Jones V. Caswell, 3 Johns. 29 ; Doolin v. Ward, 6 Johns. 194 ; Wilbur v. Howe, 8 Johns. 444 ; Thompson v. Davies, 13 Johns. 114. An association known as a mining partnership is a partnership :. 6 viodo only ; Kahn v. Smelting Co., )'i'2 U. S. 641 ; the di/cctus personce, wl'icn is essen- tial to constitute an ordinan ])artnership, having no place in these mining associa- tions. Durvea v. Burt, 28 Cal. 669 ; Set- teinbre v. Putnam, 30 Cal. 490; Taylor I'. Castle, 42 Cal. 367 ; Skillman v. Lock- man, 23 Cal. 199, 203. And a purchase by one member of such an association of tho share or interest in it of another docs not inure to the benefit of his associates. Bis- sell V. Foss, 114 U. S. 252. In Lamar's Kx'cr V. Hale, 79 Va. 147, 160, with ref- iireuce to this descrijition of partnership, tile couri said ; "This mining ppTtnerehip was u'ilike ordinary trading partnerships in a remarkable feature. In the latter chero is always what is implied by the jdirase ' dilcdi's pcrsonarum.' In them no one can become a partner without tho consent of the rest. In mining partner- ships, like that under consideration, there Wits iio ' dilcctus personarum.' Each member could transfer his share to any o hor person, and that person bticomes, ipso facto, a member of the company, oc- cupying the same relation thensto that the original iiieinber occupied. This was the distinguisliing fi-ature of this company as a mining partnership, and it made the membei-ship changeable and uncertain. But it was a principle of law, and all persons dealiiig with tho company or with its property were and are bound to take notice of it." In Bradbury v. Barnes, 19 Cal. 120, Baldwin, J., said : " If asso- ciates in a mining claim are to be regarded as general partners, a point which we do not decide, still wo do not think the rule a))plieablo to trustees and cestuis que trust, guardian and ward, which qualifies the right of purchase by the trustee of the cestui que trust, can be held to apply." See Kahn v. Smelting Co., 102 U. 8. 641. In England it has been held, as in this country, that one of several co-adven- turers in a mine has not, as such, any ti i i' ' i I \ ' I I, t l\ •M ,; ,, ; f I 1 1 \ i;. I Mil" ;! 4 Tl i I r '%'i 606 COMMENTARIES ON SALES. [book II. PABT VIII. authority to pledge the credit of the general body, tor money borrowed for the Eurposes of the concern. And the fact of is having the general management of the mine makes no difference, in the absence of circumstances from which an imitlied authority for that purpose can be inferred. Ricketts v. Bennett, 4 C. B. 686. In Fereday v, Wightwick, 1 Kuss. & M. 45, it is said : " Mining concerns are, to some purposes, trading concerns, but they are not BO as to all : they are not so in this particular, namely, — that they are not, as an ordinary partnership trade, subject to dissolution on the death or bankruptcy of any of the partners, and the shares are transferable without the consent of the other partners. In these particular in- stances, they have not all the incidents of a trading concern ; in '"ther respects, it has been repeatedly held that they have." In Dickinson v. Valpy, 10 B. & C. 123, it was held that the directors of a mining association cannot bind the members by accepting a bill of exchange, unless they are authorized to do so by the deed or in- strument of co-partnership ; by the neces- sity of such a power to the carrying on of the business ; by the usage of similar establishments, or by the express assent of the party sought to Ije charged. But the members of a mining company have authority by law, in the absence of any proof of a more limited authority, to bind each other by dealings on credit, for t'ae purpose of working the mines, if that ap- pear to be necessary or usual in the man- agement of the mines. Tredwin v. Bourne, C M. & \V. 461. See Vice v. Lady Anson, 7 B. & C. 411 ; Bourne v. Freeth, 9 H. k C. 632 ; Hawtayne v. Bourne, 7 M. & W. 595 : Jefferys v. Smith, 1 J. & W. 301 ; Duncarry v. Gill, 4 C. & P. 121. In Hawken v. Bourne, 8 M. & W. 703, a joint-stock company was formed to work a mine, in which the defendant became a shareholder, and took part in its pro- ceedings. The |,i'ospt!ctus issued on the formation of the company stated that all supplies for the mine were to be purchased at cash prices, and no debt was to be in- curred ; and the script certificates also bore an indorsement to the same eft'ect. The plaintilf supplied goods for the neces- sary working of the mine on the order of a resident agent appointed by the direct- ors to manage the mine, which was the customary coui-se in such concerns. It was held, that the defendant was liable to the plaintitf for the price of such goods, notwithstanding the statements in the pro- spectus and certificate, unless it were shown that the agent had in fact no authority from the defendant, and that the plaintiff had notice thereof. See further, Ellis v. Schmceck, 5 Bing. 621 ; Parot v. Turton, 2 Wils. 169 ; Heane v. Rogers, 9 B. & c. 577 ; Crawshay v. Maule, 1 Swanst. 518 ; Story V. Lord Windsor, 2 Atk. 630 ; Je^us College V. Bloom, 3 Atk. 262. The par- ties constituting a mining coiu])any occupy a dual position. As owners of the prop- erty, they are tenants in cominou ; and in working the mine they are to be con- sidered as partners. As the pro[)orty can only be used in entirety, it is indispens- able to the conducting of the business of mining that those owning the major ]ior- tion of the i)roperty should have the power to control, in case all cannot agri'e ; otherwise the work might become wholly discontinued. As mining partnersliiiw are not usually founded on the dikdits per- soHce, the powers of the individual mem- bers of the concern are much more limited than are the powers of the individual members of a purely commercial or trad- ing partnership ; and for this reason the conduct of the partners holding the ma- jor portion of the property in a mining concern is to be most jealously scrutinized when complaint is made by the minority in interest, of oppression. It might and often would work great inconveuicuoe and damage to the minority in interest of a mining partnership, if the majority were allowed to do as they might deem to their own advantage, regardless of the ri;;hts anal is res- ident abroad may be taken into consideration in determining the question of the liability of the agent. But where the terms of the contract are clear and unambiguous, it must be deemed the final repository of the intention of the parties ; and its construction and legal effect cannot be varied or changed by any reference to facts or circumstances affecting the convenience of the parties or the reasonableness of the contract into which they have entered. In such a case, therefore, it makes no difference whether the princi- pal is a foreigner or not. If by the language of the contract the agent and not the principal is bound, such must be its construc- tion ; and, on the other hand, if it clearly binds the jjrincijial, and is in form a contract with him only, the agent must be exonerated without regard to the fact that the principal is resident in a for- eign country.* This rule can work no hardship, because parties ' The plnintiffs, a foroign company, entered into negotiations through S. & Co., Loiulon, <:oniiinssion merchants, for llie sujiply by (J., the defendant, of cer- tain railway wheela and axles ; and the defciidiuit, in consequence, had an inter- view, on the 29th January, at S. & Co.'s office, with S., one of the partners, and H., the managing director of the phiintilfa' company ; and the defendant signed, in a liiarj- ofS., the following entry : " Mr. C. offers to su])|ily ir>0 sets of wheels and wles [ilesciil)ing them] at £31 |)er set, to te delivered free on board at Hull during February and March. This ofl'er to remain open uiitil the 3d of February." On the U of February S. & Co. telegraphed and 1 wrote : " We confirm the order for 150 sets of wheels and axles," repeating the terms of the offer. Some of the sets were delivered by the defendant, the invoices l*ing made out to S. & Co., and they paid 'or them ; but the delivery of most of the *ts was after March, and the plaintiffs med for a breach of the contract. At the 'rial it was objected that the contract was jrith S. & Co., and not with the plaintiffs. 'lie judge (Mellor) left it to the jury to VOL. I. say whether the contract was made with the plaintiffs or with S. & Co. Tlie jury found that it was made with S. & Co. On motion for a new trial, on the ground of misdirection, and that the verdict was against the weight of evidence, the court held that the direction and verdict were right, The principle upon which the ca.se was decided is, that an agent may make a contract by which he may become person- ally liable, while he still makes it on be- half of his principal, so that the other party has a choice to go against either the one or the other ; that is, that the con- tract may be such as to make the prin- cipal, as well as the agent himself', a party to the contract. But if the princijial be made a party to the contract, lie must be both able to sue and liable to be sued ; for he cannot be a party so as to be able to sue, and yet not a party so as not to be liable to be sued. Klbinger Actien-Ges- sellschaft v. Clave, L. R. 8 Q. B. 313. And in this case the court considered that the evidence excluded the one altogether, because the foreign i)rincipal was known to the defendant, and, in fact, was present at the time of the offer ; and that the jury 33 ii n ■ f 1 . i i: t: r i J ■I .n 'H ■MB I ^! 614 COMMENTARIES ON SALES. [book II. can in all cases make their contracts in such form as to bind those to whom tlicy intended to give credit. . . There can be no doubt found in substunce (and their iindlng was Rustained), that what the dufundunt in effect said, was : " I know the coods are not for you, 8. & Co., but I will not deal with your foreign priuciiial, but only with you ; ' and that being so, the foreigner is excluded, both fur the purpose of liability, and fur the purpose of suing and taking the benetit of the contract. Hutton v. Bulloch, L. K. 8 Q. B. 331, is a case similar in principle to Elbinger Co. v. Claye, L. R. 8 Q. H. 313, and carried the principle that the presumption (whether It be an inference of fact or a conclusion of law) that fureign constituents do not give ihe English commission merchant any authority to pledge their credit to those from whom the commission mer- chant buys on their account, to a case in which a foreign firm agrees that an Eng- lish firm shall purchase and ship goods on the joint account of the two firms. The (juestion came up in the Court of Queen's Bench on a ease stated b)' con- sent In this case the action was against the foreign principal ; and the facts were that H. F. & Co. were merchants in Lon- don, and the defendant was a partner in the firm of H. B. k Co., carrying on business at Rangoon. Goods were sup- plied by plniiititf to H. F. & Co. on their order, given in consequence of an arrange- ment between the two linns, as disclosed in letters, that H. F. & Co. should purchase and send out goods on the joint account of the two firms, 2 per cent, to be charged on the invoice by the London firm, and 5 per cent, by the Rangoon firm, includ- ing guarantee. The plaintilf had no knowledge of the defendant, or that the Rangoon firm were in any way interested in tne transaction, until after the goods were supplied. The judgment of the court was delivered by Blackburn, J., in favor of the defendant. On appeal to the Court of Exchequer Chamber (L. K. 9 Q. B. 672), the judgment of the Court of Queen's Bench was affirmed, both courts holding that the defendant was not, as an undis- closed principal, a party to the contract under which the goods were supplied by plaintiff; for that, on the true construc- tion of the correspondence, the Rangoon firm did not give authority to the London firm to establish privity of con- tract, and pledge their credit with the English suppliers of the goods, inasmnch as the presumption that foreign constitu- ents do not give the English commission merchant any authority to pledge their credit to those from whom the commis- sion merchant buys on their account, applies to such a case. The (piestion in- cidentally arose in this case, ni tin; comt below, whether the conclusion arrived at is an inference of fact or a comlubioii of law. It .'ould seem to be that, in reach. ing the > onclusion, it would be, us is the case m the construction of most contracts, a mixed question of fact and uf law. Blackburn, J., who delivered tiiH jml^. ment in this case in the Court of (^tiiccn's Bench, where the point is rtt'crictl to, himself showed, in Elbinger Co. v. Cliye (L. R. 8 Q. B. at p. 317 ct seq.), that although the usage of trade e.stiililisheil for many years has been that it is under stood that the foreign constituent has not authorized the merchants to pledge his credit to the contract, to establish privity between him and the home .supplier ; yet that, on *he other hand, the home sup. Her, knowing that to be the usage, (ioes not trust the foreigner, and so iloes not make t he foreigner responsible to him, nor himself responsible to the foreigner, unhis there is something in the bargain showmii the intention to be otherwise ; and admits that there might, no doubt, be a contract raado in a ditlerent way between the two parties bargaining together, and there might be evidence of that given to a jury. In Hutton v. Bulloch, Maule, .I.'s, state- ment, in Smyth i>. Anderson (7 (.'. 15. at p. 33 ; 18 L. J. C. P. 109), is (pioteJ, where he says : " It is well known, in or- dinary cases, where a merchant resident abroad buys goods hero through an agent, the sellev contracts with the agent, and there is no contract or privity between him and the foreign principal. If that question had been specifically put to the jury, there can be no doubt as to what their decision would have been." And this is also (juoted from the judgment in Arm- strong V. Stokes, L. R. 7 Q. B. at p. 605: "The great inconvenience that would re- sult if there were privity of contract estab- lished between the foreign constituents of a commission merchant and the home sup- pliers of the goods has led to a course of business, in consequence of which it has long been settled that a foreign constitu- ent does not give the commission merchant any authority to pledge his credit to those from whom the commission nieicliant buys them by his order and on his account. It is true that this was originally (and in strictness perhaps still is) a question of fact ; but the inconvenience of holding that privity of contract was established between a Liverpool merchant and the grower of every bale of cotton which is forwarded to him in consequence of bis . |{, at quoted, , in or- resiJent ngi'nt, nt, and between If tbat . to the to what Viidthis in Arm- 605; j'uld re- •t estab- jents of roe sup- ourse of it has oiistiw- lerchant to those nt buvs (int. It (and in stion of Iholding iblished ind the :hich is of bis PAUT VIII.] AGENCY. 515 that if the principal resided in this country, lio alone could have been sued on the contract. In like manner, he only is responsi- ble, although a foreigner, because he is tlio sole party to it, and there is nothing to control the intent manifested by this mode of executing the contract." This is altogether like the usual judgments of Bigelow, C. J., an admirable exposition of the law ; every word of which we adopt. It was held, in accordance with the language we have quoted, where a charter-party had been entered into by the defend- ant, for foreign principals, and the agent, having due authority to do so, signed the charter-party, " A. B. by C. D., agent," that the agent was not liable on the contract, although the principals re- sided beyond seas.^ order fiivpn to a commission merchant at New Ui leans, or between a New York mer- chant and the suiiplierof every bale of gootls purehiisetl in consequence of an order to a London commission merchant, is so ob- vious and so well known, that we are jus- tifieil in treating it as a matter of law, and saying that, in the absence of evidence of an express authority to that effect, the commission agent cannot pledge his for- eign constituent's credit." The deduction from tluse cases would seem to be, in Eng- land, that, whether there is any evidence to submit to the jury as to the intention of the parties contracting mutually to bind the foreign principal and the home dealer to each other, as parties to the contract, on principle as well as on authority, is, of course, a question of law. Where there is such evidence, the intention of the parties would, with equal clearness, be a question of fact to be submitted to a jury, the jury being instructed that the burden of proof is on him who seeks to establish the priv- ity of contract between the foreign ])rin- cipal and the home dealer. And where there is no evidence of such mutual inten- tion between the parties, from long usage, whirii has now ripen 3d into a principle of law, the conclusion is that it is now a principle of hiw, that the foreign principal and the home denier do not contract with each other, but that there are two inde- pendent contracts, — the foreign dealer with the commission merchant, and the liome dealer with the commission mer- chant as well ; the commission merchant heing the principal in both cases, as be- tween himself and the foreign dealer, and Mmself and the home dealer respectively. This, of course, is simply the result of isage, in the entire absence of any evi- liencf to show the intention of the parties. ' See further on the point, Lennard t Robinson, 6 £1. & B. 125, 130; Mahony V. Kekule, 14 C. B. 390; Green v. Kopke, 18 C. B. 549 ; Heald o. Kenworthy, 10 Kx. 739, 743, per I'arke, B. : "The question of the liability is one of fact. Where the seller deals with an agent resu'ent in this country and acting for a foreign jirincipal, the presumption is that the seller does not contract with the foreigner and trust him, but with the party with whom he makes the bargain. This is a question of fact, and not of law." See also Wilson v. Zu- lueta, 14 Q. 15. 405, 416; Oelricks v. Ford, 23 How. 49, 65; Kisbourg i;. Bruckner, 3 C. B. N. s. 812, 824. And see Rogers v. March, 33 Me. 106, 112, laying down the rule exactly as in Story's Agency, § 268. We observe that in the last edition of Story on Agency, p. 326, note 2, the editor abandons the princijde laid down by the author in the text, and says : "But the true rule seems to be that an agent of a foreign principal is not, as a, matter of law, jtersonally liable on such contracts ; but it is a question of fact for the jury in each case, to be decided by the peculiar circumstances, whether he is liable on the particular contract in each case." And yet in the recent English case of Paice r. Walker, L. R. 5 Ex. 173, 178, we find Clensby, B., referring to the principle as laid down by Story in his Agency, and Smith in his Mercantile Law, as though its fallacy, as so broadly stated by them, had not been exposed, as it has been, over and over again. It goes to show, when once an erroneous pro])osi- tion in law is established on the sem- blance of authority, how difficult it is to eradicate the error. Incidentally the mat- ter is referred to further in the next sec- tion of this Part. We think the mistake which has been made that there is a presumption, as a principle of law, that when a contract is made with a home agent for a foreign prin- 11 1 '1 '' if i; 1 i'j I 'I i ml 'I .!■ 616 COMMENTARIES ON SALES. [book II. 2. Effect op Agents Signing Contracts in their own Namhs. As unsettled as the law has been with rofcrcneo to the effect of a contract made by an agent for a foreign principal, and wliicli we have considered in the preceding section of this I*urt, it was not more so than the law has been with reference to the sulijoet wc consider in this section. Wo examine some of the casts on the subject. In Puice v. Walker,* which we examine more fully after stating some other cases, it was held that where a contract is siurnod l»v a person without any words importing agency, the person so simiinj,' is, by virtue of the contract, both entitled and liable, unless in the body of the contract a contrary intention is clearly shown. And in this case, where the agents signed the contract simply " Walker & Strange," they were held liable us principals, although, in the body of the contract, was : " Sold P., London, 200 quarters wheat, as agents for J. S. & Co. of Danzig," etc. ; this language Ijeinjr held to be more matter of description, and not showing that the contract was made by the agent for his principals for the j)iir|iose of binding them, and not himself. The decision in this case fol- lowed that of Lennard v. Robinson,'* where the agents in London signed a charter-parter " by authority of, and as agents for, S. of Memel ; " and, notwithstanding this, it was unanimously hold by the Court of Queen's Bench, that this did not show that they were making the contract for S., but tl.at the language in the bodv of the contract prevailed, which showed that the defendants w re contracting for themseU, " It was sought by Cleasb^, ^ 'n Paice v. Walker,^ to put that cipal, the foreign principal is not liable on the contract, lias arisen from tiie improper application of the general rule in the law of agency that the principal is liable for the contracts of his agent. There are lim- itations to that rule which include miiiiy cases where a foreign ])rin(!ipal buys gcod*! through a home factor or commission Mtn • chant ; but they are based on the i(ii?a that the agent stands towards the ^"llc- of the goods and the purchaser of ilr in as a kind of intermediate or quasi principal. We think where that relation exists the home principal is aa much exempt from liability as the foreign principal is. The distinction tnat has oeen taken as regards the foreign principal is simply, we think, the result of a misconception as to what the rule is as to the liability generally of a principal on a contract which has been made by the agent in his own name and on his own credit. We think the cases of Smyth V. Anderson, 7 C. B. 21, and Arm- strong V. Stokes, L. R. 7 Q. B. 598, as il- li.^ "five cases, are very iniportiiiit on this question. The former was tiic iiisf of a foreign principal, and the hitltr that of a home principal, and in Imili tlie principal was held not liable — but only m both cases because the prii]ci|«il had pair', the factor — on the contnirl nf his "agent" (more properly in such ciisi's a ])rincipal or quasi principal), tlie "]i:in- cipal ' having in good faith jKiid the "agent," before notice was given tn liim, or application was made to iiim by tlie seller. See post, where we coiisiilcr tlie general question, in our note K, Arm- strong V. Stokes, L. K. 7 tj. I?. .li'S, The general question itself is involved in such confusion, which we have eiidoMvorcd to remove, that it is not strange timtoneof its collateral questions should not bu cun- spicuous for clearness. 1 L. R. 5 Ex. 173. a 5 El. &B1. 12.5. * L. B. 5 Ex. 173, 178. PART VIII. J AGENCY. 617 case very strongly on the ground that it was a contract for a for- eign principal, and that, therefore, the broker was liable. Ho says : " I do not object at all to the view expressed by the rest of tlic court, but I am not disposed to reject or to give loss than con- siderable weight to the fact that this contract shows on the face of it that it was made on account of a foreign principal. It is laid down in Buller, N. P., p. 130, that ' where a factor to one beyond sea buys or sells goods for the [)er8on to whom he is factor, an action will lie against or for him in his own name ; for the credit will l»c presumed to be given to him in the first case, and in the last the promise will be presumed to be made to him, and the ratlicr so as it is much for the benefit of trade ; ' the author only qualifies this by adding that there is, nevertheless, a contract also with the principal. In an old case of De Gaillon v. L'Aiglc,' Eyre, C. J., says : ' I am not aware that I have ever concurred in any decision in which it has been held that if a person, describing hinisi'lf as agent for another residing abroad, enters into a con- tract here, he is not personally liable on the contract.' The same view is adopted and expressed in Story on Agency, §§ 400, 401, and in Smitli's Mercantile Law, p. 164 (7th ed.) ... If the prin- ciples 1 have referred to are aj)plied here, the defendants, who have signed in their own name, without any qualification, must be held to have contracted personally." Pigott, B., lays less stress on it, treating it as one of the circumstances to be taken into con- sideration in the case in construing the contract. He says, first quoting from Cresswell, J., in Cooke v. Wilson : 2 .- ' Primd facie when a man signs a contract in his own name, he is a contracting party ; and there must be something very strong upon the face of the instrument to prevent that liability from attaching to him.' That applies to the present case. Then is there anything in the body of the contract to relievo the defendants from their liability ? The words relied on are, ' as agents for John Schmidt k Co. of Danzig.' Now, in Lennard v. Robinson,^ it was said by Coleridge, J., that the fact that the defendants were acting for a foreign principal, was a circumstance to be taken into consideration. In my judgment, taking into consideration that circumstance, which also appears in this contract, and the further fact that the cargo is to he taken, not at Danzig but at London (etc.), the defendants must be held, on the true construction of the contract, to have contracted personally with the plaintiff." No stress whatever was laid upon it by Martin, B. (who merely refers to it en passant), who says : " 1 infer . . that the name of their foreign principals > 1 R. & p. 368. » 1 C. B. M. 8. 163, 162. * 5 E. & fi. at p. at p. 277. 131 ; 24 L. J. Q. B. If f Mi \. 4 1 1 1 i j: •\ ! \ ' * ' \ \ t \ '•■ :' ii » I, 1 ■ n ;:.. 4 i; ' i' V\f ■ r ■ :' ; '' [ E['^% 518 COMMENTARIES ON SALES. [book II. was inserted merely as a notice to the other contracting party, or an earmark of the contract, to distinguish it as one made by tliem in pursuance of their commission or agency." But Kelly, C. B., went still further, and said : "In dealing with the case, 1 do not reU- on the circumstance that the alleged principals appear on the face of the contract to be foreigners resident abroad. When that cir- cumstance appears in the contract, it may or may not have the effect contended for. I place no reliance on it." This, of course, means in this particular case, not that the learned chief baron never placed any reliance on it. In Gadd v. Houghton,' in the Court of Appeal, where, on the face of the contract, the names of the foreign principals are dis- closed, — " Sold to you on account of James Morand & Co., Val- encia," — the fact of the contract having been made by the agent so as to bind himself personally, because the contract disclosed that it was made for foreign principals, is not even adverted to in the most remote way by either of the learned judges who decided that case. We consider this case further. The question decided in Paicc v. Walker ^ came up again, in ef- fect, in the Court of Appeal, in Gadd v. Houghton,^ which was an action for non-delivery of oranges sold by the defendants to the plaintiff. The sold note contained these words : " We have this day sold to you on account of James Morand & Co., Valencia," etc., and was signed by the defendants, " J. C. Houghton & Co.," without any addition. The contract not having been pcrf')iined, the plaintiff brought an action against the defendants. It was claimed for them on the trial, before Pollock, B., that, upon the contract, Morand 4 Ex. Div. 104. 3 2 Sm. L. C, 6th ed., 34 1. r :!: 520 COMMENTARIES ON SALES. [book II. attach to him. But if there are plain words to show that he is contracting on behalf of somebody else, why are we not to give effect to them ? 1 can see no difference between a man writing ' I, A. B., as agent for C. D., have sold to you,' and signing 'A. B. ;' and his writing ' I have sold to you,' and signing ' A. B., for C. D., the seller.' When the signature comes at the end, you apply it to everything which occurs throughout the contract. If all that appears is that the agent has been making a contract on behalf of some other person, it seems to me to follow of necessity that that other person is the person liable. This is one of the simplest pos- sible cases. How can the words ' on account of Morand & Co.,' be inserted merely as a description ? The words mean that Mo- rand & Co. are the people who have sold. It follows that the per- sons who have signed are merely the brokers, and are not liable." All this is quite as applicable to " sold as agents for J. S. & Co.," as it is to " sold on account J. M. & Co." And yet the very next words of Mellish, L. J., are : " I agree also that the circumstances of Paice v. Walker are to be distinguished from the present." And Quain, J. : " It is said that in order to relieve the agent from liability, he must sign ' as agent,' or ' on account of ' [treating these, as do the other judges, as, in effect, virtually synonymous] Morand & Co. I cannot see the necessity for adding those words to the signature, if you can gathe" from the contract that he makes it on account of Morand & Co. Those words at the end of the signature would add nothing to what has been stated in the body of the contract. The agent, therefore, does not render himself personally liable by not adding them." And Archibald, J. : "1 am of the same opinion. The usual way in which an agent con- tracts so as not to render himself personally liable, is by signing as agent. That, however, is not the only way, because if it is clear f.'om the body of the contract that he contracted only as agent, he would save his liability. No words could be plainer than tl e words ' on account of Morand & Co.,' to show that the defendants contracted only as agents." And yet, although all this is equally as applicable, in effect, to the language referred to in Paice v. Walker as it is to that in Gadd v. Houghton, he, too, like the other able judges, adds : " / also agree that Paice v. Walker is to be distinguished from this case J'* We think tho rules of law, fairly deducible in the matter, are : — First. When a man signs a contract in his own name, he is primd facie a contracting party and liable, and thee must be some- thing very strong on the face of the instrument to show that tlie liability does not attach to him. PART VIII.] AGENCY. 521 Second. When a man signs his name to a contract and does not add to his signatuie any language to the effect that he is act- ing as the agent or on account of any one else ; but does show, in the body of the contract, that he is acting as the agent or on ac- count of some one else, and there is nothing otherwise in or con- nected with the contract which shows i-hat this is not merely matter of description, then he is not the contracting party and is not liable. Third. But, though not signing his name as the agent, or as octing on account of any one else, and yet stating in the body of the contract that he is acting as the agent, or on account of some one else, and there is that in and connected with the con- tract which shows that such statement is merely matter of descrip- tion, then he is the contracting party and is liable. With all deference, we think, — although the term " sold on ac- count of J. M. & Co.," in Gadd v. Houghton, may be appreciably stronger than its very near equivalent, " sold as agent of J. S. & Gi .*' \a Paice v. Walker — that either of these expressions may J ; . 'thin the third rule we have above deduced from the - ;. But, " having regard to the contract and all the circuin- staucos of the case," there is nothing whatever in Gadd v. Houghton which does show that the term " on account of J. M. & Co." is matter of description ; while in Paice v. Walker, having regard to tlie contract and all the circumstances of the cj^e, there is some- thing to show that the term " as agent of J. S. t ' afterwards passed between the parties," he says : " By ^li, •' i( ap))ears that the defendants, so far from deny- ino; that they wc/» imrt c-s to the contract, acted as sellers by draw- ing upon the plainn./;* in their own name." Tiien, in the contract, while, in connection with the sale^ they describe themselves " as agent for J. S. & Co.," they enter into a guarantee without any intimation that they are doing sc " as agents of J. S, & Co.," and that is part of the contract signed by them. And, in the contract, they say that tlie payment is " by buyers' acceptance to sellers' drafts," and not only, as intimated by Kelly, C. B., did they, in drawing iv. i icir own names, act as sellers, but by so doing, in ' Fai :e v. Walker, L. R. 6 Ex. at p. 176. If i: f \ P ?• ^ . ^1 i : \ h I; i i:: m m f 1-1 n't i. 1 ' ''' ^ .t: M 522 COMMENTARIES ON SALES. [book II. effect, they declared that they were the sellers. And this draft which, as sellers, they drew, was accepted, and paid to them as sell- ers ; and, in further recognition of this as being according to the contract an acceptance and payment to them as sellers ^^and there- fore, of course, principals), the shipping papers and the goods pur- chased were — in recognition that in treating them as sellers, the plaintiffs had a right to do so — handed over by the thus pro- fessed and acting sellers, to the buyers. None of these circum- stances or any at all analogous to them are to be found in Gadd V. Houghton, which, " having regard to the contract and all the circumstances of the case," in Paice v. Walker, docs not overrule the latter case in respect to that contract and those circumstances. Where> in Fairlie v. Fenton,^ the words were, " sold you on ac- count of T.," signed " El. F., broker," and where the same judges sat who decided Paioe v. Walker, — Kelly, C. B., makes a general statement covering cases ; thus : " A broker may, no doubt, frame a contract in b way as to make himself a party to it and entitled to sue, but when he contracts in the ordinary form, describing and signinff himself as a broker^ and naming his princi- pal, no action is maintainable against him." The ordinary rule undoubtedly is, that if a person merely adds to the signature of his name the word " agent," " trustee," " treas- urer," etc., without disclosing his principal, he is personally bound. The appendix is regarded as a mere descriptio personce. It does not of itself make third persons chargeable with notice of any representative relation of the signer. But if he be in fact a, mere agent, trustee, or officer, of some principal, and is in the habit of expressing, in that way, his representative character in his deal- ings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the docu- ments thus made and used as his personal obligations contrary to the intent of the parties.^ The plaintiff made two contracts in writing with the defendants, in his own name, describing himself as agent for II. & Co., and signing the contract with his own name, without any addition. The contract referred to him as " the seller," and also contained the language : " I . . . agree to sell." The purchasers were of New York, where the contract was to be performed. By statute 1 L. R. 5 Ex. 169. a Metciilf f. Williams, 104 IT. S. 93 ; Mechanics' Bank v. Uanit of Columbia, 5 Wheat. 320; Broikway v. Allen, 17 Wend. 40 ; Kean ». Davis, 21 N. J. Law, 683. See Niit. Bank v. ins. Co., 104 U. S. 54, where a hank was charged with knowledge of the fact that funds which were deposited by one of its customers in his own name were in fuet deposited by him as the agent of an insiiriince com- pany, so tiiat their lien as banki'is would not attach to such funds as njiainst ad- vances made to him by the bank on his personal account. PART VIII.] AGENCY. 523 there, in the case of contracts made by one in his own name for the benefit of another, tlie party making the contract is a trustee of an express trust, and an action on the contract may be brought in his own name.' Independent of the statute, the court recognized the strength of the authorities in favor of the right of the plaintiff to sue, in his own name, at common law,^ but held ^ that, if the agreement were a personal contract, the action could be in his own name at common law, and if a contract for II. & Co., the ac- tion could be brought in New York, in his own name, under the statute.* Quite independent of the statute, we have no doubt that, under the form of the contract, the action was properly brought iu the name of the plaintiff.^ The plaintiffs bought flour from the defendants, for which the following note was given : — M .3SU8. TowNE & Washburne : — Bought of Nash & Chapiii, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5^, $5,500. Received payment, siglit draft, NaSK «& ClIAPIN. This note of the sale was enclosed in a letter from the defend- ants, to the plaintiffs, containing the following language : " Your Mr. W. left liere yesterday, and before going off we sold him 1000 barrels round hoop flour. Empire Mills, Iowa, free on board steamer at Neenah, Stfo.SO, for which find bill enclosed. We have the flour stored and insured, and will value on you at sight for the amount." In an action for non-delivery of the flour, the defendants sought to give evidence that they had sold the flour as agents, and had paid over the proceeds thereof to their principals. The presiding judge of the Circuit Court refused to allow the evidence, and on error to the Supreme Court,® the ruling was sustained ; the prin- ciples applicable to the point being thus correctly stated : " Parol cvidenee can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his princij)al at > N. Y. Code of Civil Procedure, § 449. 2 Kitincdv V. Oorvcia, 3 D. & i{. 503 ; Parker v. Winslow, 7 E. & B. 942 ; Dut- toii V. Maish, k R. 6 Q. B. 361 ; Buffuiii I'. Clindwi -k, 8 Mass. 103; Packard i;. Nye, 2 Met. 47. ' Alliany & Rensselaer Co. v. Lund- berg, 121 U. S. 451. * (Oiisiderant v. Brislmne, 22 N. Y. 389; Siiwin i;. Kcnnv, 93 U. S. 289; Weed •Win« Machine Co.' r. Wicks, 3 Dill. 261; I'nitcd States v. Tracy, 8 Bened. 1. ' In the case of a contract made by an agent for his principal, the contract show- ing on its face the name of the contract- ing parties, the agent may either sign his own name first, and add to it agent for his principal, or he may sign the name of his princiml first, and add ))y himself, as agent. Either form may be followed. All that is required in such case is that the contract shall purjiort on its fuce to be the contract of the principal. Smith V. Morse, 9 Wall. 76, 82. 8 Nash V. Towne, 5 Wall. 689. l;: .1 ',1 ii '■ f- * K ; £3 .■ f •■■ <■ ^ '' ' ( „ i^ nt 524 COMMENTARIES ON SALES. [book II. the time the contract was executed.* Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may, in general, maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such ovii'ence, says Baron Parke, does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another, and that principle has been fully adopted by this court.^ Cases may be found, also, where it is held that the plaintiif may prove by parol that the other contracting party named in the con- tract war but the agent of an undisclosed principal, and in that state of the case he may have his remedy against either at his election.^ Evidence to that effect will be admitted to cliarge the principal or to enable him to sue in his own name, but the agent who binds himself is never allowed to contradict the writing by proving that he has contracted only as agent, and not as principal." * • 1 Higgins V. Senior, 8 M. & W. 844. 2 New Jersey Steam. Nav. Co. v. Mer- chants' Bank, 6 How. 381 ; Ford v. Wil- liams, 21 How. 289 ; Oelrieks v. Ford, 23 How. 03. » Thomson v. Davenport, 9 B. & C. 78. * Jones V. Littledale, 6 A. & E. 486 ; Titus V. Kyle, 10 Ohio St. 444. The ijuestion arose in Ford v. Wil- liams, 21 How. 287, whether the principal can maintain an action on a written con- tract, made by an agent in lus o'vn name, without disclosing the name of the princi- pal, and the Supreme Court of the United States, in deciding that he could, thus laid down the principles applicable to the question: " It is not necessary to the va- lidity of a contract, under the statute of frauds, that the writing disclose the prin- cipal. In the brief memoranda of these contracts usually made by brokers and fac- tors, it is seldom done. If a party is in- formed that the person with whom he is dealing is merely the agent for another, and prefers to deal with the agent person- ally on his own credit, he will not be allowed afterwards to charge the princi- pal ; but when he deals with the agent, without any disclosure of the fact of his agency, he may elect to treat the after- discovered principal as the person with whom he contracted. The contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein ; and notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, it is well settled that the prin- cipal may show, that the agent who made the contract in his own name was acting for him. This proof does not cuntiadiet the writing ; it only e.xplains the trans- action. But the agent who binds himself will notjbe allowed to contradict the writ- ing by proving that he was contracting only as agent, while the same eviilence will be admitted to charge the primipal. 'Such evidence,' says Baron Parke, Sloes not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another by reason that the act of the agent is the act of the principal.'" See Higgins v. Senior, 8 M. & W. 843 ; New Jersey Steam Nav. Co. V. Merchants' Bank 6 How. 381 ; Moore V. Clementson, 2 Camp. 2'2; Sims v. lind, 5 B. & Ad. 393; Beebee v. Kohi-rt, 12 Wend. 413 ; Taintor v. Prenderpist, 3 Hill, 72 ; .Sanderson v. Lanibcrton, (i Hinii. 129 ; Fogg V. Virgin, 19 Me. 3;'i3 ; Tnisk V. Roberts, 1 B. Mon. 202 ; liiadly v. Boston Glass Co., 16 Pick. 32 ; .Magee i'. Atkinson, 2 M. & W. 440 ; Sowerby V. .Butcher, 2 C. & M. 371 ; Pentz i: Stanton, 10 Wend. 277. L. & Co., cotton brokers at Liverpool, sold to the appellants cotton for Future de- liveries. L. & Co. made the sales in their own names, but were really acting its agents for the respondent's insolvent, their undisclosed principal. The result of the transaction was that a sum of .£680 was due by the appellants to L. & Co. L. & Co. having failed, the plaintiff bronght an action against the appellants, who claimed to set off, in defence, money due PART VIII.J AGENCY. 625 The defendants, M. and W., fruit brokers in London, being em- ployed by the plaintiffs, merchants in London, to sell for them, from L. & Co. to the defendants in gen- eral account. The defendants, in answer to interrogatories as to their belief, stated ; " We had no belief on the subject. We dealt with L. & Co. as principals, not knowing whether they were acting as brokers on behalf of principals, or on their own account as the principals." At the trial, before Baggallay, L. J., it was proved tliat L. k Co. bought and sold both lor principals and on their own account, and that tne defendants knew this. Bag- gallay, L. J., held that the defendants were entitled to the set-off, and gave judgment for thoin. The Court of Appeal reversed this decision, i d entered judgment for the ]ilttiutitr for tlie amount claimed, on the pround that the defendants were not en- titled to the set-off unless they had been induced by the conduct of the principal to believe, and did in fact believe, that they were dealing with L. & Co. as the priiieipiils. On appeal to the House of Lords (Cooke v. Eshelby, 12 App. Cas. 271), the decision of the Court of Ap]ieal was aflirnied. In so deciding. Lord llals- bury, L. C, thus laid down the principle governing the case : '• It appears to me that the principle upon which this case must be (lecided has been so long estab- libht'd, tluit, in such a state of facts, the legal result cannot be doubtful. The eround upon which all these cases have Men decided, is that the agent has been permitted by the principal to hold himself out as the principal, and that the person dealing with the agent has believed that tlie agent was the principal, and has acted on that belief, \vith reference to both tliese pro]>ositions, namely, firet, the per- mission of the real principal to the agent to assume his character, and with refer- ence to the fact whether those dealing with the supposed principal have in fact acted upon the belief induced by the real priii- cipal's conduct, various difficult questions «f fact have from time to time arisen ; Imt I do not believe that any doubt has ever been thrown upon the law as decided tiy a great majority of judges for some- tliing more than a century. . . . The sell- ing by a broker in his own name, is only one fact, and by no means a conclusive fact, from whi^'h, in the absence of other nrcumstances, it might be inferred that lie was selling his own goods. Upon the farts proved or admitted in this case, the fact of selling in the broker's name was neither cnlculated to induce, nor did in fact induce that belief." Lord Watson Mid : " In order to sustain the defence pleaded by the appellants, it is not enough to show that the agent sold in his own name. It must be shown that he sold tlie goods as his own, or in other words, that the circumstances attending the sale were calculated to induce, and did induce, in the mind of the purchaser a reasonable belief that the agent was selling on his own ac(^ount, and not for an undisclosed principal ; and it must also be shown that the agent was enabled to appear as the real contracting party by the conduct, or by the authority, express or imjilied, of the principal. The rule thus explained is intelligible and just ; and I agree with Bowen, L. J., that it rests upon the doc- trine of estoppel. It would be incon- sistent with fair dealhig, that a latent principal should, by his own act or omis- sion, lead a purcbaser to rely upon a right of set-off against the agent as the real seller, and should nevertheless be per- mitted to intervene and deprive the pur- chaser of that right at the very time when it had become necessnry for his protec- tion." Cooke V. Eslielbv, 12 Apji. Cas. 271. In Semenza r. Biiiisley, 18 C. B. N. 8. 467, 477, it was held, that one who buys goods of a person whom he knows to be selling them as an agent, cai'not set off in an action by the principal for their price a debt due to him by the agent, even though he did not know at the time, of the purchase, and had not the means of knowing who was the real owner. The rule in George f. Clagett, 7 T. R. 359, is, that if a factor, who sells under a del credere commission, sells goods as his own, and the buyer knows nothing of any prin- cipal, the buyer may set off any demand he may have on the factor against the de- mand for the goods made by the principal. Hut this rule is as above qualified liy the rules laiur principals, ten tons of linseed oil," etc., " quarter per cent brokerage to " de- fendant. This note defendant delivered to Messrs. T. Defendant did not disclose the name of his principal, S., who became insolvent, and did not accept the oil. Plaintitr then sued defendant for not ac- cepting the oil, laying the sale as by him- self to defendant. Defendant denied the contract. On the trial ))laintilf proved a custom in the trade that when a broker purchased without disclosing the name of his principal he was liable to be looked to as purchaser. It was held by the Court of Queen's Bench that evidence of the custom was admissible, as not contradict- ing the written instrument, but explaining its terms, or adding a tacitly implied inci- dent ; and that the action lay. The judg- ment was atrirmed on appeal to the Ex- chequer Chamber, but by a bare majority of the judges, — four to three. The judg- ment of tiie dissenting judges was mainly based on the ground that the memorau- dnm of the contract was insufficient to satisfy the statute of frauds, the jince of the oil being above £10. This |iosition, however, is clearly untenable. The cus- tom or usage is as much impliud in the contract, as is the meaning of ti'dniical language descriptive of tlie goods sold, or connected with their quantity, (|iiulity, or price. The law on this point is well iind accurately stated by Cockhuni, C. .1., tluis: " I am of opinion that where, citlier by any rule of law or by the usiigc of any trade, the terms of a contract aiviuiie a particular meaning, the contract must be taken to express that meaning as niucli as though it had been set forth in cxlcnso; and I hold that this obtains as imkh for the purpose of satisfying the statute as for that of establishing the coiitraid iiidi'- ])endently of the statute. That this is so, when the terms of a contract aeiiuire a particular effect other than tlicy would primd facie import, by virtue of some rule of law, is, I think, too clear to admit of doubt or to require argument ; nor, as it appears to me, is the ditliculty greater where the particular signification is shown to attach to the tenns of the contract by the usage of trade. For it must lie re- membered that the principle ujinn which evidence of .such usage is admitted is that, as between those who are parties to the contract, and conversant witli the terms used, those terms as clearly inijily the particular meaning as though it Iiail been set forth in extenso; and if this be so for the purpose of showing the effect and ex- tent of the liability, it must be e(]nally sn for the purpose of satisfying the statute, PART VIII.] AGENCY. 627 Agents selling goods, in which they themselves have an inter- 283 ; Scbiualtz v. Avery, 16 Q. B. 665 ; Hutton V. Warren, 1 M. & W. 466 ; Carr V. JiiL'kson, 7 Ex. 382; Thompson v. Dav- enport, 9 B. & C. 78 ; Bywater v. Kich- anlson, 1 A. & K. 508 ; Brown v. Byrne, 3 E. & B. 703; Tlie Reesi.le, 2 Siiinn. 669; Winthroi)!). UniiMi liis. Co., 2 Wiish. C. C. 7; Oonlon v. Little, 8 S. & K. 633; Snow- den t;. Warden, 3 Rawle, 101; Thompson V. Hamilton, 12 Tick. 42,'); Astor r. Union Ins. Co., 7 Cow. 202 ; Cooper v. Kane, 19 Wend. 386; Shaw v. Mitchell, 2 Mete. 66; Leach V. Beardslee, 22 Conn. 404; Lorin^i; V. Gurney, 5 Pick. 15. We find the view we liave expressed above ns to the comjie- tency of parties to give evidence of a usage to ox])Iam a contract, as they may give evidence of the meaning of technical lan- guage used in a written contract, is also taken by Story, J., in The Reesidc, 2 Sumn. 567, 669, where he says: "The true anal be sued on such a contract, or a party purporting to sign as agent, but be- ing in fact the principal ; nor, on the other hand, could an unnamed principal take advantage of such a contract ; yet the contrary is well established by au- thority and precedent." Dale v. Hum- phrey, E. B. & E. at p. 1021. It is note- worthy that although in this case three of the seven judges held contra, mainly rest- ing on the statute of frauds, y(;t in Fleet V. Morton, L. H. 7 Q. B. 126, where Dale ». Humphrey was followed and approved, no question was even raised on any ground as to the correctness of the decision, by either court or counsel. See Iliggins v. Senior, 8 .M. & W. 834 ; Jones v. Little- dale, 6 A. & E. 48(5 ; Magee v. Atkinson, 2 M. & W. 440; Sowerby ». Butcher, 2 C. &M. 371; Wilson v. Hart, 7 Taunt. 295; Spittle V. Lavender, 2 Bro. & B. 452; Gar- rett V. Handley, 4 B. & C. 664 ; Bateman t. Phillips, 15 Ea.st, 272; Seaberv. Hawke.s, 5 M. & P. 649 ; Patei-son v. Gandasequi, 15 East, 62; Le Fevre i-. Lloyd, 5 Taunt. 749; Hill v. Perrott, 3 Taunt. 274; Sharp V. Emmett, 6 Whart. 288 ; Calder v. Do- bell, L. R. 6 C. P. 486; Couturier v. Has- tie, 8 Ex. 40, 56 ; Moore v. Campbell, 10 £Z' 323; Pennell v. Alexander, 8 £. & B. :M, I: '> ■t'l W ll! >iV |. ■ ;: t ,'■ i '■<■ \ i ';■ i .'.I i \V ^ i ■!. 1 ;; i 'i :, " '■.1 ii [ : '-i 1^ M^ ' '1 i I i!" 1 :■• i; : 'Jm m 628 COMMENTABIES ON SALES. [book II. est, and selling in their own names, but for their principals, can n&intain an action in their own names for the pricc.^ years ago will cover the various well-de- cided cases down to the present time, in- cluding the many nicely decided English cases on the points involved, to be met with in the Litest reports. See also Hare V. The Mutual Siifetv Ins. Co., 1 Sandf. 137, 150, where Sanclford, J., takes, as we have done, the rule as to tiie allowance of evidence to explain technical language in a written contract as illustrative of the right to give evidence of usage to explain the meaning of the contract. At ibid. p. 152, he says : " In fine, we believe that the rule of construction applicable to poli- cies of insurance does not diiFer from that applied to other mercantile instruments. Its sense and meaning are to be ascer- tained from the terms of the policy, taken in their plain and ordinary signitication, unless such terms have by the known usage of trade in respect to the subject- matter acciuired a meaning distinct from the popular sense of the same terms, or unless the instrument itself, taken to- gether, sh 1W3 that they were understood in some peculiar manner. And that while we may not enlarge or restrict the clear and explicit language of the contract by. proof of a custom or usage, yet in the ap- plication of the contract to its subject- matter in bringing it to bear upon ary agents. If, indeed, any particular interest were de- scribed in the policy to belong to the person named in it, an objection inight arise founded on the rule that written contracts cannot be contradicted by parol evidence. This objection, however, does not occur in this case, where the insurance is general on the goods, and no interest is expressly described. But if this were not the law in the case of a policy which did not contain the usual clause ' as well in PABT VIII.] AGENCY. 629 The defendants, acting as agents for one L., chartered a ship for the conveyance of a cargo of currants from the Ionian Islands. The charter-party was expressed to be made, and was signed, by the defendants, as " agents to merchants," the name of the prin- cipal not being disclosed. It was proved that the defendants, in making the charter-party, had acted as agents for one Lyons, with due authority to do so ; but evidence was tendered on the part of the plaintiffs, and admitted, of a trade usage, that if the princi- pal's name was not disclosed within a reasonable time after the signing of the charter-party, in such case the broker would bo |)crsonally liable. The jury found that such a custom existed, and that the name of the principal had not, in this case, been dis- closed within a reasonable time. The verdict was entered for the plaintiffs, with leave reserved to defendants to move to enter the verdict for themselves, on the ground that they had contracted as agents, and that parol evidence was inadmissible. It was con- ceded that on authority,' and according to the general understand- ing in mercantile matters of the effect of a contract so framed, apart from custom, the defendants were not responsible. The court held, on the authority of those cases and others,^ that evi- dence of the custom was admissible.^ his own name, &c.,' it is not denied that it would be so in the case of one which iloes ; and their lordships think that in this case the certiticate ought to be con- stnicd with reference to the proved usage of the respondents to treat such a docu- ment as provisional, entitling the assured to a policy in their common form, which would contain the above clause. This common form of the respondents' policy clearly shows that in their contemplation the person named in the certiticate might be contracting as an agent for another ; and, therefore, as against them, the con- tract ought to be interpreted as if the above clause vere contained in it." And the appeal from the judgment of the Canadian courts was accordingly sustained, and their judgment reversed. ' Browning v. The Provincial Insurance Co, of Canada, L. K. 5 P. (.". 263. See Sims v. Bond, 5 B. & Ad. 389 ; Higgins v. Senior, 8 M. & W. 834; Humble v. Hunter, 12 Q. B. 310; Kamazotti v. Bowring, 7 C B. n. s. 851 ; De Vignier v. Swanson, 1 B. & P. S96, n. : Watson v. Swann, 11 C. B. N. s. J56; Calder v. Dobell, L. R. 6 C. P. ♦86. » Fleet V. Mnrton, L. B. 7 Q. B. 126 ; Faiilie v. Fenton, L. R. 5 Ex. 169. " Humphrey v. Dale, 7 E. & B. 266 ; EB. & E. 1004 ; Deslandes v. Gregory, 2E. &R. 602, 607. ' The limit on the admissibility of such ^OL. I. 34 evidence is thus put by Brett, J. : "It is not easy to define exactly limits within which evidence of mercantile custom is admissible to vary the meaning of a writ- ten contract. It is clear that evidence is not admissible to contradict the writing ; but in one sense the contract must always be varied by the admission of the evidence 9f custom, inasmuch as the effects of the contract would not be the same without the parol evidence, or else the parol evi- dence would itself be unnecessary. The evidence of cu8tom that is inay the defendant, and subscribed by him, for tlie sale and do- livery by him of goods, it is not com- IKJtent lor the defendant to discharge himself on an issue o.. tlie pl"a of non- assumpsit, by proving tliat the agreement was really i ade by liim by the authority of, and as agent for, a third person, and that the plaintiir knew these facts at the time the agreement was made and signed ; as that would violate the rule against allow- ing parol evidence to contradict the written agreement. Higgins v. Senior, 8 M. & W. 834. Such evidence may be given to charge the principal, but not to discharge a party from liability on a written con- tract, on the face of which ho appears to be liable. See Jones v. Littlodale, 6 A. & E. 486 ; Magee v. Atkinson, 2 M. & W. 440 ; Sowerby v. Butcher, 2 Cr. & M. 371 ; Mil i- I ,;| n ■i! n : "''I -til 636 COMMENTARIES ON SALES. [book II. The defendant, a broker, and known by the plaintiffs to be such, signed and sent to the plaintiffs a note of a contract in the follow- ing terms : " I have this day sold by your order, and for your ac- count, to my principals, about five tons of pressed anthracene. . . . W. A. Bowditch." The defendant sent to the purchasers, Messrs. Bloth & Co., a bought note corresponding to the sold note scut to the plaintiffs. The defendant disclosed to the plaintiffs the name of the purchasers before the prompt day. An attempt was made at the trial to prove usage making the defendant personally liable, but failed. The note showed that the sale was mado subject to " one per cent, brokerage." It was claimed for the plaintiffs that the defendant was personally liable as a principal for the price of the goods delivered under the contract. It was contended for the defendant that the note did not import personal liability on the defendant's part. The Common Pleas Division held that the de- fendant was liable ; principally on the ground that he had signed a " contract in his own name without any qualification," and that therefore, " even although in the body of the document there may be some expressions tending to show that he is acting for another, he must, nevertheless, be taken to have intended to bind himself as principal." ^ This manifestly incorrect decision came before Garrett v. Handley, 4 B. & C. 664 ; Bate- mau V. Pliilli{>s, 15 East, 272 ; Pateison V. Gandase([Ui, 15 Eiist, 62 ; Le Fuvre v. Lloyd, 5 Taunt. 749 ; Peiitz v. Stanton, 10 Wend. 277 ; Staukpolo v. Arnold, 11 Mass. 27 ; Sharp v. Lmniett, 5 Whart. 283. In a case to which we have jirevi- ously referred (Bray v. Kettell, 1 Allen, 80), it was held that an agent is not per- sonally resironsible on contracts entered into by him, if it appears that in ])oint of fact exclusive credit was giv.'U to his prin- ciiMiI ; and if the contract i.< in writing, and clear and unambiguous in its terms, the intention of tlie parties riust be gath- ered from it alone, without resorting to other facts and circumstances to vary its construction and legal eflcct. So, in Green V. Kopke (18 C, B. 549), it was held, where a contract in writing for the sale of goods is entered into by one who describes ninisolf as agent, and as making the con- tract "as agent, and on behalf of" his principal, naming him ; that the party so making the contract is not personally lia- ble. In each case it is a question of in- tention, to be gathered from the contract. See further, Wilson v. Zulueta, 14 Q. B. 405 ; Dolricks v. Ford, 23 How. 49 ; Ex parte Hartop, 12 Ves. 349 ; Davis v. McArthnr, 4 Greenl. 82, note ; In re Re- becca, 1 Ware, 205 ; Roberts v. Austin, 6 Whart. 813 ; Owen v. Gooch, 2 Eap. 667 ; Thomas v. Bishop, 2 Stra. 955 ; Leadbitter V. Farrow, 5 Mau. & S. 345 ; Uuseiibury V. Ellis, 3 Johns. 50 ; Stackpole ». Arnold, 11 Mass. 29 ; Hastings v. Lowriiig, 2 Pick. 221 ; Hampton v, Speckenagle. i) Scr. & R. 212 ; Short v. Skipwith, 1 Brocken. 103 ; Uathbone , Budlong, 15 Julius. 1 ; Goodenow v. Tyler, 7 Mass. 36 ; Gicily v. Bartlett, 1 Greenl. 172 ; Corlies v. Gum- ming, 6 Cow. 181; Zacharie v. Nasli, 13 La. 20 ; Mills v. Hunt, 20 Wend. 431 ; Newhall v. Uunlop, 14 Me. ISO; Mauri V. Hefferman, 13 Johns. 58 ; StiibtT v. Hawkes, 5 M. & P. 549 ; Hall v. Huntoon, 17 Vt. 244 : Chase v. Debolt, 2 Oilm. 371; Hunter v. Miller, 6 B. Moii. . Shortridge, 4 Kx. 699 ; West- ropp V. Solomon, 8 C. H. 345. * 7 T. R. 359. The hoMing in Ocorfje V, Clagett is that if a factor who sells under a del credere commission, sells {joods as his own, and the buyer knows notliinj; of anj principal, the buyer may set olf any aemand he may have on the factor against the demand for the goods made by tlie principal. PART VIII.] AGENCT. 589 tained, the principle in George v. Clagett would have applied, and the set-off would have been allowed.^ C, a broker, was authorized by the defendant to buy cotton for liim, but not to disclose his name. C.'s credit not being good enough to enable him to obtain a contract upon his own sole re- sponsibility, he gave the plaintiffs the name of his principal, and bought and sold notes were exchanged between the plaintiffs and C, in which the latter was named as the buyer. C. sent the defendant an advice-note, informing him that he had bought the cotton of the plaintiffs " for him," and the defendant did not repu- diate the transaction. An invoice was made out to C, and, the market fulling, C. was called upon to accept and pay for the cot- ton, and threatened with legal proceedings. Failing to obtain payment from C, the plaintiffs sued the defendant. Held, by the Court of Common Pleas, affirmed by the Exchequer Chamber, that the fact of the defendant's name being disclosed at the time of the contract did not preclude the plaintiffs from having recourse to him ; that parol evidence of the circumstances under which the contract was made, was admissible ; and that the insertion of C.'s name in the contract, though his principal w^as known at the time, ar.d the subsequent demands on C. for payment, did not necessa- rily amount to an election on the part of the plaintiffs to give credit to C, and to him only.'-' Where a contract is signed by one who professes to be signing " as agent," but who has no principal existing at the time, and tlie contract would be wholly inoperative unless binding upon ' 111 Sims '!. Bond, 5 B. & Ad. 389. 393, Lonl Deimian, in delivering the juilijment of the uourt, says: "It is a well-established rule of law, that, where a contract not under seal is made with an agent in his own name for an undisclosed priiiL'ipHl, either the agent or the principal niiiy sue ujwn it ; the defendant in the latter case being entitled to be placed in the same situation, at the time of the tliselosuro of the real principal, as if the agent had been the contracting party." But in Turner i;. Thomas, L. R. 6 C. P 610, it was held, that the statute of set-off, as extended by the English Bankruptcy Act, 1860, did not apply as to the two prin- cipals in a case of unliquidated damages. *>ee Hudson v. Granger, 5 B. & Aid. 27 ; Rose r. Hart, 8 Taunt. 499 ; Ex parte Deeze, 1 Atk. 228 ; Chase i;. Westmore, 5 M. & S. 180 ; Smith i-. Hodson, 4 T. R. 211 ; Olive V. Smith, 5 Taunt. 59. » Calder v. Dobell, L. R. P C. P. 486. The rule is laid down by Parke, B., in Higj,'ins V. Senior, 8 M. & W. 834, 844, as follows: "There is uo doubt that where such an agreement is made it is compe- tent to show that one or both of the con- tracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one lia'sJ to, and charge with liability o'l the other, the unnamed princi|)als." [''Unnamed princi|>als there meaning principals not named in the contract itself." Per Bo- vill, C. J., in Calderv. Dobell, L. R. « C. P. 490.] "And this whether the agreement he or be nut '•'tjuired to be in writing by tht statute ' i frauds ; and this evidence in no vvay " .itradicts the written agreement. t >li. Barrow v. Dyster, 13 Q. B. Div. 635. It is noteworthy chat in this case the con- tract was for foreign principals, bnt this did not at all atfout tiie construction of the contract, as it suiHcicntly appeared on the face of the contract that it was made by brokers tor principals ; and in such case it does not at all affect the construc- tion of the contract as regards the lia- bility or non-liability of the agent, whether the principals are home or foreign princi- pals. The arbitration clause in Barrow V. Dyster, 13 Q. B. Div. 635, constituting the brokers arbitrators, was equivalent to an express provision in the contract tlmt the brokers were not to be principals, not- withstanding the custom ; and tiiiit, there- fore, the custom was not t«; Iks im-nrpo- rated into the contract, a contract wliich it was competent for the parties to niuke. On this ground the soundness of the case would seem scarcely to admit of doubt. * Neilson i;. James, 9 Q. B. Div. 546. See Rudge v. Bowman, L. R. 3 Q. B. 689; Bowring v. Shepherd, 6 Q. B. 309. Sea also cases bearing on the subject of this section in succeeding sections in this Part. PART VIII.] AGENCY. 545 The pliiiiitiff, a merchant in London, gave orders to the defend- ants, coiumiHHiun agents in Ilong Kong, to purchase for him a quantity of a certain ivind of opium. The defenduuts, upon such orders, purchased and shipped to the plaintiiT, opium which they erroneously supposed to be of the description ordered, but which was really of un inferior description. Tlie plaintilT sought to re- cover as damages in an action aguunt the defendants the difTor- ence between the value of the opium ordered and that of the opium actually shipped by the defendants, on the ground that the rela- tion between the defendants, as commission agents, and himself, was that of vendor and vendee of the opium. Ihld, that the true measure of damages was not the diflerence between the value of the goods ordered and that of those shipped, but the loss actually sustained by the i)laintitr in consequence of the opium not being of the description ordered.' The defendants were brewers, and employed F. as their " malt- ing agent." The regular course of business between the defend- ants and F. was as follows : F. occupied the malting premises, and took out tlio necessary licenses. It was his duty to buy bar- ley in his own name, as principal, for cash ; to send in to the defendants certain periodical accounts of the barley so b^jught from time to time, and the prices of the same ; to submit samples U the defendants, and if the barley was approved of by them, to • Ciissaboglou V. Oiblis, 9 Q. B. Pi v. :}M Tliu court, in tlcliviTiiig jiulgiiR'iit, s.r : "Tlie pliiintiir seeks to treat tlie do- iiiiiants ns veiidurs of the opiiiin to liiiii, anil to hold tliein respon.sible for (hiiiiiigcs as for a breach of warranty of the kind and ([uality of the goods, in wliieh case the measure of damajjes wouhl he not merely the ditVerence between the cost to him (if the goods and tiieir real value, but the ilillVrence between th(' value of goods of the description sold and of tlic goods ai'tiially sent. A single illustration is surtiiient to show the fallacy of the jilain- titrt) contention, Suiipose one instructs a comiiiissidn agent to purchase for him a rcry valuahle original pliturc if it should he olfered for sale, and the agent carelessly hills for a picture under the belief that it is the original, and it is knocke(l down to bim lor say £100 ; and he informs liis eni- i'loycr that he has bought the picture for that sum, and his ('mplnyer remits the money, and the picture is forwarded, but upon arrival is discovered to lie merely a fopy. The employer rejects the picture and it is sold for £90. Now, suppose that if it hnil been the original jiicture it would have heen worth £1000. Is the ageiit liable for £[tlO damages, or only for the actual TOL. I. 35 loss caused to his emiiloycr through his want of care and skill ! It seems to ua that the latter is the true ineas\ire of dam- ages, and, therefore, that our judgment should be for the defendants." Ihid. ]>. '2'J4. The case was taken before the Court of Ajijieal, on appeal, when the judgment of the Queen's ibnch Hivision was sustained, s. c, vain. Cassaliogloii v. Gibb, 11 t,>. 15. l»iv. 797. This is nn- othi'r case where the relation of homo agent and foreign principal existed, and it was strongly urged that it iK-camo, therefore, in etfcct a relation between vendor anil vendee, and that the agent was liable as a jaincipal as such ven- dor. I'>ut both courts held the reverse, and construed the contract in precisely the same way as though it had no ref- erence whatever to a foreign principal. But, of coin-se, as in Turner v. Liverpool Dock Trustees, 6 Kx. iii'i, it is competent for one acting as agent — for instance, in purchasing goods for his principal, and paying his own money for the goods — to assume the position, and be remitted to the rights, as to stoppage in trnnsilii, etc., of a venilor or qtinsi vendor. Feis(? v, Wray, 3 Kast, 93; .Silfken i;. Wray, 6 East, 371; Tucker v. Humphrey, 4 Biug. 516. ^ l^r-i f . : ! II! S\ I II I it; 546 COMHENTABIES ON BALES. [book II. malt it and deliver the malt to the defendants, receiving a com- mission upon the quantity of barley steeped. The quantity of malt required by large brewers being very great, the brewers, and not the malting agents, provide the capital for the purchase of the barley. In the present case, the defendants kept accounts at cer- tain provincial banks, upon which F. was empowered to draw, and from time to time the defendants paid in lump sums to the credit of those accounts, in accordance with current requirements, as sliown by the accounts sent in by F. of barley purchased, but these sums were not intended to, nor did they represent any pay- ment for any specific bar?3y, F.'s business was to act as malting agent for the defendants exclusively. The defendants paid the duty as the same became payable upon the malt in F.'s premises. F. had fraudulently departed from the regular course of business. Instead of buying barley for cash and applying the balances at the provincial banks in payment for the same, he had been in the habit of sending into the defendants fictitious accounts of barley purchased, misapplying the sums paid in for his own purposes, and providing the malt needed for the defendants' purposes by pur- chasing barley or ready-made malt upon credit. He likewise from time to time sold barley which had been brought on to the malt- ings to raise money for his own purposes. The defendants be- lieved, in consequence of the fictitious accounts and other false representations of F., that barley was from time to time purchased for cash, in accordance with the regular course of business, and on the faith thereof continued to pay sums of money into the banks for the purpose of paying for such barley, which they be- lieved were so applied. F. subsequently absconded, leaving upon his premises barley to the value of about £22,000, and malt to the vilue of about £35,000, upon part of which duty had been paid by the defendants. The value of such malt and barley was less than the amount drawn from the banks and misappropriated by F. He absconded, and thereby committed an act of bankruptcy. Between the time of F.'s absconding and the time when lie was adjudged a bankrupt, the defendants seized the barley and the malt left on his premises. The plaintiff, trustee in F.'s l)ank- ruptcy, sued the defendants for the value of the same. Ifold, by the Queen's Bench Division, that the plaintiff could not recover, on the ground that iihc relation between the defendants and F. was that of principals and agent, and that the property in the bar- ley and the malt was not in the order and disposition of F. as the reputed owner thereof, it being notorious that " malting ajrents " are in many instances not the owners of the barley and malt on their malting premises ; and also on the further ground that the PART VIII.] AGENCY. 547 moneys advanced by the defendants to provide for the purchase of the barley were impressed with a trust ; that even if the bar- Icy and the malt left on the premises of F. were not bought in ac- cordance with the authority fj;iven to him, and the legal property in the same was not vested in the defendants, but in F., neverthe- less F. was a trustee for the defendants to the extent of the sums advanced by them, of such barley and malt, the same being either the product of the trust-moneys, or in substitution for the barley in payment for which F. ought to have applied such trUst-moneys ; and F. could not have set up his own breach of trust or have been heard to allege that the barley was bought otlierwiso than ac<^ord- ing to the authority given to him by the defendants ; and that the plaintiff, as F.'s trustee in banki .;ptcy, could not in this respect stand in a better position than F. himself.^ 1 Harris v. Truman, 7 Q. B. Div. 340. Ou appeal to tliu Court of Appeal, 9 Q. B. Div. 264, from tlie Queen's Bench Division, thu jiuigment of tliB court below was sus- tained, the twc {.oints involved in the case k'iiig thus disiH)sed of by Lord Coleri'lfje, CI., who says: "The judfjment of the court below is founded mainly on two grounds. The first ground is of this na- ture, — When large amounts of money are intrusteii to a man to buy goods and to carry ''ii a business, he becomes a trustee lor the person to whom the mone;.' be- longs, and the proceeds of the money are affci'ted with a trust. This is an old and wi'll-established doctrine in eijuity : it ap- ]ili('s where the relation of principal and agent, in the ordinary sens" of the words (iocs not exist. Acconling to this doc- trine, where a con!idenc(! is created be- tween two persons, and wliere the one receives the nioney on the faith that he will do a certain thing, and leads the other who has given the money tn under- stand that the thing has been done, as Itftwi'i'n these two peisons it is con.sidered ill "ipiity to have been done. Therefore the person receiving the money is bound to hold what he gets for the benelit of the person giving the money. I think that this ground is i{uito right. I think that the si'iond ground of tlie jutlgment of the Queen's llench Division is right also. A person placed in a fiduciary relation which the judges of the Queen's Bench Division have held that the defendants are entitled to su'ceed. As the agent could not have deni(!d the fidu- ciary obligation, and would have been estopjM'd from setting up the facts as they actually existed, his trustee in bankruptcy can be in no better position than himself." The trustee in bankruptcy or executor, who derives the property by bankruptcy or througl) death, can be in no better plight than the person he represents would have been, and holds it when it comes to his hands in trust for and a|<|ilieal)lc to the same purposes as the person he reore.sents held it for. Tavlor t-. I'lumer, 3 M. k S. .'■.(52 ; Oodfrey v. Furzo, 3 P. Wm.s. 18t» ; Thnmpson v. Giles, 2 B. k V. 422 i Frith r. Cartland, 2 H. & M. 417; In re Hal- letfs Kstate, 13 ("h. Div. 6y6, 707. If an agent or trustee mixes trust iiroiierty with his own so that he is unable to distinguish which is his own, the whole will be treated as trust pro{)oity, subject to any eijuitable claim which the agent or trustee may be able to establish. See Spcncc i: I'itioii Murine Ins. Co., L. 11. 3 C. P. 427, 437, In. re Hallett's Estate, 13 Ch. Div. 719; Pennell r. Deffell, 4 De U. M. & 0. 372. I : 1, . ^')| ! t; 1 (fi 548 COMMENTARIES ON SALES. [book II. The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal, after that un- discovered principal is known to the creditor, is not a conclu- sive election by the creditor to treat the agent as his debtor.^ In Curtis v. Williamson,^ B. purchased certain goods of the plaintiffs ; B. being the agents of the defendants, his undisclosed principals, B. became insolvent, and the plaintiffs then became awane that the defendants were principals. With this knowlodge, the plaintiffs' clerk sent an affidavit of proof of the debt duo to them against the estate of B., whose affairs were being liquidated by arrangement. The plaintiffs endeavored to prevent tlio affi- davit of proof from being filed, but were unsuccessful. The jilain- tiffs having brought this action, the defendants pleaded never indebted. At the trial before Quain, J., a verdict was entered for the plaintiffs ; leave being reserved to the defendants to move to enter a nonsuit. Tlie court were of the opinion that it would be going much too far to hold that all that was done in this case by the plaintiffs was in point of law sufficient to constitute a binding election to deal with the agent as alone liable, and to abandon all right to take proceedings against his principals ; that what had taken place might, in an appropriate case, constitute witli other facts some evidence of election to be submitted to a jury; but that what had taken place could not be regarded in itself as a legal bar to proceedings against the defendants. The verdict, accord- ingly, was sustained.* » Curtis V. Williamson, L. B. 10 Q. B. 67. * In delivering fmlgnient, Quain, J., said: "There can oe no doubt that, in the absence of any alteration of the ac- count to the prejudice of the prin(-ipals, the plaintitTs, on discovering that H. was merely an agent for the defendants, had a right within a reasonable time (Sniethurst V. Mitchell, 1 E. & K. 622) to elect to proceed against the defendants (Thonip- Hon i". Daven|K)rt, 9 B. & ('. 78, 8H) ; un- less in the mean time, with full knowledge as to who were the principals, and with the (Kiwer of clioosing between them and the agent (Addison v. Gandaseiiui, 4 Taunt. 574 ; I'aterson v '"•'.ndaspqui, 15 £ast, 62), they had distil, tly and un- questionably elected to treat the agent alone as their debtor. " Curtis v. Wil- liamson, L. K. ID Q. n. 59. See Colder V. Uobcll, I.. I{. 6 C. P. 486 ; Priestly v. Fernie, 3 II. & C. !»77. In Thompson v. Daven|)ort, 9 B. & C. 78, 86, Lord Ten- terden says: "I take it to be a general rule that, if a person sells goods suppos- ing at the time of the contract he is deal- ing with a principal, b; terwanls dis- covers that the person with whom In; has been dealing is not the principal in the transaction, but ajjent for a third ihtsoii, though he may in the mean tiiin' have debited the agent with it, he may afti-r- wards recover the amount from the real principal; subject, however, to tliisijiiali- tication, that the state of the ai'i'oiiiit he- tween the principal and the aiji'tit is not altereil to tiio prejudice of tli'' iiriiiii|Kil. On t\w other hand, if at the tim^ of tho sale the seller knows not only that tli<> person who is nominally deal in:,' with him IS not principal but ng-nt, and also knows who the principal really is, and, notwith- standing all this knowledge, clioosis to make tiie agent his debtor, dealiii'.^ with him and him alone, then, accorilinu to the cases of Addison v. Oanilnseiiui 1 1 Tiiiiiit 674), and Paterson v. Gandaseipii (l.'i K;i^t. 62), the stdler cannot afterwaiiN. on th- failure of the agent, turn round aii'i rhurfi: the principal, having once made liis ilec- tion at the time when he had tin' powr of choosing lietwcen the one ami the other." See .Smyth v. Anderson, 7 C. B PART VIII.] AOENCT. 549 The case of Hollins v. Fowler* is an interesting and impor- tant one, the careful study of which cannot but be instructive to the student of law. It is an appeal to the House of Lords from the Exchequer Chamber, affirming the judgment of the Queen's Bench. It is interesting in more respects than one. The report- er's first head-note to the case is, as a proposition of law, not a little startling. It is as follows : " Any person who, however mno- ccntly, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conver- sion." This language is found in the judgment of Lord Chelms- ford alone, and nothing at all equivalent to it is found in the judgments of either of the other members of the House, nor in the opinions of the judges who were called in for consultation. It contains two very doubtful propositions, viz.: first, as to whether a bond fide purchaser of goods obtained fraudulently from the owner is necessarily guilty of a conversion. Entirely independent of the question of sale in market overt, it is quite clear that if A. sell goods to B., — not to C. pretending that he is B., as in Hard- man V. Booth,^ and other cases ; but bond fide sells to B., — but, through the fraud of B. in making the purchase, the sale is void- able at the election of A. ; if C, without knowledge of the fraud, purchase the goods from B. before A. has avoided the sale, it is quite clear that the property passes to C, and that, though he dispose of the goods " for his own benefit," he is not " guilty of a conversion." * As far, therefore, as Lord Chelmsford's proposi- 21 ; Heald v. Kenworthj', 10 Ex. 739 ; Thompson v. Davenport, 9 B. & C. 78. In Priestly v. Fernie, 3 H. & C. 982, the following limitation is named hy Bram- well, H. : " If this were an ordinary ease of principal and agent, wiiere the agent, having made a contract in his own name, has Ix'i-n sued on to judgment, there can be IK) (linit)t that no second action would be maintainable against the principal. Till' very expression that where a contract is so m;ido the contractee has an rhcUon to sue agent or principal, supposes he can only sue one of them ; that is to say, sue to jiulgment. For it may be that au ac- tion against one might be discontinued, and fresh proceedings bo well taken against the other. Further, there ia •buiulance of authority to show that »liere tiie situation of the principal is altered by dealings with the agent as principal, the former is no longer subject to an action." See Morgan ». (.'onchn;in, 14 C. B. 100 ; Bottomley v. Nuttall, 5 C. B. X. 8. 122 ; Stnvth r. Anderson, 7 C. B. 21; Leggat v. Ueed, 1 C. & P. 16 ; Edwards v. Smith, 12 J. B. Moore, 59. See ;)o,«^ note 1 to j). fttJl. » L. R. 7 II. L. 757. « Ih. p. 71I.5. » 1 II. & C. 803. * A fraudulent sale is voidable only, and the projierty vests in the fraudulent vendee till the vendor d.jcs some act to disattirm the transaetion, and it is too late to do so when the vendee has trans- ferred tiie goods to an innocent purcha.ser. Load V. (Jreen, \:t M. & W. 216; White V. (Janlen, 10 V. H. 919; Stevenson v. Newidiam, 13 C. B. 303; Parker v. Pat- rick, .5 T. 1{. 175. It is essential, how- ever, for the ojiemtion of tliis doctrine, that there shjuld have l)een a contract of sale by means of which the property was obtained from the owner, for if the goods were (.Dtained by a mere fraud without any contract to supjiort the transfer of the iM-operty, there was no title in tlie frauauleut transferee which he could transfer to a third party. Kingsford v. Merry, 1 H. & N. 603, overruling 8. c. 11 Ex. 677; Peace v. Glouhec, 3 Moo. i' ■ ( [.if .«!• m I Nf n i' w 550 COMMENTARIES ON SALES. [book II. tion ie a controversion of this, — and it requires a good deal of hypercriticism not to make it so, — it is much too broadly stated. Mr. Justice Blackburn's somewhat analogous statement,^ " If there has been what amounts in law to a conversion of the plaintiffs' goods by any one, however innocent, that person must pay the value of the goods to the real owners, tl'o plaintiffs," is a much safer statement. The latter part of the clause quoted from Lord Chelmsford's judgment, that such a disposition, " whether for his own benefit ^r that of any other person," makes the party " guilty of a con- version," 2 is, also, open to grave question. A proposition so P. C. N. s. 556; Hardinan v. Booth, 1 H. k C. 803; Gurney v. Ik-hreml, a El. & lil. 622 ; White v. G&nlm, 10 C. B. 919 ; I'aikL-r v. Patrick, .5 T. H. 175; Stevenson v. Newman, 3 Cauip. i)2; Bar- row V. Coles, 13 C. B. 285, 302; Patten V. Thompson, 5 M. & S. 350; In re We.st- zintiius, 5 B. k Ad. 817; Dyer v. Pater- son, 3 B. & C. 38; Load v. Green, 15 M. 6 W. 219; Wright v. Lawes, 4 Esp. 82; Sheppard v. Slioolbred, Car. & M. 61. lu this last-named case, i^ord Abiu}?er said ; •' The case propfised by the plaintiffs is, that where the g' ods are fraudulently ob- tained and sold, no property iiasses to the vendee, and such is undoubtedly the fact ; but Sir T. Plumer's Case (3 M. & S. 562) shows, that when the orij^inal owner con- sents to the transfer, that etfect does not follow. If ^^e goods in this case were obtained by fraud, yet, if the defendants were not ])rivy to that fraud, I am of opinion that they are not liable in this action." Where a sale of goods is pro- cured by fraud, the sale is not void, but voidable by the vendor, and until it is so avoided, the vendee may f.ive a jterfect title to a boHil fide p\ir(:haser without notice of the fraud. Howley v. Bigclow, 13 Wend. 570; Williams v. Gi'.".-n, 6 Oratt. 268; Thompson v. Lee, 3 W, k S. 479. See Robinson v. Dauchy, 3 Barb. 20; Jackson v. Summerville, 13 Pa. 8t. 359, where, in the one case, the purchase, from the fraudulent holder, was not Made bondfidc, and, in the other case, -ne pur- chase-money had not been paid to the fraudulent seller. See, further, Ilimnna V. Burton, 20 L. J. Zk. 342 ; Poweil v. Hoyland, 6 Ex. 67. » lb. at p. 76 i. " In this goods, or intrusted with their authoiity." Brett, J., in the Excheiiuer Chamber, thus states the law : " Wliere one, with intent to make them his own, actually tak'^s us his own, or actually destroys or actually uses as a man uses his ')wn, the gu(»ls of another, it is not ditiicult to dctenuii.ii that he has done an act iiiteiitiunaliy iu. consistent with the dominion of any one but himself as real owner of the ;;o()(k and has been guilty of a wrongful conver- sion of the goods. It is ea.sy to uni'..,i- stand how it was held that in such ca.^'s the innocence of the defendant, in the sense of liis not knowing who the real owner was, or that the person from whom he immediately took the goods was rot tiie real owner, was immaterial ; the di'fi'niknt has taken the goods with intent that tiiey should be his owh. or has used tlu'ni u.s if they were his own. Such acts must neces- sarily be contrary to the rights of a real owner who has not authorized him so to take or so to use. So if one be in po.sses- sion of goods undei thf; belief that he has a right to mair.cain possession, and thi'V be demanded of hiiu and he aljsolntely refuse to deliver them, he has intention- ally exercised over them a dominion in- tentionally inconsistent with the alleged right of him in whose name tln-y were demanded, and in such case it is nut ililR- celt to say that the defendant, if the ■iemand was made on behalf of the real uwner, has been guilty of a wroni^fu! eon- version. But it is where one has ileait with goods as if they were his own with- out having had jmssession of tlnin, or where one has taken gomlsinto lii.s jiossei- sion, but not with intent that they siiouU bo his own, or without reference to their being the property of one jiorson or ot another, or having goods in his possession has not used them as his own, ami where PART VIII.] AGENCY. 551 widely stated as that is quite wide enough to cover the case of an agent acting in such disposition for his principal ; a position for 110 demand liaa been made on him for a tlelivery of the cooils to or on behalf of the real owner whilst they were in his, the defendant's, possession, that the real ditti- cultics ari.se. A» to the tirst, I think it muy be rightly snid that in no case can a iiiiiu be guilty of a conversion who has uut by hiniseli' or his ugunt had |H)ssi'ssiou of the goods in dispute. A man mi^lit, I apiirehend, be guilty of a conversion, tiiuugh he had had possession only by his n(!i'iit ; as if he hud authorized an agent to tiike goods for him, or to use or d«- ' ■ y theui, and the agent had obeyed his . . a- mands ; but if the order had been Liven and had not been obeyed, I appreueiid tlwit the mere order would not be a con- version. So if one enters into a contract to sell, as if they were his own, the goods of another, whether the form of the con- tract be such OS would assume to pass the property at once, or such as could only pass the pro[)erty on a subsequent deliv- ery, I apprehend that the mere fact of making such a contract is not a conver- siuii. . . .On the whole, I come to the conclusion that a broker who, acting only as such, negotiates a bargain of jiurchase and sale and |)asses a delivery order is not tliereby guilty of a conversion, so as to be liable in an action of trover; and, that, ill this case, the usjiortation, which we are bound to consider, according to the leavssession of the goods of a ])erson who has Ix'en frauduh'Utly deprived of them, and disposes of them, whether for his own benelit or that of any other per- son, is guilty of a conversion." This would not only cover the case of the rail- way company put by Blackburn, J., but also the case of the miller who had honestly ground oats and delivered the meal to the iierson who brought the oats to him, before lie had even heard of the true owner ; and the other cases of a i)acker, a warehouse- keeper, and an innkieper, also referred to by Blackburn, J. in fact, on the strict holding of the case, on the liiuling of the jury, it would be difficult to see if the defendant were correctly held liable for a conversion, why his clerk who obtained the cotton on the delivery order, or the carter who carted it to the railway, or the cotton manufacturer's men " who assisted in turning the cotton into twist," would not all *>•! e(|ually as liable. Against this holding is, obviously, another of the judges, who, distorting the finding of the jury, held that the defendant was liable ; Mr. Justice Mellor, who says: "If, by reason of the finding of the jury, I must eliniinate from the facts that the plaintiff in error bought the cotton having at the time no principal, and substituti- for it a statement that he bought the cotton aa agent for M. & Co., and merely j'assed the delivery order and tiaiisiiortetl the cotton as their agent, in the usual C(uirse of his business as broker, then, 1 think, that the defendant would not Im> liable in this action, and the remedy of the plaintitfa would be against M. & Co., who actually converted the cotton by .spinning it into yarn and selling it." 11'., p. 77.'>. And yet the leave reserved, pursuant to the finding of the jury, assumed that the •' fendant had "acted throughout honestly, in the oiiliiiary course of business, having bought and paiil for the cotton oiilj/ aa agent fir M. A Co." and hud "dm II iitth thfi goods onhi as agfnl to furvaid than." Fowler V. Hoilins, L. K. 7 Q. B. 620, note(l). The cases in refutation of the second portion of Lonl Chelmsford's projiosition are quite numerous. In Mires v. Solebay, 2 Mod. 242, it was held that trover will ^r II i'- \ ! iK n f r I I »i 111 . ti i I'. - \-\ 1 ■ ' 1 '.; , ■ ■ ! ■'' ■ .i 'in ■ ■• 552 COMMENIABIES ON SALES. [book II. which Hollins v. Fowler* is very far from being an authority. True, among the opinions of the large number of members of the House, and judges assisting, there were some opinions that would not lie a^ainat a servant for an unlawful intermeddling with the goods of any jierson by the command of his master unless suuh intermeddling amounts to a trespass ; and then an action of tresiwiss will lie against the servant, though done by the com- mand of the master. Following this ease, in Alexander v. Southey, 5 B. & Aid. 247, where goods, the proi)erty of the iilaiiititf, had been, by the servants of an iusuraneo company, carried to a warehouse, of which the defendant, a servant of the company, kept the key, and tlie defendant on l>eing applied to by the plaintilf to deliver them up refused to do so without an order from the company, it was held tliat this was not such a refusal as amounted to a eon- vereion of the goods by the defendant. So, by Coles v. Wright, 4 Taunt. 108, a servant delivering goods by his master's order could not bo said to have converted those goods ivs against the assignee in bankruptcy of his master. In (ireenway i;. Fisher, 1 C. & P. 190, it was held that a packer having in the exercise of hi^ business shipped g)ods under the orders of a pereon who employed him for that purpose, was not guiltv of a conversion. In Lee V. Bayes, 18 C. B. 609, Willes, J., refers to tiie railway case named by Blackburn, J., where trover was brought against the Southeastern Railway Com- pany for certain timber, by the assignees of a bankrupt, and the Court of Flx- chequer expressed a strong opinion that the action wonld not lie, the timber hav- ing been handed over by the company, pursuant to the directions of the bank- rupt, before they had any notice of the title of the assignees. In lloss v. John- son, 5 Burr. *8'25, it was held that though there might Ite an action on the case against a wharfinger for goods which had been stolen from him, yet trover would not lie against him. Lord Mansfield said: " In order to maintain trover there nuist be an injiirioua conversion. This is not to bo esteemed a refusal to deliver the goods. " The principle laid down in Fouldes v. Willoughby, 8 M. & W. 540, is that a mer? wrongful asportation does not amount to a co.iversion unless the taking or leten- tion of the chattel is with intent to con- vert it to the taker's own use or that of some third person, or unless the act done has the effect of destroying or changing the quality of the chattel. In this case the master of a ferry-boat was held not liable in trover for unlawfully setting a passenger's horses ashore, although the owner never recovered them. In Drake 0. Shorter, 4 Esp. 165, where the defend- ant took a boat belonging to the plaintilf for the purpose of extinguishing a tire, and the boat was sunk and lost, Liird EUenborough said : " Th.it what might be a tort under one circumstance might if done under others assume a different ap- pearance. As, for example, if the thinj; for which the action was brought, and which had been lost, was taken to do a work of charity, or to do a kindness to the party who owned it, and without any intention of injuring it or of converting it to his own use, if under any of these circum- stances any misfortune hajipened to the thing it could not be deemed au iIU'),'al conversion ; but as it would be a ju:«tiK- cation in an action of trcs])as8 it would be a good answer to an action of trover." It is not every wrongful act depriving a party of the possession of his goods that amounts to a conversion. Hence, in Tlioro- good V. liobinson, 6 Q. B. 769, where plain- titt's goods and servants were on land which defendant recovered in ejectment, and defendant on entering under the writ of possession turned plaiutitf's servants otr the land, and would not let them re- main for the purpose of removing the goo>s whi^ '. show the owner's right to he undisputed, even with injurious con- sequences to the owner, does not amount to a conversion ; as where goods an? thrown overboard to save a ship, or where a work of charity or kindness to the owner is intended. Nelson v. Whetmore, 1 Kich. (S. C.) 318, 322; Hoover v. Ale:;nmler, 1 Bail. 510; Quay ». McNinch, 2 Mill, (l-a.) 78 ; Bell v. Lakin, 1 McMul, 364. See, further, Needham v. Bawbone, 6 Q. B. 771, note b ; Simmons v. Lillystone, 8 Ex. 431; Heald v. Carey, 11 C. B. 977; Lan- cashire Wagon Co. v. Fitzhugh, 6 H. & N. 602 ; Vaughan v. Watt, 6 M. & W. 492; Isaac r. Clark, 2 Bulst, 312; (!rein t>. Dunn, 3 Camp. 215, n. ; Bushncll i'. Mil- ler, 1 Str. 128. 1 L. R. 7 11. L. 767. PABT VIII.] AGENCY. 553 go that far, yet the general consensus of opinion wds the other way, and the conclusion as to the defendant's liability in the case was only reached on the assumption that, in the transaction, he bought the goods and disposed of them, not in his capacity of agent for another, but as a principal. We think, therefore, that as au ana- lytical note of what the case really holds, it is, on both points, too broadly stated, even though it is a literal quotation of language used by out of the members of the House who took part in the case. The c ise otherwise, though decided by England's ultimate court of appeal, the House of Lords, is fairly open to criticism, and the correctness of the decision is extremely doubtful. The respond- ents (plaintiffs below) * Fowler & Co., of Liverpool, were owners of cotton. B., pretending to be the agent of S., got possession of the cotton under a fraudulent purchase, as a saie to S., and offered it for sale to the appellants, brokers, on Dec. 23, at Liverpool ; who purchased it. The appellants had on that morning received a message from M. & Co., cotton 8{)inners (for whom they were in the habit of purchasing cotton), stating that M. would bo in Liverpool to purchase coiton through the appellants, who had bought the cotton from B., believing it to be of the sort which M. «fe Co. would require. On examining the cotton, M. agreed to take it. The appellants were in the habit of thus buying cotton in the belief that their customers would take it. If any particu- lar customer did not take to the cotton thus speculatively pur- chased for him, the appellants disposed of it to some other cis- tonier. On the latter part of Dec. 23, B. received a delivery order from the appellants, as follows : " Please deliver the bearer . , . cotton, etc., bought this day for M. ii granted, as it clearly should have been, the whole difficulty in the case would have been avoided, and we would not have had the bad law which, as applied to the actual, express finding of the jury in the case, we cannot but think the case contains. But the Court of Queen's Bench, improperly, we think, instead of granting the plaintiffs' application for a new trial, disregarding, or rather, distorting the finding of the jury, by which, adopting and aflirming their an- swers, they were bound ; entered the verdict for the plaintiffs. By this course the courts of appeal were concluded by the find- ings of the jury in their answers to the questions proposed to them ; und while even the House of Lords were excluded from disregard- ing the findings of the jury, but were bound by them, we think that their decision rests on a complete distortion of the findings of the jury ; and that, while independent of those findings, the defendants clearly were liable for conversion, we do not, notwith- standing the ultimate holding in the case in the House of Lords, think it good law, that where parties buy goods only " as uf/ents in the course of their business as brokers,'^ and " deal with the i/oods only * as agents for their principals,^' that they are liable in trover for conversion ; and, notwithstanding the erpress holding of the House of Lords in the case that thei/ are, we quite confidently submit, that the whole ratio decidendi of the case itself is, that they are not. And we submit further that their so expressly hold- ing was the result only of a comjdete and utterly unjustifiable |)erversion of the distinct, express finding of the jury in the ease. We think the differing opinion of the judges who advised against such holding, the better one ; and that the holding of the House of Lords, aftirming the judgment of the Queen's Bench "that the de- fendants in effect bouyht as principals, and would have been liable to B. as vendees, and having dealt with the cotton as if the prop- erty was in th m, by assigning it to M. & Co., thoy were liable to the plaintiffs for a conversion on its turning out that no property liad passed from the plaintiffs to B," while perfectly good law on the facts of the case, independent of the finding of the jury, is ut- terly inconsistent with the exi)ress finding of the jury, that the defendants did not buy the cotton " as principals," but bought it " as agents," and " dealt with the goods only as agents for their principals," But for the deliberate holding of the House of Lords (to question which is often, with sycophants, no matter how trans- ' Sec the questions, as stated by Lord pears as wo have here quoted it. L. R. 7 Chehnsford, wiiere the word "only" ap- 11. L. 793. : i 1 .. " , i ! t? i i ■■ I' ' .. . '11! 650 COMMENTARIES ON BALES. [book II. PABT VIH parently bad the holding may bo, deemed presumption *)> it would seem almost a waste of labor and space to insist upon anytliini,' so palpable. And although Lord O'llagan assented to the hold- ing of his colleagues in the House, he did so (while adniittiii'! that they were bound by the findings of the jury) on the jrrouiul that the jury did not mean that the defendants in their ui;eucy were not acting " only as such," against the express langua;,'e as we have quoted it from Lord Chelmsford. And we think that the better opinion of Lord O'Hagan was represented by bis hesi- tancy in agreeing with his colleagues, rather than in his uirreeinir with them. On that point he says : " Tiie real dilhculty wliicli embarrasses decision has arisen on the findings of the jury, and the form of the reservation by which, properly understood, we are bound to abide. And uncpiestionably, although that view d(X'8 not appear to have been pressed in the Court of Queen's Ijciich, 1 have felt the force of the objection founded on the (indings ; and I have doubted whether some of the Judges in the Exchequer Cham- ber were not right in holding themselves coerced by the verdict to differ from the learned judges of the Queen's Bench, with whose coneluaion they would otherivise have concurred." ^ And it must be borne in mind that the House of Lords, in holding that the defendants, who, according to the finding of the jury, " bought the cotton in question as agents in the course of their business as brokers," and " dealt with the goods only AS AGENTS to their principal)*^' *» held tb^t, this language did not mean " only as such " * agents, but was open to liiu construc- tion that they did not buy as agents, but bought as principals; and it is only on the absurdity that parties who " bought only as agents," did not buy " only as such " agents, that the case can be sustained. Notwithstanding such holding, we state the law advisedly, from the case itself, that, as in the facts of the case it- self, the defendants bought and dealt with the goods as principals, and were thus liable for a conversion on those facts ; but, with reference only to the finding of the jury, notwithstandiiiLr the manner in which that was distorted, one who buys the goods and deals with them only as an agent, as the jury found the defendants did, is not a principal and is not guilty of a conversion, nor liable in trover, and the case so far as it holds contrary to this is, un- questionably, wrongly decided, according to the decision uf the House of Lords in the case itself.** * A very emphatic intimation was made in tlie I'livy Council the other day, in the Bishop of Lincoln's Case, as to the right of reversing wrong decisions, whether of the Privy Councu or of the House of Lords. » Hollinsr. Fowler, L. R. 7 H. L. p. 800. ' Ibid., at p. 793. * At p. 800. » Scf Fowler V. Hollins, L. R. 7 O- B. 616, at p. 620, where the terms ol the leave reserved assumed, in acconlauce with PART VIIT.] AOENCT. 667 Robinson v. MoUoU * is another interesting case, in which a similar conflict took place in the opinions of the judges as churac- terizetl Ilollins v. Fowler." While, however, we are very stronfjly uf the opinion, as we have shown, that the latter cumv was nnally decided by a complete perversion of plain English, and is, as it was decided, of extremely doubtful authority, Robinson v. Mollett, we think, was decided with uncjuestionable correctness. The case was tried before Bovill, C. J., when a verdict was taken for tlie plaint i IT, subject to leave leserved to enter a nonsuit. In the Com- mon I'leas,** the judges li.ninjr equally divided, the verdict was sustained. On .appeal, the judges in the Exchequer Chamber* being also e(iually divided, the judgment of the Ccmimon Pleas was aflirmed. On api>eal to the House of Lords, the judges were till- fiiidiiif^ of the jury, that the defeiul- iiiits bud "acted thruiigliout honestly, in tliL- ordiniiry course of business, having bourjht and puid for the cotton om,y as AtiKNTs fur Si,, and having dealt with the goods ONLY AS ACIENI'S to forward thrni ; " and tlie (|uestion wiis, under such an iis- Niiiued state of facts, whether the dflcnd- iints were nnswcrahlc for the vahic of the cotton as having; converted it to tlieir own use ; " the delciidanls to Ite at lib- erty to argues if necessary, that the sale by IJayley, under the circumstances, pave u good title to a bimd fide iiurchTscr for value without notice." The rule wiis moved in tlie t^necn's Bench on three grounils : 1. That the verdict was against tlie evidence; 2. Misdirection; 3. On the point reserved. The court refusal tlie rule on the Jirnl and secoiul grounds. As, on principle anil authority, the case is not ar<;uable on the ground tiiat H., to wlioni 110 projH'rty iiad passed, could, under the circumstances, give a good title to ani>ther, the ease went to the Kxchef|uer t'hamber, and to the House of Lords, iiatnpcred with the assumption — the very basis of the leave reserved — that the defendants had " bougiit and paid for the cotton onhf as fiijcnts," and had "dciilt with the goods iiiiljl as agents to fortrmd tlirm." And in- asmuch as the case, therefore, does on the lUcts, as governed by the terms of the leave reserved, decide, that one who has bought and paid for goods only as an agent for anotlier, and wlio has dealt with tlie goocls only as agent to forward them, is liable in trover for conversion ; accept- ing the clear and express reasoning in the case itself on the |K)int, in the House of I^nls, we think it is |>alpable that it is not, as an abstract principle, law, notwith- ^itanding tlio holding to the contrary in both the Kxchequer Chamber and in the House of Lords, — that one who buys and pays for goods only as an agent for another, and who has dealt with theii ,„(/,/ as an agrnt to forward th ; (!reen- wav r. Fisher, 1 C. k \\ 1!mi ; Foiildes V. Willonghby, 8 M. k W. .'>4(l ; Laiica- shire Waggon t'o. v. Fitzhugh, G H. & N. 602. I L. R. 7 H. L. 802. » Ibid. 757. • L. K. 5 C. P. 646. « L. K. 7 C. P. 84. 1 'r* ij'' ' f: li 1 ^ ..I •■\f i ni ! t ii I •1 ;i if ii- jilu 668 COMMENTARIES ON SALES. [book II. culled in, who were divided in opinion, four ngainst three. Tlic House of Ijorda unanimously reversed the decision of (he courts below. Notwilhstandinj; this wonderful conflict of o|)ini(jn iiiuonif the very aide judges acting in the case, the correctness of the tlo- cision of the House of Lords is, wo think, entirely heyoml duultt. The facts were that the defendant and appellant, Robinson, a mer- chant at Liverpool, gave an order to the plaintiffs, tallo\v-bii»i<(Ms in lioudon, on April 2, for the purchase of lifty tons of tallow at 4i)s. 07. On April 29, the defendant gave the plaintiffs another order to purchase 200 tons of tallow, 100 for luni, and 100 for a friend ; the whole to be booked to him, and the purchase to be made, not at a spccilicd price, but on *' the best terms ; " tlio orders being for the Juno delivery. The plaintilTs had btforo bought, and afterwards also bought from various perhous, consiii- crable (juantities of tallow, none specifically for defendant ; hut proposed to supply the wliole 250 tons at the June delivery, out of their various jjurehases. In their notes, sent immediately after each of the orders had been received, the plaintifVs said : " We liave this day bought for your account," and sig»:ed them, with tiie addition of the words, " sworn brokers." The price of tallow fell in the market between the date of the orders and the time for June delivery. When that time arrived, the plaintifYs teiulored 250 tons of tallow, but the defendant refused to accept the tallow 80 tendered. The plaintiffs sold the tallow, and then (suing in their own names, in effect, as though they were principals) brought assumpsit to recover the difference ; insisting that they were en- titled to do so in virtue of the established usage of the London tallow market. The usage relied on did not exist in liiverpool, and was unknown to the defendant. The question in the case was, whether the a])pellant was bound by the custom merely by the employment of the respondents as his brokers to buy for hini. and from their having [nirchased in the London market the (juan- tity of tallow ordered. The House of Lords held that he was not. Lord Chelmsford, in his judgment in ^h"" House of Lords, whieh was concurred in by his able colleagues, deals conclusively with the case. The following brief passages in his judgment go to the very gist of the matter : " The effect of this custom is to change tiie character of a broker who is an agent to buy for his employer, into that of a principal to sell for him. No doubt a person cm- jdoying a broker may engage his services upon any terms he pleases ; and if a person employs a broker to transact for hiia upon a market with the usages of which the principal is unac- quainted, he gives authority to the broker to make contracts upon the footing of such usages, provided they are such as regulate the til PART VIII.] AGENCY. 659 mode of performing the contracts, and do not chmije their in- trinsic character. ... I have already intimated the doiibt wliicli 1 entertain whether the UHuge of the London talK)\v trade applioH at all to the case of an ordinary transaction between broker and principal. Assuminj;, however, that it does, 1 hesitate to say that it would not apply in the case of persons knowinjjof its existence, and employing a broker to act for them in the market where it prevails. Hut the usiij^e is of such a peculiar character, and i» no comph'tcli) at variance between the jtartiea, converting a broker em- ployed to bill/, into a principal seUinif for him»clt\ and thereby giving him an interest wholly opposed to his duty, that I think no person who is ignorant of such an nsagc can be held to have agreed to siibmit to its conditions, nierely by employing the ser- vices of a broker, to whom the usage is unknown, to perform the ordinary and accustomed duties belonging to such employment." ' The principle on which the case was decided by the House of Lords was virtually conceded by all the judges, so many of whom, in this most extreme case, failed to make a proper application to it. Thus : " It is an elementary proposition tliat a custom of trade may control the mode of performance of a contract, but cannot ehanife ita intrinsic character."^ And, per IJlackburn, J. : "if the terms are such an to be inconsistent with the nature of the emploi/. inent, so that if the// prevailed they would chan ; Blaik.-tt v. Koyal Kx. Ass. Co., '.: C. & J. 244, 249. In Trueinaii v. Loder, 11 A. & K 589, Lord J'lMinian says: " Kvidi'nce of the prevail- ing custom is sti!!pi>s(!d to show that Ixith parties had in ilieir contemplation more tliun appears m ^hc writing ; imt suppos- ing them both to have not only contem- plated, but distinctly expreissed, in the plainest words, that tlit y considered their contract to ini'ludi' a piovision not to be found in the paper, still the evidence can- "ot be introiluced into the cause. Custom of tniile lias been supposcil to form a vir- tual exception to this will-k.Miwn rule ; but the cases go no fartlicr than to p( rmit the explanation of words u.sed in a sense dilferent from tlieir ordinary meaning, or the acars by a manuscript note of that learned judge, tliat, though tlicic w.is :i written contract bctwiMU landlord and tenant, the custom of tlie country would ho still binding, if not inco.isisli-nt vith. the terms of such wvittii) cotitract : amitliut no*- only all common-law obligations, Imt those imposed by custom, were in full forci- where the cimtracl ilid not vary tlii'in." See further, Swectingy. I'ciirce, ~ t. It. \. s. 44*1 ; Lamplcigli v. Braithwait, Hob. In,"); Sutton V. Tatliain, 10 A. & K. 27 ; Tuvlur V. Stiiiy, 2 ('. B. N. .s. 175, l!i7 ; l.'ose- warne v. Billing, 15 C B. \. .s. ',\\i\ ; H.iy- lilfe V. Biitterwortli, 1 \'.\. 4'.'5 ; (iitiivcs V. Legg, 11 Kx. •!42; 2 II. & X. 210; Humphrev v. Dale, 7 K. k li. 'IM : K. Ii. & K. loot"; Wall c.C.Mk.'ivll, 10 II. I,.C. 229 ; Fawkes v. Lamb, ai L. ,1. (,». li. !'S ; Hall V. .lanson, 4 K. & B. 500 ; ShId- nions t;. IVnder, 3 II. & ('. (WO; l!i* tock V. .lardine, lli. 700 ; Slianiinii r. Brandt, I,. K. 6 (,). I!. 720 ; .Stuli.y c. Dickey, 5 Binn. 287 ; Barber c. linio', 3 Tonn. 9; Bank of Columliia i-. Kii/lmuli, 1 Harr. k (J. 2:!1) ; Haven v. Weiitaniili. 2 N. H. 93; I'liited States r. Arrcilondn, 6 I'ct. 715 ; Simpson v. (.ia/zani, li I'mt. 123; The licesidi-, 2 Sumn. 5t)ii ; Co r V. Kane, 5't Wend. 3.S(; , Sh.iw r. Mi'ilMll, 2 Mete. 65; Katon r. Smith, 20 I'i. k. -J."": Wayne i>. Steamlioat l*^ not of nece "i«l<'' himself per "'ay'ioso. Ifie ''"'- I. PART VIII.] AGENCY. 561 ■ *8 whethei they had principals or not, and had always settled with them On June 15, plaintiff contracted to sell to R. & Co., 200 pieces of shirtings at a certain price, payment to be made in thirty days after delivery, with a discount of 1.} per cent. Plain- tiff delivered the shirtings (which were gray or unbleached shirt- ings), and the payment ought to have I een made on Friday, Aug. 25. On the 24th, R. & Co. asked for delay till the next pay- day, Sept. 1 ; and whilst plaintiff was considering what to do, K. & Co., on AUj^. 30, stopped payment. It turned out that K. culd havo ;< -ccluded him, if otherwise entitled, from recovering payment from acfendants ; but that, — n.ssuming that there was authoritv from the cour.so of dealing between defend- ants and R. & Co., to establish privity of contract between defend- ants and those from whom R. A- Co. obtained the goods, — after the hond fide payment by defendants to R. k Co., at a time when plaintiff still gave sole credit to R. 7; Bostock v. Jardiue, 3 II. k C. 700 ; Horsfall w. Fauntleroy, lo B. & C. 755 ; Mollett V. Robinson, L. K. 7 C P. 119; iuilton V. HodgKon, and Po-lc v. Hodgson, 4 Tiiunt. fj.'i, iul, n. ; Waring V. Favenck, 1 Camp. 85; Kymer c. Snwcr- eronp, 1 Camp. 109 ; Keinble v. Atkins, }lolt, 427; Hi<,'f,'ins v. Senior, 3 M. & W. 844; Smyth v. Amiersou, 7 C. B. 39. See Curtis V. Williamson, L. K. 10 Q. B. 57, stated ante, p. 548, and lb. note 2. In Sinytii V. Anderson, 7 »'. B. 39, Wilde, (.'. .1., told the jury " that if a merchant sells goods to another in ignoramo that he buys as an agent, or knowing that he is an agent, Wing iiiiiiiformed as to the name of his principal, although the seller may in the (irst instance have adopted the actual huyer, yet when ho iliscovers for whom the goods were bought he is at lib- erty to adopt the principal as his debtor, and charge him, — that is, j)rovidfd the principal has not in the interim iiaid his agent. The seller cannot u|K)n discover- ing the true characiter of the transaction charge the principal, to whom hi! diil not give cnidit in the first instance, to the prejudice of the principal, with reference to the state of a(!coiints between him n;id his agent." This charge was sustained by the court. But in Heald o. Kenworthy, 10 Ex. 739, it was held that where a prin- cipal autiiori/es his agent to pledge his credit, and the latter makes a purchase on his behalf, and thereby creates a dcl)t, the principal is not discharged by pay- ment to the agent, if the money is not paid over to the seller, unless the lalfli wneie the seller by his word'- or conduct induces the principal to believe that a settlement has been come to In^twcon the seller and the agent, in consenuence of which t!iu principal |iays the amount of the debt to the agent. In Armstrong v. Stokert, I,. K. 7 C>. B. 603, Blackburn, J., says: "Tlie first point ilejicnds on a ques- tion of fact, viz., what was the authority really given to .1. and O. Ilyder [the al- XvigtA agents] by the defendants ? It is, we think, too hrmlv established to bo now questioned that wliere a [wrson employs another to make a contract of purchase for him he, as princiiml, is liable tn tlic seller, though the seller never heard of his existence, and entered into the coiitrait solely on the credit of the jiersun whuin he lielieved to be the piincipal, tluiu),'li in fact he was not. Il luis iifkn limi Uonblid whether it was uriijimilhj riijht so to hold [see our remarks on this in din. cussing the non-liability of a foreign prin- cipal. Ante, p. 615, II.]; but doiilitsnl' this kind come now too late; for we think that it is established law that if on t!ic failure of the fierson with whom alone the vendor lielieved himself to be coiitractin<;, <.m vendor discovers that in reality tlicre is an undisclosed principal behind, he is en- titled to take advantage of this unex- pected godsend, and is not put to tike a dividend from tlie estate of him with ttlmin alone he bi'lieved himself to \v.\ contiait- iiig, and to whom alone he gave civdit, and to leave the trustees of that estate tn settle with the undisclosed principal, sub- ject to all mutual credits ami ecpiiiics lie- tween them. He may re( over tiie price himself direct from the principal, suhiict to an exception, which is not so well cs- tablisheil as the rule, and is not very ac- curately delined, viz., that nnn\ his agi'iit throu^'h wlioin the tmiisiK'tidii was carried out, without any tli-niand having been in the mean time made u|iun hint tor payment by tlie vendors, or notice by tluin thnt they looked to liim fur jiay- Hunt. We think the rationale ol Smyth I'. Anderson justilies tliat whicli l5i},'eiow, ('. J., implied when he saiil in Bray v. Ketteil, 1 Alien, 80, 8a, and with whieh ue i'ully t.'oncur, that no e.ise had held tliat the foreif,'n prini'ipai was not as lia- l)le as the home principal on the contract made by '.is agent. We think the true principle Roverninj< tli" cases, as Smyth r. .Anderson and Armstionj; r. Stokes in cll'i'ct show, is quite lus appli(;ablc in tlie one case as in the other. And we tliink, ti)(i, 'hat the principle decided in lioth of tliesc cases u cort 'ct, ami is applicable to such ipu'st'ons between princi|Kils, and Ix'tween jirinciiui and ugcnt {generally, witli no Tuore limitation in principle to a tiireiy;n j>urcha.scr thati to a home p\ir- ihaser. We think that principle is well ai, I acciiratelv stated by Itaviev, ,!., in Tr ; ■'» V. 'Davenport," 9 H." /t ('. 8(;, as nil . •' I ! this note, an(| by Lord 'IVntcr- ucn .. ; ;e same case, as t'dllows : " I take it to be a genend rule that if a jierson sflls goods, HU]iposin^' that at the time of tln^ contract he is dealing with a princi- I«l, but afterwards discovers that the jier- «o:i with whom he has Iwcn dealing is not the principal in the transaction, but agent for ii third jiersn?!, though lu' ma\ in the mi;in time have debited the agent with it, lie iiiMV afterwards recover the amount from t'le leal principal, subject, however, to this i|iiiililieation, that the state of the account iietwei-n the ]irincipal and the agent is not nltered to the prejudice of the prini ipal." Or, as is even more clearly stated by M.iy- ley, .1., as we have (pioted, " /I'tfn' /irlit- diml liiu /iii'il ilif (iii)'iit, or if the state of tlie a )unfs iK'tween the agent here and till' principal would make it unjust that the seller should <'all on the piiueipal, llir fori III' /Miimti'iit UK .inch (I sfii/r nf nrrninih woiilij lie an answer to the action brought by tlie seller wheri' he had looked to the n'mmnsibility of the agent." This, wo think, is law ; but there have been dicln wliii li, if applied to such cases as those we hsve been e. Suwercropji, 1 Camp. 109, 112, Lonl Kllenl)orougli MVH' " A person selling goods is not I'on- •iiitil to the ore«lit of a broker wl o buys 'lii'tn, hut may n'sort to the \ 'm"- .pal on slioMe een come to l)etween the seller and. the agent, in eonseipienee of •.vhich the principal pays the amount of the debt to the agent. The whole ease proceeds on the groiimi that the plea ad- mits that the goods were purchased on 564 COMMENTARIES ON SALES. [book II. non-delivery of hops equal to sample, sold under a written con- tract in the following terms : " Sold by O. & T. [the defendants] thfl credit of the principal. Thus Margin, B. : " Here the dc/eiidunl authorized his agent to pledge his credit. The case Uitrera from that where a servant is sent with the muney in his hiiiul to make a purcliase, for there the imtslcr given no nulhority to his servant to i>!riiijc his credit." So, I'ol- lock, C. 15. : "A perstni employs his agent to purchase goods for him, with authoritij to pledge his credit. The ni>i'.t resident in tlijs couiitiy, ami actinj? for a foreii^ii principal, the piesumptiou is, that the seller does not contract with the forei;^iier ami trust him, but with the party with •■vhoin he makes the barj;ain. That is a question of fact and not nf law." We think that here we find k bans on whi.-h tie M'itolo doctrine can rest ; thu-i, wlierc the prin- cipal has authorized tin- ii^ent to pledf{e 'lie pri^ ipal's ereilit in the purcliase of good.s, " il' the is)uduct of the seller w«dd make it unjust for him to call ujmn the buyer for the money ; as, for example, whnro the nrinciiin,! is inducoil by the conduct of lUe si-lter to pay his ag 'tit the money on the f» Oi that the agent an>l Boiler have corn- ti> a acttlement oti the matter; or if nuv repn-senteiion to that etfeet is made In he seller cither by words or conduct, the seller cannot afterwards throw off the mask and sue the principal. It would be unjust for him to do mj. " Per I'arke, K., in Heald v. Kenwortliy, lo Kx. at p. 740. "But 1 think," cjiitimu:* Parke, B., "that there is no cat-e of Ui,.i kind where the plaiutilf has Inmju jire- eluded from recoveriu),', uidess he liiw in some w.ay contributed either to den ivc the defendant or to induce him to ,i!hi his position." I$ut, on the other \uw\, whether the [irincipat is a foreij;ii re.-;iii.iii, a.s in Smyth v. Anderson, 7 < • B. -! , oi a ho(ne resident, as in Armstron;^ v. .Stokes, h. U. 7 Q. B. y.m, and the prineipd in,., not authorized the aj?ent to pled;;.' th' principal's credit, and the credit li.is Ixen ijiven by the seller to the a^ent (the jiriri- cipal not Iteitif^ disclosed), and liy ilic ajjeiit to his principal : there, it it !«■ sought to bind the principal, on his tlis- covery, we think the Iani;uaj;e of burl Tenterden and ll.iyley, .1 , in 'i'liomsoii v. I)avt!iinort, 9 \\. & V. 8>i, is a[)p!ii'al)le. Thus, l)y the former: "I take it to ln' \ general rule, that if a person sells ),mo.U supposinj? that at the time of the eontiaet he IS dealing with a prineipvl, hut ut'tiT- wards discovers that the person with whom he has lieen dealing is not the prih( ipal Im the transaction, but a^ent for a tliinl |"'i- son, thouf^h he may in the mean tiiiielniv.^ debiti'd the agent with it, he m iv iil'ler- wanls recover the amount from t'le real |>rincipal ; subject, however, to tiusi|!iali- licatio!!, that the statt; of the ai-coiint Ije- tween the primnpal and the a^reut is not altered to the prej'tdiee of ilu" priiieijwl." And l)y Baviey, .!. : "Where a |)urilias<' is made by :in agent, the agent il " < net of necessity so contract as to m.iki' liitii- self ]»crsonally liable ; but he m iv d) sii. If he does make himself per'-i^iially liililo, it does not follotv that the principal may noi lie liable also, sul)ject to this ipialiiii'a- lion, that the priiieip.il shall not I.e pre- judiced by being made personally lii''!'. if the jusii ■!• of the ca.so is that le' >leinM not !>•■ pers(mally liable. If the priie'i|iiil hai fuiid the ngnif, or it' the state of the accounts between the ..,eut here aii'l the prinitipal wouM make it unjust that the seller 'dionld call on the priui.'ipd, I'n' f*'' of payment, or such a state ol ai'i'iiiiits, wo\i!d Ih" an answer to the action I'MajjIit by the .seller whore he had looked to the responsibility of the a'.;ent." Wc think this fully su.stains the div tiielion wo have taken, and iImi it i^ sustained, in principle, not only 1'^' ^^* vi'M-decided cases of Smyth i- )ii'l'-^«*i r ' . B. 21, and Armstrong v *'Vc think tiiut that very able Ktij^li.sh judw!, Hliuklmni, J,, si'iiiUL'ly (ioi's. ju.stiti; td rolluuk, I'- U., aiui I'arke uiul Akltisdii, IMi., in tht \ii'ws wiiii'h tln\v t'\.i>ir.s.si'd in Hciilti y. Ken- wuctliy, 111 Kx. 739, 7i5. .\s we have sliowii hy till' I'Xtrurts we hnvv niuiii', iin y, III dcoiiii!!^; on llie dftnurn'r in the !.:isi', ticuti'd it lis a case wlii'ii^ the juiii- .■i|iid liail authijiizwii the j.icd^'e i i' liim itrilit, Tims, in a few vmids, AlU'iTs'jn, 15., iloalinj^ wiili that fjucslion, sjiys ^ " It is i.'lcar that ihe delL'iul.int, who is priii- (•i|iii! in tht! transaction, (itith'miuf 'iic wj'/if li' contraci t/w dd>l on his ncoi\int ; t'lc (Ufi-ndant afterwards paiii his agent iiioiii'V, whicli, lioivevur, lu' liid not ji'iy i.vi-r to the jilaiiitiirs. Now itii'iiefi,'iidant ir, not t'xciisetl from scfiiig^hat tin- [ihiin tilfs are pani, unless the latter hy llieit act.-: iudueed the deft'ndant to niai<( the ^liiyineiit to their aj^eiit. Where tin' m'Uit tiii'-tH tiie a>;ent only, and says that he will I'onsider him as the only narty lial)le, till' iVfifnt. alone is rcs|)oiisilile, and the M'llfr eannot iiroi'cid npainsttlie ['rineipa!. But there must he .smno act on the [laii .>f till- I reiiitor to warrant ns in sayin„' llud 'he imifment by ttn: ilrdtor In liix injoil is to /'.' Inalfd as a piymtnt lo the cmiitor. Where a creditor hy his coiidiict induces till' ilehtor to pay a third party, and there- liy alters his delitor's iiosition, it Hould he lu.iii.-r to call upon tlie dehtor to pay the .iiiii.iint of the deht to his cieditor." 'I'his is a very dill'erent ca.ie {rons that wlnre the ci'i'oit h.is heen j'iveii hy ttie wlier to the a;{ent, and the jirii.eipid, deai- iMiiiii in Ileahl V. Kt-nwortliv. 10 K«. 7.t:' (and which misiipprehe?»»i/>n we ibiiik, 'i,y tho aliove stateir.-n? uu-i ex- *.i'i 's, we make ctear), and of whi' h 'n««, owiii/ to onch inisini|f«~«ion, he evidently *li'.:ipproTtw, we ei.iir«ij ct.ucur with tbe followiiij:;, whicli, like the case of Smyth t.'. Anderson, 7 V. H '21, sustJiii.s the din- tiiii-iiuii wu hav. taken. Blackburn, .1 , says: "i'arke, B., lays down jjeiieraily lliat 'if u person order, an a^enl to make tt purcliase for iiiin, he is lioi-nil tu see that the ij/,'iit pays the lieht ; and th" ^■'•'■■■K the a^jiMit money (or that iu>rpo.-.e does not 'iniuunt to [laynient unless the agt in piiys it acc.jrdiiigiy.' After coinnientiiij.; on sev- eral of the cases already referred to, )■« concludes : ' I tliiiik that there is no au- thority for Hiiyiiifj; that n payment made to the a(,'cnt ]>recliidi's the seller from iv- (overiiiji li-oiii the principal, unless it ap- jwars that he has irdnced 'Am iirincijial to lielieve that a settlcMieilt hflfl been made witii tiie af/eiil.' //<• shtlis t/tis us c/nier- a!hj Inn- whi-n us to the cnsi- irktre the iilii,-r ,v.'//»^ miulc the C'litruct with the fiiicii' lili.riiia h'lii il' if Ilif prijicijiiil, and C'liili'iiud ill siirli lifl.if till affir the }Hiih viciit ir-'s imiilc. [Ilete is an intimation of tin' exact distiiii tion which, as we have jioint'd out, should be made. | He cer- tainlj docs not in terms say that there is Jiu (iiiiiiificaiio:i o!' the principle he layB down when appli alile to sucli a c se ; but — rc'collect Ihiw curel'ul I'arke, B., always was ',0 !ay dfiwn wliat he thoii/.;lit to i>e the lav, fully p-iid with accuracy — we think ',!ie coun.se! for the plaintid' were jiislitii'd in ainiiiiij; that Parke, B., llioii^ht the exription did not exist. And this ir,, i!i our opinion, a wiij^hty autiii\Minis more el;ilK)rately st.ited liy him in hi'. jiid>;iiii iit. And Aldcison, 11., Ill his judi^iiMiit, a|ipears eniireh to assent to the jad^iiieiit iif I'r-ike, B. We tllit.li th'it We cold I not, witliaiNj to btdieve that he [the p'ain- l«tf] had settled witli .'. A <' liyder [the ■i^eiitsj at the time when the defendanti paid them. This 7iiakes il iifcfssury to ilitermiiie vficfhrr w ai/rft in what ine rhiii/. waji I III opinion of Pnrke, h., uc .liiirmtd in hy PilUA\ (.', li., nvd At'lrr- .'■((. li We thi ik that, if tlie ri»;id rule thus l.il'l down <»tie to b«' Itppiiri tu those wb'' w»T«* only discovrre»t to lie |.iin('i|iuU aftr-r they iind fairlv {Mid the prii'e to those whom tiie scudoi U'li' ved to \n- th* priucipalt., and lu whuiu aluue the votidor 566 COMMENTAUIfiS ON SALES. [book II. trial, the plaintiffs contended that the defendants were personally liable on the contract, and evidence was admitted to show that, avo credit, it would picxJace intolerable ardsliip. It may be suici, pihaps truly, this is the coiisuquence ol that which might ori^iiiully have been a mistake in allowiii<( the vendor to have recourse at iill against one to whom ho never gave credit [See our agreement with this in our comments as to the mistaken Iwsis on which the non-liability of a foreign princi- pal hits been put. Ante, pp. 515, 51t), n.J, and thiit we ought not to establish an illogical exception in order to cure a fault in a rule. Hut we Knd an <-xce|)tion (more or less extensively expressed) always men- tioned in the very cases that lay down the rule ; and without deciding anything as to the case of a broker who avowedly acts fur a principal (though not necessarily named), and contining ourselves to the present case, which is one in whitdi, to borrow Ijonl Teiiterden's phrase in Thom- son V. Davenport, 'J li. & C, at p. 8t>, the plaintitf sold the goods to Kyder & Co., ' supposing at the time of the contract ho was dealing with a principal,' wo think that such an exception is established. We wish to be unilerstood as expressing no opinion as to what would have been the ell'oct of the state ol the accounts between the parties if .1. & O. Ryder had been in- dul)ted to the defendants on a separate account, so as to give rise to a set-olf or mutual credit In'tween them. Wo con- Hne niir decision to the case where the defendants, after tlio contrcict was made, and in conseiiuenco of it, hi)ii(t fide, and without moral blame, jjaid .1. & (>. Kyder at a time wlnii the plaintitf still gave credit to J. & tJ. Ryder, and knew of no one else. We tliink that utter that it was too late for the plaintiff to come upon the defendants.' Willie tnlly con.Mirring with the gen- eral reasoniny of Bluikburn, •!. (une, we think, of \.\\f very -tiilost judges which England has pcuduceit I, ■•u\\ with tlic de- cisions in Smyth v. Anderson and Arm- strong V. Sloken. which, we think, estalt- lish tile law as wh have herein stated it, and wliii li, we tliink, is not affected, as we have siiown, by the ianguagi', properly understood and applied, used iiy Pollock, C. B., and Parke ami Alderson, HI)., in lleald K. Kenworthy, yet we think the prlncip^»•, .IS we iiave stated it, and as it aci;ord.s with the actual rniui ilicitlniih of Smyth v. Anderubs and Armstrong v. Stokes, ri-ndevi'd menn'cessary the iifsita- tion l)V Blii<'ki>nrn, ,)., as to tin- etiect of the rule laiil iecisinn in Arnwtrong o. Stokes, wlicr*- tlie i|U<'stion anws in con- nection with "a set-otf or' mutual credit' between tlie principal and the agent ; or, OS we think we have more properly desig- nated him, the intermediate or querson." ih'''*' the liability of the ultimate |nirclias. i iihc "principal ") is put U)>on the gmuM'! that, as It would be inmiaterial to bin; i' li.mi he paid, the "justice of the case ("In' '"• the way the law was made) wonlii ivi|Uire that he should fwv the seller, if I'v duni),' so he would hii'iwelf suffer no iiijustice iru- PART VIII.] AGENCY. 667 by the custom of the hop trade in such a contract, if the principal bo not disclosed at the time ol making the contract, tlic broker is ing either out of hU having [mA thii.'turer, and out of these he ships the ISoNton mer- chant the 1000 pieces ordered, at a price Siktisfactory to the Boston merchant. The New York dealer fails, leaving the manu- facturer unpaid. Obviously there would be no liability of the Boston nit-rchaiit tir the manufacturer, (or there would be no ground whatever for claiming that there was any privity between them ; the two transactions being entirely dill'erent and nideiiendent of each other. But, next: the Boston merchant writes the New York dealer, or commission merchant, or (actor, to ship him 1000 pieces ol gray cotton, and the New York dealer goes ti) a manu- facturer and buys the sjK'cilic lOOO pieces, on his own credit, and ships them to the Boston ni'M chant. The cases such as Thomson v. Davenport, 9 B. At C. 78; Moore V. (iemeiitson, 2 Camp. '2'2 , Pitt- erson V. (ianda.sei|ui, 1.0 Kast, t)'2; Kailton I'. Hodgson, cited in Paterson i>. (iaiulas- equi, 1,5 Kast, 07, — hold, that here the Boston merchant is liable, as an undis- closed principal, to the maniilacturer, for llie purchase by "the .igent." \Ve think the principle of these eases (more than doubted by Blacklmrn, .1. in Armstrong r. Stokes), is unsound ; and tliat wlievu A. gives no autiiority to I!, to |>liiige his credit to C, 'inil <". i;ives credit to B., and 15. to A., there is no privity of contract iK'tween A. and C. ; and, theri'- fore, on the failure of B. to |>ay ( ., there is no inilebtedni'ss by A. to C ; and the cases which hold otherwise are no siuandi-r law than were the cases whndi hold ror a Imndred years, that ]ni -ies who [mrtici- |Mtc in the piolits are iiecessarilv iNirtiiers, Ulilil the lullacy of the position wa> -^howii, and the law n-veraed, in Cox v. llii.kmau, 8 II. L C. 208. But, as.summg that the law is, as so many ciu»es state it to Ik', then, we tiunk, It is still clear, that where tIic ultimate jiiirchaser or principal is heid liable to the original seller, "justice" reipures that lie shall lie only so liable by not Unng "piejudiced by being maile iwrsouully lia- ble,' where cither ** the principal hoa |)aid the agent," or, where, as in the caan of a "setolf li»r mutual credit between them [using the language of Blackburn, J., in Atnistiong *-. Stokes], (ho state of the accounts between tlie agent here ami the principal would make it unjust that the .seller shoultl call on t!ie principal ; ' and Ihal, in either ol such cases, "the (act of |iayment, or such u state of oc- counls, would be an answer to the action brought by the .seller where he has looked to the |•espon^ibility ot the agent.'' Per Bayley, J., in Thomson i'. liaveiiport, B. i I'o., at p. 88. This, in elh'ct, was ad- milted in Moore e. Cleinentson, 'i Camp. '2'J, liy the plainiilf's counsel, Park, who "allowed, that i( the deleiidants were neither expressly told, nor had reason to believe, that in this action tireen acted only as an agent, thei/ ivnr. cutilled to II !■ sri-oll' irhii/i (hn/ flnniifd." But ho claimed that, an express noticeof the plaiii- tilf l>eing the owner of tin' goods having been i^ivcn to the defendant, the right of set -oil betwteii the plinci|>al and agent did nut att ich. Lord Klieiiliorrmgh, iu that case, t'.M), had a i|Ualili('ation of the right of set'ulf with a too-couliiied limita- tion, which may have helped to establish II wjiiiig rule. See als(>, Coat«:s v. Lewes, 1 tRinp. 414. On further resennh we ' id that the very piiin-iple foi \»hirli we have contendixl III tlii.s note, but which later ca.ses, front the msi /iriHH case ol Kynier c. .Siiwer- ciopp, 1 Camp. 110 (III wliii'li Lord Kilen- biMoiigli used the language we haM-i(Uoted (loni him) down, have tended to contuac, was, in elicit, well-estal llslied, as regards the light ol set-ol!, over a huiidr<'d years ago. Thus, in liaboite ,liin. I'. Willi, iins, ut the sutings alter Micliaelnias, 1785, citeil ill a note to (leoige r. Cliigett, 7 T. I{. Ittio, which was an a>'tioii hn the value of goods sold to the dejiiidaiit by means of till- house ol U.iliilie .Sen. & Co., luclors to the plaititlll ; the deleiijalit, the V);n- dee ol the ;{oods. Set oil a debt due to hilll jroiii iialH>ne k Co., the l.u tors, upon un- ntiier aecoiiiit, alleging thai the plaiiitiir had not apjieared ai all in the tiaii.saclion, and that credit had been given by HalM)ne & !'■■., the (actors, ami not by the plain- till'. Lord Mttunfield, C. J. : "Where* laetor dealing h>r a principal, but conceal- ing tltjit pninipai.delivei -.Hoods in his own nanii-, ihe |H-rsoii contracting; witli him lia.t to consider liini to all iiiti nt- and pur|H>ses as the princi|(iil ; and though the real principal niuv apfM*ar and bniii; an ac- tion upon tlutt ccAtracl against ihe pur- ■ . I. :'■ ; ■ It ' ' \ !' 1 568 COMMENTARIES ON SALES. [book II. in fact regarded as the principal, and is held liable. It was ad- mitted tliat the plaintiffs had not asked the dul'endants fur the chaser of the kocmIh, yet that purchHHer niny set oir any cluirii t( tlio [)i'iii- cipal. Till!* huH l(.ii){ been scttiutl." In Bityley, v. Murluy, LmikIou Sittings, nfter Midi. i788, liUi'd Kuiiyoa recognized the law of this case. The Hiitiie point wim also ruled l>y Lord Kenyon in Stiu'cy, Ko.ss, and otliers i;. Deey, London Sittiiif^s after Mich. 178U, in oiisuinpsit for goods sold, where a set- off was pleatit'd. The plaintilfs jointly carried on trade as gioceis, hut lioss was the only ostensible person engaged in the business, and appeared to the world as solely interested therein. By the terms of the |)artneiNhip, Koss was to be the appar- ent trader, and the others were to remain mere sleeping |Nirtners. The defendant was a iKjticy broker, and being iiidetited for groceries to iioss, as he conceivi J, he elfecled insurances and paid preiniiiins on account of Uoss solely, to the amount of his debt, under the idea that one demand might Ih; set olf against the otiier. lioss's alfuirs being much deranged, |)aynioiit of the ninney due Ironi the defendant was demanded by the linn, ami was refused ljy him, upon the ground of his having l)een deceived by the other partners keeping back and holding out Hoss as the only person concerned III the trade. Lord Ken- yon, C J., Wius of opinion that, as the uefcnilant had a goml defence by way of set-olf as against Koss, and had l>ccn by the conduct of the plaintilfs led to be- lieve that Koss was the only person he contracted with, they could not now pull otf the mask and claim payment of debts supposed to be due to Iioss alone, without allowing the parties the same advantages and eipiities in their defence that they would have had in an action brought by Koss. The same principle is sustained (A. I). 171(7), in (ieorgo v, Clagett, 7 T. H. 3r)'.t, where, on principle, as well as on the authority ol lialH)ne v. Wil- liams {sit/ird), it was lu-ld by Lord Ken- yon, allirmed by the lull court, that where goods had Ix-en bought from a factor, the "principal," or purchaser, had the right of setting otf any claim tor set-olf, as lie- tween him and the factor, in an action by the seller against the purchaser for the price of the gixnls. These coses, coupled with the prin iples estalilished by Smvth V. Anderson, 7 C. B. 21, and Arni- st.oiig V. Stokes, L. H. 7 i). H. 5i>8, thoroughly sustain the rule ami its r]uali- ficati(m as stated by us in this note. In Serimshire v. Alderton (a. n. 174.1), the purchaser from a factor was notihed by the seller not to pay for the goods ; but he did so, iiDtwillisianding The chid justice (Sir VVni. Lee) was of opiniou that there was a leiiiLMly of the seller against the buyer, provided there was no payment to the factor. But the jury tiMind otherwise, and persisted in tlicir verdict. On a second trial, lid'oic a special jury, the chief justice declared that a lactoi's sale dues by the general rule ot law civalu a contract between the owner and the buyer. But the jury again found lor the deleiidunt, and on bi'iiig asked their rea- son, put it on precisely the .same ground that we have done, namely, that wluru the seller gives the credit to the factm, and the factor gives the credit to tie; ulti- mate purcha.ser, there is no contract lie- tween the original .selh^r and the ultimate |iurchaser, or, as they thought, "no credit was given as lietween the owner and buyer, and that the latter was answerable to the factor only, and he only to the owner. " In such a ca.se as we have put, we .shall l>e surprised if such a doctrine docs not become well established. The nim iirius case of Moore v. t'lenient.Hon, 2 Caiiip. 22, iicr Lord Kllenborough, we do not consider well decided, aiul we tloubt very much if the decision would have been allirmed by the full court, any nmre than that other doiibttul decision of the sanio learned juilge (Kynier v. Suwercropp, 1 Camp. 109 ; 180 c. ), .seems to have hvw.. In Moore v. Cleinentson, where the de- fendants claimed a set-olf as between them and the factor. Lord Kllenborough held, correctly wo think, in accordance witii the view expressed in this note, that if the ile- fendants had only knowleilge ot tln' seUer to them being a fai'tor, that would not, as between them and the original sellers, deprive them ol their right of set -otf; but the fact that, the purchase having lieen duly made and the set-oil having; ex- isted, the defendants having casually a.4- certained from the factor's clerk, "iilier a considerable portion 4d the goods had In'cn jireviously delivered ' by the laitor to the purchaser, this deprived the purcliaseis of their right to the set-olf We think that their right to a set-olf by a kiiovvleilu'e so gained at smdi a stage of the proi'eeilin;,'s, WHS not alfi'cteil at all, or, at the very utmost, on Lord KlIcMlMMoiigh's own ImM- ing, it could only be all'ected, it at all. ;"■» tanto. But we as much doulit tlii< part of the holding in Moore v. CleuientMin, 2 Camp. 22, as we do that ot Kynur v. Suwercropp, 1 Camp. lO'J, 180 c", as up- plicable, at least, to the case of a factor or commission merchant. PART VIII.] AOENQT. 569 name of their principal, but there was evidence to show that the plaintitTs knew he was a foreigner. The verdict and judgment were for the phiintiiTs. The Queen's lionch Division held that tiie contract being " for and on account of owner," the brok- ers on the face of the contract were not liable ; and that the cus- tutn was so inconsistent with the contract, that evidence of the custom was inadmissible. Otherwise, the contract, as affected by tiie custom, would bo : *' We have sold for our principals," but " we have not sold for our principals, but for ourselves," which would be a direct contradiction. They therefore reversed the judgment. This transparently bad reasoning did not prevail. The real contract as explained by the custom was: "We have sold for our principal, but in the absence of a disclosure of our principal at the time of making the contract, then we make our- selves personally liable." There is nothing contradictory or in- consistent in this. And so, on appeal, the Court of Appeal held. Fry, L. J., puts the matters very clearly and briefly, thus : " If the objection were now being taken for the first time to the admis- sibility of evidence of a custom to charge the brokers as princi- pals in the event of non-disclosure by them of their principals at the time of the contract, 1 should have paused before deciding in favor of its admissibility. Ihit that proposition is now clearly es- tablished ; and we have only to consider whether, by the custom of the triide, the defendants were liable from the beginning as principals, and whether such a custom contradicts the written contract. 1 can entertain no doubt on either |)oint. IJy the terms of the document itself, the owner is liable. The custom says the broker shall be liable also. There is nothing in that which is inconsistent with the contract; though it would be inconsistent if the custom were to exclude the liability of the owner." ^ 1 I'ike V. OiiRk'y, 18 Q. \\. Div. 708, 713. Sff. Ilutcliiiusoii r. Tutliiirn, I.. H. 8 V. v. 482 ; Fleet c. Murl-.n, L. \l. 7 t.». K. l'2t) ; Hiiiiii.hivy v. Dale, 7 K. & B. at p. '27(1. A fair coiielii.-tion as to the re.sult ol till' autliDI'ities is tiiat a cnlitrart made by a liroker, " tor, or on acrouiit of," or " as »K''iits for" a prin(i|Hil, wlutlier this ap- I'fars ill the boily of the contract or liy tile sij^natiire, does not remler the broker lialile as a j>rinci|>«l, wheie he was, in fact, actually contracting; for a |irinci|ial ; but fvidcncn of usage niny lie jjiven to show that the broker is nl.so lialilc, il, for in- Btitioe, he i'nil to disclose his principal ; tliis not takinf^ awny the liability of the prim ipal, but nddinj? another jiarty to tho cnntract, as liable ; jnst as, in contracts miicjc with an aj^ent in his own name, the liability of the principal is also iiddcd when it is discovered there is a ])rineipal. Hot the coMViTs..' of the rule does not hold ^Dod. (Mie will) contracts as a principal, tlioii^;!) he lie, in fact, contracting fiii' an- other, cannot ^ive evidence of a custom that he has not the liability which, on the face ot the contract, he admits he ha.s. This seems a little inconsistent, but it is not really so. The well-known iirinciple of estop|H'l applies. One who holds him- self out as principal, and expressly con- tracts as such, is estopiK'd from denying that he is a princi|ial, and equally so, from showing that there is a custom which, repugnant to the contract, shows him other than he has declared him.scif to be. But one who contracts with an- other who declares himDcIf Ut 1h' an agent is no more esfopjied lnj the declnrcUum of that other from showing, by custom, or by 1: . ,1 ■ M 670 CUMMENTABIBS UN 8ALES. [BUUK II. A broker cannot sue in liia own name upon contracts mudu by h.iu a» broker. Thus, where the pluintill, u broker, HJ^qiud uiiti delivered to the defenduntH u bought note lor eottou, in the iul- lowing form. *^1 have this day Hold you on account uf U, iVo. M F., broker,** it wati held that he wa^ not a (;oiitructing party, and could not Miie the defoudaiitH for breach of the contract in ro fusing to accept the cotton.' Some of the text-ljookH have Btatod the principle otherwiMc,'' but they are disapproved. Kelly, C. |]., points out the proper disitinction ; thus : ** The numerous caMCH thu liict tliiit th(^ alli'Kcil iigi-iit M'lilly liml no juiiit'iiml, tlial tin* iniiiiiiiiil ii;;fiit lit ri'iilly lialili^ us ii |iiiiici|ial, than lii> i.i 0Mt(i|>|M'il from Hlii>win;{ timt mu* wlio iioniiiiiilly r(tnti'UL't.s iim ii |)i'ini'i|Hil i* roiilly I'lit tliu a^i'ut, and tliut anotlitT in liiiblo as till* real |ii'iii('i|i.il. ilu han tliu iiftUl uf liol(liii); tlii^ |i.irly to the coiiiract who lias luiiilf liiiiisull .1 party to it, liiit thi>i°(> is no (>sto|i|icl airi'i'tiii^ liiiii fi'diii sliowiiiK tliut aiiotlicr is li;ilili> .is priii- ci|>al or as ii iloriiiaiit |iarliit'r, to tlit* con- tract, tiiailo liy tliu a'^ciil or partiiur of till! iiiidiittilosiMl {iriiii'i|i.il, or the tlortiiaiit Jiartncr. Tins, wc lliiiik, irconi'ili's tlio locisions in the iii.iltcr, wliii'li, at a lirst glaum*, suvni iin'onsistctit ami irr<'i'uiii'j|- aljli!. Iliitcliinsiin c Tatliaiii, L. 1{. 8 ('. 1*. 48'J, is a I'asu vrry similar to that of rik»< V. «)ii«k'y, \S i). II. Div. 708. Wliih* ill iifitlii-r of tliiMii is tlu^ tourt at all cliiar as to the Kidtiiul upon wliii'h the duuisions anil others analogous to tlifiii (■:iii rest, wo think thai tin- {{roiiinl stated by IIS aUivt' is the teii.ihle one. See also, t'airliu v. Funtoii, L. 1!. 5 Kx. lii'J; Nulila V. Kennowav, 2 l>oll<;. .'ill) ; llli;<{ilis r. Senior, 8 .Vl. &. W. S;il ; Tnieman «. Loilur, 11 A. A; K. 5Sl) ; .M ij{ee r. Atkin- son, 2 .M. & W. no ; t'.irr e. .laekson. 7 Ex. 38-J; lliinilile c. Hunter, \> q. 1). 310. In lliek.'it..n V. Ilurreii, :, M. k S. 38;<, a plaintilf who luade a lontriii'l an agent, and sued as principal, was non- suited. It was elainied that he was not ustoppeil from sliowiiii; tli.it he was a^ent. Lord Klli'iilHiroiigli, dealing with this cpies- tion, says : " In thu ordinary tran.s:it'tions of eoniiiieive, a man niav sell or pureiia.se ill his own name, and yet it does nut follow that the tontraet is lii.s, luit tho ti-iinsaetioii is o)H-n to explanation, and others who do not ap|N>ar as parties to the oontraet are fre(|ueiitiy disclosed, and Htep III to demand tiiu lienelit of it. Hut wliere a man assigns to him^^elf the char- acter of agent to another whom he names, I am nut aware that the law will iierniit him to shift his situation, and to declare himself the princi|ial, and the other to bo a more creatun; of straw. That, I lielieve, has utiver yet beeu attempted. Now, on the lace of this agieeliieiit, it is stated lli;it the plaintiir made tiie piiirlia.se, paid tlir deposit, and agreed tn comply with tlicdJii. ditions ol sale tor Kicli.iiilson, and in ihu mere character of iigcnt. Is not this ac- count of liiinself to Ik" lilkell /•f/7i.v\/mi' ciiiitni /init'iriiilim ; that i.s, that he was really tivatiug in the character which lir a.sNiijiied to liiinselr at the time id' the |iui- cha.>.e I And has not the delendant, with wlioiii the plaintilf dealt us ageiil, a n;;lit si ill to coiisiiler liini as such, iidtwiili- standing hi! woiiM now .sue in the charac- ter of principal'" See further, lli^';,'iiis c. .Senior. ,H M. &. \V. 8:11, 8f» ; .I.ni,, v. hittlcdale, «) A. & K. 48ii ; .Magee e. .\t. kiii.Min, 2 .M. & \V. Ho ; .Sowerl.y v IJillclier, 'JC & ,M. aZl ; I'eiit/. r. Staiildii, 10 Wind. 277 ; Stackpole v. Arn..ld, tl Ma.ss. "27 , (iruves i'. Ho.ston .Marine In.'*. Co.. 2 Cniiich, 41!» ; l.u<'as v. |)e l,i ('mir, I .M. .V S. 'JtU; UoIlsoii v. Druninioirl, :i It. & Ad. 303. The same position is taken in Kayner v. (irot.-, l.'i M. & \V. ;:.'.!». 3(!.'>, coiieiirring with the doclnne as tn estoppel, /»■/■ l.,ord Klleiilioroii^h, in Itiik- ertoii 1'. Biiriell, r> M. & S. HS.t, as to "all exeentory eontraets, if wholly iiii|ii'r- formed, or il* partly |ieri'oriiied without tin- kiiowledg(> of who IS the leal priiici|ial," being within the rule that one wlm tie* seniles himself ,is agent is estop|ii'.| rrniii claiming tli.il he is a principal. In Hick- ertoii V. Hiirrell another gnnind tli.iii estoppel was also relied on, but >ii ll.iyni'r tl. (irote, it Wiis intimated th.il the cas.- was not tenable on that groiiml. Imt »ii that of estoppel. .See, however, .Srliiiialt/ V. Avery, 10 (.). B. ♦iti,'., (id'i, when' tlii« case is put upon the not very satisl'ai inry ground, that as tin' i-hartcr-p.iity was entered into by the plaintilf as "aijcnt of the freighter," any one could be naim d a.i the principal as " Ireighter," and, linn'- fore, that the agent coiihl do so, alilion^'li it involved the peculiar feature of being the agent of himself. > K.iirlio V. Feiiton, L. U. 5 Kx. li!!>. ^ Ciiittyon Plead. 7th eil., V(d. i. p. S ; Ilammoml on Parties (8vo. 1817), adopliil ill Lush on Practice, 3rd cd., p. 11. PART VIII.] AGENCT. 671 cited to UH hIiow that in certain contracts tho agen may himself 8UU as principal ; but in nunc does it appear that a broker has Hucct'ssfully niuintained an action on a contract made by him as brolvor. llt> may, no doubt, frame a contract in such a way as to niaiie binist^lf u party to it, and entitled to sue, but when lie con< tracts in tlic ordinary form, deseribin}^ and nignin)^ hiniHclf as a liroker, and naming his principal, no action is maintainable by him. Though innumerable contracts of this nature daily take place, yet no iuHlance lias occurred within my own recollection, nor has any instance bticn cited to us, where an action has been l)n)ught by a broker describing himself as such in the contract, and not using words which ex|>ressly or by necessary implication make him the contracting party. Without further arguing tho point, it is enough tt) refer to this unbroken rule as the settled law upon the sultject." ' in Irvine r. Watson,'* the cases were acted on, in which it has been decided that there is a distinction between ca.ses where an agent in eilVcting a contract for the purchase of goods does not disclose the txistence of a principal at all, and those where ho discloses that he has a principal but does not give his' name. In the former class of eases, it was held that it is settled law that the seller, upon discovery of tho principal, cannot have recourse to him, if in the mean while the principal has, bond fide, paid the agent. Hut it was further held that, in the latter class of cases, the seller may have recourse to the principal, though he has,/>oM. Millington, 1 II. Bl. 81 ; Rohinsoii v. Kutt# 672 COMMENTARIES ON SALES. [book II. plainti£Fs delivered the oil to C. without insisting on prepay- ment, and the defendants, not knowing that the plaintiffs had not been paid, paid C. shortly afterwards. C. stopped payment, and the plaintiffs thereupon sued the defendants for the price. The Court of Appeal held, affirming the judgment of Bowen, J., that, as the plaintiffs, at the time of the sale, knew the broker was buy- ing for principals, and not on his own account, the fact of the de- fendants having paid the broker did not preclude the plaintiffs from suing them for the price, unless, before such payment, they had by their conduct induced the defendants to believe that they had already been paid by the broker ; and that the mere omission on the part of the plaintiff's to insist on prepayment, was not, in the absence of an invariable custom to that effect, such conduct as would reasonably induce such belief. The defendants were, ac- cordingly, held liable to the plaintiffs for the price of the oil, not- withstanding their payments therefor to the agents.^ An agent of the Cherokee nation is not liable personally on contracts made with the nation in connection with their removal beyond the Mississippi River. He acts as a public officer for his government, and the rule as regards him is, that he is not per- sonally responsible on any contract he may make in his official capacity ; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears by satisfactory evidence of an abso- lute and unquaiitied engagement to be personally liable.^ If powers given to an agent to sell are ambiguous, and are rea- sonably construed by the agent and a third person dealing with him, the principal is bound, though it should prove not to have been the construction intended by the principal.^ In this case the United States Supreme Court acted on this principle in holding that a power to an agent to sell lands on such terms in all respects as he might deem most advantageous, and to execute deeds Oi conveyance necessary for the full and perfect transfer of the title, authorizes the agent to insert in the deed the usual covenants of warranty.* 1 See ante, note 1, to p. 561, where we have fully considered the question. It is fancied in this case that the dpciRions in Smyth v. Anderson, 7 0. B. 21 ; Heald V. Kenworthy, 10 Ex. 739, and Arm- strong V. Stokes, L. R. 7 Q. B. 598, are irreconcilable. Hut we think we have shown in our note, ante, to Armstrong v, Stokes, that such is not the case, and that we have there clearly shown, on a full examination of the authorities, what the law on the qaestion really is. 2 Parks V. Ross, 11 How. 362. This was put on the ground that it is nii established rule of law, that an agent vho contracts in the name of his principal is not liable to a suit on such contract; much less a public officer, acting for his government. « Le Roy t>. Beard, 8 How. 451. ♦ See Baring v. Corrie, 2 B. & Aid. 143 ; Courcier v. Ritter, 4 Wash. C. C. 551. PART VIII.] AGENCT. 673 If the owner of a bill send it to an agent, not residing at the place where it is payable, for collection, the agent has an implied authority to employ a sub-agent at the place where it is payable ; and if the sub-agent receive the contents, the owner can sue him for money had and received, though the sub-agent had no notice when he collected the money that the agent was not the owner. And, in such a case, the sub-agent cannot retain part of the pro- ceeds, on account of a debt of the agent, unless he has given credit on the faith that the agent owned the bill.* Merchants in London, upon the instruction of shipping agents at Havannah with respect to a cargo of tobacco to be consigned to the London merchants, and after receiving the shipping docu- ments, effected policies of marine insurance in the ordinary form on behalf and for the benefit of all parties whom it might concern. The Havannah agents shipped and consigned the tobacco in their own names, but were in fact acting as commission merchants for Havannah merchants to whom the tobacco belonged ; and the London merchants before effecting the policies had notice that the Havannah agents had an unnamed principal. A total loss having occurred, the London merchants received the policy mon- eys, but, before receipt, had notice that the moneys were claimed by the Havannah principals. On appeal from an order of the Court of Appeal,^ reversing a judgment of Manisty, J., in favor of the defendants, the House of Lords held, affirming the decision of the Court of Appeal, that an action lay by the Havannah princi- pals against the London merchants for the policy mone\'*8 ; that the London merchants were not entitled to a lien upon the moneys for the balance of their general account with the Havannah agents, and could not in that action set off their claim to that balance, or set off anything except the premiums, stamps, and commission in respect of the insurance.^ The fact of the principals being foreign principals did not affect the case. They having been the owners of the tobacco, and the money recovered under t' e policy having been received by the defendants after they had knowledge that the plaintiffs were the previously undisclosed principals re- ferred to by their agents, the House of Lords held, that, under the old form of pleading, monoy had and received for the use of the « Wilson V. Smith, 3 How. 763. Tliis ^ase followed Rank of the Metropolis v. The New England Bank, 1 How. 234. No action against any other person will lie on negotiable promissory notes bearing no name but that of the maker. Cragin V. Lovell, 109 U. S. 194 ; Nash v. Towne, 5 Wall. 689, 703 ; Williams v. Robbina, 16 Oray, 77 ; In re Andansonia Fibre Co. I', R. 9 Ch. 635 : Daniels v. Burnham, 2 La. 243, 245. This does not come within that class of cases in which the name of the principal appears on the face of the note. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326 ; Met- calf v. Williams, 104 U. S. 93 ; Hitchcock V. Buchanan, 104 U. S. 416. > Maspons v. Mildred, 9 Q. B. Dir. 630. > Mildred v. Maspons, 8 Ap. Gas. 874. ! ■■ I H ■ i iU% ^[1,1 \\< :'i!:,J, 574 COMMENTARIES ON SALES. [book 11. plaintiffs would lie against the defendants for money so received.' Lord Blackburn took the position that the case would also come under the Factors' Act, but as neither of the other lords sitting with him assented to that position, the case was not decided on that ground, although, evidently. Lord Blackburn had very decided views that the case came within the act.^ B. W, & Co., who had contracted with a colliery company for 10,000 tons of coal, to be delivered over a period of three montlis at a spout on the Tyne, " the turn to be mutually agreed upon," proposed to charter a foreign ship for the conveyance of 29 keels of Elsinore, and tendered to the captain a charter-party which stipulated for demurrage in unloading the ship, but made no pro- vision for detention in loading her. The captain declined to sign such a charter without an assurance that there should be no un- due detention of his ship ; and thereupon, B. W. & Co. obtaineti from the defendant (who was a clerk employed by several colliery companies to arrange the terms for loading) the following under- taking: "I undertake to load the ship Der Versuch, 29 keels, with Bebside coals in ten colliery working days, etc. On account of Bebside Colliery, W. L. Hoggett." This memorandum (which made no mention of the person contracted with) was communi- cated by the charterers to the captain of Der Versuch, who there- upon accepted the charter. The vessel being detained in loading beyond the stipulated ten days, the captain called upon the de- fendant to pay him .£45 for demurrage. The defendant repudi- ated all liability, but ultimately offered to pay the captain .£20. The defendant had no notice of the charter. In an action by the captain to recover .£45 for demurrage from the defendant, it was held that, upon these facts, a jury were warranted in finding that the undertaking to load within ten days was a contract between » Dii Bnssche v. Alt, 8 Ch. Div. 286 ; Mann v. Forrester, 4 Camp. 60 ; Boden- ham V. Hoskins, 21 L. J. N. s. (Ch.) 864 ; Pannell v. Hurley, ^ Coll. 241 ; Ex parte Kingston, L. R. 6 Ch. 632 ; Lanyon v, Blanchard, 2 Camp. 596 ; Maansa v. Henderson, 1 East, 335 ; McFarlane v. Norris, 2 B. & S. 783 ; Meyer v. Dresser, 16 C. B, N. s. 646, 665 ; Fish v. Kemp- ton, 7 C. B. 687 ; Savenza v. Brinsley, 18 C. B. N. 8. 467 ; Bx pnrte Dixon, 4" Ch. Div. 133 ; Irvine v. Watson, 5 Q. B. Div. 102, 414 ; Lanyon v. Blanrhard, 2 Camp. 696; Ek parte Cook, 4 Ch. Div. 123; Knatchbull r. Hallett^ 13 Ch. Div. 696, 709. ^ Under the Factors' Acts (including 5 & 6 Vic. c. 39) the consignee of goods is given a lien for advances on goods received from a consignor, as the apparent owner of the goods, "provided snch consifjncfi shall not have had notice by the bill of lading or otherwise," etc, "that such person so shipping in his own name is not the actual and bond fide owner of such goods." Lord Hlacklmm held that this was but in affii-mance of the com- mon law, to the effect that knowledge, however obtained, that the goods were not the property of the person dealing as a principal, prevented the advancer from having a lien for the advances made after such Knowledge, on the ground that it was unjust, with knowledge, to take one's goods to pay another's debts ; and that the case was governed by the exception in the statute. Mildred v. Masjwiis, 8 A pp. Cas. at p. 884, et sfq. But the case \va3 decided on common-law principles, irre- spective of the Acts. 1\ PART VIII.] AGENCY. 575 the captain and the defendant ; that there was sufficient consid- eration for it ; and that the contract was with the defendant per- sonally, and not as agent.^ The defendant, an estate agent, contracted to sell land to the plaintiff, who paid a deposit. The defendant signed a receipt in his own name for the deposit, and the plaintiff signed an agree- ment containing the terms of the purchase. The owner of the land refused to complete the purchase, and the plaintiff sued the defendant for damages for breach of the contract to sell. At the trial, the jury found that the defendant sold as principal. Held, that the defendant was personally liable, and that the agreement and receipt taken together formed a sufficient contract to satisfy the statute of frauds. ^ K., an agent of the plaintiffs, having authority to sell goods for them and to receive payment in cash or by cheque, but having no authority to indorse cheques, received from the defendants a cheque on their bankers, drawn payable to " S. & Co. [the name of the plaintiff's firm] or order," and fraudulently indorsed it, " S. & Co., per S. K., agent," and misappropriated the proceeds. The bankers paid the cheque and returned it to the defendants, and charged the amount to their account. The court held that an in- dorsement of a cheque ^^ per procuration," or " as agent," purports to be an indorsement by the payee within 16 and 17 Vic, c. 59, so as to protect the banker who has paid it, though the person by whom such indorsement is made has no authority to indorse it ; and, therefore, that, in this case, such payment by the ban^;er8 was a payment within the protection of the statute, and that the plaintiffs could not sue the defendants either for the price of the goods or for an alleged conversion of the cheque.^ I 1 r 1' I j. I : !,• i !^^: I 1 Wt'idner v. Hoggett, 1 C. P. D. 533. See Tanner v. Christian, 4 E. & H. 59; Lennard v. Robinson, 5 E. & B. 125 ; Piirker v. Winlow, 7 E. & B. 942, a.s to an fliicnt signing. The main qne.stion in- volved in Weidner v. Hoggett, 1 (.'. P. Div. 533, was, as to whetlier, no name being mentioned with whom the under- taking was made, the captain con.il take the benefit of the contract, and it was held that it was a contract made with the I'lililain as an ninlisclosed principal, 2 Long V. Millar, 4 C. P, Div. 450. And see Higgins v. Senior, 8 M. & \V. m ; Jones V. Littledale, 6 A. & E. 486 ; Ridgway v. Wharton, 6 H. L, C. 238 ; Allen V. Bennet, 3 Taunt, 169 ; Calder v. l>obell, L. R. 6 C. P. 486 ; Baumann v. James, L. R. 3 Ch. 508 ; Jones v. Victoria Graving Dock Co., 2 Q. B. Div. 314. » Chariest. Black well, 1 C. P, Div, 648; affirmed, on appeal, by the Court of Ap- peals, 2 C. P. Div. 151. Hy the 19th sec- tion of the act it is provided that any draft or order drawn upon a banker for a sum of money payable to order on de- mand whiidi shall, when pre.sented for payment, purport to be indorsed by the ])erson to whom the same shall be drawn jmyablc, sliall be a sufficient authority to such banker to pay the amount of sucli draft or order to the bearer thereof ; and it shall not be incumbent on such banker to prove that sucii indorsement, or any subsequent indorsement, was made by or under the direction or authority of the person to whom the said draft or order was or is made payable either by the drawer or any indorser thereof. Hare v. Copland, 13 Ir. C, L. 426, is to the .same effect, under this act, as Charles v. Black- well, 1 C. P. Div. 648; 2 C. P. Div. 151, '•VM' 576 COMMENTARIES ON SALES. [book II. It has been held that in order to constitute a valid defence within the rule in George v. Clagett,^ the plea should show that the contract was made by a person whom the plaintiff had in- trusted with the possession of the goods ; that that person sold them as his own goods in his own name, as principal, with tlie authority of the plaintiff ; that the defendant dealt with him as, and believed him to be, the principal in the transaction ; and tliat, before the defendant was undeceived in that respect, the set-off accrued. It is not necessary in such a plea to negative " means of knowledge " that the seller was dealing as an agcnt.^ To a count for goods sold and delivered, the defendants pleaded that the goods were sold and delivered to them by S., then being the agent of the plaintiffs, and intrusiod by them with the goods as apparent owner thereof ; that S. sold the goods in his own name, and as his own goods, with the consent of the plaintiffs ; that, at the time of the sale, the defendants believed S. to be the owner of the goods, and did not know that the plaintiffs were the owners of or interested therein, or that S. was agent ; and that, before the defendants knew that the plaintiffs were the owners of the goods or that S. was agent in the sale thereof, S. became in- debted to the defendants, etc. ; claiming a set-off. Replication, that, before the sale by S. the defendants had the means of know- ing that he was merely apparent owner of the goods, and that the same were intrusted to him as agent, and that S. was agent, and as such, sold the goods to defendants. Held, that the plea was good, and the replication no answer to it.^ In Cookson v. The Bank of England, cited in Haid v. Copland, Martin, B., at nisi prills, held, that the section covered in- dorsements by procuration. The only re- port of Cookson V. The Bank of England was in the notes of a short-hand reporter for the London Times newspaper, which led to some satirical remarks by Chris- tian, J., in Hare v. Copland ("Really, after having stooped so low for an author- ity, we are but ill rewarded for our hu- mility," 13 Ir. C. L. at p. 439) ; but the case was ai)proved by Lindley, J., in Charles v. Blackwell, 1 C. P. Div. at p. 555. See, as to checks being payment before the statute, Hansard v, Robinson, 7 B, & C. 90; Crowe ■;. Clay, 9 Ex. 604; and as to effect, then, of their being signed "by procuration," Alexander v. Macken- zie, 6 C. B. 766; Stagg v. Elliott, 12 C. B. N. s. 373. 1 If a factor who sells under a del cre- dere commission sells goods as his own, and the buyer knows nothing of any prin- cipal, the buyer may set off any demand he may have on the factor against the demands for the goods made by the prin- cipal. George o. Clagett, 7 T. R. 359. 2 Berries v. Imperial Ottoman Bank, L. R. 9 C. P. 38. ** Borries v. Imperial Ottoman Bank, Tb, Coleridge, C. J., in a few wnnls, places the matter on the correct basis, thus; "It was, in the first place, con- tended that the plea should have avi>rre(l not only that the defendants did not know that the plaintiffs were the owners of the goods, and believed S. to be the owners, but also that the defendants had not the means of knowledge that S. was not owner, but was acting in the sale as agent. It appears to me, however, that the plea states all that is material to niise the defence. It states that the plaiiitiH's intrusted S. with the goods for sale ; that they sold them ; and that the defendants bought them b(ilieving S. to be the owner of them. The essence of the defence is, th real slate of the defendants' minds when they bought the goods of S. They assert that it was this : that they believed the goods to be the goods of S., and did not PART VIII.] AOENCT. 577 That a broker or agent employed to sell liaa prima facie no au- thority to receive payment otherwise than in money, according to the usual course of business, is well establisiicd ; and it is equally as clear that, if instead of paying money the debtor writes off a debt due to him from the agent, such a transaction is not payment as against the principal, who is no party to the agreement, though it may have been agreed to by the agent. Thus, where A., a broker, sold some cotton yarn to the de- fendant ; before its delivery the defendant paid to A., in ad- vance, £1000 on his general account. Part of the yarn was sold by A. as agent for the plaintiff on a del credere commission. The value of the yarn being more than £1000, the defendant paid the difference to A. in cash, and so balanced the accounts i)etween them. A. did not pay over to the i)laintiiT the value of his yarn, and became bankrupt. It was held, that the defendant was still liable to the plaintiff for the price of the yarn, except to know or believe that the pluintiffs were the owners of or interested in tlieni. This hrin<,'9 tlie ease distinctly within the rule in George v. Clagett, 7"T. K. 35i>, and that is tlie t'orni ot jiiea which has been coininonly in use to raise a defence of tiiis kind. . . . The plea beinf{ good, it fol- lows that the rei>lication, which merely states that at the time of tlie sale the de- fendants had the means of knowhui that S. was only apparent owner, and was in- trusted with tlie goods as agents of the plaintill's, is no answer to the plea, being a mere statement of a fact which was im- material." Borries i". hn|ierial Ottoman Bank, L. R. 9 C. W 38, 45. A similar (piestion to this came up in a Canadiau case, under their Stamp Act (42 Vic. ch. 17), where the plaintiff re- ceived a bill whicii was not stamped ; but the ])laintiir, although knowing tiiat bills ri'(juired to be stamped, did not notice that the bill was not stamjied, and jiut it ill his safe, where it remained lor some two montiis, when, on the {ilaiiitilf's at- tention being calh'd to the fact that the hill was not stamped, and which was the first time he had actual "knowledge" of that fact, he put on double stamps, the iii't (section 13) making bills goal pro- viiling that, in such a case, double stamps are put on by the holder as soon as he accpiires the knowledge that the instru- ment is defective for Wi;iit of stamps. The Supreme Court of Canada, affirm- ills the judgment of a majority of the Supreme Court of New Brjnswick, Weldon and Wetmore, JJ., dissenting (Tufts V. C'apman, 22 N. B. R. 195), lield that t. bill was good ; having the means of knowledge by the holder not VOL. I. 37 being equivalent to the actual knowledge which was meant by tlie act. Cliajmian V. Tuft.s, 8 Can. Sup. Ct. 513. Allen, C. J., in delivering the judgment of the majority of the New Brunswick Court, .said : "Whether the bill was improperly received in evidence depends upon the con.slruction to be given to the 13th .sec- tion of the Stamp Act, 42 Vic. c. 17, which authorizes any liotder of a bill or note not stanii)ed, or insufliciently stamped, to alH.x double duty stamps, if, when he became holder thereof, he liad 'no knowledge of such defect,' and paid the doMble duty 'as soon as he acipiired such knowleilge.' . . . If by the word 'knowledge' is to be understood actual information of the fact, then I am unable, from the plaintiff's evidence, to satisfy myself that he knew the bill was not stamped when he took it. When he said his ' lirst knowledge ' of t!ie fact was when his attorney called his attention to it, he must have meant that his mind was never directeil to that delect before ; though, having the bill in his possession, ho clearly had the means of knowledge nearly two months before. If he 'never gave it a thought," I do not see how it can be said that he knew it was not stamped, or how a man can be said to have knowledge of a fact that he has never thought of." See House V. Hou.se, 24 U. C. C. P. 526, under the same act, and to the same effect. The dissenting judgment of Wetmore, J., in the New Brunswick Court, is full of absurdities. See his grossly contradictory statements of the evidence in the case on pp. 201, 204, of the report. Clearly, in such cases, having the means of knowledge is not equivalent to actual knowledge. u m. I i 578 COMMENTARIES ON SALES. [book II. the extent of the cash payment, the advance of ^1000 to A. not amounting to a prepayment, because it was on the general ac- count, and the settlement of accounts not constituting payment as against the plaintiff; as an agent, whether acting on a del credere commission or not, is only authorized to receive payment in cash, in the absence of any practice or custom to the contrary.' The question came up again in the Exchequer Chamber, on ap- peal from the decision of the Court of Common Pleas,^ in which counsel for the defendant claimed that the settlement w^ith A. amounted to payment as against the plaintiff ; but that it was, at any rate, a question for the jury, depending upon what authority, express or implied, A. had from the plaintiff' in respect of the mode of receiving payment. The court held that it was a ques- tion of fact for the jury, whether a payment to a broker in advance was a good payment as against the principal, depending on the custom of the trade ; ^ and as that question had not been left to the jury, the court ordered a new trial. There was no evidence on the trial given of any such custom ; such a question was not asked to be submitted to the jury, nor was there any such point taken at the Court of Common Pleas. And there is nothing in the case in the Exchequer Chamber to question the correctness of the decision in the Common Pleas in such cases as that was treated to be ; viz., one in which no such custom was 1 Catterall v. Hindle, L. R. 1 C. P. 186. Abbott, C. J., in Russell v. Bang- ley, 4 B. & Aid. 395, 398, says: '^The general rule of law is, that if a creditor employs an aj»ent to receive money of a debtor, and the agent receives it, the debtor is discharged as against the prin- cipal ; but if the agent, instead of receiv- ing money, writes oft' money due from him to the debtor, then the latter is not dis- charged." See Bartlett v. Pentland, 10 B. &C. 760; Underwood v. Nichols, 17 C. B. 329; Fish i>. Kempton, 7 C. B. 687; Scott v. Irving, 1 B. & Ad. 605; Sweeting v. Pearce, 9 C. B. N. s. 534. 2 L. R. 2 C. P. 368. 8 It was held in Todd v. Reid, 4 B. & Aid. 210, that an insurance broker is only entitled to receive payment for the as- sured from the underwriter in money ; and, therefore, a custom to set off the general balance due from the broker to the underwriter, in the settlement of a particular loss, is illegal, as an attempt to establish a custom to pay the debt of one person with the money of another. But the contrary was decided in Stewart V. Aberdein, 211, 228, Lord Abinger there saying: " It must not be considered that by this decision the court means to over- rule any case deciding that where a prin- cipal employs an agent to receive money and pay it over to him, the agent does not thereby ac(iuire any authority to pay a demand of his own upon the debtor by a set-off in account with him. But the court is of opinion that where an in- surance broker, or other mercantile agent, has been employed to receive money for another in the general course of his busi- ness, and where the known general course of business is for the agent to keep a run- ning account with the principal, ami to credit him with sums which he may have received by credits in account with the debtors, with whom he also keeps running accounts, and not merely with moneys actually received, the rule laid down in those cases cannot properly be applivid ; but it must be understood that where an account is bond fide settled according to that known usage, the original the prices at which he had sold the goods or the length of credit ho liad given. He paid the money which he had receivo i from the sales into the general account of his firm, and made his paynionts to T. & Co. throufl' his firm, with whom he kept an account of moneys paid in and drawi\ out by him in respect of moneys unconne • d with the partnership, which account included many items wholly unconnected with the goods of T. nftt>r appear, that as much was not allowed the defendants on that account as ought to have been." See Church v. Abell, 1 Cnn. S. 0. B. 442, where lamentable ignorance as to the principle governing the right to bring a cross-action is shown. We state the case fully in a later volume of this work. « Whiteside v. United States, 93 U. S. 247 ; Lee v. Munroe, 7 Cranch, 376. PART VIII.] AGENCY. 585 the mistakes of public officers or agents than that a rule should be adopted which, through improper combinations or collusion, might be turned to the detriment and injury of the public* Individuals as well as courts must take notice of the extent of authority conferred by law upon a person acting in an official capacity, and the rule applies in such a case that ignorance of the law furnishes no excuse for any mistake or wrongful act.* Where a vendor employed a broker to sell property in Louisi- ana, and the broker sold the property on terms satisfactory to both vendor and vendee, but the vendor subsequently refused to complete the sale, the Supreme Court held that the broker was entitled to his commission. The principle is the same whether the property is real or personal.^ 1 Mayor v. Eschback, 17 Md. 282. 2 State i;. Haves, 62 Mo. £578 ; Dela- field i>. State, 2ti Wend. 238 ; People v. Bank, 21 Wend. 431 ; Mayor u. Reynolds, 20 Md. 10. An attorney-at-law, virtnte officii, liaa no authority to purcbn.se prop- erty iu the name of his client, and wliero the client repudiates any such authority, the burden of proof to sustain it is on those who seek to sustain acts done under such alleged authority. Savery v. Sypher, 6 Wall. 157. The United States are not bound by the declarations of their agent, founded upon a niistuke of fact, unless it clearly apj^ar that the agent was acting within the scope of his authority, and was empowered in his capacity of agent to make such declaration. Lee v. Munroe, 7 Cranch, 366. Facts brought to the knowledge of an attorney in his in(iuiries for his clients respecting a specific matter are considered in law as brought to their knowledge. In- formation to him of all essential matters affecting tlie subject he was investigating is in law information to them, and their action must be adjudged accordingly. The law, indeed, goes much further than this. It considers tlu! principal as aftectcd with notice of all facts, notice of which (;nn bo charged upon the attorney. Smith v, Ayer, 101 U. S. 320, 325. Money dejiosited with bniloes to bn paid over by them when certain /"cord Dooks which hatl l)een stolen were i)laced in the posst.ssion of the bailees, and '.vliich was paid over by them in good faith on the receipt of the books, was held to have been properly paid over, although there were slight injuries in some of the recoi-d books when received. The court expressed the opinion that if the bailees, as agents of the county owning the record books, had refused to receive them for such a rea- son, the county would Sen have had a stronger cause of action against their agents for breach of their duty. Eldridge v. Hill, 97 U. S. 92. In Tweed's Case, 16 Wall. 504, the claimant contracted with an agent of the treasury department, under the act of Congress of Ju'y 2, 1864 (12 Stat, at Large, 820), to Lay cotton in the Confed- erate States, which had previously be- longed to the Confederate Government, three-fourths of cotton so purchased to belong to the claimant and one-fourth to the United States. In addition to pur- chases so made by him, he made other purchases of cotton which had not be- longed to the Confederate Government. The United States claimed one-fourth of this cotton as well as of the other. Tlio Court of Claims held, aflirmed by tlie United States Supreme Court, that they were not entitled to it. Altliough Bradley and Davis, JJ., dissented fiom this de- cision, we can find nothing in the case to warrant any difference of opinion on the simple question it involves. The United States Government is not responsible for the laches or wrongful acts of its ollicors. A government may be a loser by the negligence of its olKcei-s, but it never becomes bound to others for the conse(jucnces of such neglect, unless it be by express agreen»ent to that effect. Hart V. United States, 95 U. S. 316; Gib- bonsr. United States, 8 Wall. 269 ; United States V. KirKpatrick, 9 Wheat. 720 ; United States v. Vanzandt, 11 Wheat. 184 ; United States v. Nicholl, 12 Wheat. 605 ; Jones V. United States, 18 Wall. 662. A power to a general agent of a railway company to make contracts and agree- ments U)r borrowing money and making purchases of railroad iron, includes an au- thority to give collaterals as a security for the money borrowed, or for the payment of a debt incurred for the iron purchased. Hatch V. Coildington, 95 U. 8. 48. ■ Rock V. Emmerling, 22 How. 69. The .1 . Ml ! i;N i 'I- 586 COMMENTARIES ON SALES. [book II. The case of Pearson v. Scott* was decided on the principle laid down by Lord Tenterden, in Bartlett v. Pentland,^ that an au- thority given by a principal to his agent to receive money cannot be construed into an authority not to receive money, but to allow the debtor to write off as much as may be due from the agent to him. Thus, the plaintiffs, Pearson and others, executors, holding stock in their name, directed their solicitor to sell the stock. The solicitor, in the name of his firm, gave to a stockbroker, the de- fendant Scott, whom the solicitor had employed in Stock Exchange speculations, directions to sell the stock. The stock was sold by the defendant, and the solicitor returned to the stockbroker trans- fers of the stock, with receipts indorsed, signed by the executors. The sale was completed, and the defendant sent to the solicitor a cheque for part of the purchase-money for the shares, and carried the balance on the transaction to the credit of the solicitor in the account between them, which account was afterwards settled by a payment made to the stockbroker. Held, tliat, under the cir- cumstances, tlie stockbroker must be held to have had notice tliat the shares were not the property of the solicitor, and that, though the solicitor had from the executors authority to receive the pur- chase-money, payment to him, by giving him credit in an account between them, was not sufficient to discharge the stockbroker, the defendant, who remained liable to the executors for the balance.^ Barken;. Greenwood, 2 Y. & C. Ex. 414, 419; Scott V. Irving, 1 B. & Ad. 605, 614. In Sweeting v. Pearce, 7 C. B. N. s. 449, 485 (affirmed 9 C. B. n. s. 534), Byle.s, J., thus states the principle : " It is not dis- puted that the general rule of law is, that an authority to an agent to receive money implies that he is to receive it in cash. If the agent receives the money in cash the probability is that he will hand it over to his i)'.incipal ; but if he is allowed to receive it by means of a settlement of ac- counts between himself and the debtor, ho might not be able to pay it over. At all events, it would very much diminish tiie chance of the principal ever receiving it ; and upon that j)rinciple it has been held that the agent as a general rule cannot receive payment in anything else but cash." And Willcs, J.: "As a general rule, when a person employs an agent to receive a debt, the agent must receive it in money, and it is not sufficient that tlie debt should bo written off against a debt due from such agent." As to the effect of usage in such a case, see Scott v. Irving, 1 B. & Ad. 605; Sweeting v. IVarce, 9 C. B. N. s. 534; Ex parte Cooke, 4 Ch. Div. 123; Tomkins v. Jaffery, 3 App. Cas. 213; Ben- nell V. Hurlev, 2 Coll. 241; Bodenham v, Hoskyns, 2 De G. M. k G. 903. court say ; " Where the vendor is satisfied with the terms, made by himself, through the broker, to the purchaser, and no solid objection can be stated, in any form, to the contract, it would seem to be clear that the connnission was due, and ought to be paid. It would be a novel principle if the vendor might capriciously defeat his own contract with his agent by refusing to pay him when he had done all that he was bound to do. The agent might well un- dertake to procure the purchaser ; but this being done, his labor and expense could not avail him, as he could not coerce a willingness to pay the commission which the vendor had agreed. Such a state of things could only arise from an express understanding that the vendor was to pay nothing, unless he should choose to make the sale. The Civil Code of Louisiana declares (Art. 2035) that the condition is considered as fulfilled when the fulfilment of it has been prevented by the party bound to perform it." See, also, llighter v. Alamon, 4 Rob. 45; Wells v. Smith, 3 La. 601 ; Levistones v. Laudreaux, 6 La. An. 26 ; Lestrade v. Porrera, Id. 398. » 9 Ch. Div. 198. 9 10 B. & C. 760, 769. ' See Baring f>. Corrie, 2 B. & Aid. 137, 144; Todd v. Reid, 4 B. & Aid. 210; PART VIII.] AGENCT. 687 A company employed an agent for the sale of goods in a shop taken for that purpose. The agent was to be paid a commission on the sale, and he was to accept bills for the company for sucii a reasonable amount as was represented by the goods on his premises ; and if, on the bills arriving at maturity, the agent had not sufficient funds in his hands to meet the bills, the company were to make good the difference. The company failed, and was wound up, and at that time a bill accepted by the agent had not arrived at maturity. In holding that the agent had a lien on the goods, Malins, V. C, says : " When a man receives goods from an ordinary tradesman, and gives a cheque in payment for thtm, then, as soon as the cheque is raid, the goods are paid for; but if, by arrangement, he gives a promissory note in payment for the goods instead of a cheque, still the transaction is in the same position, and as soon as the promissory note is honored the goods are paid for. Consequently, when the bill was honored the goods were paid for. Could it be contended that the company, after this, could have gone to the house and taken out of Welsford's possession the goods he had paid for ? He would have said, ' I have goods in my possession, and you cannot take them away without paying me the amount of the bill which I have accepted.' If they had persisted, he might have come to this court, and would certainly have been entitled to an injunction to restrain the company from removing the goods. The result is, then, that he has paid for the goods, and no doctrine of agent and principal could prevent him from being entitled to retain the goods ; and though the company do not actually say you shall have a lien upon the goods, it was implied by the nature of the transaction."* The distinction between a general and a special agency is in most cases a plain one. The purpose of the latter is a single transaction, or a transaction with designated persons. It does » In re Pay's Patent Felted Fabric Co., 1 Ch. Div. 631. Evidence of declarations of an agent as to past transactions of his principal are, as mere hoiirsay, inadmis- sible. Goetz V. Bank of Kansas City, 119 n. S. 551, 560 ; Luby v. Hudson River K. K., 17 N. Y. 131, 133 ; Adams r. Han- nibal & St. Joseph K. R., 74 Mo. 653. In the case of Cliquot's Champap^no, 3 Wall. 114, which was a libel for the for- feiture of goods for under-valuation, the United States Supreme Court enunciated the following principles: 1. Whatever is done by an agent in reference to the busi- ness in which he is at the time employed, and within the scope of his authority, is said or done by the principal, and may be proved as well ia a criminal as in a civil case in all respects as if the principal were the actor or the speaker. American Fur Co. V. United States, 2 Peters, 364. 2. The Act of 1863 provided that if any "owner, consignee, or agent shall know- inghj" make a false entry of goods, the goods shall be forfeited. In this case if the owner has the knowledge, and the entry is made by an innocent consignee or agent, the act of the agent or cousignt^e is to be regarded as the act of the guilty principal, and the sa^ie penal conse- quences follow as if the entry had been made by the owner in his own person. As to the evidence to show the foreign value, see also Cliquot's Champagne, 3 Wall. 114 ; Fennerstein's Champagne, lb. 146, and cases there cited. !*l i 588 COMMENTARIES ON SALES. [book II. not leave to the agent any discretion as to the persons with whom he may contract for the principal, if he be empowered to make more than one contract. Authority to buy for a principal a single article of merchandise by one contract, or to buy several articles from a person named, is a special agency ; but authority to make purchases from any persons with whom the agent may choose to deal, or to make an indefinite number of purchases, is a general agency. And it is not the less a general agency because it docs not extend over the whole business of the principal. A man may have many general agents; one to buy cotton, another to buy wheat, and another to buy horses. So he may have a general agent to buy cotton in one neighborhood, and another general agent to buy cotton in another neighborhood. The distinctiou between the two kinds of agencies is that the one is created by power given to do acts of a class, and the other by power given to do indi'n'dual acts only. Whether, therefore, an agency is general or special is wholly independent of the question whether the power to act within the scope of the authority given is unre- stricted, or whether it is restrained by instructions or conditions imposed by the principal relative to the mode Of its exercise.^ 1 Butler V. Maples, 9 Wall. 766. The court applied these principles to the facts in this case. The facts were, that one Shepherd, living in Arkansas, made a purchase of 144 bales of cotton there from the plaintiff, also a resident of Arkansas ; Shepherd professing in what he did to act in the name of a firm known as Bridge & Co. , of Memphis, composed of the defend- ants, Butler and Hicox, and others. The cotton was bought as it lay, Shepherd agreeing to pay forty cents a {lound for it as soon ns it was weighed. Having been weighed, he removed hfty-four bales of it ; but ninety bales were burned before it could be placed in a boat to be carried up the river. The fifty-four bales removed were got on board and sent to Bridge & Co., and the plaintiff went to Memphis to see them. He saw Hicox, who wholly denied She[)herd's agency, and refused to pay anything for the cotton that was lost, but agreed to pay fifty cents a pound for the hfty-four oaks which had arrived. The ()laintitf took this sum, supposing, as he alleged, that the assertions about Shep- herd's want of authority were true, and only on that account. Seeing Shepherd afterwards, Shepherd informed him that the assertions were not true ; and Butler and Hicox still wholly denying Shepherd's autiiority to make the contract and to bind the firm, and still refusing to pay for the cotton that was burnt, nn action was brought against them to recover the price. The evidence of Shepherd's authority for the defendants was of two kinds, the first being a written agreement between Bridge & Co. and Shepherd, in which the pur- pose of the agreement was stated to be the " purchasing R. C. Stone's and such other cotton as said Shepherd may be able to purchase in Desha County, Arkansas, and vicinity, under the conditions and re- strictions hereinbefore set forth." The agreement recited that Bridge & Co. had furnished |4000 to Shepherd, and stipu- lated that they would furnish him sui'h other money from time to time as mi<;lit be necessary to purchase saiil cotton. I'lie agreement further expressed that Sliep- herd should buy the cotton if it could be bought at the price set forth therein, and as much more as he could on the best pos- sible terms, not paying an average of more than thirty cents per pound for niiddiing cotton, and lower in proportion to the grade. Shepherd was to jiay as little as possible on the cotton until it was deliv- ered on a boat, or within protection of a gunboat, and, when thus delivered and paid for, the property was to vest in Bridge & Co., except as to Shepherd's share, amounting to one-eightii of the iirof- its. It was also provided that contracts, shipments, permits, etc., necessary to pur- chase the cotton and get it to Memphis, should be in Shepherd's name, Bridge & Co. having authority to use it as necessary. The other direct evidence of the agency was PABT VIII.] AGENCY. 689 Instructions were given by an insurance company to its agents not to deliver policies to applicants for insurance until the whole supplied by the testimony of one Martin, a witness for the defendants. He was sent hy them to Arkansas with money and in- structions for Shepherd, the instructions being that he shouhl purchase cotton for the Arm, but was not to agree to pay more tlian from thirty to tliirty-five cents jier |)ouud for it. He miglit make small ad- vances, but he was instructed not to pay the balance of the purchase-money, or make it j)ayable, until the firm should be able to send a boat up the Arkansas river for the cotton, and until it was in their C session, weighed and placed on the t. He was directed to take no risk for the firm of the destruction of the cot- ton by incendiaries, or in any other way, except to the extent of the money ad- vanced. On this evidence the charge to the jury was to the following effect : A principal is bound by all that a gencrtil agent does within the scope of tiie busi- ness in which he is employed as such general agent ; and even if such general agent should violate special or seci'et in- structions given him by his principal, and not disclosed to the party with whom the agent deals, the principal would still bo bound if the agent's acts were within the scope of the business in which he was em- ployed, and of his general agency. But a party dealing with a general agent who seeks to hold the principal bound for the agent's acts or contracts, must show, in order to recover, that the agent held him- self out as general agent, and that in fact he was such general agent. If Shepherd held himself out as the general agent of Bridge & Co., then the defendants are bound by the contract which he made with the lilaintiffs for the cotton, notwithstanding Shepherd may have agreed to pay more for the cotton than his princiiial had au- thorized ; and if, as general agent for liridge & Co. buy cotton in Desha County, Shcpheru was not authorized by Briilge & Co. to buy cotton except to be delivered on board the bor.t, and, in viola- tion of their instructions, he did buy the plaintitt's cotton, and agreed to receive and accept delivery of it elsewhere tiian on the boat, unless the plaintiff knew of tliese instructions, the defendants are iKJund by tiie contract which Shepherd made, becatiso it was within the scope of his general agency just as much as was the agreement to give for the cotton a larger pnce than that to which he was limited by the instructions of Bridge & Co. On the principles above laid down (finte, p. 688), the Supreme Court, on error, held that the agreement created a general agency to buy cotton in Desha County ; and it was therefore not error for the court to instruct the jury, as was done, that the agency was a geneial one, and that the defendants were bound by the contract if Shepherd held himself out as authorized to buy cotton, and if the ])laintifl' had no knowledge of the instruc- tions respecting the mode in which the agent was required to act. It will be noticed here that the Su- preme Court, in the statement of prin- ciples by which they were governed in deciding the case (see ante, ji. 588), and with which statement of principles we fully concur, do not lay down any such general principle as was done by the court below, that "a party dealing witii a gen- eral agent who seeks to hold the principal bound for the agent's acts or contracts must show, in order to recover, that the agent held himself out as general agent, and that in fact he was such general agent." As the alleged necessity of show- ing that the agent "held himself out as general agent " was placing an additional burden on the plaintiif, it was not a mat- ter with which in the case the defendants could find fault. But, as a matter of law, it is not correct. A party may bind his principal by his acts as agent without "holding himself out as a general agent." If an agent contracts for his principal, the fact that he is such agent will bind his principal within the scope of his author- ity, whether that authority be to act as a general or .special agent. If contracting simply as agent, and he has the authority to contract as a general agent, his con- tract, within the scope of his authority, will bind his principal without his having held himself out as a generui agent. Ami the cases are fre(iuent, as is shown in this Part, where an agent has contracted for a principal, and has not disclosed his agency at all, and on discovery of the undisclosed principal the latter has been licld liable on the contracts of one who was liis agent in fact, although not holding himself out as such agent at all. And .n that case, if the agent were, in fact, the general agent of his principal, the pi'inci|ial would be liable on the contract of his gcm-ral agent, within the scoik* of his agency, although the fact of such agency, irre- spective of its nature, whether general or 8j)ccial, had not been disclosed at all. The court below evidently erred in im- properly using the language that, to bind the principal, it must be shown " that the agent hela himself as general ogent," by 1: 'ii m m \m M S ;.t. ; ; i I 590 COMMENTARIES ON SALES. [book II. premiums were paid, as the premiums would stand charged to the account of the agents until the premiums were received or the policies were returned to the head office. The Supreme Court of the United States held, that this afforded a strong presumption that the custom was known to the company, and that, where the policy is delivered without requiring payment, the presumption is, especially if it is a stock company, that a credit was intended, and the rule is well settled that, where a credit is intended, the policy is valid though the premium was not paid at the time the policy was delivered, as where credit is given by the general agent, and the amount is charged to him by the company, the transaction is equivalent to payment.^ One of the principal doctrines connected with the law of prfli- cipal and agent is that the principal is liable for the acts of his agent within the scope of his employment; the scope of the employment depending on the nature of the employment. This doctrine is well illustrated by McGowan & Co. v. Dyer.^ In that case the plaintiffs, a limited company, of vvhicii C. was managing director, had begun printing a periodical for D. & Co., a firm consisting of the defendant's son and two others, and the periodical was sold on commission by S. The plaintiffs, rep- resented by C, refused to go on printing without a guarantee, and the defendant consented to become security by drawing a bill on D. & Co. and indorsing it to the plaintiffs, upon the understanding that he was to have funds to meet it out of the debt accruing from S. to D. & Co. C. was told of this arrangement. Before the defendant drew this bill, C. had lent money to D. & Co. on his own account, and held their acceptance of his draft. When this latter bill became due, C. obtained an order on S. from the other two partners of D. & Co., without the knowledge or consent of the defendant or his son ; and, under this order, C. obtained the amount due from S. to D. & Co., and appropriated it to the pay- ment of this bill, the amount being more than sufficient to cover the defendant's bill. The plaintiffs having sued the defendant on his bill, it was held that the defendant had no defence as against the plaintiffs ; for that the plaintiffs were not responsible for what making a very palpable misapplication of that language. It would Iiave been quite correot — perfectly good law — to have said that one may be the agent (general or special) of another either by being in fact such agent, or by being lield out by that other as such agent ; but to ■>pply this language, as was done in this case in the court below, and say that one must not only be in fact a general agent, but >' must hold himself out as such general agent," in order to bind his principal, is entirely incorrect. » Miller v. Life Ins. Co., 12 Wall. 285 ; Goit v. Insurance Co., 25 Barb. 189; Sneldon v. Atlantic F. & M. Ins. Co., 26 N. Y. 460 ; Wood i;. Insurance Co., 32 N. Y. 619; Bragdon v. Insurance Co., 42 Me. 262 ; Trustees v. Insurance Co., 18 Barb. 69 ; s. o. 19 N. Y. 305. a L. R. 8 Q. B. 141. le pay- cover mt on Igainst what |cipal, is Wall. kb. 189; 18. Co., Ice Co., nee Co., (Co., 18 PART VIII.] AGENCY. 691 C. did in getting his private debt paid, as, though he was their managing director, he was not then acting for them or in pursu- ance of any autliority from them.* The defendant, wlio resided at Liverpool, gave to the plaintiffs, who carried on business at Pernambuco, an order to purchase 100 bales of cotton of a specified quality in the following terms : " 1 beg to cor-^rm my letter of the 23d of February, and hope you will have executed fully all the cotton ordered, and consider still in force. If executed, please regard this as a new order for 100 more." The plaintiffs, acting on this order, purchased in the market and paid for ninety-four bales of the specified cotton. No direct evidence was given as to the then state of the Pernambuco market ; but the circumstances of the case rendered it reasonable to infer that the plaintiffs, in purchasing ninety-four bales, had done all that was practicable. The defendant declined to pay for these bales on the ground that his order had been inadequately per- formed. The Court of Exchequer held, that the order must be con- strued with reference to the state of market for which it had been given, and that it had been substantially complied with.'"* It was a question as between principal and agent, and tlie court treated it as reasonable if the plaintiffs could have purchased the re- maining six bales they would have done so, and not to have purchased the ninety-four bales on an order for 100 would have been a breach of their duty as such agents.^ 1 In this case, the act of C, in taking payment of his own debt, iKing in no way done for the company, or in pursu- ance of any authority, express or implied, from them, couM not affect the rights of the company to recover from the de- fendant, vhough the effect of the arrange- ment might be to make C. liable personally to the defendant. The case was put upon the ground that if goods or funds pledged to a surety were improperly taken by a person acting for himself, the surety would not be discharged where the vrong-doer was a clerk or other agent of the principal creditor, though not acting in any way for his employer when he did the wrongful act, nor in pursuance of any authority, express or implied, from him. See, as to appropriation of funds to pay a debt, Tibbits V. George, 5 A. & E. 107, 115, 116; Row V. Dawson, 1 Ves. Sen. 331, 332 ; Whitfield V. Fausset, 1 Ves Sen. 391 ; Malcolm v. Scott, 3 Hare, 52 ; Rodick v. Gandell, 12 Beav. 329 ; Morrell v. Woot- ten, 16 Beav. 203 ; Burn v. Carvalho, 4 My. & Cr. 702 ; Steele v. Stuart, L. R. 2 Eq. 84. * Johnston v. Kershaw, L. R. 2 Ex. 82. ' The court here followed the princi- ples thus laid down in Story on Agency, § 170 ; " The principal is not bound by the unauthorized acts of his agent, but is bound where the authoiity is substantially pursued, or so far as it is distinctly pur- sued. But the question may often arise whether, in fact, the agent has exceeded what may be deemed the substance of his authority. Thus, if a man should author- ize an agent to buy one hundred bales of cotton for him, and he should buy but fifty at one time of one person, and fifty at another time of a different person, or if he should buy but fifty only, being un- able to purchase more at any price, or at the price limited, the question might arise whetiier the authority was well executed. In general it may be answered that it was; because in such a case it would ordinarily be implied, that the purchase might be made at different times, of different per- sons, or that it might be made of a ])art only, if the whole could not be bought at all, or not within the limits prescribed." See Ireland v. Livingston, L. R. 2 Q. B. 99, to the same effect. But see, as to where the question is between vendor and vendee, Cross V. Eglin, 2 B. & Ad. 106 ; Tanvaco V. Lucas, 1 E. & E. 581. An agent em- ployed to make a contract at a particular place has an implied authority to act I J j ;,] j ''' ! 1' ■ i i ' 11 ■ i' 1 f- ,; i \ I :! l: ;'i ^ i 592 COMMENTARIES ON SALES. [book II. A principal is bound by the acts of his agent within the scope of his employment, even though the agent should, in so doing, act in contravention of private instructions given by the principal to the agent. The case of Paine v. Hutchinson ' illustrates this prin- ciple. The plaintiffs, dealers in shares, contracted to sell to the agents of the defendant shares which they had purchased from and which remained registered in the name of C. On the settling- day, the agents of the defendant gave his name, as principal, for insertion in the deeds of transfer. Transfers executed by C. to the defendant were delivered to defendant's agents, who paid for the shares out of money given to them by tiie defendant. The defendant refused to execute the deeds and to procure their regis- tration, on the grounds that he had told his agents that he intended to resell without taking a transfer, and that they had given his name without authority. The defendant had named no other person than himself as purchaser, and, on the purchase being effected, the agents had informed the defendant that they had bought the shares for him, and that they, being called upon to give the name of the purchaser, and being unable to arrange to carry over the purchase as desired by the defendant, were bound by the practice to give, and did give, the defendant's name as transferee. Five months after the sale, the company was ordered to be wound up, and, on bill for specific performance and in- demnity (filed before the winding-up), to which C. was not a party, it was held that the plaintiffs vere entitled to a decree for specific performance ; and that defentant should execute transfers, and procure his name to be registered. If a person employs another as an agent in a character which involves a particular authority, he cannot by a secret reservation devest him of that authority ; and it will be taken that the agent has authority to do whatever is necessarily incidental to carrying on the business for which he is employed. Thus, where A. em- ployed B. to manage his business, and to carry it on in the name of " B. & Co.," the drawing and accepting bills of exchange was incidental to the carrying on of such a business, but it was stipu- lated between them that B. should not draw or accept bills. B. having accepted a bill in the name of " B. & Co.," A. was liable on the bill in the hands of an indorsee, who took it without any knowledge of A. and B., or the business.^ according to the usage of that place, and knowledge of the usage on the part of the principal is immaterial. Sutton i>. Tatham, 10 A. & E. 27 ; Bayliffe v. Buttcrworth, 1 Ex. 425 ; Pollock v. Stables, 12 Q. B. 765. See further as to usage, Inse v. Fompe, 8 C B. n. 8. 638 ; Truemau v. Loder, 11 A. & E. 589 ; Kirchnery. Verms, 1 2 Moo. P. C. 361 ; Sweeting v. Pearcc, 9 C. B. N. 8. 534. > L. R. 3 Eq. 257. ^ Edmunds v. Bushell k Jones, L. K. 1 Q. B. 97. PART VIII.] AGENCY. 598 An auctioneer who is authorized to sell goods on the cunditions that purchasers shall pay a deposit at once, and the remainder of the purchase-money to the auctioneer on or before delivery of the goods, has no authority to receive payment by a bill of exchange, and such payment will not discharge the purchaser.' Moneys having been borrowed by the agent of a company in the name and for the use of his principal, and the principal, having been informed of such borrowing, and of the amounts, and, a de- mand having been made to him for the payment thereof, having failed within a reasonable time thereafter to disavow the acts of his agent in so borrowing the money, in an action for the money the jury would be authorized to consider the principal as having assented to what was done in his name.^ Where, in making a contract, the principal is disclosed, and the agent is known to be acting as such, the latter cannot be made personally liable unless he agreed to be so.^ If a principal knows that a stranger is dealing with his agent under the belief that all statements made by the agent were war- ranted by the principal, and, so knowing, allowed the stranger to expend money in that belief, and this knowledge is brought home to the principal, a court of equity will not afterwards allow the principal to set up want of authority in the agent.* » Williams v. Evans, L. R. 1 Q. B. 352 ; Sykes v. Giles, 5 M. & W. 645. See as to agents generally receiving pay- ment for their principals, Barker v. Green- wood, 2 Y. & C. Ex. 414. In Thorold r. Smith, 14 Mod. 87, where a payment was made in the city by a goldsmith's note to a servant sent by hi.s master to receive money. Holt, C. J., said he thonght it more a matter of evidence than of law, and any jury in Guildhall would find pay- ment by a bill to be good payment ; it being the common practice in the city. * Gold Mining Co. v. National Bunk, 96 U. S. 640 ; Vianna v. Barclay, 3 Cow. 281; Hazaid v. Spear, 4 Keyes, 469; Cairnes v. Blcecker, 12 Johns. 300. » Whitney v. Wyman, 101 U. S. 392. In this case the court say : " Where the question of agency in making a con- tract arises, there is a broad line of dis- tinction between instraments under seal and stipulations in writing not under seal, or by parol. In the former case the con- tract must be in the name of the princi- pal, must be under seal, and must pur- port to be his deed and not the deed of the agent covenanting for him. Stanton v. Camp, 4 Barb. 274. In the latter cases the question is always one of intent, and the court, being untrammelled by any other consideration, is bound to give it VOL. 1. 88 effect. As the meaning of the lawmaker is the law, so the meaning of the contract- ing parties is the agreement. Words are merely the symbol they employ to mani- fest their purpose that it may be carried into execution. If the contract be un- sealed and the meaning clear, it matters not hino it is phrased, nor how it is signed, whether by the agent for the principal or with the name of the principal by the agent, or otherwise." It will bw observed that this exactly accords with what we have expressed in our comments on the English cases, which, as a whole, are so badly decided. The proper principle, as above stated by the United States Supreme Court, has been lost sight of by the Eng- lish courts in many of their decisions, which has led to the confusion in which those cases are involved, and which, by our comments, we have endeavored to clear away. * Ramsden v. Dyson, L. R. 1 H. L. 129. This is on the ground of acquiescence, which has been acted on in a great variety of ca-oes, and held conclusive even against the requirements of statutes, aa the Stat- ute of Frauds. See Gregory v. Mighell, 18 Ves. 328 ; Earl of Oxford's Case, 1 Ch. Rep. 1 ; Mundy v. Jolliffe, 5 My & Cr. 167 ; Pain v. Coombs, 3 Sm. & O. 449 ; 1 De G. & J. 34 ; Lillie v. Legh, 3 De O.. I' 1 !; .1^ SI \ H 594 COMMENTARIES ON SALES. [book II. Where an insurance broker in Liverpool had an authority ;,o underwrite for his principal for not exceeding £100 on any one vessel, and, without his knowledge, underwrote for £150, it was held, that, as it is notorious that there is an undisclosed limit in nearly all such cases, the principal was not liable for the £150, and as the contract was not divisible he was not liable for the £100.1 The knowledge of the attorney of a collection agency of the insolvency of the debtor was held not to affect the creditors who had sent their accounts to the collection agency, and who had nut received the money collected by the attorney within the four months provided for in the statute ; the attorney being tlie agent of the collection agency, and not of the creditors.^ But where an & J. 204 ; Shillibeer v. Jarvis, 8 De O. M. & S. 79 ; Powell ii. Lovegrove, lb. 857 ; FiuruU v. Davenjiort, 3 GilF. 303 ; Allan V. Hower, 3 Hro. C.C. 153, 189 ; Kiist India Co. v. VuKJont, 2 Atk. 83 ; Pilling V. Artnitaj^e, 12 Ves. 78 ; Stiles v. Cowpcr, 3 Atk. 692; Daun v. Simnior, 7 Ves. 231 ; Unity Bank v. King, 25 Beav. 72 ; Surcome v. Pinnigrr, 3 De G. M. & G. 671 ; Dowell v. Dew, 1 Y. & C. Ch. 345 ; Shannon v. Bi.ulstrect, 1 Sch. & L. 52 ; Storrs 0. Barker, 6 Johns. Ch. 68, 169; Grcon v. Bi'Ulle, 8 Wheat. 1, 77 ; Bright V. Boyd, 1 Story, 492 ; Wendell v. Van Uenssallaor, 1 Johns. Ch. 354 ; Brig Sarah Ann, 2 Suinn. 206 ; Gray v. Bartlett, 20 Piek. 193 ; Henderson v, Overton, 2 Yerg. 391 ; Tarrant v. Terry, 1 Bay, 239 ; Skin- ner V. Stouse, 4 Mo. 93. > Barnes v. Ewing, L. R. 1 Ex. 320. Martin, B., said : " The contract declared on was made by an agent for his princi- pal, and it was therefore necessary to prove his authority. Now its terms are as fol- lows; 'I hereby authorize you, in my name and on my behalf, to underwrite policies of insurance against marine risks not exceeding £100 by any one vessel ; ' and that document is ))roduccd to prove the declamtion which alleges that a policy was subscribed for £150. If the case had stood there the agent would certainly have been unauthorized. But then it is said that we must hold him to have had au- thority because of the exigencies and course of business at Liverpool, It ap- pears, however, that it was well known there that a limit is almost always, if not always, put to the amount for which a broker may underwrite. The limit in a particular case is known, it is true, only to the principal and the broker ; but still every one has notice that there is a limit of some sort j and I think, therefore, it would be impossible to hold a person lia- ble to an unlimited extent, or to an extent beyond the fixed limit." Story on Agency, 4th ed. § 131, where it is said that if factors who (tossess a general authority to soil, violate their private instructions, Iho ftrincipal is none the less bound, was re- ied on. But Brarawell, B., answered : " With regard to the passage cited from Story, the case referred to by no means war- runts the general j)ropo3ition laid down, and 1 doubt exceedingly whether the prin- cipal of a factor would be liable in a case whore the factor sold in spite of a particu- lar authority to sell at a particular price. There it is said that business could not be carried on if, before accepting a policy for a certain amount, the assured wcic always to insist on the agent underwriting it showing his authority to sign for timt amount. The answer to that objection is that as a rule, reliance may be placed on the honesty of the broker and the solv- ency of the principal. It is unusual in business transactions for agents to assume an authority they do not possess." And Channel, B. : " If we look only at the ex- press authority, it not only does not con- fer, it even negatives, any authority to sign a policy for so much as £160. But then, it is said, the authority was given to a 'general' agent and cannot be limited by secret instructions as to amount. Now I agree that to be a general agent a man heed not be an agent for all purposes. He may be a general agent for a special pur- pose, for example, an agent to sign all bills of exchange. But here it is well understood that there is some limit be- yond which a broker may not underwrite policies, and that being so, the broker is not, in my opinion, a general agsnt in the sense contended for." « Hoover v. Wise, 91 U. 8. 308; Reeves i>. The State Bank, 8 Ohio St. 465 ; Blackay v. Ramsay, 9 01. & Fin, 818 ; The I Albany Cit Commercial Bank of Ne » Merchants strett V. Kvt "• Wallace, ] « A. & E. 9S ' Storrs ( 104; Boyd < h. 273 ; I Smith, 64: ] 475. " Ranney See Adams v. V. Beck, 24 2 36 III. 92 ; CI 220. An age in the title of 0'' his infornif title for hims w his princi Peters, 169. . Where an a cipal, and the eq'iity to prei statute of limit >» the statute the agent, it w PART vm.] AGENCY. 595 extent gmicy, that if rity to lis, this (»i»s re- wercd ; d from 1118 war- down, lie l>rin- I a cose paiticu- r price, uld not I policy 'd wore •writing [for tliut jction is laced on 16 solv- isual in assume ' And the ex- not con- lority to (0. B>it given to limited it. Now lt a ma" jes. He iial pnr- sign all is well limit be- [derwrite irokcr is it in the IS. 308; )hio St- & Fin. agent has power to employ a sub-agent, the acts of the sub-agent, or notice given to him in the transaction of the business, have the same effect as if done or received by the principal.* Wliere, in the absence of fraud, C., who was authorized to sell A. and B.'s share of property which belonged jointly to them and C, for 1200,000, which sale was effected by C. ; he at the same time selling his own moiety for 1300,000, the court lield, reversing the decision of the court below, that if A. and H. gave their con- sent in advance of any sale, it was immaterial to them what price C. got for his share of the property, and he was under no obliga- tion to disclose the price to A. and H., and to ask their consent to retain it. The court below was in error in holding that after this antecedent assent, a subsccpient assent was necessary.' The plaintiff sued for goods sold and delivered. The defendant pleaded that the goods were sold to him by one A., whom the de- fendant believed to be the principal ; and that, before the defend- ant knew that the plaintiffs were the principals, the said A. became indebted to the defendant in a sum of '1400, which he, the defendant, was willing to set off against the plaintiff's claim. The jury found a verdict for the defendant on this plea. Held, that the defendant, having purchased the goods without notice of A.'s being an agent, and A. having sold them in his own name, could set off the debt due to him from A. personally, in the same way as if A. had been the principal.'^ 818 ; The Montgomery Co. Bank v. The Albany City Bank, 3 Scld. 459 ; The Commercial Bank of Pa. r. The Union Bank of New York, 1 Kern. 203 ; Alloii V. Merchants' Bank, 22 Wend. 215 ; Brad- strett V. Evesson, 72 Pa. St. 124 ; Lewis V. Wallace, 10 Ala. 142 ; Cobb v. Becke, 6 A. & E. 930. « Storrs V. City of Utica, 17 N. Y. 104 ; Boyd v. Vandenbeig, 1 Barb, Ch. 273 ; Bourke v. Story, 4 E. D. Smith, 54; Lincoln v. Battle, 6 Wend. 475. 2 Ranney v. Barlow, 112 U. S. 207. See .\dam8 v. Rpberts, 2 How. 486 ; Reese ». Beck, 24 Ala. 6.51 ; Griibe v. Nichols, 36 111. 92 ; Chappell v. Allen, 38 Mo. 213, 220. An agent who discovered a defect in the title of his principal, and made use of his information to acfpiire a valid legal title for himself, was held to be a trustee for his principal. Ringo v. Itinns, 10 Peters, 169. Where an agent is dealt with as prin- cipal, and there are no circumstances of equity to prevent the operation of the statute of limitations in favor of the latter, if the statute is a bar to a claim against the agent, it will be equally so as to the principal ; the mere ignorance of the other contracting party, and even the conceal- ment of the fact tliat the agent was merely the agent of the undisclo.sed principal, no fraud on the part of the latter being charged, is insufhcient to raise such an equity. Ware v. Gal > '*8ton City Company, 111 iJ. S. 170. ' Bowman ville Machine Co. v. Demji- ster, 2 S. C. of Can. R. 21. So, in England, in Ex parte Dixon, 4 Ch. Div. 133, it has been held that a person pur- chasing goods from a factor who sells them in his own name, can set olf a debt dun to him from the factor personally in the same way as i!" !lie factor were the principal, unless the f uruhaser has notice tliat tiie factor is not the principal ; and this right is not affected by the fact that the factor in selling in his own name with- out disclosing the agency is acting in con- travention of the express directions of his principal. See Rabonc v. Williams, 7 T. R. 360 ; George v. Clagett, 7 T. R. 359. But in Fish v. Kempton, 7 C B. 687, where A. bought goods of B., know- ing that B. was selling tliem as factor ; it was held that A. could not, in an action by the principal for the price, set off a *ii , 596 COMMENTAttlES ON SALES. [book II. In Irwan v. Williar,* the case was brought within the decision of Robinson v. MoUct.' The court in Irwan v. Williar, said. dobt due to him by B., although it waa found that A. made the purchase Aale, 7 El. & B. 266 ; E. B. & E. 1004 ; Bostock v. Jardine, 3 H.&C. 700. Parties offering to sell property for $40,000 cash are not bound to their agent for selling, to carry out such sale, where an offer of a larger sum is made to the agent with the condition that $10,000 shall be paid in cash, which is to be for- felted by the purchasers if they do not complete the purchase. $40,000 paid by the purchasers is the only valid acceptance of tne offer which will bind the parties offering the property for sale. Still v. Huidekopers, 17 WaU. 384. im 1 i:!V !'■ ..;• 698 COMMENTABIES ON SALES. [book II. Under this act a tax was assessed against the respondents, cotton brokers of New Orleans, which they were compelled to pay ; their appeal to the commissioner of internal revenue against the tax having been dismissed. In an action by them against the col- lectoi, it was shown that they did not sell any cotton or other goods, but limited themselves to making purchases for those who required their services ; that the money was paid by their princi- pals directly to the parties who made the sales, and that their compensation for making the purchases was one-half of one per cent., paid by the buyer, and one-fourth of one per cent, by the seller, under a custom of the trade in New Orleans, established when cotton brokers were sellers as well as buyers, which custom was continued after the brokers buying had ceased to be sellers. It was also shown that a tax on all the sales for which the re- spondents had been assessed, had been paid by other parties who Lad made the sales. The Supreme Court, in an action against the collector, affirming the judgment of the Circuit Court for Louisi- ana, held that the tax had been wrongly assessed and collected.^ 4. Officers op Companies as Agents. Where the agent, within the scope of his employment, know- ingly makes a false representation, both he and his principal are principals in the commission of the fraud, and are both liable. Swift V. Winterbotham and Goddard ^ is an illustrative case. The plainti£f sued W. and G. jointly for a false representation with respect to the solvency of R. The defendant W. was sued as a public officer of a banking company, formed under 7 Geo. 4, c. 46, and the defendant G. was the manager at one of their branches. The plainti£f was a customer of the S. bank, and requested the manager of that bank to inquire for him as to R.'s credit. The manager wrote a letter addressed to " the manager " of the de- fendiants' banking company, requesting information whether R. was responsible to the extent of £50,000. The defendant G. wrote a letter, which he signed as manager, giving a favorable reply as to R.'s responsibility. The plaintiff, in consequence of this letter, supplied R. with goods, for which he never was paid, in consequence of R.'s insolvency. The statement made by G. was false to his knowledge. The defendants' banking company had no knowledge, otherwise than through G., that such a letter had been written, and gave him no express authority to write the letter, but the writing of such a letter was an act done within the scope of the general authority conferred on G. as manager. It » The Collector v. Dodswell, 16 Wall. » L. R. 8 Q. B. 244. 166. Jl PABT VIII.] AGENCY. 599 was, among other things, held, that inasmuch as it is usual for the customer? of a bank to make inquiries like that made by the plaintiff, it must be taken to have been within the contemplation of the defendants that the inquiry as to R.'s solvency might have been made on be! alf of a customer of the S. bank, and that the representation might be communicated to him ; that the banking company and G. were liable to the plaintiff, he being the customer who had made the inquiry ; and that the banking company was ible for the false representation of its manage, made in the course of conducting the business of the bank.^ A bill of exchange purporting to be made at the office of a com- pany, and directing the drawee to charge the amount thereof to the account of the company, of which the signers describe them- selves as president and secretary, bearing on its face all these signs of being the contract of the company, the principal, cannot be held to bind the agents personally.^ U >j\ 1 In thia case Lord Tenterden's Act (9 Geo. 4, c. 14, §6), "That no action ahall be brought whereby to charge any |)er3on upon or by reason of any repre- sentation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealing of any orher person to the intent or pur- pose that such other person may obtain credit, money, or goods upon, unless such representation or assurance be made in writing, signed by the jmrty to be charged therewith," was relied on. The court held that, in an ordinary case of principal and agent, a written representation within this section, signed by the ageut alone, would not be binding on the priuripal, although such signature was du^y author- ized by him. Hyde v. Johnson, 2 Bine. N. C. 776 ; Clark v. Akxander, 8 Scotts N. R. 147 ; Torrs v. Cuming, 7 M. & G. 88 ; Scott V. Eastern Counties Ry. Co., 12 M. & W. 33; Kingsford v flreat Western Ry. Co., 16 C. B. n. s. 7(51 ; Jessel V. Bath, L. R. 2 Ex. 267 ; Richard- son V. Younge, L. R. 6 Ch. 478. But the court held tliat signing as manager for the banking company was, in fact, the sign- ing, not merely of an agent, but of the banking company itself, and, therefovp, the signature was that of the party to bo charged within the section. And although the statement was not made directly to the plaintiff, it must be considered that it was within the contemplation of the defendants when the representation was made, that it would or might be com- municated to the customer of the bank on whoso behalf the information is sought. Where that is done, and the person to whom the false representation is thus communicated f.^ts on it and suffers damage thereby, he is entitled to main- tain an action for such damage in the same manner as if the representation had been made directly to himself ; Langridge V. Levy, 2 M. & W. 519 ; Bedford v. Bag- shaw, 29 L. J. Ex. 65 ; the banking company being liable for the fraudulent representation of its manager made in the course of conducting the business of the company. Berwick v. The English Joint Stock Bank, L. R. 2 Ex. 259. Where the action is in tort, all persons liable for the commission of the tort, whether prin- cipals, agents, or servants, are liable to be sued jointly, hi CuUen v. Thompson's Trustees, 4 Macq. 424, Lord Westbury says : " All persons directly concerned in the commission of a fraud are to be treated as principals ; no party can be permitted to excuse himself on the ground that he acted as the agent or as the servant of another." But where the fraud is that of the agent alone, and not that which the company has im- pliedly authorized him to be guilty of, there the company is not liable for the deceit. Western Bank of Scotland v. Addie, L. R. 1 Sc. & D. 145 ; National Exchange Co. v. Drew, 2 Macq. 103 ; Ranger v. Great Western Ry. Co., 5 H. L. C. 72 ; D'Arcy v. Tamar, etc. Ry. Co., L. R. 2 Ex. 158 ; Barry v. Croskey, 2 J. & H. 1 ; Pilmore v. Hood, 5 Bing. N. C. 97 ; Pasley v. Freeman, 3 T. R. 51 ; Blackmore v. Bristol & Exeter Ry. Co., 8 E. & B. 1035. 3 Hitchcock V. Buchanan, 106 U. S. 416 ; Sayre v. Nichols, 7 Cal. 536 ; Car- penter V. Famsworth, 106 Mass. 661 ; Tripp V. Swanzey Paper Co., 13 Pick. ■>M ! ' ;,r- ! m 11 III I'i I 600 COMMENTABIES ON SALES. [book II. Where checks by a mining company against their funds in a bank were, for a long period, signed by tlie president and secre- tary of tlie company, without objection by the company, the bank had a right to presume that tliey were properly signed, and to re- cover against the company for an overdraft so signed ; the bank having the right to presume that these officers did not exceed their authority, and that the moneys thus obtained were paid over to or received by the company. But, as this is a mere presump- tion arising from the conduct of the parties, as well as from the general mode in which corporations organized for profit conduct their business, if not, under the special circumstances of the case, conclusive, it may be overthrown by proof of want of authority, express or implied, and that the company did not receive the money paid on such overdraft.* Corporations are liable for the acts of their servants while en- gaged in the business of their employment, in the same manner and to the same extent that individuals are liable under like circumstances.^ v 291 ; Fuller v. Hooper, 3 Gray, 334 ; Bank of British North America v. Hooper, 5 Gray, 567. In Slawson v. Loring, 5 Allen, 340, 343, Bigelow, C. J., said : "No one can doubt that on billa thus drawn the agent fully discloses his prin- cipal, and that the drawer could not be personally chargeable thereon." 1 Mining Company v. Anglo-Californian Bank, 104 U. S. 192. The officers, de facto, of a company holding under color of aa election, having charge of the affairs oi the company, are capable of binding it in all matters legitimately devolving upon di- rectors of the company. Anglo-Californian Bank v. Mahoney Mining Co., 5 Sawyer, 265, 258. Bankers are bound by notice communicated to their cashier of stock- certificates received by them being trust property. Duncan v. Laudon, 15 Wall. 165, 177. 2 Merchants' Bank v. State Bank, 10 Wall. 604, 645 ; Ranger v. The Great Western Ry. Co., 5 H. of L. Cas. 86 ; Thayer v. Boston, 19 Pick. 611 ; Frank- fort Bank v. Johnson, 24 Me. 490. Where a party deals with a corpora- tion in good faith, the transaction not being ultra rires, and he is unaware of any defect of authority or other irregu- larity on the part of those acting for the cornoration, and there is nothing to excite suspicion of such defect or irregu- larity, the corporation is bound by the contract, although such defect or irregu- larity in fact exists. And if the contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence, and the corporr.tion is estopped to deny them. Supervisors v. Schenck, 5 Wall. 784 ; Knox Co. V. Aspinwall, 21 How. 539 ; Bissell V. Jeffersunville, 24 How. 288 ; Moran v. Commissioners, 2 Black, 722 ; Gelpcke v. rubuque, 1 WalL 203 ; Mercer Co. v. Hacket, lb. 93 ; Mayor V. Lord, 9 Wall. 414; Royal British Bank o. Turquand, 6 E. & B. 327 ; The Farmers' Loan & Trust Co. v. Curtis, 3 Seld. 466 ; Stoney v. American Life Ins. Co., 11 Paige, 635 ; Society for Savings v. New London, 29 Conn. 174 ; Common- wealth V. The City of Pittsburg. 34 Pa. St. 497 ; Commonwealth v. Allegheny Co., 37 Pi'. St. 287. And corporations are liable for very wrong of which they are guilty, an i in such cases the doctrine of ultra vires has no application. Phila- doiphia & Baltimore R. R. Co. v. Quigley, 21 How. 209 ; Gi-eon v. London Omnibus Co., 7 C. B. N. 8. 290 ; Life & Fire Ins. Co. V. Mec; -nic Fire Ins. Co., 7 Wend. 31. A cashier of a br.nk has the power virlute officii to certify checks. It is his duty to receive all the funds which come into the bank, and to enter them upon its books. The authority to receive implies and car- ries with it authority to give certificates of deposit and other proper vouchers. Where the money is in the bank he hivs the same authority to certify a check to be good ; charge the amount to the drawer ; appropriate it to the fwiyment of the check, and make the proper entry on the books of the bank. The power is inherent in the office. Wild v. 'The Bank PART VIII..] AGENCY. 601 A contract entered into between " W., superintendent of the K. Mining Co., parties of the first part," with P., and signed, " W., Sup. K. Mining Co.," was held, under the civil code of Dakota of 1877,1 — which provides that " any instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him, if such intent is plainly inferable from the in- strument itself," — to be a contract made by W. for the mining company, it clearly appearing upon its face to have been intended to bind, and that, therefore, it did bind the company, and the defendant as one of its members.^ The cashier of a bank is not presumed to have power, by reason of his official position, to bind his bank as an accommodation in- dorser of his own promissory note. Such a transaction would not be within the scope of his general powers ; and one who ac- cepts an indorsement of that character, if a contest arises, must prove actual authority before he car recover. There are no pre- sumptions in favor of such a delegation of power. The very form of the paper itself carries notice to a purchaser of a possible want of power to make the indorsement, and is sufficient to put him on his guard. If he fails to avail himself of the notice, and obtain of Passamatiuoildy, 3 Mason, 506 ; Burn- ham V. Webster, 19 Me. 234 ; Elliot v. Abbot, 12 N. H. 556 ; Bank of Vergennes V. Warren, 7 Hill, 91 ; Lloyd v. The West Branch Bank, 15 Pa. St., i72 ; Badger v. The Bank of Cumberland, 26 Me. 428 ; Bank ot Kentucky v. The Schuylkill Bank, 1 Pars. Sel. Cas. 182 ; Fleckner v. Bank of the United State.s, 8 Wheat. 360. The directors may limit his authoiity as they deem proper, but this would not affect those to whom the limitation was un- known. Commercial Bank of Lake Erie V. Norton, 1 Hill, 501 ; Bank of Vergennes i>. Warren, 7 Hill, 94 ; Beers v. The Phoenix Glass Co., 14 Barb. 358 ; Farmers' and Mechanics' Bank v Butchers' and Drovers' Bank, 14 N. Y. 624 ; North River Bank v. Aymar, 3 Hill, 262, 268 ; Barnes V. Ontario Bank, 19 N. Y. 156, 166. Those dealing with a bank in good faith have a right to presume integrity on the part of its officers, when acting within the apparent sphere of their duties, and the bank is bound accordingly. Mead v. The Merchants' Bank of Allmny, 25 N. Y. 146 ; Barnes v. Tlie Ontario Bank, 19 N. Y. 156 ; Farmers' & Mechanics' Bank v. The Butchers' & Drovers' Bank, 14 N. Y. 624 ; 16 N. Y. 133. Acts of the cashier of a bank, done in the ordinary course of the business actually confided to such an officer, are primd fade evidence that they fell within the acoiie of his duty. Fleckner v. Bank of the United States, 8 Wheat. 338. » § 1373. 2 Post V. Pearson, 108 U. S. 418. See Whitney v. Wyman, 101 U. S. 392 ; Hitchcock V. Buchanan, 105 U. S. 416 ; Gooilenough v. Thayer, 132 Mass. 152 ; Tucker Manuf. Co. v. Fairbanks, 98 Mass. 101 ; Fuller v. Hooper, 3 Gray, 334 ; Lyon V. Williams, 5 Gray, 557 ; Slawson V. Loring, 5 Allen, 340 ; Carpenter v, Famsworth, 106 Mass. 561 ; Cutler v. Ashland, 121 Mass. 588. But there are cases in this country as in England, where the parties describing themselves as agents have been held liable as principals to the contract, the term "agent" being held, in such cases, to be merely dcscriplio personce. Simonds v. Heard, 23 Pick. 120 ; Tippets V, Walker, 4 Mass. 595 ; Packard v. Nye, 2 Met. 47; Bank of British North America v. Hooper, 6 Gray, 667 ; Morrell V. Codding, 4 Allen, 403 ; Seaver v. Co- bum, 10 Cush. 324 ; Fiske v. Eldridge, 12 Gray, 474 ; Stone v. Wood, 7 Cow. 453 ; Bank v. Monteath, 1 Den. 402 ; Duvall i>. Craig, 2 Wheat. 45 ; Foster v. Fuller, 6 Mass. 58 ; White v. Skinner, 13 Johns. 307 ; El well v. Shaw, 16 Mass. 42 ; Smith v. Morse, 6 Wall. 76, 83 ; Jones V. Littledale, 6 A. & E. 486 ; Magee V. Atkinson, 2 M. & W. 440 ; Higgins v. Senior, 8 M. & W. 834 ; Appleton v. Sinks, 5 East, 148. I m rrii! ■ijl i'lhl: I m 602 COMMENTARIES ON SALES. [book II. the iuformation which is thus suggested to him, it is his own fault, and, as against an innocent party, he must bear the Ibss.^ Where a note is signed by the cashier of a bank for a loan made, it is open to both of the parties to show that the loan was, in fact, made to the I anic, and that the note was really made as the obligation of tht bank.* By the articles of association of a telegraph company it was provided that three directors should be the quorum necessary for the transaction of business ; and the directors were empowered, in their discretion, to sell ali or any one or more of the company's lines of telegraph, grants, licenses, powers, ways, way-leases, ease- ments, privileges, engagements, or contracts, or any part of its good-will, estates, property, or interest therein, upon such terms and conditions as they should deem expedient ; and also at their discretion to appoint agents, any such agent to be remunerated at the discretion of the directors. The company resolved to sell their undertaking to the Postmaster-General, and in July, 1869, a letter was wi itten, addressed to C, appointing him to act as agent for the directors in the matter of the sale, and agreeing that if he succeeded in obtaining from the Postmaster-General the sum of £20,000 or upwards, his commission should be £25 per cent. The letter concluded by saying ; " We engage to sign a legal obligation to the above effect, when called upon to get the signatures of our brother directors." This letter was written in C.'s office, and there signed by two of the directors and handed to C, who forwarded it to a third director in the country, by whom it was returned to C, confirmed and signed by himself and a fourth director. This agreement, though not appearing to have been resolved upon or confirmed at any meeting of directors, was ^ West St. Louia Savings Bank o. Shawnee County Bank, 95 U. S. 557. Under the Internal Revenue Act of 1864 (13 Stat, at Large, 277) a duty was im> posed on the capital, etc., of bankers, by section 110 of the act; and by section 7 J of the act hankers were retiuired to pay for a license to carry on the business; and bank- ers were defined to be those who received deposits payable on check, etc., who loaned on stocks, bills, etc., or who received stocks, bills, etc., for discount or sale. By act of March 3, 1865 (18 Stat, at Large, 252, 472), amending the prior act, it was provided that brokers should pay for a license ; and, defining a broker un- der the act, it was further provided " that every jierson, firm, or company, except such as liold a license as a banker, whose business it is as a bro' ar to negotiate pur- chases or sales of stocks, bills, etc., for themselves or others, shall be regarded as a broker under this act, provided that any person holding a license as a banker shall not be required to take out a license as a broker." By section 99 of the amending act both brokers and bankers who were "doing business as brokers " were made lia- ble to a special tax ui)on all sales of stocks, etc. The plaintiffs, having been taxed as bankers under section 79 of the original act, claimed that they were not liable for the tax under section 99 ; but the Supreme Court of the United States, alfirniing the judgment of the Circuit Court, held that, under the express language of section 99, as the plaintiffs were " bankers doing busi- ness as brokers," they were liable for the tax. Warren v. Shook, 91 U. S. 704. And see United States v. Fisk, 3 Wall. 445 ; United States v. Cutting, lb. 441 ; Clark V. Gilbert, 5 Blatch. 330. a Bank v. Kennedy, 17 Wall. 19; Bald- win V. The Bank of Newbury, 1 Wall. 240. PART VIII.] AGENCT. 603 referred to at a subsequent meeting of shareholders, and not re- pudiated ; but no such legal obligation as referred to in the letter was executed. The sale having been effected through C.'s agency for a sum of more than .£20,000, it was held, that the agreement was not ultra vires, and that, though informal according to the internal regulations of the company, it was binding against the company in favor of a person dealing with them ; consequently, that C. was entitled to commission at the rate of 25 per cent.^ In Moore v. Citizens' National Bank of Piqua,^ the cashier of the bank, fraudulently, for money lent to him, signed a certificate in favor of the plaintiff for stock of the bank. In an action against the bank for the value of the stock, the bank having re- fused to recognize the certificate as valid, the Supreme Court sus- tained the holding of the court below, and held that the plaintiff having dealt with the cashier personally, and not with the bank, the money having been lent to him for his private use, his repre- sentations to her were made by him personally, and not as cashier ; and that the circumstances otherwise were such as to prevent her from being an innocent holder of the certificate, which had been issued in fraud of the bank.^ The declarations made by an officer or agent of a corporation in response to timely inquiries properly addressed to him, and re- lating to matters under his charge, in respect to which he is 1 7)1 re Barelli's Telegraph Co., Collie's Claim, L. R. 12 Eq. 246. See Renter v. Electric Telegraph Co., 6 E. & 13. 341, 348 ; Totterdell v Fareham Brick k Tile Co., L. R. 1 C. P. 674 ; Bargate «;. Short- ridge, 6 H. \u Gas. 297, 318 ; In re Bar- ned's Banking Co., L. R. 3 Ch. 105; In re County Life Assur. Co., L. R. 5 Ch. 288 ; Agar 0. Athenaeum Life Assur. Society, 3 C. B. N. s. 725 ; D'Arcy v. Tamar Ry. Co., L. R. 2 Ex. 158. « 111 U. S. 156. 8 A person who takes such a security with knowledge that the conditions on which alone the security was authorized were not fulfilled is not protected, and in his hands the security is invalid, though the imperfection is in some matter relating to the internal afl'airs ot rhe corporation, which would be unavailable against a bmid fide holder of the same security. Hacken- sack Water Co. v. De Kay, 9 Stow. N. J. 548, 565; Merchants' Bank v. State Bank, 10 Wall. 604, 644 ; Wright's Appeal, 99 Pa. St. 425. Otherwise, where the pur- chases are made in good faith in the open market, with no notice of any fraud or irregularity in the issue. Titus v. Great Western "Turnpike, 61 N. Y. 237; Bruff u. Mali, 36 N. Y. 200; McNeU ». Tenth Na- tional Bank, 46 N. Y. 325; Moore v. Met- ropolitan Bank, 55 N. Y. 41; Hollnook ti. New Jei-sey Zinc Co. , 67 N. Y. 616 ; Mer- chants' Bank i'. Livingston, 74 N. Y. 223; Kentucky Bank v. Kurtz, 99 Pa. St. 344, 349 ; Tome v. Parkcrsburg R. R., 39 Md. 36; Western Maryland R. R. v. Franklin Bank, 60 Md. 36; Bridgeport Bank v. New York & New Haven R. R., 30 Conn. 231; New York & New Haven R. R. «;. Schuyler, 34 N. Y. 30. And see Midland Ry. Co. v. Taylor, 8 H. L. Cas. 751 ; Bank v. Lanier, 11 Wall. 369; Telegraph Co. v. Davenport, 97 U. r. 3"> ; Pratt v. Taunton Copper Co., 12o M> 110; Pratt v. Boston & Al- bany R. R., 126 Mas.s. 443; In, re Bahia & San Francisco ? v., L. R. 3 Q. B. 684; Ashby V. Black Atll, 2 Eden, 399 ; Hild- yard v. South S^a Company, 2 P. Wms. 76 ; Siinm v. Anglo-American Telegraph Co., 5 Q. B. Div. 188 ; Hart v. Frontiuo Mining Co., L. R. 6 Ex. Ill ; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; Mackay v. Commercial Bank, L. R. 5 P. C. 394; Swift ». Winterbotham, L. R. 8 Q. B. 244 ; Swift v. Jewsbury, L. R. 9 Q. B. 301 ; The Queen «;. Shropshire Union Co., L. R. 8 Q. B. 420 ; L. B. 7 H. L. 496. 604 COMMENTABIES ON SALES. [book II. authorized in the usual course of business to give information, may be given in evidence against the corporation.^ It is because the declaration of an agent is a verbal act and part of the res geitcB^ that it is admissible, and whenever what he did is admitted in evidence, then it is competent t j prove what he said about the act while he was doing it.^ It is within the scope of the general authority of the cashier of a bank to receive offers for the pur- chase of securities of the bank, and to state whether or not the bank owns securities which a customer wants to buy. His state- ment to such an one that the bank was not the owner of a certain security in his manual possession as cashier, is clearly within the line of his duty, and is, tlierefore, binding on the bauk.^ Directors of a bank cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and supervision of its officers. That which they ought by proper diligence to have known as to the general course of business in the bank, they may be presumed to have known in any contest between the corpora- tion and those who are justified by the circumstance!^ In dealing with its officers upon the basis of that course of business. Hence, thougn it is quite true, that a cashier of a bank has no power by virtue of his office to bind the corporation, except in the discharge of his ordinary duties, and that the ordinary business of a bank does not comprehend a contract made by a cashier without dele- gation of power by the board of directors, involving the payment of money not loaned by, the bank in a customa'*/ way;* so that, ordinarily, he has no power to discharge a debtor without pay- ment ; nor to surrender the assets or securities of the bank ; nor, — certainly not, unless the debt secured is paid, — cancel its deeds of trust given as security for money loaned, in the absence of authority conferred by the directors ; it is clear that a banking corporation may be represented by its cashier, at least where its charter does not otherwise provide, in transactions outside of his ordinary duties, without his authority to do so being in writing, 1 Bank of Monroe r. Field, 2 Hill, 445; McGennesa v. Adriatic Mills, 116 Mass. 177; Morse v. Connecticut River R. R. Co., 6 Gray, 450. * Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, 336 ; Cliquot's Champagne, 3 WalL 114; Cooley V. Norton, 4 Cush. 93 ; Haanay v. Stew- art, 6 Watts, 487 ; Garth v, Howard, 8 Bing. 451. * Xenia Bank v. Stewart, 114 U. S. 224. See Cocheco Bank v. Haskell, $1 N. H. 116 ; Fleckner v. Bank, 8 Wheat. 338; Gould r, Cayuga Bank, 66 How. Pr. 505 ; Merchants' Bank v. Marine Bank, 3 Gill, 96 ; The Chicago, &c. R. R. Co. v. Coleman, 18 111. 297; Bank of Monroe v. Field, 2 Hill, 446 ; Mining Co. v. McMa- hon, 1 Head, 582. * United States Bank r. Dunn, 6 Pet. 61 ; United Statps v. City Bank of Colum- bus, 21 How. 356; Merchants' Bank v. State Bank, 10 Wall. 604. PART VIII.] AGENCT, 605 cr appearing upon the record of the proceedings of the directors. His authority may bo by parol, and collected from circumstances. It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been allowed without interference to conduct the a£Fairs of the bank. It may be impliad from the conduct or acquiescence of the corporation, as represented by the board of directors. And when, during a series of years or in numerous business trans- actions, he has been permitted, without objection and in his offi- cial capacity, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corpora- tion, that he has acted in conformity with instructions received from those who have the right to control its operations.^ 5. Fraud and Concealment by Agent. An agent commissioned by a vendor to find a purchaser has authority to describe the property, and to state any fact or cir- cumstance which may affect the value so as to bind the vendor ; and if an agent so commissioned makes a false statement as to the description or value (though not instructed so to do) which the purchaser is led to believe, and upon which he relies, the vendor cannot recover in an action for specific performance. A surveyor was employed by the owner of a leasehold house to find a pur- chaser. He represented to the defendant that another person, H., was ready to buy the property for £700, and that if tlie defend- ant were to give £50 more, he would mak.e a clear profit of seven per cent. ; that H. had further offered to rent the property at £300, or the ground floor only at £200. The defendant, relying on the above representations and others, which were unauthorized by the vendor and untrue, contracted to purchase for £750 ; but, afterwards finding out the falsehood, refused to complete. The vendor himself also made a misleading statement to the purchaser. It was held that, independently of the statement made by the vendor himself, the false statements of the agent, being within his authority, were sufficient to vitiate the contract, and specific per- formance of the contract was refused .^ 1 Martin v. Webb, 110 U. S. 7. See authoriti«9 cited in note 3, p. 604, ante. a Mullens v. Miller, 22 Ch. Div. 194. Bacon, V. C, in delivering judgment, said: " A man employs an agent to let a house for him. That authority, in my opinion, contains also an authority to describe the property truly, to represent its actual situ- ation, and, if he thinks fit, to represent its value. That is within the scope of the agent's authoritv; and when the authority is changed, and instead of being an au- thority to let it becomes an authority to find a purchaser, I think the authority is just the same. I think the principal does thereby authorise his agent to describe, and binds him to describe truly, the prop- erty which is to be the subject disposed of. m 606 COMMENTARIES ON SALES. [book II. A., being aware that R wished to obtain shares in a certain company, represented to B. that he, A., could procure a certain number of shares at <£3 a share. B. agreed to purchase at that price, and the shares were thereupon transferred, in part to him and in part to his nominees, and he paid to A. £3 a share. He afterwards discovered that A. was in fact the owner of the shares, having just bought them for £2 a share. It was held, on ap- peal, reversing the decision of Lord Romilly, M. R., that, on the facts, A. was an agent for B. ; and A. was ordered to pay back to B. the difference between the prices of the shares.^ The plaintiff, in the year 1868, consigned a ship to G. & Co., in China, for sale, fixing a minimum price of $90,000, and requiring cash payment. G. & Co. employed the defendant in Japan to sell the ship, with the same instructions. This was done wii 'he knowledge and consent of the plaintiff. The defendant, having vainly attempted to sell the ship on the terms mentioned, took her himself for $90,000, and, about the same time, resold her to a Japanese prince for $100,000, payable as to $75,000 in cash, and the rest on credit. The plaintiff was not informed that the de- fendant had purchased the vessel himself, or that he had resold it, till June, 1869, after the transaction was completed. The de- fendant paid $90,000 to G. & Co., who remitted it to the plaintiff, and eventually obtained the whole amount of $160,000 from the Japanese prince. In 1873 the plaintiff filed a bill to compel the defendant to account for the profit made by him in *he resale of the ship. Held, on appeal, affrming the decision of Hall, V. C, that the relation of principal and agent was established between the plaintiff and defendant, and existed at the time of the pur- chase and resale of the ship by the defendant, and that he was therefore liable to account to the plaintiff for the profit made by He authorizes the agent to state any fact or circumstance which may relate to the value of the property. ... A representa- tion was made by an aj^ent who, as I think. and as I hold, was authorized to make the representation if it was true, but who had no authority from his principal to state any falsehood. If he did state any false- hood on behalf of his principal, and if he thereby induced a purchaser to enter into a contract, he did that which now prevents the principal from saying that the agree- ment shall be specifically performed." See Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; Mackay v. Commfercial Bank of New Brunswick, L. R. 5 P. C. S94 ; Swire v. Francis, 3 App. Cas. 106 ; Higgins «. Samels, 2 J. & H. 460 ; Red- grave V. Hnrd, 20 Ch. Div. 1. *■ Kimber «. Barber, L. R. 8 Ch. Ap. 66. The difficulty in the case with Lord Romilly was, thiit he treated the transac- tion as one between vendor and vendee ; and as there could not be a restitutio in integrum, that the purchaser had lost his remedy. Great Luxembourg Ry. Co. v. Magnay, 25 Beav. 686. But the Court of Appeal held that a fiduciary relation ex- isted between the parties, and that the case was one of a clearly established agency, in which the common relief would be decreed. Hichens v. Congreve, 4 Russ. 562, 577; Bank of London v. Tyrrell, 10 H. L. Cas. 26 ; Fox v. Mackreth, 2 Br. Ch. 400 ; Fawcett v. Whitehouse, 1 Russ. & M. 132 ; Driscoll v. Bromley, 1 Jur. 238, 306 ; Lees v. Nuttall, 1 Russ. & M. 63; Massey i>. Davies, 2 Ves. 317; Bentley V. Craven, 18 Beav. 75; Beck v. Kantero- wicz, 3 K. & J. 230. PART VIII.] AGENCY. 607 him in the transaction. And that, on the principle that where a wrongful act has been completed without the knowledge or as- sent of the party injured, his right of action is not ordinarily barred by mere submission to the injury, or even by a voluntary promise not to seek redress, — some conduct amounting to re- lease, or accord and satisfaction, must be shown ; although on account of lache» relief may be refused under special circum- stances. It was further held, that there had been no such acqui- escence or lache% on the part of the plaintiff as to disentitle him to relief.' The knowledge of counsel in a particular transaction* is notice to his client. And though the client may not actively participate in accomplishing a fraud, yet if he be looking on at what is done by another who is his confidential agent and professional adviser generally, and has been his agent and adviser in regard to a par- ticular matter called in question as fraudulently accomplished, and if, when all is accomplished, the client take and profit by the fruits of all that has been done, he will be taken as affected with knowledge possessed by his agent.* In McPherson v.Watt,^ where an agent bought property from his principals, of whom he was the attorney, pretending that it was for another, and concealing from his principals tiie fact that he was buying it for himself, the House of Lords held, reversing the decision of the Scotch court* appealed from, that the pur- chase could not be enforced. And per Lord Cairns, V. C, assum- ing that, in every respect, this was a sale which might have been supported had the principals been told that their agent was him- self the purchaser, it could not be supported, that fact not having been disclosed.^ ;! » De Bussche v. Alt, 8 Ch. D. 286. See Fawcett v. Whitehouse, 1 Russ. & My. 132 ; Hay's Case, L. R. 10 Ch. 593; Dunne V. English, L. R. 18 Eq. 524 ; Duke of Leeds v. Earl Amherst, 2 Ph. 123. a May v. Le Claire, 11 Wall. 217; re- porter's note. » 3 App. Gas. 254. * Scotch Cases, 4th series, vol. iv. p. 601. * Lord Blackburn somewhat quaintly observed: "He was advising them, and, therefore, he was quite in a different posi- tion from a man who was a stranger bar- gaining for himself. Such a man might say, Your house is not a good one. He might say it was valueless, and you had better sell it a great deal cheaper, and take a smaller price for it. Such has been the course of business for at least three thoosand years. '/< is naught, U is naught, saith the buyer : but when he is gone his way, then he boasteth.' Pro- verbs XX. 14. When a vendor is dealing with a stranger, the purchaser is not to tell him any lies ; but the vendor has no right to say, I expect and believe that he will give him disinterested advice. On the other hand, when an attorney is acting for both sides it is otherwise. Tlien the vendor has a right to expect that there shall be disinterested and true advice, and I do not see the practical difficulty of giv- ing it." Murphy v. O'Shea, 2 J. & La T. 422 ; Lewis v. Hillman, 3 H. L. Cas. 607; Charter v. Trevelyan, 11 CI. k F. 714; Tate v. Williamson, L. R. 1 Eq. 528 ; L. R. 2 Ch. App. 65 ; Gibson v. Jeyes, 6 Ves. 278 ; Smith v. Kay, 7 H. L. Cas. 750; Billage v. Southee, 9 Hare, 634, 640 ; Holman t). Loynes, 4 De O. M. & 0. 278. In Lewis v. Hillman, 8 H. L. 608 COMMENTARIES ON SALES. [book II. The plaintiff au.iiorized defendant, as his broker, to negotiate for the purchase of a particular ship on the basis of an offer of £9000; but eventually the ship was purchased through defendant for £9250. Prior to the sale, an arrangement had been made between the vendor and a broker, S., that if 8. could sell the ship for more than £8500 he might retain for himself the excess; and it was arranged between S. and defendant, without the knowledge or sanction of plaintiff, that defendant should receive from S. a portion of such excess ; and accordingly defendant received £225, part of the excess over £8500. On discovering this, the plaintiff brought an action for money had and received for the £225.* In addition to the above facts, the jury found that defendant was the agent of plaintiff to purchase the ship as cheaply as she could be got, and plaintiff could have got her cheaper but for the arrangement between vendor and S. On verdict entered for the plaintiff the action was sustained.' In Barwick v. English Joint Stock Bank,^ it was held, by the Exchequer Chamber, that a principal is liable to an action for the fraudulent misrepresentation of his agent, acting in the course of his business.* The facts were that the plaintiff, hav- Cas. 607, 630, Lord St. Leonards, in holding in the case of a sale of any kind which is so fair, so reasonable as to price, so entirely free from anything else that is obnoxious, aa to be capable of being sup- ported, yet if there has entered into the sale the ingredient that the client has not been made aware that the real purchaser is his law agent, if the purchase has been made in the name of some other person for that law agent, that is a sale which cannot be supported, said: "No man in a court of eq^uity is allowed himself to buy and sell the same property. He cannot sell to himself. Even in the case of a fair trustee, he cannot sell to himself. If he has the power or the trust to sell, he must have some one to deal with. Courts of equity do not allow a man to assume the double character of seller and purchaser ; and it is necessary, in order to preserve the interests of persons entitled benefi- cially to property, to maintain that rule. I should lay it down as a rule that ought never to be departed from, that if an attor- ney or agent can show he is entitled to purchase, yet if, instead of openly pur- chasing, he purchases in the name of a trustee or agent without disclosing the fact, no such purchase as that can stand for a single moment. Such a transaction to stand must be open and fair, and free from all objection. And if a man pur- chase by putting forward a clerk of his own, not as a clerk, not as an agent, but as an actual bond fide purchaser upon an absolute and independent contract, he does that which, the moment it is stated, renders the deed powerless for the purpose for which it was framed and executed ; and the court will hold the parties re- sponsible for everything that results from it." 1 In Rogers v. Boehm, 2 Esp. 702, Lord Kenyon ruled that interest made by an agent hy tlie use of his principal's money belonged to the latter, and might be recovered by him in an action for money had and received. Thompson v. Havelock, 1 Camp. 527 ; Diplock v. Blackburn, 3 Camp. 43 ; Barber v. Den- nis, 6 Mod. 69 ; A)ion. 12 Mod. 415. And in equity the rule is that the profits, directly or indirectly made in the course of or in connection with his employment by a servant or agent, without the sanc- tion of the master or principal, belong absolutely to the master or principal. Massey v. Davies, 2 Ves. 317; Turnbull V. Garden, 38 L. J. Ch. 331, 334; Kimber V. Barber, L. R. 8 Ch. Ap. 56. ' Morison v. Thompson, L. B. 9 Q. B. 480. » L. R. 2 "Ex. 259. * This ))oint was decided as long ago as the time of Salkeld (a. d. 1708), in Hern V. Nichols, 1 Salk. 289, where, in an ac- tion for 8 deceit, the plaintilf set forth, PART vin.] AGENCY. 609 ing for some time, on a guarantee of the defendants, supplied J. D., a customer of theirs, with oats on credit, for carrying that he bouj^ht several parcels of silk for silk, whereas it was imother kind of silk ; and that the dcrunduiit, well knowing tliis deceit, sold it to him for silk. On trial, niHin a plea uf not guilty, it appeared that tliere was no aetual deceit in the defendant who was the merchant, but that it was in his factor lieyond sea. And the doubt was, if this deceit could charge the nierchiint. Holt, ('. J., held, that the merchant was answerable for the deceit of his factor, though not criminal' iter, yet civililcr; "for seeing somebody must be a loser bv this deceit, it is more reason that he who employs and puts a trust and confidence in the deceiver should be a loser than a stranger." And, u|)yn this opinion, the (ilnintiir had a verdict. The same principle was applied in Fitz- herlwrt v. Mather, 1 T. R. 1*2, where, in a cose of insurance, the jiolicy was obtained by the fraudulent concealment of the agent of the loss of the vessel, the principal having no knowledge of the fact. Ash- urst, J., said : "On general principles of policy, the act of the agent ought to bind the principal ; because it must be taken for granted, that the principal knows whatever the agent knows. And there is no hardship on the part of the iilaintiff ; for if the fact had been known, tne policy could not have been etfected." Lord Hardwicke, in Hartop v. Hoare, 3 Atk. 44, 47, by a distinction which he there draws, well shows that to nu'k'; the prin- cipal liable for the fraud of his agent, the fraud must have been committed within the scope of the agent's employment, — a principle which is the very basis of the well-decidetl modern cases on the sub- ject. Lord Hardwicke, referring to the holding of Holt, C. J., in Hern v. Nichols, 1 Salk. 289, .says: "There is no doubt but the verdict was right in that case, for the defendant emjiloyed his factor in the act of selling, in which the deceit was committed, and by em- ploying him as a factor he created a credit in him." lUit, in Hartop v. Hoare, 3 Atk. 44, the plaintilf lodged jewels for safe custody with S., carefully sealed, and S. subsequently took out the jewels, and obtained money on them from a banker. Here, Lord Hardwicke says. Hern i'. Nichols is not the present case, " for the plaintiff here gave no iwwer to S. to do the act in which the deceit was, but on the contrary hath used a prudent method to prevent it. The present case, therefore, is like the case in 1 Inst. 89, where A. leaves a chest locked with B., and taketh away the key ; there A. does not entrust TOL. I. 89 B. with the goods." Fraud will vitiate any transaction, though the princi|)al do not personally take any |Hirt in the fraud, if his agent do ; for the principal is civilly responsible for the acts of his agent within the HCo\xi of his employment. Doe t'. Martin, 4 T. H. 39. So, in Udell v. Atherton, 7 H. & N. 172, it was held by Pollock, C. B. and Wilde, B., Martin and Bramwell, Hit., dis.sciitiiig, that a prin- ciiNil is liable, in an action of deceit, for the false and fraudulent representations of his agent, as to the quality and value of an article, whereby a person has l>*>en in- duced to purchase it for more than its worth, notwithstanding that the principal neither authorized nor knew of the fraudu- lent conduct of his agent. The plaintiff having paid for the artiide, in an action against the ])rincipal for the fraud the plaintilf was nonsuited ; so the o|>inion of Martin and Bramwell, BB., .prevailed. The rule was admitted all around in this case to be that where\er an agent, within the scojie of his authority, makes a fniudu- lent misrepresentation, his (irincipal is li- able. But the ditiiculty which arose in the ease was in applying the rule, and the prevailing oi)inion really rested upon the fact that the agent was really a special and not a general agent, and that the fraud was that of the agent and not of the prin- cipal. This is considered by the court in Barwick v. Knglish .loint-Stock Bank, L. K. 2 Ex. 259, 265, where it is said : " If there be fraud in the manager, then ari.sos the question, whether it was such a fraud as the bank, his employers, would be an- swerable for. With respect to that, we conceive we are in no respect overruling the ojunions of my Brothers Martin and Bramwell, in Udell v. Atherton, 7 H. & N. 172, the case most relied upon for the purpose of establishing the proposition that the principal is not answerable for the fraud of his agent. Upon looking at that case, it seems pretty dea;- that the division of opinion which took place in the Court of Exchefjuer arose, not so much upon the question whether the princi{)al is answer- able for the act of an agent in the course of his busines.s, — a question which was settled as early as Lonl Holt's time, — but in applying that principle to the peculiar facts of the case ; the act which was relied upon there as constituting a liability in the sellers having been an act adopted by them under peculiar circumstances, and the author of that act not being their general agent in business, as the manager of a bank is." See further, Comfoot v, Fowke, 6 M. & W. 373 ; Wilson v. Fuller, I ; 610 COMMENTABIES ON SALES. [book II. out a government contract, refused to continue to do so unless he had a better guarantee. The defendants' manager thereupon gave him a written guarantee to the effect that the customer's check on the bank in plaintiffs favor, in payment for the oats supplied, should be paid, on receipt of the government money, in priority to any other payment, " except to this bank." J. 1). was then indebted to the bank to the amount of .£12,000, but this fact was not known to the plaintiff, nor was it communi- cated to him by the manager. The plaintiff thereupon supplied the oats to the value of £1227 , the government money, amount- ing to £2676, was received by J. D., and paid into the bank ; but J. D.'s check for the price of oats, drawn on the bank in favor of the plaintiff, was dishonored by the defendants, who claimed to retain the whole sum of £267^, in payment of J. D.'s debt to them. The plaintiff having brought an action for false repre- sentation, and for money had and received, on the trial of the cause before Martin, B., a nonsuit was directed on the ground that there was no evidence to go to the jury in support of the plaintiff's case. But, on exceptions, the court held, that, on the facts, the jury might justly come to the conclusion that the manager know and intended that the guarantee should be un- availing ; that he procured for his employers, the bank, the gov- ernment check, by keeping back from the plaintiff the state of J. D.'s account, and that he inter.ded to do so ; from which the jury would conclude that there was such a fr.'xud in the min- ager as the plaintiff coi. "^lained of ; second, that this was such a fraud in the manager a.. ' " bank, his employers, would be answerable for ; and, third, that •.. description of such fraud as the fraud of the bank was proper.* a venire de novo was accord- ingly ordered. by a sheriff against an execution creditor, on a bond of indemnity for seizing goods \in(*er' ^fi. fa., defendant pleaded that the bond was obtained from defendant, by plaintiff and others in collusion witii him, by fraud and misrepresentation. It was held that the defendant supported this plea by proof that the sheriff's officer, who executed the process, obtained the bond by fmud and misrepresentation, although the })laintiff did not appear to have been personally cognizant of any part of the transaction. See, also, to the same elfpct, Woodgate v. Knatchbnll, 2 T. R. 148; Sturmy v. Smith, 11 East, 25 ; Fitzherbert V. Mather, 1 T. R. 12 ; Doe v. Martin, 4 T. R. 39 ; Laicock's Case, Noy, 90 ; San- derson V. Baker, 2 W. Bl. 832 ; Smart v. Hiitton, 2 N. & M. 426 j North v. Miles, 1 Camp. 389. 8 Q. B. 68 ; Murray v. Mann, 2 Ex. 538 ; Wilde V. Gibson, 1 H. L. Cas. 605 ; Brady V. Todd, 9 C. B. N. s. 592; Fenn v Harrison, 3 T. R. 760 ; Croft v. Mhav,, 4 B. & Aid. 590 ; Ewbank v. Nutting, 7 C. B. 797 ; Hamilton v. Watson, 12 V\. fi F. 109 ; Lee v. Jones, 17 C. B. n. >5. :>(y\ ; Goff ». Great Northern Ry. Co., 3 E. & E. 672 ; Roe v. Birkenhead Ry. Co., 7 Ex. 86 ; Barry v. Midland Ry. Co., Ir. L. Rep. 1 C. L 130 ; Huzzey v. Field, 2 C. M. & R. 432, 440 ; Pickering i'. Dowson, 4 Taunt. 779 ; Haycraft v. Creasy, 2 East, 92 ; Polhill v. Walter, 3 B. & Ad. 114 ; licvy V. Langridge, 4 M. & W. 337 ; Moens v. Hayworth, 10 M. & W. 147 ; Evans v. Collins, 5 Q. B. 804, 820 ; Pas- ley V. Freeman, 3 T. R. 61. ' This was so held in Raphael v. Good- man, 8 A. & E. 665, where to an action PART VIII.] AGENCY. 611 A company formed to work a mine was compelled from want of funds to cease working ; money was then advanced to them by some of the directors, and among them Barnctt and Baldwin. Afterwards at a general meeting of the company, held in order, among other things, to provide for the existing deficit and for working expenses, the directors were authorized to issue deben- tures on such terms and for such amounts as they in their discre- tion might think fit. The directors accordingly authorized the secretary to employ a firm of brokers to place the debentures. The brokers prepared and issued a prospectus, bearing the names of Bell and others as directors, and containing statements as to the condition and prospects of the company, on the faith of which the plaintiff and others purchased debentures. The money thus raised was paid to the company's bankers, and part of it was ap- plied by the directors on behalf of the company to repay the ad- vances made by Barrett and Baldwin. Tlie debentures having become worthless, the plaintiff brought an action for damages against Bell and others in respect of the statements in the pro- spectus, some of which were alleged to be fraudulent. The jury found that the prospectus contained statements of fact whicli were false to the knowledge of the brokers, and by which the plaintiff was induced to part with his money ; that none of the false statements were made by Bell personally or by his authority ; that the brokers had authority to issue a prospectus, but no au- thority to include in it statements which wore fraudulent ; and that Bell derived no benefit from the money raised by the deben- tures. Held, by Cockburn, C. J., Bramwell, and Brett, L. JJ., (Cotton, L. J., dissenting), affirming the judgment of the Exche- quer Division, that the defendant Bell was not liable. By Cock- burn, C. J., and Brett, L. J., on the ground that though a party as director, to the receipt of money, the defendant, Bell, was not aware of the falsehood of the statements contained in the pro- spectus, and derived no personal benefit from the receipt of the money. By Bramwell, L. J., that the defendant, Bell, had been guilty of no moral fraud, and not being the principal of the brok- ers, could not be held to have impliedly undertaken for the ab- sence of fraud in them in issuing the prospectus. Cotton, L. J., held, in dissenting from the other judges, that the defendant, Bell, was liable in an action to the plaintiff, for it was his duty as di- rector to ascertain whether the statements in the prospectus were true or false.* » Weir t>. Baraett, 3 Ex. Div. 238. The judges in the Exchequer Division (Kelly, C. B., Pollock and Huddleston, BB.), whose decision was sustained in respect to Bell by the Court of /■ — ^], held unanimously that the brokers were ii i It ! 1 r.i 1 i; ; i; T'l ''li iiili 612 COMMENTARIES ON SALES. [book II. The plaintiffs instructed a broker to re-insure an overdue ship. Whilst acting for the plaintiffs, the broker received information really not the agents of the directors, but of the company, the directors being inter- vening agents ; that the repayment of the moneys to Barnett and Baldwin, though in some sense consequent uiwu, had no necessary connection with, the fraudu- lent statements in the prospectus ; that Barnett and Baldwin were not the prin- cipals of the brokers, so as to bring the former within the rule that a principal is answerable where he iias received a beneht from the fraud of an agent within the scope of his authority, and, therefore, that the plaintiffs could not recover in their action against any of the defendants, among whom were Barnett and Baldwin. Ibid. 3 Ex. Div. 32. The appeal to the Court of Appeal, was only in resi>ect to the defendant Hell. The judges of the Court of Appeal, as to the question of the liability of tiie company, were of opinion with the court below that the company would have been liable for the fraud. And had the appeal been as to the judgment in favor of Barnett and Baldwin, Cock- burn, C. J., and Brett, L. J., with Cotton, L. J., would have reversed the judgment of the Excheipier Division witii resjiect to them. Cockburn, C. J., in delivering the .judgment of iiimself and Brett, L. J., on these two jioints, said: "Tlie Court of Exchcipier Division gave judgment iu fpvcr of the defenilants, on the ground that the brokers, in issuing the prospec- tus, had acted as the agents not of the defendants, but of the company ; that the directors had been merely the olKcers and agents of the company in carrying into effect the resolution of the company that debentures should be issued ; and in doing what was necessary for that puri)ose, inter alia in directing that a prospectus should be prepared ard [mblished, had been in no sense principals; conseipientiy that the rule, that a [principal wlio derives benetit from a fraud commivted by his agent m the course of his employment becomes liabl" to a ]tarty injured by the fraud, has here no application, though upon the au- thority of Barwick v. English Joint Stock Bank (L. K. 2 Ex. 259) the fraud in ques- tion would have made the company liable hail the action been brougiit against them. 1 concur iu the view that the defendants, in what they did, were acting as the agents ot the com|>any, and not as principals, and therefore that they woultl not be liable, generally speaking, for misrepresentations made without tlieir authority by persons employed by them on behalf of the com- pany, and who in such employment were acting, not aa their agents, but as the agents of the company. But the court below appear to have overlooked a cir- cumstance which, as it seems to me, makes all the difference ; namely, that, with the exception of the defendant Bell, all the defendants, though not parties to the issuing of the prospectus as fraudu- lently framed, yet, knowing that it had been issued, and with the knowledge of its fraudulent character which their per- fect acquaintance with the affairs of the company must have given them, not only allowed the plaiutiti' and otiiers to ad- vance their money on the faith of the false representations contained in it, and by receiving the money became jtarties to the fraud, but, on their own authority, applied a considerable portion of the money so received to the discharge of their own pecuniary claims on the com- pany, — claims which the company had no other means wliatever of satisfying. Even the defendant Barnett, who left England in August, 1S73, and did not return till 1874, and who was ignorant of all that was done in the interval, inclusive even of the fact of the payment of the amount due to him from the company, the money having been psiid to his agci'ts in his ab- sence, having retained the money when the facts came to his knowledge, stands on the same footing with the rest. Now, I take it to be undoubted law that, if an agent, in the course of his employment, commits a fraud upon another party, whereby damage ensues to the latter, he will be liable to the party wronged, though his principal would be so likewise. Tiie caso of Henderson v. Lacon (L. R. ^ Ei). 249) proceeded on this i)rincii)le. And in Cullen V. Thompson's Truslues (4 Macc[. 424), Lord Westl)ury says : 'All persons concerned in the commission of a fraud are to be treated as principals. No [tarty can be permitted to excuse himself on tlm ground that he acted as the agent or ser- vant of another.' A Jortiori, this would be so where the a-'ent himself derives benefit from the fraud. The presen; case differs, it is true, in this, that here the det'endaiits, being the agents of the com- pany, em[)!oyed sub-a.;;i'nt3 to publish tiie prospectus, but were no parties to the fraudulent statements contained in it, such statements having been [tubllslu'd by the sub-agents without their autliority or knowledge. But havii.g, with the ex- ception of the defendant Bell, bei oiip' aware of those statements, and biini,' also aware of their falsehood, they were parties to the issuing of the debentures, and applied a considjrable portion of the PART VIII.] AGENCY. 613 material to the risk, but did not communicate it to them, and the plaintiffs effected a re-insurance for jB800, through the broker's London agents. Afterwards the plaintiffs effected a re-insurance for £700, lost or not lost, through another broker. The ship had in fact been lost some days before the plaintiffs tried to re-insure, but neither the plaintiffs nor the last-named broker knew it, and both he and the plaintiffs acted throughout in good faith. The House of Lords held,^ reversing the judgment of the Court of Appeal, and restoring the judgment of Day, J., that the knowl- edge of the first broker was not the knowledge of the plaintiffs, and that the plaintiffs were entitled to recover upon the policy for £700.2 proceeds to the satisfaction of their own claims on the company. Now, I appre- hend that where an agent employs a sub- agent, and the latter, in the course of his employment, is guilty of fraud or misrep- resenUition, and the agent, with knowl- edge of the fraud, derives a material benefit from it, the case becomes analo- gous to that of a principal who profits by the frxud of his agent, the prin'-iple being that he who profits by the f...ud of one who is acting by his authority, though committed without his authority, adopts the act of tlie agent, and becomes respon- sible to the party who lias been imposed upon, and has sustained damage by rea- son of it. If, therefore, the case of the defendant Bell, with which alone we have to deal, as it is oidy against the decision of the court below in his favor tiiat the present appeal has been brought, had Wn undistinguishable from that of the other defendants, I should not have felt warranted in affirming the decision. But his case differs from that of the o'.her de- fendants in two most impo'tant particu- lars. First, that thougli party to tli.) receipt of the plaintilFs :rioney, he do.?n not appear to have been at that time ai;- ((uainted with the real state of the ';om- pany's affairs, and thus aware of tlic false- liocd cf the statements contained in tiio jjrospectus ; sccondhj, that none of the nionov actually ca.iie into his pocket." Weirr. Bell, 3 Ex. Div. at p. 247 ft scq. See Swift V. Winterbotham, L. H. 8 Q. B. 244 • Swift t>. Jewsbury, L. K. " Q. B. 312 ; Western Bank of Scotland i'. Addie, L. K. 1 Sc :; I), 145; Mackay y. Com- niercial E '"■• of New Brunswick, L. R. 5 P. C. 412 ; Reese Liver Silver Mining Co. V. Smith, L. R. 4 H. L. 79 ; Bavley I'. Manchester, &c. Ry. Co., L. R, 7 C. P. 415 r Directors, &c. of Central Ry. Co. v. Ksch, L. R. 2 H. L. 113 ; Henderson v. Laoon, L. R. 5 Kq. 249, 261; Land Credit Co. of Ireland v. Fermoy, L. R. 5 Ch. 763 ; Sands v. Child, 3 Lev. 351; Bennett V. Bayes, 5 H. & N. 391 ; Cullen v. Thomp- son, 4 Mac(]. 424 ; Mersey Docks Co. v. Gibbs, L. R. 1 H. L. 127; Wilde v. (iib- son, 1 H. L. Cas. Glo; Ne'v Brunswick & Canada Ry. Co. i'. Connybeare, 9 H. L. Cas. 711; National Exchange Co. i". Drew, 2 Macci. 124; Davidson i'. Tulloch, 3 Macq. 783 ; Brady v. Tod, 9 C. B. N. s. 592 ; Peek V. Gurney, L. R. 6 H. L. 392; Ew- bank v. Nuttii.g, 7 C. B. 797. 1 Blackburn i'. Vigors, 12 App. Cas. 531. 2 The following princijiles, as far as they relate to the duty of the agent to coiimninicate all the facts of which lie pos- sesses knowledge to the same extent as the principal would be Iwund to commu- nicate knowledge which he himself pos- sesses, to the other contracting i>arty, is as apiilicable to the contract of sale as to the contract of insurance. " I can quite understand," said Lord Halsburv, L. C. (Blackburn v. Vigors, 12 A]ip. Cas. 536), " that when a man comes for an insurance upon his ship he may Ik; exjiected to know both the then condition and the hi.story ct the ship he seeks to instire. If he takes means; '-.c* to k:iow, so a.s to be able to make ctniracts of insurance without the responsibility of knowledge, tiiis is fraud. But even v/ithout fr.iud, su;;!; as I think this would be, the owner of the ship cannot escape the neces.-.ity of bein^ acquainted with his ship an 1 its history, because he has committed ti. otl'crs — his captain, or his general agent for the management of Ina shipping business — the knowledge which the underwriter has a right to assume the ovner posses.ses when he conies to insure hi.' ship. With respect to agency so liniiteu,wlu(iossible to suggest that the assured could rely upon the comnmnication to the prin- cipal of every piece of information ac- quired by any agent through whom the assured has unsuccessfully endiavored to procure an insurance ? I am unable to ac- cept the criticism by the Master of the Rolls [in the Court of Api)calj, upon the proposition that the knowledge of the agent is the knowledge of the principal. When the person is the agent to know, his knowledge does bind the principal. Hut in this case I think the agency of the broker had ceased before the policy sued upon was elFected. The principal himselt and the broker through whom the policy sued on was elfected were both admitted to be unaciiuainted with any material fact which was not disclosed. I cannot but think that the somewhat vague use of the word 'agent' leads to confusion. Some agents so far represent the principnl tluit in all respects their acts and intentions and their knowledge iiuiji truly be said to be t/ie acts, intentions, and knowledge of tlie prin- cipal. Other agents may /lavc so limited and narrow an authority both in fact and in common understanding of their form of employment, that it ivou/d be quite inaccu- rate to say that inch an agent's knowledge or intentions arc the knowledge or inten- tions of his principal ; and whether his acts are the acts of his principal de- pciuls upon the specific authority /w has received. In Fitzherbert i'. Mather, 1 T. R. 12, the consignor and shipper of the goods insured was the agent whoso knowl- edge was in ipiestion. In Gladstone v. King, 1 M. & 8. 35. the master of the ship was the agent ; and in Promlfoot v. Mon- teliore, L. R. 2 Q. B. 511, the agent was the accepted representative of the luinei- pal, ill effect, trading and acting for him in Smyrna, the owner himself carrying on business in Mandiester. And though the decision in Ilugglcs v. General Insurance Co., 12 Wheat. 408, before the Supreme Court of the United States, may not be ver" satisfactory in what they held ui ;1p" tht. circumstances of that cose to be .ae relation between the captain of :he ship and his owners, the principle upon which that case was decided was the supposed termination of the agency between them. Where the employment of the agent is such that in respect of the particular mat- ter in question he really does re]>resent the principal, the formula that the knowli:dge of the agent is his knowledge is, 1 think, correct ; but it is obvious tnat that form- ula can only be applied when the words • agent' and ' principal ' are limited in their ai>plication. To lay down as an abstract proposition of law, tfiat every agent, no matter how limited t/ie scope of his agency, icoald bind every principal even by his acts, is obviously, and upon the fact of it, absurd; and yet it is by the fallacious use of the word ' agent ' that plausibility is given to rciisoning which requires the assumption of some such proposition. What then is the position of the broker in this case, whose knowledge, though not communicated, is held to be that of the principal '! He, certainly, is not em- ployed to ac(}uire such knowle'f >^ PART VIII.] AGENCT. 615 change, in sets of two parts each, and sent them to their agent, R., in Pittsburgh, Pennsylvania. The two sets were left blank except that they were made in ft. or of R., and were accepted on their face by the defendants, who instructed R. to fill up the blanks ; to procure the signatures of the requisite parties as ac- commodation drawers and iudorscrs ; to sell and negotiate the bills, as perfected, for money, and to remit the proceeds to the defendants. In July following, at the request of R., the defend- ants sent him four other similar blank acceptances, to be sold and negotiated by him in double sets, the proceeds of these to be re- tained by R. for his own use. R. got the whole of the firsts of exchange and two of the seconds of exchange discounted, and kept the proceeds. The seconds were in every respect completed bills of exchange, and they were discounted by the plaintiiTs, without any notice of the facts or circumstances of the way in whicl". R. held them, unless the words " second of exchange, first unpaid," could be held to have that import. The court held, in an action by the plaintiffs on these two bills,^ that the defendants were lia- ble on the following grounds : — First. Because, where a party to a negotiable instrument in- trusts it to the custody of another not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted, or to be used for his own benefit, such negotiable instrument car- ries on its face an implied authority to fill up the blanks and i>er- fect the instrument ; and as between such a party and innocent third parties, the person to whom it was so intrusted must be deemed tliC agent of the party who committed such instrument to his ci. r v-ly ; or, in other words, it is the act of the principal, and he if 'iOiiu'l by it.^ a ': 'I I'f .. :iincj, where the goods have not bee vi . • • i' The sentences which we have aU' ■ itBli''i>u'il are so peculiiirly ap[)licat)le , on 'ti,^thyiliseussioiiofthat subject, ihnt. iVc re-nuote them : " Some agents so far represent the i»riiiciiinl that ill all respects tlu'ir act.s ami intentions and their knowledfje may truly be said to he the acts, intentions, and knowledge of the principal. Other agents iray have so limited and narrow an authority both in fnct and in eoinmon understanding of their form of employment, that it vould be lite iuac('urate to say that such an (IV..!' .1 knowledge or intentions are tho k.K ii'ilp- or intentions of his principal ; air' y,'' i:;'^r h')^ acts are tho acts of his priiu:i|ii . depemls upon the specific au- thority he has received .olayilown as an abstract proposition of law tlnit every agent, no matter how limited the scope 0? his agency, would bind every principal, even by his acts, is obviously, and upon the face of it, absurd." Hhick- burn V. Vigors, 12 Apji. (us. jip. 637, 638, /)(■/■ Lord ClKinctllor llalsbury. See tlie case in the court below, Blackburn v. Vigors, 17 Q. i;. Div. r>.")3, Lord Esher, M. !{., dissenting from the reversed judg- ment of Lindley and Lojies, L. .IJ. And see Williams v. North Chiiui Ins. Co., 1 C. P. Div. 7.17 ; Fitziicrbert v. Mather, 1 T. R. VI ; (iladstone v. King, 1 M. & S. 35 ; Ruggles v. ticncral Inti'rcst Ins. Co., 4 Mason, 74 ; 12 Wheat. 4 r is no notice to the bond fide purchasers that the firsts had i oeen accepted; which double acceptance is improper," and, if merely the result of enabling a third person to do a wrong, comes within the rule applicable to cases of agency, that where one of two innocent parties must suffer through the fault or negligence of a third party, the loss must fall on him who gave the credit.* 1 Swift V. Tyson. 16 Peters, 15 ; Good- man V. Simond.s, 20 How. 36". 2 Auilrews v. Pond, 13 Peters, 5 ; Fowler v. Bluntly, 14 Pet. 318 ; Goodman V. Sinionds, 20 How. 366. 8 Chitty on Bills (10 Am. ed.), 155; Byleson Bills, 310; Huldsworthw. Hunter, 10 B. & C. 449 ; Davidson v. Uobertson, 3 Dow P. C. 223. * Fitzherbert v. Mathew, 1 T. R. 16, per Biiller, J. ; Androscoggin Bank v, Kimball, 10 Ciish. 373 ; Montague v. Perkins, 17 Jur. 557. Speight V. Gaunt, 22 Ch. Div. 727, affirmed by the House of Lords, Ibid. 9 Ap. Cas. 1, holds that a t; astee investing trust funds is justified in employing a broker to proeure securities authorized by the trust and in paying the purchase- money to the broker, if he follows the nsual and regular course of business adopt- ed by ordinary prudent men in making such investment. In this case the broker, who was eMi|)loyed by a trustee to buy securities of municipal corporations author- ized by the trust, gave the trustee a bought note which purported to bo subject to the rules of the London Stock Ex- change, and obtained the purchase-money from the trustee upon the representation that it was payable the next day, which was the next account day on the London Exchange. The broker never procured the securities, but appropriated the money to his own use and linally became insol- vent. Some of the securities were procur- able only from the corporations direct, and were not bought and sold in the market, and there was evidence that the form of the bought note would have suggested to some experts that the loans were to be direct to the corporations ; but, as the House of Lords held on the facts, there was nothing calculated to excite suspicion in the mind of the trustee or of an oixii- uary prudent man of business ; and such jMiyment to a broker was in accordance with the usual course of business in pur- chases on the London Exehaiiwe. It was therefore held by the House of Lords ( Lord Fitzgerald doubting) that the trustee was not liable to the ccntidn qite trust for the loss of the trust funds. Lord Fitzgerald, in expressing the doubts which he enter- tained on the facts in the case, accepted it as settled law that although a trustee can- not delegate to others the cf»nrulence re- posed in himself, nevertheless he may in the administration of the trust fund avail himself of the agency of third parties, such as bankers, brokers, and others, if he does so from a moral necessity or in the regulai' course of business. If a loss to the trust fund shoulu be occasioned thereby, the PART VIII.] AGENCY, 617 proeur- ect, ami iiiiiiket, form of ustud to to be as the there uspieion m oixii- nd such ;ordance in puv- It was l.s{Lord stee was for the zgerald, le enter- lopted it iteo can- Biice re- may in il avail I'S, surh he docs regular ho trust ,hv, the nd S., being employed by the respondent to carry on his business, credited the respondent in account with the appellant with the sum of 5800 tacls, which he falsely represented to have been advanced in the ordinary course of business on certain goods intended for ship- ment. He then drew a bill in the name of the respondent's lirm on the appellants for the balance of account, and liaving received the proceeds of such bill, including the said 5800 tacls, appropri- ated them to his own use. On a special case submitting whether the respondent was liable to the aj)pellants in the suid sum, with interest from date of receipt by S., it was held by the Privy Coun- cil, that the proceeds of the bill having been received as aforesaid by S., acting throughout within the scope of his authority, be- longed to the respondent ; and that he having thus been paid 5800 taels without consideration, the appellants were entitled to recover back the sarae.^ In an action to recover damages for a fraudulent misrepresenta- tion, L. ordered the defendant to buy rupee paper for him. The defendant sold rupee paper of his own to L,, whilst he fraudulently trustee will bo exonerated unless sojne uegligouce or default of his has led to that result. Ibid, at p. 29. A trustee or executor who conducts the business of the trust in the same manner that nu ordinary prudent man of business would conduct his own, does all that is required of him, and beyond that there is no liability or oblitration on the trustee. Li re JBird, L. It. 16 Eq. 203 ; Job v. Job, 6 Ch. Div. 502 ; Jones V. Lewis, 2 Ves. Sen. 240 : Eju parte Beluhier, Amb. 218 ; Bacon v. Bacon, 5 Ves. 331 ; Joy v, Campbell, 1 Sch. k Lef. 328, ^i\ ; Clough i;. Burd, 3 M. & Cr, 490, 497 ; Castle v. Warland, 32 Beav. 660. But where the trustee has not taken proper precautions which he might have taken against being deceived, then the rule has lieen ajiplied that, as between two innocent parties, one of whom must suli'er from the wrongful acts of the broker, the loss must full on the trustee who emjiloyud the dishonest broker. Bostock v. Flover, k R. 1 Va\. 26 : Su ton v. Wildere, \j. R. 12 Eq. 373 ; Hopgood v. Parkin, L. R. 11 Eq, 74. And see Matthews i'. Brise, 6 Beav. 239 ; Mendes v. Guedalla, 2 J. & H. 259 ; Langford v. Gascoyne, 11 Ves. 333 ; Lord Shijibrook v. Lord H inch brook, 11 Ves. 2,')2 ; 16 Ves. 477 ; Underwood v. Stevens, 1 Mer. 712 ; Hanbury v. Kirk- land, 3 Sim. 265. The law is well laid down bv T'ord Cottenhani, in Clough v. Burd, 3 M. & Cr. 496 . " It will be found to be the result of all the best authorities upon the subject, that, although a p(!rsonal representative, acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be res])oiisible for the failure or depreciation of tlie fund in which any part of the estate may be in- vested, or for the insolvency or misconduct of any pereon who may have possessed it, yet, if that line of duty be not strictly pursued, anil any part of the pi-operty be invested by such jiersonal re[)reseiitative in funds or ujwn securities not authorized, or be put within the control of ])ersons who ought not to be intrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to malce it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any improjier motive." Walker i;. Synionds, 3 Swanst. 1 ; Wilkins v. Hagg, 8 Jur. n. s. 25 ; Chambers t>. Minchin, 7 Ves. 196 ; Greg- ory V. Gregory, 2 Y. & C. Kx. 313; Booth V. Booth, 1 Beav. l'J5 ; Kgberl v. Butter, 21 Beav. 660 ; Tliompsim v. Finch, 22 Beftv. 316 ; Cowell v. GutcdUibe, 27 Beav. 568; Brice «. Stokes, 11 Vis. 219; Oliver v. Covert, 8 I'rice, 166 ; In re Chertsey Market, 6 Trice, 279 ; Attorney- General V. Holland, 2 Y. & C. Cli. 699 ; Williams v. Nixon, 2 Beav. 472 ; Black- wood I'. BorrowCs, 2 Con. & L. 477. 1 Swire v, Francis, 3 Apn. Gas. 106. This case approvetl and followed Bar- wick V. The English Joint-Stock Bunk, L. R. 2 Ex. 2r)9, and Mackay v. The Commercial Bank of New Brunswick, L. R. 6 P. C. 412. III ■ i 1^! 618 COMMENTARIES ON SALES. [book II. led L. to believe that it belonged to third persons. The value of rupee paper afterwards became considerably less, but L. held, for many months, what the defendant had sold to him, and ulti- mately I'c-sold it at a loss of ,£43,000. On the trial, judgment was ordered to be entered for the whole amount. The Court of Appeal, on motion for a new trial, held, distinguishing B»'ookman V. Rothschild,^ that the measure of damages was not the amount of the loss ultimately sustained by L., but the difference between the price which he paid for the rupee paper and the price which he would have received if he had resold it in the market forthwith after purchasing it.^ Whce a secret gratuity is given to an agent with the intention of influencing his mind in favor of the giver of the gratuity, and the agent, on subsequently entering into such a contract with such giver on behalf of his principal, is actually influenced by the gra- 1 3 Sim. 153; on appeal,.') Bli. N. s. 165. » Waddell V. Blockey, 4 Q. B. Div, 678. The following is the principle of the deci- sion, by Braniwcll, L. J. : " When a person has been defrauded in buying a chattel, and is in a condition to restore it, he is en- titled upon discovering the fraud to receive back the price, provided he offers to return the chattel. It may be that if the plaintiff, »vho represents the insolvent buyer, could have tendered the rupee paper to the de- fendant, he might liave recovered back the whole price, ... If there could have been a restUidio in irUcgrum, possibly the plain- tiff in this action might have recovered in full. The question, however, is reduced to this : What damages is the plaintiff entitled to ? How much worse off is the estate which he represents owing to the bargain into which the insolvent entered ? We may suppose the insolvent to have been an intentional and willing buyer. In fact he bought the rupee paper ; he ac- cepted it and used it; that is, sold it. Therefore the plaintiff cannot tender^it to the defendant, and the ([uestion is one of damages. The right mode of dealing with the damages is to see what it would have cost the insolvent to get out of the situa- tion ; that is, what is the price at^which he could have sold the pajier ? Suppose that a horse has been sold with a fraudu- lent warranty, and sui)pose the horse is resold with knowledge of the defect, which had been fniuduli-ntly concealed, the dam- ages to be recovered would be the differ- ence in the pric<'s obtained at the two sales. Here the question is : What could the insolvent have obtained if he had re- sold the rupee paper which he had been induced to purchase by the fraud of the defendant ? It was for the insolvent to consider whether he would sell it or retain it. The retention of it was his own vol- untary act. If he elected to remain owner after the rupee paper began to fall in \ ice his loss was not owing simply to his luiv- iiig purchased it, but to his having pur- chased it and retained it. When I say that his loss is to be estimated by the price which he might have obtained upon a resale, I mean that he is entitled to in- clude tlie commissions which he would have to pay upon the sale and the resale ; further, he would not have been bound to resell hastily and unadvisedly, but he ought to have time allowed to him to as- certain what his loss really was. Upon these principles the amount must be calcu- lated at which the damages are to stand." When an agent is employed to buy, it is a •fraud if ho sells property of his own to a principal who is under the belief that he is dealing with a third party ; the agent occu- pying a fiduciary relation. Upon the dis- covery of the fraud the princii)al may annul the contract and recover his damages. Brookman v. Rothschild, 3 Sim. 153 ; 5 Bli. N. s. 165; Gillct V. Peppercorne, 3 Beav. 78; Kimber v. Barber, L. R. 8 Ch. 56. As to the measure of damages, see David- son 1'. Tulloch, 3 Macq. 783, 790. In this c. Berridge, L. R. 8 Ch. 361. 2 L. R. 13 Eq. 1. • L. R 10 Ch. Ap. 616. I ;:i 622 COMMENTARIES ON SALES. [book II. suit by tho builder, claiming to bo entitled to bo paid by the em- ployer for all quantities executed by him beyond those included in his estimate, and for extra works : it was held, that, on the evidence, the architect was the agent of the employer , that, his undertaking having been concealed from the builder, the arbitra- tion clause in tho contract could not be enforced ; and that the plaintiff was entitled to an account for what was duo to him for any works executed by him under tho architect's direction not included in the contract, and for any works so executed under the contract the price for which was not therein included, and for any variations made under tho architect's direction of works in- cluded in tho contract.^ 6. Ratification of Acts op Agents. The general rule as to the effect of a ratification by one, of the unauthorized act of another respecting the property of the former, is well settled. The ratification operates upon tho act ratified precisely as though authority to do the act had been previously 1 Thb existence of any circumstance cal- culiittid to bias the mind of an arbitrator unknown to either of the parties who liave submitted to his decision is a sulKciunt f round for the interference of the court. In [emp V. Rose, 1 GitF. 258, where a builder by his contract bound himself to abide by the decision and certificates of an architect aa to the amounts to be paid for the work, not knowing that the architect had given an assurance to the employer that the cost of the building should not exceed a cer- tain specified amount, although he refused to guarantee that amount, the court did not consider the decision of the architect made under such a bias as binding, but gave directions so as to ascertain under the authority of the court how much re- mained justly due to the plaintitf. l.\ such a case, whether, in fact, the circum- stance had any operation in the mind of the arbitrator must, for the most part, be incapable of evidence, and may remain unknown to every human being ; perhaps even unknown to himself. It is enough that such a circumstance did exist. The House of Lords considered this question in Dimes v. Grand Junction Canal, 3 H. L. Caa. 759, where the question arose in a case where the Lonl Chancellor was the owner of shares in a company, and it was held that he was disqualified, on the ground of interest, from sitting as judge in a cause in a matter largely involving the interests of the company ; that hia decree was therefore voidable, and must be set aside. See The Queen v. The Commis- sioners for the Paving of Cheltenham, 1 Q. B. 467 ; Sir John Egerton v. Earl of Derby, 12 Co. 114; The Mayor of Here- ford's Case, 1 Salk. 396 ; Brookes v. The Earl of Rivers, Hardres, 503 ; Bridgmaii V. Holt, Shower, 111 ; The King v. Yar- pole, 4 T. R. 71 ; Great f'harte r. Kenning- ton, 2 Str. 1173 ; The King v. The Justices of Essex, 6 M. & Sel. 513 ; Bonham's Case, Hob. 85, 87 ; City of London v. Wood, 8 Co. 118. But, in Ranger v. Tho Great Western Ry. Co., 5 H. L. Cas. 71, where cases of dilference were agreed to be left to the engineer of the company, it was held by the House of Lords that the agreement in effect meant that thase questions were to be left to the company itself, by ."^s agent, who was the engineer, and, thereft -e, the fact that the engineer was a shareholder in the company did not affect the validity of the agreement. Owing to the fiduciary relations exist- ing between them, an agent for sale, who takes an interest in a purchase negotiated by himself, is bound to disclose to hi.s principal the exact nature of his interest ; and it is not enough merely to disclose that he has an interest, or to make state- ments such as would put the principal on inquiry. Connected with this principle it was held in Dunne v. English, L. R. 18 Eq. 524, tha in such a case, the burden of proving that a full disclosure was made lies on the agent, and was not discharged merely by the agent swearing that he did so, where his evidence was contradicted by the plaintiff, and not corroborated. PART VIII.] AQENCT. 628 given,' except wi?erc the rights of third parties have intervened be- tween th act and the ratification.^ The retroactive efficacy of ' This principle was acted on in Mac- lean V. Dunn, 4 Uing. 722, where it was htilil that it' A., witliout authority, iniikes a contract in writing for the ]iurcha8e of goods by B., and U. sub8e((ueutly ratilies the contract, such ratiHcation renders A. an agent sulHciently authorized to niaico the contract under tlie statute of frauds. It was contended that to take the case out of the statute the agent should have had his authority at the time the contract was entered into. Best, C. J., in dealing with this contention, said : " If such had been the intention of the legislature it would have been expressed more clearly; but the statute only reijuires some note or memorandum in writing to be signed by the party to be charged, or his agent thereunto lawfully authorized, leaving us to the rules of common law as to the mode in which the agent is to receive his authority. Now in all other cases a sub- sequent sanction is considered the same thing in effect as assent at the time. Om- nis ratihabitio rdrotrahitur ct mandato ccquiparalur; and in n>y opinion the sub- se((uent sanction of a contract, signed by an agent, takes it out of the operation of the statute more satisfactorily than an authority given beforeliand. Where the authority is given beforehand the party must trust to his agent ; if it be given subsequently to the contract the party knows that all has been done according to his wishes." Soames v. Spencer, 1 D. & Ry. 32. In Foster v. Bates, 12 M. & W. 226, a sale was made by a person who intended to act as agent for the one, who- ever he might be, who should legally rep- resent the estate of the intestate, to whom the goods solil belonged, and the sale was subsequently ratilied by the administrator; and it was held that when one means to act as agent for another, a subsequent rati- tication by the other is always e(iuivalent to a prior command ; nor is it any objec- tion that the intended principal was un- known at the time to the person who in- tended to be the agent. Hull v. Pickers- gill, 1 Bro. & n. 282. See Muskett v. Drummond, 10 B. & C. 157; Hagedorn v. Oliverson, 2 M. & Sel. 485 ; Nicholls v. lie Feuvre, 2 Bing. N. C. 81 ; Bloxam v. Sanders, 4 B. & C. 941; Bailey v. Culver- well, 8 B. & C. 448 ; Buron v. Denman, 2 Ex. 167; Whitehead v. Taylor, 10 A. & E. 210 ; Fitchet v. Adams, 2 Str. 1128 ; Wolfr». Horncastle, 1 B. & P. 317; Routh V. Thompson, 11 East, 274; Wilson v. Tumman, 6 M. & G. 236; Wilson v. Barker, 4 B. & Ad. 614 ; Goodtitle t;. Woodward, 3 B. & Aid. 689. An act done for another, not assuming to act for himself, but for such other person, though without any precedent authority whatever, Ix'comes the act of the principal, if subsequently rati- fied by him ; but where A. does an act na agent fur B., without any communication with C., C. cannot afterwards by adopting that act make A. his agent, and thereby incur any liability or take any benefit un- der the act of A. Wilson v. Tumman, 6 M. & G. 236. The same distinction is taken in the Year Book, 7 H. 4, fo. 34, pi. 1, that if the bailiti' took the heriot, claiming property in it himself, the subse- quent agreement of the lord would not amount to a ratiHcation of his authority as bailiti at the time ; but if he took it at the time as bailiff of the lord, the subse- quent ratitication by the lord made him bailiff at the time. It is similarly laid down by Alderson, C. J., in Godbolt, 109 b : " If one have cause to distrain my goods, and a stranger, of his own wrong, without any warrant or authority given him by the other, takes my goods, not as bailiff or servant to the other, and I bring an action of trespass against him, can he excuse himself by saying that he did it as his bailitf or servant i Can he also father his misdemeanor upon another / He can- not, for once he was a trespasser, and his intent was manifest." So, as to actions ex contractu, "The nde as to ratitication applies only to the acts of one who pro- fesses to act as the agent of a pei'son who afterwards ratifies." Vere v. Ashby, 10 B. & C. 298, per Parke, J. ; Saundei-son v. Griffiths, 5 B. & C. 909 ; Anon., 2 Leon. 196; Fuller & Trininieirs Case, /6. 210; Hull V. Pickersgill, 1 Bro. & B. 282 ; Governor, &c. of Bristol v. Wait, 3 N. & M. 359, 368, 369. 1 C. & T., merchants at Liverpool, sent orders to I., a merchant at New York, to purchase for them certain goods, which were accordingly shi|ijH'd by 1. in five ves- sels Iwund to Liverpool, and consigned to C. & T., who, after the receipt of goods by one of the vessels, stopped pe"T)!ent on April 7, 1846. I. had drawn 'liis .or the goods, partly on (.'. & T. an,; , uly on B. & Co., with whom C. & T. had deal- ings. B. & Co., who were merchants at Liverpool, and who also had a house of business in New York, purchased there several of the bills, which were drawn at sixty days' sight, and were dated, some on March 28, and the rest on March 30. On May 8 a fiat in bankruptcy issued against C. & T. The four other ves- sels, arrived at Liverpool, respectively on May 3, 5, 7, and 9 ; and immediately on 624 COMMENTARIES ON SALES. [book II. the ratification is subject to this qualification. The intervening rights uf third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was mado.^ The ratification is the arrival of each, and while tho Irann- Uiu of the goods on boanl continued, B. & Co., on behalf of I., gave notice to the m»iiter and consignees of each 8hi|), claiming to stop the goods in transitu. H. & Co. wore not the general agents of I., nor had they reo"iv»'d from him any authority to rnuico tliis stot>- I. heard at flew York that C. & T. had stopped payment ; and on the next day he executed a power of attorney to H. of Liverpool authorising him to stop the foods in tramitu. Tliis was received by [. on lVI:iy l;{, and hu on that day adopted anil contirmed tho previous stoppage by B. & Co. I. ..fterwards adopted and ratified all that had been done both by H. and B. & Co. In trover by tho assignees of C. & T. against B. & Co. it was held, first, that there could be no valid stoppage in trans- itu after the formal demand of the goods by the assignee on May 11, and the sub- sequent delivery of thera to the defend- ants ; and, secondly, that the ratification of the stoppage's by I. "fter the conversion by the defendants had not the effect of al- tering retrospectively tho ownership of the goods, which had already vested in the plaintiffs. Bird v. Brown, 4 Ex. 786. See Right v. Cuttrell, 5 East, 491 ; Doe v. Walters, 10 B. & C. 626; Waring v. Dew- berry, 1 Str. 97 ; Butter & Baker's Case, 3 Rep. 29 6; Whitehead v. Anderson, 9 M. & W. 518 ; Nicholls v. he Feuvre, 2 Bing. N. C. 81; Bailey r. Culverwell, 8 B. & C. 448 ; Lord Audley's Case, Cro. Eliz. 661 ; Moore, 4,i7 ; Podger's Case, 9 Rep. 104 a. Tlie same doctrine was held in Leber v. Kauffelt, 5 W. & S, 446, that al- tLough a reiitti'iti will not be allowed to take place so iis to devest the right of a third person, or to take away those of the intestate, according to the maxim, hi fie- tione juris semper consistit equitas (Ken- rick V. Burges, Moo. 125; Murray v. East India Co., 5 B. & Aid. 204; Pratt v. Swaine, 8 B. & C. 28'); Parsons v. Mayes- den, Freem. Ifi2 ; Mountlord v. liibson, 4 East, 446), yet tliat generally the rela- tion back will bo admitted for the purpose of supporting the rights of the intestate, and of ratifying acts for llie Ixmetit of his estate, and giving a remedy where otlier- wise there would be ii»iie. See Wood v. McCain, 7 Ala. 800, 800. » Cook V. Tullis, 18 Wall. 332. A fierson may ratify an action brought in lis name, but without liis knowledge or authority, by another professing to act as his iigent and on his behalf. Therefore, v.'iiere the holder of a bill of exchange, without the knowledge or authority of the plaintiff, indorsed ami delivered it to an attorney for the plaintitf, and in order that an action might be brouglit n|)on it in his name ; .and the plaintiff, after action brought, ratified the act, it was held that the subsecpiont ratification was equivalent to a prior authority, and that the plaintiff had a valid title to sue on the bi An- cona V. Marks, 7 H. & N. 686. fica- tion after action brought is eqi) to a prior conimanii. Uicilmrdsi... xhe Countess of Oxford, 2 F. & F. 449 ; Hull V. I'ickersgill, 1 Hrod. & IJ. 282. To en- title a person to sue upon a contract it must be shown that he himself made it, or that it was made on his behalf by an agent authorized to act for him at the time, or whose act has been subsequently ratified and ai!opted by him ; and the per- son for whom the agent professes tc act must be capable of lieing ascertained at the time. Watson ti. Swann, 11 C. B. N. s. 756. It is not necessary that he shouhl be named ; but there must be such a description of him as shall amount to a reasonable designation of the person in- tended to be bound by the contract. Thus S., an insurance broker at Hull, being in- structed to effect an open policy for £5000 for the plaintiff, against jettison only, su' • ject to declaration thereafter, and being unable to do so, declared certain deck CArgo shipped for Ostend on board one of the plaintifTs vessels on the back of a gen- eral policy which he had previously effected for himself " upon any kind of goods and merchandise as interest might appear," and got it initialed by the underwriters. A loss having If^ppened, it was held that it was not comi)etent to the plaintiff to main- PART VIII.] AOENCT. 625 the first proceeding by which the party ratifying becomes a party to the transaction, and he cannot acquire or confer the rights re- sulting from that transaction, unless in a position to enter directly upon a similar transaction himself. Thus, if an individual pre- tending to be the agent of anotiier should enter into a contract for the sale of the property of his assumed principal, it would bo impossible for the latter to ratify the contract, if, between its date and the attempted ratification, he had himself disposed of the property, lie could not defeat the intermediate sale made by himself, and impart validity to the sale made by the pretended agent, for his power over the property or to contract for its sule would be gone.' On the same principle, liens by attachment or judgment upon the property of a debtor, are not affected by his subsequent ratification of a previous unauthorized transfer of the property." A ratification is, in its effect upon the act of an agent, equiva- lent to the possession bv him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified.^ To hold otherwise would be equivalent to saying that an agent not having the power to do act at B. he buch I to a in- I'lius in- SOOO ]eing leek \e of i»en- ■ctcil laiiil land A lit it Iain- tain an action against the underwriters upon this policy, the contract not having been made by him or on his behalf at the time. Ibid. Seel'owlesv. Junes, 11 M. & W. 10. The same principle was applied in In re Empress Engineering Co., 16 Ch. Div. 125. There A. and B. agreed with C. on behalf of a company intended to be formed, that A. and B. should sell and the comfmny buy a certain business, and it was a term of the agreement that sixty guineas should be paid to J. and P., so- licitors, for their ex{ienses and charges in registering the company. The memoran- dum of association adopted this agree- ment, and the directors subsequently rati- fied it. An order having been made for winding up the cotnpuny, J. and P. claimed to prove for tlie sixty guineas. It was held that the claim must be disallowed, for that the contract between A. and B. and C, having been entered into before the com- pany was in existence, could not by mere ratification be made binding on the com- pany. In this case Jessel, M. R., said (at p. 128): "The contract between the pro- inoters and the so-called agent for the company of course was not a contract binding upon the company, for the uom- Cny had then no existence ; nor could it come binding on the company by rati- fication, because it has been decided, and, as it appears to me, well decided, that there cannot in law be an effectual ratifi- cation of a contract which could not have been made binding on the ratifier at the time it was made, because the rpcifier waa not then in existence." Melhado v. Porto Allegre, &c. Ry. Co., L. U. 9 C. P. 503 ; In re Hereford & South Wales Waggon, &c. Co., 2 Ch. Div. 621, are in accord, that a company cannot ratify a contract before it came into existence, — cannot ratify a nullity. And see Kelner v. Bax- ter, L. R. 2 C. r . 174 ; Gunn v. London & Lancashire Fire Ins. Co., 12 C. B. n. h. 694 ; Payne v. The New South Wales, &c. Co., 10 Ex. 283 ; Hutchinson v. Surrey, &c. Assoc., 10 Ex. 283. If the company adopts the act it can only be by way of a new agreement ; for they cannot be bound by a contract made by the promoters be- fore the company was recistered. Ibid. • McCracken v. City of San Francisco, 16 Cal. 624. 2 Cook «;, Tullis, 18 Wall. 332; Taylor V. Robinson, 14 Cal. 396 ; Wood v. Mc- Cain, 7 Ak. 806; Bird v. Brown, 4 Ex. ''69. « Marsh v. Fulton County, 10 Wall. 676, 684. TOL. I. 40 G26 COMMENTARIES ON SALES. [book II. a particular act for his principal, could give validity to such act by its indirect recognition.^ Where an agent, acting, as he supposes, for the best interest of his distant pi incipal, hat,, under the circumstances, gone beyond the letter of his instructions, if the principal, when informed by the agent of \v^hat has been done, does not choose to affirm the act, it is his duty to give immediate information of his repudia- tion. He cannot, by holding his peace, and apparent acquiescence, have the benefit of the contract if it should turn out to be profit- able, and retain a right to repudiate it if otherwise. The princi- pal must, therefore, when informed, reject within a reasonable time or be deemed to adopt by acquiescence. The rule is said to be a stringent one upon tlie principal in such cases, where, with full knowledge of the acts of the agent, he receives a benefit from them, and fails to repudiate the acts." The case of Law v. Cross ^ was a purchase of coal by the plain- tiff for the defendant, where the agent, intending to act for the benefit of his principal, exceeded his instructions. The coal was 1 McCracken'v. City of San Francisco, 16 Cal. 62 i. Si-e Despatch Line of Pack- eta V. Hollamy Munuf. Co., 12 N. H. 232; Pratt V. Town of Swaiiton, 15 Vt. 147; Chamljorlin r. The Inhabitants of Dover, 13 Me. 466 The defendant, a naval com- mander, stationed on the coast of Africa, with, instructions to suppress the slave trade, was recpiested by the Governor of Sierra Leone to obtain the liberation of two British subjects detained as slaves at the Gallini's by the son of the kin. Herron, Ry. & Mood. 229 ; Tanner i-. Christian, 4 E. & B. 691 ; Cooke v. Wilson, 1 C. B. N. 8. 153 ; Shariand v. Brandt, 6 Q. B. Div. 93 ; Elbinger Actien-Gesellschafft v. Clave, L. R. 8 Q. B. 318. 1 96 U. S. 84. 630 COMMENTARIES ON SALES. [book II. as to release the former from liability upon the dishonor of the bill.i Where there was a formal letter of repudiation of the acts of the agent sent by the principal to the agent, and a private letter, in effect undertaking to ratify the acts of the agent, the princi- pal was held bound, in a case of a sale of shares, by the acts of the agent.2 7. Consignees, Factors' Acts, etc. The relative rights as between the consignee of goods and the ship as to freight and delivery, are set out by the Supreme Court of the United States, in Brittan v. Barnaby,'* thns ; Tlie word "freight," when not used in a sense to imply the burden or loading of the ship, or the cargo which he has on board, is the hire agreed upon between the owner or master for the carriage of goods from one port or place to another. Tliat hire, without a different stip- ulation by the parties, is only payable when the merchandise is in readiness to be delivered to tlie person having the right to receive it. Then the freight must be paid before an actual delivery can be called for. In other words, the rule is, in the absence of any agreement to the contrary, that freight, under an ordinary bill of lading, is only dcmandable by the owner, master, or consignee of the ship, when he is ready to deliver the goods in the like good order as they were in when they were received on board the ship. Such is the general rule. Neither party can require from the other that the merchandise shipped under one bill of lading shall be put up into parcels for delivery, or for the pay- ment of freight. They may do so by stipulation in the bill of lading or by a subsequent agreement, for < ither of the purposes just mentioned. The master is bound to deliver the goods in a reasonable time. What may be so depends upon the facilities » Keay v. Fenwick, 7 C. P. D. 745. On this last-named point the case fol- lowed Bottomley v. Niittall, 5 C. B. N. 8. 122. Stie also, Thomson v. Daven- port, 9 B. & ('. 78 ; Paterson v. Camlase- (|ui, 15 Ea.st, 62 ; Addison v. Gandasequi, 4 Taunt. 574 ; Robinson i>. Wilkinson, 3 Pile.?, 538 ; Ford v. Beech, 11 Q. B. 852 ; Belsl;aw v. Bush, 11 C. B. li»l. * Loring v. Davis, 32 Ch. Div, 625. It was claimed that the letter under- taking to ratify the agent's contract was indefinite in its character, and was o]ion to a different construction from that which was sought to be placed upon it. But the court, on that point, adopted the law as laid down by Lord Chelmsford, in Ireland V. Livingston, L. R. 5 H. L. 416, on the subject, thus ; '* Now it appears to me that if a principal gives an order to an agent in sv!''h uncertain terms r.s to be susceptible of two different meanings, and the agent bond fide ado]>ts one of them anil acts upon it, it is not competent to the principal to re[mdiate that act is un- authorized because he meant the order to be read in the other sense of which it is equally capable. It is a fair answer to such an attempt to disown the agent's authority, to tell the principal that tl^e departure from his intention was occa- sioned by his own fault, and that ho should have given his order in clear and unambiguous terms." « 21 How. 627, 633. PART VIII.] AGENCY. 631 there may be for the discharge of the cargo at the port of deliv- ery, and the impediments in the way of it. When the shipment is large, or, from the master's storage of it, it cannot be landed in a day, if he lands a part of it, bis lien upon the whole gives him the power to ask from the consignee of the merchandise a satisfactory security for the payment of the entire freight as called for by the bill of lading. But a security or arrangement is all that he can ask. He may not demand that the whole freight of the shipment should be paid before the consignee has had the opportunity to examine his goods, to see if the obligations of the bill of lading have been ful- filled by the shipowner. Nor is the ship bound to land an entire shipment in a day, for the proper storage of the goods is the mas- ter' ? care, and he may do it in such a way as may be most advan- tageous to the ship, taking care that it shall not be done to the injury of the goods, or in such a manner as to produce unreason- able delay in the delivery of them. And when landings of the same shipment are made on different days, if the shipper disre- gards the notice given to him that such will be the case, and he shall not be present to receive the goods, and has not made an arrangement to secure the payment of the freight, they may be stored for safe keeping at the consignee's expense and risk, in the shipowner's name, to preserve his lien for the freight. In Brittan v. Barnaby,* the consignee of the cargo offered to pay the freight of such of the merchandise as had been landed. The consignee of the ship refused to receive it, or to deliver such goods, claiming that he had a right to demand the freight upon the whole shipment, when he was only ready to deliver a part of it. In the assertion of this right, the respondent from day to day warehoused the goods. The court held, that tlie respondent, having in the first instance demanded the entire freight called for by the bill of lading, without any right to do so, and having refused to deliver the merchandise belonging to the libellant when the last parcel of it was landed on the wharf, and when the freight due upon the wi^de of it was tendered, on the ground that there were due charges for cartage and stowage, did so without color of law for such refusal, and the respondent was held liable for such charges, and for value of the lib jllant'.s merchandise, after freight and primage had been deducted, when it was wrongfully detained from the respondent, with interest from the commencement of the improper detention.^ The plaintiff, by his agent, T., delivered goods at Greenboro', N. C. to be shipped to Columbia, S. C, consigned to T. & R. J 21 How. 527. » See Bishop v. Ware, 3 Camp. 360 ; Ostrander v. Browu, 15 Johns. 39. 682 COMMENTARIES ON SALES. [book II. there. The agent, T., was a member of the firm of T. & R., and on delivery of the goods to the defendants, he informed them that the goods were the property of the plaintiff. The goods never left Greensboro', but were sold there without the plaintiff's au- thority, by T. to M., to whom the goods wrre delivered. The United States Supreme Court held, affirming the judgment of the Circuit Court, that where it is known that the goods are the prop- erty of the shipper, and have been shipped by him for delivery to the consignees as his agents at a distant place, the carrier cannot deliver the goods to such consignees, nor without starting them on their journey ; the rule being, that, where tlie consignor is known to the carrier to be the owner, the carrier must be understood to contract with him only, for his interest, upon such terms as ho dictates in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated.^ But, where the shipper is an agent merely, the rule is different.' The barque Tangier, a foreign vessel, arrived at the port of Boston, with a cargo of cotton, which she commenced discharg- ing on Monday, April 7, and, on the same day, the master noti- fied the consignees of his readiness to deliver the goods. The unloading continued through the forenoon of Tuesday, when, the cotton not having been removed, the wharf became so full that the work was suspended. Notice was again given to the con- signees ; and, they still neglecting to remove their cotton, a third notice was added on Wednesday morning. On the afternoon of that day, all the cotton which had been unladen was removed except 325 bales. On Thursday forenoon the unloading was com- pleted. On that day the consignees took away five bales, and postponed taking the rest until the next day, giving as a reason that it was fast-day. About three o'clock, on Thursday afternoon, the cotton on the wharf was consumed or damaged by an acci- dental fire. The bill of lading was " to deliver, in like good order and condition, at the port of Boston, unto G. & P." The con- signees having libelled the vessel, the Circuit Court for Massa- chusetts held that the vessel was liable for the loss. The United States Supreme Court reversed the decision, holding, first, that the goods having been deposited for the consignees in proper 1 Southern Express Co. v. Dickson, 94 U. S. 649. « Thompson r. Fargo, 49 N. Y. 186 • Duff ». Budd, 3 Brod. & B. 177 ; Sweet v. Barney, 23 N. Y. 325. See Insurance Co. V. Ruden, 6 Cranch, 338 ; Jones v. Sims, 6 Porter (Ala. ), 162 ; Dawes v. Peck, 8 T. R. 830 ; Joseph r. Knox, 3 Camp. 321 ; King v. Meredith, 2 Camp. 639 ; Griffith v. Ingledew, 6 S. & R. 429 ; Dfivis V. James, 5 Burr. 2680; Moore v. V/ilson, 1 T. R. 659 ; Barrett v. Rogers, 7 Mass. 297 ; Conard v. Insurance Co., 1 Pet. 444 ; Craven o. Ryder, 6 Taunt. 433 ; The Frances, 8 Cranch, 418. PART VIII.] AGENCY. 638 order and condition, at a proper place, at mid-day, on a week day, in good weather, this generally constitutes a good delivery ; due notice to remove the goods having been given the consignees. Secondly, that as there is no statute or law in Massacluisetts which forbids the citizen to labor and pursue his worldly business on any day of the week except on the Lord's day, usually called Sunday,* and no well-known usage, from time immemorial, having the force and effect of law m Boston, which requires all men to cease from labor, and compels vessels engaged in foreign commerce to cease from discharging their cargoes, and hinders consignees from receiving them, the fact that the cotton was delivered on the wharf on fast-day placed no greater liability on the vessel than if the goods had been delivered on any other day, and the delivery was good.* By the terms of a bill of lading of the barque Griffin, goods were shipped deliverable to a consignee at Rio de Janeiro. The goods were not entered on the ship's manifest, in consequence of which, after they had been landed and the duty paid by the con- signee, they were seized by the Brazilian Government and confis- cated. There was no fraud or bad faith on the part of the master, but it was the result of inattention on the part of the master, and of his ignorance of the laws of the country with which he was trading ; with which, the court held,^ it was his duty to have acquainted himself.* The court further held that the appellants were responsible for the miscarriage of their master and agent. Their contract was an absolute one to deliver the cargo safely, the perils of the sea only excepted ; and, that, imdcr such a contract, nothing would e.xcuse them for a non-performance, except they had been prevented by some one of those perils, — the act of the libellants, or the law of their country. No exception of a private nature, which was not contained in the contract itself, could be engrafted on it, by implication, as an excuse for its non-perform- ance.^ The delivery contemplated by the contract in the bill of lading was a transfer of the property into the power and posses- sion of the consignee. The surrender of possession by the master must bo attended with no fact to impair the title or affect the peaceful enjoyment of the property. The failure to enter the property on the mnaifest was, under the laws of Brazil, a cause * In tho case of Farnum i\ Fowle, 12 Mass. 94, it is said by Parker, C. J., — "There nre n> fixed and established holi. days in Masjachusetts, in which all bust' ness is suspended, except Sunday." » The Barque Tangier, 23 How. 28. A similar doctrine is established by Fig- gins V. WUlie, 2 W. Blk. 1186, and Spar- TO- 0. Cooper, lb. 1315. And see f ttter V. Croome, 7 T. R. 336 ; Worthy V. Palter, 6 Taunt. 180, to the same effect. ^ The Barque Griffin, 22 How. 491. « The Vixon, 1 Dod. 145 ; The Adams, Edw. Ad. R. 310. ' Atkinson v. Ritchie, 10 East, 683 ; Spence v. Chodwick, 10 Q. B. 516. 634 COMMENTARIES ON SALES. [book II. of confiBcation from the event, and rendered nugatory every effort subsequently to discharge the liability of the ship and owners.* Where a consignee, who has sold merchandise of the consignor, and received its proceeds, has accepted bills drawn against those proceeds which are not yet at maturity, or are in the hands of third persons, for value, the right of action by the consignor for those pro- ceeds are suspended until the bills fall due and arc dishonored.^ The Mary Eddy arrived at Charleston, with 102 hhds. of sugar and 21 of syrup for M. & Co. ; the goods being brought under an ordinary bill of lading. On the arrival of the vessel, the master notified M. . Beach, 11 Q. B. 867. PART VIII.] AOENCT. 685 have the goods first at their store to inspect them there, and not to pay the freight until they had found the goods had suffered no injury during the voyage. The master refused to assent to this, claiming a right to his freight when the goods were delivered on the wharf. While discussion was going on the syrup and 3 hhds. of the sugar were taken to M. & Co.'s store. They refused to pay freight on these or on any until all were in their storehouse. The master discharged the balance of the sugar on the wharf, and noti- fied M. & Co. that, unless the freight were paid, the sugar would remain on the wharf until sunset, and then be stored at.the expense and risk of M. & Co. Tlie freight not having been paid, accord- ingly the sugar was stored. M. & Co. libelled the vessel. After conflicting decisions in the courts below on points involved in the case, the matter was brought on appeal to the Supreme Court of the United States,^ when the decree of the Circuit Courts dismiss- ing the libel was sustained, the Supreme Court holding, Firaty that the shipowner has a lien on the cargo for the freight, and, consequently, may retain the goods after the arrival of the ship at the port of destination until the payment is made, unless there is some stipulation in the charter-party or bill of lading inconsist- ent with such right of retention and which displaces the lien.* Secondly, that delivery on the wharf is sufficient, if due notice bo given to the consignees, and the different consignments be properly separated, so as to be open to inspection and conveniently access- ible to their general owners ;** and when the goods, after being 80 discharged, and the different consignments properly separated, are not accepted by the consignee or owner of the cargo, the carrier should not leave them exposed on the wharf, but should store them in a place of safety, notifying the consignee or owner that they are so stored, subject to the lien of the ship for the freight and charges, and when he has so done he is no longer liable on his contract of affreightment;* and, in such cases, the lien of the master continues, as the goods remain in his constructive possession.^ C. & Co. shipped cotton to the defendants, and drew on them, at or about the time of the different shipments, some eight or ten drafts for the taxes on the cotton, in favor of the deputy p.f)llector. The defendants were advised, at the drafts were drawn, of the fact of their having been drawn, and wrote to C. & Co. promising to accept them ; the letter being shown to the deputy collector. The drafts were indorued by the deputy collector, to whom they were » The Eddv, 5 Wall. 481. « Bags of Linseed, 1 Black, 112. * Ship Middlesex, 11 Law Reptr. N. s. (Mass.) 14. ♦ Richardson v. Goddnrd, 23 How. 39 ; Hyde i;. T. & M. Nav. Co., 6 T. K. 389 j Brittan v. Bafnaby, 21 How. 532. <> Ward V. Felton, 1 East, 512. I 636 COHMENTABIES ON SALES. [book II. given, to the collector, the plaintiff, who, as between himself and the government, treated the drafts as payment of the tax, char- ging himself with the amount. The cotton was also marked as tax- paid cottun, and was allowed to go forward as such. Some of the drafts wont in at once and were paid, but six of them, drawn between October, 1866, and February, 1867, did not go in for payment until April, 1867. The defendants then refused to pay, alleging that they had then no cotton belonging to C. & Go. ; that the uon- presentment of the drafts in due course had led them to suppose that C & Co. had themselves in some way taken them up, and that the account with them had been settled on that assump- tion. The plaintiff, in an action to recover on the drafts, alleged to have been accepted by the defendants' letter referred to, recov- ered judgment. This judgment was, on error, sustained.^ The court held that the written promise of the defendants to accept the drafts was equivalent to acceptance. After notice of the drawing of the drafts, and after the sale of the cotton, they had so much money in their hands to be applied according to their engagement. There was no stipulation between them and the plaintiff. Their contract was with C. & Co. When the money was received for the cotton they held it in trust for the plaintiff, and their sole duty and business in relation to it was to pay it over on the drafts when called for, according to their agreement. If they paid it to C. & Co., they did so in their own wrong. The fact in no wise affected their liability to the plaintiff, and was not an element in the case to be considered. In no view could they be permitted te keep the money for their own use, or avail them- selves of a payment made in violation of the plaintiff's rights and of their duty. They could no more object to the consideration of the drafts than if the money were still in their hands. For the purposes of the case it must be regarded as there when payment of the drafts was demanded.' The following question came up in Jewan v. Whitworth,^ under » Milteaberger v. Cooke, 18 Wall. 421. 3 The court in delivering judgment thus treated the matter : As between the parties, the tax was paid by the plaintiff for C & Co. His marking the bales, gir- ing the permit, charging himself with the amount, and reporting it to the govern- ment as paid, had that effect The result was the same to C. & Co. as if so much money had been advanced at their request, and so applif^d for their benefit. They were permitted to ship the cotton to the defendants, in all respects as if the money had been actually paid, and the requisite vouchers had been given upon the basis of sucL payment. The assumpsit of the collector supplied the place of the money. No demand has been made by the govern- ment against C. & Co. Ttiey have had the full benefit of the arrangement. As between them and the plaintiff, the trans- action is as if the plaintiff had lent C. & Co. the amount m gold, or silver, or treasury notes, with one hand, and re- ceived it back with the other. It has been held that promissory notes given under such circumstances can he enforced by the payee. Bank v. Dillon, 30 Vt. 122 ; Keeley v. Noyes, 43 N. H. 211 ; Smith V. Mawhood, 14 M. & W. 463. • L. R. 2 £q. 692. PABT VIII.] AGENCY. 687 the English Factors' Acts, 6 Goo. 4, c. 94, and 6 and 6 Vic, c. 39.» H., a speculator in cotton, in July, 1864, requested W. to pur- chase for him, in W.'s name, 400 bales of Egyptian cotton, for delivery in the September following. W. assented, employing for the purpose (with the knowledge of H.), as his broker, C, who knew that W. was acting as agent, and VV. became liable on a series of contracts, the first of which was due on Sept. 9, The price of cotton falling, C. refused to carry out the pending ar- rangements for purchase unless he was secured from loss, and W. applied to H., who, on Sept. 8, promised to give some security, and on Sept. 26, deposited with W., and W. deposited with C, with unconditional power of sale, a bill of lading of a cargo of Surat cotton, of which H. was the consignee from the plaintiffs, a firm at Bombay, as their fr.;;tor ; but H. was not known, cither to W. or to C, to be other than the true owner. On the same day C. made a first payment on account of W.'s indebtedness under the contracts ; and he continued to make other payments. W. not advancing anything. In October, H. stopped payment. A bill was filed by the plaintiffs claiming the proceeds of the cargo of Surat cotton. W. and C. both denied any notice or knowledge that any other than H. was the absolute owner of the cargo, and C. alleged that but for the transfer and deposit with him of the bill of lading as was done, he should not have completed the con- tract, and that he accepted the same in the faith that W.'s prin- cipals had full right to deal with the documents, and that W. had full power to deposit them. The plaintiffs claimed that the trans- > By 6 Geo. 4, c. 94, g 7, ?t was en- acted that factors or agen'os intnisted with goods, for the purpose o.' consignment or sale, are deemed owners, so as to mve validity to contracts with persons dealing bond fide upon the faith of such property. By § 2, pei'sons intrusted with thi' posses- sion of bills of lading, etc., are deemed owners so as to make valid contracts. This act was amended by 5 & 6 Vic. c. 39. It is there recited that, " whereas advances on the security of goods and merchandise have become an usual and ordinary course of business, and it is expe- dient and necessary that reasonable and safe facilities should be afforded thereto, and that the same protection and validity should be extended to bond fide advances upon goods and merchandise as by the said recited act (6 Geo. 4, c. 94) is given to sales, and that owners intrusting agents with the possef>"ion of goods and mer- chandise, or of documents of title thereto, should in all cases where such owners by the said recited act, or otherwise, would be bound by a contract or agreement of sale, be in like manner bound by any contract or agreement of pledge or lien, for any advances bond fide made on the security thereof." And, by the first sec- tion, it is enacted : " That from and after the passing of this act, any agent who shall thereafter be intrusted with the pos- session of goods, or of tlie doiiiiiieiits of title to goods, shall be deemed and taken to be owner of such goods and docunicnts, so far as to give validity to any cdiitract or flgreoment by way of ph-dfie, lien, or security, bond fide made by any person with such agent so instrusted as aforesaid, as well for any original loan, advance, or payment, made upon the security of such goods or documents, as also for any further or continuing advance in resjicct thereof, and such contract or ajrreement shall be binding upon and good against the owner of such goods, and all other persons inter- ested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent." 688 COMMENTARIES ON BALES. [book II. action was not protected by the Factors* Acts, because it was a I)lcdgc given to secure an antecedent liability from 11. to W. The court held that the deposit of the bill of lading by IT. was not made in respect of an antecedent debt of H. to W., within the meaning of the Factors' Acts ; and that, having been made by H. in respect of an advance by C, on behalf of W., within the mean- ing of those acts, it was binding on the plaintiffs.^ A factor, by pledging goods in his possession or under his con- trol, as agent, for an amount which does not exhaust their "value, has not thereby parted with his control over the goods, so as to preclude himself from malting a further pledge for the balance of their value, which shall be valid as against the principal under the Factors' Acts. Cotton was consigned for sale by A. to B. B. deposited the bill of lading with C, a broker, and authorized him to receive and sell the cotton, and, subsequently, made a further pledge to D. of the balance of the net proceeds of the cotton by order in writing communicated to and assented to by C. It was held that the pledge to D. was valid as against A. under the Factors' Acts.^ The English Factors' Act (5 and 6 Vic, c. 89) does not apply to pledges for antecedent liabilities (whether they may or may not have ripened into debts), where no actual advance is made at the time of the pledge. Therefore, where H., a factor, pledged goods of his principal to G., firsts to secure the payment of an acceptance of H. in G.'s hands, not then due, which had been given to protect G.'s liability on a contract as H.'s broker ; »econdly, to repay to G. his loss on a re-sale of goods which G. had purchased for H. in his own name ; it was held that the transaction was not pro- tected by the Factors' Act, and, semhle, that both liabilities were antecedent debts.^ It was claimed that this case came precisely within Jewan v. Whitworth ;* but this case is distinguished from that, inasmuv-'h as in Jewan v. Whitworth there was, as between the pledgor rnd pledgee of the goods no antecedent liability, and an actual advance was made for which the bill of iading covering the goods was pledged. Here there was no new advance between the parties, but, simply an antecedent liability, and it was imma- terial, as far as such " antecedent liability " was concerned, whether it had or had not, so far as the statute was concerned, ripened into a debt.^ » Jewan V. Whitworth, L. R. 2 Eq. 692. See, also, Learoyd v. Robinson, 12 M. & W. 745; Luce v. Prescott, 1 Atk. 245 ; Vancasteel v. Booker, 2 Ex. 691, and, per Lord St. Leonards, in Navanl- shaw V. Brownrigg, 2 De G. M. & G. 441, 450. " Portalis v. Tetley, L. R. 6 Eq. 140. * Macnee v. Gorst, L. R. 4 Eq. 315. * L. R. 2 Eq. 692, stated atUe. » Under the Factors' Act, 5 & 6 Vic. c. 39, a contract with an agent for the pledge of the goods will be valid as against the principal, though the person dealing PART Till.] AOENCT. 689 In Kaltcnbach t;. Lewis,* a variety of questions came up under the Factors' Acts. The following are the points involved, and the holdings upon them, by the Court of Appeal, varying the decision of Vice-ChanccUor Bacon : — K., in Singapore, was in the habit of consigning to M., in Lon- don, for sale. M. em})I')yed L. and P., London brokers, in the sale of these goods, and in otncr extensive sales and purchases, and died in May, 1880, heavily indebted to them on the balance of his account. Shortly before M.'s death, K. had consigned cargoes to M. by several different ships. M. put them in the hands of L. and P. for sale, and pledged to them the several bills of lading for separate advances made by them to him on the respective cargoes. As between K. and M., these pledges were unauthorized and im- proper; but L. and P. had no notice of any impropriety. One cargo had been sold before M.'s death, but not delivered nor paid for. The others remained unsold at his death, and were not sold until after the commencement of an action by K. to recover them. L. and P. claimed a general lien on the balance of the proceeds of all the cargoes after repayment of the specific advances, resting their claim on an alleged agreement with M. to that effect and on mercantile usage. Held, that neither such agreement nor such usage was established in evidence, and that if it had been, such a general lien could not be claimed under the Factors' Act ; and held, that apart from the Factors' Act, K., an undisclosed foreign principal, could not sue L, and P. for the proceeds of goods prop- erly sold by them in M.'s lifetime, or if he could, he could only sue as representing M., and subject to all rights of set-off available against M., and that, therefore, L. and P. were entitled to a lien on the balance of the proceeds of the sold cargo, although it was with the agent knows him to be only an agent ir. respect of the goods |iledgi;d, provided that the person so dealing acts bond fide and without notice that the agent is acting maid fiih mid lieyond his authority. To deprive tho pledgee of the protection of the act, he must be fixed with knowledge tiiat the agent is acting maid fide, and no mere suspicion will amount to notice ; nor will the knowledge that the agent hns power to sell the goods constitute notice that he has not power to pledge them. Navanlslmw v. Brownrigg, 2 De G. M. & G. 441. But in Evans v. Trueman, 1 Moo. & R. 10, it was held, that a party receiving East India warrants from a factor in jiledge for moneys ad- vanced to hira, cannot retain them, under 6 Geo. 4, c. 94, against the true owner, if from the circumstances he must, as a reasonable man, have known them not to belong to the factor ; although no direct conimnnication of that fact is made to him. Lord Tenlerden, in so deciding, said: "Tho expression of the stiitute is, that a party is to be entitled to its protec- tion, if ' he shall not luive notice, by the documents or otherwise,' that the pledger was not the actual and bond fide owner of the goods pledged. A ])fr.son may have knowledge of a fact either by direct com- munication, or by being aware of circum- stances which must lead a reasonable tnan, applying his mind to them, and judging from them, to the conclusion that the fact is so. Knowledge acquired in either of these ways is enough, 1 think, to exclude a party from the Wnefit of the provisions of this statute : slight suspicion, I think, will not." See Gill t>. Kymer, 5 Moore, .503 ; Haynes v. Foster, 2 Cr. & M. 237 ; Stedman v. Martinnant, 13 East, 427; Ex parte Skinner, 1 Deac. & Ch. 403. 1 24 Ch. Div. 64. 640 COMMENTARIES ON SALES. [book II. not delivered or paid for in M.'s lifetime. And held, that as re- gards the goods unsold at M.'s death, K. was entitled to them subject only to the payment of the sums for which they were re- spectively specifically pledged. L. and P. bought goods for M., not disclosing the fact that they bought as agents and were there- fore as between them and the vendors personally liable to pay. On the day before the day of payment M. asked L. and P. to make him an advance on the security of one of K.'s cargoes, to enable him to pay for those goods. L. and P. did so, and the goods were thus paid for thro'^gh L. and P. They knew that the cargo pledged did not belong to M., but nothing further ; and they did not know whether the goods bought by M. were bought on his own account or not. Held, that as M. was not at the time of the ad- vance indebted to L. and P. in respect of the goods bought, though they were sureties for the payment, the pledge was not a pledge to secure an antecedent debt within the meaning of the Factors' Act, and was valid, there being nothing in the circumstances to give them notice that M. was violating his duty to his principal .^ On appeal of the case to the House of Lords,' it was held, in this respect affirming the decision of the Court of Appeal, that the obligation under which M. lay to the respondents to pay the de- posits and thus prevent their being called upon to pay them, did not constitute an antecedent debt within the meaning of the Fac- * Lindley, L. J., in delivering the judg- ment of the Court of Apiieal, thus sum- marized the law in its application to this <*jwe. He says: "The present case may, in our opinion, be shortly summed up in the loUowing manner. First, a person receiving goods from an agent can ac- quire from the agent all such title as the agent had in the goods by reason of lien for advances or otherwise ; all such title as ^he agent had express puthority to create, and all such title as the agent has authority to create by the law or custom of the country where the vgency is to be exercised ; but, as * general rule, the person taking such goods can get no lictter title than one or other of them. Here Meyer had no inter- est in the gooils by reiison of advances ; he had no exprt^ss authority to pledge the goods tor his own debt ; no custom has been proved authoiizing him so to do even if it were vnlid ; and, consequently, the defendant's only title as regards the goods is under the Factors' Acts. Secondly, al- though an agent authorized to receive money for a disclosed principal can only validly receive it in cash and disengaged from any other relations between )myer and payee, an agent for wle authorized to employ in hia own name a broker or other sub-agent in effectinn; the sale may be satistiud by set-off or in any other manner in which a debt may be discharged as between the agent and sub-agent. Here Meyer was authorized to employ the de- fendants in his own name, and they are therefore entitled to satisfy by set-off the debt arising from the sale of the plaintiff's goods during Meyer's lifetime. Thirdly, that the autnority given by Meyer to the defendants to sell the goods was with- drawn by his death and the commence- ment of this action, and consequently that in respect of the moneys arising from the sales subsequent to these events the defend- ants have no right of set-off. The plain- tiffs are, therefore, entitled to the moneys prod .ced by the sale of the goods con- signed by the Soteria, Lansdowne, and Glen Callach, after deducting from those moneys respectively the sums of A'200 and iI800 advanced by the defendants on these goods respectively. As regards the claim of the plaintiffs to the proceeds of the goods consigned by the Heaconstieid, the Antenoe, and the Comus, the action roust be dismissed." Kalteubach v. Lewis, 24 Ch. Div. 54, 83. ' Kaltenbach v. Lewis, 10 App. Cas. 617. PART VIII.] AGENCT. 641 in de- are the [tifTs lly, the llain- tiose land nese aim the I the nust 24 tors' Act, 5 and 6 Vic, c. 39, § 3, and that the pledges were made in respect of bond fide advances, and not of antecedent debvs, and were valid against the aopellants. But, with reference co the goods which had been sold for M. by the respondents, but not delivered to the purchasers nor paid for when M. died insolvent indebted to the respondents on general account, the House of Lords lield, reversing in this respect the decision of the Court of Ap- peal, that, after repayment of the respondent's advance, the surplus prcecds of sale belonged to the appellants ; that the appellants could sue the respondents for such surplus, whether on the ground of privity of contract, or on the ground of property, or under the Factors' Act, 6 nnd 6 Vic, c 39, § 7.i S., who had for many years traded as a timber merchant in his own name, entered into an agreement with F. & Co., who were also timber merchants, to carry on his busmess thenceforth as their agent at a remuneration by way of a share of profits. The business was thenceforth carried on under this agreement, but in the name of S., as before. S. dealt with the timber in his posses- sion as if he were the absolute owner of it (except as between himself and F. & Co.), and there was nothing done to inform the outside world of tlie change which had taken place. T"- the course of the business F. & Co. drew bills on S,, vvhich he uccepted in his own uf.me, to be protected by F. & Co. Both F. & Co., and afterwards, S., filed liquidation petitions. Before S.'s liquidation, F. & Co.'s trustee demanded the timber in his hands, which was refused. Held, that, to the extent of the current bills S.'s estate had a lien on the timber; and, semble, the reputed ownership clause applies to goods in the hands of a factor, unless the rela- tion of principal and factor is notorious.'^ An agent " intrusted with and in possession of " goods, or of the documents of title to goods, within the Factors' Acts, is a person who is intrusted as agent for sale ; arid, consequently, one whose authority has been revoked cannot make a vplid pledge of goods which had been intrusted to him for sale, but which he has wrongfully retained after his authority had been revoked, and the goods demanded from him by his principal,^ • See New Zcnlnnd & Australian Land Co. v. Watson, 5 Q. B. Div. 474 ; 7 Q. B. Div. 374; Duclos *;, Ryland, cited in note to Gill v. Kvmer, 6 Moo. 618 ; Moore v. Cleinentson, 2 Camp. 22 ; Mildred v. Mnspons, 8 Apn. Cas. 874 : Leuckart v. Cooper, 3 Soott, 6il ; Learoyd r. Robinson, 12 M. & W. 746 ; Phillips r. Heath, 6 M. & W. 672 ; Macnee v. Oorst, L. R. 4 Kq. 315. * Inn Fawens, Ex parte Buck, 3 Ch. TOL. I. 41 Div. 795. See In rr Paw's, &e. Co. 1 Cli. Div. 631 ; A> f>artr VViitkins. L. R, 8 Ch. 520, 528 ; Ex.paile Bod.ii, 28 L. T. N. 8. 174 ; Book i;. (Sorrisen, 2 De G. F. & .1. 434 ; Ex parte. Mi)li;ttiit, 3 Dea. tt Ch. 351 ; In re Kulberg, ri L. T. n. h. 460; Ex parte W-ml, L. H. 8 Ch. 144; Expnrtf Montaj^u, \ Ch. Div. 654. • Fiientes V. Moi.Ms, L. R. 3 C. P. 268 ; oHinnod, on np]ieil, in the Fxchequer Chamber; L. R. 4 C. P. 93. A., « 642 COMMBNTABIES ON SALES. [book II. A warehouse keeper who has goods deposited with him as such is not " an agent intrusted with the possession " of them, within the Pactoi's' Act (5 & 6 Vic. c. 89), although he is also a broker, and is usually employed to sell the goods, but always upon specific instructions for that purpose received from the principal.* In this case, one Slee carried on the business of a sheep's wool broker in Liverpool, and also that of a warehouse-keeper. In his capacity of warehouse-keeper he was in the habit of receiving from the plaintiffs, merchants in London, bills of lading for sheep's wool and goats' wool, to arrive in Liverpool, which, when landed, was deposited in his warehouses under directions to send the plaintiff a report and valuation, but he was not authorized to sell without specific instructions. The sheep's wool so deposited with him was usually sold by Slee, and the proceeds received by him for the plaintiffs. The goats' wool Slee never sold, he not being a goats' wool broker. Having wools of the plaintiffs of both descriptions in his warehouse, but not having received any instruc- tions as to the sale of either, Slee professed to pledge the whole with the defendants, bankers in Liverpool, by a letter, in which he undertook to hold them as trustee for the defendants, bankers in Liverpool, to secure the sum advanced. It was held by the Exchequer Chamber, affirm: \g the judgment of the Court of Com- mon Pleas, that Slee was not, as to any of the wools so agreed to be pledged, " an agent intrusted with the possession " within the Factors' Act.'^ factor, after dfpositing dock-warrants with the defendant an a security for an advance of monny, withdrew them from the dofenilant'a Uands, and substituted other dock-warrants fur silk belonging to the plrintiff, the defendant having no notice that A. was not the true owner. It was held, that this transaction was not {irotected by the second section of the i'aotors' Act (6 CSeo. 4, c. 94), there being no advance of money on the faith of such warrants ; and that the i>laintitr might recover the value of such silk in trover. Bonzi V. Stewart, 4 M. & G. 295. It was held by the Court of Kxchequer in Phillips V. Huth, 6 M. & \V. 572, and afterwards by the Exchemier Chamber and the House of Lords in Hatfield v. Philli[>8, 9 M. & W. 647 ; 12 CI. & F. 343, that it does not necessarily follow that the factor is in- trusted merely because he is found in possession of tno symbol of title : it must m shown that the principal really in- tended that the factor should be possessed of the goods at the time he pledges them. And see Smart v. Sanders, 5 C. K. 895 ; Jenkins v. Usborne, 7 M. & 0. 678 ; Monk V. Whittenbury, 2 B. & Ad. 484 ; Baines v. Swainson, 4 . S. 270 ; Kings- ford V. Merry, 11 Ex. 577; 1 H. & N. 503 ; Trueman v. Loder, 11 A. & E. 589 ; Greening v. Clark, 4 B. & C 316 ; Taylor V. Kynier, 3 B. & Ad. 320. Under thn old law, a factor intrusted with goods or their syrtibols for the purpose of sale, could not lawfully paWn either ; and if he did, the owner migh*^ recover thom from the pawnee, although the latter might have had no notice that the factor was not the true owner. Paterson i». Tasli, 2 Str. 1178; 15 East. 44. And see Daubigny v. Duval, 5 T. R. 604; De- Bouchot V. Goldsmid, 5 Ves. 21 1 ; Mar- tini V. Coles, 1 M. & S. 140 ; Shipley v. Kymer, Ih. 484 ; Solly v. Rathbone, 2 M. k S. 298; Cookran v. Irlam, lb. 301, n. ; Barton v. Williams, 5 B. & Aid. 395. > Colo V. North Western Bank, L. R. 9 C. P. 470 ; afflrmed, on error, by the Exchequer Chamlwr, L. R. 10 C. P. 364. * The principle upon which the case was decided is contained in the following, by Blackburn, J. Ibid. 372. Ho says : " The general rule of law is, that, where a person is deceived by another into PART VIII.] AOENCr. 648 In 1866, Vickers of Manchester, ordered 800 tons of pig-iron from the Carron Company ; and while they held it at his disposal, from fight was ["oah, see De- Mar- ie, 2 lb. . k I R. the 1354. lease }ing. liys : Ihere linto believing he may safely deal with prop- erty, he bears the loss, unless he can show tiiut he was inislcil by the act of the true owner. The legislature seem to us to have wished to make it the law, that, where a third person has intrusted goods or the documents of title to goods to an agent, who in the course of such ag<;ncy sells or ])ledges, he should be deemed by that act to have misled any one who bond fide deals with the agent and makes a purchase from or an advance to him without notice that he was not authorized to sell or to procure the advance. And we think that, if this was the intention, it was carried out by the enactments. We do not think that it was wished to make the owner of goods lose liis property, if he trusted the [kis- session to a person who in some other capacity made sales, in case that person sold them. If such was the wish of those who framed the act, we think they have not used language sufficient to expi'ess an intention so to enact." In Wilkinson v. King, 2 Camp. 335, the owner of goods sent tliem to a wli..i-tin> ger, where goods of the same sort were usually sold. The wharfinger, without any authority, sold them to a bond fide purchaser who duly paid for them. Lord Ellenborough held that trover would lie against the purchaser, for the goods, as the sale did not change tiie prointrty in them, and observed that to hold otherwise would give whartingers the dominion over all goods intrusted to them. Tliis deci- sion was adhered to by Lord Kllenborough in subsearent authority is the real authority ; ' thus, *' Strangers can only look to the ads of the parties, and to the external indicia of profterty, and not to the private commu- nications which may pass between a prin- ci|>al and his broker ; and if - person authorize another to assume the api)arent right of disposing of property in the ordi- nary course of trade, it must lie presumed that the api>aic:it authority is the real authority, t cannot subscribe to the doc- trine, that a broker's engagements are necessarily and in all cases limited to his actual authority, the reality of which is afterwards to be tried by the fact. It is clear that he may bind his principal within the limits of the authority with which he has been ap|)arently clothed by the prin- cipal in resi>ect of the subject-matter ; and there would Iw no safety in mercan- tile transactions if he could not. If the principal send his commodity to a jilace, where it is the ordinary business of the person to whom it is consigned to sell, it must Ik; intended that the commodity was sent thither for the purpose of sale. If the owner of a horse send it to a repository of .sale, can it be implied that he sent it thither for any other purpose than that of sale 1 Or it' one send goods to an auction- room, can it be 8U]iposed that he sent them thither merely for safe custody ? Where the commodity is .sent in such a way and to such a place as to exhibit an appareiit (lurpose of sale, the princiiml will Ijc liound, and the purchaser safe. . . . The sale was made by a |H'rson who had all the indicia of projnrty ; the hemp could only have been transferred into his name for the pnr|iose of sale ; and the ]>arty who has so transferred it cannot now rescind the contract. If the plaintiff had intended to retain the dominion over the licnip, he should have placed it in the whartinfjer's books in his own name." So, in I'arker v. Patrick, 6 T. |{. 175, it was held, that where the owner, who had enabled another jterson to deal with the goods as his own, must abide the con- stujuenie if any loss occur by third peraons s v. liiith, 6 M. & W. 672, is a valiialile one in the matter. There, the jilaintiffs, owners of a cargo of tobacco, on the nrrival of the vessel placed the bill of lading, indorsed in blank, in the hands of W., as their factor, for sale. W, enteri'd the goon, dejwsit, or pledge of such goods, as security for any money, or negotiable instrument, advanced or given by such other |>erson, on the faith of such docu- roent, provided ho shull not have notice by the document or otherwise that the person so intrusted shall not be the true owner. It is very clear thtt this section relaxes the role of the common law, only with respect to those who deal with persons who are i^ot m';rely ill (Mssession of, but are also intrusted with the symbol of projierty. How- ever great the hardship may bj on in- 'iiocent persons, and whatever they may have supposed from finding another in possession of a document lH>aring the I'n- dicia of property in itself, still the statute does not apply, r>nd they can ac(|uire no title by virtue of it, unle.ss the document has been intrusted to that person. If the legislature had intended to n.ake the sim- ple possession of such instruments suffi- cient to enable the party having them to make a good title, they no doubt wouia have so provided. If they had, the innocent party dealin<» with them would have been protected, but the innocent owner would, in tlint ca.se, huve suffered, if the docu- ment had been taken from him by felony or fraud. Hr.t by providing that a jierson should Iw iiUruMcd as well as in po.sses- sioii, the inconvenience is obviated. The statute applies only to written documents relating to goods, and not to goods them- selves ; and for this reason, — tliese docu- ments may be made to designate the owner's name, which the goods them- selves, generally speaking, cannot ; and it is clear that the legislature intended that those persons only should sutt'er by the fraudfi of their agents, who have iu- tnisted them with the evidence of title, and omitted to take those precautions which might have prevented them from deceiving others. It is therefore ne< PART vin.J AGENCY. 645 price." He agreed ; and on the 28th, sent them an order in the following terms : " To the Carron Company. Please deliver to their trust against the intention of their princinals, in violation of their duty towards them, and which document never would have existed at all, if it had not been for the fraud of the agents against their employers. It was well observed, that it is impossible to suppose a confi- dence reposed by the employer with re- spect to a document, the very existence of which is a fraud upon him. It is, no doubt, true, that the fact of the delivery of the bills of lading for the puritoses of entering the cargoes, of obtaining the war- rants, is, as was insisted, some evidence of the intention of the plaintitrs, that the factors should have those warrants at some time, or that the plaintiffs meant them to take them when they pleased ; but it is evidence merely ; and indei)endently of the objection insisted upon on the part of the plaintilfs, that the omstruction of the act of Parliament ought to have been more fully explained to the jury, we think that if it had l>een, the finding of the jury upon that evidence in this case is not satisfactory." The rule for setting aside the verdict for the defendants, and for a new trial, was accordingly made absolute, [n) Phillips r. Huth, 6 M. & W. 572, was afTirmed in Hattield v. Phillips, 9 M. & W. 647, in the Exchequer Chamber, and by the House of Lords, Hatfield v. I'hil- liiw, 12 1 1. & F. 343. After this deci- sion, the statute 5 & 6 Vic. c. 39, was passed. In I^amb v. Attenborough, 1 B. & S. 831, it was held that the- Factors' Acts, 6 Geo. 4, c. 94, and 6 & 6 Vic. c. 39, do not apply to the case of master and servant ; and, therefore, where a wine merchant gave authority to his clerk to sign delivery orders in liis master's name, and receive dock- warrants in his own, which he likewise authorised him to pledge for the purposes of the master's Dusiness, the clerk having fniudulently deposited some of these ' nk-warrants with a pawnbroker as a security for money bond fide lent to him, it was held that the clerk was not an agent within the Factors' Acts, and, consecjucntly, that the merchant was entitled to n'co- the dock-warrants from the pawnbroker. (//) But, in Baines v, Swainson, 4 B. & S. cessary, in order to give effect to this clause, that the owner should have * in- trusted' the factor with the document ; not that it ia necessary that the owner should have had personal iwssession of the document, so as to be able to mark it with his own name, and himself delivered it to the factor ; for if his own agent, general or special, puts it into the hands of the factor with the factor's name on it, or if the factor be instructed by the owner to obtain the document in that state, and does so, no doubt ' .":■ ' intrusted ' by the owner with it, witbiu the meaning of the act. But in order to constitute an xntnt-sl- ing of such a document, it is necessary that the owner should have intended thio factor to possess it in that form, at the time when ho had the ]iossession. In- trusting with the document is essentially different from enabling a jierson to become possessed of it, — from giving him the means of obtaining it. An instance of the ditlerence was well put in the argu- ment, when it was said, that one who gives another the key of his bureau to get out one jiaper, may enable him to procure any other that he pleases to take, but does not intrust him with it. It is not enough, therefore, to show that the plaintilfs em- powered W. to possess himself of the war- rants whenever he chose ; it must lie shown that the plairtiffs really intended that the factors should Iw possessed of them at the time they pledged them ; or it must be shown that tne plaintilfs meant them not merely to have the power which the possession of the bill of lading would give, — of getting the warrants when they liked, — but to exercise that power by ob- taining them whenever, in their discretion, they might think fit. If cither of these intentions were proved, it would be sutli- cient ; but if the factors were proved to be in possession of the warrants, under such circumstances as that the plaintiffs, if they had l»en informed of that fact, might justly have said, ' We never meant this,' it is impossible to say that they in- trusted the factors with these warrants. The principals can never be deemed to have intrusted the agents with a document which the agents obtained in breach of (n) It is noteworthv that the plaintiffs in tills case, and in Hatfield v. Phillips, 12 C\. & F. 3.59, as stated by the \mtA Chancellor in the House of Lords, were foreign principals, but this did not affect their right, against the wrong acts of their domestic agents, to follow tneir prop- erty in the hands of innocent third par- ties, precisely as they might have done if they nad been hon\t principals. (6) We would mention here, en passant, that this class of cases, too, shows the un- soundness of the New York case of Ar- mour V. Michigan Central R. li. Co., 65 N. Y. Ill, and the utter fallacy of the principle relating to the law of principal 640 COMUENTABIES ON SALES. [book II. Messrs. Campbell Brothers." Campbell Brothers, instead of employing the document for the purpose of giving delivery to the supposed purchaser, represented it as their own, and aslced Hertz of Glasgow^ to make them an advance upon it. Hertz de* clined till the document should be stamped, and a place of deliv- ery inserted by Vickers. These requirements having been satis- fied by Vickers, the Carron Company wrote to Hertz, saying : 270, the plaintitPs, cloth inatiufanturers, were applied to by E., who was a factor and coiiunission agent, for a sample of their cloths, on tlie representation that he could get them a purchaser. The sample having been sent, K. afterwards told the plaintilFs that he hud got them an order for a certain numbtir of ends at a stated price. The plaintitrs re(]uired to know the tirni, aitd 8. btdng mentioned as the firm, they sent the ends to the ware- house of E., who was to |mss them on to S., after seeing the process of ]>erching [>er- formed u|)on them, fur which ho was to receive a commission from the plaintiffs of one shilling i>er end. E. had no authority from S., and he sold the goods to ti><) de- fendants, who were cloth Mierchants, and bought them bmid fiiie. ii was held that E. was an agent "intrusted" with the cloths within the meaning of the Factors' Acts, and consequently the purchase of them from E. by the defendants was p.-o- tected. All of the judges distinctly up- held Monk V. Whittenbury, 2 B. & Ad. 484, and treated it as an existing author- ity under the 5 & 6 Vic. c. 39. See per Lonl Coleridge, in Cole v. Northwestern Kank, L. II. 9 C. P. 485. The distinction was taken by Wigram, V. C, in Wood v, Bowcliffe, 6 Hare, 183, 191, approved by Crompton, J., in Buines v. Sw.iinson, 4 B. & S. 270, 283, as the right distinction, that the act applies only to mercantile transactions, and not to the case of ad- vances made upon the security of furni- ture used in a furnished house — not in the way of trade — to the apparent owner of such furniture, such apparent owner afterwards appearing to be the agent in- trusted with the custody of the furniture and agent on which that case was de- ci('t'y whom it is made hns possession, not merely of the chattels themselves, but of the biila of lading or other documents which usually accompany the title. See McCombie v. Davis, 7 East, 5; Dyer v. Pearson, 3 B. & C. 38; Fletcher v. Heath, 7 B. &C. 517; Paterson v. Tash, 2 8tr. 1178 ; Evai. v. Truman, 2 B. & Ad. 886; Williams v. Barton, 3 Bing. 139 ; Everett V. Saltus, 15 Wend. 275 ; 20 Wend. 268 ; Williams ii. Merle, 11 Wend. 84; Leckey V. McDernmt, 8 S. & K. 500; Eoston v. Worthington, 5 S. & K. 130. his business ; and, aetinq on that author- ity, he, in fraud of his ]>rin(;inal, assigned some away. The plaintiff would, of course, be concluded by what his servant did by his ntUhoribf, but he is hnun4 no farther ; and, consequently, when we find these dock warrants were parted with by his servant without his authority, they still n>main his proj)erty, and he is entitletl to recover them fiom the party to whom they were pledged." Lamb v. Attenborough, 1 B. & S. at p. 835. See^Mut, Vol. 1!. Book III. Part I. PART VIII.] AOBNCr. 647 lor- er; em " We have placed the pig-iron indorsed by Thomas Vickers, Esq., to your credit." Hertz thereupon advanced to Campbell Broth- ers three distinct sums, amounting in all to .£2400. The act of Campbell Brothers was a gross fraud upon Vickers, who knew nothing of the transfer to Hertz, although he had unsuspectingly facilitated its accomplishment. Campbell Brothers, having be- come bankrupt, absconded. An action was brought in Scotland by Vickers against Hertz for the delivery of the iron. In Pochin V. Robinows,^ the Scotch Court of Session expressed a doubt as to whether the Factors' Acts applied to Scotland, and in Vickers V. Hertz (not reported in the court below), not relying on the Factors' Acts, but following their own decision in Pochin v. Rob- inows, they gave judgment for the defendant, on the ground that the documents which had been placed in the bauds of Campbell Brothers by the plaintiff, had put them in possession of a right which they were entitled to transmit to others. On appeal to the House of Lords, the judgment below was affirmed, but simply on the ground that the Factors' Acts do apply to Scotland, and that the documents in this case come expressly within the third and fourth sections of the act,^ where it is enacted that, " Any agent intrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be the owner of such goods and documents, so far as to give validity to any con- tract or agreement by way of pledge, lien, or security bond fide made with such agent so intrusted ; " and " that any order for the delivery of the goods, or any other document used in the ordi- nary course of business as proof of the possession or control of goods, shall be deemed and taken to be a document of title within the meaning of this act. " ^ 1 Ct. of Sess. Cos. 3d series, vol. vii. p. 622. a 5 & 6 Vic. c. 89. » Vickers v. Hertz, L. R. 2 Sc. & D. Ap. 113. IjotA Chelmsford says : " It was objected thiit the delivery orders were not within the acts, bceanso there were no specific goods to which thoy were appli- cable, and because Campbell Brothers were not intrusted with the delivwy orders for sale of the goods to which they related. There afipears to me no ground for these objections. The orders were for the de- livery of specific quantities of iron which had been previously purchased by Vickers, and which he was entitled to have de- livered to him on demand. Upon the production of those delivery orders, the quantities of iron mentioned in them must have been forthcoming ; and it seems to me to have been perfectly im- material whether these tjuautities had been previously set apart awaiting the demand for delivery, or whether they were, on the production of the delivery orders, separated from a largt^r quantity. ' Lord VVestbury, in dealing with the latter point, said: "Mr. Justice Willes is re- iiorted to have said that the factor must be deemed to Ite a factor for the sale. Fuentes v. Martis. L. K. 3 C. l\ 268. What is stated in the act is, that a factor who is intrusted with the goods, or wHh a document of title, shall l>e authorized to deal with the gi)o. Hertz, L. R. 2 Sc. & D. Ap. at p. 117 et acq. See also, for the Scotch law, 1 Bell's Com. p. 250. The facts in Pochin v. Robinows, Ct. of Sess. Cas. 3d ser. vol. vii. p. 622, are identical with those in Vickers v. Hertz, L. R. 2 Se. & D. 113. The former case, as intima''ed above, was not decided under the Factors' Acts. The ground of the de- cision was one relating to agency gener- ally, and was to the effect that where a man intrusts his agent with the actual possession of his goods, or with a docu- ment by which possession can at any mo- ment be obtainea, and the agent, in abuse of his trust, raises money on his ostensible right from a bond fide lender, it is the em- Iiloyer of the agent who should suffer the OSS, and not the innocent third party with whom the agent was enabled to con- tract by the employer's own conduct. In Vickers v. Hertz, L. R. 2 Sc. & D. at S. 116, Lord Chelmsford was evidently in oubt as to the soundness of the decision in Pochin v. Robinows (supra), indepen- dent of the effect of the Factors' Acts ; and we think that, as far as the English law is concerned, the case outside of the Factors' Acts is even nr re than doubtful, as the very object of the enactment of the Factors' Acts in England was to meet ex- actly such cases as those of Pochin v. Robinows, and Vickers v. Hertz. But, as was pointed out in the latter case by Jjord Colonsay (at p. 119), while the case came clearly within the scope of the Factors' Acts, and on that ground was well de- cided, the decision was also in accordance with the common law of Scotland, the Scotch law having "gravitated in that direction for a considerable time previously to those statutes, Mr. Bell laying it down expressly that a factor had the power to pledge his principal's property." Bell, in 1 Cora. 5th ed. 483; 7th ed. 617, says : "It has been much questioned, both on the Continent and in Great Britain, what power a factor has to pledge the goods of hia principal. In England, at common law, he liad no such power. In Scotland it has been decided that he has the power, to the elfect of conferring on one who lends money on the security of the goods, an unexce])tionable real right ; or, of raising to a sub-factor, or other person receiving the goods and advancing money on them, an etiectnal lien. And, on this point, the law of England has by statute been placed nearly on the footing of the law of Scotland ; " citing the Factors' Acts. And, again (5th ed. 250, 7th ed. 270), with reference to the doctrine of reputed ownership, an analogous doctrine as to the law of Scotland is laid down : "The effect produced in England by the statute of 21 James 1, c. 19, is in Scotland accomplished by the operation of the common law ; and the rule may be stated in this proposi- tion, — that where one is unnecessarily, or by the collusion or gross negligence of the true owner, permitted to give himself an appearance to the world as if he were pro- prietor of goods and wares not belonging to himself, and this by exercising acts of ownership, and by holding a possession seemingly uncontrolled, his creditors will be entitled to proceed against the goods as if they really belonged to him." PART VIII.] AGENCY. 649 !1 5 n 11 nal seller, there being no other subb . ution of a contract for the cancelled one than such as existed in the minds of the plaintiffs, to which no outward expression was given, and which consisted merely in their intention to thereafter substitute another seller to take the place of the one they released. The court held that this rule means that when a commission merchant has made a con- tract for his principal with a third person, and assumes to off- set or cancel the contract, he should substitute therefor another equivalent contract with some other person who should be bound to his principal for its performance. The purpose of the rule being, therefore, to provide that when contracts were cancelled and others substituted, the commission merchant, as well as the party bound in the substituted contract to sell or buy, should be liable to the other party for its performance. The rule did not authorize the commission merchant to release the party to the original contract unless he provided some one else to assume the obligation ; or, as the rule states it, " substitute some person or persons for the one from or to whom he may have purchased or sold the property originally ; " and that in this case there having been no 'substitution, — no contracts to talce the place of those cancelled, — the plaintiffs could not recover.^ Parties who make sales themselves, in their own name, at their own store, and on commission, having possession of the goods as soon as the sales are made, and delivering them to their cus- tomers, are commission merchants as contradistinguished from mere brokers or agents, and were held liable, under the Internal Revenue Act of 1866,2 ^o be liable to a tax as " wholesale dealers," and did not come within the clause of the act which imposed a lighter tax on " commercial brokers." ^ A factor who has made advances on cotton, claiming it in the Court of Claims, under the Abandoned and Captured Property Act,* as he has only a special property in it to the amount of his advances, can only recover to the extent of his interest in the cotton, to which extent he is considered as the •' owner " within the meaning of the act; but as to the amount beyond his ad- vances, that is in the general owner, in respect to whom the United States has the full defences of set-off, disloyalty, etc., given mider the act and its amendments.^ 1 Higgins r. MuCren, 116 U. S. 071. The rule is well settled, that a written contract made by a factor in his own name for the pHH^haHo or sale of goods for his principal will bind the principal, and he may sue or he sued thereon exactly as if he were named in it, for it is treated as the contract of the principal as well as of the agent. Higgins v. Senior, 8 M. k W, 834 ; Huntington v, Knox, 7 C'ush. 371 ; Taintor v. Prendergast, 3 Hill, 72 ; Ford V. Williams, 21 How. 287. a 14 Stat, at Large, 11.5. » Slack V. Tucker, 23 Wall. 321. ♦12 Stat, at Large, 820. * United States v. Villalonga, 28 Wall 36. 650 COMMENTARIES ON SALES. [book II. In Warner v. Martin,^ the Supreme Court of the United States decided the following points : 1. That a factor has not power to transfer tlie title of his principal to goods consigned to him for sale, in payment of a precedent debt duo from himself; and a creditor who receives the goods under such an arrangement, as well as his vendee, though acting in good faith, and in ignorance of the fact that the goods did not belong to the factor, acquires no title as against the principal. 2. The factor having abandoned the country, the clerk of the factor has no power to sell the goods of the factor's principal, no usage of the trade to do so being shown.* Under the United States Bankrupt Act of 1841,^ fiduciary debts contracted before the passage of the act constituted no objection to the discharge of the debtor from other debts. A fiduciary creditor was not affected by proceedings in bankruptcy unless ho voluntarily came in and proved his debt. Under this act it was held, on demurrer to a plea of bankruptcy by a bank- rupt factor, that a balance due from a factor to his principal was not a fiduciary debt within the meaning of that act.^ Where goods are consigned to a factor to meet his accept- ances as they fell due, and he has funds in his hands to meet a bill accepted by him, drawn by his principal and an accommoda- tion drawer, he is bound to ap])ly the funds to pay that bill. He cannot sue the drawers and maintain that he applied those funds to the payment of the later liabilities of his principal alone. The accommodation drawer has the right to have the funds applied to meet the bills as they become due, and not to have the payment o^ the bill of which he was one of the drawers deferred to his injury.* The plaintiff, a merchant in Georgia, shipped cotton to the de- fendants, factors in Liverpool, the defendants accepting the plain- tiff's draft against the consignment. When the shipment was » 11 How. 209. 3 See Trueniau v. Loder, 11 A. & E. 589 ; Ulore v. Sutton, 3 Meriv. 237 ; Combe's Case, 9 Co. 75 | Palliser t>. Orb, Bunb. 166 ; Coles v. Trecothick, 9 Yes. 236 ; Solly v. lintlibone, 2 Man. & S. 299 ; Cockrnn v. Irliim, lb. 301 ; Patereon V. Tash, 2 Str. 1178; Maans v. Hender- son, 1 East, 337; Newson v. Thornton, 6 Bast, 1 7 ; McCombie v. Davis, 6 East, 538 ; 7 East, 5 ; Daubigny v. Duval, 5 T. K. 604 ; Guichard v. Morgan, 2 Br. & B. 639 ; Martini v. Coles, 1 Mau. & S. 140 ; Berry v. Williamson, 8 How. 496. s 5 Stat, at I^rge, 440. * Chapman v. Forsyth, 2 How. 202. * Brender v. Phillips, 16 Peters, 121. But, where a factor makes advances, or incurs liabilities on a consignment of goods, if there be no specuil aijreemcnt, he may sell the pro|ierty in the exercise of a sound discretion, according to general usage, and reimburse himself out of the proceeds of the sale ; and the consignor has no right to interfere. The lien of a factor for advances and liabilities incurred extends not only to the property con- signed, but, when sold, to tlie proceeds of the sale in the hands of the vendee, and the securities therefor in the hands of the factor. Diinkwater v. (loodwin, Cowp. 2.'>1 ; Haughton i^. Matthews, 3 Bos. &. P. 489 ; Brown v. McGran, 14 Pet. 495. PART VIII.] AOENOT. 651 made, and the advance arranged for, no instructions wore given by tl>e plaintiff touching the sale of the cotton. It accordingly went to the consignees, as factors for sale, without any other con- tract than that implied by law as between a principal and a factor making advances ; that is to say, that the factor is to make sale of the goods consigned to him according to his own judgment, in the exerci se of a sound discretion as to the time and mode of sale, aving regard to the usages of trade at the place of sale, and to reimburse himself out of the proceeds for his advances and other balance due him. After the shipment,— namely, on April 20,— the plaintiff wrote the defendants : " If you have any cottons on hand when this reaches you in which I m interested, I wish you to hold them until you hear from me again.' The defendants, on May 24, replied, acknowledging the receipt of the letter of April 20, and adding, "And your wishes in respect of the cotton are noted accordingly." On July -2 the plaintiff wrote the defend- ants, acknowledging the receipt of that letter, and saying, " You will please sell my cotton soon after the receipt of this, imless you are of opinion you can do better by holding a little longer." This letter was received on August 23; but the cotton, in fact, had been sold by the defendants, on a rising market, on June 3. On the plaintiff becoming aware of this, he repudiated the sale, and notified the defendants he would not be bound by it and would hold them responsible. The market having continued to rise, the plaintiff brought an action for damages for a breach of orders l)y the de- fendants, and of their duty as factors. The verdict and judgment were for the plaintiff. The judgment was set aside by the Su- preme Court,^ and a new trial was ordered by a divided court, Wayne and Catron, JJ., dissenting. While there may be some doubt as to whether the majority of the court made a proper application to the case of all the princi- ples upon which they relied, we think that, with one important qualification which we shall notice, there is no question as to the general correctness of those principles, as follows : — 1. As a general rule, it is true that the interpretation of writ- ten instruments properly belongs to the court, and not to the jury. But there are cases in which, from the different senses of the words used, or their obscure and indeterminate reference to un- explained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects and intentions and agreements of the • Brown v. McGran, 14 Peters, 479. 652 COMMBNTABIBS ON BALES. [book II. parties are often to be arrived at only by allusions to circum- stances which are but imperfectly developed. And this is true oven though the court might, in its discretion, have assumed upon itself the right and duty of construing the correspondence. 2. Wherever a consignment is made to a factor for sale, the consignor has a right generally to control the sale thereof, accord- ing to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account thereof; and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. If, however, the factor makes advances or incurs liabilities on account of the consignment, by which he acquires a special property therein, then the factor has a right to sell so much of the consignment as may bo necessary to reimburse such advances or meet such liabilities, unless there is some existing agreement between himself and the consignor which controls or varies this right. Thus, for example, if, con- temporaneous with the consignment and advances or liabilities, there are orders given by the consignor which are assented to by the factor that the goods shall not be sold until a fixed time, in sucli a case the consignment is presumed to bo received by the factor subject to such orders ; and ho is not at liberty to sell the goods to reimburse his advances or liabilities until after that time has elapsed. The same rule will apply to orders not to sell below a fixed price, unless, indeed, the consignor shall, after due notice and request, refuse to provide any other means to reimburse the factors. And in no case will the factor be at liberty to sell the consignment contrary to the orders of the consignor, although he has made advances or incurred liabilities thereon, if the con- signor stands ready and offers to reimburse and discharge such advances and liabilities. On the other hand, where the consign- ment is made generally, without any specific orders as to the time or mode of sale, and the fn'^t;c" makes advances or incurs liabilities on the footing of such consignment, then tlie legal pre- sumption is that the factor is intended to be clothed with the ordinary rights of factors to sell in the exercise of a sound dis- cretion at such time and in such mode as the usage of trade and his general duty require, and to reimburse himself for his advances and liabilities out of the proceeds of the sale ; and the consignor has no right by any subsequent orders {^unless assented to or acquiesced in by the consignee, we would suggest], given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities. Of course this right of the factor PABT Tin.] AGENCY. 658 to sell to reimburse himself for his advances and liabilities applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity. While we think the above position, except as we have above qualified it, is not sound, we fully agree witli the majority of the court in the following, which is the third of their positions, but which, as stated by them, implies a very strong doubt as to the correctness of their holding that the acquiescence in and nssont to, by the consignees, of the orders of the consignors, is not binding on the consignees if they have incurred any liability in respect to the consignment. 8. Supposing the tale made hy the de/endanta on June 3 to have been tortious, and in violation of orders, the plaintiiT had his election either to claim damages for the value of the cotton on that day, as a case of tortious conversion, or for the value of the cotton on August 23 following, when the letter of the plaintiff of July 22 was received, which authorized a sale. If the price of cotton was higher on that day than at any intermediate period he was entitled to the benefit thereof. If, on the other hand, the price was then lower, he could not justly be said to be damnified to any extent beyond what he would lose by the difFereiico of the price of cotton on June 3 and the price on August 23. The advance in this case was made to the plaintiiT, not by the payment of any money, but by the acceptance of the plaintiff's draft by the defendants' New York house, who recouped them- selves by drawing on the Liverpool house at sixty days' sight, this bill being accepted only on June 3, the day on which they sold the cotton, so that they would not be under any cash advance against the consi<" nent until the following August. The jury treated the defendants' letter of May 24 in conncctioti with the plaintiff's letter of April 20 as an agreement with the plaintiff not to sell the cotton until they received further orders ; and the court, in effect, approve of the construction put by the jury upon those letters. Of course, on undoubted prineiples of law applica- ble to the case, it was quite within the power of the defendants to have refused assent to the proposition made to them in the plain- tiff's letter of April 20, in which case they would have exercised such rights of selling as pertain to factors under such circum- stances, or they could have required additional security; but having adopted neither of these courses, and having, as the jury found, assented to the plaintiff's request, we think this did amount to an " existing agreement between themselves and the consignor which controlled or varied their rights." Having con* 654 COMMENTARIES ON SALES. [BO^kt II. seiited ':o hold the cotton according to the tcrma of the consign- or's /ctter, uud having against their assent, acquiescence, and agreement violated their orders, — thus, first, by their acquies- cence, lulling the consignor into inaction, and rendering an offer, confessedly within tlie power of the consignor to make, of a " dis- charge and reimbursement of the advances and liabilities," and then violating their agreement, which was based on a clear legal consideration, — wo think, in the words of the majority of the court themselves, that the sale was "tortious and in violation of orders;" and we are not surprised that, on this point, two of the judges of the Supreme Court dissented from tho view of the majority, i.id agreed with that of the court below.' » See Turner v. Yates, 16 How. 14, where a (|ue8tioii as to the meaning and effect of con'f.s|)ondence was 8u))initte(l to the jury, ns in Brown v. McGnm, 14 I'et. 479. The authorities cileil in this latter case do not sustain it on the jKiint where we think it is wron^^ly decided. In neither of ihc two coses relied on did the Name (luestion, or a similar one, arise. In PothoMicr v. Dawson, Holt, 383, Giblw, C. J., held, that, as a^encud [)ioi>osition, a ri)(ht of lien gives no ri^ht to sell the goods. Hut when gooils are deirasited by way of 8:'ciirity, to indemnify a Jiurty against a loaa of money, it is more than a pledj^e, The lendi'r's rights .ire more extensive titan sueii as aeerue under au onlinary lien mi tiii way of trade. The contniet, in sueii ciise, may bo infarred to be, "If i [the Utrrower] repay the money, you must redeliver the gooils ; but if I fail to repay it, you may use the security I have left to repay yourself. " The other case, Oraham v. Uyster, C Man. & S. 1, siuiply holds thut a factor who had the power to sell goods, had not the itower to pledge thenu Ivjrd KllenlN)rougn shows that whi-re goods are consigned to a broker, with iiowcr to sell them at his discretion, the shippci-s stipulating that they should be at liberty to draw on the broker by way of ailvance, the broker had iwwor given ;.o him to regulate the time and I'lai.c (if .lisiMsjd, the price, and all other partiiiilar< incident to the sale, and the shipp >rs c mid not object to anv mode of sale whiv- 1 the broker might adopt, in ordef to reimburse himself for his ad- vancLX. But tliis docs not affect the case, as in Prown o. Mcdran, 14 Pet. 479, where, I.y agreement Iwtween the {larties, the con iguees rights and lowers are re- stricte-l, In Marlield v. Ooodhue, 2 Corns. 62, tlie Court of Apfieals of New York refused to follow Brown v. McOran, 14 Pet. 47!>, even, outside of the question of the factor's powers being restricted by that which was held to constitute an agreement between the consignor and consignee. lu Mnrtield v. Goodhue, 3 C'oms. at p. 72, the court say : " Where gotnls are sent to a factor for sale, without any limitation or instructions as to the terms or time of sale, he is at lilK-rty to sell as in the exer- cii' 3 of u sound discretion he shall deem proi>er for the interest of his principal. The factor in such a cose is intrusted with the exercise of a discretion for the bcnetit of his principal and not for his advantage, and that discretion the priuci]ial has a right to control. But after the factor has this authority, to lie exercised exclusively for the benefit of his principal, he makes advances, and then his princi|Hd becomes satisKed that his interest will \hi promoted if the sale Iw delayed, and he onlere his factor not to sell. The Chief Jus- tice instructed the jury that such an order was powerless, and in no respect limited the authority of the factor. Can this U- so » The authority when given to the factor Wiis given for the exclusive tn'iiofit of the jirincipal. The interest of the factor was not to bo roganloil at all in the exert:ise of the authority. Then the factor makes an advance ujiou the credit of the goods, and of his principal ; is he not, after that, as much bound as he was before, to 'lave solely in view the interest of his princiftal when he sells ; or is he at lilierty, after- wards, to consult his own interest instead of that of his principal ? Alter the ad- vanc(?, the principal lias good reason to iH'lieve that a delay in selling will In- ad- vantagiums to liim, and he so informs his factor ; is there pny hanlsliip in reiiuiring of the factor, if he is unwilling to olioy the onler of his princi|)al, to say to him, 'Ah you have revoked my authority to sell at my discretion for vour IxMietit, 1 sliall s*-!! at my discretion for my own Ix-nofit, un- less yon forthwith repay my ailvances ' t" AVe think that the mistake made by the court in Brown v. McUran, 14 Pet. -^79, PART VII F.] AGENCT. 655 Certain cases of wine were ordered by L. of the plaintiff, and were shipped by the plaintiff, consigned to L., who deposited the bill of lading with the defendant, a wharfinger, with directions to take delivery and warehouse the wine on L.'s account. The wine, on its arrival, was entered at defendant's wharf in L.'s namo, sub- ject to a stop for freight. L. afterwards refused to accept the wine, on the ground that it was not according to contract. The plaintiff agreed to take it back, and L. promised to send a deliv- ery order to enable the plaintiif to obtain it ; but, on the same day, L. indorsed the bill of lading to M., which M. took to the defendant's wharf and procured a transfer of the wine into his own name. The plaintiff was afterwards informed by L. that the wine was at the disjwsal of the plaintiff, but subject to charges amounting to £17 14s. 9d., aj •! £5 for loss of profit. At an interview be^^^ween M. and the plaintiff, M. offered to give up the wine on payment of the above sums. The plaintiff tendered the former sum, which M. would not accept. The plaintiff's attorney afterwards offered to the defendant to pay all charges, and to in- demnify him against the claim of any other person. The defend- ant refused to deliver the wine to the plaintiff, alleging that he had given warraut.* to M. The wine was ultimately delivered to a third person by M.'s order. M. bad, in fact, paid the freight, and obtained warrants to him or his order. At the trial before Cockburn, C. J., the jury found that the transaction between M. and L. was coloralde, and with knowledge on the j)art of M. of tlie intention of L. to depfi' e the plaintiff of the win?. A verdict was found foi" the plaintiff', with leave to move to eutv'r a verdict for the defendant, power being reserved to the court to draw infer- ences of fact. The court held that the defendant received the 494, H firq., is inninly in tlisiTfjanliiiK tlio f " '. lifter n(lv'".r""s I'lvc bcoii iimih', of \ ,ij»rpt'inont of r, fiirti)r to ('(fniily with tltte ifijiU'st of tlic !i|i;ji|HT t« (IcfiT tnakillK tlu' sail'. Asiil;' ^T tlmt, thiTc is not ii vcrv inai'-'ial iliircit'iu'i' iM-twcer Brown v. MoOnin, i4 I'-i. 471), and Varfu'ld i'. (•iMMllini', :< Conis. tl'J. In tin; fiirnu-r cn.>M', tin' liinijuiijji' is : " Ami in no caxo will the fiictiir lii' itt lilM-rty to sell the consignnu'iit lo.iliiiiy to tin- orders of the consignor, (iltlion^li ln' Ims inaclc advanrcH, or incnrrcd linliiliiics tlicriMiii, //' thf rn.i- xicfnor ulnnd rrinhi, mid njffrs to rrivilnir.tc iiHii disrhitrfjc sia-li adviit •I'.n and Uiihili- tiat." I'. 4!tri. And in MaHii'M r. (Jood- hnc, 3 Conis. ii2, m-arly tlio Hann- thiii}?, in t'ffcot, is also held ; oi litt-niUy, that thp factor nniy sell, nnlexH on demand the consinnor, |>ay the advances. Ho that, on this jwint tiic diiFcrcnce is merely as to the j>arty \\\\o\\ whom Iho initiative a.s to the jiiiynicnt is cast. Ihit, on tiic jMiint, where we have cxprcssecl the o]iinii>n that Hmwn v. McCnin, 14 Pet. 47i*, is wroii},'ly decided, we find the court in Marfield c. iit a coLiinissiuM nier- (diniif, liavinjj receivd ^'ci.>ds in mII at a certain limited price, ami made ailvam-es n|N)n them, has a ri)plication, and ftfter a reHHonablu time, to repay the advances. 656 COMMENTARIES ON SALES. [book II. wine as bailee to L., and, after the payment of the freight, could have no better title than his bailor ; that, by the finding of the jury, M. had no better title than L. ; and, as the plaintiff had ten- dered the amount of charges both to M. and the defendant, the plaintiffs title was as valid against the defendant as it would have been against L. ; and that the defendant was liable to the plaintiff "or the value of the wine.* The receipt of a warehouseman for a quantity of wheat, given in consideration of a sum of money, no wheat being delivered, does not enable the promisee to maintain replevin against a third person for wheat held by the third person in that warehouse ; the plaintiff showing no property in the whcat.^ Where, for advances made by the plaintiffs to H. L., for goods, his brother S. L., a warehouseman, gave warehouse receipts lor such goods to the plaintiffs, which goods were sold and delivered by H. L. and the plaintiffs to the defendants, for the plaintiffs ; it is no defence for the defendants, in an action for the j»rice, to say that the plaintiffs are still the holders of the outstanding re- ceipts of S. L. The existence of these facts does not authorize the defendants to resist the payment of the price of property they had purchased, and the possession of which has not been dis- turbed. S. L. had no title to the property, nor any power to sell it, nor any claim on the price. At most, he had only a lien, which he might never claim to e.xort, and from which the pur- cliasers have experienced no injury.^ Wharfingers, warehousemen, and commission merclianta, hav- ing goods in their possession, may insure them in their own names, and in case of loss may recover the full amount of lit- » Batut V. Hartley, L. R. 7 Q. B. 694. See Cliwsmiin v. Kxiill, 6 Ex. 341 ; Ogle V. Atkinson, .5 Taunt. '/.'»9 ; Gurnev v. Behren.l, '2 K. & B. «22 ; Wilson v. Aniler- tun, 1 U. & Ad. 4.')0 ; Cuming v. Brown, y l"^ist, 506 ; Mcycrstein v. Barber, L. K. 4 H. L. ai7 ; Hiiindt v. Bowlby, 2 B. & A<1. 932; WiilianiH v. Kverftt, 14 East, 582 ; Walker v. Boston, 9 M. & >V. ill ; Wood I'. Leadbittor, 13 M. k W. S2H » Jackson V. Hall, 14 How. 525. " McCuUough V. Roots, 19 How. 349. See, also. Holly i'. Huggcrfoni, 8 Pick. 73 ; Vibbard v. .lohnson, 19 Johns. 77 ; Wanzer v. Truly, 17 How. 584. A (mrnhaser with knowledge that the goods j)urcha.sed are (daiinod by a third p«'r8on, if he voluntarily pays the price of the goods to such third ]>er8on, cannot after- wards, ssion, claiming title, to B. The latter receives the )>osscssion, and enjoys the premises by the |H'rniission, and on tin* letting of A. In an action for the rent, B. (Miiiiot set up that A. has nothing in the premises, and that he has paid the rent to C. voluntarily. If (.'. Iind recovered the r-'iit, anil substantiated his title, then it would be a good delencc ; otherwi.se, not. Vibburd r. Johnson, 19 Johns. 77. And see Heennancev. Vernoy, 6 iFohns. 5 ; Sweet v. Colgate, 20 Johns. 196. PART VIII.] AGENCY. 657 111- of tu- ple ».y to nd in, for 1118 Ic. led |l9 Hiirance, for the satisfaction uf their own claims first, and hold the residue for the owners.' It is laid down in Railroad Co. /-. Munufacturinjr Co.^ that the rule which is applicahlc while goods are in jtroccss of transporta- tion by a carrier from the i>lace of their receipt to the place of their destination, is that, in the absence of any special contract, it is the duty of the carrier to carry safely to the end of his line and to deliver to the next (iarrier in the route beyond. It is there alleged that this rule of lial)ility is adopted generally by the courts in this country, although in Kngland, at the present time, and in some of the States of the Union, the dispo.sition is tc treat the obligation of the carrier who lirst receives the goods as con- tinuing throughout the entire route. The rulf, it is claimed, that liolds the carrier only liable to the extent of his own route, nnd for the safe storage and delivery to the next carrier, is just uud reasonable ; but that public policy, however, recpiires that this luli; should 1)0 enforced, and will not allow the carrier t(t rscape rv- sponsibility on storing the uoods at the end of his route, without delivery or an attemitt to delivei- to the connecting carrii'r. li there be a necessity for storage, it will be considered a mere ac- cessory to the transportation, and not as cluinging the nature ol the bailment. It is very clear that the simple deposit of the goods by the carrier in his depot, imaceompanied l)y any act indicating an intention to renounce the (»l»ligation (»i a carrier, will not chauffe or niodifv his linl-.ilitv. It mav lie that cirenmstanees may arise after the goods have reached the depot which wfjiiiti justify the carrier in warehousing them: but if be had reasoniddr grotmds to anticipate the occurrence of these adver.se ciirum stances when he received the goods, he cannot by storing them change his relation towanls them. These princi|)les are stated ns above and were applied in Rail- road Co. V. Maniifnetui'iug Co..' where wool was shipped at .lai'k- son for ibilTalo, and was takt-n liy the r:iilroad to l>('troit, wbenec it was to be forwarded by steamer to JbilValo. ll was earried b\ the road to Detroit, and remained in the depot ot the railroad lor ' IIoiiii- Ins, Co. r. I'mltiiiHird \V;irr- liousc Co., !•.'! I'. S. TiUr ; Wnlcis r. .Mou- iiivli^ A.ssiirniiii' <'o., .'■. I'".l. \ HI. nTh . I.onilon & Nnrtli Wc.-'tcrii Kv. ("n >• lilvri. I Kl. & Kl. ♦i.'.S: li.'Ki.irst'r. I'lilti.n In- sumiii'r' Co., 1 Hull, Kit!; Siirr r. M;nis, 1!J I'll. St. 21!'. Sucli jitiliiii's uHimlly coi Kooil^. Till' I.Dinloii Si North Wcstfiii I!v. C... V. Civil. 1 Kl. & Kl. tir.U. S.c I,ii|;i«;ivs »• 'rcHlil. •! StMlk. 400 ; Kojm 1 I'. Ilnlhiihi, :! .\. & K, !•!• ; Ciliutli.l^ c. Slii'il.li'ii, ti Tamil. 14 ; Irvilij;!'. Itii liitfii- son, -J n. & .\.i. lii:; ; hiilliy r. Tli" liiijiu & Loiicjon I. ill' .\s>;iinnir<' Co., ir> tiiiii siich luiiRimgc, tovi'iiiif,' the fjixxls, ('. 11. 3*l.'i ; Snow r. I nil, rtl Aln. 'M'\ ; nt "thtir own or la-M t>.v tlicni in tni.>conit' trnstt'cs for llic DuMiid, Pk L'.M. owners of tin H'lu*!"* f'"' J*'"'!! t'Xf(" ■ COMMENTARIES ON SALES, [book n. six days, when it was destroyed by an accidental fire, not the re- sult of any negligence on the part of the railroad company. Bar. ing all the time tile wool was in the depot it was ready to bo delivered for further transportation by the steamers, which were unable, from the accumulation of freight, to receive it. The lia- bility of tho railroad was held to be that of carriers, and not of warehousemen, and the judgment of the Circuit Court for Connec- ticut against them for the loss, w&s affirmed by the Supremo Court of the United States.^ * Aa thU su>)ject is oniy collateral to that of sales we intended to nave discussed it in a note to this Part ; but as the qaestion in this country is one of the highest importance, not only to railroa