UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
TRIAL EVIDENCE.
THE RULES OF EVIDENCE
APPLICABLE ON THE TRIAL
(INCLUDING BOTH CAUSES OF ACTION AND DEFENSES)
AT COMMON LAW, IN EQUITY,
UNDER THE CODES OF PROCEDURE.
BY AUSTIN ABBOTT.
OF THE NEW YORK BAH.
11012
NEW YORK:
BAKER, VOORHIS & CO., PUBLISHERS,
60 NASSAU STREET.
1882.
Entered, according to Act of Congress, in the year eighteen hundred and eighty, by
AUSTIN ABBOTT,
In the Office of the Librarian of Congress at Washington.
Sixth Impression.
PEEFACE.
i Iff this volume I assume that the reader is familiar with the general
principles of the Law of Evidence, and is concerned with their proper
application in actual practice. I have accordingly sought to state the
^ most useful, convenient, and trustworthy rules as to the mode of proof
of each material fact in all the great classes of actions and defenses ;
and to illustrate and support these rules by a selection of authorities
drawn from the decisions of all the American and English courts, and
from the works of the best text-writers.
Recent changes in procedure, accompanying or resulting from the
Code practice, have had far-reaching consequences in respect to the
mode of dealing with the subject of evidence. The abolition of formal
distinctions affecting actions and suits, the new methods of pleading, the
abrogation of former disqualifications of witnesses, and the advance in
assimilating the practice in the United States courts to that in the State
courts, have silently effected many radical changes in the mode of proof,
and have had a wide and powerful influence upon the practical applica-
tion of the general principles of evidence. In consequence of these
modifications of the law, most of the questions as to competency of wit-
nesses and the effect of the pleadings, which formerly occupied so much
attention, have dropped out of notice, and questions of the relevancy
and competency of particular facts relating more or less directly to the
issue, and of the weight and cogency of evidence, have been brought
into new importance. Since the law has given to the trial courts in-
creased freedom in the admission of evidence, the appellate courts
justly use increased care in scrutinizing questions of evidence, that they
may relieve against all substantial errors which transcend the limits of
that freedom. And there has also been a general advance in the devel-
opment of the rules by which appellate courts (in proper cases) re-
weigh the evidence on which facts have been found in the trial courts.
Hence discussions on qtiestions of evidence, in our appellate courts,
are now more important and more frequent than ever before; and
[iii]
IV PREFACE.
careful practitioners are more than ever accustomed to include in
their preparation for trial, an examination of the authorities as to the
mode in which, in the present condition of the law, the cause of action
or defense should be proven.
Each class of actions has its peculiar rules of proof. These are the
result of experience, adapting the general principles discussed in the
text-books to the exigencies of justice in each kind of litigation. It
is not enough to know the general principles which are to be applied.
It is necessary to know also how they are to be applied and limited in
the particular action on trial. Such special rules, though less artificial
and technical than formerly, have become, under the new procedure,
more numerous and important than ever. On questions of evidence
the conflict apparent among text-writers and decisions, often arises from
supposing that general principles have similar application and effect in
all classes of cases. The method here pursued aims to give, in suc-
cessive chapters, under the title of each principal cause of action and
defense, the characteristic rules now applied by our courts in that class
of cases, together with an indication of the general principles on which
these special rules rest, and by which they are to be extended or lim-
ited, in new instances.
The method chosen for the statement of these rules is that which
seemed to promise the best practical assistance to counsel and to the
court, in the trial of issues ; to the practitioner generally in preparing
for trial and selecting witnesses ; and also to the pleader in framing
issues.
The order of topics pursued first disposes of questions connected
with the character of Particular Classes of Parties, as likely to arise in
actions of almost any kind, and then proceeds with Particular Causes of
Action, taking first those in which the main proof is usually of facts
raising an implied contract or legal duty ; followed by those involving
writings unsealed, sealed, or of record ; then those turning on negli-
gence or tort ; then those seeking specific relief, founded on either of
these kinds of transactions ; and finally those which, in a greater degree,
depend on statutes, &c. Defenses which are common to several classes
of actions are not treated in connection with each cause of action, but
in the third and last part of the volume.
The arrangement under each subject requires the reader to analyze
closely his cause of action or defense ; and thus warns him, in prepar-
ing his proofs, not to overlook any element which the case may involve.
He should remember that he is necessarily assumed to have already
decided that his action will lie or his defense avail, and that whatever
may here be said upon that point is subordinate and incidental to the
PREFACE. V
main object, viz., to aid him in proving or disproving whatever allega-
tions in the pleading before him may be material, and to indicate the
various phases of the subject under which the evidence adduced may
or may not be admissible. The practitioner will find that such a close
analysis of the probative facts of a cause of action or defense, is of
the utmost value in giving him a mastery of the details of the case ;
and the student will find it. equally useful in leading him to an under-
standing of the law.
If the rules I lay down are stated with somewhat more conciseness
and certainty than is usual in law treatises, it is not because I have
consciously deferred too much to the authority of reported cases, but
because I believe that the main rules of proof now administered by our
courts, are capable of clear and precise statement, upon authority which
will usually be controlling at nisi prius. I have endeavored to present
them thus in the text : rules that are doubtful or of secondary value,
I have sought to indicate suitably in the notes.
Discussion of the cases cited, and their relative authority, has there-
fore been omitted ; my purpose being to cite those of importance and
value, and to state concisely and with certainty the resulting rules ; and
to cite cases of minor authority so far as they justly serve to extend,
qualify, or apply the doctrine of the leading authorities : otherwise to
omit them or refer to them as contra to the rule stated. In a work
covering so extended a field, it would be impracticable to cite all the
cases examined, and I have not sought to multiply but rather to sift
and select authorities.
Upon those questions on which the adjudications or statutes of dif-
ferent States are at variance, I have stated the rule which I understand
to prevail in New York, calling attention, however, to questions on
which there is a serious general difference of opinion ; such, for instance,
as the burden of proof as to contributory negligence, 1 the competency of
admissions and declarations of an assignor to impair the claim of his
assignee, 2 the effect of irregular indorsement, 3 and the like. In cases of
minor importance it is generally assumed that the reader will notice
any peculiar rule prevailing in his own jurisdiction.
Discussion of general principles has been out of place, except rarely
and in a limited degree, where it has seemed necessary, either to show
how those principles are now administered in the American courts
Pages 594-96. Pages 12, 13. Pages 436-40.
VI PREFACE.
somewhat differently than indicated in tho books, or to aid the reader
to meet vexed and unsettled questions.
In reviewing the work on which I have been so long engaged, and
the preparation for which has so constantly connected itself with pro-
fessional practice, I am not unconscious of imperfections and inequal-
ities in its execution ; but to the kindly consideration of the profession
I submit it, in the hope that it may often aid and seldom mislead.
AUSTIN ABBOTT.
TIMI-:S BUILDING, NEW YORK, May, 1880.
TABLE OF CONTENTS,
PART I.
EVIDENCE AFFECTING PARTICULAR CLASSES OF PARTIES.
CHAPTER I.
ACTIONS BY AND AGAINST ASSIGNEES.
PAGE
Rules applicable to assignees. . . 1
Allegation of assignment material 1
Requisite proof of assignment. 2
Implied assignment 2
Statute of frauds 3
Presumptive evidence 3
Consideration 4
Gift 4
Object, when material 5
Best and secondary evidence. .. 5
Proof of execution 6
Delivery and acceptance 6
Assignment with schedules 6
Assignment by corporation. ... 6
Authority of officer or agent. ... 7
Parol evidence to vary a writing 7
Equities against the assignee.. . 8
Jiona fide purchaser 8
Notice to debtor 8
Assignment for purpose of suit. . 8
or as collateral security 9
PAGE
22. Assignees in insolvency 9
23. in bankruptcy 9
24. Purchaser from official assignee. 9
25. Assignees for benefit of creditors. 10
26. Testimony of assignor 10
27. Assignor's declarations not com-
petent in favor of assignee ... 11
28. Their competency against as-
signee 11
29. if made before assignor was
owner 11
30. if made after he ceased to be
owner 11
31. if made during l.is ownership 12
32. Preliminary question 13
33. Distinction between declarations
and transactions. 13
34. Declarations admitted in case of
conspiracy 14
35. Receipt, <fec., of the assignor. ... 14
36. Notice to produce 14
CHAPTER II.
ACTIONS BY AND AGAINST ASSOCIATIONS.
1. Voluntary associations 15 | 2. Joint-stock companies, tc 16
CHAPTER III.
ACTIONS BY AND AGAINST CORPORATIONS.
I. PROVING CORPORATE EXISTENCE.
1. Pleading as to corporate existence 18
2. Strict proof not usually required. 18
3. Exceptional cases 19
4. Incorporation incidentally in issue 20
5. Legislative sanction necessary. . . 20
G. Domestic corporation General
law or charter 21
7. Evidence of authenticity of statute 21
8. Nationul bank * 22
9. Corporation of sister State 22
10. Corporation of foreign State 23
[vii]
vm
TABLE OF CONTENTS.
CHAPTER in. ACTIONS BY AND AGAINST CORPORATIONS continued.
11. Modes of proving </ facto exist-
ence , 23
12. Acceptance of charter 24
13. Organization under general law. 25
14. Official permission to do corpo-
rate business 26
15. Disregard of statute conditions. 26
16. Effect of proof of user 27
17. Mode of proving user 27
18. Admission of incorporation .... 28
19. Estoppel against the company .. 28
20. Estoppel against those dealing
with the company 29
21. Estoppel against members and
subscribers 29
22. The estoppel liberally applied . . 30
23. The general principle as to proof
of incorporation 30
24. Materiality of date 30
25. Misnomer 31
26. Fraud, forfeiture or non-user .... 31
II. CORPORATE POWERS IN GENERAL.
2*7. New powers 31
28. Distinction between original
powers of corporation and del-
egated powers of offici-r.s 32
29. Evidence of delegation of power 32
30. General presumptions as to cor-
porate act? 33
III. CONTRACTS BY A CORPORATION.
81. Implied promises 34
32. Simple contracts in writing 34
33. Sealed instruments 35
34. Corporate acceptance of deed, <fcc. 87
85. Contract ambiguous as to party . 37
TV. TORTS BY A CORPORATION.
36. False representations by meeting 37
37. Frauds by directors, <fec 38
38. Liability for wrongs by officers
or agents 38
V. MEETINGS AND BY-LAWS.
89. Evidence of regularity of meet-
ings 38
40. Acts by pnrol 89
41. Pleading by-laws, <fec 40
42. Proof of by-laws 40
VI. AUTHORITY OF OFFFCERS, AGENTS AND
MF.MBER8.
43. Evidence of appointment of offi-
cers and agents 40
44. Evidence of express authority. . 41
45. Implied scope of authority 41
46. Authority implied in title of office 42
47. Testimony of officer or agent. . . 43
48. Ratification 43
VII. ALMISSIONS, DECLARATIONS, AND
NOTICE.
49. Admissions and declarations of
members 43
50. Admissions and declarations of
officers and agents authorized
to speak 44
51. Admissions and declarations
made as part of the res gestce. 44
52. Admissions and declarations be-
fore incorporation 45
53. Notice 45
VIII. BOOKS AND PAPERS.
54. 'Corporation books and papers as
evidence 46
55. Statutory records 46
56. Minutes. of proceedings 46
57. Against whom evidence of cor-
porate acts is competent 48
58. The minutes not exclusively the
best evidence 48
59. Authentication of corporate books
when produced 40
60. Rough minutes 50
61. Competency of copies 50
62. Reports 61
63. Foundation for secondary evi-
dence C 1
64. Notice to produce 51
65. Parol evidence to vary corporate
minutes 51
66. Accounts and business entries. . 52
CHAPTER IV.
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
1. Nature of official character and
title 54
2. Necessity of proof of title, under
pleadings 55
8. Appropriate mode of proof 56
4. Effect of letters as evidence. ... 56
6. Impeaching the letters 57
6. Best and secondary evidence of
authority 58
7. Representative's declarations and
admissions competent against
the estate 58
8. The decedent'3 declarations and
admissions 69
TABLE OF CONTENTS.
IX
CHAPTER rv. ACTIONS BY AND AGAINST EXECUTORS, &c. continued.
9. Judgments 60
10. Testimony of the representative. 60
11. Testimony of interested persons
against the es'ate 60
12. The New York rule 62
IS. What parti t'S are excluded 62
14. "What interested witnesses are ex-
cluded 63
15. Assignor, or source of title, ex-
cluded 64
16. What persons are protected 64
17. Insanity 65
18. Objecting to the testimony 65
19. Preliminary question of compe-
tency. 66
20. Moving to strike out incompetent
part of testimony 66
21. Proof of an interview 67
22. What is a personal transaction or
communication 67
23. Indirect evidence 68
24. Effect of objecting party testify-
ing, <fec 69
25. Form of offer of testimony in re-
buttal 70
26. The United States courts' rule. . . 70
CHAPTER V.
ACTIONS BY AND AGAINST HEIES AND NEXT OF KIN, DEVISEES
AND LEGATEES.
I. DEATH.
1. Direct testimony 72
2. Registry of death or burial. ... 72
8. Presumptions of death and of the
time of death 73
4. Circumstances raising a natural
presumption of death 73
5. Voyages, and other special perils 74
6. Seven > ears' absence in case of
life estates 75
7. Seven years' rule in other cases. 75
8. Absence and inquiry 75
9. Rebutting the presumption 70
10. The time of presumed death. ... 77
11. The English rulo 77
12. The American rule 77
13. Survivorship in common casualty 78
II. MARRIAGE.
14. Burden of proof, and presump-
tions 79
15. Direct evidence of marriage. ... 79
16. Certificate or registry 80
17. Indirect evidence of marriage.. 81
18. Cohabitation and repute 81
19. Cohabitation and declarations.. 82
20. Marriage after meretricious in-
tercourse 82
21. Second marriage during absence. 83
22. Rebutting evidence of marriage. 84
23. Foreign law 85
III. ISSUE OR FAILURE OF ISSUE.
24. Burden of proof 85
25. Presumptions as to failure of issue 85
26. Escheat 86
27. Possibility of issue extinct 86
28. Registry of birth or baptism. ... 80
29. Consorting as a family 87
30. Direct testimony to age 87
81. Physician's testimony or account. 87
32. Legitimacy : Burden of proof and
presumptions 88
33. Parents' testimony and declara-
tions as to legitimacy 89
IV. HEARSAY AS TO FACTS OF FAMILY HIS-
TORY (PEDIGREE).
34. Grounds of receiving it: and its
weight 90
35. What facts are within the rule.. 90
36. By whose declarations such facts
may be proved 91
37. Family records 92
38. Other written declarations 93
39. General family repute 94
40. Declarations made in view of con-
troversy 95
41. Repute beyond the family Ac-
quaintance Newspaper notice
Insurance 95
42. Best and secondary evidence. ... 96
V. REGISTRY OF FACTS OF FAMILY HISTORY
(PEDIGREE).
43. Registries authorized by law. ... 97
44. Registries not authorized by law 98
45. Best and secondary evidence. ... 99
46. Impeaching the registry 99
VI. JUDICIAL RECORDS SHOWING FACTS OF
FAMILY HISTORY (PEDIGREE).
47. Letters of administration, <tc. . . . 100
48. Judgments and verdicts 100
VII. IDENTITY.
49. Necessity of proof 101
50. Mode of proof Iu2
TABLE OF CONTENTS.
CHAPTEB v. ACTIONS BY AND AGAINST HEIRS, NEXT OF KIN, &c. continued.
VIII. NATIONAL CHARACTER, AND DOMICILE.
51. Citizenship and alienage 1"2
62. Naturalization 102
63. Nature of tlie question of domicile 103
64. Presumptions and material facts. 103
65. Change of domicile 106
66. The intent 106
67. Evidence of residence and of in-
tent 107
IX. WILLS.
68. Presumptions, and burden of
proof as to intestacy 109
69. Domestic will proved by produc-
ing probate 109
60. Decree of probate court, how far
conclusive 110
61. Formalities of execution Ill
62. Testamentary capacity 113
63. Conduct and declarations of tes-
tator 115
64. Opinions as to mental soundness. 116
65. Hereditary insanity 119
66. Inquisitions and other adjudica-
tions 119
67. Undue influence, the burden of
proof .. 119
68. Indirect evidence 121
69. Relevant facts 121
70. Declarations and conduct of tes-
tator 122
71. Fraud 123
72. Revocation 123
73. Marring the document 123
74. Disappearance of the document. 124
75. Testator's declarations 124
76. Subsequent testamentary act. ... 126
77. Constructive revocations 125
78. Action to establish lost or de-
stroyed will 126
79. Foreign will 128
80. Ancient will 128
X. EXTRIKSIC EVIDENCE AFFECTING WILLS.
81. Effect of the statute of wills 128
82. Legitimate objects of extrinsic
evidence 129
83. Reasons for its liberal admission. 130
84. Reasons fr its strict exclusion. . 131
85. Exceptional rule as to evidence
in rebuttal 132
86. Extrinsic aid in reading 132
7. Alterations 133
88. Mistakes 134
89. Extrinsic aid in testing validity. 135
90. Rebutting evidence 136
91. Extrinsic aid in applying 136
92. in identifying the person.... 136
93. in case of names of relation-
chip 137
PAGE
94. in case of corporate designa-
tion 138
95. applying erroneous designa-
tion 138
96. rejecting false words 138
97. adverse claimants 139
98. circumstantial evidence of in-
tention 141
99. case of gifts to charities .... 141
100. or misnomer 142
101. direct evidence of intention. 143
102. aid in applying to the prop-
erty intended 143
103. identifying the property. . . . 144
104. rejecting false words 144
105. uncertainty as to which of
two parcels 145
106. nature of estate given 146
107. raising a trust 146
108. Extrinsic aid in executing the will 147
109. as to the administrative char-
acter of the gift 147
1 10. as to bequest to creditor .... 147
111. or to heirs or next of kin in
advance 148
112. as to presumptively cumula-
tive gifts 148
113. as to ademption 148
114. . as to charging legacies 149
115. as to execution of power. ... 150
116. Time of declarations bearing on
intention 150
XI. ADVANCEMENTS.
117. The general presumption 150
118. Advancement by deed of real
property 152
119. Purchase in name of child 152
1 20. Other transfers 153
121. Entries in account 154
122. Declarations and admissions as
to advancements 154
123. Value 155
124. Testamentary.clauses as to ad-
vancements 156
XII. TITLE, AND DECLARATIONS OF ANCES-
TOR, HEIR, <feo.
125. Ancestor's title, and successor's
election .... 156
126. Declarations and admissions of
the ancestor as to title, Ac. . . 157
127. Declarations of third persons. . 159
128. Declarations of successors, rep-
resentatives and beneficiaries. 159
129. Judgments 1 60
XIII. ACTION TO CHARGE HEIR, NEXT OF
KIN, <fec., WITH ANCESTOR'S DEBT.
130. Material facts 161
131. Mode of proof 161
TABLE OF CONTENTS.
CHAPTEE VI.
ACTIONS BY OR AGAINST HUSBAND OR WIFE.
I. GENERAL PRINCIPLES.
1. Marriage 163
2. Foreign law 164
8. Competency of husband or wife
as witness 164
4. Their admissions and declarations 105
6. Agency of ono for the other. . . . 167
6. Estoppel '. 167
7. Judgments 168
8. Evidence of husband's title. . . . . 1 68
9. Evidence of wife's title 169
10. Evidence of transfer by one to
the other 172
11. Tacit transfers 173
12. The old rule : presumption in fa-
vor of husband 173
13. The new rule: presumption in
favor of title 174
14. Evidence of his application of
her funds 1 74
15. Evidence or the wife's convey-
ance . . . 174
16. Impeaching her conveyance. ... 175
17. Evidence of wife's separate busi-
ness 175
II. ACTIONS BT OR AGAINST HUSBAND.
18. Actions by him founded on mari-
tal right 176
19. Defenses 17
20. Actions against him founded on
marital obligation 177
21. Actions founded on her agency . . 177
22. Defenses 177
23. Action for necessaries 178
24. Defenses ."..... 178
25. Causes of separation 179
III. ACTIONS BY A MARRIED WOMAN.
26. Pleading in her action on con-
tract 180
27. Evidence of the contract 180
28. Her action for tort 181
IV. ACTIONS AGAINST HER.
29. Pleading in action against her on
contract 181
30. Evidence of the contract 181
31. The making of the contract 182
32. The English rule as to charging
separate estate 182
33. The New York rule 183
34. direct benefit to separate es-
tate 184
35. Action against her for necessaries 185
36. Action against her for fraud. . . . 185
37. Husband's coercion of wife 185
CHAPTER VII.
ACTIONS AFFECTING PARTIES IN A JOINT OR COMMON INTER-
EST OR LIABILITY.
1. The general principle 186
2. Joint debtors 187
8. Defendants, absent or defaulted. 187
4. Admissions, <fec., of persons net
parties to the action 187
6. Admissions and declarations of
parties having a common in-
terest or liability 188
6. joint interest or liability.... 188
7. joint promisees 1 90
8. Notice 190
9. Declarations of conspirators or
confederates 190
10. Preliminary question as to con-
nection. . 191
CHAPTEE VIII.
ACTIONS BY AND AGAINST PUBLIC OFFICERS.
I. GENERAL PRINCIPLES.
1. Different proof of title, in differ-
ent cases 193
2. Legaltitle 19t
8. Contracts in official capacity .... 1 94
4. Acts by part of board or body. . 195
5. Demand and notice 196
6. Former judgments 196
II. ACTIONS BY OFFICERS.
7. Pleading by officer suing as such 196
8. Proof of title 196
zii
TABLE OF CONTENTS.
CHAPTER vm. ACTIONS BY AND AOAINST PUBLIC OFFICERS. continued.
9. Process as supporting a cause of
action 197
10. Return, adduced in his own ac-
tion.
197
11. Action for emoluments 197
III. ACTIONS AGAINST OFFICERS.
12. Plaintiff's pleading 198
13. Plain tiff's proof of the official
character of defendant or his
deputy 198
PAGE
14. Cause of action 198-
15. Return, as evidence against the
officer 199
16. Public action for refusing to
serve 200
17. Pleading by officer defendant. . . 201
18. Defendant's proof of official char-
acter in justification 201
19. Process as a protection to de-
fendant . 201
CHAPTEE IX.
ACTIONS BY, AGAINST, OR BETWEEN PARTNERS.
I. ACTIONS BY PARTNERS.
1. Allegation of partnership 203
2. Proof of partnership 204
3. Parol evidence to vary the con-
tract sued on 204
4. Firm books as evidence in favor
of the firm 205
5. Declarations 205
6. Defendant's evidence 205
7. Matter in abatement 205
II. ACTIONS AGAINST PARTNERS.
8. Allegation of partnership 206
9. 1'roof of partnership 206
10. Best and secondary evidence... 207
11. Indirect evidence of partnership. 207
12. Holding out to the public 208
13. Representations to particular
creditor 209
14. Admissions and declarations to
prove partnership 209
15. Hearsay 210
16. Ownership 210
17. Dormant and secret partners... 210
18. Community of profits; the com-
mon law rule 211
19. the English rule 212
20. Evidence in respect to date 212
21. Assumption of debts by incoming
partner 213
22. Variance as to number of part-
ners 213
23. Presumption of partner's author-
ity 214
24. Evidence as to the scope of the
business, <fec 214
25. Evidence of express authority. . 214
26. Question to whom credit was
given 216
27. Parol evidence to charge firm on
individual signature 216
28. of sealed instrument 216
29. Evidence of ratification 217
30. Evidence of deceit or fraud 217
31. Evidence of 'other torts 217
32. Admissions and declarations of
partners 218
33. Acts, admissions, <fec., after dis-
solution 218
34. Notice, tender and demand 219
35. Defendant's evidence to disprove
partnership '. . 220
36. Proving a limited partnership. . 220
37. Matter in abatement 221
38. Evidence of known want of au-
thority 222
39. Transactions in the interest of
one partner 222
40. Burden of proving dissolution
and notice 222
41. Mode of proving dissolution .... 223
42. notice 223
IIL RULES PECULIAR TO SURVIVING PART-
NERS.
43. Actions by survivor 224
44. Actions against survivor 225
45. Actions against representatives of
deceased partner 225
rV. ACTIONS BETWEEN PARTNERS.
46. Allegation and burden of proof
of partnership 226
47. Proof of partnership 226
48. Order of proof 227
49. Evidence of firm or individual
transactions 228
50. Title to real property 228
51. Evidence to charge member with
assets 229
52. Evidence to credit member with
payments or share 229
53. Partnership books, <fcc., as evi-
dence 229
54. Evidence of voluntary settle-
ment 230
TABLE OF CONTENTS.
Xlll
CHAPTER X.
ACTIONS BY AND AGAINST RECEIVERS.
1. Allegation of appointment, and
right of action 231
2. Evidence of appointment 231
3. Leave to sue 232
PAGE
4. Evidence of transactions of de-
fendant 232
6. Action against receiver 232
CHAPTEE XI.
ACTIONS BY AND AGAINST TRUSTEES.
1. Express trusts 233
2. Demand before suit, and notice. . 234
3. Trustees' receipts 235
4. Compromises 235
6. Justification of dealings with the
estate 236
6. Admissions and declarations of
the ccstui que trust 236
7. Admissions and declarations of
the trustee 238
8. Judgments 237
9. Presumption of conveyance by
trustee 237
10. Constructive and resulting trusts. 237
PART II.
EVIDENCE AFFECTING PARTICULAR CAUSES OF ACTION.
CHAPTER
ACTIONS FOR MONEY LENT.
1. Grounds of action
2. Delivery of money not enough. .
8. Direct testimony to loan
4. Delivery to third person
6. To which of several was credit
given
6. Request
7. Authority of agent
8. Parties to joint adventure. . .
9. Joint debtors
10. Written evidence
1 1. Due bill
12. Defendant's check in favor
plaintiff
239
240
240
240
243
244
of
244
13. Defendant's checks on plaintiff. . 244
14. Defendant's receipt 244
15. Plaintiff's check 244
16. Plaintiff's account books 245
17. Character in which the parties
dealt 246
18. Connected and collateral agree-
ments 246
19. Mortgage 247
20. Medium of repayment 247
21. Defenses; Disproving loan 247
22. Illegality 248
XIV
TABLE OF CONTENTS.
CHAPTER XIII.
MONEY PAID TO DEFENDANT'S USE.
PAGE
1. Grounds of action 249
2. Previous request, or previous
promise to reimburse 250
3. Pnrol evidence to vary a writing 251
4. Subsequent promise to reimburse 251
6. Agent's action against principal. 252
G. Obligation to pay what defendant
ought rather to have paid. . . . 253
7. Surety's action against principal
or co-surety 254
8. Implied promise to indemnify . . 256
9. Action between parties to nego-
tiable paper 257
10. Proof of payment 258
11. by oral evidence 258
12. by producing defendant's or-
der in favor of third person. . 259
13. by plaintiff's check or accounts 259
14. by the payee's receipt or sur-
render of evidence of debt . . . 260
15. Judgment agsiinst plaintiff in ac-
tion of which defendant had
notice 261
16 Medium of payment 263
17. Amount 264
18. Source of the fund paid 264
19. Object and application of the pay-
ment 265
20. Demand and notice 265
21. Defenses 266
CHAPTEE XIV.
ACTIONS TO RECOVER BACK MONEY PAID BY PLAINTIFF TO
DEFENDANT UNDER MISTAKE, DURESS, EXACTION OR FRAUD,
OR THE CONSIDERATION FOR WHICH HAS FAILED.
1. The payment 268
2. Mistake 268
3. Subsequent promise to repay . . . 270
4. Forged or counterfeit paper .... 270
5. Duress 270
6. Fraud 271
7. Failure of consideration . . . 272
CHAPTEE XV.
ACTIONS FOR MONEY RECEIVED BY DEFENDANT TO PLAINT-
IFF'S USE.
1. Grounds of action 273
2. The pleadings 273
3. Plaintiff's title to the fund 274
4. The receipt of the money by de-
fendant 275
5. by an agent of defendant .... 276
6. The medium and amount of pay-
ment ,. 277
7. Action by depositor against bank 277
8. Bank's action for over -draft .... 279
9. Action by principal against his
agent 279
10. Demand and notice 281
11. Defendant's evidence .. . 281
CHAPTEE XVI.
ACTIONS ARISING ON SALES OF PERSONAL PROPERTY.
I. ACTIONS FOR THE PRICE OF GOODS, <fcc.
1. Grounds of action 285
2. Plaintiff's title to the goods, <fec. 286
3. License to sell. . . 287
4. Ordinary sale by delivery 287
5. Evidence of express agreement. . 287
6. made by letter or telegram . . 289
7. Requisite memorandum under
statute of frauds 292
8. General rule as to explaining
writing by parol 294
9. General rule as to proof of usnge. 296
10. Plaintiff the real party in interest,
though not so named in contract. 298
TABLE OF CONTENTS.
XV
CHAPTER xvi. ACTIONS ARISING ON SALES OF PERSONAL PROPERTY. cont.
11. Purchase by defendant's agent. . 298
12. Defendant liable as undisclosed
principal 300
13. Defendant liable though acting
as agent 801
14. Assumption of order originally
given by a third person .... 302
15. Question to whom credit was
given 802
16. Identifying the thing agreed for. 303
17. Quality und description 803
18. Quantity 304
19. Price agreed 805
20. Value 30(3
21. Market value. 307
22. Prices current 309
23. Opinions of witnesses as to qual-
ity nnd value 310
24. Time for performance or pay-
ment : 312
25. Conditions and warranties 813
28. Options 813
27. Subsequent modification 8M-
28. Delivery or offer 811
29. Delivery through carrier 813
30. Tender... 316
31. Packing and freight 316
32. The passing of the title 316
83. Delivery to satisfy the statute of
frauds 318
34. Part payment to satisfy the stat-
ute of frauds 319
35. Various rules admitting docu-
ments otherwise incompetent. 319
36. Contemporaneous memoranda. .. 819
37. Memoranda refreshing memory. . 820
38. Memoranda made by a third per-
son in the usual course of busi-
ness 322
39. Shop-books and other accounts
of a party offered in his own
favor 322
40. When using part of an account
admits the rest 326
41. Memoranda as part of the na
ffcstce 326
42. Admissions and promises to pay. 82<i
43. Auction sules 327
44. Sales through a broker 828
45. Demand 830
46. Interest 830
47. Non-payment 831
II. DEFENDANT'S CASK.
48. Denial of contract 332
49. Set-off against plaintiff's agent. . 333
60. Denial of ngency binding defend-
ant .. 333
51. Plaintiff an agent for defendant. . 333
52. Defendant not the buyer, but
agent for another .......... 334
53. By bidding at auction. ......... 834
54. Rescission .................... 334
55. Recoupment ................ 335
56. Defects in title, quantity or qual-
ity ........................ 335
57. Deceit ....................... 336
58. Inconsistent remedies .......... 836
59. Wager contracts .............. 836
III. ACTION AGAINST BUYER, FOR DAMAGES
FOR NOT ACCEPTING.
60. General principles ............ 836
61. Readiness to perform .......... 337
IV. ACTION AGAINST SELLER FOR NON-DE-
LIVERY.
62. General principles ......... ... 337
63. Orders, and acceptance ........ 337
G4. Readiness to perform .......... 338
65. Object in buying ............. 338
6(5. Defendant's case. Only an agent. 839
67. intermediate destruction of
thing sold ................. 339
V. ACTIONS AND DEFENSES ARISING ONT
BREACH OF WARRANTY.
68.
09.
70.
71.
72.
73.
74.
Grounds of the action 339
Pleading 339
Warranty of things in action . . . 340
Warranty of title 340
Express warranty 340
Agent's authority to warrant. . . 341
Implied warranty on an executed
sale 842
75. on sale partly or wholly exec-
utory 843
76. Sale by sample 3
77. Presumption of knowledge 344
78. Parol evidence of warranty on
written sale 344
79. Parol evidence to explain war-
r mty 845
80. Variance in the contract, and
breach 845
Breach 846
Opinions of witnesses
Admissions and declarations . .
Omission to return the article .
Damages
Disproof of implied warranty..
Buyer's knowledge of defect. . .
Seller's good faith.
81.
82.
83.
84.
85.
86.
87.
88.
89. Former adjudication 350
347
348
348
348
349
349
849
XVI
TABLE OF CONTENTS.
CHAPTER XVII.
ACTIONS FOR USE AND OCCUPATION OF REAL PROPERTY.
PAGE
1. Grounds of the action 861
2. The relation of landlord and ten-
ant 851
3. Express agreement 852
4. Parties 863
6. Defendant's occupation 863
6. Measure of recovery 864
7. Admissions and declarations. ... 356
CHAPTER XVIII.
ACTIONS FOR THE HIRE OF PERSONAL PROPERTY.
1. Agreement to pay 356 | 2. Value
356
CHAPTER XIX.
ACTIONS ARISING ON CONTRACTS FOR SERVICES.
I. ACTIONS FOR COMPENSATION BY THE PER-
SON EMPLOYED.
1. Grounds of action 857
2. License 858
3. Implied contract 358
4. Presumption that service was
gratuitous 859
6. Admissions and promises 360
6. Question who was employer .... 860
7. Declarations of employees 361
8. Express contract when admissible
under general allegation 361
9. Express contract, if subsisting,
must be put in evidence 862
10. What are contracts within the
rule 362
II. Extra work 862
12. Variances 363
13. Requisite memorandum under
statute of frauds 363
14. Oral evidence to vary writing .. 864
1 5. Kind of service 865
16. Measurement 365
17. Term of service; holidays, "day's
work," <fec 365
18. Rate of compensation 366
19. Fixed price, or quantum meruit.. 367
20. Value of service 368
21. Bill rendered not a limit 868
22. Opinions of witnesses 368
23. Modification of contract 37o
24. Performance ... - 870
25. Certificates of performance 871
26. Excuse 372
27. Shop-books and other accounts of
a party offered in his own
favor 872
28. Defenses what admissible under
denial 373
29. Disproof of employment 374
oO. Payment 875
31. Former adjudication 375
32. Limitations 375
II. RULES PECULIARLY APPLICABLE TO PAR-
TICULAR KIND9 OF SERVICE.
Advertising 376
Artists; architects; authors.... 376
Attorney and counsel 377
Board and lodging 379
Brokers 879
Officers and promoters of corpo-
rations 880
Parent and child 882
Physicians, <fec 382
Rewards 383
ACTIONS FOR WRONGFUL DISMISSAL, or
REFUSAL TO RECEIVE.
Dismissal or refusal 884
Defenses 384
CHAPTER XX.
ACTIONS ON VARIOUS EXPRESS PROMISES TO PAY MONEY.
1. General princip'es 885
2. Promise to pay purchase-money . 885
8. incurnbrance 886
4. Promise to third person to pay
plaintiff 886
5. Promise to plaintiff to pay third
person 886
TABLE OF CONTENTS.
XVU
OHAPTEE XXI.
ACTIONS ON NEGOTIABLE PAPER.
L RULES APPLICABLE TO NEGOTIABLE PAPER
GENERALLY
PAGE
1. General order of proof. 389
2. Production 389
3. Lost or destroyed paper 890
4. Proof of execution 391
6. Admissions 392
6. Testimony of supposed writer. . . 392
7. Direct testimony to particular
signature 393
8. Witness who knows the hand-
writing generally 893
9. Means of knowledge 394
10. Opinion or belief. 395
11. Refreshing memory 895
12. Testing the witness 396
13. Comparison of hands 396
14. Opinions of witnesses 896
15. Matters of description 397
16. Qualifications of witness 398
17. Photographs 398
18. Mark 398
19. Identity of names 398
20. Fictitious person 399
21. Joint makers, <fec 899
22. Married women 399
23. Agent's signature 399
24. Partnership signature 400
25. Corporation paper 401
26. Oral evidence to show real party 402
27. Evidences of title 403
28. Delivery 404
29. Consideration 404
80. Accommodation paper 406
81. Alterations 406
32. How pleaded 407
83. Mode of proof 407
34. Blanks 408
35. Marks of cancellation. . 408
86. General rule as to oral evidence
to vary 409
87. Date 409
38. Time of payment 409
89. Amount 410
40. Medium 410
41. Interest 411
42. Place of payment 411
43. Defeasance 412
44. Particular fund ; agreement to
Bet-off to renew 412
45. Subsequent modification 413
46. Indorsement ' 413
47. Oral evidence to vary an indorse-
ment 414
48. Indorsement as a transfer of title. 4 1 5
49. Demand 416
60. Non-payment 416
61. Indorsements of payments, <fcc. .. 416
B
52. Competency of a party to the in-
strument to impeach it. The
New York rule 416
53. the United States' Court rule 416
54. Admissions and declarations. ... 417
55. Foreign law 418
II. ACTION BY PAYEE (OR ORIGINAL " BEAR-
ER ") AGAINST MAKE it.
56. Plaintiff's case 418
III. ACTION 'AGAINST ACCEPTOR.
57. Acceptance 419
58. Other facts 420
59. Promise to accept 420
60. Several parts, or duplicates 421
IV. ACTION AGAINST DRAWER J ON NON-
ACCEPTANCE.
61. Refusal to accept 421
G2. Excuse for non-presentment.... 421
"V. AGAINST DRAWER, <fcc. ; ON NON-PAY-
MENT.
63. Acceptance and presentment. . . . 422
YL ACTIONS AGAINST INDORSEES, <fec.
64. Execution of the instrument. ... 422
65. Pleading facts to charge indorser 423
C6. Cogency of the evidence 423
67. Time of demand 423
G8. Place of demand 424
G9. Authority to demand 424
70. Identity of maker or drawe. or
authority of agent or servant. 424
71. Production of the instrument. . . 4'J5
7'3. Due diligence in demand 425
73. Official protest as evidence 425
74. Sealed certificate 428
75. Unsealed certificate 4 '28
76. Copy 428
77. Secondary evidence of statutory
certificate 428
78. Memoranda to refresh memor\-. . 429
79. Memoranda of deceased person. . 429
80. Legal notice to charge indorser. 430
81. Identity of person served 430
82. Executors and administrators. . . 430
83. Time of service 430
84. Actual notice 430
85. Due diligence by the holder. . . . 431
86. Place of directing notice 431
87. Due diligence in inquiry 4S2
88. Evidence of tho contents of the
notice 432
TABLE OF CONTENTS.
CHAPTER xxi. ACTIONS ON NEGOTIABLE PAPER continued.
89. Extrinsic evidence as to imper-
fect notice 432
90. Mailing 433
9 1 . Inference of delivery or mailing,
from ordinary course of busi-
ness 433
92. Admissions of demand made and
notice received 434
93. Indirect evidence of notice. 1 . . 435
94. Waiver of demand or notice. .. 435
95. Want of funds as an excuse. . ... 436
VII. IRREGULAR INDORSEMENT.
96. Paper against irregular in-
dorser: New York doctrine. 436
97. defenses 438
98. subsequent transferee against
irregular indorser 438
99. The United States Court doc-
trine 438
100. Oral evidence to vary the ascer-
tained contract 440
VIIL DEFENSES GENERALLY.
101. Defenses avr.il ble against nil
holders, whether bonaf.de or
otherwise 440
102. Failure of want of consideration 4,1
103. Accommodation paper 442
104. Fraud 443
105. Duress 443
106. Impeaching plaintiff's title. ... 443
107. Collateral security : 4 44
108. Transfer after maturity 445
109. Suretyship and dealing with
principal 445
110. Payment 446
111. Qualifying agreement 447
IX. DEFENDANT'S EVIDENCE TO REQUTR*
PLAINTIFF TO PROVE TITLE AS A HOLD-
ER FOU VALUE BEFORE MATURITY.
PAGE
112. The general rule 447
113. Failure or want of consideration 448
X. PLAINTIFF'S EVIDENCE OF TITLE AS HOLD-
ER FOR VALUE BEFORE MATURITY'.
114. Burden of proof 448
115. Evidence that transfer was be-
fore maturity 448
1 16. and before notice 449
117. and for value 449
118. Evidence of good faith 449
119. "Taking up" 449
XI. DEFENDANT'S EVIDENCE THAT PLAINTIFF
19 NOT A HOLDER IN GOOD FAITH.
120. Bar! faith.... 450
121. Notice. 450
1 22. Negligence 461
XTI. MUNICIPAL AND OTHER COUPON BONDS.
123. Title 451
124. Evidence of regularity and
power ...... 452
125. Notice of defect, <fcc 452
XIII. BANK CHECKS.
126. Stamp 453
127. Title 4:.3
1 28. Oral evidence to vary 453
] 29. Laches 454
] 3'*. Action against drawer 454
131. Action against the bank 454
XIV. STOCK AND PREMIUM NOTES.
1 32. Stuck notes 455
133. Premium notes 455
1 34. Losses and assessments 455
135. Defenses 456
CHAPTER XXII.
ACTIONS ON NON-NEGOTIABLE PROMISSORY NOTES.
Peculiar rules 47
CHAPTEE XXIII.
ACTIONS ON ACCOUNTS STATED.
1. Grounds of action 458
2. Pleading 458
8. Character of the parties 459
4. The account and its statement . . . 459
6. The promise 459
6. Testimony of witness : Production
of account 460
7. Resgestce 4(U
8. Express assent 461
9. Tacit assent to nccount rendered 461
10. Defendant's evidence to disprove
assent 462
1 1. Incapacity 462
12. Impeaching the account itself. .. 462
13. Consideration 463
14. Omissions and errors 463
15. Offsets 463
16. Limitations. . . 461
TABLE OP CONTENTS.
XIX
CHAPTER XXIV.
ACTIONS ON AWARDS.
PAGE
1. Fact of submission 465
2. Its scope 466
8. Promise to abide award 466
4. Umpire, Ac 466
5. Oath 466
6. Enlargement of time 466
7. Making award 467
8. Presumptions in favor of awards . 467
9. Extrinsic evidence to vary 468
10. Effect of award 468
11. Competency of arbitrator as wit-
ness 468
12. Defenses ; Pleading 469
13. omissions; Excess of author-
ity 469
14. other objections 470
CHAPTEE XXV.
ACTIONS ON GUARANTIES.
1. Oral contract 471
2. Promise to answer for debt, <fec., of
another 471
3. Execution of contracts 472
4. Consideration 472
6. Rules oi' interpretation 473
6. Oral evidence to vary 473
7. Transactions under the guaranty 474
8. Non-payment or non-perform-
ance 474
9. Admissions and declarations of
principal debtor 474
10. Judgments 475
1 1. Defenses 475
CHAPTEE XXVI.
ACTIONS ON CONTRACTS OF INSURANCE.
I. GENERAL BULBS.
1. Action on preliminary agreement 476
2. Execution of policy 477
8. Delivery 478
4. The application 478
6. Authority and scope of agency. . 480
6. Payment of premium 481
7. Waiver of non-payment; Excuse
for failure 481
8. Renewal 482
9. Ordinary course of proof. Prima
facie case 482
10. Warranties , 482
11. General rule as to oral evidence
to vary policy 483
12. Circular or prospectus 484
13. Mistake 485
14. Usage 485
15. Ownership or insurable interest. 486
16. Mode of proving ownership 487
17. The peril 488
18. Loss 488
19. Value ; Damage 489
20. Preliminary proofs 489
21. Notice to company 490
22. Waiver of conditions or forfeit-
ure 491
23. Adjustment 491
24. Declarations and admissions of
officers and agents 492
25. Defenses 492
26. false representations 492
27. false warranty 492
28. concealment . . . . '. 493
29. materiality to the risk 493
30. over-valuation 494
31. charge of crime 494
II. RULES PECULIARLY APPLICABLE TO MA-
BINE INSURANCE.
32. Interest 4P6
33. Warranties 496
34. Seaworthiness 496
35. Rating 498
36. Shipment 498
37. The voyage 499
88. Weather 499
89. Loss 499
40. Barratry 600
III. RULES PECULIARLY APPLICABLE TO LIFE
AND ACCIDENT INSURANCE.
41. Disease ; Death 601
42. Suicide and insanity . . 601
43. Declarations and admissions of
the subject 602
44. Accident insurance 603
TABLE OF CONTENTS.
CHAPTER XXVII.
ACTIONS ON BONDS, COVENANTS, AND OTHER SEALED IN-
STRUMENTS.
I. GENERAL BULBS.
PAGE
1. The making of the contract 604
2. Execution 604
8. Seal 606
4. Sealed authority 606
6. Statutory conditions 606
6. Delivery 607
7. Qualified delivery 607
8. Escrow 607
9. Acceptance 607
10. Date 608
11. Consideration 608
12. Oral evidence to vary the obliga-
tion 608
13. Practical construction 609
14. Lost instrument 610
15. Subsequent modification 510
16. Breach 510
17. Damages 611
18. Fraud; Failure of consideration . 611
19. Reformation 612
20. Declarations and admissions of
principal 613
II. BONDS.
21. Estoppel by recital 513
PAGB
22. Breach 614
23. Administration bonds 614
24. Bottomry bonds 616
25. Indemnity bonds 616
26. Official bonds 616
III. ClIARTER-PARTIES.
27. General rule as to oral evidence
to vary 617
28. Usage 617
29. Terms; measurement; cargo;
capacity 517
30. Performance 518
31. Damages 618
32. Demurrage, or damages for de-
tention 518
IY. COVENANTS FOB TITLE.
33. Implied covenants 619
34. Covenant of warranty 619
35. of seizin and right to convey. 620
36. against incumbrances ../... 620
37. for quiet possession or enjoy-
ment 620
CHAPTER XXVIII.
ACTIONS ON LEASES.
1 . Allegation of lease 622
2. Mode of proving the contract. . . 623
8. Conditional delivery 624
4. General rule as to oral evidence
to vary 624
6. Parties 525
6. Usage 525
7. Practical construction 626
8. Implied covenants . . 526
9. Identifi'ing the premises 527
10. The date and term 627
11. Rate of rent 527
12. Plaintiff's title .528
13. Possession not essential 528
14. Tenant's estoppel 628
15. Adverse title 630
16. Forfeiture 530
17. Assignment 631
18. Demand 682
19. Repairs 632
20. Surrender ; destruction of prem-
ises 532
21. Apportionment 633
22. Payment 633
23. Eviction 634
24. Acts of waste . 634
CHAPTER XXIX.
ACTIONS ON JUDGMENTS.
I. GENERAL PRINCIPLES.
1. The several modes of proof 635
2. Certified copies 535
S. Exemplifications 636
4. Sworn copies 536
5. Imperfect records, etc 686
6. Lost judgment 588
7. Date 638
8. Identity of parties 638
9. Docketing 689
TABLE OF CONTENTS.
XXI
CHAPTER xxix. ACTIONS ON JUDGMENTS continued.
10. Impeaching 639
11. Reversal 539
12. Satisfaction 639
II. JUDGMENTS OF COURTS WITHIN THE
STATE.
13. The New York practice 540
14. Justice's judgment 640
III. RULES PECULIAR TO JUDGMENTS OF
COURTS OF SISTER STATES, <fec.
15. Different methods of proof 641
16. What judgments may be proved
under the act .... 641
1 7. Requisites of proof under the act. 542
18. Certifying officers 642
1 9. Clerk's attestation 643
20. Seal 643
21. Judge's certificate 643
22. Presumption in favor of jurisdic-
tion . . . 644
PAGE
23. Service 646
24. Constructive service 647
25. Appearance 648
26. Effect of judgment 648
27. Justice's judgment 649
28. Former adjudication 649
29. Appeal pending . . 649
30. Limitations 649
IY. UNITED STATES COURTS AND THEIB
JUDGME^S.
31. Judgments of those courts proved
elsewhere 649
32. The practice in the United States'
courts 550
Y. FOREIGN JUDGMENTS.
33. Mode of proof 650
34. Effect 651
CHAPTER XXX.
ACTIONS AGAINST BAILEES, AGENTS, &o.
I. GENERAL PRINCIPLES.
1. Grounds of action 552
2. Contract? of bailment 653
3. Oral evidence to vary writing . . 653
4. Plaintiff's title ; bailee's estoppel. 654
6. Eviction 654
6. Burden of proof as to breach of
duty 555
7. Qualified refusal 5">t>
8. Value and damage 557
II. SPECIAL CLASSES OF BAILEES AND
AGENTS.
9. Gratuitous bailments 657
10. Attorneys 657
11. Brokers 568
1 2. Collecting bankers 658
13. Factors 659
14. Forwarders 660
15. Hirers of chattels 660
16. Innkeepers 660
17. Pledgees 661
18. Tows 661
19. Warehousemen 662
20. Wharfingers; place-hire 662
III. ACTIONS AGAINST COMMON CARRIERS
OF GOODS.
21. Defendant a common carrier. . . . 663
22. Delivery to carrier 6C3
23. Authority of receiving agent . . . 664
24. Implied contract 665
23. Address; instructions; "C. O. D." 565
26. Express contract 565
27. Authority to make special con-
tract 666
28. Description of goods 666
29. Amount 666
30. Condition 666
31. Instructions: route: terminus.. 667
32. Stowage 668
33. Time : delay 668
34. Burden of proof as to loss, and
cause of loss 669
35. Contract of connecting lines. . . . 670
36. Non-delivery 670
37. Negligence 671
88. Cause of injury 671
39. Theft or robbery 672
40. Conversion 672
41. Plaintiffs title 672
42. Oral evidence to explain or vary
bill or receipt 673
43. Usage 673
44. Declarations of agents 678
45. Defenses : generally 673
46. contract for restricted liability 674
47. evidence of shipper's assent;
the New York rule 674
48. the Illinois rule 675
49. fraud as to value 675
60. -. limited liability under the act
of Congress.. 676
xxii
TABLE OF CONTENTS.
CHAPTER xxx. ACTIONS AGAINST BAILEES, AGENTS, &c. continued*
PAGE
51. Carriers' delivery; Notice to con-
signees 576
62. "Act of God"; Inevitable acci-
dent 677
TV. ACTIONS AGAINST COMMON CARRIERS
OF PASSENGERS AM> BAGGAGE.
63. Plaintiff a passenger 677
64. Express contract ; Ticket 678
FACE
65. Authority of agency 579
56. Baggage 679
67. loss or non-delivery 680
68. Negligence 680
69. Authority of servant 680
60. Damages 6bO
61. Defenses: Restrictions of liabil-
ity; Extrinsic evidence to
vary ticket 681
62. contributory negligence 681
CHAPTER XXXI.
ACTIONS FOR NEGLIGENCE.
I. GENERAL RULES.
1. Burden of proof 682
2. The pleading 683
8. Elements of direct proof 683
4. Degrees of negligence 688
6. Privity 583
6. The casualty aa evidence of neg-
ligence 683
7. Other negligences 684
8. Time of existence of defect 585
9. Other defects 685
10. Incompetency 585
11. Reputation 685
1 2. Intemperance 685
13. Opinions of witnesses 686
14. Declarations and admissions gen-
erally 687
15. Plaintiff's declarations 687
16. Defendant's admissions, declara-
tions, and conduct 687
17. Admissions and declarations of
servants, <fcc 688
18. of third person injured 689
19. Strangers 689
20. Violation of statute 689
21. of municipal ordinance 590
22. Usage 690
23. Ownership of the thing causing
the injury 690
24. Connection of cause with injury. 691
25. Notice of defect: Request 691
26. The delinquent an agent or serv-
ant of defendant 691
. 27. Contractor or servant 692
28. Common employment 592
29. Negligent employment of unfit
servant. . . . 693
! 30. Plaintiff's title 694
81. Manner of injury 594
32. Condition of person or thing in-
jured 694
33. Burden of proof as to contribu-
tory negligence 694
34. the United States court rule.. 695
35. the Massachusetts rule 695
36. _ the New York rule 696
37. Disproving contributory negli-
gence . 697
38. Contributory negligence of in-
fants 597
39. Effect of peril on witnesses 698
40. Damages 698
41. Loss of earnings : 698
42. Suffering and impaired powers. . 698
43. Continuing effect 599
44. Testimony of the party 699
45. Expressions of Buffering . ; 599
46. Opinions of witnesses 600
47. Plaintiff's family and circum-
stances 601
48. Defendant's wealth 601
49. Exemplary damages 601
60. Action for causing death 601
IL DEFENSES.
61. Disproof of negligence 602
52. Advice 602
53. Former acquittal 602
54. Plaintiff's contributory riegli-
gence 602
65. Plaintiff's conduct illegal 603
66. Mitigation 603
CHAPTER XXXII.
ACTIONS AGAINST TELEGRAPH COMPANIES.
3. Damages
1. The undertaking to carry 604
2. Burden of proof as to cause of
error . . . 604
604
TABLE OF CONTENTS.
xxiii
CHAPTER XXXIII.
ACTIONS BY AND AGAINST SHERIFFS, CONSTABLES AND
MARSHALS.
1. Official character and acts 605
2. Officer's action against receiptor.. 605
8. Officer's action for conversion or
trespass 605
4. for price of goods sold 606
5. . against attorney or party, for
fees 606
6. Action against officer, for failure
to serve or collect process . . . 606
7. defenses 606
8. Action against officer for storage 607
PAGE
9. for loss of property from ens-
tody 608
10. for failure to pay over 608
11. for taking insufficient security. 608
12. for escape 609
13. defense*. 610
14. Action for failure to return 610
15. for false return 611
16. Admissions, declarations, and
conduct of deputies, etc. ... 612
CHAPTEE XXXIV.
ACTIONS FOR DECEIT OR FRAUD.
1. Frame of the action 614
2. The representation 614
8. Liberal rule of evidence ; cogency. 615
4. Falsity ... 616
6. as to solvency, <fec 616
6. reason to believe one insolvent,
<fec 617
7. Scienter 618
8. Intent to deceive 618
9. Plaintiff's reliance on the repre-
sentations 619
10. Damages 619
11. Oral evidence to vary writing . . 619
12. Testimony of the parties 620
13. Declarations of conspirators. ... 621
14. Defenses 621
15. former adjudication 621
CHAPTEE XXXV.
ACTIONS FOR CONVERSION.
1. Frame of the complaint 622
2. The existence and identity of the
thing 622
3. Plaintiff's title 623
4. Possession as evidence of title. . . . 623
5. Mode of proving possession 623
6. Mode of proving source of title . . 623
7. Title of mortgage 625
8. Equitable title: Lien 625
9. Plaintiff owner, notwithstanding
void sale 625
10. The conversion 626
11. Demand 627
12. Value 627
13. Declarations of former owner. . . 6'J7
14. Title in defense 627
15. Title derived through wrong-
doer 628
16. Illegality 628
17. Mitigation of damages 628
CHAPTEE XXXVI.
ACTIONS FOR TRESPASS TO PERSONAL PROPERTY.
1. Plaintiff's title or possession 629
2. The act of trespass 629
8. Value and damages 629
4. Admissions and declarations 630
6. Character 630
6. Action for wrongful levy 680
7. defendant's sanction 681
8. justification 681
9. exemption from execution . . . 688
10. Justification by tax collector . . . 683
XXIV
TABLE OF CONTENTS.
CHAPTEE XXXVII.
ACTIONS FOR TRESPASS TO REAL PROPERTY.
6. Defenses; Disproof of trespass .. 637
7. justification 637
8. defendant's title and possession 687
9. easements 638
10. license 638
1. Plaintiff's title 634
2. Possession 685
3. Acts of trespass 635
4. The purpose of an act 686
5. Damages 636
CHAPTER XXXVIII.
ACTIONS FOR NUISANCE.
1. Plaintiff's title and possession. . . . 640
2. Easements 640
8. Highway . ^ 64 1
4. Defendant's title 641
5. The nuisance 641
6. The injury 642
7. Cause and effect 642
8. Notice and request to abate .... 643
9. Damages 643
10. Former adjudication 643
1 1. Defendant's right or title 648
12. Reasonable care, etc 644
CHAPTER XXXIX.
ACTIONS FOR INJURIES BY ANIMALS.
1. Wild beasts 645 I 3. Notice
2. Dangerous character 645 |
645
CHAPTER XL.
ACTIONS FOR ASSAULT AND BATTERY.
1. Assault, by whom committed. . . . 646
2. By servant, <fec 646
3. Manner and circumstances 647
4. Plaintiff the aggressor 647
5. Intent or motive 648
6. The res gestcB of an assault 648
7. Criminal conviction 649
8. Admissions and declarations .... 649
9. Requisite cogency of evidence . . 649
10. The injury and damages ....... 649
11. Defenses : Justification 650
12. plaintiff the aggressor 650
13. provocation 650
14. character 651
15. previous punishment 651
CHAPTER XLI.
ACTIONS FOR MALICIOUS PROSECUTION.
1. Grounds of action 652
2. The prosecution 652
3. Defendant's agency 653
4. Several co-defendants 653
5. Plaintiff's innocence 653
6. Want of probable cause 663
7. Malice , . 654
8. Termination of the proceeding. . 664
9. Damages 654
10. Defenses; Truth of the charge .. 655
11. probable cause 655
12. freedom from malice 655
13. advice of counsel 655
TABLE OF CONTENTS.
XXV
CHAPTEE XLII.
ACTIONS FOR FALSE IMPRISONMENT.
1. General rules 667
2. Grounds of action 66*7
3. Legal process, dec. 657
4. Damages
5. Justification and mitigation.
PAGE
. 667
. 667
CHAPTEE XLIII.
ACTIONS FOR SLANDER OR LIBEL.
1. Order of proof 669
2. Inducement 669
8. Plaintiff's vocation, <fcc 669
4. Good repute 660
6. Slander 660
6. its utterance 661
7. Publication of libel 662
8. Place and time of publication . . . 663
9. contents 663
10. Meaning of ambiguous words . . . 664
11. Their application to the plaintiff. 665
12. Circulation 665
13. Falsity 665
14. Malice 666
15. Action on privileged communica-
tion 667
16. Slander of title 668
17. Damages 668
18. Defenses : Explaining the words 669
19. pri vileged communication. ... 670
20. justification 670
21. former adjudication 671
22. mitigation 672
23. plaintiff's character 673
24. mode of proving character . . . 674
25. Rebuttal 674
CHAPTEE XLIV.
ACTIONS FOR BREACH OF PROMISE OF MARRIAGE.
1. Mutual promises 676
2. Letters 677
8. Affection 677
4. Breach 678
5. Damages 678
6. Defenses 678
7. justification of breach 679
8. mitigation 679
CHAPTEE XLV.
ACTIONS FOR SEDUCTION OR ENTICING AWAY.
1. Husband's action 681
2. Master's action 681
8. Parent's action 681
4. Seduction . 682
5. Loss of service 682
6. Good faith 682
7. Character 682
8. Defenses. 688
CHAPTEE XL VI.
ACTIONS FOR CRIMINAL CONVERSATION.
1. Competency of witnesses 684
2. M Triage 684
8. Affection nnd domestic happiness. 685
4. Criminal intercourse . 685
6. Loss of consortahip ; Damages... 685
6. Defenses 686
7. Character . . , . 687
xxvi
TABLE OF CONTENTS.
CHAPTER XL VII.
ACTIONS TO RECOVER POSSESSION OF SPECIFIC PERSONAL
PROPERTY (REPLEVIN).
1. Existence and identity of the thing. 688
2. Plaintiff's ownership 688
8. Defendant's taking and possession. 689
4. Fraud 690
6. Demand. 690
6. Damages 90
7. Declarations and admissions of
former possessor 690
8. Defenses 690
CHAPTER XL VIII.
ACTIONS TO AFFECT THE TITLE OR POSSESSION OF REAL
PROPERTY.
L ACTION'S TO BECOVER THE POSSESSION
OF REAL PROPERTY. (EJECTMENT.)
1. Plaintiff's title , 691
2. Title of State 692
8. Possession as evidence of title. . . 692
4. Title by deed 693
6. delivery and date 694
6. parties 695
7. alterations 696
8. connected instruments 697
9. consideration 697
10. oral evidence to vary or ex-
plain writings 698
11. boundaries 699
12. title under judicial or statutory
authority 700
18. on execution sale 702
14. on surrogate's sale 703
15. on tax sale 703
16. Grantor's title 706
17. State grant 705
18. Landlord and tenant 706
19. Mortgagor and mortgagee 707
20. Vendor and purchaser 707
21. Entry 707
22. Title by descent or devise 707
23. Dower 707
24. Curtesy 708
25 Title under ancient instrument. . 708
26 Lost instrument, and secondary
evidence 709
27. Presumed grant 709
28. Deed void for adverse possession. 710
29. Impeaching on equitable grounds. 710
30. Admissions and declarations. ... 710
31. Recitals 712
32. Estoppels 713
33. Former adjudication 713
34. Defendant's possession ; Ouster .. 714
35 Mesne profits 714
36 Defenses 714
87. adverse possession 715
38. I3ona fide purchaser 715
II. ACTIONS TO DETERMINK CONFLICTING
CLAIMS.
39. Mode of proof. 717
III. ACTIONS TO REMOVE CLOUD ON TITLE.
40. Mode of proof. 718
IV. ACTIONS OF FORECLOSURE.
41. Foreclosure of vendor's lien 719
42. Foreclosure of mortguge ....... 719
43. Defendant's liability, demand and
default 720
44. Defenses 721
V. ACTIONS TO REDEEM.
45. Mode of proof. ( 722
VI. ACTIONS OF PARTITION.
46. Mode of proof. 723
CHAPTER XI/IX.
ACTIONS BETWEEN VENDOR AND PURCHASER.
1. The contract 725
2. Oral evidence to explain 726
3. Implied covenants : time 727
4. Title 727
5. Plaintiff's performance: breach. 727
6. Value 728
7. Contract merged by deed 728
8. Actions to recover back purchase-
money 729
9. Fraud or misrepresentation 729
10. Specific performance : the con-
tract 729
11. oral con tract partly performed. 730
12. plaintiff's title, and perform-
ance ...731
TABLE OF CONTENTS.
XXVll
CHAPTER L.
ACTIONS FOR REFORMATION OR CANCELLATION OF
INSTRUMENT.
1. Nature of the action 732
2. The instrument impeached 732
3. Grounds of impeachment 732
CHAPTER LI.
ACTIONS BY JUDGMENT CREDITORS.
1. Judgment. 736
2. Execution 736
3. Indebtedness to plaintiff. 736
4. Fraud 737
5. The consideration 738
6. Indebtedness to other creditors . 738
7. Voluntary settlement 738
8. Intention of the debtor 739
9. of his grantee 739
10. Admissions and declarations. ... 740
11. Defenses 741
12. evidence of consideration paid. 741
CHAPTER LIT.
ACTIONS FOR DIVORCE.
1. Marriage 743
2. Fraud 743
3 Impotence 743
4. Adultery 743
6. circumstantial evidence 744
6. cogency of proof. 745
7. opinions of witnesses 745
8. limits of the issue of adultery
in respect to time and place . . 745
9. and as to paramour 746
10. delay '. . 746
11. character 746
12. Cruelty 746
1 3. Witnesses 747
14. Confessions and admissions 747
15. Condonation 748
1. Office.
CHAPTER LIII.
ACTIONS OF QUO WARRANTO.
, 749 | 2. Corporations..
750
CHAPTER LIV.
ACTIONS FOR INFRINGEMENT OF TRADE MARKS.
1. Plaintiff's title 751
2. Resemblance of defendant's mark. 751
3. Intent. 752
4. Damages 758
5. Witnesses 753
6. Defenses 753
TABLE OF CONTENTS.
CHAPTER LV.
ACTIONS FOR INFRINGEMENTS OF PATENTS AND COPYRIGHTS.
I. PATENTS.
1. Burden of proof: General evi-
dence of validity 765
2. Novelty of invention 756
8. Utility 756
4. Patentee the original and first in-
ventor . . . 757
6. Specifications: Construction: Ex-
tent of claim 767
6. Title 758
7. Extension: Renewal: Reissue.. 758
8. State of the art 759
9. Infringement , . 759
10. Witnesses: Models 760
11. Admissions and declarations. . . . 760
12. Certified copies 760
13. Damages 761
14. Defenses : General issue : Burden
of proof 761
PAGE
15. title ; license 762
16. defendant's patent 762
17. the statute 762
18. fraud 763
19. description in printed publica-
tion 768
20. prior knowledge or use 763
21. public use or sale before appli-
cation; abandonment 764
22. requisites of the statutory no-
tice or answer 765
23. plaintiff's failure to mark . 765
II. COPYRIGHTS.
24. Plaintiff's rights 766
25. Infringements 766
CHAPTER LYI.
ACTIONS FOR VARIOUS CAUSES CREATED OR DEFINED BY
STATUTES.
I. MECHANIC'S LIEN.
1. Mode of proof. 767
II. INDIVIDUAL LIABILITY OF STOCKHOLDERS
AND TRUSTEES OF CORPORATIONS AND
JOINT STOCK COMPANIES.
2. Incorporation : Bankruptcy 768
8. Defendant a stockholder 768
4. Defendant a director or trustee. . 769
III. PENALTIES.
6. Statute 770
6. Municipal ordinance. 770
7. Violation 771
8. Excepted cases 771
9. Knowledge of the law 772
10. Knowledge of facts 772
11. Knowing or intentional violation. 772
12. Admissions and declarations. ... 773
13. Character 773
14. Cogency of proof 773
15. Obstructing highways 773
16. Selling liquors 774
IV. ACTIONS (UNDER civn. DAMAGE LAW)
FOR CAUSING INTOXICATION.
17. Ground of action 775
18. Order of proof 775
19. Relation of plaintiff to the drunk-
ard 776
20. Sale or gift of liquor 776
21. Liability of salesman 77C
22. of principal 776
23. Connecting defendant with sales-
man 777
24. Connecting defendant with busi-
ness 777
25. Connecting sale with intoxication. 777
26. Character of liquor 778
27. Knowledge and intent of seller.. 778
28. Fact of intoxication 779
29. Liability of owner and lessor. . . 779
30. Contributory negligence 779
31. Damages 779
32. to the person 780
33. to property 780
34. to means of support 780
85. Exemplary damages 781
36. Defenses; Limitations 782
37. sale as medicine 782
38. other sellers contributing to
injury 782
39. plaintiff's connivance or negli-
gence 782
40. former adjudication; satisfac-
tion 783
V. PROCEEDINGS IN REM FOB FORFEITURE.
41. Burden of proof. 783
42. Knowledge and notice 783
43. Admissions and declarations. . . . 784
44. Cogency of proof 784
YL ACTIONS ON RECOGNIZANCES.
45. Mode of proof. 784
TABLE OF CONTENTS.
XXIX
CHAPTER LVII.
PROCEEDINGS IN ADMIRALTY.
1. Mode of proof. 785
PART III.
EVIDENCE AFFECTING PARTICULAR DEFENSES.
CHAPTER LVIII.
DEFENSES IN ABATEMENT.
1. Parties..
786
2. Another action pending.
FAOE
. 786
CHAPTER, LIX.
DEFENSES DENYING OR IMPEACHING THE CONTRACT SUED ON.
I. DENIAL OF ASSENT.
1. Fraud or deceit 787
2. Mistake 788
3. Duress 788
4. Want of consideration 788
5. Statute of frauds 789
6. Forgery 789
7. Alterations 789
II. ILLEGALITY OF CONTRACT.
8. General rules 789
9. Compounding felony 790
10. Sunday laws 790
11. Usury : pleading ; and burden of
proof. 791
12. estoppel by certificate, <fcc. . . . 792
13. oral evi Icnce 792
14. variance 792
15. intent 792
16. covers for usury 794
17. act of agent or co-trustee .... 794
18. inception 795
19. declarations and admissions. . 795
III. INCAPACITY OF CONTRACTING PARTY.
20. Infancy 796
21. new promise: admissions and
declarations 796
22. Insanity 797
CHAPTER LX.
PAYMENT OR OTHER DISCHARGE.
I. PAYMENT.
1. Pleading; and burden of proof.. 798
2. Oral evidence ; Res gestce 799
3. Authority to pay 800
4. Agent's authority to receive. . . . 800
6. presumed from agency in sale. 800
6. from possession of security,
<fcc 801
7. Payment to assignor 802
8. to executors, trustees, Ac. ... 802
9. to sheriff 802
10. Payment by mail 803
11. by check or draft 803
12. by note, <fcc., of debtor or third
'person. 804
13. by obligation of joint debtor,
<fcc 806
14. by delivery of property 806
15. Payment of collateral 806
16. Receipts 806
17. Part payment, in full 807
18. Admissions; entries and memo-
randa 808
19. Possession of instrument; indorse-
ments 809
20. Presumption of payment from sub-
sequent transactions 809
21. Circumstantial and corroborative
evidence 810
22. Application by the debtor 810
TABLE OF CONTENTS.
CHAPTER LX. PAYMENT OB OTHER DISCHARGE continued.
PAGE
23. by the creditor. 811
24. by the court 811
25. Presumption of payment from
lapse of time 812
IT. ACCORD AND SATISFACTION.
26. Mode of proof, and effect 814
III. ACCOUNT STATED.
27. Mode of proof, and effect 815
IV. COMPROMISE AND COMPOSITION.
28. Mode of proof, and effect 815
V. TENDER.
29. Necessity, and mode of proof. . . . 816
VI. RELEASE.
30. Mode of proof, and effect 817
31. Oral evidence. . ..i 818
32. Impeaching 818
VII. SURETYSHIP AND MODIFICATION OF
CONTRACT.
33. Defendant a surety 818
34. Modification 819
VIII. DISCHARGE.
35. In bankruptcy 819
36. impeaching 820
37. Insolvency 820
38. New promise. 821
CHAPTER LXI.
LIMITATIONS.
1. Pleading 822
2. Burden of proof. 822
3. New promise 823
4. Conditional new promise 824
5. Acknowledgment 824
6. Part payment 824
7. Indorsement of payment 826
CHAPTEE LXTI.
FORMER ADJUDICATION.
1. General Rules 826
2. Former recovery as merging the
cause of action 827
3. Splitting cause of action 827
4. Former adjudication as an es-
toppel 827
5. What questions are concluded . . . 828
6. Construction of instrument 828
7. Courts and tribunals 829
8. Exclusive jurisdiction 829
9. Parties.. 829
10. Joint defendants. 830
1 1. Form of th adjudication 830
12. Record to be produced 831
13. What questions were determined
by it 832
14. Oral evidence to explain record. . 833
15. Set-off. 884
16. Rebuttal: Want of Jurisdiction. . 834
17. fraud .... 834
18. appeal ; reversal 834
19. new title . . 834
CHAPTEE LXIIL
COUNTERCLAIMS.
1. Pleading 835 I 2. Mode of proof; admission 836
GENERAL INDEX.. 837
TRIAL EVIDENCE.
PAET I.
EVIDENCE AFFECTING PARTICULAR CLASSES OF PARTIES.
CHAPTER I.
ACTIONS BY AND AGAINST ASSIGNEES.
1. Rules applicable to assignees. 20. Assignment for purposes of suit.
2. Allegation of assignment material. 21. or as collateral security.
8. Requisite proof of assignment. 22. Assignees in insolvency.
4. Implied assignment. 23. Assignees in bankruptcy.
B. Statute of frauds. 24. Purchaser from official assignee.
6. Presumptive evidence. 25. Assignees for benefit of creditors.
7. Consideration. 26. Testimony of assignor.
8. Gift. 27. Assignor's declarations not competent
9. Object, when material. in favor of assignee.
10. Best and secondary evidence. 28. Their competency against assignee.
11. Proof of execution. 29. if made before assignor waa owner.
12. Deliver} 7 and acceptance. 80. if made after he ceased to be owner.
13. Assignment with schedules. 81. if made during his ownership.
14. Assignment by corporation. 32. Preliminary question.
15. Authority of officer or agent. 83. Distinction between declarations and
16. Purol evidence to vary. transactions.
17. Equities in favor of assignor or third 34. Declarations admitted in case of con-
person, spiracy.
18. Bona fide purchaser. 35. Receipt of the assignor.
19. Notice to debtor. 36. Notice to produce.
1. Rules applicable to Assignees.] To avoid repetition when
discussing rules applicable to particular classes of actions, we
will first consider certain rules which are common to many classes
of actions, because applicable generally to peculiar classes of
parties.
The rules thus applicable to assignees are not limited to
transferees by formal deed, but, with qualifications to be indi-
cated as we proceed, apply generally to all transferees of non-
negotiable things in action.
2. Allegation of Assignment Material.'} If plaintiff seeks to
recover upon a cause of action which accrued to another person,
and became the plaintiff's by assignment, the allegation of assign-
ment is essential. Under an allegation of a cause of action accru-
ing to the plaintiff, proof of a cause accruing to his assignor is
not admissible ; * and under an allegation of an assignment, proof
1 O'Neil T. N. T. Central R. R. Co. 60 N. Y. 142. But the court have power to
allow an amendment at the trial. Ib. 143. Where the cause of action originnlly
accrued to plaintiff, and lias been assigned and reassigned, proof of the assignment
and reassignment is not necessary to sustain the action. Washoe v. Hibernia Fire
Ins. Co. 7 Hun, 75. And where the plaintiff was entitled, both as the real party in
interest, and as assignee of his trustee, he may recover on proof of either title. Pit-
ney Y. Glen's Falls Ins. Co. 65 N. Y. 6, 18.
2 ACTIONS BY AND AGAINST ASSIGNEES.
of an assignment after suit is brought is insufficient. 1 If a written
assignment produced bear date before the commencement of the ac-
tion, the date is presumptive evidence that it was then made ;
but if it bear no date, some evidence should be given indicat-
ing that it was in fact made before the action was commenced. 3
3. Requisite Proof of Assignment."] If no writing passed,
the assignment of a debt may be proved by parol, 8 even though
there was an agreement unperformed to give a written transfer. 4
It is sufficient proof of a parol assignment that some evidence of
the debt such as a bond or mortgage, 5 or a transcript of judg-
ment, 6 or a note held for the debt, or part of it, 7 was delivered to
the assignee by the assignor, with intent to transfer the title to the
demand ; and the declarations of the assignor accompanying the
delivery may be proved by a witness as part of the res gestce. It
is not essential to call the assignor. JBut, on the other hand,
neither the mere production of a non-negotiable security, 8 nor
proof of mere words of intention on the part of the alleged as-
signor, are enough. Nor can plaintiff prove his title by mere
evidence of oral declarations of the assignor, that he had at a
previous time assigned the demand to plaintiff, 9 unless such dec-
larations were made in defendant's presence, in which case -they
may be proved as laying a foundation for his admission of an as-
signment, or for a presumption thereof from his silence.
4. Implied Assignment.] In some cases where there was no
express assignment, the court will, upon equitable grounds, pre-
sume an assignment from the fact that the plaintiff, being en-
titled to relief, and with intent to enforce the claim for his own
reimbursement, paid the one who was legally entitled. 10 And in
case of negotiable paper " taken up," even by a stranger, at ma-
turity, on dishonor, an assignment has been implied from its
delivery to him uncancelled. In this class of cases, the question
whether paying the creditor was a satisfaction of the demand or
a purchase, is ordinarily a question of intention of the parties,
which may be proved by parol. 11 But the plaintiff should be pre-
1 Garrigue v. Loesclier, 3 Bosw. 5*78. But variance in the mode of assignment is
disregarded, if not prejudicial. Bowman v. Keleman, 65 N. Y. 598.
8 Barrick v. Austin, 21 Barb. 241. Compare paragraph 35 below.
3 Hooker v. Eagle Bank, 30 N. Y. 83.
* Doremus v. Williams, 4 Hun, 458.
5 Runyan v. Mersereau, 11 Johns. 634; and see 17 Id. 284; Eamend Y. Huelig,
12 Am. Law Reg. N. S. 61.
* Mack v. Mack, 3 Hun, 323.
7 Armstrong Y. Cushney, 43 Barb. 340; Billings v. Jane, 11 Id. 620. For the
more strict common-law rule see Palmer v. Merrill, 6 Gush. 282.
8 Barrick v. Austin, 21 Barb. 241.
9 Worrall v. Parmelee, 1 N. Y. 521.
10 See O'Neil v. N. Y. Central R. R. Co. above; Smith v. Miller, 25 N. Y. 619 ;
Vail v. Tuthill, 10 Hun, 81.
11 Compare Champney Y. Coope, 32 K Y. 643; Sheldon v. Edwards, 35 Id. 278,
and cases cited ; Edgerly v. Emerson, 23 N. H. 556, 565, 570 ; and chapter on Actions
for Money Paid.
ACTIONS BY AND AGAINST ASSIGNEES. 3
pared not only to show that it was his intent to acquire the right
of action, but to give some evidence that it was the intent of the
creditor to transfer it to him. The creditor's delivery to him of
the evidence of debt, uncancelled, is ordinarily sufficient to sus-
tain a finding on this point, as against the debtor. 1 But where
the payer was bound under seal or by judgment to pay the debt,
his action must ordinarily be for money paid. 2
5. Statute of Frauds. ~\ When no consideration for the assign-
ment is shown, and no delivery, the assignment, if for the price
of $50, or more, 3 or when no price was fixed, if of a chose in ac-
tion clearly proven to be worth that sum, 4 must have been evi-
denced by a note or memorandum in writing. But a written
assignment, unless involving an interest in land, 5 need not be
under seal, even though the thing assigned be a specialty. 6
6. Presumptive Evidence.'] Direct proof of an assignment is
not always essential. The title to an incidental or collateral se-
curity which is exclusively applicable to the principal debt or ob-
ligation, is presumed to have been assigned with the principal
debt or obligation, unless the contrary is shown ; hence an assign-
ment of the collateral may be presumptively shown by proof of
an assignment of the principal obligation. 7 But an assignment of
the principal obligation cannot be inferred from the mere fact of
an assignment of a collateral security or other incident. 8 Since
the change in the law allowing assignees to sue in their own
names, it has been much questioned whether an assignment of
property or things in action will carry, by implication, incidental
causes of action for fraud, mistake, and the like, which cannot
subsist independent of the principal right. At first these were
thought not to pass unless expressly included; but the better
opinion is that the question is usually one of intent, and that an
assignment of a thing in action may carry the right to those reme-
1 Compare Freedman's Savings, <fec. Co. v. Dodge, 93 U. S. 382 ; Union Trust Co.
v. Monticello, 63 N. Y. 314 ; Lancey v. Clark, 64 Id. 2l)9 ; iShumway v. Cooley, 9
Hun, 131.
* Champney v. Coope, Sheldon v. Edwards, above.
1 2 R. S. 136 ; People v. Beebe, 1 Barb. 379.
4 Buskirk v. Cleveland, 41 Barb. 610; Crookshank v. Burrcll, 18 Johns. 58. Con-
tra, 12 Sim. 189; 1 Ohio St. 350.
4 Ot.hor than a lease not exceeding one year. 2 R. S. 134, 6, 7 ; Bissell v.
Morgan, 56 Barb. 369.
6 E. ff. a judgment. Ford v. Stuart, 19 Johns. 342 ; or a bond or covenant. Mo-
range v. Edwards, 1 E. D. Smith, 414 ; Dawson v. Coles, 16 Johns. 51.
1 Thus an assignment of the mortgage may be presumed from proof of an assign-
ment of the bond or note. Jackson v. Blodgett, 6 Cow. 202; Green v. Hart, 1
Johns. 580 ; and assignment of a guaranty of a bond and mortgage may be presumed
from the assignment of the bond and mortgage by the guarantee. Caily v. Sheldon,
38 Barb. 103 ; and see 40 N. Y. 181. So the assignment of a judgment carries the
right to any further remedy subsisting for the debt on which the judgment was re-
covercd. Pattison v. Hull, 9 Cow. 747 ; Bowdoin v. Coleman, 3 Abb. Pr. 431 ; s. c.
6 Duer, 182.
8 Thus intent to transfer the bond cannot be inferred from an assignment of the
mortgage alone. Merritt v. Bartholick, 36 N. Y. 44, affi'g 47 Barb. 253 ; 8. P. 26
N. Y. 404.
4 ACTIONS BY AND AGAINST ASSIGNEES.
dies inseparable from it which might have been expressly as-
signed. 1
7. Consideration.'] For the purpose of enabling the assignee
to maintain an action against the debtor, proof of a consideration
for the assignment is not essential (unless the statute of frauds
requires it), for an absolute assignment transfers the legal title.*
The consideration, however, may be material in respect to de-
fenses. If a consideration is not expressed, where the assignment
is in writing, it will be presumed. 8 Indeed, it is no longer neces-
sary in all cases to prove such an assignment ans passes the legal
title, in order to enable the assignee to sue in his own name.
"Whether his title be legal or equitable, if he have the whole in-
terest he may maintain the action. 4 But the defendant may prove
that the assignee paid and took assignment as trustee or agent for
one who has no right to enforce the claim for instance, a prin-
cipal debtor or a joint debtor. 5 The defendant cannot be allowed
to prove that the consideration was inadequate, 6 or even that there
was none. 7 Even proof that a stranger paid the consideration for
the assignment is not enough to defeat the action. If the plaint-
iff is a mere trustee for a third person, the burden is on the de-
fendant to show it, 8 and then it must be shown that he is not the
trustee of an express trust within the statute. 9 It is enough, in
the first instance, for plaintiff to prove either that he is the real
party in interest, or that he is the trustee of an express trust, suf-
ficiently to show that his recovery will bar the right of the as-
signor. 10
8. Gift.~\ If plaintiff claims under an oral gift, there must
1 Bentley v. Smith, 1 Abb. Ct. App. Dec. 126; Bolen v. Crosby, 49 N. Y. 183.
Thus it has been held that where a right arising out of contract involves a remedy
for fraud or deceit, the right to prove the tort follows the original cause of action,
and vests in the assignee. Westcott v. Keeler, 4 Bosw. 564. Contra, Bliss' Code of
N. Y. 434 ; and see 53 N. Y. 298. So the right of a ceslui que trust to enforce a power
has been held, on a view of the design and intent, to pass by his deed of the title.
Clark v. Crego, 47 Barb. 599. So the assignment of a usurious security carries the
riii lit < f action on the original valid consideration. Gerwig v. Bitterly, 56 N. Y. 214 ;
affi'g in effect 64 Barb. 620. So of the right to have a contract reformed for mistake.
Bentley v. Smith, above. As to new promise, compare Stearns v. Tappin, 5 Duer,
294 ; Hoyt v. Dusenbury, 53 N. Y. 521.
- Cummings v. Morris, 25 N. Y. 625. Whether the action is on contract; St. John
v. Mutual Life Ins. Co. 13 N. Y. 31; or for a wrong. Merrick v. Brainard, 38 Barb.
674 ; 34 N. Y. 208.
3 Eno v. Crook, 10 N. Y. 60 ; Richardson v. Mead, 27 "Barb. 178. Where the ex-
tinguishment of a precedent debt was relied on, it was held that there must be evi-
dence of actual extinguishment. 34 Barb. 629. But doubted; compare 56 Id. 362.
4 Thus the holder of a non-negotiable note indorsed in blank may recover on it.
Hastings v. McKinley, 1 E.D. Smith, 273 ; affi'd in Seld. Notes, No. 4, 19.
6 Ten Eyck v. Craig, 62 N. Y. 416, affi'g 2 Hun, 452 ; Arnott v. Webb, 1 Dill.
C Ct 362
6 Mills v. Fox, 4 E. D. Smith, 220.
7 Daby v. Ericsson, 45 N. Y. 786 ; Stone v. Frost, 61 Id. 614, affi'g 6 Lans. 440.
8 Eno v. Crooke, 10 N. Y. 60.
9 Code of Pro. 111.
10 See Gardner v. Barden, 34 N. Y. 433, and cases cited; Allen Y. Brown, 51 Barb.
86; 44N.Y. 228.
ACTIONS BY AND AGAINST ASSIGNEES. 5
be proof not only of words of gift, but of delivery of the evi-
dences of the thing in action sufficient to transfer the dominion
to the plaintiff; 1 and this rule is equally applicable whether the
gift was in view of death or not. 2 According to some authori-
ties, there must be a written transfer, 3 but while there may be
reason for this rule when the gift is set up against the alleged
donor, or his successors or representatives, the better opinion is
that a gift by delivery is sufficient to enable the donee to enforce
the chose in action against the debtor. 4 But bare possession of the
evidences of debt is not ordinarily enough to raise a presumption
of a gift. 5 Where the party claims title to the cause of action by
such a disposition, he is not required to show affirmatively, and
with minuteness, the circumstances under which the alleged gift
was made ; nor that the donor was of sound disposing mind and
memory when he made the gift, and that delivery of the subject
was his free and voluntary act. These are matters of defense,
equally in cases of gifts inter vivos and gifts causa mortis. 6
9. Object, when Material.'] If the transfer was valid as be-
tween the parties to it, the defendant cannot question it by proof
that it was made for the purpose of enabling the suit to be
brought, because the assignor could not bring it, 7 or for the pur-
pose of enabling the assignor to be a witness. 8 And even proof
of fraud on the part of the parties to the assignment, such as
would enable creditors to avoid it, will not avail the debtor. 9 But
evidence that the assignment was positively illegal, as, for exam-
ple, that it was made to an attorney for the purpose of his bring-
ing an action, is competent. 10 In other words, it is enough for
plaintiff to show an assignment which bound the assignor, but
defendant may show that it was illegal on the part of the plaintiff
to receive it.
10. Best and Secondary Evidence.'] If it appears that the as-
signment of the cause of action was made by a written instru-
ment, the writing is the best evidence, and must be produced or
accounted for. 11 And in general, wherever the nature or extent
I Johnson v. Spies, 5 Hun, 471. An indorsement of intent to give, without proof
of delivery, is not enough. Zimmerman v. Streeper, 75 Pa. 147.
5 Bedell v. Carll, 33 N. Y. 581.
* Johnson v. Spies, above; Gray v. Barton, 55 N. Y. 73; 2 Kent's Com. 439.
4 Mack v. Mack, 3 Hun, 323. See paie 155 of this vol.
8 Grey v. Gr.-y, 47 N. Y. 552, rev'g 2 Lans. 173; Bedell v. Carll, 33 N. Y. 681.
8 Bedell v. Carll, nbove.
7 As where the assignor nnd debtor were both foreign corporations. McBride v.
Farmers' Bank, 26 N Y. 450; affi'g 25 Barb. G57 ; or the assignor was a foreign
executor or administrator. Peterson v. Chemical Bank, 32 N. Y. 21.
8 Gardner v. Harden, above; and see Westervelt v. Allcock, 3 E. D. Smith, 243.
9 Osborne v. Moss, 7 Johns. 161 ; Waterlmry v. Westervelt, 9 N. Y. 598.
10 2 R. S. 288, 71 ; Mann v. Fairchild, 3 Abb. C t. A|>p. Dec. 152; M<--s v. Mr-
Bivitt, 2 Abb. New ('as. 47. Formerly the mere purchase was evidence of intent.
3 Wend. 120. It is now only a necessary circumstance with others to show intent.
See Bristol v. Dann, 12 Wend. 142; Williams v. Mathews, 3 Cow. 252.
II Gilmore v. Bangs, 55 Ga. 403.
6 ACTIONS BY AND AGAINST ASSIGNEES.
of plaintiffs interest in property is material under the issne, the
written instrument of transfer under which he claims may be
called for as the best evidence. 1 But a distinction is made in this
rule, between a writing which is the vital instrument of transfer,
such as a bill of sale, and a writing which is merely an incidental
or collateral memorandum of a transfer made verbally, such as a
bill of parcels stating price, and receipted. Where the former
is shown to exist it must be produced ; but the latter is not
primary evidence, and need not be produced. 2
11. Proof of Executionl\ The execution of a written assign-
ment may be proved by having it acknowledged by the assignor,
or proved by a subscribing witness, before an officer authorized
to take acknowledgment and proof of deeds ; 8 and this may be
done even after the action has been commenced, and at any time
before the actual offer of the document in evidence. 4 Unless this
is done, the assignment, whether under seal or not, 5 if attested by
subscribing witness, must be proved by the witness or his hand-
writing. 6
12. Delivery and Acceptance^ Delivery of a written assign-
ment is presumed when the instrument is proved to have been
executed by the assignor, and is actually produced by the plaintiff ,
at the trial ; 7 and affirmative proof of the acceptance of an as-
signment which appears to be beneficial to the assignee, is not re-
quired from the party propounding it, but the party impeaching
it must disprove acceptance. 8
13. Assignment with Schedules.'] If plaintiff claims under a
general assignment with a schedule of the articles transferred,
general words in the assignment, with nothing in it to indicate
that the schedule is to control, will pass the right of action,
though it be omitted from the schedule ; and parol evidence that
it was not intended to pass it, has been held incompetent as vary-
ing the assignment. 9 But evidence that it was in fact inserted in
the schedule by a designation partially false or inapplicable is
competent. 10
14. Assignment by Corporation.'] If plaintiff claims as as-
signee of a corporation, evidence of the existence of the corpora-
tion is admissible without any allegation of that fact other than
such as is implied in the mention of the corporate name in the
1 Epping v. Mockler, 55 Ga. 376.
* Dunn v. Hewitt, 2 Den. 6S8.
8 N. Y. L. 1833, p. 3%, c. 271, 9. Add county clerk's certificate where required.
4 Holbrook v. N. J. Zinc Co. 57 N. Y. 616.
8 1 Greenl. Ev. 569 ; King v. Smith, 21 Barb. 158.
8 Page 605 of this vol., where the practice is stated. 1 Greenl. Ev. 569; Jones
V. Underwood, 28 Barb. 481.
1 Story v. Bishop, 4 E. I). Smith, 423 ; North v. Turner, 9 Serg. <fe R. 244.
* Van Buskirk v. Warren, 4 Abb. Ct. A pp. Dec. 457.
9 Cram v. Union Bank, 1 Abb. Ct. App. Dec. 461. Contra, Platt v. Thorn, 8 Bosw.
674. Compare Nims v. Armstrong, 31 Md. 87 ; 2 Whart. Ev. 944.
10 Commercial Bank v. Clapier, 3 Rawle, 335, 339.
ACTIONS BY AND AGAINST ASSIGNEES. 7
complaint. 1 The plaintiff is not held to make, as against the
debtor, so clear proof of a valid assignment by the corporation as
he might be required to in a contest with the creditors or stock-
holders of the corporation. As against the debtor, an assignment
of the cause of action is presumed valid, although, having been
made by a moneyed corporation, a vote of the board was neces-
sary to its legality, and there is no evidence thereof. 2 But where
there is evidence that the transfer was made without a vote of the
board, the burden is on the assignee to show that he took it for
value, and without notice. 3 This he may always show in support
of his title, whether he took directly from the corporation or
through a third person. 4 The fact that plaintiff himself, 9 or even
one ol several plaintiffs, 6 was a director at the time of such an il-
legal transfer, is sufficient evidence of notice to defeat the action.
15. Authority of Officer or A gent.'] To show the authority of
the officers of the corporation to make the transfer, their official
character may be proved either by the corporate minutes, or by
witnesses testifying to the fact of their habitually acting as such,
and without producing the books, 7 and the jury may infer the
authority of the officer to do the particular act from evidence of
the exercise by him of the same general power, with the knowl-
edge and acquiescence of the directors. 8
16. Parol Evidence to Vary a Writing.'} The rule excluding
parol evidence, when offered to vary a contract, has often been ap-
plied against assignees of a contract, and against a debtor seeking
to explain or vary an assignment of his debt. But the later au-
thorities recognize the qualification that in actions between a
stranger to the instrument and a party to it, as well as between
strangers, either may give parol evidence to vary it. 9 Hence the
rule, as now understood, forbids neither the assignee nor the
debtor to give parol evidence to vary either the contract sued on
or the assignment, unless they are both parties to the same in-
strument, or have come under the obligations of parties, or the
agreement is one which the law requires to be in writing. 10 Thus
a person not a party to a policy of insurance, but holding it by
1 Kennedy v. Cotton, 28 Barb. 9.
2 Belden v. Meeker, 47 N. Y. 307, affi'g 2 Lans. 470; 9 Moak's Eng. 255, a
Compare to the contrary, Houehton v. McAuliffe, 2 Abb. Ct. App. Dec. 409.
3 lloughton v. McAuliffe, above. Contra, Caryl v. McElrath, 3 Sandf. 176.
4 Curtis v. Leavitt, 15 N. Y. 9. Proof of payment of value raises a presumption,
according to Warner v. Chuppel, 32 Barb. 309, that plaintiff took without notice.
Gillet v. Phillips, 13 N. Y. (3 Kern.) 114.
6 Smith v. Hall, 5 Bosw 319.
1 Partridge v. Badger, 23 Barb. 146.
8 Merchants' Bank v. State Bank, 10 Wall. 604; compare Jackson v. Campbell, 5
Wend. 572 ; Hoyt v. Thompson, 5 N. Y. 320.
9 McMaster v. President, <fcc. of Ins. Co. of N. A. 55 N. Y. 222 ; Coleman v. First
Nat. Bk. 53 N. Y. 388; Badger v. Jones, 12 Pick. 321 ; Railroad Co. v. Trimble, 10
Wall. 307.
10 Furbush v. Goodwin, 25 N. H. 425, 446 ; Dempsey v. Kipp, 61 N. Y. 462, and
cases cited. But see paragraph 20 below.
8 ACTIONS BY AND AGAINST ASSIGNEES.
assignment, or as one to whom, in case of loss, it is payable, may
adduce evidence to explain it, in bis action against the company. 1
IT. Equities against the Assignee.'] Tbe assignee of a non-
negotiable cbose in action, as distinguished from the Ion a fide
transferee of negotiable paper, takes it subject to all equities,
whether known or unknown to the assignee, 2 existing against the
assignor at the time of the assignment, in favor either of the
debtor, 8 or of any person who had succeeded to his right at the
time of the assignment, 4 and even latent equities in favor of third
persons. 5
18. ona Fide Purchaser.'] But the doctrine of equitable
estoppel supports the title of a bona fide purchaser for value, of
a non-negotiable cause of action, from one upon whom the owner
has conferred the apparent absolute ownership, when the pur-
chase is made upon the faith of such appearance. 6 Yet evidence
showing circumstances sufficient to have put the purchaser upon
inquiry, will charge him with the same notice that is chargeable
to nis assignor in respect to the same matters. 7
19. Notice to Debtor."] If the cause of action was complete
against the debtor before the assignment was made, notice to the
debtor, of the assignment, need not be proved, 8 except for the pur-
pose of shutting out evidence of subsequent dealings by the debtor
with the assignor in reduction of the liability. If the assignee
proves such notice, subsequent dealings between the original par-
ties are not relevant against him, 9 but the burden of proving such
notice is upon the assignee who seeks to avail himself of it. 10
20. Assignment for Purpose of Suit.~\ If plaintiff proves a
written assignment absolute on its face, defendant cannot suc-
cessfully impeach plaintiffs title, by adducing parol evidence to
show that it was nlade upon condition that part of the claim as-
signed should, when collected, be paid to the assignor. 11
1 McMaster v. President, <fec. of Ins. Co. of N. A. 65 N. Y. 222, 234.
5 Evertson v. Evertson, 5 Paige, 644.
8 Murray v. Gouverneur, 2 Johns. Cas. 438 ; Clute v. Robinson, 2 Johns. 595, and
cases cited in 1 Abb. N. Y. Dig. 2d ed. 305.
4 Hartley v. Tatham, 2 Abb. Ct. App. Dec. 333.
8 Green v. Warnick, 64 N. Y. 2'J4, and cases cited; overruling Murray v. Lylburn,
2 Johns. Ch. 441, and other cases to the contrary.
6 Moore v. Metrop. Bank, 55 N. Y. 41 ; Green v. Warniok, 64 Id. 224.
I Commercial Bank v. Colt, 15 Barb. 506; and see Evans v. Ellis, 5 Den. 640,
affi'g Ellis v. Messervie, 11 Paige, 467. The purchaser of u bond and mortgage who
fails to require the production of the bond, is chargeable with notice of any defect in
the assignor's title thereto. Kellogg v. Smith. 26 N. Y. 18. As to appearances of
alterations, see Birdsall v. Russell, 29 N. Y. 220.
8 Muir v. Schenck, 3 Hill, 228.
Myers v. Davis. 22 N. Y. 489, rev'g 26 Barb. 367.
10 Hermans v. Ellsworth, 64 N. Y. 161 ; 3 Hun, 473, and cases cited. As to the ne-
cessity of notice ns against third persons, see Thayer v. Daniels, 113 Mass. 129.
II Durgin v. Ireland, 14 N. Y. (4 Kern.) 322. But he may, for the purpose of
showing the bias of the assignor, if the assignor has testified for plaintiff. Moore v.
Viele, 4 \Vetid. 420.
ACTIONS BY AND AGAINST ASSIGNEES. 9
21. or as Collateral Security. ~\ Where the plaintiff holds
the cause of action as collateral security for a debt due him from a
third person, the burden is upon the defendant of proving any
defense arising out of the state of dealings between the plaintiff
and his principal debtor as for instance that the principal debt
has been paid, 1 or is not equitably enforceable as against the de-
fendant. 2
22. Assignee* in Insolvency '.] In an action by an assignee in
insolvency, as such, on a cause of action which he acquired by the
assignment, the plaintiff is bound to prove that he is such as-
signee, even though the defendant only pleads the general issue. 3
For this purpose an insolvent assignment, in the form of a deed
by the insolvent to his assignee, expressing a pecuniary consider-
ation, is admissible in evidence without proving the insolvency
proceedings, although it recites their existence and purports to be
made pursuant to a judge's order. 4
23. in Bankruptcy, .] The title of an assignee in bankruptcy
is conclusively proved, alike in a State court as in a court of the
United States, 5 by a copy of the assignment, duly certified by the
clerk of the court under its seal. 6 But unless he produces such
copy, or the original, or accounts for its absence, parol evidence
of his title is not admissible. 7 It is not necessary for him to show
the steps in the proceedings, nor the jurisdiction of the court
over the proceedings or the person of the insolvent, 8 nor a record
of the assignment as a deed of lands, 9 nor can the existence or
sufficiency of the debt of the petitioning creditor be collaterally
drawn in question. 10 The entire proceedings in a bankruptcy case
are not regarded as constituting an integral record ; but copies of
such papers as in any way relate to the matter in question, certi-
fied to be such, are admissible without other parts of the pro-
ceedings. 11
2-i. Purchaser from Official Assignee.'] One claiming as a
purchaser from an assignee in bankruptcy should be prepared to
prove the assignee's title, by producing the assignment or a duly
certified copy, and to prove his own title by producing the writ-
1 Sheldon v. Wood, 2 Bosw. 267.
* Hogarty v. Lynch, 6 Bosw. 138. Parol evidence as to the agreed mode of pay-
ment of the debt, admissible. Hildebrandt v. Crawford, 6 Lans. 502, 507. For the
peculiar application of the rules as to collaterals, in case of negotiable paper, see
chapter on Actions on Bills, Notes and Checks.
* Best v. Strong, 2 Wend. 319.
4 Rockwell v. Brown, 54 N. Y. 210, rev'g 33 Super. Ct. (1 J. A S.) 380.
8 Cone v. Purcell, 56 N. Y. 649. The State courts will take judicial notice of the
U. S. Bankrupt Act. Wheelock v. Lee, 15 Abb. Pr. N. S. 24.
6 Bump on Bankr. 139; Blumenstiel on Bankr. 228: U. S. R. S. 5048.
7 Burk v. Winters, 28 Ark. 6, and cases cited ; 8. c. 15 Bankr. R. 140.
8 Bump on Bnnkr. 139.
9 Phillips v. Hembold, 26 N. J. Eq. 202.
10 Sloan v. Lewis, 22 Wall. 150.
11 Michener v. Payson, 13 Bankr. R. 50 ; s. P. Ransom v. Wheeler, 12 Abb. Pr. 139.
10 ACTIONS BY AND AGAINST ASSIGNEES.
ten assignment from the assignee, if any, or to account for their
absence. 1 A copy of the bankrupt's schedule is held not by itself
sufficient evidence to prove the bankrupt's admission of the debt
mentioned therein, because but part of the record. 2
25. Assignees for Benefit of Creditors^ The assignee's title
is to be proved by producing the assignment, or a certified copy
of it. This evidence is admissible under an allegation of an as-
signment to plaintiff, without stating that it was in trust for cred-
itors, unless defendant shows that he has been misled to his prej-
udice. 8 The assent of the cestuis que trustent to a valid assign-
ment for their benefit is presumed as matter of law, unless there
is evidence to the contrary. 4 And where, as in some States, assent
is not presumed, it is not necessary to prove that all assented, un-
less the assent of all is expressly required by the contract or by
local law. The assent of a creditor may be proved by the act of
his attorney, and that of a firm by the act of a partner. 5 If the
plaintiff's right depends on the power of the assignee to convert
or apply the assets to the purposes of the trust, he should also
prove the filing of the bond and other steps which the statute
makes a condition to the exercise of that power. 6
26. Testimony of Assignor, .] The testimony of the assignor
of the cause of action, when offered by the assignee, is justly
regarded by the law as liable to scrutiny, and is to be received
with something of the same caution as that of a party testifying
in his own behalf ; 7 and where the adverse party is an executor,
administrator, or other representative of one deceased or other-
wise incompetent to testify, the assignor, equally with the as-
signee, is excluded from testifying to personal transactions or
communications had by him with the person deceased or other-
wise incapacitated. 8 But an assignor's testimony, unlike that of
a party testifying in his own behalf, may be sufficient, without cor-
roboration, to justify the court in taking the case from the jury.
The bias of the assignor may be shown by proof of a remain-
ing or contingent interest, 9 but not by inquiring merely into the
amount of the consideration. The comparatively trifling character
of the consideration is not evidence of bias or interest, and cross-
examination for this purpose is in the discretion of the court. 10
1 Files v. Harrison, 29 Ark. 307, 316.
* Wilson v. Harper, 6 So. Car. 294. But see paragraph 23.
3 Hoogland v. Trask, 6 Robt. 540 ; Lauve's Case, 6 La. Ann. 630.
4 Burrill on Assignments, 3d ed. 381 ; Van Buskirk v. Warren, 4 Abb. Ct. App.
Dec. 458.
6 Burrill on Assignments, 392.
6 Thrnsher v. Bentley, 1 Abb. New Cas. 39.
7 Watkins v. Cousall, 1 E. D. Smith, 65 ; Kenney v. Public Admr. 2 Bradf. 319 ;
Smith v. Leland, 2 Duer, 497.
8 See chapter on Actions by and against Executors and Administrators.
9 Moore v. Viele, 4 Wend. 420.
10 Arend v. Liverpool, N. Y. <fe Phila. Steamship Co. 6 Lans. 457 : Chapin v. Hoi-
lister, 7 Id. 456.
ACTIONS BY AND AGAINST ASSIGNEES. 11
27. Assignor's Declarations not competent in Favor of As-
signee.'] Admissions and declarations of the assignor are not
competent evidence in favor of the assignee, 1 unless part of the
res gestoe of an act properly in evidence, 2 or communicated to the
debtor or otherwise brought home to him ; and they are riot made
competent by being declarations against interest, offered after the
assignor is dead. 3 Some qualifications of this rule will be noticed
in considering the competency of evidence of good faith in a
transfer impeached as fraudulent.
28. Their Competency against Assignee.~\ To determine their
competency when offered against the assignee, we must consider,
1. the time when they were made ; 2. the character of the as-
signment ; and, 3. the nature of the act or declaration offered in
evidence.
29. if made before Assignor was Owner.'] Admissions
and declarations made by the assignor before he became owner
are wholly incompetent against the assignee, 4 except, perhaps,
that when it is relevant to prove that as owner of the claim he
had notice of any fact, declarations made previous to ownership,
showing a then present knowledge of the fact may be, within rea-
sonable limits, evidence to go to the jury tending to show notice
at the time when he dealt with or possessed the thing assigned.
30. if made after he Ceased to l>e Owner J] The assignor's
admissions and declarations, and even his formal written acknowl-
edgment, made after he ceased to be owner, 5 are equally incom-
petent against the assignee, unless the evidence connects the
assignee with them ; and it makes no difference that that the
assignment is only as collateral, 6 or good only in equity. 7 But if
the assignee is merely a nominal party, suing for the assignor's
1 Rose. N. P. 67.
3 According to Howard v. Upton, 9 Hun, 434, the act must not only be properly
in evidence, but in issue, or relevant to the issue.
8 Outram v. M,orewood, 5 T. R. 123.
4 Bond v. Fitzpatrick, 4 Gray (Mass.) 89. So declarations made by one who
afterwards became an assignee in bankruptcy, or a trustee, are not admissible against
him in that capacity. Leggc v. Edmonds, 25 L. J. Ch. 125; Metiers v. Brown, 32
L. J. Ex. 140.
6 Eby v. Eby, 6 Pa. St. 435 ; Kinna v. Smith, 3 N. J. Eq. (2 Green), 14 ; Woodruff
v. Cook, 25 Barb. 505 ; Pringle v. Pringle, 69 Pa. St. 289 ; Morton v. Morton, 13
Serg. <fe R. 108 ; s. p. 4 Pa. St. 439. Greenleaf says, after he ceased to be s-jle owner.
1 Greenl. Ev. 190. Taylor omits this qualification. 1 TayL Ev. 713. And in
Bond v. Fitzpatrick, 4 Gray (Mass.) 80, it was held that if the recovery is severable,
the declarations of an assignor of a part interest may be competent against the as-
signee to the extent of that interest.
Wheeler v. Wheeler, 9 Cow. 34 ; Dazey v. Mills, 10 111. (6 Gilm.) 70. In Miller
v. Bingham, 29 Vt. 82, the fact that the declarations were made while the chose in
action was held by a temporary assignee as collateral security, was held not to render
them incompetent ngainst one to whom the declarant subsequently assigned it, after
having redeemed it.
' Mandeville v. Welch, 5 Wheat. 277.
12 ACTIONS BY AND AGAINST ASSIGNEES.
benefit, they are competent ; * while, on the other hand, if the
assignee is the real party in interest, the fact that the action is in
the assignor's name does not render competent his declarations,
made subsequent to the transfer. 3
31. if made during his Ownership.'] Three rules have con-
tended for control in respect to admission of evidence of the as-
signor's acts and declarations against his own interest, made during
his ownership. One rule 3 declares them universally competent
against all assignees, except transferees of negotiable paper after
dishonor. This rule, which is a departure from the principle for-
bidding hearsay, and securing the sanction of an oath and the
right of cross-examination as to all testimony, 4 is founded on the
doctrine that, as every assignee stands in the shoes of his assignor,
he must take title subject to whatever disparagement the latter
may have put upon it. It has been followed in many States, par-
ticularly where commercial transfers of things in action are less
common than in New York.
A stricter rule, stated by Greenleaf and followed by Taylor,
requires evidence of an identity of interest between assignor and
assignee to admit these declarations, such identity being recog-
nized in three cases : 1. "Where the assignee is the mere agent
and representative of the assignor. 2. Where he took title with
actual notice of the true state of that of the assignor, as qualified
by the admissions in question. 3. Where he purchased the de-
mand already stale, or otherwise infected with circumstances of
suspicion. 5
The New York rule, now recognized also in the Supreme
Court of the United States, 6 is still more strict in the protection
of the right of assignees. 7 This rule is, that the oral admissions
or declarations, as distinguished from the transactions, of the
former holder of any chose in action or personal property, 8 even
if made before his transfer, are not competent evidence against
1 Eaton v. Corson, 59 Me. 610. Admissions, even by the nominal plaintiff, made
after he parted with his interest in the cause of action, are not competent against the
beneficial assignee suing in the name of the former. Wing v. Bishqp, 3 Allen (Mass.)
456.
2 Frear v. Evertson, 20 Johns. 142. So an assignor's acquiring possession again
does not let in declarations made during the renewed possession, and relating to the
former period. Cornett v. Fain, 33 Geo. 219; Tilson v. Terwilliger, 56 N. Y. 273.
The rule of exclusion applies not only to matters in avoidance and dischnrge, but
also to those which go to the maintenance of the action and the inception of the
contract. Wing v. Bishop, 3 Allen (Mass.) 456.
3 Which is best represented in Cowen <fe Hill's Notes to Phillips on Evidence (1
Phil. Ev.), where cases are collected.
4 Bond v. Fitzpatrick, 4 Gray (Mass.) 89, 92 ; Bullis v. Montgomery, 50 N. Y. 358,
rev'g 3 Lans. 258.
6 1 Greenl. Ev. 190; 1 Tayl. 713.
6 Paige v. Cagwin, 7 Hill. 361 ; Freeman's Sav. <fec. Co. v. Dodge, 93 U. S. 379.
1 Jones v. East Society, <fec. 21 Barb. 174.
8 Smith v. Webb, 1 Barb. 234; Beach v. Wise, 1 Hill, 612; Freedmen's Sav. <tc,
Co. v. Dodge, 93 U. S. 379.
ACTIONS BY AND AGAINST ASSIGNEES. 13
the transferee, 1 unless there is a present identity of interest be-
tween them. 8 And even the fact of the assignor having died
"before the trial does not allow the declarations to be admitted
under the familiar rule that declarations against interest, by a
person since deceased, are competent. 3
32. Preliminary Question.'] An offer to give the acts and
declarations of an assignor in evidence against his assignee, should
be so framed as to show that they were made before the transfer, 4
and are admissible as having been made against interest at the time
when they were made ; and the judge must determine the ques-
tion of their admissibility, and not leave it to the jury to deter-
mine when thoy were made. 5 If, on the evidence, it be left in
doubt whether the declarations were made before or after the
transfer, they must be excluded. 6
33. Distinction between Declarations and Transactions^
The rule of exclusion is aimed at loose oral declarations and con-
duct having not the quality of contract or estoppel. It excludes,
therefore, not only evidence of words, but evidence of acts offered
as merely in the nature of admissions, such as the assignor's dis-
continuing an action brought for the same cause, and suffering
judgment for costs ; 7 but it does not exclude evidence of effective
transactions, such as a message sent by the assignor while owner,
to the debtor, on which the latter acted or gave assent, so as to
constitute an agreement; 8 or such as the act of a bank, the- as-
signor, in crediting a payment in its pass-book delivered to its
debtor. The rule cannot apply against written evidence put into
the debtor's hands by the assignor before the assignment. 9 To
1 The language of the court in Paige v. Cagwin, applies the rule only to purchas-
ers in good faith and for value, but subsequent cases have extended it to one holding
a sealed assignment, without other proof of consideration; Prouty v. Eaton, 41
Barb. 416 ; s. p. Pringle v. Pringle, 59 Pa. St. 289 ; to a legatee, Smith v. Webb, 1 Uarb.
230 (but see Smith v. Sergent, 2 Hun, 107) ; and to a voluntary assignee in trust
for creditors ; Bullis v. Montgomery, 60 N. Y. 358, and cases cited; 40 Id. 226. The
rule (.f exclusion is available only for the protection of a subsequent purchaser or
assignee. A stranger who does not claim under the declarant, but only proves the
declarant's claim by way of defeating plaintiffs title, cannot object to the declara-
tions, if admissible as declarations against interest by a person since deceased.
Schenck v. Warner, 37 Barb. 258.
8 Cases cited in Paige v. Cagwin, 7 Hill, 361. The true criterion of identity of
interest is whether the action is for the immediate benefit of the assignor. Jones v.
East Society, 21 Barb. 175.
3 Nelson, Ch. J., Stark v. Boswell, 6 Hill, 405; s. p. 1 Barb. 234 ; and aee 37 Id.
821.
4 Jermain v. Denniston, 6 N. Y. 276; Ball v. Loomis, 29 Id. 416. This is the N.
Y. rule. To the contrary, Magee v. Raiguel, 64 Pa. St. 110, rev'g 7 Phil. 231.
6 Vrooman y. King, 36 N. Y. 477, 484 ; s. p. Jones v. Hurlbut, 39 Marb. 403. If
the plaintiff maintains that the assignor had an interest, defendant is not precluded
from offering the assignor's admission by the fact that he denies the assignor had
any interest. Eaton v. Corson. 69 Me. 612.
6 Vrooman v. King, 36 N. Y. 477.
7 Tousley v. Barry, 16 N. Y. 497.
8 Smith v. Schanck, 18 Barb. 344.
9 Jermain v. Denniston, 6 N. Y. 276.
14: ACTIONS BY AND AGAINST ASSIGNEES.
illustrate the distinction in another form, an unrecorded mort-
gage cannot be given priority over a recorded mortgage by mere
evidence that tne assignor of the latter declared or admitted,
while he held it, that he took it with notice of the former ; but
this may be done by offering a written stipulation given by him
to the owner of the former, defining their relative precedence.
His admissions are not competent against his assignee ; his agree-
ment is. 1
34. Declarations Admitted in case of Conspiracy. ~\ Where a
combination is shown to have existed between the assignor and
the assignee, by preliminary evidence independent of the declara-
tions of either, then the declarations of each, made while acting
in furtherance of the wrongful scheme, and during the existence
of the combination, are competent against the other, upon the
familiar rule applicable to the declarations of co-conspirators, 2 and
it need not be shown that such other had any knowledge of the
declarations. 3
35. Receipt, &c. of the Assignor.] A formal release or re-
ceipt, given by the assignor to the debtor, before the transfer, is
competent 4 against the assignee; but the date of the paper is not
even presumptive evidence against the assignee that it was then
given. 5 There must be extrinsic evidence that it was given be-
fore the assignor parted or assumed to part with the chose in
action, in order to render it competent. If, on the evidence
adduced, it be left in doubt whether the discharge was given be-
fore or after the transfer, it must be excluded. 6
36. Notice to Produce.] To lay the foundation for secondary
evidence of the contents of a paper in the hands of the assignor,
notice to the plaintiff to produce it is not sufficient. The assignor
should be subpoanaed to produce it. 7
1 Fort v. Burch, 6 Barb. 60, 77 ; Beers v. Hawley, 2 Conn. 467.
s See Cuyler v. McCartney, 40 N. Y. 226, rev'g 33 Barb. 165; and cases cited;
Lee v. Huntoon, Hoffm. 458 ; Adams v. Davidson, 10 N. Y. 309.
3 Nudd v. Burrows, 91 U. 8. 438.
4 Jermain v. Denniston, 6 N. Y. 276.
5 Foster v. Beals, 21 Id. 250; Smiths v. Shoemaker, 17 Wall. 637. The contrary
has been ruled ; Rose. N. P. 38 ; 69 Pa. St. 289 ; and correctly so in the case of
entries made in the usual course of business. Jermain v. Denniston, above ; and see
56 N. Y. 507.
Foster v. Beals, 21 N. Y. 250 ; s. P. 36 Id. 477.
1 Chaffee v. Cox, 1 Hilt 78.
CHAPTER II.
ACTIONS BY AND AGAINST ASSOCIATIONS.
1. Voluntary associations. 2. Joint stock companies.
1. Voluntary Associations. ~] A voluntary association is a
body who form their organization, conduct affairs, and settle ac-
counts as if they were a corporation ; but, not having the legal
immunities of a corporation, are liable individually if at all to out-
siders. Hence in actions between the members, the law, giving
effect to their agreement, applies rules of evidence which are ap-
plied to corporations, 1 while in actions between them and
strangers, the principles applicable in cases of agency or partner-
ship prevail. 2 A stranger may prove the existence of the asso-
ciation and the membership of the defendants by parol, without
accounting for the written articles, 3 unless the contents of the
articles are necessary to establish the scope of the agency by
which the contract was made. Even where the action is on a
contract of the body, plaintiff is not bound to prove that he has
joined all the associates, unless non-joinder is pleaded with names,
&c. ; 4 but if any of the defendants denies the alleged joint con-
tract, plaintiff must prove the joint liability of all the defendants
named 071 the record. It is not enough to show a several con-
tract by that part of the defendants who appear. Where, how-
ever, the liability of the association is proved, it is enough for
plaintiff to show that the litigating defendant was a member of
the association, and so jointly liable with those whose membership
is proved or admitted. 5 Membership may be proved by any evi-
dence which sufficiently identifies the member with the associa-
tion to show that he allowed it to be his agent for the purpose of
the transaction ; 6 for instance the fact that he subscribed uncon-
ditionally, though he never took any stock ; 7 or that he paid up a
subscription made in his name. 8 And actual membership having
1 Tyrrell v. Washburn, 6 Allen, 472.
* Abb. Dig. Corp. 47, note; Park v. Spaulding, 10 Hun, 128 ; Bullard v. Kinney,
10 Cal. 60; Ebbinghousen v. Worth, 4 Abb. New Cas. 300, note.
8 Cutler v. Thomas, 25 Vt. 73 ; though otherwise in an action between the mem-
bers.
4 Fowler v. Kennedy, 2 Abb. Pr. 847.
* Downing v. Mann, 3 E. D. Smith, 86. Compare Mott v. Petrie, 15 Wend. 317.
e Taft v. Warde, 111 Mass. 522.
T Spear v. Crawford, 14 Wend. 20; Bodwell v. Eastman, 106 Mass. 526,
8 Frost v. Wulker, 60 Me. 470.
16 ACTIONS BY AND AGAINST ASSOCIATIONS.
been shown, it is not necessary that the plaintiff should have
known of or relied on it in giving credit. 1 Defendant is exoner-
ated by proof of a termination of membership before the debt
was contracted, unless the plaintiff dealt with the association
knowing of and relying on defendant's membership, in which
case defendant must prove notice of his withdrawal, as in case of
a partnership. 8 All the members are presumably cognizant of
the rules contained in their records openly kept within access of
the members. 3
2. Joint Stock Companies, c&<?.] Joint stock companies and
some other associations are organized under laws giving to mem-
bers of voluntary associations without full incorporation some of
the immunities of corporations, principally in three ways : 1. Al-
lowing suits to be in the name of an oflicer, instead of joining
the members ; 2. allowing withdrawal, by transfer of shares, with-
out dissolution of the organization ; and, 3. requiring judgment
to be had and enforced against the associate property, before
action can be brought against a member. Under these statutes
the association is deemed the party, although an officer be named
on the record ; and the question whether rules of evidence drawn
from the law of partnership or from the law of corporations,
should control, depends upon the same tests as in case of a
mere voluntary association. The better opinion is that a foreign
joint stock company formed under such laws, is to be treated, as
far as may be, as a corporation, not a mere partnership. 4
1 Bodwell v. Eastman, 106 Mass. 526.
J Park v. Spaulding, 10 Hun, 128.
3 Rose. N. P. 38 ; 1 Phill. Ev. 447.
4 Westcott v. Fargo, 61 N. Y. 542 ; Liverpool Ins. Co. v. Massachusetts, 10 Wall.
566. Contra, Gott v. Dinsmore, 111 Mass. 51 ; Taft v. Ward, 106 Id. 618.
CHAPTEE HI.
ACTIONS BY AND AGAINST CORPORATIONS.
I. PROVING CORPORATE EXISTENCE.
1. Pleading.
2. Strict proof not usually required.
8. Exceptional cases.
4. Incorporation incidentally in
issue.
6. Legislative sanction necessary.
6. Domestic corporation general law
or charter.
7. Evidence of authenticity of statute.
8. National bank.
9. Corporation of sister State.
10. Corporation of foreign State.
11. Mode of proving de facto existence.
12. Acceptance of charter.
1 3. Organization under general law.
14. Official permission to do corporate
business.
1 5. Disregard of statute conditions.
16. Effect of proof of user.
17. Mode of proving user.
18. Admission of incorporation.
1 9. Estoppel against the company.
20. Estoppel against those dealing with
the company.
21. Estoppel against members and sub-
scribers.
22. The estoppel liberally applied.
23. General principle as to proof of in-
corporation.
24. Materiality of date.
25. Misnomer.
26. Fraud, forfeiture or non-user.
II. CORPORATE POWERS IN GENERAL.
27. New powers.
28. Distinction between original pow-
ers of corporation and delegated
powers of officers.
29. Evidence of delegation of power.
80. Presumptions as to corporate acts.
III. CONTRACTS BY A CORPORATION.
31. Implied promises.
82. Simple contracts in writing.
83. Sealed instruments.
84. Corporate acceptance of deeds, <fec.
85. Contract ambiguous aa to party.
IV. TORTS BY A CORPORATION.
36. False representations by meeting.
2
IV. TORTS BY A CORPORATION continued.
87. Frauds by directors.
38. Wrongs by officers or agents.
V. MEETINGS AND BY-LAWS.
39. Evidence of regularity of meetings.
40. Acts by parol.
41. Pleading by-laws, <fcc.
42. Proof of by-laws.
VI. AUTHORITY OF OFFICERS, AGENTS AND
MEMBERS.
43. Evidence of appointment of officers
and agents.
44. Evidence of express authority.
45. Implied scope of authority.
46. Authority implied in title of office.
47. Testimony of officer or agent.
48. Ratification.
VII. ADMISSIONS, DECLARATIONS AND NO-
TICE,
49. Admissions and declarations of
members.
60. Admissions and declarations of offi-
cers, <fec., authorized to speak.
51. Admissions and declarations made
as part of res gcstce.
52. Admissions and declarations before
incorporation.
53. Notice.
VIII. BOOKS AND PAPERS.
54. Corporation books and papers as
evidence.
65. Statutory record.
66. Minutes of proceedings.
67. Against whom evidence of corpo-
rate acts is competent.
58. The minutes not exclusively the
best evidence.
69. Authentication of corporate books
when produced.
60. Rough minutes.
61. Competency of copies.
62. Reports.
63. Foundation of secondary evidence.
64. Notice to produce.
65. Parol evidence to vary corporate
minutes.
66. Accounts and business entries.
[in
18 ACTIONS BY AND AGAINST CORPORATIONS.
I. PROVING CORPORATE EXISTENCE.
1. Pleading as to corporate existence^ It is now the gen-
eral rule that a corporation, whether domestic 1 or foreign, 2
suing in a name appropriate to a corporate body, may prove
its incorporation when necessary, even though not alleged in
its pleading. 8 At common law, proof of corporate existence was
essential under the general issue, 4 as jvell as under a special
plea of "nul tiel corporation." This is still the rule in New
York and some other States as to all other than " domestic " cor-
porations, 5 or corporations created by or under the laws of the
State in who^e courts the action is brought. 6 In respect to do-
mestic corporations (and in some States, in respect to all corpora-
tions) 7 the rule has been modified by dispensing with proof of in-
corporation unless incorporation is specially denied in pleading.
Where the plaintiffs expressly allege incorporation, an answer de-
nying each and every allegation of the complaint is a sufficient
denial. 8 The New York statute provides that in suits by or
against domestic corporations, the incorporation need not be
proved, unless denied by a verified allegation in the answer. If
so denied, it must be proved as at common law, 10 and under this
act it is the better practice to insert an express allegation that
there is no such incorporation. 11
2. Strict proof not Usually Required."} When evidence of
incorporation becomes necessary, it is enough, in ordinary actions,
to prove the existence of a corporation de facto, without proving
formal compliance with the requirements of the law or charter in
respect to the perfecting of the organization. In other words, it
1 Phoenix Bank of New York v. Donnell, 40 N. Y. 410, affi'g 41 Barb. 571, and
cases cited.
2 Camden & Amboy R. R. Co. v. Reiner, 4 Barb. 127, and cases cited; Paine v.
Lake Erie, <fec. Co. 31 Ind. 310, 354, s. c. 1 Withr. Corp. Cas. 386, 408.
3 Marine, <fec. Ins. Bank v. Jauncey, 1 Barb. 486. But where the provisions of a
private or foreign charter are'ma'terial to the cause of action, they should be pleaded.
Hahnemannian Life Ins. Co. v. Beebe, 48 III. 87, s. c. 1 Withr. Corp. Cas. 420.
4 Jackson v. Plurnbe, 8 Johns. 295, and cases cited ; "Williams v. Bank of Michigan,
1 Wend. 539, affi'g 5 Id. 478.
6 Watervillo Manuftcturing Co. v. Bryan, 14 Barb. 182.
' A corporation is none the less a domestic corporation, because having a charter
from another State. Muller v. Dows, 94 U. S. 444 ; also Ang. <fe A. G43, 7, a.
7 Star Brick Co. v. Ridsdale, 36 N. J. L. 229.
8 Gott v. Adams Express Co. 100 Mass. 320, s. c. 1 Withr. Corp. Cas. 623 ; Chance
V. Indianapolis 11. R. Co. 32 Ind. 422, s c. 1 Withr. Corp. Cas. 385.
9 L. 1875, p. 588, c. 508, am'd'g L. 1864, p. 1006, c. 422; 2 R. S. 458, 3. The
original statute applied only to Buits at law. See 13 N;.Y. 309. Whether such
special denial is a mere denial or "new matter," see 12 Barb. 573; 40 N. Y. 410.
The rules as to pleading and the necessity or burden of proof of incorporation are
much modified by local statutes relaxing the common-law requirements.
10 The short method of pleading incorporation, given by 2 R. S. of N. Y. 459,
13, in actions by or against corporations created under a law of the State, by recit-
ing the title of the act, and date of its passage, without reciting the act or proceed-
ings of incorporation, or setting forth the substance thereof, dues not relieve corpo-
rations from proving their existence. Onondaga County Bank v. Carr, 17 Wend.
443. In several States statutes exist still further reducing the common-law require-
ment of proof.
11 Moak's Van Santv. PI. 519.
PROVING CORPORATE EXISTENCE. 19
is enough to prove existence under color of law, without proving
a regular origin of existence in conformity to law. If the com-
pany had, in form, a charter authorizing it to act as a body cor-
porate, or acted under color of a general law sanctioning its pur-
poses, and if it was, in fact, in the exercise of corporate powers at
the time of the dealings in question, and at the time of litigation,
then it was and is, as to all except the State, a corporation de ;
facto. 1 This rule applies alike to actions brought by corporations i
as plaintiffs, whether upon contracts 8 or against wrong-doers,
and to actions brought against corporations, whether upon con-
tracts made or wrongs committed by them. 4
The three elements of strict proof of incorporation are : 1.
Legislative sanction ; 2. Existence under color of such sanction ;
3. ^Regularity of origin conforming to the sanction. The first may
now be generally supplied, in the case of domestic corporations,
by the doctrine of judicial notice, and, in the case of foreign cor-
porations, by the statute book ; the second and third are often
dispensed with by an estoppel ; the third is not required save
where the nature of the action demands strict proof.
3. Exceptional Cases. ~\ The cases in which it is necessary to
give strict proof of incorporation, that is, to prove not only the
being, but the right to be, are : 1. Actions by the State to ascer-
tain, or to put an end to corporate existence ; 5 2. Proceedings by
a private corporation, *in the 'exercise of a franchise in derogation
of common right ; for instance, to divest title to private property ; 6
3. Proceedings of a penal character by a private corporation; 7
4. Actions on contracts like subscriptions for stock, if the very
consideration is the legal organization of a corporation having a
right to existence. 8 In such cases the inquiry may extend to the
due compliance with all the requirements of the law ; but often,
even in these cases, it is narrowed or precluded by estoppel or ad-
mission. 5. Where the question is whether there is corporate
power to take by will, sufficient regularity of origin to show an
attempt in good faith to comply with the law may be required.
1 Jones v. Dana, 24' Barb. 399, ALLEN, J.
2 In Methodist Ep. Ch. v. Pickett, 19 N. Y. 482, and Slocum v. Warren, 10 R. I.
124, this rule is laid do.wn in terms applicable only to actions on contracts made by
the other party with the supposed corporation; but the reasons of the rule (which
are explained in those cases, and in Narragansett Bank v. Atlantic Silk Co., cited be-
low), are equally applicable, and in practice the rule is actually applied, to all actions
in the nature of private remedies, with the exceptions indicated in paragraph 3.
3 .Searsburgh Turnpike Co. v. Cutler, 6 Vt, 315.
4 Narragansett Bank v. Atlantic Silk Co. 3 Mete. 288, SHAW, Ch. J. "Whatever
the alleged corporation would have to prove in an action brought by it, on an is^tie
of "no such corporation," may be controverted in an action against the supposed
corporation, for relief based on the corresponding allegation that no such corporation
ever existed; but beyond this the party contesting the claim of corporate existence
cannot go. ALLEX, J., Jones v. Dana, 24 Barb. 398.
5 Ang. <fc A. 94 ; N. Y. Code of Pro. 430, 432.
8 See Searsburgh Turnpike Co. v. Cutler, 6 Vt. 314. Contra, Matter of N. Y.
Elevated Rw. Co., 3 Abb. New Cases.
7 Commonwealth v. U. S. Bank, 2 Ashm. 849.
8 See Railw. Co. V. Allerton, 18 Wall. 233.
20 ACTIONS BY AND AGAINST CORPORATIONS.
4. Incorporation Incidentally in Issue.'] If the corporation is
not a party, and its existence is only collaterally in question, as
for instance, on indictment for counterfeiting bank notes, or in an
action on a stockholder's contract for sale of stock in a reputed
corporation, where fraud is not alleged, less proof suffices than in
actions by or against the corporation ; but, if its existence is di-
rectly in issue, even where it is not a party, as, for instance, wfcere
an individual defends on the ground that a private corporation
was the real party in interest, and liable in his stead, 1 the rules
stated in this chapter will apply. In proceedings to enforce ordi-
nances of a municipal corporation, the illegality of the corporate
organization cannot be shown to defeat a recovery ; in such a col-
lateral proceeding, evidence that the corporation is acting as such
is all that is required. 2
5. Legislative Sanction Necessary.] By the American law,
evidence of mere user, however long continued, is not enough to
prove the existence of a private corporation. 8 There must be
legislative sanction, 4 usually to be shown only by the existence of
a charter, 6 or some statute under which the supposed corporation
/ might lawfully be created ; and the better opinion is (although
/ many of the cases fail to indicate the distinction), that the familiar
i rule forbidding one who has dealt with a body as incorporated, to
question its corporate character, does not apply to the question of
/ legislative sanction. The estoppel Serves only in place of evi-
dence of the existence and regularity of organization, it does not
preclude denying the existence or validity of a law affording the
necessary sanction. 6 Otherwise corporations could be formed by
contract. But a legislative recognition of the existence of a cor-
poration as, for instance, by a statute even modifying its name
is, if coupled with some evidence of user, or admission, conclu-
sive evidence of its existence, as against every one but the State. 7
1 Williams v. Sherman, 7 Wend. 109.
1 Dill. Mun. C. 440, 351.
s Per SELDEX, J., Methodist Ep. Ch. v. Pickett (above). Especially if the acts are
such as an unincorporated body might perform. Greene v. Dennis, 6 Conn. 292.
For statutory exception in the case of Plank Road Companies, see L. of N. Y. 1855,
c. 546, 1 ; Belfast, <fcc. Plank Road Co. v. Chamberlain, 32 N. Y. 651. That a
charter was once granted to a municipal corporation may be presumed from very
long user. 1 Dill. M. C. 168; Robie v. Sedgwick, 35 Barb. 327.
4 Such, for instance, as that it claimed to be and acted as a town with the knowl-
edge and assent of the legislature. Bow v. Allenstown, 34 N. H. 365, and cases cited ;
but see Welch v. Ste. Genevieve, 1 Dill. C. Ct. 136. But the recognition must be legis-
lative. Recognition by the executive is not enough. People v. Phoenix Bank, 24 Wend.
431.
5 Proof of the destruction of public records in the same repository as the charter
is admissible to explain the omission to produce a charter. Bow v. Allenstown, 34
N. H. 351 ; and, in such a case, evidence of reputation and forty years' user, maybe
sufficient. Dillingham v. Snow, 5 Mass. 547.
6 Heaston v. Cincin. R. R. Co. 16 Ind. 275. There can be no estoppel in the way
of ascertaining the existence of a law. Town of South Ottawa v. Perkins, 94 U. S.
267; Snyder v. Studebaker, 19 Ind. 462. Compare Phoenix Warehousing Co. v.
Badger, 6 Hun, 293, where the estoppel was extended to the question whether the
corporate object was within the scope of the statute.
7 Green's Brice's Ultra V. 21, n. f, and cases cited.
PROVING CORPORATE EXISTENCE. 21
6. Domestic Corporation General Law or Charter. .] The
courts 1 take judicial notice, not only of the general laws under
which corporations are now usually formed, 3 but also of the ex-
istence and contents of special charters of municipal corporations.
They may do so respecting other public corporations, but the
line of distinction between public and private corporations is ill-
defined, and, in practice, a special charter, or so much of it as is
material, should be put in evidence. It may be read from the
volumes printed by authority of the government, 5 or (as is more
convenient for inserting the charter in the record as an exhibit),
by producing a certified copy. 6
7. Evidence of Authenticity of Statute.] The presumption is
that a statute published by authority of the government was cor-
rectly passed in respect to form. The objection that the'requisite
forms were not observed e, <?., that three-fifths were not present,
<fec., must be pleaded, where the course of pleading requires
the statute to be pleaded, and .must be -affirmatively proved. 7 The
court may, and should, 8 if necessary, look beyond the printed statute
book and examine the original engrossed bill on file in the officeiof
the Secretary of State, to ascertain if a bill had a constitutional
vote. 9 Whenever the existence of a statute, or the time when a
statute took effect, or the precise terms of a statute, are in ques-
tion, the judges have a right, unless a different rule has been en-
acted, to resort to any source of information which, in its nature,
is capable -of conveying to the judicial mind a clear and satisfac-
tory answer to such questions ; al way s seeking first for that which,
in its nature, is most appropriate. 10 Hence they may look to other
connected records to ascertain the date of enactment, if no date
appears in the official certificate. 11 So they may look beyond the
authentication of the act, to the journal of either branch, to see
if the bill passed by the constitutional vote. 12 But the better
1 Including courts of United States held within the State. Covington Draw-
bridge v. Shepherd, 20 How. U. S. 227.
2 But not of the organization of the company under it. Danville, Ac. Co. v.
State, 16 Ind. 456.
3 Prell v. McDonald, 7 Kans. 426, s. c. 12 Am. R. 423, and cases cited; and see
25 Ind. 612.
4 See Abb. Dig. Corp. tit. Pub. C. Priv. C. ; 1 Whart. Ev. 294.
5 Wood v. J efferson County Bank. 9 Cow. 194; People v. Supervisors of Che-
nango, 8 N. Y. 317 ; Howell v. Ruggles, 5 Id. 444 ; N. Y. L. of 1843, p. 80, c. 98, g 2;
N. Y. Code of Civ. Pro. 932, or within six months after the close of the session at
which it was passed, it may be read from a newspaper officially designated to publish,
the laws.
6 Duncan v. Duboys, 3 Johns. Cas. 125.
' People v. Supervisors of Chenango, 8 N. Y. 31*7.
8 But see 4 Centr. Law J. 132.
9 Purdy v. People, 4 Hill, 384, rev'g 2 Id. 31.
10 Gardner v. The Collector, 6 Wall. 511.
11 Id. 509.
12 Osburn v. Staley, 5 W. Va. 85, s. o. 13 Am. R. 640, and cases cited ; Skinner
v. Deming, 2 Ind. 558 ; Purdy v. People (above). Contra, Grob v. Cushman, 45 111.
119 ; Louisiana State Lottery Co. v. Richoux, 23 La. An. 743, B. c. 8 Am. II
Sherman v. Story, 30 CaL 253 ; State ex rel. Pangborn v. Young, 3 Yroom (N. J.) 29.
22 ACTIONS BY AND AGAINST CORPORATIONS.
opinion is that this inquiry for more cogent evidence than the
promulgated form of the law can go no further than to ascertain
the facts of enactment and taking effect. If the act is found to
have been passed by a constitutional vote, the legislative journals,
or other sources of information, are not competent to impeach it
on the ground of irregularity or departure from parliamentary
usage in the proceedings of the legislature, 1 nor to show that the
contents of the act had been changed by a mistake of the engross-
ing clerk. 2 For qualifications of these rules the local statutes
should be consulted. 3
8. National Bank.~\ The existence and organization of a na-
tional bank may be proved by producing the certificate of the
comptroller of the currency, under his hand and seal, reciting
that it had been made to appear that the bank had been duly or-
ganized, and certifying that it was duly authorized to commence
business (without producing the record of organization), together
with testimony to user by a witness cognizant of the fact of their
carrying on business. 4
9. Corporation of Sister State.'] To prove the general law of
incorporation, or the charter of a corporation of another State or
territory of the Union, the practitioner may either pursue the
mode provided by the law of the forum, which usually permits
the law 5 of a sister State or territory to be proved by producing
a book or publication, purporting or proved to have been pub-
lished by its authority, or proved to be commonly admitted as evi-
dence of the existing law, in the tribunals thereof (and such
evidence may be admitted on general principles without an en-
abling statute) ; 6 or he may pursue the mode prescribed by the
act of Congress, 7 and produce a copy certified to by the Secretary
of such State, under the seal of the State ; 8 and in strictness a copy
1 People v. Devlin, 33 N. Y.269; Elevated R. R. cas. 3 Abb. New Cas. 301, 372, n.
s Mayor, Ac. of Annapolis v. Harwood, 32 Md. 471, s. c. 8 Am. R. 161.
8 By the N. Y. law, the Secretary of State's certificate upon the original bill of the
date of passage is conclusive. 1 R. S. 157, 11 ; People v. Devlin (above). No bill
can be deemed passed by two-thirds vote (1 R. S. 157, 3), nor when three-fifths
were present (L. 1847, c. 253), unless so certified by the presiding officers of both
houses ; but the Secretary of State's statement, in the title of the published law, that
it was passed in either way, is presumptive evidence that the bill was certified by the
presiding officers as so passed, and his omission to insert such statement is presump-
tive evidence that it was not so passed. L. 1847 (above) ; L. 1842, c. 306. 3 ; and
by L. 1837, c. 140, certified copies of petitions and papers presented to the legisla-
ture, areprima facie evidence.
4 Merchants' Bank v. Glendon Co. 120 Mass. 97.
6 Persse & Brooks Paper Works v. Willett, 1 Robt. 131, s. c. 19 Abb. Pr. 416;
Barrett v. Mead, 10 Allen, 339; Paine v. Lake Erie, <fec. Co. 31 Ini 310, 354,
B. c. 1 Withr. Corp. Cas. 88fi, 408.
8 See People v. Calder, 80 Mich. 85, and cases cited. But a statute book of another
State, not purporting nor proved to be published by authority, nor proved to be
commonly admitted and read as evidence in the courts of that State, is not admissi-
ble. Matter of Belt, 1 Park. Cr. 169.
1 U. S. R. S. 170, 905.
8 Grant v. Henry Clay Co. 80 Pa. St. 208.
PROVING CORPORATE EXISTENCE. 23
under the seal of the State whose law it is, is competent in the
courts of another State l and in the courts of the L nited States, 2
without any certificate that it is a copy, and without proof of the
seal, or of the official character of the secretary. 3 Or in the case
of a special charter, he may produce a copy, with proof by a wit-
ness who has examined and compared the copy with the original
in its proper place of custody ; 4 and if proof by an authenticated
copy fails, from a defect in the authentication, he may fall back
upon this mode. 5
10. Corporation of foreign State.~\ In the case of a corpora-
tion of a foreign nation or country, an exemplified copy may be
produced, certified in the manner prescribed by the law of the
forum ; 6 or the statute or charter may be read from the officially
promulgated publication of the laws or edicts of the foreign State
containing the charter ; 7 or a copy may be proved by a witness as
stated in the last paragraph. 8
11. Modes of Proving De Facto Existence.'] Legislative sanc-
tion having been shown, there are four principal ways in which
the practical existence of the corporation on that foundation is
shown : 1. By evidence of the formal acceptance of the charter,
or the organization of the incorporators under the statute ; 2. By
evidence that the executive officers of the State have authorized
the company to proceed with corporate business, upon the as-
sumption that they were duly organized and entitled to act ; 3.
By evidence that they have actually proceeded to exercise cor-
porate franchises ; 4. By evidence that the very dealings between
them and the adverse party, which gave rise to the action, were
had on the basis of a supposed incorporation, and amount to an
admission which ought to conclude the question.
It is best to be prepared with some evidence both of organi-
zation and of user, but the requisite cogency of proof, and the
1 Coit v. Millikin, 1 Den. 376 ; State v. Carr, 5 N. H. 369.
8 Id. ; U. S. v. Johns, 1 Wash. C. 369.
3 See Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 887. In the absence
of evidence to the contrary, the letters patent issued by the executive of another
State, reciting the passage of the charter, and certifying the performance of its con-
ditions, have been held sufficient evidence of the existence of a charter. Wellers-
burgh, <fec. Co. v. Young, 12 Md. 476. The seal is judicially noticed; but if it is not
a common-law seal, be prepared to prove the foreign law as to seal. Courts requiring
a common-law seal have refused to take notice of foreign statutes allowing public
seals to be a mere impression on paper. Coit v. Millikin, 1 Den. 376.
4 For objections which may perhaps be raised, unless there are two witnesses, one
of whom has read one, while the other read the other, <fec., see 1 Whart. Ev. 94.
* Soc. for Prop, of the Gospel v. Young, 2 N. H. 312. The testimony of an at-
torney at law of a sister State is not legal evidence of the statute law of that State
where it affects the merits of the case ; but the statute being proved, an attorney may
testify as to its interpretation by the law of the State. 1 GreouL Ev. 13th ed 535,
486, Ac., and cases cited.
N. Y. Code of Pro. 426 ; Code of Civ. Pro. g 956-8.
7 N. Y. Code of Pro. 426 ; Code of Civ. Pro. 942.
8 National Bank v. Do Bernales, 1 Car. <fe P. 569.
24 ACTIONS BY AND AGAINST CORPORATIONS.
question how far proof of either of these facts is enough without
the others, depends on some considerations which have given rise
to much apparent diversity in reported cases, 1 and attention to
which is necessary to guide in the application of established prin-
ciples. 1. If the record of the organization is put in evidence, in
proportion as it is full and regular, the necessity of proving user
is reduced. 2. He who has participated in acts of user must
yield to much slighter evidence of organization than he who is a
stranger to the corporation. 3. He who has participated in the
steps of organization cannot usually avoid responsibility by ob-
jecting to tiie regularity of those steps, and must yield to slighter
evidence of user than a stranger. 4. He who has received and
enjoyed a consideration from the company cannot require fur-
ther proof of its corporate power to contract, or to require him
to respond. 5. One who has in any way dealt witli the company
as a corporation is taken to have admitted its existence, and this
admission, though alone slight evidence, comes in aid of other
, , proof. 6. A mere trespasser, claiming no title, cannot require
I evidence of regular organization. 2
12. Acceptance of Charter '.] Acceptance of a special charter
may be proved by producing the corporate minutes, 3 duly authen-
ticated, 4 containing a vote of acceptance ; and the notice of the
first meeting need not be proved in the first instance, but may be
presumed after a lapse of time, 5 or after user. 6 Or the accept-
ance may be shown by indirect evidence, such as official notice of
acceptance given to the State officers, 7 or a notice calling a meet-
ing to organize, signed by the defendant as a corporator. 8 In
general, evidence that the body in its organic capacity (as distin-
guished from the individual conduct 01 the corporators), acted
under the charter, is sufficient evidence of acceptance, unless the
charter prescribes a different method. 9 Any unequivocal or de-
cisive corporate act 10 is competent evidence of acceptance. 11 And
1 Soon after the introduction of the method of incorporation by general law,
moreover, the courts relaxed the stricter rules of proving regular incorporation,
which were often formerly applied.
2 But this consideration does not apply in ejectment by a corporation, so as to
make an exception to the rule that the plaintiff must recover on the strength of hia
own title. Goulding v. Clark, 84 N. H. 148.
It is the varying effect of such considerations as these which explains the want of
any well defined line as to the requisite cogency of proof of user referred to in De
Witt v. Hastings, 40 Super. Ct. (J. & 8.) 4j63.
8 Middlesex Husbandmen, <fcc. v. Davis, 3 Mete. 133.
4 See paragraphs 66-59, below.
* Grays v. Turnpike Co. 4 Rand. 5*78.
* Middlesex Husbandmen v. Davis, 3 Mete. 133.
7 Philadelphia Bank v. Lambeth, 4 Rob. (La.) 463.
8 Gleaves v. Brick Church Turnpike Co., 1 Sneed, 491.
9 Bangor, <fec. R. R. Co. v. Smith, 4Y Me. 34 ; Taylor v. Cocrairs. of Newberne, 2
Jones Eq. 141.
10 Thus acceptance of an act allowing a resurvey and alteration of route, is not
proved by evidence of resurvey, without alteration. Pingry v. Washburn, 1 Aik. 264.
11 Abb. Dig. Corp. 147.
PROVING CORPORATE EXISTENCE. 25
acceptance may be presumed from the fact that the corporators
applied for the charter, 1 unless it appears that no proceedings
were ever taken under it. 2 The rule requiring some evidence
of the acceptance of a charter does not apply to municipal corpo-
rations, 8 nor to any charters which are so expressed as to take
effect in creating the body corporate independently of any acts
on the part of the corporators ; 4 but if a charter of even a mu-
nicipal corporation be made expressly to depend on acceptance,
there must, when incorporation is properly in issue, be some evi-
dence of acceptance. 5 Acceptance may be disproved by evidence
of proceedings of the body declining the charter, and resisting a
quo warranto on the ground that they had never accepted it. 8
13. Organisation under General Lawl\ If the legislative
sanction relied on is a general law, the existence of the corpora-
tion under it may be proved, unless the law otherwise provides,
by producing the certificate of organization which the law re-
quired to be filed, 7 with proof of its filing. 8 "Where strict proof
is not required, parol evidence of filing has been received in lieu
of official certificate. 9 The statutes now in force usually make
the record of the certificate, or a certified copy, evidence equally
with the original; but in the absence of such a provision the
original is the best evidence, 10 but a certified copy is admissible
against the company, if, on notice, they fail to produce the
original. 11 If the statute requires filing a duplicate in another
office, it is the better practice to prove both ; u but in all the
1 Middlesex, <fec. Soc. v. Davis, 3 Mete. 133 ; State v. Dawson, 22 Ind. 272.
8 Newton v. Carberry, 6 Cranch C. Ct. 632.
8 Gorham v. Springfield, 21 Me. 58 ; Berlin v. Gorham, 34 N. H. 266 ; Mining,
<fec. Co. v. Windham Co. Bk. 44 Vt. 497.
4 Some authorities treat the question as if it depended on whether the act was to
take effect immediately or not ; but the true test is, Is its language alone enough to
constitute the body a corporation (either immediately or at a subsequent day), or is
it such as to require the performance of a condition to effect the creation ?
6 See City ot'Paterson v. Society, 4 Zabr. 386.
Thompson v. Harlem R. R. Co. 3 Sandf. Ch. 625.
7 Chamberlin v. Huguenot Manuf. Co. 118 Mass. 532; Fortin v. U. S. Wind En-
gine, &c. Co. 48 111. 451, s. c. 1 Withr. Corp. Cas. 437.
B Meriden Tool Co. v. Morgan, 1 Abb. New Cas. 125. The duplicate filed in the
Secretary of State's office need not be proved where strict proof is not required.
Id. ; s. P. 25 N. Y. 574; 14 Cal. 424. Proof of filing aftt-r suit brought has been
held enough in an action on a contract with the corporation. Augur, tc. Co. v.
\Vhittier, 117 Mass. 451 ; and see 20 N. Y. 157. Otherwise in an action to enforce
an assessment on land*. New Eel River Draining Assoc. v. Durbin, 30 Ind. 173,
s. c. 1 Withr. Corp. Cas. 353. As to the cases in which failure to provu filing may
be fatal, see Hawes v. Anglo-Saxon Petroleum Co. 101 Mass. 385, and cases cited.
In what case the certificate is conclusive, see Priest v. Essex Hat Co. 115 Id. 880.
For an opinion insisting on the proof of performance of the statute conditions, in
case of organization under a general law, see Mokelumne, <fec. Co. v. Woodbury, 14
Cal. 424.
9 Miller v. Wild Cat, <tc. Co. 52 Ind. 61.
10 Jackson v. Leggett, 7 Wend. 377 ; Evans v. Southern, <tc. Co. 18 Ind. 101.
11 Chamberlin v. Huguenot Mfg. Co. 118 Mass. 632.
11 A sworn copy of the original, with proof of filing in the county clerk's office,
26 ACTIONS BY AND AGAINST CORPORATIONS.
classes of cases where strict proof of incorporation is not requi-
site, evidence of the filing of either is enough to go to the jury,
whether in favor of or against the company, if there is evidence
either of user or that the defendant has admitted the fact of or-
ganization. 1 If the certificate states all that the statute requires
it to state, other facts, though made by the statute conditions
precedent to its validity, may be presumed. 2 In the case of a
corporation of a sister State, formed under its general statute, the
evidence of incorporation which such statute declares shall be
deemed sufficient to prove the fact of such incorporation, should
be deemed sufficient in the courts of the State where the case
arises, provided that due proof of the existence and contents of
such statute is also given/
14. Official Permission to do Corporate BnsinessJ] If the
statute requires an official certificate by supervising State officers
to authorize a corporation to commence business, a certificate that
it is so authorized, founded on a professed compliance with the
law and accompanied with proof -of user, is sufficient, but not ex-
clusive 4 evidence of its corporate existence, 5 at 6 and after the
time when it was given, 7 without further proof of organization. 8
Where the adverse party has dealt with the company as a corpo-
ration for instance as its collecting agent, its existence is suffi-
ciently proved by the general law and the certificate of organiza-
tion, without the certificate that it was authorized to commence
business. 9 But in an action for tolls, the official certificate is the
only and conclusive evidence of the condition of the way. 10
!5. Disregard of Statute Conditions.] "Where the question is
not raised by or against the State, nor upon a subscription con-
tract such as requires for its consideration a legal organization, the
and loss of the original, and production of a certified copy of the duplicate filed in
the Secretary of State's office, is sufficient. N. Y. Car Oil Co. v. Richmond, 6 Bosw.
213, s. c. 10 Abb. Pr. 185.
1 Leonardsville Bank v. Willard, 25 N. Y. 574 ; Bank of Toledo v. International
Bank, 21 Id. 542 ; De Witt v. Hastings, 40 Super. Ct. (J. & S.) 475.
4 All Saints' Ch. v. Lovett, 1 Hall, 191.
8 Eagle Works v. Churchill, 2 Bosw. 166 ; Ang. <fe A. on Corp. 635. Produce
an exemplified copy of the papers on file, with authentication of the certifying
officer's act and power, either according to R. S. U. S. W06, or according to the law
of the forum. And by a recent statute of New York, if the certificate of organiza-
tion of incorporation in any other State or territory, or in Canada, is by the local
laws prima fade evidence of its existence, the certificate duly exemplified, or an
exemplified copy, is equally evidence in the New York courts. L. 1877, p. 333, c.
811 ; see N. Y. Code of Civ. Pro. 957, 958.
4 Duke v. Cahawba Nav. Co. 10 Ala. N. S. 87, 91.
8 Jones v. Dana, 24 Barb. 402, ALLEN, J. At least to go to the jury.
Hyatt v. Esmond, 37 Id. 601.
1 Williams v. Babcock, 25 Barb. 109.
8 Grubb v. Mahoning Nav. Co. 14 Pa. St. 302. In Pill v. Great W. Turnpike Co.
14 Johns. 416, it was held that, as against a subscriber for stock, the executive certif-
icate of authority to commence business was not sufficient evidence of organization.
The records should be produced.
9 So held in case of a foreign corporation. Bank of Toledo v. International
Bank, 21 N. Y. 542.
10 Duke v. Cahawba Nav. Co. 10 Ala. N. S. 87, 91.
PROVING CORPORATE EXISTENCE. 27
fact that the steps of organizing, and proceeding to business, did
not comply with express conditions of the charter or general law, I
does not necessarily affect the case, if there is color of organiza-
tion and proof of user. 1 Compliance is presumed in the absence
of evidence to the contrary ; 2 and so long as the State does not
interfere, the question cannot be raised by an individual, unit
the statute makes it a peremptory condition precedent, plainly
intended as such. 8
16. Effect of Proof of User.] As a general rule, alike in ac-
tions by and against corporations, the other party sufficiently sup-
ports his allegation of incorporation by showing the charter, or
the general law and certificate filed, together with actual use of
the powers and privileges of an incorporated company under the
name designated in the charter or certificate. 4 User duly thus
proved is enough, without proving a formal acceptance of the
charter; 5 and where there, is proof of user, the certificate is ad-//
missible, though defective; 6 and if the steps taken for organiza-l ,
tion are so detective as to be merely colorable, the corporate ex-f ,
istence may still be shown by proof of user. 7 If performance or
conditions be necessary, proof of user raises a presumption of
performance. 8 One who participated in the acts of user cannot
object that there was no due incorporation. 9
17". Mode of Proving User.] A single act may not be suffi-
cient to establish user, 10 but any evidence is competent showing
the repeated performance of characteristically corporate acts ;
that is to say, acts which involve franchises which partnerships
and associations have no right to assume, for instance, presum-
ing to sue by a name of incorporation ; or to have and use a com-
mon seal ; or, without any joint stock company law, to claim a
perpetual succession by which to hold lands, or permit shares to
be transferable ; or the acquisition and enjoyment of the neces-
sary property for a corporate use ; n expenuing money and incur--
ring liabilities in preparation for corporate transactions ; 12 main-
1 Gaines v. Bank of Miss. 12 Ark. (Ens.) 769 ; Bank of Manchester v. Allen, 11
Vt. 302 ; Leonardsville Bank v. Willard. 25 N. Y. 574.
J Williams v. Cheney, 3 Gray, 220 ; and see 17 Mete. 592, and cases cited ; Co-
lonial Bank of Australasia v. Willan, L. R, 5 P. C. 417, s. c. 9 Moak's Ens:. 2'J:>.
3 Union Horse Shoe Works v. Lewis, 1 Abb. U. S. 518, s. c. 1 Withr. Corp.
Cas. 73.
4 Narragansett Bank v. Atlantic Silk Co. 3 Mete. 282, 288.
5 Trott v. Warner, 11 Me. 227; Came v. Brigham, 39 Id. 85.
* Danneborge Mining Co. v. Barrett. 26 Cal. 286.
I Even in an action on a subscription for stock. Buffalo, <fcc. R. R. Co. v. Cary,
26 N. Y. 75.
8 \\illiams v. Union' Bank. 2 Humph. 339.
9 Aspinwall v. Sacchi, 67 N. Y. 338, nnd cases cited.
10 Per ALLEN, J.. Buffalo, Ac. R. R. Co. v. Cary, 26 N. Y. 79.
II Buffalo, <fec. R. R. Co. v. Cary, 26 N. Y. 76; All Saints' Church v. Lovett, 1
Hall, 191.
u Buffalo, <tc. R. R. Co. v. Gary, above ; but compare Do Witt v. Hustings, 40
Super. Ct (J. & S.) 463, 475.
28 ACTIONS BY AND AGAINST CORPORATIONS.
taining a place of business where the company continually car-
ried on the corporate business specified ; l and the fact that their
business was managed by directors chosen from time to time ; 3
the fact that they issued or received, and acted on documents
such as insurance policies, bonds for fidelity of officers ; 3 and the
like.
18. Admission of Incorporation^ A mere parol admission
that the body was incorporated is competent evidence, against
the party who made it, of the fact of acceptance of the charter
or of organization under a general law, 4 but is never conclusive
unless connected with circumstances raising an equitable estoppel
against him. 5 To give cogency to such an admission or estoppel
it should clearly import corporate as distinguished from associate
character. 6 The estoppel does not conclude the party as to the
existence of legislative sanction, but only as to matters of fact,
such as organization and user. 7 And when the estoppel exists, it
need not be pleaded, but is to be given in evidence in aid, or in-
stead, of direct proof. 8
19. Estoppel against the Company.'] It is a general principle
that at least where there is an act or charter in existence under
which a company by taking the proper steps can become a cor-
poration, if a company does de facto organize and hold itself out
as a corporation, contracting obligations as such, it cannot, when
sued upon such obligations by persons who have dealt with it as
such, in good faith, be permitted to- avoid a corporate liability
thereon, by setting up that it has not taken all the steps pre-
1 U. S. Bank v. Stearns, 15 Wend. 314; Commonro r. Bakeman, 105 Mass. 56, 60.
8 Utica Ins. Co. v. Tillman, 1 Wend. 556 ; Wilmington, fec. R. R. Co. v. Saun-
dera, 3 Jones L. R. 126.
3 Cahill v. Kalamazoo Ins. Co. 2 Dougl. 124.
4 Thus defendant's letters, admitting that he held the money of the bank, plaintiff,
were admitted in evidence by Abbott, C. J., in connection with a charter raising a
question of misnomer, and it was left to the jury to say that the bank was the same.
Nat. Bk. v. De Bernales, 1 Car. & P. 569.
6 Welland Canal Co. v. Hathaway, 8 Wend. 480. This case is sound in its con-
clusion; although some of the reasons assigned as that a corporation could not be
estopped, and that an ambiguous admission would not be competent, are not now
safe guides. The fact that the note in suit was made payable at a specified national
bank, who are plaintiffs, does not raise a presumption of law that they are a corpora-
tion, but is only evidence for the jury. Hungerford Nat. Bk. v. Van Nostrand, 106
Mass. 559. So defendant's correspondence with a bank as its collecting agent is com-
petent, together with user of corporate franchises, under color of au act authorizing
the incorporation. Bank of Toledo v. International Bank, 21 N. Y. 542.
Contra, 1 Greenl. Ev. 13th ed. 240, 203. Many cases in the books lay down
the rule in unrestrained language to the effect that -he who deals with a corporation
cannot deny its character when sued on the contract, but the rule depends on the
existence of facts constituting an equitable estoppel. In the leading case, Henriquez
v. Dutch West India Co. 2 Ld. Raym. 1535, the cause of action was a bail bond given
by defendants to the company, plaintiff, in a name explicitly importing incorpora-
tion, and in an action in which the incorporation was proved.
6 Id. Contra, McBroon v. Lebanon, 31 Ind. 268, s. o. 1 Withr. Corp. Caa. 873.
T See paragraph 5, above.
NELSON, J., Welland Canal Co. v. Hathaway, 8 Wend. 482.
PROVING CORPORATE EXISTENCE. 29
scribed as conditions precedent to its legal existence. 1 When
such a defense is set up, it is for those who rely on it to show
that they acted under an honest mistake, and that the other party
was not misled to his prejudice thereby. 2 And upon the same
ground a corporation which has dealt in excess of its powers, and
retains the fruit of its dealing, cannot, nor can any one in its
place, refuse to pay the consideration to one who acted in good
faith. 8
20. Estoppel against those Dealing with the Company. ~\ Upon
the same principle one who has contracted with a de facto cor-
poration, either directly or through an agent designated as such
in an obligation naming the corporation, and who retains or has
applied the fruits of his dealings with it, 5 or who has accepted
from the company a corporate office and so received its property, 6
cannot contest his liability in respect to such dealings on the
ground of any defect in its organization, 7 noi^on the ground that
the dealings in question wej^ultra vires? or even forbidden by
the charter. 9 This estoppel, it is^tfueTls conclusive only as to
the existence and power at the time the transactions were had,
but the existence is presumed to continue so that corporate power
to sue and be sued is conclusively implied, unless dissolution by
the State is shown.
21. Estoppel against Members and Subscribers^ It is often
said that one who subscribes for stock in a company cannot, when
sued on his subscription, or on the corporator's individual lia-
bility for the debts of a corporation, question the corporate char-
acter and power to contract which he has thus admitted ; 10 but the
true rule in regard to members and subscribers is the same that
has already been stated in respect to other persons, that the ad-
mission is not conclusive unless there is . ground for an equitable
estoppel as, for instance, where one becomes a member of a mut-
ual insurance company, and, on giving a premium note, receives
a policy, 11 or where one not only receives certificates for shares, 12
1 Slocum v. "Warren, 10 R. I. 124, and cases cited.
* Callender v. Painesville, <fcc. R. R. Co. 11 Ohio St. 516, 626.
8 Parish v. Wheeler, 22 N. Y. 494.
4 Vater v. Lewis, 36 Ind. 283, s. c. 10 Am. R. 29.
6 Palmer v. Lawrence, 3 Sandf. 161, and cases cited.
6 All Saints Ch. v. Lovett, 1 Hall, 197.
7 Palmer v. Lawrence, above.
* Parish v. Wheeler, 22 N. Y. 494.
Steam Nav. Co. v. Weed, 17 Barb. 378, A. J. PARKER, J.
10 So held on demurrer in a frequently cited case. Dutchess Cotton Manuf. v.
Davis, 14 Johns. 238; and see Chubb v. Upton, Sup. Ct. U. S. Oct. 1877; 17 Alb.
L. J. 77.
11 White v. Ross, 4 Abb. Ct. App. Dec. 590; Trumbull Co. Mat. F. Ins. Co. v.
Homer, 17 Ohio, 407.
13 De Witt v. Hastings, 40 Super. Ct. (J. <fe S.) 475. The bare receipt of a cer-
tificate does not prove membership, much less corporate existence, 2 Whart. Kv.
1152, citing Challis" Case, L. R. 6 Ch. 266 ; but an acknowledgment of receiving or
holding them may. Id. ; Chubb v. Upton, above cited.
30 ACTIONS BY AND AGAINST CORPORATIONS.
but holds or appropriates the stock ; l or where he participates in
acts of user, thus aiding to hold out the company to the world as
a corporation.
22. The Estoppel Liberally Applied^ This rule of equitable
estoppel is freely applied in furtherance of justice, both against
companies and in their favor, and in favor of their receivers or
others claiming under them. 2 The same general principles of es-
toppel which preclude contesting corporate existence, preclude
contesting the fact of acceptance of a new power, though con-
ferred by law upon condition. 3 The equitable estoppel, ii raised
by an undisputed state of facts, is for the court to pass on, and
submission to the jury is not necessary. 4 Where there are several
parties contesting the question, and some are estopped, a want of
proof that the others participated personally in the dealings with
the corporation as such, must be objected to at the trial. 5
23. The General Principle as to Proof of Incorporation^}
In conclusion, the rule of requisite proof of incorporation which
I deduce from the best considered cases, is, that where the issue
of corporation or no corporation arises only on the question of
power to make the particular contract, or appear as a party in the
particular action in controversy, it is necessary, and unless inter-
ference by the State is shown, it is sufficient to show a charter,
and, under that charter, user of corporate powers, on other occa-
sions reasonably contemporaneous with the one in suit ; or to show
a general law, and user, by a professed organization under the law, 6
01 corporate powers, on other occasions reasonably contempora-
neous with those in suit ; and, in either class of cases, proof of
user is aided by an admission of the fact of incorporation, and is
dispensed with by circumstances which equitably estop the party
from denying what he has admitted.
24. Materiality of Date.'] The evidence should be viewed
not merely with reference to the time of commencement of suit,
in which regard it only affects the power to appear as a party on
the record, but also with reference to the time when the corpo-
rate power is alleged to have been exercised, in which regard it
may affect the substance of the cause of action. For either pur-
1 See Palmer v. Lawrence, 3 Sandf. 161 ; Parish v. Wheeler, 22 N. Y. 494.
2 In an action by the company's indorsee of premium notes made by defendant,
expressed to be payable to the insurance company, the production of the notes is
prima facie evidence against him that the corporation was duly organized and com-
petent to transact the business in question. Nor need the indorsee show, in the first
instance, that the corporation had complied with the law of its own State, or that of
the State where the contract was made. Williams v. Cheney, 3 Gray, 220 ; Top-
ping v. Bickford, 4 Allen, 120.
* Zabriskie v. Cleveland, <fec. R. R. Co. 23 How. U. S. 39"7, and cases cited.
4 Graff v. Pittsburgh, <fcc. R. R. Co. 31 Pa. St. 496.
5 Leonardsville Bank v. Willard, 25 N. Y. 574, affi'g 16 Abb. Pr. 111.
6 The same principle applies in case of consolidation of corporations, as in orig-
inal creation. Mitchell v. Deeds, 49 111. 416, 464, s. c. 1 Withr. Corp. Cas. 460.
CORPORATE POWERS IN GENERAL. 31
pose the mode of proof is the same. If the existence of incorpo-
ration before the exercise of corporate power is shown, there is a
presumption of law that the incorporation continued, unless evi-
dence tending to show the contrary is given ; but if existence at a
later period only is shown, there is no presumption, without other
evidence, that incorporation was had before the exercise of the
power. 1 In ordinary cases, it is well to present testimony to user
covering, in a general way, the whole period involved.
25. MisnomerJ] An error in the corporate name used on the
record, goes only in abatement, 2 and in modern practice is freely
amendable in furtherance of justice, on proof of the true name; 8
and where there is an error in the name used in a deed or will,
the corporation should appear in its true name and aver that the
instrument intended them by using the wrong name. 4 And the
instrument produced by the corporation, with prima facie evi-
dence of delivery to tnem, is competent evidence against the
grantor and those claiming under him, that the corporation were
known and intended by the name used. 5
26. Fraud, Forfeiture or ATon-user.'] Upon the mere ques-
tion of corporate existence it is not competent (except in some
cases where strict proof is required) to give evidence that the
charter was obtained by a fraud, not infecting the very cause of
action itself, nor that by misuser or non-user the corporation have
become amenable to a forfeiture of their franchises, 6 nor even
that there has been such a cessation of business as had been pre-
viously declared by statute should have the effect to terminate the
corporate powers, nor that there has been a voluntary dissolution
without judicial proceedings. 7
II. CORPORATE POWERS IN GENERAL.
27. New PowersJ] The acceptance of an apparently bene-
ficial grant of additional power, subsequent to the charter, may be
inferred as against the body as a whole, and equally in its favor
where strict proof is not required, from slight evidence of ac-
1 In the case of a municipality, if the date of first incorporation is material, the
mere fnct that a charter is put in evidence does not raise a presumption of law that
there was no prior incorporation. It is at most a question for the jury. Bow v. Al-
lenstown, 34 N. H. 351.
8 2 N. Y. R. S. 549, 14 ; Christian Soc. in Plymouth v. Macomber, 3 Mete.
(Mass.) 235.
8 Bank of Havana v. Magee, 20 N. Y. 355, affi'g Bank of Havana v. "Wickham, 7
Abb. Pr. 134. Compare Hallett v. Harrower, 33 Barb. 537. For a strictrule against
misnomer, where a corporation proceeds under statute adversely to common right,
see Glass v. Tipton, <fec. Co. 1 Withr. Corp. Cas. 377, s. o. 32 Ind. 876. Compare
Bank of Commerce v. Mudd, 32 Mo. 218.
4 See will cases in chapter on A ctions by and against Heirs, <tc.
8 Mayor, <tc. v. Blaniire, 8 East, 493.
8 Nor even that the corporation were not organized within the time limited by
the charter. County of Macon v. Shores, 97 U. S. (7 Otto) 272.
1 2 Abb. N, Y. Dig. 339-841; Ang. <t A. on Corp. (536, and cases cited. Re-
ceivership does not necessarily bar sulk Willitts v. Waite, 25 N. Y. 577; aud see 20
Wall. 1.
82 ACTIONS BY AND AGAINST CORPORATIONS.
ceptance or acquiescence by a majority of the corporators or of
the directors, as the case may require ; in some form such evi-
dence is requisite ; and even then it does not necessarily prove
the act to be binding on a particular associate. 1
28. Distinction between Original Powers of Corporation and
Delegated Powers of Officers.'] The rules of pleading and evi-
dence both recognize the distinction between the original powers
of a corporation, which are such as are expressly conferred or
reasonably implied in the statute, viewed in relation to the re-
quirements and usages of the business for which incorporation
was granted, and the authority to act in the exercise of such
powers which is conferred by the corporation or managing board
on its officers and agents. Under an allegation merely of want of
corporate power to do the act, evidence that an act the corpora-
tion had power to do, was done by officers whom the board had
not authorized, is inadmissible, 2 except by amendment ; and un-
der an allegation merely that the officer was not authorized by
the corporation, evidence merely that the act was not within the
corporate power would be equally objectionable. But the vari-
ance must be substantial and misleading to have the effect to ex-
clude the evidence. The proper authority to the officer or agent
by whose hand the act is shown to have been done, may be proved
under a general allegation that the corporation did the act, 3 and
under an allegation of authority in the agent, evidence of subse-
quent ratification equivalent in effect is admissible. 4 Where the
allegation is merely general, that the corporation did the act, a
denial of the act admits evidence of the want of authority. 5
29. Evidence of Delegation of Power. ~] To charge a corpora-
tion upon the act of an officer or agent, it must be shown directly
or presumptively, either that the act was performed while in the
discharge of his ordinary duty in the usual course of business, and
was within the general scope and apparent sphere of such duty,
or that it was expressly authorized, or that it was performed with
the knowledge and implied assent of the directors or of the cor-
poration or its authorized officers, or was subsequently ratified by
them. 6
Where there was a consideration, and not an absolute want of
authority in the officers to do any act of the nature of that in
question, but only a want of authority in the particular instance,
1 Ang. <fc A. 63-69, 81-86 ; Railway Company v. Allerton, 18 Wall. 233.
* Ogden v. Raymond, 5 Bosw. 16; 3 Abb. Ct. App. Dec. 396.
3 Partridge v. Badger, 25 Barb. 146; Nelson v. Eaton, 26 N. Y. 410. An allega-
tion that a contract was made by the president and directors of the company, is
equivalent to saying that it was made by the corporation. Insurance Co. of S. A. v.
McDowell, 50 111. 120, s. c. 1 Withr. Corp.Cas. 438; Soulby v. Smith, 3 Barn. & Ad.
929. Compare 65 N. Y. 278.
4 Hoyt v. Thompson, 19 N. Y. 207.
8 Baleman v. Midwales Co., L. B. 1 C. P. 499. Compare p. 399 of this TO!.
First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 290, and cases cited.
CORPORATE POWERS IN GENERAL. 33
he who would impeach the power must show, either by direct ev-
idence or presumptively, that the want of authority was known
to the other party as well as to the officers. 1
. 30. General Presumptions as to Corporate Acts.~\ The same
presumptions, whether of law drawn by the court, or of fact,
allowed to be drawn by a jury, arise in respect to the conduct of
corporations, and their officers and agents, as in respect to that of
individuals and their agents, except where statutes impose a dif-
ferent rule. 2 It will be presumed that they conduct their opera-
tions, as to details, substantially upon the same principles and in
the same manner as individuals engaged in like business. 8 The
principle is well settled that dealings which are not apparently
beyond the scope of the incorporation, and are not expressly or
by necessary implication forbidden by law, are presumed to be
valid until the contrary is shown ; 4 and the later decisions of the
highest authority go far to support the rule, that any formal con-
tract of a corporation, not expressly or by necessary implication
forbidden or illegal, is valid against the corporation, when there
is ground either for an equitable estoppel, or for holding that the
parties are are not in pari delicto in exceeding the limits of the
law. 5 Illegality is not presumed of the action of a corporation. 8
Acts done by them which presuppose the existence of other facts
to make them legal, are presumptive proof of such other facts ; 7
and the burden, both of allegation 8 and of proof, 9 is on the party
1 See 1 Redf. on Rw. 603 (4).
J Bank of the U. S. v. Dandridge, 12 Wheat. 70; s. p. Union Bank v. Ridgely, 1
Ear. & G. 324.
3 Mead v. Keeler, 24 Barb! 20.
4 Green's Brice's Ultra V. 40, n.; and see 6 Moat's En?. IT, n.
6 Bissell v. Mich. S. & N. I. R. R. Co. 22 N. Y. 258; Riche v. Ashbury Rw. Carr.
Co. L. R. 9 Exch. 224; 7 H. of L. 653; Green's Brice's Ultra V. 379, n. A part of
the apparent conflict in the hostile authorities on this subject is removed by dis-
tinguishing between cases, 1. where the objection was raised by the company to
avoid its liability upon the act in question, upon the ground that the act was
foreign to the scope of incorporation ; and, 2. where the objection from the same
source was to an act in excess of the officers' authority ; and, 8. where the objection,
was raised by a dissenting shareholder, or by a creditor, that the company could not.
part with its funds for a purpose foreign to the scope of incorporation.
8 Thus power to acquire a patent may be inferred from the descriptive title of the
corporation. Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 393, citing
Blanchard's Gunstock Turning Factory v. Warner, 1 Blatchf. 271.
1 Nelson v. Eaton, 26 N. Y. 410, s. o. 16 Abb. Pr. 113, rev'g 7 Abb. Pr. SOB.
This is a presumption of law, and may be drawn by the court without submission to
the jury.
Thus if a loan by a corporation would be valid if made from one fund, bat in-
valid if made from another, the presumption is that it was made from the former.
Farmers' Loan & Trust Co. v. Clowes, 3 N. Y. 470. Or if the acquiring, holding and
conveying of real property would be valid under some circumstances or for some
purposes, but not otherwise, the presumption is that it was valid. Farmers' Loan <k
Trust Co. v. Curtis, 7 N. Y. 466; Chautauque Co. Bank v. Risley, 19 N. Y. 369; De-
Groff v. Am. Linen Thread Co. 21 N. Y. 124, rev'g 24 Barb. 875.
8 Howard v. Boorman, 17 Wise. 459.
9 Cases cited in last note but one. And these presumptions are applied to foreign
corporations. N. Y. Floating Derrick Co. v. N. J. Oil Co. 3 Duer, 648; Star Brick
Co. v. Ridsdale, 86 "N. J. L. 229.
3
34 ACTIONS BY AND AGAINST CORPORATIONS.
impeaching the transaction, to show that the circumstances giv-
ing validity to the exercise of the power did .not exist. 1 This
rule, however, relates to the legality of the power, and does not
.supply the want of evidence that the officer or agent who as-
sumed to exercise the power was authorized by the corporation
to do so. 2
III. CONTRACTS BY A CORPORATION.
31. Implied Promises.'] When a corporation acts within the
scope of the legitimate objects of its institution, all parol con-
tracts made by its authorized agents are express promises by the
corporation ; and upon all duties imposed upon them by law, and
upon all benefits conferred at their request, the law implies the
same promises of the principal as in the case of an individual. 3
To sustain an action for services, or goods sold, or the like, it is
not necessary to show that the directors, at a formal meeting,
authorized or ratified the employment or order. It is enough to
show either, 1. that the officer or agent who made the engagement
did so within the scope of his duty or authority ; or, 2. that the
engagement was performed with the knowledge of the directors,
and they received its benefit without objection. 4 The law raises
the same presumption as to assent, &c., against corporations as
against natural persons ; and in such a case, where the corporation
have enjoyed performance, they will be presumed to have ratified
the contract, and will not be permitted to deny the authority of
the agent. 5
32. Simple Contracts in Writing.'] The unsealed contracts of
corporations are often made by the adoption of a resolution, com-
municated to and accepted by the other party. A contract in
this form is a sufficient memorandum to satisfy the statute of
frauds as against the corporation, if the minutes of the corpora-
tion, signed by the clerk, contain, either expressly or in part by
reference to other documents, the terms agreed on. 6 Where the
contract is made in such a mode, the writing should bo deemed
within the rule requiring it to be produced as the best evidence of
its contents, or accounted for ; 7 and the rule forbidding parol evi-
dence to vary a writing, as between the parties to it, applies.
1 And the better opinion is, that if the contract is only collaterally in question,
nd the party impeaching it is not the one sought to be charged on it, he caunot do
even that. Farmers', <fec. Bank v. Detroit, <fcc. R. R. Co. 17 Wise. 372, DIXON, J.
8 See Partridge v. Badger, 25 Barb. 146.
3 Dunn v. Rector of St. Andrews, 14 Johns. 118.
4 Hooker v. Eagle Bank, <fcc. 30 N. Y. 86, and cases cited.
Fister v. La Rue, 15 Barb. 323.
' Argus v. Mayor, <kc. of Albany, 65 N. Y. 495, affi'g, iu effect, 7 Lans. 264 ; and
Bee 22 Ohio St. 451.
1 Whitford v . Tutin, 10 Bing. 395. Contra, where the proposal does not contain
all the terms, and is modified on a parol acceptance. Pacific Works v. Newhall, 84
Conn. 67.
CONTRACTS BY A CORPORATION. 35
Where a formal instrument is executed without seal, such as / / 1
an assignment, or a note or bill, there must be some evidence of | ,
the authority of the person executing it. To prove a sale which
is not a transaction in the ordinary course of business of the cor-
poration e. g., an executory contract to sell bonds of the com-
pany, 1 or to cancel a mortgage without consideration, 2 the author-
ity of the officers will not be presumed. A power of attorney
from the president is not enough. The president's authority
must be shown. If there is a board of directors, authority from
them is presumptively enough. 3 If, however, the statute pro-
vides that specified officers shall sign the contracts of the cor-
poration, their signatures are presumptive evidence that such
contract is the act of the corporation. 4
33. Sealed Instruments.] An instrument executed under the
seal of a corporation may be put in evidence without further
proof, if it has been proved or acknowledged as required for a
deed of lands to be recorded ; and if it has been also recorded,
under the statute, the record or a certified copy, according to the
statute, is equally admissible as the original. 5 This, as in the
case of a deed of an individual, raises a legal presumption that
the seal was the seal of the corporation, and that it was affixed
by its authority, 6 even where the law requires express authority
from the corporation or board to sanction the grant in question.
But this presumption is rebutted by an admission or proof that
the act was not authorized nor ratified by the board, and in such
case it is void, 7 unless the use of a seal was unnecessary and super-
fluous. If the instrument is not thus authenticated, the seal
(unless it be that of a domestic municipal corporation which the
court mav judicially notice) 8 must be proved to be genuine, by
calling either one who saw it affixed, or equally well any one
who knows the seal. 9 But the testimony of a witness that he had
been told by corporate officers that it was the seal of the corpora-
tion, is not enough. 10
The seal being thus proved, upon a corporate deed regular on
its face, and apparently executed in due form, the law presumes
1 Ang. & A. on C. 297-299 ; Titus v. Cairo, Ac. R. R. Co. 37 N. J. L. 102.
1 Smith v. Smith, 117 Mass. 72.
* See Hoyt v. Thompson, 5 N. Y. 320 ; 3 Bosw. 267, 285. But the power is now
often presumed in favor of third persons dealing in good faith.
4 BRONSOX, J., Gillett v. Campbell, 1 Den. 520.
6 Lovett v. Steam Mill, <fec. Co. 6 Paige, 60 ; Kelly v. Calhonn, U. S. Supm. Ct
17 Alb. L. J. 55
Id. ; Chamberlain v. Bradley, 101 Mass. 188, s. c. 3 Am. R. 331 ; Sheehan T.
Davis, 17 Ohio St. 571, 581.
1 Hoyt v. Thompson, 5 N. Y. 385 ; 19 Id. 207 ; Eureka Co. v. Bailey, 11 Wall. 491.
8 The court does not judicially notice the seal of a foreign corporation. Ang. A
A. on Corp. 201, 216.
Jackson v. Pratt, 10 Johns. 381 ; An<*. <fe A. on Corp. 200, 216; Moises v.
Thornton, 8 T. R. 307 ; Brounker v.'Atkyns, Skinn. 2, cited in Rose. N. P. 146 ; Finch
v. Gridley, 25 Wend. 469.
10 Moises v. Thornton, above.
36 ACTIONS BY AND AGAINST CORPORATIONS.
that the deed was executed and the seal affixed by competent au-
thority from the corporation. 1 Hence, alike where the deed
bears a due certificate of acknowledgment, 2 &c., and where the
seal is proved or judicially noticed, 8 the law presumes that the
deed was duly executed and the seal affixed by a competent
authority in pursuance of whatever power the corporation has,
or maybe presumed to have, 4 to convey; and it is not neces-
sary for the party claiming under the instrument to produce
the resolution or by-law giving authority, but the burden is on
the party resisting it to show that the officers signing were not
authorized to convey, or that those having custody of the seal
were not authorized to affix it. 5 If the seal is an ordinary one,
not the distinctive seal of the particular corporation, some evi-
dence must be adduced (if the seal is necessary to the instru-
ment), that it was used as a corporate seal, and that the instru-
ment was executed by the proper officers by authority from the
board or corporation; 6 and this will admit the deed. 7 A cor-
porate seal, undisputed, is prima facie evidence that the deed
is that of the corporation. The facts necessary to show au-
thority on the part of the agent of execution, whoever he may
be, may always be proved by extrinsic evidence, and always by
parol, unless it appears that the best evidence is in writing, or
the statute requires the corporation to give written authority.
Where a conveyance is made by a corporation, the grantee's at-
torney usually requires a certified copy of the resolution author-
izing its execution, and this, if preserved, affords convenient
primary evidence as against the corporation, and secondary evi-
dence as against others, of authority, where direct proof of
authority is necessary. Proof of the seal on an instrument, pro-
duced by one claiming under it, is sufficient proof of delivery,
unless it appears that affixing the seal was not intended as a com-
plete execution. 9 The officer or agent who signs on the part of
the corporation, though expressly to " attest " the instrument, is
not deemed a subscribing witness who must be called, unless the
1 Whitney v. Union Trust Co. 60 N. T. 676 ; Hoyt v. Thompson, 5 N. Y. 320 ;
Rose. N. P. 147, and cases cited.
2 Johnson v. Bush, 3 Barb. Ch. 239.
3 2 Dill. M. C. 550, 450.
4 Paragraph 30, above.
6 Same authorities. For a stricter rule, see People ex rel. Town of Rochester v.
Deyoe, 2 Supm. Ct. (T. <fe C.) 142. Proof that the seal was affixed by the printer of
corporate bonds, by direction of the proper officers, who afterward signed and de-
livered the bonds, is sufficient Royal Bank v. Grand Junction R. R. Co. 1 Withr.
Corp. Cas. 644. s. o. 100 Mass. 414.
6 Miners' Ditch Co. v. Zellerbach, 37 CaL 543, s. c. 1 Withr. Corp. Cas. 250, 284,
and cases cited.
7 Phillips v. Coffee, 17 HI. 154, and cases cited ; Christie v. Gage, 2 Supm. Ct. (T.
A C.) 344.
8 St. John's Church v. Steinmetz, 18 Pa. St. 273.
Aug. <fc A. on. Corp. 202, 227.
TORTS BY A CORPORATION. 37
intent is clear that he signed not on the part of the corporation,
but as an indifferent witness. 1
34. Corporate Acceptance of Deeds, <&c,~\ The acceptance of
a bond or deed to a corporation may be presumed from the fact
that, after it was submitted to the board for approval, it was re-
tained by the corporation, and acted on as, for instance, in the
case of a cashier's bond, where the cashier was permitted to enter
upon or continue in the discharge of his duties and the fact
that it was presented to and approved by the board may be
established by parol. 2
35. Contract Ambiguous as to Party.~\ The act or contract
of an agent of a corporation does not derive its efficacy to bind or
to benefit the corporation, from professing on its face to have
been done in the exercise of the agency. 3 If upon the face of the
instrument there are indications suggestive of agency, such as
the addition of words of office or agency to the signature, or the
imprint of the corporate title on the paper, parol evidence is
competent to show who the parties intended should be bound or
benefited. 4 And even where the contract bears no such sugges-
tion on its face, the rule as now generally received is that parol
evidence is competent either in favor of or against the corpora-
tion (except, perhaps, when the instrument is a specialty) ; but
that it is not competent for the purpose of exonerating the
signer from personal liability if the other party to the instru-
ment chooses to hold him personally liable, unless there is evi-
dence that the signer was duly authorized to contract for the
corporation, and that credit was actually given to the corporation
alone. 6 If a seal is not essential to the validity of the act, the
authority of the agent may be proved by oral evidence, 7 or by
proof of ratification, e. g., the payment of an instalment pursuant
to it. 8
IY. TORTS BY A CORPORATION.
36. false Representations T>y Meeting.] Fraudulent repre-
sentations by the corporate body may be proved by evidence that
an official report, containing material misrepresentations of fact
as to the affairs of the corporation, was presented to a public and
general meeting of the corporators, by a board or committee act-
ing in the course of its duty, and eitner that it was tacitly sanc-
1 Compare Deffell v. White, L. R. 2 C. P. 144; Kelly v. Calhoun, U. S. Supm. Ct
17 Alb. L. J. 65.
s Bank of U. S. v. Dandridge, 12 Wheat. 64; Graves v. Lebanon Nat. Bank, 10
Bush (Ky.) 23, s. o. 19 Am. R. 60, and cases cited.
a Mech. Bk. v. Bank of Columbia, 6 Wheat. 826.
4 Id. ; Vater v. Lewis, 86 Ind. 288, and cases cited.
8 2 Tayl. Ev. 1054; Briggs v. Partridge, 64 N. Y. 367.
6 See An<*. <fe A. on Corp. 299, 294.
7 See paragraph 29, above, and 48, below.
8 Eureka Company v. Bailey Company, 11 "Wall. 491.
38 ACTIONS BY AND AGAINST CORPORATIONS.
tioned by the meeting and subsequently circulated by the direct-
ors for the benefit of the company, 1 or that it was expressly
adopted by the meeting and put forth to the public, even
although no vote to publish it were passed. 2 But the mere ac-
ceptance of a false communication from an officer or servant, 8 or
a vote " accepting " a report of a committee, does not alone make
the statements in it representations, or even admissions, compe-
tent against the corporation. 4
37. Frauds by Directors, c&c.~\ It has been held that fraud
by the board of directors, or by the managing agent, may be
proved under an allegation of fraud committed by the corpora-
tion, if the act be such as to bind the company. 5 False repre-
sentations in correspondence or otherwise by officers or agents of
a corporation, if brought home to the corporation as its act, will
sustain the allegation, and the large latitude given to the admis-
sion of evidence bearing on a question of fraud is allowable
against a corporation as well as against individuals. 6
38. Liability for Wrongs ~by Officers or Agents7\ To render a
corporation liable for a tort committed by its officers or agents,
it is not necessary to show that the corporation was authorized to
do the act, 7 but it must be shown that he by whom it was done
was at the time engaged in the business of his office or agency, and
acting within its scope. In these respects, the evidence to charge a
corporation with a fraud of its agent or officer depends on the gen-
eral principles of agency. 8 If the act is such that had it been
done without malice, the corporation would have been bound by
it (as in case of a prosecution instituted), or would have been lia-
ble for injury resulting (as in case of a carrier's breach of duty),
it is no defense for the corporation to show that it was the willful
and malicious act of the agent or servant. 9
Y. MEETINGS AND BY-LAWS.
39. Evidence of Regularity of Meetings^ "WTien the books
are competent, an entry in the usual form, that after due notice 10
1 Nat. Exch. Bk. v. Drew, 2 Macq. H. L. 103, s. c. 32 Eng. L. & Eq. 1 ; New
Brunswick, Ac. Co. 9 Ho. of L. Cas. 711.
4 Green's Brice's Ultra V. 245, citing Re Nat. Patent Steam Fuel Co. 4 Drew. 629.
3 Burns v. Pennell, 2 H. L. Cas. 497.
4 1 Dill. M. C. 357, 242.
6 Glamorganshire Co. v. Irvine, 4 F. <fc F 947 ; Barwick v. English Joint Stock
Bank, L. R. 2 Ex. (Ch.) 259; Mackay v. Com. Bk, L. R. 5 C. P. 394, 8. P. King v.
Fitch, 2 Abb. Ct. App. Dec. 608 ; and Fee 21 N. Y. 238.
6 See Butler v. Watkins, 13 Wall. 464 ; Marigny v. Union Bank, 5 Rob. (La.) 354;
Upton v. Englehardt, 3 Biss. 343.
1 N. Y. <fc New Haven R. R. Co. v. Schuyler, 34 N. Y. 30, affi'g 38 Barb. 534.
8 Id. ; Hunter v. Hudson River Iron Co. 20 Barb. 507 ; and see 46 N. Y. 23.
9 AVeed v. Panama R. R. Co. 17 N. Y. 362, affi'g 6 Duer, 196, and cases cited;
Green's Brice's Ultra V. 266, nn. *, f. Compare Ang. <fe A. Corp. 388; 1 Redf,
Rw. 533, and Rounds v. Delaware, <fec. Co. 64 N. Y. 133.
10 The principle that in certain cases the proceedings of a meeting are not valid
without due notice of the meeting, is confined to meetings of the corporate body, aud
MEETINGS AND BY-LAWS. 39
the members met, imports that the statutory quorum was pres-
ent ; * and from a record stating a proceeding, but silent as to the
mode of it, the law presumes that the legal mode was pursued. 2
It has generally been held that to prove the action of a board or
committee, there should be evidence that there was a meeting of
the committee, and that those who signed the report were to-
gether when they signed it, or that the absent members had no-
tice of the meeting, or an opportunity to be present ; 3 but in the
case of private corporations this rule is more or less relaxed,
according to the common usages of corporate business within the
jurisdiction. 4
40. Acts J)y Parol.~\ The acts of a private corporation, or of
its board or committee, may generally be proved by parol testi-
mony of a witness, 5 even where the statute- requires a fair and
regular record of proceedings to be kept, 6 or declares the books
to be evidence, if it does not declare them to be exclusive evi-
dence of the proceedings, 7 for acts even so formal as a by-law or
regulation may be adopted without written evidence of a vote, 8
and when so adopted they may be proved by direct evidence, or
inferred from circumstances, even if there be written records of
other acts ; 9 and the fact that no record was made of the act in
question may be proved by calling the keeper of the record, with-
out producing or accounting for the book. 10
does not extend to meetings of directors and committees. Samuel v. Holladay,
Woolw. C. C. 400, s. o. 1 Withr. Corp. Cas. 145. And due notice of a meeting of the
corporators, if not in issue, may be presumed, against the corporation and those
claiming under them. Cobleigh v. Young, 15 N. H. 493. For requisites of proof of
notice, where the action of the meeting is directly and not collaterally in question,
see Green's Slice's Ultra V. 350-355 ; People v. Bacheler, 22 N. Y. 128, affi'g 28
Barb. 310; Atlantic Fire Ins. Co. v. Sanders, 36 N. H. 269 ; Clark v. Wardwell, 55
Me. 61.
1 Commonwealth v. Woelper, 3 Serg. & R. 32 ; Grays v. Turnpike Co. 4 Rand.
578 ; and see 8 Allen, 217; 15 N. H. 502.
8 Hathaway v. Addison, 48 Me. 440; and see 2 B. Monr. 177.
See City of Troy v. Winters, 2 Hun, 63.
4 See Re Bouelli's Telegraph Co., L. R. 12 Eq. 246 ; Bradstreet v. Bank of Royal-
ton, 42 Vt. 128, cited in Field on Corp. 256, 237, n.; Edgerly v. Emerson, 28 N. H. 566.
8 Bk. of Lyons v. Demmon. Hill <fe D. Supp. 398 ; Am. Ins. Co. v. Oakley, 9 Paige,
496; Partridge v. Badger, 25 Barb. 146, and casea cited. See also on this subject,
31 How. St. Tr. 673, cited in 1 Phill. Ev. 91 ; R. v. Hunt, 3 B. & Aid. 566.
Bank of U. S. v. Dandridcre, 12 Wheat. 64, STORY, J.
7 Inglis v. Great N. Rw. Co. 16 Eng. L. <fc Eq. 55, s. c. 1 McQ. H. L. 112, 119,
Ld. ST. LEONARDS; Magill v. Kauffman, 4 Serg. <fe R. 317; Ang. & A. Corp. 159,
186; Waters v. Gilbert, 2 Cush. 31. Contra, in case of a municipal corporation,
Gilbert v. City of New Haven, 40 Conn. 102.
8 See paragraphs 56-58.
* Lockwood v. Mechanics', Ac. Bk. 9 R. I. 808, s. c. 11 Am. R. 263, and cases
cited; U. S. Bank V. Dandridge, 12 Wheat. 64. Where there are no books to resort
to, clear and satisfactory evidence of another sort should be required. SHAW, Ch. J.,
Central Turnpike Corp. v. Valentine, 10 Pick. 142.
10 Smith v. Richards, 29 Conn. 232, 243. Otherwise, perhaps, where the evidence
is offered by the corporation. " We must take notice of a usage so general as that of a
church to keep a record." SHAW, Ch. J., Sawyer v. Baldwin, 1 Pick. 492 ; and see
Narragansett Bank v. Atlantic Silk Co. 3 Mete. 287.
40 ACTIONS BY AND AGAINST CORPORATIONS.
41. Pleading By-laws, &c.~\ The courts refuse to notice ju-
dicially tlie by-laws of a private corporation, 1 and under the new
practice they should be pleaded, whenever directly in question,
as the foundation of an action or defense. 2 Nor do the courts,
unless it be those of the municipality, judicially notice the ordi-
nances of a municipal corporation, if not directed by law to do so.
Therefore, such ordinances, when sought to be enforced by ac-
tion, or when set up by the defendant as a protection, should be
set out in the pleading. It is not sufficient that they be referred
to generally by the title or sections. 8
42. Proof of J3y-laws.~] By-laws or ordinances of a munici-
pal corporation will be usually proved pursuant to statute, by
producing the volume in which they are officially published, or
by a certified copy. 4 Where they are proved by production of
the minutes of the common council, the mayor's approval must
be also shown. 5 By-laws adopted by other than municipal corpo-
rations are valid, although no written record of the vote of adop-
tion was made ; and hence they may be proved by production of
the original book or paper, with indirect evidence of adoption,
such as that they have been handed down from officers to succes-
sors, and always acted on as the rule of the corporation. 6 When
collaterally relevant, parol proof is usually allowed, without pro-
duction of the written form, especially if no question is made as
to the terms of the writing ; and juries have been allowed to
infer the existence of a supposed by-law, or the repeal of an act-
ual one, from long usage. 7
YI. AUTHORITY OF OFFICERS, AGENTS AND MEMBERS.
43. Evidence of Appointment of Officers and Agents."]
Where the title to office or agency is involved only as incidental
to the right or liability of the corporation growing out of the
acts of the officer or agent, it may be proved not only by the cor-
porate record of election, if any, but equally well by parol testi-
mony, either going directly to the fact of election, or showing
that the person in question acted as such and was generally re-
puted so to be. Proof of such facts by the adverse party throws
npon the corporation the burden of disproving the alleged au-
thority. 8 General reputation is ilot enough alone, except perhaps
1 Youngs v. Ransom, 31 Barb. 49.
* Compare Atlantic Fire Ins. Co. y. Sanders, 36 N. H. 252.
J 1 Dill. M. C. 167, and cases cited; 436, 346.
4 N. Y. Code of Civ. Pro. 941 ; Howe'll v. Ruggles, 6 N. Y. 444; 1 E. D.
Smith, 398 ; Porter v. Waring, 2 Abb. New Cas. 230.
* Kennedy v. Newman, 1 SSandf. 1 87.
' Union Bank v. Ridgeley, 1 Har. & G. 824.
7 Ang. <fc A. Corp. 353, 328, 329 ; p. 894, 868.
8 Pusey v. N. J. K. R. Co. 14 Abb. Pr. N. S. 441. In the absence of any statute
making record evidence, a witness having personal knowledge may testify as to who
were the stockholders at a given time. Tyng v. U. S. Submarine, fec. Co. 1 Hun,
161.
AUTHORITY OF OFFICERS, AGENTS' AND MEMBERS. 41
in case of a public officer. 1 But with evidence that the corpora-
tion had held him out as its officer, or permitted him to assume
the office without objection, or had ratified his acts as such, 2 it is
sufficient prima facie evidence ; and slight evidence is allowed
in the case of subordinate officers and servants. 3
Evidence that officers acting as such, and recognized by the
corporation or board, had no regular or valid title to the office,
does not avail. Even when the question is of their right to sue
in the name of the corporation, defendant cannot sustain an ob-
jection to their right of recovery, on the ground that they are not
such officers, de jure, without evidence that the State has pro-
ceeded to a judgment of ouster against them. 4
44. Evidence of Express Authority. ~\ The power of an agent,
for whatever purpose, may be proved by a vote or resolution
without the seal. 5 The familiar rule by which a sealed power is
required to authorize an agent to execute a sealed instrument,
does not apply to a power conferred by a corporate vote.
45. Implied scope of Authority.'] Acts done by the directors,
which required the sanction of a meeting of the corporation, may
be sustained by proof of lapse of time and no dissent on the part
of the corporation, or from their not producing the record of the
proceedings had at the meeting where action should have been
taken. 6 Upon similar principles, acts of an officer or agent may
be sustained by proof that they are such as he has usually and
customarily performed. It is a general principle, applicable to
open and ordinary acts in the course of the corporate business,
1 NELSON, J., Clark v. Farmers' Woolen Manuf. Co. 15 Wend. 256 ; Litchfield Iron
Co. v. Bennett, 7 Cow. 234. Where the authority of an officer of a public corporation
comes incidentally in question in an action in which he is not a party, it is sufficient
to show that he was an acting officer, and the regularity of his appointment or elec-
tion cannot be made a question. Proof that he is an acting officer is prima facie
evidence of his election or appointment, as well as of his having duly qualified. But
if proof of a due election or appointment is alone relied on, such election or appoint-
ment must be legally established. 1 Dill. M. C. 295, note, and cases cited
* Thus the authority of an officer or agent to draw bills, may be proved by show-
ing a report to the board, adopted by it, containing a statement of the drafts. Part-
ridge v. Badger, 25 Barb. 173.
* Thus it is sufficient proof of the employment of the plaintiff as engineer of a cor-
poration, to show that he was recognized and consulted by the officers of the com-
pany as its agent, and that his plans, <fcc. were accepted nnd acted upon. 2 GreenL
Ev. 13th ed. 87, note, citing Moline Water Power, <fec. Co. v. Nichols, 26 111. 90.
So the presence of a servant on a steamer is some evidence of his employment
there. Svenson v. Pacific Mail Steamship Co. 57 N. Y. 108. The dress of a railroad
brakeman indicates him character as such. Hughes v. N. Y. <fe N. H. K. R. Co. 36
Super. Ct. (J. <fe S.) 222. Appearance of clerk behind desk is some evidence of agency.
Leslie v. Knickerbocker Ins. Co. 63 N. Y. 27, affi'g 2 Hun, 616. Person at work on
locomotive, with his coat off, presumed a servant of the company. McCoun v. N. Y.
Central, 66 Barb. 838.
* Trustees of Vernon Soc. v. Hills, 6 Cow. 23 ; All Saints Church v. Lovett, 1
Hall, 198.
* Green's Brice's Ultra V. 365, n. *, and cases cited. For the rule, that one deal-
ing with an officer may be charged with notice of limits of authority in the by-lawa,
<tc. see Dabney v. Stevens, 10 Abb. Pr. N. S. 39, s. c. 2 Sweeny, 415.
* 1 Redf. on Rw. 600 (3).
42 ACTIONS BY AND AGAINST CORPORATIONS.
that a general agency is defined, not by the authority which the
agent or officer receives from his principal, but by that which the
latter allows the former habitually to assume and exercise. 1 And
this principle applies to the officer of a municipal corporation,
whose duties are not defined by law, at least so far as to throw on
the city the burden of disproving authority. 8 Hence authority
from the corporation for an act of its officer may be proved by
showing that he had openly exercised the power, and by showing
either corporate acts from which it must be inferred that the cor-
poration or the directors, as the case may be, must have contem-
plated the legal existence of the necessary delegated authority for
the purpose, 3 or that, with knowledge of the act, they affirmatively
ratified it or tacitly acquiesced in it. Especially in respect to sucn
of the ordinary powers of business corporations as are by common
usage, if not of necessity, exercised by means of officers and
agents such as the implied power of a trading company to make
bills and notes the law presumes, in the absence of evidence to
the contrary, that general authority to do such acts, when the
exigencies of the company require, has been duly vested in the
person who has been held out as their agent and allowed to do
such acts. 4 And the jury may presume the authority in such
case, for an act done openly in the usual course of business at the
office of the company, without evidence of actual knowledge on
the part of the company or directors, or of express ratification ; 5
or, where knowledge and acquiescence is shown, they may pre-
sume the authority from the open exercise of substantially similar
powers for example, they may presume authority to buy gold
from the usual buying of exchange. 6
46. Authority implied in Title of Office.] In the absence of
any other evidence of authority, the law presumes certain limits
as marking the scope of the authority of various officers, varying
both with the character of the corporation, and the public and
general usages of corporate business within the jurisdiction. It
must suffice here to say that it is now generally agreed that in the
absence of any statute to the contrary, the president, together
with the secretary or cashier, are presumed, in favor of third per-
sons purchasing in good faith and for value, to have power to con-
vey property of the corporation in its name, in the ordinary course
of its business. Other officers, except the board of directors, have
not this power. The president has presumable authority to direct
i ' Bridenbecker v. Lowell, 32 Barb. 9, 18, ALLEN, J,
8 Hall v. City of Buffalo, 2 Abb. Ct. App. Dec. 301.'
3 Olcott v. Tioga R. R. Co. 27 N. Y. 646, 559, and cases cited.
4 Narragansett B'k v. Atlantic Silk Co. 3 Mete. 289, SHAW, Ch J. So the authority
of an agent to disseize so as to acquire an adverse possession for the corporation, and
the acceptance of his act, may be proved by the acts and conduct of the corporation,
whether manifested by it collectively or through its officers, agents, tenants, <fcc. Ang.
& A. on Corp. 159, 186.
6 Conover v. Mut, Ins. Co. 1 N. Y. 292. Contra, 1 Redf. on Rw. 590.
Merchants' Bank v. State Bank, 10 Wall. 104.
ADMISSIONS, DECLARATIONS, AND NOTICE. 43
a suit to be brought ; : and so lias the treasurer or cashier, upon
things in action standing in his name as such/ or intrusted to his
management in the ordinary course of business. 3 The vice-presi-
dent's authority needs some evidence of usage or other sanction. 4
A clerk acting as an officer, in the officer's absence, is hot presumed
to have any other powers than necessary for the usual and ordi-
nary business in his temporary service. 5 The powers of superin-
tendents and managing agents depend too much upon special usages
to be here discussed. 6 A " financial agent" may be presumed em-
powered to negotiate a loan, but not to state an account. 7
47. Testimony of Officer or Agent.'] The declarations of the
officer-or agent cannot suffice to show the existence or scope of his
authority, 8 but he may be called as a witness to prove it. If implied
authority is essential to the cause of action, he should be required
to state the facts relied on as raising implied authority, and should
not be asked whether or not he nad authority to do the act in
question, for this is asking for a conclusion. 9 But to disprove al-
leged express parol authority, the testimony of the president that
none was given, is competent. 10
48. Ratification."] Ratification by the corporation or its offi-
cers may be proved or presumed in the same manner as in case
of agencies for natural persons. It may be inferred from in-
formal acquiescence merely, after notice of the facts. 11 Proof of
actual intent to ratify is not essential. 12 And an express ratifica-
tion is competent, although not communicated. 13 But the ratifica-
tion may be rebutted by evidence either of actual mistake or of
incomplete knowledge of the facts. 14
YII. ADMISSIONS, DECLARATIONS, AND NOTICE.
49. Admissions and Declarations of Members.'] The admis-
sions and declarations of a member of a corporation, even if made
at a corporate meeting, are not competent evidence against the
1 American Ins. Co. v. Oakley, 9 Paige, 496 ; Mumford v. Hawkins, 5 Den. 355.
8 Howard v. Hatch, 29 Barb/297.
8 Bridenbecker v. Lowell, 32 Id. 9. See many of the conflicting cases on the im-
plied powers of cashiers collected in 3 Am. Law Rev. 612.
4 Sliimincl v. Erie Railw. Co. 5 Daly, 396 ; and see 5 Bosw. 293.
5 Totter v. Merchants' Bank, 28 N. Y. 647.
' See Abb. Dig. Corp. tits. Agents, Officers, President, <fcc.
7 Grant v. Franco-Egyptian Bank, Eng. Ct of App. 1877.
8 Stringham v. St. Nicholas Ins. Co. 4 Abb. Ct. App. Dec. 315.
Prov. Tool Co. v. U. S. Manuf. Co. 120 Mass. 35 ; Short Mountain Coal Co. v.
Hardy, 114 Id. 197.
10 Graves v. Waite, 59 N. Y. 161.
11 Olcott v. Tioga R. R. Co. 27 N. Y. 546, affi'g 40 Barb. 179 ; People ex rel. Smilh
v. Flagg, 17 N. Y. 584, rev'g 16 Barb. 503 ; Hoyt v. Thompson, 19 N. Y. 207 ; Abb.
Dig. of Corp. tit. Ratification.
" Hazard v. Spears, 2 Abb. Ct. App. Dec. 353.
13 Dent v. N. A. S. Co. 49 N. Y. 390.
14 Owensboro Savings Bank v. Western Bank, 4 Law <t Eq. 695, and cases cited ;
47 N. Y. 199.
44 ACTIONS BY AND AGAINST CORPORATIONS.
corporation, unless made concerning some transaction in which
such member was the authorized agent of the corporation ; 1 and
in such case their competency depends on the rules applicable to
the admissions of officers ana agents.
50. Admissions and Declarations of Officers and Agents au-
thorized to spcakJ] Evidence of declarations and admissions made
by officers and agents of corporations is competent against the cor-
poration in two classes of cases. First, when the declarations were
made by an officer or agent in response to timely inquiries prop-
erly addressed to him, and relating to matters under his charge,
in respect to which he is authorized in the usual course of busi-
ness to give information. 2 Upon this principle, what is said by
the proper officer or agent to receive and act on a demand or com-
plaint whether it be the secretary or treasurer who signed a
money obligation, and to whom it is presented for payment ; 8 or
the general superintendent or managing agent to whom complaint
is duly made of a nuisance caused by the company's property, or
of the conduct of its servants ; 4 or by the proper conductor, bag-
gage master, or station agent, on inquiries made with reasonable
Sromptitude for lost baggage or freight ; 5 or what is said upon the
ke inquiry by a subordinate to whom the inquirer is referred for
information by the principal officer of the department, 6 is com-
petent against the corporation. But the officer or agent must be
one having the duty to perform. A communication by an officer
of what others have done, on an application he could not or
would not act on, is not within the rule. 7
51. Admissions and Declarations made as part of the lies
Gestce.~\ Again, the declarations and admissions of officers and
agents may also be proved against the corporation as part of the
res gestce, but only when made during the agency, and in regard to
a transaction depending at the very time, so as to constitute a part
of the act. 8 They cannot be admitted on this ground, if subse-
1 2 R. S. N. Y. 407, 80; REDFIELD, in 1 Greenl. Ev. 13th ed. 206, 175 ; 1
Phill. Ev. 487, note 134; 30 Me. 157.
8 Thus, in a bank's action on a note held by it, an admission by the president that
the note had been paid, made to the defendant, in consequence of an examination of
accounts, caused by the president's asking for payment and the defendant insisting
that he had already paid, is competent evidence for the defendant, as having been
made while acting within the scope of a bank president's ordinary powers. Bank of
Monroe v. Field, 2 Hill, 445, NELSON, Cb, J. Compare Horrigan v. First Nat. Bank,
6 Reporter, 188.
3 Pusey v. N. J. Ac. R. R. Co. 14 Abb. Pr. N. S. 441.
4 McGenness v. Adriatic Mills, 116 Mass. 177 ; Malecek v. Tower Grove R. Co. 57
Mo. 17.
6 Morse v. Conn. Riv. R. R. Co. 6 Gray, 450.
6 Gott v. Dinsmore, 111 Mass. 51.
' Bank of Grafton v. Woodward, 5 N. H. 301 ; Soper v. Buffalo, <fcc. R. R. Co. 19
Barb. 310.
8 Anderson v. Rome, <tc. R. R. Co. 54 N. Y. 334, and cases cited. Compare Nor-
wich Transp. Co. v. Flint, 13 "Wall. 3 ; Baptist Ch. of Brooklyn v. Brooklyn Fire Ins.
Co. 28 N. Y. 153; Superintendent of Cortland v. Superintendent of Ilerkimer, 44
N. Y. 22.
ADMISSIONS, DECLARATIONS AND NOTICE. 45
quently made, as a narrative of a past act, even though they relate
to the official duty of the declarant, or were intended in the inter-
est of the corporation. 1 Hence the declarations of members of a
board or committee as to what the board or committee have done,
are not competent. 2 It must affirmatively and explicitly appear
that the declaration was made at the time, and not afterwards, or
its reception in evidence will be error. 3
52. Admissions and Declarations before incorporation.]
"Where a corporation adopts and acts on the negotiations and in-
choate contracts of the promoters who formed it, tneir acts and dec-
larations, so far as they would have been competent against them-
selves, are competent against the corporation. So where a corpora-
tion is formed by the consolidation of other companies, thereby
succeeding to their rights, the previous admissions and declara-
tions of the previous corporation binding on itself in respect to such
right, are competent, though slight evidence against the new cor-
poration. 4 Such cases are not regarded as falling within the prin-
ciple applicable to assignor's declarations, for there is an identity
of interest. 5 The new organization is the same actual entity under
a new legal form.
53. Notice^\ Notice to a corporation can be proved by show-
ing notice given either, 1, to its officer or agent, who was at
the time acting for the corporation in the matter in question, and
within the range of his authority or supervision ; or, 2, to one
whose duty it was to receive and communicate such information
to his principal ; or, 3, to the board of directors, or a previous
board ; but not to a single director, unless he is the one charged
with the duty to be affected by the notice, or acting in the board
at the time, upon the matter in question. 7 For the purpose of
proving such notice, evidence of the declarations and admissions
of the officer or agent in question is competent, within the lim-
its previously stated. 8
1 First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278.
s Soper v. Buffalo, <fec. R. R. Co. above ; Jex v. Board of Education, 1 Hun, 157.
Compare, however, as to fraud promoted by individual members, Marigny v. Union
Bank, 5 Rob. (La.) 354.
3 Whitaker v. 8th Ave. R. R. Co. 51 N. Y. 299, rev'g 5 Robt. 650.
4 Phil. fec. R. R. Co. v. Howard, 13 How. U. S. 333.
5 See ch. I, p. 12.
* Fulton Bank v. N. Y. & Sharon Canal Co. 4 Paige, 127, s. p. 34 N. Y. 80, 84 ;
Whart. Ag. g 184, 673 ; Abb. Dig. of Corp. tit. Notice. Where the officers or agents
of a public corporation have no power or duties with respect to a given matter, their
individual knowledge or the individual knowledge of the inhabitants or voters, does
not bind or affect the corporation. The mayor is chief executive officer of the city, and
notice to him of a nuisance is sufficient, when it would not bo to the clerk, who is only
a recording officer, not authorized to act upon the notice. 1 Dill. M. C. 296, note.
7 North Riv. Bk. v. Aymar, 3 Hill, 262 ; Bank of U. S. v. Davis, 2 Id. 451. Com-
pare U. S. Ins. Co. v. Shriver, 3 Md. Ch. 381.
8 Wilson v. McCullough, 23 Pa. St. 440 ; Chapman v. Erie Rw. Co. 55 N. Y. 679,
rev'g 1 Supra. Ct, (T. & C.) 526 ; Commercial Bank v. Wood, 7 Watts t S. 89.
46 ACTIONS BY AND AGAINST CORPORATIONS.
YIII. BOOKS AND PAPERS.
54. Corporation Books and Papers as evidence.] The tradi-
tional statement found in many authorities, 1 that corporate books
are not evidence against strangers, was not originally a sound
generalization, and is no longer a safe guide in practice. Consid-
ered for purposes of evidence, the records of a corporation are
chiefly 01 three classes :
1. Statutory records or those required by law for the pur-
pose of preserving exclusively written evidence of important acts
such as subscription books for stock, registers of shareholders,
annual reports, <fec. ; and their quality as evidence depends largely
upon the statutes by which they are required.
2. Minutes of deliberative proceedings which are properly
made at the meetings of the corporation and of boards and com-
mittees and the quality of these as evidence depends on common-
law rules peculiar to the records of bodies of corporate form, but
modified often by the statute governing the corporation.
3. Account books and other books of entries kept by the
officers or agents of the corporation, as records of transactions in
the course of their agency, such as would be kept by the agents
of an individual or partnership carrying on a like business ; and
these account books are subject to the common-law rules applica-
ble generally to the accounts of individuals and partnerships.
55. Statutory Records.] The mere fact that a statute requires
a record to be made does not make the books the only evidence, 3
but where the record itself constitutes the act as in the case of a
subscription for stock in the commissioners' books, or the mak-
ing an annual report, or the adoption of a municipal by-law the
fact to be proved, when directly in issue, is the existence of the
statutory record ; and consequently, if the act is competent to be
proved, between whatever parties, production of the statutory
record is a competent mode of proof.
56. Minutes of Proceedings] "Whenever the action of a
deliberative body whether that of the corporation at large, its
board, or a committee is competent to be proved, either in favor
of or against the corporation, its officers, members, or strangers,
1 See 1 Greenl. Ev. 649, 493 ; 2 Phill. Ev. 295, notes 4 and 343 ; Rose. N. P.
228, 231; 1 Whart. Ev. 626, 662; Starkie, 412; 2 Tayl. Ev. 1519. The initial au-
thority usually cited is Mayor of London v. Lynn, 1 H. Blacks. 214. The American,
and I presume the present English law, would now admit such books as competent
towards showing that the corporation made the demands of toll, but would require
other evidence that the strangers had submitted to those demands, in order to prove
the usage. In Owings v. Speed, 5 Whart. 420, it was settled that the books of a
corporate body, established by the legislature for a public purpose such as trustees
of proprietary lands are competent evidence of the proceedings of the body there in
recorded, and ought to be admitted whenever those acts are to be proved (MAR-
SHALL, C. J.); and the same principle is constantly applied not only to the statutory
records, but also to the deliberative minutes of private corporations, within the limits
indicated in the text.
2 Inglis v. Great N. Rw. Co. 16 Eng. L. & Eq. 55, s. 0. 1 McQ. H. L. 112, 119;
Bank of U. S v. Dandridge, 12 Wheat. 70
BOOKS AND PAPERS. 47
the contemporaneous corporate record of their action is compe-
tent, 1 though not always alone sufficient. Thus the act of organ-
izing may be proved in favor of the corporation or creditors,
and against membere 2 and strangers, 8 by the books ; and in an ac-
tion between strangers, one claiming a professional degree may
prove it by the books of the college that granted it, 4 and one
claiming as assignee of a corporation may prove the assignment
by the corporate books. 5 i/So where it is competent, in an action
against a corporation for negligence, for it to prove its own pre-
cautions taken by the appointment of a committee, &c., the books
are competent for this purpose. 6 It is very commonly the case,
that the act of a private corporation is not competent unless
shown to have been communicated to the other party, and in
such case the books are competent to show the act, provided
other evidence of communication is given to connect. The first
question therefore to be determined is, whether the corporate act
is competent under the issue, and between the particular parties ;
if so, the minutes may be resorted to as evidence of it. 7
Of course, the books of municipal corporations are competent
as evidence of the election of their officers, and of other corporate
proceedings there recorded, 8 and are thus competent between
strangers. 9
1 This is the modern rule founded in reason, and essential to public convenience.
See cases cited under this and following paragraphs of this chapter, and Smith v.
Natchez Steamboat Co. 2 Miss. (1 How.) 492; Rose. N. P. 228, 231 ; Bank of U. S. v.
Dandridge, 12 Wheat. 64; Grant v. Henry Clay Co. 80 Pa. St. 208; Schell v. Sec-
ond Nat. Bank, 14 Minn. 43 ; Rayburn v. Eldod, 43 Ala. N. S. 700. As previously
indicated, numerous dicta, and perhaps some authority, to the contrary will be found
in the reports. See for instance, Jones v. Trustees of Florence, 46 Ala. 626. The
maxim that the books of a corporation are not competent in its favor against a
stranger, to establish a matter of private right, is undoubtedly correct so far as it
applies to the corporate accounts. That which is peculiar in the competency of stat-
utory records and corporate minutes, may be illustrated thus: The diary of an indi-
vidual is evidence against him, but not in his favor. He may often prove an act of
his own in his own favor, but he cannot prove it by showing an entry of the fact in
his own books. But corporate minutes of deliberative' proceedings are competent,
not only against the corporation, but against any person whntsoever, if the delibera-
tive act which is the subject of the record, is competent against him. The reason of
the rule is that the entry of the individual is a mere declaration ; the vote of a cor-
poration is an act. Often, however, the corporate act must be connected with other
proof to complete its competency.
8 Ryder v. Alton, Ac. R. R. Co. 13 HI. 523 ; Penobscot, &c. R. R. Co. v. Dunn, 30
Me. 90 ; Highland Turnpike Co. v. McKean, 10 Johns. 156 ; Coffin v. Coffin, 17 Me. 442.
* For instance, even in an action for tolls. Duke v. Cahawba Nav. Co. 10 Ala.
N. S. 82.
4 Moises v. Thornton, 8 T. R. 303.
6 Edgerly v. Emerson, 23 N. H. 566. And this has been repeatedly ruled at cir-
cuit in New York, against objection, and without reversal on appeal.
8 Weigh tman v. Corporation of Washington, 1 Black, 39, 46.
7 This principle is expressly recognized by the act as to foreign corporations. N.
Y. L. 1869, c. 589.
8 But the entry relied on must be tho primary one ; and the record of an inci-
dental and secondary proceeding is not the best evidence of the date and perform-
ance of the primary act which should have preceded it. See Litchfield v. Vernon,
41 N. Y. 123 ; Tost v. Logan, 1 N. Y. Leg. Obs. 69.
Deming v. Roome, 6 Wend. 651 ; Rose. N. P. 231, citing Case of Thetford, 12
Tin. Ab. 90, and R. v. Mothersell, 1 Stra. 93.
48 ACTIONS BY AND AGAINST CORPORATIONS.
57. Against whom Evidence of Corporate Acts is competent.']
In general, a resolution or other deliberative act of a corpora-
tion may be proved in its own favor, or in favor of a stranger,
against any one who takes issue upon it as where the existence
01 a corporation, depending on organization under a general law,
or on acceptance of a charter, is denied, or where it is denied that
the body had conferred authority on officers or agents, and there-
fore in such cases the minutes are competent. So such an act is
competent as between its members, in respect to all matters within
the corporate tie that unites them ; and as between them the cor-
porate books are of the nature of public books. 1 Such an act is
also, in general, competent against a member and in favor of the
corporation or its creditors, as to matters within the same limits,
as for instance where a receiver or a creditor, after judgment
against the corporation, sues a member or officer upon his subscrip-
tion or individual liability. But the mere fact that a person was
a member for instance a stockholder in a bank does not make
the bank accounts evidence against him of transactions wholly
foreign to his membership, such as his dealings as a depositor.
58. The Minutes not exclusively the best Evidence^ The rec-
ords of the corporate proceedings are not generally called for or
produced on the trial. 2 The principle now commonly received in
those jurisdictions where the law of corporations is most devel-
oped, is that where their proceedings are collaterally or incident-
ally in issue, parol evidence is equally primary ; but on the con-
trary, the record or a proper copy should be deemed the best evi-
dence, to be produced or accounted for before parol evidence can
be adduced, whenever the action or defense is founded directly
on the act or proceeding in question, 3 or when a written act 01
resolution is pleaded and in issue, or when the contents of the
record were communicated and the terms of the communication
is the material fact. In other words the primariness of the min-
utes does not depend on their being corporate records, but on
general principles applicable to other classes of papers. 4
1 1 Greenl. Ev. 648, 493. By-laws are evidence against an agent or servant
who had opportunity to know and a duty to obey them. See Ang. & A. on Corp.
347, 324.
2 See Partridge v. Badger, 25 Barb. 146. Chief Justice REDFIELD says : " In prac-
tice it is not one time in ten where the record books of a corporation are ever re-
ferred to in court, unless to fix a date or the precise form of a vote upon which a
power is made to depend." 1 Redf. Rw. 228 (3).
3 As in case of a prosecution on a municipal ordinance, see 1 Dill. M. C. 443,
355; compare Woolsey v. Village of Rondout, 4 Abb. Ct. App. Dec. 639, 642, IV;
or a suit for relief against fraudulent representations as to the organization or condi-
tion of the corporation. Warner v. Daniels, 1 Woodb. <fe M. 106 ; or an action on a
contract made by a resolution embodying the terms of proposal, followed by assent
on the part of the contracting party. Paragraph 30, above.
4 Conflicting authorities, too numerous to be cited here, abound. The incertitude
of opinion may easily be seen by comparing 1 "VVhart. Ev. 77, and Id. 661, 663;
1 Redf. on Rw. 228 (2), and Ang. & A. on C. 66, 83 ; p. 394, 368 ; Field on Corp.
224 ; Partridge v. Badger, 25 Barb. 146, aid Clark v. Farmers' Woolen, <fcc. Co. 15
BOOKS AND PAPERS. 49
59. Authentication of Corporate Books when produced^ To
introduce the corporate books in evidence, their character as
such must be properly shown by testimony, unless conceded. 1
For this purpose, it is usual to call the secretary or other officer
who made the record ; but this is not essential, 2 for without him
they may be admitted on their production by a \vitness who can
testify of his own knowledge that they are the books of the cor-
poration ; that they have been regularly kept by the proper officer,
or by some person in his necessary absence ; that they come from
the proper custody ; and that he knows of his own knowledge
that the entries offered are correct records of the transactions
they profess to record, 3 or, in lieu of such knowledge, other com-
petent presumptive evidence, such as that the entries are in the
handwriting of a person proved to be the proper recording officer, 4
or that the book containing them has been handed down in actual
and continuous use in the corporation, as the guide and authority
for its officers. 5 Such evidence being given, it is presumable that
the entries were made at the dates they bear ; but if grounds of
suspicion appear, the party should be provided with evidence on
that point/ An erasure will be presumed to have been made be-
fore the entry was signed. 7 The degree of this proof is a prelim-
inary question for the court. More latitude is allowable in the
proof, in proportion as the books are ancient. 8 The signature of
the appropriate officers to the minutes of proceedings even of a
public corporation or municipal board, though required by law, is
not in the nature of an official certificate of the matters stated in
the minutes : but rather an attestation of their authenticity ; and
Wend. 256, and cases cited; Lumbard v. Aldrich, 8 N. H. 31, and Edgerly v. Emer-
eon, 23 N. H. 566, and see 36 Id. 138.
1 If produced by the corporation on notice, proof or authenticity is necessary as
again>t a stranger; but is not necessary as against the corporation or its members,
nor between it and one who is a party to the paper produced or claims under it, or the
State proceeding to enforce rights under it. Commonwealth s. Woelper, 3 S. <fe R. 43.
s Hathaway v. Inhabitants of Addison, and other cases in next note. The contrary
held where the corporation offered their own books without producing or accounting
for the recording officer. Union Gold M. Co. v. Rocky M. Nat. Bank, 2 Col. Ter. 565.
3 Highland Turnpike Co. v. McKean, 10 Johns. 154; St. Lawrence Mut. Ins. Co.
V. Paige, 1 Hilt. 430; Hathaway v. Inhabitants of Addison, 48 Me. 440; 2 Phil. Ev.
442 ; 1 Whart. Ev. 639 ; 1 Greenl. Ev. 483, and cases cited. The minutes of the
subscription commissioners may be proved by their secretary. Ryder v. Alton, <fcc.
R. R. Co. 13 111. 523. The books dedicated to the use of the corporate records are
competent, though the original volumes were purchased, and are claimed, as the in-
dividual property of a member. State v. Goll, 32 N. J. L. 285 ; and see Sawyer v.
Baldwin, 11 Pick. 492. Documents may also be produced by a corporator who has
custody of them. Stark. Ev. 456.
4 If the minutes were made by a former clerk, since deceased, his handwriting,
and the fact that he was the proper recording officer, must both be proved by extrin-
sic evidence. Highland Turnpike Co. v. McLean, 10 Johns. 153 ; Owings V. Speed,
5 Wheat. 427.
6 Union Bank v. Ridgely, 1 liar. & G. 410.
Haynes v. Brown, 36 N. H. 5.7.
' Rose. N. P. 141, citing 15 Ir. Ch. R. 405. But see 1 Phil. Ev. 606 ; 2 Id. 458 ;
21 N. Y. 541.
8 Union Canal Co. v. Lloyd, 4 Watts <fc S. 898 ; and see 1 TayL Ev. 106.
50 ACTIONS BY AND AGAINST CORPORATIONS.
though they lack the required signature, their authenticity may
be proved by testimony. 1 The same principle applies to the rec-
ords of a private corporation.
It is competent to rebut the evidence of authenticity by any
proper evidence, for instance, by producing and proving another
set of records, incompatible with those first put in. 2
60. Rough Minutesl\ Rough notes taken by the recording
officer, at the meeting, for the purpose of being afterward ex-
tended in the books, are, until so extended, competent in place
of a formal record ; 8 and, if lost without being entered, parol
evidence of the transactions of the meeting is competent. 4 But,
after the formal record has been made out from them by the
proper officer, within a reasonable time, that becomes the original
record, and the rough minutes are no longer the best evidence. 5
61. Competency of Copies.'] Where the entries are of a pub-
lic character, so that the public generally have a right to resort
to them, the court will not require their production, but allows,
in lieu, the production of a copy by a witness who can swear to
its accuracy, 6 or a copy certified by some officer who is made by
law a certifying officer for the purpose. 7 Entries not of such a
public nature cannot be proved by copy at common law, 8 unless
the copy is one that has been issued or received as such by the
corporation or other party against whom it is adduced. 9 By a
recent statute in New York, the books of a foreign corporation
are admissible in evidence to prove transactions of such corpora-
tion in any court of the State. And copies of such books may
be proved by deposition on commission, or by any other com-
petent evidence, on giving ten days' previous notice, except in
favor of the corporatipn where it is a party. 10
1 People v. Eureka Lake Co. 48 Cal. 143 ; West Springfield v. Root, 18 Pick. 318.
8 Goodwin v. U. S. Annuity, <fec. Co. 24 Conn. 600.
8 Waters v. Gilbert, 2 Gush. 27.
4 Wallace v. First Parish, 109 Mass. 264 ; Protho v. Minden Seminary, 2 La.
Ann. 939.
5 Board of Education v. Moore, 17 Minn. 422.
6 A seal will not authenticate it. Stark. Ev. 457, n. ; Whitehouse v. Bickford, 29
N. H. (9 Fost.) 471.
7 Commonwealth v. Chase, 6 Gush. (Mass.) 248.
8 A copy of a vote of a corporation is not competent evidence of such vote, unless
either sworn to or certified by some person who is made by law a certifying officer
for such purpose. Hallowell, &c. Bank v. Hatnlin, 14 Mass. 178; Rose. N. P. 141.
Where the law requires a public record to be kept by officers, which all persons in-
terested are entitled to a copy of, some courts, fur reasons of convenience, have re-
ceived a copy authenticated by the officers. Eastport v. East Machias, 35 Me. 404.
8 Atlantic Mut. Fire Ins. Co. v. Sanders, 36 N. H. 252 ; 1 Redf. on Rw. 467 ;
Stale Bank v. Ensminger, 7 Blackf. (Ind.) 105.
10 L. 1869, c. 589. amending 1 of L. 1803, c. 206; modified'in application by N.
Y. Code Civ. Pro. 3343 and 920-931. The Illinois act admitting copies, has been
held merely to make certfiied copies admissible in lieu of originals, and not to make
such books and records evidence as were not so previously. Pittsfield, <fec. Plank Road
Co. v. Harrison, 16 111. 81. As to records out of the jurisdiction, proved by deposi-
tion, see 4 Allen, 122, and King v. Enterprise Ins. Co. 45 Ind. 43, 59.
BOOKS AND PAPERS. 51
62. Reports^ An official statement or report received by the
corporation or board from one acting as officer, and accepted, and
adopted by them, is competent evidence against the corporation,
and those bound by its acts, without further proof of the appoint-
ment of the officer ; 1 but a report to a corporation or board is not
made admissible in evidence against it by the mere fact that it
was received and " accepted " by it, 2 except for the purpose of
charging it with notice of the contents.
63. Foundation for Secondary Evidence.'] Where proof of
loss is required, as it may be when the corporation offers secon-
dary evidence in its own behalf, testimony of the proper custo-
dian, that he has the control of all the books and papers of the
company, and has made most diligent search for the book, and
inquiry of every person concerned with the matter, but could get
no clue to it, is enough, 3 and if the proper custodians testify to
their proper search for a book which they had allowed to be re-
moved, and the inability of themselves and of the person to
whom it was lent to find it, and their ignorance as to where it is,
this is sufficient in the absence of suspicious circumstances, with-
out calling such third person. 4
64. Notice to produce.'] A person not entitled to the custody
of the books or papers is not bound, as against the corporation, to
call its officer as a witness before offering secondary proof against
it, but may give its attorney notice to produce, 5 and, in default
of compliance, may prove the contents by secondary evidence. A
written authority 01 an officer or agent, if delivered to him by
the corporation as his evidence of appointment, should be called
for \>y .subpoena duces tecum to him ; but if simply entered in
their records as the act of the corporation, although kept in his
custody, should be called for by notice to produce. 6 The failure
of the corporation to produce its books upon due notice entitles
the adverse party to favorable presumptions in aid of his second-
ary evidence ; 7 but it does not preclude them from producing
the books on their own behalf for another matter. 8
65. Parol Evidence to vary Corporate Minuses.'] Where the
record of meetings of a municipal corporation is kept pursuant to
law, parol evidence, although admissible to apply the language to
its subject-matter, is not competent to enlarge or contradict the
1 Partridge v. Badger, 25 Barb. 172.
* 1 Dill. M. C. 357, 242 ; see also paragraph 36.
8 Graff v. Pittsburgh, <fcc. R. R. Co. 31 Pa. St. 494; Board of Education v. Moore,
17 Minn. 412.
4 Partridge v. Badger, 25 Barb. 173, 8. p. Indianapolis, <fec. R. R. Co. v. Jewett,
16 Ind. 273.
6 Thayer v. Middlesex MutuaHns. Co. 10 Pick. 326 ; 1 Redf. Rw. 228 (2).
* Westcott v. Atlantic Silk Co. 3 Mete. 291.
1 SHAW, Ch. J., Thayer v. Middlesex (above); Wylde T. Northern Rw. Co. 53
N. Y. 156. Compare 18 Wall. 644.
8 Tyng v. U. S. Submarine, Ac. Co. 1 Hun, 161.
52 ACTIONS BY AND AGAINST CORPORATIONS.
terms or meaning of proceedings which are recorded; 1 and in
general, where the law, for the purpose of preserving authentic
evidence, prescribes the keeping of official minutes of public pro-
ceedings of a corporate nature, parol evidence is not competent to
contradict the minutes. 2 In respect to minutes of private corpora-
tions, the better opinion is that parol evidence is competent, except
where the minutes are held the best evidence, and even then, un-
less the issue is between the corporation and another party to the
act which they are adduced to prove. 3 Moreover, the restric-
tion on such parol evidence applies only to the records of the
proceedings of the corporate body itself ; but not to those of the
directors of private corporations. They are but agents of the
body, and their minutes are not (unless by contract or estoppel)
conclusive on the corporation, but may be contradicted by parol. 4
And a witness, an officer of the corporation, may be asked if he
knew of any reason why the assent given informally by the di-
rectors was not recorded. The mistake or neglect of the secre-
tary, or the direction of the board to delay the entry, may be
proved against the corporation. 5 But even where parol evidence
is admissible, testimony as to the sense in which the recorded
vote was understood by an officer or member is not competent, 6
nor are his declarations' as to its meaning competent, except
against himself. 7
66. Accounts and Business Entries."] The third class of cor-
porate books, constituting the accounts of the transactions of a
private corporation had through agents and officers, are competent
between members, and between the corporation and members on
any question which concerns them in their interest as such, 8 and
between third persons at issue in respect to the condition and
solvency of the corporation. 9 Beyond this, their corporate char-
acter gives them no competency in favor of the corporation, nor
between third persons, 10 but their admission for these purposes
must be sought on grounds common to the accounts of individ-
uals and firms for instance, by producing the person who made
the entry, and reading it as a memorandum in aid of his testi-
1 See 1 Dill. M. C. 349, and cases cited pro and con.
* See People v. Zeyst, 23 N. Y. 140 ; and as to supplying omissions by parol,
compare Andrews v. Inhabitants of Boston, 110 Mass. 214 ; as to amending, compare
1 Dill. M. C. 846, 233, 234.
3 See p. 16, n. 9.
Goodwin v. U. S. Annuity, Ac. Co. 24 Conn. 601.
6 Bay View Ass. v. Williams, 50 Cal. 353.
Ehle v. Chittenango Biink, 24 N. Y. 648 ; 1 Greenl. Ev. 328, n.
* Bartlett v. Kinsley, 15 Conn. 334; Tyng v. TJ. S. ^ubmafipe Co. 1 Hun, 161.
8 Hubbell v. Meigs, 50 N. Y. 480; Merchants' B^nk v. Rawls, 21 Geo. 334.
See paragraph 58, n. 8, (above).
10 Except when they are the books of a foreign corporation within the statute
N. Y. L. 1869, c. 589; N. Y. Code Civ. Pro. 929-931 and 3343, or perhaps when
the books of a bank the property of the State. Crawford v. Bank, <fcc. 8 Ala, N. S. 79.
BOOKS AND PAPERS. 53
mony to its correctness, 1 or by showing that the entry was made
when the party, being a member, was present and presumably as-
senting to the entry ;* or by showing that the memorandum was
made by the common agent of the parties, at their request, 3 or
that it was made in the course of duty by a person since deceased,
who had means of knowledge, and no interest to falsify. 4 In case
of a public corporation, admission of accounts may be sought on
grounds common to the accounts of public officers ; 5 and as against
the corporation, entries in the corporate books, made by an officer
in the discharge of his duty, are competent on proving the books
by the secretary or by other regular proof. It is not necessary to
produce the officer who made tne entries. 6
1 Farmers' & Mech. Bank v. Boralf, 1 Rawle, 162 ; Chenango Bridge Co. v. Lewis,
63 Barb. 111.
* And such an entry is equally competent against those claiming under the mem-
ber. Union Canal Co. v. Lloyd, 4 Watts <fe S. 358. And even where the very
question is whether he was a member, prima facie evidence on that point is enough
to let in the entry made in his presence and assent. Graff v. Pittsburgh, Ac. R. R.
Co. 81 Pa. St. 495.
3 New England Co. v. Vandyke, 1 Stockton (N. J.)498; compare Black v. Shreve,
13 N. J. Ch. 455.
4 Ocean Bank v. Carll, 55 N. Y. 440; 9 Hun, 239 ; "Wheeler v. "Walker, 45 N. H.
355 ; Chenango Br. Co. Ac. v. Lewis, 63 Barb. 111.
5 See Cabot v. Waldron, 46 Vt. 11.
6 N. Am. Building Asso. v. Sutton, 35 Pa. St. 466.
CHAPTEE IV.
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
1. Nature of official character and title. 14. What interested witnesses are ex-
2. Necessity of proof of title under plead- eluded.
ings. 1 6. Assignor or source of title excluded.
8. Appropriate mode of proof. 16. What persons are protected.
4. Effect of letters as evidence. 1 7. Insanity.
5. Impeaching the letters. 18. Objecting to the testimony.
6. Best and secondary evidence of au- 19. Preliminary question of competency.
thority. 20. Moving to strike out incompetent
7. Representatives' declarations and ad- part of testimony.
missions competent against the 21. Proof of an interview.
estate. 22. What is a personal transaction or
8. The decedent's declarations and ad- communication.
missions. 23. Indirect evidence.
9. Judgments. 24. Effect of objecting party testifying in
10. Testimony of the representative. his own behalf.
11. Testimony of interested persons 25. Form of offer of testimony in re-
against the estate. buttal.
12. The New York rule. 26. The United States courts rule.
13. What parties are excluded.
1. Nature of Official Character and Title.'] By the modern
law, executors and administrators are no longer the presumptive
and contingently ultimate owners of the assets, but are consti-
tuted trustees 01 all the property in their hands ; * and an execu-
tor, though designated by the will, derives his power, as truly as
an administrator, from letters granted by the probate court. 2 In
respect to liability to action, he stands in the place of the de-
ceased, and a creditor is now entitled to judgment without alleg-
ing or proving that there are any assets ; for the judgment only
liquidates the debt. 3 On the other hand, the creditor cannot re-
cover against an executor who has not taken out proba'te, even
on proof of his having assets. 4 Letters must be issued, and it is
for the holder of letters to proceed against those who meddle
with the estate without having letters. The authority of the
executor or administrator to enable him to sue cannot be shown
by letters granted by a court of another State. 5 Such letters are
1 Dox v. Backenstose, 12 Wend. 542 ; Babcock v. Booth, 2 Hill, 181.
8 Hood v. Ld. Barrington, L. R. 6 Eq. 222.
8 Allen v. Bishop, 25 Wend. 414: Parker v. Gaines, 17 Id. 658; Covington v.
Barnes, 1 Dill. C. Ct. 16, and cases cited.
4 As to the exception in equitable actions of a certain class, see Metcalf v. Clark,
41 Barb. 45, and cases cited; Haddow v. Lundy, 59 N. Y. 320.
6 Doolittle v. Lewis, 7 Johns. Ch. 45, and cases cited ; Noonan v. Bradlev, 9
Wall. 394. Contra, Cannichael v. Saint, 16 Ark. 28.
[54]
ACTIONS BY AND AGAINST EXECUTORS, &o. 55
often relevant for the purpose of justifying his acts without suit,
done within this State, 1 his acts done elsewhere, 2 and his suits
and proceedings in the State where the letters issued ; 3 and when
thus relevant, they are competent if authenticated agreeably to
the act of Congress, 4 or to the law of the forum. 5 The executor
or administrator is thus the official and sole trustee of the estate.
He is not, however, a public officer within the rules as to evi-
dence. His actual title must be shown ; and, although in the ab-
sence of evidence to the contrary, he is presumed to have acted
in good faith, 6 the presumption of regularity accorded to official
acts does not aid his proceedings. 7 The law distinguishes between
his interest and his acts, as representative of the estate, and those
in his individual capacity or other official capacity ; and acts done
in one capacity are not necessarily conclusive against him in the
other. 8
2. Necessity of proof of title, under Pleadings^] If the alle-
gations of the complaint do not show explicitly whether the party
sues or is sued in the representative or the individual character,
resort will be had to the designation in the title of the pleading.
If it is there indicated that he sues-, or is sued, "as" representa-
tive for example, if he is named " A. B. as executor of C. D.,"
this is enough to characterize the action. 9 But if he is named
with a mere addition for example, A. B., executor, &c., of
C. D., this is matter of description only, and does not alone show
that the action is in his official capacity, 10 but in connection with
allegations in the complaint, may suffice to sustain the action in
either capacity. Under the new procedure, a representative
suing even on a cause of action accruing on a contract made with
himself, or founded on his own actual possession, should be pre-
pared with evidence of his appointment, if his character as such
is alleged in his pleading, and not admitted, especially if the re-
1 Parsons v. Lyman, 20 N. Y. 103, affi'g 28 Barb. 564, and rey'g 4 Bradf. 268.
5 Middlebrook v. Merchants' Bank, 3 Abb. Ct. App. Dec. 295, affi'g 41 Barb. 481 ;
18 Abb. Pr. 109.
3 Clark v. Blackington, 110 Mass. 369, 374.
4 U. S. R. S. 905 ; Spencer v. Landon, 21 III 192 ; Graham v. Whitely, 26 N.
J. L. 260.
* N. Y. R. S. 936, 26; Code Civ. Pro. 952.
Sherman v. Willett, 42 N. Y. 146.
T Bank of Troy v. Topping, 13 Wend. 563 ; Hathaway v. Clark, 5 Pick. 490.
8 So held of ratification of a contract, Caughey v. Stnith, 47 N. Y. 244 ; 50 Barb.
351. So of a judgment, see Rathbone v. Hooney, 58 N. Y. 463. Contra, of notice,
Burr v. Bigler, ]6 Abb. Pr. 177. So of an appearance and accounting, Larrour v.
Larrour, 2 Redf. 69. So of a receipt, Wilcox v. Smith, 25 Barb. 316, 350. The
rule is usually different where his individual interest is represented by him in his
official character. McGovern v. N. Y. Central, <fcc. R. R. Co. 67 N. Y. 417 ; but then
it may be necessary that his cextnis q>te trustent be parties.
Stilwell v. Carpenter, 2 Abb. N. C. 240, 261 ; Austin v. Munro, 47 N. Y. 867;
Scranton v. Farmers' Bank, 83 Barb. 527.
lu Merrittv. Seaman, 6 N. Y. 168; Carpenter v. Stilwell (above) ; 3 Wms. Ex'rs, 6
Am. ed, 2052-5; Id. 1981, n. b. ; 1986.
56 ACTIONS BY AND AGAINST
covery will be assets ; but, in courts where the common-law rule
is still followed, this proof may not be essential in such cases. 1
3. Appropriate Mode of Proof.'] The appropriate proof of
the official character is the production of the letters testamentary,
or of administration, granted to him by the appropriate tribunal
within the State where he sues ; 2 and the rule is the same
whether he seeks to prove it in his own favor, 3 or it is to be
proved against him,* or proved by a third person as the source of
title. 5 unless foundation is laid for secondary proof, parol evi-
dence is incompetent. 6 But upon well settled general principles,
direct proof may be dispensed with by estoppel, 7 and where di-
rect proof is impossible, indirect evidence may suffice to raise a
presumption that letters were duly granted. 8
The letters, since they are founded on a decree granting ad-
ministration, are not the only evidence ; the decree itself may be
proved. 9 The letters, however, are competent without the de-
cree. 10 Unless the statute makes letters testamentary sufficient
evidence, an executor must produce also the probate of the will. 11
The identity of the party with the one named in the letters may
be presumed by the court from absolute identity of name, 12 but
not from identity of surname. 13 In case of ambiguity or differ-
ence, parol evidence is admissible to identify. 14
4. Effect of Letters as Evidence.] Letters in due form, granted
by a court, within the State, and having jurisdiction, are at
common law presumed to have been regularly issued, and to
qualify the holder to sue and be sued ; 15 and the giving of bond
I 3 Wins. Ex'rs, 6 Am. ed. 2002, &c. The regulation of this subject varies much in
different jurisdictions, according to the extent to which the statutes have embodied
the modern principle, that the representative is a mere trustee.
8 Noonan v. Bradley, 9 Wall. 394.
3 Belden v. Meeker, 47 N. Y. 307, affi'g 2 Lans. 470 ; and auth. cited.
4 Armstrong v. Lear, 12 Wheat. 175.
5 Pinney v. Pinney, 8 Barn. & C. 335 ; 1 Wms. Ex'rs, 6 Am. ed. 349 ; Remick v.
Bntterfield, 31 N. H. 70, 84.
6 Williams v. Jarrot, 6 111. (1 Gilm.) 120, 129.
7 As where defendants had covenanted with the executors as such, Farnham v.
Mallory, 2 Abb. Ct. App. Dec. 100 ; or where the alleged representative had as such
conveyed to defendant, Bratt v. Bratt, 21 Md. 578 ; or had procured the action to
be revived, by an order of court, reciting his character as such, McNair v. Ragland, 1
Dev. (N. C.) Eq. 539. CWra, Shorter v. Urquhart, 28 Ala. N. S. 360, 366.
8 Marcy v. Marcy, 6 Mete. (Mass.) 360; Battles v. Holley, 6 Greenl. (Me.) 145.
9 Farnsworth v. Briggs, 6 N. H. 561; Elden v. Keddell, 8 East, 187, LD. ELLEN-
BOROUGH. But if the decree grants administration on condition, the letters should be
produced. Dale v. Roosevelt, 8 Cow. 349. In some courts, however, performance
of the condition will be presumed. See paragraph 4, n. 1.
10 Remick v. Butterfield, 31 N. H. 70, 84.
II 3 Phil. Ev. 75.
1S Hatcher v. Rocheleau, 18 N. Y. 86. Contra, 3 Wms. Ex'rs, 6 Am. ed. 2060.
13 Fanning v. Lent, 3 E. D. Smith, 206. Contra, Trimble v. Brichta, 10 La. Ann. 778.
14 See 3 Abb. N. Y. Dig. 2d ed. 95.
15 Westcott v. Cady, 5 Johns. Ch. 334, 343 ; even though the death of the decedent
was presumed from absence for less than seven years, Newman v. Jenkins, 10 Pick. 5 15.
The seal of the surrogate may be affixed even pending the trial, Maloney v. Woodin,
11 Hun, 202.
EXECUTORS AND ADMINISTRATORS. 57
and taking of oath may be presumed. 1 In New York and some
other States, such letters are conclusive evidence of the au-
thority of the representative, until reversed on appeal, or re-
voked, 2 and at common law they are conclusive as to the au-
thority of the representative over the personalty. 3 The recital,
in the letters, of the jurisdictional facts, is prima facie evidence
that they existed, 4 but if the record shows that the statutory no-
tice to parties in interest was not given, jurisdiction fails. 5 The
fact that a contest is pending in the probate court as to the va-
lidity of the letters, does not impair their effect, whether prima
facie or conclusive, if it be under statutes which impose the bur-
den of proof on the contestants. 6 Letters taken out pending the
suit, although competent at common law, 7 and in chancery, 8 es-
pecially where no objection was made by pleading, are not suf-
ficient under the modern practice, 9 except in favor of or against
one who has been substituted as representative, 10 or who is en-
abled to avail himself of the fact of appointment under supple-
mental pleading or pleadings equivalent in effect. 11
What has been said as to the effect of letters is applicable to
letters issued as of course, on producing and recording foreign
letters in the probate court, unless the statute authorizing this
proceeding, or the foreign statutes under which the original let-
ters were granted, indicate a different rule. 12
5. Impeaching the Letters.} The burden of proof is upon
one who disputes the authority of an executor or administrator,
on the ground of want of jurisdiction. 13 The jurisdictional facts
are defined by statute, and are usually death and assets, under the
prescribed conditions as to domicile and location. 14 These matters
may be disproved if the validity of appointment is in issue. 15
I Brooks v. Walker, 3 La. Ann. 150. So also may a prior resignation creating
the vacancy filled by the letters, Gray v. Cruise, 36 Ala. N. S. 559 : but only if the
surrogate had power to accept a resignation. Flinn v. Chase, 4 Den. 85.
8 2 N. Y. R. S. 80, 56 ; 1 Wms. Ex'rs, 6 Am. ed. 620, n. (h), and cases cited.
3 Allen v. Dundas, 3 T. R. 125.
4 Farley v. McConnell, 52 N. Y. 630, affi'g 7 Lans. 428 ; Belden v. Meeker, 47 N. Y.
307, affi'g 2 Lans. 470.
6 Randolph v. Bayne, 44 Cal. 866.
6 Brown v. Burdick. 26 Ohio St. 266.
7 Thomas v. Cameron, 16 Wend. 579.
8 Osgood v. Franklin, 2 Johns. Ch. 1 ; Doolittle v. Lewis, 7 Id. 45 ; Goodrich v.
Pendleton, 4 Johns. Ch. 549.
9 Thomas v. Cameron, 16 Wend. 679; Varick v. Bodine, 3 Hill, 444; Bellinger
T. Ford, 21 Barb. 811.
10 French v. Frazier's Ad. 7 J. J. Marsh. 425, 432.
II Haddow v. Lundy, 69 N. Y. 820.
18 See on this subject Parker v. Parker, 11 Cush. 519; Dublin v. Cliadbourn, 16
Mass. 433.
18 Welch v. N. Y. Central R. R. Co. 53 N. Y. 610.
14 Comstock v. Crawford, 3 Wall. 403 ; 2 R. S. of N. Y. 73, 23; L. 1837. ch.
460, 1, same stat. 3 R. S. 6th ed. 826, 2; Farley v. McConnell, 52 N. Y. 630,
affi'g 7 Lnns. 428.
" Redf. on W. 57. But doubted ; see 67 N. Y. 880 ; 63 Id. 460. The weight of
58 ACTIONS BY AND AGAINST
Bnt the letters cannot be impeached by proving that the surro-
gate did not comply even with the requirements of the statute
expressed to be conditions precedent of his action, such as exam-
ination of parties on oath, 1 much less that they issued to a person
not entitled, 2 if these requirements do not enter into the defini-
tion of the jurisdiction of the court, and do not relate to the
notice necessary to bind the adverse party. Nor can the letters
be impeached, as to personalty at least, by showing that the testa-
tor was incompetent, 3 or that the will was forged ; 4 but fraud
in obtaining the letters is competent, 5 unless the statute affords
an exclusive remedy in the probate court. The minutes of the
surrogate are not rendered incompetent because the statute pro-
vides that the testimony must be entered in a book and preserved
as part of the record. 6
6. Best and Secondary Evidence of Authority. ,] If the
pleadings require a party to prove his adversary's authority as
executor or administrator, it is best to give him notice to produce
at the trial the letters or probate, or both, as the case may
require, unless the party is prepared to produce the decree or an
exemplified copy of the letters as primary evidence. But it is not
necessary, in order to let in secondary evidence, to prove that the
probate or letters are in the adversary's possession ; for proof
that he has been duly appointed executor or administrator, raises
a sufficient presumption that they are in his possession to let in
secondary proof. 7
7. Representative's Declarations and Admissions Competent
against the Estate J] The admissions and declarations of an
executor or administrator, made while he was clothed with official
authority as such, are competent in evidence against the estate
the decisions on this point 10 impaired by two considerations : Many of the English
cases are the refusal of common-law courts to hold themselves bound by purely
ecclesiastical adjudications. And many of the American cases arose at a time when
probate was little more than prima facie authentication, like the acknowledgment or
proof of a deed. The tendency of recent legislation is to make the decree of the
probate court an adjudication in the fullest sense. See 63 N. Y. 460. Whether dis-
proving death avoids the letters so far as to deprive those who have acted on them
in good faith, of their protection, see Jochumsen v. Suffolk Bank, 3 Allen (Mass.)
87, in the affirmative; and Roderigues v. East River Bank, 63 N. Y. 460, rev'g 48
How Pr. 166, in the negative.
1 Farley v. McConnell, 52 N. Y. 630, affi'g 7 Lans. 428.
2 Comstock v. Crawford, 3 Wall. 403.
3 3 Redf. on W. 57 ; 1 Wms. on Ex'rs, 6th Am. ed. 618. Contra, see 2 Whart.
Ev. 811.
4 Allen v. Dundas, 3 T. R. 125 ; Steph. Ev. 48.
Exp. Joliffe, 8 Beav. 168, and see Stilwell v. Carpenter, 3 Abb. N. C. 263.
Haddow v. Lundy, 59 N. Y. 320.
7 3 Wms. Ex'rs, 6th Am. ed. 2059. A paper imperfectly showing the will and
Its probate, if shown to have been acted on as such by the representative, may bo
competent secondary evidence against him of an admission in the will binding the
estate, notice to produce the original probate having been given to him and disre-
garded. 3 Wms. Ex'rs [2004], citing Gordon v. Dyson, 1 Brod. & B. 219.
EXECUTORS AND ADMINISTRATORS. 59
while represented in the action, either by him 1 or by his suc-
cessor in the administration. 2 Mere declarations or admissions
however, as distinguished from acts, do not bind the representa-
tive, 8 but he may explain or contradict them. Declarations and
admissions made belore he was fully clothed with the trust, 4 or
after he was removed, are not competent, as against the estate,
to affect the parties beneficially interested other than himself,
except perhaps to prove his knowledge of the fact admitted.
Where there are several co-representatives, the admissions and
declarations of one are not competent against the others, either
to establish the demand as an original one, 5 or to revive the debt
after the limitation has passed. 6 But proof of an admission of a
fact by one is admissible, because it may be followed up by proof
of a similar admission by all the others. Jf not thus followed,
the judge should instruct the jury to disregard it. 7
8. The Decedents Declarations and Admissions. .] If the ex-
ecutor or administrator sues or defends, by virtue of his charac-
ter as such, evidence of the declarations and admissions made by
the decedent in his lifetime is competent against the representa-
tive ; 8 and even the decedent's declarations as to the value of his
1 Faunce v. Gray, 21 Pick. 243 ; Eckert v. Triplett, 48 Ind. 174 ; s. o. 17 Am. R
735 ; 1 Greenl. Ev. 215. Contra, Allen v. Allen, 26 Mo. 327; Crandall v. Gallup, 12
Coon. 372, and cases cited. The contrary has also been held of loose oral declara-
tions to a third person, because the representative was deemed to have no interest,
no adequate information, and no lejjal duty. Hueston v. Hueston, 2 Ohio St. 483;
and in Ciples v. Alexander, 2 Const. (Troadw. S. C.), 767, it was held that a bare
oral admission is not enough to sustain a recovery ; 8. P. Jones v. Jones, 21 N. EL
219. The better opinion is that the admission is competent, and if explicit and unex-
plained, sufficient to go to the jury. As to an account stated with the representa-
tive, see 1 Wms. Ex'rs [1947], n. f. ; N. Y. Code Civ. Pro. 395 ; Young v. Hill, 67 N.
Y. 192, and cases cited.
8 Lash lee v. Jacobs, 9 Humph. 718; Eckert v. Triplett (above); Matoon v. Clapp,
8 Ohio, 248 ; contra, Pease v. Phelps, 10 Conn. 62, 68.
3 To this extent the principle in Rush v. Peacock, 2 Moody <fe Rob. 162, is sound.
4 Moore v. Butler, 48 N. H. 161, 170; Fenwick v. Thornton, M. & M. 51, ABBOTT,
C. J. ; Legge v. Edmonds, 25 L. J. Ch. 125, 141 ; 1 Greenl. Ev. 217, 179. See
contra, TINI>AL, J., in Smith v. Morgan. 2 M. & Rob. 257. " Perhaps the admissi-
bility of statements made by executors, assignees, and others filling an official char-
acter, but before they were invested with that character, will be found to depend on
the nature of the facts stated by them. So an admission, before probate, by an ex-
ecutor named in a will may perhaps be entitled to more consideration than the ad-
mission of a mere stranger who has afterwards obtained letters of administration."
Rose. N. P. 72.
5 1 Greenl. Ev. 215, 176. This rule, originally founded on the fact that other-
wise those not admitting might be rendered personally liable, Hammon v. Huntley,
4 Cow. 493, has been reiterated since the reason failed. Elwood v. Diefendorf, 5
Barb. 407.
6 Tullock v. Dunn, Ry. <fe Moo. 416 ; Bloodgood v. Brnen, 8 K Y. (4 Scld.) 362,
rev*g 4 Sandf. 427. Contra, Shreve v. Joyce, 36 N. J. (7 Vroom), 44,8. c. 13 Am.
R 417. Otherwise of an act such as part payment, made before the statute has run.
Heath v Grenell, 61 Birb. 190; see also 3 Wms. Ex'ra, 6th Am. ed. 2063.
1 Forsyth v. Ganson, 5 Wend. 558.
8 Smith v. Smith, 3 Bing. X. C. 29, 8. o. 7 C. A P. 401 ; Cunningham v. Smith,
7n Penn. St. 458, citing Newman v. Jenkins, 10 Pick. 615. As to proving a trust, com-
pare ilarrisburgh Bank v. Tyler, 3 Watts <fc S. 373 , Barker v. White, 58 N. Y. 204.
60 ACTIONS BY AND AGAINST
property are competent on the inquiry whether the administrator
has made proper effort to administer the estate ; but they are not
binding, as declarations, upon the administrator, so as to charge
him with that amount ol assets. Upon a question of due ad-
ministration, an executor or administrator is not concluded by the
statements of the; deceased, but is only bound to a faithful at-
tempt to realize the largest amount from the assets which have
come to his knowledge. 1 But the decedent's admissions and
declarations are not competent in favor of the representative,
unless some rule of evidence would admit them in favor of the
decedent if living, as, for instance, where they were part of the
res gestce of an act properly in evidence. 2
The delivery 01 property, necessary to the validity of a gift
in view of death, cannot be proved by subsequent declarations of
the deceased, shortly before death, to a person not connected
with the gift. But subsequent declarations made to the donee,
are competent. 3 And when the words of the decedent accom-
panying the gift are ambiguous, parol declarations of his inten-
tion, made previously or afterward, are competent to explain the
intent. 4
9. Judgments,'] The executor or administrator is bound by a
judgment recovered by or against the decedent, or by or against
the representative's predecessor in administration! 5 And where an
administrator, or administrator with the will annexed, is appointed
here, upon application of the foreign executors or administrators
of the same decedent, he is regarded as an ancillary administra-
tor ; and a decree of the foreign courts of competent jurisdiction
against the foreign representatives is competent and prima facie
evidence against him.
10. Testimony of the Representative^ Where an executor or
administrator is examined under oath by an adverse party, his
whole statement must be taken together ; and a part tending to
charge him cannot be separated from a part tending to explain it
and operating in his favor. 7
11. Testimony of Interested persons against the estate.!
Since the common-law incompetency resulting from interest nas
been removed, the question of the value of an interested wit-
ness' testimony against a decedent's estate has been much dis-
1 Ginochio v. Porcella, 3 Bradf. 277, 280.
8 Chase v. Ewing, 51 Barb. 597, 615; Rickets v. Livingston, 2 Johns. Cas. 97;
Cheesemaa v. Kyle, 15 Ohio St. 15.
3 1 Wras. Ex*rs, 6th Am. ed. 858, n. Compare Hunter v. Hunter, 19 Barb. 631.
4 Smith v. Maine, 25 Barb. 33, 48. As to proving a gift, see also p. 4 of this vol.
5 Steele v. Lineberger, 59 Penn. St. 308, 313 ; Manigault v. Deas, 1 Bailey Eq.
283, 295; 3 Wms. Ex'rs, 6th Am. ed. 2116.
8 Cummings v. Banks, 2 Barb. 602 ; and see 26 N. Y. 146 ; and is conclusive
here on the parties to the foreign suit. 3 Bradf. 233.
1 Ogilvie v. Ogilvie, 1 Bradf. 356. For the limits of this rule, see Rouse v.
Whited, 25 N. Y. 170, rev'g 26 Barb. 279.
EXECUTORS AND ADMINISTRATORS. 61
cussed. The English courts, without any express statute, hold
that the testimony of a party to personal transactions with the de-
ceased, which exonerate himself, is not sufficient, at least in equity,
to sustain a decree, unless corroborated. 1
The general policy of the American statutes is to restrain the
admission of the testimony of a party or interested witness, as
against the estate of a deceased person or the interest of one suc-
ceeding to his right. The ground of the rule is, that, although
parties and interested witnesses are made generally competent,
some exception should be made where the adversary in the con-
troversy is deceased. The law prefers to admit all parties ; but
when death silences one, the law will silence the other as to mat-
ters peculiarly within their sole knowledge. The statutes for
this purpose are very diverse. Some reach the result by forbid-
ding parties and interested witnesses from testifying in all actions
where the opposite party is an executor or administrator. Others
where the action is on a contract, &c., with one since deceased.
Others attempt to define the line with more discrimination.
Where the statute is a mere proviso or saving clause in the act
abolishing the common-law disqualification of interest, it does not
make incompetent such testimony as would be competent at com-
mon law ; 2 but where it is a new, independent and affirmative
provision, it does exclude the kind of testimony described by it,
although such as would have been previously competent. 3 What-
ever be the frame of the statute, its object and the general guide in
its construction is to apply the exclusion in such manner as to put
both parties on an equality ; 4 but the court will not do violence
to the plain language of the statute for the purpose of securing
this effect. 5 Difficulties of this kind' are less frequent in propor-
tion as the statute is so framed as to define the exclusion by the
1 Hill v. "Wilson, L. R. 8 Ch. App. 888, s. c. 7 Moak's Ens?. 449 ; Gray v. Warner,
L. R. Iti Eq. 577, s. P. 7 Moak's Eng. 591. "Nobody would he safe in respect to his
pecuniary transactions, if legal documents found in his possession at the time of his
death, and endeavored to be enforced by his executors, could be set aside, or varied,
or altered, by the parol evidence of the person who had bound himself. It would be
very easy, of course, for anybody who owed a testator a debt to say, * * * *
' i met the testator and gave him the money.' The interests of justice and the inter-
ests of mankind require that such evidence should be wholly disregarded." JAMES,
L. J., in Hill v. Wilson (above). Contra, Ford v. Haskell, 32 Conn. 489, 492, where
the court say it is a question of credibility, as in case of testimony of an accomplice
in a criminal case.
2 Sheetz v. Norris, 2 Weekly Notes (Pa.) 637. The common-law exception, from
necessity, in case of contents of baggage, <fec., was admitted in Sykes v. Bates, 26
Iow;>, 521, s. P. Nash v. Gibson, 16 Id. 805.
3 Mattoon v. Young, 45 N. Y. 696.
4 McGeehee v. Jones, 41 Geo. 123; Brown v. Brightman, 11 Allen (Mass.) 220;
Louis v. Easton, 50 Ala. 470 ; Jones v. Jones, 36 Md. 457 ; Poe v. Domic, 54 Mo.
124 ; Hubbell v. Hubbell, 22 Ohio St. 208 ; Key v. Jones, 62 Ala. 238 ; Latimer v.
Sayre, 45 Geo. 468.
6 For cases where the courts have refused to do so, see Brown v. Lewis, 9 R. L
497; Roberts v. Yarboro, 41 Tex. 451 ; Howe v. Merrick, 11 Gray (Mass.) 129;
Ballon v. Tilton, 52 N.H, 607; Graham v. Howell, 50 Geo. 203; Crawford v. Robie,
42 N. H. 162.
62 ACTIONS BT AND AGAINST
kind of testimony rather than by the class of actions or parties.
The New York statute, and those modeled from it, have been the
most successful in this respect. That act addresses the prohibi-
tion to the actual source of danger, viz., the version by an inter-
ested person, of his interview with one who can no longer contra-
dict him. To prevent evasion, the prohibition is made applicable
not only to parties on the record and parties having an interest in
the result, but to assignors and others through whom a party
claims. To prevent unequal application, it is not enforceable
against one side when the other side has put forward the testi
mony of the person since deceased.
12. The New York rule.'] The statute is as follows : " Upon
the trial of an action or the hearing upon the merits of a special
proceeding, a party or a person interested in the event, or a per-
son from, through or under whom such a party or interested
person derives his interest or title, by assignment or otherwise,
shall not be examined as a witness, in his own behalf or interest,
or in behalf of the party succeeding to his title or interest, against
the executor, administrator, or survivor of a deceased person, or
the committee of a lunatic, or a person deriving his title or in-
terest from, through, or under a deceased person or lunatic, by
assignment or otherwise; concerning a personal transaction or
communication between the witness and the deceased person or
lunatic ; except where the executor, administrator, survivor, com-
mittee, or person so deriving title or interest is examined in his
own behalf, or the testimony of the lunatic or deceased person is
given in evidence, concerning the same transaction or communica-
tion." *
13. What Parties are excluded.'} A party to the action or
proceeding cannot be thus examined in his own behalf or inter-
est, or in behalf of the party succeeding to his title or interest. 2
1 N. Y. Code Civ. Pro. 829, am'd'g Code of Pro. 399. The act does not disqual-
ify from making an affidavit. By recent amendment, " the husband or wife of a party
or person interested, who cannot be examined concerning a transaction or communi-
cation, as prescribed in the last section, cannot be examined as a witness, concerning
the same transaction or communication ; or a like transaction or communication, be-
tween the witness and the deceased person or lunatic." Id. 830. Compare Tavlor
v. Kelly, 80 Pa. St. 96.
* Where the statute is not in terms restricted to a party called on his own behalf,
<fcc., <fec., the courts do not restrict it by construction, but exclude a party called for
a co-party. Bennett v. Austin, 5 Hun, 536 ; Alexander v. Dutcher, 7 Hun, 439 ;
Blood v. Fairbanks, 60 Cal. 140 ; and even though he has no interest adverse to the
executor or administrator, as, for instance, where they are co-defendants, Blood v.
Fairbanks (above) ; and though he might have been sued separately, e. g., the in-
dorsc-r, sued with the maker. Fox v. Clark, 61 Barb. 216, n. ; Alexander v. Dutcher
(above). The better opinion is that after an action against two has been practically
severed for the purposes of trial for example, by a dismissal of the action against
one on his discharge in bankruptcy, Hayden v. McKnight, 45 Geo. 147 ; or by a
judgment against them on default being opened in favor of one only, to allow him to
set up a defense personal to himself, Simpson's Exr. v. Bovard, 74 Penn. St. 351,
360 the disqualification of the one who will not be affected by the trial is ter-
EXECUTORS AND ADMINISTRATORS. 63
14. What Interested Witnesses are excluded^ T3o person
can be thus examined in his own behalf or interest, 1 or in behalf
of a party succeeding to his title or interest, if he or his prede-
cessor in interest is, at the time of the trial, 2 interested in the event
of the action or proceeding, whether directly interested in the cause
of action, or whether merely liable to be legally affected by the judg-
ment, as, for instance, where he stands in such a position that
the effect of a recovery in the action may be to diminish a fund
in which he has an interest, 3 or may aid the party unsuccessful in
the action to bring and maintain an action against the witness for
indemnity ; 4 or, to take another instance, where the effect of a
recovery may be to exonerate the witness from liability for a
tort, by giving the plaintiff satisfaction from another person. 5
But interest in the question is not enough. Thus, where the
question is whether a deed shall be set aside as against one heir,
another heir, not a party, is not excluded. 6 Nor is the mere fact
that the witness or the deceased was the* agent of the party in
making the very contract sued on sufficient to disqualify. 7 A
release which absolutely extinguishes the interest of the witness
restores competency, where the disqualification resulted from
ruinated ; but in New York, on the contrary, it was held that, though the court
might in its discretion sever the action, a party on the record could not, so long as
he remained a party, be thus examined, against or for another party. Genet v.
Lawyer, 61 Barb. 211 ; and the fact that the defendant who was offered as a
witness, did not put in an answer, but suffered default, did not sufficiently sever
the action or discontinue it as to him. Ib. Nor did the fact that the plaintiffs
executed a release to him affect the question. Ib. In Hubbell v. Hubbell, 22
Ohio St. 208, 226, the court sanction practically severing any action and admitting
the evidence against one and excluding it as against the other, wherever separate
judgments would be proper. Under a statute which excludes only in a case where
judgment might be rendered for or against an executor or administrator, it is held
that, on the entire abatement of an action as to an administrator not served, or as to
8 party dying, he ceases to be a party within the rule. Hall v. The State, 39 Ind.
301 ; Koberts v. Yarboro, 41 Tex. 451. The word "party" has been held to in-
clude a party in interest, though not on the record. Stallings v. Ilinson, 49 Ala. 92.
Especially if his interest is such that it will be necessary to bring him in as a party.
McKaig v. Hebb, 42 Md. 227.
1 Before this qualification was expressly made, it was held that the fact that the
interest was in favor of the executor or administrator against whom the witness was
called, and was against the success of the party calling him, did not take the case
out of the statute. Le Clare v. Stewart, 8 Hun, 127.
8 Farnsworth v. Ebbs, 2 Hun, 438, s. c. 5 Supra. Ct. (T. A C.) 1. As the N. Y.
statute now refers only to examination at the trial or hearing, it may perhaps be
claimed that such testimony may be taken on deposition, and the question of its com-
petency determined at the trial, according to the existence of interest, <tc., at the
time of trial.
3 Le Clare v. Stewart, 8 Hun, 127 ; but the statute has been held not to exclude
the foreign administrator of the same decedent in a suit against the administrators
here appointed, for the former is not interested. 1 Whart. Ev. 461, 471, citing
Stearns v. Wright, 51 N. H. 606.
4 Stallings v. Hinson, 49 Ala. 92 ; "Wooster v. Booth, 2 Hun, 426. Compare
Cousins v. Jackson, 52 Ala. 262.
& Andrews v. Nat. Bank of North America of N. Y. 7 Hun, 20.
6 Hobart v. Hobart, 62 N. Y. 83 ; Hooper v. Howell, 52 Geo. 321.
1 Scurry v. Cotton States Life Ins. Co. 51 Geo. 624 ; Am. Life lus. Co. v. Schultz,
2 Weekly Notes (Pa.) 665 ; Spencer v. Trafford, 42 Aid. 17.
64: ACTIONS BY AND AGAINST
being interested, but not where it resulted from the mere fact of
being a party. 1
15. Assignor, or Source of Title, excluded."] No person, from,
through, or under whom such a party or interested person de-
rives his interest or title, by assignment or otherwise, 2 can be thus
examined, in his own behalf or interest, or in behalf of the party
succeeding to his title or interest, 3 if the interest or title thus de-
rived is in the particular claim affected by the transaction or com-
munication. 4
16. What Persons are Protected, .] The ground of the exclu-
sion is the intervening incapacity of the other party to the per-
sonal transaction or communication. 5 For this purpose, death is
held to be sufficiently established \>y prima facie evidence, for
instance, the production of the letters under which the repre-
sentative acts. 6 The fact that the action is in the name of the
representative for formal reasons, although the estate has no in-
terest as such, does not alter the case, if the interests of other par-
ties are such that the reasons for protection equally apply. 7 And,
on the other hand, the prohibition will apply for the protection of
the estate, though the representative, being a party as such, be
also made a party individually ; 8 or, though he be sued only in
his individual name, if he might have been sued in his represent-
ative character, or if the recovery will enhance or diminish the
estate. 9 The words indicating the various personal relations and
1 Genet v. Lawyer, 61 Barb. 211.
8 Even where the statute does not expressly exclude the transferrer of the cause
of action, the courts have sometimes excluded him, upon the equity of the statute.
Louis v. Easton, 50 Ala. 470; 1 Whart. Ev. 452,. 473.
3 The owner of chattels transferred the title, and became agent for his trans-
feree, and then bailed them with defendants without disclosing his agency. Held,
that in his principal's action against the defendants, he could not testify to a demand
made on one of them who had since died. Conway v. Moulton, 6 Hun, 650. A
partner having assigned or released to his copartner is within the rule. Lyon v.
Snyder, 61 Barb. 172. A child emancipated by his father does not derive title to
subsequent earnings " from, through, or under "the father, in such sense that the
father is incompetent. Shirley v. Bennett, 6 Lans. 512.
4 This qualification is consonant to the principle of the statute, and seems sup-
ported by the doctrine of Cary v. White, 59 N. Y. 336, and Van Tuyl v. Van Tuyl, 8
Abb. Pr. N. S. 5, s. c. 57 Barb. 235. Contra, Lyon v. Snyder, above.
& See paragraph 11, above.
6 Parhan v. Moran, 4 Hun, 717.
1 Hollister v. Young, 41 Vt. 156.
8 Dixon v. Edward, 48 Geo. 146. Nor does the fact that the representative, by
verifying his pleading, has, by virtue of a statute, cast the burden of proof on the
other party. Ib.
9 Louis v. Easton, 60 Ala. 470; Fitzsimmons v. South wick, 38 Vt. 514. It has,
however, been held that, in a probate proceeding, the executor is not protected, be-
cause it is said that before letters issued, he is not a party as such. Hamilton v.
Hamilton, 10 R. I. 538 ; Dietrich's Estate, 1 Tuck. 129. On the other hand, it has
been held that the protection in favor of the executor or administrator must be ex-
tended by the court to an heir, <fec., if the object of the action is to establish a liabil-
ity of the decedent or a benefit to his estate. Mountain v. Collins, cited in 50 Ala.
472 ; but see Bragg v. Clark, 50 Ala, 363.
EXECUTORS AND ADMINISTRATORS. 65
modes of succession protected by the statute, are liberally con-
strued in furtherance of the equity of the rule ; 1 and it is not
essential that it appear in which of several classes protected by the
statute the objector is, if his right or liability must be in one or
another. 2 But the only derivative title regarded is one held by
the deceased at the time of the transaction, and subsequently de-
volved upon the objecting party. 3
17. Insanity.~\ For convenience of presenting the whole stat-
ute in one view, its application, where the incapacity is mental,
should be here considered. A question may arise as to what de-
gree of insanity will bring the case within the statute. At com-
mon law, the insane are not absolutely disqualified to testify. An
insane person may be examined as a witness in a lucid interval, and
may then testify even to what took place when he was insane ;
and even while under delusion, may be examined on the ground of
necessity, especially for his own protection, and for the redress of
an injury to himself. If the person is insane within the meaning
of the language of the rules of evidence as to witnesses, testimony
of the interested witness should not be admitted under the stat-
ute. 4 And even if not, the existence of an inquisition or the ap-
pointment of a guardian ad litem in the action, on the ground of
insanity, is prima facie, though only prima facie, evidence of in-
capacity to testify. 5
18. Objecting to the Testimony."] The interested witness,
when offered, should not be excluded merely because he is called
against an executor or administrator, &c., unless it is clear that if
sworn he could not testify to anything ; until that appears, it is
error to exclude him 6 under such a statute as that of ]> ew York,
where, strictly speaking, the incompetency is not that of the wit-
1 Thus, a husband, claiming by marital right of succession, has been treated as if
he were next of kin to his wife. Dewey v. Goodenough, 56 Barb. 54. The term
" heir " extends to heirs of deceased heirs claiming by representation. Merrill v.
Atkins, 59 111. 19. " Survivor " protects a surviving partner. Green v. Edick, 56
N. Y. 613 ; and " assignees " includes grantees of land. Mattoon v. Young, 45 N. Y.
696; and donees of personalty. Howell v. Taylor, 11 Hun, 214. A bank making a
loan on stock borrowed by an officer and pledged for his own benefit, under a rep-
resentation that the loan was for a third person, Held, an assignee of its officer
within the rule. Andrews v. Nat. Bank of N. Am. 7 Hun, 20. But a creditor, tak-
ing a collateral security by an assignment from a third person, obtained for him by
his debtor, is not an assignee of the debtor within the rule. Barney v. Equitable Lifa
Assur. Soc. 59 N. Y. 587. If defendant in trespass justifies as having entered as the
agent of the true owners, who claim under a deceased person, plaintiff's grantor
cannot testify against defendant to conversations with the deceased. \Vheelock v.
Cuyler, 4 Hun, 414.
8 See Mosner v. Raulain, 66 Barb. 213.
8 Cary v. White, 59 N. Y. 336.
* For these rules see People ex rel. Norton v. N. Y. Hospital, 3 Abb. New Cases,
229, note.
6 Id. ; Little v. Little, 13 Gray, 264.
6 Card v. Card, 39 N. Y. 317; and see Martin v. Jones, 59 Mo. 187; Leaptrol v.
Robertson, 37 Geo. 586.
66 ACTIONS BY AND AGAINST
ness, but of his testimony to particular facts. 1 Hence a general
objection is not enough. 2
19. Preliminary question of Competency^, Whenever it ap-
pears that a witness who is within the statute is about to testify
to an interview at which the deceased may have been present, the
question whether the examination proposed relates to a personal
transaction or communication between them, is, in strictness, one
of preliminary proof, addressed to the judge, for the purpose of
determining which, the witness may testify either negatively or
affirmatively as to whether the deceased was present, and if so,
whether anything passed between him and the deceased, and for
this purpose may be asked such questions as are necessary to as-
certain whether he merely overheard the conversation, or whether
he was privy to it ; 8 and the objecting party may be allowed to
interpose with evidence to the contrary, to enable the judge to de-
termine whether the witness could testify to what passed at the
interview. But in ordinary practice, the examination is allowed
to proceed as evidence for the jury, until it appears that the wit-
ness is stating a personal transaction or communication between
him and the deceased ; whereupon all the testimony vitiated by
this fact will be struck out, if a proper and timely objection is
made. The principle is the same under any statute which treats
the witness as compejbent generally, but incompetent as to partic-
ular facts.
20. Moving to Strike Out Incompetent part of testimony^
If a witness is inquired of generally as to a transaction, by a
question not indicating that it was a personal transaction or com-
munication with the deceased, he may properly be allowed to an-
swer, reserving to the objecting party the right to move to strike
out, 4 and, if the testimony proves incompetent, the motion to
Btrike out must be made at or before the close of the direct ex-
amination. Cross-examining the witness at large waives the mo-
tion to strike out. 5 If, however, the testimony does not show a
personal transaction or communication for example, if it simply
states that the witness had paid what was due to the deceased it
is not to be struck out, unless on cross-examination the objector
elicits the facts showing its incompetency ; then it must be stricken
1 But where the statute makes a general exclusion of the opponent of an executor
or administrator, with specified exceptions, an offer of the testimony should show
that it is within the exception. White v. Brown, 5 Reporter, 171 ; Hanna v. Mc-
Vay, 77 Pa. St. 27, 31 ; and see Stewart v. Kirk, 69 111. 512.
2 Lewin v. Russell, 42 N. Y. 251. Compare Somerville v. Crook, 9 Hun, 668.
8 Otherwise any testimony might be objected to on the ground that if the de-
ceased were alive he might contradict it. Isenhour v. Isenhour, 64 N. C. 640;
Brower v. Hughes, Id. 642. The statute was not designed to exclude the testimony
of a party, to an occurrence at which the deceased need not have been present.
Franklin v. Pinkney, 18 Abb. Pr. 186, s. c. 2 Robt. 429.
4 Kerr v. McGuire, 28 N. Y. 446, 452. Compare Howell v. Van Sicklen, 6 Hun,
115, 120.
* King v. Haney, 46 Cal. 560, s. c. 13 Am. R. 217.
EXECUTORS AND ADMINISTRATORS. 67
out ; and the circumstance that the cross-examination had not been
confined to this point, does not preclude the objector from mov-
ing to strike out pll the incompetent testimony. 1
21. Proof of an Interview.'] Under the New York statute,
and others which simply exclude all examination in regard to any
personal transaction or communication, if the mere fact that a
conversation was had between the witness and the deceased be
the material fact, it may be error to allow the witness to state
even that ; but ordinarily, where the material fact is the substance
of the interview itself, it is not error to allow the examination to
proceed so far as to state that an interview was liad, without
proving what was said or done.* The ordinary test is, does the
testimony tend to prove what the transaction was which was had
personally by him with the deceased. 3 The exclusion is not, how-
ever, merely of testimony to prove what took place. It is equal-
ly incompetent to disprove all intercourse as to prove a particulai
transaction. Testifying that there never was an interview is
equally testifying " in regard to " the supposed communications, as
is testifying to what took place at an alleged interview. 4 This
may seem inconsistent with what has just been said about testify-
ing to the fact of an interview, when only the conversation is
material, and about testifying that the deceased was not present
at an act, or that a communication when he was present was not
personal, between him and the witness ; but the distinction, though
refined, is clear. If what passed at the interview is the material
fact, a witness who testifies only that an interview was had, but
does not say what passed, is not considered as having testified in
regard to the alleged personal transaction or communication. But
if lie is allowed to testify that no interview ever took place, he
does negative the supposed personal transaction or communica-
tion. Proving an interview merely, does not prove personal com-
munication ; but disproving all interview does disprove personal
communication. Hence the rule that the witness cannot testify,
even negatively, as to interviews.
22. What is a Personal Transaction or Communication^
The interview, to be excluded, must have been a personal one.
An interview solely with an agent since deceased, is unaffected
by the statute. 5 What constitutes a personal "transaction or
1 Kerr v. McGuire (above).
s Hier v. Grant, 47 N. Y. 278.
3 Strong v. Dean, 55 Barb. 837.
4 Clarke v. Smith, 46 Barb. 30; Dyer v. Dyer, 48 Id. 190; Stanley v. Whitney,
47 Id. 586. Thus the witness cannot testify that he never paid money to the de-
ceased, or that the deceased never paid money to him. The rule excludes testimony
that an alleged personal transaction or communication was never had. Howell v.
Van Siclen, 6 Hun, 115 ; Barrett v. Carter, 3 Lans. 68 ; or that witness did not see,
or did not have a transaction with, the deceased. Mulqueen v. Duffy, 6 Hun, 299.
8 Ilildebrant v. Crawford, 65 N. Y. 107, affi'g 6 Lans. 602; Am. Life Ins. Co. v.
Shultz, 2 Weekly Notes (Pa.) 665; Cheney v. Pierce, 88 Vt. 515, 588. But under
68 ACTIONS BY AND AGAINST
communication " is not to be defined in the abstract. 1 The stat-
ute is aimed at the abuse which might result, if, when the lips of
one party to an alleged interview have been sealed by death, the
persons deriving from him rights which he held at the time of
the interview, could be prejudiced by the testimony of interested
persons, as to what took place, or did not take place between them
there. The statute is not confined to private communications and
interviews, of which there were no other witnesses ; but applies
to all personal communications, though made in the presence of
others who might be called as witnesses. 2 But, on the other
hand, it applies only to such communications and transactions as
involved the witness as a party thereto. The question is, are the
circumstances such as to indicate that in the consciousness of the
deceased and the witness, there was any privity between them
in the transaction or communication. 8 If the witness merely
overheard what went on solely between the deceased and a third
person, he is competent. 4 And this rule has been applied even
where the conversation was an admission by the deceased of his
previous transactions, with the witness. 5 But if in even a part of
the conversation the witness took part, or even was included as
one to whom the words of the deceased were addressed, or for
whose ear they were in part intended, he cannot testify to that
part, 6 but may to any other separable part. 7
23. Indirect evidence.'] The prohibition is not to be evaded
by questions of a general form, such as whether the witness was
in the habit of borrowing from the deceased, where such habit
might form a ground of presumption as to what passed at a sup-
statutes which exclude the surviving party to a contract, the death of a contracting
agent has been thought to exclude the surviving party who contracted with him. 1
Whart. Ev. 451, 469, citing First Nat. Bk. v. Wood, 26 Wis. 500. Where the ac-
tion was by A. to reform his deed to B. and B.'s to C., HeJ4, that A. might testify to
what occurred between him and B., although C. was dead. Payne v. Elyea, 50 Geo.
395.
1 Birth is not a " transaction " between mother and child within the statute, so as
to prevent the mother from testifying to it, against the child's executor. Matter of
Paige, 62 Barb. 476. As to marriage, see Spicer v. Spicer, 16 Abb. Pr. N. 8. 113.
? Hatch v. Peugnet, 64 Barb. 189.
3 Brague v. Lord, 2 Abb. New Cases, 1 ; Johnson v. Spies, 5 Hun, 471.
4 Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 N. Y. 327, s. c. 4 Abb.
Pr. N. S. 56 ; Sanford v. Sanford, 61 Barb. 293.
6 Hildebrant v. Crawford, 6 Lans. 502, affi'd in 65 N. Y. 107. So under the Illi-
nois statute allowing exception as to " facts occurring after the death of the de-
ceased," evidence of admissions made by a party after the death, as to previous facts,
is competent. Stewart v. Kirk, 69 111. 512.
6 As, for instance, one who went to the interview for the purpose of hearing it,
and participated in the negotiation as where a wife went with her husband when he
negotiated a loan on mortgage, and joined in the mortgage to release her dower.
Farnsworth v. Ebbs, 2 Hun, 438, s. c. 5 Snpm. Ct. (T. & C.) 1 ; or where the de-
ceased, in speaking to a third person, mentioned the witness, turning partly towards
him, to include him, as it were, in the communication, Brague v. Lord (above).
' Gary v. White, 59 N. Y. 336.
EXECUTORS AND ADMINISTRATORS. 69
posed interview ; * nor is it disregarded because testimony to facts
necessarily or presumptively importing personal communications
does not specify any particular interview. Thus, a physician or
attorney is incompetent to prove bis own services as such to
the deceased, as against the representative. 2 But the witness may
prove an act by any circumstances which do not tend to do so by
merely raising a presumption of a personal transaction or com-
munication between him and the deceased. Thus he may testify
to the admissions of the representative or heir, raising a presump-
tion of payment to the ancestor. 3
The exclusion of the transaction or communication excludes
all the incidents of it, 4 so far as they are connected with what
affected the witness and the deceased together.
24:. Effect of Objecting Party testifying^ cfec.] "Where the
party for whose protection the statute declares the testimony in-
competent, is examined in his own behalf as to the transaction
or communication in question, or where the testimony of the
deceased or lunatic as to it is given in evidence, 5 by the party
adverse to the one calling the witness, 6 the prohibition does not
apply ; and this qualification is to be taken in connection with
the general principle, that a party who puts in evidence concedes
the right of the adverse party to tread the same ground in rebut-
1 Alexander v. Dutcher, 7 Hun, 439. But compare Kerr v. McGuire, 28 N. Y.
452.
2 Ross v. Ross, 6 Hun, 182 ; Somerville v. Crook, 9 Hun, 664. A party is com-
petent against an administrator to identify his shop books offered in evidence. Strick-
land v. VVynn, 51 Geo. 600 ; Leggett v. Glover, 71 N. C. 211 ; Kelton v. Hill, 58 Me.
115. If the books can be deemed admissible as at common law, notwithstanding
the death of the other party to the transactions, they should be introduced only upon
the common-law proof of accuracy, <fcc. Knight v. Cunnington, 6 Hun, 100, 105. It
has even been said that a witness who cannot prove a personal transaction, is equally
incompetent to prove any state of facts from which such transaction might be pre-
sumed, for instance, that to raise a presumption that he had made payments to the
deceased, he could not testify that the deceased had no other sources of income than
such payments. Jaques v. Elmore, 7 Hun, 675.
' Card v. Card, 39 N. Y. 317.
4 The witness cannot testify even to the fact that he carried an inkstand with him
when he had a personal interview with deceased. Dubois v. Baker, 30 N. Y. 355,
affi'g 40 Barb. 556. The fact he saw an instrument in the possession of the assignee
of the deceased, was held not incompetent, in Smith v. Sergent, 2 Hun, 107. So of
his testimony, that a document produced was a copy of a paper he obtained from the
deceased. Moulton v. Mason. 21 Mich. 371. Testimony that he had seen the de-
ceased sign a paper was held incompetent, in Den man v. Jayne, 16 Abb. Pr. N. S.
817, on the authority of Ressiqne v. Mason, 58 Barb. 89, which has been superseded
by amendment of the statute. The rule has been pressed so far as to exclude the
witness from testifying to his own undisclosed intent in making a transfer to the de-
ceased. Tooley v. Bacon, 8 Hnn, 176, 70 N. Y. 87. But this conclusion is to be ac-
cepted with caution. Intent communicated to, or even legally presumable to have
been shared by the deceased, at thj interview, could not be proved by the witness ;
but if the transfer is proven aliunde, an undisclosed intent is no part of the communi-
cation or transaction between them, and, if relevant (see 40 N. Y. 221) might be
proved by the wituess.
* As, for instance, by deposition, Munn v. Owens, 2 Dili C. Ct. 477 ; Munroe v.
Napier, 62 Geo. 388.
Miller v. Atkins, 9 Hun, 9.
70 ACTIONS BY AND AGAINST EXECUTORS, <fec.
tal, so far as it can be done without violating a positive prohib-
itory statute. 1 But the fact that a third person interested in the
estate has testified for the representative does not open the door
for the adversary. It is only giving the testimony of the de-
cedent or incompetent person, or of the representative who is a
party, that entitles the adversary to put in that of the interested
witness. 2 And giving testimony as to one transaction or com-
munication does not relieve the adversary from the prohibition
in respect to a distinct and independent communication. 8
25. Farm of Offer of testimony in rebuttal.'] Where the
door is opened for the testimony of the party or interested wit-
ness, by the giving of that of the other, the offer need not be
confined to the disputable part of the testimony which has been
given. In this case, as in the case of an offer in the first instance,
the witness may be sworn unless it appears that he could testify
to nothing ; and his examination should be restricted to the mat-
ters as to which the objecting party has given the evidence. 4
26. The United States Courts rule.'] In the courts of the
United States, no witness can be excluded " in any civil action,
because he is a party to or interested in the issue tried : Pro-
vided, that in actions by or against executors, administrators, or
guardians, in which judgment may be rendered for or against
them, neither party shall be allowed to testify against the other,
as to any transaction with, or statement by, the testator, intestate,
or ward, unless called to testify thereto by the opposite party, or
required to testify thereto by the court. In all other respects,
the laws of the State in which the court is held shall be the rules
of decision as to the competency of witnesses in the courts of the
United States in trials at common law, and in equity and admi-
ralty." 5
1 Where one party gave evidence of admissions made by the grantor of the other,
Held, that the grantor could testify to rebut this evidence, although it related to
transactions with a deceased person through whom the former claimed title. Cole v.
Denue, 3 Hun, 610. Where testimony to oral declarations of the Meceased was ad-
mitted, Held, that counter declarations in writing were admissible. Smith v. Chris-
topher, 16 Abb. Pr. N. S. 332. Plaintiff having put in evidence letters by defendant
to a person since deceased, Held, that defendant was entitled to give testimony ex-
plaining away the letters, although such testimony related to a transaction with the
deceased. Sanford v. Sanford, 61 Barb. 293. If the executor or administrator testi-
fies to an admission by the plaintiff that the demand had been satisfied by the deced-
ent, plaintiff can, by way of explaining or contradicting the testimony, testify that no
such settlement was made. Cousins v. Jackson, 52 Ala. 265. If a witness testifies
that a party admitted certain transactions with the deceased, the party may contra-
dict this. Martin v. Jones, 59 Mo. 1 87.
2 Canaday v. Johnson, 40 Iowa, 687.
8 Goodwin v. Hirsche, 37 Super. Ct. (J. A S.) 511.
4 Brown v. Richardson, 20 N. Y. 472, rev'g 1 Bosw. 402.
& U. S. R. S. 858. Under this act, if the decedent had been examined in his own
behalf, and his deposition was read on the trial, by his representative, the adverse
party is competent on his own behalf. Mumm v. Owens, 2 DilL C. Ct. 475. But an
ex parte order obtained by a party before process issued, for his own examination, ia
Hot the requirement of the court intended. Eslava v. Mozange, 1 Woods, 623.
CHAPTEE V.
ACTIONS BY AND AGAINST HEIRS AND NEXT OF KIN, DEVISEES
AND LEGATEES.
I. DEATH.
1. Direct testimony.
2. Registry of death or burial.
3. Presumptions of death, and of the
time of death.
4. Circumstances raising a natural
presumption of death.
6. Voyages and other special perils.
6. Seven years' absence in case of
life-estates.
7. Seven years' rule in other cases.
8. Absence and inquiry.
9. Rebutting the presumption.
10. Time of presumed death.
11. The English rule.
12. The contrary rule.
13. Survivorship in common casualty.
II MARRIAGE.
14. Burden of proof and presumptions.
16. Direct evidence of marriage.
16. Certificate or registry.
17. Indirect evidence of marriage.
18. Cohabitation and repute.
19. Cohabitation and declarations.
20. Marriage after meretricious inter-
course.
21. Second marriage during absence.
22. Rebutting evidence of marriage.
23. Foreign la\v.
III. ISSUE AND FAILURE OF ISSUE.
24. Burden of proof.
25. Presumptions as to failure of issue.
26. Escheat.
27. Possibility of issue extinct.
28. Registry of birth or baptism.
29. Consorting as a family.
80. Direct testimony as to age.
31. Physician's testimony or account.
82. Legitimacy: Burden of proof and
presumptions.
33. Parents' testimony and declara-
tions.
IV. HEARSAY AS TO FACTS OF FAMILY HIS-
TORY (PEDIGREE).
34. Grounds of receiving it ; and its
weight.
35. What facts are within the rule.
86. Whose declarations may be
proved.
87. Family records.
88. Other written declarations.
89. General family repute.
IV. HEARSAY AS TO, <fcc.. continued.
40. Declarations in view of contro-
versy.
41. Repute beyond the family; Ac-
quaintance ; Newspaper notice ;
Insurance.
42. Best and secondary evidence.
V. REGISTRY OF FACTS OF FAMILY HISTORY
(PEDIGREE).
43. Registries authorized by law.
44. Registries not authorized by law.
45. Best and secondary evidence.
46. Impeaching registries.
VI. JUDICIAL RECORDS, SHOWING FACTS OF
FAMILY HISTORY (PEDIGREE).
47. Letters of administration, <fcc.
48. Judgments and verdicts.
VII. IDENTITY.
49. Necessity of proof.
50. Mode of proof.
VIII. NATIONAL CHARACTER ; AND DOMICILE,
51. Citizenship and alienage.
62. Naturalization.
63. Nature of the question of domicile.
64. Presumptions; and material facts
as to domicile.
65. Change of domicile.
56. The intent.
67. Evidence of residence, and of in-
tent.
IX. WILLS.
58. Presumptions, and burden of
proof as to intestacy.
69. Domestic will proved by produc-
ing probate.
60. Decree of probate court, how far
conclusive.
61. Formalities' of execution.
62. Testamentary capacity.
63. Conduct and declarations of testa-
tor.
64. Opinions as to mental soundness.
65. Hereditary insanity.
66. Inquisitions, and other adjudica-
tions.
67. Undue influence ; the burden of
proof.
68. Indirect evidence.
69. Relevant facts.
70. Declarations and conduct of tester
tor.
[71J
72 ACTIONS BY AND AGAINST
IX. WILLS continued. XI. ADVANCEMENTS.
71. Fraud. 117. The general presumption.
72. Revocation. 118. Advancement by deed of real
73. Marring the document. property.
74. Disappearance of the document. 119. Purchase in name of child.
76. Testator's declarations. 120. Other transfers.
76. Subsequent testamentary acts. 121. Entries in account.
77. Constructive revocations. 122. Declarations and admissions.
78. Action to establish lost or de- 123. Value.
stroyed will. 124. Testamentary clauses as to ad-
79. Foreign will. vancements.
80. Ancient will.
X. EXTRINSIC EVIDENCE AS TO WILLS. XI 1 I ' )K Tl ? E> D C ^ B * N8 ' AN P JODGMKNT f-
81. Effect of the Statute of wills. 126 ' Ancestors title, and successors
82. Legitimate objects of extrinsic , 0fl ~ e .
evidence 6 * Declaratlon s and admissions of the
83. Reasons for its liberal admission. ~ aj^or as to title, Ac.
84. Reasons for its strict exclusion. }*' Declarations of third persons.
85. Exceptional rule as to evidence in 128 ' ^clarations of successors, repre-
rebuttal sentatives and benenciaries.
86-88. Extrinsic aid in reading. 129 ' Judgments.
89, 90. Extrinsic aid in testing valid-
ity. XIII. ACTION TO CHAKGE HEIE, NEXT or
91-107. Extrinsic aid in applying. KIN, &c., WITH ANCESTOR'S DEBT.
108-115. Extrinsic aid in executing. 130. Material facts.
116. Time of declarations bearing on 131. Mode of proof,
intention.
I. DEATH.
1. Direct testimony.] Death, like birth and marriage, and
the number and names of children, &c., may be proved by the
testimony of a witness directly to the fact, and such testimony is
not necessarily rendered incompetent by its appearing that his
memory is aided by family records not produced, 1 nor even that
he was not an eye-witness of the occurrence. When such testi-
mony is offered the adverse party may, if he choose, interpose with
cross-examination to ascertain if the witness has personal knowl-
edge of the occurrence. If he has not, the burden is thrown upon
the party calling him to show the conditions of lapse of time, re-
lationship or information which render hearsay competent under
the rules stated below ; 2 but such testimony, whetner admitted
after scrutiny or without objection, is not very cogent. 8 Its
weight depends much on the absence of other evidence to the
contrary.
2. Registry of death or 'burial.'] Death may be proved by an
official registry of the death, kept pursuant to statute, 4 or by a
church or other registry of burial, shown to have been kept in
the manner hereafter stated ; s and upon the same principle the
1 Secrist v. Green, 3 Wall 750.
* See paragraphs 33, <fec.
8 See Scheel v. Eidman, 77 EL 301.
4 But a memorandum indicating death is not competent merely because found in
an official record kept for other purposes. Ridgeley v. Johnson, 1 1 Barb. 527.
* bee paragraph 41, below.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 73
entry of death, in a hospital register would be competent. 1 A
burial registry kept without authority of statute is not, as an
official registry of death may be, evidence of the time of death,
any further than to show that it was presumably within a reason-
able season previous to the burial, unless the time of death is
shown to have been recorded by direction of a member of the
family since deceased, so as to bring it within the rule hereafter
noticed of declarations as to facts of pedigree.
3. Presumptions of Death and of the Time of death.'] He
who founds his claim on an assertion of death, must give some evi-
dence from which the law or the jury may infer that death has oc-
curred ; for as against him the presumption of law is that a per-
son of whom nothing is known but that he was living at a certain
time, continues to live, 2 at least until he would reach the age of
one hundred, after which he may be presumed to be dead in
the ordinary course of nature. 8 When there is no definite evi-
dence of the fact of death, as in the case of a person absent and
unheard of, the law receives all proper evidence of the circum-
stances which can throw light upon motive, cause, and casualty,
and in civil cases inquires not whether it is possible that he can
be alive, but whether the circumstances do not warrant that
strong probability of death upon which a court of justice should
act. 4 And the tendency of such circumstances may be aided by
the presumption of innocence, as, for instance, where continued
life would prove guilt in the party to a second marriage. 5
Presumptions drawn from the circumstances of absence may,
and often do suffice, to establish that a person was dead at and af-
ter a specific date, without affording any indication that in fact he
died on that date, or on any given date. The law, which follows
common reason in sifting this kind of evidence, often agrees with
the family in giving up the lost one as dead, but the question at
what date he died may remain inscrutable for the law as well as
. for the family. Upon the first question the law aids a decision
by the convenient artificial rule that one absent and unheard of
for seven years may be presumed no longer living. Whether
any artificial rule exists aiding the decision of the question at
what time his death shall be deemed to have occurred, is dis-
cussed below.
4. Circumstances raising a Natural Presumption of death.']
Death within a very recent time may be inferred from the circum-
1 See Doe v. Andrews, 15 Q, B. 759.
O'Gara v. Eisenlohr, 38 N. Y. 296, and cases cited ; Duke of Cumberland v.
Graves, 9 Barb. 595.
3 Hayes v. Berwick, 2 Martin (La.) 138 ; Watson v. Tindall, 24 Geo. 474 ; Sprigg
T. Moale, 28 Md. 497, 605.
4 Merritt v. Thompson, 1 Hilt. 650, 655, and cases cited.
5 Smith v. Knowlton, 11 N. II. 191, 196; Kelly v. Drew, 12 Allen, 107, 110.
Compare O'Gara v. Eisenlohr, 38 N. Y. 296.
74 ACTIONS BY AND AGAINST.
stances of absence, or disappearance. Sudden disappearance is
not alone enough, in the case of a man without social or pe-
cuniary ties, or fixed abode, 1 though it may be in that of one en-
deared to his home and fixed in his habits, 2 or having strong pe-
cuniary motive to appear, according to his habit, if alive, 8 or in
case or one who was last seen in proximity to danger, and left his
effects in a situation suggestive of accident or suicide. 4 Where
the presumption of death turns upon unexplained absence, all the
circumstances surrounding the absentee within a reasonable time
before his departure, or at any time afterward, which, in their na~
ture, have reasonable bearing on the probabilities, are relevant
such as the state of his domestic and business relations, his habits,
his health of body and mind, previous threats of suicide, the im-
mediate and ultimate purposes of his departure, the circumstances
of his correspondence and its cessation, &c. 5 The presumption
of death from absence rests on the fact that it is strange that a
man should absent himself, without communicating with his
friends if living 6 hence it is aided by whatever in his situation
and habits makes it the more strange, and is impaired by what-
ever makes it easily credible. 7
5. Voyages, and other Special Perils.'] It is well settled that
evidence that at last accounts the absentee was exposed to great
and immediate peril may, in connection with the failure of fur-
ther tidings, raise a presumption of a death consequent on the
peril. 8 So one who has sailed in a vessel which has never been
heard of, after such lapse of time as would be sufficient to allow
information to be received from any part of the world to which
the vessel or persons on board might be supposed to have been
carried, may be presumed to be dead, 9 if on inquiry in the proper
quarters it appears that no intelligence of him has been received. 10
In such a case evidence that the insurers of the ship have paid
1 Hancock v. American Ins. Co. 62 Mo. 26, s. c. 3 Centr. L. J. 695.
5 Id. ; and see 62 Mo. 121.
8 In re Beasney's Trusts, L. E. 7 Eq. 498.
4 Lancaster v. Washington Life Ins. Co. 62 Mo. 121, 129.
6 For illustrations of this principle, see Tisdale v. Ins. Co. 26 Iowa, 170, again 28
Id. 16, reVd on another point in 91 U. S. (1 Otto), 238; Stouvenel v. Stephens, 2
Daly, 319; Sheldon v. Ferris, 45 Barb. 124; Hancock v. Am. Ins. Co. 62 Mo. 26,
s. c. 3 Centr. L. J. 595 ; Garden v. Garden, 2 Houst. 574; John Hancock Ins. Co. v.
Moore, 16 Am: L. Reg. N. S. 214.
6 Per LD. DENMAN, 2 Mees. & W. 913.
7 See paragraph 9, below. Thus the mere fact that the person was absent as a
mariner does not raise a presumption of death before the lapse of seven years. Eagle'3
Case, 3 Abb. Pr. 218, s. c. 4 Bradf. 117; and see Smith v. Knowlton, 11 N. H. 191,
197 ; Burr v. Sim, 4 Whart. 150, 171.
8 Eagle's Case, 3 Abb. Pr. 218, s. c. 4 Bradf. 117; Merritt v. Thompson, 1 Hilt.
650, 655, and cases cited.
* Id. and cases cited; White T. Mann, 26 Me. 361, 370 ; Merritt v. Thompson, 1
Hilt. 650 ; Gerry v. Post, 13 How. Pr. 118 ; Lancaster v. Washington Life Ins. Co.
62 Mo. 121, 129.
10 See paragraphs 8 and 34, Ac., below.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 75
the policy as on a total loss, is deemed competent evidence of the
death of one on board, 1 probably on the principle by which com-
mon repute from proper sources is received. The concurrence of
a particular storm or a hurricane season, with the route of voyage,
is relevant, as enhancing the probability of loss and indicating the
probable time. 2
6. Seven years' absence in case of Life Estates.] The incon-
veniences resulting to persons entitled as reversioners upon the
termination of life estates, in England, for want of proof of the
death, while absent, of the persons upon whose life the termin-
ation depended, led in 1667 to the enactment of a statute 3 by
which seven years' absence in such cases raised a legal presump-
tion of death. This rule, in the form adopted in "N ew York, 4 is
as follows : " If any person, upon whose life any estate in lands
or tenements shall depend, shall remain beyond sea, or shall al>-
sent himself, in this state or elsewhere, for seven years together,
such person shall be accounted naturally dead, in any action con-
cerning such lands or tenements, in which his death shall come
in question, unless sufficient proof be made in such case, of the
life of such person." It is not necessary for the party relying on
such a statute to prove either alternative specifically, but a gen-
eral proof of absence, showing a case which must be within one
or the other alternatives of the statute, is enough. 5
7. Seven years' rule in other cases. ,] In analogy to the stat-
ute as to life estates, and another as to bigamy, the courts estab-
lished the rule that in all cases, whatever presumption may be
claimed of the continuance of a life from the mere fact that it
was shown once to exist, ceases at the expiration of seven years
from the time the person was last known to We living, and that
from the mere lapse of that time arises a legal presumption that
the person is no longer living. This presumption, first suggested
as a proper one for the jury to draw in analogy to the statutes, 6
is now a well recognized legal presumption, constituting, in the
absence of evidence to the contrary, a prima facie case. 7
8. Absence and Inquiry] To bring a case within either a
statutory or judicial rule as to seven years' absence, it is not enough
that no evidence of the whereabouts of the person is adduced.
There must be affirmative evidence of absence, from his established
1 Goods of Main, 1 Sw. & Tr. 11 ; In re Ilutton, 1 Curteis, 595.
9 Gibbes v. Vincent, 11 Rich. (S. C.) 823 ; Silleck v. Booth, 1 Younge <fe C. 117.
The same facts which, uudcr the law of insurance, would be competent as bearing on
the presumption of loss of the vessel, will in such cases be usually relevant to the
presumption of death.
3 19 Car. II, c. 6; 1 Chitt. Stat. 1370.
4 1 R. S. 749, 6.
s Osborn v. Allen, 26 N. J. L. (2 Dutcher), 388.
6 Doe d. George v. Jesson, 6 East, 80, 85.
T Forsaith v. Clark, 1 Foster (N. H.), 409; King T. Paddock, 18 Johns. 141.
76 ACTIONS BY AND AGAINST
residence, 1 if lie had one, and that he has not been heard of by those
who would be likely to have heard of him if alive. 2 For this pur-
pose such persons should be called as witnesses, or a reasonable in-
quiry among them, or search for them, without success, must be
shown. 8 If he had a known and fixed residence in a foreign
country when last heard from, there should be some evidence of
inquiries made there. If he had relatives in this country, there
should be some evidence of inquiries of them, or an unsuccessful
search for them at their last known place of residence ; and the
mere fact that letters addressed to relatives at a last known place
of residence remained unanswered, is not sufficient. 4
"What is a reasonable inquiry is a mixed question of law and
fact, to be determined upon the particular circumstances of the
case. 5
9. Rebutting the Presumption.'] The presumption is a con-
venient artificial rule, defining the limit of a mere probability, 6
and is not conclusive, 7 but susceptible alike of being strengthened
and impaired by any of the circumstances relevant to the natural
presumption of death in case of long absence. 8 The presumption
is strengthened by the fact that the person left home for tem-
porary purposes ; 9 while, on the other hand, it is weakened if he
left clandestinely under circumstances indicating intention of con-
cealment abroad, 10 or appears to have broken with friends after
departure, and ceased to desire intercourse. 11 And the testimony
of a witness that even others than members of the family have
heard that he was living, 12 or that a single letter has been received
from him, 13 within the seven years, wholly rebuts this presump-
tion. While modern facilities of intercourse by mail and tele-
graph add significAce to continued cessation of correspondence,
1 Doe v. Andrews, 15 Q. B. 760 ; Stinchfield v. Emerson, 52 Me. 465 ; Spurr v.
Trimble, 1 A. K. Marsh. 278.
4 Doe v. Andrews, above ; Duke of Cumberland v. Graves, 9 Barb. 595, 608 ;
McCartee v. Camel, 1 Barb. Ch. 455.
8 Even producing the only surviving relative, without further inquiry, is not
alone enough. Doe v. Andrews (above).
4 McCartee v. Camel, 1 Barb. Ch. 455, 463.
b See Clarke v. Cummings, 5 Barb. 339, 853.
* Compare Ram on Facts (by Townshend), 110.
7 R. v. Harborne, 2 A. <fc E. 540, s. c. 4 Nev. & Man. 344.
8 Thus a court of equity, having discretionary power, may require security to
refund, even after the lapse of twelve years. Dowley v. Winfield, 14 Sim. 277.
It has been held that acts of a party tending to recognize the existence of the
absentee, such as reserving a fund for him on a trust accounting, or proceeding in a
suit on proof of personal service of process on him, is competent aa against such
party. Keech v. Rin chart. 10 Penn. St. 244.
9 Loring v. Steineman, 1 Mete. 204.
10 Watson v. England, 14 Sim. 28.
11 Bowden v. Henderson, 2 Smale & G. 360.
12 Flynn v. Coffee, 12 Allen, 133. But as to mere rumors, see Koster v. Reed, 6
B. <fe C. 19; Whiteside's Appeal, 23 Penn. St. 114, 117.
13 Smith v. Smith, 49 Ala. 158. The letter, if stated still to exist, should be pro-
duced, or its absence accounted for. Brown v. Jewett, 18 N. H. 230. Slight evidence
ia enough to account for absence. Am. Life Ins. Co, v, Rosenagle. 77 Penn. St. 507, 513.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 77
yet, on the other hand, the presumption from absence itself ia
weakened by modern facilities for travel, 1 the expanse of our
country, and the migratory habits of population. 2
10. The Time of Presumed Death.] The presumption of
continuance of life ends on the expiration of the seven years, but
whether life is presumed to have ended on that day is another
question. Where the death is presumed from circumstances natu-
rally pointing to a particular period, it will ordinarily be a ques-
tion for the jury to find the date of death, 3 either specifically or
relatively to otner events material to the cause ; where a party
rests on the seven years' presumption, much difference of opinion
exists, and two rules contend for control. 4
11. The English rule.] The doctrine recently established in
the English courts, 5 and followed in some American cases, 6 is
that he upon whom is the burden of proof to show either death
or survival, at a particular time within the seven years, must ad-
duce distinct proof bearing on that time. 7
12. The American rule] The rule more generally recognized
in the courts of this country is that the principle which raises a
presumption of the death of a person absenting himself for
seven years without being heard from, furnishes a legal presump-
tion of the time of the death, as well as of the fact of the death ;
for in the absence of such a presumption, the presumption would
be that the person was still alive ; and this presumption of
the continuance of life ceases only when it is overcome by
the countervailing presumption of death arising at the end of
seven years ; but the presumption of death so arising cannot
operate retrospectively to indicate a death previous to the time
it arose. In other words, the legal presumption of life is suf-
1 Watson v. England, 14 Sim. 28.
s Smith v. Smith, 49 Ala. 158.
3 When the fact of death is conceded, and the inquiry is when did it happen, the
question of presumptions arising from the fact that the vessel was never heard of, is
not postponed to the latest possible period, but is a question of reasonable probability
in view of the known usual and not necessarily longest time for voyages like that in
question. Oppenheim v. Wolf, 3 Sandf. Ch. 571.
4 See paragraph 4, above.
5 In re Phen6's Trusts, L. R. 5 Ch. 139, and cases cited; In re Lewes' Trusts, L.
R. 6 Ch. 356, affi'g L. R. 11 Eq. 236.
4 State v. Moore, 11 Ired. (N. C.) L. 160; Spencer v. Roper, 13 Ired. 333; Mc-
Cartee v. Camel, 1 Barb. Ch. 455 ; see also Hancock v. Life Ins. Co. 62 Mo. 26.
7 The grounds assigned for this rule are: 1. That to presume denth upon the last
day of the seven years would be to presume that which would be almost always con-
trary to the fact ; 2. That, if life on the last day of the seven years is presumed, death
on the day following is extremely improbable ; and, 3. That to allow the presump-
tion of continuance of life in a case where continuance of life is the main fact in
issue, is a different thing from allowing it where the continuance is only incidentally
involved. The English rule 5a supported in this country by the opinions of RCFFIN,
Cb. J., NASH, J., and WALWORTH, Chan, in the cases above cited, and that of Dr.
Wharton (2 Whart. Ev. 1276), who deems it supported by the preponderance of
American authority. It is assumed, also, by Mr. Bishop, 1 Bish. Mar. <fc D. 456.
78 ACTIONS BY AND AGAINST
ficient, in the absence of all other evidence, to sustain an alle-
gation of existence at any time during the period that the pre-
sumption lasts, viz., until the lapse of the seven years. 1 The
presumption that death occurs at that time fixes the rights de-
pendent on death, until evidence to the contrary appears. Hence
an executor is chargeable with interest for not paying over to the
legatee entitled by reason of the presumable death. It is not
necessary that the presumption should be judicially adjudged in
order to fix the rights of parties. 2
13. Survivorship in common casualty.'] Where death of sev-
eral is caused by one catastrophe, the burden of proof is on him
1 This doctrine is fully supported by the following decisions : Montgomery v.
Beavans, 1 Sawyer, 653, s. c. 4 Am. L. T. U. S. Cts. 202, FIELD, J. ; Eagle's Case, 3
Abb. Pr. 218, s. c. 4 Bradf. 117, BRADFORD, Surr. ; Exr's of Clarke v. Canfield, 15
N. J. Ch. (2 McCarter), 119, GREEN, Chan. ; Whiting v. Nicholl, 46 111. 230, 241,
BREKSE, Ch. J. ; Barr v. Sim, 4 Whart. 150, 171, and Bradley v. Bradley, 4 Id. 173,
GIBSON. Ch. J.; Smith v. Knowlton, 11 N. H. 191, 196, PARKER, Ch. J. ; Tilly v.
Tilly, 2 Bland (Md.) 436, 444, BLAND, Chan. The same principle is also recog-
nized, though not decisively, in Whiteside's Appeal, 23 Penn. St. 114, 117,
BLACK, Ch. J., and Stouvenel v. Stephens, 2 Daly, 319, DALY, Ch. J. ; and Gille-
land v. Martin, 8 McLean, 490, LEAVITT, J. In the earliest English cases it
seems to have been a question of the weight of testimony ; and, in 1560, it was
held that, on evidence of seven years' absence, without being heard of, and on proof of
belief in the family of death, death might be presumed. Thome v. Rolff, Dyer, 185 a,
a. c. more fully, Bendloe, 86. In 1624, the question arose as to who had the burden
of proof, as to whether absentees, shown once to have been in life, were still alive,
and it was held that the burden was on the plaintiff asserting their death, for it
having been shown that they were once in life, they should be presumed living till
the contrary was shown. Throgmorton v. Walton, 2 Rol. R. 461. Or, in the words
of Lord ELLENBOROUGH, " where the issue is upon the life or death of a person once
shown to be living, the proof of the fact lies on the party who asserts the death."
Wilson v. Hodges, 2 East, 312. See also 10 Viner's Ab. 298, Estate R. a. 4. After
the decision in Throgmorton v. Walton, the statute 19 Car. II, as to life estates was
passed, see paragraph 6, above, directing judges to instruct the jury that seven years'
absence, <fcc., raised a legal presumption of death. The reasons supporting the Amer-
ican and earlier English rule are : 1. That the old common-law presumption of con-
tinuance of life lasts until intercepted by the statutory or judicial seven years' limit,
or by evidence pointing to death at a particular time. 2. Death is presumed at the
end of seven years, not for the purpose of fixing on the true date, but because the
true date is inscrutable. The presumptions of continuance of life, and of death after
seven years, are presumptions founded on ignorance, and are not to be tested by the
question whether the artificially designated day is probably the true one. Like
other presumptions founded on ignorance, the object is merely certainty, because
truth cannot be ascertained. 3. Because the true date is unascertainable, it becomes
necessary to fix a day on which rights shall be deemed to devolve, as if actual death
on that day were known. 4. Without this rule, where proof of the actual date can-
not be made, the property must either remain undistributed, or be distributed among
the contestants, not according to any settled principle, but according to the accident
of possession, or as one or the other claimant happens to be the moving party in court.
Apart from these considerations of theory and policy, the question resolves itself
into this, viz., is the legal presumption, that a person once shown to be living con-
tinues to exist until the contrary is indicated, sufficient to stand as a prima facie case
in favor of one who assumes the affirmative ? In some other cases, the presumption
of the continuance of a fact shown once to have existed is prima facie proof in favor
of him who alleges the fact, as, for instance, in case of indebtedness, partnership,
insanity, <fcc. It may be observed that the law constantly acts on this presumption
of life, in service of process on absentees by advertisement.
* Whiteside's Appeal, 23 Penn. St. 114, 117. Compare Chap. IV, p. 57, n. 15.
' HEJRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 79
who claims that one survived the other, to give some evidence
rendering survival probable. The law neither makes nor permits
a presumption that one survived the other from the mere fact of
age or sex ; but if there is evidence that the prolongation of life
depended on struggle or endurance, then the relative strength
may be relevant, and in such case, as well as where there is even
slight evidence that one was seen alive after the other may be
presumed to have been dead, the question may be one for the
jury- 1
II. MAKBIAGE.
14. Burden of proof, and presumptions^ Marriage is not
presumable from marriageable age and lapse of time, 2 and proof
that a woman was a wife during a given period does not raise a
presumption of marriage at any particular earlier date ; 3 but, on
the other hand, the court will not, in the absence of evidence,
presume that one never married. The burden of proof is on him
who asserts either marriage or the contrary. 4 For the purposes of
actions considered in this chapter, it may be presumed that every
competent couple who live together ostensibly in the way of hus-
band and wife, are in reality such. 5 This presumption, for which
considerations of public order and decency are a sufficient support,
is aided by the presumption of innocence in favor of a party to
the marriage claiming under it, and is greatly strengthened when
the only question depending is the legitimacy of offspring. The
presumptions in favor of marriage increase in strength with the
prolongation of the matrimonial cohabitation. 6
15. Direct evidence of Marriage.'] Marriage may be proved
either by evidence of the contract which constitutes it (some-
times called evidence of actual marriage), or by evidence of the
status, or matrimonial condition in life, of which that contract is
the foundation (sometimes called de facto or presumptive mar-
riage). There is, however, but one kind of marriage, and the
difference is in the evidence by which the relation is proved. To
prove the contract, it is sufficient to prove an unconditional
agreement of marriage in the present, as distinguished from an
executory agreement to marry, if intended by the parties to con-
stitute them husband and wife, 7 though without solemnization, 8
1 Moehring T. Mitchell, 1 Barb. Ch. 264; Newell v. Nichols, 12 Hun, 604, and
cases cited; 13 Moak's Eng. R. 679, n.; Ommaney v. Stilwell, 23 Beav. 828 ; Robin-
son v. Gallier, 2 Woods, 178 ; Kansas, <fec. Railw. Co. v. Miller, 2 CoL T. 442, 464,
* Erskino v. Davis, 25 111. 251, 256.
8 Id. i
4 Doe T. Deakin, 3 Carr. <fe P. 402.
4 1 Bish. on Mar. Vfc D. g 434, 443.
4 1 Bish. on Mar. <fe D. 468, and cases cited.
7 Hill v. Burger, 3 Bradf. 432 ; Steuart v. Robertson, L. R. 2 Sc. App. 494, s. a
13 Moak's Eng. 165; McClurg v. Terry, 21 N. J. Eq. (6 0. E. Green), 225.
8 Clayton v. Wardell, 4 N. Y. 231 ; Cheney v. Arnold, 15 N. Y. 351, and cases
cited.
80 ACTIONS BY AND AGAINST
or -witnesses; 1 and proof of cohabitation is not necessary, 2 at
least if there be proof of solemnization. 3 But proof of a contract
perverba defuluro is not enough, though followed by cohabitation. 4
The contract or its solemnization before a clergyman or magis-
trate may be proved by the testimony of an eye witness, and for
this purpose a party is competent ; * and parol testimony is not
excluded by the fact that the statute provides for a record. 6 It
is enough that the witness be able to testify that the marriage
was celebrated according to the usual form, and he need not be
able to state the words used. 7 From the fact of solemnization
assent is presumed, 8 even though it was not expressed. 9 Where
solemnization was necessary by the law under which the marriage
was contracted, if it is proved, and matrimonial cohabitation un-
der it, the law presumes that all the necessary formalities were
had, unless the contrary is shown ; 10 and even then a subsequent
valid marriage may be presumed from continued matrimonial
cohabitation under color of the informal solemnization. 11
16. Certificate or Registry.'] Marriage may equally be proved
by a marriage certificate, if made evidence by statute, 12 or if so con-
nected with the parties as to be competent as part of the res gestce,
or as their declaration, or if by lapse of time and family tradition
it is competent as hearsay. 13 It may also be proved by an official
registry kept pursuant to statute, 14 or by the registry kept by the
officiating clergyman, 15 or the proper officer of a church or relig-
ious society, 16 pursuant to his duty, though without requirement
of statute. 1 ^ The registry is evidence both of the fact of mar-
riage and the date of solemnization. 18
1 Van Tuyl v. Van Tuyl, 8 Abb. Pr. N. S. 6, s. c. 57 Barb. 235.
* Jackson v. Winne, 7 Wend. 47 ; Caujolle v. Ferrie, 26 Barb. 177.
8 Jaques v. Pub. Administrator, 1 Bradf. 479.
4 Cheney v. Arnold, 15 N. Y. 345 ; Holmes v. Holmes, 1 Abb. U. S. C. Ct. 639 ;
Duncan v. Duncan, 10 Ohio St. 181. Contra, 1 Bish. on Mar. & D. 251-256.
5 Bissell v. Bissell, 7 Abb. Pr. N. S. 16, 8. c. 55 Barb. 325.
6 Commonwealth v. Norcross, 9 Mass. 492.
7 Fleming v. People, 27 N. Y. 329.
8 Id.
9 Harrod v. Harrod, 1 Kay <fe J. 4, 17. Contra, Dennison v. Dennison, 35 Md.
861.
10 Smith v. Huson, 1 Phill. 287, 294; 1 Bish. Mar. & D. 450, 451. It is the
better opinion that, even where the law requires solemnization, it is enough to show
solemnization before an officer de facto, that is, a person assuming to act by authority
in the solemnization. 1 Bish. on Mar. & D. 496.
11 Johnson v. Johnson, 1 Coldw. (Tenn.) 626, 634 ; Harrod v. Harrod, 1 Kay A J.
4, 17; Rex v. Brampton, 10 East, 288 ; Raynham v. Canton, 3 Pick. 293.
12 Otherwise of a certificate given many years after the fact, Gaines v. Relf,
12 How. U. S. 472, 555.
13 See paragraph 34, below.
14 See paragraph 43, below, and Jackson v. Boneham, 15 Johns. 266.
16 Maxwell v. Chapman, 8 Barb. 679, 682.
16 Jackson v. King, 5 Cow. 237.
11 Maxwell v. Chapman (above) ; Rose. N. P. 232.
18 Doe v. Barnes, 1 Moo. & Rob. 886.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 81
17. Indirect evidence of Marriage.] Evidence of cohabitation
, nf | rc pute that is of status or matrimonial condition is only
"'.'direct or presumptive evidence of a contract of marriage. This
primary not secondary evidence, 1 but its efficacy depends en :
tirt'ly on its justifying an inference that a contract of marriage
ins once maae ; 2 still it is not essential that such evidence point
to any particular time of contract, unless time is material under
t) e isuc. One who alleges and fails to prove a formal contract
of marriage is not thereby necessarily precluded from adducing
;n<lircct evidence, 3 although its value may be fatally impaired by
the false allegation of a formal marriage. 4 Indirect evidence may
\* (sufficient to establish a marriage, even though it may have the
effect to invalidate a subsequent marriage. 8
18. Cohabitation and JReputeJ] In the absence of direct
proof, marriage cannot be proved by cohabitation alone, however
f, nt; continued ; 6 there must be something to show that the co-
hlihation was matrimonial, not meretricious. The fact that the
-lilies were reputed among friends and acquaintances to be man
::.<! wife will suffice, with evidence of cohabitation, if the reputa-
:;..n be a general or at least a consistent reputation. A divided
rvmite is of no avail. 7 A mere local repute, if residence is brief
i::d frequently changed, is of little account alone, for an in-
% uded meretricious connection might be concealed by a regard
:'.ir appearances. Hence there should be some degree of public
rvvo^nition of the relation of Imsband and wife among acquaint-
ances and friends. 8 The mere fact that the man, under particular
cjvumstances, mav have attempted to give to his mistress a dif-
f. rvnt character from the meretricious one which she, in fact,.
r>uined toward him, is not sufficient. 9
In proving marriage by general repute, a witness may testify
tiat the reputation at the place of residence was that the persons
uestion were man and wife ; but he may be cross-examined as
sources of his information, and if it appear on cross-exam.-
in ques
... the
1 1 Bish. Mar.. & D. 483.
1 Hrcadalbane Case, Campbell v. Campbell, L. R. 1 Sc. App. in H. of L. 182*
1 Tnmmalty v. Tummalty, 3 Bradf. 369.
1 Tin* question of weight rather than competency seems to have been passed on in
~.- '-crvo v. Redgrave, 38 Md. 98. Compare Blackburn v. Crawfords, 3 Wall. 194.
';. -tonnes in testimony, due to family pride, fcc., explainable. Gaines v. New
-: v ., C WulL 705. Testiniony to a marriage between dissolute or unscrupulous
r.. r. to ho cautiously weighed. Steuart v. Robertson, L. R. 2 Sc. App. 494, 620,
* . 13 Moak's Eng. R. 165, 191.
1 lir.tw.-r v. Bowers, 1 Abb. Ct. App. Doc. 214, s. o. as Bowers v. Brewer, 9 N. T.
Ifg. ol.. I'M}, *, p. O'Gara v. Eisenlohr, 88 N. Y. 296.
Commonwealth Y, Stump, 63 Penn. St. 132.
'I'uauinjjhama v. Cunninghams. 2 Dow, 482, 511; Commonwealth v. Stump
k-o'j. Conlr.t, Lyle v. Ellwood, L. R. 19 Eq. 0. 98, s. o. 11 Moak's Eng. 702.
' J.iilt v. Burger, 3 Bradf. 432, 437.
:< .- v Clark, 8 Paige, 674, 682. The degree of proof of cohabitation and
^.4. nast bo increased when one of th parties is still living. Hill v. Burger, 8
//*.:. 4-2,437.
6
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 81
17. Indirect evidence of Marriage J\ Evidence of cohabitation
and repute that is of status or matrimonial condition is only
indirect or presumptive evidence of a contract of marriage. This
is primary not secondary evidence, 1 but its efficacy depends en-
tirely on its justifying an inference that a contract of marriage
was once made ; 2 still it is not essential that such evidence point
to any particular time of contract, unless time is material under
the issue. One -who alleges and fails to prove a formal contract
of marriage is not thereby necessarily precluded from adducing
indirect evidence, 3 although its value may be fatally impaired \>*
the false allegation of a formal marriage. 4 Indirect evidence mr 1
be sufficient to establish a marriage, even though it may have t*
effect to invalidate a subsequent marriage. 5 3
ay be ex t
18. Cohabitation and Repute.'] In the absence of dir^ ence o f
proof, marriage cannot be proved by cohabitation alone, howe iera i re p u tj
long continued ; 6 there must be something to show that th^ no ^ com p G
habitation was matrimonial, not meretricious. The fact tlu^ reasonably
parties were reputed among friends and acquaintances to be Kcterize it
and wife will suffice, with evidence of cohabitation, if the repu
tion be a general or at least a consistent reputation. A diviu^u
repute is of no avail. 7 A mere local repute, if residence is brief
and frequently changed, is of little account alone, for an in
tended meretricious connection might be concealed by a regard
for appearances. Hence there should be some degree of public
recognition of the, relation of husband and wife among acquaint-
ances and friends. 8 The mere fact that the man, under particular
circumstances, may have attempted to give to his mistress a dif-
ferent character irom the meretricious one which she, in fact,
sustained toward him, is not sufficient. 9
In proving marriage by general repute, a witness may testify
that the reputation at the place of residence was that the porsons
in question were man and wife ; but he may be cross-examined as
to the sources of his information, and if it appear on cross-exam-
1 1 Bish. Mar. & D. 483.
2 Breadalbane Case, Campbell v. Campbell, L. R. 1 Sc. App. in n. of L. 182.
3 Tummalty v. Tummalty, 3 Brarlf. 369.
4 The question of weight r.itber than competency seems to have been passed on in
Redgrave v. Redgrave, 38 Md. 98. Compare Blackburn v. Crawford*. 3 Wall. 194.
Inconsistencies in testimony, due to family pride, <fcc., explainable. Gaines v. New
Orleans, 6 Wall. 705. Testimony to a marriage between dissolute or unscrupulous
persons to bo cautiously weighed. Steuart v. Robertson, L. R. 2 Sc. App. 494, 520,
B. c. 13 Moak's Eng. R. 165, 191.
8 Brower v. Bowers, 1 Abb. Ct. App. Dec. 214, s. c. as Bowers v. Brower, 9 N. T.
Leg. Obs. 196, a P. O'Gara v. Eisenlohr, 38 N. Y. 296.
6 Commonwealth v. Stump, 53 Penn. St. 132.
T Cunninghams T. Cunninghams, 2 Dow, 482, 511 ; Commonwealth T. Stump
(above). Contra, Lyle v. Ellwood, L. R, 19 Eq. C. 98, s. o. 11 Moak's Eng. 702.
8 Hill v. Burger, 8 Bradf. 432, 437.
8 Rose v Clark, 8 Paige, 574, 582. The degree of proof of cohabitation and
repute must be increased when one of tha parties is still living. Ilill v. Burger, 3
Bradf. 432.437.
82 ACTIONS BY AND AGAINST
ination that he is speaking from information given him by a par-
ticular person, either of the fact or of the general reputation, the
evidence is shown to be incompetent, unless the source of infor-
mation was a member of the family of either spouse, in which
case the rule as to declarations may apply. 1
19. Cohabitation and Declarations, .] Evidence of confessions
or declarations by one or both parties that they were married, is
competent against them, and if made during cohabitation, so as to
haracterize it, is competent for or against third persons ; 2 and
) are the acts and conduct of the parties toward each other. 8
oncealment which prevented any public repute from arising,
ough a very strong circumstance against the presumption of
rriage, 4 is not necessarily fatal to it, but may be explained; 5
I if explained, dispenses in so far with evidence of repute,
nissions and declarations made, and a general repute origi-
<g, after the cohabitation had ceased, are not competent ex-
is against the declarant. They must be reasonably contem-
aneous with the alleged status, so as to characterize it, as facts
the nature of part of the res gestce.*
20. Marriage after Meretricious Intercourse^ If the cohab-
itation is shown to have commenced as a meretricious one, the
mere continuance of cohabitation, even with matrimonial repute,
can never amount to evidence of marriage ; 7 but the presumption
in favor of marriage is so favored, 8 that the courts lay hold of
any circumstances significant of actual change from an illicit
to a lawful relation, even without any evidence pointing to
the actual time and mode of the change. Marriage may be pre-
sumed, where cohabitation under circumstances that would have
been matrimonial but for the impediment of an existing marriage
of one of the parties, is continued after that impediment is re-
moved, and known to the parties to be so removed. 9 While the
mere removal of the disability is not enough to purge the mere-
tricious character, even when coupled with evidence of a prior
promise to marry after its removal, 10 evidence that the parties rec-
ognized the new relation, and held themselves out as man and wife,
and professed to be bound by marital ties, and thus exhibited the
1 Shedden v. Patrick, 30 L. J. P. M. & T>. 217, 223 (1860-1861).
9 See Hayes v. People, 25 N. Y. 396, per ALLEN, J. ; 1 Bish. Mar. <fe D. 491
Compare Westfield v. Warren, 3 Halst. 249.
3 See Christy v. Clarke, 45 Barb. 529.
4 Cunningham v. Burdell, 4 Bradf. 343.
6 Gaines v. New Orleans, 6 Wall. 707.
6 Matter of Taylor, 9 Paige, 611, 616.
1 This seems to be the result of the present state of the authorities ; but see, for a
rule more favorable to the inference of marriage, 1 Bish. Mar. <fe D. 506-509.
8 And especially where the question is on the legitimacy of issue ; see Caujolle v.
Ferric, 23 N. Y. 90, affi'g 26 Barb. 177, 4 Bradf. 28.
9 O'Gara v. Eisenlohr, 38 N. Y. 296 ; Rose v. Clark, 8 Paige, 574, 581, and cases
cited.
10 Foster v. Hawley, 8 Hun, 68.
82 ACTIONS BY AND AGAINST
ination that he is speaking from information given him by a pa.
ticular person, either of the fact or of the general reputation,
evidence is shown to bo incompetent, unless the source of ir
mation was a member of the family of either spouse, in w!
case the -rule as to declarations may apply. 1
19. Cohabitation and Declarations.'] Evidence of confession
or declarations by one or both parties that they were married, 1.
competent against them, and if made during cohabitation,, so ast<
characterize it, is competent for or'against third persons; 2 an-:
so are the acts and conduct of the parties toward each other;
Concealment which prevented any public repute from arising
though a very strong circumstance against the presumption o!
marriage, 4 is not necessarily fatal to it, but may be explained; 1
and if explained, dispenses in so far with evidence of repute
Admissions and declarations made, and a general repute orig!
nating, after the cohabitation had ceased, are not competent ei
cept as against the declarant. They must be reasonably contcc
poraneous with the alleged status, so as to characterize it, as fact,
in the nature of part of the res gestce*
20. Marriage after Meretricious Intercourse.'] If the cohal.
itation is shown to have commenced as a meretricious one, tt 1
mere continuance of cohabitation, even with matrimonial reputt
can never amount to evidence of marriage ; 7 but the presumptio:
in favor of marriage is so favored, 8 that the courts lay hold t:'
any circumstances significant of actual change from an illici:
to a lawful relation, even without any evidence pointing:
the actual time and mode of the change. Marriage may be pr f
sumed, where cohabitation under circumstances that 'would hav
been matrimonial but for the impediment of an existing marria^
of one of the parties, is continued after that impediment is r f
moved, and known to the parties to be so removed. 9 "While tl.
mere removal of the disability is not enough to purge the merc'
tricious character, even when coupled with evidence of a pnV
promise to marry after its removal,* evidence that the parties re-'
ognized the new relation, and held themselves out as man and wif-
and professed to be bound by marital ties, and thus exhibited ti
1 Shodden v. Patrick, 30 L. J. P. M. & D. 217. 223 (1860-1861).
8 See Hayes v. People, 25 N. Y. 396, per ALLKN, J. ; 1 Bish. Mar. <fe D. 4/ 1 .
Compare Westfield v. Warren, 3 Halst. 249.
8 See Christy v. Clarke, 45 Barb. 529.
4 Cunningham v. Burdell, 4 Bradf. 343.
8 Gaines v. New Orleans, 6 Wall. 707.
Matter of Taylor, Paige, 611, 616.
7 This seems to bo the result of the present state of the authorities ; but see, (
rule more favorable to the inference of marriage, 1 Bish. Mar. <t D. 506-509,
8 And especially whore the question is on the legitimacy of issue ; see CaujoLc
Feme, 23 N. Y. 90, affi'g 26 Barb. 177, 4 Bradf. 28.
O'Gara v. Eisenlohr, 38 N. Y. 296; Hose v. Clark, 8 Paige, 674, 681, andc*
cited.
10 Foster v. Hawloy, 8 Hun, 68.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 83
continuation of their cohabitation upon a new and different foot-
ing, is sufficient. 1
21. Second Marriage during Absence.'] At common law, mar-
riage, however proved, may be disproved by evidence that one of
the parties was at the time a party to a prior valid marriage. 3
The burden of proving the prior marriage is on the one who
seeks by it to impeach the later; 8 but direct evidence of the
prior marriage is not essential; it may be proved by cohabita-
tion and repute. 4 The principle of the statute of bigamy of 1604, 5
which excepted from the offense cases of second marriage con-
tracted while the former husband or wife was beyond seas for
seven years, or was absent arid not known to be living for that
period, was early adopted by the common-law courts, by analogy,
as furnishing a presumption of death in such cases, for civil pur-
poses, and this rule has been generally followed in this country,
the time being shortened in some States by statute, as in New
York to five years, 6 where, also, a further provision has been,
adopted to the effect that such a second marriage shall not be
void, as formerly, if it appear that the party to both marriages
contracted the second after the lapse of that period, without hav-
ing meanwhile known that the absentee was living, 7 and in good
faith believing him dead. 8 Under that provision the court will not
adjudge it void in a collateral action involving only questions of
property ; 9 and after the death of one of the parties to the second
marriage, that marriage is good for the purpose of succession and
legitimacy ; 10 and even during the life of both, it may be sustained
for those purposes, by proof that the former husband or wife was
absent, and not heard of for seven years, and that, after the lapse
of that time, the second marriage occurred ; or that previous cohab-
itation and repute were continued under circumstances sufficient
to raise a clear presumption of marriage on grounds subsequent
in point of time to the legally presumable death of the former
husband or wife. 11 Upon proof that the absentee was reputed in
I Ilydo v. Hyde, 3 Bradf. 500, 518.
* Blossom v. Burritt, 37 N. Y. 434 ; Emerson v. Shaw, 1 L. <fc Eq. Reporter, C35
(N. II. Mar. 1876).
3 Patterson v. Gaines, 6 How. U. S. 550. But evidence of an admission by such
party that he was guilty of bigamy in the second marriage (Gaines v. Relf, 12 How.
U. S. 472, 534), or that his first wife was then living (I Bish. Mar. <fe D. 46o), is not
sufficient.
4 Brower v. Bowers, 1 Abb. Ct. App. Dec. 214, s. o. 9 N. Y. Leg. Obs. 196.
* 2 Ja. I, ch. 11 (3 Stat. at L., A.D. 1770, p. 9), 2.
8 2 R. S. C87, S 9.
7 2 11. S. 139, 6 ; Cropsey v. McKinney, 30 Barb. 47, 58.
8 Whether the presumption of innocence avails to require evidence to the con-
trary compare Valleau v. Vallcau, 6 Paige, 209; Spears v. Burton, 31 Miss. 555;
O'Gara v. Eisenlohr, 38 N. Y. 296; Fleming v. People, 27 N. Y. 334.
9 Cropsey v. McKinney (above) ; compare O'Gara v. Eisenlohr (above), and Spicer
v. Spicer, 16 Abb. Pr. N. S. 112, and note.
10 1 Bish. Mar. <t D. 114.
II Jackson v. Claw, 18 Johns. 346, 350.
84 ACTIONS BY AND AGAINST
the family, before the lapse of that period, to be dead, or other
presumptive evidence, the jury may find death to have occurred
before the second marriage. 1 But absence for less than seven
years, without other evidence raising the presumption of death,
will not suffice ; for the technical presumption of innocence does
not avail against facts raising a presumption of guilt on the one
hand, and negativing the existence of any motive for remarriage
on the other hand."
22. Rebutting evidence of marriage.'] Where the only evi-
dence of marriage is indirect, or where evidence of actual mar-
riage is conflicting, declarations and conduct of either or both
parties inconsistent with the matrimonial character, are competent,
within the limits above stated, unless the issue is upon legitimacy.
Thus declarations of either that they were not married, the fact that
the woman had sued, or been sued, in her maiden name, 3 that they
terminated cohabitation and separated, without further claim to
matrimonial relation, 4 or that each married other persons, 5 are suf-
ficient to go to the jury as negativing the presumption from mere
habit and repute. The effect even of such evidence of cohabi-
tation and repute as, standing alone, would establish marriage,
may be nullified by evidence that the parties afterward formally
solemnized a marriage under circumstances showing that their
motive was to legalize their connection, for this conclusively
proves that, in their judgment, it was previously illicit. 6 The
moral and social character of the parties themselves is relevant as
bearing on the question of the matrimonial or meretricious char-
acter of the connection, 7 though incompetent against evidence of
a ceremonial marriage. 8 But the opinion of a witness as to
whether their character rendered such a connection improbable,
is not competent. 9 Evidence of loose oral denials by the parties
are of little weight against otherwise clear and satisfactory evi-
dence of matrimonial cohabitation and repute ; 10 and mere declara>
tions that the declarant is unmarried, made without reference to
a reputed relation between the particular parties, are held incom-
' Cochrane v. Libby, 18 Me. (6 Shepl.) 39.
1 O'Gara v. Eisenlohr, 38 N. Y. 296. Contra, see 1 Bish. Mar. & D. 453, and
cases cited ; and see Kelly v. Drew, 12 Allen, 107, 109.
3 Scudder v. Gori, 18 Abb. Pr. 223, s. c. less fully, 3 Robt. 661.
4 Jackson v. Claw, 18 Johns. 346. An advertisement forbidding trust, appearing
in the newspaper at their domicile, immediately after separation, has been held com-
petent, the original manuscript being lost. Jewell v. Jewell, 1 How. U. 8. 219, 232 ;
but the better opinion is that there must be evidence connecting one of the parties
with it.
6 Niles v. Spragne, 13 Iowa, 202.
Shedden v. Patrick, L. R. 1 Sc. & D. App. 4TO.
T Hill v. Burger, 3 Bradf. 432. 449, a. p. Steuart v. Robertson, L. R. 2 Sc. App.
494, 620, s. c. 13 Moak's Eng. 165, 191.
8 Per BRADFORD, Surr. Hill v. Burger (abovet.
9 Such testimony was held to have no weight, in Gaines v. New Orleans, 6 WalL
706.
10 Tummalty v. Tummalty, 3 Bradf. 369.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 85
petent. 1 Denials of " marriage " are inconclusive, because they
may be meant of a ceremonial marriage, while the parties were
actually man and wife. 2
23. Foreign Law.~] The written law of another State, or of a
foreign country, may be proved in the manner stated at p. 22 of
this volume. The unwritten law may be proved by calling as a
witness one practically conversant with it, either as a lawyer in
that country, or as having had a course of legal duty to perform
there in respect to marriage, such as to make it probable that he
has made himself acquainted with the law on that subject. One
who is not so qualified, and who has acquired his Knowledge
solely from books, is not competent. 8
III. ISSUE OR FAILURE OF ISSTTE.
24. Burden of proof J] In the absence of evidence neither
birth of children, nor the contrary, is presumed. But slight evi-
dence may suffice. 4 One claiming by collateral descent must
show who was last entitled, and then prove his death without is-
sue ; next prove all the different links in the chain of descent
which will show that he and the claimant descended from the
same common ancestor, together with the extinction of all those
lines of descent which could claim any preference to the claimant.
He must prove the marriages, births and deaths, and the identity
of persons necessary to fix title in himself, and the extinction of
others who would have, if in existence, a better title. 5 This is
done by proving the marriages, births and deaths necessary to
complete his title, and showing the identity of the several parties. 6
He must prove that all the intermediate heirs between himself
and the ancestor from whom he claims, are dead, without issue. 7
The non-existence of issue is a fact separate from death, in sup-
port of which some evidence must be given. 8
25. Presumptions as to Failure of Issue, .] In the absence of
evidence, the presumption is that a person dying intestate, left
heirs ; 9 and the mere fact that the death occurred under twenty-
1 Van Tuyl v. Van Tuyl, 8 Abb. Pr. N. S. 5, a. c. 57 Barb. 235.
9 Where there is ample evidence of long and uninterrupted cohabitation and re-
pute, evidence of the declaration of the man that they were not married, and his testi-
mony that they were never married, since they may be construed as referring to a cere-
monial marriage, are not enough to take the case from the jury. Richard v. Brehm,
73 Penn. St. 140, s. c. 13 Am. U. 733.
8 16 Moak's Eng. 591 n. and cases cited; Rose. N. P. 138, 139 ; 1 Bish. Mar. t
D. 40-J-430, 521-536.
4 Emerson v. White, 29 N. H. (9 Fost ) 491, 497, and cases cited.
4 Sprigg v. Moale, 28 Md. 497, 605 ; 3 Washb. R. P. 4th ed. 18 (38).
6 Emerson v. White (above).
7 Richards v. Richards, 15 East, 294 n.
8 Sprigg v. Moale (above).
9 Harvey v. Thornton, 14 111. 217.
86 ACTIONS BY AND AGAINST
one, 1 or that it is only presumed from the lapse of time, is not
enough to raise a presumption that he left no issue, 2 except after
great lapse of time, and only for the purpose of setting that branch
of the family out of the case ; 8 but slight evidence of death without
issue, may, after great lapse of time, De sufficient ; * and unsuccess-
ful inquiry for children, ii any, at places where, if such had existed,
information could be obtained, will suffice to sustain a verdict
in such case. 5
26. Escheat] Every citizen dying is presnmed to leave some
one entitled to claim as his heir, however remote, unless one or
other of the only two exceptions known to our law, alienage or
illegitimacy, should intervene. The title of the State, by reason
of defect of heirs, can be established by actual proof of the fact
of alienage or of illegitimacy, or in certain cases, by proof of
reputation of either of those facts, provided such proof be direct
and positive, founded upon inquiry, advertisements, personal
family knowledge, or actual declaration of the last person seized,
or of those from whom his title descended. Mere hearsay repu-
tation of the general fact of defect of relations and heirs is not
sufficient. 6
27. Possibility of Issue Extinctl\ The highest authorities in
medical jurisprudence sustain the proposition that a woman be-
yond the age of fifty-five has no possibility of issue. Extinction
of possibility may be presumed as a matter of fact at an earlier
period, varying with the evidence as to length of married life and
condition of health. 7
28. Registry of birth or baptism.'] The fact of birth may be
proved by an official registry of birth kept pursuant to statute,
or by a registry of baptism shown to have been kept in the man-
ner hereafter stated ; 8 but a mere registry of baptism is not, as
an official registry of birth may be, evidence of the date of birth,
though stated in it, 9 further than to show that it must have been
prior to the date recorded as that of baptism, that is to say, it
only proves that the child was in existence at the time of the
1 Clark v. Trinity Ch. 5 Watts <fe S. 266, 271.
2 Sprigg v. Moale (above).
3 Rowe v. Hasland, 1 W. Black. 404, MANSFIELD, Ch. J.
4 Such as proof that Ms family, if any, or his intimate acquaintances frr many
years, never heard him speak of wife, children, <tc. Jackson v. Etz, 5 Cow. 320 ; Doo
v. Griffin, 15 Eiist, 293; McComb v. Wright, 5 John?. Ch. 253. So of proof of cir-
cumstances showing t'int the absentee was a young man strongly likely to communi-
cate with liis family if living, and to inform them if he were ever married. In re
Webb's Estate, Ir. R. 5 Eq. 235.
8 Kicgv. Fowler, 11 Pick. 302.
* People v. Fulton Fire Ins. Co. 25 Wend. 205.
7 In re Widdow's Trusts. L. R. 11 Eq. 408; In re Millner's Estate, L. R. 14 Eq.
245, s. c. 8 Mnak's Eng. 719; and see 25 Weekly R. 901 ; 4 L. J. N. S. 380.
8 Paragraph 41 (below).
9 Clark v. Trinity Church. 5 Watts <fc S. (Penn.) 266, 269 ; Blackburn v. Crawfords,
3 Wall. 189 ; Morrissey v. Wiggins Ferry Co. 47 Mo. 521.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 87
ceremony, 1 unless the statement of the time of birth is shown
to have been made by direction of a member of the family since
deceased, so as to bring it within the rule admitting declarations
as to facts of pedigree."
29. Consorting as a family. ~] The fact that persons dwelt or
consorted together as members of one, family in the apparent re-
lation of parent and child, and assisted and depended on each
other as such, is competent, in connection with other substantial
evidence to show the existence of the relation. 3 The value of
such evidence depends on much the same principles as those
which admit cohabitation and repute to prove marriage.
30. Direct testimony to age.'] Where age is a fact of pedigree
within the rules below stated, it seems that the person whose age
is in question, if he be a competent witness, may as properly as
any other person, testify to it, under the conditions on which hear-
say as to pedigree is admissible ; but there seems to be no good
foundation for allowing him to state it except upon such sources.*
Inspection, however, is deemed a sufficient legal criterion to de-
cide the question of infancy, 5 and is sufficient to put a party who
may bo affected by it upon inquiry ; 6 but the mere opinion of a
witness respecting the age of a person, from his appearance, un-
accompanied by the facts on which that opinion is founded, is
incompetent. 7
31. Physician's testimony or account.'] The testimony of the
attending physician to the fact and the date 8 of birth is compe-
tent for the purpose of proving infancy ; and equally for prov-
ing existence or age for any other purpose. 9 If he does not
remember the date, the charge made by him in his accounts, or
any other original contemporaneous memorandum he made of the
fact, 10 is competent, if introduced by his testimony that it was
correctly made at the time. 11 If the physician is dead, his entry
in a register of the births he attended, which he was accustomed
to keep in the course of his vocation, though without requirement
1 Kennedy v. Doyle, 10 Allen (Mass.) 161 ; Whitcber v. McLaughlin, 115 Mass.
167.
s A statement of illegitimacy in the registry has been deemed competent, but ita
weight i-i questionable. Morris v. Davis, 3 Carr. & P. 215, 427; and see Caujolle y.
Ferric, 23 N. Y. 90.
8 See Kans:>3, <fcc. Rw. Co. y. Miller, 2 CoL T. 459 ; Baltimore, <fec. R. R. Co. v.
Gettlc, 3 W. Va. 376, 385.
4 Compare Dewitt v. Barly, 1 Y N. Y. 344 ; McCarty v. Doming, 4 Lans. 440 ; Hart
v. Stickney, 4 L. <fe Eq. Rep. 120; Banks v. Metcalfe, 1 Wheel. Cr. Cas. 381.
State v. Arnold, 13 Ired. L. (N. C ) 184.
Conroo v. Birdsall, 1 Johns. Gas. 127.
Morse v. State, 6 Conn. 9, 13.
Beatea v. Retallick, 1 1 Penn. 288.
As to exclusion for professional privilege, see Edington v. Mut. Life Ins. 67 N.
Y. 185, rev*g 5 Hun, 1; Blackburn v. Crawfords, 3 Wall. 192, and cases cited.
10 See Guy v. Mead, 22 N. Y. 462 ; Mai-cly v. Shults, 29 Id. 346.
11 Heath v. West, 26 N. 1L (6 Fost.) 191.
88 ACTIONS BY AND AGAINST
of statute, is evidence of the time of a birth entered therein, there
being some independent evidence of thefact of birth. 1
32. Legitimacy: Burden of Proof and Presumptions]
Legitimacy is a presumption of law in the absence of competent
evidence to the contrary, 2 and language in an instrument of evi-
dence designating a person by the word " son," " daughter,"
" child," or the like, means prima facie, legitimate offspring. 3
The burden of proof is on the party denying the legitimacy of
one shown to have been born from a wife, 4 and his evidence must
show illegitimacy beyond a reasonable doubt. This presumption
is additional to the presumptions indulged in favor of marriage,
and of innocence of the parents, and may prevail, notwithstand-
ing the cohabitation of the parents is shown to have been illicit
in its origin, and there is no definite proof as to when or how the
change from concubinage to matrimony took place. 5 A child
born during the mother's coverture, 6 (even so soon after marriage
that conception must have preceded marriage), 7 is presumed legit-
imate in the absence of competent evidence to the contrary, and
this is a strong legal presumption, and can only be rebutted by
proof that no sexual intercourse occurred 8 at any time, (whether
before or after marriage), 9 when the child could have been begot-
ten ; or what is equivalent, that the husband was physically in-
competent, or, that under sentence of a court of competent juris-
diction, they were living separate. 10 Sexual intercourse is pre-
1 Arms v. Middleton, 23 Barb. 571, s. p. Blackburn v. Crawfords, 3 Wall. 175. In
Higham v. Ridgeway (10 East, 109), such evidence was admitted not as an entry in
the ordinary course of duty, but as an entry against pecuniary interest, because the
charge was marked "paid." In Matter of Paige (62 Barb. 476), an entry in a book
not kept as a journal, but with each account by itself, was held incompetent without
proof of its truth. Compare generally 1 Tayl. Ev. 597-607 ; 1 Smith's L. C. 500,
<tc.
8 Banbury Peerage Case, 1 Sim. <fc St. 153.
8 Caujolle v. Ferric, 23 N. Y. 105, 107.
4 Phillips v. Allen, 2 Allen, 454; Caujolle v. Ferrie, 26 Barb. (N. Y.) 177, s. c. 23
N. Y. 90. The English authorities (which hold to stronger rules of cogency than
some American authorities on a question arising in a civil case involving crime or
turpitude) require evidence "strong, distinct, satisfactory and conclusive." Har-
grave v. llargrave, 9 Beav. 555; and see 23 N. Y. 109.
6 Thus the marriage of the parents may be presumed, from the fact that the father
desired to marry the mother; and that while he might have maintained an illicit re-
lation with her without opposition from his relatives, he abandoned his home and
parents in order to live with her. Caujolle v. Ferrie, 23 N. Y. 90, 108, affi'g 26 Barb.
177, 4 Bradf. 28.
6 Cross v. Cross, 3 Paigo, 139, Banbury Peerage Case (above).
7 Page v. Dennison, 5 Am. L. Reg O. S. 469, s. o 1 Grant, 377; Co. Litt. 244 a.
But see Phillips v. Allen, 2 ^llen, 455. But it the birth was before marriage, though
the intercourse was under promise of marriage, the child is illegitimate. Cheney
v. Arnold, 15 N. Y. 846.
8 Proof negativing it beyond a reasonable doubt, for instance showing continued
actual separation, with only interviews at which such intercourse was not had, may
be enough. Cross v. Cross (above) ; Van Aernatu v. Van Ac-mam, 1 Barb. Ch. 378.
' Page v. Dennison (above).
10 1 Best's Ev. 464 ; Banbury Peerage case (above).
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 89
sumed from access. 1 Where access giving opportunity for sexual
intercourse is shown, such that the husband might in the usual
course of nature 2 be the father, no evidence that he is not, can be
received, except such as tends to negative his having had such in-
tercourse. 3 Such evidence is competent, 4 but without it evi-
dence of the wife's simultaneous adulterous intercourse with
another man, is incompetent, for if there be a possibility of
legitimacy the law will not weigh against it the doubt. 5
33. Parent^ Testimony and Declarations as to Legitimacy.'}
Neither husband nor wife is competent, either viva voce or on
deposition, to prove or disprove non-access or non-intercourse,
directly or indirectly, 6 even where pregnancy preceded marriage 7
and the fact that the other parent is dead does not alter the case. 8
Modern statutes abrogating common-law disqualifications do not
affect this incompetency unless they expressly indicate it. 9 But
either is a competent witness, 10 and the declarations of either
are competent after his or her death, to prove legitimacy 11 or
illegitimacy 12 in any mode not involving the question of access,
such as testifying to the date of birth, 13 or on the question of mar-
riage ; u and the wife's confession of her own adultery is compe-
tent evidence of the illegitimacy of her offspring, when the fact of
non-access lias been shown by independent evidence. 15 Evidence
of the treatment of the child by the husband and wife, its recog-
nition or non-recognition by them and by the family, the mention
or the omission of the husband to provide for it in a will provid-
ing for other children, &c., is competent, within the limits of the
rule as to hearsay on facts of pedigree. 16 Evidence that one since
deceased admitted his own illegitimacy, is competent against those
claiming under or through him. 17
1 Head v. Head, 1 Sim. <fc St. 150.
2 For presumption as to period of gastation, see 1 Best Ev. 455, and standard
treatises on Med. Jurisp.
3 Hanbury Peerage Case (above).
4 Head v. Head (above).
5 Bury v. Phillpot, 2 Mylne & K. 349; Cross v. Cross, 3 Paiga, 139. Compare,
in favor of admission of strong: circumstantial evidence that a child begottea during
wedlock was the offspring of adultery, 1 liish. Marr. & D. ^ 448, 449.
1 Tayl. Ev. 837, 868, and cases cited.
7 Pajje v. Dennison (above), 472.
8 1 Tayl. Ev. g 837, 868. '
Tioga Co. v. South Creek, 75 Penn. St. 436.
10 1 Tayl. 838, 868.
11 BnlCN. P. '294, 295; Rose. N. P. 46.
12 Blackburn v. Crawfords, 3 Wall. 194. Compare Cope v. Cope, 1 Moo. <fe Rob.
272; Viall v. Smith, 6 R. I. 422; Gaines v. Relf, 12 How. U. S. 534
13 Goodright v. Moss, Cowp. 591. But not sufficient to prove illegitimacy without
ether proof of non-access. Patterson v. Gaines, 6 How. U. S. 550, 589.
14 Caujolle v. Ferrie, 23 N. Y. 104.
15 Cross v. Cross, 3 Paige, 141 ; 1 Tayl. Ev. 838, 868.
" 1 Tayl Ev. 580, 684 ; and see Stegall v. Stegnll, 2 Brock. Marsh. 256. Except,
perhaps, where the child is proved to have been born in wedlock, and there is no evi-
dence of non-access. Page v. Dennison, 5 Am. L. lle^. O. S. 469, s. c. 1 Grant, 377.
11 But perhaps not against others. 1 Tayl. Ev. 571, 573.
90 ACTIONS LY AND AGAINST
IY. HEARSAY AS TO FACTS OF FAMILY HISTORY (PEDIGREE).
34. Grounds of receiving it: and its Weight.'] For the pres-
ent purpose I use the term " Facts of Family History," instead
of " Pedigree," as conveniently characteristic of the American
rule, which admits certain hearsay evidence of such facts, for any
legitimate purpose within the scope of this chapter, whether di-
rectly involved in the issue or not, 1 and does not restrict its use,
as it seems the English rule does, to cases where it is offered for a
genealogical purpose, that is to make out one link in a chain of pedi-
gree. 2 In other respects the American and English rules stand
upon the same principle, viz., that upon such questions the law will
receive the natural effusions of a party who Knew the truth, and
who spoke upon an occasion where his mind stood in an even posi-
tion without any temptation to exceed or fall short of the truth. 3
The value of such evidence is enhanced in proportion as it relates
to long past occurrences, 4 other evidence of which is impaired or lost
by lapse of time, 5 in proportion, too, as it consists of contempora-
neous declarations or records formally 6 or solemnly 7 made by per-
sons naturally cognizant of the facts, and who would have no motive
to misrepresent ; and in proportion as those from whom it pro-
ceeded bore such a relation as created an interest to ascertain and
perpetuate the truth ; 8 and, if consisting of an oral declaration, by
the naturalness of the circumstances which led to its being made ; 9
and, if consisting of records, in proportion as they have been pub-
lic, open, and -well known in the family, thus acquiring such con-
firmation as the tacit consent of those interested can give. 10 With-
out some degree of these characteristics it is not admissible. At
best it is weak evidence, 11 its value often depending upon the ab-
sence of other sources, and although the weight of such evidence
is for the jury, it is proper for the court to instruct them whether,
upon a view of the whole, it is sufficient to sustain a finding. 13
35. W ft at facts are within the rule.'] The facts of family
history which may be proved by hearsay from proper sources, are
I North Brookfield v. Warren, 10 Gray, 174, and other cases cited in next para-
graph ; Primm v. Stewart, 7 Tex. 178. The contrary is held in settlement cases,
bc., where marriage, <fcc., is the substantive fact. Westfield v. Warren, 8 llalst. 249.
8 1 Tayl. Ev. 675, 677, without sufficient reason. 1 Phil. Ev. C. & II. N. 252,
uu 91.
3 Whitelocke v. Baker, 14 Vea. 514.
4 In proving recent events, where the fact is directly in issue, stricter proof may
be reasonably required. Rose. N. P. 49.
' Stouvenel v. Stephens, 26 How. Pr. 244, nnd cases cited.
6 Thus a formal "family record" in a Bible requires less authentication than a
similar memorandum casually made elsewhere.
1 Thus dying declarations of legitimacy are entitled to special weight. Caujolle
V. Ferric, 23 N. Y. 90, 94.
8 Per Ld. ELDON, Walker v. Wingfield, 18 Yes. 611.
ld.
10 North Brookfield v. "Warren, 16 Gray, 174, per BIGELOW, C. J.
II More wood v. Wood, 14 East, 330.
" Sprigg v. Moale, 28 Md. 497, 509.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 91
the following : birth ; * living or survival ; 2 marriage ; s issue or
want of issue ; 4 death ; 5 the times, either definite 6 or relative, 7 of
these facts ; relative age or seniority ; 8 name ; 9 relationship gen-
erally ; 10 its degree ; u in some sense legitimacy and the contrary ; u
and the place of residence, when proved for purpose of identifica-
tion. 13 At this limit the rule stops. It does not admit hearsay
as to a specific fact, however closely connected with these facts
of family history, if one which, in its nature is susceptible of
being proved by witnesses speaking from their own knowledge,
even although all such witnesses are dead. 14 The virtue of the
evidence depends on the fact being a salient fact in a family his-
tory which concerns the declarant. A declaration as to a fact of
this character is not excluded because the fact is only incidentally
in issue ; and on the other hand, a declaration as to an ordinary
fact is not made competent by its enabling to fix the date or ex-
istence of a fact of family history. 15
36. By Whose declarations such facts may be proved.]
To render the evidence competent (unless it is admissible as mat-
ter of general repute under the rule stated below), it must appear
that the declarant, or source of the witness's information, was a
deceased 16 member of the family, that is to say legally n related by
blood or marriage, 18 to the family whose history the fact concerns.
Therefore the witness must name the source of information, 19 and
I North Brookfield v. Warren, 16 Gray, 174; Am. Life Ins. Co. v. Rosenagle, 77
Penn. St. 507, 516.
9 Johnson v. Pembroke, 1 1 East, 504.
8 Caujolle v. Ferrie, 23 N. Y. 90, and see paragraph 18 (above).
4 People v. Fulton Fire Ins. Co. 25 Wend. 208 ; and see paragraph 25 and notes.
B Masons v. Fuller, 45 Vt. 29; 1 Tayl. Ev. 570, 572.
6 Roe v. Rawlins, 7 East, 290; Webb v. Richardson, 42 Vt. 465.
. 7 Bridger v. Huett, 2 Fost. & F. 35.
8 Johnson v. Pembroke. 11 East, 504.
9 Per Ld. BROUGHAM, Monkton v. Att. Gen. 2 Russ. & M. 158.
10 Doe v. Randall, 2 Moore & P. 20, 20 ; Vowles v. Young. 13 Ves. 147.
II Webb v. Richardson, 42 Vt. 465 ; and see Chapman v. Ch ipman, 2 Conn. 350.
12 See paragraph 33.
13 See Cuddy v. Brown, 78 111. 415 ; Sheilds v. Boucher, 1 Do Gex <fe Sra. 40, s. p.
Doe v. Randall, 2 Moore <fe P. 20; see 1 Tayl. Ev. 578, 582.
14 Thus hearsay as "to legal status, as slave or free, is not competent. Mima Queen
v. Hepburn, 7 Cranch, 290, 295. Nor is hearsay as to place of birth or death. Town
of Union v. Town of Plainneld, 39 Conn. 5(>3 ; Monkton v. Att. Gen. 2 Puss. & M.
156, L-.\. BROUGHAM; McCarty v. Doming, 4 Lans. 410. But see 1 Whart. Ev. 208.
Aa to whether siatement of a legal conclusion, such as that one was " heir," or " could
get nothing by law," and the like, is competent, the authorities are in conflict. I:i tho
affirmative, see Doe v. Randall, 2 Moore & P. 20; Doe v. Davies, 10 Q 15. 314. In
the negative, Chapman v. Chapman, 2 Conn. 350. Compare Viall v. bmith, 6
R. I. 417.
15 1 Tayl. Ev. 576.
16 E;nerson v. White, 29 N. H. (9 Fost.) 491, and cases cited.
" 1 Tayl. Ev. 569.
18 Doe v. Randall, 2 Moore & P. 20. Where tho declarant's tie to the family was
by marriage, the fact that it had been dissolved by death before the declaration, does
not render tho declaration incompetent. 1 Tayl. Ev. 571.
19 Entire certainty not necessary. Scott v. Ratcliff, 5 Pet. 81.
92 ACTIONS BY AND AGAINST
show affirmatively that it was a relative or connection, 1 (though
the degree need not be stated, 2 ) who is since deceased. 8 It is not
enough that the adversary might bring out the contrary by cross-
examination. 4
It is enough to show that the declarant was thus connected with
the family, without showing him to be a connection of the person
whose connection with the family is to be established ; 5 ana, con-
versely, relationship of the declarant with the particular person
is sufficient to admit his declarations of the relationship of that
person to the family. 6 But his relationship to one or the other
must be established by other evidence than the declarations them-
selves; 7 and this is a preliminary question for the judge, 8 and
slight evidence that the declarant was connected, even without
showing precise degree of relationship, seems to be enough. 9 But
if the relationship is remote, the question will be whether the
connection was such as to bring the declarant within the natural
probability of knowledge and correctness. 10
It is not, however, necessary that the declarant should have
had personal knowledge, 11 nor need the declarations have been
contemporaneous with the event, 12 nor indicate the source of the
declarant's information. 13
37. Family records.'] Records of such facts of family history,
made or preserved as such by a member of the family, are com-
1 Waldron v. Tattle, 4 N. H. 371, 378 ; Emerson v. White, 29 Id. 491 ; s. p. Chap-
man v. Chapman, 2 Conn. 347.
2 Vowles v. Young, 13 Ves. 146, Ld. ERSKIXE.
3 Greenleaf v. Dubuque, <fec. R. R. Co. 30 Iowa, 301 ; Butler v. Mountgnrret, 7 H.
of L. Cas. 633; Emerson v. White (above); Waldron v. Tuttle (above). In the two
last mentioned cases the opinion is also expressed, that it must affirmatively appear
that the declarants had no interest to misrepresent; but this is not sound if intended
to require affirmative evidence of want of interest. It is enough, in the first instance,
to show a relationship that is entirely free from the indication of any such interest.
4 Emerson v. White (above). Contra, Webb v. Richardson, 42 Vt. 466.
6 Monkton v. Attorney General, 2 Russ. <fe M. 156, Ld. BROUGHAM.
Id.
7 Thus, to prove a marriage, for the purpose of lesitimating the issue as heirs of
the alleged husband, evidence of a declaration of a relative of the woman, is not com-
petent in the first instance, because the declarant must first be shown to be connected
with the family of the man. Blackburn v. Crawfords, 3 Wall. 187, and cases cited.
But compare Jewell v Jewell, 1 How. U. S. 219, 231, where declarations of the hus-
band of a daughter, that his wife's mother was not married, were held competent.
See also Alexander v. Chamberlain, 1 Supm. ft. (T. <fe C.) 600, and cases citei
8 Even where the question is tho same with that on which the jury are to pass.
Doe v. Davies, 10 Q. B. 323. Contra, Dyke v. Williams, 2 Sw. & Tr. 491.
9 1 TayL Ev. 573, 576.
10 Chapman v. Chapman, 2 Conn. 349. The tradition must be from persons having
such a connection with the party to whom it relates, that it is natural and likely
from their domestic habits and connections, that they are speaking the truth, and
that they could not be mistaken. Whitelocke v. Baker, 13 Ves. 511, 614, Ld. ELDON.
To render objection to the preliminary proof available as error, the proof must ap-
pear in the exceptions. Whitcher v. McLaughlin, 116 Mass. 167.
11 Jewell v. Jewell, 1 How. U. S. 219, 231. But declarations of his own age have
been held incompetent. Clark v. Trinity Ch. 5 Watts & S. (Penn.) 266.
11 1 Tayl. Ev. 572, 675.
13 Jewell v. Jewell (above). Compare 7 Scott N. R. 193, 213.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 93
petent for instance, entries of births, deaths and marriages, in
the family Bible, 1 or other book 2 or memorandum-book ; 3 a chart
or genealogical table preserved as such in the family ; 4 almost any
document which, even though not evidence in its own character,
has been preserved as a memorial by the family, such as a mar-
riage certificate, 5 transcript of a parish register, 8 an ancient can-
celed will, 7 a ring worn publicly by a member of the family, stat-
ing the date of death of the person whose name is engraved upon
it. Except in case of a tombstone inscription, or a formal fam-
ily record such as is usually kept in a Bible, there must ordinarily
be evidence that the entry or document is in the handwriting of a
deceased 9 member of the family, or such evidence of its having
been preserved and treated in the family as containing a family
memorial, as to give it the character of a declaration by the fam-
ily or of some 01 its members. 10 In the case of a tombstone, 11 or a
Bible shown to have been the family Bible, 13 this is presumed, and
proof of handwriting or direction to make inscription is not re-
quired. The existence of errors in a family record, and the fact
that it purports to be founded partly on hearsay, aifect its credi-
bility rather than its competency, 13 but may render it incompetent
as to matters obviously stated without means of knowledge. 14
The handing down of the record in the family, may be proved
by oral declarations of members of the family. 1 *
38. Other written declarations. ~\ Recitals or other state-
ments in an instrument executed by a member of the family,
since deceased, such as a will recognizing children ; 16 or a deed m
I Lewis v. Marshall, 5 Pet. 470, 476 ; Berkeley Peerage Case, 4 Camp. 401.
8 A hymn book. Collins v. Grantham, 12 Md. 440.
* A memorandum-book containing a record of inoculation. Clara v. Ewell, 2
Cranch C. Ct. 208.
North Brookfield v. "Warren, 16 Gray, 171 ; Goodright v. Moss, Cowp. 594.
Doe v. Davies, 10 Q. B. 314.
Kansas, <fcc. Rw. Co. v. Miller, 2 CoL T. 460, 462.
Johnson v. Pembroke, 11 East, 504.
Rose. N. P. 47, citing dictum in 2 Russ. <fc M. 158. So of the fact of the family
wearing mourning. Succession of Jones, 12 La. Ann. 397.
* Or, perhaps, of one beyond seas. Collins v. Grantham, 12 Ind. 440. Where
the member of the family who made the entry, is incompetent as a witness, he may
be admitted to prove the entry. Carkshadden v. Poorman, 10 Watts, 82.
10 Hood v. Beauchamp, 8 Sim. 26. Preservation among the muniments of the
family renders competent, especially if the document waa against interest. Roe v.
Rawlings, 7 East, 291.
II Rose. N. P. 47. Inscription may be proved by a witness. 16 Gray. 171.
Rose. N. P. 47.
13 Monkton v. Atty. Gen. 2 Russ. <fc Myl. 147. Even the testimony of a witness,
that the memorial was not considered in the family as a correct one, without specify-
ing in what respect, is held to affect not the competency but the credibility only.
Southern Life Ins. Co. v. Wilkinson, 63 Geo. 535.
14 Davies v. Lowndes, 5 New Cas. 161 ; 6 M. fe G. 471, 612, 625.
16 Doe v. Davies, 10 Q. B 824, Ld. DENMAX.
16 Russell v. Jackson, 22 Wend. 276, affi'g 4 Id. 643; Cowan T. Hite. 2 A. K.
Marsh. (Ky.) 238; Skeene v. Fishback, 1 A. K. Marsh. (Ky.) 356; Shuman v. Shu-
ma:), -27 Penn. St. 90.
94 ACTIONS BY AND AGAINST
which parties are designated, and which they execute, as husband
and wife; 1 or in which the woman joins for the purpose of bar-
ring her dower; 2 or which a party signs with the addition
" child," or " heir," or the like, 3 although not competent on the
question of title, 4 are competent as declarations within the rule.
And although the original itself must ordinarily be produced, 5
yet in case of an ancient instrument the record or probate, with
appropriate evidence to identify it as a family or public memo-
rial, is competent. 8 Letters purporting to have come from the
deceased, and containing declarations as to the facts of his family
history, are competent if proved to be in his hand-writing by the
knowledge of a witness who is acquainted with it, or by the be-
lief of a witness who received them in due course of correspond-
ence, and acted on them as such. The envelopes, if existing,
should be produced, and the post-mark, or the witness's testimony
to it if the envelope has been destroyed, is prima facie evidence
that it was deposited at the place and time indicated by the mark. 7
Statements made in a deposition which was not taken between
the parties to the action, or those under whom they claim, are
not regarded as admissible as declarations, because artificially
drawn forth without cross-examination, especially when made
after dispute arose. 8
39. General family repute.! Some facts at least of family
history, such as death, issue or failure of issue, kinship, name, and
marriage, may be proved by general reputation in the family,
upon the testimony of a witness whose knowledge of that repute
and of the conduct of members toward each other, is that which
usually exists among intimate acquaintances. 9 But the testimony
of witnesses who are not connected with the family, know noth-
ing personally of the facts to which they speak, and have not
derived their information from such persons as had any connec-
tion or particular acquaintance with the family, but can only state
loose hearsay from unknown sources, is not sufficient to go to the
jury. 10
1 Hicks v. Cochran, 4 Edw. 107.
J Rose v. Clark, 8 Paige, 674, 581, and c-ises cited.
8 Jackson v. Cooley, 8 Johns. 128; Doe v. Davies, 10 Q. B. 325.
4 Skeene v. Fishback (above).
8 Doe v. Emerod, 1 Moo. <fe Rob. 466.
6 Russell v. Jackson, 22 Wend. 276, affi'g 4 Id. 543. As to value and effect of an-
cient certificates, see Hunt v. Johnson, 19 N. Y. 279.
7 Kansas, <fcc. Rw. Co. v. Miller, 2 Col. T. 460.
8 Berkeley 1'eerage Case, 4 Carnpb. 401. Otherwise of an ex parte affidavit. Hurst
T. Jones, Wall. Jr. 373.
9 Eaton v. Tallmndge, 24 Wise. 217, 222; Bridger v. Huett, 2 Fost. <t F. 35 ;
Viall v. Smith, 6 R. I. 419; Spears v. Burton, 31 Miss. 547, 654; Jackson v. Bone-
ham, 15 Johns. 226; Russell v. Jackson, 22 Wend. 276, affi'g 4 Id. 643; and see par-
agraphs 1, 8, and 18. To the contrary, see language of some authorities cited under
paragraph 36.
10 Jackson v. Browner, 18 Johns. 37.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 95
40. Declarations made in view of Controversy] It ia not
every kind or degree of interested feeling on the part of the de-
clarant that will exclude a declaration. The law, while it assumes,
as the foundation of the rule, the existence of an interest, created
by domestic ties, to know and hand down the truth, recognizes
that such declarations are often accompanied with a feeling of in-
terest which will cast suspicion on them, without rendering them
incompetent ; J and even the legal interest of a grantor, in the sup-
port of the recitals in his deed, does not exclude them. 2 But if
it appears by either the declaration itself, 3 or other evidence,
that at the time the declaration was made, a discussion and con-
troversy had arisen (though merely in the family, and before litiga-
tion) 4 as to the fact of family history sought to be proved, 5 the
declaration is incompetent. 6 It has been said that it makes no
difference that the dispute was raised for the purpose of excluding
declarations, or that the existence of the dispute was unknown to
the declarant. 7 Declarations made for purpose of evidence would
not be competent ; 8 but this must be taken in connection with the
existence either of controversy or adverse interest, for one proper
object of formal family records is to preserve evidence in case
any question should arise. 9 Writings dated more than thirty
years past, and coming from the proper custody, are presumed to
nave been made at the time of their date, as against the sugges-
tion that they were made after controversy had arisen. 10
41. Repute "beyond the family Acquaintance Newspaper
notice Insurance.] General repute, among one's acquaintances,
that he had died, is competent, either when he left no kindred, 11
or, in connection with family repute, when he died abroad. 12 In
the absence of any direct evidence, the testimony of those who
naturally would be likely to hear of the absentee if living such
as one residing near the estate of a tenant for life, though not a
member of the family that he had not been heard of for years,
I LI DEXMAN, Doe v. Davis, 10 Q. B. 325.
J Id.
8 Butler v. Mountgarret, 7 II. of L. Cas. C45.
4 It is the beginning of dispute, involving the very point in question, not that of
the state of facts from which the dispute sprang, nor that of resulting litigation,
which terminates the competency. Shedden v. Patrick, 2 Sw. <fe Tr. 170, 188; B. o.
L. J. 30 P. M. A A. (1860-1861) 217, 282.
6 Elliott v. Piersol, 1 Pet. 337 ; liutler v. Mountgarret, 7 H. of L. Cas. 637.
* Lord BROUGHAM'S view was that it is not suffident that the declarant w.is in the
same situation touching the matter in contest with the party relying upon the dec-
laration, but it is for the objector to show either that the declaration was made after
controversy commenced, or under bias. Monkton v. Att. Gen. 2 Russ. & M. 160.
7 Shedden v. Patrick (above).
8 Chapman v Chapman, 2 Conn. 347, SWIFT, Ch. J.
See Berkeley Peerage Case, 4 Campb. 401.
10 Davies v. Lowndes, 7 Scott N. R. 214, and cases cited. As to recont writings,
compare Potez v. Glossop. 2 Exch. 191 ; Butler v. Mountgarret, 7 II. of L. Cas. 647;
and c ises cited on p. 14, n. 5, of this voL
II Ringhouae v. Keever, 49 111. 47<X
" Ewing v. Savary, 3 Bibb, 235, 238.
96 ACTIONS BY AND AGAINST
is competent. 1 The courts, also, have taken notice of facts affect-
ing pedigree contained in public histories, biographies and com-
pilations like that of " Debrett's Peerage." 3 But death abroad
cannot be proved by a newspaper notice published here, 3 and the
better opinion is that to render competent newspaper announce-
ments of facts of family history, there must be something to
connect them either with the family or a member, or with com-
mon repute properly in evidence. 4 Upon this principle of the prob-
able truth of a general conviction among those likely to know and
best qualified to judge, attested by their acting upon it, the courts
have received the fact that insurers have paid a loss upon a vessel
not heard from, as relevant to the presumption of death of one on
board ; 5 but, on the other hand, mere memoranda, though found
in official record books, are not competent, 6 nor is an assumption
of the right of suffrage or a submission to taxation competent
evidence that the person was of age, except against himself. 7
42. Best and secondary evidence^ Oral declarations are equal-
ly primary as family records or other documents of the nature of
hearsay ; * but the competency of each depends not, indeed, on
entire absence of more satisfactory evidence, 9 but on the death of
the declarant; and if he is alive, and present or within reach of
process, the declaration, whether oral or written, is incompetent, 10
except as against him and those claiming under him, or by way
of corroboration of testimony given by the declarant as a wit-
ness. 11 Where the original family record is proved to have been
lost, 12 or in any other way properly accounted for, a copy is ad-
missible ; otherwise not. 13
1 Doe v. Deakin, 4 B. <fc Aid. 433 ; Flynn v. Coffee, 12 Allen, 133. But common
repute among his acquaintances, not founded primarily on the fact of death, but on
belief that his body was found and buried at a particular time and place, is not com-
petent, unless after great lapse of time. Jackson v. Etz, 6 Cow. 316.
8 Russell v. Jackson, 22 Wend. 276, affi'g 4 Id. 543.
3 Fosgate v. Herkimer Mfg. Co. 9 Barb. 287, 295.
4 Compare Redgrave v. Redgrave. 38 Md. 101 ; Jewell v. Jewell, 1 How. U. S.
219, 232; Ring v. Huntington, 1 Mill (S. C.) Const. 162 ; Mann v. Russell, 11 111.
586; Henkle v. Smith, 21 Id. 238; Sweigar v. Lowmaster, 14 Serg. & R. 200.
8 See paragraph 5 (above).
6 Ridgeley v. Johnson, 11 Barb. 627 ; see Caujolle v. Ferric, 23 N. T. 90.
1 Clark v. Trinity Church, 5 Watts & S. (Penn.) 266. The declarations of the dece-
dent as to his age are not competent.
8 Clements v. Hunt, 1 Jones (N. C.) L. 400.
9 1 Tayl. Ev. 569, 574; compare Fosgate v. Hertimer Mfg. Co. 12 Barb. 352.
10 Leggett v. Boyd, 3 Wend. 376 ; Campbell v. Wilson, 23 Tex. 252 ; Robinson v.
Blakely, 4 Rich. L. (S. C.) 586.
11 Wiseman v. Cornish, 8 Jones (N. C.) L. 218.
12 Whitcher v. McLaughlin, 115 Mass. 167.
13 Ryerson v. Grover, 1 N. J. L. (Coxe), 458. A recital in a deposition not enough.
Greenleaf v. Dubuque, <fcc. R. R. Co. 30 Iowa, 301. It has been held that the age of
a member of a family, copied by a son into the family Bible from another book
where the original entries were made by his father, is not competent without ac-
counting for the entries of the father. Curtis v. Patton, 6 Serg. <fe R. 135. But they
might be made competent by evidence establishing the family Bible as the recognized
family record.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 97
Y. REGISTRY OF FACTS OF FAMILY HISTOKY (PEDIGREE.)
43. Registries authorized ly law.~\ A registry, whether of
birth, marriage, death or burial, kept pursuant to law (statutory
or unwritten), is competent evidence of the main fact and its
date, 1 and of any other fact which the law or statute directed the
officer to ascertain and record ; 2 and it is not incompetent because
the statute does not expressly declare it to be evidence. 3
To prove an entry, in such a register kept within the State,
the book may be produced by the present keeper of the record,
or other witness who can testify that it comes from the proper
custody, with evidence either that it is the official register, and
that he who was the keeper at the time of the entry, made the
entry, or that the entries relied on, or at least some of them, are
in his handwriting, and that the book was handed down by the
present keeper's predecessors in office as the official register. 4
Instead of the book, a copy in full of the particular entries relied
on may be produced, 5 authenticated (if the statute authorizes
certified copies) by the certificate of the keoper of the record, 8
or authenticated by the oath of a witness, as in the case of a
voluntary register stated below.
A register kept pursuant to the law of a sister State or foreign
nation, may be proved by proving the law which authorized it, 7
and that it was made and preserved according to that law, and
that the person certifying was the proper officer ; 8 and by produc-
1 See paragraphs 2, 16, and 28 (above).
2 Derby v. Salem, 30 Vt. 722. But as to a fact not within his personal knowledge,
it is, of course, slight evidence, and without the statute would not be competent.
But a defective record, or the entry of facta of which the entry is not evidence, may
be made competent by tracing it to information furnished by a competent family
source, making it admissible as hearsay. Viall v. Smith, 6 R. I. 421.
3 State v. Wallace,' 9 N. H. 615; and see Wedgwood's Case, 8 Greenl. 75.
4 Doe d. Jaycoks v. Gilliam, 3 Murph. (N. C.) 47 ; Sumner v. Seebec, 3 Greenl.
223. Absence of authentication of an entry in an ancient record not fatal. Ex*rs
of Booge v. Parsons, 2 Vt. 456.
s An official certified copy should be a literal exemplification of each entry relied
on, but a sworn copy produced by a witness may be the tabulation of several entries
if the witness swears that he extracted the details from the register. American Life
Ins. <fe Trust Co. v. Rosenagle, 77 Penn. St. 550. Where the statute requires the
officiating clergyman to certify his act to the county clerk for record, the proper evi-
dence is a copy of the certificate, not merely of the memorandum of the clerk. Niles
v. Spragne, 13 Iowa, 198 ; compare Fox v. Lambson. 3 Halst. 275, 280. As to delay in
the clergyman's return, see People v. Lambert, 5 Mich. 849 ; 1 Bish. Marr. &, D. 468.
N. Y. Code Civ. Pro. 928 (3 R. S. 6th ed. 150, 17); and see Jackson v.
People, 3 111. (2 Scam.) 231.
* See pp. 22 and 23 of this vol., paragraphs 9, 10; and BOO Morrisey v. "Wiggins
Ferry Co. 47 Mo. 521. The fact that the record wns kept and preserved pursuant to
foreign law may be proved by the custodian, though not a lawyer, for he is in a po-
sition to make it probable that he knows the law. Am. Life Ins. Co. v. Rosenagle,
77 Penn. St. 515.
8 State v. Horn, 43 Vt. 20; State v. Dooris, 40 Conn. 145. A copy of a marriage
contract, the original of which was executed and deposited in the public archives of
a foreign State, may be admitted, not without authentication, but by a sworn copy
or a copy certified by the officers of our government when they have succeeded to the
f
98 ACTIONS BY AND AGAINST
ing a copy, authenticated as such according to the mode pre-
scribed by the law of the forum for authenticating foreign official
acts, 1 or authenticated by the oath of a witness, 2 as in the case of
a voluntary register stated below.
The registry being duly proved, compliance with preliminary
formalities is presumed. 8
44. Registries not authorized l>y law.~\ A register kept with-
out authority of law is competent, in evidence of the main fact,
whether of marriage, 4 baptism, 5 or burial, 6 and of its date, but not
of other facts stated in it, such as date or place of birth or death ; '
but, to admit it, it must appear that it was kept by the proper
officer, 8 or by the officiating clergyman, 9 pursuant to his duty or
in the usual course of his functions, 10 and that he is since de-
ceased ; u but the fact that he was not a sworn officer, 12 or that he
kept it not as a public record belonging to the parish, but as his
private memorandum, 13 does not render it incompetent, if he was
under a duty to keep it. It should also appear that the register
is produced from the custody of his successor, the entry being in
his own handwriting and appearing to have been made contem-
poraneously with the performance of the rite, and before contro-
versy arose, with no apparent inducement to misstate nor inter-
est adverse to his official duty ; and in such case additional
memoranda on the register, of fee paid, is not necessary to render
the paper competent. 14 If the entries were made first in a day-
book, and then transferred to the register, the day-book is not,
but the register is, evidence of the act entered in the register. 15
If the record is of a public nature, such as that of a church, an
examined copy of the entries relied on, without production of the
foreign authority and have custody of the original, or certified by the foreign officers
who, at the time of certifying, had custody of the original, with proof that the per-
son certifying was acting in the office, and that his signature is genuine. Chouteau
v. Chevelier, 1 Mo. 343.
1 S. Y. Code Civ. Pro. 956 (L. 1875, c. 136). In Pennsylvania, ex parte evidence
of the copy has long been held admissible where the registry is beyond seas. King-
ston v. Leslie, 10 Serg. <fe R. 389, and cases cited.
4 Jackson v. Boneham, 15 Johns. 226.
I Inhabitants of Milford v. Inhabitants of Worcester, 7 Mass. 48, 57.
* Maxwell v. Chapman, 8 Barb. 579.
* Blackburn v. Crawfords, 3 Wall. 182, 189.
* Lewis v. Marshall, 5 Pet. 470, 476.
7 Except to show that the birth or death was prior to the entry. 6 Pet. 470, 476.
See paragraphs 2 and 28 (above). Unless shown to have been made under direc-
tion of deceased relative or parent. Doe v. Bray, 8 B. <fc C. 817.
8 Doe v. Andrews, 15 Q. B. 758. Compare, however, Doe v. Bray, 8 B. <fc C. 813.
' Blackburn v. Crawfords, 3 Wall. 175, 183, 189, 191.
10 Same cases.
11 Morrisey v. Wiggins Ferry Co. 47 Mo. 621, s. p. Iluntly v. Compstock, 2 Root,
99. Compare 16 Ves. (by Sumner), 72, n. 3.
11 Kennedy v. Doyle, 10 Allen, 161.
II Blackburn v. Crawfords (above).
14 Kennedy v. Doyle, 10 Allen, 161. '
18 Maxwell v. Chapman, 8 Barb. 579,
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 99
original, is admissible. 1 The proper evidence of the copy is testi-
mony of the witness producing it, that it was taken at the proper
office, the record being there produced to him by the lawful
keeper ; 2 and proof of the handwriting of the deceased officer may
be made by the witness having inspected the signature in the
various places where it occurred in the register. 8 A copy certi-
fied under the seal of the corporation, is not evidence unless made
so by statute. 4 If the one who made the entry is living, the
original entry is competent, on producing him as a witness to
testify to accuracy.
The marriage certificate given to the parties at the time by
the officiating functionary is evidence, not only when made so by
statute, 5 but also if shown to be part of the res gestce, on inde-
pendent evidence of the act, 6 especially if given by a public officer
who is since deceased ; 7 or if so preserved and shown by either
party as to be his or her admission or declaration, 8 or, with lapse
of time, to become a family memorial, competent as hearsay. 9
45. Best and secondary evidence.'] Registers, even though
statutory, are not conclusive evidence, 10 nor the only best evi-
dence, so as to exclude parol, 11 unless made so by the statute. The
object of the register is to facilitate the proof, not to supersede
other modes. 12 Where the register is proved, the witnesses who
signed it need not be called. 13
To prove that no entry was made, the book or paper of en-
tries is the best evidence. The statement of the keeper of the
record, as a witness, that no entry appeared is secondary. 14
46. Impeaching the registry.'] -The fact of a mutilation or im-
perfection in the register, not material to the series of entries
affecting the parties ; 1S or that the entry was copied from another
contemporaneous or collateral register, both records being made in
the course of duty ; 16 or the appearance of other entries not made
I Jackson v. King, 5 Cow. 237; Lewis v. Marshall, 5 Pet. 470, 476.
8 Gainea v. Relf, 12 How. U. S. 472, 622. Compare p. 60 of this vol.
s Doe T. Daviea, 10 Q. 15. 325.
4 Stoever v. Whiteman, 6 Binn. 41(5.
B As ia N. Y. Code Civ. Pro. 928 (3 R. S. 6 ed. 150, 17), and in other States.
6 See Stockbridge v. Quicke, 3 Car. & K. 305.
7 AVheeler v. McWilliams, 2 U. C. Q. B. 77 ; and see 10 Allen, 101.
8 Hill v. Hill, 38 Penn. St. 611, compare Commonwealth v. Morris, 1 Gush. (Mass.)
391.
9 Paragraph 87 (above).
10 Derby v. Salem, 30 Vt. 722; Rice v. The State, 7 Humph. 14;
II Viall v. Smith, 6 R. L 419, even to supply a defect; Northfield v. Plymouth, 20
Vt. 582, 589.
ia State v. Marvin, 35 N. H. 22.
13 Birt v. Barlow, 1 Dou^l. 172.
14 Blackburn v. Crawfords, 8 Wall. 183, but compare to the contrary, Smith v.
Richards, p. 39 of this vol. n. 10.
15 Walker v. Wingfield, 18 Ves. 445, Li- ELDOX; and see Doe <fc Jaycocks v. Gil-
liara, 3 Murph. N. C. 47; Sumner v. Seebec, 3 GreenL 223.
16 Doe v. Andrews, 15 Q. B. 756.
100 ACTIONS BY AND AGAINST
at the proper time or by the proper person ; 1 or, if an official
register, that the making of the entry was somewhat delayed, 2 or
was not made on the best information, 8 and the like objections,
go rather to the credibility than the competency of the entry.
YI. JUDICIAL RECORDS SHOWING FACTS OF FAMILY HISTORY
(PEDIGREE).
47. Letters of administration, cfcc.] Letters testamentary or
of administration, though competent and sufficient in favor of or
against the representative to prove his capacity to sue and be
sued, 4 are not competent against any other party, to prove the
death as a substantive part of a cause of action or defense, 5 unless
by lapse of time they have become competent as hearsay. 6 This
exclusion is an apparent exception to general principles, and rests
on the imperfect judicial character of the proceedings. The etat-
utes regulating the probate court may 01 course be such as to
make the adjudication competent ; but as death is the jurisdic-
tional fact, the determination would not be conclusive even be-
tween the parties to the proceeding. On other questions direct-
ly, not merely incidentally, 7 in issue, and actually determined by
the probate court, such as legitimacy or illegitimacy, and kinship,
a decree of the surrogate's court is competent evidence between
the parties and those in privity with them, 8 and, if the matter
was exclusively within the probate jurisdiction and intelligently
decided, is conclusive 9 both as to personalty 10 and realty ; n but as
to a third person not strictly claiming under either party, it is,
at the most, only prima facie evidence in his favor, and is not
competent against him. 12
48. Judgments and Verdicts.'] Personal judgments, and judg-
ments affecting particular property only, are not competent evi-
I Harwell v. Chapman, 8 Barb. 579.
II Derby v. Salem, 30 Vt. 727.
3 Doe v. Andrews, 15 Q. B. 759.
4 See p. 54, paragraph 1. So they have been admitted after lapse of time,
where the question of death did not affect the liability of the objector, but only the
question who was the proper plaintiff. French v. French, 1 Dick. 268.
6 Carroll v. Carroll, 60 N. Y. 123, rev'g 2 Hun, 609. Nor to prove the time of
death, either relatively or absolutely. English v. Murray, 13 Tex. 366 ; Ins. Co. v.
Tisdale, 91 U. 8. (1 Otto), 238.
6 Munro v. Merchant, 26 Barb. 383. See U. S. v. "Wright, 11 Wall. 648 ; Johnson
V. Towsley, 13 Id. 72, 83, 86, and cases cited.
7 Anson v. Stein, 6 Iowa (Clarke), 150.
8 Lalonette v. Lipscomb, 52 Ala. 570.
9 Doglioni v. Crispin, L. R. 1 H. L. 301 ; and see Broderick's "Will, 21 "Wall. 503.
10 Caujolle v. Ferric, 13 Wall. 469.
11 Blackburn v. Crawfords, 3 Wall. 190.
12 Spencer v. Williams, L. R. 2 P. & D. 230, 237, and cases cited. Thus a decree
of the probate court, determining a question of legitimacy of a child, by determining
that the parents were never married, is not competent a* against other children who
were not parties to the proceedings. Kearney v. Denn, 15 Wall. 57. So proceed-
ings before the surrogate for admeasurement of dower, are not evidence of title.
Clarke v. Randall, 5 Cow. 168.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 101
dence of facts of heirship or the like, recited in them, except as
against a party to the action in which they were recovered, or a
person claiming under him, 1 or as to the particular property ad-
judicated on, 2 unless by lapse of time the rule as to hearsay makes
them competent.
Where the circumstances are such that the fact might be es-,
tablished by general reputation, any judgment or decree, or even
a verdict, 3 of a court of competent jurisdiction, expressly or by
necessary implication determining the fact, is prima facie evi-
dence, even against third persons.
A judgment in an action for divorce, being in the nature of
an action in rem, determines the question of personal status as
against all the world, and is therefore competent for or against
strangers. Such a judgment, whether foreign or domestic, is to
be proved by the production of the record, or a duly authenti-
cated copy, which should include the pleadings, orders, reports,
&c., as well as the adjudication. 4
"VII. IDENTITY
49. Necessity of proof :] Where a given name 5 appears with
the surname, in a document or testimony, identity of the name
with that appearing in other evidence, is sufficient to make a
prima fade case of identity of person, if there be a reasonable
coincidence in whatever circumstances of time, place, age, legal
character or capacity, &c., appear in the case, and nothing affirm-
ative to cast doubt on the identity. 6 Under such circumstances,
proof of identity of the person named in a record, whether a
register of baptism, marriage, 7 &c., or a judgment, 8 is unnecessary
in the first instance. The practice in this State is to leave it to
the adverse party to give some evidence against identity. This
is a principle recognized in civil cases generally. 9
1 Lovell v. Arnold, 2 Munf. 167 ; Archer v. Bacon, 13 Mo. 149 ; Wardlaw v.
Hammond, 9 Rich. (S. C.) L. 464.
3 Whitman v. Henneberg, 73 111. 109.
3 Pile v. McBratney, 16 111. 314, 319 ; Patterson v. Gaines, 6 How. U. S. 699.
4 Lawrence's Will Case, 18 Abb. Pr. 347.
5 Fanning v. Lent, 8 E. D. Smith, 206.
* As, for instance, where the name is very common, or where the name of a signer
and of an attesting witness is the same. Jackson v. Christman. 4 Wend. 277.
7 Jackson v. King, 5 Cow. 241 (disapproving 1 Campb. 196; 4 Id. 34). Entries
in a church register, showing that W. A. had a son baptized as S. ; that years after
S. A. had a daughter baptized as M., and that years after M. A. was married to P.,
is sufficient evidence to go to the jury that P. married a granddaughter of W. A., if
nothing appears to show that there ever were other persons of those names. It may
be presumed that the persons named in the register were the ancestors of the claim-
ant, where all bore the appropriate names, the dates of the several baptisms and mar-
riages being at such distance of time from each other as to be consistent with the
claim. Id. This appears also to be the modern English rule. Hubbard v. Lees, L.
R. 1 Ex 265. Contra, Middleton v. Sandford, 4 Campb. 34; Mooera v. Bunker, 29
N. II. 420; Morrisey v. Wiggins Ferry Co. 47 Mo. 625; 1 Whart. Ev. 623, 655.
Hatcher v. Rochelenu, 1 8 N. Y. 86.
Bogue v. Bigelow, 29 Vt. 1S3 ; 2 Phil. Ev. 508, and note ; 1 Greenl. EY. 38,
note. Otherwise in criminal cases. Wedgwood's Cast-, 8 Greeul. 76.
102 ACTIONS BY AND AGAINST
50. Mode of Proof.'] Identity of person may be proved by
the direct testimony of a witness Laving means of knowledge ; l
and photographs as well as other miniatures, shown to be good
likenesses, are competent, in connection with testimony, to iden-
tify the person. 2 Evidence showing correspondence of age, per-
sonal appearance, dialect, habits, manners, calling, places of re-
sort, &c., is also competent. 3
YIII. NATIONAL CIIAEACTEK, AND DOMICILE.
51. Citizenship and Alienage.'] Citizenship may be proved
by proving birth, at any place, from a father, a citizen of the
United States, whether he was native born or not; 4 or birth
in this country since the war of the Revolution, without refer-
ence to the alienage or citizenship of the parents. 5 Alienage may
be proved by proving birth in a foreign country, from a father
not a citizen of this country, or who never resided in this coun-
try ; 6 or birth in this country prior to the declaration of inde-
pendence, and withdrawal or removal from this country without
ever having adhered to our government. 7 Marriage to an Ameri-
can, of an alien woman who might lawfully be naturalized, makes
her a citizen ; 8 in other cases marriage does not alter the woman's
citizenship. 9 Evidence that one deceased was reputed to be of a
specified foreign nationality, and had the appearance and dialect
thereof, is presumptive evidence of alienage. Residence, if ma-
terial on a question of national character, may be proved as in
case of Domicile.
52. Naturalization.] A record of the judgment of a compe-
tent court, admitting an alien to become a citizen, and reciting
the facts which entitled the alien thereto, is conclusive, and is
complete evidence of its own validity. It cannot be impeached
1 The testimony of a grandmother that she verily believed the person produced
in court to be the one baptized as a child as proved by the register is sufficient evi-
dence of identity, for the jury. Queen v. Weaver, L. R. 2 C. C. Res. 85, s. r. 7 Moak's
Eng. 323. So evidence that the woman was formerly known by the maiden name
mentioned in the marringe register, and that the parties cohabited as husband and
wife, is proof of identity. State v. Wallace, 9 N. H. 515, 617.
2 Ruloffs Case, 11 Abb. Pr. N. S. 245, s. c. 45 N. Y. 213; Luke v. Calhoun, 52
Ala. 115 ; Udderzook v. Commonwealth, 76 Penn. St. 340; R. v. Folsom, 4 R & F. 103.
3 See Jackson v. Etz, 5 Cow. 316; Lindsay v. People, 63 N. Y. 143; Cunningham
V. Burdell, 4 Bradf. 343.
4 Young v. Peck, 21 Wend. 389 ; U. S. R. 3. 1993.
6 McKay v. Campbell, 2 Sawyer, 1 18, s. c. 5 Am. L. T. 407 ; Lynch v. Clarke, 1
Sandf. 583, 638. Compare as to expatriation, Ludiam v. Ludlam, 26 N. Y. 363, affi'g
31 Barb. 486 ; 14 Op. U. S. Alt. Gen. 295 ; Op. N. Y. Att. Gen. 380 ; Juando v. Tay-
lor, 2 Paine, 652.
6 See Shanks v. Dupont, 3 Pet. 247 ; U. S. R. S. 1993 ; TJ. S. v. Gordon, 5 Blatchf.
18; Young v. Peck, 21 Wend. 389.
1 See Inglis v. Sailor's Snug Harbor, 3 Pet. 99 ; Hollingsworth v. Duane, Wall.
C. Ct. 61.
8 U.S.R.S. 1941.
* Beck v. McGillis, 9 Barb. 35, 49 ; Shanks v. Dupont, 3 Pet. 242. Compare Citi-
zenship, 14 Op. U. S. Att. Gen. 402.
10 Jackson v. Etz, 5 Cow. 314.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 103
in collateral proceedings, by proof contradicting these facts. 1 A
certified copy of a record of naturalization in another State, cer-
tified according to the act of Congress to allow it to be admissi-
ble in evidence, is admissible, without further proof that it has
been in the custody of the clerk, &c., and without extraneous
proof of any of the preliminaries of naturalization. 2 If the local
law requires any further declaration or oath as a condition of
holding lands, there must be evidence tending to show that the
condition was complied with. 3
53. Nature of the question of Domicile.'] Amid the conflict
of opinion and decision on questions of domicile, an important
guide is to bear in mind that for purposes of succession the ob-
ject of the inquiry is, to ascertain what jurisdiction, what law,
this person's aggregate of legal rights and liabilities was under.
For other purposes, 4 a person may belong to several places, in the
legal sense, and the law looks at his interests distributively to
ascertain the locality for each purpose. But for purposes of suc-
cession the inquiry is not as to the locality of any one class of in-
terests, nor even of his chief interests nor political allegiance,
but we are to look at the aggregate of his civil interests as an
entirety, the universitas juris, of the Roman, law, and ask
where in legal society was this entirety centered ; in what juris-
diction did this aggregation, considered as a whole, subsist ?
54. Presumptions and material Facts.'] The domicile of a
person sui juris is proved by showing a residence at a particular
place, or at least within a particular jurisdiction, accompanied
with either direct or presumptive evidence of an intention to
remain there for a time not limited. 5 If nothing appears indicat-
ing that the person ever had a different origin or residence, proof
of the mere fact of his being at a place, without more, is suffi-
cient pritna facie evidence that he was then domiciled there, to
put upon the adverse party the burden of rebutting the evidence, 6
which may be done by showing that his presence there was either
for a temporary purpose, 7 or by constraint ; 8 but the place where
one is, for however short a time, may, if he never had any other
domicile, be deemed to be his domicile, at least for the purpose
of defining his capacities while there. Usually, however, there
is evidence of an abode; and the place where the person "lives"
is taken to be his domicile until facts adduced establish the con-
1 McCarthy v. Marsh, 6 N. T. (1 Seld.) 263, and cases cited. Compare Case of
Stern, 13 Op. U. S. Alt. Gen. 376.
* People v. Snyder, 41 N. Y. 397, affi'g 51 Barb. 589.
* Blight v. Rochester, 7 Wheat. 635.
4 Such as taxation, voting, settlement, <fec.
5 Mitchell v. U. 8. 15 Wall. 350; Guier v. O'Daniel, 1 Binn. 349, n.
6 Bruce v. Bruce, 2 Bos. <fe P. 230, n., Ld. THUBLOW ; Bempde v. Johnstone, 3 Ves.
201 ; Mann v. Clark, 83 Vt. 65, 60.
7 Bruce v. Bruce (above).
8 Bempde v. Johnstone (above).
104: . ACTIONS BY AND AGAINST
trary. 1 Thus an immigrant having abandoned his domicile abroad,
and come with his family to this country with intent to seek a
home here, acquires a domicile at the port where he comes within
our jurisdiction, which continues until his movement and intent
manifest the adoption of another. 2 Showing long continued resi-
dence within a jurisdiction other than that of the domicile of
origin, in the absence of anything indicating intent to preserve
or return to that original domicile, is enougn to throw on the
other party the burden of disproving intent to remain. 8 If the
person was moving to and fro, the question where he had his
home, 4 where he had established his family if he had one, 5 or
where his strongest domestic ties were fixed, 6 may determine in
which of the several places he " lived," within the meaning of
the rule, 7 even though he declared himself a resident of his place
of business. 8 It is the residence which indicates the domicile,
though but little of his time was spent there, rather than the
place of business, though much was spent there. 9 If he main-
tained two domestic establishments at once, the relative length of
time spent in them is of little or no weight ; 10 but any circum-
stances, such as health, climate, &c., indicating that he probably
regarded one rather than the other as likely to be his ultimate
abode, will control ; u if, however, the case is equally balanced in
respect to intent, the one first adopted as an abode will maintain
its character as his domicile. Slight circumstances may fix domi-
cile, if not controlled by stronger evidence ; and as the question is
usually between two places, each indicated by some circumstances,
it often occurs that the evidence of facts pointing to one place
would be entirely conclusive were it not for circumstances of a
still more decisive character which fix it beyond question in the
other. 12 In such cases the intention of the person to consider the
one or the other to be his residence or domicile will usually con-
trol. 13 Foreign domicile may be proved by evidence of foreign
national character, and of residence within the foreign jurisdiction,
although the particular place may not be satisfactorily ascertained. 14
I Bruce v. Bruce, 2 Bos. <fe P. 229, n. ; Bempde v. Johnstone, 3 Ves. 201 ; Stanley
V. Bernes, 3 Hagg. Eccl. 374, 437; Best on Pres. 235.
s Kennedy v. Ryall, 67 N. Y. 386, affi'g 40 Super. Ct. (J. <fc S.) 347; Whart Notes
on Dom. 3 So. L. Rev. 416, 417.
3 Ennis v. Smith (Kosciusko's Case), 14 How. U. S. 400, 423.
4 Story's Confl. of L. 41.
6 Chaine v. Wilson, 8 Abb. Pr. 73, s. c. 1 Bosw. 673.
6 See Catlin v. Gladding, 4 Mas. C. C. 308.
7 See other cases in 2 Abb. N. Y. Dig. 2d ed. tit. Dom.
8 Wade v. Matheson, 4 Lans. 158.
* Chaine v. Wilson (above).
10 Greene v. Greene, 11 Pick. 410, 415.
II Forbes v. Forbes, Kay, 341. Compare Isham v. Gibbons, 1 Bradf. 69.
12 Thorndike v. City of Boston, 1 Mete. 246 ; Mann v. Clark, 33 Vt. 60.
13 Opinion of the judges, 5 Mete. 589. Source of income (if not parental) is not
material. Ib. 591.
14 See Matter of Fitzgerald, 2 Cai. 318.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 105
For the purpose of actions treated in this chapter, a wife's
domicile is proved by proving that of her husband, if sui juris?-
unless they were separated by the decree of a competent court. 3
The domicile of a legitimate minor is proved by proving the
domicile of the father, 3 while he was living ; after his death, that
of the mother ; but it does not follow any change in her domicile
resulting on her remarriage. 4 That of an illegitimate minor is
proved by proving the domicile for the time being of its mother. 5
That of a foundling, by showing where it was discovered, or the
place of education or adoption to which it was removed. 6 In
case of a continued absentee, under constraint, like a soldier or
Bailor, the residence of his wife at the place where he established
her is prima facie evidence of his domicile ; 7 or, if single, the
place where he most usually resorted for board in the intervals of
his return. 8
55. Change of domicile.'] Domicile once shown, whether it be
the original or an acquired one, 9 is presumed by the law to have
continued until a new domicile is shown to be acquired. Merely
abandoning the old abode, though without intent to return, does
not divest the domicile. 10 The burden is on him who alleges a
change of domicile to prove the change. 11 To constitute the new
domicile two things are indispensable : 1, residence in the new
locality ; w and, 2, the intention to remain there, either perma-
1 Whart. Confl. of L. 44.
" Id. ; Greene v. Greene, 10 Pick. 415 ; and see Yelverton v. Yelverton, 1 Sw. <fe
Tr. 674, 585 ; Parsons v. City of Bangor, 61 Me. 461, APPLETON, J.
' Ludlara v. Ludlam, 26 N. Y. 856, 371 ; Guier v. O'Donnell, 1 Binn. 352, n. ;
Forbes v. Forbes, Kay, 353.
4 Brown v. Lyncli, 2 Bradf. 214 ; and see Ryall v. Kennedy, 40 N. Y. Super. Ct.
(J. & S.) 347 (affi'd in 67 N. Y. 386), and cases cited.
6 Whart. Confl. of L. 37.
Id. 39.
I Brewer v. Linnaeus, 36 Me. 428. But compare Ford v. Hart, L. R. 9 C. P. 273,
8. o. 9 Moak's Eng. 400 ; Yelverton v. Yelverton, 1 Sw. & Tr. 574.
8 So held of the residence of a fisherman living in his boat at sea. Boothbay v.
"Wiscasset, 3 Grecnl. (Me.) 354.
8 Opinion of the judges, 9 Mete. 687, 889.
10 Somerville v. Somerville, 5 Ves. 756, 787 ; Jennison v. Hapjrood, 10 Pick. 77 ;
First Nat'l Bank v. Balcom, 35 Conn. 637; Mitchell v. U. S. 21 Wall. 350. Unless
it be in a foreign jurisdiction ; The Venus, 8 Cranch, 253 ; or the intent be to resume
domicile of birth. Reed's Appeal, 71 Penn. St. 381, 383. The better opinion is that
the principle that original domicile easily reverts, is practically confined to cases
where the national character and the original domicile are the same, and does not
apply where both domiciles are under one national sovereignty. First Nat. Bk. v.
Balcom, 35 Conn. 857. Compare Mann v. Clark, 83 Vt. 55, 61. The intention to
abandon, though formed after leaving, effects abandonment. Ilampdcn v. Levant, 59
Me. 659, APPLETOX, J.
II Crookenden v. Fuller, 1 Sw. fc Tr. 441 ; Hodgson v. De Buchesne, 12 Moore's
P. C. 288; Mitchell v. U. S. (above); Dcsmare v. U. S. 93 U. S. (3 Otto), 605.
19 There are, however, cases where the establishment of a homo or wife at a place,
with intent to go and abide there permanently, have been held to fix the domicile
there before actual residence commenced. Banes v. Brewster, 111 Mass. 882; and
Bee Petersen v. Chemical Bk. 32 N. Y. 21, 23 ; affi'g 2 Robt. 605. Being tt itincre to
106 ACTIONS BY AND AGAINST
nently or for an indefinite time. 1 The change cannot "be made
except, facto et animo. Both are alike necessary. Either with-
out the other is insufficient. Mere absence from a fixed home,
however long continued, cannot work the change. But the fact
of fixing a residence in another place, from motives of health or
business of a permanent nature, may raise a legal presumption of
intent to make the change. 3 On the other hand, the intent to
change will not be presumed if it would have been illegal. 3
The domicile of a minor cannot be changed by its own act ; 4
but an actual change of residence by the guardian with the ward,
made in good faith, may have the effect to change the ward's
domicile. 5 If a minor, on coming of age, leaves the parental
domicile, he may acquire a domicile, as any other person, by taking
up a residence, 6 without intent to return otherwise than on visits.
But if he retains family ties, and resorts to the old home in vaca-
tion, he does not lose his domicile there by his absence and resi-
dence at college. 7 A wife after divorce, either absolute or by
way of separation, may change her domicile by her own act. 8 A
soldier or sailor does not lose his domicile by absence in actual
service. 9 Naturalization is very strong, but perhaps not conclu-
sive evidence of change of domicile. 10
56. The Intent."] Usually the intent to which the evidence is
to be directed is not intent to secure domicile, as a legal result,
but to take up continuous residence, as a matter of fact. In some
the intended new domicile may be enough. Forbes v. Forbes, Kay, 841. But mere
intention to change is not enough. Guier v. O'Donnell, 1 Binn. 352, note. If it suffi-
ciently appears that the necessary intent to remain existed, the right of domicile ia
acquired by ever so brief a residence. The Venus, 8 Cranch, 253, 279. But the
force of residence as" evidence of domicile is increased by the length of time during
which it has continued. Stanley v. Bernes, 2 Hagg. Ecc. 437. Under what circum-
stances " locating " with intent to return for family, effects a change before they are
brought, compare Burnham v. Rangeley, 1 Woodo. <fe M. 7 ; State v. Hallett, 8 Ala.
159; Smith v. Croom, 7 Fla. 81, 158.
1 Jennison v. Hapgood, 10 Pick. 77. As to intent to return in the indefinite future,
see Bruce v. Bruce, 2 Bos. & P. 230, n. ; Ross v. Ross, 103 Mass. 575.
2 Elbers v. U. S. Ins. Co. 16 Johns. 128..
* Mitchell v. U. S. (above).
4 Forbes v. Forbes, Kay, 353. It seems not even after emancipation. Trammell
T. Trammell, 20 Tex. 406, 417.
* Wheeler v. Hollis, 19 Tex. 522, and cases cited ; and see Brown v. Lynch, 2
Bradf. 214. Otherwise, if made fraudulently for the guardian's benefit. Trammell v.
Trammell, 20 Tex. 406. The domicile of a person non compos may be changed, where
it does not affect succession, by the committee or guardian. Holyoke v. Haskins, 5
Pick. (Mass.) 20.
6 Hart v. Lindsey, 17 K H. 235.
* Granby v. Amherst, 7 Mass. 1, 5. And see Putnam v. Johnson, 10 Mass. 488.
An intent to change domicile is not so readily presumed from residence at a public
institution for purposes of education, as from a like removal for ordinary purposes.
Opin. of the Judges, 5 Mete. 590.
" Barber v. Barber, 21 How. U. S. 582.
* Brewer v. Linnaeus, 36 Me. 428, s. r. per SHAW, Ch. J., Sears v. City of Boston,
1 Mete. (Mass.) 250, 252.
10 See Moore v. Darrall, 4 Ilagg. 63.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 107
cases, however, especially where two residences are shown, there
may have been an intent that one should be made the domicile to
the exclusion of the other. Intent of either kind is competent
evidence. On the one hand it is enough to show the residence
as a fact, and the intent to abide, without showing that the per-
son had any intention or even knowledge as to the legal conse-
quence in fixing domicile ; * on the other hand the intelligent in-
tention to retain the existing domicile as the legal habitat, while
making a change of residence which it was apprehended might
be permanent, may be effectual to prevent a change of domicile. 2
But where the facts show all the preponderating indicia of domi-
cile in one of two residences, the mere election of the person to
have the other considered as the domicile cannot sufficed
57". Evidence of Residence and of Intent.'] A witness may
testify to the fact of a person's residence ; and even negatively, by
showing that the witness had adequate acquaintance with the
place, and that the person could not, in his opinion, have lived
there without the witness knowing it. 4 A person, whether a
party to the suit or not, may testify what was his own intent in
taking up his residence or removing, 5 but against his testimony
all material circumstances may be weighed. 6
Evidence of declarations manifesting intent, made by the per-
son before suit, and accompanying the residence or the acts of
change, is competent, whether the person is living 7 or not 8 at the
time of trial, if the intent related to the present or future, 9 but
declarations of the intent of a former residence or removal are
not competent. 10
1 This is the American rule. The English courts seem not agreed. In Moorhouse
T. Lord, 10 Ho. of L. 282, 285, 292, it was held (in case of a national change) that
the intent must be intent to change the domicile as distinguished from the residence,
In Douglas v. Douglas, 41 L. J. Eq. 74, 88, this was said not to be the English law,
and the rule was laid down that the evidence of intention may be either express, or
such as to lead to the inference that, if the question had been formally submitted to
the party whose domicile is in dispute, he would have expressed his wish in favor of
a change; that such an intention must be either shown to have actually existed in the
mind, or it must appear that it was reasonably certain it would have been formed or
expressed if the question had arisen in a form requiring a deliberate and solemn de-
termination. Id. p. 89.
8 Dupuy v. Wui tz, 63 N. T. 656, affi'g 64 Barb. 156.
8 Oilman v. Oilman, 52 Me. 165; Holmes v. Greene, 7 Gray, 299, 301 ; Butler v.
Farnsworth, 4 Wash. C. Ct. 101.
4 Cavendish v. Troy, 41 Vt. 108. It was also held that to prove his presence,
ancient documents of other persons, showing his business and litigation there, were
competent.
* Fisk v. Chester, 8 Gray (Mass.) 60; Hulett v. Hulett, 87 Vt. 681, 586.
8 Wilson v. Wilson, L. R. 2 P. fe D. 435, 444, 8. c. 4 Moak's Eng. 663, 671.
* Kilburn v. Bennett, 3 Mete. (Mass.) 199 ; Burgess v. Clark, 3 Ind. 250.
8 Brodio v. Brodie, 2 Sw. & Tr. 269, 262; Ennis v. Smith, 14 How.U. S. 400, 421.
9 A letter written a year after leaving, and expressing intent never to return, with
business instructions based on it, is competent on the question of previous change.
Thorndike v. City of Boston, 1 Mete. 242, 247.
10 Salem v. Lynn, 13 Mete. 544. But this limit is not to be too strictly applied.
It depends perhaps on the existence of interest. See also Crookenden v. Fuller, 1
Sw. <fc Tr. 450.
108 ACTIONS BY AND AGAINST
A written declaration, although more reliable than mere
words in point of preservation, may or may not be more signifi-
cant of intent in proportion as it is spontaneous and deliberate. 1
Thus, an averment in pleading, 2 or a description in a will, 3 deed
or contract, 4 being formal acts drawn usually by another ; or an
entry in a hotel register, 5 being usually a careless act, though
each competent, are entitled to little weight.
Acts are usually more cogent evidence of intent than declara-
tions. 6 The law, in the absence of direct evidence of intent, pre-
sumes that a man. did not intend to abandon his family ; hence
the act of 1 leaving one's family at the pre-existing domicile, or of
breaking up the establishment and removing the family to the
new abode, and leaving them there while returning, raises a strong
presumption of intent to retain, in the first case the old, 7 in the
second case the new residence. 8
Evidence that the person voted, 9 or attempted to vote, 10 or that
he refrained from voting, 11 or that he voted elsewhere, 12 or that he
paid 13 or did not pay 14 taxes as a resident, to the State or local
treasury where he was, or that he paid such taxes elsewhere, 13
though not direct evidence of domicile, is competent on the ques-
tion of residence, which is one of the elements in proof of domi-
cile. But such facts are slight evidence, taken into consideration
because of the want of direct or decisive proof ; and their compe-
tency depends on their manifesting his own intent or opinion as
to his residence, not that of the officers of taxation or election. 16
Evidence of acts is not confined to acts contemporaneous with
the alleged change. After proof of actual removal or of declara-
1 See Dupuy v. Wurtz, 53 N. Y. 556. 561, affi'g 64 Barb. 156.
* Hegeman v. Fox, 31 Barb. 475, 478.
3 Oilman v. Oilman, 52 Me. 165. Compare Ennis v. Smith, 14 How. U. S. 400, 421.
4 Lougee v. Washburn, 16 N. H. 134. A declaration of residence, in a convey-
ance, is not conclusive, unless the domicile is one of the causes of the contract. Till-
man v. Mosely, 14 La. An. Rep. 721.
8 Gilman v. Oilman (above).
6 Dupuy T. Wurtz (above). The " intent is manifested by what he does, and by
what he says when doing, and sometimes as significantly by what he omits to do or
to say." THOMAS, J., in Cole v. Cheshire, 1 Gray, 444.
I Jennison v. Hapgood, 10 Pick. 99.
8 Greene v. Greene, 11 Pick. 410.
9 Smith v. Croom. 7 Fla. 81, 158.
10 Guier v. O'Donnell, 1 Binn. 854 n.
II Hitt v. Crosby, 26 How. Pr. 413.
14 Lincoln v. Hapgood, 1 1 Mass. 350.
13 See Mann v. Clark, 83 Vt. 61.
14 Hitt v. Crosby, 26 How. Pr. 413.
16 If the law of the foreign State does not, like the law of the forum, impose taxes
on personalty merely upon residence, it is for the adverse party to show the law in
order to render evidence of having paid taxes in the other State incompetent. Hu-
lett v. Hulett, 37 Vt. 581, 687.
16 Thus, if the registering officers have no authority to register a voter, except on
his application, their testimony, that they decided him to be an inhabitant and reg-
istered him, is incompetent without evidence that he requested it. Fisk v. Chester,
8 Gray (Mass.) 506.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 109
tions of intent to remove, it is competent to prove the character
of the sojourn at either place. 1
It is said that intent must be proved by very satisfactory evi-
dence, 2 especially when the change is to a foreign country, 8 but
this requirement varies according to the transitory or settled
habits of the person.
IX. WILLS.
58. Presumptions, and Burden of Proof as to Intestacy.']
The law never presumes a will 4 in the absence of all evidence;
and in trying the title of an heir, it is not necessary for him to
show that his ancestor died intestate. The intestacy is presumed
until the contrary appears. 5 And mere existence of a will being
shown, the law does not presume that it was a will of real as well
as of personal property. 6
59. Domestic Will proved by producing probate.~\ A will is put
in evidence by showing it to have been duly proved 7 in the probate
or other competent court within the State ; and the mode of due pro-
bate depends on the statutes of the State, which should be careful-
ly consulted. This is now usually the primary and exclusive mode
of proving a domestic will, or a devise of lands within the State.
Under a statute which allows the record, or an exemplification of
the record, to be received in evidence the same as the original, 8
the whole record must be presented or exemplified, that is, the
record of the proofs, 9 as well as of the will itself. 10 The original
record of the surrogate is equally competent ; n and, independent
I See Wilson v. Terry, 11 Allen (Mass.) 206; Crawford v. Wilson, 4 Barb. 523.
So, to show that a removal before suit brought wns with intent to take up a domi-
cile, evidence is competent that it was continued after so brought, and down to the
time of trial ; for these facts, although occurring pending the action, are compe-
tent as throwing light upon the character of the previous fact. Hulett v. Hulett, 37
Vt. 581, 585.
* Donaldson v. McClure, 20 Scotch Sess. Cas. 2d ser. 307, 321, affi'd in 3 McQ.
852.
3 Moorhouse v Lord, 10 Ho. of L. 283.
4 Duke of Cumberland v. Graves, 9 Barb. 595, 606.
6 8 Washb. R. P. 18 (37). Because it is the negative (Lyon y. Rain, 36 HI. 368);
and because the lw entitles heirs to rest on the right of inheritance until a will is
proved. Delafield v. Parish, 26 N. Y. 9.
8 Duke of Cumberland v. Graves (above). The contrary held after probate, in
Stevenson v. Haddleson, 13 B. Monr. (Ky.) 299.
* A copy of the decree of probate, not the mere certificate of the clerk that the
will has been proved, is the proper evidence. Creasy v. Alverson, 43 Mo. 13. At
common law, the will itself is the primary evidence as to lands; the probate the
primary and exclusive evidence as to personalty.
8 2 N. Y. R. S. 68, 15; L. 1860, c. 94; L. 1861, c. 12 ; but contra in N. Y. as to
wills proved before 1830. L. 1871, c. 361. In Pennsylvania, probate without the
proofs is held prima facie evidence. Kenyon v. Stewart, 44 Penn. St. 188.
* Including the sworn petition, if any. Bolton v. Jacks, 6 Robt. 166.
10 Morris v. Keyes, 1 Hill, 640; Caw v. Robertson, 5 N. Y. 125 ; Ackley v. Dy-
gert, 33 Barb. 17G; Marr v. Gilliam, 1 Coldw. 488, 612; Bright v. White, 8 Mo. 422,
427-
II EUlen v. Keddell 8 East, 187.
110 ACTIONS BY AND AGAINST
of statute, would be so on proof that the original will was lost. 1
If from the record, including the sworn petition for probate, if
one was presented, jurisdiction appears on the face of the pro-
ceedings, the authority for record ia prima facie established, and
the will and record are admissible in evidence without further
proof aliunde? If it affirmatively appear by them that the will
was not duly proved, as, for instance, where it was admitted on
the oath of one of the subscribing witnesses, without accounting
for the others, the probate is not evidence. 8 The proofs are,
however, required only for authentication ; they do not become
evidence in the cause for other purposes. 4 Without the probate,
the will itself as a title to property, or as giving a right to the
executor or administrator to sue, cannot be received in evi-
dence. 5
60. Decree of Probate Court, how far conclusive.'] The decree
of a surrogate having jurisdiction of the subject, declaring a will of
personalty duly executed, is conclusive evidence thereof, against all
the world, in a collateral action, as to personalty. 6 But as to real
property the probate of a will containing a devise was not, at com-
mon law, any evidence whatever of its execution; and the American
statutes making it competent evidence do not, without express lan-
guage or necessary implication, have the effect to make it conclu-
sive, but only prima facie evidence. The effect of the probate,
whether conclusive (as it always is as to personalty, and under
some statutes is as to realty), or prima facie (as usually in respect
to realty), extends to all points peculiar to the testamentary act,
and which were necessarily determined, including the capacity of
the testator, in respect of ae;e, 7 coverture or non-coverture, 8 sound-
ness of mind, 9 the form an3 mode of execution, 10 the competency
of witnesses/ 1 and the weight of the evidence upon these points. 12
1 Jackson v. Lucett, 2 Cai. 363.
1 Bolton v. Jacks, 6 Robt. 166. As to presumptions in favor of due notice, <fec.,
see Marcy v. Marcy, 6 Mete. (Mass.) 360; Bolton v. Brewster, 32 Barb. 389.
8 Staring v. Bowen, 6 Barb. 109. And see Thompson v. Thompson, 9 Penn. St.
234. Contra, Tel ford v. Barney, 1 Greene (Iowa), 675; Stevenson v. Huddleson, 13
B. Monr. (Ky.) 299.
4 Nichols v. Romaine, 3 Abb. Pr. 122.
6 Graham v. Whitely, 26 N. J. L. 254 ; Thorn v. Shiel, 15 Abb. Pr. N. S. 81 ; 1
"VVhart. Ev. 78, 66, and cases cited. And see Broderick's Will, 21 Wall. 503.
6 Vanderpoel v. Van Valkenburgh, 6 N. Y. (2 Seld.) 190; Matter of Kellum, 50
Id. 298; Colton v. Ross, 2 Paige, 396; Muir v. Trustees of Leake <fe Watts Orphan
House, 3 Barb. Ch. 477. See also Clark v. Bogardus, 4 Paige, 623. This is so at
common law, and also by express statutes usual in the American States.
I Howard v. Moot, 64 N. Y. 262, affi'g 2 Hun, 475. Otherwise where the age for
devising real property was not necessarily determined. Dickenson v. Hayes, 31
Conn. 417.
8 Cassels v. Vernon, 6 Mas. 332 ; and see Picquet v. Swan, 4 Mas. 443.
9 Poplin v. Hawke, 8 N. H. 124 ; Osgood v. Breed, 12 Mass. 531.
10 Vanderpoel v. Van Valkenburgh (above).
II Fortune v. Buck, 23 Conn. 1.
" Holliday v. Ward, 19 Penn. St. 490 ; Holman v. Riddle, 8 Ohio St. 384 ; Jour-
den v. Meier, 31 Mo. 40; Taylor v. Burnsides, 1 Gratt. (Va.) 165. Contra, Ferguson
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. Ill
It is also evidence conclusive or prima facie, as the case may be,
in respect to the contents of the will, except that for the pur-
Eoses of construction or interpretation, so far as that may appear
rom the grammatical skill or the accuracy of the writer in punc-
tuation, parenthetical clauses, mode of writing, and the like, which
are never perfectly reproduced in a copy, the court may, even
when the probate is conclusive, examine the original, 1 and for this
purpose production of the original may be compelled by subpoena
duces tecum? The probate, however, does not determine the
legality of the dispositions of the will. In those States where the
probate is only prima facie evidence as to realty, it may be im-
peached by evidence to the contrary as to capacity or execution, or
on the weight of evidence, 3 even by parties who were parties to the
probate proceedings. 4 Where probate would not be conclusive
in favor of a will, a decree of the probate court rejecting the will
is not conclusive against it. 5 Where probate would be conclusive
in its favor, rejection is conclusive against it. 6 In any case, the
jurisdiction, over the subject, of the surrogate whose decree is pro-
duced may be impeached, and in a case of personal property
where this is done, as well as in all cases of real property, the
validity of the will may be questioned. 7
61. Formalities of Execution. When proof of execution is
necessary, it must appear, 1. That the will was subscribed by the
testator, at the end ; that is to say, after, and in reasonable prox-
imity to the last clause ; 2. That it was subscribed by the testator
in the presence of each of at least two witnesses, or that it was
acknowledged by him to have been made, to each of such attest-
ing witnesses, or to such of them as were not present at the mak-
ing of the subscription ; 3. That at the time of making such sub-
scription, or at the time of acknowledging the same, or both, if
subscribed in presence of one and acknowledged after subscrip-
tion to the other, he declared in the presence of both witnesses,
or in the presence of each, that the instrument was his will ; 4.
That each of at least two such witnesses signed his name as a
v. Hunter, 7 111. (2 Gilm.) 657; Hale v. Monroe, 28 Md. 98. See also, as to probate
by less than the statutory number of witnesses, paragraph 59, note 8.
1 1 Wins. Exr. 6th Am. ed. 637, n. citing Manning v. Purcell, 24 L. J. Ch. 623, n.
3 Redf. on W. 62 (8) and n.
8 See Kenyon v. Stewart, 44 Penn. St. 179, unless deposited in the probate court,
pursuant to law. Randall v. Hodges, 8 Bland (Md.) 477.
8 See Staring v. Bowen, 6 Barb. 109 ; Rowland v. Evans, 6 Penn. St. 435 ; Holi-
day v. Ward, 19 Id. 490 ; Kenyon v. Stewart, 44 Id. 179. The opposing party may
even show statements mado out of court by one of the subscribing witnesses, in order
to contradict the statements of such witness in the record of the proofs before the
surrogate, as to the due execution of the will. Otterson v. llofford, 86 N. J. (7 Vroom)
129, s. o. 13 Am. R. 429. See note 8 (below).
4 Bogardus v. Clark, 4 Paige, 623.
5 Smith v. Bonsall, 6 Rawlo (Penn.) 80.
6 Picquet v. Swan, 4 Mas. 461.
T Redt Surr. Pr. 110; Code of 1877, 2473.
112 ACTIONS BY AND AGAINST
witness at the end of the will, at the testator's request. Any of
the acts thus required of the testator may be done by another, in
his presence and by his direction or manifested approval : and the
order in which they are to be done is not material, except that
the testator must subscribe before the witnesses do. 1 On a trial
in an action at law, the execution may be proved by one witness,
if he is able to prove perfect execution ; a but if he can only prove
his own signature, the other witnesses, if living, must be pro-
duced, or, if they are dead, their handwriting and that of the tes-
tator must be proved ; and it is then a question of fact, whether,
under all the circumstances, all the requisites of the statute are
to be deemed complied with. 8 The testimony of the subscribing
witnesses, whether in support of or against the will, is not con-
clusive, but is liable to be rebutted by other evidence, either
direct or circumstantial. 4 But the rebutting proof should be
clear. 5 The signature of a deceased witness to a full attestation
clause is not alone enough, against the positive testimony of a
surviving witness. 6 But a full attestation clause may after the
lapse of time be enough as against the entire forgetfulness of the
witnesses. 7 The subscribing witnesses are subject to same rules
as to contradiction and impeachment as other witnesses. 8 The
conduct and declarations of the testator at the time of the execu-
tion are competent upon the question of execution, and its intelli-
gence and freedom, because a part of the res gestce; but his pre-
vious or subsequent conduct and declarations are not competent
upon this question, 9 except within the limits below stated as to
1 These rules, which state the requisites under the New York statute, ore from
Redf. SUIT. Pr. 76. The statutes in the various States vary more or less.
2 Cornwall v. Wooley, 1 Abb. Ct. App. Dec. 441. Otherwise, perhaps, in an ac-
tion in equity to establish the will. Thornton v. Thornton, 39 Vt. 122, s. c. 6 Am.
L. Reg. N. S. 841.
3 Jackson v. Le Grange, 19 Johns. 386 ; Jackson v. Yickory, 1 Wend. 406.
4 Orser v. Orser, 24 N. Y. 51 ; Theological Seminary of Auburn v. Calhoun, 25
N. Y. 422, reVg 88 Barb. 143 ; s. P. Peck v. Cary, 27 N. Y. 9, affi'g 38 Barb. 77 ; and
see 25 N. Y. 425, note, and cases cited.
B Redf. Surr. Pr. 98.
6 Orser v. Orser (above).
7 Nelson v. McGiffert, 8 Barb. Ch. 158.
8 Peebles v. Case, 2 Bradf. 226 ; Losee v. Losee, 2 Hill, 609. And as to weight of
testimony, see Thornton v. Thornton, 89 Vt. 122, s. c. 6 Am. L. Reg. N. 8. 841;
Stevens v. Van Cleve, 4 Wash. C. Ct. 262; Turner v. Cheeseman, 15 N. J. Eq. 243.
But evidence of the bad character of a deceased subscribing witness is not admissible.
Boylan ads. Meeker, 4 Dutcher, 275. Whether his declarations of opinion as to the
insanity of testator are admissible, compare Scribner v. Crane, 2 Paige, 147; Baxter
v. Abbott, 7 Gray (Mass.) 71 ; Beaubien v. Cicotte, 12 Mich. 459. The party calling
the subscribing witness to support the will, may impeach his testimony unfavorable
to the will, by proof of his declarations of fact in its favor, though not by declara-
tions of contrary opinion, nor by attacking hig veracity generally. Thornton v.
Thornton (above). Compare Fulton Bank v. Stafford. 2 Wend. 483 ; and, as to con-
trary opinions, Schell v. Plumb, 55 N. Y. 592, affi'g 16 Abb. Pr. N. S. 19.
'Waterman v. Whitney, 11 N. Y. 172; Boylan ads. Meeker (above). Compare
Sugden v. Ld. St. Leonards, L. R. 1 Prob. Div. 154, 227.
HEIRS AND NEXT OF K.IN, DEVISEES AND LEGATEES. 113
mental capacity and undue influence. 1 Proof of due execution
raises a sufficient presumption of knowledge of the contents, un-
less circumstances of suspicion exist, for instance, where the
will was drawn up by a devisee. In such case he must give
affirmative evidence that the testator knew its contents, and that
it expressed his real intentions. Any evidence is sufficient which
shows that he had full knowledge of the contents, and executed
it freely and without undue influence. 2 So where the testator is
shown to be unable to read, there should be some evidence that
he knew its contents. The will cannot be shown to be void by
parol proof that dispositions which the testator directed to be in-
serted were omitted by the mistake of the scrivener. For the
purpose of determining the genuineness of the will, the circum-
stances attending its production, the history of its custody, and
the declarations of its custodian made during the custody, are
competent. 3 The genuineness of signatures may be proved by
the opinion of any witness who has at any time seen the person
write, or who has received documents purporting to be written
by the person, in answer to documents written by himself, or
under his authority, and addressed to the person, or to whom, in
the ordinary course of business, documents purporting to be
written by the person have been habitually submitted. 4 But it
cannot be proved by the opinion of an expert, unless he is
acquainted with the handwriting, nor can his opinion be re-
ceived on a comparison of handwritings, unless the signature
produced is attached to papers otherwise in evidence, and mate-
rial to the issue, or admitted to be genuine. 5 Photographic copies
of a signature are not admissible to aid the expert. 6
62. Testamentary Capacity^ The burden of proving to the
satisfaction of the court that the paper in question does declare
the will of the deceased, and that the supposed testator was, at
the time of making and publishing the document propounded
as his will, of sound and disposing mind and memory, 8 is on the
1 Paragraphs 63 and 70. And except, perhaps, if part of the res gestce of his
custody of the will (see paragraph 75, note 9, below), or to rebut evidence impeach-
ing the genuineness of the signature (Taylor Will Case, 10 Abb. Pr. N. S. 306), or
where the declarations are offered to support or rebut evidence of his ignorance of
its contents (Davis v. Rogers, 1 Houst. 44; Redf. on Wills, 567).
s Lake v. Ranney, 33 Barb. 49, and cases cited ; see Harrison v. Rowan, 3 Wash.
C. Ct. 580 ; Comstock v. Hadlyme, 8 Conn. 254.
8 Boylan ads. Meeker, 4 Dutcher, 275, s. p. Nexsen v. Nexsen, 3 Abb. Ct. App.
Dec. SCO. Subject, however, to the professional privilege, if any exist Taylor Will
Case, 10 Abb. Pr. N. S. 300. See N. Y. Code Civ. Pro. 833-836; 3 Wall. 176,
192; Redf. Surr. Pr. 101.
4 See pp. 393-7 of this vol.
6 This is the New York rule. Johnson v. Hicks, 1 Lans. 150, 162. The English
rule allows irrelevant documents to be proved and submitted to the jury fur purpose
of comparison. Steph. art. 52 ; 1 Greenl. $ 681.
Taylor Will Case, 10 Abb. Pr. N. S. 300.
7 As to age, see paragraphs 27-30.
8 For the test m case of delusion, see Banks v. Goodfellow, L. R. 6 Q. B. 649 ;
Van Guyeling v. Van Keuren, 36 N. Y. 70 ; Clapp v. Fullerton, 34 Id. 190 ; Bonard
8
114: ACTIONS BY AND AGAINST
party undertaking to establish the will ; and this burden is not
shifted during the progress of the trial, and is not removed by
proof of the formal execution of the will and the testamentary
competency, by the attesting witnesses, but remains with the
party setting up the will. 1 The ordinary presumption of sanity
does not alone suffice to dispense with all evidence on the point.
Slight evidence, however, is sufficient to go to the jury. 2
After the formal and usually slight evidence of mental
capacity has been given, if evidence to the contrary is adduced
by those resisting the will, it is in the discretion of the court, if
riot a matter of right, that the party alleging the will may give
cumulative evidence of capacity, &c., in rebuttal. 3 Evidence
that incapacity of a continuing nature previously existed (within
reasonable limit of time), is sufficient to raise a presumption of
its existence at the time of execution, which must be rebutted
by affirmative evidence. 4 Evidence of the existence of such in-
capacity, at a time subsequent to the execution of the will, is
competent in case of idiocy, and is competent in other cases if
sufficiently near in point of time to raise a presumption (in con-
nection with other evidence, and when the nature of the defect
is considered) that it existed at the time of execution ; but is not
competent except on that ground. 5
A general or continuing insanity having been shown within a
reasonable time prior to the act, the burden is thrown upon the
other party to show a lucid interval at the time of the act. 6 Evi-
dence of cessation of the symptoms is not enough, but there
must be evidence of sufficient restoration to act intelligently and
"Will Case, 16 Abb. Pr. N. S. 128; Dunham's Appeal, 27 Conn. 192; Boughton v.
Knight, L. R. Prob. & D. 64, 68; Duffield v. Morris, 2 Harr. (Del.) 3*75; Stack-
house v. Horton, 15 N. J. Eq. 202; Redf. Am. Cas. on L. of Wills, 384. For the
test in case of imbecility or mental weakness, see Delafield v. Parish, 25 N. Y. 9, 27,
29, overruling Stewart v. Lispenard, 26 Wend. 225. Whether it be deemed that a
will requires greater capacity than a contract (as said in Boughton v. Knight, above,
which is usually sound as to mere question of mental capacity), or that a contract
requires greater capacity than a will (as said in Harrison v. Rowan, 3 Wash. C. Ct.
686; Kinne v. Kinne, 9 Conn. 102; Converse v. Converse, 21 Vt. 168, which may be
true on a question of weakness in case of undue influence), the question whether
testator had capacity for contracts or other transactions, civil or criminal, is not
relevant, except so far as the facts adduced show testamentary incapacity or suscept-
ibility to undue influence. See Dew v. Clark, 1 Hagg. EC. 311.
1 Delafield v. Parish (above); Redf. Am. Cas. on L. of Wills, 4. Contra, Id. 28,
and Higgins v. Carlton, 28 Md. 115. As to the right to open and close, see Brooks
v. Barrett, 7 Pick. 94 ; Comstock v. Hadlyme, 8 Conn. 254 ; Taylor Will Case, 10
Abb. Pr. N. S. 300.
8 Id. ; and 1 Wms. on Exrs. 6th Am. ed. 24-30, and notes reviewing conflicting
cases.
3 Taylor Will Case, 10 Abb. Pr. N S. 300 ; and see Redf. Am. Cas. on L. of
Wills, 82.
4 See Clark v. Fisher, 1 Paige, 171, and cases cited; and Smith v. Tebbett, L. R.
1 P. <fe D. 398.
8 Stevens v. Van Cleve, 4 Wash. C. Ct. 262. Compare Terry v. Buffington, 11
Geo. 342.
' Dicken v. Johnson, 7 Geo. 488, and cases cited.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 115
freely. 1 The reasonableness and good sense of the will itself, 2
and the mode in which it was executed, 8 are competent evidence
of the existence of a lucid interval when it was made. In the
case of drunkenness, the evidence must be directed to the partic-
ular moment, so as to show that the testator was so excited by
liquor, or so conducted himself during the act, as to be at the
moment legally disqualified ; 4 or there must be evidence of con-
firmed derangement caused by habitual indulgence. 5 The fact of
being deaf and dumb does not now raise a legal presumption of
mental incapacity ; 6 but necessitates stricter proof of open dealing
and intelligent assent. Old age alone does not incapacitate. 7
63. Conduct and Declarations of Testator, .] On the question
of mental condition, whether raised as to unsoundness or undue
influence, the conduct and declarations of the testator, both be-
fore and after execution, are competent to show capacity or in-
capacity, if they tend to show its existence at the time of execu-
tion, 8 but not otherwise. 9 A sudden change to excentric and
peculiar habits is cogent evidence of insanity. 10 Suicide is not
conclusive evidence of insanity. 11 The testator's correspondence,
his manner of conducting business, &c., are competent. 12 The
fact that others dealt with him as sound or unsound of mind, is
competent when adduced merely to lay a foundation for evidence
of the manner in which he received such treatment, but not
otherwise. 13
His declarations, if not part of the res gestce of execution,
must be offered not as his statement of facts of fraud or undue
influence, for in this respect they are hearsay and incompetent,
but as statements which, independent of their truth or falsity,
disclose his state of mind, strength or weakness of will, inde-
pendence or infirmity of purpose, capacity or imbecility. What
1 Lucas v. Parsons, 27 Geo. 693; Boyd v. Eby, 8 Watts (Penn.) 66; Ex parte
Holyland, 11 Ves. 10.
2 Cartwright v. Cartwright, 1 Phillira. 90, as qualified in Banks v. Goodfellow, L.
R. 6 Q. B. 549, and Gombault v. Pub. Admr. 4 Bradf. 226.
3 Hall v. Warren, 9 Ves. 605, 8. c. Ewell's Cases, 702.
* Peck v. Cary, 27 N. Y. 9.
5 Gardner v. Gardner, 22 Wend. 526.
Christmas v. Mitchell, 3 Ired. Eq. 535, 541. '
7 Collins v. Townley, 21 N. J. Eq. 853.
I Boylan ads. Meeker, 4 Dutcher, 274.
Kinne v. Kinne, 9 Conn. 104.
10 Lucas v. Parsons, 27 Geo. 593.
II Brooks v. Barrett, 7 Pick. 94; and see Burrows v. Burrows, 1 Hagg. 109, 148.
19 Harper v. Harper, 1 N. Y. Supm. Ct. (T. <fc C.) 851 ; s. P. United States v.
Sharp, 1 Pet. C. Ct. 118; Irish v. Smith, 8 Serg. A R. 578.
13 Thus letters written to him, even by persons since deceased, are not competent
evidence as to his mental soundness, unless his conduct in reference thereto is shown.
The fact that they were found in his possession is not enough. Doe d. Wright v.
Tatham, 5 Clark <fe F. 670; 7 Ad. <fe E. 813. But a witness may testify that he waa
told by the wife in the husband's presence that he did not attend to business, he was
incapable, and that he said nothing. Irish v. Smith, 8 Serg. & R. 578.
116 ACTIONS BY AND AGAINST
the testator said, the law does not credit, for it is unsworn ; but
the fact that he said it, the law receives, because to ascertain his
state of mind we must hear how he talked, and read what he
wrote. His declaration is not evidence of the fact declared, but
it is evidence of the state of mind from which the declaration
proceeded. 1 With this purpose, great latitude is allowed in the
admission of such evidence. 2 The rule allows previous as well as
subsequent declarations as to testamentary intentions to be received
in evidence. 8 The weight of the declarations depends on their prox-
imity in point of time to the act, and on whether they were before
or after it. Declarations before the act are more pregnant of
presumption than those made after it; and a state of weakness
shown to exist before the act, being presumed to continue, affords
more influential evidence than if only shown to exist after the act,
because it is possible that the wealoiess might have intervened. 4
Unreasonableness of a will is, alone, no evidence of incapacity ; 5
but in connection with evidence of mental unsoundness, or of
weakness and influence, or intoxication, it is to be considered in
corroboration or rebuttal of those allegations; and, in such
case, evidence of the situation of the family and property is com-
petent for the purpose of throwing light upon the reasonableness
of the will. 6 In proportion as the will departs from reasonable
and natural division of the estate, evidence of mental competency
and evidence to rebut circumstances tending to show undue influ-
ence becomes necessary.
64. Opinions as to mental soundness.] On the question of
the testator's mental capacity, a Subscribing witness may state the
opinion which, at the time of the execution, he formed. It is
not necessary that he should first state the facts upon which he
formed this impression. 7 The fact that he was an attesting wit-
ness gives the right to ask his opinion. All the facts and cir-
cumstances seen or known by the witness at the time may be
brought out on direct or cross-examination ; 8 but the opinion is
not excluded, even if the facts engendering it have been for-
gotten. 9
An Expert 10 may testify directly as to the mental capacity, in
1 Waterman v. Whitney, 11 N. Y. 157.
* Robinson v. Adams, 62 Me. 369, s. c. 16 Am. R. 473.
3 Tunison v. Tunison, 4 Bradf. 138; Dennison's Appeal, 29 Conn. 399; Den v.
Vancleave, 5 N. J. L. (2 South.) 589. Even the draft of a former will more or less
similar, directed or approved, though not executed by the testator, ia competent.
Thornton v. Thornton, 39 Vt. 122, s. c. 6 Am. L. Reg. N. S. 341.
4 See 1 Redf. on Wills, 1 36-163, 548.
8 Munday v. Taylor, 7 Bush (Ky.), 491 ; Ross v. Christman, 1 Ired, L. 209.
6 Per WALWOBTH, Ch., Betts v. Jackson, 6 Wend. 175.
7 Robinson v. Adams, 62 Me. 369, B. c. 16 Am. R. 473.
8 Id.
9 Clapp v. Fullerton, 34 N. Y. 190.
10 The question whether the witness is an expert is not in the discretion of the
judge, but is a question of law on the facts concerning qualifications. Baxter v. Ab-
HEIRS AND NEXT OF KTN, DEVISEES AND LEGATEES. 117
either of three ways : 1. If he had adequate opportunities of per-
sonal examination of the testator, he may state his opinion positive-
ly, based upon his personal knowledge of the facts, but not upon
hearsay, 1 nor upon conflicting testimony in the cause. 8 2. An ex-
pert who has heard all 3 the testimony adduced upon the trial
bearing on the question, may, if it is not conflicting, give his
opinion on the question, what the facts sworn to, if true, would
indicate as to the mental condition. 4 3. An expert may be asked
what a supposed state of facts, put to him hypothetically, but
corresponding in details to the facts already in evidence, would
indicate as to the mental condition. 5 When the evidence involves
conflict, the opinion, if not based wholly on personal examination,
should be drawn out by an hypothetical question, having refer-
ence to the facts in evidence on one side or both, or on each side
separately. 6 The expert is not to be substituted for the jury ;
but so long as the question is framed according to the principles
here stated, it can be no objection to it that the issue and the
other evidence is such that the question to be submitted to the
jury must call for the same answer. An expert may also, within
limits not very well defined, be asked general questions upon the
laws of mental disorder, decay, or imperfect development, rele-
vant to the case, or upon the consistency with each other of al-
leged symptoms, for the purpose of enhancing the qualifications
of the court or jury to weigh and apply the evidence ; and, on
cross-examination, he may be interrogated generally for the pur-
pose of testing his qualifications. 7
An Ordinary witness (that is to say, any witness other than
an expert or subscribing witness) may testify to facts and cir-
cumstances within his own knowledge bearing on the question of
mental capacity ; and after he has stated them, if they show reason-
able means of forming an impression, 8 he may be asked, either on
bott, 7 Gray (Mass.) 71. An educated, practising physician, who attended the testa-
tor, is competent, though not specially conversant with insanity ; and, in a case of
gradual decay, the family physician's opinion is more cogent than that of a stranger
who is a specialist. Id.
1 The better opinion is that, under this rule, a medical witness must give the facts
on which his opinion is founded, in connection with his opinion, lftho.se facts neces-
sarily include information given him by the attendants of the patient, his opinion is
not competent, for those communications are hearsay. Heald v. Thing, 45 Me. 896,
a. P. Wetherbee v. Wetherbee, 38 Vt. 464.
* Woodbury v. Obear, 7 Gray (Mass.) 467, 471.
8 People v. Sanchez, 22 N. Y. 147, 154.
4 Redf. Surr. Pr. 103; People v. Lake, 12 N. Y. 358; Commonw. v. Rogers, 7
Mete. 500.
4 Bonard's Will, 16 Abb. Pr. N. S. 128.
6 Woodbury v. Obear (above). This is the better mode of inquiry than referring
to the testimony. See Dexter v. Hall, 15 Wall. 14, 26.
7 The principal elements of qualification, apart from personal examination of the
testator, are knowledge of the subject of mental disorder, experience in de.iling with
it, freedom from any peculiar abstract theory, and from conceit. The fact of receiv-
ing large compensation for testifying is not in itself derogatory to the '.vitnes-". Peo-
ple v. Montgomery, 13 Abb. Pr. N. S. 209.
8 An opinion of an ordinary witness is competent in connection with the facts ob-
118 ACTIONS BY AND AGAINST
direct or cross-examination, the impression as to mental sound-
ness made on his mind at the time by the acts and declarations
of the testator to which he has testified, and may characterize
them as rational or irrational ; * but he cannot express an opinion
on the general question, whether the mind of the testator was
sound or unsound, 8 nor testify to his opinion, or to impressions
made upon his mind, independently of stating the facts and cir-
cumstances. 3 Nor can he be asked the broad question whether
the testator was of sound and disposing mind, or its equiva-
lent in any form. The question must be so framed as not to em-
brace the law of the case. 4 But where the alleged incapacity
is imbecility, as distinguished from delusion, such a witness
may be asked to state the character of the testator in respect to
decision and independence, and whether he appeared capable of
attending to business, 5 all such statements being preceded by a
statement of the facts. Such a witness cannot, either on direct
or cross-examination, be asked his opinion on a hypothetical
question. 6 Such a witness is, however, competent to testify
whether testator was sick or well, 7 able to help himself, or re-
served by him, although founded on observation at a single interview, and of which,
notwithstanding a general impresaion of mental quality, he remembers no distinct
marked act of folly or childishness. Clary v. Clary, 2 Ired. 78 ; Potts v. House, 6
Geo. 324.
1 Clapp v. Fullerton, 34 N. Y. 190. A witness giving facts may say, "His coun-
tenance indicated childishness." The expression of countenance is matter of fact,
though depending in some measure on opinion. Irish v. Smith, 8 Serg. & R. 678,
s. P. De Witt v. Barley, 17 N. Y. 340, 350. A witness having testified to facts was
allowed to say, "His insanity manifested iteelf in hostility to myself," this being re-
garded rather as a general statement of fact, than an opinion. Pelamourges v. Clark,
9 Iowa, 17.
2 Clapp v. Fullerton (above). Compare Pidcock v. Potter, 68 Penn. St. 842, s. o.
8 Am. R. 181. An answer by an ordinary witness, that he observed nothing peculiar,
did not observe any failure of mind being a mere negation, does not amount to an opin-
ion which it is error to receive. Robinson v. Adams, 62 Me. 369, s. c. 16 Am. R. 473.
8 Hewlett v. Wood, 55 N. Y. 634; Cram v. Cram, 83 Vt. 15; Dicken v. Johnson,
7 Geo. 484, and cases cited; Hickman v. State, 88 Tex. 190. Contra, Beaubien v.
Cicotte, 12 Mich. 459, and State v. Pike, 61 N. H. 105, s. c. 11 Am. L. Reg. N. S. 233,
where the cases are reviewed, and it is held that the opinion is competent on direct,
leaving the facts to be brought out on cross-examination. See farther on this
subject Brooke v. Townshend, 7 Gill, 10, 27; Dunham's Appeal, 27 Conn. 192. It
has been said, in a criminal case, that the circumstances must be such as to have
afforded the opportunity to form an accurate judgment as to the existence or non-
existence of the disease, considered with reference to the character or degree in which
it is alleged to exist. Powell v. State, 25 Ala. 21. But this, if applicable at all to
testamentary causes, must be taken with the qualification that, when the facts and
circumstances are sufficiently connected with the time of execution, the impression
of a casual observer of the conduct and language of the testator may be competent.
The important elements in the weight of the opinion of a non-expert are the intel-
ligence of the witness, experience with the subject, freedom from abstract theories,
and from interest or prejudice, personal acquaintance with the decedent, the nature
and adequacy of the facts stated as the ground of the opinion, and the fidelity of the
witness's memory of those facts.
4 I)eWittv. Barley, 17 N. Y. 847; Deshon v. Merchants' Bank, 8 Bosw. 461.
Contra. Beaubien v. Cicotte (above).
5 Gardiner v. Gardiner, 34 N. Y. 155, 165.
6 Dunham's Appeal, 27 Conn. 192.
1 Higbie v. Guardian Mut. Life, 63 N. Y. 603 ; 66 Barb. 462.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 119
quiring assistance, 1 intoxicated, 2 deaf, dumb, 3 or blind. Common
repute, or the opinion of the neighborhood, is not competent evi-
dence on the question of mental capacity. 4 BooTts, whether writ-
ten by lawyers or physicians, cannot be read to the jury by way
of evidence ; 5 but may, within proper limits, be read and com-
mented on in argument.
65. Hereditary insanity^ Where there is evidence directly
relating to the testator and tending to show insanity in him (as
distinguished from imbecility 6 ), it is competent to show the in-
sanity of a parent or of an uncle. 7
66. Inquisitions and other adjudications^ An inquisition,
if taken on notice to the subject of it, 8 though without notice to
the parties to the present action, is prima facie evidence of tes-
tamentary incapacity during the period expressly 9 overreached
by it pursuant to the statute, and, if a guardian is thereupon ap-
pointed, is conclusive evidence of incapacity from the time of the
finding until further direction of the court, except that a will
may be proved to have been made in a lucid interval. 10
Other adjudications are not conclusive except as between the
parties to them and those claiming under such parties, 11 nor always
even competent then.
A verdict on the mental state on a particular day, is held not
even prima facie evidence of the state on a prior or subsequent
day. 12
67. Undue influence, the burden of proof. ~\ Where no de-
fect of powers on the part of the testator is indicated, the burden
of proving undue influence is on the party alleging it. 13 In such
case the mere fact of the existence of an intimate or fiduciary re-
lation between the testator and the person provided for, does not,
without evidence that the latter exerted some influence in the
I Sloan v. N. T. Central R.R. Co. 45 N. Y. 125.
8 People v. Eastwood, 14 N. Y. 562, affi'g 3 Park. Cr. 25.
8 Rex T. Pritchard, 7 C. <fe P. 303, 805 ; King v. Jones, 1 Leach 0. C. 102.
4 Foster v. Brooks, 6 Geo. 287 ; Lancaster Co. Bk. v. Moore, 78 Penn. St. 407.
Commonwealth v. Wilson, 1 Gray (Mass.) 337. Contra, 5 Cent. L. J. 439.
Compare 1 Wms. Exrs. 6th Am. ed. 415; Pierson v. Hoag, 47 Barb. 243.
6 Shailer v. Bumstead, 99 Mass. 112, 131 ; s. p. Cole's Trial, 7 Abb. Pr. N. S. 321.
7 Baxter v. Abbott, 7 Gray, 71, 81.
8 Hathaway v. Clark, 5 Pick. 490.
9 Rippy v. Gant, 4 Ired. N. C. Eq. 443.
10 The general rule here stated is unquestioned ; the exception is perhaps open to
controversy. See Breed v. Pratt, 18 Pick. 115, and cases cited; Wadsworth v. Sher-
man, 14 Barb. 169, 8 N. Y. 382. Lewis v. Jones, 50 Barb. 645 ; Banker v. Banker,
63 N. Y. 409 ; Hall v. Warren, 9 Ves. 605.
II Gibson v. Soper, 6 Gray, 279 ; Supervisors of Munroe v. Budlong, 51 Barb. 493 ;
Hovey v. Chase, 62 Me. 305 ; and see 1 Whart. <fc St. Med. Jur. 2 ; Bogardus v.
Clark, 1 Edw. 266, 4 Paige, 623.
19 Emery v. Hoyt, 46 111. 258.
13 Tyler v. Gardner, 85 N. Y. 669 ; Baldwin v. Parker, 99 Mass. 79 ; 1 Wms,
Exrs. 72 n. Old age alone ia not sufficient ground for presuming imposition. But-
Isr v. Beuaon, 1 Barb. 526.
120 ACTIONS BY AND AGAINST
making of the bequest, raise the slightest ground for any pre-
sumption of undue influence. 1 Nor, again, does the mere fact
that a beneficiary was the draftsman of the will or gave instruc-
tions for it, raise such a presumption, 2 unless he stood in a fiduci-
ary relation. 3 Nor, again, is the mere fact that a beneficiary
possessed influence and ascendancy not shown to be undue,
enough, even though the will be unreasonable ; 4 although if the
evidence justifies the conclusion that the interfering mind must
have been conscious that an unjust result was being obtained by
personal influence, this evidence of constructive fraud, combined
with the unnatural character of the will, may be enough to shift
the burden of proof. 5 If, however, it is shown that the benefici-
ary and the testator stood in an intimate or fiduciary relation
toward each other, such as that of parent and child, 6 or grand-
child, 7 husband and wife, 8 physician and patient, 9 legal adviser
and client, 10 confessor and penitent, 11 guardian and ward, 12 or agent
and principal, and that the beneficiary 18 drew the will, 14 or gave
the instructions to the draftsman, 15 or was concerned in clandes-
tine execution, 16 the burden of proof is thrown on him.
Where there is evidence of defect in the powers of the testa-
tor, whether it be unsoundness or weakness, 17 or defect of the
senses, 18 then either the fact that the beneficiary exercised influ-
ence to secure an unequal will, 19 or that he stood in a fiduciary
relation above mentioned, and had any agency in framing the
document, 20 or exercised control over the testator, 21 throw upon
the proponent the burden of giving evidence of free and intelli-
gent volition.
1 Parfitt v. Lawless, L. R. 2 P <fc D. 462, 468, s. c. 4 Moak's Eng. 692 ; Bleecker
v. Lynch, 1 Bradf. 458. Otherwise where the formation of the fiduciary relation
was induced by fraud and undue influence. Baker's Case, 2 Redf. Surr. 179.
2 Coffin v. Coffin, 23 N. Y. 9, 13. Compare Barry v. Butlin, 2 Moore P. C. 480, 1
Curt. Ecc. 637.
3 Crispell v. Dubois, 4 Barb. 393; Tyler v. Gardiner, 35 N. Y. 559, 595.
* Kevill v. Kevill, 6 Am. L. Reg. N. S. 79. But as to the ' disposition of juries,
see 1 Redf. on Wills, 3 ed. 527, 37 ; Redf. Am. Cas. on L. of W. 308 n.
5 See Redf. Am. Cas. on L. of W. 504 n. and cases cited.
9 Tyler v. Gardiner (above).
* See Carrol v. Norton, 3 Bradf. 291.
8 Baker's Case, 2 Redf. Surr. 179, and cases cited ; Delafield v. Parish (above).
* Ashfield v. Lomi, L. R. 2 P. A D. 477, 8. c. 4 Moak's Eng. 700.
10 Wilson v. Moran, 3 Bradf. 172.
11 See McGuire v. Kerr, 2 Bradf. 244; Parfitt v. Lawless (above).
12 See Limburger v. Rauch, 2 Abb. Pr. N. S. 271 ; Matter of Paige, 62 Barb. 476.
13 Or the husband or wife of such an one. Mowry v. Silber, 2 Bradf. 133 ; Lansing
v. Russell, 13 Barb. 610.
14 Crispell v. Dubois,, 4 Barb. 393.
15 Delafield v. Parish (above).
16 Ashwell v. Lomi (above).
" See Tyler v. Gardiner (above).
18 See Lansing v. Russell, 13 Barb. 610.
19 Harrel v. Barrel, 1 Duvall (Ky.) 203 ; Redf. Am. Cas. on L. of W. 505 n.
s See Lee v. Dill, 11 Abb. Pr. 214, and cases above cited in notes 6 to 16.
J1 Fonnan v. Smith, 7 Lans. 443, 450, and cases cited.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 121
68. Indirect evidence.] Undue influence may be shown by
indirect or circumstantial evidence ; l and BO may the freedom of
the testator ; for suspicious circumstances, which change the bur-
den of proof, do not alter the mode of proof, but require the
court to be vigilant in enforcing the rule. 8
Opportunity and interest, however, are not alone enough to
sustain a finding of undue influence. 8 The evidence must justify
the conclusion of a present constraining operative power upon
the mind at the time of the act. Influence long before^ or
after 5 the act, is not alone enough, but may, in connection with
other circumstances, raise a presumption of its existence at the
time. 6
69. Relevant Facts.'} On either side of the question of undue
influence a very wide range of inquiry is allowed. 7 Evidence of
the disposition and mental qualities of the testator; 8 his condi-
tion at the time ; 9 his manifestation of feeling toward those bene-
fited, 10 and toward those cut off ; u their situation in life ; K the tes-
tamentary intentions the testator entertained before he was sub-
jected to influence ; 13 the circumstances of the preparation of the
instrument ; H the influence exercised, by the party charged, over
the testator in other matters ; 1S and the personal relation sustained
by them ; 16 is all competent. It is also competent to show that
I Marvin v. Marvin, 3 Abb. Ct. App. Dec. 192.
4 1 Wms. on Exrs. 6 Am. ed. 147, and n. 149.
8 Seguine v. Seguine, 3 Abb. Ct. App. Dec. 191 ; Cudney v. Cudney, 68 N. Y. 148.
Many authorities as to what is sufficient evidence of undue influence, may be found
in the cases arising on deeds and other contracts between the living ; but these lay
down too stringent rules to be applied against a beneficiary under a will. The law
allows a person standing in a fiduciary relation to use a degree of influence to obtain
a bequest which he cannot use to obtain a grant. Parfitt v. Lawless, L. R. 2 P. <fc D.
462, 468, s. c. 4 Moak's Eng. 693.
4 McMahon v. Ryan, 20 Penn. St. 329.
5 Eckert v. Flowery, 43 Id. 46.
* 1 Wins, on Exrs. 6 Am. ed. 72.
7 Redf. on W. 3d ed, 636, 51 ; Beaubien v. Cicotte, 12 Mich. 459 ; 1 Wms. Exrs,
6 Am. ed. 74 n.
a Belief in witchcraft, ghosts, spiritualism, <fec., in connection with evidence of
feeble mind, is competent on the question of undue influence. Woodbury v. Obear,
7 Gray (Mass.), 467, SHAW, C. J. Compare Robinson v. Adams, 62 Me. 369.
9 Directions given by his physician, since deceased, competent as part of resgestce,
Platt v. Platt, 58 N. Y. 648.
10 Beaubien v. Cicotte, 12 Mich. 459.
11 Lewis v. Mason, 109 Mass. 169; Fairchild v. Bascomb, 35 Vt. 417.
18 Thus their poverty, and his knowledge of the intemperance of the sole legatee
is competent. Fairchild v. Bascomb, 35 Vt. 417.
II Cases in note 4 (below). As to declarations after it ceased, see 1 Redf. on
Wills, 651 ; and note 4 (below).
14 Benubien v. Cicotte, 12 Mich. 459.
15 Evidence of instances in which tho person charged with undue influence exer-
cised controlling authority over the testator by imperious language, to which the tes-
tator submitted, is competent. Lewis v. Mason, 109 Mass. 169. And evidence of
other transfers of property obtained by the same person, and the testator's forgetful-
ness of them, is competent. Lewis v. Mason, 109 Mass. 169.
16 The unlawful cohabitation of a testator with the mother of an illegitimate child,
122 ACTIONS BY AND AGAINST
the party charged knowingly made false statements that he was
ignorant of the existence of the will, or that its contents were
less favorable to him than in fact they were. 1
70. Declarations and Conduct of Testator.'] When there is
evidence tending to show fraud or undue influence, then the con-
duct and declarations of the testator not only at the time of exe-
cution, but before and after ; are relevant for the purpose of
manifesting his mental qualities and disposition, and consequent
susceptibility to the fraud or undue influence; 2 his intelligent
understanding of the will made ; his testamentary intentions ex-
isting before he was subjected to the influence, 8 and his satisfac-
tion or dissatisfaction with it after the influence was removed. 4
It seems to be now considered that a declaration which is compe-
tent for throwing light on the testator's mind is not to be ex-
cluded merely because it includes his narratives of menace, or
confessions of fear, or acknowledgments of submission to pres-
sure or urgency, or even his statement that the will previously
made was not freely or not intelligently executed ; but that all
that is requisite to the competency of the declarations is that they
be of a nature to manifest the mental quality, and be sufficiently
approximate in point of time to throw light on the mental qual-
ity at the time of execution ; and the jury are to be directed not
to regard them as evidence of the fact declared. 5 In other
words, the declarations of the testator as to the acts or influence
of others are not, alone, competent evidence of such acts or in-
fluence, 6 except when part 01 the res gestce? or so far as made in
the presence of the parties against whom they are adduced;
although, when the acts are proved, the declarations of the testa-
a legatee in the will, is not of itself sufficient evidence to justify a jury in finding un-
due influence on the part of the mother. Rudy v. Ulrich, 69 Penn. St. 177, s. c. 8
Am. R. 238. But if the relation of intimacy was consciously unlawful, us in the case
of a married man living with a paramour, and making his will in favor of her or her
children, undue influence may be inferred by the jury, as a question of fact. Dean
v. Negley, 41 Penn St. 312; Monroe v. Barclay, 17 Ohio St. 302.
1 Fairchild v. Bascomb, 35 Vt. 404, 418. And see Platt v. Platt, 58 N. Y. 648.
Compare Jenkins v. Hall, 7 Jones L. N. C. 295.
"Shatter v. Bumstead, 99 Mass. 119.
8 1 Redf. on W. 3d ed. 536, 51 ; Redf. Am. Cas. on L. of W. 487, n. ; Neel v.
Potter, 40 Penn. St. 483; Dennison's Appeal, 29 Conn, 402. So also is evidence of
his pecuniary arrangements for the benefit of those charged with undue influence in
procuring the later will. Beaubien v. Cicotte, 12 Mich. 459.
4 Thus to rebut evidence of undue influence, evidence that the influence was after-
wards wholly removed, nnd the testator, though he lived long in freedom made no
alteration, ia competent (Wilson v. Moran, 3 Bradf. 172; 1 Redf. on W. 526, par. 35);
nnd so a fortiori, is evidence that he affirmatively recognized the will. Taylor v.
Kelly, 31 Ala. 69. Contra, Lamb v. Girtman, 26 Geo. 625.
8 Shatter v. Bumstead, 99 Mass. 113, and Beaubien v. Cicotte, 12 Mich. 459. Thus,
declarations that he was afraid of his wife and compelled to submit to her demands,
in order to have peace, were held competent. Beaubien v. Cicotte (above).
6 1 Redf. on W. 546, 39. And the fact that they were dying declarations does
not render them competent. Jackson v. Kniffen, 2 Johns. 32.
1 Doe v. Allen, 8 T. R. 147 ; Rose. N, P. 22.
f HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 123
tor may be given in evidence to snow the operation they had
upon his mind. 1
71. Fraud.'] Fraud in obtaining a will may be shown by in-
direct and circumstantial evidence ; and any circumstance, how-
soever slight, if not wholly irrelevant to the issue of fraud, may
be admitted. 2
72. Revocation^ The modes of revocation are now usually
prescribed by statute ; 8 and statutes declaring that specified acts
shall be deemed a revocation, 'create a conclusive presumption,
which is not rebuttable by extrinsic evidence. 4 Where the stat-
ute makes the testator's intent an essential element, as in the case
of marring the document, parol evidence is admissible in respect
to the intent, within the limits hereafter stated. In other cases,
extrinsic evidence is admissible to show the situation upon which
the legal question of revocation according to the statute depends ;
and the effect of these facts under the statute is matter of law
which cannot be varied by evidence of testator's actual intent. 5
73. Marring the document.'] When a revocation by burning,
cancelling, tearing, or obliterating, is relied on, it must appear
that the testator had testamentary capacity at the time, 6 and that
the act was done 7 by him or his authority, 8 with intent to re-
voke. 9 The intent may be disproved by evidence that the testa-
tor had not the freedom and intelligence requisite for a testa-
mentary act. 10 Direct proof of the act and intent is not essential ;
for evidence that a will, last seen or heard of in the custody of
the testator, was, after his death, found among his effects, cancel-
led, raises a presumption that the cancellation was done by him
with intent to revoke. 11 Feeble and incomplete efforts to cancel
or destroy may be sufficient, where the evidence of intent is direct
and clear. 12
1 Cudney v. Cudney, 68 N. T. 148.
8 Davis v. Calvert, 5 Gill. & J. 269.
I 2 N. Y. R. S. 64 ; 4 Kent's Com. 521. This statute excludes all other modes.
Ordish v. McDermott, 2 Redf. Surr. R. 463, and cases cited.
4 Lathrop v. Dunlop, 4 Hun, 213, affi'd in 63 N. Y. 610 ; Walker v. Hall, 34 Penn.
St. 483, 486.
5 Adams v. Winne, 7 Paige, 99.
8 Idley v. Bowen, 11 Wend. 227.
7 Compare Pryor v. Goggin, 17 Geo. 444 ; Handy v. Handy, 15 N. J. Eq. (2 He-
Carter), 290; Malone v. Hobbs, 1 Robt. (Va.) 246; Rankle v. Gates, 11 Ind. 95 ;
Boyd v. Cook, 3 Leigh (Va.) 32.
8 The onus of making out that the cancellation of a will was the act of the testa-
tor himself lies upon those who oppose the will. 1 \y r ms. Exrs. 6th Am. ed. 196 ; 2
Whart. Ev. 894.
9 Clark v. Smith, 34 Barb. 140, and cases cited
10 Batton v. Watson, 13 Geo. 62.
II Evans v. Dallow, 81 L. J. Prob. 128.
ia See Dan v. Brown, 4 Cow. 483, 490. Compare Burns v. Burns, 4 Serg. <fc R.
295; Sweet v. Sweet, 1 Redf. Surr. 451 ; Smock v. Smock, 11 N. J. Eq. (3 Stock.)
156 ; Bennett v. Sherrod, 8 Ired. L. (N. C.) 303 ; Bethel v. Moor, 2 Dev. <t B. L.
(N. C.) 311 ; Bell v. Fothergill, L. R. 2 P. <fc D. 148 ; Giles v. Warren, U. 401 ; Card
V. Grinman, 5 Conn. 164.
124 ACTIONS BY AND AGAINST
74. Disappearance of the document.] Evidence that a
was once in existence, and last heard of in the possession of the
testator, and that it was not to be found at his death, raises a
presumption that it was destroyed by him with intent to cancel
it. 1 This presumption is not conclusive, 2 but it serves to throw
upon the party relying on the will the burden of showing that it
was not so destroyed, or that the testator was not of sound mind
at the time. 8 The presumption is not to be rebutted merely by
parol evidence of intent to make another will. 4 Evidence that
the lost will, when last known of, was in the control of a person
having adverse interest, is sufficient to sustain a finding that it
was in existence at testator's death, or was fraudulently destroyed
by another. 5 The fact that the testator, after being informed of
the loss or destruction of his will, failed to make another, is com-
petent but slight evidence of intent to revoke ; and this pre-
sumption may be rebutted by evidence that the loss or destruc-
tion was without his agency. 6
75. Testator's declarations.'] Declarations of the testator, not
made in testamentary form, are not competent as principal evi-
dence of a revocation, because the statute must be complied
with ; 7 but if there is direct evidence of an act of revocation,
such as the statute requires, or if such an act is legally presum-
able, for instance, where the will cannot be found, evidence of
his declarations is competent to repel or strengthen the presump-
tion of cancellation. 8 A declaration which is a narrative of a
past act, for instance, that he had duly revoked his will, is in-
competent, even for the purpose of proving the intent. It is
only declarations forming part of the res gestcs which are compe-
tent for such purpose. 9 Other declarations, before or after the
1 Idley v. Bowen, 11 Wend. 236 ; Bulkley v. Redmond, 2 Bradf. 281. A principle
of universal acceptance in both the English and American courts. 1 Redf. on Wills,
328 (48). It seems that the nature of the contents is material to the question
whether the testator destroyed it. Per Sir J. HANNEN, Sugden v. Ld. St. Leonards,
L R. 1 Prob. DiT. 176, 195.
s Brown v. Brown, 8 Ellis <fe B. 884, s. c. 92 Eng. C. L. 876. But it is more or
less strong:, according to the nature of the custody. Per COCKBURN, C. J., Sugden v.
Ld. St. Leonards, L. R. 1 Prob. Div. 154, 218.
3 Idley v. Bowen (above).
4 Betts v. Jacksoi>, 6 Wend. 173.
6 See paragraph 78.
6 Steele v. Price, 5 B. Monr. 58.
7 Adams v. Winne, 7 Paige, 97.
" Bulkley v. Redmond, 2 Bradf. 285 ; Steele v. Price, 5 B. Monr. (Ky.) 58.
9 Dan v. Brown, 4 Cow. 483 ; bisson'v. Conger, 1 N. Y. Supm. Ct. (T. <fe C.) 569 ;
Waterman v. Whitney, 11 N. Y. 162. Per S. L. SELDKN, J. Contra, Youndt v.
Youndt, 3 Grant's Cas. 140; Lawyer v. Smith, 8 Mich. 411. Compare Sugden v. Ld.
St. Leonards, L. R. 1 Prob Div. 154; Taylor Will Case, 10 Abb. Pr. N. S. 306; Keen
v. Keen, L. R. 3 P. <fe D. 105. Under the freer rules of evidence now administered,
several important qualifications of this rule remain to be considered, viz. : Whether
the res gextce do not include the custody of the will from the time of execution to the
testator's death, and whether his declarations characterizing his possession, as, for
instance, if he should use the will as evidence in a proceeding against the party charged
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 125
act, are not usually competent as bearing on the intent, unless
the question of intent depends on unsoundness of mind or undue
influence, in which case declarations not too remote in point of.
time are competent for the purpose of proving the state of the
mental powers. 1
76. Subsequent testamentary act.'] Evidence that the testator
executed a subsequent will does not, without proof that its con-
tents were inconsistent with the earlier, 3 or that its disappearance
was by spoliation committed by the party claiming under the
earlier will, 3 prove a revocation of the earlier. But the loss of
the later will having been proved, its contents may be shown by
parol, for the purpose of proving that it revoked the earlier will. 4
Extrinsic evidence cannot be received to show that the cancella-
tion of a later will was intended to revive a former one. 5
77. Constructive revocations.'] Implied or constructive revo-
cations, such as those resulting from marriage, the birth of issue,
<fcc., are now generally defined and limited by the statutes, the
terms of which usually control the question of evidence. 6 In the
with obtaining its execution by duress, or if he delivered it, mutilated, to counsel as
being revoked, and as part of his instructions for drawing a new will, or if he should
say he had made his will, pointing to the place where it would be found, are not in
all cases admissible, not as principal evidence of execution or revocation, but as ma-
terial to the ambulatory existence and custody of the will and the circumstances of
its production or its disappearance, and as competent on the question of intent, without
connection with the testamentary act. The English rule admits the declarations of
the testator . to show the continuing existence of the will in his possession at the
time they were made. Sugden v. Ld. St. Leonards, L. R. 1 Prob. Div. 154, 225.
Per COCKBURN, C. J. Another principle which will clear up much apparent conflict
in the language of the cases as to restoration, is, that revocation does not result from
cancellation without intent to revoke; hence, where the testator was insane or deliri-
ous when he tore or cancelled the paper (and, perhaps, when he acted under mistake
as to its validity), declarations afterwards intelligently recognizing it as his will are
competent ; for they are not offered to prove a testamentary act. But after an intel-
ligent revocation, a rejoining of the fragments, and a confirmation of the will, on a
change of purpose, ought not to be competent. Compare Colagan v. Burns, 57 Me.
449 ; Patterson v. Hickey, 82 Geo. 156 ; Whart. Ev. 900, and cases cited.
1 Waterman v. Whitney (above).
s Nelson v. McGiffert, 3 Barb. Ch. 165, and cases cited. It is not enough that
the later will be shown to be different, without showing in what the difference con-
sists. Dickinson v. Btidolph, 11 C. B. N. S. 857, s. c. 103 Eng. C. L. 356.
3 Jones v. Murphy, 8 Watts <fc S. 301 ; Betts v. Jackson, 6 Wend. 180.
4 Brown v. Brown, 8 Ellis <fe B. 876 ; s. P. Matter of Griswold, 15 Abb. Pr. 299.
And it has been held that an express revocation contained in it may be thus proved,
although the disposing provisions are not susceptible of proof. Day v. Day, 2 Green.
Ch. 549, 657; but on the contrary, where the only disposing provisions in the later
will are void for undue influence, it is held that the clause of revocation alone is not
sufficient evidence of the testator's intention to revoke a former will ; for the pre-
sumption is, that, if the second will is found to be invalid, the testator intended that
the first should stand, rather than that he should die intestate. Rudy v. Ulrich, 69
Penn. St. 177, s. c. 8 Am. R. 238.
* 2 N. Y. R. S. 66, 53; 5 Centr. L. J. 397, and crises cited; 1 Redf. onW. 817
(27) ; contra, Id. (36). But it has been received to show that a later was not intend-
ed to supersede a former will. Dempsey v. Lawson, 36 L. T. N. S. 515.
8 2 N. Y. R. S. 64 ; Lathrp v. Dunlop, 4 Hun, 213 ; afli'd in 63 N. Y. 610. Com-
pare Wheeler v. Wheeler, 1 R. L 364.
126 ACTIONS BY AND AGAINST
absence of such a statute, or in case of a will or alleged revoca-
tion before the statute, 1 a substantial change in the situation of
.the testator's family or property, or both, so great as to raise new
testamentary duties, 3 may be treated by the court as effecting a
revocation ; or if there is evidence of an equivocal act of the tes-
tator tending to show an actual intent to revoke, then a substan-
tial change in the situation, such as might have furnished a rea-
sonable motive for revocation, may be given in evidence to support
the inference of revocation ; 8 but evidence of the relative wealth
or poverty of members of the family, there being no substantial
change in situation, is not competent. 4
At common law, the revocation presumed from marriage and
birth of issue otherwise unprovided for, cannot be rebutted by
parol evidence of intent. The question, in a court of law at least,
is not of actual intent, but the revocation is a legal presumption. 5
But the presumption raised by the birth of a child, in connection
with other circumstances than marriage, is not at common law
conclusive. 6 Even in case of constructive revocation, republica-
tion cannot be proved by parol. 7
Y8. Action to Establish Lost or Destroyed will. 6 ] The proof of
a lost or destroyed will is one of secondary evidence exclusively ;
and the law accepts the best evidence that the nature of the case
admits, as to its valid execution, its contents, its existence at tes-
tator's death, and its loss ; 9 and is satisfied if it tend with reason-
able certainty to establish those facts. 10 But the proof of the
contents must be clear and cogent, though it need not always
be complete. 11 To prove the existence of the will at the time of
testator's death, direct evidence is not essential ; 12 but if testator
had access to it when last known, its existence at his death cannot
1 As to the time when the statute took effect on previous wills, see 4 Bradf. 447,
8 Paige, 446.
2 Sherry v. Lozier, 4 Bradf. 450, and cases cited.
3 Betts v. Jackson, 6 Wend. 173, 176.
4 Id. Compare Warner v. Beach, 4 Gray, 162 ; Brush v. "Willans, 4 Johns.
Ck 606.
6 Marston v. Roe, 8 Ad. & El. 14, s. o. 35 Eng. C. L. 303 ; 1 "Wms. Exrs. 195,
196 ; 1 Redf. on W. 300, n. 24; and see Bloomer v. Bloomer, 2 Bradf. 339.
6 Sherry v. Lozier, 4 Bradf. 453.
7 Carey v. Baughn, 36 Iowa, 540, s. c. 14 Am. R. 534.
8 Under the statute. 2 N. Y. R. S. 68.
9 Grant v. Grant, 1 Sandf. Ch. 235.
10 See Everitt v. Everitt, 41 Barb. 385, 387, and Sugden v. Ld. St. Leonards, L.
R. 1 Prob. Div. 154, 239.
11 Compare, on this point, Sugden v. Ld. St. Leonards, L. R. 1 Prob. Div. 154, and
Davis y. Sigourney, 8 Mete. (Mass.) 487, which exhibit the two opposing views. The
true principle seems to be that entire provisions may be established, if shown to have
been not dependent on nor affected by the portions which cannot be proved, except
where the proceeding is to establish the will under a statute which requires the
whole to be proved. An illustration of this is the rule that the revoking clause may
be proved, to defeat a prior will, although the disposing clauses are not capable of
proof. See also Redf. Am. Cas. on L. of Wills, 217 n.
12 Schultz v. Schultz, 35 N. Y. 653.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 127
be inferred from his declarations, made a month or so previously,
that he had it in his possession. 1 In such case the presumption,
rather is of destruction by the testator. 2 But any presumption
of destruction by him, arising merely from its disappearance, is
entirely rebutted by evidence that he had deposited it with an-
other person, and did not afterward have access to it. 3
Where actual destruction is not shown, parol evidence is not
admissible until it has been proved that diligent search for the
will has been made by or at the request of the party interested,
at the place where it is most likely it would be found, as "for
instance (if last traced to testator's possession), search among his
papers at his usual place of residence. 4 The mere fact that a
person having an adverse interest had opportunities of access to
the will while it was in the testator's custody, does not raise a
presumption of fraudulent destruction ; 5 but the fact that when
last known of it was in the control of such a person, may sus-
tain that conclusion. 6 Evidence that the testator gave it into the
custody of another who never parted with its possession, but
locked it up, and after testator's death could not find it, is enough,
for it proves either its existence at his death or fraudulent de-
struction in his life-time, 7 Direct evidence of actual intent to de-
fraud any particular person, is not essential. The fraud contem-
plated by the statute is the unauthorized defeating of the will. 8
Evidence of fraud or undue influence, inducing the testator to
destroy the will himself, is sufficient, 9 but a destruction by his
direction if freely given is not enough, even though the destruc-
tion was not so performed as to amount to a revocation under the
statute. 10 Unless the statute otherwise provides, 11 the contents
of a lost or destroyed will may be proved by a single witness. 13
Declarations, written or oral, made by the testator, whether be-
fore, at, or after the execution of the will, are competent second-
ary evidence of its contents. 13
1 Knapp v. Knapp, 10 N. Y. 276.
s Paragraph 74.
* Schultz v. Schultz (above).
4 Dan v. Brown, 4 Cow. 491.
8 It is not even enough to go to the jury. Knapp v. Knapp, 10 N. Y. 276, 280.
6 Jones v. Murphy, 8 Watts & S. 299.
7 Schultz v. Schultz (above), and see Hildreth v. Schillenger, 10 N. J. Eq. (2
Stockt.) 196.
"Id.
9 Voorhees v. Voorhees, 39 N. Y. 463, affi'g 50 Barb. 119.
10 Timon v. Claffy, 45 Barb. 438.
11 N. Y. R. S. 68, 67, requires the provisions to be " clearly and distinctly
proved, by at least two credible witnesses, a correct copy or draft being deemed
equivalent to one witness."
14 Sugclen v. Ld. St. Leonards, L. R. 1 Prob. Div. 154, and pee Fetherly v. Wag-
goner, 11 Wend. 699. Even though he himself destroyed it under excusable mistake,
and he is residuary legatee. Wyckoff v. Wyckoff, 1 C. E. Green, 401. That all the
witnesses must be produced or accounted for, see Thornton v. Thornton, 39 Vt.
122, s. c. 6 Am. L. Reg. N. S. 841.
13 Sugden v. Ld. St. Leonards, L. R. 1 Prob. Div. 154, 225, 241 ; and see Johnson
V. Lyford, L. R. 1 P. & D. 546.
128 ACTIONS BY AND AGAINST
79. Foreign Will.'] A foreign will is proved by producing
in the same way as a domestic will a probate by a probate court
witliin the State, granted either upon original proof or upon pro-
duction there of an exemplified copy of a foreign probate. An-
cillary probate thus granted within the State, is equivalent as evi-
dence to original probate here. 1 The foreign exemplification,
even if itself receivable in evidence, by virtue of the act of Con-
gress, 2 and competent on the question of the rights and liabilities
of the parties arising in such other -State, 8 cannot be received
for the purpose of affecting title to land within the State (un-
less expressly authorized by the statutes of the State) ; but if it
has not been recorded in a probate court within the State, the
original will must (for such purpose) be produced, or its loss
accounted for BO as to admit secondary evidence. 4
80. Ancient Witt.~] An ancient will is competent prima facie
evidence, without probate, if it appear that the testator is de%,d,
and that it is regular on its face, that is apparently executed with
legal formalities, and is shown to have come from the proper cus-
tody, if more than thirty years have elapsed since the testator's
death, 5 and if it is corroborated by other circumstances, such as
the fact that possession has been continuously held under it.
Mere efflux of time is not enough to dispense with proof of exe-
cution, but it is not always essential to show possession. It is
enough if such account be given of it as may, under the circum-
stances, be reasonably expected, and as will afford the presump-
tion that it is genuine. 6 Inability to prove handwriting should
be shown. 7 If the original is lost, its antiquity and contents may
be proved by secondary evidence. 8 Evidence of the acts and
declarations of third persons, when in possession of the lands, are
competent to prove the continued possession under the wilL
X. EXTRINSIC EVIDENCE AFFECTING WELLS.
81. Effect of the Statute of Wills.'] The Statute of Wills, by
requiring testamentary acts to be expressed and authenticated in
1 Bromley v. Miller, 2 Supm. Ct. (T. <fe C.) 575; Townsend v. Downer, 32 Vt.
183, 216 ; Miller v. James, L. R. 3 P. & D. 4.
8 U. S. R. S. 905, 906. In such case the recital in the record of notice of tlie
proceedings is prima facie evidence that it was given, but not conclusive if jurisdic-
tion depended on it. Clark v. Blackington, 110 Mass. 369, 374.
3 Robertson v. Barbour, 6 T. B. Monr. (Ky.) 523.
* Graham v. Whitely, 26 N. J. L. 260. Whether the original is competent with-
out such probate, depends on the local statutes. See Ives v. Allyn, 12 Vt. 589 ; Bar-
stow v. Sprague, 40 N. H. 27.
* Staring v. Bowen, 6 Barb. 109. The appearance of the paper itself, and the
date, are, in the absence of anything to raise suspicion, competent on the question of
age. Enders v. Sternber^h (below).
6 This is the New York rule. Endera v. Sternbergh, 2 Abb. Ct. App. Dec. 36,
43 ; Jackson v. Luquere, 5 Cow. 211. Contra, Merrill v. Sawyer, 8 Pick. 297.
7 Northrop v. Wright, 7 Hill (N. T.) 476.
B Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 42. Jackson v. Van Duaen, 5
Johns. 144.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 129
writing, precludes us from treating oral declarations as a testa-
mentary act, or even as any part or such an act. 1 Every dispo-
sition which the testator mates must be embodied in a writing
that conforms to the statute. Extrinsic evidence can not estab-
lish a provision shown to have been omitted by mistake, nor even
supply any essential or vital part left blank, in a provision the
frame of which was inserted by the testator. 2 A will may be
construed in connection with another writing to which it refers ; s
but it cannot, even by expressing an intention to do so, make an
unattested instrument a part of itself, so as to effect a testament-
ary disposition without compliance with the statutory formali-
ties. 4
82. Legitimate Objects of Extrinsic Evidence.] Notwith-
standing these restrictions, extrinsic evidence is freely admitted
for certain purposes, which in a practical aspect may be defined
as four, viz. : to aid in reading, testing, applying, and executing
the testamentary declaration of intention. 5
1 Mann v. Mann, 14 Johns. 1, affi'g 1 Johns. Ch. 231.
8 Per SHAW, C. J., Tucker v. Seaman's Aid Society, 7 Mete. 205.
3 Jackson v. Babcock, 12 Johns 389.
4 Lungdon v. Astor, 16 N. Y. 9 ; Thompson v. Quimby, 2 Bradf. 449 ; Clayton v.
Ld. Nugent, 13 M. & VV. 200.
6 Kent's statement of the rule, in the leading American case (Mann v. Mann, 1
Johns. Ch. 281), is, "Parol evidence cannot be admitted to supply or contradict, en-
large or vary, the words of a will, nor to explain the intention of the testator, except
in two specified cases; 1, where there is a latent ambiguity, arising dehors the will,
as to the person or subject meant to be described ; and 2, to rebut a resulting trust.
All the cases profess to proceed upon one or the other of these grounds."
Wlr.irton (2 Whart. Ev. 992) lays down the rule thus: " With two exceptions,
evidence of the testator's intentions is inadmissible in explanation of a will. These
exceptions are as follows: (1.) What is said at the time of the execution and attesta-
tion is admissible as part of the res gest<c, though not to contradict the will. (2.)
When it is doubtful as to which of two or more extrinsic objects a provision, in itself
unambiguous, is applicable, then evidence of the testator's declarations of intention
is admissible; not, indeed, to interpret the will, for this is on its face unambiguous,
but to interpret the extrinsic objects."
Wigram's seven rules are (\\ igr. Ex. Ev.): " I. A testator is always presumed to
use the words in which he expresses himself according to their strict and primary
acceptation, unless from the context of the will it appears that he has used them in a
different sense; in which case the sense iu which he thus appears to have used them
will be the sense in which they are to be construed.
"II. Where there is nothing in the context of a will, from which it is apparent
that a testator has used the words in which he has expressed himself in any other
than their strict and primary sense, and where his words so interpreted are sensible
with reference to extrinsic circumstances, it is an inflexible rule of construction, that the
words of the will shall be interpreted in their strict and primary sense, and in no
other, although they may be capable of some popular or secondary interpretation,
and although the most conclusive evidence of intention to use them in such popular
or secondary sense be tendered.
" III. Where there is nothing in the context of a will, from which it is apparent
that a testator has used the words in which he has expressed himself in any other
than their strict and primary sense, but his words so interpreted, ore insensible with
reference to extrinsic circumstancrs, a court of law may look into the extrinsic circum-
stances of the case, to see whether the meaning of the words be sensible in any popu-
lar or secondary sense, of which, with reference to these circumstances, they are
capable.
9
130 ACTIONS BY AND AGAINST
The confusion in the cases upon this subject arises partly
from the difficulty of preserving the distinction between receiving
extrinsic evidence to establish the testamentary intention, which
is never allowable and receiving it to enable us to understand
the intention he has expressed, which is always allowable. No
extrinsic evidence to interpret the will, is admissible except as
light thrown upon the words of the will ; and the only intention
of the testator which the court can sanction, is that which they
can derive through the will itself, it may be by the aid of such
light. There is a class of cases, in which direct evidence of the
testator's declarations of his intention can be received, to enable
us to apply a 'pro vision of the will accordingly, viz. : in cases
where there are several persons or things equally answering the
designation, but these cases are not in truth an exception to the
rule, for the declarations are not allowed to affect the intention,
but only to show "what he meant to do;" and when we revert
to the will, we may perceive from the will that he has done it by
the general words used, if in their ordinary sense they properly
bear that construction. 1 If, after understanding the intention,
we do not find that the will has declared it with the statute for-
malities, the court cannot give it effect, no matter how clear may
be the evidence.
83. Reasons for its Liberal Admission.'] In favor of the
liberal application of the rule allowing extrinsic evidence, it may
" IV. Where the characters in which a will is written are difficult to be deci-
phered, or the language of the will is not understood by the court, the evidence of
persons skilled in deciphering writing, or who understand the language in which the
will is written, is admissible to declare what the characters are, or to inform the
court of the proper meaning of the words.
"V. For the purpose of determining the object of a testator's bounty, or the sub-
ject of disposition, or the quantity of interest intended to be given by his will, a
court may inquire into every material fact relating to the person who claims to be
interested under the will, and to the property which is claimed as the subject of dis-
position, and to the circumstances of the testator and of his family and affairs, for
the purpose of enabling the court to identify the person or thing intended l>y the
testator, or to determine the quantity of interest he has given by his will.
" The same (it is conceived) is true of every other disputed point respecting which
it can be shown that a knowledge of extrinsic facts, can, in any way, be made j.ndl-
lary to the right interpretation of a testator's words.
" VL Where the words of a will, aided by evidence of the material facts of the
case, are insufficient to determine the testator's meaning, no evidence will be admis-
sible to prove what the testator intended, and the will (except in certain special
cases, see Proposition VII.) will be void for uncertainty.
" VII. Notwithstanding the rule of law which makes a will void for uncertainty,
where the words, aided by evidence of the material facts of the case, are insufficient
to determine the testator's meaning, courts of law, in certain special cases, admit
extrinsic evidence of intention to make certain the person or thing intended, where
the description in the will is insufficient for the purpose.
"These cases maybe thus defined, where the object of a testator's bounty, or
the subject of disposition (i. e., the person or thing intended), is described in terms
which are applicable indifferently to more than one person or thing, evidence is
admissible to prove which of the persons or things so described was intended by the
testator."
1 Ld. Abinger in Doe ex dem. Hiacocks v. Hiscocks, 5 31. ct W. 363.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 131
be said that text writers of high authority 1 declare that the rules
for the admission and exclusion of parol evidence in regard to
wills are essentially the same which prevail in regard to contracts
generally ; and it may be further urged that the right to dispose
by will is of great importance ; 2 that it is commonly exercised
under circumstances unfavorable to formality and exact expres-
sion ; and that the court ought to have every aid that the Con-
duct and declarations of the testator can give, to guide in ascer-
taining his intention.
84. Reasons for its strict exclusion^ On the other hand, it
is to be considered that the rules allowing parol evidence in aid
of the interpretation of contracts are not fully applicable to wills,
for they rest on several reasons that are foreign to these instru-
ments. 1. A will is not a transaction between parties, but a silent
and private act ; and the principle of good faith which may bind
a contracting party by what passed in conversation, does not jus-
tify disposing of the rights of heirs and next of kin by what may
have fallen from their ancestor. 2. Nor is a will a grant or effect-
ive act during the testator's life, but a revocable expression of in-
tention, made frequently under circumstances likely to involve
secrecy, if not fickleness and change ; and the law does not bind
a man by his expressions of intention, much less by his oral dec-
larations that he has expressed certain intentions in a revocable
writing. 3 3. It is a matter of common observation that testators
are instinctively disposed to shroud their testamentary acts in
secrecy, and disguise their intentions, and to baffle with equivoca-
tion or misrepresentation the importunities of the expectant and
the inquisitiveness of the curious. The law regards this conceal-
ment as a right of the testator; and even positive deceit by him,
however questionable morally, is not a legal wrong unless fraud
is accomplished by it. 4 Therefore the testator's representations
as to what lie has or has not done, much more those as to what
he intends, fail to afford any substantial presumption as to the
testamentary act. 4. Besides this absence of reasons for admit-
ting extrinsic evidence so freely as in cases of contracts, the ob-
jections to hearsay evidence apply in the strongest manner in
many cases ; and the fact that the controversy in which such evi-
dence is offered usually arises between those who stood in very
unequal degrees of personal intimacy with the testator, and that
his own lips are sealed by death, render the resort to such evi-
dence peculiarly liable to abuse, which it is the object of the statute
to avoid by requiring every testamentary act to be expressed in a
1 Redf. on W. 496 ; 1 Greenl. Ev. 287. As a practical puide, this maxim would
be very misleading. It would be less inexact to compare wills to statutes.
9 Sec Maine's Anc. Law, 194.
1 If tlie testator bound himself by a promise, it is to be enforced, if at all, as a
contract. Ridley v. Ridley, 11 Jur. N. S. 475; and see 60 Jf. Y. 83; McGuire v.
Jlcr.uire, 11 Bush, (Ky.) 142.
4 Bee SStickland v. Aldridge, 9 Ves. 616.
132 ACTIONS BY AND AGAINST
written and authenticated will. Such considerations as these
have led the courts in recent years to restrict the admission of
extrinsic evidence within the limits I shall now endeavor to
indicate. 1
85. Exceptional rule as to evidence in Rebuttal^ The con-
siderations to which I have adverted, however, it will be seen do
not militate against evidence impeaching or disproving the valid-
ity of the testamentary act ; nor, on the other nand, against evi-
dence tending to show that the intention was really just what is
expressed on the face of the will ; and hence, in this class of
cases, there is peculiar practical importance in the principle of
evidence, that when one party may and does attempt to prove a
fact, the other party thereby acquires a right to adduce evidence
to the contrary. It will be seen that the method of attack some-
times enlarges the scope of the defense, and admits evidence that
the rule would exclude if offered in the first instance. 2
86. Extrinsic aid in Reading?^ Whatever is necessary to
possess the court with an understanding of the language or char-
acters in which the will is written, may be supplied by extrinsic
evidence ; 8 and it will readily be seen that the principle is the
same, whether the difficulty in reading the will arises from the
fact that it was written in a foreign language, or a peculiar dia-
lect, or from the fact that the testator habitually used words of
the common language in a peculiar way, or used characters and
hieroglyphics instead of the common notation of language. But
the competency of the evidence consists not in its showing what
testator intended in this particular case, 4 but in showing what his
habitual speech and notation were, leaving the court, in the light
of this fact, to read the will and ascertain thence what his inten-
tion was. 5 Accordingly, if a will is written in a foreign language
or in short-hand or cipher, it may be translated by competent
evidence ; 6 if it contains terms which the writer habitually used
in a peculiar sense, that habit can be shown ; 7 if it contains terms
1 Earlier cases, and not a few later ones founded on earlier rulings, admit such
evidence more freely, and it will not be difficult to find cases to the contrary of some
of the propositions stated in the text in this connection, but I confine myself to a
statement of the rule, and a selection of cases illustrating it, as now administered in
the courts of highest authority.
2 Where one party proved the nature of a transaction with the testator to affect
the construction or application of the will, Held, that the other might give testator's
declarations t*o the contrary, in evidence, by way of contradiction. DENIO, J., Til-
lotson v. Race, 22 N. Y. 127.
3 See Wigram's 4th proposition above, p. 130, note.
4 Id.
1 Hence neither the testator's declarations of what he meant, nor the testimony
of the draftsman as to the meaning of the clause, is competent (1 Redf. on W. 635
P 50, and cases cited) ; nor is a letter to the testator from his solicitor (Wilson v.
6'Leary, L. R. 7 Ch. App. 448, s. c. 2 Moak's Eng. 842.)
8 Clayton v. Ld. Nugent, 13 Mees. & W. iiOO.
7 Per BRADFCKD, J., Hart v. Marks, 4 Bradf. 163 ; Doe ex dent Hiscocka v. Hiscocks,
6 Mees. <fe W. 36a.
HEIRS AND NEXT OF KIN. DEVISEES AND LEGATEES. 133
with which, as a member of a particular trade or calling, he was
familiar, or language which has a provincial or local meaning, 1
persons acquainted with the meaning of the words may be re-
ceived as witnesses to translate or define them. If he was accus-
tomed to designate a person by a short name, such as the surname
alone, 3 or the baptismal name alone, 8 or a pet name ; 4 or habitually
to misname the person through confusing several names, 5 or to
use abbreviations or a cipher, as, for instance, a private price
mark for goods in his business, 6 and such names or characters
appear in his will, they may be explained by evidence of his
usage. But extrinsic evidence of what testator intended by
using initials or ciphers in a bequest, as distinguished from evi-
dence of what it was his common habit of speech or writing to
use them for, is not admissible. 7 Another important, but not
very well defined qualification of this rule exists in respect to those
technical legal words to which the law fixes a definite legal mean-
ing, such as " next of kin." Such meaning cannot be varied by
parol. And a contradiction in terms of legally settled import
appearing on the face of the will, must be settled by rules of in-
terpretation, without resort to extrinsic evidence. 8
87. Alterations.'] "When the question is not foreclosed by a
conclusive probate, 9 extrinsic evidence is competent within cer-
tain limits, and sometimes necessary, to explain alterations in the
original will. Unattested alterations in a will are not, as in case
of a deed presumed to have been made before execution. 10 It has
been usually said that in the absence of evidence there is a pre-
sumption that an unattested alteration appearing in a will was
made after its execution. 11 It more accurately represents the
present practice to say that the burden is upon him who asserts
the alteration to be valid, to give some evidence from which it
1 Ryerss v. "Wheeler, 22 Wend. 152, and cases cited.
8 Clayton v. Ld. Nugent, 13 Mees. <fe W. 200, 207.
8 \Vigr. by O'Hara, 139.
4 1 Redf. on W. 630.
5 Lee v. Pain, 4 Hare, 251, approved in Jannan, 3d ed. vol. 1, 392, but questioned
by Redfield, 1 Redf. on W. 632.
6 Vii-11 v. Charmer, 23 Beav. 195.
7 The distinction is well exhibited thus : A bequest to Lady , is void, and
the blank cannot be supplied by extrinsic evidence (Hunt v. Hort, 3 Bro. C. C. 811).
But a bequest to Page may be sustained in favor of a person of that name on
evidence that testator was accustomed to call him " Page " (Price v. Page, 4 Yes. 679,
and see Miller v. Travers, 8 Bing. 244, and cases cited). Thus where the beneficiaries
were only indicated by initials and blanks, and there was pasted into the will at time
of attestation a slip referring to a card in his desk, as constituting a key to the sig-
nificance of the initials, and the only card found was dated lonsf after the will, and
not proven to be a copy, but proven to have a general resemblance to a card seen
lying with the will, Hell, that the key was not admissible and the bequests were
void (Clayton v. Ld. Nugent, 13 Mees. <fe W. 200).
* Wcutherhead v . Baskorville, 11 How. U. S. 329.
9 See paragraph 60.
10 1 Redf. on W. 314-316 (23).
11 Rose. N. P. 160 ; 2 Whart Ev. 897 ; Stepb, Dig. Ev. art. 89.
134 ACTIONS BY AND AGAINST
may be inferred that it was made before execution, 1 unless it may
be inferred that such was the case from the face of the docu-
ment. 2 The time when the alterations were made may be shown
by proving the declarations of the testator, whether uttered at
the execution of the will, or before it, even by way of expression
of an intention which would be defeated by disregarding the al-
teration. 8 The testimony of a subscribing, 4 or other eye witness,
is of course competent ; and so is the opinion of an expert. 5 The
testimony of an eye witness is of more weight than that of ex-
perts. 6 In the absence of other evidence as to when the altera-
tions were made, the fact that dates prior to that of the will
were affixed to some of them by the testator is not sufficient to
show that they were made before execution. 7 Alterations may be
effectual although made only in pencil. 8 But where there are both
pencil and ink interlineations, and some of the penciled words
are under the words in ink, but extend beyond them, with addi-
tional provisions, the inference may be drawn that as the ink
superseded some, it was intended to supersede all of the penciled
words, and that the latter were merely deliberative. 9 Where a
testator has entirely erased the name of a legatee, and substituted
another name in its place, with intent to revoke only by substi-
tution, evidence will be received to show what the original name
was. 10
88. Mi stakes. ~\ The court may correct obvious clerical mis-
takes appearing on the face of the will ; u but the only case in
1 Goods of Sykes, L. R. 3 P. & T>. 26, 8. c. 5 Moak's Eng. R. 621, and cases cited.
8 As, for instance, where an interlineation consists of words necessary to complete
the sense, and apparently written at the same time and with the same ink. Goods
of Cadge, L. R. 1 P. <fe M. 543. Another instance is the correction of an absurdity.
If the question arises on the face of the paper alone, the question is usually for the
jury. See Van Buren v. Cockburn, 14 Barb. 118.
3 Goods of Sykes (above); 1 Wms. Exrs. 6 Am. ed. 411; Dench v. Dench, 25
Weekly R. 414. Compare 2 Whart. Ev. 252, 1008.
4 Charles v. Huber, 78 Pa. St. 448.
6 Re Hindmarch, 1 L. R. Prob. 307, s. p. Dubois v. Baker, 30 N. T. 355, affi'g 40
Barb. 556. Compare Sackett v. Spencer. 29 Barb. 180.
6 Testimony of one who drew a will and saw it executed, that it has not been al-
tered, outweighs testimony of many who speak only from an inspection of the paper,
as produced. Malin v. Malin, 1 Wend. 625.
1 Goods of Adamson, L. R. 3 Prob. <fe Div. 253, s. c. 14 Moak's Eng. 704. The pre-
sumption that sheets bound together and constituting a will, as found in the testator's
desk, were so bound together at the time of the execution, is not necessarily rebutted
by the fact that the numbering shows that one of the original sheets had been re-
moved and another of them transposed into its place. Rees v. Rees, L. R. 3 P. & D.
84, s. o. 6 Moak's Eng. 365.
8 Matter of Tonnelle, 5 N. Y. Leg. Obs 254; but see 12 Barb. 595.
9 Goods of Adams, 2 Moak's Eng. R, 151.
10 Goods of McCabe, L. R. 3 P. <$c D. 94, s. c. 6 Moak's Eng. 372 and cases cited.
11 Thus " and" may be read " or," and conversely. Jackson v. Blanshan, 1 1 Johns.
54, and other cases in 2 Abb. N. Y. Dig. (2ded.) 669; 6 Id. 178, 181. "May leave,"
may be read "may have." Dubois v. Ray, 35 N. Y. 162, 8. P. in L. R. 16 Eq. 239,
"Reviving," may be read "surviving." Pond v. Bergh, 10 Paige, 140. "Prepara-
tory meeting," in the designation of the donee, may be read " preparatux? meeting,"
that being in the true name of the only claimant. Dexter v. Gardner, 7 Allen, 245.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 135
which extrinsic evidence is clearly admissible to correct an error
by substituting something necessary to be inserted, is in respect
to an error of the date. 1
89. Extrinsic aid in Testing validity^] In practice, all the
questions involved in the validity of the instrument are usually
tested upon probate, as we have seen. It will suffice here to observe
that when the question of validity is not concluded by the pro-
bate, the same evidence is competent as would be in a proceeding
for probate ; and also that when the instrument as a \vhole is not
impeached, it is still competent to show that a particular part of
it was not the testator's will ; as, for instance, that a clause was in-
terlined by another hand without authority, 2 or that a particular
part was inserted through undue influence, 3 or that a sheet was
not in the will at the time of its execution. 4 But due execution
is presumptive evidence that the testator knew the contents of the
will, and that it conforms to his intentions ; 5 and it is not competent
to show that he acted under a mistake or forgetfulness of fact as
to persons or property, for the purpose of inferring that lie would
not have intended a certain express gift if he had been rightly in-
formed. 6 Nor can it be shown that he gave different instructions
as to the clause to be inserted, and executed the instrument in ig-
norance of the draftsman's mistake. 7 And even if it be admis-
sible to show that he intended a clause not to take effect except
in a certain contingency, 8 this cannot be done by proving that he
gave instructions to have it drawn in one way, and that it was
drawn and executed in another. 9 Unless words have been in-
serted in a will by fraud or mistake, without the testator's knowl-
1 Goods of Thomson, L. R. 1 Pr. & M, 8; Reffell v. Reffell, Tel. 139. Where the
attorney, drawing the codicil, intended to conclude the codicil with a paragraph, " in
all other respects, I confirm my said will," but by mistake wrote "revoke" instead
of " coi firm," and in this State, the codicil was executed, it was held that parol evi-
dence could not be received to correct the mistake. In re Davy, 5 Jur. N. S. 252, s. c.
1 Sw. & Tr. 262; 1 Keclf. on W. 69'2, 25. On the contrary, where the fourth cod-
icil revoke the three previous codicil*, and a fifth codicil purported to confirm the
four couicils, Held, that extrinsic evidence was admissible to show that four meant
fourth. Goods of Thomson, L. R. 1 Pr. <fe M. 8. See Hart v. Tulk, 2 De Gex, M. &
G. 800, where, on exlrinsic evidence of the situation of the family and property, the
court, in order to set right what appenred to them to be an obvious clerical error,
held that the words "fourth schedule" iu a will should be read as if they were " fifth
schedule."
Doe v. Palmer, 16 Q. B. Ad. & E. 747 ; Charles v. Huber, 78 Pa. St. 448.
8 Ld. Trimlestown v. D" Alton, 1 Dow. & Cl. 85; Florey v. Florey, 24 Ala. 241.
4 See Miller v. Travers, 8 Bing. 244.
* 1 Kedf. on Wills, 3d ed. 536, 57. The fact that a capable testator read or
heard read the provision before attesting it, cannot bo countervailed by the testi-
mony of the scrivener that he inserted it by inadvertence, and without instructions.
Guardnouje v. Blackburn, L. R. 1 P. & M. 109.
6 Jackson v. Sill, 11 Johns. 201. See Gifford v. Dyer, 2 R. I. 99; Allgood v.
Blake, L. R. 8 Eq. 160. Compare Crossthwaite v. Dean, 6 Id. 245.
1 I Redf. on W. 604, n., 2 Whart. Ev. 240, t$ 995.
8 Lister v. Smith, 3 Sw. <fe Tr. 282.
9 Ordway v. Dow, 55 N. H. 12.
130 ACTIONS BY AND AGAINST
edge, the court cannot correct the error either by omission or in-
sertion of words. 1
90. Rebutting evidence.'] But wherever extrinsic evidence is
admitted to negative the genuineness of the testamentary act, ex-
trinsic evidence is admissible to affirm it ; and for this purpose
even the testator's declarations of intention may be received.
They are not in this case adduced to eke out a testamentary act
insufficient under the statute ; but merely to show that the suf-
ficient expression of intention contained in the will was genuine.
91. Extrinsic aid in Applying.'] It is a familiar rule that, in
order to understand the intention of the testator, for purposes of
construction, we must advert to his situation at the time of mak-
ing the will, and consider such circumstances as the number of
his family, the different kinds of property which he had, &c. ; a
and a general and pervading obscurity in a will drawn by an il-
literate person, is justly regarded as strengthening the reason for
receiving extrinsic evidence of the circumstances of the testator
and his family, and the claims on him of a legatee whose gift is
ambiguous. 3
The principles which regulate the competency of extrinsic
evidence for this purpose, are the same whether the question re-
lates to the subject or to the object of the gift ; and the decisions
under either class of cases are applicable to the other. 4 But for
greater practical convenience the competency of evidence to iden-
tify the object of the gift, that is to say the beneficiary, will first
be explained.
92. in identifying the Person.'] It is not essential that a
legatee or devisee be named / a reference by which he may be
ascertained when the time comes is enough ; and then extrinsic
evidence is competent to identify him. 5 If the whole designation
used in the will to indicate the person, whether of a beneficiary
or an executor, applies with exactness to one claimant, extrinsic
evidence, no matter how persuasive, is not admissible for the pur-
pose of showing that some other one, to whom it does not accu-
rately apply, was the person intended. 6 And if a beneficiary is
1 Wallize v. TTallize, 55 Pa. St. 242. So held in a Court of Probate. Harter T.
Barter, L. R. 3 P. & I). 11, 8. c. 5 Moak's Eng. 608.
2 Doe v. ProYOOst, 4 Johns. 61 ; Slmlters v. Johnson, 38 Barb. 80.
8 Terpening v- Skinner, 30 Barb. 373. See a further decision in 29 N. Y. 505 ;
Doe v. Provoost, 4 Johns. 61.
4 American Bible Society v. Pratt, 9 Allen, 11, and cases cited.
5 Holmes v. Mead, 52 N. Y. 332.
6 Tucker v. Seaman's Aid Soc. 7 Mete. 188 ; 1 Redf. on W. 613, 41. Thus
where the executor named was but twelve years old, the court refused to receive pa-
rol evidence that testator intended to name the lad's father, whose name was, with
the exception of a part of the middle name, identical with the son's. Goods of Peel,
L. E. 2 Pr. & M. 46.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 137
once adequately and accurately named or described in the will,
this is conclusive ; and if the same name is mentioned a second
time in the same instrument without any description other than
" said," extrinsic evidence is not admissible to show that a differ-
ent person was intended the second time. 1 Where the second
reference is not thus identified, but is so expressed that it may be
referred to either of two persons previously named, extrinsic
evidence is admissible to remove the ambiguity, and for this pur-
pose the testator's declarations are competent. 2
93. in case of names of relationship.'] Prima facie the
word " children " means legitimate children. 3 There must be
clear evidence to establish another application of the word. 4
Hence, under a bequest to testator's " children," " nephews," &c.,
without anything on the face of the will to show a different in-
tent, 5 none but the testator's own and legitimate children or
nephews can take, if such there are. But extrinsic evidence is
admissible to show that there are none such, and that he was
never married, but left illegitimate offspring, and that he recog-
nized them as his children. 6 So, also, of illegitimate nephews.
In like manner evidence is admissible that the only nephews and
nieces in the family were those of testator's wife. 7 Where the
words of relationship such as " children," *' cousin," <fcc., are used
with nothing in the will, read in the light of surrounding circum-
stances, to show that a broader meaning is intended 8 than the or-
dinary meanings, such as legitimate sons and daughters, first
cousin, (fee., independent extrinsic evidence, having no connection
with the words of the will, cannot be received to enlarge the im-
port.
1 Webber v. Corbett, L. R. 16 Eq. 515, s. c. 6 Moak's Eng. 841. Thus, where tes-
tator in one clause gave the personal property on his farm to " William, Samuel,
Benjamin and James; in another clause gave the farm to Samuel, William and
James" (not naming Benjamin), and in the next clause gave other lands " to the said
last named Samuel, William, Benjamin and James," Hdd, that the ambiguity, if any,
was patent, and could not be aided by parol evidence of testator's declarations of in-
tention to give a share of his farm to Benjnmln, and his instructions to the draftsman
to include him. Hyatt v. Pugsley, 23 Barb. 285.
1 Doe v. Needs, 2 M. <fe W. 129 ; Doe v. Morgan, 1 C. & M. 235.
3 Cromer v. Pinckney, 3 Barb. Ch. 466.
4 Hill v. Crook, R. R, 6 H. of L. 265, s. o. 7 Moak's Eng. 1.
8 Brower v. Bowers, 1 Abb. Ct. App. Dec. 214.
6 Gardner v. Heyer, 2 Paige, 11 ; Laker v. Hordern, L. R. 1 Ch. Div. 644, a. o.
16 Moak's Eng. 672 ; 34 L. T. N. S. (Ch. D.) 88. Compare Lepine v. Bean, L. R. 10
Eq. 170.
7 Sherratt v. Mountford, L. R. 8 Ch. App. 928, 8. c. 7 Moak's Eng. 479. In such
case evidence of his ill-feeling toward them, or other circumstances rendering it im-
probable that he intended them, was held not admissible. Id. If the bequest to
children refers to those of another than testator, there must be evidence that ho
knew there were illegitimate children and none other, and that they, in their reputed
character, would answer the description, in order to enable them to take. In re Her-
bert, 6 Jur. N. S. 1027 ; and see 1 Sm. v. Giff, 126.
* Redf. on W. 658 ; Brower v. Bowers, 1 Abb. Ct. App. Dec. 214.
138 ACTIOX3 BY AKD AGAINST
94. in case of Corporate Designation.'] It is not essential
tliat a corporation oe designated by its legal corporate name. It
may be designated by the name by which it is usually or popu-
larly called or known, or by a name by which it was known and
called by the testator, or by any name or description by which it
can be distinguished from every other corporation ; and when
an other than the corporate name is used, the circumstances to
enable the court to apply the name or description to a particular
corporation, and identify it as the body intended, and to distin-
guish it from all others and bring it within the terms of the will
may, in all cases, be proved by parol. 1
95. applying Erroneous designation.'] If it be once shown
by extrinsic evidence that there is no person in existence who ex-
actly and fully corresponds with the designation or description
usea in the will to indicate the donee, extrinsic evidence is then
admissible to ascertain to whom the designation points, 2 and for
this purpose it is competent to adduce evidence of the circum-
stances and habits of the testator, and the state of his family at
the time he made the will, so as to put the court in the position
of the testator, in order to ascertain the bearing and application
of the language which he has used, and whether there exists any
person to whom the whole description given in the will can be
with sufficient certainty applied. 8
9G. rejecting False Words.~] Where a designation other-
wise correct, contains words which are false or inapplicable to the
1 Lefevre v. Lefcvre, 59 N. Y. 434, rev'g in part 2 Supm. Ct. (T. & C.)330 ; First
Parish in Sutton v. Cole, 3 Pick. 237, and cases cited.
2 Hart T. Marks, 4 Bradf. 161.
8 Charter v. Charter, L. R. 7 H. of L. 364, s. c. 12 Moak's Eng. R. 1, affi'g 1
Moak's Eng. 249 ; Thomas v. Stevens, 4 Johns. Ch. 607. Thus, by the aid of parol
evidence, the American Bible Society, the American Tract Society, the General
Synod of the Reformed Protestant Church, the New York State Colonization So-
ciety, and the American Seaman's Friend Society, respective 1 .}' were allowe I to take
bequests of a residue expressed thus, to the treasurers of the following societies:
" Am. Bible, Tract, Synods, Board of Missions, Domestic Missions, N. Y. Coloniza-
tion, and Seaman's Friend." Hornebeck v. American Bible Society, 2 Sandf. Ch.
133. The " Boston Asylum and Farm School for Indigent Boys," was enabled to
take a bequest expressed to be to the " Boys' Asylum and Farm School," there being
no other claimant. Mtnot v. Boston Asylum, 7 Mete. 416. So the First Congrega-
tional Society in A. may take a bequest to " The Congregational Society of A.," it
appearing that at the date of the execution of the will there was no other such So-
ciety in A., and there being no other claimant. Howard v. Am. Peace Soc. 49 Me.
297. So the " Preachers' Aid Society of the Maine Conference of the Methodist Epis-
copal Church," may take a bequest to "the Maine Methodist Conference Ministers'
Aid Society," if the circumstances indicate that this and no other Society was in-
tended, there being no other claimant Preachers' Aid Soc. 45 Me. 552. The testa-
tor who lived in C., made bequests " to the Presbyterian Church in C.," " to the
Methodist Church in C.," and " to the Baptist Church," not adding in C. : field, that
the former gifts were sufficient, there being one of each such churches in C., but in
the absence of anything to identify the Baptist Church with that in C., the latter was
void for uncertainty. Lefevre v. Lefevre, 2 Supm. Ct. (T. & C.) 341. In this case
no evidence whatever was given on the trial as tj the usage of the testator, in speak-
ing of the Baptist Church or Society.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 139
claimant, the false or inapplicable part may be rejected, if enough
remain, in the light of competent extrinsic evidence, to identify
the donee. The origin of the rule seems to have been in reject-
ing a false description added to a correct name, but the rule is
not confined to this class of errors. It is not the rule that the
name controls the description, in the absence of evidence. 1 The
name may be rejected as false, leaving the description to control. 2
Upon the same principle evidence is competent that the testator
was accustomed to call a person by the name used in his will,
which is not the true name, 3 or even by a name which the scrive-
ner mistook by similarity of sound for that written in the will,
and to which no other person answers. 4 Evidence of other acts of
beneficence shown to the claimant by the testator while living is
competent ; 5 so is evidence of a bequest to him in a prio/ will of
the same testator, 6 and evidence of a general belief in the family 7
that the testator was his godfather. 8 Where one person answers
to the name only, and another to the description only, without
anything in the will toMecide the question, there must be compe-
tent extrinsic evidence supporting the application to one in pref-
erence to the other, or the bequest will be void for uncertainty.
97. adverse claimants.'] We have thus far boen consider-
ing chiefly cases where there is but one claimant, the question
being whether that claimant shall take, or the gift fail for uncer-
tainty. Where the only claimant is a natural person, designated
inexactly or incompletely by name, it is incumbent on him to
give some evidence tending to show that no other person of the
name is entitled ; but where the only claimant is a corporate
1 Drake v. Drake, 8 IIo. of L. Cas. 178. In this case the draftsman's testimony
lo his instructions, was excluded as incompetent. Compare Gillett v. Gane, L. R. 10
Eq. 20; Doe T. Roast, 11 Jur. 99; Farrar v. St. Catherine's Coll. L. R. 16 Eq. 19;
Nunn's trusts, L. R. 19 Eq. 331 , Camoys v. Blundell, 1 H. of L. Cas. 786.
a Thus, in a bequest to " my brother John," the word " John " might be rejected
on proof that the testator had but one brother, James. In a bequest to " my brother
Cormac','' described elsewhere in the will as the father of testator's nephew Cormac,
the name Cormac was rejected, and the legacy awarded to testator's brother James,
the father of the nephew Cormac, on proof of these facts, and that the only other
brother of testator was dead, and so believed by testator to be. Connolly v. Parden,
1 Paige, 291.
8 Hart v. Marks, 4 Bradf. 161.
4 Beaumont v. Fell, 2 P. Wms. 141 ; 2 Phil, on Ev. 729, n. 2. If there were a
claimant answering the mistaken description such evidence would not be competent.
4 Price v. Paige, 4 Ves. 679.
* In re Gregory, 11 Jur. N. S. 634.
Id
8 Wagner's Appeal, 43 Penn. St. 102. And in New York it has been held competent
to prove testator's declarations at the time of executing the will, and adduce the tes-
timony of the draftsman to his instructions, and a mistake in engros.-ing which
caused the inapplicability of the description. Exp. Hornby, 2 Bradf. 42i>. But see
Charter v. Charter, above cited, where it was held that evidence of the declarations
of a testator as to whom he intended to benefit, or supposed he had benefited. <-:m
only be received where the description of the legatee, or of the thing bequeathed, ia
equally applicable iu all its parts to two persons, or to two things.
140 ACTIONS BY AND AGAINST.
body, not precisely, but nearly, answering to the designation in
the will, it cannot be assumed without some proof .that there is
or has been any other institution bearing a name or description
similar, 1 unless the designation is matter of description, by words
judicially known to be applicable to many such bodies. 2 But if
the question is which of two adverse claimants are entitled, the
rules of evidence differ materially. Where the name and de-
scription lead to a reasonable belief that they apply to some one
person, and there is no other person to whom they can with any
probability apply, then slight evidence will be sumcient to prove
that that person was intended by the designation. But if, with
such proof in favor of one, there is similar or stronger proof
identifying another, then the claim of the former, though such
that, if it stood alone, it would be prima facie proved, is con-
trolled by the claim of the other, who is more precisely identi-
fied. 3 In the case of adverse claimants of the same gift, the fol-
lowing rules apply :
1. If one (being competent to take) alone precisely answers
the whole designation of the will, 4 or is identified by the con-
text, 5 extrinsic evidence that the other was intended is incom-
petent.
2. If both precisely answer the whole designation and indi-
cations of the will, a latent ambiguity or " equivocation " is pre-
sented, and extrinsic evidence is competent ; and in this class of
cases direct evidence of the testator's intention, even by proving
his declarations of purpose, is admissible.
3. If neither precisely answers the designation and indications
of the will, but both do so approximately, this is also a case of
latent ambiguity, admitting extrinsic evidence ; and in this class
of cases, too, according to the better opinion, the testator's dec-
larations of intent may be proved.
A latent ambiguity is made out within these rules, not only
where there is a legal name which fits several, but equally where
there is a description only, 6 or a name used in common parlance, 7
1 SHAW, C. J.. Minot v. Boston Asylum, <fec. 7 Me*c. 419.
8 See Le Fevre v. Le Fevre, cited in note 3, p. 138.
8 SHAW, C. J., Minot v. Boston Asylum, <fec., 7 Mete. 418, s. p. Kilvert's Trust, L.
R. 7 Ch. 170.
* Extrinsic evidence is admissible to show that the P. E. " church " in N., in a be-
quest, means the incorporated " Society " of that name, which is proven to be usually
and popularly called the church, and not the " church" strictly so called, which is
unincorporated, and consists of the communicants united in connection with the so-
ciety. Ayres v. Weed, 16 Conn. 291. But, where testator's brother, Mark Ingle,
had died, leaving a son of the same name, who was abroad, and iu fact living, but
whom testator had been led to suppose, shortly before making tha will, wjs dead, and
testator gave a share to the children " of my late nephew, Mark Ingte," Held that
evidence of intention to give to his late brother was not admissible. lagle'a Trusts,
L.R. 11 Eq. 578.
6 Per McCoux, V. C., Smith v. Smith, 1 Edw. 191.
6 Brewster v. McCall, 16 Conn. 292; Button v. Am, Tract Soa 23 Vt. S50.
7 Ayres v. Weed, 16 Conn. 300.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 141
or a name -which fits one claimant only, coupled with a descrip-
tion which fits the other only, 1 or a designation which without
rejection of some terms is false in application. 2 But in applying
these rules, the principle is to be kept in mind that if the one
claimant is designated with substantial accuracy, and by extrinsic
evidence it appears that there is another claimant answering less
nearly to the designation, evidence of intention is not competent. 3
But, on the other hand, if the designation is substantially imper-
fect in its application to each, the court is not bound to determine
in favor of the one that most nearly answers it, but extrinsic evi-
dence is admissible. 4
98. circumstantial evidence of intention,'] For the pur-
pose of identifying the intended donee, it is competent to prove
the circumstances of his relations and dealings with the testator,
and the testator's habits of conduct and kindness to him. 5 The
fact that testator was intimately acquainted with one, and but
little known to the other, of two who are equally near to a mis-
taken designation, sustains a presumption of fact, that he intended
the former. 6 So of the fact that one was nearer of kin to him
than the other. 7
99. case of gifts to CharitiesJ] To identify the society
which the designation in the will intends, the appropriate evi-
dence includes such facts as the testator's knowledge or ignorance
of the society in question, 8 his visits to its institution or field of
labor, and the fact that he conversed about it before making his
will, 9 the facts that he expressed a strong interest in it in con-
1 Drake v. Drake, 8 Ho. of L. C. 178.
4 See Still v. Hoste, 6 Madd. 192, well explained in 1 Redf. on "W. 627, n.
8 In such a case, evidence of testator's knowledge of the latter, and ignorance of
the former, and that his instructions named the latter, but the draftsman, under mis-
take as to the true name, prevailed on him to insert the former name, meaning to
designate the other, is not competent to establish the claim of the latter, even though
the designation would enable the latter to take, if the former were not named. SHAW,
Ch. J., Tucker v. Seaman's Aid Soc. 7 Mete. 209.
4 Ld. PENZANCE, Charter v. Charter L. R., 2 P. & D. 315, 324, 8. o. 1 MoaVs Eng.
249, 259. Where, however, the designation is adequate for either of several socie:ies,
some of which are capable of taking, and others not, there is a presumption that the
testator intended one of the former rather than the latter. Brewster v. McCall, 15
Conn. 294.
6 Above, paragraph 96.
8 Smith v. Smith, 1 Edw. 192; Careless v. Careless, 1 Merw. 384, s. c. 19 Vea.
601.
7 Smith v. Smith (above).
B Howard v. Am. Peace Soc. 49 Me. 298. Thus, the "American Board of Com-
missioners for Foreign Missions " may take a bequest to " The Congregational Foreign
Missionary Association," on proof that it was the only Foreign Missionary Society
identified with the "Congregational" churches, and that the testator knew of, spoke
of, and contributed to it, alone, and desired to make a bequest to it but did not know
its corporate name ; and although Baptist and Methodist churches had foreign mis-
sionary societies, and the Baptist churches are in organization congregational, and
although there was also an American Missionary Association engaged in connection
with Congregational church-s in missions at the South. Id.
9 This waa in effect fully determined in Le Fevre v. Le Fevre, N.Y. Ct. of App.
Cos. 1875.
142 ACTIONS BY AND AGAINST
vereation 1 or in letters, 8 or expressed a preference for it over
other similar agencies, 3 that he subscribed to its funds, 4 or had
made a special gift to it, 8 or that the church lie attended was ac-
customed to talte a contribution for it ; 6 that he had been an
officer of the society or one of its auxiliaries, 7 or that his religious
sentiments accorded with those of the society. 8
100. or M/snomer.] Upon a question of misnomer, both
the usage of the testator in speaking of the society, 9 his ignorance
of its true name, 10 and the common usage of the public, are com-
1 Button v. Am. Tract Soc. 23 Vt. 849.
! Ilornbeck v. Am. Bible Soc. 2 Sandf. Ch. 133.
8 Button v. Am. Tract Soc. (above). It was there held that " The American Tract
Society" might take, as against "The American Home Missionary Society," a bequest
to "The American Home Mission Tract Society for our Western Missions," on ex-
. trinsic evidence that testator was acquainted with the objects and operations of
the Tract Society ;. that those operations were mainly confined to the Western States ;
that he took a lively interest in it, contributed to its funds, and expressed a preference
for it over other charitable institutions.
4 Kilvert's Trust, L. R. 7 Ch. 170, modifying L. R. 12 Eq. 183; Am. Bible Soc. v.
Wetmore, 17 Conn. 186.
* Hornbeck v. Am. Bible Soc. (above).
' Am. Bible Soc. v. Wetmore (above). In that case it was held that " The Amer-
ican Board of Commissioners for Foreign Missions" might take a bequest to "The
Foreign Mission Society," upon extrinsic evidence that it was commonly known by
that name to the testatrix and the members of the church to which she belonged, and
that she was friendly to its objects and a contributor to it.
In Howard v. Am. Peace Soc. (49 Me. 298), to show that " The American Board
of Fore'gn Missions" was intended by a bequest to the " Congregational Foreign
Missionary Society," evidence was received and relied on by the court, that testator,
before making his will, knew of its existence as a society gathering donations from
Congregational churches and their members, for foreign missions, so far that a peri-
odical collection was taken therefor in the Congregational churches in proximity to
which he resided; that testator expressed a desire to make a bequest to it, speaking
of it in contradistinction to certain Methodist and Baptist Societies ; and he gave
instructions for such bequest, but that neither he nor his draftsman knew its corporate
name.
1 Brewster v. McCall, 15 Conn. 294.
8 Id.
9 Evidence that the testator, in speaking of the affairs of the society (a religious
corporation in contradistinction from the church in connection with which it was or-
ganized), always called it " the church," is admissible for the purpose of ascertaining
which body should take a bequest to "the church." Ajres v. Weed, 16 Conn.
290.
I0 .In The Trustees, <fec. v. Peasley (15 N. IT. 817), the bequest was to "The Frank-
lin Seminary of Literature and Science, Newmarket, N. li.", and again "to said
Franklin Seminary." It appeared tliat the school was at South Newmarket, in the
town of Newmarket, and known by the name of " The Franklin Seminary of Litera-
ture and Science," but before the will was made the name was changed by incorpora-
tion to " The Trustees of the South Newmarket Methodist Seminary." There was
only one public school at Newmarket, and this was taught by and under the control
of Methodists, although it does not appear that it was a sectarian school. The testator
was a Methodist clergyman, and once asked another Methodist clergyman to what in-
stitution he should make a donation, and was told " The Franklin Seminary at South
Newmarket." This name was written down by the testator's wife, at his request, and
placed by him in his pocket-book. The court say, ' The evidence tends strongly to
show that he did not know that the name of the school had been changed. He in-
quired how the school at South Newmarket prospered, and often spoke about it. Now,
these facts clearly sh-jw that the testator had in his mind the school which was after-
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES.
petent ; and for the latter purpose, it is competent to prove that
correspondents of the institution frequently addressed it by the
name used in the will ; and an officer of the society or other wit-
ness cognizant of the facts may be asked to state generally how
it is designated in their correspondence, circulars, and advertise-
ments ; and how it was commonly called by persons having deal-
ings with it. 1
101. direct evidence of intention."] Some of the English
decisions 2 declare that direct evidence of intention is inadmis-
sible, unless the two claimants whose description by extrinsic
evidence creates the ambiguity answer the designation of the will
with an equal degree of accuracy ; and although the better opin-
ion is as I have stated it above, yet, except in such cases, it is the
safer practice, in jurisdictions where the rule is not settled, to
rely on evidence of testator's situation and relation to the claim-
ants, and his usages of speech in regard to them, if these are
sufficient, rather than on direct evidence of his intention. Of
course, where direct evidence of intention is admissible, any fact
or circumstance which, from experience or observation, may
fairly be presumed to have had an influence on his mind in in-
ducing him to prefer one of the persons described by him to
another, is admissible to prove his intention. 3
102. aid in applying to the Property intended.'] The same
principles which regulate the resort to extrinsic evidence to aid
in applying the language to the person, regulate it in applying
the language to the property. Extrinsic evidence is not admissi-
ble to change a specific and explicit designation of the property
given in the will, so as to substitute a different subject, although
part of the description be equally applicable to either piece of
property ; 4 and it cannot be made admissible even by showing
that the testator did not own the parcel designated in the will,
and did own another, and that the draftsman made the mistake,
for instance, to show that he designated the west half instead of
the east half, or section 1 instead of section 2. 5 Nor can an ex-
wards incorporated by its present name. Whnt its peculiar designation was, must hnve
been indifferent to him, for it was the institution, by whatever name it was known,
which he desired to patronize and benefit."
1 Lefevre v. Lefevre, Cas. in N. Y. Ct. of App. 1875.
9 See Doe ex dem. Hiscocks v. Hiscocks, 6 Mees. <fe "W. 363 ; Charter V. Charter,
L. R. 7 II. of L. 664, s. c. 12 Moak's Eng. 1, affi'g. s. c. 1 Moak's Eng. 240, and cases
cited. The English cases are not, however, consistent in confining the admission of
direct evidence of intention to cases where it fits both persons or subjects with pre-
cisely equal accuracy or appropriateness. Earlier cases held that in any latent am-
biguity or misdescription, though there be only one claimant or subject, evidence of
declarations of intent is admissible, especially if made at the time of making the will.
Trustees v. Peaslee, 15 N. H. 830, and cases cited.
8 Ayres v. Weed, 16 Conn. 200.
4 Robinson v. Williams, 1 Weekly Notes (Pa.), 337.
5 Fitzpatrick v. Fitzpatrick, 36 Iowa, 674, 8. c. 14 Am. R. 638, and cases cited;
Kurtz v. Hibner, 55 111. 614, s. r. 8 Am. R. 665, 669. But see criticisms on tlm doc-
trine in 10 Am. L. Reg. N. S. 94, 353, and see 1 Redf. on Vv". 684 (.11), and cases cited.
In some such cases, tho iulae word or number may be rejected.
144 ACTIONS BY AND AGAINST
plicit and sufficient designation be enlarged by extrinsic evidence
that the testator meant more than the words will bear ; for in-
stance, that by "moneys" he meant to pass choses in action, se-
curities, 1 etc.
103. identifying the property."] If the subject of the be-
quest is indicated in the will by words which do not have a fixed
legal meaning, and especially words which refer to extrinsic cir
cumstances, for example, a devise of " the home and garden I
now live in," the meaning is to be ascertained by evidence ex-
plaining what were those extrinsic circumstances, 3 at the time
referred to in the will, 3 and a fortiori, if the designation bears
no sufficient signification to a reader unaided by extrinsic evi-
dence for example, a devise of " all my back lands," evidence
is admissible of the declarations of the testator before and after
the making of the will, showing his habit in the use of such ex-
pression, and what property he was accustomed to designate in
this way. 4 [Jpon this principle, evidence that he and his steward
were accustomed to call the estate by the name used in the will,
and their entries of that name in their accounts, are competent. 5
And as a general principle, if the subject of the bequest is de-
scribed by reference to an extrinsic fact, extrinsic evidence is
competent to show what was intended. 6
104. rejecting False Words."] When resort to extrinsic evi-
dence has shown that the description is false in part, the false
part may be rejected, if the residue, with the aid of the extrinsic
evidence properly applicable, will be legally sufficient to indicate
the gift. Thus a bequest of bank stock, describing it as stock in
1 Thus, where the testator gives his wife " all the rest, etc., of the moneys belong-
ing to my estate at the time of my decease," extrinsic evidence is not admissible of
his intention to leave securities to her ; nor that he had been accustomed to support
the family from the proceeds of such securities, and made an otherwise inadequate
provision for her. Mann v. Mann, 14 Johns. 1, affi'g 1 Johns. Ch. 231; but compare
Knight v. Knight, 30 L. J. Ch. 644.
2 Doe ex dem. Clements v. Collins, 2 T. E. 498.
3 Stanford v. Lyon, 8 Vroom (N. J.) 426, s. c. 18 Am. R. 736.
4 Ryerss v. Wheeler, 22 Wend. 148.
6 Ib. and cases cited. It was there said that evidence of such declarations at
ffie time of executing the will would not be competent. But see Exp. Hornby, 2
Bradf. 420. The sculptor Nolleken's will provided that " all the marble in the yard,
the tools in the shop, bankers, mod. tools for carving," shall be the property of A.
(a favorite and long employed workman). Extrinsic evidence was admitted that in
the trade "mod." would be understood as meaning models, and that there were no
such tools known as modeling tools for carving; also of the relative value of the
moulds and models, and of the personal relations between the testator and legatee.
Goblet v. Beechey, 3 Sim. 24. Reversed, on the ground that the models were other-
wise bequeathed. 4 R. & M. 624.
6 Thus, where testatrix directed that a mortgage on her house be paid, and also
"all debts now due to" certain persons named, to an amount specified, extrinsic evi-
dence that the only mortgage on the house was the one made with her assent, by a
person who owned it jointly with her ; and that the same person owed debts of th3
amount specified to the persons named, was competent to show that these were in-
tended. Pritchard v. Hicks, 1 Paige, 270.
''HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES.
the A. bank, will pass stock in the B. bank, if that was the testa-
tor's only bank stock ; for after the name of the bank is rejected,
enough is left to ascertain the thing by ; * but this cannot be done
where, after rejecting the false designation, the bequest is left
uncertain. 2 If, however, all the words can be consistently ap-
plied, though some of them restrict others which alone would
have been sufficient, the court will not reject the restrictive
words. 3
105. uncertainty as to Which of Two parcels.] As in the
case of an equivocal designation of the beneficiary, so in the case
of a similar ambiguity as to the property given, if it is shown
that a designation in the will, which upon its face is unambigu-
ous and sufficient, applies equally in all its parts to more than one
1 Roman Catholic Asylum v. Emmons, 3 Bradf. 144. But, there being a corpora-
tion in Dedham, entitled " The President, Directors and Company of the Dedham
Bank," and generally called " The Dedham Bank," a bequest of " all moneys due me,
at the time of my decease, from Dedham Bank, Dedham, Alass.," \vill not pass a deposit
in "Dedham Institution fop Savings," though generally known as the Dedham Sav-
ings Bank, and though, at the date of the will, testator had a deposit there. This is
not a case of false description ; for testator refers to what may be at the time of
death. American Bible Society v. Pratt, 9 Allen, 109; approved in 1 Redf. on W.
666, n. Where testator gave a specified " part of my stock in the $4 per cent, annui-
ties ; " and it appeared that he had previously sold all such stock and re-invested tho
proceeds in long annuities. Held, that evidence of the situation of the funds was
admissible ; but direct evidence of testator's intent, and the scrivener's mistake in
copying from an old will, was not. See Redfield's comments on Selwood v. Mild-
may, 3 Ves. 306, in 1 Redf. on W. 597, and n.
s Thus, where the only description was " the farm I now occupy," it was held
that the words, " I now occupy," could not be rejected, because no sufficient designa-
tion would be left. Hence extrinsic evidence that the testator intended by this to
give all his real estate at W., including a farm occupied by a tenant, was not admis-
sible. THOMPSON, J., Jackson v. Sill, 11 Johns. 201. But where the description was
" tha old homestead, whereon I lived at the time of making my will, containing 100
acres, Held, that the property was identified by the designation " old homestead,"
there being evidence that this 100-acre farm had always been known by that name in
the family; and that the words, " whereon I lived, <fec.," did not let in parol evidence
of the extent of testator's occupation, or of his declarations as to the boundary.
Waugh v. Waugh, 28 N. Y. 94. So where the description was " my farm at B. in
the tenure of J. .," and part of the farm was not in his tenure, Held, that the latter
clause might be rejected. Ld. MANSFIELD, Goodtitle v. Paul, 2 Burr. 1089. So in a
devise of " all the land I own, which lies along the S. Creek, and known by the name
of T.'s Patent," the latter clause may be rejected on parol evidence that the farm-
lying along the creek was not in T.'s patent, and that the lot in T.'s patent did not
lie along the creek. Doe v. Roe, 1 "VVend. 641. In this case, the ambiguity being
latent, the scrivener's testimony to the testator's instructions, and to his own mistake,
was admitted. So a devise of the M. farm, containing eight fields, may pass nine
fields, by extrinsic evidence that he occupied nine. This renders the restriction to
eight void for uncertainty. Coleman v. Eberly, 76 Penn. St. 197.
' Thus by a gift of " all my lands in lot 25, in H. Patent, lying in tho County of
G.," such only of testator's lands in the lot and patent named, aa lie in G. will pass.
The court will not reject an intelligible and applicable restriction, merely because
the general words are enough without it. Hunter v. Hunter, 17 Barb. 85, a. p. Ped-
ley v. Dodds, L. R. 2 Eq. 819. But if, instead of " all my lands in lot 26, <fcc., lying
in G.," testator had written "all my B. estate, which lies in G.," parol evidence
would be admissible to show that he habitually called the whole property hia B. es-
tate, and ttie court might reject the partially inconsistent words, " which lies in G."
Doe v. Earl of Jersey, 1 B. & Aid. 650; 3 B. <fc Cr. 870.
10
146 ACTIONS BY AND AGAINST
subject as where a testator devises his manor of S., and it ap-~
pears that he has two such, one of North S. and one of South B.
extrinsic evidence must determine which passes ; and for this
purpose the testator's declaration of intention may be proved. 1
This rule applies also where realty is described as personalty and
vice versa. Thus a bequest of land will pass a mortgage on the
land if testator had no other interest. 2
The principles which contend for control in this class of ques-
tions are, that, on the one' hand, where a devise is in general
terms, subsequent words of description, restriction, exception, or
limitation, should control the general terms ; but, on the other
hand, where the primary or larger description is sufficiently spe-
cific and certain to indicate the intent, words of identification in-
consistent with it may be rejected as false or mistaken. 8
106. Nature of Estate given.'] "Where the words of the will
are not ambiguous, and no latent ambiguity or " equivocation "
is produced by extrinsic evidence, it is not competent to adduce
evidence of the declarations of the testator or his instructions to
the draftsman, for the purpose of showing that a different estate
or interest from that indicated was intended, 4 as, for instance, that
a gift so expressed as to vest in interest at testator's death, was in-
tended to lapse if the beneficiary did not survive until it vested
in possession. 5
107. Raising a Trust.~] Extrinsic evidence to charge the ap-
parent beneficiary as trustee for a third person is competent only
when the intent is shown to have been communicated to the ap-
parent beneficiary, 6 or when admissible on principles previously
explained to aid in interpretation, or where the legatee is named
1 See paragraph 97 (above) for the limits of this rule. Where a devise is of lands
described as being in a specified parish or town, and the expression does not indicate
an exclusion of lands beyond its true limits, extrinsic evidence is admissible to show
that the whole lands were, at the date of the will, by common repute and in the un-
derstanding of the testator, within the parish or town. See 1 Redf. on W. 650-4,
and cases cited. Where usage differed as to the limits indicated by a geographical
name used in the description, evidence of testator's usage of the term would be
competent.
* Woods v. Moore, 4 Sandf. 679. But if the words of the will are insufficient to
carry real estate, it is not competent to show, from the condition of the testator's
property, or his own memoranda and declarations, that he must have so intended.
Allen's Exrs. v. Allen, 18 How. U. S. 385; 1 Redf. on W. 606, note.
* For an illustration of the arguments, pro and con., see Van Kleck v. Dutch
Church, 20 Wend. 456, where the court, including BRONSON, BEABDSLEY, NELSON,
COWEN, JJ., and others were equally divided on such a question.
4 Hill v. Felton, 47 Ga. 455, -s. c. 15 Am. R. 643, 654. And where the question
was whether the devise was of a life-estate or a fee, Held, that evidence that the
lands were wild and uncultivated was inadmissible. Charter v. Otis, 41 Barb. 625.
Contra, Sargent v. Tonne, 10 Mass. 303.
6 Ordway v. Dow, 65 N. H. 11.
* Robotham v. Dunnett, 26 W. R. 630, and cases cited.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 147
as a trustee, or where the probate court could afford no remedy,
or where one name was fraudulently inserted for the other. 1
108. Aid in Executing the will.'] There are several classes of
cases where the language of each disposition of the will is clear,
but extrinsic evidence is necessary to guide the administration in
carrying them into effect. It will be seen that it is allowed in
these cases, not to alter the meaning of the will, but to confirm
and insist on it when, without such evidence, equity would in
some way dispense with the literal fulfillment of the language.
As a general principle, after extrinsic evidence to rebut such a
presumption has been received, but not before, the like evidence
is admissible to support the presumption, that is to say, to contra-
dict the extrinsic evidence first given. 2
109. as to the Administrative Character of the gift-] Ex-
trinsic evidence is admissible to aid in determining whether a be-
quest of stock is a specific or a pecuniary legacy ; 3 and where
tiie will designates a specific fund which extrinsic evidence shows
does not exist, extrinsic evidence is admissible to show that such
fund formerly existed, and how the mistake arose ; and, in a
proper case, the legacy may upon such evidence be sustained as a
general gift payable out of the estate. 4 But the necessary legal
consequences involved in an expressed intention cannot be varied
by extrinsic evidence. Thus since the gift of a specific legacy
entitles the legatee to its income, not as an equitable presumption
of intention, but as a matter legalty included in the gift, in such
case extrinsic evidence is not admissible to show the intention of
the testator, as to the income of such legacies, where the will is
silent. 5
110. as to bequest to Creditor. ,] Where it appears that one
to whom a legacy, expressed in terms appropriate to a pure gift,
was a creditor of the testator, the court will not presume that
the bequest was intended to satisfy the debt, if, by reason of the
amount or the time for payment, the bequest would not be as
1 1 Redf. on Wills, 60, citing 1 Ho. of L. Cas. 191 ; Gaines v. Chew, 2 How. U
S. 619. Compare Irvine v. Sullivan, L. R. 8 Eq. 673; Collier v. Walters, L. R. 17
Eq. 252, s. c. 7 Moak's Eng. 798 ; Duke of Cumberland v. Graves, 9 Barb. 6!>5. It
seems that a devisee may also, in some cases, upon parol proof of testator's agree-
ment to devise to another, be held a trustee for that other. Howland Will Case, 4
Am. Law Rev. 661, and cases cited.
3 Phillips v. McCoombs (below); 1 Redf. on Wills, 647, Hall v. Hill, 1 Dru. A
War. 94, 116.
3 Boys v. Williams, 2 Russ. <fe M. 689, rev"g 3 Sim. 663. And see Pierrepont v.
Edwards, 25 N. Y. 128.
4 Lind-^reen v. Lindgren, 9 Beav. 358, 363. Compare 28 Id. 484, 520.
8 Loring v. Woodward, 41 N. H. 891; 1 Redf. on Wills, 665, 73. Whether
parol evidence to show that testator intended to dispose of property not his own is
admissible for the purpose of putting a beneficiary to an election, see note to Dillon
v. Parker, 1 Swanst. 402, 403; 2 Wms. Exrs, 6 Am. ed. 1550; ilaveus v. Sackett.
15 N. Y. 865.
148 ACTIONS BY AND AGAINST
beneficial as ordinary payment by the estate ; l and in such case
extrinsic evidence that the testator only intended to satisfy the
debt is not competent. 2 Where the bequest and the debt are
such that an equitable presumption arises that the bequest was
intended in satisfaction, then extrinsic evidence, even by the
declarations of the testator, is admissible to rebut the presump-
tion, because it simply tends to show that he intended precisely
what the will says. 8 The rule is in no case to admit extrinsic evi-
dence against construction upon the words of the will. 4
111. or to heirs or next of Jcin in Advance.'] Where the
will directs the mode of dealing with advances which the testator
has made to children or others expecting to share in his estate,
extrinsic evidence of his intent in making the advances referred
to is competent for the purpose of determining what obligations
are within the terms of the will. 5
112. as to presumptively Cumulative gifts.'] Where the
same sum is given twice in the same will to the same legatee,
courts of equity have recognized a presumption that the latter
sum is a mere repetition or substitution ; but where the two gifts
are in different instruments, e. g., where one is given by will
and the other, by codicil, 6 the presumption is that both were in-
tended. In either case, extrinsic evidence is competent for the
purpose of rebutting the equitable presumption, 7 so far as to
enable the court to place itself in the testator's situation at the
time of making the will ; butahis declarations cannot be proved to
show an intent or motive in the will, against its legal construction. 8
113. as to Adem.ption.'] If a parent, or other person in
loco parentis, bequeaths a legacy to a child or grandchild, and
afterwards, 9 in his life-time, gives a portion or makes a provision
for the beneficiary, even without expressing it to be in lieu of the
legacy, it will, in general, be deemed a satisfaction or ademption
01 the legacy. 10 When a legacy is given for a particular purpose
1 See Fort v. Gooding. 9 Barb. 3*71, and cases cited.
s Phillips v. McCoombs, Oct. 1873, Cas. in N. Y. Ct. App., Opin. of DOOLITTLE, J.,
approved in 53 N. Y. 494, overruling in part Williams v. Crary, 5 Cow. 368 ; 8 Id.
246 ; 4 Wend. 443.
8 Id.
4 Hall v. Hill, 1 Dm. <fe War. 115, and cases cited, SUGDEX, L. C.
s Tillotson v.' Race, 22 N. Y. 122. Compare Chase v. Ewing, 51 Barb. 597.
6 Or by separate instruments made at the same time. Whyte v Whyte, L. R. 17
Eq. 60, s.'c. 7 Moak's Eng. 672.
7 Be Witt v. Yates, 10 Johns. 156, and cases cited ; and see Russell v. St. Aubyn,
L. R. 2 Chan. Div. 405, s. c. 16 Moak's Eng. 818.
8 Martin v. Drink-water, 2 Beav. 215, 218.
9 A previous advance may be shown to be an ademption by extrinsic evidence.
Rogers v. Prince, 19 Geo. 816.
10 Langilon v. Astor, 16 N. Y. 9, 34; Hine v. Hine, 39 Barb. 507, and cases cited.
Even though the amount is less. Richard v. Humphreys, 15 Pick. 136. And a re-
publication of the will does not necessarily rebut the presumption. Paine v. Par-
sons, 14 Id. 320.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 149
specified in the will, and the testator, during his life, accomplishes
the same purpose, or furnishes the intended beneficiary with
money for that purpose, the legacy is presumed to be satisfied. 1
The parental relation is evidence from which it may be inferred
that payment, not a fresh gift was intended ; but this presumption
may of course be overcome by evidence that such was not the
intention ; and such evidence, when admitted, may be answered
by other evidence of the same character. 2 But the extrinsic evi-
dence is competent, in such cases, not to vary the terms of the will,
but to establish, on behalf of the claimants, the acts and intents of
the testator, so as to rebut the presumption of satisfaction arising in
behalf of the adverse party ; and it is only when such evidence
has been received, that extrinsic evidence is competent in reply
in support of the presumption of satisfaction. 3 For this purpose
the declarations of the testator relevant to the question whether
the bequest was made in loco parentis* as well as those relative
to the question of intent to addeem, are competent 5 (especially if
not contradictory to the terms of a writing), both when made at
the time of the transaction, 6 and when made before or after it ; 7
but they are not competent, to construe the language of the will,
except within the general rules previously explained, nor are
they competent, to raise a presumption of ademption where none
would arise on the face of the will, in connection with the writ-
ing relied on as constituting the ademption. The extrinsic evi-
dence is only admissible in such cases for the purpose of showing
what the testator meant by the act other than the will. 8 Extrinsic
evidence is not competent to prove that a statement in the will
that testator had made an advancement was a mistake, for the
purpose of avoiding its deduction. 9
114. as to Charging legacies.} If the language of the will
is doubtful as to whether or not legacies are charged on real
property, extrinsic evidence of the situation of testator and his
property, and the surrounding circumstances, is competent to aid
in determining the question. 11 '
1 Hine v. Hine (above), and cases cited. At least, if the intent were made known
to the beneficiary, see Langdon v. Astor, 16 N. Y. 37.
* Langdon v. Astor, 16 N. Y. 34, 35.
8 Id. ; Hall v. Hill (above); Richards v. Humphreys, 15 Pick. 139 ; 2.Wm. Exrs.
6 Am. ed. 1412, 1444; Miner v. Atherton, 35 Penn. St. 528. Contra, Sims v. Sims,
2 Stockt. Ch. (N. J.) 163.
4 Powys v. Mansfield, 3 Myl. <fe Cr. 359, 370; Gill's Estate, 1 Pars. Eq. Cas. 139.
And his acts also. 2 Wms. Exrs. 6 Am. ed. 1446.
6 Whately v. Spooner, 3 Kay & J. 542.
6 Richards v. Humphreys, 15 Pick. 139.
7 See conflicting authorities cited in Gilliam v. Chancellor, 43 Miss. 437, 8. o. 5
Am. li. 498.
8 Hall v. Hill, 1 Dm. <fe War. 94, 116.
Painter v. Painter, 18 Ohio, 247.
10 Hensman v. Freyer, L. R. 2 Eq. 627 ; 3 Ch. 420 ; Paxon v. Potts, 2 Green Ch.
(N. J.) 321, and cases cited ; Dey v. Dey, 19 N. J. Eq. (4 C. E. Green), 137. Such
evidence was not competent at law. Tole v. Hardy, 6 Cow. 833.
150 ACTIONS BY AND AGAINST
115. aa to execution of Power. ~\ The question whether a
bequest is in execution of a power, is one of intention, and the
intention cannot be proved by direct evidence of testator's
intention extrinsic to the will; but evidence of the situation
of the testator, the surrounding circumstances, and the state
and amount of testator's property at the time of making the
will is competent, both in respect to realty (as was always al-
lowed) and in respect to personalty (as formerly was not allowed),
for the purpose of comparing the dispositions of the will witn
the property owned and with that subject to the power, and
thence deducing an inference of the intention to dispose of the
latter rather than the former. 1 Upon the whole evidence the
intention must be apparent and clear ; if it be doubtful, the act
cannot be deemed an execution of the power. 8
116. Time of Declarations Searing on Intention.] Evidence
of the language of the testator offered not as direct proof of in-
tent, but to show his usages of speech, need not be confined to
any particular time ; it is enough that the declarations involve
his use, in other ways, of the language used in the will, and in the
same relation as there used. But the weight to be given to such
declarations may, of course, vary much with remoteness in point
of time from the making of the will. Where such declarations
are competent as direct proof of intention in the will, their weight
depends more immediately upon their proximity to its execution ;
but if competent for this purpose, they are competent, whether
made before, at, or after the act. 8
XI. ADVANCEMENTS.
117. The general presumption.'] The law recognizes the nat-
ural affection which prompts the parent (and in some degree any
one standing in loco parentis) to make voluntary provision for
children 4 by anticipating in favor of one or another, the distribu-
tion of the patrimonial estate before death, and which at the same
time intends that the ultimate division shall equalize the shares
of all. 5 Hence it is a legal though not a conclusive presumption,
applicable in case of total intestacy, or, to speak more closely,
wherever (will or no will) the division of the entire estate is
subjected to the statutes of descent and distributions, 6 that a sub-
1 White v. Hicks, 33 N. Y. 394 ; Ruding's Settlement, L. R. 14 Eq. 266.
2 White v. Hicks (above). Otherwise by statute, as to real property. 1 N. Y. R.
S. 782, 126.
3 This is now regarded as the better rule. Doe v. Allen, 12 Ad. & El. 451 ;
though there are many conflicting cases.
4 In many cases the language of the court extends the rule no farther than to
provisions for minors, see Jackson v. Matsdorf, 11 Johns. 91 ; but minority is not
essential to the presumption, and indeed, where the expenditure is for maintenance
during minority, may indicate that it was made in discharge of parental duty. See
Vail v. Vail, 10 Barb. 69.
6 Parks v. Parks, 19 Md. 323.
Camp v. Camp, 2 Red Surr. 141.
' HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 151
stantial provision, beyond expenditures for maintenance or edu-
cation, 1 and not characterized as a mere gift nor as creating a debt
on the part of the child, 2 was intended as an earnest of the inher-
itance, and to be deducted from the recipient's share of the estate
on the parent's death. The court look to the substantial character
of the provision. 3 But in all cases the question is one of intent, 4
the mam element being the intent of the donor ; and very slight
evidence suffices to sustain the inference that the donee accepted
the transfer upon the understanding, express or implied, that it
should serve on the death of the donor, in lieu of so much of any
share to come from his estate to the donee. 5 The intent shown
once to have existed is presumed to have continued ; 6 and neither
a transaction by which a legal debt has been constituted, 7 nor a
benefit once conferred and accepted as a gift, 8 can be converted
into an advancement, by the act of the decedent, uncommunicated
to the debtor or donee. The subject is usually regulated by
statute, which should be carefully consulted ; for a statute defin-
ing what shall be deemed to be or prove an advancement, may be
construed to exclude other evidence in substitution for, 9 or in re-
buttal of, the statutory evidence. 10 But if the statutory evidence
is adduced, it is the better opinion that parol evidence in aid of
its validity and interpretation is admissible upon the familiar
principles generally applicable to statutory evidence. 11 To deter-
mine a question of advancement, attention should first be given to
the statute definition ; then, if the statute does not preclude such
other tests, resort^ should next be had to the will, if any, to ascertain
the testator's intent ; next, to the terms of the gift or grant itself,
if in writing, or to the written entries made in his accounts, &c.,
by the testator ; or the written evidence taken from the donee ;
next, to the res gestce at the time of the transfer, and, on the fail-
ure of these tests, or in aid of them, to the declarations of the
1 1 N. Y. R. S. 754, 23 ; 4 Kent Com. 417. In States where the statute does
not exclude it, extrinsic evidence that such expenditures were intended as advance-
ments, is proper. Kiddle's Estate, 19 Penn. St. 431.
2 Law v. Smith, 2 R. I. 244.
3 Thus, wliere the father conveys the fee to his son, who reconveys for life, the
advancement amounts only to the value of the remainder. Comings v. Wellman, 14
N. II. 287. But where the consideration of a deed was pecuniary, except as to a
specified fraction, which was the grantee's " hereditary portion from" the grantor,
held, that as to the amount of that portion, it was an advancement. Miller's Appeal,
31 Penn. St. 337. So a conveyance for life, with remainder to the grantee's chil-
dren, is presumptively an advancement only to the value of the life-estate. Cawthorn
v. Coppedge, 1 Swan, 487.
4 Weaver's Appeal, 63 Penn. St. 309, and other cases cited above and below.
5 See the contractual nature of advancements well explained in Bing. on Dose.
847.
6 Oiler v. Bonebrako, 65 Penn. St. 838. ^
I Yundt's Appeal, 13 Penn. St. 675.
8 Sherwood v. Smith, 28 Conn. 616.
9 Barton v. Rice, 22 Pick. 608.
10 s. P. ns to revocation of will, paragraph 72, above.
II See Bing. on Desc. 897.
152 ACTIONS BY AND AGAINST
decedent and the admissions of the beneficiary ; and lastly, to
the character of the thing given, and the situation of the par-
ties and their surrounding circumstances, from which a presump-
tion may arise as to whether it was a gift, an advancement, or a
loan. 1
118. Advancement by Deed of Real Property^ If the lan-
guage of a sealed instrument will without violence bear either
construction, equity will receive parol evidence to show the act-
ual intent, 2 unless the statute 3 prevents. A deed from parent to
child, expressed to be in consideration of "love and affection," 4
or " gooa-will," 5 or the like, 6 raises a presumption of advance-
ment ; 7 and the fact that a nominal pecuniary consideration is
also expressed, does not alone rebut the presumption, 8 but is
enough to let in parol evidence to rebut it, 9 and parol evidence
in support of the presumption is then equally admissible. 10 If the
deed expresses only a valuable consideration and acknowledges
its payment, this by itself is presumed not to be an advance-
ment, 11 but parol evidence is admissible to show that no such con-
sideration was asked or received, 12 and such evidence raises the
presumption that the gift was an advancement. 13
119, Purchase in Name of Child.~\ Extrinsic evidence is com-
petent to show that the decedent procured securities 14 or a con-
veyance to be made, by a third person, to a child who claims to
1 Such, for instance, as the amount as compared with the estate of the parent and
the number of the children, and the purpose for which the advance was made. It is
always a natural and reasonable presumption that a parent means to treat his chil-
dren equally. If his estate is large, a comparatively small sum raises the pre-
sumption of a gift or present. So, if it be shown that the purpose was education, it
will be presumed to have been in discharge of the parental duty, until rebutted by
other evidence. Weaver's Appeal, 63 Penn. St. 309.
9 Phillips v. Chappell, 16 Geo. 16. As the question is not between the parties to
the original instrument, the general rule excluding parol is, perhaps, not strictly ap-
plicable. See Parks v. Parks, 19 Md. 322 ; and ch. I, paragraph 16, of this vol.
8 As in Vermont, Adams v. Adams, 22 Vt. 60, 64.
4 Hatch v. Straight, 3 Conn. 31.
6 Sayles v. Baker, 5 R. I. 457.
Miller's Appeal, 31 Penn. St. 337.
7 For the court presumes equal affection for the others. Parks v. Parks, 19 Md.
823. Proof that the son had rendered services under a contract, without anything
to show that he had not received the contract compensation, will not disprove the
intent of an advancement. And on the other hand, the statement in the deed, that
the conveyance was partly in consideration of a contract for services or support,
may be explained by parol testimony. Kingsbury's Appeal, 44 Penn. St. 460.
8 Hatch v. Straight (above).
9 Scott v. Scott, 1 Mass. 627.
10 Kingsbury's Appeal, 44 Penn. St. 460.
11 Newell v. Newell, 13 Vt. 24.
18 Speer v. Speer,- 14 N. J. Ch. (1 McCarter), 240; Meeker v. Meeker, 16 Conn.
883.
13 Sanford v. Sanford, 5 Lans. 486, s. c. 61 Barb. 293.
14 2 Story's Eq. J. 1204.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 153
share in his estate, under the statute, 1 and that the decedent 2 paid
the consideration, even though the deed recites payment by the
grantee ; 3 and these facts shown, without more, raise a legal pre-
sumption that the purchase was an advancement. 4 Extrinsic evi-
dence is admissible in this as in other classes of prima t facie ad-
vancements, to rebut or support the presumption of intent to
make an advancement. 5 Each case has to be determined by the
reasonable presumption arising from the facts and circumstances
connected with it. Lapse of time, connected with continued acts
of recognition of the right of the donee, are always potent, and
frequently controlling circumstances in determining the inten-
tion. 6 If it be shown that the object of the parent or husband
was to defraud his existing or future creditors, they may avoid
it ; 7 but the fact that the grantor adopted that form of convey-
ance in the fear of creditors, is not alone enough to preclude giv-
ing it effect as between the heirs, &c., as an advancement. 8
120. Other transfers.'] Unless the statutes of the State 9 im-
pose a different rule, both the fact and the character of an ad-
vancement, even of real property, may be established by parol, 10
and no particular form of words is required. 11 A sum of money
given to enable the son to purchase a farm or the like, the amount
being large and, perhaps equivalent to the apparent expectancy
of the son, is presumptively an advancement if no security or
promise is taken by the parent ; ^ and if securities for repayment
are taken by a parent on furnishing funds to the child, the subse-
quent surrender of them, or a part of them, may raise a
1 See paragraph 117.
* Whether the father. Proseus v. Mclntyre, 5 Barb. 424, 432 ; Taylor v.
Taylor, 4 Gilm. 303; Mumma v. Mumma, 2 Vern. 19; or the mother. Murphy v.
Nathans, 46 Peon. St. 608. As to grandparent, see Shiver v. Brock, 2 Jones L. (N.
C.) 137.
3 Dudley v. Bosworth, 10 Humph. (Tenn.) 9. So also where the child pays the
consideration out of the parent's funds. Douglas v. Brice, 4 Rich. Eq. 822.
4 Same cases.
6 Jackson ex dem. Benson v. Matsdorf, 11 Johns. 91 ; Proseus v. Mclntyre, 5 Barb.
424 ; Creed v. Lancaster Bank, 1 Ohio St. 1 .
6 Creed v. Lancaster Bank, 1 Ohio St. 1. The fact that the parent took and re-
tained possession until his death, was held, in early cases, not to rebut the pre-
sumption of advancement. Taylor v. Taylor, 1 Atk. 886 ; Dyer v. Dyer, 2 Cox Eq.
92; especially if the child were a minor. Mumma v. Mumma, 2 Vern. 19. Recently
it hao been held that taking and keeping the beneficial possession may rebut the
presumption, and will sustain a finding of a trust, notwithstanding a parol declaration
of intent to constitute an advancement. Stock v. McAvoy, L. R. 15 Eq. 55; s. o.
6 Moak's Eng. 711 ; nnd see Dudley v. Bosworth, 10 Humph. (Tenn.) 9.
I Bay v. Cook, 31 111. 336 ; Guthrie v. Gardner, 19 Wend. 414 ; Creed v. Lancas-
ter Bank (above); compare Kingsbury's Appeal, 44 Penn. St. 460.
8 Kingsbury's Appeal, 44 Penn. St. 460; Proseus v. Mclntyre, 5 Barb. 424, 434.
As in Barton v. Rice, 22 Pick. 508, and Porter v. Porter, 61 Me. 376.
10 Parker v. McCluer, 8 Abb. Ct. App. Dec. 464 ; Dugan v. Gettings, 8 GilL 138.
II Bulkeley v. Noble, 2 Pick, 837; Bing. on Desc. 888; Brown T. Brown, 16
V t, 1 y I
1J Weaver's Appeal, 63 Penn. St. 309.
154: ACTIONS BY AND AGAINST
tion of advancement to that extent. 1 On the other hand, while a
note given by a child to the parent is presumed to be not an ad-
vancement, but a debt, yet parol evidence is admissible to show
that it was given as an admission of an advancement. 2 The mere
delivery of money or chattels is not presumptively an advance-
ment, but rather, in the absence of evidence tending to show it
was intended as an advancement, is presumed to have been either
a gift or loan ; 3 or, if the parent was indebted to the child, it will
be presumed to have been intended as payment. 4
121. Entries in account.'] An account kept by the donor, in
which he charges the sum in a manner indicating his intent that
it is to take effect as an advancement, may be sufficient without evi-
dence that the donee knew of the charge. 5 But where this is the
only evidence of intent, it is the better opinion that the quality
of advancement, that is to say the liability of the donee to have
the gift deducted from his share of the estate, may be released
by a cancellation or corresponding credit evincing a discharge,
although not communicated to the donee, 6 as well as by conduct
of the parties treating it as such. If the entry or other memo-
randum be made in a form indicating a gift, or a loan, or bail-
ment, 7 parol evidence is admissible to explain that it was intend-
ed as an advancement.
122. Declarations and admissions as to advancements.]
Whether the advancement was by a conveyance made by the
donor, 8 or made by a third person on a consideration moving
from the donor, 9 or by transfers in pais, and by charges in ac-
count or other writings, or by parol, 10 the declarations of the
donor made at the time are admissible as part of the res gestce^-
although not competent evidence as to intent if the statute re-
quires written evidence. 13 Subject to the same statutory qualifi-
1 Hanner V. TVinbnrn, 7 Ired. Eq. 142. But a mere declaration uncommunicated
may not be enough. See Bing. on Desc. 392.
2 Tillotson v. Race, 22 N. Y. 127.
3 Bing. on Desc. 394, &c. The fact that the conveyance was of real property en-
hances the presumption, because it is more suggestive of the purpose of permanent
settlement. Parks v. Parks, 19 Md. 323. On the other hand, it would take stronger
evidence to show that the gift of a saddle horse was an advancement, than that of a
stallion kept for purpose of profit. Ison v. Ison, 6 Rich. Eq. 15.
4 Hagler v. McCombs, 66 N. C. 345.
8 As to what form of charge has this effect, see Lawrence v. Lindsay, 6S N. Y.
108. rev'g 7 Hun, 64 1 ; Bigelow v. Pool, 10 Gray, 104 ; Bing. on Desc. 382, and
cases cit. His credit of interest held competent evidence that it was a loan. Peck
v. Peck, 21 L. T. N. S. 670.
6 Compare Johnson v. Belden, 20 Conn. 322 ; Oiler v. Bonebrake, 65 Penn. St. 338.
7 Law v. Smith, 2 R. I. 244.
8 Christy's Appeal, 1 Grant's Cas. 369 ; Parks v. Parks, 19 Md. 323 ; Speer v.
Speer, 14 N. J. Eq. (1 McCarter) 240, 248.
9 Compare Sayles v. Baker, 5 R. I. 457. I0 Oiler v. Bonebrake, 65 Penn. St. 388.
11 Woolery v. Woolery, 29 Ind. 254; Wilson v. Beauchamp, 50 Miss. 24; Fellows
v. Little, 46 N. II. 37, 38; Bragg v. Massie, 38 Ala. 89, 106. And very freely if
fraud or undue influence appears. Cook v. Carr, 20 Md. 403.
11 Weatherhead v. Field, 26 Vt. 665 ; Bulkeley v. Noble, 2 Pick. 337.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 155
cation, the declarations of the donor, made before the transac-
tion, are competent on the question of his intent. 1 Whether
his declarations made after the transaction are competent, de-
pends on how they are invoked in evidence. 2 For the pur-
pose of showing that the transaction was a gift, the donor's
declarations are competent against the representatives, heirs, and
next of kin, claiming it to be an advancement ; 3 and for the pur-
pose of showing either that it was a gift or advancement, they
are competent against those claiming it to have constituted a
debt ; for in either case they are his admissions against interest,
and bind those claiming under him and in his right. But for
the purpose of showing either that the transaction was an ad-
vancement, or that it was a debt, his declarations, made after he
had parted with all power of revocation, are not competent
against those who claim it as a gift ; 4 and for the purpose of
showing that it was a debt, they are not competent against those
who claim it either as a gift or as an advancement ; for, in either
case, they are the declarations in his own favor. The fact that
such declarations were communicated to the donee, may, of
course, rendej* them competent ; 5 and they may also be admis-
sible on principles previously explained, 6 when necessary and
proper to show his intent in a subsequent will referring to the
advancements. 7 The donee's declarations or admissions, made as
part of the res gestce, or at any subsequent time, are competent
against him and those claiming under him. 8
123. Value. ~\ The burden of proving value is on those who
claim that the provision should be deducted as an advancement ; 9
but evidence that the advancement was accepted in full of the
1 Powell v. Olds, 9 Ala. 861.
3 The cases may not explain the distinction here stated, but the distinction ex-
plains the cases.
3 Phillips v. Chappell, 16 Geo. 16 ; Johnson v. Belden, 20 Conn. 322; Note in 13
Moak's Eng. 700. Contra, Bing. on Desc. 404.
4 Sanford v. Sanford, 5 Lans. 486, s. c. 61 Barb. 293 ; Hatch v. Straight, 3 Conn.
81. Contra, Rollins v. Strout, 4 Nev. 150. Compare Law v. Smith, 2 R. I. 244 ; Peck v.
Peck, 21 L. T. N. S. 670. A debt barred by the statute of limitations cannot, by the
decedent's declarations alone, be converted into an advancement. Bing. on DL-SC. 363.
6 Yuudt's Appeal, 13 Penn. St. 575.
6 Paragraphs 111 (above) and 124 (below).
1 Tillotson v. Race, 22 N. Y. 126. A security which cannot, under the statute,
be proved to represent an advancement, may be made such by a provision in the will.
Bacon v. Gassett, 13 Allen, 337. Whether the decedent's transactions with the
other heirs apparent are relevant on the question of his intention in the transaction
with the one claiming a gift, compare Bulkeley v. Noble, 2 Pick. 837 ; Weaver's Ap-
peal, 63 Penn. St. 309.
8 Christy's Appeal, 1 Grant's Cas. 369 ; Speer v. Speer, 14 N. J. Eq. (1 McCarter)
240, 248 ; Law v. Smith, 2 R. I. 244. Debts by the husband of the decedent'8
daughter cannot be changed into advancements as against her, merely by her ad-
mission that "this we owe to father honestly." Yundt's Appeal, 13 Pa. St. 675. A
judgment or decree, in n suit for settlement of the estate, fixing the character and
amount of advancements, is conclusive in a subsequent action between the same par-
ties, or those in privity with them, as to realty. Torrey v. Pond, 102 Mass. 355.
9 See Bell v. Champlain, 64 Barb. 396.
156 ACTIONS BY AND AGAINST
donee's share throws on the donee the burden of proving that
the value was less than his share. 1 The value may be conclusive-
ly fixe.d by an acknowledgment in writing, 2 or it may be made
immaterial by a conclusive release of all interest in the estate,
given upon receiving the advancement. 8 If the advancement
was made by a deed expressing a pecuniary consideration, that
sum may, by extrinsic evidence, be shown to be the value. 4 If
the donor put a value on the advancement, in the transaction it-
self, it excludes evidence of greater value, 9 but not evidence of
less value. 6 If, however, . a value was fixed by agreement
with the donee (the acknowledgment being in writing if the stat-
ute so require), it excludes evidence of less value. Where act-
ual value is to control, value at the time of the transfer is to be
proved, and without interest. 7
124. Testamentary clauses as to advancements.'] Where the
will refers to money bequeathed as being already in possession of
the donee, the burden is upon those alleging satisfaction to show
that the possession continued, at least if the beneficiary is one
who might be presumed to have held possession as the testator's
agent. 8 Where the will refers to entries or memoranda, or other
unattested papers previously made or subsequently to be made,
to ascertain the advancements, the documents so identified are
competent evidence, 9 and so, also, if it releases securities taken
from the beneficiaries. 10 If the entries or securities thus referred
to do not bear evidence on their face that the sums were intended
as advancements, extrinsic evidence is competent u and necessary, 13
to establish the donor's intent to make them such.
XII. TITLE, AND DECLARATIONS, OF ANCESTOR, HEIE, &c.
125. Ancestor's title, and Successor's election.'] At common
law the heir must produce evidence that the ancestor was actual-
ly seized, 13 that is to say had legal title, and also actual possession
1 Parker v. McCluen, 3 Abb. Ct. App. Dec. 464.
2 1 N. Y. R. S. 754, 25.
3 Quarles v. Quarles, 4 Mass. 680 ; Kenney v. Tucker, 8 Id. 143 ; Bing. on Desc.
391.
4 Meeker v. Meeker, 16 Conn. 388.
6 Meeker v. Meeker, 16 Conn. 383.
6 See Marsh v. Gilbert, 2 Redf. Surr. R. 465.
7 Bing. on Desc. 407, 408, and cases cited.
8 Enders v. Endera, 2 Barb. 362.
9 Whateley v. Spooner, 3 Kay A J. 542; and see Langdon v. Astor, 16 N. Y. 9,
reVg 3 Duer, 477.
See Chase v. Ewing, 51 Barb. 597 ; Luqueer's Estate, 1 Tuck. 236 ; Tillotson v*
Race, 22 N. Y. 122.
11 Tillotson v. Race (above).
12 Lawrence v. Lindsay, 68 N. Y. 108, rev'g 7 Hun, 641.
13 Jackson v. Hendricks, 2 Johns. Caa. 214 ; Whitney v. Whitney, 14 Mass. 88.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 157
or its equivalent 1 thereunder. If the title of the ancestor was
acquired by " purchase " (including devise), proof of legal title
raised a sufficient presumption of seizin in fact, 2 but if by.descent
some evidence 01 seizin in fact was required. 3 The present
common law rule generally is that seizin in law is sufficient to
establish dower, but that seizin in fact is necessary to establish
curtesy. 4 The subject is now generally regulated by statutes de-
fining descendible and devisable property in a way to dispense
with the necessity of actual seizin ; 5 and possession in the ancestor
is not now usually an essential part of the evidence to prove
mere title by descent, except in those cases where possession un-
der claim 01 title is relied on as constituting the right or the evi-
dence of it. No evidence of acceptance by the heir, of title to
lands descended, is necessary. ' The law casts it upon him with-
out his consent. 8 A title by deed or devise, requires the assent
of the successor in interest, express or implied, to effect the trans-
fer. 7 But the law presumes the acceptance of a beneficial devise,
and it is doubted whether a parol disclaimer is binding. 8 Where
the right of one entitled by succession depends upon an election,
and no express election is shown, nor any positive act or declara-
tion manifesting such election, an election may be presumed from
the circumstances of benefit and silence. 9 Under the statute de-
claring the widow to be deemed to have accepted a provision in
lieu 01 dower, unless she proceeds for dower within a year after
the husband's death, it is not necessary that the devisees and
grantees should prove that she had notice of the will. 10
126. Declarations and admissions of the Ancestor as to Title,
(&c.~] Declarations made while in possession of real estate, by an
ancestor, since deceased, indicating the source of his title, and
the fact that the one under whom he claimed had been in posses-
sion, may be proved by witnesses who heard them, as evidence
against his heirs and devisees. 11 Thus, admissions by a person,
that the conditions upon the failure of which his title and right
of action depended have been performed, are admissible in evi-
dence in an action prosecuted by the heirs of the person making
I Such as possession by a tenant of less than a freehold. Bushby v. Dixon, 3
Barnw. <fe C. 306 ; or possession of one of seVeral parcels. Green v. Liter, 8 Cranch,
245.
* Wendell v. Crandall, 1 N. Y. 491.
3 Id.
4 1 Bish. Man. W. 496.
8 1 N. Y. R. S. 751, 1, 27 (6th ed. voL 2, p. 1136) ; 2 Id. 67, 2 (6th ed. vol.
3, p. 67).
6 8 Washb. R. P. 4th ed. 6 (4); and see Mumford v. Bowman, 26 La. Ann. 418.
7 3 Washb. R. P. 4th ed. 6 (4).
8 Id. 642, citing Tole v. Hardy, 6 Cow. 340 ; 2 Pet. 6567.
Merrill v. Emery, 10 Pick. 507, SHAW, Ch. J.
)0 1 N. Y. R. S. 742, 14 ; Palmer v. Voorhis, 35 Barb. 479.
II Endera v. Sternbergh, 2 Abb. Ct. App. Dec. 31, rev*g 62 Barb. 222.
158 ACTIONS BY AND AGAINST
the admissions, by reason of the privity between them. 1 But the
declarations of the ancestor in favor of his title, are not admissi-
ble for any one claiming under him, 2 unless brought within the
rule of the res gestce* or brought home to the other party. Upon
these principles the declarations made by a person in possession
of Jand, tending to show the character of his possession, and by
what title he claimed, 4 if made while both holding possession and
title, 5 although it may be after he had contracted to convey, 6 are
competent. But parol declarations or admissions, since they can,
not confer or divest title, 7 are not admissible as evidence of title,
either to sustain the burden of proof of title, or to rebut prima
facie evidence, 8 but only to show the nature and extent of the
possession and the character and quality of the claim of title un-
der which it was held, 9 or other material facts resting in pais,
such as may affect the question of title, for instance, the time,
or the absolute or conditional character, of the delivery of a
deed, 10 or a disclaimer of title made at a judicial sale under cir-
cumstances constituting an estoppel, 11 or that the deed to the
declarant was fraudulent, 12 or the existence and loss of a will, 13 or
other facts inconsistent with his claim of title. 14 So to prove
the ancestor's parol agreement to convey (which has been exe-
cuted on the part of the purchaser) his parol declarations, may
be proved by a witness. 15 A recital in the will, that the testator
had executed a deed to the defendant, is evidence against his
heirs, of a perfect execution of such deed, and of the title in the
grantee. 16 But where a will is introduced in evidence as contain-
1 Spaulding v. Hallenbeck, 35 N. Y. 204 ; affi'g, 39 Barb. 79 ; compare Savage v.
Murphy, 8 Bosw. 75, affi'd in 34 N. Y. 508.
2 Smith v. Martin, 17 Conn. 399 ; Hurlburt v. Wheeler, 40 N. H. 73.
3 As to what are competent within the rule of res gestce, compare Meek v. Perry,
86 Miss. 190, 259; Baker v. Haskell, 47 N. H. 479 ; Hood v. Hood, 2 Grant Penn.
Cas. 229 ; Fellows v. Fellows, 37 N. H. 78, 85 , Smith v. Batty, 11 Gratt. 752, 761.
4 3 Abb. N. Y. Digest, 2d ed. 123.
6 Vrooman v. King, 36 N. Y. 477.
6 Chadwick v. Fonner, 16 Alb. Law J. 431. Testator's declarations made after
executing the will, and adverse to his title, are held not admissible against those
claiming under the will, upon this principle, because they do not affect his interest.
Boylan ads. Meeker, 4 Dutch. 274; and see Jackson v. Kniffen, 2 Johns. 31; 1
Redf. on Wills, 3d ed. 539, note.
7 Proof that an intestate stated in his life-time, that he did not own any interest
in certain land, that he had sold out, and that he allowed others to deal with the land
as their own, is not evidence sufficient to sustain an allegation in a complaint against
the administrator, that the intestate executed and delivered deeds of the land. It
seems such evidence is inadmissible until it be shown that a conveyance of the land
had been in fact executed and lost. Thompson v. Lynch, 29 Col. 189.
8 See Jackson v. Cole, 4 Cow. 587 ; Walker v. Dunspaugh, 20 IN . Y. 170.
8 Jackson v. McVey, 15 Johns. 234.
10 Keaton v. Dimmick, 46 Barb. 158; Varrick v. Briggs, 6 Paige, 323 ; 22 Wend,
643. Compare Baker v. Haskell, 47 N. H. 479.
11 Mattoon v. Young, 45 N. Y. 696.
Naughton v. Pettibone, 7 Conn. 319.
13 Fetherly v. Waggoner, 11 Wend. (N. Y.) 699.
14 Rogers v. Moore, 10 Conn. 13.
15 Knapp v. Hungerford, 7 Hun, 588, and cases cited.
" Smith v. Wait, 4 Barb. 28.
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 159
ing such an implied admission of title in a stranger, the declara-
tions of the testator, at the time of its execution, in relation to it,
are admissible as part of the res gestce. 1
127. Declarations of third persons.] Evidence of the acts
and declarations of third persons, when in possession of the lands,
are competent to prove the continued possession under the will-. 2
128. Declarations of successors, representatives and benefici-
aries.'] The admissions or acts of the executor or administrator, '
unless made so by statute, 3 are not competent evidence against the
heir or devisee. 4 A mere common interest will not make the con-
fessions of one person evidence against another, a joint interest
in possession is necessary. 5 Hence the declarations of the ex-
ecutors or administrators are not competent against any other
parties who have not a joint interest, and do not stand in a rela-
tion of privity. 6 Conversely, the admission of an heir cannot
prejudice the executor. 7 And in the case of several heirs, 8 and
equally in the case of beneficiaries under the same will, if their
interests are several, not joint, 9 evidence of the admissions and
declarations of one is not competent against the other. The
principle is that a common interest is not enough, but a joint in-
terest, as where both claim under a contract naming them as
beneficiaries, may be. 10 The declarations and admissions of one
1 Testator devised lands to defendant, and, in the same will, gave legacies to
plaintiffs, on condition that they release all their right, <fec., to the lands devised.
Held, that defendants could give parol evidence of testator's contemporaneous declar-
ations, that the condition was not an admission of such title, but only by way of cau-
tion against an unfounded claim. The devisees were not a party to the legacy, nor
did they claim under it within the rule. Clark v Wood, 34 N. H. 447, 452.
2 Jackson v. Van Dusen, 5 Johns. 144. To raise a presumption that A. or his ex-
ecutors anciently conveyed away land, which his heirs sue to recover, from a mere
possessor, after many years' neglect to claim, the defendant may prove deeds between
third persons of adjoining land describing the land in question as the property of
others than A., and may adduce the testimony of a witness that he had known the
lands for upwards of 40 years, and the general repute as to their ownership, and
that he never heard of any claim of title by or under A. Schauber v. Jackson, 2
Wend. 19, 20.
' Regan v. Grim, 13 Penn. St. 608, 513.
4 Mooers v. White, 6 Johns. Ch. 360; Baker v. Kingsland, 10 Paigo, 366.
5 Osgood v. Manhattan Co. 3 Cow. 612.
8 Shailer v. Bumstead, 99 Mass. 112. The declarations and admissions of the sole
executor, he being a party in interest and a party to the record, were held admissible
against him and those represented by him, on the question of fraud or undue influ-
ence, in Davis v. Calvert, 5 Gill. <fe J. 269.
7 2 Whart. Ev. 8 1199, a. And it has been held that the declarations of the lega-
tee against the validity of the will are not competent against the executor. Dillard
v. Dillard, 2 Strobh. L. 89.
8 Osgood v. Manhattan Co., 3 Cow. 612, rev'g"15 Johns. 162.
9 1 Bright. Penn. Dig. 962, and cases cited.
10 P. 189. So. L. Ins. Co. v. Wilkinson, 53 Geo. 535. Contra, Milton v. Hunter, 4
Law <fe Eq. R. 336. The rule of exclusion stated in the text, while applicable un-
qualifiedly on probate where the issue is not as to the right of any one party, but as
to the validity of the will, as an entirety, may be thought subject to qualification in
civil actions affecting only the parties to the record and specific property. In such
cases it may be proper to admit the evidence against the declarant, if none of the
160 ACTIONS BY AND AGAINST
of several joint legatees or devisees, showing fraud or undue in-
fluence by them, is competent against both/ In the case of a
combination by several persons to procure the making of the will,
the separate admissions of either are competent against the others, 2
unless made after they have ceased co-operation, in which case
they are not. 3
129. Judgments."} A judgment or verdict for 4 or against 6
the ancestor is competent evidence for or against the heir m con-
troversies relating to the inheritance. A judgment or verdict
for 6 or against 7 an executor or administrator is never conclusive
against the heirs or devisees ; and a judgment or verdict against
the heir or devisee is not conclusive against the executor or ad-
ministrator. 8 A judgment or verdict against the executor or ad-
ministrator is not even competent evidence against the heir or
devisee, as evidence of the existence of the debt or other facts
established thereby. 9 A judgment or verdict for or against the
heirs does not bind the devisees, 10 nor conversely. A judgment
in an action under the statute to charge an heir with the debt of
the ancestor necessarily determines the title of the ancestor, as
against the parties to the action and those claiming under them,
and is conclusive on them as to that question. 11 A judgment in
a suit by a legatee on behalf of himself and all others who might
come in, &c., is not conclusive on infant legatees who did not
come in. 12
others having an interest, who are parties to the record, are litigating the question,
or if there is other evidence which, as matter of law, is sufficient to establish the
fact as against them. This distinction may explain something of the conflict of the
cases. Compare Nessar v. Arnold, 13 Sergt. & Rawle, 323 ; Clark v. Morrison, 25
Penn. St. 452 ; Morris v. Stokes, 21 Geo. Rep. 652 ; Blakey's Heirs v. Blakey's Ex-
ecutors, 33 Ala. 611.
1 Horn v. Pullman, 10 Hun, 471.
2 Lewis v. Mason, 109 Mass. 169.
3 Shailer v. Bumstead, 99 Mass. 112.
4 Lock v. Norbone, 3 Mod. 142.
6 Freeman on Judgments, 168.
6 Dale v. Roosevelt, 1 Paige, 35.
17 McCoy v. Nichols, 4 How. (Miss.) 31 ; Vernon v. Valk, 2 Hill Ch. 257 ; Collin-
son v. Owens, 6 Gill. & J. 4 ; Robertson v. Wright, 17 Gratt. 534 ; Early v. Gar-
land, 13 Id. 1. Except, perhaps, where the executor is the sole devisee of the real
estate. Stewart v. Montgomery, 23 Penn. St. 410; or where he represents him as
trustee," within the settled principles of the law of trusts.
8 Dorr v. Stockdale, 19 Iowa, 269; Combs v. Tarlton's Admr. 2 Dana, 464.
8 Kent v. Kent, 62 N. Y. 560, and cases cited; Robertson v. Wright, 17 Gratt.
534; Laidley v. Kline, 8 W. Va. 218, 230. Contra, Harvey v. Wilde, L. R. 14 Eg.
C. 438, s. c. 3 Moak's Eng. 811. Compare Early v. Garland, 13 Gratt. 1 ; Garnett v.
Macon, 6 Call. 308, 337.
10 Cowart v. Williams, 34 Geo. 167.
11 Hudson v. Smith, 39 Super. Ct. (J. <fe S.) 462. A judgment for or against the
heir not as such, but in his individual character, has been held not a bar against him
when he appears " as heir." Jennings v. Jones, 2 Redf. Surr. 95. See, also, Rath-
bone v. Hooney, 58 N. Y. 463 ; Sharpe v. Freeman, 45 N. Y. 802, affi'g 2 Lans. 171.
12 Brower v. Bowers, 1 Abb. Ct. App. Dec. 214 ; compare Kerr v. Blodgett, 48
N. Y. 62.
'
HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 161
V
XIII. ACTION TO CHARGE HEIE, NEXT OF KIN, &c., WITH
ANCESTOR'S DEBT. <
130. Material facts.] In an action against heirs or next of
kin, on a debt of the ancestor, the plaintiff must allege 1 and
prove, affirmatively, a case within the provisions of the statute
which creates the right of action. 8 His failure to 'prove every-
thing that the statute demands, IB sufficient to prevent a recov-
ery. 3 He must show the granting of letters; 4 that his action is
brought after three years from the grant of letters ; 5 that <ife-
fendant inherited real property by descent, or acquired real or
personal property under the decedent's will, or the statute of
distributions ; and that the decedent left no personal property
within the State, or that 'the same was insufficient to pay the
debt, or that the debt could not be collected by due proceedings
before the proper surrogate, and at law, from the personal repre-
sentatives of the decedent, nor (if the action is against the heir)
from the next of kin or legatees. 6
131. Mode of proof. .] The lapse of time since administration
granted cannot create any presumption as to the statute condi-
tions. 7 The acts or admissions of executors, &c., of insolvency
of the decedent, are not evidence against heirs or devisees, even
to bind the lands descended or devised. 8 A judgment against
the executor or administrator is not evidence in the statutory
action against the decedent's heir, next of kin, or legatee, to prove
the existence of the claim or demand ; 9 but the claim being es-
tablished by evidence aliunde, the record is evidence that an ac-
tion has been brought within the time allowed by law, and a
judgment recovered thereon, and is conclusive evidence that
there is no bar, under the statute, of the claim as against the per-
sonal representatives, available to the defendant. 1 " *And if the
judgment is less than the debt claimed, and there is evidence of
the identity of the debt with the cause of action in judgment,
the judgment is conclusive against the plaintiff as a limit of the
amount of his recovery. 11 The return, unsatisfied, of execution
against the executor or administrator, is not sufficient proof of
want of assets, for there may have been a misappropriation of
I Renard v. West, 48 Ind. 159.
J Mersereau v. Ryerss, 3 N. Y. 261.
8 Selover v. Coe, 63 N. Y. 443.
4 Ro,e v. Sweezey, 10 Barb. 251.
8 Id. ; Selover v. Coe (above).
6 Armstrong v. Wing, 10 Hun, 520; 63 N. Y. 438; Roe v. Sweezey (above) ;
Stuart v. Kissum, 11 Barb. 282.
' Armstrong v. Wing (above).
8 Oagood v. Manhattan Co. 3 Cow. 612, rev'g 15 Johns. 162.
9 Sharpe v. Freeman, 45 N. Y. 802. Contra, Steele v. Linebergher, 59 Penn. St
308 ; Stone v. Wood, '16 111. 177, 182.
10 Kent v. Kent, 62 Id. 660, rev'g 3 Supra. Ct. (T. <fe C.) 630.
II Rockwell v. Geery, 4 HUD, 611, s. c. 6 Supm. Ct. (T. & C.) 687.
11
162 ACTIONS BY AND AGAINST HEIRS, NEXT OF KIN, Ao.
assets, for which the remedy is by accounting. 1 But if it be
shown that an accounting has been prosecuted, the fact that there
are unrealized assets, or that assets have come to the hands of the
representative since the commencement of the present action, is
not a bar, nor does it necessarily reduce the recovery, 2 but may
restrain enforcement of the judgment.
1 Wambaugh v. Gates, 11 Paige, 515 ; Stoart v. Kissam, 11 Barb. 23i.
* Rockwell v. Geery (above).
.
CHAPTEE VI.
ACTIONS BY OR AGAINST HUSBAND OR WIFE.
I. GENERAL PRINCIPLES.
1. Marriage.
2. Foreign law.
3. Competency of husband or wife &
witness.
4. Their admissions and declarations.
6. Agency of one for the other.
6. Estoppel.
7. Judgments.
8. Evidence of husband's title.
9. Evidence of wife's title.
10. Evidence of transfer by one to the
other.
11. Tacit transfers.
12. the old rule.
13. the new rule.
14. Evidence of his application of her
funds.
15. Evidence of her conveyance.
1 6. Impeaching her conveyance.
17. Evidence of wife's separate busi-
ness.
II. ACTIONS BY OR AGAINST HUSBAND.
18. Action by him founded on marital
right.
19. Defenses.
20. Action against him founded on
marital obligation.
II. ACTIONS BT OR AGAINST HUSBAND con-
tinued.
21. Actions against him founded on
her agency.
22. Defenses.
23. Action for necessaries.
24. Defenses.
25. Causes of separation.
III. ACTIONS BY A MARRIED WOMAN.
26. Her pleading in her action on con-
tract.
27. Evidence of the contract.
28. Her action for tort.
IV. ACTIONS AGAINST HER.
29. Pleading in action against her oa
contract.
30. Evidence of the contract.
31. The making of the contract.
32. The English rule as to charging
the separate estate.
83. The New York rule.
84. direct benefit to separate estate.
85. Action against her for necessaries.
36. for fraud.
37. Husband's coercion of wife.
I. GENERAL PRINCIPLES. 1
1. Marriage.'] In all civil actions and proceedings affecting
only questions of property or torts, not involving any question
1 The statutes of the State should be carefully consulted in connection with the
statements in this chapter. Unless such a statute imposes a different rule, the general
principle may be followed, 'that, except in divorce and crim. con., and in certain
cases of confidential communication, the marital relation does not affect the compe-
tency of evidence, but it does often affect its weight, because it gives ri?e to certain
presumptions as to matters within the sphere of marital influence ; and, in conse-
quence, affirmative evidence is in some cases necessary, when in the case of siuir'e
persons, a presumption would be allowed without evidence ; and, in some cases, evi-
dence is inadequate which would be adequate in the case of single persons. In other
words, to the extent in which modern statutes have removed civil disabilities of the
wife, the same rules of competency apply to the transactions and the testimony of hus-
band and wife, as apply to those of other persona. But the marital relation remains,
and to the extent in which the conduct of either is had within its sphere, the
[163]
164: ACTIONS BY OR AGAINST HUSBAND OR WIFE.
of marital infidelity, marriage may be proved either by direct
evidence, or by evidence of cohabitation and repute, or cohabita-
tion and declarations, in the manner stated in the last chapter. 1
2. Foreign Law.~\ The generally received rule is that the
original title of husband or wife to movables is controlled by
the law of place which was their domicile at the tune of the ac-
quisition ; the validity of their transactions, except as to realty,
may be sustained by the law, either of the place of the transac-
tion, or of the place fixed on by the contract for its performance,
or of their domicile at the time of the transaction, unless the act
was forbidden by positive law of either place ; and the title to
realty and the validity of transactions affecting it, are controlled
by the law of the place where the realty is situated. Domicile is
to be proved in the mode stated in the last chapter. 2 The courts
of a State do not take judicial notice of the law of husband and
wife in other States ; and a party who desires to rely on such law
should be prepared to prove it as matter of fact. In the" absence
of such proof, if the question turns on the law of a State deriv-
ing its jurisprudence from England, the court may apply the
rules of the old common law : 3 if on the law of any other State,
the court will apply the law of the forum. 4 By whatever law
the right is determined, the form of the remedy and the compe-
tency of evidence, are governed by the law of the forum. 5
3. Competency f>f Husband or Wife as Witness.'] The New
.York statute provides that no person shall be excluded or ex-
cused 6 from being a witness because he or she is the husband or
influence of that relation is recognized by the law as an element of great impor-
tance, iii estimating the just weight of facts as evidence, and the natural presump-
tions resulting. Thus the law recognizes and draws presumptions from the natural
disposition of a husband to make provision for his wife ; her disposition to be silent,
or even acquiescent, for the sake of peace, in the face of his wrongful conduct toward
others, or toward herself or her separate property rights; the natural disposition of
each, without claim or admission of transfer or compensation, to hold and allow
the holding of the exclusive property of one, in the use or safe-keeping of the other ;
and the peculiar facility which the relation affords for undue influence, particularly
over the wife, and for the transfer to her of property in fraud of the husband's cred-
itors. The rules-stated in the text are founded chiefly on these principles, which are
almost universally recognized, although in their application some disagreement of
authority still exists in the several States.
1 Chap. V, paragraphs 14-23. 8 "Chap. V, paragraphs 61-57.
8 For these rules, see 1 Bish. Mar. W, ; Swell's Cas. The traditional rule ia that
the courts must do so. See Waldron v. Ritchings, 9 Abb. Pr. N. S. 359, s. c. 8 Daly,
288. But the changes in the law on this subject are so general and so nearly uni-
form in substance in the States deriving their jurisprudence from England, that the
courts sometimes hesitate to declare void transactions that are valid by the law of
the forum, and naturally presumable to be so by the law of the sister State, but for thia
rule. See Worthington v. Ilanna, 23 Mich. 530; Adams v. Honness, 62 Barb. 326.
4 Savage v. O'Neil, 44 N. Y. 298, rev'g 42 Barb. 374.
Stoneman v. Erie Rw. Co. 52 N. Y. 429, affi'g Buff. Super. Ct. (1 Sheld.) 286.
8 The common law entire disqualification could not be legally waived by consent.
2 Kent's Com. 178; Parker v. Sir Woolston Dixie, (\ T. Hardw. 264, 49 N. Y. 610;
Dwelley v. Dwelley, 46 Me. 377; Bevins v. Cline, 21 Ind. 87; Barbat v. Allen, 16
Jur. 338, 8. o. 10 Eng. L. & Eq. 696 ; Pedley v. Wellesley, 3 Car. & P. 558. But was
frequently waived in practice. And in some later cases a waiver waa held legal;
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 165
wife of a party, or of a person in whose behalf the action or
special proceeding is brought, prosecuted, opposed, or defended. 1
The following exceptions, however are made : 2 "A husband or
a wife is not competent to testify against the other upon the trial
of an action, or the hearing upon the merits of a special proceed-
ing founded upon an allegation of adultery, except to prove the
marriage. A husband or wife 3 shall not be compelled 4 or, with-
out consent of the other if living, allowed to disclose a confiden-
tial communication, 5 made by one to the other during marri-
age. In an action for criminal conversation, the plaintiff's wife
is not a competent witness for the plaintiff, but she is a competent
witness for the defendant, as to any matter in controversy ; ex-
cept that she cannot, without the plaintiff's consent, disclose any
confidential communication had or made between herself and the
plaintiff." Business transactions between them are not confiden-
tial communications within the policy of the statute, 6 nor are com-
munications made in the presence and hearing of third persons. 7
But written as well as verbal communications, if confidential, are
within the policy of the rule. 8
4. Their Admissions and Declarations?^ When either hus-
band or wife is strictly incompetent as a witness, either generally
or as to a particular fact, evidence of his or her declaration of
and the persons competent to waive it were the husband and wife not the parties to
the suit. Russ v. The War Eagle-, 14 Iowa, 363 ; Blake v. Graves, 18 Id. 317, DILLOX,
J. dissented; Jordan v. Anderson, 19 Id. 565. Objection to wife's competency was
not waived by permitting examination-in-chief. Schmidt v. Herfurth, 5 Robt. 124:
But see Tappan v. Butler, 7 Bosw. 480; Boardman v. Boardman, L. R. 1 P. <fc M. 233.
1 N. Y. Code Civ. Pro. 828. General provisions of statute removing disqualifi-
cation by reason of interest, and enabling parties to testify, do not abrogate the com-
mon law exclusion of husband and wife on grounds of public policy. Kelly v. Drew,
12 Allen, 107, 109.
9 2 N. Y. Code Civ. Pro. 831, asamd. by L. 1880, c. 149, superseding L. 1879, c. 542.
8 The marital privilege does not apply in the case of a void marriage. Bloomer
V. Barrett, 37 N. Y. 434 ; Kelly v. Drew, 12 Allen, 107, 110.
4 In Hebblethwaite v. Hebblethwaite, L. R. 2 Pr. & D. 29, holds the correspond-
ing English statute, giving a privilege to the witness, to be secured by the judgo ;
and that it is not competent to counsel to object to the testimony.
5 At common law, for reasons of public policy, neither husband nor wife could
testify to a communication of whatever nature, confidential or otherwise, which passed
between them. O'Connor v. Majoribanks, 4 M. <fe Gr. 435, S. C. J. 6 Jur. 509 ; and
even death or divorce did not break the seal. Monroe v. Twistleton, Peake's Add.
Cas. 210; Southwick v. Southwick, 49 N. Y. 510, 518, affi'g 9 Abb. Pr. N. S. 109;
Dexter v. Booth, 2 Allen (Mass.), 559. On the same ground neither was allowed to
testify to matters to the detriment of the other, or of the character of the other.
Southwick v. Southwick (above) ; Haebrouck v. Vandervoort, 9 N. Y. 153, 158, 160,
affi'g 4 Sandf. 596 ; People v. Mercein, 8 Paige, 47, 50 ; Burrell v. Bull, 3 Sandf. Ch.
15 ; Barnes v. Camack, 1 Barb. 392 ; Marsh v. Potter, 30 Barb. 506 ; Stein v. Bow-
man, 13 Pet. 209, 221 ; Scroggin v. Holland, 16 Mo. 419. These rules were not mere
rules of evidence, but part of the law of husband and wife.
6 Southwick v. South wick (above); Schaffner v. Reuter, 87 Barb. 44. Otherwise
under the Massachusetts statute protecting " private conversations." Bliss v. Frank-
lin, 13 Allen, 244 ; Drew v. Tarbell, 117 Mass. 90. Wife acting as messenger, not an
" agent," within n statute rule allowing wife to testify for or agninst her husband
only within the limits of her agency for him. Hale v. Danforth, 40 Wis 885.
1 See Allison v. Barrow, 8 Coldw. (Tenn.) 414 ; State v. Center, 35 Vt. 878.
8 See Williamson v. Morton, 2 Md. Ch. Dec. 94 , Bradford v. Williams, Id. 1 ;
Nelius v. Wrickell, Hay w. N. C. 19.
166 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
the fact is incompetent, 1 except in the following cases : The dec-
larations of either are competent ; 1. When the making of such
declarations is the material fact. 2 2. When the declaration is
part of the res gestca involved in an act properly in evidence. 3
3. When it is merely matter of inducement or introduction to
the language or conduct of another person, which the declara-
tion offered called forth. 4 4. When it is one which the declarant
made, when authorized, expressly or impliedly, to speak as the
other's agent, or as one to whom the other referred a third
person. 5
The privilege from testifying to confidential communications
is personal, and does not preclude a stranger from testifying to
them. 6 But, of course, all the rules excluding hearsay apply.
When a husband or wife is a competent witness, or would be
if living, his or her admissions and declarations are competent
against the maker of them, for the same purposes and within the
same limits that they would be if the maker were unmarried, 7
with this exception, that those of the wife cannot be received to
prove an act by her which the law does not authorize a married
woman to perform. The existence of the marital relation is not
enough to make admissions or declarations made by either com-
petent against the other* but some special ground for admitting
them must be shown, as in case of other persons. For this pur-
pose it is enough to show that the declarant was the agent of
the other in the matter involved, and acting as such when the
declaration was made ; 9 or that the other claims as the represent-
ative or successor of the declarant. 10 In the case of silence or
acquiescing admissions by the wife, in the face of her husband's
conduct or declarations, the influence of the marital relation must
be presumed, so far as to require very clear proof of her free
assent, 11 or of estoppel in favor of .an* innocent third person, 12 in
1 Dawson v. Hall. 2 Mich. (Gibbs), 390; Gardner v. Klutts, 8 Jones L. (N. C.)
3*75 ; Karney v. Paisley, 13 Iowa (5 Withrow), 89. The incompetency of the witness
enhances the reason for the exclusion of the declaration. Churchill v. Smith, 16
Vt. 560 ; Nelius v. Wrickell, Hayw. (N. C.) 19.
2 Of this class of cases are proofs of demeanor as showing affection.
8 "Williamson v. Morton. 2 Md. Ch. 94.
4 Boyles v. McEowen, Penningt. (N. J.) 499.
8 Lay Grae v. Patterson, 2 Sandf. 338.
6 Cook v. Burton, 5 Bush, 67.
7 The Pennsylvania rule excludes the declarations of either, -when offered against
creditors, to prove title out of the declarant and in the other; if they might have the
effect to bolster up a fraudulent conveyance (Parvin v. Capewell, 45 Penn. St. 89) ;
but the better opinion is that they are competent, though not alone sufficient on such
an issue. Compare Townsend v. Maynard, 45 id. 200 ; Musser v. Gardner, 66 id. 246.
8 Owen v. Cawley, 36 N. Y. 600; Thomas T. Maddan, 60 Penn. St. 261, 265 ; B. p.
Hanson v. Millett, 55 Me. 190 ; Livesley v. Lasalette, 28 Wise. 41.
9 Riley v. Suydam, 4 Barb. 222; Kelly v. Kelly, 2 E. D. Smith, 250 ; Rose. N.P.
75.
10 -Day v. Wilder, 47 Vt. 584, 593 ; Smith v. Sergent, 2 Hun, 107.
11 Rowell v. Klein, 44 Ind. 293.
12 See Bodine v. Killeen, 53 N. Y. 96.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 167
order to give any weight to them ; and the weight of her admis-
sions or declarations is generally impaired where there is not
f round of estoppel, if it appears that they may have been made
y his influence or for his benefit. 1
5. Agency of one for the otherJ] To prove an agency for the
wife in a matter where she had not power to act at common law,
the facts, such as separate estate, on which her power under
the statute depends, must be proved. 2 In other respects, the fact
of agency, whether of one for the other, or of a third person for
either, is to be proved in the same manner as in the case of other
persons. 3 The marital relation alone raises no presumption of
agency between them ; but its existence may aid or impair the
significance of other evidence tending to show agency. Thus,
when the agency of the wife is alleged against the husband, in
matters of a domestic nature, slight evidence of actual authority
is enough; 4 while if his agency is alleged against her to divest
her of her estate without consideration, the existence of the rela-
tion is a reason for requiring unusually strict proof of authority. 5
The agency cannot be proved by the admissions or declarations
of the one alleged to be agent. 6 In respect to the effect of notice
to either, as binding the other, the fact that the one was agent for
the other must first be shown ; and then the rule well settled in
the law of agency, applies. 7
6. Estoppel] In respect to all matters within the limits and
to the extent to which the law has conferred capacity on the
married woman, she will be held, in favor of third persons, to be
liable to the same equitable estoppels, and the same presumptions,
and chargeable by the same indirect evidence of authority con-
ferred on her husband or other agents, or by the same apparent
holding out of him or them as authorized, as a feme sole? But
her silence or concessions, apparently prompted by the spirit of
forbearance and acquiescence which a wife should foster toward
her husband, and thus explained by her marital duty, do not
bind her as an estoppel in his favor or in favor of his creditors,
unless fraud or bad faith on her part is shown. 9 On the other
hand, her conduct or silence under incapacity, without actual
1 Hollinshead v. Allen, 17 Penn. St. 275.
* Nash v. Mitchell, 3 Abb. New Gas. 171.
See Bodine v. Killeen, 53 N. Y. 96 ; Dillaye v. Beer, 3 Supm. Ct. (T. <fc C.) 218.
'Paragraph 21 below.
6 Hoffman v. Treadwell, 2 Supm Ct. (T. & C.) 67. See- also Schooler Dom. ReL
99 ; 2 Bish. Mar. W. 396, 407, 411 ; Bank of Albion v. Burns, 46 N. Y. 170.
8 Deck v. Johnson, 1 Abb. Ct. App. Dec.
T Adams v. Mills, 60 N. Y. 539 ; R. R. Co. v. Brooks, 81 111. 293 ; Pringle v.
Dunn, 37 Wise. 468.
8 Bodine v. Killeen, 53 N. Y. 96 ; Anderson v. Mather, 44 N. Y. 210, 262. Com-
pare McGregor v. Sibley, 69 Pa. St. 388; Morris v. Ziegler, 71 Pa. St. 450. And
see 2 Bish. Mar. W. 488 ; Carpenter v. Carpenter, 25 N. J. Eq. 194.
' Bank of U. 8. v. Lee, 13 Pet. 118; Sextou ?. Wheaton, 8 Wheat. 238.
168 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
fraud, cannot raise an estoppel which will avail in the place of
capacity when it did not exist by the law. 1
7. Judgments.'] At common law, and apart from the statutes
conferring capacity upon married women, a judgment at law
against a married woman whose husband was not a party with her,
is not, in general, binding upon her ; 2 and a decree in equity
in a suit brought by both as to her separate estate, 8 or in which
their interests were in conflict, 4 is not conclusive against her.
Under the modern statutes, a judgment against a married woman
is competent and conclusive against her and those claiming under
her, in the same cases and to the same extent that it would be
against a feme sole, provided the case be one in which she might
have capacity under the statute. 5
8. Evidence of Husband? s title.] Evidence that the husband, 6
or husband and wife together, 7 or the wife, 8 were in possession
of property, without other indication of ownership, is presump-
tive, but not conclusive, 9 evidence of title in the husband. Evi-
dence that the property in question was purchased by her on her
own credit, when she had no separate estate or other capacity to
contract, is evidence of title in him. 10 And her purchase of
articles for family use, partly with her own money and partly
with his, tends, in the absence of anything indicating a different
intent, to prove title in him. 11 But alter it has been shown either
that he received property to his wife's use, or that she had title
to property iii the possession of either or both, or that it was in
her possession in a separate business belonging to her under the
statute, 12 the burden is on those who claim it to be his to show
his title. If the fund is the proceeds of her estate, it is hers,
even as against his creditors, although realized by his labor as her
servant upon her farm, 18 or in her business, 14 or his skill or ability
as her agent in the purchase and resale of her property. 15
It being shown that title to property was in either the wife-
1 Big. on Estop. 444-446 ; 4 Central L. J. 507, 579.
* Bigelow on Estop. 48; Freem. on Judg. 150, and cases cite.d.
Stuart v. Kissam, 2 Barb. 493 ; Michan v. Wyatt, 21 Ala. N. S. 813, 833.
4 Alston v. Jones, 3 Barb. Ch. 897.
6 Freem. on Jud<r. 150. Contra, Swayne v. Lyon, 67 Penn! St. 439.
6 Keeney v. Good, 21 Penn. St. 354.
I Turner v. Brown, 6 Hun, 331.
8 Black v. Nease, 37 Penn. St. 436.
' See paragraph 16 (below). See also Schouler's Dom. Rel. 214; 2 Bish. Mar.
W. 128-140; 1 Id. 732.
10 Glann v. Younglove, 27 Barb. 480.
II Kelly v. Drew, 12 Allen, 107.
14 Peters v. Fowler, 41 Barb. 467.
11 Vrooman v. Griffiths, 4 Abb. Ct. App. Dec. 605. As to what proves him a
tenant under her, and what her servant, compare Albin v. Lord, 39 N. H. 205, and
Hill v. Chambers, 30 Mich. 422.
14 Kluender v. Lynch, 2 Id. 538.
Merchant v. Bunnell, 3 Id. 280.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 169
or the hnsband, no presumption of a transfer of the title to the
other can be drawn from the mere fact of possession by the other ;
the burden of proof is on the one who asserts a change, to give
some evidence beyond the mere possession. 1 The intimacy of
the relation is such, and acting as agent for each other so habitual,
that the possession by one of the movables of another is very
slight, if any, evidence of a gift or transfer, and not enough to
transfer the burden of proofs The fact that they joined in con-
veying does not raise a presumption that he was the sole owner,
but rather that they were equal owners in common. 3
9. Evidence of Wife's title.'] The wife's separate property
rights are still regarded as exceptional, that is to say, the law
requires her in each case to rebut the presumption that whatever
she acquires belongs to her husband, or is subject to his control ; 4
and this is to be done by establishing the facts necessary, to bring
her case either within the enabling statutes, or within the com-
mon law or equity rules recognizing a married woman's right.
She must give some evidence of her title, besides possession un-
der the marital relation ; for the mere fact of the wife's posses-
sion and control of property, if consistent with their common
interest in and enjoyment of it as the husband's property, is no
evidence of title in her, but is presumptive evidence of his pos-
session. 5 This presumption, however, may be rebutted by his
admissions that it belonged to her, or by his silence in the pres-
ence of her declarations of ownership. 6 She may even prove
title by adverse possession, against a third person, although her
husband lived with her, if he claimed no independent exclusive oc-
cupation in himself. 7 A deed containing the maiden name as that
of the grantee may be shown to be to her, by parol evidence that
she was the person to whom the grant was made, and was known
to the grantor by that name, and that no other person claiming
the name claims title under the deed. 8 If a deed to a married
woman fails to express that it is to her separate use, extrinsic
evidence of the intent is competent, 9 unless the statute of the
State requires directions in the instrument, or only extends to
1 Wells Sep. Prop, of M. W. 224-226, and cases cited.
1 Bachman v. Killinger, 55 Penn. St. 418 ; 1 Bish.'Mar. W. 732.
3 Cox v. James, 45 N. Y. 557, affi'g 59 Barb. 144.
4 Schouler Dom. R. 2d ed. 16; 2 Bish. Mar. W. 82, Ac.
5 Farrell v. Patterson, 43 III. 52, 59 ; Johnson ,v. Johnson, 72 Id. 491. Where
both are domiciled on her estate, it has been held that he is not presumptively
responsible for the control of the premises in respect to negligent condition. Fiske
T. Bailey, 51 N. Y. 150 ; but is in respect to illegal use. Commonwealth v. Carroll,
6 Reporter, 699.
* Turner v. Brown, 6 Hun, 331.
7 Clark v. Gilbert, 39 Conn. 94.
8 Scaulan v. Wright, 13 Pick. 523, 530.
1 But not necessary if the conveyance was by a stranger. McVey v. Green Bay,
Ac. R. R. Co. 42 Wise. 532.
170 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
property conveyed to her separate use. 1 Evidence that the prop-
erty came to her from a third person, or a bill of sale running to
her individually, is prima facie sufficient to go to the jury. 2 On
the question whether a purchase made in her name was upon a
consideration paid by her, evidence of her lack of means is com-
petent against her; 3 but evidence that she had means is not
sufficient, as against his creditors at least, without evidence tend-
ing to show that the purchase was made with her means. 4 Evi-
dence that she had a separate estate or business before purchasing
is not, however, essential, for she may commence such an estate
or business 5 by a purchase on credit. 6 Evidence that the thing
was a gift accompanied by delivery to both at about the time of
marriage, raises a question of intent as to whether it was a gift
to one or the other.
The declarations of the husband, at the time of his transaction,
that the property delivered belonged to, and was delivered for
the benefit of the wife, is competent, not only against him, but
against the other party to the transaction. 7 In tracing the source
of her title, the rule of res gestce applies, not alone to the imme-
diate transfer of the thing in question, but to the transactions by
which she came to have a separate property. Hence, on the
question of the title to property bought by her, the declarations
of the third person who gave her the money with which she pur-
chased the property, showing that the money was a gift to her, 8
or her correspondence with her business agent, showing the
source of the fund, 9 is competent as part of the res gestce. Her
own declarations, if part 01 the res gestce, are competent in sup-
port of her title. 10
Parol evidence is competent to show that the husband paid
the consideration for an estate conveyed to the wife ; but this
raises a presumption that he intended it as a provision for her, 11
and, in the absence of other evidence, establishes her title, except
as against his creditors. 12 The fact that he caused or consented to
I 2 Bish. Mar. W. 92 ; and unless she is estopped. Id. 104. Compare Hayt
v. Parks, 39 Ct. 357.
8 Wasserman v. Willett, 10 Abb. Pr. 6&
8 Block T. Melville, 10 La. Ann. 784.
4 Seitz v. Mitchell, 94 U. S. (Otto), 583.
5 Harrington v. Robertson, N. Y. Ct. App. Nor. 1877; Frecking T. Rolland, 63
N. Y. 422, rev'g 33 Super. Ct. (J. & S.) 499 ; Dingens v. Clancey, 67 Barb. 566.
Contra, Carpenter v. Tatro, 36 Wise. 297 ; and see Huff v. Wright, 39 Geo. 41.
The mere fact that he helped her with his credit, in making her purchase, does not
render the property liable to his creditors. There should be evidence of fraud. 2
Bish. Mar. W. 87.
7 Grain v. Wright, 46 HI. 107.
8 Hall v. Young, 37 N. H. 134, 144.
9 Hannis v. Hazlett, 54 Penn. St. 189; s. p. Bank v. Kennedy, 17 Wall. 19.
10 Clau?sen v. La Franz, 1 Iowa, 226.
II So of a house built by him on her land. Caswell v. Hill, 47 N. H. 407 ; and see
Tappan v. Butler, 7 Bosw. 480.
' 2 Guthrie v. Gardner, 19 Wend. 414; chap. v. of this vol. paragraph 119; and
cases cited in 13 Moak's Eng, 833.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 171
the deed being taken in her name is very cogent evidence that he
intended her to have absolute title. 1 He may rebut the presump-
tion that he intended it as a provision for her, by proof of undue
influence, 3 or of fraud effected by a misrepresentation as to a
material fact, not equally aseertainable by both, as distinguished
from mere statement of opinion ; 8 or by proof that at the time
of the transaction it was mutually understood and designed that
she should hold for him. 4 And the amount itself may be so
large, in relation to the circumstances of the parties, as itself to
rebut the presumption of a provision exclusively for her benefit. 5
The fact that she- afterward joined with him in a deed or mort-
gage of the land does not estop her from proving the intent, and
that all his dealing with the property was as her agent. 6 If there
be satisfactory evidence 7 that it was by her procurement and
without his consent that the deed was made to her, or if it was
the mutual understanding and purpose at the time, that she was
to hold the land as his, and not as her own, the law raises a re-
sulting trust in his favor, or in favor of his creditors. 8
Parol evidence is also admissible to show that the considera-
tion of a deed to him proceeded from her separate property at
the time of the purchase, 9 and that, by fraud, duress, mistake,
abuse of confidence, or other undue means, he procured or ac-
cepted the title. 10 Evidence that he permitted her to carry on a,
farm or other business on her own account, shows, as against him,
her title to property purchased in course of the business, although
he advanced money to her in aid of the purchase ; u and to enable
his creditors to reach the property so held by her, or property
acquired by her through his skill and labor, the burden is on
them to show her possession fraudulent. 12 If she shows title to a
separate property or capital, not derived from him, the fact that
she employs him, 13 or their .minor son, 14 upon it, and supports him,
1 Smith v. Smith, 60 Mo. 262.
8 As to the mode of proof of this, see paragraphs 6*7 and 68 of the preceding
chapter. Compare Orr v. Orr, 8 Bush, 159.
5 Jagers v. Jagers, 49 Ind. 428.
4 Bent v. Bent, 44 Vt. 655 ; Welton v. Divine, 20 Barb. 10 ; and see Foote v.
Foote, 58 id. 258.
5 Adlard v. Adlard, 65 111. 212 %
8 Tappon v. Butler, 7 Bosw. 480.
7 Sandford v. Weeden, 2 Heisk. 74, 76.
* Id. ; 2 Bish. Mar. W. 118-124. But see the statute as to resulting trusts, 1
N. Y. R. S. 728. 51-53, and 48 N. Y. 218, and cases cited ; Gilbert v. Gilbert, 2
Abb. Ct. A pp. Dec. 256.
9 Robison v. Robison, 44 Ala. 227.
10 Bancroft v. Curtis, 108 Mass. 47; 2 Bish. Mar. W. % 119; Methodist Ch. v.
Jaques, 1 Johns. Cb. 450.
" Sammis v. McLaughlin, 35 N. Y. 647.
19 Kluender v. Lynch. 2 Abb. Ct. App. Dec. 638 ; Merchant v. Bunnell, 8 id.
280.
13 Buckley v. Wells, 33 N. Y. 618, rev'g 42 Barb. 569.
14 Van Etten v. Currier, 4 Abb. Ct. App. Dec. 476.
172 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
does not raise a presumption of fraud ; on the contrary, if she
shows title to the main property, and that he was destitute of
means, the current purchases will be presumed, in the absence of
evidence to the contrary, to be made by her funds. 1 But his
conduct in the business may be given in evidence on the ques-
tion of fraud. 2
The presumption of her ownership of property being once
established, continues until alienation is shown ; and though the
property be kept in his house, the possession is presumptively
ners s during cohabitation.
10. Evidence of transfer by one to the other.'] A gift by hus-
band to wife mav be proved by parol, unless other grounds than
the relation require written evidence ; 4 and it is enough to prove
an executed intention to make the gift ; and declarations made
by him, at the time of giving his wife money, as to the purpose
for which he gave it, and declarations as to the person for whom
he was acting, made when he received a security in her favor,
are competent in favor of her title. 5 So his express declaration
may constitute him trustee for her, as where he credits her in
account with moneys given by him to her, but not actually de-
livered. 6 If her title was derived from him, his declarations
made after the transfer are not competent in favor of creditors
and against her title, to establish fraud in the transfer. 7 To
prove a gift by him to her, the evidence must be clear. 8 The
mere fact that a husband allows his wife to deal with, as if her
own property, that which is, or might be, his by marital right,
does not convert it or its proceeds into her separate property. 9
But if, while having such marital right, whether to property in
possession or in action, he borrows it of her, agreeing to repay it,
the agreement is valid 10 (unless perhaps, if made on the mistaken
idea that by law it is her separate property 11 ), and his payment to
her is valid, even against his creditors. 12 So evidence of his dec-
1 Vrooman v. Griffiths, 4 Abb. Ct. App. Dec. 505. Compare 2 Bish. Mar. W.
801, &c. Presumptively the avails of the husband's labor are his own ; and to
make them hers, there must be some understanding that they are not to be paid for.
Id. 456.
4 O'Leary v. Walter, 10 Abb. Pr. N. 8. 439.
3 Hanson v. Millett, 55 Me. 189 ; 1 Bish. Mar. W. 732.
4 Mack v. Mack, 3 Hun, 325.
5 Kelly v. Campbell, 2 Abb. Ct. App. Dec. 492.
8 Crawford's Appeal, 61 Penn. St. 65.
1 Gillespie v. Ws
falker, 56 Barb. 185 ; s. P. Lormore v. Campbell, 60 id. 62.
Whether they are competent, to negative fraud, is disputed, see paragraph 5, above.
8 Shuttleworth v. Winter, 55 N. Y. 629 ; 1 Bish. Mar. W. 732. Savings from
house-keeping, allowance, <fec., not readily presumed gifts. Schouler's Dom. Rel. 242.
Compare Wells' Sep. Prop. M. W. 142.
9 Ryder v. Hulse, 24 N. Y. 372; Schouler's Dom. Rel. 236. So held also where
he permitted it under the mistaken idea that the law entitled her to it. Sharp v.
Maxwell, 30 Miss. 589.
10 Jaycox v. Caldwell, 51 N. Y. 395, affi'g 37 How. Pr. 240.
11 King v. O'Brien, 33 Super. Ct. (J. <fe S.) 49.
18 Savage v, O'Neill, 44 N. Y. 298, rev'g 42 Barb. 374.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 173
larations made in view of marriage, and after it, 1 or made at the
time of receiving the property or afterward, are competent to dis-
prove the intent ; 2 and if they clearly evince an intent to receive it
for her, are sufficient to repel the presumption of an effectual re-
duction to possession, and to charge him as trustee for her. 3 The
fact that he received her property as a loan, so as to entitle her to
payment among other creditors, may be proved by indirect or
circumstantial evidence, without proving an express promise at or
before the transaction. 4
A mere preponderance of proof is not sufficient to show title
derived by her from him, as against his creditors, especially to
invoke the interposition of a court of equity ; but, on the other
hand, proof beyond all doubt is not necessary. Evidence which
satisfies the conscience of the court beyond reasonable doubt is
enough. 5
11. Tacit transfers^ Where one is tacitly permitted to deal
with the property of the other, the question, as between them or
between either and those claiming as assignees or successors of
the other, is one of intent. Their express agreement, or their
tacit understanding or usage, may determine whether the trans-
fer of personalty by wife to husband, was a gift or a loan, or
only a change of possession, under an agency, 6 or without au-
thority. In the application of this test two rules contend for
control.
12. The old rule : Presumption in favor of Husband. ~\ The
rule applied in jurisdictions where the legal identity of husband
and wife is still favored, is that upon the mere fact that she
allows him to receive and keep her funds, the presumption is
that he is authorized to use them as his own or for their common
benefit ; 7 and he is not to be required to account except from
the time of her avowed revocation of permission, 8 or for the last
year ; arid that the fact that she consents to his using her funds in
purchasing land and taking title to himself, without insisting on
any agreement to repay or convey, is sufficient evidence of her gift
1 Gackenbach v. Brouse, 4 Watts & S. 546.
2 Such as liis promise to give her his note for it. Meyer's Appeal, 77 Penn. St.
482,485 ; and see Jaycox v. Caldwell, 51 N. Y. 395.
3 Moyer's Appeal (above).
4 Steadman v. Wilbur, 7 R. I. 481.
6 Wells' Sep. Prop, of M. W., 287-293, 317, and cases cited; Flick v. Devries,
14 Wright, Perm. St. 267; Tipner v. Abrahams, 11 Wright, 2:28; Earl v. Champion,
65 Id. 194 ; Sanilford v. Weeden, 2 Heisk. 76 ; Crissman v. Crissman, 23 Mich. 217.
But compare, for the notion that preponderance of proof is enough in all civil cases,
10 Am. Law Kev. 642.
6 2 Bish. Mar. W. 446. As to confusion by commingling, see 1 Id. 611,
612 ; 2 Id. 125, 126, 446, 466 ; Schouler's Dom. Ret 213, 214 ; Cliambovet v. Cagney,
85 JSuper. Ct. (J. <fc S )486 ; Hall v. Young. 37 N. II. 134, 149.
7 Jacobs v. Hessler, 113 Mass. 161; Kleine's Appeal, 89 Penn. St. 463.
8 Lyons v. Green Bay, (fee. R. R. Co. 42 Wise. 548, 553, aud cases cited.
174 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
to him. 1 But the presumption in either case may be rebutted
by proof that he received the property in trust for her. 2 Evi-
dence of his declarations is enough to establish such a trust, as
against him and his personal representatives, 8 though not as
against his creditors. 4
13. The new rule: Presumption in favor of Title.'] The
rule laid down by some courts as more in consonance with the
modern doctrine, is that where she has a right to her property
under the statute, as if sole, his dealing with her funds will
be presumed, in the absence of proof to the contrary, to be in
the character of agent for her, and they will not be deemed to
have become his property, unless he affirmatively establishes a
gift or other legal transfer. 5
14. Evidence of his application of her funds.'] When called
to account for the proceeds of her funds, evidence of written au-
thority to him to apply them is not necessary ; he may prove by
his own testimony that she authorized him to pay them out, and
that he did so. 6
15. Evidence of the Wife's Conveyance."] Where the statute
requires the husband's written consent to her conveyance, oral
consent is not enough. 7 Where the statute requires 8 a private
acknowledgment by a married woman conveying, she passes no
estate unless she makes the proper acknowledgment ; and the offi-
cer's certificate is the only evidence permitted of the fact. Its
absence cannot be supplied by parol ; " and a substantial defect 10
in the certificate cannot be cured by parol, nor reformed in
equity. 11
'Campbell v. Campbell, 21 Mich. 438, 443; and see Wells' Sep. Prop. M. W.
258.
* Jacobs v. Hessler (above).
8 Moyer's Appeal, 77 Penn. St. 486.
4 Alston v. Rowles, 13 Fin. 128. But see paragraph 5 (above).
6 See p. 169. Patten v. Patten, 75 111. 446, 449 ; Houston v. Clark, 50 N. H. 482
Southwick v. Southwick, 9 Abb. Pr. N. S. 109, affi'd in 49 N. Y. 510. When
the husband, with her consent, has been in the habit of receiving the income of her
separate estate, equity has heretofore usually regarded this as showing her voluntary
choice thus to dispose of it for the benefit of the family ; and while they regard him
as holding as her tenant, and receiving as her trustee, they will not ordinarily re-
quire him to account beyond the income of the last year, presuming that everything
previous ha? been settled by mutual agreement (2 Story Eq. Jur. 1396 ; Albin v.
Lord, 39 N. H. 204), or expended by her authority. Methodist Epis. Church v.
Jaques, 1 Johns. Ch. 450.
1 Schouler's Dom. Rel. 235, n. ; Townsley v. Chapin, 12 Allen, 476. But see to
the contrary, Wing v. Schramm, 13 Hun, 377, holding that a conveyance without
the nsseut is valid, except against him ; and subsequent assent makes it valid against
him.
8 By the New York statute of 1878, c. 800, married women may make powers of
attorney in like manner and with like effect as if single.
9 Elwood v. Klock, 13 Barb. 50; but see Richardson v. Pulver, 63 Id. 67, and
cases cited. But it need not be alleged in pleading. Williams v. Soutler, 55 111. 130.
10 The objection must specify the defect.
11 Willis v. Gattman, 53 Misa. 721. As to what defects are " substantial," see
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 175
16. Impeaching her Conveyance.] Equity does not require
evidence of such actual fraud and duress in order to enable her
to set aside her conveyance procured by the husband as is re-
quired against a stranger, 1 and may relieve her against a voluntary
conveyance to him, under mistake or fraud, though intended by
her in fraud of creditors. 2 Evidence of the state of her mind
and of her health at the time, and that her acknowledgment had
been preceded by threats and menaces of her husband, in case she
should refuse it, is competent, 8 though it may not be sufficient
against a bona fide purchaser for value. 4 A proper certificate of
acknowledgment to the deed is prima facie evidence, not only
of the facts certified, but of the freedom of her execution ; but
it is not conclusive. 5 It may be rebutted, and the testimony of
a party to it is sufficient to raise a question for the jury. 6 Her
voluntary signature for her husband cannot be avoided by mere
proof of her neglect to read the instrument. 7
17. Evidence of Wife's Separate Business.] To prove that
she had a separate business, within the statute, it is not enough
to show an isolated transaction, nor several disconnected acts, 8 nor
Deery v. Cray, 6 "Wall. 806; Carpenter v. Dexter, 8 Id. 513; Secrist v. Green, 3 Id.
750 ; Angler v. Schieffelin, 72 Penn. St. 106, s. c. 13 Am. R. 659 ; Wright v. Taylor,
2 Dill. C. Ct. 23, and note p. 26 ; Merritt v. Yates, 22 Am. R. 128, s. o. 71 111. 636.
1 Witbeck v. Witbeck, 25 Mich. 439. Compare pp. 120, 121, of.this voL, and
Block v. Melville, 10 La. Ann. 785. See also note to paragraph 1 (above), and 2
Bish. Mar. W. 480. Ratification by wife, of deed forged by husband, not inferred
from long silence after being informed. Ladd v. Hildebrant, 27 Wis. 135.
8 Boyd v. De La Montaignie, 4 Supm. Ct. T. & C. 152.
8 Central Bank v. Copeland, 18 Md. 305, 318.
4 Rexford v. Rexford, 7 Lans. 6.
5 1 N. Y. R. S. 759, 17; Jackson v. Schoonmaker, 4 Johns. 161 ; Williams v.
Woodard, 2 Wend. 486.
8 Williams v. Woodard (above). The New York rule, stated in the text, is em-
bodied in the statute ; but whether the idea of estoppel can suffice to preclude the
wife from denying the truth of her acknowledgment, as held in Kerr v. Russell, 69
111. 666, s. c. 18 Am. R. 634, or its freedom, as held in White v. Graves, 107 Mass.
825, s. c. 9 Am. R. 38 ; or the absence of her husband, as held in Johnston v. Wal-
lace, 53 Miss. 335, remains to be determined. The notion that the certificate has the
force of a judicial determination is not tenable, for the examination is ex parte. More-
over, the officer does not certify that her execution is free v ; he has not adequate power
to investigate that question. He certifies that, under due precautions of privacy,
taken by him, she acknowledged that it was free. Even on the theory of a judicial
determination, the certificate may be impeached by evidence that she did not appear
before the officer, as held in Allen v. Lenoir, cited in Johnston v. Wallace, 53 Miss.
335, for this is the jurisdictional fact ; or by evidence that, lit the time of acknowl-
edgment, the deed was lacking in any part essential to an effective grant, such as
having a blank for the grantee's name, as held in Drury v. Foster, 2 Wall. 34, and
Burns v. Lynde, 6 Allen, 305, and her unacknowledged power to fill such blanks is
void (Id.); or by evidence of fraud or imposition in obtaining the acknowledgment,
coupled with notice to the grantee, as held in Hill v. Patterson, 51 Penn. St. 289. If
it ia to be held conclusive, notwithstanding these and similar infirmities, it must be
on grounds of an estoppel allowed for reasons of public policy, peculiar to the securi-
ty of titles. For other cases see 14 Moak's Eng. 500.
' Fowler v. Trull, 1 Hun, 411.
8 2 Bislu Mar. W. 441 ; but compare Hart v. Young, 1 Lans. 417; and note to
paragraph 9 (above).
176 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
the rendering of domestic service, such as the nursing of one
person ; 1 without evidence that it was intended by her and her
husband as a separate business ; but the management of real 3 or
personal 8 property for profit, is a business, as distinguished from
the rental of it, which is not. 4 The fact that she commenced to
carry on the business before her marriage, is presumptive evi-
dence of a separate business and stock ; 5 all the stronger if it
was continued in her maiden name after marriage. 6 "Where a
regular place of business is kept, the fact that the shop was
hired, and notes for goods bought were given, by the husband,
in his own name, is not always conclusive evidence that the wife is
not the owner. 7
II. ACTIONS BY OK AGAINST HUSBAND.
18. Actions by Mm founded on marital right.'] In his sole
action for rents and profits of her land, he must prove that they
accrued since marriage. 8 In respect to her choses in action, evi-
dence that he received them, as husband, raises a presumption of
intent to reduce them to possession, only to be rebutted by clear
proof of a contrary intent. 9 But evidence that he collected in-
terest or dividends on her stock or choses in action, does not
necessarily show reduction of the principal to his possession, but
only of the income so received. 10
19. Defenses^] To defeat his sole action for moneys due to
her, it should affirmatively appear that the legal or beneficial in-
terest is her separate property, or is otherwise within the statute
or rules of equity, enabling her to sue alone. 11 Where they sue
together on a chose in action, not her separate property or right,
a release or other extinguishment of the claim, by him, will bar
her equally. 12 And if, after her death, he sues in his marital
right, as her survivor, her admissions are competent against him,
because he claims in a representative capacity. 13 When he sues
alone, 14 or they sue jointly, 15 for her services rendered during
coverture, evidence 01 her admissions of payment is not compe-
1 Cuck T, Quackenbush, 13 Hun, 107, and cases cited.
8 Such aa carrying ou a farm. Smith v. Kennedy, 13 Hun, 9.
3 Such as employing the husband to run a canal boat. Whedon v. Champlin, 59
Barb. 61.
4 Nash v. Mitchell,' 3 Abb. New Cas. 171.
8 Peters v. Fowler, 41 Barb. 467.
8 Askworth v. Outran, 37 Law Times, N. S. 85.
7 Mason v. Bowles, 117 Mass. 86.
8 Decker v. Livingston, 15 Johns. 479.
9 Moyer's Appeal, 77 Penn. St. 482. See paragraphs 8-13 (above).
10 Hunter v. Hallett, 1 Edw. 388 ; Burr v. Sherwood, 3 Bradf. 85.
11 Crolius v. Roqualina, 3 Abb. Pr. 114.
14 Dewall v. Covenhoven, 5 Paige, 581 ; Beach v. Beach, 2 Hill, 260.
13 Smith v. Sergent, 2 Hun, 107.
14 Hall v. Hill, 2 Str. 1094.
15 Jordan v. Hubbard, 26 Ala. 433, 489.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 177
tent, without evidence of her authority to receive money for
him. 1 But where there is a division of the labors of husband and
wife, and she is employed at service, it is presumed to be with
his consent, and the presumption would only be rebutted by his
objection. Hence, declarations by her in the course of such serv-
ice, and before any objection by him as to the terms of her em-
ployment, are competent against him as part of the res geatce,
when he sues for her wages. 2
20. Actions against him founded on Marital Obligation^}
Evidence that he knew of and assented to purchases by her,
which she had not legal capacity to make, renders him liable
therefor. 8 Her post-nuptial admissions are not competent evi-
dence in an action against him, 4 or against both, 5 for her ante-
nuptial debt.
21. Actions founded on her agency .] In applying the pre-
sumptions drawn from the marital relation, the agency of the
wife, to order, on her husband's credit, articles reasonably suita-
ble, 6 may be inferred from her being permitted to receive the
articles in his house. 7 The housewife is presumed to be author-
ized to order domestic articles bought for their family. 8 If there
is sufficient other evidence tending to show authority, to go to
the jury, there need not be evidence that the things were neces-
saries. 9 The extravagant character of the order may be consid-
ered by the jury as tending to rebut a presumption of agency. 10
No such presumption arises as to transactions had after she has
left him voluntarily and causelessly. 11
Where a wife is allowed by the husband to act for him, as
in the case of a wife receiving and caring for boarders in the
household, 12 or the wife of a tradesman or mechanic occupying
the shop premises, or shown to have been seen there on more
than one occasion, appearing to conduct the business in his ab-
sence, she is presumed to have authority to answer for him in
matters of the like nature there. 18
22. Defenses.'] The presumption of his liability may be re-
1 Schouler'B Dom. Eel. 112.
s Hachman v. Flory, 16 Penn. St. 196.
* Ogdcn v- Prentice, 33 Barb.. 160 ; 2 Bish. Mar. W. 82.
4 Ross v. Winners, 1 Halst. (N. J.) 366 ; Churchill v. ""Smith, 16 Yt. 560:
s Lay Grae v. Peterson, 2 Sandf. 338.
Lane v. Ironmonger, 1 New Pr. Cas. 105, s. c. 13 Mees. die "W. 868.
7 Rose. N. P. 882, (13th ed. 535).
8 2 Whart. Ev. 1256.
Reid v. Teakle, 13 C. B. 627, 8. c. 22 L. J. C. P. 161.
10 Lnnev. Ironmonger, 1 New Pr. Cas. 106, 8. c. 13 Mees. <fc W. 368.
11 Johnston v. Sumner, 3 H. A N. 261 ; Biffin v. Bignull, 7 II. <fe N. 877.
19 Kiley v. Suydam, 4 Barb. 222. Hence her admission that nothing is due from
the boarder, is competent against the husband. Ib.
13 Such as to offer to settle a bill for goods delivered there. Clifford v. Burton, 1
Bing. 199.
12
178 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
butted by evidence that the credit was given to her personally, 1
if she had capacity as a married woman to make such a contract. 2
Evidence that she said the articles were for herself, 3 and that she
gave a note signed by herself, 4 or that the charge in plaintiff's
books was against her only, 5 is not conclusive that the credit was
given to her alone.
23. Action for necessaries."] To hold the husband liable for
necessaries furnished to his wife, unless the facts indicate her
agency for him, his neglect or default must be shown. 8 The
marriage is sufficiently proved by evidence of cohabitation, and
holding out, or repute.'' Agency is inferable from the nature of
articles such as are suitable and necessary for the wife of one in
his station, and from their delivery at his abode without his ob-
jection. 8 But if he shows that the credit was given against his
express dissent and notice thereof to plaintiff, the burden is on
plaintiff to show not only that the things furnished were, in their
nature, suitable and necessary, but also that the husband neglected
his duty to provide supplies, and therefore they were needed in
the particular case. 9
The appropriate character of the articles cannot be proved by
the opinion of a witness ; 10 nor by what the defendant had been
accustomed to purchase of a particular dealer ; u but the facts as
to her condition, and his station in life, and the character of
the articles supplied by plaintiff, must be laid before the jury. 12
His leaving the State without making provision for her, is suffi-
cient evidence of desertion; and plaintiff is not bound to prove
that a demand was made on the husband to provide for her ; but
his refusal to do so may be inferred from the fact of desertion. 13
If it appear that he actually provided an allowance to her, plaintiff
must show that the allowance was insufficient.
24. Defenses.'] The marriage and appropriate character of
1 Bentley v. Griffin, 5 Taunt. 356.
8 See Ogden v. Prentice, 33 Barb. 160 ; Cropsey v. McKinney, 30 Id. 47.
8 Gates T. Brower, 9 N. Y. 205.
4 Id.
5 Jewsbury v. Newbold, 26 L. J. Excb. 247.
6 Supervisors of Monroe v. Budlong, 51 Barb 493; McGahey v. "Williams, 12
Jolins. 293, and cases cited. The legal theory of the action, however, is not negligence,
but an implied promise to pay. See Cromwtll v. Benjamin, 41 Barb. 658; Kelly v.
Davis, 49 K H. 176, s. c. 6 Am. R. 499. But see Mozen v. Pick, 3 Mees. <fc W. 481.
7 See Ch. V, paragraphs 18 and 19. Cohabitation and holding out to plaintiff
is conclusive (Johnstoue v. Allen, 6 Abb. Pr. N. S. 306 ; 1 Greenl. Ev. 27), and
the fact that plaintiff knew there had been no formal marriage, is irrelevant, Wat-
son v. Threlkeld, 2 Esp. 637.
8 Rose. N. P. 382, (13th ed. 535).
9 Keller v. Phillips, 39 N. Y. 351, affi'g 40 Barb. 391.
10 Merritt V. Seaman, 6 N. Y. 168.
11 Scott V. Coxe, 20 Ala. 294.
" Lockwood v. Thomas, 12 Johns. 248.
13 Usher v. Holleman, 5 N. Y. Leg. Obs. 99 ; Johnson v. Stunner, 8 Hurls. & N.
261, s. 0. 27 L. J. Exch. 341.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 179
the articles supplied having been shown, the burden is on defend-
ant to rebut the presumption of agency of the wife ; * general
reputation is competent evidence 2 that they were living separate
under articles providing for her support. But the receipts of
third persons are not admissible in favor of defendant to show
that he and his wife lived separate, and that he allowed her a
separate maintenance, which was punctually paid. The persons
who gave the receipts should be called. 3
25. Causes of separation.'] On the question whether a sep-
aration of husband and wife was due to the wife's fault or the
husband's, the declarations of the wife to any person, made in
sufficiently immediate connection with the act of leaving to con-
stitute a part of the res gestm are admissible. 4 If the husband's
previous cruelty is relied on as the cause of separation, the con-
temporaneous expressions of affection and regard used by either
toward the other in the other's presence, 5 or to a third person,
in the absence of the other, 6 and, on the same principle, the
wife's complaint to her physician of the effects of her husband's
violent treatment, and his advice thereupon that she should leave
him, 7 are competent ; and so are her letters manifesting an
affection inconsistent with such cruel treatment. 8 But, in such
case, there must be independent evidence, beside the apparent
date of the letter, showing that it was actually written at a period
that would make the declaration relevant. 9 Where her infidelity
is relied on as explaining the separation, her admissions of guilt
have been held competent. 10 If a divorce is relied on, the decree
itself is the best evidence ; u and a decree dismissing the suit for
divorce for want of proof is competent but not conclusive evi-
dence that the cause alleged did not exist. 12
On the question whether the provision he had made for her
was sufficient, her declarations made while she was in the enjoy-
ment of it, are competent in his favor. 13
1 Keller v. Phillips, 39 N. Y. 351, affi'g 40 Barb. 391.
* Baker v. Barney, 8 Johns. 72.
8 Cutbush v. Gilbert, 4 8. <fc R. 551.
4 Thus the reasons she gave to her father the day oT her return to him on leaving
her husband, are competent. Johnson v. Sherwin, 8 Gray (Mass.), 374. See, also,
Snover v. Blair, 25 N. J. L. (1 Dutch.) 94; Aveson v. Lord Kinnard, 9 Enst, 188,
ELLENBOROUGH, J ; Cattison v. Cattison, 22 Penn. St. 275. As to letters written dur-
ing the absence, see Rawson v. Haigh, 2 Bing. 99.
See Edwards v. Crock, 4 Esp. 39.
See Winter v. Wroot, 1 Moody & R. 404.
See Gilchvist v. Bale, 8 Watts, 355.
Houliston v. iSmyth, 2 Carr. <fe P. 22.
Id.
10 Walton v. Greene, 1 Carr. & P. 621, disapproved in 1 Tayl. Ev. 673, 695.
11 Tice v. Reeves, 80 N. J. L. 314. As to the mode of proof, see page 101 of this
volume.
15 Burlen v. Shannon, 3 Gray, 387.
18 Jacobs v. Whitcomb, 10 Gush. 255. The introduction of declarntions by one
party may justify the admission of declarations of the other in the same conversation.
See Sherwood v. Titman, 55 Penn. St. 77.
180 ACTIONS BY OB AGAINST HUSBAND OB WIFE.
III. ACTIONS BY A MAKEIED WOMAN.
26. Pleading in her action on contract.] In her action on
contract, an allegation of her coverture is not necessary in her
complaint, 1 especially if the statute provides that she may sue and
be sued as if sole. 2 And if her complaint does allege coverture,
the contract will be presumed to have been within her capacity if
it may have been so, without allegation of the facts on which her
capacity depends. 8 Defendant's denial of the contract does not
avail to raise the defense of her coverture when she made it. 4 But
if her coverture is pleaded in defense or in abatement, and proved,
then she must prove the facts showing her capacity to make the
contract, 5 or to sue, as the case may require, such as separate
estate or business, 7 unless the contract itself raises a pre-
sumption that it was made by her husband's assent in a case
where it would be valid at common law. 8 Where defendant sets
up a contract made by her, as a counterclaim against her, she
must allege coverture, lor coverture as a defense, even if proved,
is not available unless pleaded. 9
27. Evidence of the contract.'] The making of a note, 10 mort-
gage, 11 bill of lading, 12 or other security, 13 to a married woman, is
prima facie evidence against the contracting party 14 of her title
and right to sue thereon.
The husband's receipt for his wife's separate property will
1 Peters v. Fowler, 41 Barb. 467.
8 N. Y. L. 186, 450; N. Y. Code Civ. Pro. 8, c. 172, 3; ffier v. Staples, 61
N. Y. 136 ; Frecking v. Rolland, 53 Id. 422.
3 Nininger v. Commissioners of Carver, 10 Minn. 133.
' Westervelt v. Ackley, 62 N. Y. 505, affi'g 2 Hun, 258, s. c. 4 Supm. Ct. (T. <fe
C.) 444.
6 See Nash v. Mitchell, S Abb. New Gas. 171. And, on the same principle, if a wife
sues alone, not by authority of the statute, but by virtue of the common law rule,
where her husband has left the State and so utterly deserted her and renounced his
marital rights as to enable her to contract as if sole, the burden of proof is upon the
one alleging the validity of the contract to establish that she is within the exception.
See Gregory v. Pierce, 4 Mete. 478.
* Paragraph 9.
I Paragraph 16.
8 Burst v. Spelman, 4.N. Y. 284.
9 Westervelt v. Ackley, 62 N. Y. 505.
10 Borst v. Spelman, 4 N. Y. 284. And the fact that the money was loaned by
her husband does not rebut this presumption. Tooke v. Newman, 75 111. 215, 217.
II Wolfe v. Scroggs, 4 Abb. Ct. App. Dec. 634.
12 Thus a carrier who gives receipt to a married woman is held estopped from
denying her title. Chicago, Ac. R. B. Co. v. Shea, 66 111. 471, 480.
13 Compare Rouillier v. Wernicki, 3 E. D. Smith, 310.
14 And against her husband if he assented to her so doing. The fact that the
plaintiff, a feme covert, bad for some years lived apart from her husband, who did
nothing for her support, is evidence from which a jury may infer 'that the contract
sued upon was made by her on her separate account. Burke v. Cole, 97 Mass. 113.
Whether evidence of other transactions between her and the defendant is competent
to show that she dealt on her separate account, see Fowle v. Tidd, 15 Gray (Mass.),
94.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 181
not discharge a third person from liability to the wife, unless
upon the ground of agency. 1
28. Her action for tort.] In a married woman's action for
injuries to her person, to enable her to recover for disqualifica-
tion to labor, &c., she must show the existence of a separate
business ; otherwise, the damages for inability to labor belong to
her husband. 2 So to enable her to recover expenses of medical
attendance, &c., she must show that they were paid from or
charged upon her separate property. 3
IY. ACTIONS AGAINST HER.
29. Pleading in action Against her on Contract.'] The com-
plaint in an action upon a contract executed by a married woman,
whether against her alone, or her husband with her, 4 need not
allege her coverture, nor that the contract was executed in her
business, or for the benefit of her separate estate, 5 even if it
appear by the contract that she was married ; 6 nor need the
complaint ask judgment charging her separate estate, but the
complaint may be framed as if defendant was a feme sole} Her
coverture is matter of defense to be pleaded by defendant if
available ; 8 and evidence that she was a married woman and
could not contract, is not admissible under a denial of the con-
tract. 9 The plaintiff may prove the contract as alleged, and
rest, 10 unless defendant has pleaded coverture and the fact ap-
pears by plaintiff's case. If so, or if defendant thereupon proves
coverture under his answer, the burden is cast upon the plaintiff
to prove a case within the statute. 11
30. Evidence of the Contract.'] If coverture is pleaded as a
defense, the prooi of the contract involves two elements, 1, the
fact that it was made ; and 2, her power to make it ; and the facts
1 Schouler's Dora. Rel. 233.
* Filer v. N. Y. Central II. R. Co. 49 N. Y. 47, 66.
* Moody v. Osgood, 50 Barb. 628.
* Broorae v. Taylor, 13 Hun, 341.
5 Hier v. Staples, 51 N. Y. 136 ; Frecking v. Rolland, 63 Id. 422, rev'g 33 Super.
Ct. (J. & S.) 499".
6 Schofield v. Hustis, 9 Hun, 167.
7 This is the rule under the N. Y. statute, allowing her to sue and be sued as if
sole. It has elsewhere been held that if coverture appear by the pleadings, it must
appear that she had a separate property or business, such that she had power to con-
tract ; Jonz v. Gugel, 26 Ohio St. 529 ; and that the consideration of the contract
was such as to sustain it; Pollen v. James, 45 Miss. 132 ; Griffin v. Ragan, 52 Id. 81 ;
and see Melcher v. Kuhland, 22 Cal. 622 ; and her intent to charge separate prop-
erty. Shannon v. Bartholomew, 63 Ind. 64.
8 Smith v. Dunning, 61 N. Y. 249 ; Frecking v. Rolland (above).
* WestL-rvelt v. Ackley, 62 N. Y. 505, affi'g 2 Hun, 258, s. c. 4 Supnx Ct. (T. &
C.) 444.
10 Downing v. O'Brien, 67 Barb. 582.
11 Id. ; Nash v. Mitchell, 3 Abb. New Cas. 171 ; Tracy Y. Keith, 11 Allen, (Mass.)
214.
182 ACTIONS BY OR AGAINST HUSBAND OR WIFE.
showing her power must be affirmatively proved on the trial, 1 as
well as the making of the contract itself, although they need not
be alleged in the complaint.
31. The making of the contract] The rules of proof, else-
where stated as applicable to the contracts of other persons, gen-
erally apply to the fact of contract by a married woman, whether
in respect to implied contracts, 2 parol agreements, 8 or to parol
evidence to vary a writing. 4 To establish a contract made through
the agency of the husband, it may, as in the case of other persons,
be shown to be within his express power, 5 or within the author-
ity implied from her having held him out, 6 or suffered him to
assume the power, or from her having recognized his acts. 7 The
presumption of agency derived from his possession of an instru-
ment executed by her is limited by the terms of the instrument. 8
On the question whether the other party gave credit to her or to
him, entries by such other party in account charging or crediting
sums to either, are not evidence in his own favor, unless part of
the res gestce of an act properly in evidence. 9 They are competent
as against him ; but are not conclusive that the credit was given
to the one charged. 10
The appropriate evidence of her power to contract, viz., the
existence of separate business or estate, has already been ex-
plained. 11 Whether anything more need be shown is disputed.
32. The English Rule as to Charging Separate Estale.~] The
rule now applied by the English courts, and in several of our
States, 12 is, that the separate estate of a married woman is answer-
1 Nash v. Mitchell, 3 Abb. New Cas. 171.
2 See Bodine v. Killeen, 53 N. Y. 93 ; and paragraph 6 (above).
8 See Fowler v. Seaman, 40 N. Y. 692.
4 Galusha v. Hitchcock, 29 Barb. 198.
5 Nash v. Mitchell (above).
6 Bodine v. Killeen (above).
T Wilcox & Gibbs Co. v. Elliott, 14 Hun, 16.
8 Thus a power to sign and indorse checks, <fec., does not authorize him to charge
her separate estate by a post-dated check, when she has not the funds in bank. Nash
v. Mitchell (above). And her deed expressing a pecuniary consideration, he is not
impliedly authorized to deliver, without payment of the consideration, and for his
own benefit. Bank of Albion v. Burns, 46 N. Y. 170.
8 Peters v. Fowler, 41 Barb. 467. But see pp. 241, 245 of this vol.
10 Allen v. Fuller, 118 Mass. 402. On the question whether goods were bought
by the husband, deceased, or the wife, who had a separate business, the executor can-
not give in evidence that the wife, after the death, appropriated the goods to her
own use. Johnson v. Hawkins, 5 Reporter, 184. So the fact that plaintiff had
brought a prior suit for the same against the defendant and her husband jointly,
whicli has been discontinued, is competent ; but the plaintiffs mny explain this by
showing that the husband was joined through an error of their attorney. Andrews
v. Matthews, 6 Cent. L. J. 156.
11 Paragrnphs 9 to 17.
12 This rule has been to a greater or less extent, or with some qualification, recog-
nized in Kansas (Deering v. Boyle, 8 Kan. 529 ; Wicks v. Mitchell, 9 Id. 80); Mary-
land (Hull v. Eccleston, 37 Md. 510; acd see Conn v. Conn, 1 Md. Oh. Decis. 212);
JUixsoitri (Metropolitan Bank v. Taylor, 62 Mo. 338) ; Ohio (Phillips v. Graves, 20
Ohio St. 390); Wisconsin (Todd v. Lee, 15 Wise. 305 ; 16 Id. 480).
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 183
able for all her debts and engagements, to the full extent to
which it is subject to her own disposal ; l and this rule, formerly
regarded as matter of presumption, resting on the idea that the
act of contracting is prlma -facie evidence of intent to charge
her estate, 2 is now applied inflexibly to written obligations, as a
rule of law ; in other words, the making of a written contract
by a married woman having power to charge a separate estate is
deemed conclusive evidence of intent to charge it. 3
33. The New York Rule.] The rale adopted in New York
and Massachusetts, and followed in several other States, 4 is, that
to charge the separate estate of a married woman with a debt not
contracted for its benefit, as, for instance, where she contracts
as surety, there must be direct evidence of an intention to
charge it. Her mere making of a note or other obligation is not
enough ; and if such obligation be made, the intent to charge
must be expressed therein, or in a connected instrument ; 5 and if
not so expressed, parol evidence is not competent to prove the
intent to charge. 6 Evidence that the husband received the consid-
eration of the obligation, and used it in managing his and the
wife's property, is not enough. 7 Where the contract is by parol,
the intent to charge may be proved by parol, if no specific lien is
claimed ; 8 and it may be shown by such circumstances as her
having an estate, on the faith of which she was trusted, and by
In Mississippi, it has been held that the intent must appear, but need not be ex-
pressed (Boarman v. Groves, 23 Miss. 280). In Alabama (Brame v. McGee, 46 Ala.
170); Arkansas (Dobbin v. Hubbard, 17 Ark. 189, 196); and Kentucky (Lillard v.
Turner, 16 B. Mon. 374; Burch v. Breckinridge, 16 Id. 482), the English rule has
been applied in the case of bills in equity to charge a separate estate held under the
rules of equity, and not under the statute.
1 As stated by HOAR, J.. in Willard v. Eastham, 15 Gray, 328, approved by RED-
FIELD, J., in 1 Am. L. Keg. N. S. 665, note.
s Johnson v. - Gallagher, 7 Jur. X. S. 273 ; Schouler's Dora. Rel. 228.
' Metropolitan Bank v. Taylor, 62 M<\ 338; Wicks v. Mitchell, 9 Kan. 80.
4 The New York rule has been recognized in California (Maclay v. Love, 25 Cal.
867); Connecticut (Platt v. Hawkins, 43 Conn. 139); Illinois (Williams v. Hugunin,
69 111. 214; Furness v. McGovern, 73 Id. 337); Indiana (Kantrowitz v. Prather, 31
Ind. 92 ; Smith v. Howe, 31 Id. 233; Hodson v. Davis, 43 Id. 258) ; Massachusetts
(Willar>l v. Eastham, 15 Gray, 828); New Jersey (Armstrong v. Ross, 20 N. J. Eq.
109); Tennessee (Letton v. Baldwin, 8 Humph. 200; 10 Id. 552). In Missouri, where
it was once approved (Miller v. Brown, 47 Mo. 504, s. c. 4 Am. R. 345), it has since
been nbandoned. In Alabama, the English rule has been held not applicable where
the con>idi_Tation was purely for the benefit of the husband (Nunu v. Givhan, 45 Id.
870, 375).
* Sherwood v. Archer, 10 Hun, 73.
Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 450; Willard v. Eastman, 15 Gray,
828; Manhattan Brass, Ac. Co. v. Thompson, 58 N. Y. 80. It has been held else-
where, that if there is a written contract by the married woman, parol evidence of her
declarations at the time of its execution that it was not to bind her separate prop-
erty is inadmissible (7 B. Mon. 293); and so of her testimony that she did not in-
tend it to, and equally of that of the creditor that at the time he was ignorant that
ehe had a separate estate. Kitnm v. Weippert, 46 Mo. 532, s. c. 2 Am. R. 541.
' Yale v. Dederer, 68 N. Y. 329.
8 Maxon v. Scott, 55 N. Y. 247 ; Baker v. Lamb, 11 Hun, 519. Contra, Shorter
Y. Nelsou, 4 Lu.na. 114.
184: ACTIONS BY OR AGAINST HUSBAND OR WIFE.
her promise to pay as soon as she received income therefrom. 1
But in the absence of other evidence of an intent to charge, it
will not be inferred from her subsequent admissions of liability. 2
34. direct Benefit to separate estate.'] If it appears that
she had a separate business, and the contract was made in the
course and pursuit of it, this is enough. If it appears that she
had a separate property, and the contract was made for its direct
benefit, in the legal sense, this is enough. The fact that such
kind of contracts may in the ordinary course of affairs be made
for the benefit of an estate, is not enough, for the court cannot
presume that a simple contract, with nothing on its face to in-
dicate the fact, was made for the benefit of her separate estate; 8
but it must appear either that the consideration was actually ap-
plied to her estate, 4 or came actually to her hands, or to those of
an agent authorized to receive it on her behalf. 5 The fact that
the consideration came to her hands is presumptive evidence that
the contract was for the benefit of the estate ; and the produc-
tion of her personal receipt, 6 or of her order to pay a third per-
son, with proof of payment to him, 7 is presumptive evidence of
this ; and proof of payment to her husband, if he were shown
to be her general financial agent, might also be prima facie
enough. 8 Such evidence may be rebutted by her testimony, or
other evidence, that the consideration neither came to her hands
nor those of her authorized agent, nor was applied to the use of
her estate. 9 But if once received by her, the fact that she
handed it to her husband, who misappropriated it, does not im-
pair her liability . 10 And, generally, the fact that in the particular
case the contract proved the reverse of beneficial, in a business
sense, is not material. 11 The circumstance that work was done or
materials were used for the improvement of her estate, if shown
to have been within her knowledge, does not raise a conclusive
presumption against her, 12 but will sustain a verdict. Evidence
Conlin v. Cantrell, 64 N. Y. 217.
8 Hansee v. DeWitt, 63 Barb. 63.
* Nash v. Mitchell (above).
4 As, for instance, by exonerating it from an incumbrance, or by a purchase.
B See Williamson v. Dodge, 5 Hun, 497, 499 ; White v. McNett, 33 N. Y. 371.
8 Treadwell v. Hoffman. 6 Daly, 210.
7 Prendergast v. Borst, 7 Lans. 489.
8 White v. McNett, 33 N. Y. 371. But a husband's declarations that she received
it for the use of her separate estate, are not competent, in the absence of evidence
that he was authorized to make such declarations. Deck v. Johnson, 1 Abb. Ct.
App. Dec. 497.
' White v. McNett (above). Where the contract was her joint obligation with
her husband, evidence that her authorized messenger received the money, but imme-
diately delivered it to the husbanil, and that the wife never received it, is sufficient
to rebut the presump'ion of benefit to her estate, Prendergast v. Borst, 7 Lans. 489.
10 Smith v. Kennedy, 13 Hun, 9.
11 Thus she is liable for her attorney's fees, though the litigation was unsuccessful.
Owen v. Cawley, 36 N. Y. 600, affi'g 13 Abb. Pr. 13.
14 Westgate v. Munroe, 100 Mass. 227 ; 2 Bish. Mar. W. 218.
ACTIONS BY OR AGAINST HUSBAND OR WIFE. 185
that the land belonged to her and her husband as tenants in com-
mon, does not impair her liability. 1 If such a claim rests on an
allegation of ratification, it must appear, 1. That credit was not
given to the husband alone. 2. That she, with full knowledge
that the materials, &c., were received unpaid for, and used for her
property to the enhancement of its value, acquiesced in such use. 8
35. A ction against her for Necessaries.'] To charge her or
her separate estate for family necessaries purchased while re-
siding with her husband, there must be evidence, 1. Of her
separate estate or business. 2. That the credit was given to her.
3. That she intended to charge her estate. 4. That the goods
were suitable and necessary. 8
36. Action against her for fraud.'] The wife can take no
advantage by a contract fraudulently made by her husband as her
agent, in the use of her separate property ; 4 and such a fraud by
her agent may be imputed to her, by the rules of evidence ap-
plicable to transactions of principal and agent. 5
37. HusbancTs Coercion of wife.'] A woman sued for a tort
is exonerated if she proves that she committed it by coercion of
her husband. Physical compulsion need not be shown, but moral
coercion, the immediate pressure of authority and intimidation ;
and in this two elements are involved, 1 . His presence, 6 and
2. his direction. 7 His direction is not alone enough. 8 If his
presence is shown, his direction or command is presumed, but
this presumption is not conclusive. 9 The presumption of coercion
may be rebutted by proof that she instigated the tort, or by
other circumstances showing her independent and free concur-
rence. 10
1 Burr v. Swrin, 118 Mass. 588. But both may be held jointly liable. Verill v.
Parker, 65 Me. 578.
* Miller v. Hollingsworth, 36 Iowa, 165.
1 Wells' Sep. Prop, of M. W. 465 ; Demott v. McMnllen 8 Abb. Pr. N. S. 335 ;
Smith v. Allen, 1 Lans. 101. And see Schouler's Dom. R. 79.
4 Adams v. Mills, 60 N. Y. 533, affi'g 38 Super. Ct. (J. & S.) 16.
5 Vanneman v. Powers, 7 Lans. 181. Otherwise if the property was not her
separate estate. Id. 56 N. Y. 42; Du Flon v. Powers, 14 Abb. Pr. N. S. 395.
8 It must appear that he wns present at the time or near enough to keep
her under his immediate influence and control. Commonwealth v. Munsey, 112
Mass. 289, and cases cited. On the question of coercion in a particular net in hia
absence, evidence of similar acts done by her in his presence and for the same pur-
pose, is competent. Handy v. Foley, 121 Mass. 259. If he was present at some,
only, of a series of acts, the presumption that the influence extended to all may be
negatived by the circumstances. State v. Cleaves, 59 N. H. 298 ; and see Schouler's
Dom. Rel. 104.
' Both are necessary. Cassin v. Delaney, 38 N. Y. 178.
8 Id. Contra, Reeve, Dom. Re 1 . 150; and see 2 Bish. Mar. W. 257.
9 Cassin v. Delaney (above); Schouler's Dom. Rel. 101. It is now regarded as a
slight presumption, and may be rebutted by slight circumstances. APPLETON, C. J ,
State v. Cleaves, 69 Me. 298, s. c. 8 Am. R. 422. ; Formerly it was held conclusive.
1 Greenl. Ev. 28; 3 id. 3.
10 2 Whart. Ev. 1267; citing Marshall v. Oakes, 51 Me. 308.
CHAPTER VII.
ACTIONS AFFECTING PARTIES IN A JOINT OR COMMON INTEREST
OR LIABILITY.
1. The general principle. 6. ^oint interest or liability.
2. Joint debtors. 7. joint promisees.
3. Defendants absent or defaulted. 8. Notice.
4. Admissions, <tc., of persons not par- 9. Declarations of conspirators or con-
ties, federates.
5. Admissions, <tc., of parties having 10. Preliminary question as to connec-
common interest or liability. tion.
1. The general principled] Where there are two or more
plaintiffs, or two or more defendants, alleged to have a joint or
common interest or liability, the general principle by which the
admissibility of evidence affecting a part of them is to be tested
is this : If the action or proceeding is one in which a separate
judgment can be given against one irrespective of his fellows,
evidence competent as against him is admissible, irrespective of
the state of the evidence as against his fellows ; * and the court
should instruct the jury if necessary, that it is competent only as
against him, and will not sustain a verdict against his fellows,
unless connection is shown. If the case is one in which a sepa-
rate judgment cannot be had, 2 evidence competent against any one
is admissible in the following cases : 1. Where the others have
been defaulted, 3 or their liability is conceded on the trial. 4 2.
Where there is other evidence against them on the same point,
sufficient to go to the jury, 5 or counsel undertake to adduce such
1 Thus, if the action is against maker and intlorser.or on a several bond, or a joint
and several bond, or against two for a tort, the admissions and declarations of either
defendant are competent against him, if a separate judgment against him is sought.
But if the action is unalterably joint, or an action in rtm, or a proceeding in the na-
ture of such an action, as usually in case of probate of a will, other evidence to
connect the other parties in interest with the declarant may be requisite.
3 Under the new procedure, separate judgment maybe had in favor of one of two
plaintiffs, if he has a good cause of action, and against the other who has not. Simar
v. Canaday, 63 N. Y. 298, and see Quinn v. Martin, 54 Id. 660 ; and so also against
one of two defendants sued, even on an alleged joint obligation, if he is proved to be
alone liable, and in favor of the other who is not. Brumskill v. James, 11 N. Y. '294.
But in such cases the evidence may be excluded on the ground of substantial vari-
ance and surprise.
8 Paragraph 3 (below).
4 If one defendant offers evidence charging the other with joint liability, the
other must object if it is not competent against him. Hennanos v. Duvigneaud, 10
La. Ann. 114.
6 The successive acts or declarations of each are equivalent to a joint declaration
by all. Haugliey v. Stridden, 2 Walts & S. 411. So, for another instance, where
[186J
ACTIONS AFFECTING PARTIES IN A JOINT INTEREST. 187
evidence in due course. 1 3. Where evidence of the acts, admis-
sions or declarations of one party is accompanied with other in-
dependent evidence that his relation to the others was sucli as to
render it just to impute his conduct to them. 2
2. Joint debtors.'] Where plaintiff undertakes to prove a joint
liability, if all the defendants are before the court, he must prove
not only the contract, but the connection of each defendant in
the tie which sanctions a joint liability ; and this connection must
be proved as to each defendant, by evidence competent as against
him. The fact that they are co-defendants does not allow him
to prove the connection of one, by the declarations of another.
The declaration of one that he was a partner, or otherwise jointly
connected with the others, is not to be excluded because it asserts
the liability of the others ; 3 but its only effect is as against him,
and there must be other evidence with a similar effect against
each of the others.
3. Defendants, Absent or Defaulted.'} Where some of the
alleged joint debtors admit their individual and joint liability,
either by pleading or otherwise, or are proceeded against as ab-
sentees so that no personal judgment can be rendered against
them or their individual property, plaintiff is only obliged to pro-
duce evidence which will be sufficient, as against those who ap-
pear and defend the suit, to establish their joint liability with
their co-defendants. In such cases, the acts and admissions of
the parties who thus appear and defend are legal evidence against
themselves, not only of their own indebtedness, but also of their
joint indebtedness with their co-defendants. 4
In an action for a tort, evidence of admissions or declarations
by a defendant who has defaulted, if relevant to the measure of
damages, is competent as against him, notwithstanding it may
refer to the others ; 5 but it should be offered for this purpose,
and not as evidence against those who defend. 6
4. Admissions, &c., of persona Not Parties to the action.'] The
fact that one who is not a party to the action was a party to the
contract sued on, does not alone render his admissions and declara-
notice to both of two owners must be proved, evidence of actual service on one hav-
ing been given, the admission of the other that he had notice would be competent.
1 Thompson v. Richards, 14 Mich. 172, 187; Forsyth v. Ganson, 5 Wend. 558.
9 See paragraphs 5, <fec. (below). These rules are subject to some qualification
and peculiar applications in rase of such distinctive classes of persons as Heirs and
devisees, Husband and wife, Partners, <fec., elsewhere treated; and in all cases, <>f
course, admissions and declarations may be competent against another than the de-
clarant, by the rule ofresgestce, or if made in his presence, or if made in the course
of duty, or against interest by a person since deceased, or may be received to dis-
credit the declarant as a witness, or on other such special grounds.
8 Lenhart v. Allen, 32 Penn, St. 812.
4 Halliday v. McDougall, 22 Wend. 264, 270, and cases cited,
5 Boslwick v. Lewis, 1 Day (Conn.) 33 ; Daniels v. Potter, M. fc M. 601.
Tenth Nat. Bk. v. Darragh, 3 Supm. Ct. (T. <fe C.) 138.
188 ACTIONS AFFECTING PARTIES
tions competent against those who sue or are sued. 1 It must first
appear that he is the real party in interest, 2 or other special
grounds must be shown for imputing his acts to the party against
whom they are offered ; and the rule is the same as to one named
as a defendant on the record, but who has never been served nor
appeared. 8
5. Admissions and declarations of parties having a Common
interest or liability '.] A common or several interest, or a com-
mon or merely several liability, does not render the hearsay of
the one party admissible against the other. Tenancy in common,
that is in fractional shares, whether of real 4 or personal 5 proper-
ty, is not enough to render the admissions or declarations of one
co-tenant, admissible against the other ; but of course they may be
rendered competent by showing that they were made in the
presence and hearing of the other, 6 or otherwise brought to his
knowledge.
6. joint interest or liability. ~] In case of joint 1 interest
or liability, the principle upon which the admissions and declara-
tions of one are admissible against the other, is that of agency.
Where the one may be deemed to have been, at the time the
words passed, the agent of the other in the matter, they may be
proved against both. Formerly the common law courts applied
a technical rule that a mere Joint interest or obligation, without
anything to indicate actual intent, raised a sufficient legal pre-
sumption of agency for this purpose ; 8 and this rule is still ap-
plied in England " and in some of our States. 10
1 Hamlin v. Fitch, Kirby (Conn.\ 174 ; Abel v. Forgue, 1 Root, 502. Nor Is the
admission of such person, that he was jointly interested, competent in support of a
plea in abatement. Storrs v. Wetmore, Kirby (Conn.), 203.
* Bucknam v. Barnum, 15 Conn. 68, 73.
8 Peck v. Yorks, 47 Barb. 131.
4 Dan v. Brown. 4 Cow. 483, 492.
6 McLellan v. Cox, 36 Me. 95.
6 Crippen v. Morse, 49 N. Y. 63. Evidence of a declaration by one, of what he
had heard the other say, not competent. Quinlan v. Davis, 6 Whart. 169.
7 As to the test of the distinction between joint and common interests in contracts,
see 1 Addison on Contr. 78-88; 1 Pars, on Contr. 11; 1 ytory on Contr. 52, <fec.
A bill of parcels delivered on a sale, and mentioning several as the sellers, is not
conclusive evidence that the sale was joint, but parol evidence is competent to show
that one of those named was really the seller. Harris v. Johnson, 3 Cranch, 311.
On a doubtful question whether an account with plaintiffs was joint on the part of
the defendants, evidence that one had a separate account at the same time, is compe-
tent. Quincey v. Young, 63 N. Y. 370, rev'g 5 Daly, 327.
A conveyance or mortgage made by one defendant is not competent evidence in
favor of the other to show that the subject of the conveyance was the sole property
of the other. Harris v. Wessels, 5 Hun, 645.
8 1 Pars, on Contr. 24; Shoemaker v. Benedict, 11 N. Y. 175, 181, and cas. cit.
Steph. Dig. L. Ev. art. 17.
10 Black v. Lamb. 1 Beasl. N. J. 108, 122. See also Cady v. Shepherd, 11 Pick.
400; Walling v. Rosevelt, 16 N. J. L. 41 ; Lowle v. Boteler, 4 Harr. & M. 346. The
rule stated by PHILLIPS, is that, as a general principle, " in a civil suit by or against
several persons, who are proved to have a joint interest in the decision, a declaration
made by one of those persons, concerning a material fact within his knowledge, is ev-
IS A JOINT OR COMMON INTEREST. 189
Under the freer rules of evidence now applied, it is better to
.be prepared with some evidence, at least, beside the mere fact of
a joinder in interest, to sanction the inference that one might
speak for the other. 1 Joint possession alone, may be sufficient to
admit evidence of the separate contemporaneous declaration of
either possessor, as characterizing the joint possession ; 2 but this
is on the principle that it is part of the res gestce. Joint posses-
sion is not enough to render other declarations of one binding on
the other, except in some cases where the latter claims under the
possession in the former. A joint business or adventure fur-
nishes usually ground for inferring the agency of one to speak
idence against him, and against all who are parties with him to the suit." He adda
in effect, that a joint interest in the decision is not essential where there is a joint
interest in the transaction (1 Phil. Ev. 491). And the American editor adds, that
where this rule is applied, it is necessary that it should appear that the defendants
had an existing joint interest when the admission was made. Id. n. 1.
GREENLEAF states the rule more loosely : there must be " some joint interest, <fec.,
* * * In the absence of fraud, if the parties have a joint interest in the matter
in suit, whether as plaintiffs or defendants, an admission made by one is, in gen-
eral, evidence against all. They stand to each other, in this respect, in a relation
similar to that of existing copartners" (citing Whitcomb v. Whiting, 2 Dougl. 652).
1 Greenl. Ev. 174.
TAYLOR more guardedly says : "When several persons are jointly interested in
the subject-matter of the suit, the general rule is, that the admissions of any one of
these persons are receivable against himself and fellows, whether they be all jointly
suing or sued, or whether an action be brought in favor of or against one or more of
them separately; provided the admission relate to the subject-matter in dispute, and
be made by the declarant in his character of a person jointly interested with the
party against whom the evidence is tendered." 1 Tayl. Ev. 655, 674.
STARKIK tersely indicates the true test. Stating that an admission against interest
is deemed true against the one who made it, he adds: "The same rule it will be
seen applies to admissions by tho^e who are so identified in situation and interest
with a party that their declarations may be considered to be made by himself.
1 Stark. Ev. 50.
STEPHEN says nothing of joint owners, and classes all joint contractors with part-
ners, saying that " Partners and joint contractors are each other's agents for the pur-
pose of making admissions against each other in relation to partnership transactions
or joint contracts ; " but not for the purpose of acknowledgment by promise or pay-
ment, to remove the bar of the statute of limitations when once operative, against a
simple contract. Steph. Dig. Ev. art. 17.
Where the admission of one jointly interested is competent, the relative small-
ness of the amount of his interest cannot render it incompetent. Black v. Lamb,
1 Beasl. 108, 122.
1 In Lewis v. Woodworth, 2 N. T. 613, it was determined that an admission
made by one joint promissor, although acted on by a third person, could not estop
the other promissor ; and it was put upon the ground that simple joint contractors
are not, like partners, agents for each other. In Van Keuren v. Pannalee, Id. 528,
and Shoemaker v. Benedict, 11 Id. 176, the same court more fully discussed the prin-
ciple, and gave almost unanimous sanction to the doctrine that a joint debtor has
not, merely as such, any authority to make admissions which will affect his fellows
(2 N. Y. 628, 11 N. Y. 185); and the justice of their conclusion in repudiating the
English doctrine is vindicated by the subsequent English legislation adopting, to a
great extent, the rulo in respect to acknowledgments by copartners after dissolution,
to which this doctrine led them. 19 it 20 Vic. c. 97. Of the later New York cases
on the point, Ellenwood v. Fults (ti3 Barb. 321, S80), seems in accordance with the
rule stated in the text. Barrick v. Austin, 21 Barb. 241, 244, is contrary to it. In
neither is the principle discussed.
8 Dawson v. Callaway, 18 Geo. 573, 580.
190 ACTIONS AFFECTING PARTIES
and act for the other, 1 and where the agency is sought to be in-
ferred from the course of business, evidence of former joint
transactions in the same employment or business, even for several
years back, 2 and with other persons, 8 is competent, for the pur-
pose of aiding the conclusion that the transactions in suit were
also joint ; and an authority in one to speak for both may be in-
ferred from the fact of his activity, and the knowledge and silence
of the others ; 4 but evidence that one advanced funds, or had an
interest as a secured creditor, is not alone enough. The joint
authority or agency must relate to the subject of the joint title
or adventure. 5 Where an admission or declaration is received by
virtue of such a relation, it must be shown to have been made
during the continuance of the relation ; and if it consists of a
writing, the date is not, for this purpose, sufficient evidence of
the time when it was made.
The admissions and declarations of one when thus admissible
against others, are competent equally against both, but are not
evidence against the others in exoneration of the declarant as,
for instance, to show that he was merely their surety ; and in all
cases they are rendered incompetent by evidence of fraud.
7. joint promisees.'] In so far as joint promisees 6 or obligees 7
are the agents of each other for the purpose of collection, the ad-
missions and declarations of either are competent in an action by
both against both.
8. Notice.'] Notice to one of two joint promisors 8 or joint
tenants or purchasers, 9 is not notice to the other, unless agency
is shown.
9. Declarations of conspirators or confederates.] The famil-
iar rule that where several persons are engaged together in the
furtherance of a common illegal design, the acts and declarations
of one confederate, made in pursuance of the original concerted
plan and with reference to the common object, are competent
1 Thus where one of the several proprietors of a theatre made the contract in suit
on behalf of all the proprietors, the declarations of one of them were held admissible
against all. Kemble v. Farren, 3 Carr. & P. 623.
* Trego v. Lewis, 68 Pa. St. 463.
8 Bowers v. Still, 49 Penn. St. 66.
4 B ink of U. S. v. Lyman, 20 Vt. 666.
5 Thus those who own part of a ship as copartners and another part as tenants in
common, may bind each other as to the former interest by their admissions, but as
to the latter interest they may not, without other evidence of agency than the com-
mon interest.
6 Pringle v. Chambers, 1 Abb. Pr. 58.
'Cross v. Bedingfield, 12 Sim. 35; Black v. Lamb. 1 Beasl. (N. J.) 108, 122.
Whether these cases are now to be deemed authority with us, for tlie doctrine that
the joint interest alone is enough, see p. 189, n. If the rule goes farther than stated
in the text, it should be only within the limits stated by Phillips and Taylor.
8 See Lewis v. Woodworth, 2 N. Y. 513.
Wade on Notice, 312, 684. Compare Spencer v. Campbell, 9 Watts <fc S. 32.
IN A JOINT OR COMMON INTEREST. 191
evidence against the others, though made in their absence, 1 does
not rest on the joinder of parties, but rather on the principle of
legally imputed agency ; and the evidence is confined to that
which the rule of the res gvstm admits, 8 and excludes narratives
of past transactions. 4
10. Preliminary question as to Connection.'] The connection
between the parties which renders the declaration of one compe-
tent against the other, can never be proved by the declaration
itself, but must be separately proved, as the foundation for ad-
mitting the declaration. Strictly it ought to be proved first, but
it is in the discretion of the court to allow the declaration to be
proved first on the promise of counsel to connect afterward, 5 and
it is not error to allow this even in cases of conspiracy. 6 Where
a joint judgment is sought, there is the more reason for requiring
the connection to be first proved ; and in this class of cases, as
well as where the declaration is that of an alleged agent, it is the
better opinion that the question of connection is a preliminary
question for the judge, 7 who should exclude the evidence, or,
when it has been admitted by anticipation, strike it out or direct
the ^jury to disregard it, if it is not as matter of law sufficient to
lay the foundation. In those cases where a separate judgment is
sought, as well as in all cases in those courts where the question
of connection is deemed one for the jury instead of for the judge,
the evidence, if received against the declarant, should be accorn-
1 The declarations of one not a party may be admitted under the rule. American
Fur Company v. U. 8. 2 Pet. 358, 364 ; Preston v. Bowers, 13 Ohio St. 1, 13.
3 Lincoln v. Claflin, 7 Wall. 132; Cuyler v. McCartney, 40 N. Y. 221, rev'g 33
Barb. 165. The objection of absence in such n case goes only to the weight of the
evidence. Bushnell v. City Bank, 20 La. An. 464.
3 Apthorp v. Comstock, 2 I'aige, 482, 488.
4 Clinton v. Estes, 20 Ark, 216 ; Patton v. The State, 6 Ohio St. 467.
6 Bowers v. Still, 49 Penn. St. 65, s. p. Cobb T. Lent, 4 Greenl. (Me.) 503.
6 Place v. Minster. 65 N. Y. 89 ; State v. Ross, 29 Mo. 32, 50. It is true, that it
is of no consequence (on the question of error) in what order the testimony was in-
troduced it it in the end proves relevant (Jenne v. Jo-lyn, 41 Vt. 478); but if it doea
not prove relevant, the judge's instructions will often fail to remove the unjust im-
pression produced. In cases of confederacy, particularly, the foundation for the
admission of the evidence should be scrutinized with caution, lest the jury be led to
infer a conspiracy from the declarations of strangers. Burke v. Miller, 7 Cush. 547,
550.
1 The sufficiency of the evidence of the necessary foundation is held a question
for the judge, in New York, Jones v. Hurlbut, 39 Barb. 403 ; Massachusetts, Burke v.
Miller, 7 Cush. 647, 550; AIi**ouri, State v. Ross, 29 Mo. 32, 51; Iowa, State v. Nash,
7 Iowa, 347, 384; and see Dickinson v. Clarke, 5 W. Va. 280. But the ruling that
it is sufficient usually means merely that it is sufficient to go to the jury, who may
still pass on the sufficiency of the connection, as well as on the sufficiency of the nd-
mission or declaration, if the connection be shown. Commonwealth v. Brown, 14
Gray, 419, 432. But see Jones v. Hurlburt, 39 Barb. 403. Hence, if the necessary
connection is shown by t!>e testimony of a competent witness the court will not
question his credibility, but leave it to the jury. Commonwealth v. Crowninshie'd,
10 Pick. 4!7. It seems to be treated as a question f'r the jury, in the fii st instance,
in Pmns'/lvania, Helser v. McGrath, 58 Penn. St. 458; Kentucky, Oldharn v. Bentley,
6 B. Mon. 428, 431.
192 ACTIONS AFFECTING PARTIES IN A JOINT INTEREST.
panied by instructions clearly pointing out the distinction be-
tween evidence admitted for the purpose of establishing the con-
federacy or other connection, and that which is to be considered
only after the connection has been proved and found by them.
The jury should also be instructed as to the persons who must be
found united in the confederacy. 1
1 Wiggins v. Leonard, 9 Iowa, 194. But if there is any evidence to connect, it is
not error to omit such instructions when they are not asked for. Boswell v. Black-
man, 12 Geo. 691. If connection is disproved, it is error to leave the question to
the jury. Page v. Scranton, 39 Me. 400.
CHAPTEE VIII.
ACTIONS BY AND AGAINST PUBLIC OFFICERS.
I. GENERAL PRINCIPLES. II. ACTIONS BY OFFICERS continued.
1. Different proof of title, in different 11. Action for emoluments.
cases.
2. Legal title. III. ACTIONS AGAINST OFFICERS.
8. Contracts in official capacity. 12. Plaintiff's pleading.
4. Acts by part of board or body. 13. Plaintiff's proof of official character
5. Demand and notice. of defendant or his deputy.
6. Former judgments. 14. Cause of action.
15. Return, as against the officer.
II. ACTIONS BY OFFICERS. 16. Public action for refusal to serve.
7. Pleading by officer suing as such. 17. Pleading by officer defendant.
8. Proof of title. 18. Defendant's proof of official charac-
9. Process as supporting a cause of ter in justification.
action. 19. Process as a protection to defead-
10. Return, adduced in his own favor. ant.
I. GENERAL PRINCIPLES.
1. Different proof of title, in different cases.~\ There are
three principal grades of proof of the official character of an al-
leged officer, adequate in different classes of cases : 1. That he
was officer de jure, that is, with legal title. 2. That he was
officer de facto, that is, that he acted as such, with color of title, 1
though it may be without legal title. 3. That he assumed to act
as such in the transaction in question, though it may be without
color of title. It will be seen, in this chapter, that : 1. On an is-
sue directly between the officer and the public, whether in an ac-
tion by the State, or by or against other public officers, strict
proof of title is necessary. 8 2. On an issue between third per-
sons, or between them and the officer, or between them and the
public, evidence that he was an officer de facto is always sufficient
and conclusive against every party, and equally in favor of any
party but the officer himself, 8 while, in his favor, it is commonly
regarded as competent, for the purpose of raising a presumption
that he was officer dejure. 3. On an issue between a third per-
son and the alleged officer, evidence that he acted as such in the
transaction is competent and usually conclusive evidence of his
1 To constitute color of office there must be some color of election or appoint-
ment, or at least an exercise of the office, and a public acquiescence for a sufficient
length of time reasonably to authorize the presumption of at least colorable elec-
tion or appointment. State v. Carroll, 88 Conn. 449, s. o. 9 Am. R. 409, 427; Wil-
cox v. Smith, 5 Wend. 231.
3 Paragraphs 8 and 13 below. Contra, 1 Greenl. T>. 115, 92.
8 The English rule, embodied in GreeuleaPs statement, allows this cvidoaca to be
conclusive in favor of the officer.
13 [193]
194 ACTIONS BY AND AGAINST PUBLIC OFFICERS.
official character, as against him ; and evidence that he was recog-
nized as such by the other party, is competent and sufficient,
though not conclusive evidence thereof, against such party.
2. Legal title.} Where legal title is in issue, and strict proof
is required, the certificate of election or commission coming
from the proper source, is presumptive evidence of his right to
the office; 1 but it is only matter of evidence, and its exist-
ence is not essential, unless made so by statute. 3 Thus, if the
statute simply authorizes a judge to appoint without more, proof
of writing, is not necessary, but proof of an oral appointment by
some open, unequivocal act, is sufficient, and the subsequent failure
to sign an order entered for appointment does not affect the title
to the office. 8 If a writing exists, however, it should be produced
as the best evidence, or should be accounted for, to lay a founda-
tion for secondary evidence, in cases where strict proof of title is
required. Where appointment must be proved, extrinsic evi-
dence is inadmissible to show that Robert, the officer de facto,
was the person intended to be appointed by the name of William,
used in the commission. 4 Production of a certified copy of the
appointment on file does not dispense with all proof of authen-
ticity of the original. 5 If the statute requires a written oath to
be filed, the taking of the oath cannot be proved by a memoran-
dum at the foot of the commission, "sworn before me," with
date and signature of the magistrate. 6 But a copy of the oath
duly certified by the officer with whom it was duly filed, is com-
petent. 7 Where it is necessary to show a vacancy to justify an
appointment, it is enough to show that the office was, as matter
of law, vacated by a prior incumbent, without proving that there
was no other new appointment. 8
3. Contracts in official capacity.'] A contract made by a pub-
lic officer, connected with a subject fairly within the scope of his
authority, is presumed to have been made in his official capacity. 9
If the other party was aware of his official character, this pre-
sumption arises, although he used language importing a personal
promise, 10 and it is not necessary to show that he said he acted as
1 2 Dill. Mun. C. 807, 716, s. p. State ex rel. Leonard v. Sweet, 27 La, Ann.
541 ; Wood v. Peake, 8 Johns. 69.
s Marbury v. Madison, 1 Cranch, 137 ; People ex rel. Babcock v. Murray, 6 Hun,
42.
* Hoke v. Field, 10 Bush, 144, s. o. 19 Am. R. 68. As to mode of proving ap-
pointment by vote of municipal body, see Canniff v. Mayor, <fec. of N Y. 4 E. D.
Smith, 430.
4 Bench v. Otis, 25 Mich. 29.
5 Curtis v. Fay, 37 Barb. 67.
6 Halbeck v. Mayor, <fcc. of N. Y. 10 Abb. Pr. 439.
1 Devoy v. Mayor, <fec. of N. Y. 35 Barb. 264, s. c. 22 How. Pr. 226.
8 Canniff v. Mayor, <fcc. of N. Y. 4 E. D. Smith, 430. Compare Randall v. Smith,
1 Den. 214.
Parks v. Ross. 11 How. U. S. 362.
10 Olney v. Wickes, 18 Johns. 127.
ACTIONS BY AND AGAINST PUBLIC OFFICERS. 195
officer. 1 The question is one of intent and credit, with a strong
presumption against personal liability. Where he contracts un-
der private seal, designating himself as one of the parties, yet if
the deed appears on its face to be made on behalf of the State,
the same presumption applies. 2 In an action against a public
officer on a contract apparently made by him as snch, it is not
necessary to allege that he had authority to make it, for his mak-
ing it is an admission. 8 But if the statute requires his contracts
to be in writing, and makes it unlawful to contract otherwise, the
other party cannot recover without proof of such a contract, or at
least without proving part performance and a Quantum meruit.*
The government is not bound by the act or declaration of its
officer or agent, unless it manifestly appear that he acted within the
scope of his authority, or was employed, in his capacity as public
agent, to do the act or make the declaration for it. 5
To charge him personally there should be satisfactory evi-
dence of an absolute engagement to be personally liable. 6 Even
if his authority proves void, yet if he acted in good faith, and
within his instructions, he is not necessarily personally bound. 7
When it is sought to charge him individually on his contract, his
communications to the superior branches of his government, and
their directions to him, are competent in his favor for the pur-
pose of showing that he acted as such. 8 He may recover on an
apparently personal contract, though made with his official addi-
tion, such as a bank deposit, in his own name, with the addition
of his title, unless the defendants show that they are liable to
the government. 9
4. Acts by part of board or lody.~\ In cases where, by law, 10
a majority of a board or body n may act, provided all the members
who are living and qualified, 12 are present and deliberate, or were
duly notified, the act of a majority of the officers is presumed to
have been upon a meeting and consultation of all. 13 But the
presumption may be rebutted. 14
I Nichols v. Moody, 22 Barb. 611 ; Holmes v. Brown, 13 Id. 699.
* Hodgson v. Dexter, 1 Cranch, 345; Streets v. Selden, 2 Wall. 187.
8 Shelbyville v. Shelby ville, 1 Mete. (Ky.)54, 57.
4 Clark v. United States, 95 U. S. (5 Otto), 539.
5 Whiteside v. United States, 93 U. S. (1 Otto), 247; and see Noble v. United
States, 1 1 Ct. of Cl. 608. Compare 4 Abb. New Cas. 450.
6 Parka v. Ross (above), and see 7 Opin. of Atty.-Gen. 88. Compare Paulding v.
Cooper, 10 Hun, 20.
7 Hall v. Lauderdale, 46 N. Y. 70.
8 Bingham v. Cabbot, 3 Dall. 19, 40.
* Swartwout v. Mechanics' Hank of N. Y. 5 Den. 556.
10 2 N. Y. R. S. 556, 27; Green v. Miller, 6 Johns. 39. Compare Schuyler Y.
Marsh, 87 Barb. 350.
II Where the statute number was variable, the court presnmed no more officers
than the lowest number, in order to support the act of the majority of that number.
Jay v. Carthage, 48 Me. 8:>3.
18 People ex rcl. Kingsland v. Palmer, 62 N. Y. 83 ; People ex rel. Kingsland T.
Bradley, 6 1 Barb. 228.
13 Doughty v. Hope, 3 Den. 249, 694 ; 1 N. Y. 79.
14 Doughty v. Hope (above).
196 ACTIONS BY AND AGAINST PUBLIC OFFICERS.
5. Demand and Notice."] A demand must be made in a rea-
sonable and proper manner ; and if accompanied by gross rude-
ness and insult, is not a legal demand ; but such misconduct does
not justify the refusal of a subsequent proper demand. 1 Proof
of the mailing of a letter to a public officer is not alone sufficient
evidence of hotice of its contents. 3 Though, together with slight
evidence of actual receipt, it may be sufficient.
6. Former Judgments.'] A former judgment does not neces-
sarily bind the officer in a new action, unless he appeared in the
same capacity in both. 8 Where an officer sues in his representa-
tive capacity, the estoppel created by the judgment is available in
favor of those whom ne represented, and the judgment is there-
fore conclusive against him when they put it in evidence in their
action against him. 4
II. ACTIONS BY OmcEES.
7. Pleading by officer suing as suchJ] In an action by a pub-
lic officer in his official capacity, if he is named personally, the
pleading must indicate that he sues officially. A mere addition
of his title, without anything to indicate that he sues as such
officer, is not enough. 5 But if it appears from the title or the
body of the complaint that he complains as officer, a cause of
action accruing to him in his official capacity, may be proved, 6
even though it arises under a statute authorizing him to sue on
behalf of another person or bodv, and there is not express allega-
tion that he sues for their benefit. 7 Unless the regular legal title
is directly involved in the action, he need not aver the mode of
acquiring the office, but may prove his official character under a
general allegation that he is, and was at the times in question,
such officer.
8. Proof of title. 9 ] An officer suing for moneys or property
as to which his only title is by virtue 01 his office, as where he
sues for public funds which he is to administer, must show a
legal title to the office. 10 It is not enough that he is an officer de
facto. According to the English doctrine, however, evidence
that he was acting in the office is competent, and sufficient, at
1 Boyden v. Burlce, 14 How. U. S. 575, 683.
s Huntley v. Whittier, 105 Mass. 391, s. c. 7 Am. R. 636.
8 See Rathbone v. Hooney, 58 N. Y. 463.
4 People ex rel. Knapp v. Reeder, 25 N. Y. 302, 804.
8 Thus, "John Doe, supervisor," <fec. in the title, is not alone enough. Gould v.
Glass, 19 Barb. 179. But commencing the complaint as "the complaint of John
Doe, as supervisor," <fcc. is ; Smith v. Levinus, 8 N. Y. 472 ; so is " John Doe, super-
visor, <fec. complains." Fowler v. Westervelt, 17 Abb. Pr. 69, s. o. 40 Barb. 374.
6 See Stilwell v. Carpenter, 2 Abb. New Cas. 240, and note.
7 Griggs v. Griggs, 66 Barb. 291, 300, affi'd in 56 N. Y. 504.
8 Kelly v. Breusing, 83 Barb. 123, affi'g 32 Id. 601.
* See paragraphs 1 and 13.
10 People ex rcl. Henry v. Nostrand, 46 N. Y. 375, 382.
ACTIONS BY AND AGAINST PUBLIC OFFICERS. 197
least, to go to the jury (especially where he 'sues a private per-
son), from which the jury may infer regular legal title, even
although the title is put in issue. 1 But evidence that he has not
taken the oath or given the bond required by law, is competent
against him. 2
9. Process as supporting a cause of action.] An officer suing
by virtue of process issued to him, and possession under it, suf-
ficiently proves his authority under it by producing the process,
if fair on its face, 3 and need not, in the first instance, prove the
judgment or order on which it issued. 4 But the defendant may
impeach the process for want of jurisdiction, and if he does this
by evidence, the officer must establish the jurisdiction or his ac-
tion fails.
10. Return, adduced in his own action.'] In an action by a
public officer, founded on his own official acts, as where a sheriff
sues to recover goods levied on, 5 or to recover the purchase monev
of land sold by him, his own return is competent prima facie
evidence in his favor. 6 It is a general principle that the certifi-
cate of an officer, when, by law, evidence for others, is competent
testimony for himself, provided he was competent, at the time of
making it, to act officially in the matter. Subsequently acquired
interest does not affect the competency, of the certificate. 7
11. Action for emoluments.'] In his action for salary or
other emoluments belonging to himself, the officer sues in his
individual capacity, and his regular legal title at the time for
which he claims compensation, is in issue and must be directly
proved, 8 except where he sues private persons for services which
would be valid if rendered by an officer de facto, and which they
have accepted. 9 Evidence of general usage may be competent to
show the measure though not the right to compensation. 10 The
official audit or taxation of his fees by the proper officers, such
as a board of supervisors, having jurisdiction, is conclusive. 11
1 McMahon v. Lennard, 6 Ho. of L. Ca*. 970 ; Doxter v. Hayes, 11 Irish L. N. S.
106, affi'd in 13 Id. 22 ; Radford v. Mclntosh, 3 T. R. 6H2 ; Doe d. Bowley y. Barnes,
8 Q. B. 1037. Having dealt with the officer as such, deemed an admission of his
title. 2 Whart. Ev. 1153.
2 People v. Hopson, 1 Den. 579. Per BBOXSON, J.
2 See paragraph 19, and note.
4 Earl v. Camp, 16 Wend. 562; Cleirwater v. Brill, 63 N. Y. 627; Kelly v. Breu-
eing, 83 Barb. 123, affi'g 32 Id. 601 ; Dunlap v. Hunting, 2 Den. 643.
6 Cornell v. Cook, Y Cow. 310. Co>,tra, 8 Pick. 397.
8 Hyskill v. Givin, 7 Serg. <fc Rawle, 369.
7 ili Knight v. Lewis, 5 Barb. 681. A return, contrary to the fact,, if it has been
canceled by leave of the court, does uot estop him. Barker v. Binniuger, 14 N. Y.
270.
8 People ex rcl. Morton v. Tieman, 8 Abb. Pr. 859 (ALLEN, J.); Dolan T. Mayor,
<fcc. of N. Y. 63 N. Y. 278.
See Sawyer v. Stcele, 3 TVash. C. Ct 464; Hunter T. Chandler, 45 Mo. 452.
10 United States v. Fillebrown, 7 Pet. 28.
11 Supervisors of Onouda^a v. Briggs, 2 Den. 26, 40; but compare U. S. v. Smith,
1 Wood. & M. 184.
198 ACTIONS BY AND AGAINST PUBLIC OFFICERS.
in. ACTIONS AGAINST OFFICERS.
12. Plaintiff's pleading.] In an action against a public offi-
cer, for a wrong not involving the violation of any official duty
lie or his predecessor owed to plaintiff, the cause of action may
be proved, although the complaint does not allege that he was
such officer, 1 but where the breach of such a duty is involved,
the complaint should designate him as such officer, and aver him
to be such. 8 But an allegation that he collected plaintiff's
money on process, need not add that he received it as such offi-
cer. 8 Ana even where defendant is not sued in his official
capacity, evidence of moneys received in that capacity is ad-
missible. 4
13. Plaintiff's proof of the Official character of Defendant
or his Deputy. .] In a private action against an alleged officer,
parol evidence of his official character is admissible, notwith-
standing there is a record. 5 And evidence that he assumed
to act as such officer in the matter in question, is conclusive
against him as an estoppel. 6 But to charge him with responsi-
bility for a deputy or other subordinate, the appointment must
be shown, either by producing the original on file,' or by evidence
that the latter acted as such with liis knowledge and assent. 8
Neither the appointment of the deputy, nor his relation to his
principal, can be proved merely by his acts, 9 or his testimony that
he acted as such. 10 Evidence that the subordinate appointment
is irregular, does not render the principal or appointing officer
liable for the acts of the subordinate as if they were done with-
out authority, provided the subordinate was an officer de facto. 11
14. Cause of action."] The burden of proving affirmatively
a breach of official duty complained of, is upon the plaintiff, who
must show every fact necessary to constitute such breach, and
without it damages will not be presumed. 12 To charge one officer,
the court will not, without evidence, presume that the precedent
duty of another officer was performed. 13 An officer, especially
1 Curtis v. Fay, 87 Barb. 64; Dennis v. Snell, 54 Id. 411.
* Formerly it was held that if title was averred and put in issue, the pleader
might be held to prove legal title. 1 Greenl. Ev. 115, 92. The better opinion
under the new procedure is, that if the mode of acquiring title is not in issue, proof
that he was an officer de facto is admissible under allegation of official character.
8 Armstrong v. Garrow, 6 Cow. 465.
4 Walton v. U. S. 9 Wheat. 651.
5 Dean v. Gridley, 10 Wend. 254.
6 1 Greenl. Ev. 13th ed. 245, 207; Lister v. Priestly, Whightw. 67; Eosc. K P.
70.
7 Curtis v. Fay, 37 Barb. 64. A certified copy, unless made evidence by statute,
is inadmissible for this purpose, without excusing the absence of the original. Ib.
8 Boardman v. Halliday, 10 Paige, 223, 230 ; Sprague v. Brown, 40 Wis. 612.
Meyer v. Bishop, 27 N. J. Eq. 141. Contra, Briggs v. Taylor, 85 Vt. 57, 67.
10 Curtis v. Fay, 87 Barb. 67.
11 Hamlin v. Uingman, 5 Lans. 61. Contra, Cummings v. Clark, 15 Vt. 653.
1S Craig v. Adair, 22 Ga. 373.
13 Id. The presumption in favor of official acts is not to be pressed too far.
ACTIONS BY AND AGAINST PUBLIC OFFICERS. 199
when acting under the sanction of an oath, or in whom govern-
ment reposes trust, is presumed to have done his duty until the
contrary be proved ; and this principle applies in favor of the
officer as well as in favor of strangers. 1 And when an officer is
charged with fraud or conspiracy in the discharge of his duties,
the presumption of innocence is strong in his favor, but it may
be overcome by evidence of other similar delinquencies. 2 To
charge an officer with neglect to execute process, the plaintiff
cannot rely on the rule that process valid on its face, <fec., is a
protection. The officer is not bound to act, if the process or
judgment is void for want of jurisdiction. 3 The admissions and
declarations of a subordinate, who was not the general agent and
representative of the defendant, are not competent against the
defendant, unless within his authority, 4 or part of the res gestce.
It is not enough that they were made before his term expired, 5 nor
that they were against interest, and he has subsequently died. 6
The acts of a public officer, on public matters within his
jurisdiction, and where he has a discretion, are presumed legal,
till shown to have been unjustifiable. This presumption avails
in his own favor when he is sued. 7 To sustain a private action
against him, it must be shown that he exercised the power con-
fided to him in a case without his jurisdiction, or in a manner
not confided to him, as with malice, cruelty, or willful oppres-
sion. 8 In case of a judicial officer malice is not enough. 9
15. Return, as evidence Against the officer.] As against the
officer, and those claiming in privity with him, his return 10
is conclusive 11 as to his acts 12 stated in it, within the scope of
his duty, as evidence in favor of parties who claim an interest or
"When invoked in lieu of direct evidence, it cannot serve as a substitute for all other
evidence of an independent and material fact. It aids general evidence by dispens-
ing with proof of material circumstances and incidents. United States v. Ross, 92
U. S. (Otto), 281, 285.
1 Ilickman v. Boffman, Hard. (Ky.) 348. Thus, the fact that a sheriff made a
levy, is presumed in support of his justification under process. Hartwell v. Root, 19
Johns. 345.
8 Bottomley v. U. S. 1 Story C. Ct. 135. As to evidence of motives, see Gregory
v. Brooks, 37 Conn. 365 ; Moran v. McClearns, 4 Lans. 288 ; Wilkea v. Dinsman, 7
How. U. S. 89.
8 Cornell v. Barnes, 7 Hill, 35 ; Housh v. People, 75 111. 487.
4 Green v. Town of Woodbury, 48 Vt. 5.
5 Burgess v. Wareham, 7 Gray (Mass.) 845.
6 Lawrence v. Kimball, 1 Mete. (Mass.) 524.
I It rests not rat-rely on the presumption of innocence, but also on grounds of
public policy. Wilkea v. Dinsman, 7 How. U. S. 130.
9 Lange v. Benedict, 8 Hun, 866, affi'd in 73 N. T. 12.
10 And the principle extends to his indorsement upon an execution, of the time of
its receipt. Williams v. Lowndes, 1 Hall, 679. So also of a deputy's return, offered
in evidence against the sheriff. Sheldon v. Payne, 7 N. Y. 453. That the power to
return is a common-law power, see McCullough v. Commonw. 67 Penn. St. 30.
II Sheldon v. Payne (above).
18 See bplahn v. Gillespie, 48 Ind. 897.
200 ACTIONS BY AND AGAINST PUBLIC OFFICERS.
right nnder the return ; l and when thus conclusive, not even
the officer, 2 or his deputy, 8 can testify in contradiction to it.
But returning that the goods were taken as property of A. does
not estop him from showing that they were not in fact A.'s
property, 4 or that plaintiff is not entitled to the proceeds. 5 And
ne may prove other facts relevant to his defense, which were not
included in nor contradicted by his return. 6
The plaintiff, although suing on a return, may contradict it,
for instance, by denying that the acts were done by his special
direction. 7
When the return is adduced in evidence by one not deriving
any right or interest under it, as, for instance, when one sues
for an alleged wrongful levy, it is a mere admission, and only
prima facie evidence against the officer. 8 When adduced in
evidence by the officer himself in his own defense, whether in a
direct action for a false return, or in an action for breach of duty,
it is not conclusive in his favor. 9 And it is evidence in his favor
only of such official acts as he is by it required to perform, and
not of matters stated as an excuse for their non-performance. 10
The return which is conclusive against the officer is not simply
his indorsement upon the process, but it is the actual placing of
it in the office from which it is issued. Until then he may change
the indorsement, and afterwards only by permission of the court. 11
A return or indorsement made by him is, though not filed, com-
petent against him as an admission, and, if made in pursuance of
his duty, is competent in his favor, w even though made after suit
is brought. 13
16. Public action for refusing to serveJ] In a prosecution on
behalf of the public, for refusing to accept office, or to continue
its exercise, the best evidence of appointment must be pro-
I As, for instance, the plaintiff, in an action against a sheriff for a false return ; or
an action for not paying over. Sheldon v. Payne (above) ; Armstrong v. Garrow, 6
Cow. 465.
8 Freeman on Ex. 364, n. 3.
8 Sheldon v. Payne (above).
4 Hopkius v. Chandler, 17 N. J. L. (2 Harr.) 299.
6 Id.
6 Evans v. Davis, 3 B. Monr. (Ky.) 346 ; Freem. on J. 366.
7 Townsend v. Olin, 5 Wend. 2()7.
8 Baker v. McDuffie, 23 Wend. 291 ( NELSON, Ch.J.); Boynton v. Willard, 10 Pick.
166. This distinction rests on sound principles and the highest N. Y. authority. It
is not noticed by Wharton, who gives conflicting rules (2 Whart. Ev. 833a, 837.
1155) ; nor by Freeman on Ex. 366, who regards the officer as always concluded.
See al->o Bullis v. Montgomery, 50 N. Y. 352, rev'g in part, 3 Lans. 255.
9 Whitehead v. Keyes, 3'Allen, 495, s.c. 1 Am. L. Reg. N. S. 471, and note by
Redfield.
10 Browning v. Hanford, 5 Den. 586, rev'g 7 Hill, 120 ; and see Splahn v. Gillespie,
48 Ind. 397, affi'g 1 Wils. 228. Contra, Freeman on Ex. 366.
II Nelson v. Cook, 19 111. 440,455; and see Barker v. Binninger, 14 N. Y. 270.
But once made, it may relate back to tho return day. Armstrong v. Garrow, 6 Cow.
465.
12 Glover v. Whittenhall, 2 Den. 633.
13 Bechstein v. Sammis, 10 Hun, 585.
ACTION'S BY AND AGAINST PUBLIC OFFICERS. 201
duced ; l and it is not enough to prove that defendant was an
officer de facto?
17. Pleading by officer defendant^ By the New York stat-
ute, 8 in every action against a public officer for his official acts,
though not in actions for nonfeasance, 4 the defendant may give
special matter in evidence, under the general issue, without no-
tice. When he pleads his justification, however, he must do so
strictly. 5
18. Defendant's proof of official character in justification.
If defendant, justifying as an officer, produces the record of his
appointment by an authority having apparent jurisdiction, this
is conclusive ; 6 and if there be no writing and none required by
law, parol evidence is competent to prove the appointment. 7
But he need not prove that the appointing power was de jure. 9
Whether evidence that he himself was an officer de facto is
enough, is disputed. 9
19. Process as a protection to defendant.'] Where the per-
son against whom, or whose property, process, 10 or a warrant," or
order, 12 has been issued by any tribunal or official body having
jurisdiction of the subject, sues the officer for executing it, 18 the
process, if fair on its face, 14 is a protection, and it is not necessary
1 Per SAVAGE, Ch. J., Dean v. Gridley, 10 Wend. 254.
8 Bentley v. Phelps, 27 Barb. 624. s. P. Green v. Burke, 23 Wend. 490.
2 R. S. 353, 15.
4 Fairchild v. Case, 24 Wend. 380 ; Persons v. Parker, 3 Barb. 249.
8 Lawton v. Erwin, 9 Wend. 233; Dennis v. Snell, 54 Barb. 441. So far as the
latter case holds that new matter proved, though not pleaded, to avoid new matter in
the answer, cannot be met by new matter not iu the answer, it is perhaps of doubtful
Bound ness.
' Wood v. Peake, 8 Johns. 69 ; State ex rel. Leonard v. Sweet, 27 La. Ann. 541.
7 Hoke v. Field, 10 Bush (Ky.) 144.
8 Stevens v. Newcomb, 4 Den. 437.
Three rules are asserted on this point : 1. That he must aver and prove that he
was legally an officer, duly elected or appointed and qualified to act (Conover v.
Devlin, 15 How. Pr. 478, and cases cited). 2. That he must at least show color of
election or appointment from competent authority (State v. Carroll, 38 Conn. 449, s. o.
9 Am. 11. 409); and that this is prima facie sufficient for the protection of an officer
defacto( Willis v. Sproule, 13 Kan. 257). 3. That he may prima facie establish his
official character by proof of general reputation, and that he acted as such officer (!'
Dill. M. C. 295, note, and cases cited; Colton v. Beardsley, 88 Barb. 29) in other
matters besides those in question (Hutchings v. Van Bokkelen, 34 Me. 126).
w Savacool v. Boughton, 5 Wend. 170, 180; Parker v. Waldrod, 16 Id. 514.
11 Chjgaray v. Jenkins, B N. Y. 376, 880.
lf Erskine v. Hohnback, 14 Wall. 613. If the proceedings and order of a board of
public officers, such as a board of health, are relied on as a justification in an act
which, if without such justification, is a serious wrong, strict proof of the proceedings
may be required. Meeker v. Van Kensselaer, 15 Wend. 397. Compare Chap. Ill,
paragraphs 66-65.
12 The rule is the same as against voluntary assignees, who become such after a
levy- Heath v. Westervelt, 2 Sandf. 110.
' 4 What is requisite to make it fair on its face within the rule, see, as to direction,
Russell v. Ilubbard, 6 B;irb. 654; name of party, Farnham v. Hildreth, 32 Id. 277,
281; 1 Abb. New Caa. 309; alterations, Wattles v. Marsh, 5 Cow. 176; amendable
202 ACTIONS BY AND AGAINST PUBLIC OFFICERS.
to give other evidence of jurisdiction of the person than the pro-
duction of the process or order. 1 If process or a warrant signed
by public officers, and produced as a justification, lack their offi-
cial additions, parol evidence is competent to show that they
actually held the offices by virtue of which they acted. And
where jurisdiction may be impeached, it will usually be enough,
for the purpose of protecting the officer, to show that the juris-
diction al facts were duly alleged in the application, 2 unless the
officer was the applicant ; 8 and that the process was issued by a
person de facto, and with color of title, a magistrate such as has
jurisdiction. 4 The process, even though it may not justify the
taking, may be admissible in mitigation, to justify the entry for
the purpose of taking. 5 'Where the act is sought to be justified
by instructions from the head of an executive department, the
court may presume in the officer's favor that the proper direc-
tion was given by the chief executive. If the officer is sued for
an act of subordinates, performance of which the facts show
it to have been his duty to direct, the court may presume in his
favor that the necessary request was duly given/
Where a third person sues the officer for enforcing against
him process, or a warrant or order against another, the officer
must produce the judgment, or other foundation of the process. 7
The process itself, and the record of the judgment or decree, if
any, on which it was issued, are primary evidence ; and unless
a foundation for secondary evidence is laid, they cannot be proved
by testimony to their contents, 8 nor to an admission of their exist-
ence by the adverse party. 9
defects, seal, etc., Dominick v. Backer, 3 Barb. 17; completeness, Prell v. McDonald.
7 Kans. 426; process functus officio, State v. Queen, 66 N. C. 615.
1 Unless, perhaps, where he "was the actor in promoting the illegal proceedings
Leachman v. Dougherty, 81 111. 324. As to necessity of return, see 2 1'hil. Ev. bj
Edw. 366 ; Sheldon v. Van Buskirk, 2 N. Y. 473, 476 ; but it is, it seems, unnecessary
Id. ; signature essential, Barhydt v. Valk, 12 Wend. 143.
* Whitney v. Shufeldt, 1 Den. 592.
3 An officer justifying under a summary proceeding in his favor, taken by an in
ferior magistrate who was only authorized to act on complaint of a particular officer,
must show that he was such officer. And plaintiff may prove that he was not
Walker v. Moseley, 6 Den. 102.
4 Weeks v. Ellis, 2 Barb. 320; Wilcox v. Smith, B Wend. 283.
'Parker v. Waldrod, 16 Wend. 514; Paine v. Fair, 118 Mass. 74; Wilcox v
Jackson, 13 Pet. 498.
8 Rankin v. Hoyt, 4 How. U. S. 327, 335.
7 Parker v. Waldrod, 16 Wend. 614; Jansen v. Acker, 23 Id. 480. And if he
seizes under an attachment, he must show the attachment regularly issued. Noble
v. Holmes, 5 Hill, 194.
8 Stebbins v. Cooper, 4 Den 191.
Per THOMPSON, J., Jenner v. Joliffe, 6 Johns. 9.
CHAPTEE IX.
ACTIONS BY, AGAINST, OB BETWEEN PARTNERS.
L ACTIONS BY PARTNERS.
1. Allegation of partnership.
2 Proof of partnership.
8, Parol evidence to vary the contract
sued on.
4, Firm books as evidence in favor of
the firm.
6. Declarations.
6. Defendant's evidence.
7. Matter in abatement.
II. AtOTONS AGAINST PARTNERS.
8. Allegation of partnership.
9. Proof of partnership.
10. Best and secondary evidence.
1 1. Indirect evidence of partnership.
12. Holding out to the public.
13. Representations to particular cred-
itor.
14. Admissions and declarations to
prove partnership.
15. Hearsay.
16. Ownership.
17. Dormant and secret partners.
18. Community of profits ; the common
law rule.
19. the English rule.
20. Evidence, in respect to date.
21. Assumption of debts by incoming
partner.
22. Variance as to the number of part-
ners.
23. Presumption of partner's authority.
24. Evidence as to the scope of the busi-
ness, <fec.
25. Evidence of express authority.
26. Question to whom credit was given.
27. Parol evidence to charge firm on
individual signature.
28. on deed.
29. Evidence of ratification.
II. ACTIONS AGAINST PARTNERS continued.
80. Evidence of deceit or fraud.
81. Evidence of other torts.
32. Admissions and declarations of a
partner.
33. Acts, admissions, <fec., after disso-
lution.
34. Notice.
85. Defendant's evidence to disprove
partnership.
36. Proof of a limited partnership.
87. Matter in abatement.
38. Evidence of known want of author-
ity.
39. Transactions in the interest of one
partner.
40. Burden of proving dissolution and
notice.
41. Mode of proving dissolution.
42. notice.
III. RULES PECULIAR TO SURVIVING PART-
NERS.
43. Actions by survivor.
44. Actions against survivor.
45. Actions against representatives of
deceased partner.
rV. ACTIONS BETWEEN PARTNERS.
46. Allegation and burden of proof of
partnership.
47. Proof of partnership.
48. Order of proof.
49. Evidence of firm and individual
transactions.
50. Title to real property.
51. Evidence to charge member with
assets.
52. Evidence to credit member with
payment of share.
53. Partnership books, <fec., as evidence.
64. Evidence of voluntary settlement.
I. ACTIONS BY PARTNERS.
1. Allegation of partnership.] An allegation of partnership
between plaintiffs is unnecessary in their complaint, unless their
right of action depends on the partnership. When a joint owner-
ship or joint contract will enable them to recover, it is no objec-
[203]
204: ACTIONS BY PARTNERS.
tion to the complaint that the partnership is not pleaded. 1 If
plaintiffs allege their partnership, it is well to be prepared to prove
it, 3 unless admitted ; and a general denial is not an admission, but
puts the allegation in issue.*
2. Proof of partnership^ Partners in a general partnership,
suing as such, may prove their partnership by the testimony of a
partner, 4 or by that of a witness who has done business with
them, 5 or for them, as a clerk, for instance ; 6 and a witness who
knows that they have done business as such, at the time in ques-
tion, or other times reasonably proximate, 7 may testify directly
to the fact that they were partners, subject, of course, to cross-
examination as to the details. 8 If he cannot testify that they
were partners, he should not be allowed to state his opinion.
The facts being brought out, the question of partnership or no
partnership between plaintiffs is one of law for the court." Evi-
dence that the plaintiffs represented themselves to be partners,
as, for instance, where one introduced the other to witness as his
partner, is competent, for partnership may be proved, even in
lavor of the partners, by the acts and declarations of all, 10 but the
declarations of one partner, or the testimony of a witness whose
only information is by such declaration or hearsay, is not alone
enough. Plaintiffs have the means of proving their own part-
nership ; and, where the fact is material, may be held to strict
Eroof. If a written contract sued on runs to the plaintiffs in a
rm style, its production is sufficient prima facie evidence of the
existence of a partnership, as against defendants who have signed
or indorsed it, 155 but unless it is admitted that the plaintiffs com-
posed the firm, they must give some evidence of the fact beside
that afforded by the correspondence of surnames and their pro-
duction of the instrument sued on. 18 Articles of copartnership,
even if shown to exist, need not be produced, unless some ques-
tion is made as to their contents or scope.
3. Parol evidence to vary the contract sued on.~\ Where part-
1 Loper v. Welch, 3 Duer, 644.
8 Cooper v. Coates, 21 Wall. 105; Millerd v. Thorn, 56 N. Y. 404.
8 Fetz v. Clark, 7 Minn. 217. The fact of partnership, though it may not be ma-
terial in the sense of being essential to a recovery (Oecbs v. Cook, 3 Duer, 161), may
be material to a set off, <fec., and as laying a foundation for admitting evidence of the
acts ami declarations of one plaintiff for or against both.
4 See Gates v. Manny, 14 Minn. 21.
8 Gilbert v. Whidden, 20 Me. 368.
8 McGregor v. Cleveland, 6 Wend. 475.
7 See Gilbert v. Whidden (nbove).
8 Grew v. Walker, 17 Ala. 824.
9 Id. As to proving partnership under foreign law, see Barrows v. Downs, 9 R. L
446, s. c. 11 Am. R. 283 ; and pp. 22, 23. and 86 of this vol.
10 Gilbert v. Whidden, 20 Me. 368. Contra, Lockridge v. Wilson, 7 Mo. 560.
11 McGregor v. Cleveland (above).
12 Griener v. Ulerey, 20 Iowa, 266.
13 McGregor v. Cleveland, 6 Wend. 475 ; Barnes v. Elmbinger, 1 Wise. 56.
ACTIONS BY PARTNERS. 205
ners sue on a simple contract made with a member of the firm in
his own name, they may show by parol that the contract was
made by him for the firm. 1 The fact that it was made in his
name throws on them the burden of doing so. Evidence that
the consideration proceeded from the firm assets, is not alone
enough. 3 A sealed instrument cannot be thus varied by parol ;
even a partner who became such subsequent to the contract, can-
not sue thereon, 3 unless upon evidence that he has been recog-
nized as a joint contractor by the. other party. 4 But if the sealed
contract is made in the name of the firm or all the partners, evi-
dence that the one who signed and sealed had authority from the
others to do so, need not be proved for the purpose of sustaining
their action. 5
4. firm looks as evidence in favor of the firm.'] Where the
books of a party are competent in his own favor, 8 the books of a
firm are equally so in their favor, upon the same conditions,
but in those States where the suppletory oath of the party is
requisite, the partner who made the entries must be called for
the purpose, unless he is dead or has gone beyond jurisdiction. 7
5. Declarations. .] Evidence of the declarations of the part-
ners is not competent in favor of the firm, except to establish the
fact of partnership, or under the rule of res gestce, or on other
grounds of competency common to the declarations of other
classes of parties. 8
6. Defendant's evidence.'] Plaintiffs' allegation that they
were partners is conclusive on them so far as to render evidence
of the admissions and declarations of either of them, made
while he sustained that relation, 9 competent against all, and
under this rule, the declaration of one, that the cause of action
was exclusively his own, is competent against the others. 10 An
entry in partnership books is not, even against a member, conclu-
sive evidence that the transaction was a firm transaction. 11
7. Matter in abatement.'] An allegation of the non-joinder
of copartners as plaintiffs is sustained by proof that some of those
1 Cooke v. Seely, 2 Exch. 745; 8. P. Coleman v. First Nat. Bk. 53 N. Y. 388, 391.
1 See Townsend v. Hubbard, 4 Hill, 351 ; Briggs v. Partridge, 64 N. Y. 362.
8 Duff v. Gardner, 7 Lans. 165.
4 Compare Cramer v. Metz, 67 N. Y. 659.
8 Gates v. Graham, 12 Wend. 68.
6 Vosburgh v. Thayer, 12 Johns, 461 ; Tomlinson v. Borst, 30 Barb. 42 ; Stroud
V. Tilton, 4 Abb. Ct. App. Dec. 324 ; 2 Phil. Ev. 370, note 108.
I New Haven Co. v. Goodwin, 42 Conn. 230.
8 Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475.
* A statement by one, who became partner after the cause of action arose, is not
evidence against hia copartner who sues on it. Tunley v. Evans, 2 D. <fe L. 747 ;
Rose. N. P. 75.
10 Lucas v. De la Cour, 1 M. fe S. 249 ; especially if part of the res gestce. Atlierton
v. Tilton, 44 N. H. 452, 458. As to the effect of such evidence, see p. 186 of this
Vol. note 2.
II Langton v. Hughes, 107 Mass. 272. Compare Farncr v. Turner, 1 Iowa, 58.
206 ACTIONS AGAINST PARTNERS.
alleged were copartners ; and the failure to prove that others were
is matter of variance, to be disregarded unless defendant is prej-
udiced. 1 Under the new procedure, a dormant partner, although
one of the real parties in interest, should not be held a necessary
co-plaintiff; 2 and evidence showing that the partners who sue
are " trustees of an express trust " for him, within the statute, 3
clearly dispenses with the necessity of joining him. So also
would evidence that the contract was taken in the name of a
part of the firm by assent of the others. 4 Neither evidence that
a third person employed by plaintiffs has an interest in the profits
and therefore in the recovery, 5 nor the fact that he was a nom-
inal partner, under a stipulation that he was to have no interest,
but to receive wages or a salary only, 6 is enough to prove him a
partner. 7 If the existence of a partner who is not joined, does
not appear in the complaint nor in the answer, evidence of the
fact is not ground for dismissing the complaint. 8
II. ACTIONS AGAINST PARTNEKS.
8. Allegation of partnership.] If it is substantially alleged
in the complaint that the defendants contracted as partners, the
fact of partnership will be "put in issue by a general denial, 9
though not by a denial of the contract alleged. 10 Under a gen-
eral allegation of partnership, plaintiff may prove a supposed
special partnership under the statute, and the violations of the
statute relied on as rendering the defendant liable as general
partner. 11 Where a joint liability appears on the face of the con-
tract, a partnership need neither be afleged nor proved ; n and the
chief effect of alleging and proving it, is to open the way for
admitting more freely the acts and declarations of one partner
against the others. 13
9. Proof of partnership!} Plaintiffs may prove defendant's
partnership in the same way in which, as above stated, plaintiffs
I Fee Fowler r. Atlantic Mut. Ins. Co. 8 Bosw. 332, 344. Compare paragraph 37.
8 This was the common law rule, but the contrary was held in. Secor v. Keller, 4
Dner, 419. The soundness of this case is doubtful under the Code, as amended in 1 861.
See MoaVs Van Sant. PI. 90, 118. The better opinion is that the partnership relation
is itself sufficient evidence of a trust. See also Chew v. Brumagem, la Wall 497.
8 N. Y. Code Civ. Pro. 459.
4 Mynderse v. Snook, 1 Lans. 488.
8 Lewis v. Greider, 51 N. Y. 231, affi'g 49 Barb. 606.
Beudel v. Hettrick, 85 Super. Ct. (3 J. <fc S.) 405.
7 Compare paragraphs 11 to 19. See Law v. Cross, 1 Black, 637. Declarations
of the omitted one are not competent to prove the partnership. McFadyen v. Har-
rington, 67 N. C. 29.
8 Dickinson v. Vanderpoel, 2 Hun, 626.
* See paragraph 1 .
10 Anable v. Conklin, 25 N. Y. 470, affi'g 16 Abb. Pr. Z86. Compare Oechs v.
Cook, 3Duer, 161.
II Stone v. De Puga, 4 Sandf. 681. See paragraph 36.
15 Kendall v. Freeman, 2 McLeau, 189.
18 See paragraphs 23, 32, 62.
ACTIONS AGAINST PARTNERS. 207
may prove themselves to be partners. 1 The existence of a firm
may be inferred from the agreement of dissolution ; but even a
formal notice of dissolution signed by all the members, and pub-
lished, stating a dissolution on a day named, is not conclusive
evidence against them that the firm continued until that day. 3
The names of the members must be proved ; but slight evidence
is enough to go to the jury. 3 If the witness cannot recollect the
names, a list of names may be read to him, and he may be asked
whether those persons are members. 4 As the adverse party has
not the same means of knowledge, he is not to be held to make
so strict proof of the partnership as if proving his own. 5
10. Best and secondary evidence."] If the question involves
the construction of written articles of agreement, they should be
called for as a foundation for secondary evidence. 6 The proper
certificates of acknowledgment or proof under the statute, render
the instrument competent, without other proof of execution. 7
And the whole of the agreement must be taken together. 8 But
even though the articles do not establish a partnership, it may be
established by parol evidence. 9 Parol evidence is competent,
even for the purpose of proving a partnership in transactions in
real property. 10 And where written articles are proved, the prior
existence of the relation may still be proved by parol. 11
11. Indirect evidence of partnership.] A partnership may be
shown by the separate admissions, acts, declarations or conduct
of the parties, or by the act of one, the declaration of another,
and the acknowledgment or consent of a third ; 12 and it matters
not which declaration is offered first. 13 But it can never be
proved in this way alone, unless the evidence fixes such a conces-
sion on each or all of those charged. The concession of one is evi-
dence against himself, but not against another, unless shown to
1 Paragraph 2. Widdefield v. Widdefield, 2 Binn. (Penn.) 245 ; s. p. 37 Penn. St.
92, and cases cited.
8 Emerson v. Parsons, 46 N. Y. 660, affi'g 2 Sweeny, 447.
8 Varnum v. Campbell, 1 McLean, 313.
4 Acerro v. Petroni, 1 Stark. 100.
6 See McGregor v. Cleveland, 5 Wend. 475. Thus, if plaintiff proves that de-
fendants were partners, and proves a contract made by one member signed with his
own name and the addition " <fe Co.," this is enough to go to the jury without prov-
ing that defendants did business under that name. Drake v. Whittaker, 1 CaL 184,
KENT, J.
8 Price v. Hunt, 69 Mo. 258. As to subpoena duces tecum, and notice to produce,
see McPherson v. Rathbone, 7 Wend. 216.
7 Mattison v. Demarest, 4 Robt. 161 ; and see page 6 of this vol. paragraph 11.
8 Manhattan Brass Manufacturing Co. v. Sears, 1 Sweeny, 426.
9 McStea v. Matthews, 60 N. Y. 167.
10 Chester v. Dickinson, 54 N. Y. 1, 8, affi'g 62 Barb. 349.
11 Id.
11 Barcroft v. Haworth, 29 Iowa, 4G2.
Edwards v. Tracy, 62 Pa. St. 874.
208 ACTIONS AGAINST PARTNERS.
have been authorized or ratified by that other. 1 To admit such
evidence generally, as if competent against all, where there is no
other eviaence against the others, is error. 3
12. Holding out to the public."] Without other evidence of a
partnership in fact as between the defendants, liability of a defend-
ant as if a copartner is established by evidence that he held him-
self out, or suffered himself to be held out to the world as a
partner ; 8 and for this purpose it is not necessary, at least in the
first instance, to prove a representation to the plaintiff. 4 Where
it is proved that they advertised that they were partners, it may
be presumed that the plaintiff's subsequent dealings were on the
faith of the partnership. 5 A nominal partner, held out as such,
is liable though having no interest, and receiving only wages, 6 or
a mere compensation for the use of his name. 7 13ut if it appear
that plaintiff was ignorant of the representations, or did not deal
on the faith of them, they are not conclusive, 8 and may be re-
butted by evidence that there was no partnership whatever,
active, nominal or constructive. 9
1 See notes to paragraph 14, and also Chapter VII. Whether evidence of an ad-
mission of his own liability by one, coupled with evidence of an admission of liabil-
ity as a partner by the other, is enough, compare Mitchell v. Roulstone, 2 Hall, 351 ;
and Brahe v. Kimball, 5 Sandf. 237.
s Whitney v. Ferris, 10 Johns. 66. The usage of other persons is not competent.
Foye v. Leighton, 22 N.H. 71.
3 If the evidence is objected to, the offer should be explicit, and not susceptible
of being understood as an offer to prove general repute. Bowen v. Rutherford, 60
I1L 41, s. c. 14 Am. R. 25.
4 For this purpose, evidence is competent that the defendant dealt as a
copartner of the other defendants in their transactions with third persons.
Bennett v. Holmes, 32 Ind. 108. That handbills, bearing their names as partners,
were circulated by the defendant (Walcott v. Caulfield, 3 Conn. 195); or were
so circulated that they must reasonably be presumed to have come to his notice
(Tumlin v. Goldsmith, 40 Geo. 221 ; compare McNamara v. Dratt, 33 Iowa, 885) ;
that merchandise on the premises was marked with their firm name (Penn v. Kearney,
21 La. Ann. 21) ; and that they suffered judgment by default when sued as partners
in another action. Cragin v. Carleton, 21 Me. 493 ; compare Hall v. Lanning, 91 U.
8. (1 Otto), 160. So a contract or conveyance made in the firm name, and signed by
each, though foreign to the matter in suit, is competent as an admission. Crowell v.
Western Reserve Bk. 3 Ohio St. 406, 414. So is their joint application for a license
for their business. Conklin v. Barton, 43 Barb. 435.
6 Kelly v. Scott, 49 N. Y. 595.
6 See Beudel v. Hettrick, 85 Super. Ct. (J. & S.) 411.
7 Poillon v. Secor, 61 N. Y. 456. The better opinion is that a general holding
out is enough to raise a legal presumption of partnership, irrespective of whether
the representation was brought to the dealer's notice. Poillon v. Secor, 61 N. Y.
456 ; Case of Wright, 26 Weekly R. 195, s. o. 5 Rep. 670. Some authorities hold that
plaintiff must prove that he dealt on the faith of the representation: that -mere rep-
resentations to third persons are not competent. Teller v. Patten, 20 How. U. S.
125 ; Bowen v. Rutherford, 60 111. 41, B. c. 14 Am. R. 25 ; Heffner v. Palmer, 67 111.
161 ; and that a representation made to the particular creditor is not enough to take
the case from the jury, unless made before credit given or contract made. Ridgway
v. Philip, 5 Tyrwhitt, 131. These rulings are not well considered. But on a question
of priority between individual and partnership debts, isolated statements to a stranger
are not enough. Case of Wright (above).
8 Bostwick v. Champion, 11 Wend. 582, NELSON, J.
Fitch v. Harrington, 13 Gray, 4C8, 470.
ACTIONS AGAINST PARTNERS. 209
13. Representations to particular creditor.'] Proof that de-
fendants represented or conducted themselves as partners, and
were trusted as such in the dealing in question, 1 or that the only
one whose relation is contested did so,* is conclusive ; and their
own acts and declarations, showing that they were not partners,
cannot then disprove their liability. Where such representations
are proved, evidence of similar representations, made at about the
same time to third persons, is competent in corroboration. 8 A
representation made by one will bind the others, if he was au-
thorized by them to make it ; 4 and the fact of his authority may
be proved by his own testimony.
14. Admissions and declarations to prove partner ship. ~\ As
against any one defendant, whether litigating the case, or not
appearing,* or not even served, 6 evidence of his own 7 admission,
whether made to the plaintiff, 8 or to third persons, 9 and whether
made at or after the transaction in suit, 10 or within a reasonable
time before it, 11 is competent for the purpose of proving the ex-
istence of the firm, 12 his own membership, 13 who were his copart-
ners, 14 and what was the nature and scope of the business. 15 But
such evidence is incompetent as against any other than the declar-
ant, except in connection with other prima facie evidence that
such other was a partner with the declarant, 16 or author-
1 Johnston v. "Warden, 3 Watts, 101 ; Kelly v. Scott, 49 N. Y. 601.
5 Hicks v. Cram, 17 Vt. 449; Kelly v. Scott, 48 N. Y. 601. Even though ho was
actually a special partner. Barrows v. Downs, 9 R. I. 446. Where the question is
which of two persons of the same surname was the partner, evidence that the one
joined as defendant represented himself as such to plaintiff, and that the other person
was unknown to plaintiff, is competent without anything to connect the other defend-
ant with the holding out. Hicks v. Cram, 17 Vt. 449, REDFIELD, J. A letter saying
that the writer is " interested" in a firm, and asking credit for them, is evidence to
charge the writer as a member for credit given on the faith of the letter, until notice
of dissolution. Carmichael v. Greer, 55 Geo. 116.
3 Hicks v. Cram (above).
4 Montgomery v. Bucyrus Machine Works, 92 U. S. (2 Otto), 257 ; Hinman v.
Littell, 23 Mich. 484.
5 Taylor v. Henderson, 17 Serg. <fe R. 453, 457.
8 Grafton Bank v. Moore, 14 N. H. 145, 146.
7 As to admissions made by an agent, see Campbell v. Hastings, 29 Ark, B.12;
Hoppock v. Moses, 43 How. Pr. 201.
B See paragraph 13.
9 Bennett v. Holmes, 32 Ind. 108 ; and see other illustrations in noto 4 to para-
graph 12.
10 Taylor v. Henderson, 17 Serg. & R. 453, 457.
11 Bennett v. Holmes (above); Ralph v. Harvey, 1 AdoL & E, N. S. 845, 849, 8. a
41 Eng. Com. L. 803.
18 Johnson v. Warden, 3 Watts, 101.
13 Edwards v. Tracy, 62 Pen n. St. 374; Crossgrove v. Himmelrich, 54 Id_ 203;
Fleshman v. Collier, 47 Geo. 253.
14 Taylor v. Henderson, 17 Serg. <fe R. 453, 457.
16 Smith v. Collins, 115 Mass. 388, 399.
16 Pleasunts v. Faut, 22 Wall. 120; McPherson v. Rnthbone, 7 Wend. 216 ; Robins
V. Warde, 1 1 1 Mass. 24'4 ; Donley v. Hall, 5 Bush, 549. It is not alone enough to
show that the others had previously been members with the declarant of another
firm which nvanwliilo was dissolved. Kirby v. Hewitt, 26 Barb. 607. Compare
Johnson v. Gallivan, 52 N. U. 143; Van Epsv. Dillaye* 6 Barb. 244.
14
210 ACTIONS AGAINST PARTNERS.
ized him to make the representation, 1 or was aware of it and
silent. 2
15. Hearsay.'] Neither general reputation, 8 common rumor, 4
nor the opinion or belief 5 of a witness founded on such hearsay,
is competent evidence of partnership. The question turns on
the assent of the one to be charged. 6 Hence a business directory 7
or the reports of a commercial agency, 8 are not admissible, unless
knowledge of the statement, or means of knowing it, is brought
home to the party charged.
16. Ownership.] The joint purchase or ownership of prop-
erty, 9 whether real 10 or personal, x is not alone any evidence of
partnership ; 12 though coupled with participation in profits, 13 or
evidence of agency for each other, 14 it may be equivalent.
17. Dormant and secret partner >8.~\ To charge a dormant part-
ner with the others, the knowledge or ignorance of those dealing
with the firm, that he was such, is wholly immaterial. It is
enough to prove that he was actually a partner, 15 unless the con-
tracting party had knowledge of the relation, and dealt solely on
1 Paragraph 11.
8 Bancroft v. Harworth, 29 Iowa, 462 ; and see Campbell v. Hastings, 29 Ark.
512. Strictly speaking, when there is prima facie proof of partnership as against
the others, the declaration does not really corroborate it, as against the others; but
it ceases to be error to receive it as against them. See Gardner v. Northwestern
Mfg. Co. 52 111. 367.
3 Bowen v. Rutherford, 60 EL 41, s. c. 14 Am. R. 25 ; Brown v. Crandall, 1 1
Conn. 93. Such evidence, if competent at all, is so only for two purposes: 1. In cor-
roboration of previous evidence. 2. To enow knowledge on the part of plaintiff.
Not ns direct and principal evidence. Turner v. Mcllhaney, 8 Cal. 675. Even when
admitted without objection, it is not alone enough to sustain a finding that partnership
existed. But, if admitted without objection, it may be considered in connection with
other evidence pf partnership. Halliday v. McDougall, 22 Wend. 264. It may be
competent, where the partnership is not directly in issue, but only incidentally in
question; as, for instance, when relied on as an excuse for not giving notice. Go wan
v. Jackson, 20 Johns. 176.
4 Tumlin v. Goldsmith, 40 Geo. 221.
B Hicka v. Cram, 17 Vt. 449.
* Bowen v. Rutherford (above).
7 Union Bank v. Mott, 39 Barb. 180.
8 Campbell v. Hastings, 29 Ark. 512.
' For the distinction between partnerships and other associations, see Ebbing-
housen v. Worth Club, 4 Abb. New Cas. 300, 308 note ; Raisbeck v. Oesterricher, Id.
847; Story on Partn. ch. xvi; 1 Wood's Coll. 9-48.
10 Thompson v. Bowman, 6 Wall. 316.
11 Such as a patent. Boeklen v. Hardenberg, 60 N. Y. 8, affi'g 37 Super. Ct. (J. <fe
S.) 110.
12 And mere declarations of one that they "bought it in partnership," may not be
alone enough, for he may have meant merely as tenants in common. Gregory v.
Martin, 78 111. 88.
13 Paragraph 18. Compare Davis v. Morris, 36 N. Y. 569, affi'g 35 Barb. 227;
Reynolds v. Cleveland, 4 Cow. 282.
'" Ebbinghousen v. Worth Club, 4 Abb. New Cas. 300; Phillips v. Nash, 47 Geo.
218.
15 Lea v. Guice, 13 Smedes <fe M. 656, 669.
ACTIONS AGAINST PARTNERS. 211
the credit and name of the others. 1 Generally, fraud in the pur-
pose of forming the firm, is not relevant in support of the exist-
ence of partnership, 2 but to charge a secret or dormant partner,
evidence of his declarations, even to third persons, that the part-
nership existed and was concealed, 3 is competent ; and his offers
to third persons to become a secret partner for the purpose of
concealing his property, are competent, in corroboration of other
evidence/
. 18. Community of profits ; the common law rule.'] At com-
mon law (both in courts of law and of equity) it is sufficient to
establish the liability of an alleged partner, to show that by
agreement 5 he had a right 6 in the entire net profits, 7 which enti-
tled him to a definite share, 8 as profits. This rule, still commonly
followed in our courts, though not in England, is regarded as a
conclusive presumption, in the absence of evidence showing that
he received it not as the profits of a principal, or of money, but in
some other character not involving that of partner. 9
1 Bigelow v. Elliott, 1 Cliff 28 ; Palmer v. Elliott, Id. 63.
2 Thomas v. Moore, 71 Penn. St. 193.
8 Bennett v. Holmes, 32 Ind. 108.
4 Butts v. Tiffany, 21 Pick. 95.
5 Even where the partnership was in a real estate transaction, the agreement need
not be in writing. Chester v. Dickenson, 54 N. Y. 1, affi'g 52 Barb. 349.
6 Pars, on Partn. 70. The right to an account has commonly been regarded as
a decisive circumstance ; but this is doubtful. See Bentley v. Harris, 10 R. I. 434,
8. c. 14 Am. R. 695.
7 Sharing in losses is not essential. Manhattan Brass Co. v. Sears, 45 N. Y. 797.
8 A voluntary promise to pay an indefinite share is not even competent evidence
of partnership. Pleasants v. Fant, 22 Wall. 116."
9 Leggett v. Hyde, 58 N. Y. 272, affi'g 1 Supm. Ct. (T. & C.) 18, and cases cited;
and see King v. Sarria, 69 N. Y. 35. The principle running through the well con-
efdered cases which apply this rule, is that on the one hand disavowals of the part-
nership relation in an agreement, or even the withholding of some of the usual powers
of partners, cannot negative the obligation to creditors, if any substantial elements
of the partnership relation existrin a joint adventure, for the sake of profit, as such;
yet, on the other hand, a right to draw profits by way of compensation does not
alone make a partner of one whose real relation is that of agent, servant, factor, land-
lord, annuitant, or co-tenant without agency, and the like. The court look at the real
relation resulting from the engagements of the parties, and if it does not establish
some other and subordinate tie, they give effect, in favor of creditors, to the doctrine
that he who has a right in the profits as such must bear his share of the liabilities.
And this is applied as a rule of law. It is not enough that the parties did not intend
a partnership, nor that they intended there should be none. They must have in-
tended and constituted a distinct and different relation excluding that of partnership.
See Leggett v. Hyde (above); Eastman v. Clark, 53 N. H. 276, s. c. 16 Am. R. 192;
Parker v. Canfield, 37 Conn. 250, s. c. 9 Am. R. 317 ; Connolly v. Davidson, 15 Minn.
519, s. c. 2 Am. R. 154; Owens v. Mackall, 33 Md. 382; Notes in 13 Monk's Eng.
839.
In the following cases participation in profits has been held not to prove part-
ne'rship within the foregoing rule (2 Am. L. Rev. 1, 23, 193):
I. When the participant is legally incapable of contracting generally. (Id. 7 ; but
seel Wood's Coll. 12.)
II. When his stipulations were to the effect that he should not be liable to cred-
itors, and the creditor, at the time of the dealing, knew of such stipulations.
(Aldersou v. Pope, 1 Campb. 404 a ; and see Livingston v. Roosevelt, 4 Johns. 251,
266.)
212 ACTIONS AGAINST PARTNERS.
19. the English rule.] The English rule, adopted also in
some American States, 1 is that the test of liability is not merely
whether there was a participation of profits, but whether there
was such a participation as constituted the relation of principal
and agent between the percipients and the actors in the business ; 3
and therefore participation in profits is not conclusive evidence
of partnership, but, at best, a circumstance to be considered, with
others, in determining whether the relation of the parties was
such as to create that agency between them in which partnership
consists. It is a cogent circumstance, but the inference of part-
nership arising from it is susceptible of control by other circum-
stances of the case. 3
20. Evidence in respect to Date."] To charge one as partner,
he must be shown to have been a member when the contract sued
on was made, 4 or the tort committed, 5 unless his assumption of
prior liabilities is shown. But a partnership shown once to have
existed, is presumed to continue until the contrary is shown. 6
III. When the participation is in profits derived from a contract of shipment on half
profits, as is generally practiced in this country. (Story on Partn. 72, 43, 44.
Compare Eldridge v. Troost, 3 Abb. Pr. N. S. 20, 8. c. 6 Robt. 518; Post v. Kim-
berly, 9 Johns. 470; Marsh v. N. A. Ins. Co. 3 Biss. 351.)
IV. When the profits are taken in lieu of rent (Holmes v. Old Colony R. R. Co. 5
Gray, 58 ; 3 Kent's Com. 33, 34. Compare Cusbman v. Bailey, 1 Hill, 526 ; Catskill
Bank v. Gray, 14 Barb. 471) ; or for other general benefits rendered a firm. (2 Am.
L.R. 23.)
V. When taken by seamen in lieu of wages. (Story on Partn. 69, 42.)
VI. When taken as compensation for labor or services, performed, not as prin-
cipal (Dob v. Halsey, 16 Johns. 34); but as agent, servant, factor, broker, <fcc.
(Burckle v. Eckhart, 3 N. Y. 132.)
VII. When the participants are creditors, and participate to the extent of their
claims, in the profits of a partnership carried on for their benefit, as creditors. (Brun-
dred v. Muzzy, I Dutch. N. J. 268, 279 ; and see Cox v. Hickman, 8 Ho. of L. 268 ;
9 C. B. N. S. 47, reVg 3 C. B. N. S. 523 ; 18 C. B. 617 ; and see 69 N. Y. 35.)
VIII. When the participant is an annuitant, and does not take the profits as profits,
but relies upon them merely as a fund for paying an annuity to which he is entitled
from the firm. (Story on Partn. 115, 66-70.)
IX. When he is the devisee of a deceased partner, and receives the profits derived
from funds left by the will of a deceased partner in the firm ; and he does not go into
the firm for the purpose of personally representing such funds. (Id ; 2 Am. L. R. 17 ;
Burwell v. Mandeville, 2 How. U. S. 560 ; Pitkin v. Pitkin, 7 Conn. 307.)
Whether one who has an interest in the separate share of a partner in the profits
of the firm, that is, a sub-partner, is liable to creditors, with the partners, is dis-
puted. (Neg. 1 Wood's Coll. 44, 27. Affi. Fitch v. Harrington, 13 Gray, 468.)
1 See Harvey v. Childs, 22 Am. R. 387, s. c. 28 Ohio St. 319, and cases cited.
2 Cox v. Hickman, 8 Ho. of L. Cas. 268, 306.
3 Ex parte Tennant, 37 Law Times N. S. 285. And see Holme v. Hammond, L.
R. 7 Exch. 218, 8. c. 2 Moak's Eng. R. 125 ; Mollevo v. Court of Wards, L. R. 4 P.
C. 419, s. c. 4 Moak's Eng. 121.
4 Fuller v. Rowe, 57 N. Y. 23, rev'g 59 Barb. 344. Proof of a stipulation that, as
between the partners, the partnership shall be deemed to have commenced at a date
prior to its actual commencement, will not alone charge them in favor of creditors.
2 Wood's Coll. 1113, n. ; unless sufficient to show assumption of intermediate liabil-
ities. Hengst's App. 24 Penn. St. 413.
5 Chester v. Dickinson, 54 N. Y. 1, affi'g 52 Barb. 349.
6 Walrod v. Ball, 9 Barb. 271 ; Cooper v. Dedrick, 22 Barb. 516 ; s. P. Wilkina v.
Earle, 44 N. Y. 172; Fassin v. Hubbard, 55 Id. 465.
ACTIONS AGAINST PARTNERS. 213
Hence evidence of its existence within a reasonable time prior to
the date of the transaction in suit, is competent ; : and in connec-
tion with such evidence, or any evidence tending to show a
partnership at the time of the transaction, evidence of its exist-
ence within a reasonable period afterward is admissible. 2 The
date in the articles is not sufficient evidence of the date of execu-
tion, 3 except as against a party to the articles. The creditor may
prove the commencement of the partnership from the commence-
ment of the agency or holding out, though that be before the
commencement of the contemplated business of the concern, 4 and
before the performance of conditions precedent in the articles, 5
or even before the date or execution ol the articles.
21. Assumption of debts l)y incoming partner. ,] In the ab-
sence of anything to indicate that an incoming partner assumed
liability for outstanding debts, the presumption of law is that he
did not. 6 But an agreement on his part to do so may be proved,
either by his express contract, or by inference from its terms, or
from the treatment of such debts, by the new firm, to the knowl-
edge of the incoming partner, as the debts of the new firm. 7 If
the new firm takes the assets and continues the business in the
same place, slight evidence is sufficient to warrant the evidence
that it has assumed the liabilities of the old firm. 8
22. Variance as to number of partners^ At common law,
under a declaration alleging a contract bv one person, if he inter
posed no plea in abatement, plaintiff might prove a contract by
a firm of which defendant was a member ; 9 and under the new
procedure, a recovery against one or several may be had under
the same circumstances. So, on the other hand, when several
are alleged to be partners, and the evidence shows that only a
part of them constituted the firm, plaintiff may recover against
those who are found liable, and be non-suited as to the others ; 10
whether the others were served or not. 11 So he may recover
1 Burnett v. Holmes, 32 Ind. 108.
8 Fleahman v. Collier, 47 Geo. 253.
8 Philpot v. Gruninger, 14 Wall. 670.
4 Aspinwall v. Williams, 1 Ohio, 84, 94.
Burns v. Rowland, 40 Barb. 368.
* Story on Partn. 273, 152; 274, 153.
7 Updike v. Doyle, 7 R. I. 446, 463.
8 Shaw v. McGregory, 105 Mass. 96 ; Exp. Peele, 6 Ves. 604.
* Barry v. Foyles, 1 Pet. 811; Smith v. Cooke, 31 Md. 174. As to variance in
the case of limited partnership, where the sign required by the statute was not dis-
played, see the statute N. Y. L. 1862, p. 880, c. 476, 1, am'd'g 1 R. S. 765, 13;
2 N. Y. L. 1866, p. 1424, c. 661.
10 Fielden v. Lahens, 2 Abb. Ct. App. Dec. Ill, s. c. 6 Abb. Pr. N. S. 341, reVg 9
Bosw. 43(5; Snelling v. Howard, 51 N. Y. 373, affi'g 7 Robt. 400; and see p. 186 of
this vol. n. 2.
11 Pruyn v. Black. 21 N. Y. 800; McKensie v. Farrell. 4 Bosw. 192. Contra,
Smith v. Halett, 65 III 495.
214: t ACTIONS AGAINST PARTNERS.
against one only, on evidence that there was no firm, but that
such one was solely liable. 1
23. Presumption of partner's authority.'] Under an allegation
that the partners did an act, evidence that one of them did it on
their behalf is admissible. 2 If the act was within the scope of
their business, or properly incidental to an act within the scope
of their business, 8 and done in the firm name, and not requiring
a seal, the existence of the partnership is sufficient evidence of
authority, 4 and in favor of one who gave credit, is conclusive, in
the absence of evidence of notice of actual lack of authority. 5 If
the act be not of such character, there must be evidence, either
direct or circumstantial, 6 tending to show authority or ratifica-
tion. 7 Evidence that the partner, exercising a power not implied
in the nature of the partnership, was the general manager, is not
enough. If the authority sufficiently appear, either presumptive-
ly or by direct evidence, it is not necessary to show that the part-
nership had the benefit of the consideration.
24. Evidence as to the scope of the business, &c.~] To prove
the scope of the business and the manner of transacting it, for the
purpose of establishing the authority of a partner to bind the
others, the creditor need not produce or call for the articles, un-
less restrictions in them are shown to have been known to him.
Evidence of the previous dealings, the acts of the partners, and
the length of time such a course of business has continued, <fec., 8
and of the common and usual dealings of persons engaged in the
same trade or business at the same locality,^ is competent.
25. Evidence of express authority.'] The admission or declar-
ation of one partner as to authority, or the scope of business from
which it is implied, is competent as against him, 10 but the partner-
ship relation does not authorize him to exaggerate its scope, as
against the others, by his declarations, and therefore such declar-
ations are not competent for this purpose as against the others, 11
even if made as part of the res gestce of the act in question, 12 un-
1 Stimson v. Van Pelt, 66 Barb.- 151 ; Angel v. Cook, 2 Supm. Ct (T. <fe C.) 175,
177.
5 See King v. Fitch, 2 Abb. Ct. App. Dec. 508 ; Walton v. Dodson, 3 Carr. <fe P.
162.
3 As, for instance, directing the levy of an execution when collecting a debt due
the firm. Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341, affi'g 41 Barb. 200.
4 Smith v. Collins, 115 Mass. 388, 399.
6 Edwards v. Tracy, 62 Penn. 374; Hoskinson y. Elliot, Id. 393.
6 Butler v. Stocking, 8 N. Y. 408.
7 See paragraphs 28 and 29.
8 Clayton v. Hardy, 27 Mo. 636.
9 Smith v. Collins, 1 15 Mass. 888, 399. The usage must be that of the particular
trade or business. Story on Partn. 202, 113.
10 Smith v. Collins, 115 Mass. 388, 399.
11 1 Wood's Coll. 736, 459.
14 Elliott v. Dudley, 19 Barb. 326.
ACTIONS AGAINST PARTNERS. 215
less shown to have been authorized or permitted by such others,
or to have been so open or continued that permission may be in-
ferred.
26. Question to whom credit was given.'] The partnership
having been proved, and the act not being beyond its scope, the
declaration of any partner made at the time of the transaction, 1
or at any time during the continuance of the partnership rela-
tion, 2 is competent to show that the act was done on behalf of the
partnership ; and if the credit was obtained on the faith of such
declaration, the falsity of the representation is not material. 3 To
prove that the transaction was for partnership purposes, it is
prima facie enough to show that it was in the firm name, 4 except
where the name used by the firm was merely that of an individ-
ual partner. Evidence that the partner acting in the matter,
signed the contract, self " & Co.," or self " and partners," is prima
facie sufficient proof of the firm name, and throws on defendants
the burden of showing that they had adopted a different name. 5
If they had not adopted a different name, such a signature will
bind tne firm, though they never received the proceeds. 6 If the
partners had not, either by agreement or usage, adopted a com-
posite name, the fact that they did business in the individual
name of one partner, may be shown by evidence of their usage, 7
especially where their agreement charged him with the sole man-
agement of the business, 8 or of that part of it in which the trans-
action was had. 9 But even though their adoption of the individual
name be shown, one seeking to charge the co-partners on a trans-
action in that name must give further evidence that the transac-
tion was had in the business of the partnership, or upon its
credit ; 10 otherwise it will be presumed to have been an individual
transaction. 11 Evidence that it was actually on their credit, is
alone enough, 12 and, on the other hand, evidence that it was
actually in their business, if the dealer did not expressly restrict
himself to the individual credit, is alone enough, even though he
was ignorant of the other partners, and of the partnership object. 13
1 OHphant v. Mathews, 16 Barb. 608.
* Smitha v. Cureton, 31 Ala. 653; conira, 1 Wood's Coll. 645, n. 3.
8 Stockwell v. Dillingham, 50 Me. 442 ; U S. Bank v. Binney, 5 Mas. 1Y6, 184.
4 Wood's Coll. 678, n.
8 Drake v. Elwyn, 1 Cai. 184, s. c. less fully, 3 Johns. Cas. 694.
6 Aspinwall v. Williams, 1 Ohio, 84 ; Austin v. Williams, 2 Id. 61.
1 Ontario Bank v. Hennessy, 48 N. Y. 545. In such case even the occasional
drawing of a bill, <fcc., by one member in his own name, for partnership purposes,
is competent to go to the jury as evidence of trading under that name, but does not
alone raise a presumption of law. Le Roy v. Bayard. 2 Pet. 200.
8 Id. Id.
See Wright v. Ames, 4 Abb. Ct App. Dec. 644.
10 Story on Partn. 192, 106; 199, 106.
11 OHphant v. Mathews, 16 Barb. 608.
" Story on Partn. 253, 1:59.
18 Story on Partn. 253, 139. Especially if the avails were applied to the firm
use. Ontario Bank r. Hennessy (above). Compare Story on Partu. 250, 136.
'216 ACTIONS AGAINST PARTNERS.
Where a partner carries on the firm business in his sole name,
and also carries on a different kind of business of his own, in the
same name, the fact that the dealer knew the transaction was in
aid of the one kind of business or the other, will, in the absence
of other evidence, determine the question ; x and neither the fact
that he was ignorant of the partnership, nor that the considera-
tion was never actually applied in aid of its business, is then ma-
terial. 8 The creditor's entry in his own book, charging exclu-
sively an individual member 3 or the firm, is not conclusive against
him when he seeks to hold the firm or the individual alone liable,
but may be explained by evidence of his intent.
27. Parol evidence to charge firm on individual signature."]
Where a written contract not under seal, is made, not in the firm
name, but in the name of an individual partner, parol evidence is
competent to show that the transaction was in reality for firm
account. 4
28. of sealed instrument.] The general implied power of
a partner does not extend to binding tne firm by executory in-
struments under seal ; 5 and a sealed instrument 8 executed in the
name of a firm by one of its members, without the proper au-
thority, where a seal is necessary, is the deed of such member
only, and he alone, is bound by it. 7 If the seal is unnecessary
from the nature of the instrument, the act will bind the firm as
a simple contract, 8 although it sets forth that the firm have set
their nands and seals, and is signed on behalf of the firm, by one
member with hia seal. The seal may be rejected as surplusage.
Hence a sealed note is competent in evidence of the precedent
debt acknowledged thereby.* To render the deed of the firm,
executed by one partner, valid as a deed by the firm, it is enough
to show a prior authority or a subsequent ratification by the other
partners, either in writing or by parol, eitherexpress or implied. 10
Proof that the "firm actually received the consideration, is enough. 11
1 Story on Partn. 253, 139.
* Id. ; 5 Pet. 529.
8 Story on Partn 260, 144; Smith v. Cooke, 81 Md. 174.
4 Per COWEN, J., Lawrence v. Taylor, 5 Hill, 113 ; Brown v. Lawrence, 5 Conn. 899.
6 Schmertz v. Schreeve, 62 Perm. St. 467, a. c. 1 Am. R. 439, and cases cited,
SHARSWOOD, J.
6 Other than a release.
T Gibson v. Warden, 14 Wall 247.
8 As, for instance, in the case of a chattel mortgage. Gibson v. Warden (above),
or a contract of sale of goods under seal. Schmertz Y. ShreeVe, 62 Penn. St. 457.
This rule cannot avail to sustain an action on a formal bond executed by a part-
ner, without authority or ratification. Russell v. Annable, 109 Mass. 72; s. c. 12
Am. R. 665. As to a lease, compare Mason v. Breslin, 9 Abb. Pr. N. S. 427 ; s. o.
40 How. Pr. 436, 2 Sweeny, 886.
9 Hoskinson v. Eliot, 62 Penn. St. 893.
10 Story on Partn. 214. 122 ; Gibson v. Warden (above). In an action for rent,
on a sealed lease, one of the lessees who entered under the lease, is estopped to show
that his copartner was not authorized to sign his name to it. Holbrook v. Cham*
berlin, 116 Mass. 155 ; s. c. 17 Am. R. 146.
11 Daniel v. Toney, 2 Mete. (Ky.) 524.
ACTIONS AGAINST PARTNERS. 217
A deed running to the firm name, even though conveying
land, may be explained by parol evidence of who composed the
firm. 1
29. Evidence of ratification, ,] To make an act, done by one
partner, beyond the scope of his authority, binding on the others,
a clear ratification must be shown, but it need not have been ex-
press; it may be inferred from circumstances. 2 The circum-
stances must be such that knowledge, and action thereon, or
knowledge and expressed intent, can be inferred. Knowledge of
the act of the partner, without knowledge of the facts making the
act a fraud on them, is not enough ; 3 and silence and inaction
under full knowledge, is not enough, 4 unless made so by being
known to and acted on by the other party as a reasonable indica-
tion of assent. Failure to give notice of dissent within a reason-
able time after knowledge, especially if coupled with evidence of
a like course of dealing continued, is sufficient to go to the jury. 5
Evidence of the consideration for the act is relevant to the ques-
tion of implied ratification ; 6 and evidence of mere expressions of
assent is competent. 7 "Where acts of ratification are shown, in-
tent that they should have that effect is not material. 8
30. Evidence of Deceit or Fraud.'] Evidence of fraud or de-
ceit committed by one partner, in a transaction in the course of
the partnership business, is competent against the others, and can
not be rebutted by proving their ignorance or innocence. 9
31. Evidence of Other torts.'] If the act itself was one within
the scope of the business, and done as such, then it is not mate-
rial that the other partners were ignorant and innocent ; 10 nor
that it was wilful ; n otherwise if the act was wholly foreign to
the business. If the act was presumptively a- partnership act, be-
cause, though not in the line of the trade, it was incidental to the
exercise of an implied power, as where a partner in collecting a
debt due the firm directs an officer to make a tortious levy,
then the act of one partner is presumptively that of all ; 12 and
evidence that they, with knowledge of the facts, received the
benefits of it, is conclusive against them. 13
I Lindsay V. Hoke, 21 Ala. 642 ; 8. P. Webb v. Weather-head, 17 How. U. S. 576;
paragraph 50 (below). Contra, Arthur v. Weston, 22 Mo. 283.
* 1 Wood's Coll. 677.
8 Hayes v. Baxter, 65 Barb. 181.
4 Elliott v. Dudley, 19 Barb. 326.
8 Id. ; Ferguson v. Shepherd, 1 Sneed, 256.
6 Carter v. Pomeroy, 30 Ind. 438.
T Nichols v. English, 3 Brews. 260.
8 Hazard v. Spears, 2 Abb. Ct. App. Dec. 353.
9 Chester v. Dickinson, 54 N. Y. 1, affi'g 52 Barb. 349; Wolf v. Mills, 56 HI. 360.
10 Stock well v. United States, 13 Wall. 631.
II Id. Compare Goldsmith v. Picard, 27 Ala. 142 ; 1 Wood's Coll. 724, 8 449.
11 Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341 ; Harvey v. McAdams, 32
Mich. 472.
" Murray v. Binninger, S Abb. Ct. App. Dec. 336.
218 ACTIONS AGAINST PARTNERS.
32. Admissions and declarations of partners.] After evi-
dence of partnership, and of its scope as including the affairs in
question, has been given, an admission or declaration made by
one partner, 1 during the continuance of the partnership relation, 2
and concerning the partnership affairs 8 during the relation, 4 is
competent against all, and has tne same effect as if made by all. 5
If the admission relates 4;o the partnership affairs, it is not neces-
sarily incompetent because expressed rather as an individual than
as a firm declaration. 6 The competency of the declaration is not
affected by the fact that it was made to a stranger. 7
If the admission, being made with apparent authority, is con-
tractual, it is conclusive in favor of a person who acted on it in
good faith. Otherwise it can be rebutted by proof of falsity.
The sufficiency of the proof of partnership, adduced as a foun-
dation for proving, against one partner, an admission made by the
other, is a preliminary question for the court. 8 But the court
may, in its discretion, allow the admission to be proved first.
An entry in the firm books during the existence of the firm and
relating to its affairs is competent evidence against all the part-
ners, even though the books were kept exclusively by one mem-
ber or by an agent, and the partner sought to be charged by the
entry was not in fact privy to it. 9
33. Acts, Admissions, &c., after dissolution.'] The collection
of debts and the disposal of assets, by either general partner,
though done after dissolution, are presumptively valid as against
the others, in favor of third persons; 10 and this presumption can-
not be rebutted by merely showing that the others forbade the
1 Any general partner, though dormant or silent. Kaskaskia Bridge Co. v.
Shannon, 1 Gilm. (111.) 15, 25; 1 Greenl. Ev. 13th ed. 218. And though he was
not served with process, and has been therefore dismissed, (Kady v. Kyle, 47 Mo.
346); or was never joined. Rose. N. P. 75. Evidence which shows that the declar-
ant was either the partner or the agent may be enough to render his declaration
competent, though it be uncertain which he was. Chamberlain v. Fobes, 3 Supm.
Ct (T. <fe C.) 277.
* See next paragraph. Am. Iron Mountain Co. v. Evans, 27 Mo. 652.
3 But not otherwise. Hahn v. St. Clair Savings, <fec. Co. 50 m. 456. The rule is
the same in an action of tort. Fail v. McArthur, 31 Ala. 27.
4 1 Greenl. Ev. 217, n.
' Pollock's Dig. L. of P. 45, art. 21 ; Faler v. Jordan, 44 Miss. 283. The general
principle is more fully stated at p. 187 of this vol.
6 Toby v. Brigham, 9 Humph. 760. But compare Rogers v. Batchelor, 12 Pet.
221, 232, where it was held that a letter written by a partner in his own name, not
in that of the firm, and relating partly to his private affairs, is not presumably with-
in the knowledge of his copartners, and therefore statements in it referring to firm
affairs cannot bind them.
1 Grant v. Jackson, Peake's Cas. 203.
8 Harris v. Wilson, 7 Wend. 57; McCutchin v. Bankston, 2 Geo. 241. Compare
p. 191 of this vol. and note 7.
9 Allen v. Coit, 6 Hill, 318 ; "Walden v. Sherburne, 15 Johns. 409.
10 Bobbins y. Fuller, 24 N. Y. 670.
ACTIONS AGAINST PARTNERS. 219
act, 1 or that the debts had been paid. 2 It may, however, be re-
butted by showing that, to the knowledge of the party dealing,
the partners had conferred the special power of liquidation upon
another of their number. 3
In other respects than as to the collection of debts and the
disposal of assets, the agency of partners for each other terminates
with dissolution ; 4 and hence no executory contract or promise
made or delivered 5 by one after dissolution binds the others, un-
less there is evidence from which special authority 6 or rati-
fication may be inferred.
It is the better opinion that the same principle applies to ad-
missions and declarations ; and that no such concession made by
a partner, after dissolution, even if he were authorized by the
other members of the dissolved firm to adjust its business, 7 is com-
petent evidence against a copartner, although relating to a con-
tract which arose during the partnership. 8 In England, 9 and in
some of our States, 10 the contrary rule is followed. Upon either
view, however, the admission is competent against the one who
made it. 11
34:. Notice, tender and demand ~\ When it is necessary to
prove that a firm had notice from a third person in a matter
within the scope of the partnership business, notice to or knowl-
edge on the part of any acting member is prima facie sufficient; 12
and if two firms have a common partner, notice which is iiuput-
1 Gillilan v. Sun Mut. Ins. Co. 41 N. Y. 376.
* Robbins v. Fuller, 24 N. Y. 570.
8 Robbins v. Fuller (above).
4 Thompson v. Bowman, 6 Wall. 316. Unless the dissolution was unknown, <fec.
See paragraphs 40-42.
6 For legal purposes negotiable paper is deemed to have been signed at the time
the partner delivers it to the third person. Gale v. Miller, 54 N. Y. 538.
6 Graves v. Merry, 6 Cow. 701.
7 Hackley v. Patrick, 3 Johns. 536. Contra, so far aa to admit evidence of his
liquidating the amount of a claim, the existence of which was proved by other evi-
dence, lie v. Ingraham, 5 Gray, 106; s. p. Feigley v. Whitaker, 22 Ohio tet 606,
s. c. 10 Am. R. 778.
8 Baker v. Stackpoole, 9 Cow. 420 ; Thompson v. Bowman (above) ; Miller v.
Neimerick, 19111. 172; Hamilton v. Summers, 12 B. Monr. (Ky.)ll; Flowers v.
Helm, 29 Mo. 324. There is no distinction, under this rule, between the admission
of an account and the admission of a fact. Baker v. Stackpoole (above) ; nor be-
tween the power to acknowledge a debt barred by the statute, and to make a n^w
contract. Van Keuren v. Parmelee, 2 N. Y. 523; and see \Vinchell v. Hicks, 18 N.
Y. 558. The death of the declarant held not to alter the case. Hamiltou v. Sum-
mers, 12B. Monr. (Ky.) 11.
9 Botli at common law (Whitcomb v. Whiting, Doug. 652, s. c. 1 Sm. L. Cas. 703)
and in equity. I'ritchard v. Draper, 1 Russ. <fe M. 191.
10 Merritt v. Day, 9 Vroom, 32, s. o. 20 Am. R. 362; Beardsley v. Hall, 36 Conn.
270, s. c. 4 Am. R. 74, and cases cited; 1 Greenl. Ev. by REDFIELD, 133, n. Aa to
the principle involved in this controversy, see p. 189 of this vol.
11 Hanna v. McKibben, 10 Ind. 547.
13 1 Wood's Colly. 672, 715; Williams v. Roberts, 6 Cold. (Tenn.) 493. That
knowledge of a trustee is sufficient to charge with notice a firm nf which he i-. a
member, though not aa active member, see Weetjun v. St. Paul <fc 1'acinc R. R. Co. 4
Hun, 629.
220 ACTIONS AGAINST PARTNERS.
able to one firm will sustain a finding of notice to the other.
Upon the same principle a demand on or by one member, on be-
half of the firm, is a demand on or by the firm ;* and so of a
tender ; 2 and an allegation referring to all the defendants admits
the evidence as to the one. 3
Dissolution does not change the rights and obligations under
existing contracts ; so that, notwithstanding dissolution, notice to
or demand on one partner is sufficient against the firm. 4
35. Defendant^ evidence to disprove partnership."] It is rare-
ly enough to prove that defendants were not actually partners as
between themselves ; but this fact is relevant, and is always com-
petent in defendant's favor, unless plaintiff has given evidence
sufficient to entitle him to an instruction that, as matter of law,
the defendant is liable as if a partner, as, for instance, where a
community of profits, or a representation raising an estoppel, is
proved. If the plaintiff's evidence on the point is circumstantial,
or only sufficient to go to the jury, then defendant is entitled to
give evidence, even by his own testimony, 5 explaining his intent
in the equivocal acts alleged, and corroborating his denials of the
admissions charged ; 6 or even explaining his admissions. 7 But
his testimony that he was not a partner does not countervail
facts from which the law deduces the liability of a partner. 8
36. Proving a limited partnership.'] To secure the exemption
extended by law to the special partner in a limited partnership
under the statute, it is sufficient to show a substantial compli-
ance with the statute preliminaries in the formation of the
partnership. 9 The fact that the partnership was a foreign
limited partnership may be proved, with the foreign law, in
exoneration of the special partner. 10 Where a violation of the
statute in the formation is shown, it need not be shown to have
been intentional. Where, however, the limited partnership is
1 Band V. Walker, 12 Barb. 298, s. c. 1 Code R. N. S. 329.
8 1 Wood's Coll. 665, 414.
3 See Geissler v. Acosta, 9 N. T. 227.
4 Hubbard v. Matthews, 64 N. Y. 43, 50, and cases cited.
5 One who has made default and suffered judgment may nevertheless testify in
favor of the others that they were not partners with him. Danforth v. Carter, 4
Iowa, 230, 236.
6 Tracey v. McManus, 67 N. T. 257. New member may defend on the ground of
fraud inducing him to assume the debts. Hinman v. Bowen, 3 Hun, 192, s. c. 6
Supm. Ct. (T. & C.) 234. To show that one acting in the business was not a partner
but a clerk, the contemporaneous declarations of admitted partners, made before
difficulty arose, to inform dealers and the public, may be proved. Danforth v.
Carter, 4 Iowa, 230, 235. Contra, Tomkins v. Reynolds, 17 Ala. 109, 118.
7 Story on Partn. 263 146. As, for instance, where they were made under ad-
vice of counsel. Edgar v.McArn, 22 Ala. 796, 812. The contrary held of the ad-
mission resulting from a judgment against them as copartners. Cragin v. Carleton,
21 Me. 493.
8 Rebould v. Chalker, 27 Conn. 114, 133.
Van Ingen v. Whitman, 62 N. Y. 513.
10 King v. Sarria, 69 N. Y. 24, affi'g 7 Hun, 167; and see parargaph 8.
ACTIONS AGAINST PARTNERS. 221
shown to have been once regularly formed, evidence that the
general partners departed from the statute, is not alone enough
to charge a special partner who was not cognizant of the facts/
All persons dealing with a limited partnership are chargeable
with notice of the scope of the partnership business, as specified
in the articles of copartnership, if the articles are duly filed and
published pursuant to a requirement of law ; and the limited
partner cannot be charged as a general partner by evidence of
departure from the articles, unknown to him. 2
37. Matter in abatement!} The omission to join a copartner
as a defendant is not available, unless it appears by the plead-
ings ; and an answer alleging a defect in this respect, must state
precisely and truly who were the parties. An allegation that A.
and B. were partners with defendant and should have been joined,
is not sufficient to admit proof that only A. was a partner. 5 It is
not enough to show that the one not joined was, in fact, a partner
as between the defendants, nor that he participated in an advisory
manner in regard to the conduct of the business, nor even that
his name was on their cards, if it is not shown that the fact was
generally known, or known to plaintiffs, and if the name and
the apparent mode of transacting business indicated that
others alone composed the firm. 4 In such a case, the objec-
tion is not sustained without proof that plaintiffs knew he was
a partner, at the time of contract. 5 The fact that after the
transaction and before suit brought, plaintiff became aware
that the omitted person was a partner, is not enough. 6 On such a
plea, the defendants may be held to strict proof, 7 and should pro-
duce their articles, if any. 8 To support such a plea, the fact that
defendants signed a joint note, is not alone evidence of a part-
nership between them. 9 Neither the declarations of the third
persons nor of the defendants are admissible in defendants'
favor, 10 unless in some way brought home to plaintiff's knowledge.
And upon the same principle, a judgment in an action by a
stranger against such third person holding him to be a partner,
is not competent. 11
1 Van Ingen v. Whitman (above.)
8 Taylor v. Rasch, 11 Bankr. Reg. 91.
* Wiegand v. Sichel, 4 Abb. Ct. App. Dec. 592.
4 North v. Bloss, 30 N. Y. 380.
* N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525 ; B. P. 1845, Peck v. Cowing, 1
Den. 222.
6 North v. Bloss (above).
7 See paragraph 2.
8 See Bonnaffe v. Fenner, 6 Smedes <fe M. 21T ; Kayser v. Sichel, 34 Barb. 84 ;
affi'd without passing on this point, in 4 Abb. Ct. App. Cas. 592.
* Hopkins v. Smith, 11 Johns. 161
10 Sweeting v. Turner, 10 Johns. 216; Nudd v. Burrows, 91 U. S. (1 Otto), 438;
contra, see 14 N. H. 146, and cases cited.
11 De Graffv. Hovey, 16 Abb. Pr. 120. In contradiction or impeachment of a
witness who testifies that he was n partner, his schedules in insolvency containing
no mention of hia interest, were held admissible. Brigham v. Clark, loO Mass. 430.
222 ACTIONS AGAINST PARTNERS.
38. Evidence of known want of authority."] If the public
have the usual means of knowledge given them, and no acts have
been done or suffered by the partnership to mislead them, the
presumption of law is that those dealing with a partner, knew
the extent of the partnership. 1 Evidence that the articles con-
tained restrictions which were known to the party dealing with
a partner is competent, although the transaction was within the
general scope of the business. 2 If the answer contains an admis-
sion of the nrm contract, a denial of consideration does not avail to
admit the defense of want of authority or fraudulent diversion.?
39. Transactions in the interest of one partner. ~\ Evidence
that a transaction with a partner was in a matter not within the
scope of the business, raises a presumption of law, in the absence
of countervailing circumstances, that the dealing was on his
private account, notwithstanding the firm name was used. 4 But
if, on the other hand, the subject-matter is consistent with the
partnership business, the burden is on the firm to show that the
contract was out of the regular course of their dealing, 5 unless
the contract was in writing, and in the individual name of a
partner. In general, if one takes from a partner in discharge of
his separate debt, the obligation or funds of the firm, it is not
necessary for the other partners to bring home to him conscious
knowledge that this was a misapplication ; the nature of the
transaction is enough to charge him with the duty of inquiry. 6
The burden is on the dealer with the partner, to show assent of
the other partner or circumstances from which assent may be in-
ferred ; 7 knowledge alone is not necessarily enough. 8
40. Burden of proving^ dissolution and notice.'] One who
defends on the ground of dissolution, has the burden of proof of
dissolution ; and also of notice, if the other party had knowledge
of the partnership ; 9 except that if the dissolution was caused
by war, death or bankruptcy, there need be no evidence of no-
tice. 10 If the retiring partner was a dormant partner, unknown
1 3 Kent's Com. 43.
2 Dow v. Saward, 12 N. H. 275 ; Chapman v. Devereux, 32 Vt. 619, 623.
3 Harger v. Worrall, 69 N. Y. 370, 378.
4 3 Kent's Com. 43 ; approved in Story on Partn. 241, 133, n.
6 Id.
6 Story on Partn. 241, 133 ; 2 Greenl. Ev. 446, 480; Rogers v. Batchelor, 12
Pet. 229 ; compare Purdy v. Powers, 6 Barr, 492. A mortgagee of property stand-
ing in the name of one partner, has, from the joint possession of it by the firm, con-
structive notice of their title and relative interests. Cavander v. Bulteel, L. R. 9
Ch. App. 79, s. c. 8 Moa^s Eng. 743.
* Dob v. Halsey, 16 Johns. 34.
8 Todd v.-.Lorah, 75 Penn. St. 166.
9 See Story on Partn. 286, 160 ; Wade on Notice, 234, 630 ; Carmichael v.
Green, 55 Geo. 116. Compare Goddard v. Pratt, 16 Pick. 412, 429.
10 Griswold v. Waddington, 16 Johns. 438, affi'g 15 Id. 57 ; Seaman v. Wadding,
ton, 16 Id. 510; Dickinson v. Dickinson, 25 Gratt. (Va.) 321. Civil war does not,
ipso facto, absolve, except from the time of unequivocal public notice of the illegality
ACTIONS AGAINST PARTNERS. 223
to plaintiff, and his name was never used, evidence that he
ceased to be a partner before the transaction is enough without
evidence of notice. 1 If he was known as a partner to the
person dealing with the firm, some evidence of notice of with-
drawal is necessary. 2
41. Mode of proving dissolution.'] A dissolution of partner-
ship or withdrawal of a partner, my be proved by parol or
partly by parol. 8
42. notice."] Against those who at or before the time of
their transaction did not know of the existence of the partner-
ship or the membership of the retiring partner, evidence of
notice of dissolution or withdrawal is not necessary. 4
Against those who had previous knowledge of the partner-
ship, 5 and claim that they were giving credit to all the defend-
ants, but who had not previously given them credit, 6 there must
be either evidence of reasonable publicity by advertisement in a
newspaper 7 (and this is as matter of law sufficient), 8 or of such
circulation of the information, as to fulfill the duty of the
retiring partners to put the public on guard. 9 Evidence tending
to show a public and notorious disavowal of further responsibil-
ity, though without newspaper advertisement, is competent,
such as the giving of actual notice to all who had previously
dealt, the proper change of the firm name, the general notoriety
of the change throughout the trade, and the fact that the firm
had never transacted business in the place where the plaintiffs
bought their paper. 10 It is not a question of actual notice, but of
the reasonable fulfillment of duty and diligence in the public
announcement of the change. 11 Where the creditor testifies that
he had no notice, the jury may still infer actual notice from
circumstances of general publicity. 12
of intercourse. Matthews v. McStea, 91 U. S. (1 Otto), 7, affi'g 60 N. Y. 166, 3
Daly, 349.
1 Kelley v. Horlburt, 6 Cow. 634 ; Davis v. Allen, 3 N. Y. 168 ; Phillips v. Nash,
47 Geo. 218.
2 Park v. Wooten's Ex'r, 36 Ala. 242.
3 Emerson v. Parsons, 46 N. Y. 560, affi'g 2 Sweeny, 447.
4 Paragraph 40 and note ; Wade on Notice, 215, 490.
6 The general notoriety of the existence of the firm, does not raise a presump-
tion that the party dealing had knowledge of its existence. Wade on Notice, 215,
490.
6 The fact of having had cash dealings does not render evidence of actual notice
necessary. Clapp v. Rogers, 12 N. Y. 283, affi'g 1 E. D. Smith, 549.
7 City Bank of Brooklyn v. McChesney, 20 N. Y. 240 ; s. p. City Bank of Brook-
lyn v. Dearborn, Id. 244.
8 Lansing v. Gaine, 2 Johns. 800.
9 Wardwell v. Haight, 2 Barb. 549.
10 Lovejoy v. Spafford, 93 U. S. (3 Otto), 441; compare Pitcher v, Barnes, 17
Pick. 364; Wade on Notice, 226, 513, 519.
11 Lovejoy v. Spafford, (above.)
ls Id.
224 ACTIONS BY AND AGAINST SURVIVOR.
Against those who had given credit 1 to the firm in previous
dealing, there must be evidence of actual notice, 2 or of circum-
stances from which it may be distinctly inferred. 8 Notice to an
agent or servant whose business does not extend to the receipt of
such communications is not enough, without evidence that it was
communicated by him. 4 Proof that written notice was properly
mailed to the person sought to be charged with notice, is not
enough, even though accompanied by proof that the letter was
not returned, 5 if the actual receipt be disproved ; 6 but with slight
corroborative evidence of actual receipt or knowledge, it may be
enough to go to the jury. 7 Publication of notice in a newspaper
is not alone enough, 8 nor is it made sufficient as matter of law by
showing that the party sought to be charged took the paper or
habitually read it, 9 but this is enough to go to the jury if accom-
panied by the slightest evidence of knowledge. 10 Information
actually brought to the attention of the creditor is enough : if by
published notice, it is not essential that the notice be signed by
the partners. 11 A change in the firm name, made known to the
party, though not conclusive, is sufficient evidence of the disso-
lution or withdrawal, if the change itself is significant of the
retirement of the member in question ; n otherwise not. 13
III. RULES PECULIAR TO SURVIVING PARTNERS.
43. Actions T)y survivor. 1 At common law, where it was
sufficient to allege indebtedness, a surviving partner could prove
a debt contracted to the firm, and the death and survivorship,
under a declaration alleging indebtedness to himself, without
1 Those who deal on credit, even for small sums, and on a credit not defined in
point of time, are entitled to notice. Clapp v. Rogers, 12 N. Y. 285, affi'g 1 E. D.
Smith, 549.
s Deering v. Flanders, 49 N. H. 225. ,
3 Austin v. Holland, 69 N. Y. 571, affi'g 2 Supm. Ct. (T. & C.) 253. It seems
that the fact that the former partners carried on business separately, after dissolu-
tion, for years, at different places in the same town with their former dealers, would
sustain a finding of notice to the latter. Per BRONSON, J., Coddington v. Hunt, 6
Hill, 595.
4 Stewart v. Sonneborn, 49 Ala. 178: Wade on Notice, 220, 502.
6 Kenney v. Atwater, 77 Penn. St. 34 ; Wade on Notice, 220, 501.
6 Austin v. Holland, 69 N. Y. 571, affi'g 2 Supm. Ct. (T. & C.) 253 ; where it is
said that mailing is presumptive evidence. To the contrary, see Kenny v. Atwater
(above).
7 Kenny v. Atwater (above).
8 Bank of the Commonwealth v. Mudgett, 44 N. Y. 614. Especially if the party
testifies that he had no actual notice. Howell v. Adams, 68 N. Y. 315, affi'g 1
Supm. Ct. (T. & C.\ 425; Austin v. Holland (above).
9 Vernon v. Manhattan Bank, 22 Wend. 183, affi'g 17 Id. 524.
10 Wade on Notice, 221, 504, 507; 1 Whart. Ev. 641, 675.
11 Young v. Tibbetts, 32 Wise. 79; s. P. Robinson v. \Vorden, 33 Mich. 816.
12 Newcomet v. Bretzman, 69 Penn. St. 185. A change of partners in a banking
house is sufficiently notified to the customers of the house, by a change in the
printed checks. Barfoot v. Goodall, 3 Camp. 146.
13 American Linen Thread Co. v. Wortendyke, 24 N. Y. 550.
ACTIONS BY AND AGAINST SURVIVOR. 225
noticing the partnership, and the death and survivorship. 1 So
far as pleading in the same general form, by alleging defendant
to *be indebted to plaintiff on an account, &c., is sanctioned
under the new procedure, 2 the like evidence is equally admissi-
ble now ; but if the complaint alleges a contract with plaintiff,
or a consideration proceeding from him, proof of one with or
from the firm, is a variance, 3 the effect of which depends on
whether defendant is prejudiced. An action to recover posses-
sion of partnership property may likewise be sustained in the name
of the survivor alone/ Evidence tending to show the place of
residence and death of one partner, with proof of the death at
the same place of a person bearing the same name, establishes,
prim a facie, the title of the other partner as survivor. 5 The
admissions and declarations of the deceased are not competent in
plaintiff's favor to prove the existence and title of the partner-
ship, unless defendant is shown to have been in privity with
him. 6 The admissions and declarations of the surviving partner
to the effect that he had no equity or interest remaining, but
that the personal representatives were entitled, are not relevant,
for the legal title is in him, notwithstanding the equities of the
parties. 7
4A. Actions Against /Survivor.'] The same principles apply
in an action against a survivor. Under an allegation of indebted-
ness of the survivor, evidence of a contract of the firm, and of
death and survivorship may be proved, 8 but if the joint contract,
&c., are alleged, they should be proved ; 9 both rules being sub-
ject to the present criterion as to variance.
45. Actions against Representatives of Deceased, Partner.]
To maintain an action against the executor or administrator of
the deceased partner, it is enough to show that the survivor is
wholly insolvent. This may be shown by any common law proof ;
1 Whether the contract was with the firm (Grant v. Shorter, 1 Wend. 161); or
with the survivor, on a consideration proceeding from the firm. Holmes v. D'Camp,
1 Johns. 34.
2 Allen v. Patterson, 7 N. Y. 476. v
' See Ditchbum v. Sprachlin, 5 Esp. 31 ; Holmes v. D'Camp (above) ; Hess v.
Fox, 10 Wend. 436. Unless the firm name and the survivor's name are the same.
See Bank of Cooperstown v. Woods, 28 N. Y. 545.
4 Murray v. Mumford, 6 Cow. 443.
6 Daby v. Ericsson, 45 N. Y. 786.
8 Such evidence would be competent against the administrator of the deceased,
but is not as against a stranger, even on an isene raised by him that the title is in
the administrator. Brown v. Mailler, 12 N. Y. 118; s. p. Hamilton v. Summers, 12
B. MOD. (Ky.) 11. Entries by partner since deceased, proven to be in his handwrit-
ing and made in the regular course of business, are presumptive proof. Thomson v.
Porter, 4 Strobh. Eq. 64.
7 Daby v. Ericsson, 45 N. Y. 786. Receipt by agent of new firm not expressed
to be for survivors, held not competent. Adams v. Ward, 26 Ark. 135.
8 Goelet v. McKinstry, 1 Johns. Cas. 405.
9 KELSON, J., Mott v. Petrie, 15 Wend. 318, and cases cited.
15
226 ACTIONS BETWEEN PARTNERS.
exhaustion of the remedy at law is not essential ; * but, on the
other hand, evidence that the remedy at law was exhausted by
execution returned unsatisfied is enough, although it be shown
that the survivor has available property which was not discovered
by the sheriff. 2
IY. ACTIONS BETWEEN PARTNERS.
46. Allegation and burden of proof of partner ship. ~\ In an
action for an accounting, the allegation of partnership is material,
and plaintiff cannot recover on proof that he is a creditor, 3 not
even on proof of a loan payable with share of profits. 4 And if
he could, usury, though not pleaded, would be available as a de-
fense. 5 If the existence of the partnership is denied in the an-
swer, the burden of proof is on the plaintiif. 6
47. Proof of partnership.] Where the interest of no third
person is involved, stronger proof is required to establish the
partnership, than when the question arises as between the alleged
partners and third persons. 11 If the agreement was embodied by
the parties in a writing, it must be produced or accounted for. 8
If not written, it may be proved by parol, 9 notwithstanding it
was to continue for more than a year; 10 and for this purpose
the conduct and declarations of the parties, 11 and the entries
in the firm books, 12 are competent, subject to the general qual-
ification that the concession of one is not evidence against an-
other. 13 The question of partnership or not, is to be determined
I Van Riper v. Poppenhausen, 43 N. Y. 68.
9 Pope v. Cole, 55 N. Y. 124, affi'g 64 Barb. 406.
"Salterv. Ham, 31 N. Y. 321.
4 Arnold v. Angell, 62 N. Y. 508, rev'g 38 Super. Ct. (J. & S.) 27. Compare
Marston v. Gould, 69 N. Y. 220.
6 Arnold v. Angell (above).
Gatewood v. Bolton, 48 Mo. 78.
' Chisholm v. Cowles, 42 Ala. 179.
8 The attorney who drew the articles is privileged, if he acted for the party claim-
ing the benefit of the privilege, and not for the adverse party (see Yates v. Olmsteil,
56 N. Y. 632, rev'g 65 Barb. 43); if he acted for both, he is not (see Whiting v. Bar-
ney, 30 N. Y. 330).
If deceased, his contemporaneous entries in his accounts, and his drafts of the
articles and of other papers connected therewith, are competent, for the purpose of
corroborating other evidence as to the date and contents of the lost articles.
Moffat v. Moffat, 10 Bosw. 468, 493.
The intentional destruction of the articles by the interested party, if unexplained,
is competent to go to the jury against him in corroboration of evidence of their con-
tents; but the fact of spoliation does not alone raise a legal presumption that their
contents were as alleged by the other party. Id. 601.
' Randel v. Yates, 48 Miss. 685. As to the case of partnership in lands, compare
Fairchild v. Fairchild, 64 N. Y. 471, affi'g 6 Hun, 407 ; Levy v. Brush, 45 K Y. 589,
rev'g 8 Abb. Pr. N. S. 418, s. o. 1 Sweeny, 653; Smith v. Burnham, 3 Sumn. 435.
10 Smith v. Tarleton, 2 Barb. Ch. 336.
II Shelmire's Appeal, 70 Pa. St. 281.
" Frick v. Barbour, 64 Pa. St. 120.
13 See paragraphs 11 and 14, where the principle is more fully stated.
ACTIONS BETWEEN PARTNERS. 227
chiefly by ascertaining what were the intentions of the parties,
as manifested in the transactions shown. 1 Mutual intention
and assent to the relation is enough ; but the absence of them
does not necessarily disprove partnership, because the contract
that was entered into may conclusively manifest an intent to
create the relation, although they were at the time in fact un-
aware of the legal effect. 2 Hence, the facts being proved on un-
contradicted testimony, the question is one of law for the court. 8
The intention of the parties, together with the facts, must, as
between themselves, be decisive of the question as to the exist-
ence of the partnership and as to its extent. The parties should
not be permitted to testify as to whether they regarded each
other as partners, for the reason that the construction of con-
tracts, whether written or verbal, is for the court, and cannot
be expounded by witnesses. Parties may become partners with-
out their knowing it, the relation resulting from the terms they
have used in their contract, or from the nature of the undertak-
ing ; and the testimony of either as to whether he regarded the
other as his partner is incompetent as against the other, 4 though
competent against himself.
As between the parties, equity allows the admission of parol
evidence of the course and business of the partners, either by
general acquiescence or positive acts subsequent to the articles,
for the purpose of showing the practical construction they have
put on the articles, or even of inferring that they have abandoned
disused provisions. 3 On the continuance of the business by the
same parties after the expiration of the time fixed in the articles,
the natural presumption is that the old articles are adopted, ex-
cept the provisions as to term or termination. 6
48. Order of proof ,~\ In taking the final accounts, ascertain :
1. How the firm stands as to non-partners (including co-adven-
turers) ; 2. What each partner is entitled to charge against the
other for everything he has advanced or brought in as a partner-
ship transaction, and also to charge against him what that other
has not brought in as he ought, or has taken out in excess of
what he ought ; and then, 3. Apportion between them the profits
to be divided or losses to be made good, and ascertain what, if
anything, any partner should pay to another, in order that all
cross claims may be settled. 7 Partnership transactions are not
1 Salter v. Ham, 81 N. Y. 321 ; Phillips v. Phillips, 49 111. 437; Groves v. Tallman,
8 Nev. 178. Agreement to execute a deed of partnership held to constitute a part-
nership as between the parties. Syres v. Syres, L. R. 1 App. Cae. 174, s. c. 15 Moak*s
Eng. 52.
* Lintner v. Milliken, 47 111. 178.
* Chisholm v. Cowles, 42 Ala. 179. And see Bitter v. Rathman, 61 N. Y. 512.
4 Liutner v. Milliken (above).
6 Story on Partn. 826, g 192.
* U. S. Bank v. Binney, 5 Mas. 176, 185 ; Story on Partn. 332, 198.
7 Neudecker v. Kohlberg, 3 Daly, 410 ; West v. Skip, 1 Yes. Sr. 242.
228 ACTIONS BETWEEN PARTNERS.
excluded from the accounting because not alleged in tlie com-
plaint. 1
49. Evidence of firm or individual transactions.'] To bring
in a transaction had by a partner, but not in the firm name, it is not
enough to show merely that it was in violation of the express or
implied agreement of the partner to devote his attention, &c., to
firm business ; 2 but it is enough to show that it was in a business
in rivalry with that of his firm ; 8 or that it was by the partner-
ship relation that he was enabled to make the contract 4 (as, for
instance, where the consideration was drawn from, 5 or the liability
chargeable upon or assumed by, 6 the firm), or by means of use of the
firm property or credit, 7 or that he made a secret arrangement for
an individual profit from their transactions, 8 or took any x unfair
advantage of his connection with the firm. And in such cases it
is not necessary tp prove that any loss accrued to the firm. 9 As-
sent by the copartner to the carrying on of a transaction in the
name of the other is not necessarily an assent to the claim of the
other to the profits of the transaction. 10
50. Title to real property.'] Heal property the legal title of
which is in a member, is presumed to belong to him, although occu-
pied and used by the firm, until it is shown to be partnership prop-
erty, either by evidence that there was an agreement to that effect,
or that it was acquired with partnership funds for partnership pur-
poses. 11 For this purpose parol evidence is admissible as between
the partners and their representatives, to show that a conveyance
to a partner was for the benefit of the firm. 32 And where the
statute forbids a resulting trust unless the conveyance is so taken
without the knowledge of the party paying the consideration, the
court will not presume knowledge ; but in support of a clear
equity, the court may, from the fact that those paying intended
the conveyance to be taken in the grantee's name, presume that
he intended it to recognize his equity, and was ignorant of the
1 Boyd v. Foot, 6 Bosw. 110.
8 Dean v. McDowell, 26 Weekly R. 486 ; and see Clements T. Norris, 38 L. T. N.
S. 691.
3 Somerville v. Mackey, 16 Ves. 382 ; Locke v. Lynam, 4 Ir. Ch. 188.
4 Russell v. Austwicb, 1 Sim. 62; Mitchell v. Reed, 61 X. Y. 123, rev'g 61 Barb.
310.
5 See Cox v. McBurney, 2 Sandf. 561 ; but compare Campbell v. Mullett, 2 Swanst.
651; Comegys v. Vasse, 1 Pet. 193.
6 Nichols v. English, 3 Brews. 260.
I Herrick v. Ames, 8 Bosw. 115.
8 Manuf. Nat. Bank v. Cox, 2 Hun, 572; affi'd without further opinion in 59 N. Y.
659.
9 Id. ; Mitchell T. Reed (above).
10 Bast's Appeal, 70 Penn. !St. 301.
II Hogle v. Lowe, 6 Reporter, 118.
14 Fairchild v. Fairchild, 64 N. Y. 471, affi'g 5 Hun, 407. Contra, as against cred-
itors, purchasers, <tc., Le Fevre's Appeal, 69 Penn. St. 122; Ebbert's Appeal, 70 Id.
79.
ACTIONS BETWEEN PARTNERS. 229
fact that it did not. 1 The fact that land is held in the names of the
several persons alleged to be partners, or in the name of one for
the benetit of all, is not alone evidence of copartnership between
them with respect to it. 2 But where partnership is shown to
exist, and land is conveyed to the several partners, evidence
of actual use for partnership purposes, or of a positive agreement
making it partnership property, is not essential. If paid for with
partnership funds, it is then a question of intention whether the
property is held by the partners as tenants in common, or-whether
it is partnership property. In the absence of other evidence, the
manner in which the accounts are kept, whether the purchase-
money was severally charged to the members, or whether the ac-
counts treat it as they do the other firm property, as to purchase-
money, income, expenses, etc., are controlling circumstances in
determining such intention, 8 and from these circumstances an
agreement may be inferred. The same evidence which would
make it partnership property, for the purpose of paying debts
and adjusting the equity between the copartners, establish it for
the purpose of final division. 4
51. Evidence to charge member with assets.] Partners who
are not shown to have had exclusive management, are not to be
charged with income, &c., without evidence that they actually re-
ceived it. 5 And those who had exclusive management may be
charged with the whole capital ; but not with uncollected debts,
without evidence of actual receipt or negligence, 6 or of refusal to
give account. 7
52. Evidence to credit member with payments or share.]
The interest of each is presumed equal in the absence of proof. 8
Profits of a continuous enterprise may, for the purpose of equa-
ble division, be presumed to have accrued ratably as the work
progressed. 9
53. Partnership &00&S, <&?., as evidence] Prima facie the
books of a partnership are, as between the partners, evidence for
them all and against them all. 10 Entries made during the contin-
uance of the firm, in the books to which a partner had access
1 Fairchild v. Fairchild (above).
* Thompson v. Bowman, 6 Wall. 317.
8 But not necessarily conclusive. Grubb's Appeal, 66 Penn. St. 117, 128.
4 Fairchild v. Fairchild (above).
Richardson v. Wyatt, 2 Dess. 471, 481.
See Gunnell v. Bird, 10 Wall 304, 308.
' Gillett v. Hall, 13 Conn. 426, 435.
8 Fox Dig. L. of P. 59 ; Gould v. Gould, 6 Wend. 267. Contra, as to profits, 3
Bosw. 1 1 5. Whether difference in contributions is alone sufficient evidence of intent
to share unequally, compare Neudecker v. Kohlbergh, 3 Dalv, 4u7 ; Story ou Partn.
J5, 24. See also Whitcomb v. Convers. 119 Mass. 38, s. c. 20 Am. R. 311
* Clark v. Gilbert, 26 JS. Y. 279,^7^ 32 Barb. 576.
10 Lodge v. Prichard, 3 De Gex, M. <fe G. 906.
230 ACTIONS BETWEEN PARTNERS.
when the entries were made, or immediately afterwards, are pre-
sumptive evidence against him, 1 in the absence of evidence of his
dissent. 8 If it be snown that the account was kept by the part-
ner, in whose favor the entrv is, evidence may be required that the
book was a partnership book, had been fairly kept, and was acces-
sible to the other. 8 The evidence drawn from the entries may be
rebutted, by aid of proof that the partner against whom they are
adduced had no knowledge of the entries ; and any circumstances,
such as distance, course of business, &c., are relevant. 4 In case
of entries made after dissolution, the party adducing them must
show that the other had the books, and an opportunity of exam-
ining them at the time, and did not dissent. 5
54r. Evidence of voluntary settlement^ Evidence of an oral
agreement for accounting and settlement, executed by a state-
ment and settlement accordingly, though subsequent to a written
agreement for dissolution, is competent. 6 But an account ren-
dered and not shown to be acquiesced in, is not enough to bar an
action for an account. 7
1 Hearlt v. Corning, 3 Paige, 566 ; s. P. Caldwell v. Lieber, 7 Id. 483. But in case
of a dormant partner, it should appear or be presumable that he not only had access
to the books, but actually inspected them. Taylor v. Herring, 10 Bosw". 447.
s Dunnell v. Henderson, 23 N. J. Eq. 174.
8 Adams v. Funk, 63 111. 219; Wheatley v. Wheeler, 34 Md. 62.
4 U. S. -v. Binney, 6 Mas. 188.
B Pratt T. McHatton, 11 La. Ann. 262.
' Wiggin v. Goodwin, 63 Me. 389.
Wood's Coll. 461, 298.
CHAPTEE X.
ACTIONS BY AND AGAINST RECEIVERS.
1. Allegation of appointment, and 4. Evidence of transactions of defend-
right of action. ant.
2. Evidence of appointment. 6. Action against receiver.
8. Leave to sue.
1. Allegation of appointment, and right of action."] In those
jurisdictions where a receiver sues in his own name, as such, an
allegation of his due appointment is necessary, if the right of ac-
tion was vested in him by the appointment ; and the allegation,
if not admitted, must be proved. 1 If, on the other hand, the
right of action is not derived through his appointment, as, for
instance, where he sues on a contract with him as receiver, he
need not allege his appointment, but he may sue, simply describ-
ing himself as receiver. 2 And in those States where a foreign
receiver is not recognized by the courts, 3 he may still sue if he
can prove a cause of action not directly dependent on his title as
receiver. Thus any action which may be sustained by proof of
possession without proof of title, 4 or by proof of a contract made
with himself, 5 or a transfer to him, 6 he may maintain ; and the
fact that he is named on the record in his official capacity should
not alone defeat the suit.
2. Evidence of appointment.] If appointed by a court of
general jurisdiction, it is enough to produce the decree, 7 (when
appointed in a cause), or the petition and order 8 (when appointed
in a special proceeding), with his bond or other qualification,
without producing the proceedings at large. The appointment
of a receiver of a national bank is proved by a certificate of. the
comptroller of the currency, approved and concurred in by the
secretary of the treasury, and reciting the existence of all the
1 Bangs v. Mclntosh, 23 Barb. 691; and see Manley v. Rassiga, 13 Hnn, 288.
s White v. Joy, 13 N. Y. (3 Kern.) 83, rev'g 11 How. Pr. 36.
1 See Willits v. Waite, 25 N. Y. 584 ; Cagill v. Woolridge, 4 Centr. L. J. 6, and
note; High on Rec. 156, 239.
4 Graydon v. Church, 7 Mich. 36. So his assignee may sue. Hoyt v. Thompson,
6 N. Y. 838.
B Helme v. Littlejohn, 12 La. Ann. 298.
Palmer v. Clark, 4 Abb. New Cas. 25.
* Id. It seems that the oath and bond may be presumed. See Dayton v. John-
eon, 69 N. Y. 419. Compare Rockwell v. Merwin, 45 Id. 168.
[231]
232 ACTIONS BY AND AGAINST RECEIVERS.
statutory facts. 1 The record, while it remains a subsisting order
or decree, is conclusive. 2
3. Leave to sue.] Leave to sue need not usually be proved, 8
but in those jurisdictions where an allegation and proof of it is
required, the court may, after long delay to object, presume that
it was duly had, from the making by the court of orders facilitat-
ing the progress of the suit. 4
4. Evidence of transactions of defendant^ In general, the
same evidence is admissible that woula be admissible in an action
between the defendant and the corporation or person of whose
property plaintiff is receiver. In an action by the receiver of a
corporation against its stockholders, the fact that the name of
defendant appears on the stock-book as a holder of stock, raises a
presumption that he is its owner, and throws on him the burden
of giving evidence to the contrary. 5 In the case of a national
bank, the certificate of the comptroller of the currency is, as
against stockholders, conclusive evidence of the regular organiza-
tion and existence of the corporation, 6 and of the extent to which
the individual liability of stockholders shall be enforced. 7 But
the ordinary account books of the corporation, containing their
entries of the dealings of the defendant with the corporation, are
not competent against defendant, 8 any more than those of an in-
dividual, except on some special ground such as would make
them competent if the action were by the corporation, as, for
instance, that defendant actually had access to the books so as to
raise an implied admission of the correctness of entries not ob-
jected to at the time. 9
5. Action Against receiver. ~\ A receiver, acting within his au-
thority, is not liable personally, except on proof of personal mis-
conduct, even if he do not object that leave to sue him was not
sought ; 10 . but when sued for interfering with property which the
decree by which he was appointed did not authorize nim to med-
dle with, plaintiff need not show leave to sue, for in such case the
receiver is merely a trespasser. 11 A foreign receiver may, if jur-
isdiction be acquired, be sued here, and without leave, if it be
shown that he would, by the law of the State where appointed, be
held liable in its courts, on the facts of the case. 18
1 Platt v. Beebe, 67 N. Y. 339.
8 Vermont & Canada R. R. Co. v. Vermont Central R. R. Co. 46 Vt 792.
8 4 Abb. N. Y. Dig. 2d ed. 423.
4 Jerome v. McCarter, 94 U. S. (4 Otto), 734, 737.
6 Turnbull v. Payson, 95 U. S. (5 Otto), 418, 421, and cases cited,
Casey v. Galli, 94 U. S. (4 Otto), 673.
7 Id.
8 White v. Ambler, 8 N. Y. 170. See Chapter on CORPORATIONS.
9 See Rockwell v. Merwin, 8 Abb. Pr. N. S. 330, 45 N. Y. 166.
10 Camp T. Barney, 4 Hun, 373. See further p. 52 of this vol.
11 Hills v. Parker, 111 Mass. 608.
" Paige v. Smith, 99 Mass. 395.
CHAPTER XI.
ACTIONS BY AND AGAINST TRUSTEES.
1. Express trusts. 6. Admissions and declarations of the
2. Demand before suit, and notice. cestui que trust.
8. Trustees' receipts. 7. of the trustee.
4. Compromises. 8. Judgments.
6. Justification of dealings with the es- 9. Presumption of conveyance by trustee,
tate. 10. Constructive and resulting trusts.
1. Express trusts.'] Under the statute of frauds, 1 a trust need
not be created by writing, but it must be manifested and proved
by writing, and where there is no explicit declaration, the nature
of the trust, and the terms and conditions of it, must sufficiently
appear so that the court may not be called upon to execute the
trust in a manner different from that intended. 2 Such a trust
manifested by writing not intended for the purpose, cannot be
established by resorting to parol evidence to supply defects or
omissions in the written evidence. 3 No particular form of words
is necessary. It is enough if the creator, having the property,
conveys it to another in trust, 4 or admits the trust in a writing,
whether addressed to the cestui que trust or to a third person, 5 or,
the property being personal, if he unequivocally declares either
orally or in writing, that he holds it inprcMenU in trust, or as a
trustee for another ; 8 and the creation of a trust in writing, if
otherwise unequivocal, is not affected by the fact that the creator
of the trust retains the instrument declaring it. 7 Knowledge
1 2 N. T. R. S. 135, 6, 7, as am'd by L. 1860, ch. 322.
* Steere v. Steere, 5 Johns. Ch. 1, 11.
8 Cook v. Bare, 44 N. Y. 156, 161. Contra, Kingsbury v. Burnside, 58 111. 810,
s. o. 11 Am. R. 67, where it is held that if the writing affords evidence of the exist-
ence of a trust, the terms may be supplied alinncte. If there be written evidence
of the existence of the trust, the danger of parol declarations, against which the stat-
ute was directed, is effectually removed. Whether a deed to one as " trustee," but
without declaring for whom or what purpose, can be aided by parol, compare Dillaye
v. Greenough, 45 N. Y. 438; Railroad Co. v. Durant, 95 U. S. (5 Otto), 576, 579.
* Ray v. Simmons, 11 R. I. 266, s. c. 23 Am. R. 447, and cases cited.
* Any writing may be used for the purpose, though not intended as a declaration
of trust. Kingsbury v. Burnside, 58 111. 310, s. c. 11 Am. R. 67. Thus, admissions
in a pleading in an action with third persons will be sufficient. Cook v. Barr, 44 N.
Y. 156.
* See Walker v. Walker, 9 Wall. 754.
7 Especially where he himself is the trustee. Ray v. Simmons, 11 R. I. 266, s. c.
23 Am. R. 447, and cases cited ; Witzel v. Chapin, 3 Bradf. 386.
[233J
234: ACTIONS BY AND AGAINST TRUSTEEa
in the cestui que trust, at the time, need not be proved. If
the writing in which the parties embodied the declaration is
clear and positive as to the terms of the trust, it cannot be
varied or altered by parol evidence, 1 but if loose and ambig-
uous, parol evidence is competent to sho^v what was their un-
derstanding. 3 In ascertaining the purposes of a trust, the lan-
guage of the conveyance, if clear and unequivocal, is conclusive. 3
If the language is indefinite, extrinsic evidence, such as the tenets
held by the donor, or the faith then actually taught by the
donees, and the circumstances under which the gift was made,
and the denominational name of a religious corporation or so-
ciety to which a donation is made, and the doctrines actually
taught therein at the time of the gift, may be resorted to in order
to limit and define the trust in respect to doctrines usually con-
sidered fundamental, but not as to lesser shades or points of doc-
trine not deemed fundamental. 4 To prove the acceptance of a
trust, any act of the trustees under the instrument creating the
trust is competent evidence. 5 Parol evidence is equally com-
petent to disprove acceptance by the one named as trustee, or
by one of several so named. 6 But if it was accepted, though
for a moment, parol proof of a release is not competent. 7
"Where the action is not against the trustee, but brought by
him against those who have dealt with him, or strangers, much
slighter evidence is. enough to show him a trustee of an ex-
press trust within the statute allowing such an one to sue in
nis own name. 8
2. Demand lefore suit, and notice."] Before a suit can be
brought against a trustee, he must have had notice of the duty he
is required to perform, and must have had an opportunity to
perform it.
But where the trustee is himself an actor in the transa^
tion, and has full knowledge of his duties, such notice and de-
1 Steere v. Steere, 6 Johns. Ch. 1. So held even where the writings were merely
accounts and letters. Compare Brabrook v. Boston Five Cents Savings Bank, 104
Mass. 228, s. o. 6 Am. R. 222.
s Steere v. Steere (above). The tendency of later decisions is to insist on clear
and cogent evidence. See Lantry v. Lantry, 61 111. 458, s. c. 1 Am. R. 310; and U.
S. Dig. tit. Trust.
8 Miller v. Gable, 2 Den. 492, 648.
4 Hale v Everett, 63 N. H. 9, s. c. 16 Am. R. 82. Compare Happy v. Morton, 33
HI. 398, 413; see also, rules as to extrinsic evidence to interpret wills, p. 128, <fcc.,
of this vol.
6 Lewis v. Baird, 3 McLean, 56; and see 8 Wms. Exr. 6 Am. ed. 1896, and note.
6 Armstrong v. Morrill, 14 Wall. 139 ; Burritt v. Silleman, 13 N. Y. 93, rev'g 16
Barb. 198.
1 Id. and cases cited.
8 Any declaration, however informal, which evinces the intention of the party
with sufficient clearness, will have that effect as to personalty. Chew v. Brumagen,
13 Wall 497, and cases cited.
('ACTIONS BY AND AGAINST TRUSTEES. 235
mand are not required. 1 If there are several trustees, a demand
on the one against whom personal recovery is sought should
be proved. 2 Where the trustees are not chosen by nor the
agents of the cestui que trust, notice to one of several co-trustees
is not notice to the cestui que trust for the purpose of depriv-
ing him of the character of lonafide holder. 8
3. Trustees' receipts.'] All of several trustees of an express
trust must join in receipts, conveyances and actions, 4 and the re-
ceipt of one is not alone competent evidence to charge or bar
the others. If two trustees join in a receipt for money, it is
presumptive evidence that the money came equally into the
possession or under the control of both ; and there must be direct
and positive proof to rebut the presumption. 5 In such case the
burden is on the trustee to prove that his acknowledgment of the
receipt of the money was merely for conformity, and that in fact
he received none of the money, and that his co-trustee received
it all. If there is no evidence upon this point, all the trustees
who join in signing the receipt will be held responsible in solido,
on the ground that the acknowledgment in the receipt isprima
facie evidence of the facts stated. At common law the receipt
was conclusive, and estopped the trustee from denying that he
received any of the money ; but equity rejects the estoppel, and
will determine according to the fact. .But if a trustee, signing
a receipt, receives any part of the money, and it does not appear
how much, he will be answerable for the whole. 6
4. Compromises^ If the trustee has compromised a claim,
without leave of court had on notice to the cestui que trust, 1 the
burden is on him of showing that by the situation existing at the
time he made the compromise, it was properly judged advan-
tageous for the estate. 8 If he shows this he is not made liable by
the result proving disadvantageous. 9 If he obtained leave un-
der a statute authorizing the court to grant it, and not requiring
notice, or under the general power of a court of equity to direct
a trustee, on notice to the cestui que trust, 10 the order of the court
protects him n irrespective of the result, and throws upon a cestui
I Brent v. Maryland, 18 Wall. 430, and cases cited.
8 Jessop v. Miller, 2 Abb. Ct. App. Dec. 449.
' Commissioners of Johnson County v. Thayer, 94 U. S. (4 Otto), 631, 644.
: * 6 Abb. N. Y. Dig. 25, 35.
6 Monell v. Monell, 5 Johns. Ch. 283.
6 2 Perry on Trusts, 601, 416.
7 Sollee v. Croft, 7 Rich. Eq. 34, 43, 45 ; Anon v. Gelpcke, 5 Hun, 245.
8 "The Chancellor is the only safe and secure counsellor to trustees." NASH, J.,
Freeman v. Cook, 6 Ired. Eq. N. C. 373, 378.
9 Murray v. Blatchford, 1 Wend. 583, 616; Bacot v. Hayward, 6 Rich. (S. C.)
441.
10 If the court has equity powers only by express statute, the rule is the same.
Treadwell v. Cordis, 5 Gray, 341.
II Alike on the compromise of a legal (Talbot v. Earl of Radnor, 3 Mylne <fe K.
252; Wheeler v. Perry, 18 N. H. 307) as of an equitable claim. Jones v. Stockett, 2
Bland Ch. (Md.) 409. 425.
236 ACTIONS BY AND AGAINST TRUSTEES.
que trust who assails the compromise, the burden of proving
fraud or bad faith.
5. Justification of dealings with the estate."] If a trustee pur-
chases of the cestui que trust, or accepts a benefit from him, the
burden is on the trustee to vindicate the transaction from any
shadow of suspicion, and to show that it was perfectly fair and
reasonable in every respect. 1 If he alleges the consent of the
cestui que trust, the presumption is against the fairness of the
transaction, and the burden is on him to show it affirmatively,
and to establish all the conditions necessary to its validity. 3 If
the trustee deals with the trust fund for his own benefit, the
cestui que trust, on calling him to account, need not show that
there was any inequality or disadvantage in the transaction. 3 He
is absolutely entitled to have it set aside, unless, being sui juris,
he has ratined the act or waived the objection, 4 Silent acquies-
ence, without facts constituting an estoppel, does not affect the'
right of action, 5 unless unreasonably prolonged. 6 '
6. Admissions and declarations of the cestui, que trust.'] To
let in the admissions and declarations of the cestui que trust
against the trustee, being the party on the record, it must clearly
appear that the action is brought for the benefit of the declarant
or those claiming under him. 7 The admissions of one of several
cestuis que trustent in a formal trust are not generally competent
for the purpose of defeating the title of their trustee, especially
in an express trust of real property. 8 But where the cestuis que
trustent are really principals, their admissions are competent, and
their relation may involve an agency, in which case the admis-
sions of one will be competent against the other.
7. Admissions and declarations of the trustee."] In the case
of a formal express trust the admissions and declarations of a sole
trustee, if made while he was trustee, 9 and relating to matters
within the scope of his duty and authority, are competent evi-
dence against him or his cestui que trust, 10 when adduced in favor
of third persons. If his trust partook of the nature of an agency,
his admissions and declarations within the scope of the agency
are competent. In any case, his admissions and declarations
1 2 Perry on Trusts, 516, 428. Held otherwise where the trustee acts in the
hostile attitude of an urgent creditor. 11 Moak's Eng. 112, note.
4 Cumberland Coal Co. v. Sherman, 30 Barb. 553, 572.
3 Jewett v. Miller, 10 N. Y. 402.
4 Boerum v. Schenck, 41 Id. 182.
8 14 Moak's Eng. 85, note. Contra, 15 Id. 19.
6 Twin-lick Oil Co. v. Marbury, 91 U. S. (1 Otto), 587.
' May v. Taylor, 7 Jur. 512, s. c. 6 Mann. & G. 261 ; 6 Scott N. R. 974.
* Pope v. Devereaux, 5 Gray (Mass.) 409, 413.
9 Beatty v. Davis, 9 Gill (Md.) 211.
10 Maxwell v. Harrison, 8 Geo. 61, 67; Helm v. Steele, 3 Humph. (Tenn.) 472.
Contra, Graham v. Lockhart, 8 Ala. N. S. 9 ; 2 Perry on Trusts, 522, 433 ; Thomas
V. Bowman, 30111. 84, 29 id. 426. Compare Thompson v. Drake, 32 Ala. 99.
ACTIONS BY AND AGAINST TRUSTEES. 237
made at whatever time, if relevant to the issue, are competent
evidence against himself personally. If there are several co-
trustees, the admissions of one are competent against himself, but
not against his co-trustee, 1 nor, alone, against their cestui que
trust?
8. Judgments^ A judgment or verdict against one individu-
ally does not estop him as trustee. 8 But an adjudication against
him as trustee estops him in respect to his private right as a
cestui que trust held at the time of the former action, or acquired
from persons then holding it. 4 An adjudication against him in
the capacity of trustee does not estop him from bringing, as
trustee for a different purpose, or in a different right, another
action against the same defendant, and hence it does not estop
the defendant in favor of the trustee. 5
9. Presumption of conveyance ty trustee, ,] A presumption of
fact that a conveyance has been made by a trustee to those entitled
to a conveyance, in conformity to the trust, arises after a consid-
erable lapse of time. 6 So where the object of a trust has entirely
failed, a reconveyance from the grantee to the grantor, or if there
were several, to that one who had the exclusive beneficial right,
will be presumed, both in equity and at law. 7 Three things must
concur to warrant this presumption : 1. A duty on the part of the
trustee to convey ; 2. A reason for the presumption, not neces-
sarily sufficient to induce conviction of a conveyance in fact, but
a reason of justice ; 3. The object must be the support of a just
title. The case must be such that equity would decree a convey-
ance. 8 But a conveyance which would be a breach of their trust
cannot be presumed, 9 even after great lapse of time.
10. Constructive and resulting trustsJ] Parol evidence is
competent for the purpose of charging a grantee as trustee ex
maleficio, or as a constructive trustee, where the application of
the statute requiring written evidence would operate as a fraud. 10
Evidence of a parol agreement is competent to show that defend-
ant made advances and took title to plaintiff's property for his
benefit as to any surplus. A stranger is not to be made a con-
1 Davies v. Ridge, 3 Esp. 101.
8 Walker v. Dunspaugh, 20 N. Y. 170.
* Rathbone v. Hooney, 58 N. Y. 463.
4 Corcoran v. Chesapeake, <fec. Canal Co. 94 U. S. (4 Otto), 741, 745,
5 Leggott v. Great Northern Railway Co. 1 Q. B. Div. 699, s. c. 17 Moak'e Eng.
238.
* See Jackson v. Moore, 13 Johns. 613 ; Jackson v. Cole, 4 Cow. 587.
7 Lade v. Holford, Bull. N. P. 110 ; England v. Slade, 4 T. R. 682.
8 French v. Edwards, 21 Wall. 160.
* Brewster T. Striker, 2 N. Y. 19, affi'g 1 E. D. Smith, 321, 7 N. Y. Leg. Obs.
140.
10 This is the better opinion amid much conflict in the authorities. Dodije v. Well-
man, 1 Abb. Ct. App. Dec. 612 ; Ryan v. Dox, 34 N. Y. 807, rev'g 25 Barb. 440;
Carr v. Carr, 62 N. Y. 261 ; Sandfo'rd v. Norris, 4 Abb. Ct. App. Dec. 144.
238 ACTIONS BT AND AGAINST TRUSTEES.
structive trustee merely because he acts as agent of the trustee.
It should be shown that he received and became chargeable with
some part of the trust property, or knowingly assisted in a fraud-
ulent transaction on the part of the trustee. 1
A resulting trust, even in real property, in the cases in which
the statute allows such trusts, 2 may be proved by parol evidence 8
to explain a conveyance from a third person. But if a written
agreement between the parties appears, manifesting an intent to
make an absolute conveyance, parol evidence is not competent
between them to prove that a trust was intended, unless fraud or
mistake is shown ; 4 but it is competent for the purpose of prov-
ing that the conveyance was a mere security. 5 To establish a re-
sulting trust by plaintiff's payment of the consideration for a title
taken py defendant, it must appear thafc the consideration, or a
definite fractional part, was paid at or before the time of the
conveyance. Parol proof of intent to pay is not enough, nor is
proof of subsequent payment, unless in, pursuance of an agree-
ment made at or before the time of conveyance. 8
1 Barnes v. Addy, L. R. 9 Ch. App. 244, s. c. 8 Moak'a Eng. 848.
4 6 Abb. N. Y. Dig. 10, 11.
3 Swinburne v. Swinburne, 28 N. Y. 568. The statute of frauds does not apply.
6 Abb. N. Y. Dig. 8.
4 St. John v. Benedict, 6 Johns. Ch. Ill ; Sturtevant v. Sturtevant, 20 N. Y. 39.
6 Even though there was no personal debt. Horn v. Keteltas, 46 N. Y. 605.
6 Abb. N. Y. Dig. 8, 9.
PART II..
EVIDENCE AFFECTING PARTICULAR CAUSES OF ACTION.
CHAPTEE XII.
'ACTIONS FOR MONEY LENT
1. Grounds of action. 12. Defendant's check in favor of plaintiff.
2. Delivery of money not enough. 18. Defendant's check drawn on plaintiff.
3. Direct testimony to loan. 14. Defendant's receipt.
4. Delivery to third person. 15. Plaintiff's check.
6. To which of several was credit given. 16. Plaintiff's account books.
6. Request. 1*7. Character in which the parties dealt.
*7. Authority of agent. 18. Connected and collateral agreements.
8. Parties to joint adventure. 19. Mortgage.
9. Joint debtors. 20. Medium of repayment.
10. Written evidence, j 21. Defenses Disproof of loan.
11. Due bill. 22. Illegality.
1. Grounds of action.'] Under modern practice, to sustain an
action for money lent, an actual loan should be proved ; that is, it
must appear that money or its representative * passed between the
parties, or was advanced by plaintiff to a third person on the
request of defendant, and on his express or implied promise to
repay it. 2
2. Delivery of money not enoughJ] Proof of the delivery by
plaintiff of money or checks to the defendant is not enough with-
out something to characterize the act as a loan. 3 Delivery of
money is presumed, in the absence of other evidence, to be in
1 Compare Glyn v. Hertel, 8 Taunt. 208 ; Howard v. Danbury, 2 C. B. 803 ;
Litchfield v. Irwin, 51 N. Y. 51.
8 At common law a count for money lent was often sustained by proof of a note
in the hands of an indorsee, or by other evidence not showing a loan between the
parties. Under the Code the question is, does the pleading correctly state the essen-
tial legal elements in the transaction ; and if there be a variance, has defendant been
misled to his prejudice. See Briggs v. Vanderbilt, 19 Barb. 222; and paragraph
10 (below).
Welch v. Seaborn, 1 Stark. 474.
[289]
240 ACTIONS FOR MONEY LENT/
payment of an obligation. 1 But very slight evidence indicating
that defendant received it as a borrower is enough to go to the
jury and sustain a finding that the transaction was a loan. 2
3. Direct testimony to loan.~\ A witness may testify directly
to the fact that he lent, or made a loan, 8 subject of course to cross
examination as to the details ; but the facts being brought out, the
opinion of the witness is not competent for the purpose of prov-
ing that it was a loan. He cannot testify that he " considered
it" such. 4
4. Delivery to third person^] It is not necessary to show that
the money was paid into defendant's hand. 5 Proof that it was
disbursed as he directed will suffice. Thus evidence that he,
being indebted, requested plaintiff to pay the creditor, and prom-
ised if he would do so to repay him, is appropriate, 6 although
it would equally well sustain an action for money paid to de-
fendant's use. So money paid in pursuance of defendant's re-
quest to pay it to a third person, or his request to advance such
sums to his wife as she might call for, is recoverable as a loan to
defendant, if the credit was given to him. 7 But proof of a loan
made to the third person exclusively, though at the request of
the defendant, is not enough to sustain an averment of a loan to
defendant. 8
5. To which of several was credit given. When there is un-
certainty on the evidence as to whether the loan proved was
made to one or other of several persons, that is to say, whether
credit was given to one or another, a witness who was present
and an actor in the transaction may be asked on whose credit 9
1 Fleming's Exr. v. McLain y 13 Penn. St. 177, and cases cited ; Fish v. Davis, 62
Barb. 122; Bogert v. Morse, 1 N. Y. 377; Sayles T. Olmstead, 66 Barb. 590. As to
the evidence of distinction between a loan or advancement, see p. 151 of this vol.
8 Thus the testimony of a witness that defendant several times " got money and
checks" of plaintiffs decedent, is not enough to sustain a verdict that they were got
by way of loan. Fleming's Exr. v. McLain (above). Nor is the admission of de-
fendant that " he had had money" of the plaintiff. Bogert v. Morse (above). But
where, after defendant had made such admission to the witness, the witness said
plaintiff " told me to speak to you about it," and defendant turned -away without
replying, this was held sufficient evidence that it was a loan to sustain the verdict.
Id. So where plaintiff and defendant were at the races, and defendant having lost a
bet, plaintiff handed him money in reply to his request for money, a verdict finding
a loan was sustained. Lawton v. Sweeney, 8 Jur. 964. As to evidence of the rea
gestce for this purpose, see paragraph 15.
8 Cole v. Varner, 31 Ala. 244.
4 Saltmarsh v. Bower, 34 Ala. 613, 620.
6 Wade v. Wilson, 1 East, 195.
8 Hamilton v. Starkweather, 28 Conn. 138.
1 Stevenson v. Hardy, 3 Wils. 388, s. c. 2 W. Blackst. 872, modifying in effect
Marriott v. Lister, 2 Wils. 141.
8 Butcher v. Andrews, 1 Salk. 23.
' Bank v. Kennedy, 17 Wall. 19. But the authorities are not uniform. See Chap-
ter on MONEY PAIO.
ACTIONS FOR MONEY LENT. 241
it was made ; or, in other words, what was the purpose and
intent of the payment ; subject, of course, to cross-examina-
tion as to the elements involved in his answer. 1 So the
lender may, in connection with the facts, testify to his intent to
give credit to defendant. 2 But in either case the witness's opin-
ion, as distinguished from a statement of the fact, is not compe-
tent. 8 The entry made by him in his check book, at the time of
drawing his check: for the money to be lent, may be proved by
him as part of the res gestce,.* After his death the entry is ad-
missible without his testimony. 5
6. Request] The request relied on to characterize the trans-
action as a loan, must be proved to have come from the defend-
ant, or his authorized agent. Proof of the actual application of
the fund to his use, without anything tending to show recogni-
tion or ratification on his part, is not enough. 6 The one making
the payment may testify that it was made in consequence of the
request. 7 Evidence of the request may be corroborated by evi-
dence of defendant's contemporaneous declarations of intent to
make the request. 8
7. Authority of agent.'] Where the request was made
by an alleged agent, the authority of the agent cannot be
proved by nis declarations made to the plaintiff on obtaining
the loan. 9 Nor where a loan is obtained by a husband upon
promissory notes made by his wife can his authority to pledge her
separate estate for their payment be proved by his declarations. 10
Testimony, in general language, that the one who borrowed
was agent of the defendant and acted as such, is not enough to
prove his authority to bind his principal by borrowing. 11 Even
proof of special authority to buy goods, is not sufficient evidence
1 To make an exception to such a question available the grounds should be stated
as that the witness is not shown to have the means of knowledge; and that the
question is framed so as to call for a mental conclusion instead of a fact. 67 N.
Y. 651. See also Chapter XIV, paragraph 19.
2 Danforth v. Carter, 4 Iowa, 230 ; and see Chap. XIII, paragraph 19.
3 Id.
4 Stark v. Corey, 45 111. 431. Compare Peck v. Von Keller, 76 N. Y. 604.
4 N. Y. Dyeing, Ac. Establ. v. Berdell, 68 N. Y. 613.
6 Kelley v. Lindsey, 7 Gray (Mass.) 287 ; Henry v. Wilkes, 30 N. Y. 562. Com-
pare Perkins Y. Dunlap, 5 Greenl. 268, which is sustainable as an action for money
paid to defendant's use rather than for money lent. So if a lender agrees to take and
does take the express written promise of A., the fact that the money waa applied to
the joint use of A. <fe B. will not establish their joint liability for a loan. Underbill
v. Crawford, 29 Barb. 664.
I See Sweet v. Tuttle, 14 N. Y. 465. But the authorities are not uniform. See
Chapter on MONET PAID.
8 Clark v. McGraw, 14 Mich. 139, 149.
Starin v. Town of Genoa 23 N. Y. 489 ; e. p. Deck v. Johnson, 4 Abb. Ct
App. Dec. 815. For rules applicable to master's borrowing for ship in foreign port,
see The Grapeshot, 9 Wall. 138, and cas. cit. ; The Emily 8<>uder. 17 Id. 666.
10 Deck v. Johnson, 1 Abb. Ct. App. Dec. 497; Second Nat. Bank v. Miller, 2 N.
Y. S. Ct. (T. <fe C.) 104.
II Perkins v. Stebbins, 29 Barb. 523; and see Kent v. Tyson, 20 N. EL 121.
16
242 ACTIONS FOR MONEY LENT.
of authority to borrow the money with which to buy. 1 But if the
money has been actually mingled with defendant's funds, or ap-
plied to his use, very slight evidence of recognition and adoption
on his part will suffice. 2 Evidence that the money actually and
beneficially went into defendant's possession, and was retained
after demand, dispenses with necessity of other evidence of special
authority in the agent. 8 If the agent had authority to borrow,
the misapplication of the money by him is not relevant, 4 unless
plaintiff was connected with it. Where the question is whether
the agent's authority extended to borrowing, defendant may be
held liable by evidence that he had held out the agent as author-
ized by previously ratifying repeated transactions of the same
sort. 5
8. Parties to joint adventure.'] In respect to the power of
one to borrow for all, there is a distinction between a firm (where
the power depends on familiar principles of the law of partner-
ship) and a combination of persons having merely a joint owner-
ship of property, or even an interest in a joint adventure or
enterprise. Proof of joint ownership of property does not alone
suffice to establish authority in one of the owners to borrow
money on the credit of the others, even for the benefit of the
property. 6 Nor does proof that several were engaged together in
a joint adventure, as distinguished from a partnership, suffice. 7
In such cases there must be express authority, or circumstances
from which authority may be inferred, or ratification. 8
9. Joint debtors.'] The request of one of several joint debtors
who are apparently all principals, although it may suffice to sus-
tain an action for money paid, 9 will not suffice to sustain an ac-
tion for money lent ; for one of several joint debtors, who is a
1 Bank of Indiana v. Bugbee, 1 Abb. Ct. App. Dec. 86 ; Martin v. Peters, 4 Robt.
434.
8 See Gill v. Gillingham, 1 F. <fc F. 284; Hearne v. Keene, 5 Bosw. 579. Especi-
ally now that parties can testify. 1 Daly, 327. Approval of an advance to pay
dutips for an agent doea not imply authority in the agent to borrow. Tucker v.
Woolsey, 6 Lans. 482.
3 Merchants' Bank v. State Bank, 10 Wall. 644; Gold Mining Co. v. National
vBank, 96 TT. 8. (6 Otto), 640, 644.
4 City Bank of New Haven v. Perkins, 4 Bosw. 420.
6 Kelley v. Lindsey, 7 Gray (Mass.) 287 ; Bank of Auburn v. Putnam, 1 Abb. Ct.
App. Dec. 80; Hammond v. Varian, 64 N. Y. 398. Where such transactions came
to the knowledge of the lender before the loan, and he acted on the faith of them,
the defendant is liable also on the ground of estoppel. The cases where it has not
appeared that the lender had any knowledge of such transactions, are not in harmony
It depends somewhat on the nature of the agency, and sometimes, in part, on the
usages of business. See, for instance, 8 N. Y. 167, 41 Me. 382, 56 N. Y. 583, rev'g
1 N. Y. S. Ct. (T. <fe C.) 247. As to whether, where a son borrows in his father's
n'ame, and there is no direct proof of agency, the fact of the father having paid other
debts contracted by Ids son is admissible for the purpose of charging him, com-
pare 56 N. Y. 836, rev'g 7 Lans. 381 ; and 54 N. Y. 398.
' See Mumford v. Brown, 6 Cow. 475.
* Moss v. Jerome, 10 Bosw. 220 ; Alger T. Raymond, 7 Id. 426.
8 See Chapter VII.
Elmendorf v. Tarpon, 5 Johns. 176.
ACTIONS FOR MONEY LENT. 243
principal as between himself and the others, has no implied au-
thority to borrow money for all jointly to pay the debt. 1
10. Written evidence.] The law recognizes the general usage
of men, in lending money, to take written evidence of it ; 2 and
this is one reason why proof of the mere delivery of money without
writing is presumed to be payment of an obligation, not a loan.
Under modern procedure, the question whether the action should
be for money lent or on the written contract, is not vital ; and if
the defendant is not surprised, the court should disregard a vari-
ance. 3 If plaintiff took an express written agreement, and it is
void for reasons not inherent in the loan itself, or if it has been
rescinded, he may sue for money lent, ignoring the express agree-
ment. 4 But if the plaintiff relies on a written promise to repay,
he cannot resort to parol evidence to enable himself to recover
otherwise than according to its tenor ; nor against other parties
than those bound by the writing ; 5 except that if the agreement
is non-negotiable and not under seal, he may give parol evidence
to charge the undisclosed principal of the signer, 6 or to show him-
self the real party in interest though not named in the paper. If
the agreement is to pay according to the terms of another writing
referred to without reciting its terms, the other writing must
be produced or accounted for, 7 but its execution need not be
proved. 8 A written agreement, if any, is the best evidence, and
should be produced or accounted for. Where, however, the writ-
ing was not made as embodying the contract or promise, but was
merely a signature or entry for an incidental purpose, 9 it is not
1 Ib. ; Rolfe v. Lamb, 16 Vt. 514.
* Veiths v. Hagge, 8 Iowa, 187. But the peculiar habit of the lender is not
primarily competent without something to show that the other party dealt with
knowledge of it. Sugart v. Mays, 54 Geo. 554. Where, hewever, plaintiff testified
that he lent the money sued for on a credit of 6 months, without taking a note,
Held, that, as unfavorable inference might be drawn against this statement, from the
length of time, it was competent to allow him to testify that he had frequently be-
fore mad) such loans to other persons. Stolp v. B'air, 68 111. 541.
3 Wright v. Hooker, 10 N. Y. 58 ; and see 54 N. Y. 686, affi'g 4 Daly, 92 ; 3 N.
Y. S. Ct. (T. <fe C.) 443. But a promissory note is not evidence of money lent, except
as between the original parties to it. Rockfeller v. Robinson, 17 Wend. 206, limit-
ing 4 Id. 411. Nor as against one signing expressly as surety. Balcom v. Wood-
rutf, 7 Barb. 13.
4 Thus, on a loan which was in itself valid, the lender may recover, although he
took a security which the borrowers were forbidden by law to issue. Curtis v.
Leavitt, 15 N. Y. 9, 95, 96, 246, 296; Vanatta v. State Bank, 9 Ohio St. 27. So
where the security given has been surrendered by mistake. Baxter v. Paine, 16
Gray (Mass.) 273. Void securities are admissible in evidence for the purpose of
proving that the3' are worthless. Enthoven v Hoyle, 16 Jur. 272.
5 See note 6 (below). But a deposit with banker.*, for which the depositor took
the banker's certificate payable on presentation and indorsement, is recoverable as a
loan, and without indorsement before suit; but it should be in possession ready for
surrender. Umbarger v. Plume, 26 Barb. 4l>l.
* Briggs v. Partridge, 64 N. Y. 362 ; 7 M. <fc G. 690. As to negotiable paper,
compare 1 Wall. 234.
' Alabama, <fec. R. R. Co. v. Nabors, 37 Ala. 489.
8 Smith v. N. Y Central R. R. Co. 4 Abb. Ct. App. Dec 262.
* As where the clerk procured the borrower to write his name in the cash book,
so as to know the correct spelling. Keune v. Meade, 3 Pet. 1, 7.
244 ACTIONS FOR MONEY LENT.
the primary evidence, but the transaction may be proved by
parol.
11. Due ML] An " I. O. U." and a due bill (e. g., Due A.
B. $80 on demand) are competent as evidence of a' loan j 1 but
they are, if unexplained, quite as appropriate in support of an
allegation of an account stated. 2 Evidence identifying the
plaintiff with " U." or " the bearer," is not necessary in the first
instance. 3 It is for defendant to show that the paper was given
to some one else. 4
12. Defendant's check in favor of plaintiff ,~\ A check drawn
by defendant on his banker, in favor of plaintiff, and produced
by plaintiff, is not by itself evidence of a loan by plaintiff, but
rather of a payment to him ; 5 but with evidence, for instance,
that it was drawn on a bank where defendant had no funds, and
was not intended to be presented, but given as a memorandum,
it will support the action. Unless some circumstances are shown
to excuse the omission, 7 there must be evidence of demand and
notice ; 8 but delay therein is not material, unless the drawee has
failed or the drawer otherwise sustained injury by the delay. 9
13. Defendant's checks on plaintiff. ~\ Checks drawn by the
defendant upon the plaintiffs, his bankers, and paid by them, are
not alone evidence of money lent by them. 10 There must be proof
of such a state of the accounts as to show that the checks rep-
resent money lent. 11
14. Defendants receipt^} Upon the same principle defend-
ant's simple receipt for money, without indicating it as a loan, is
competent, but by itself wholly insufficient to support the action. 11
15. Plaintiff's check. ~\ Where a check drawn by plaintiff in
favor of defendant is relied on as evidence of the payment, the
1 Hinsdale v. Eells, 3 Conn.. 37 7 ; Hay v. Hide, 1 D. Chip. (Vt.) 214 ; s. p. 12 Ad.
A E. 641. So is a memorandum check. Turnbull v. Osborne, 12 Abb. Pr. N. S. 200.
Otherwise of a mere conditional promise to pay a sum of money, without importing
any consideration. Morgan v. Jones, 1 C. <fc J. 1 62.
2 See Fessenmayer v. Adcock, 16 M. & W. 449; 1 Esp. Cas. 426; and see L. R. 1
C. P. 297 ; L. J. 10 Q. B. 43.
* Fessenmayer v. Adcock (above).
4 Curtis v. Rickards, 1 M. & G. 46.
6 Pearce v. Davis, 1 Moody <fe Rob. 365.
6 Cushing v. Gore, 15 Mass. 69 ; Currier v. Davis, 111 Id. 480 ; and see Carter v.
Hope, 10 Barb. 180.
I As that the drawer had no funds there. Reddington v. Gilman, 1 Bosw. 235.
8 Pearce v. Davis, 1 Moody <fc Rob. 365.
9 Murray v. Judah, 6 Cow. 484.
10 White v. Ambler, 8 N. Y. 170, B. p. Reddington v. Gilman, 1 Bosw. 235.
II The bank books are not competent for the purpose. White v. Ambler (above).
And the testimony of a clerk, speaking in general terms and from recollection, with-
out the production of the books, that at the time they were drawn the defendant's
account was greatly overdrawn, is not enough. Fletcher v. Manning, 12 Mees. <fc
W. 571. See p. 52 of this vol.
" McFailand v. Strip, 17 Ark. 41 ; and see 3 J. J. Marsh. 37.
ACTIONS FOR MONEY LENT. 245
check being produced from plaintiff's custody, though with
marks of cancellation by the bank, is not alone evidence that the
money was received by the defendant, unless it was payable to
his order, and indorsed by him. If- it be payable to bearer, it is
necessary to give some evidence tending to show that defendant
received the money. 1 If the books of the bank or a pass-book
are relied on, they should be proved by their production (or by
the production of a copy of the entries, where that is allowed by
law*), and by producing the clerk who made the entries, 8 or ac-
counting for his absence, and proving his handwriting. Proof
that the money was actually paid to the defendant on plaintiff s
check will not, however, alone support the action ; for, like a re-
ceipt, it is only evidence of the payment of money which pre-
sumptively is in satisfaction of a debt, and not a loan. 4
16. Plaintiff's account looks.'] The plaintiff's accounts are
not in general admissible as independent evidence that money
was paid, 5 much less that a payment was a loan. Where plaintiff
himself testifies to the loan, his own entry of the fact of pay-
ment, made contemporaneously with the fact, and as part of the
res gestce, is admissible upon that ground. 6 Where the plaintiff
or other person making the entry is not examined as a witness,
the entries in plaintiff's books are not in general competent evi-
dence of the payment. 7 In some States, however, the parties'
1 Patton v. Ash, 7 Serg. & R. 125; Fleming's Ex"r v. McLain, 13 Pa. St. 177.
See also Beasley v. Crossley, 3 Bing. 430. The entry in the check book that it was
drawn to defendant, is not alone enough. Freeman v. Kelly, Hoffm. 90, and see 3
Pick. 96.
* As in case of a foreign corporation, see p. 62 of this vol. n. 10. Compare
Merrill v. Ithaca R. R. Co. 16 Wend. 686.
3 Patton v. Ash (above). 'See 7 Gray, 191, and Chap, on PAYMENT.
4 Cary v. Gerrish, 4 Esp. Cas. 9 ; Aubert v. Walsh, 4 Taunt. 293 ; Fleming's ExY
v. McLain (above). Proof of a check drawn by plaintiffs, and payable to and indorsed
by defendant, and paid and produced by plaintiffs, who are bankers, together with an
envelope indorsed by defendant with a memorandum describing the note, and enume-
rating securities, is sufficient evidence to go to the jury to establish a loan. Union
Trust Co. v. Whiton, 9 Hun, 657.
There is some conflict in the cases as to whether the rule of res gettce will not jus-
tify the admission of declarations of the plaintiff, made at the time of delivering the
money or drawing the check, as evidence that he intended a loan and not a payment, -
although made in the absence of the defendant. In some cases such declarations have
been excluded, on the ground that, defendant being absent, they did not bind him.
But the better view is that such declarations are competent for the purpose of char-
acterizing the act on the part of the plaintiff, it being understood that proof that he
intended a loan is not sufficient to support the action without additional evidence
proper to bind the defendant. Huntziger v. Jones, 60 Penn. St. 170.
The effect of such declarations, like the effect of the act itself, may depend upon
evidence yet to be given. This principle is fully sustained in Beaver v. Taylor ( 1 Wall.
637), where plaintiff was allowed to give in evidence the letters of his correspondent
who made payments on his behalf, and the entries which plaintiff thereupon made in
his own books, not as matters binding the defendant, but as part of the res ge*ta> nec-
essary to the complete proof of the act of the plaintiff in making the payment.
6 Unless the defendant is shown to have had access, and assented, liimes v.
Barnitz, 8 Watts (Penn. ) 89, 47.
6 The law making parties competent does not exclude their books.
' Low v. Payne, 4 N. Y. 247; Veiths v. Hagge, 8 Iowa, 184 ; Maine v. Harper, 4
Allen (Mass.) 116.
24:6 ACTIONS FOR MONET LENT.
own books are admissible for small sums, with certain suppletory
proof. 1 The reason why the parties' own books are not admitted
to prove loans is, that they are not the usual method of preserv-
ing evidence of loans, and an exception, therefore, to the rule
excluding them has recently been recognized in the C&se of the
books of bankers and others, where there is evidence that the
payment of money constituted, at the time the charges were
made, the ordinary business of the party, and that the charges in
question were made in the ordinary course of that business/
IT. Character in which the parties dealt.~] Where the action
is by a person suing in his individual right, and the proof is
of a debt due him in his representative capacity or conversely,
the plaintiff cannot recover without an amendment in this respect,
unless the case is such that a payment to the plaintiff will protect
the defendant irrespective of the variance. 8
18. Connected and collateral agreements.'] "Where the loan
was made upon a promise to repay or to give security for repay-
ment, which is void by the statute of frauds, 4 as well as where a
stipulation for a term of credit was obtained by fraud of the bor-
rower, 5 or upon a condition which remains unperformed (as dis-
tinguished from an alternative contract), 6 or upon a special agree^
ment for security which has been wholly rescinded by the parties, 1
the loan may be recovered without regard to the special agree-
ment, and plaintiff may prove the fraud, etc., though not alleged,
as part of the. res gestce* If the lender received a collateral
security, this fact does not suspend his remedy ; 9 and, he need not
prove an offer to return it before suit ; it is enough that he holds
it ready to be surrendered ; 10 but, if it be negotiable paper, and
indorsers or other parties contingently liable have been dis-
charged, it must appear that they were not discharged by neglect,
1 See the chapter on SALES OF GOODS, Ac.
8 Cummings v. Hill's Adm'r, 35 Iowa, 253. But in the courts where such evidence
SB received, it should appear that, from the nature of the transactions or course ot
dealing, or other circumstances, that the case falls within the general principle which
justihe-i the admission of the party's own books in other cases, namely, that better
evidence is not obtainable. Younaj v. Jones, 8 Iowa, 219.
3 Thus, defendant cannot defeat a recovery by showing that the funds were held
by the lender in a trust capacity, and that he had no power to loan them, unless de-
fendant shows also that by reason of a successor in the trust having already been
appointed, or otherwise, a payment to the plaintiff will not protect the defendant.
See also chapters on EXECUTORS AND ADMINISTRATORS, OFFICERS, RECEIVERS, AND
TRUSTEES.
4 Swift v. Swift, 46 Cal. 266 ; Binion v. Browning, 26 Mo. 270.
6 Nelson v. Hyde, 66 Barb. 59.
6 Bristow v. Needham. 9 Mecs. <fe W. 729.
7 James v. Cotton, 7 Bing. 266.
8 Nelson v. Hyde (above). Compare Peck v. Root. 5 Hun, 547 ; French v. White,
6 Duer, 254.
9 Brengle v. Bushey, 40 Md. 141, s. c. 17 Am. R. 586; Lewis v. U. S. 92 U. S. (2
Otto), 623, and cases cited.
10 Scott v. Parker, 1 Q. B, 809; Lawton v. Newland, 2 Stark. 73.
ACTIONS FOR MONEY LENT. 247
or at least that defendant has lost nothing by such neglect. 1 If
the lender has entered into an agreement for satisfaction or pay-
ment which has failed by default of the borrower to fulfill it, or
was vitiated by fraud on his part, the lender may recover in dis-
regard of such agreements. 3
19. Mortgage.'] Where a mortgage of real or personal
property is taken to secure payment, ii a written acknowledgment
of a debt on the part of the defendant is embodied in it or
taken with it, the lender may recover thereon without first en-
forcing the mortgage. 3 But where the only writing expresses
that the mortgage was for the purpose of securing a sum specified,
not indicated to be a debt, the mortgagor is presumptively
not personally liable. 4
20. Medium of repayment.'] Where there is an express
promise to repay in a particular currency e, g., to pay so many
" dollars " parol evidence is not admissible to prove that any
other than lawful money of the country was intended, unless the
contract is shown to have been made in a country where another
currency or currency using that designation for coin of a differ-
ent value, was authorized. In such case parol evidence is admis-
sible to explain what was intended, 5 and to prove the equivalent
value. 6
21. Defenses / Disproving loan.~\ If the making of any loan
whatever by plaintiff is denied, 7 evidence of his poverty at the time
is competent as tending to disprove it. 8 But upon the question
1 Marston v. Boynton, 6 Mote. (Mass.) 127.
9 We-tcott v. Keeler, 4 B<>sw. 664; Arnold v. Crane, 8 Johns. 79.
8 Elder v. Rouse, 15 Wend. 218.
4 Culver v. Sisson, 3 N. Y. 264 ; Weed v. Covill, 14 Barb. 242 ; and see 1 Duer,
890. To the contrary, Coor v. Grace, 10 Smedes <fe M. (Miss.) 434; and see 4 Q. B.
182. And in such case it has been held that parol evidence that the transaction was
aloan is inadmissible. Waite v. Dimick, 10 Allen, 364. See 1 N. Y. R. S. 738, 139.
6 Thoringt >n v. Smith, CHASE, Ch. J., 8 Wall 1.
e As to what kind of evidence of intention would suffice, see Confederate Note
Case, 19 "Wall. 648, 659. Proof of promise to pay in Indian currency, no variance,
under declaration alleging promise to pay in lawful money of Great Britain. Har-
rin-ton v. MacMorris, 6 Taunt. 2'28. See, as to valuation, Story Confl. of L. 310;
Rice v. Ontario Steamboat Co. 66 Barb. 384; Gunther v. Colin, 3 Daly, 125; Col-
ton v. Dunham, 2 Pai^e, 2o7 ; Stranaghan v. Youman, 65 Barb. 392 ; R. S. of U. S.
35G4, 3505 ; Schmidt v. Ilerfurth, 6 Robt. 124.
1 As to distinction between loan and gift, see Hick v. Keats, 4 B. <fc C. 71 ; Hill
V. Wilson, L. R. 8 Ch. 888, and p. 151-155 of this vol.
8 Dowling v. Dowling, 10 Ir. C. L. 23C ; Darling v. Westmoreland, 52 N. H. 401,
S. c. 13 Am. R. 56, and cases cited. Whether the alleged borrower may support his
denial by proof that he had no need to borrow is disputed ; but where he has been
allowed to do so, the other party may rebut it. Thus where defendant testified
he had no need to borrow, he had received money from A., proof that, on the con-
trary, after the alleged loan he remitted money to A. is competent Stolp v. Blair,
68 111. 541. On the question whether the money used to pay off an incumbrance on
defendant's property was lent to him or to the person who assumed to act as his
agent in receiving and applying it, defendant may prove that, as between them the
debt was the debt of such agent, Henry v. Wilkes, 31 N. Y. 662.
248 ACTIONS FOR MONEY LENT.
whether the loan was made to the defendant or another person,
evidence of the insolvency or poverty of the defendant is not
competent for the purpose of showing that the credit was prob-
ably not given to him/ unless it appears that something passed
between the parties on the subject of pecuniary responsibility. 2
Where, however, such evidence has been admitted as a circum-
stance tending to show that he borrowed it, is competent for
him to show in rebuttal that he borrowed for his wants from
another person. 8 Evidence of the defendant's declarations at
about the time of the transaction, as to his pecuniary affairs, are
not admissable ; 4 nor is the fact that he made no entry in his
books. 5
22. Illegality.'] To defeat the action on the ground that the
loan was made in execution or in furtherance of an illegal pur-
pose, it is not enough to show that the lender knew of an illegal
purpose of the borrower in respect to the application of the
money when borrowed, unless the lender shared the intent. 6
For the purpose of establishing such intent, parol evidence is
competent in contradiction or variance of a writing. 7
The borrower's abandonment of the purpose, without any
change or act on the part of the lender, does not render the ille-
gal loan valid so that the lender can recover. 8 Where the loan
was made by transferring a thing in action, founded on a consid-
eration illegal or contrary to public policy as between the orig-
inal parties, or a fund which was the proceeds of an illegal trans-
action in which the borrower and the lender were previously
engaged, the plaintiff may nevertheless recover, if the loan was a
new transaction the assent to which did not involve assent to the
previous illegal contract. 9
1 See chapter on Money Paid. To make an exception on this point available it
should be specific. 61 N. Y. 630.
* Second Nat'l Bank v. Miller, 2 N. Y. S. Cfc. (T. & C.) 107 ; and see 63 N. Y. 639 ;
Green v. Disbrow, 56 N. Y. 336, rev'g 7 Lans. 381.
3 Burlew v. Hubbell, 1 Supm. Ct. (T. <fe C.) 235.
4 Douglass v. Mitchell, 35 Penn. St. 440, 415.
Id.
6 Bond v. Perkins, 4 Heisk. (Tenn.) 364 ; and see Gregory v. Wilson, 36 N. J. 315,
8. c. 13 Am. R. 448 ; Earl v. Clute, 2 Abb. Ct. App. Dec. 1.
7 1 Greenl. Ev. 330, note.
8 Kingsbury v. Fleming, 66 N. C. 524.
9 Wintermute v. Stinson, 16 Minn. 468 ; Hamilton v, Canfield, 2 Hall, 526 ; Plan-
ters' Bank v. Union Bank, 16 Wall. 483 ; and see Brooks v. Martin, 2 Wall. 81.
CHAPTER XIII.
MONET PAID TO DEFENDANT'S USE.
1. Grounds of action. 11. by oral evidence.
2. Previous request or previous promise 12. by producing defendant's order in
to reimburse. favor of third person.
3. Parol evidence to vary a writing. 13. by plaintiffs checks or accounts.
4. Subsequent promise to reimburse. 14. by the payee's receipt, or surren-
6. Agent's action against principal. der of evidence of debt.
6. Obligation to pay what defendant 16. Judgment against plaintiff in action
ought rather to have paid. of which defendant had notice.
7. Surety's action against principal or 16. Medium of payment.
co-surety. 17. Amount.
8. Implied promise to indemnify. 18. Source of the fund paid.
9. Action between parties to negotiable 19. Object and application of the payment.
paper. 20. Demand and notice.
10. Proof of payment. 21. Defences.
1. Grounds of action. 1 '] Plaintiff must showing payment 8 of
money or its representative, to the use of defendant ; and an ex-
press or implied assent on the part of defendant to the making
of the payment ; 8 which is usually proved by either (1) a previous
request, or (2) a subsequent promise to reimburse, or (3) legal
compulsion on plaintiff to pay what defendant ought to have
paid, or (4) other circumstances showing that he did not officiously
volunteer, but was justified in making the payment without express
assent ; and then the law is said to imply a request or promise. 4
1 The action was often resorted to at common law, as a substitute for a bill in
equity, and was encouraged wherever equity would compel defendant to repay to
plaintiff money the latter had been compelled to pay for his benefit. Chan. WAL-
WORTFI, Wright v. Butler. 6 Wend. 290.
* Under a complaint for money paid, evidence to charge defendant as indorser or
guarantor cannot be received. Cottrell v. Conklin, 4 Duer, 46.
3 Thus, if an officer holding process against a defendant, voluntarily pays it him-
self, he cannot recover the amount from defendant (Jones v. Wilson, 3 Johns. 434 ;
Beach v. Vanden burgh, 10 Id. 361); but, if he pays it at the request of the defend-
ant, he may recover it. Leonard v. Ware, 4 N. J. L. (1 South.) 160; Moseley v.
Boush, 4 Rand. (Va.) 392.
4 For instance, a party met to dine at a tavern, and after dinner all but one left
without paying, whereupon he paid for all, and he was allowed to recover. 8 East,
614. So where a wife dies in the absence of her husband, one who humanely pays
the necessary funeral expenses may recover them of the husband. Bradshaw v.
Beard, 12 C. B. N. S. 844, and cases cited. See, also, Exall v. Partridge and En-
gland v. Marsden, paragraph 6, note 1. The rule forbidding recovery by an officious
volunteer has lost much of its intended efficacy to prevent one man from constituting
another his debtor without the latter's consent, since, in most cases of pre-existing
liability, one may now take an assignment and sue as assignee. In that case the ac-
tion will not be for money paid, but on the original demand. The rule still applies
(1) where the demand was not assigned but satisfied, (2) where it wns not assignable
in its nature, (3) where it was contracted or created only by plaintiffs act. Where
[249]
250 MONEY PAID TO DEFENDANTS USE.
If the facts which thus raise an implied request or promise are
alleged, an allegation of the request or promise is not necessary. 1
2. Previous Request, or previous Promise to Reimburse.'] It is
not necessary to prove that the request or promise was formally
expressed ; it may be inferred from circumstances, 2 and the rela-
tion of the parties (principal and agent, for instance) 8 often sup-
plies the place of a specific request.
If the request or promise was made by a third person, there
must be something to show that he was authorized to bind the de-
fendant. 4 Where several persons are associated for a common
purpose, but not being partners, a request made by one to ad-
vance money for the benefit of all is enough, if there be circum-
stances from which his agency for the others may be inferred 5
"Where a previous request is proved, it is not necessary to
prove that the payment was beneficial to the defendant ; he is
equally liable whether it discharged a debt of his or constituted
a loan or gift to a third person. 6 The evidence must bring the
payment within the scope of the request. 7
the demand was assignable, and the evidences of it were delivered up to plaintiff, an
assignment may be presumed, in furtherance of justice, if there was any privity be-
tween plaintiff and defendant. See p. 2 of this vol. ; and, for instances, Duffy v.
Duncan, 32 Barb. 587; Mills v. Watson, 1 Sweeny, 374.
1 Farron v. Sherwood, 19 N. Y. 227; Cobb v. Charter, 32 Conn. 358; Pomeroy
on Rem. 517, <fec., and cases cited.
4 Thus, where the plaintiff accompanied the defendant when the latter was making
a purchase, and said in his presence, to the shopkeeper, " if he does not pay for it I
will," and defendant was silent, it was held that, although the promise was void for
not being in writing, yet plaintiff having paid, as in honor bound, on defendant's de-
fault, his payment might be deemed made at defendant's request. Alexander v.
Vane, 1 M. & W. 511.
3 Paragraph 5.
4 Burdick v. Glass Co. 11 Vt. 19; McElroy v. Melear, 7 Coldw. (T.) 140; Martin
T. Peters, 4 Robt. 434. See last chapter.
6 Whether the mere relation of joint contractors in an enterprise is enough to
make the request of one support an action for money paid for all is not agreed.
Tradesman's Bank v. Astor, 11 Wend. 87 ; Porter v. McClure, 15 Id. 191 ; Chrisman
V. Long, 1 Ind. 212; and see Bassford v. Brown, 22 Me. 9 ; Moss v. Jerome, 10 Bosw.
220. The true principle seems to be that among persons who have consented to
share a common responsibility, there is prima facie authority in each from each
other to discharge the common burden. Add. on Contr. Bk. 2, ch. 8, 2. The dis-
tinction is between authority to incur liability which is not presumed and author-
ity to discharge any liability duly assumed. See pp. 188 and 189 of this vol. and
notes. Thus, where several persons jointly employ attorney or counsel (Edger v.
Enapp, 6 Scott N. R. 713), or agree on an arbitrator without fixing the liability for
expenses, and one pays the expenses in order to take up the award, he may recover
one half. Mnrsack v. Webber, 6 Hurls. & N. 1.
6 Brittain v. Lloyd, 14 M. <fc W. 762; Emery v. Hobson, 62 Me. 578, s. c. 16 Am.
R. 513. But if the payment was solely for the benefit of the plaintiff himself, as
where A. promised B. to share the costs of a suit on beh'alf of B. if B. would bring it,
and it did not appear that A. could have had any interest in the result, Held, that
B. could not recover on the promise without proof that his bringing the suit was in-
duced by the promise. Knox v. Martin, 8 N. II: 154.
7 Thus to charge defendant on a promise to pay what may be needed for the support
of a minor, beyond his wages, there must be proof that he needed the money paid.
Merritt v. Seaman, 6 N. Y. 168.
MONEY PAID TO DEFENDANT'S USE. 251
3. Parol evidence to vary a writing.'] If the plaintiff proves
a written contract with defendant, which expressly or in effect
required plaintiff to bear the expense in question, plaintiff cannot
prove a parol agreement made at the same time, that the defend-
ant would pay it ; * but he may prove such an agreement made
prior to the written obligation, unless it be such as was merged
in the latter. 2 So he may prove a parol request or promise not
contradicting or varying the legal effect of the instrument,
though it formed the consideration, 8 or a usage which adds another
term to the agreement. 4 In other words, the entire agreement may
be proved, notwithstanding a part of it was reduced to writing. 5
So ne may prove a parol request orpromise made as a condition
of delivering the instrument. 6 Where an express promise is
proved, the tact that, at the time of making it, the parties agreed
to reduce it to writing, but never did so, does not defeat the ac-
tion. 7
4. Subsequent Promise to reimburse.'] "Where the plaintiff's
payment was wholly voluntary or officious, he may recover on
proof of a promise to reimburse, founded on sufficient consid-
eration. There is sufficient consideration within this rule, if the
precedent payment was beneficial to defendant, 9 or if it dis-
charged a legal obligation against him, or if it discharged what
the law recognizes as a moral obligation. 10 It is not essential to
1 Thus where builders, in order to complete work they had contracted in writing
to do, paid a license fee, held that they could not give parol evidence of a contem-
poraneous promise of the employer to pay it. They must perform their written
contract. If the}' were not bound to make the payment, they would be justified in
ceasing work because of his neglect to pay it. Thorp v, Ross, 4 Abb. Ct. App. Dec.
416, WOODRUFF, J.
9 Thus one of several jointly bound, or one of several co-sureties, suing another
for indemnity, may prove a parol agreement made at or prior to their written obliga-
tion, that defendant would indemnify him. Barry v, Ransom, 12 N. Y. 462; Robison
v. Lyle, 10 Barb. 512.
3 See linger v. Jacobs, 7 Hun, 220, and cases cited.
4 See, for this principle, Broom's Phil, of the Law, 83, <fec., and cases cited; Seago
v. Deane, 4 Bing. 459.
6 See Hope v. Balen, 58 N. Y. 380, affiv 35 Super. Ct. (J. & S.) 458. Compare
Johnson v. Oppenheim, 55 N. Y. 280, affi'g 35 Super. Ct. (J. & S.) 440; Brewers'
Fire Ins. Co. v. Burger, 10 Hun, 58, and cases cited.
6 See Remington v. Palmer, 62 N. Y. 31, rev'g 1 Hun, 619, s. c. 4 Supm. Ct. (T.
<fc C.) 6H6.
1 Stover v. Flack, 30 N. Y. 64.
8 An express promise, made not to the plaintiff, but to another person who was
privy to the transaction, is enough. Hassinger v. Solms, 5 S. it 11. 4. But a mere
admission to a stranger is not.
9 Thus if one by mist >ke pays his neighbor's tax, this is a good consideration for
a promise by the latter to repay. Nixon v. Jenkins, 1 Hilt. 318; but plaintiff
must prove a legal tax. Weinberger v. Fauerbach, 14 Abb. Pr. N. S. 91. The de-
fendant's promise to repay one who< volunteered to pay an execution may be im-
plied from the defendant's insisting on the payment as satisfaction, and having the
execution quashed in consequence. Roundtree v. Holloway, 13 Ala. N. S. 357.
10 As to what constitutes a moral obligation, see Gtmlding v. Davidson, 26 N. Y.
604, rev'g 28 Barb. 438, and cases cited ; "Freeman v. Robinson, 9 Vroom, 383. s. o.
20 Am. li. 3&9. If the original consideration was beneficial, and plaintiff w.ia le-
252 MONEY PAID TO DEFENDANTS USE.
show an express promise, except where the only consideration was
a moral obligation ; but the promise may be inferred by the jury
from an account rendered to which no objection was made. 1 A
promise made by one of several former partners after dissolution
is not enough as against the others. 2 In the case of joint debtors
not partners, a promise by one is not enough as against the
others to revive a legal obligation once barred.*
5. AgenCs action against principal^ A request or agency is
not presumed from the mere fact that plaintiff paid defendant's
debt ; 4 and agency being shown, 5 the agent must show payments
pursuant to his instructions or within his authority. In an action
lor money paid he cannot recover for property bought by him-
self as his own, and afterward transferred to account of his prin-
cipal. 8 On the question whether the act of the agent was done
gaily liable to pay, defendant's subsequent promise to repay will sustain an action,
although it was made after he had once been wholly exonerated. Hassinger v.
Solms, 5 S. <fe R. 4.
1 See Quincey v. White, 63 N. Y. 370, and cases cited ; Coe v. Button, 1 Serg. <k
R. 398; McLellan v. Longfellow, 34 Me. 552.
* Baker v. Stackpoole, 9 Cow. 420; Van Keuren v. Parmelee, 2 N. Y. 523; Me-
Elroy v. Melear, 7 Coldw. (T.) 140. But see for authorities contra, p. 219 of this vol.
* Lewis v. Woodworth, 2 N. Y. 512. Whether it is enough in any other case, see
p. 189 of this vol.
4 Stephens v. Broadnax, 5 Ala. N. S. 258.
6 As to how far circumstantial evidence of agency is competent, see Richards v.
Millard, 56 N. Y. 674, rev'g 1 Supm Ct. (T. & C.) 247. The agency, though it be in
the purchase of land, may be proved by parol. Baker v. Wainwright, 36 Md. 336.
Compare Levy v. Brush, 45 N. Y. 589, rev'g 8 Abb. Pr. N. S. 418. The fact that
plaintiff acted as ship's husband is sufficient prima fade evidence of his appointment;
and if an owner relies on his refusal to be answerable for expenses incurred, he must
show that his notice was given before the work was commenced. Chappell v. Bray,
6 H. <fe N. 145.
6 Field v. Syms, 2 Robt. 35, s. p. Beck v. Ferrara, 19 Mo. 30. Not even on proof
of a usage of his trade to do so, not shown to be known to defendant. Day v.
Holmes, 103 Mass. 306.
According to Hoy v. Reade, 1 Sweeny, 626, an a-jent employed to purchase
goods, and suing to recover his advances and charges, makes a prima facie case by
proof of a purchase pursuant to principal's direction, the amount expended therefor,
and the disbursements, charges and commissions, and that the same were necessary
and usual; and if, before action brought by the agent, he has wrongfully converted
the goods purchased, such conversion does not defeat the action, unless the principal,
if he still remain the owner of the property, counter-claims the value. According to
the opinion of MILLER, J., in Rosenstock v. Tormey, 62 Md. 169, s. c. 3 Am. R. 125,
in a stockbroker's action to recover deficiency on resale by him, on his principal's
default, of stock bought on his order, plnintiff must prove actual purchase and notice
to defendant thereof given at a time when he or his agents had the stock or the
proper indicia of title actually in hand and ready to be delivered ; and that, upon
such notice and request for payment of price and commissions, the defendant did not
pay for the stock, and that, after reasonable time and giving notice of intent to re-
Bell, the stock was actually sold, either at public auction or at a sale publicly and
fairly made at the stock exchange or board where such stocks were usually sold, at
its fair market price on the day of sale. It is not necessary to prove a tender, nor
to prove a resale at a public stock board [citing 25 Md. 242] ; but while evidence of
the usage of dealers in stocks is admissible, (if the broker was not limited to a speci-
fied authority,) to show the manner in which the order may be performed, it is not
admissible to set up against one not shown to be cognizant of the usage, a usage
MONEY PAID TO DEFENDANT'S USE. 253
in good faith in pursuance of his supposed duty, the information
and advice upon which he acted is competent as part of the rea
grestce. 1 For the purpose of showing the manner of executing the
defendant's order, the plaintiff's instructions to those by whom
lie carried it out, his letters to a sub agent &c., are competent in
his own favor as part of the res gestae? If it is shown that he
acted in good faith, supposing that he was acting under the in-
structions and for the interest of his principal, the latter, if he
received the benefit of the transaction, must show that, when he
was informed of the act, he gave notice of his repudiation of it
within a reasonable time. 8 vVliat is a reasonable time is a ques-
tion for the court, if the facts are undisputed ; but if the- evi-
dence is conflicting, it is a mixed question of law and fact, and
the court should instruct the jury upon the several hypotheses
insisted on by the parties. 4 Costs and expenses for which the
agent has been held liable to third persons, when acting in good
faith and without fault, on behalf of his principal, he may pay
and recover from the latter without proof of a special request
or authority to pay them. 5 The fact of advances having been
shown, an account rendered by plaintiff to the defendant stat-
ing their amount, and not objected to by the defendant, is
prima facie evidence of the amount, 6 and throws on defendant
the burden of proving that the advances were less or the fund
on hand greater. 7
6. Obligation to pay what defendant ought rather to have
paid.'] Neither a previous request to pay, nor a subsequent
promise to reimburse, need be proved, where plaintiff shows
which the law deems unreasonable; e. g., a fictitious purchase or sale. Id. The
plaintiff need not show affirmatively that those from whom he purchased were actu-
ally in possession of the stock at the time of the purchase, in order to prevent the
stockjobbing act from rendering the contract void. Genin v. Isaacson, 6 N. Y. Leg.
Obs. 213.
1 See Law v. Cross, 1 Black, 533, 539.
s Rosenstock v. Tormey, 32 Md. 169, s. a 3 Am. R. 131. But his sub-agent's let-
ters to him are not competent primary evidence of the making the purchase. Id.
Compare, however, Beaver v. Taylor, 1 Wall. 637 ; and see 3 Wall. 149 ; Kahl v.
Jansen, 4 Taunt. 565 : Fairlie v. Hastings, 10 Ves. 128; Betham v. Benson, 1 Gow.
45; Langhorn v. Allnutt, 4 Taunt. 611.
3 Law v. Cross, 1 Black, 633 ; Hoyt v. Thompson, 19 N. Y. 218.
4 Wiggins v. Burkham, 10 Wall. 129.
8 Stocking v. Sage, 1 Day, 622, SWIFT, Ch. J. ; Powell v. Trustees of Newburgh,
19 Johns. 284, SPENCER, Ch. J. ; and see Douglas v. Moody, 9 Mass. 548. If the lia-
bility arose by reason of the agent's mistake of law and consequent error in duty in
a matter which the employer properly trusted to him, he cannot recover. Capp v.
Topham, 6 East, 892. Otherwise if it was imposed by law on him, and it was by his
delay that the principal became directly liable. Hales v. Freeman, 4 Moore, 2 1 ;
Bate v. Payne, 13 Ad. <fe E. N. 8. (Q. B.) 900.
6 Mertens v. Nottebohms, 4 Gratt. (Va.) 163, 168, 173. So an account of sales
made, and rendered to one of the parties to a joint adventure, by the consignee and
common agent of both parties to sell, is admissible in the action of the former against
the other party, for money paid, to prove the loss. Peltier v. Sewall, 12 Wend. 386.
1 Ledoux v. Porche, 12 Rob. 543.
254: MONEY PAID TO DEFENDANT'S USE.
that, either by compulsion of law, or to relieve himself from
liability, or to protect himself from damage, he has been obliged
to pay what defendant himself ought to have paid. 1 The most
common instances of this kind are where a surety or one entitled
to indemnity 2 pays the obligation of the defendant and sues for
reimbursement, or where one of several joint obligors, having
paid the whole debt, sues his co-obligors for contribution. In
this class of cases, the fact that plaintiff was legally required
to pay defendant's debt, stands in the place of request or prom-
ise. But it is not enough to prove that plaintiff paid under the
mistaken supposition that he was legally liable. 3
7. Surety's action against principal or co-surety. ~] If the in-
strument in which several persons are bound to another describes
some of them as sureties for others, or if the signatures of some
state that they are sureties for others, this is prima facie evi-
dence, as between the obligors, of their relation. 4 If the signa-
ture of one does not indicate for which of several signing abso-
lutely he is a surety, it may be presumed, in the absence of other
evidence, either in the tenor of the instrument or in the extrinsic
circumstances, that he was surety for all previously signing. 5 But
between the parties who are either principals or sureties, the
question of suretyship in a written instrument is open to parol
proof. 6 Such evidence does not vary the instrument, but is col-
lateral to it, simply showing the relation of the parties. 7 Hence,
1 Bailey v. Bussing, 28 Conn. 455. The leading case on the general principle is
Exall v. Partridge, 8 T. R. 314. There plaintiff, at defendant's request, left his coach
in defendant's possession, and while there it was lawfully distrained by defendant's
landlord for non-payment of rent, and plaintiff paid the rent to secure his carriage,
and recovered it of defendant. But in England v. Marsden, L. R. 1 C. P. 529, the
owner of furniture, for his own advantage in letting it, left it on the defendant's
premises, and it was distrained in the same manner. Held, that his payment of the
rent was not compulsory within the rule. So, where a part owner of lands is obliged
to pay the tax on the whole, to protect his share, he may recover from the other
owners their just proportion, without showing any assent on their part. Graham v.
Dunnigan, 2 Bosw. 516 ; but if the tax collector pays a man's tax, he cannot recover
it without some evidence of the assent of the latter. Overseers of Wallkill v. Over-
seers of Mamakating, 14 Johns. 87.
s If there is a written obligation to indemnify, the action will usually be upon
that, and not an action merely for money paid to defendant's use.
3 Bancroft v. Abbott, 3 Allen (Mass.) 524; Whiting v. Aldrich, 117 Mass. 582.
But one who, under the mistaken supposition that he is a trustee, pays money for the
estate, may be entitled to reimbursement. Morrison v. Bowman, 29 Cal. 337. And
one who by mistake or ignorantly pays defendant's debt, may recover it, if de-
fendant had notice and suffered.it to be done. Ely v. Norton, 2 Abb. Ct. App. Dec.
19.
* Harris v. Warner, 13 Wend. 400.
See Sisson v. Barrett, 6 Barb. 199, 2 N. Y. 406.
6 Sisson v. Barrett, 6 Barb. 200, 2 N. Y. 406.
7 Blake v. Cole, 22 Pick. 97; Barry v. Kamson, 12 N. Y. 462; Apgar v. Hiler, 4
Zabr. 812; Ilubbard T. Gurney, 64 N. Y. 457, and see 11 Moak's Eng. R. 41, n. ;
Monson v. Blakely, 40 Conn. 652, s. o. 16 Am. R. 94. The reason of "the rule for-
bidding parol evidence to vary a writing, viz. : that the parties may be presumed
to have embodied all the terms of their contract in the writing, cannot justly apply
MONEY PAID TO DEFENDANTS USE. 255
parol evidence is competent to show that one who signed without
qualification was in fact surety, and for whom ; t and that one who
signed with qualification was in fact a principal ; 2 and that one
who signed as surety generally was a co-surety with one who signed
without qualification, 3 or that he signed under promise of indem-
nity.* Such evidence is admissible alike in support of an action
by one claiming to be surety, for reimbursement ; or by one claim-
ing to be co-surety, for contribution ; and in defense of one sued
as principal, for contribution, and claiming to be surety ; or sued
as co-surety, and claiming to be indemnified. 5 The promise to
indemnify may be proved by parol, for it is not a promise to
answer for the debt, &c., of a third person, within the meaning
of statute of frauds. 6 For this purpose evidence of declarations
made either at the time of negotiating the loan, or at the time of
signing the obligation are equally competent as part of the res
gestce? It is not enough for a surety to show that he became
surety voluntarily without the request or assent of the alleged
principal. 8 Evidence of defendant's admission that plaintiff was
his surety is competent ; but to charge several defendants (not
partners), such admission or declaration of one made in the ab-
sence of the others is not competent against the others, unless
there is something to show that the declarant had authority to
speak for them. 9
When the relation of suretyship or of co-suretyship is shown,
the law implies the promise to reimburse 10 or to contribute. 11 A
co-surety may recover full indemnity, but not without proof of
to the arrangements between several parties upon one side as to how they will
bear the resulting; liability, as among themselves, unless the contract manifest an
intention to define their relations toward each other.
1 Robison v. Lyle, 10 Barb. 512, HARRIS, J. ; Mohawk <fe Hudson R. R. Co. Co. v.
Costigan, 2 Sandf. Ch. 306.
2 Robson v. Lyle (above) ; see also Sisson v. Barrett, 6 Barb. 199.
3 Sisson v. Barrett (above).
4 Barry v. Ransom, 12 N. Y. 462.
B Same cases.
6 Barry v. Ransom, 12 N. Y. 462; Horn v. Bray, 51 Ind. 555, 8. o. 19 Am. R.
742, and cases cited. Contra, Bissig v. Britton, 69 Mo. 204, s. o. 21 Am. R. 379. So,
an agreement between two separate indorsers that if one will pny in goods the other
will reimburse him, may be proved by parol. Sanders v. Gillespie, 59 N. Y. 250 ;
affi'g 64 Barb. 628.
Robison v. Lyle, 10 Barb. 512, HARRIS, J., 1851 ; 8. p. 12 K Y. 462, DENIO, J.
8 Gager v. Babcock, 48 N. Y. 154 ; McPherson v. Meek, 30 Mo. 345 ; Carter v.
Black, 4 Dev. <fe B. L. 426. But tacit assent is enough. Alexander v. Vane, 1 M. <fc
W. 511. The requirement of the law that a creditor should give security for the
support of a debtor imprisoned on his execution, if the debtor make oath of his own
inability, has been held sufficient to enable a creditor, paying pursuant to security
BO given, to recover of the debtor. Plummer v. Sherman, 29 Me. 655.
Warner v. Price, 8 Wend. 397, and see p. 188 of this vol.
10 Holmes v. Weed, 19 Barb. 128; Vartie v. Underwood, 18 Id. 561. If there are
several principals, the liability of either to the surety is not qualified by evidence
that, as between the principals, the one was not liable for the whole debt. Westcott
V. King, 14 Barb. 32.
11 Norton v. Coons, 3 Den. 130, and cases cited.
256 MONEY PAID TO DEFENDANTS USE.
an agreement, 1 or a request and benefit raising an equity which,
under the circumstances, is equivalent. 3 Mere evidence that
plaintiff became co-surety at defendant's request is not enough. 8
It is enough for the surety to prove that his payment was under
a fixed legal liability ; he need not prove legal compulsion to
pay, as by suit brought; 4 nor need he show, to charge a co-surety
for contribution, that the principal is unable to pay. 5 The im-
plied promise may be rebutted by circumstances/ The mere
fact that the defendant became surety at the request of plaintiff
is not, however, sufficient to rebut the presumption of a promise
to contribute ; 7 nor is the fact that he did not sign till a long
time after the other parties were bound ; 8 but evidence that
that the plaintiff, upon requesting the defendant to join, express-
ly promised to indemnify him, 9 or that he should be put to no
loss, 10 or evidence that plaintiff received a personal benefit from
the execution of the obligation, as where the money raised went
into his hands, 11 is sufficient to exonerate the defendant from lia-
bility to contribute.
8. Implied promise to indemnify. ,] If plaintiff incurred the.
liability by innocently complying with the request or direction
of the defendant, (whether he was the agent of defendant, or
not 1S ), in an act which would have been lawful if plaintiff had the
right or authority which he claimed or assumed, the law implies
a promise on defendant's part to indemnify plaintiff. No such
promise is implied when plaintiff knew the act was illegal. 14
Where the wrong done consisted in negligence merely, plaintiff,
who has been obliged to pay, may recover, on proof that, as be-
tween him and defendant, the latter was the one actually negli-
gent, and the former only constructively liable therefor. 15 In
either class of cases, the judgment against plaintiff and defend-
ant, holding them jointly liable to the third person, and which
1 McKee v. Campbell, 27 Mich. 497.
* See Daniel v. Ballard, 2 Dana (Ky.) 296.
3 McKee v. Campbell (above). Contra, see Byers v. McClanahan, 6 GilL & T.
499.
4 Mauri v. Heffernan, 13 Johns. 58 ; compare Stone v. Hooker, 9 Cow. 154.
5 Goodall v. Wentworth, 20 Me. 322. Contra, Atkinson v. Stewart, 2 B. Monr.
848.
6 Bagott v. Mullen, 32 Ind. 332, s. c. 2 Am. R. 351.
7 Id. (disapproving Chit, on Cont. 669, and see note 10, on p. 255, of this voL
8 In this case, eight months. McNeil v. Sandford, 3 B. Monr. (Ky.) 11.
9 Thomas v. Cook, 8 B. <fe C. 728 ; Cutter v. Emery, 37 N. H. 567. See Garner v.
Hudgins, 46 Mo. 399, s. c. 2 Am. R. 520.
10 Apsjar v. Hiler, 4 Zabr. 812.
11 Daniel v. Ballard, 2 Dana (Ky.) 296, s. p. 21 Pick. 196, 32 Ind. 832, 8. c. 2
Am. R. 355.
JS Howe v. Buffalo, Ac. R. R. Co. 37 N. Y. 297, affi'g 38 Barb. 124.
13 Dugdale v. Lovering, L. R. 10 C. P. 196, 8. c. 12 Moata Eng. R. 816.
14 Peck v. Ellis, 2 Johns. Ch. 181 ; Miller v. Fenton, 11 Paige, 18.
" Gray v. Boston Gas-Light Co. 114 Mass. 149, s. c. 19 Am. R. 324.
MONEY PAID TO DEFENDANT'S USE. 257
judgment plaintiff has paid, may be explained by parol evidence
to show the relation of the parties to the tort. 1 If the verdict or
judgment which plaintiff has paid was in an action against both,
or against one and defended at his request by the other, or de-
fended by plaintiff, after notice and request to defendant to as-
sume its defense, it is evidence against defendant of the amount
of damages. 8
9. Action between parties to negotiable paper.'] An action on
the bill or note is founded directly on the instrument, and a re-
lease or other discharge, though given before maturity, may bar
the action. 3 But an action for money paid on it, is on a cause of
action which did not arise until the payment, and which consists
in the right of one paying money for the benefit of another, pur-
suant to his request or direction, to have it refunded ; 4 and al-
though the negotiable paper, pursuant to the terms of which the
payment was made, may be part of the necessary evidence, 5 the
contract sued on does not inhere in the paper, but exists outside
of it ; and variance in the description of the paper is but of tri-
fling importance. 6 Presumptively the right to claim re-imburse-
ment arises in the inverse order in which the names of the par-
ties appear on the paper. 7 The promise to re-imburse may be
proved by parol, though contradictory to the apparent relation
arising from the paper ; as where an accommodation maker sues
the payee, 8 or an accommodation acceptor sues the drawer. 9 So
a parol agreement made between indorsers at the time of indors-
ing, that they will shar*e any liability thereon, may be proved, to
support an action by one against the other for contribution.
Proof that an acceptance was made without funds rebuts this
presumption arising from the order of names on the paper, and
raises the presumption of such a promise by the drawer to re-im-
burse. This latter presumption again is rebutted by evidence
that the acceptance was by express agreement for accommodation
1 Bailey v. Bussing, 28 Conn. 455 ; Armstrong County v. Clarion County, 66 Penn.
St. 218, 8. o. 5 Am. R. 368.
2 See Inhabitants of Westfield v. Mayo, 122 Mass. 100, 8. o. 23 Am. R. 292 ;
Grand Trunk Rw. Co. v. Latham, 63 Me. 177.
3 Cuyler v. Cuyler, 2 Johns. ] 86.
4 Wright v. Garlinghouse, 26 N. Y. 639.
6 Id.
Cameron v. "Warbritton, 9 Ind. 351.
7 Watson v. Shuttle worth, 53 Barb. 357 ; Sweet v. McAllister, 4 Allen, 853.
8 Seymour v. Minturn, 17 Johns. 175.
Wright T. Garlioghouse (above) ;. Ross v. Espy, 66 Penn. St. 481, 8. o. 5 Am. R.
894 ; Phillips v. Preston, 6 How. U. S. 278. But such a parol agreement between
maker and indorser is not competent for the purpose of showing that the indorser is
not entitled to recover against the maker, if the indorser was under no legal obliga-
tion for the consideration, and refused to contract except in that form. Crater v.
Binninger, 45 N. Y. 645, affi'g 54 Barb. 155. To charge one who signed as surety
for the drawer, there must be some evidence that he was a party to the request to
accept for accommodation. Wright y. Garlinghouse, 26 N. Y. 639, rev'g 27 Barb.
474.
17
258 MONEY PAID TO DEFENDANTS USE.
of the payees, or other parties who were to be looked to for pay-
ment. It is only in the absence of an express agreement that the
law implies a promise on the part of the drawer. 1 In the action
for money paid, evidence of demand and notice of non-payment
is necessary to charge the defendant if it would have been neces-
sary in an action against him by the same plaintiff directly upon
the bill or note itself ; 2 otherwise not. But a judgment recov-
ered by a former holder against the defendant is competent evi-
dence from which to infer that he had notice. 3
10. Proof of Payment] To sustain this action (as distin-
guished from an action on a contract to indemnify from liability,
&c.), actual payment must be shown.* Proof of the mere incur-
ring of liability* is not sufficient, 5 even as to incidental items, 6 nor
is it made sufficient by the fact that the creditor accepted the
plaintiff's ^obligation in discharge of the defendant's liability, 7 un-
less the new obligation was negotiable paper. 8
11. J)y oral evidence] A witness of the fact of payment
may testify to it, and, if an actor in the transaction, to the pur-
pose and object of it, under the same restrictions as in the case
of a loan. 9 But he must speak from his knowledge of the trans-
action, not from that subsequently derived from receipts or other
memoranda. 10 But memoranda of payment, made by the witness
at or presently after the time, may be used by him in testifying,
and thereupon put in evidence. 11 If it be proved that a receipt
was given, it need not (unless the receipt .of a public officer) be
produced or accounted for in order to let in oral evidence of the
fact of payment, 13 unless its terms become material. Evidence of
the oral admissions or declarations of the payee is not competent
against the defendant, 13 unless there is something to connect the
1 Thurman v. Van Brnnt, 19 Barb. 410, HAREIS, J.
8 Wilbur v. Selden, 6 Cow. 162.
3 Hamilton v. Veach, 19 Iowa, 419. Even though plaintiff was not a party to
the action in which the judgment was had. Keeler v. Bartine, 12 Wend. 110. Com-
pare Beck v. Hunter, 3 La. Ann. 641.
4 But under an agreement to pay personal ' expenses on a journey, such expenses
as he avoided by means of facilities personal to himself, may be proved. Moore v.
Remington, 34 Barb. 427.
5 Amslie v. Wilson, 7 Cow. 662.
Whiting v. Aldrich, 117 Mass. 582.
' The giving of a bond, though accepted in satisfaction, is not enough (Maxwell
v. Jameson, 2 B. <fc Aid. 51, and cases cited; Gumming v. Hackley, 8 Johns. 202;
Ainslie v. Wilson, 7 Cow. 662) ; nor is a bond and warrant of attorney (Taylor v.
Higgins, 8 East, 169); nor indorsing a bill given to make a compromise and release
defendant's property (Douglas v. Moody, 9 Mass. 543) ; nor even the fact that plaintiff
has been charged in execution (Powell v. Smith, 8 Johns. 249).
* See p. 263 (below).
9 Pages 240, 241 of this vol.
10 Keith v. Mafit, 38 111. 303; and see Scarborough v. Reynolds, 12 Ala. 252, 263.
11 See p. 261 (below).
" Berry v. Berry, 17 N. J. L. 440 ; Jackson v. Stackhouse, 1 Cow. 122.
13 See Gandolfo v. Appleton, 40 N. Y. 533.
MONEY PAID TO DEFENDANT'S USE. 259
defendant with him, or with the declaration offered, or unless the
declaration was part of the res gestce of an act properly in evi-
dence. 1
12. by producing defendant's order in favor of third per-
son.] The production from plaintiff's possession of an order or
draft for the money, shown to have been executed by defendant, 8
and payable to a third person specified therein, 3 and which is shown,
or may be presumed to have been previously in the possession of
the payee (and this is presumed in the case of a draft or order
in the common form, but not in the case of a letter or note ad-
dressed to the plaintiff), is prima facie evidence of payment ac-
cording to its tenor by the plaintiff, 4 although it be not indorsed nor
accompanied by a receipt. 5 The presumption may, however, be
rebutted by evidence of facts tending to explain the possession as
acquired without payment, as, for instance, proof of a usage to
leave drafts with the payee, for acceptance, in which case the
question whether the plaintiff's possession is evidence of payment
is one for the jury/ The order is not, however, evidence of
payment of plaintiff's money to defendant's use, but is presump-
tively evidence of payment from funds of defendant inferred to
be in plaintiff's hands. There must be some evidence to rebut
this presumption. 7
13. ty plaintiff's check or accounts.] The same rules ap-
ply in proving payment by check, as in an action for money lent. 8
Evidence of defendant's admission, even by silence, when he was
told by plaintiff that he had sent a check, is competent to go to
the jury, although the payment be one not presumably within the
personal knowledge of defendant, especially after great lapse of
time. 9
1 See p. 245, note 4.
2 Lane v. Farmer, 13 Ark. (Eng.) 63.
3 Zeigler v. Gray, 12 Serg. <fe R. 42. Compare Close v. Fields, 9 Tex. 442, 13
Id. 623, 2 Id. 232 ; where the same rule was applied to a draft with the payee's
name in blank.
4 Blount v. Starkey, 1 Tayl. N. C. 110, s. c. 2 Hayw. 75 ; Succession of Penny, 14
La. An. 194, 2 Greenl. Ev. 475, 519.
5 Zeigler v. Gray (above). If a receipt be indorsed, its execution should be
proved, but if the omission to prove it is not objected to, the effect of the possession
of the order as evidence of payment is not impaired. Weidner v. tichweigert, 9
Serg. & R. 385.
' Close v. Fields (above).
7 Alvord v. Baker, 9 Wend. 323. Where it is the usual course of business for a
factor to accept bills drawn by his principal and return them to him, to be used for
raising money as he pleases, the factor's possession of such bills bearing the blank
indorsement of the principal, is sufficient prima facie evidence of ownership to enable
the factor to recover from the principal the money paid thereon at maturity, in the
absence of proof of an unlawful diversion. Rice v. Isham, 4 Abb. Ct. App. Dec. 37.
8 Pages 244-246 of this vol. Proof of a check drawn by plaintiff in favor of A.,
and paid to A., is evidence of payment, without proof that plaintiff delivered the
check to A. Mountford v. Harper, 16 M. <fc W. 825.
Price v. Burva, 6 Weekly R. 40.
260 MONEY PAID TO DEFENDANT'S USE.
14. by the payee's receipt or surrender of evidence of debt.]
Where there is no evidence connecting the plaintiff's request
or obligation with the particular person to whom the payment
was made, as, for instance, in the case of an agent's purchases
in. the market, or payments for necessaries, tlie receipt or other
admission of the payee is not alone competent evidence of the pay-
ment, as against defendant ; * for the payee or other witness should
be produced ; 2 but it is admissible in connection with other com-
petent evidence of the fact of payment, such as evidence that
plaintiff's check was sent to, and received by, the payee, and that
the receipt was given in consequence, 8 and as part of the trans-
action. 4 If the payee is not living, however, his receipt is com-
petent, as a declaration against interest. 5 On the other hand,
when the person to whom the payment is made is designated by
the contract of the defendant, as in case of an order in favor of
such person, 6 or is pointed out by law, as in case of a payment
of taxes 7 or for public lands, 8 then the receipt of such person, its
execution being duly proved, is competent evidence 01 the fact
of payment. Hence, where the payment was in discharge of a
pre-existing liability of defendant (such liability or his admission
of it being of course otherwise proven), the appropriate evidence
of that discharge, as between him and the payee, is competent
evidence against him and in favor of the plaintiff. 9 If the debt
paid subsisted in a written instrument, shown to have been in
possession of the payee thereof, 10 the plaintiffs production of
the instrument, with the written receipt, if any, (its execution by
the payee being duly proved if required,) is competent evidence
1 Cutbush v. Gilbert, 4 Serg. & R. 555; Roll v. Maxwell, 6 N. J. L. (2 South.) 493.
Compare Steph. Dig. Ev. 37.
2 Printup v. Mitchell, 17 Geo. 558 ; Davidson v. Berthoud, 1 A. K, Marsh. (Ky.)
353.
s Carmarthen, &c. Rw. Co. v. Manchester, <fec. Rw. Co. L. R. 8 C. P. 685;
Leatherbury v. Bennett, 4 Harr. & M. 392.
* Davis v. Shreve, 8 Litt. (Ky.) 260 ; Keykendall v. Greer, 3 Coldw. (Tenn.) 463 ;
Dunn v. Slee, Holt N. P. C. 399 ; Harrison v. Harrison, 9 Ala. 73.
6 Davies v. Humphreys (6 Mees. & W. 153, 8. c. 4 Jur. 250), even if plaintiff
might but does not testify (Middleton v. Melton, 10 B. & C. 317, 825) ; and has even
been held evidence of all material facts stated in it, e. ^.,that the debt was originally
incurred for the benefit of one of the joint debtors. Davies v. Humphreys (above).
8 Paragraph 12 (above).
7 Hall v. Hall, 1 Mass. 101. One who sues for re-imbursement for paying by mis-
take an assessment on his neighbor's land, must give some evidence of a legal assess-
ment (Weinberger v. Fauerbach, 14 Abb. Pr. N. S. 91); otherwise as to regular an-
nual taxes (Bowman v. Downer, 28 Vt. 532 ; and see Hall v. Hall, 1 Mass. 101, where
the judges were equally divided on the point).
* Cluggage v. Swan, 4 Binn. (Penn.) 150; and see Russell v. Whiteside, 5 HI. (4
Scam.) 7.
9 See Sluby v. Champlin, 4 Johns. 461. Satisfaction of a decree may be proved
without producing a copy of the decree itself. Davidson v. Peck, 4 Mo. 438.
10 Mygatt v. Pruden, 29 Geo. 43.
MONEY PAID TO DEFENDANT'S USE. ' 261
of payment. 1 And, in any case, the receipt given by the payee
is competent evidence of the fact of payment whenever there is
other evidence connecting defendant with the payee and the debt
paid, as, for instance, where defendant requested plaintiff to
settle for him with a specified creditor, 2 or where the payment
was of a joint obligation of both parties, 8 or a debt for which
plaintiff was bound as surety. 4
W hen the receipt of the payee is thus competent, it is prima
facie sufficient evidence of payment, without producing or ac-
counting for the the absence of the payee.
If the one who gave the receipt is produced, he may use it to
refresh his memory, or to testify from, and the receipt then
becomes admissible, independently of any other ground of
competency, if it was made by the witness at or presently after
the time of payment. 5
15. Judgment against plaintiff in action of which defendant
had notice.'] When the money sued for was paid, pursuant to a
judgment recovered by the third person against plaintiff, the
judgment is competent evidence against the defendant to prove
the fact of the judgment and the sum paid. If the action was
1 See Jessup v. Gray, 7 Blatchf. 332 ; Bayne v. Stone, 4 Esp. 13 ; Bracken v.
Miller, 4 Watts & S. 102, 112; Chandler v. Davis, 47 N. H. 462; even without
plaintiffs testimony. Mills v. Watson, 1 Sweeny, 374. Contra, Mills v. Hyde, 19
Vt. 59. And is the best evidence, and should be produced or accounted for unless
defendant has admitted the payment and expressly or tacitly promised to re-imburse
it, in which case the burden may be thrown on him to prove the instrument. Chap-
pell v. Bray, 6 H. & N. 145.
2 Sherman v. Crosby, 11 Johns. 148; approved in 3 Wall. 148. The person to
whom performance of an act is agreed to be made, is competent to acknowledge such
performance. Fenner v. Lewis, 10 Johns. 38. Whether the principle stated in the
text applies to receipts of firm creditors in favor of one who assumed to pay the firm
debts generally, is not well settled. Newell v. Roberts, 13 Conn. 63; Scott v. Rus-
sell, 36 Geo. 484.
3 Ballance v. Frisbie, 3 111. (2 Scam.) 63. Contra, Thomas v. Thomas, 2 J. J.
Marsh. 60, 64; Ford v. Smith, 5 Cal. 314.
4 Prnther v. Johnson, 3 Harr. <fe J. 487 ; approved in 3 Wall. 149 ; Sluby v.
Champlin and Mills v. Watson, cited above. Receipts by the holder of a note, en-
tered on an execution issued at his suit against plaintiff as indorser, are competent to
prove payment as against the maker. Garnsey v. Allen, 27 Me. 866. But a mere
receipt of the sheriff is not evidence that plaintiffs payment discharged the execution
against the defendant. Stone v. Porter, 4 Dana (Ky. ) 207. In the case of money
charged in the accounts of one acting in a trust capacity, the receipts of the payees
are sufficient, especially if the payees are dead or beyond jurisdiction. Shearman v.
Atkins, 4 Pick. 283 ; approved in 3 Wall. 148, as authority for treating them as
primary evidence. The tax collector's receipts are higher evidence of the adminis-
trator's payment of taxes on the estate, than the testimony of a witness to the fact
of payment. The witness's testimony is not competent if the receipts can be pro-
duced. Hall v. Hall, 1 Mass. 101. The production of the bond to the collector, on
which plaintiff was surety, with the collector's receipts, are competent, and prima
facie sufficient. Sluby v. Champlin, 4 Johns. 461.
5 See McCormick v. Pennsylvania Central R R. Co. 49 N. T. 303, rev's 3 Alb. L.
J. 129; Lathrop v. Bramhall, 64 N. Y. 865 ; Halsey v. Sinsebugh, 15 Id. 485, 489.
As to case of contfmporaneous memorandum by another witness, or contemporaneous
declaration of witness to supply what he has since forgotten, see Shear v. Van Dyke,
10 Hun, 528.
MONEY PAID TO DEFENDANT'S USE.
defended by the plaintiff, 1 the judgment is evidence of the facts on
which it was founded, in the following cases, viz., if defendant was
joined with plaintiff as a co-party in the action ; 2 or had agreed to
abide the result, or covenanted against the consequences of such
an action ; 3 or was primarily liable as the one for whose debt or
actual default the action was brought, 4 and had notice from de-
fendant of its pendency, and reasonable opportunity to assume
the defence if he desired. 5 In these cases the judgment recov-
ered is conclusive evidence against the present defendant, both as
to the damages and costs. 6 In other cases of actions against plaintiff
alone, the judgment paid, with proof of the relation of suretyship
or indemnity, is competent pmma facie evidence of the amount
due from defendant, 7 although mere be no provision to that
effect in defendant's contract.
Since the principal is not presumptively bound by the judg-
ment, as he was not a party to the action, the surety, to make it
evidence against him, is bound to show aliunde that it was rendered
against him upon a transaction against which the principal was
bound to indemnify him. 8
The same rules apply whether the judgment was foreign or
domestic. 9
1 Otherwise, of a judgment confessed, note 3 (below).
9 Davidson v. Peck, 4 Mo. 438 ; Hare v. Grant, 6 Reporter, 183. Whether con-
clusive, see Dent v. King, 1 Geo. 200.
1 Rapelye v. Prince, 4 Hill, 119; Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275, rev'g
V Bosw. 427 ; Thomas v. Hubbell, 15 N. Y. 405. Unless collusion or neglect is shown.
Chapin v. Thompson, 4 Hun, 779. A variance as to the manner in which the suit
was brought is immaterial. Allaire v. Oulard, 2 Johns. Cas. 52. But on a mere gen-
eral promise to indemnify, without referring to suits, a judgment against the plaintiff
does not alone prove defendant's liability.unless he had notice and opportunity to de-
fend. Douglass v. Howland, 24 W end. 35.
Where plaintiff relies merely on a contract of indemnity, and proves that he con-
fessed judgment, the burden of proof is upon him, in his action against his indemnitor,
to show that the creditor was entitled to as much as the amount confessed. And this
is so, although the indemnitee has previously given notice of suit brought to his in-
demnitor, and the latter has neglected to defend it. Stone v. Hooker, 9 Cow. 154.
4 Mayor, <fcc., of v. Troy, Ac. R. R. Co. 49 N. Y. 657, affi'g 3 Lans. 270.
6 Smith v. Compton, 3 B. <fe Ad. 408, approved in 84 N. Y. 275.
6 Beers v. Pinney, 12 Wend. 309, and cases cited ; Fake v. Smith, 2 Abb. Ct. App.
Dec. 76 ; Green v. Goings, 7 Barb. 652. This rule has recently been held not to ap-
ply, where the claim for indemnity is not on contract, but on a breach of trust. Parker
T. Lewis, L. R. 8 Ch. 1056, s. c. 7 Moak's Eng. 529. What is sufficient notice is not
well settled. All authorities agree that reasonable notice under the circumstances is
sufficient. Compare Robbins v. Chicago City, 2 Black, 418 ; 4 Wall. 657; Barmon v.
Lithauer, 1 Abb. Ct. App. Dec. 99 ; Allaire v. Ouland, 2 Johns. Cas. 52. The rule is
different in an action for a breach of warranty. Somers v. Schmidt, 24 Wise. 417,
8.C. 1 Am. R. 191. Whether costs of the former suit can be recovered, unless the
present plaintiff proves he gave notice to the present defendant, is unsettled. De Col-
yar on Guar. 316 ; Pierce v. Williams, L. J. 23 Exch. 322 ; see the N. Y. Stat. of 1858,
c. 314, 3. Where one defends an action for debt, by showing voluntary payment of
the amount to a sheriff holding an execution against his creditor, he must produce not
only the execution and the sheriff's receipt, buj also the record of the judgment.
Handly v. Greene, 15 Barb. 601.
7 Dubois v. Hermance, 56 N. Y. 673, affi'g 1 Supm. Ct. (T. A C ) 293.
8 Konitaky v. Meyer, 49 N. Y. 571. As to successive actions, see 6 Wend. 288.
9 Id.
MONET PAID TO DEFENDANT'S USE. 263
Parol evidence is competent to explain the relation of the par-
ties to the cause of action in the judgment (in a judgment either
upon contract l or for tort 2 ), for the purpose of showing that as
between them defendant was primarily liable. If plaintiff paid
as the surety, &c., of the defendant, in consequence of a suit
against himself, but docs not prove that he gave defendant notice
01 the suit, defendant may show that plaintiff has no claim to be
re-imbursed ; or not to the amount alleged ; or that he made an
improvident compromise and that defendant, had he received
notice, might have done better. 3
16. Medium of pcvyment.~] Under the common law pro-
cedure, proof of the transfer of property, whether land, chattels,
or things in action, accepted by the defendant's creditor, in pay-
ment, as money, is admissible under an allegation of money paid to
defendant's use, 4 but the mere giving of one's own non-negotiable
obligation to the creditor is not, 5 nor is the giving of one's own
negotiable obligation, unless expressly accepted in payment, 6 or
unless wrongfully obtained and actually negotiated, or wrongfully
negotiated in fraud of plaintiff's rights. 7 Under the new pro-
cedure, the payment will usually be alleged as made ; or if, on
the trial, there be a variance in the proof, it will be a question
for the court or referee, whether to disregard or amend it, or
not. If the payment was of a precedent debt, and was made
with negotiable paper, plaintiff may recover on showing, either 8
that the cre.ditor expressly accepted the paper in payment, 9 or
that the paper has been paid. If he proves that even his own
negotiable bill or note was expressly accepted in payment of
defendant's debt, he may recover against defendant without
proving that such paper has been paid. 10 If the payment was by
giving any other obligation binding himself to pay, he must
prove payment on such obligation, 11 unless there was an express
I Davidson v. Peck, 4 Mo. 438, paragraph 8 (above).
8 Paragraph 8 (above).
8 Smith v. Compton, 3 B. A Ad. 408. Compare 34 N. T. 275.
4 Randall v. Rich, 11 Mass. 494; Ainslie v. Wilson, 7 Cow. 662; Garnsey v.
Allen, 27 Me. 306 ; Jones T. Cooke,3 Dev. N. C. Law, 112 ; Ralston v. Wood, 15 III
159, 171 ; Hulett v. Soullard, 26 Vt. 295, 298. Contra, Stroud v. Pierce, 6 Allen
(Mass.) 413. As to value of foreign money, see p. 247. Where plaintiffs, who were
agents to purchase for defendants, proved delivery of their own merchandise to de-
fendants, instead of payment of purchase price, held a total failure of proof. Field v.
Syms, 2 Robt. 35.
6 Cases in note 7, paragraph 10 (above); unless perhaps, if payable to a
stranger. Parker v. Osgood, 4 Gray, (Mass.) 456.
6 Van Ostrand v. Reed, 1 Wend. 424.
7 Bleadon v. Charles, ^7 Bing. 246.
8 See Dunnigan v. Crummey, 44 Barb. 528, and cases cited.
8 Howe v. N. Y. & Erie R. R. Co. 87 N. Y. 297; Bennett v. Cook, 45 Id. 268 ;
Witherby v. Mann, 11 Johns 518.
10 Cnmmings v. Hackley, 8 Johns. 202. As to the presumption whether paper was
accepted in payment, see 13 N. Y. 167, 46 Id. 687.
II And it seems that payment pursuant to such obligation, though even after suit
brought would uustain the action. 9 Mass. 548, 23 Pa. St. 464.
264: MONEY PAID TO DEFENDANTS USE.
promise of defendant, to pay him if lie would incur the ex-
pense. 1
17. Amount."] It has been held that where plaintiff is com-
pelled to pay defendant's debt, and does so by transferring prop-
erty at a valuation, or any sufficient consideration other than money,
which is received by the creditor as of equivalent value, defendant
cannot reduce the recovery bv offering evidence that the prop-
erty was of less value ; for it is enough for him that he was dis-
charged by what his creditor accepted as worth the full amount
of the debt. 2 But if the transaction was a compromise on pay-
ment of a less sum than was due, especially if plaintiff stood
in a relation of trust and confidence, as where he acted as de-
fendant's agent in settling a debt, at less than its full value, or in
a depreciated currency, -he can only recover the sum he actually
paid ; and the same rule applies to a surety. 3
18. Source of the fund paid.'} A money payment shown to
have been made by plaintiff will ordinarily be presumed to have
heen made from his own funds ; but when there is anything in
the relation of the parties or the character in which plaintiff
sues, to allow of doubt, he should be prepared with evidence on
the point. 4 Thus, where a partner is compelled to pay a firm
debt, the presumption is that he pays with firm money. 5 So, ad-
vances made by one of a committee holding funds, are not pre-
sumed to be of his. own money. 6 If co-plamtiffs allege a joint
payment they must show payment out of joint funds, by proof
of partnership or otherwise. 7 The declaration of the person
who paid the money, made at the time of paying it, as to whose
fund it was, is competent in his favor, as part of the res gestw?
1 Bullock v. Lloyd, 2 Carr. & P. 119; Smith v. Pond, 11 Gray (Mass.) 234; but
in this case the action was on a promise of indemnity, not for money paid.
8 Garnsey v. Allen, 27 Me. 366. NELSON, J., was of the same opinion in Bonney
v. Seeley, 2 Wend. 482; and this is clearly the sound rule, although in that case the
Supreme Court held that evidence of the actual value was admissible in reduction,
but in that case there does not seem to have been any other evidence of a valuation
than that implied in the consideration mentioned in the deed. s. p. Ealston v. Wood,
15 111. 159, 171 ; Hulett v. Soulard, 26 Vt. 295, 298.
3 Reed v. Morris, 2 Mylne & C. 361.
4 In an action by plaintiff in his private capacity, he may be asked whether the
loan sued for was made as his private transaction, or was his act as a receiver.
Davis v. Peck, 54 Barb. 425.
6 Hill v. Packard, 5 Wend. 375.
6 Bassford v. Brown, 22 Me. 9.
7 Doremus v. Selden, 19 Johns. 213; see also Coffee v. Tevis, 17 Cal. 239.
8 Carter v. Beals, 44 N. H. 408 ; Bank of Woodstock v. Clark, 25 Vt. 308. In
Beasley v. Watson (41 Ala. 234), a guardian's declaration that the payment was his
ward's money was admitted; and see 36 Ala. 670, 10 M. & W. 572. But where
plaintiff was guardian of property of infants, and- administrator of their father's
estate, and made advances to the widow while she waa supporting the wards, held
that evidence that he had no funds as guardian during the period was too remote,
and not competent to show that the advances were his own money. Elliott v. Gib-
bons, 31 N. Y. 67. Compare further p. 240 of this voL, and next chapter.
MONEY PAID TO DEFENDANT'S USE. 265
;
19. Object and application of the payment.'] Where a pay-
ment has been proved to have been made through an agent by
correspondence, the letters of the agent enclosing the receipts,
and the entries thereupon made by the plaintiffs in their ac-
counts, are admissible in connection, as part of the res gestce, to
establish necessary dates, &C. 1 The conversation accompanying
an act of payment, and characterizing it, is admissible as part of
the res gestce, to show the application made of it. 2 And a wit-
ness who was a party to the transaction, and was present and
cognizant of the circumstances, may be asked on whose behalf
the payment was made, and whether it was made in consequence
of the request, and what was its purpose and intent, 3 subject,
of course, to cross-examination. 4 33ut on the question as to
whether the payment was made on the credit of defendant or
another person, evidence of their relative wealth or poverty is
incompetent, 5
20. Demand and notice.'] Where plaintiff sues for contribu-
tion on having paid a joint debt, he need not prove that a de-
mand was made on him before payment ; 6 and where hehas been
sued, he need not generally prove notice of the suit to defend-
ant, except for the purpose of making the judgment recovered
against him prima facie or conclusive evidence of the amount of
defendant's obligation, &c., and of recovering all his costs. 7
Demand on defendant, (which should be proved where he is
not in default without it,) if made solely by letter, should be
1 See Beaver v. Taylor, 1 Wall. 637. This case and those referred to on p. 253,
must be deemed to overrule, to this extent, Jordan v. Wilkius, 3 Wash. 110.
8 Bank v. Kennedy, 17 Wall. 19 ; Bank of Woodstock v. Clark, 25 Vt. 308 ; Allen v.
Duncan, 11 Pick. 308; but not subsequent declarations as narratives of past events,
made by one still living, unless they are the admission of him against whom they are
adduced. Dunn v. Sloe, Holt, N. P. 399. Evidence admitte'l thus as part <>t the resgestce
does not have the effect, if the defendant was absent, to bind him as a representation
by him, unless there is other evidence of the authority of the declarant to represent
him. Second Nat'l Bank v. Miller, 2 Supra. Ct. (T. <fe C.) 107. But it is nevertheless
admissible, for the purpose simply of characterizing the act -of the party present.
See p. 245, note 4. When made by an alleged agent of the absent party, its effect to
bind him as a declaration must depend on evidence of authority.
8 Sweet v. Tuttle, 14 N. Y. 465; Richmondville Seminary v. McDonald, 34 Id.
379 ; Bank v. Kennedy (above). To the contrary see 66 N. Y. 618; 67 Id. 651.
4 See p. 241 of this vol.
5 Wheeler v. Packer, 4 Conn. 102 ; s. P. 56 N. Y. 334 ; rev'g 7 Lans. 381. -on this
point. Second National Bank v. Miller, 2 N. Y. Supra. Ct. (T. & C.) 107; 8. P.
Trowbridge v. Wheeler, 1 Allen (Mass.) 162. In Wheeler v. Packer, (4 Conn. 102),
HOSMER, Ch. J., excludes the evidence, saying aptly '' If poverty will authorize in-
ferences concerning a person's agreement, so will wealth and avarice, mid generosity
and benevolence." Pollock v. Brennnn, (39 Super. Ct. [J. & S.] 477.) on the question
of a sale is not necessarily to the contrary, for there the question was whether a bus-
iness properly belonged to tho husband or wife, aud the very question seems to have
been, to whom did the capital belong ?
Pitt v. Purssford, 6 Jur. Gil.
7 See p. 262, (above). This being a collateral notice, it seems that the written
notice need not be produced or accounted for, unless some question arises on its
terms. See McFadden v. Kingsbury, 11 Wend. 667.
266 MONEY PAID TO DEFENDANT'S USE.
proved by notice to produce the letter, and if defendant does not
comply, by giving secondary evidence of its contents. 1 A letter-
press copy can only be used as secondary evidence, 2 but a dupli-
cate original, written and signed at the same time with the one
sent, is primary evidence, admissible without giving notice to
produce the counterpart. 8 An independent oral demand, though
made at the same time with delivery of a written one, is com-
petent ; 4 but the conversation had with the mere bearer of a writ-
ten demand is not competent without producing or accounting
for the writing. 5 An account in plaintiff's handwriting, pro-
duced from defendant's possession, or otherwise shown to
have been presented to him, is competent to go to the jury ; and,
with the omission to make any objection, is prima facie evi-
dence of the correctness of the items as to amount, &c. 7 If de-
fendant's oral admissions are adduced in evidence, he is entitled
to have the whole statement taken together, to the extent of all
that was said by the same person in the same conversation that
would in any way qualify or explain the part adduced against
him, or tend to destroy or modify the use which the adversary-
might otherwise make of it, but no further. 8 But the jury may
discredit the connected denial, while giving credit to the admis-
sion. 9 The fact that he questioned part of the items only, strength-
ens the presumption that others are correct. 10 His objecting to
the whole account on other grounds, explains the omission of any
objection to the correctness of items, sufficiently to deprive it of
the effect of an admission. 11
21. Defenses.'] If plaintiff proves a request to pay a partic-
ular demand, is no defence that the demand was not legally due,
as for instance where it was a void assessment, or even a contract
usurious on its face j 12 but illegality, such that the act of pay-
ing was illegal, must be shown. 13 Although the claim paid
was not merely void but illegal, and plaintiff knew it, yet if the
money was advanced on a new contract it is recoverable ; 14 though
it would be otherwise if plaintiff was particeps criminis in the
original transaction. 15
1 Weeks v. Lyon, 18 Barb. 530.
2 Foot v. Bentley, 44 N. Y. 166.
3 Hubbard v. Russell, 24 Barb. 404.
4 Smith v. Young, 1 Campb. 439.
6 Glenn v. Rogers, 3 Md. 312.
6 Nichols v. Alsop, 10 Conn. 263.
7 See chapter on ACCOUNTS STATED.
8 Rouse v. Whited, 25 N. Y. 170, rev'g 25 Barb. 279.
9 Craighead v. The State Bank, 1 Meigs, 199. (But not arbitrarily. 1 Abb. Ct.
App. Dec. 111.)
'"Id.
11 Quincy v. White, 63 N. Y. 370.
11 As to the form and effect of denials, see Simmons v. Sisson, 26 N. Y. 264.
13 Mosely v. Boush, 4 Rand. (Va.) 302; McElroy v. Melear, 7 Coldw. (T.) 140.
14 Armstrong v. Toler, 1 1 Wheat. 258.
15 Brown v. Tarkington, 8 Wall 381 ; Pitcher v. Bailey, 8 East, 171. Compare
MONEY PAID TO DEFENDANT'S USE. 267
Defendant may prove in his exoneration that the payment
was from a fund plaintiff held for his indemnity ; * and evidence
that plaintiff received such a fund, 2 or was party to a proceeding
in which he was entitled to it, throws on plaintiff the burden of
accounting for its disposition. 8 The statute of limitations is
available as to any payment, though only a part payment, not
made within the six years. 4
Knowlton v. Congress Spring Co. 5 Reporter, 166, and contrary decision in 57 N.
Y. 618.
1 Gorrpel v. Swinden, 1 D. & L. 888.
4 Fielding v. Waterhouse, 40 Super. Ct. (J. & S.) 42Y, and cases cited. Ramsey
v. Lewis, 30 Barb. 403.
8 Cockayne v. Stunner, 22 Pick. 11Y.
4 Davis v. Humphreys, 6 M. & W. 153 ; De Colyar on G. 318.
CHAPTEE XIV.
ACTIONS TO RECOVER BACK MONEY PAID BY PLAINTIFF TO DE-
FENDANT UNDER MISTAKE, DURESS, EXACTION OR FRAUD, OR
THE CONSIDERATION FOR WHICH HAS FAILED.
1. The payment. 6. Duress or exaction.
2. Mistake. 6. Fraud.
8. Subsequent promise to repay. 7. Failure of consideration.
4. Forged or counterfeit paper.
1. The payment.'] In all these classes of cases the payment
to be proved is usually not a payment to a third person by
plaintiff, as in actions for Money Paid to Defendant's Use, nor a
payment to defendant by a thira person, as in actions for Money
Keceived to Plaintiffs Use, but a payment directly from plaintiff
to defendant, which plaintiff seeks to recall on the ground that
he was under no legal obligation to pay, and that defendant has
no title to the money. The payment should be shown to have
been in money, or that which defendant received as money, or
equitably ought to account for as such. 1 An allegation of money
paid by plaintiffs to defendant is not sustained by proof that they
gave him their negotiable promise to pay, unless it was expressly
accepted as cash in absolute payment, 2 or unless it has been
negotiated by defendant in fraud of plaintiffs' right. 3 The prin-
ciples governing the mode of proving the payment, and the effect
of a variance, are sufficiently stated in the last two chapters and
the next one.
2. Mistake!} The burden of proof is on the plaintiff to show
the mistake 4 on which he relies/ Evidence of a mistake at the
time of making the contract pursuant to which the payment
was made, does not raise a presumption that the plaintiff con-
tinued under the mistake at the subsequent time of payment, but
the evidence must connect the mistake with the time of payment
1 Moyer v. Shoemaker, 5 Barb. 319.
8 Van Ostrand v. Reed, 1 Wend. 424.
8 Bleadon v. Charles, 7 Bing. 246.
4 For recent cases on the distinction between mistakes of law and of fact, see 15
Am. R. 171, n.; Earl of Beauchamp, L. R. 6 Eng. & J. App. 223, s. c. 6 Monk's Eng.
37; Carpentier v. Minturn, 6 Lans. 56; 65 Barb. 293 ; Holdredge v. Webb, 64
Barb. 9.
6 Kirkpatrick v. Bank, 2 Hill S C. 577 ; Urquhart v. Grove, 2 Rob. (La.) 207.
In case of a person non sui juris, surprise and a mistake of law may be enough.
Pitcher v. Turin Plankroad Co. 10 Barb. 436.
[268J
ACTIONS FOR MONEY PAID UNDER MISTAKE, ETC. 269
also, 1 unless there is evidence of exaction and protest. 2 Clear
proof of mistake is requisite. 3 Mistake of fact is shown within
the rule, by proof either that some fact which really existed was
unknown, or that some fact was supposed to exist which did
not. 4 The material facts intended by the rule are those which
show that the demand asserted did not exist, not such as show a
mere set-off. 5 The rule applies, notwithstanding the parties made
a jump settlement or an adjustment "hit or miss," if it be shown
that such agreement was made under mistake. 6 Where the case
is free from fraud and from negligence prejudicing defendant, it
is not necessary for plaintiff to negative the means of knowledge
as well as actual knowledge of the true state of facts. 7 Under
the general rule that in the interpretation of a writing the court
may receive all the light that surrounding circumstances can
throw upon its language 8 evidence of the parties' knowledge 9
or ignorance, 10 is competent; and may be shown by the testi-
mony of the party himself. 11 If a reformation of a written con-
tract is necessary, the omission to demand that relief in the com-
plaint may be cured by amendment, or disregarded. 12 Conversa-
tions at the time of payment, and forming part of the res gestce,
are competent even to contradict statements contained in writ-
ings of defendant's agents put in evidence by plaintiff to show
defendant's receipt of the money. 13 Negligence in making the
mistaken payment is not relevant, unless the situation of other
parties has been changed in consequence of the payment ; 14 and
if this be so, the burden of proving the fact rests upon the de-
fendant. 15
I Wyman v. Farnsworth, 3 Barb. 369.
8 Meyer v. Clark, 45 N. Y. 284, rev'g 2 Daly, 497.
* Biting v. Scott, 2 Johns. 157; Taylor v. Beavers, 4 E. D. Smith, 215 ; and see
Mutual Life Ins. Co. v. Wager, 27 Barb. 354 ; Cullreath v. Cullreath, 7 Geo. 64 ;
Kent v. Manchester, 29 Barb. 595, and cases cited. For the contrary notion, that in
all civil issues preponderance of probability is enough, see Kane v. Hibernia Ins. Co.
10 Vroom, 697, s. c. 23 Am. R. 239.
4 Rheel v. Hicks, 25 N. Y. 291.
6 Franklin Bank v. Raymond, 3 "Wend. 72.
Wheadon v. Olds, 20 Wend. 174.
7 Kelly v. Solari, 9 Mees & W. 54, s. o. 6 Jur. 107 ; and see Martin v. McConnick,
8 N. Y. 331.
8 See pp. 129-131 of this vol. for the fuller discussion of this principle.
9 Lake v. Artisans' Bank, 3 Abb. Ct. App. Dec. 10.
10 Reynolds v. Commerce Fire Ins. Co. 47 N. Y. 597. But ignorance is not always
equivalent to mistake. National Life Ins. Co. v. Minch, 53 N. Y. 144, rev'g 6 Lans.
100.
II But his undisclosed intent is not usually competent. Dillon r. Anderson, 43 N.
Y. 231 ; unless motive is material. See Lewis v. Rogers, 34 Super. Ct. (J. <fe S.) 64.
Nor is the intent of the draftsman competent. Nevins v. Dunlap, 83 N. Y. 676.
15 Rosboro v. Peck, 48 Barb. 96.
13 Hall v. Holden, 116 Mass. 172.
14 Duncan v. Berlin, 11 Abb. Pr. N. S. 116, rev'g 6 Robt. 547, 8. o. 4 Abb. Pr. N.
S. 34 ; Lawrence v. Am. Nat. Bank, 54 N. Y. 432.
" Mayer v. Mayor, <fec. 63 N. Y. 455.
270 ACTIONS FOR MONEY PAID UNDER DURESS, JETC.
3. Subsequent promise to repa/y.~\ It is not necessary to al-
lege the promise to repay, which the law implies from defendant's
receiving plaintiffs money by mistake ; l but if sufficient evidence
of a legal obligation, or what the law regards as a moral obliga-
tion, 2 has been given, evidence of a subsequent promise by the
plaintiff to refund is competent. 8
4. forged or counterfeit paper.] There is a presumption
that the drawees know the signature of the drawer/ and 01 the
payee 5 and indorser, 6 on whose supposed signatures they pay,
which is conclusive in favor of the drawer against their allega-
tion of mistake ; but there is no such presumption as to the genu-
ineness of the writing in the body of the paper. 7 In an action
to recover the value of bad money received by plaintiff from de-
fendant in payment of a debt, or for other consideration, the
burden is on the plaintiff to prove the money bad. 8 In an action
on a receipt for bills, to be accounted for if good, parol evidence
is competent to show that defendant promised to take the money
and try it, and return it if condemned ; and this, with evidence of
sufficient lapse of time, 9 throws on defendant the burden of ac-
counting. 10
5. Duress. 11 '] To recover back money paid under duress, it is
not essential to allege and prove a contract. 12 The mere fear of
legal process, 18 or threats of prosecution without threats of im-
prisonment or arrest, are not sufficient. 14 As against a party to
legal process, who by fraudulent or improper use of it, knowing
that he has no just claim, compelled plaintiff to pay a demand,
neither evidence of protest, 15 nor of the final termination of the
process, 16 is necessary. Evidence that a judgment has been re-
1 See Farron v. Sherwood, 17 N. Y. 227; Byxbie v. "Wood, 24 Id. 607; Steam-
ship Co. v. Jolliffe, 2 Wall. 457.
2 See p. 251 of this vol. n. 10.
3 Bentley v. Morse, 14 Johns. 468 ; Rosboro v. Peck, 48 Barb. 92 ; Ege v. Koontz,
3 Penn. St. 109.
* National Park Bank v. Ninth Nat. Bank, 46 N. Y. 77.
8 Graves v. Am. Exchange Bank, 17 N. Y. 205.
6 Morgan v. Bank of State of N. Y. 11 N. Y. 404. Bnt as to indorsera other
than the payee, see Holt v. Ross, 54 N. Y. 472, affi'g 59 Barb. 554.
' Bank of Commerce v. Union Bank, 3 N. Y. 230.
8 Atwood v. Cornwall, 25 Mich. 142. Compare Burrill v. Watertown, Ac. Co. 51
Barb. 105.
* Marcum v. Beirne, 6 J. J. Marsh. (Ky.) 604.
10 As to appropriate evidence on question of genuineness, see chapter on BILLS,
NOTES AND CHECKS.
11 For conflicting definitions of duress, coercion, and exaction, see 7 Wall 214;
10 Id. 414; 14 Id. 332 ; Peyser v. Mayor, <fec. of N. Y. 70 N. Y. 497 ; Meyer v. Clark,
45 N. Y. 284, rev'g 2 Daly, 497 ; Am. Exch. Fire Ins. Co. v."Britton, 8 Bosw. 148.
18 Carew v. Rutherford, 106 Mass. 1, s. c. 8 Am. R. 287, and cases cited.
13 Quincy v. White, 63 N. Y. 370, reVg 5 Daly, 327.
14 Harmon v. Harmon, 61 Me. 227, s. c. 14 Am. R. 556.
15 Meek v. McClure, 49 CaL 624; s. p. McKee v. Campbell, 27 Mich. 497.
16 Chandler v. Sanger, 114 Mass. 364, s. c. 19 Am. R. 367. Compare Moulton v,
Beecher, 1 Abb. N. C. 193.
ACTIONS FOR MONEY PAID UNDER FRAUD. 271
versed after the money has been collected under it, and that the
action was subsequently finally dismissed, makes a prima, facie
case in favor of the defendant in the judgment 1 to recover back
the money ; and the burden of proving an equitable right to re-
tain it is cast on the adverse party. 2 One who sues to recover
back what he paid to get possession of his goods withheld on an
unjust claim of lien thereon, 3 has the burden of showing that
the claim of lien was unfounded. 4 So in an action against the
collector, for duties alleged to have been illegally exacted, the
burden of proof is on plaintiff to show not merely exaction, but
that it was excessive and illegal ; unless it be shown that he had
no authority in the premises, and could hold the goods for no
amount whatever. On an issue as to the amount of duty, the
burden of proof of illegal amount rests on plaintiff. 5 If an officer
had no notice of the facts which rendered his demand illegal,
proof of protest at the time of payment is necessary ; 6 otherwise
not, 7 unless required by statute. 8 In cases of personal duress,
when the state of mind of the person at the time is relevant, to
show weakness (in connection with which defendant's pressure,
though perhaps not technically amounting to duress, is fraudu-
lent, and therefore equivalent in effect), the plaintiff's own acts
and declarations, as well as those constituting the alleged duress,
are competent, within the limits already stated in regard to proof
of mental weakness and undue influence. 9 But the opinion of a
witness, as to whether language used was calculated to induce
one to act through fear, is not competent ; the language itself
must be given. 10
6. Fraud.~\ The fact that the complaint states fraudulent
representations of the defendant, by which the plaintiff was in-
duced to pay him the money which he seeks to recover back,
does not necessarily stamp the action as in tort. It is no objec-
tion to a recovery in such a case that fraud is not proved/ 1 if
sufficient facts appear to warrant a recovery as for money had
and received ; especially when the words in the complaint charg-
ing fraud may be regarded as matter of inducement. Having
money that rightfully belongs to another, creates a debt ; where-
1 But not in favor of his surety who was not a party Garr v. Martin, 20 N. Y.
806, rev's 1 Hilt. 358.
s Crocker v. Clement, 23 Ala. 296, 307.
3 Harmony v. Bingham, 12 N. Y. 99, affi'g 1 Duer, 209 ; and see Great Western
Ry. Co. v. Sutton, L. R. 4 H. of L. Cas. 226, 249.
4 Briggs v. Boyd, 56 N. Y. 289, affi'g 65 Barb. 197.
8 Arthur v. Utikart, 96 U. S. (6 Otto), 118, 122.
Meek v. McClure, 49 Cal. 624.
7 Id. ; Atwell v. Zeluff, 26 Mich. 118. Except for purpose of recovering interest Id.
8 As to the requisite distinctness of protest, compare Curtis'. Administratrix v.
Fiedler, 2 Black, 461 ; Davies v. Arthur, 96 U. S. (6 Otto), 148.
9 See chapter ou WILLS. Blair v. Coffman, 2 Overt. (Tenn.) 176.
10 Johnson v. Ballew, 2 Port. (Ala.) 29.
11 The New York Code Civ. Pro. 529, now requires proof of fraud if alleged.
272 ACTIONS FOR MONEY PAID, WHERE CONSIDERATION FAILS.
ever a debt exists without an express promise to pay, the law im-
plies a promise, and the action sounds in contract, although, under
the Code, this implied promise need not be alleged. 1 But if fraud
is alleged as the cause of action, so that defendant would be liable
to arrest on a judgment against him, plaintiff cannot recover on
establishing a contract, express or implied, without proving the
fraud. 2 Proof of a mistake is not enough to sustain an allegation
of a cause of action thus founded on fraud. 8 The burden of proof
is of course on the plaintiff to prove the fraud by which the pay-
ment was induced. 4 The principles regulating the mode of proof
of fraud are the same as those elsewhere stated of actions for
deceit.
7. Failure of consideration?] "Where plaintiff sues to recover
back money paid by him to defendant under a contract the con-
sideration of which has failed, the principles applicable to actions
on such contracts apply as to the mode of proof, except that the
burden is on the plaintiff to prove non-performance by defendant,
or other failure of consideration. 6 If the contract was in writ-
ing, it should be produced or accounted for. 7 If it contains a
covenant to repay and is under seal, the action should be upon
the covenant ; 8 though under the new procedure, if the complaint
shows a good cause of action for money paid, the allegation of
the contract may be regarded as matter of inducement, and is
properly pleaded for that purpose. 9 Evidence that plaintiff de-
livered his money to defendant upon conditions stated by him at
the time, and that defendant received it in silence, is prima fade
evidence of assent to the conditions. 10 An order drawn by de-
fendant in favor of plaintiff, and delivered to him, and proved to
have been subsequently countermanded by defendant, is compe-
tent without evidence of presentment to the drawee ; and if ex-
pressed to be for value received, is prima facie evidence of the
receipt by defendant of its amount from plaintiff. 11
1 Byxbie v. Wood, 24 N. Y. 607, affi'g Sheldon v. Wood, 2 Bosw. 267 ; compare
Knapp v. Meigs, 11 Abb. Pr. N. S. 405, and p. 273 of this vol.
2 The release of a precedent debt is not enough under an allegation of money
payment induced by fraud. De Grau v. Elmore, 50 N. Y. 1.
8 Dudley v. Scranton, 57 N. Y. 424, and cases cited.
4 Mutual Life Ins. Co. v. Wager, 27 Barb. 354.
5 As to the test of the right to recover back money paid under an illegal contract,
Bee Knowlton v. Congress Spring Co. 57 N. Y. 518 ; opposed in a further decision
in 5 Reporter, 166, s. c. 16 Alb. L. J. 10.
Wheeler v. Board, 12 Johns. 363.
7 Allen v. Potter, 2 McCord, 823.
8 Miller v. Watson, 5 Cow. 195.
9 Eno v. Woodworth, 4 N. Y. (4 Comet.) 249.
10 Hale v. Holden, 116 Mass. 172.
Child v. Moore, 6 N. H. 33.
CHAPTER XV.
ACTIONS FOR MONEY RECEIVED BY DEFENDANT TO PLAINTIFFS
USE.
1. Grounds of action. 7. Action by depositor against bank.
2. The pleadings. 8. Bank's action for overdraft.
8. Plaintiff's title to the fund. 9. Action by principal against bis agent.
4. Receipt of the money by defendant. 10. Demand and notice.
6. by nn agent of defendant. 1 1 . Defendant's evidence.
6. The medium and amount of payment.
1. Grounds of action.'] The ground of the action is that de-
fendant, or his agent, has received money, or property which
plaintiff is entitled to charge him with as money, which belongs
of right to plaintiff, and which defendant ought to pay over to
him. 1
2. The pleadings.'] The complaint, unless on an account, 2
must usually be special, setting forth the relation of the parties,
and the contract or wrong by means of which the money was re-
ceived. If the facts alleged constitute a tort, such as a conversion,
or deceit in obtaining credit, or a breach of trust, it does not nec-
essarily make the action one of tort. If a wrong is alleged mere-
ly as matter of inducement, 3 or if it be, although in form stated
as the gist of the action, a mere legal conclusion, and unsupported
by the facts alleged, 4 evidence of the facts alleged establishing
liability on contract, express or implied, will sustain the action,
1 The principles on which this action is sustnined are liberal, applying to almost
every case where a person has received money which in equity and good conscience
lie ought to refund; and, upon the same principles, the defendant may avail himself
of any considerations, equitable aa well as legal, which show that the plaintiff, in fair-
ness and justice, is not entitled to the whole of his demand, or any part of it. BLACK-
STONE, J.. MANSFIELD, J., NELSON, J., Eddy v. Smith, 13 Wend. 490, and cases cited.
8. P. Cope v. Wheeler, 41 N. Y. 303, affi'g 53 Barb. 350, s.o. 37 How. Pr. 181. Strict-
ly speaking, evidence that plaintiff paid money to a third person for defendant's use
(Claycomb v. McCoy, 48 111. 110) ; or in consequence of his fraud (Butler v. Liver-
more, 52 Barb. 570); or to defendant under a contract which has failed (Briggs v.
Vanderbilt, 19 Barb. 222); is not appropriate under a mere allegation of money had
and received by defendant to plaintiff's use. See p. 268 of this vol. But under
the new procedure, the question is usually one of variance, not of entire failure of
proof, But see N. Y. Indemnity Co. v. Gleason, 7 Abb. New Cas
Allen v. Patterson, 7 N. Y. 476.
' Graves v. Harte, 69 N. Y. 162 ; Byxbie v. Wood, 24 Id. 607, affi'g 2 Bosw. 267.
4 As where, after alleging a delivery of money to a banker or agent, which neces-
sarily constitutes a mere debt, not a" bailment, the pleader alleges that defendant
wrongfully converted the sum to his own use. Greentree v. Rosenstock, 61 N. Y.
583, affi'g 34 Super. Ct. (J. & S.) 505 ; Sheahan v. Shanahan, 6 Hun, 461, s. p. Vilmar
v. Schall, 61 N. Y. 664, affi'g 35 Super. Ct. (J. & S.) 67. But see note 11 on p. 271.
18 [273]
274 ACTIONS FOR MONET RECEIVED
although the suggestion of fraud be unproved. If, on the other
hand, fraud is alleged in such way that, on a judgment against
defendant, he would be liable to arrest, the plaintiff cannot re-
cover without proof of this allegation. 1 Plaintiff will not be
deemed to waive a tort alleged in a manner appropriate to a cause
of action, and to rest on an implied promise, unless such intent
appears by the complaint. 2 Where the tort is not alleged, plaint-
iff may still prove it, as part of the transaction by which defend-
ant actually received money which he ought to refund to plaintiff
as, for instance, that defendant wrongfully took plaintiff's
goods, sold them, and received the price. 8 But to entitle plaintiff
to recover, on waiver of tort and as for money received, facts
constituting a cause of action on contract, express or implied,
must be alleged ; 4 and it must appear that defendant received
money or pecuniary benefit equivalent thereto. 5
3. Plaintiff's title to the, fundJ\ Plaintiff may recover on
proof of a contract made with himself, in his own name, although
he acted as agent of the true owner of the fund ; for the contract
makes him the trustee of an express trust. 6 So, under an un-
sealed contract, he may recover on parol proof that he was the
real principal, and that the contract was made by his consent, 7 or
with his agent, though without his consent. 8 Parol evidence is
competent to show that, in an unsealed 9 contract 10 made by an-
other in his own name, 11 the plaintiff was the real principal,
1 Ross v. Mather, 51 N. Y. 108 ; De Grau v. Elmore, 50 Id. 1. Compare Coit v.
Stewart, 12 Abb. Pr. N. S. 216; Barker v. Clark, Id. 106.
I Chambers v. Lewis, 11 Abb. Pr. 210, affi'g 10 Id. 206, s. c. 2 Hilt. 591.
3 Harpending v. Shoemaker, 87 Barb. 270, 291, s. p. Boston, &c. R. R. Co. v. Dana,
1 Gray (Mass.) 83, 100 ; Pierce v. Wood, 3 Fost. (N. H.) 519, 53 1 . Where the evidence
was that defendant received proceeds of negotiable paper wrongfully obtained from
plaintiff, held that the action should have been for equitable relief. Wilson v. Scutt,
8 Lans. 308. So it has recently been held that this action by a municipality is not
sustained by evidence that defendant wrongfully borrowed of a public officer money
held by him as such. The action should be case or a bill in equity. Perley v. Coun-
ty of Muskegon, 32 Mich. 132, s. o. 20 Am. R. 637.
4 Walter v. Bennett, 16 N. Y. 250.
6 Under an express contract of a baSte to account for proceeds, recovery for mare
application of the property to defendant's own use, without receipt of proceeds, is not
allowed. Moffat v. Wood, Seld. Notes, No. 5, 14. Compare Roth v. Palmer, 27 Barb.
652. Whether evidence of appropriation by a wrongdoer is sufficient, without evi-
dence of sale and receipt of proceeds, is not agreed. Compare Moses v. Arnold, 43
Iowa, 187, s. c. 22 Am. R. 239 ; Norden v. Jones, 33 Wise. COO, s c. 14 Am. R. 782;
2 Greenl. Ev. 88, 108, n. 5, and cases .cited ; Henry v. Marvin, 3 E. D. Smith, 71.
6 P. 234 of this vol. n. 8.
7 Fischesser v. Heard, 42 Geo. 531.
8 Calland v. Lloyd, 6 Mees <fe W. 26.
9 As to sealed contracts, see Briggs -v:. Partridge, 64 N. Y. 357, affi'g 39 Super. Ct.
(J. & S.) 339.
10 Even though such as the statute of frauds requires to be in writing. Ford v.
Willinms, 21 How. U. S. 287, s. p. Dykers v. Townsend, 24 N. Y. 57.
II It is not material that the contract does not indicate that the apparent party was
gan agent. Ford v. Williams (above).
BY DEFEND ANT TO PLAINTIFF'S USE. 275
whether disclosed * to defendant or not. 2 The declarations of
the depositor or payer of money, made as part of the res gesfco
of payment, are competent to show the source of the fund for
the purpose of proving in whom was the title. 8 And the letters
in which plaintiff received the fund are competent as bearing on
the question, though not necessarily as proof of the facts stated
therein. 4 If declarations as to the source or title of the fund are
shown to have been made in presence of the defendant, they are
competent, in connection with evidence of his tacit admission or
other conduct under them. 5 Defendant's declaration to plaintiff
that he holds the fund subject to his order is sufficient prima,
facie evidence of plaintiff's title. 6 But privity of contract is not
essential. 7
4. The receipt of the money by defendant^ The action is not
sustained unless there has been an actual receipt of money by the
defendant, or something equivalent to it, 8 or unless the defend-
ant is estopped by representations made to the plaintiff from deny-
ing the receipt. 9 But it is enough that, on all the facts, it may
fairly be presumed that defendant has received plaintiff's money.
Positive evidence is not required. 10 For this purpose evidence of
its payment over the counter of the defendant's office, to a person
acting as clerk and apparently in authority, is competent to go to
the jury. 11 Where there are several defendants, partnership, 12 or
a joint reception, or a joint interest, or a joint contract, 18 should be
shown. An acknowledgment of having received the money,
made by defendant in any form, is competent evidence against
him. 14 Thus the consideration named in the agent's conveyance
to a third person is competent against the agent ; 15 but it does not
conclude plaintiff as to the amount. 16 If a receipt was given by
defendant to the plaintiff, or to the third person from whom the
I See Ford v. Williams, 21 How. U. S. 287; Hubbert v. Borden, 6 Whart. (Penn.)
79,91.
s See N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S. 344, 381.
8 Stuir v. York Nat'l Bank, 65 Penn. St. 364, s. P. Bank v. Kennedy. 17 Wall. 19.
4 Darling v. Miller, 64 Barb. 149 ; see p. 170 of this vol. n. 9, and p. 245, n. 4.
8 Hayslcp v. Gywmer, 1 Ad. <fe E. 162.
6 Stacy v. Graham, 3 Duer, 444.
* Cnusifliere v. Beers, 1 Abb. Ct. App. Dec. 333 ; Ela v. Am. Merchants' Union Ex-
press Co. 29 Wise. 611, s. c. 9 Am. R. 619; Cutler v. Demmon, 111 Mass. 474 ; Ross
V. Curtis, 80 Barb. 238.
8 Price v. Oriental Bank, 38 Law. J. N. S. 41, s. c. 26 Weekly R. 643.
* As, for instance, where plaintiff has acted on the representation by settling with
third persons, or as in the case of a sheriff's return. See also Bullard v. Hascall, 25
Mich. 132.
10 Tuttle v Mayo, 7 Johns. 132.
II Newman v. North Am. Steamship Co. 113 Mass. 362.
12 Gilchrist v. Cunningham, 8 Wend. 641.
IS Manah:m v. Gibbons, 19 Johns. 427.
14 As to qualified oral admissions, see p. 266 of this voL
15 Thalheimer v. Brinckerhoff, 6 Cow. 90.
" Mains v. Ilaight, 14 Barb. 76.
276 ACTIONS FOR MONEY RECEIVED
money was received, it is not necessary to produce or account for
it, unless some question arises on its terms. Its terms are not
conclusive against either party, but explainable by parol, 1 unless
grounds for an estoppel appear.
Where defendant s duty was to sell and collect, evidence of a
sale alone is not alone enough 2 without other evidence raising a
presumption of collection. But if defendant is a wrong-doer, or
neglect to collect were a breach of duty, his admission that he
had sold the goods is enough to go to the jury from which they
may infer receipt of proceeds. 8
If the money was received by collecting a written security or
evidence of debt from a third person, 4 the instrument need not
be produced or accounted for in order to let in parol proof of the
collection of the sum due on it ; 5 but the instrument is competent
in favor of plaintiff if he chooses to put it in evidence, 6 and being
only collaterally in question, subscribing witnesses need not be
produced unless it is under seal. 7
5. by an agent of defendant^ If payment to a third per-
son is relied on, there must be some evidence that he was defend-
ant's agent. 8 Evidence of the declarations of the alleged agent
are not competent for the purpose of proving the agency, unless
there is something to connect the defendant with the declara-
tions. 9 Evidence that the defendant was informed by the alleged
agent of his receipt of the fund, and thereupon gave him direc-
tions as to its disposal, is competent evidence that defendant re-
ceived the money. 10 Where the authority shown was not a general
agency, but a special authority, particularly if conferred by a
principal acting in autre drcnt, as, for instance, an executor au-
thorizing an attorney to take out ancillary administration in an-
other State and sell assets there, the person dealing with the
agent must look to his authority, and cannot recover of the prin-
cipal on proof of money received by the agent only. 11 A sufficient
agency having been proved, a receipt given, or admission of pay-
1 "White v. Parker, 8 Barb. 48, 69 ; Phelps v. Bostwick, 22 Barb. 314 ; Union Bank
v. Solles, 2 Strobh. 890.
4 Haskins v. Dunham, Anth. N. P. 111.
Hathaway v. Burr, 21 Me. 567.
4 As, for instance, where one who collected a running account (Planters' Bank v.
draft (Bullard v. Hascall, 25 Mich. 132; Sally v. Capps, 1 Ala. 121), is sued for the
proceeds, plaintiff need not produce nor account for the instrument
6 S. P. Steele v. Lord, 70 N. Y. 283.
8 See, for instance, French v. Shreeve, 18 N. J. L. (3 Harr.) 147; Geisse v. Dob-
eon, 3 Whart. (Penn.) 84.
' Rundle v. Allison, 34 N. Y. 180, 184.
* Farias v. De Lizardi, 4 Rob. 407 ; and see p. 241 of this yoL
9 Snoc.k v. Lord, 56 N. Y. 605.
10 Coates v. Bainbridgp, 5 Bing. 58.
11 Owings v. Hull, 9 Pet. 607.
BY DEFENDANT FOR PLAINTIFFS USE. 277
ment made, by the agent, at the time of the transaction, is admis-
sible against the principal. 1
6. The medium and amount of payment.'} The evidence
must show payment of money, or that which the parties treated
as money, or which the defendant ought to account for as such.
Evidence of the receipt of foreign money is competent ; a so, of
course, of bank notes ; 3 but defendant may show the depreciated
character of the medium of payment, except where it was a breach
of his duty to plaintiff to accept such currency. 4 The delivery of
non-negotiable things in action, or other property, is not appro-
priate under an allegation of money received, 5 unless connected
with evidence that defendant expressly accepted the property
as a payment of money, or that he has actually turned it into
money or its equivalent, or that it was intended between him and
the plaintiff to be sold, and sufficient time has elapsed to do so,
and that he is in default for not accounting. A credit in account
with a third person may be proved under an allegation of money
received, if accepted by defendant as a set off equivalent to
money, 6 or if allowed in violation of his duty and to the preju-
dice of plaintiff. Under the new procedure, however, if defend-
ant is shown to have received money value, a variance in the me-
dium is not an entire failure of proof, but material if defendant
is prejudiced. The evidence must tend to show a definite sum, 7
or certain data from which, by an arithmetical calculation, the
jury may ascertain the sum, 8 and it is no objection that the fund
was received mixed with other moneys, if a several right of ac-
tion is shown to exist in plaintiff for his share. 9 Variance in the
amount may be disregarded, 10 within the limits of recovery fixed
by the demand for judgment. If the receipt of coins or bank
notes is proved without proof of their denomination, the smallest
denomination in circulation is to be presumed, 11 in the absence of
fraud or fraudulent concealment.
7. Action by depositor against bank.'] A certificate of de-
posit, 12 as well as evidence of an ordinary deposit in account, is
competent in an action for money received. An ordinary certifi-
cate of deposit is not a contract, within the rule excluding parol
1 Thallhimer v. Brinckerhoff, 6 Cow. 90 ; s. p. Anderson v. Broad, 2 E. D. Smith,
580, 8. c. 12 N. Y. Leg. Obs. 187.
* Ehrensperger v. Anderson, 3 Exch. 149, 156.
* I'ickard v. Bankes, 13 East, 20.
4 See Cockrill v. Kirkpatrick, 9 Mo. 688.
* Nightingale v. Devisme, 5 Burr. 2589.
* Noy v. Reynolds, 1 Ad. & E. 159.
7 Harvey v. Archbold, 3 B. A C. 626.
* Taukersk-y v. Childers, 23 Ala. 781.
See Green v. Givan, 33 N. Y. 343.
10 Lass v. Wetmore, 2 Sweeny, 209.
11 2 Greenl. Ev. 109, 129a.
19 Talladega Ins. Co. v. Landers, 43 Ala. 116, 134.
278 ACTIONS FOR MONEY RECEIVED
evidence, 1 and if it be, parol evidence is competent to explain ab-
breviations, etc., in it, 2 and to charge the bank by showing that
the depositor justly supposed he was dealing with them although
the certificate was signed by an officer individually. 3
Evidence of usage is not admissible to show that deposits
made during depreciation of currency, and marked in the pass-book
respectively, " coin " or " currency, were always to be repaid in
kind, for without special agreement, a bank deposit creates a debt,
and whatever is legal tender will discharge it. Usage cannot alter
the law. 4 The fact that plaintiff's book has been balanced, does
not dispense with the necessity of proving demand before suit. 5
The balancing and return of the pass-book has the effect of
an account stated, but a depositor is not concluded if he objects
within a reasonable time ; 6 still the burden is upon him to show
the error. 7 Drawing for the precise balance is evidence of ac-
quiescence. 8 But payments by the bank on checks in which the
depositor's signature was forged, 9 are made in their own wrong,
and plaintiff's delay to discover the forgery does not avail de-
fendants, 10 unless defendants show negligence to their prejudice. 11
The books of the bank are evidence against it, 12 but not in its
favor. 13 The declarations of plaintiff, made at the time of the
deposit, as part of the res gestce, are competent in his favor, for
instance, to prove the capacity in which he claimed to hold the
1 Hotchkiss v. Mosher, 48 N, Y. 478.
* Hulbert v. Carver, 37 Barb. 62, and cases cited.
8 Coleman v. First Nat'l Bk. of Elmira, 63 N. Y. 388, 894; and although, as be-
tween the officer and the bank, it was the officer's private transaction. Caldwell v.
Nat'l Mohawk Valley Bk. 64 Barb. 333. Whether deposit was made with teller, as
such, or personally, a question of fact for the jury. Id. ; Pattison v. Syracuse Na-
tional Bank, 4 Supiri. Ct. (T. <fe C.) 96.
* Thompson v. Riggs, 5 Wall. 663, 680. Contra, Chesapeake Bk. v. Swain, 29
Md. 483. As to when the credit given for a deposit is conclusive, see Manhattan Co.
v. Lydig, 4 Johns. 377; Mechanics' <fe Farmers' Bk. v. Smith, 16 Id. 115 ; Oddie v.
Nat'l City Bk. 45 N. Y. 735; Hepburn v. Citizen's Bk. 2 La Ann. 1007.
5 Downes v. Phoenix Bank, 6 Hill, 297 ; and see Payne v. Gardiner, 29 N. Y. 146.
Schneider v. Irving Bank, 1 Daly, 600, s. c. 30 How. Pr. 190 ; Hutchinson v.
Market Bank, 48 Barb. 302.
7 Shepard v. Batik of State of Missouri, 15 Mo. 143.
Lockwood v. Thome, 11 N. Y. 170, rev'-j 12 Barb. 487.
9 Weisser v. Denison, 10 N. Y. 68. Otherwise of raised checks, p. 270 of this
vol.
10 Welsh v. German American Bank, 42 Super. Ct. (J. <fe S.) 462.
11 Page 269 of this vol. In an action against a savings bank for a mispayment,
where the bank relies on its rule that it will only be responsible for ordinary care
and diligence, if the two signatures were so dissimilar that when compared the discrep-
ancy would be easily and readily discovered by a person competent for the position,
then the failure to discover it would be evidence of negligence which should iio to
the jury. Otherwise, if the difference was not marked and apparent, or if it would
require a critical examination to detect it, and especially if the discrepancy was one
as to which competent persons might honestly differ in opinion. Appleby v. Erie
Co. Savings Br.nk. 62 N. Y. 12.
IJ ^ee p. 52 of this vol.
u White v. Ambler, 8 N. Y. 170. Unless it be a foreign corporation. Page 52
of this voL
BY DEFENDANT FOR PLAINTIFFS USE. 279
fund, and the declarations of an officer or clerk of the bank,
made in reference to the accounts, while acting in the course of
his duty as such, are also competent against the hank. 1
8. Bantts action for over-draft] In the action of the bank
against a depositor for an over-draft, the presumption is that the
depositor had funds there to meet any check drawn by him which
they are shown to have paid, 2 and the books of the bank are not
of themselves evidence in their favor, of the state of his ac-
count. 3
9. Action by principal against his agent.~\ The agency of
defendant may be proved by direct testimony to the fact, 4 or by
the acts and conduct of the parties, and evidence of what passed
between them in reference to the transactions in question.* The
fact that defendant received or charged commissions is cogent
evidence of agency. 6 On the question of agency in a particular
transaction, when the testimony is in conflict, the fact that de-
fendant had acted as such agent in previous transactions for
plaintiff is admissible to explain the language and writings of the
parties in the transaction in question. But the evidence of such
fact (if not sufficient to prove a general agency) is not competent
for the purpose of proving an agency in the particular transac-
tion, or even in determining the credibility of the conflicting testi-
mony. The principle upon which evidence of similar transactions
to the one in issue is admitted, is to explain intent, not to prove
the act or its probability. 7 Under an allegation of agency, evi-
dence of a joint adventure is not a failure of proof, but raises a
question of variance. 8
A general receipt may be explained by parol, even though it
contain a general promise to account. 9 But when the receipt
embodies a contract, as, for instance, where it prescribes the
manner in which the money is to be appropriated, it is not
1 Price v. Marsh, 1 Car <fc P. 60 ; p. 44 of this vol. note 2.
1 White v. Ambler, 8 N. Y. 170.
Id. ; State B;mk v. Clark, 1 Hawks, 36 ; p. 244 of this vol. Unless it be a foreign
corporation (p. 62), or it be shown that the bank furnished transcripts to its depos-
itors, so that its officers can be deemed to have been the agents of both parties for
the purpose of keeping the account (Union Bank v. Knapp, 3 Pick. 96 }, or some other
special ground is shown. See p. 53 of this vol. As to negligence in permitting
plainti.Ts clerk or officer to make over-drafts, see Manufacturers' Nat. Bk. v. Barnes,
65 111. 69, s. c. 16 Am. R. 576 ; Tradesman's Bank v. Astor, 11 Wend. 87.
4 See pp. 241, 250 of this vol.
B A circular, stuncil plate, and form of invoice delivered to plaintiff by defendant,
while soliciting consignments, of goods for sale, Held competent as evidence bearing
upon the consignments and the terms on which they were made, and the character in
which defendant proposed to plaintiff to act in receiving. Whittaker v. Chapman, 3
Lans. 155.
Armstrong v. Stokes, L. R. 7 Q. B. 698, s. c. 8 Moak's Eng. 217.
1 Richards v. Millard. 66 N. Y. 674, rev*g 1 Supm. Ct. (T. <fc C.) 247.
8 Power v. Fisher, 8 Bosw 258. Otherwise of an allegation of loan; for there is
agency in a partnership or joint adventure, but none in a loan.
Eaton v. Alg r, 2 Abb. Ct. App. Dec. 5.
280 ACTIONS FOR MONEY RECEIVED
liable to be varied by parol evidence ; l though a subsequent parol
agreement, superceding that shown by the receipt, may be
proved. 2 When an attorney gives a general receipt for the evi-
dence of a debt then due, it is presumed that he received it as at-
torney, for collection ; and the burden is on him to show that he
received it specially and for some other purposes. 8 Notwith-
standing writings between the parties in which the transaction
appears as an assignment from plaintiff to defendant, or a con-
veyance showing a sale from defendant to plaintiff, parol evidence
is competent to show that their relation was that of principal and
agent, and, therefore, that the defendant is accountable for the
property or transaction. The legal effect of the instrument as
between the parties thereto is not varied by this proof, but only
the accountability of defendant. 4 And where plaintiff relies on
defendant's conveyance or bill of sale to prove a sale by him, the
consideration named, though prima facie evidence in plaintiffs
favor, is not conclusive, but parol evidence is competent to vary
it. 5 Partners may be held on their agreement to account and
pay over, although one had withdrawn before the sales, and the
moneys were received by the other only. 6 On an allegation that
money was received by his agent, plaintiff may recover on proof
that he received property of substantial pecuniary value, 7 or
notes which were good and collectable, 8 and by his transactions
he released the debtor and deprived his principal of all remedy
except against himself. 9 Profits made by an agent in his employ-
ment belong absolutely to his principal, and he may recover them
as money received. 10 Refusal of an agent, after reasonable time,
to account for goods delivered to him for sale raises the presump-
tion that he has sold them and has the proceeds ; u and the in-
voice which was delivered to him, and is unexplained by him, is
evidence that all the articles named in it came to his possession,
and raises a presumption against him that he sold them at least
for as much as the invoice prices. 13 The source of the money re-
ceived, and circumstances of its receipt, not being within plaint-
iff's knowledge, he is not held to strictness of allegation and
proof in that respect. 13 In cases of long continued fraudulent
embezzlement or misappropriation by one who was exclusively
1 "Wood v. Whiting, 21 Barb. 190. 197.
I Egleston v. Knickerbock T. 6 Barb. 458.
3 Smedes v. Elmendorf, 8 Johns. 185.
4 Richards v. Millard, 66 N. Y. 574, s. c. below, 1 Supm. Ct. (T. <fe C.) 247.
8 Mains v. Hnight, 14 Barb. 76.
' Briggs v. Briggs, 15 N. Y. 471. Compare Ayrault v. Chamberlin, 26 Barb. 83;
and see chapter on PARTNERS; and see Andrews v. Jones, 10 Ala. 460.
7 Beardsley v. Root, 11 Johns. 464.
Allen v. Brown, 44 N. Y. 228, affi'g Kl Barb. 86, and cases cited.
9 Same cases.
10 Morison v. Thompson, L. R. 9 Q. B. 480.
II Hunter v. Welch, 1 Stark. 224.
" Field v. Moulton. 2 Wnsh. C. C. 155.
13 See IlaU v. Morrison, 3 Bosw. (N. Y.) 520, 527.
BY DEFENDANT FOE PLAINTIFFS USE. 281
plaintiffs agent, if there is sufficient evidence of the main fact to
go to the jury, evidence of his previous insolvency, and contem-
poraneous unexplained acquisition of large property, is relevant ;
and his declarations concerning his property and business trans-
actions, made to third persons, in the absence of the plaintiff or
his agents, are inadmissible to rebut such evidence. 1 To show the
intentional character of false entries and the like, evidence of
other such acts by him (within reasonable limits of time), the
errors all being in his own favor, is competent to explain motive
and intent. 8
10. Demand and notice:^ Demand may be inferred by the
jury from notice of the mistake or other ground of the demand,
and an informal request to rectify it. 4 Demand or instructions
to remit will not be presumed against even a foreign factor, mere-
ly from lapse of time. 5 Where plaintiff proves a demand and re-
fusal, defendant has a right to prove the reasons which were
given by him at the time.*
11. Defendants evidence."] Under a general denial of the
contract alleged, defendant may prove that the contract contained
material provisions under which the money was received, other
than those alleged, 7 or that there was a departure from the con-
tract by plaintiff's request, and the money was paid accordingly. 8
Plaintiff's parol evidence to show a rescission by subsequent con-
sent may be met by parol evidence that, by a still later consent,
the contract (although under seal) was reinstated. 9
An agent, sued by his principal, may testify to his own opinion
as to the necessity of the exercise of a discretion which was vested
in him for the purpose of the transactions on which he is called to
account, 10 and to his good faith in its excercise. 11 The resgistce are
compe.tttfit for the same purpose. 12 He may testify generally that
I Boston & W. R. R. Co. v. Dana, 1 Gray, 83, 101, 103.
J Regina v. Richardson, 2 F. & F. 343.
8 Whether demand is necessary in case of mistake, <fec., is not agreed. The better
opinion is that where defendant is not a wrong-doer, or violating hi? agreement (14
N. Y. 492), in retaining the money, demand, or at least notice of mistake, given be-
fore suit, must be proved* Moak's Van Santv. PI. 879 ; Mayor, <fec. of N. Y. v. Erben,
8 Abb. Ct. App. Dec. 255, affi'g 10 Bosw. 189. Contra, Calais v. Whidden, 64 Me.
249 ; Utica Bank v. Van Gieson, 18 Johns. 485. Unless defendant has put it out of
his own power to comply. The reasonableness of the rule is seen in the fact that,
while the cause of action ia in the nature of an equitable one, the form of the action
is legal, and costs are not in the discretion of the court
4 Muir v. Rand, 2 Ind. 291. Compare Walsh v. Ostrander, 22 Wend. 178, and 2
Abb. N. Y. Dig. 2d ed. 642-644.
Halden v. Crafts, 4 E. D. Smith, 490, e. o. as Walden v. Crafts, 2 Abb. Pr. 301.
Bennett v. Burch, 1 Den. 141.
T Marsh v. Dodge, 66 N. Y. 633, rev*g 4 Hun, 278, s. o. 6 Supra. Ct. (T. <k C.) 668.
Gwynn v. Globe Locom. Works, 5 Allen, 317.
Flynn v. McKeon, 6 Duer, 203.
10 France v. McElhone, 1 Lans. 7.
II See 38 N. Y. 281, and cases cited.
15 See p. 245, n. 4, and p. 170, n. 9 , and Hudson v. Crow, 26 Ala. 616, 622.
282 ACTIONS FOR MONET RECEIVED
he paid over all he had received, and may testify to what allow*
ances were made on settlements which are in evidence, although
there were written receipts. 1 Evidence that the usual course of
dealing was to make daily returns and payments, without passing
any vouchers, raises a presumption of law that defendant had
fully accounted, and throws on plaintiff the burden of proving
the contrary. 2 If defendant relies on plaintiffs consent that he
retain to his own use moneys received, the evidence of such con-
Bent should be clear and satisfactory. 8
Defendant cannot exonerate himself by proving that he re-
ceived the money merely as agent for another, 4 unless the agency
was disclosed ; 5 nor even then if he was a wrong-doer in receiv-
ing, 6 or paid over in fraud of plaintiff's right. Defendant's
agency for a third person being shown, it will not be presumed
that the money had been paid over to the principal, unless from
the nature of the business, or the usual course 01 transacting it,
it would be expected that payment would be made to the prin-
cipal and not to the agent. 7 To show good faith in paying over,
the res gestcs of the payment are competent, 8 as well as the testi-
mony of the defendant. 9
In respect to illegal consideration, the law recognizes a dis-
tinction between enforcing an illegal contract and asserting title
to money which has arisen from it. 10 One who received money
in trust to pay it to plaintiff in discharge of an alleged indebted-
ness of the payer, cannot resist the action on the ground that the
contract between plaintiff and the payer, out of which the alleged
indebtedness arose, was illegal. The debtor waiving the objec-
tion, the depositary cannot avail himself of it. 11 The fact that the
defendant himself was the agent by whom the illegal agreement
was made, does not alter the case. It is not ignorance on his
part of such illegality, but the absence of any legal connection
between the new promise of defendant to deliver such money as
directed and the original contract, which precludes him from
1 France v. McElhone, 1 Lans. 7. See, however, chapters on ACCOUNTS STATID
and PAYMENT.
J Evans v. Birch, 3 Campb. 10.
3 Howe v. Savory, 49 Barb. 403, 51 N. Y. 631.
4 And a custom of banks to collect money as agents, without disclosing their
agency, is insufficient to show that a bank, in collecting, acted as agent. Canal
Bank v. Bank of Albany, 1 Hill, 287.
6 See Barbour v. Litchfield, 4 Abb. Ct. App. Dec. 665, and cases cited ; and chap-
ter on GOODS SOLD.
6 Tugman v. Hopkins, 4 M. <fc G. 389, 401.
7 Hathaway v. Burr, 21 Me. 667, 672. In an action against an agent for monev
alleged to be due to plaintiff, Held, that defendant might give in evidence a verbal
order of his principal not to pay the money. Thome v. Peck, 13 Johns. 315.
8 See, for instance, Knowlton v. Clark, 26 Ind. 395.
Seep. 281, n. 11.
10 Brooks v. Martin. 2 Wall. 81.
11 Merritt v. Millard, 3 Abb. Ct App. Dec. 291, s. c. 4 Keyes, 208, and cases cited,
afn'g 10 Bosw. 309.
BY DEFENDANT FOR PLAINTIFFS USE. 283
setting up such a defense. 1 But money received by defendant
under an illegal contract to which plaintiff was a party, cannot be
recovered if the action requires the enforcement by the court of
any unexecuted provision of the contract. 2
1 Id.; and see Wilkinson v. Tousley, 16 Minn. 299, s. c. 10 Am. R. 139. Charac
ter is not in issue on the question whether a debt was for money lost at play.
Thompson v. Brown, 4 Wall. 471.
4 Woodworth v. Bennett, 43 N. Y. 273, and cases cited, rev'g 53 Barb. 361. Com-
pare Knowlton V. Congress Spring Co. 67 N. Y. 518. Again, contra, 5 Reporter, 166.
CHAPTEE XVI.
ACTIONS ARISING ON SALES OF PERSONAL PROPERTY.
L ACTIONS FOR THE PRICK OF GOODS, <feo.
1. Grounds of actions.
2. Plaintiffs title.
3. License to sell
4. Ordinary sale by delivery.
6. Evidence of express agreement.
6. made by letter or telegram.
7. Memorandum under statute of
frauds.
8. Explaining writing by parol.
9. Proof of usage.
10. Plaintiff real party in interest.
11. Purchase by defendant's agent.
12. Defendant undisclosed principal.
18. liable, though acting asa^ent.
14. Assumption of third person's
order.
16. Question to whom credit was
given.
16. Identifying the thing agreed for.
17. Quiility and description.
18. Quantity.
19-23. Price and value.
24. Time for performance or payment.
25. Conditions and warranties.
26. Options.
27. Subsequent modifications.
28-30. Delivery, tender or offer.
31. Packing and freight.
32. The p.issing of the title.
33. Delivery to satisfy statute.
84. Part payment.
35-41. Documents, memoranda and
accounts.
42. Admissions and promises to pay.
43. Auction sales.
44. Sales by broker.
45-47. Demand, interest, non-pay-
ment.
IL DEFENDANT'S CASE.
48. Denial of contract.
49. Set-off against plaintiff's agent.
50. Denial of agency binding defend-
ant.
61. Plaintiff an agent for defendant.
62. Defendant not the buyer, but
agent for another.
53. By bidding at auction.
64. Recission.
65. Recoupment.
66. Defects in title, quantity or qual-
ity.
67. Deceit.
68. Inconsistent remedies.
69. Wager contract.
ILL ACTIONS AGAINST BUYER FOB NOT
ACCEPTING.
60. General principles.
61. Readiness to perform.
IV. ACTIONS AGAINST SELLER FOR NON-
DELIVERY.
62. General principles.
63. Orders and acceptance.
64 Readiness to perform.
65. Object of buying.
66. Defendants cave. Only an agent.
67. Intermediate destruction of the
thing sold.
V. ACTIONS AND DEFENSES ARISING ON
WARRANTY.
68. Grounds of action for breach of
warranty.
69. Pleading.
70. Warranties of things in action.
71. Warranty of title.
72. Express warranty.
73. Agent's authority to warrant.
74. Implied warranty on executed sale.
75. executory sale.
76. Sale by sample.
77. Presumption of knowledge.
78. Parol warranty on written sale.
79. Parol evidence to explain.
80. Variances in contract and breach.
81. Breach.
82. Opinions of witnesses.
83. Admissions and declarations.
84. Omission to return the article.
85. Damages.
86. Disproof of implied warranty.
87. Buyer's knowledge of defect.
88. Seller's good fai.h.
89. Former adjudication.
[284J
THE FACT OF SALE. 285
I. ACTIONS FOB THE PRICE OF GOODS, &o.
1. Grounds of action.'] The characteristic facts constituting
the cause of action, are that plaintiff, at the defendant's request,
sold and delivered to him personal property for which he owes
the price or value. 1 These facts are implied in and admissible
under a general allegation that " defendant is indebted to plaint-
iffs in the sum of, &c., for goods sold and delivered to defendant
bj plaintiffs at a time and place named, on defendant's request. 2
The agreement of sale is of the gist of the action. 3 Evi-
dence of an agreement which is to be regarded as one for the
manufacture of goods for defendant rather than for a sale to
him, is not an entire failure of proof ; and the variance may be
disregarded, 4 unless defendant is surprised to his prejudice. 5 On
the other hand, if the facts on which the law raises an implied
promise to pay are directly stated, an allegation of such promise
is not necessary. 6 Under the new procedure, 7 as well as at com-
mon law, 8 where plaintiff may waive his right of action for dam-
ages for the tortious conversion of personal property, and recover
in assumpsit, he may prove the facts under a complaint for goods
sold and delivered. 9 If the evidence supports allegations in
the complaint of a cause of action on contract, the failure to
prove superfluous allegations of fraud, will not prevent a recov-
ery ; 10 but if the fraud is alleged as the gist of the action, so that
on judgment against defendant, execution would go against his
person, a failure to prove the fraud is fatal, 11 unless an amend-
ment is allowed, or a waiver of the tort put on record.
I Allen v. Patterson, 1 N. Y. (3 Seld.) 476.
s Id. As to the sellers election of remedies, see Dustan v. McAndrew, 44 N. Y.
72, affi'g 10 Bosw. 130.
3 On a voluntary delivery to defendant, in payment of his demand against a
stranger to the transaction, the deliverer cannot receive the value from the deliveree,
on the ground that the delivery was made pursuant to a parol promise void under
the statute of frauds. Fowler v. Moller, 10 Bosw. 374.
4 Union Rubber Co. v. Totnlinson, 1 E. D. Smith, 364. Compare Prince v. Down,
2 Id. 625.
6 The chief importance of the distinction is in the fact that on a contract for
manufacture, <fec., compliance with the statute of frauds need not be shown.
Farron v. Sherwood, 17 N. Y. 227.
7 Weigand y. Sichel, 4 Abb. Ct. App. Dec. 595 ; Abbott v. Blossom, 66 Barb.
853 ; Harpending v. Shoemaker, 37 Id. 270 ; see also Pomeroy on Hem, 567, <fec. ;
Link v. Vaughn, 17 Mo. 585 ; Robinson v. Rice, 20 Id. 229.
8 See Osborn v. Bell, 5 Den. 370 ; Hinds v. Tweddle, 7 How. Pr. 278, and cases
cited.
To the contrary where there was an express contract to account. Moffat v.
Wood, Seld. Notes, No. 5, 14 ; but see Roth v. Palmer, 27 Barb 652.
10 Graves v. Waite, 69 N. Y. 156 ; Ledwich v. McKim, 53 Id. 307.
II See Ross v. Mather, 61 N. Y. 108 ; De Graw v. Elmore, 50 Id. 1. The reason of
the rule is, that on the one hand, if plaintiff alleges and proves facts raising an im-
plied promise or an express contract, the tortioua conduct of defendant ought not to
exonerate him. On the other hand, if the complaint states a tort as the cause of
action, defendant may be preclude' I from pleading counterclaims, and will be liable to
imprisonment; hence, a failure tu prove the tort is not a mere variance. If the
286 ACTIONS FOR PRICE OF GOODS, <feo.
The delivery, under an agreement alleged as a sale and deliv-
ery, or its equivalent so far as plaintiff's duty is concerned, is
essential to the theory of the action. 1 But if, where proof of
delivery fails, the facts in evidence would sustain an action for
damages for defendant's refusal to complete his bargain, the case
is one of variance merely, not of entire failure of proof, and the
court or referee may allow an amendment. 2 So, under an allega-
tion that the sale and delivery was to defendant, evidence of a
sale to defendant on his credit, and of delivery to a third person
at his request, is not an entire failure of proof, but only a ques-
tion of variance, even though the sale was for the benefit of such
third person. 3 Failure to prove a superfluous allegation of
promise to indemnify, &c., may be disregarded. 4
For the greater convenience of the reader we will consider
first, the rules applicable in the more common action for price,
although they are to some extent applicable also in actions for
refusal to deliver, &c., and, then, those peculiar to special and
executory contracts, and to warranties.
2. Plaintiff's title to the goods, c&c.~\ The usual allegation that
plaintiffs sold and delivered goods, &c., sufficiently imports that
the goods belonged to them? Evidence of title is not usually
required, 6 and when required, unless title is specially put in issue,
very slight evidence is enough, and if plaintiff proves sale and
delivery, 7 he is not bound to give further evidence of his title
than the fact that he had actual possession and control. 8 If one
purchases a doubtful right, he concedes the right, and cannot
afterward dispute it in an action for the price. 9 On the ques-
tion of title, evidence of the plaintiff's declarations of ownership,
made while in possession and before sale, and explanatory of the
existing possession, is competent in his own favor, and if clear,
they are prim a facie evidence of his title. 10 The admissions and
declarations of one under whom plaintiff claims, and who is de-
frame of the complaint is such as to present contract as the cause of action, unproved
allegations of tort are mere variance, to be disregarded, unless defendant has been
surprised and prejudiced. Contra, now by N. Y. Code Civ. Pro. 629.
1 Evans v. Harris, 19 Barb. 416 ; Catlin v. Tobias, 26 N. Y. 217.
* Dunnigan v. Crummey, 44 Barb. 528, and cases cited.
3 Rogers v. Verona, 1 Bosw. 417. Compare Cowdin v. Gottgetren, 55 N. Y. 650.
At common law not even a variance. Porter v. Me Cluer, 15 Wend, 189, and cases
cited (BRONSO.V, J.) ; and see Monroe v. Hoff, 5 Den. 360.
4 Hay v. Hall, 28 Barb. 378.
5 Phillips v. Bartlett, 9 Bosw. 678. And if they were partners, an allegation of
partnership is not necessary. Id. Under an allegation that property belonged to
plaintiff, proof that it was consigned to him as factor, he being chargeable with its
value, whether sold, lost, or destroyed, held not a material variance Gorum v
Carey, 1 Abb. Pr. 285.
'Compare Gi'more v. Wilbur, 18 Pick. 517.
* Compare Cobb v. Williams, 7 Johns. 24.
8 Fitzpatrick v. Caplin, 4 E. D. Smith, 365 ; Reilly v. Cook, 13 Abb. Pr. 255,
8. c. 22 How. Pr. 93.
* Compare Costar v. Brush, 25 Wend. 628.
10 Roebke v. Andrews, 26 Wis. 311. Compare Tilson v. Terwilligor, 6t> N. Y. 273.
THE FACT OF SALE. 287
ceased, if against his interest when made, are competent in sup-
port of plaintiff's title. 1
3. License to sell.'] Plaintiff will be presumed to have a
license, if one be necessary to render the sale lawful. 2 But if the
lack of one is shown, there is no presumption that one would
have been taken out in time. 8
4. Ordinary sale ly delivery.'] The agreement, price and de-
livery may all be proved by uncontradicted evidence showing an
account rendered by plaintiff to defendant on the face of which
he is charged as the buyer, and that he unqualifiedly admitted
the justice of the demand. 4 Where the admission is susceptible
of being understood as referring only to the correctness of items
in description or price, other evidence of delivery of the goods
must be adduced. Admissions as proof of either -separate fact
will be further considered below. Under an allegation of sale
and delivery to or by a party, evidence of the act on the part of
his agent is admissible. 5
5. Evidence of express agreement.'] A witness testifying to a
sale, can state it in general terms, subject of course to cross-exam-
ination ; but cannot state his opinion or understanding, as dis-
tinguished from his recollection or impression of the acts and
conversation of the parties. 6 If it appear by the testimony that
there was a written contract, it must be produced, or its absence
accounted for, to open the way for parol evidence of its con-
tents ; 7 and plaintiff must prove performance of its conditions.
A mere receipt for price, though specifying the goods, 8 or for the
goods, though specifying the price, is not the primary evidence
1 Thus in a broker's action, the declarations of the owner of the goods that he
had sold them, and received the price from the broker as guarantor, are, after the
death of the declarant, competent against the buyer, to show that the right of action
was transferred from the declarant to the broker. White v. Choutean, 10 Barb. 202,
a. P. in a further decision, 1 E. D. Smith, 493.
8 Smith v. Joyce, 12 Barb. 21 ; and see McPherson v. Cheadell, 24 Wend. 15 ;
Thompson v. Sayre, 1 Den. 175.
3 See Kane v. Johnston, 9 Bosw. 154.
4 See Power v. Root, 3 E. D. Smith, 70; Jaques v. Elmore, 7 Hun, 675; K Y.
Ice Co. v. Parker, 21 How. Pr. 802; Griffin v. Keith, 1 Hilt. 58; Webb v. Chambers,
3 Ired. (No. Car.) 374. This is the better opinion (see Pow. Ev. 226), although other
proof of delivery has been sometimes required at circuit.
6 Sherman v. N. Y. Central R. R. Co. 22 Barb. 239.
6 Murray v. Bethune, 1 Wend. 191 ; and see on this distinction, 3 Abb. N. C.
229. %
7 Unless defendant's admission of its contents is received as primary evidence.
Slatterie v. Pooley, 6 Mees. & W. 664. Compare Northrup v. Jackson, 13 Wend. 85.
As to destruction of the instrument, see Tayloe v. Riggs, 1 Pet. 691 ; Steele v. Lord,
70 N. Y. 280, and cases cied. Items charged in an account as goods delivered on
defendant's orders will not be presumed to have been delivered on written orders.
Smith v. Joyce, 12 Barb. 21.
8 See Terry v. Wheeler, 25 N. Y. 620; but compare Bonesteel v. Flack, 41 Barb.
435, s. c. 27 How. Pr. 310.
288 ACTIONS FOR PRICE OF GOODS, Ac.
of the contract, such as to render oral testimony secondary ;* nor
is a memorandum of the terms of sale, made by one party, 2 or by
a witness, 3 and not communicated to, or not assented to by the
other as for instance where it was made by the broker of both
merely for the purpose of preserving a charge of his commis-
sions.* Evidence that the buyer, after receiving a written state-
ment of terms, took possession of the property without dissent,
shows an acceptance of, and acquiescence in the terms. 5 Where
the contract refers to a written instrument not as embodying the
contract, but for ascertaining some of the terms of the contract,
it is not necessary to prove the execution of the latter in order
to admit it in evidence in establishing the contract sued on ; but
identifying it is enough. 6
A contract for a sale on fixed terms as to price or otherwise,
is admissible under a general allegation of sale and delivery, &c.,
if all the conditions of the contract are fulfilled, and nothing
remains but payment of the price. 7
A written contract is admissible under an allegation of the
contract, not stating that it was in writing ; 8 and an allega-
tion that there was a writing is not needed, even when the writ-
ing is necessary by reason of the 'statute of frauds. 9
If the contract was in duplicate, the production of either one
will be enough, if signed by the defendant, 10 without producing
or accounting for the other. 11 If it consists of two or more parts,
one containing the consideration for the other, both must be pro-
duced or accounted for, unless the one is complete in itself. 12
An invoice is, alone, no evidence of a sale, 18 but may be made
1 Southwich v. Hayden, 7 Cow. 334. If the sale was of a note or other written
evidence of debt, the rule does not require the production of the note, Ac. Lamb
v. Moberly, 3 Monr. (Ky.) 179.
8 Meacham v. Pell, 6 1 Barb. 65. It is competent if it was communicated. Lath-
rop v. Bramhall, 64 N. Y. 365.
3 Parsons v. Disbrow, 1 E. D. Smith, 547.
4 Gallaher v. Waring, 9 "Wend 28.
6 Dent v. K A. Steamship Co. 49 N. Y. 390. Compare 1 Wall. 359.
6 Smith v. N. Y. Central R. R. Co. 4 Abb. Ct. App. Dec. 262.
7 Moffett v. ^ackett, 18 N. Y, 522 ; Porter v. Talcott, 1 Cow. 359, and cases cited.
And at common law this rule was applied where conditions not performed hnd been
forfeited by the defendant. Corlies v. Gardner, 2 Hall, 345; Clark v. Fairchild, 22
Wend. 583. Otherwise now: see Oakley v. Morton, 11 N. Y. 25. Compare Holmes
v. Holmes, 9 N. Y. 525, affi'g 12 Barb. 137.
8 See page 293 of this vol. ; and Tuttle v. Hannegan, 54 N. Y. 686, affi'g 4
Daly, 92.
1 Greenl. Ev. 86.
10 Stephen Di<j. Ev. art. 64.
11 See Cleveland, Ac. K. R. Co. v. Perkins, 17 Mich. 296.
18 Dobbin v. Watkins, Col. A C. Cas. 39, s. c. 3 Johns. Cas. 2 ed. 415. But see
paragraph 44, and page 523 of this vol.
18 It does not of itself necessarily indicate to whom the things are sent, or even
that they have been sent at, all. Hence, standing alone, it is never regarded as evi-
dence of title. Dows v. National Exchange Bank of Milwaukee, 91 U. S. (1 Otto),
618,630. As between the consignor and consignee, the bill of lading cannot he
regarded as a contract in writing, but merely as an admission or declaration on the
THE FACT OF SALE. 289
relevant by connected writings l or parol evidence of intention.
A bill of parcels or particulars, expressing that defendant
bought the goods of plaintiff, if shown to have accompanied the
goods to defendant's possession, 2 is prim a facie, but not conclu-
sive evidence that the transaction was a sale. 8
Oral evidence is competent, to show that a mere receipt for
merchandise 4 or for the money as an advance on merchandise to be
delivered, 3 or a mere unilateral promise in writing by the buyer, tp
pay a certain sum, not stating any terms of sale, 6 was given on a
sale, and to prove the terms of the sale ; for such a receipt or
promise is not a written contract within the rule excluding parol
evidence to explain or vary it. Otherwise of an instrument that
expressly imports a bailment or storage, 7 unless shown to have
been delivered subsequently to a completed sale. 8
6. made lyy letter or telegram."] To prove a contract made
by a proposal and assent through correspondence (as distinguished
from the filling of an order received by mail), it is not enough
to prove that the proposal was assented to by a mental act, nor
by conduct unknown and not communicated to the proposer. 9
But it is not necessary to prove that the assent actually came to
the knowledge of the proposer, nor does evidence that it did not
come to his knowledge avail. 10 It is enough to prove that the
assenting party duly mailed or delivered to the telegraph com-
pany 11 (whichever was the adopted course of correspondence), 13
an unqualified 13 assent ; and from the moment the communication
part of the consignor as to his purpose, at the time, in making the shipment, and
such admission is subject to be rebutted by other circumstances connected with the
transaction. Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360, s. c. 18 Am. R.
299 ; s. P. Beebe v. Mead, 33 N. Y. 587.
1 Buxton v. Rust, L. R. 7 Exch. 1, 5, s. o. 1 Moak's Eng. 136, 139.
9 Or to have been received by him before delivery of the goods. Dent v. N. A.
Steamship Co. 49 N. Y. 390.
8 Sutton v. Crosby, 54 Barb. 80 ; Beebe v. Mead (above).
4 Though containing such words as " at $ per bushel." Sheldon v. Peck, 13
Barb. 317 ; or " consigned for six months." George v. Joy, 19 N. H. 544 ; Benj. on
S. 213.
B Potter v. Hopkins, 25 Wend. 417.
8 Tisdale v. Harris, 20 Pick. 9. ,
7 Wadsworth v. Allcott, 6 N. Y. 64 ; Stapleton v. King, 33 Iowa, 28, s. c. 11 Am.
R. 109. Compare Rahilly v. Wilson, 3 Dill. 420.
8 See Allen v. Schuchardt, 1 Am. L. Reg. 13 ; Domestic Sewing Machine Co. v.
Anderson, 23 Minn. 57.
' White v. Corlies, 46 N. Y. 467. Compare Lungstrass v. German Ins. Co. 40*
Mo. 201, s. c. 8 Am. R. 100.
10 Vassar v. Camp, 11 N. Y. 441, affi'g 14 Barb. 341.
11 Parka v. Comatock, 59 Barb. 16 ; Trevor v. Wood, 86 N. Y. 307, 8. c. 3 Abb. Pr.
N. S. 355, rev'g 41 Bnrb. 255, s. o. 26 How. Pr. 451.
19 An offer sent by mail by one who must have known that the regular usage of
conducting business waa to reply by mail, implies authority to communicate accept-
ance by mail. Wall's Case, L. R. 15 Equity, 18, s. c. 6 Moak's Eng. 686.
13 As to what is a qualification such as to preclude assent, see Vassar v. Camp, 11
N. Y. 44i, affi'g 14 Barb. 341 ; Clark v. Dales, 20 Barb. 42 ; Beck's Case, L. R. V Oh.
App. 892, s. c. 8 Moak's Eng. 929.
10
290 ACTIONS FOR TRICE OF GOODS, Ac.
thus passed beyond his control the contract was complete, 1 unless
the proposal had been revoked, by notice previously actually reach-
ing nim, 2 or by the death of the proposer. 8 "Where the contract
is made by correspondence the original letters or telegrams con-
stituting it are the primary evidence. In the case of a letter, the
original which was actually sent must be produced or accounted
for, or a duplicate made and signed as such at the time. A press
cppy is not competent in lieu of it without laying proper founda-
tion for secondary evidence. 4 "When such foundation is laid, a
copy may be put in evidence by calling the person who made it,
or some other witness who has compared it with the original, to
swear to its accuracy. An entry purporting to be a copy, made
in a letter-book by a clerk since deceased, is competent prima
facie evidence of the contents of the original, upon proof that
according to the usual course of the employer's business, letters
by him were copied by this clerk ; and if it be a hand copy, not
a press copy that this entry was in the clerk's handwriting, and
that in otner instances his copies had been examined and found
correct. 5 Evidence that it was the usual course of business of
the deceased clerk to mail letters thus copied by him, is prima
facie evidence that the original was mailed. 6 A sworn copy of a
letter-press copy is competent secondary evidence of the contents
of the letter, without producing the letter-press copy, if produc-
tion of the letter-book is offered and not required. 7 Where a
press copy is produced as secondary evidence, a witness may be
asked if it appears to be in the handwriting of the party ; then
by proving that it is a press copy, it will follow that the letter
was his.
If the communication was by telegraph, the appropriate
primary evidence, in strictness, is sometimes the original mes-
sage delivered to the telegraph company by the sender, and some-
times the transcript delivered by the company to the receiver.
The question depends on whether it is desired to prove the act of
the sender as the manifestation of assent, 9 or admission 10 on his
1 The leading case is Mactier v. Frith, 6 Wend. 103, 117, rev'g 1 Paige, 434, 8. p.
Re Imperial Land Co. L. R. 7 Ch. 587 ; opposed in 7 Am. Law Rev. 433. In the ap-
plication of this rule observe that it is based on the mail or telegraph being the usual
and proper course of communication. If the parties are in the same place, accept-
ance sent by mail or telegraph, and not actually reaching the party, is not enough,
unless that mode of communication was authorized by him, or the proposal was com-
municated by him in the same way. In general a communication sent in either
method may be accepted by assent put on its course in the same method.
8 Wheat v. Cross, 31 Md. 99, s. c. 1 Am. R. 28, and cases cited.
3 See Mactier v. Frith (above).
4 1 Tayl. Ev. 414. Where the copies are made by manifolding or by printing
from a stencil, as in the use of the papyrograph or electric pen, the principle that each
is an original seems applicable, as in the case of ordinary printing.
6 Pritt v. Fairclough, 3 Campb. 305.
8 Id. ; and see 3 Campb. 879 ; and 61 N. Y. 362.
7 Goodrich v. Weston, 102 Mass. 3G2, s. c. 3 Am. R. 469.
8 Commonwealth v. Jefferies, 7 Allen, 561.
9 As in Trevor v. Wood, 36 N. Y. 307, s. c. 3 Abb. Pr. N. S. 358.
10 See Commonwealth v. Jefferies, 7 Allen, 563.
THE FACT OF SALE. 291
part ; or to prove actual notice to the receiver. 1 In the former
case, the sender's message as delivered to the telegraph office is
primary evidence. In the latter case the company's transcript,
as delivered to the receiver is the only primary evidence. In
either case the duplicate that is not the primary evidence is com-
petent as secondary evidence, and from it the jury may infer the
other. 2 The telegraph clerks are not privileged merely because
of the character of their vocation. 3
A written order, shown, by proof of handwriting, 4 or other-
wise, to have come from defendant or his authorized agent, pro-
duced from plaintiffs possession, is competent without proof of
the mode of its transmission, for it will be presumed to have
been duly delivered ; 5 and if shown to have been received in due
course of mail, in answer to letters mailed to the alleged writer,
it may be presumed to have come from him. 6 The date of the
paper, if it be dated, is prima facie evidence of the time it was
written, 7 unless its competency as evidence depends on the date,
in which case plaintiff should be prepared with other evidence on
that point. 8 Evidence that a letter was duly mailed 9 in the post-
office or government letter box, 10 or deposited in the box or other
place where the person addressed was accustomed to have his let-
ters received, 11 will sustain an inference that he received it, 12 even
though he testify that he did not. 13 The post-mark is prima
facie evidence of the time and place when the communication
was in the post-office, 14 but not of the time when it was first
put in. 15 Its genuineness should be shown.
The mere fact that a letter or telegram put in evidence was
sent in response to a previous one, or was one of a series of connected
correspondence, nor even the fact that it refers to the previous
letter to which it was an answer, does not render it incompetent
1 As where the offerer desires to revoke; see Wheat v. Cross, 31 Md. 99, s. c. 1
Am. R. 28.
8 See Commonwealth v. Jefferies (above).
8 State v. Litchfield, 58 Me. 267.
4 See Chapter on BILLS, NOTES AND CHECKS.
5 See, for this principle, p. 259, paragraph 12; p. 266, paragraph 20.
6 See Bush v. Miller, 13 Barb. 487.
T Livingston v. Arnoux, 36 N. Y. 519, affi'g 15 Abb. P. N. S. 158.
8 Smith v. Shoemaker, 17 Wall. 637. Compare Jermain v. Dennison, 6 N. Y.
276.
9 Huntley v. Whittier, 105 Mass. 891, s. o. 7 Am. R. 536, and cas. cited; 3 Dill. 571.
10 See 2 Abb. New Cas. 70, note.
11 Howard v. Daly, 61 N. Y. 366.
1S A stricter rule is applied in some other actions. See p. 224 of this vol., and
Carpenter v. Providence Ins. Co. 4 How. U. S. 220. Whether there is a presump-
tion by the law, or only ground for an inference by the jury, compare further, Allen
V. Blunt, 2 Woodb. & M. 121, 130 ; Bank of Bellefontaine v. McManigle, 69 Penn.
St. 156, 8. o. 8 Am. R. 236.
18 Huntley v. Whittier (above) ; Wall's Case, L. R. 15 Eq. 18, 8. c. 6 Moak's Eng.
686, 693.
14 2 Abb. New Cas. 70, Note. As to ita genuineness, see 2 Tayl. Ev. 1229.
"Id.
292 ACTIONS FOR PRICE OF GOODS, ko.
without the other, nor compel him who puts it in to offer that
also, although it entitles the other party to offer the connected
letter if he desires. 1 But unless the communication on its face
appears to embody all the terms intended to be assented to, either
party may show that it was sent in answer to a previous one of
such nature that it should be read or taken with the answer, in
order that the whole contract may appear ; 2 and if this be shown,
the earlier letter will be a necessary part of the primary evidence
of the contract. 3
If the contract was made by correspondence, and it is not
apparent on the face of the communication offered in evidence
that it was intended as embodying the terms of the contract at
large, then for the purpose of determining whether it constituted
the contract within the rule which excludes oral evidence to vary
a contract, oral evidence is admissible of the circumstances and
purpose in which it was sent ; and the question is whether, ac-
cording to the intent and understanding of the parties at the time
it was sent and received, it was the expression of the contract, or
only a part of it. 4 If the latter, the other terms may be shown
by parol. 5 If the correspondence appears to embody the con-
tract, it constitutes the primary evidence, and is within the rule
forbidding parol evidence to explain a writing. 6
T. Requisite memorandum under Statute of Frauds. .] If the
price is $50 or more, or, where no price was fixed, if the value
be clearly proven to be worth that sum, 7 the statute of frauds 8
requires evidence that the agreement, or some note or memoran-
dum thereof, was in writing, and subscribed 9 by the party to be
charged therewith, 10 or his lawful agent, 11 unless part payment or
delivery is shown. The writing is competent under a general
1 Stone v. Sanborn, 104 Mass. 319, &. c. 6 Am. R. 238, disapproving 1 C. <fc K.
626. And see Gary v. Pollard, 14 Allen, 285.
2 Beach v. Raritan, <fcc. R. R. Co. 37 K Y. 463, 464.
3 See Hough v. Brown, 19 N. Y. Ill ; Myers v. Smith, 48 Barb. 614 ; Brisban v.
Boyd, 4 Paige. 17 ; Clark v. Dales, 20 Barb. 42 ; Brayley v. Jones, 33 Iowa, 608.
4 Beach v. Raritan, <fcc. R. R. Co. 37 N. Y. 463, 464.
6 Id.
6 Whitmore v. South Boston Iron Co. 2 Allen, 52, s. o. 1 Am. L. Reg. 408.
7 See p. 3 of this vol.
8 N. Y. R. S. 135, 2 (3 Id. 6th ed. 142).
At the end.
10 Subscription by both is not essential, even on the ground of mutuality. Justice
T. Lang, 42 N. Y. 493, 52 N. Y. 323, 39 Super. Ct. (7 J. & S.) 283. And see Butler
v. Thompson, 92 U. S. (2 Otto), 412, 11 Blatchf. 533. And the fact that plaintiff
added his signature, and afterward erased it, does not alone prevent his using the
paper in evidence. Rhoades v. Castner, 12 Allen, 130. The statute does not apply
to agreements for production or manufacture, as distinguished from agreements of
sale. For a ready clue to the conflicting cases on this vexed distinction, see Smith
v. Jf. Y. Central R. 4 Abb. Ct. App. Dec. 262 ; Cooke v. Millard, 5 Lans. 243, 65 N.
Y. 352; Deal v. Maxwell, 51 N. Y. 652; Flint v. Corbett, 6 Daly, 429 ; Pitkin v.
Noyes, 48 N. H. 294, s. c. 2 Am. R. 218; Goddard v. Binney, 115 Mass. 450, 8. o. IB
Am. R. 112.
11 2 N. Y.
' THE FACT OF SALE. 293
allegation of contract without specifying writing. 1 If, however,
the complaint does not affirmative!^ indicate that the contract
was void under the statute, and the answer admits the contract,
without alleging the facts showing it to be void under the stat-
ute, evidence of compliance with the statute is dispensed with
by the admission. 2 The note or memorandum may be distin-
guished from the contract of which it is the evidence. 3
It matters not how many papers must be taken together
to make out the note or memorandum, 4 nor how informal they
are, 5 if the statute is substantially complied with ; but where
several papers are resorted to, each must be subscribed by defend-
ant, or imported, by reference or annexation, into one that is, leav-
ing nothing to be supplied by parol, to complete the memorandum,
except evidence of the identity of the paper. 6 Parol proof is com-
petent to supply the reference, where it can be done clearly and
with certainty. 7 If the paper is not addressed to plaintiff, oral
evidence of its delivery to him is competent; but not always
essential. 8 If interlineations appear, oral evidence that they were
assented to is competent. 9 The memorandum must be complete,
so far as that all elements of the contract or engagement on the
part of the defendant, or party sought to be charged, must be
stated, 10 or legally presumble from what is stated ; n and defects
cannot be supplied by parol ; w but the fact of its delivery, 13 and
that plaintiff, in consideration, promised to perform on his part,
may be proven by parol, 14 as well as the rate of payment, if the
1 Washburn v. Franklin, 7 Abb. Pr. 8, 8. c. 28 Barb. 27.
2 Duffy v. O'Donovan, 46 N. Y. 223 ; Spear v. Hart, 3 Robt. 420.
3 Boardman v. Spooner, 13 Allen, 353 ; Benj. on S. 209 ; Williama v. Bacon, 2
Gray, 387 ; Marsh v. Hyde, 3 Id. 331. And see 56 N. Y. 503.
As, for instance, the rules of an exchange, and the memoranda of a transaction
by its members (Peabody v. Speyers, 56 N. Y. 230) ; or ordinary commercial corre-
spondence (Thompson v. Menck, 4 Abb. Ct. App. Dec. 400, rev'g 22 How. Pr. 431 ;
Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140, s. c. 12 Moak's Eng. 211).
6 Same cases ; and see Argus Co. v. Mayor, <fec. of Albany, 55 N. Y. 495, affi'g in
effect 7 Lans. 264.
Pierce v. Corf, L. R. 9 Q. B. 210, s. c. 8 Moak's Eng. 316. Thug, defendant's
assent may be proved by his writing in answer to a request from plaintiff for the
contract: " I send yon a copy of your letter of, <fcc.," inclosing it. This, though not
intended as a recognition, is, if signed by him, a sufficient signing of a memorandum.
Buxton v. Rust, L. R. 7 Exch. 1, 5, s. c. 1 Moak's Eng. 135, 139. Compare Hicks v.
Cleveland, 48 N. Y. 84 ; Neubery v. Wall. 65 Id. 484 ; and paragraphs 43 and 44.
i Beckwith v. Talbot, 95 U. S. (5 Otto), 289, 292.
8 Darby v. Pettee, 2 Duer, 139 ; and see 55 N. Y. 495 ; Peabody v. Speyer, 56 Id.
236.
Stewart v. Eddowes, L. R. 9 Com. PI. 311, s. c. 9 Moak's Eng. 405.
10 Wright v. Weeks, 25 N. Y. 153, affi'g 3 Bosw. 377.
11 Id. ; Warren v. Wihne, 2 Lans. 209.
12 Wright v. Weeks (above); Calkins v. Falk, 1 Abb. Ct. App. Dec. 291, affi'g 39
Barb. 620. But where the terms are stated, an ambiguity as to what thev mean may
be cleared by oral evidence, if it can be done by showing the surrounding circum-
stances, as distinguished from the oral stipulations of ttie parties. Hagan v. Domes-
tic S:wing Machine Co. 9 Hun, 73 ; and see 25 N. Y. 153, 12 Id. 40.
11 See 55 N. Y. 504.
14 This is the sound principle, and goes further than any other view to harmonize
294 ACTIONS FOR PRICE OF GOODS, <fco.
memorandum states the means of determining the rate. 1 So the
performance by the plaintiff may be proved by parol ; and evi-
dence of a parol modification in this respect does not impair the
effect of the memorandum. 2
8. General rule as to Explaining writing by Parol.'] In the
present state of the law, the rule excluding parol to vary a writ-
ing, in its application to commercial sales, amounts to little
more than this principle : viz., that when the parties or their
agents have embodiecl the terms of their agreement in writing,
neither can, in an action between themselves (unless impeaching
the instrument), give oral evidence that they did not mean that
which the instrument, when properly read, expresses or legally
implies, or that they meant something inconsistent therewith.
In more detail, the rule and its established exceptions may be
stated thus: A written instrument, although it be a contract
within the meaning of the rule on this point, does not exclude
oral evidence tending to show the actual transaction, in the fol-
lowing cases :
1. Where the action is not between the parties to the instru-
ment, nor those claiming under and in privity with them. 8
2. Where the object of the evidence is to impeach the validity
of the instrument, or any part of it. 4
3. Where the object of the evidence is to establish a separate
oral agreement constituting a condition precedent to the existence
of an obligation claimed to arise on the instrument. 5
4. Where the object of the evidence is simply to show the
surrounding circumstances of the parties, and of the subject of
the contract, and the usages of language under which the instru-
ment was written, in order to enable the court to read the
instrument with the same knowledge with which the parties
wrote it. 6
5. Where the language of the instrument leaves its meaning
the conflict in the cases. See cases above cited, and Justice v. Lang, 52 N. Y. 323.
and cas. cited; Williams v. Morris, U. S. Supreme Ct. (17 Alb. L. J.) 56. But of
course acceptance with modification cannot be proved by parol. Jenness v. Mount
Hope Iron Co. 53 Me. 20; Benj. on S. 210.
1 As where it specified " current rates " (55 N. Y. 504), or even left the parties to
a quantum meruit. Id. Compare Stone v. Browning, 68 N. Y. 598.
8 Leather Cloth Co. v. Hieronimus (above).
3 See page 7 of this vol., paragraph 16, and Coleman v. First Nat. Bank, 53 N.Y. 388.
4 As, for instance, for want of due execution or delivery, or for illegality, fraud,
duress, or lack of consideration, or as made under mistake (see chap. 14, and the chap-
ters on these defenses), and the rnle is the same whether the party adducing the evi-
dence seeks to avoid the instrument, or to have it reformed. 1 Story's Eq. Jur.
156, Ac.
5 Pym v. Campbell, 6 E. & B. 370; Wallis v. Littell, 11 C. B. N. S. 369. Other-
wise of a deed delivered to the party. "Worrall v. Munn, 5 N. Y. 229. A condition
tubsequent cannot be proved by parol. Gridley v. Dole, 4 N. Y. 486.
6 See p. 130 of this vol. ; and Dana v. Fiedler, 12 N. Y. 40, affi'g 1 E. D. Smith,
463 : Pollen v. Le Roy, 30 N. Y. 549, affi'g 10 Bosw. 38 ; Messmore v. N. Y. Shot &
Lead Co. 40 N. Y. 422.
THE FACT OF SALE. 295
doubtful, 1 or extrinsic facts in evidence raise a doubt in respect
to its application. 2
6. Where it appears that the instrument was not intended to
be a complete and final statement of the whole transaction, and
the object of the evidence is simply to establish a separate oral
agreement on a matter as to which the instrument is silent, and
which is not contrary to its terms, nor to their legal effect. 3
7. Where the object of the evidence is to show a usage legally
affecting the parties, by which incidents not expressly mentioned
in such contracts are annexed to or implied in them, if the
usage be not repugnant either to the express terms or the legal
effect of the contract. 4
8. To show, if the contract be unsealed, that it was made for
the benefit and on behalf of the partv suing or sued upon it, even
though he be not named in it ; or, if it be sealed, that it was so
made, and has been duly ratified by such party. 5
9. To show that the date was erroneous. 6
10. To show that the consideration was different from that
stated (except for the purpose of defeating the instrument), 7 or
that it was not paid, though payment was acknowledged. 8
11. To show that a transfer absolute on its face was given as
security 9 or in trust. 10
12. To show the mistake which caused a repugnancy appear-
ing on the face of the instrument. 11
13. Where the object of the evidence is to show a separate
subsequent valid agreement to rescind, modify, extend, or waive u
the contract or a provision of it.
The rule that the contract cannot be varied by parol, when it
is applicable, excludes evidence which would vary any obligation
implied by law from its terms, as well as that which would di-
rectly vary its terms. 13
The admissibility of oral evidence under these rules is subject
to the qualification that oral evidence cannot satisfy the demand
of the statute of frauds for a memorandum in writing.
1 Robinson v. United States, 13 "Wall. 363.
* Moore v. Meacham, 10 N. Y. 207; Agawam Bank v. Stever, 18 N. Y. 502.
8 Hcineman v. Heard, 39 N. Y. 98 ; Blossom v. Griffin, 13 N. Y. 569.
4 See paragraph 9.
5 See paragraphs 10-12.
6 Draper v. Snow, 20 N. Y. 331. And so it seems of the place of execution. Id.
7 McCrea v. Purmort, 16 Wend. 460, affi'g 5 Paige, 620; s. p. 10 N. Y. 538. Com-
pare Halliday v. Hart, 30 N. Y. 474.
8 Bingham v. Weiderwax, 1 N. Y. 509.
Horn v. Keteltas, 46 N. Y. 605.
10 Britton v. Lorenz. 45 N. Y. 51, affi'g 3 Daly, 23 ; and see Chapter XV.
11 McNulty v. Prentice, 25 Barb. 204.
13 Stockwell v. Holmes, 33 N. Y. 53 ; Carroll v. Charter Oak Ins. Co. 1 Abb. Ct
App. Dec. 310, affi'g 40 Barb. 292 ; but subject to the statute of frauds.. Shultz v.
Bradley, 57 N. Y. 646.
. > La Farge v. Rickert, 5 Wend. 187; Thorp v. Ross, 4 Abb. Ct. App. Dec. 416.
ACTIONS FOR PRICE OF GOODS, Ac.
9. General rule as to proof of Usage.] The common law
rule excluding oral evidence in modification of written, depends,
so far as contracts are concerned, upon the presumption that
the parties intended their writing to define their rights and
liabilities, and adopted the writing because they did not wish to
leave any question open to the uncertainty of memory. But in
regard to commercial contracts, especially sales, the known and
settled usages of business are relied on as a similar safeguard ;
and from the brevity with which commercial contracts are
despatched, in the ordinary course of trade, arises another
counter presumption to the effect that the parties did not intend
in their memorandum to express what is defined by the usages of
the trade, but only those parts of the transaction which usage
would not define, 1 together also with any stipulations by which
they desired to depart from the usage, and mate for this transac-
tion a different rule. The same principles are involved where a
transaction is had orally, and usage is relied on to define its
effect. Hence, the three chief rules as to what usage is provable
to establish or vary a contract of sale.
It must be, 1. A usage which the parties knew or ought to
have known ; 2. one which is consistent with the general law
merchant ; 2 and 3, not incompatible, either with the express
terms of their contract, or the legal obligations which the law
implies from those terms.
One who is engaged in a trade or business is bound to know
its usages at the place where he acts, and as against himself is
presumed by law to have contracted with reference to them. 3
One who is not engaged in the business, but contracts with those
who are, may be presumed, in the absence of evidence to the
contrary, to have known its usages, and to have contracted with
reference to them ; 4 but the presumption is not conclusive, and
he may prove his ignorance, even by his own testimony. 5
Usage must be excluded, not only when adduced for the pur-
pose of nullifying rules of law, but equally when offered for the
purpose of establishing presumptively a stipulation which would
be valid if expressly made, but which is contrary to the implica-
1 Hntton v. Warren, 1 Mees. <fe W. 474 ; Wigglesworth v. Dallison, 1 Sm. L. Ca?.
[676], note in 7th Am. ed. 905.
8 Local usage cannot be allowed to subvert the settled rules of law. Whatever
tends to unsettle the law, and make it different in the different communities into
which the State is divided, leads to mischievous consequences, embarrasses trade,
and is against public policy. Barnard v. Kellogg, 10 Wall. 383.
3 Robinson v. United States, 13 Wall. 363.
4 Walls v. Bailey, 49 N. Y. 464, and cas. cited. Compare Whitehouse v. Moore,
13 Abb. Pr. 142. The extension of this doctrine is disapproved in Partridge v. Ins.
Co. 15 Wall. 573.
s Walls v. Bailey (above). And the same presumption may be applied in respect
to the usage or custom of the contracting parties. Dunbar v. Pettee, 1 Daly, 112.
THE FACT OF SALE. 297
tion which the commercial law draws from the stipulations the
parties have expressed. 1
Usage of language in a trade may sometimes be competent when
evidence of other usages of the trade would not ; for where the
usage is adduced, not so much to supply what is unexpressed, as
to show the meaning of what is expressed, a further principle is
involved, viz., that it is always competent to show by parol the
usages of language of those who adopted the writing ; and thus
what it was in their knowledge that its terms referred to. 2 Hence,
although the terms used be apparently unambiguous, evidence is
competent to show that in the usage of language in the trade or
business in which the words were employed, they had a different
meaning. 3
As to the mode of its proof, a usage of trade cannot be
proven bv the understanding or opinions of witnesses as to the
law, or what should be the rule, 4 but the witnesses should testify
to the existence of the usage, which, if they are qualified, they may
do either from their own knowledge and experience of it, or from
information derived through others in the course of trade. 5 The
testimony of a single witness is not insufficient to prove a usage
of trade, if he has full knowledge and long experience on the
subject, and testifies explicitly to the necessary extent and dura-
tion of the usage, and is uncontradicted. 6 A reported case in
which the court held a commercial usage to be established by
evidence, is relevant in other cases between other parties, involv-
ing the usage at the same place, 7 and within reasonable limits of
proximity in time.
1 Thus, since, in the sale of chattels by one not the maker or grower, and not
guilty of fraud, and to a buyer having opportunity to examine, the law implie3 no
warranty, evidence of usage is not competent to import a warranty into the con-
tract Barnard v. Kellogg, 10 Wall. 388 (BRADLEY and STRONG, JJ., dissented). Dick-
inson v. Gay, 11 Allen, 29; Benj. on Sales, 215 ; and see 11 Allen, 426.
4 See paragraphs 8 and 9.
3 Myers v. Sari, 80 L. J. Q. B. 9, 8. c. 7 Jur. N. S. 97. For instances see para-
graphs 8 and 9. The cases which exclude usage adduced to explain unambiguous terms
(see Ins. Co. v. Wright, 1 Wall. 456 ; and see 15 Id. 573, affi'g 1 Dill. 139), do not over-
throw the principle that it is always competent under the strictest rules of interpre-
tation, to show the usages of speech and expression habitual to the writer. Evidence
of what he meant in the contract by a certain expression is not competent; but
evidence that he was accustomed to use that expression in a particular sense, is; and
on the same principle, evidence that the trade in which he was engaged was accus-
tomed to use it in a particular sense, is competent ; and when such evidence has been
given, the court will read the expression in the contract in the light which the usage
throws upon it.
4 Allen v. Merchants' Bank of N. Y. 22 Wend. 216 ; and see 15 Id. 482 ; Hnwes
v. Lawrence, 3 Sandf. 193, affi'd in 4 N. Y. 345; Collyer v. Collins, 17 Abb. Pr.
467.
5 Allen v. Merchants' Bank (above), NELSON, J. But compare Mills v. Hallock, 2
Edw. 652.
5 Robinson v. United States, 13 Wall. 363 ; Vail v. Rice, 5 X. Y. 155.
7 NELSON, J.. in Allen v. Merchants' Bank (above). Otherwise, if the decision
proceeded on the concession of Ihe parties that the usage existed. Crouch v. The Credit
Fonder of England, L. B. 8 Q. B. 374, s. c. 6 Moak's Eng. 108. How far decisions
298 ACTIONS FOR PRICE OF GOODS, <fcc.
Cogent evidence, however, is necessary to establish the exist-
ence of a usage of trade ; l it ought to be so clear as to leave no
doubt that the parties contracted in reference to it. 2
10. Plaintiff the real party in interest, though not so named
in the contract.\ Whatever may have been the form of the con-
tract, unless under seal, and even in that case if it has been rati-
fied by the plaintiff, 8 the plaintiff may show, even by oral evi-
dence, that a party who executed it, although apparently as the
principal, did so as the agent of the plaintiff ; and upon such
evidence the plaintiff may recover, notwithstanding the statute
of frauds applies to the contract, and requires it to be in writ-
ing ; 4 subject to any question of counterclaim or set-off arising
from defendant's dealings with the agent in ignorance of his
agency. So, where one carries on business, and sells goods
therein in the name of another (although for his own account),
the promise to pay may be presumed to have been made to the
one in whose name the business was done ; 5 and he therefore
may recover thereon ; although the one by whom the sale was
made might equally recover if the other did not object. 6
Where the plaintiff was the defendant's agent, and ostensibly
acted as such, he cannot convert his position into that of a prin-
cipal to sell to his employer, even by evidence of a usage of trade,
unless he also shows that defendant knew and assented to the
dealing on the footing of such a usage. 7
11. Purchase by defendant's agent.] An allegation of sale
to .defendant will admit evidence of a sale to his agent, and of the
agent's authority. 8 The three elements in the proof of purchase
by an agent are, the fact that an agency existed ; that the scope
of State courts are evidence in the United States courts, of commercial usage,
see Mende v. Beale, Taney, 339, 359.
1 Citizen's Bank of Baltimore v. Grafflin, 31 Md. 507, 8. c. 1 Am. R. 66 ; Randall
V. Smith, 18 Am. R. 200, note, 207.
4 Dawson v. Kittle, 4 Hill, 107 ; and see Goodyear v. Ogden, Id. 104.
3 Briggs v. Partridge, 64 N. Y., and cases cited.
4 Hubbert v. Borden, 6 Whart. (Penn.) 70 ; Nash v. Tonne, 6 Wafl. 703 ; Salmon
Falls, <fcc. Co. v. Goddard, 14 How. U.S. 446; Eastern R. R. Co. v. Benedict, 5
Gray, 561; Alexander v. Moore, 19 Mo. 143; Benj. on S. 210, 219, n. ; and
see paragraph 8, and ase3 cited. The rule is the same whether the agency was
disclosed in the contract, or only orally, or not at all; and whether defendant was
seller or buyer. Same cases. For a stroiig case of presumption of ratification, see
Hampton v. Rouse, 22 Wall. 272.
In an action to recover for stock to be given under thn terms of a written contract to
"J. S., president of the Eastern Railroad Company," in payment for iron sold, Held,
that the company suing could prove that the iron belonged to it, and that its president
acted merely as its agent in the transaction, and that it could maintain the action in
its own name. Eastern Railroad Co. v. Benedict, f> Gray, .561 ; Benj. on S., 219, n.
6 Alsop v. Caines, 10 Johns. 396; affi'd, as Caines v. Brisban, J3 Id. 9.
6 Gardiner v. Davis, 2 C. <fc P. 49, ABBOTT, J. Compare Paddon v. Williams, 1
Robt. 340, s. c. 2 Abb. Pr. N. S. 38 ; Howe v. Savory, 49 Barb. 403.
1 Robinson v. Mollett, L. R. 7 H. of L. 802, 815. s. c. 14 Moak's Eng. 177, 189.
* For the distinction between general and special agency, see Butler v. Maples^
9 Wall. 766, and 5 Abb. N. Y. Dig. new ed. 243.
THE FACT OF SALE. 299
of the agent's authority extended to such a transaction as that in
question ; and that in the transaction he acted as agent and on
account of the defendant. 1 In the absence of direct evidence, the
existence of an agency may be inferred by the jury, from the
fact that the supposed agent was continuously acting in the ser-
vice of the defendant in the business in which the transaction
was had ; 2 and the scope of his authority may be inferred from
the nature of his usual service. 3 The acts and declarations of the
agent cannot alone establish the fact of agency, nor the scope of
his authority; but there must either be independent evidence
on those points, or there must be something to connect defendant
with the particular act or declaration relied on, so as to render it
competent against him without first assuming the existence of
the relation it is sought to prove. 4
Evidence of the habit and course of dealing is competent to
bind the defendant, by showing his subsequent ratification of the
transaction, whether there were original authority or not. 5 The
principle is recognized that where an act is done by one person
for the benefit of another, though without authority, the latter
may be presumed in furtherance of justice to have ratified
it, and may take the benefit of it as against third persons. 6 In
cases where there is no evidence of original authority, the party
relying on ratification must show that the principal after having
knowledge of all the material facts, expressly or tacitly acqui-
esced ; 7 but intent to ratify need not be shown. 8 Mere silence,
under knowledge, only raises a presumption of ratification 9 after
the lapse of a reasonable time for dissenting. Where the alleged
agent was a mere stranger, intermeddling, the silence of the al-
leged principal does not raise a legal presumption of ratification ;
but at most is a circumstance for the jury. 10 The agency having
been sufficiently shown, the fact that the transaction was done by
the alleged agent for and on account of the defendant, may be
shown by evidence of the admissions, declarations, and repre-
I See Beals v. Merriam, 1 1 Mete. 470.
8 Compare Verona Central Cheese Co. v. Murtagh, 60 X. Y. 214, rev*g 4 Lans
17; and pp. 241, 276, of this vol.
3 See Id. ; and Larter v. Am. Female Guard. Soc. 1 Robt. 598. Principal-* hav-
ing held out an agent, who paid for purchases in checks signed as ngent, held liable
for his purchases on credit. Morey v. Webb, 58 N. Y. 350, affi'g 65 B irb. "2'2.
4 Howard v. Norton, 65 Barb. 161; a. p. Stringham v. St. Nicholas Ins. Co. 4
Abb. Ct. App. Dec. 322. See this principle more fully discussed on pp. 209, 218, of
this vol.
6 2 Greenl. Ev. 13 ed. 51.
II Hampton v. Rouse, 22 \Vall. 274. Factor is trustee of express trust. Ladd Y.
Arkel, 37 Supr. Ct. (5 J. & S.) 35.
1 Id. 53; Booth v. Bierce, 38 S. Y. 463, rev'g 40 Barb. 114.
8 Hazard v. Spears, 2 Abb. (. t. App. Dec. 3")3.
8 Whether this presumption, in the case of agency, is one of law, or merely of
fact, is disputed, see 27 Wis. 185, and cases cited.
10 P. \V. Ac. R. R. Co. v. I'owell, 28 Penn. St. 366, whether it is oven that, is
questioned by Dixon J. in 27 Wis. 135-
300 ACTIONS FOR PRICE OF GOODS, Ac.
sentations made by the agent in the performance of the transac-
tion ; l and such evidence is then competent for any other pur-
pose equally as would be the declarations of the principal himself.
Whether there is sufficient proof of an agency to warrant the
admission of the acts and declarations of the agent in evidence
against the principal, is a preliminary question for the court to
determine. 2 If authority from defendant to pledge his credit is
shown, it is not necessary to show that he had a beneficial inter-
est in the business. On a sale to an agent of a known principal, the
agent being insolvent, and doing business in the principal's name
by the latter 3 s permission, the presumption is that the seller gives
credit to the principal, not to the agent. One who permits an-
other to use his name thus is liable for the debts, although he has
no beneficial interest in the business. 3
If it be shown by plaintiff that he had been previously in the
habit of dealing with the principal through the agent in ques-
tion, and defendant i*elies on a revocation of the authority, he
must show actual notice of the termination of the agency, either
directly or by presumptive evidence ; or circumstances which
constitute, as matter 01 law, constructive notice, must be shown. 4
12. Defendant liable as undisclosed principal.'] Plaintiff
need not show that he knew he was dealing with defendant. Not
only where he knew that the apparent buyer was an agent for
defendant, 5 or for an undisclosed principal, 6 but equally when he
supposed the one with whom he dealt to be dealing for himself, 7
he may, 8 after discovering that the latter was merely an agent for
defendant, elect to proceed against defendant, 9 unless, with knowl-
edge that he was dealing with an agent, he elected to give credit
to him personally instead of relying on the agency, 1 " or unless,
after acquiring full knowledge as to the true principal and the
power of electing, he has clearly and unquestionably elected to
treat the agent as alone his debtor. 11 Suing the agent to judg-
ment, under such circumstances, is conclusive evidence of elec-
tion. 13 The question whether he originally elected to give credit
1 Howard v. Norton, 65 Barb. 161.
8 Cliquot's Champagne, 3 Wall 114. Compare p. 191 of this vol., note.
8 Fen-is v. Kilmer, 48 N. Y. 300.
4 Claflin v. Lenheim, 66 N. Y. 301, rev'g 5 Hun, 269.
B Hubbert v. Borden, 6 Whart(Penn.), 79, 91.
8 Truman v. Loder, 11 Ad. & El. 589.
' Meeker v. Claghorn, 44 N. Y. 349 ; McMonnics v. Mackay, 39 Barb. 561.
8 Within a reasonable time. Smethhurst v. Mitchell, 1 E. <fc E. 622.
9 The leading case is Thompson v. Davenport, 9 B. <fc C. 78, 86.
10 Addi<on v. Gandasequi, 4 Taunt. 574; Patterson v. Gandasequi, 15 East, 62;
Meeker v. Claghorn, 44 N. Y. 349; Rowan v. Buttman, 1 Daly, 412, and cases cited;
McMonnies v. Mackay, 39 Barb. 561; Ranken v. Deforest, 18 Id. 143; and see In-
glehart v. Thousand Isle Hotel Co. 7 Hun, 547. The fact that he knew he was deal-
ing with an agent is n"t alone enough, see 53 N. Y. 388, :J94.
11 Curtis v. Williamson, 10 Q. B. 57, 8. c. 11 Monk's Eng. 149.
12 Priestly v. Fernie. 3 H. & C. 977 ; s. p. Morris v. Rexford, 18 N. Y. 552 ; Ro-
dermund v. Clark, 46 Id. 354; Gosa v. Mather, 2 Lans. 233; 46 N. Y. 689. But the
THE FACT OF SALE. 301
to the agent is one of intention, usually to be determined by the
jury as a question of fact. 1 The fact that the contract of sale was
in writing (if not sealed 2 ) does not exclude oral evidence that
defendant was the undisclosed principal of the apparent buyer, 5
even where the statute of frauds requires a writing ; 4 and such
evidence is competent, even though it does not appear in the body
of the instrument nor in the signature that the signer acted as
agent. 5 In the absence of such evidence, the mere fact that the
apparent buyer was an agent and signed with the addition of
agent, is not enough. 6
In these cases, however, in so far as defendant can show that to
compel him to pay would change the state of the accounts be-
tween him and his agent to his prejudice, plaintiff cannot recover
of him. 7
13. Defendant liable though acting as agent.] In an action
on a contract made by defendant in his own name, 8 although it
appear that he acted as agent, plaintiff may recover against defend-
ant as a principal, 9 provided, however, that if it appear that not
only the fact of his agency, but also the name of his principal, 10
was disclosed at the time of making the contract, 11 plaintiff must
show 12 that he gave credit exclusively to the defendant, 13 or that
defendant had not at the time 14 the authority he assumed to have, 15
or that he has received from the principal the fund to be re-
covered. 16 If he simply disclosed his agency without naming a
mere filing an affidavit of proof against the agent's estate in insolvency is not ;
though it may be evidence to go to the jury. Curtis v. Williamson, L. R. 10 Q. B.
67,8. c. 11 Moak's Eng. 149.
1 Green v. Hopke, 18 C. B. 349, and cases cited. As to the case of foreign principal,
see the opposing rules in Kirkpatrick v. Stainer, 22 Wend. 244, 259 ; llutton v. Bul-
lock, L. R. 8 Q. B. 831 (s. c. 6 Moak's Eng. 89); 9 Id. 572 (s. c. 10 Moak, 184);
Armstrong v. Stokes, 7 Id. 598 (s. c. 3 Moak, 217).
* Briggs v. Partridge, 64 N. Y. 357, affi'g 39 Sup. Ct. (J. <fe S.) 339.
3 Higgins v. Senior, 8 Mees. & W. 834, 844 ; s. p. Ford v. Williams, 21 How. U. S. ;
Coleman v. First Nat. Bank of Elmira, 53 N. Y. 388.
4 Higgins v. Senior, 8 Mees. & W. 834, 844; Dykers v. Townsend, 25 N. Y. 57,
Benj. on S. 218.
6 Ford v. Williams (above); Lerned v. Johns, 9 Allen, 419; Benj. on S. 219, n.
Contra, Fenly v. Stewart, 5 Sandf. 101, s. c. 10 N. Y. Leg. Obs. 40; Auburn City
Bank v. Leonard, 40 Barb. 119 ; Babbett v. Young, 51 Id. 466.'
6 See De Witt v. Walton, 9 N. Y. 571.
1 See Rowan v. Buttman, 1 Daly, 412 ; Curtis v. Williamson, L. R. 10 Q. B. 57,
B. c. 11 Moak's Eng. 149.
" See Hegeman v. Johnson, 35 Barb. 200.
9 Unless no be a public agent.
10 Mills V. Hunt, 20 Wend. 431.
11 McCoomb v. Wright, 4 Johns. Ch. 659.
12 Plumb v. Milk, 19 Barb. 74.
13 See Butler v. Evening Mail Ass. 61 N. Y. 634; Coleman v. First Nat. Bank, 53
Id. 388, and cases cited; and see Hall v. Landerdale, 46 N. Y. 70.
14 Nason v. Cockroft, 3 Duer. 366 ; s. p. Rossitor v. Rossitor, 8 Wend. 494 ; Pal.
mer v. Stephens, 1 Den. 471.
15 Compare Feeter v. Heath, 11 Wend. 477, and Sinclair v. Jackson, 8 Cow. 543.
18 Compare, on this question, Morrison v. Currie, 4 Duer. 79, and Hall v. Lauder-
dale, 46 N. Y. 70.
802 ACTIONS FOR TRICE OF GOODS, <fcc.
principal, the presumption is, in flie absence of other evidence,
that credit was given to him, not to the principal. 1 The fact that
he was factor for disclosed foreign principals does not raise a pre-
sumption of law that the credit was given exclusively to him-
self ; 8 but the question whether he is personally liable is one of
intention, to be gathered from surrounding circumstances, usages,
etc. 8 Parol evidence is admissible of a trade usage by which, if
the principal's name is not disclosed within a reasonable time,
the agents, though they acted avowedly as agents, are personally
liable. 4 In the absence of such evidence the agent, acting openly
for a known foreign principal, is presumed not personally liable. 5
14. Assumption of order originally given ~by a third person.']
Plaintiff may recover on proof of an order originally given by
a third person, and assumed by defendant ; 6 but not (without
amendment) on mere evidence that the defendant took an assign-
ment of the subject of the order from the one who gave it. 7
15. Question to whom credit was given. ,] To prove that
credit was given to one or another of several persons, the books of
the party giving the credit are not competent evidence in his
own favor, and against the one sought to be charged, 8 unless upon
some ground which would make them competent generally, as,
for instance, where they are admissible as shop books, or as entries
made in the course of duty, or against interest by a person since
deceased, or as entries attested by the testimony of the maker, or
as a contemporaneous memorandum by the witness which he has
used to refresh memory, or as part of the res gestce, or as having
been communicated to the party against whom they are adduced. 9
The books of the party giving the credit are competent against
him to show that he gave credit to another than defendant as,
for instance, that he charged the goods to the alleged agent
through whom they were bought, 10 or to a third person to whom
they were delivered 11 and are strong evidence that he intended
to give credit to the one he charged ; 12 but in neither case are they
conclusive, 13 but may be rebutted by oral or other evidence ex-
' > See Chappell v. Dann, 21 Barb. 17.
9 Kirkpatrick v. Stainer, 22 Wench 244, 259, but see, contra, Story on A<r. 268;
Armstrong v. Stokes, L. R. 7 Q. B. 578, s. c. 3 Moak's Eng. 217 ; Hutton v. Bullock,
L. R. 8 Q. B. 331 ; 9 Id. 572, s. c. 6 Moak's Eng. 89; 10 Id 184; see also Hochster
V. Baruch, 5 Daly, 440.
3 Prof. D wight's note to Allen v. Schuchardt, 1 Am. L. Reg. N. S. 17.
4 Hutchinson v. Tatham, L. R. 8 C. P. 482, s. c. 6 Moak's Eng. 230.
4 Kirkpatrick v. Stainer (above).
6 Sloan v. Van Wyck, 36 Barb. 335 ; again, 47 Id. 634.
7 Barber v. Lyon/22 Barb. 622.
8 Somers v. Wright, 114 Mass. 171 ; Field v. Thompson, 119 Id. 151.
' See p. 53 of this voL ; and later paragraphs of this chapter.
10 See Foster v. Persch, 68 N. Y. 400.
11 Swift v. Pierce, 13 Allen, 136 ; Champion v. Doly, 31 Wis. 190.
12 Rmrgles v. Gatton, 50 111. 412 ; Swift v. Pierce (above).
( Foster v. Persch, 68 N. Y. 400, and cases above cited.
THE FACT OF SALE. 303
plaining the charge. It is not necessary for the plaintiff in such
a case, in order to rebut the presumption arising from the
charge, to show that it was caused by mistake or fraud ; but any
explanation consistent with the intention to give credit only to
another, may be shown. 1
If it be uncertain, on the evidence, whether the sale was on
the credit of one or another, the plaintiff, or his agent who made
the sale, may testify directly that he did so on the credit of de-
fendant, 2 and that he intended to give credit to him, although he
charged another on his books ; 8 but evidence of the declarations
of the plaintiff made to the third person, or otherwise, in the
absence of the defendant, and not part of the res gestce, is not
competent in plaintiff's favor. 4
Evidence that one of such persons had no property and was en-
tirely irresponsible is inadmissible, for it is too remote to raise a
presumption that the sale was not to him. 5 But the fact that the
insolvency was communicated to plaintiff, and treated by him as
a reason for refusing to sell to the third person, is competent. 6
16. Identifying the thing agreed for.] In application of the
principles before stated 7 respecting oral evidence, it is to be o\y
served that if a written contract or bill of sale specifies the thing
sold, oral evidence is not competent to show that it was not in-
tended to pass all that was specified, 8 nor to show that the writ-
ing is not satisfied by delivery of the particular lot specified ; 9
but it is competent (unless inadequate by the statute of frauds)
for the purpose of showing that additional articles were included
in the transaction, though not specified in the writing. 10
17. Quality and description] In applying the same prin-
ciples to proof of the quality or description of the goods, it is
well settled that extrinsic evidence is competent to show what
was understood by persons engaged in the trade, by words u or ab-
1 Champion v. Doly, 31 Wis. 190. As, for instance, lhat it was so made at defend-
ant's request (James v. Spaulding, 4 Gray. 451), or at the request of the third person
(Burkhalter v. Farmer, 5 Kane. 477), or for temporary purpose, plaintiff not being
informed as to the standing of the principal (Maryland Coal Co. v. Edwards, 4 Hun,
482), or inadvertently, the charge being posted from the order book. Fiske v. Allen,
40 Super. Ct. (J. & S.) 76.
s Lee v. "Wheeler, 11 Gray, 236.
8 Folsom v. Sheffield, 63 Me. 171 ; Burkhalter v. Farmer, 6 Kans. 477.
4 Whitney v. Durkin. 48 Cal. 462 ; s. P. Moore v. Meacham, 10 N. Y. 207.
8 Green v. Disbrow, 56 N. Y. 334, rev'g 7 Lans. 381. (Contra, Miller v. Brown.
47 Mo. 504, B. c. 4 Am. R. 345 ; Moore v. Meacham, above.) So also of evidence that
defendant, a father, had paid the son's debts to other tradesmen. Ib.
See Bronner v. Frauenthal, 87 N. Y. 166, affi'g 9 Bosw. 350. Compare pp. 240
and 265 of this yol.
I Paragraphs 8 and 9.
8 Ridgeway v. Bowman, 7 Gush. 268 : Benj. on S. 202.
Vailv. Rice, 5 N. Y. 155.
10 Nedridek v. Meyer, 46 Mo. 600 ; s. p. Pierce v. Woodward, 6 Pick. 206. Com-
pare Cram v. Union Bank, 1 Abb. Ct. App. Dec. 461, affi'g 42 Barb. 426.
II Such as "gas fixtures," Downs v. Sprague, 1 Abb. Ct. App. Dec. 550; or the
"product" of hogs, Stewart v. Smith, 50 HL 897.
804 ACTIONS FOR PRICE OF GOODS, <ko.
breviations used ; l and for this purpose extrinsic evidence is com-
petent to show what varieties or grades are included in the mean-
ing of the generic term used ; 2 what manufacture is designated by
a particular brand ; 8 that an article designated as of a particular
material such as mahogany furniture or horn chains, was by
usage of trade so-called, though only partly of the material indi-
cated, and that the parties intended such article ; that the usage
of measurement of the size of the articles was peculiar, as that
in selling trees as of a certain height it was customary not to in-
clude the green top; 5 or that the qualifying words "with all
faults" mean all that are not inconsistent with the identity of
the goods ; 6 and the like.
The fact that the articles delivered were such as to satisfy the
contract may be proved by testimony to their quality, or by opin-
ions of qualified witnesses that they corresponded with that
which the contract calls for. If they are shown not to have cor-
responded, and to have been rejected on that account, evidence of
a usage to make alterations afterward is not competent. 7
18. Quantity.'] In application of the principles already
stated, 8 as to . oral evidence explanatory of sales, it is held that
parol evidence is admissible to show that by the word " barrels,"
used in a written contract, was intended vessels of a certain kind
and capacity, and not a measure of quantity, and that the parties
contracting had reference not to a statute barrel, but to certain
vessels of uniform size of different capacity from the statute bar-
rel. 9 So extrinsic evidence of defendant's usage to sell 2,240 Ibs.
to the ton, instead of the statute number of 2,000 Ibs., and that
the contract was made in reference to his usage, is competent. 10
So under a contract for shingles by the " thousand," it may be
shown that, by usage of the trade, two bundles of a certain size
are sold as a thousand without regard to actual count. 11 So where
I Dana v. Fiedler, 12 N. Y. 40, affi'g 1 E. D. Smith, 463.
s As, for instance, whether " good merchantable hay " includes clover, Fitch v.
Carpenter, 40 Barb. 40; or what is intended by "good custom cowhide boots,"
Wait v. Fairbanks. Brayt. Vt. 77, 139 ; or whether " winter strained lamp oil " means
sperm oil only, or whale oil as well, Hart v. Hammett, 18 Vt. 127; Benj. on S. 213,
n. In order to prove what article was intended in a contract, by a name used in
commerce, it is proper to ask a witness, who is an expert, " how the article is gener-
ally known in the market, and how spoken of generally." Pollen v. Le Roy, 10 Bosw.
88, affi'd in 80 N. Y. 549.
3 Pollen v. Le Roy, 30 N. Y. 649, affi'g 10 Bosw. 88. But not of a usa^e to ac-
cept an equal or better brand in lieu of that agreed for. Beals v. Terry, 2 Sandf. 127.
4 Sweat v. Shumway, 102 Mass. 365, s. c. 8 Am. R. 471.
B Barton v. McKelway, 22 N. J. 165.
6 Whitney v. Boardman, 118 Mass. 242; Benj. on S. 213.
1 Brown v. Foster, 113 Mass. 136 ; Benj. on- S. 215.
8 Paragraphs 8 and 9.
9 Miller v. Stevens, 100 Mass. 518, s. c. 1 Am. R. 189, an'd cases cited; Benj. on S.
213, n. Evidence of a usage in the trade, in sales by quantity, to estimate by meas-
use of one barrel in every ten, taken promiscuously, is competent in an action betweou
members of the trade. Dalton v. Daniels, 2 Hilt. 472.
10 Many v. Beekman Iron Co. 9 Paige, 188. Compare Hall v. Reed, 1 Barb. ch. 800.
II Soutier v. Kellerman, 18 Mo. (3 Bennett), 509, s.p. 1 Greenl. Ev. 281.
THE FACT OF SALE. 305
the contract is for a " cargo," 1 or a person's " crop," 2 or for a
" season," 3 those words may be explained by parol. But if the
writing, properly understood, calls for a certain quantity, evidence
of a reservation of a part by parol, is inadmissible. 4
If the contract is for a specific parcel or lot described as being
of a certain quantity, " more or less," evidence of a usage that
"more or less" is limited to a certain percentage, is not admis-
sible ; 5 nor is evidence that the parties' understanding was that
the buyer was to have more or less as might be found necessary
to make up a cargo, although it appeared that both parties knew
that the goods were brought for that purpose, and that the
amount to be required was uncertain. 6 If the contract calls for
a specified quantity merely, " more or less " according to the dis-
cretion of a designated agent, the fair' discretion of the agent is
conclusive. 7 A bill-head notice restricting claims for deficiencies
is not relevant, if the contract was complete and binding before
the delivery of the bill. 8
A variance between pleading and proof, as to the quantity, if
it does not mislead, may be disregarded. 9
19. Price agreed.] Abbreviations 10 and ambiguous expres-
sions u as to price, in a written contract, may be explained by parol.
So where the agreement is for a certain advance on " cost," extrin-
sic evidence is competent to show the intent of the parties in the
use of such a term." A contract which was void by the statute of
frauds, is good as a proposition of price, and governs, if the
goods were subsequently delivered and accepted pursuant to it. 13
Where the testimony is conflicting as to what was the price
agreed upon w in an oral sale, or as whether there was any agree-
ment as to price, 15 it is competent to show the value of the prop-
I Clark v. Baker, 11 Mete. 186; Hay v. Leigh, 48 Barb. 393; Rhoades v. Castner,
12 Allen, 130; Benj. on S. 215.
II Goodrich v. Stevens, 5 Lans. 230. Compare McDonald v. Longbottom, 1 E. <fe
E. 297, 987, s. c. 28 L. J. Q. B. 293 ; 29 Id. 256.
3 Myers v. Walker, 24 III. 133.
4 Austin v. Sawyer, 9 Cow. 39.
Vail v. Rice, 5 N. Y. 155. Compare Sewall v. Gibbs, 1 Hall, 602; Bacon v. Gil-
man, 4 Lans. 456, s. o. 60 Barb. 640.
' Cabot v. Winsor, 1 Allen (Mass.), 546 ; 1 Pars. 548.
T Brawley v. United States, 96 U. S. (6 Otto), 168.
8 Allen v. Schuchardt, 1 Am L. Reg. N. S. 13, affi'd in 1 Wall. 369.
9 Potter v. Hopkins, 25 Wend. 417.
10 Taylor v. Beavers, 4 E. D. Smith, 215 ; Dana T. Fiedler, 12 N. T. 40; Benj. on
S. 213, n.
11 Cole v. Wendel, 8 Johns. 116.
" Gray v. Harper, 1 Story, 574, STORY, J. ; Benj. 213, n. ; Herst v. De Comeau,
1 Sweeney, 690 ; and see Buck v. Burk, 18 N. Y. 337.
13 Sprague v. Blake, 20 Wend. 61. But compare Erben v. Lorillard, 19 N. Y.
299, rev'g 23 Barb. 82.
14 Moore v. Davis, 49 N. H. 46, 8. o. 6 Am. R. 460, and cases cited.
15 Brown v. Cahalin, 3 Oreg. 46. On the question whether an auction sale at it
certain figure was for cents or dollars, bystanders who were present as bidders may
testify to their understanding of the bids. Ives y. Tregent, 14 Bankr. Reg. 60.
20
306 ACTIONS FOR PRICE OF GOODS, Ao.
erty at the time of sale as tendirg to show what the real contract
was. Under an allegation of a sale of goods worth a specified
sum, plaintiff may prove that sum to have been agreed on as the
price. At common law it was the better opinion that, under
an allegation of goods sold for money, plaintiff might prove a
sale for anything agreed to be treated as cash, or a sale to be paid
for in services or goods, the burden being on plaintiff, however,
to show that the buyer was in default in the special agreement. 1
Under the new procedure such a variance is to be disregarded,
unless it has misled defendant to his prejudice. If the considera-
tion was an evidence of debt or a conveyance, the contents of it
may be stated for the purpose of proving that fact, without pro-
ducing the instrument. 2
The fact that defendant admitted being indebted, when pay-
ment was demanded, is not sufficient evidence of the amount of
price, unless there is in the admission, or connected with it, some-
thing to indicate the amount, or data from which it may be com-
puted. 3 So, although delivery of a bill of the goods, and the mak-
ing of a payment on account without objection, gives it the legal
effect of an account stated ; it is otherwise if there be evidence,
that when the defendant made the payment he objected to the
bill/
20. Value. Under an allegation of an agreed price, if there
is a failure to prove the agreement as to price, evidence of
value is competent for the purpose of a recovery of what the
article was fairly worth, 5 but not to sustain a recovery beyond the
amount alleged. 6 And even in those jurisdictions where this is
regarded as a variance, evidence of value is relevant on the ques-
tion of agreement, if the evidence of agreement is conflicting.
And under a complaint seeking to recover what the thing was
justly worth, evidence of an agreed price is admissible ; 7 and the
agreement for price controls, 8 if within the limit marked by the
allegation of value and demand of judgment. If the contract or
order proved was silent as to the price, 9 or if there was no assent
as to price, 10 the law implies a promise to pay at the current
market rates, or the fair value. Where the party's shop books
are competent in his own favor, 11 the price, if stated in the entry,
is prirna facie evidence in his favor, of the value also. 12
1 COWEN. J., Clark v. Fairchild, 22 Wend. 683.
Reynolds v. Kelly. 1 Daly, 283.
Douglas v. Davie, 2 McCord (So. C.), 218 ; Hanson v. McKenney, 2 Bay, 412.
4 Jacques v. Elmore, 7 Hun, 675.
Bussdorf v. Schmidt, 55 N. Y. 319.
6 See Trimble v. Stilwell, 4 E. D. Smith, 612.
T Fells v. Vestvali, 2 Keyes, 152.
See Ludlow v. Dole, 62 N. Y. 617, affi'g 1 Hun, 71, 4 Supra. Ct. (T. A C.) 666.
Konitzky v. Meyer, 49 N. Y. 671.
10 Booth v. Bierce, 38 N. Y. 463, rev'g 40 Barb. 114.
11 See paragraph 39.
" The Potomac, 2 Black, 681 ; 1 GreenL Ev. 118, p. 160, n.
THE FACT OF SALE. 307
The value of merchandise which has no regular market value,
and the price of which must depend on circumstances peculiar to
the single transaction, and the purchasers, 1 is to be ascertained
by the probabilities of the case, founded on proof of facts which
in the ordinary transaction of business would affect the mind of
a dealer in similar articles in determining a price to be asked or
given. 2 In doubtful cases and in the absence of better evidence,
the actual cost of the thing to the seller is relevant to the ques-
tion of its value, at least as evidence against him as in the nature
of an admission of value, especially if the thing have no regular
market value. 3 So the price named, by an agent for selling,
when offering goods, is competent evidence of value as against
his principal. 4 But as against evidence of an agreed price, a
mere admission of less value cannot avail. 5
Comparison of values between the thing in question and
others of different quality which are not involved in the litiga-
tion is not allowable for the purpose of calculating the value of
the one in question. 6 A witness cannot testify that a different
article was worth a specified sum, and that the one in question
was superior or inferior. And upon the same principle it is not
allowable to arrive at the value by testimony that the thing in
question, with certain alterations or differences, would be worth
a specified sum, thereupon making allowance for the difference ;
nor that it was worth a different sum at another date, thereupon
making allowance for the lapse of time. 7
The three chief elements in the proof of value are, the in-
trinsic qualities of the particular thing sold ; its usual price, or,
if there be none, a valuation of it ; and the qualifications of the
witness called to testify to either of these points. The intrinsic
qualities, and the usual price or proper valuation of a thing of
such qualities, may be proved by the same or by different wit-
nesses.
21. Market value. The question of market value is more
frequently contested in cases of actions for breach of executory
1 Aa in the case of military accouterments usually bought only by government.
As to " fancy prices," in case of animal pets and the like, see 3 Abb. N. Y. Dig. New
ed. 81 ; Bennett v. Drew, S Bosw. 355.
8 Sturm v. Williams, 38 Super. Ct. (J. <fe S.) S23, 843. So held on a question of
overvaluation in insuring.
3 Id. ; and see Smith v. Griffith, 3 Hill, 333, 342 ; 8. P. Wells v. Kelsey, 37 N. Y.
143, s. o. 4 Abb. Pr. N. S. 234, rev'g 38 Barb. 242.
4 Cliquot's Champagne, 3 Wall. 140, 148; Banks v. Gidrot, 19 Geo. 421. *
8 Davis v. Shields, 24 Wend. 322, rev'd on another point in 26 Id. 341 ; Have-
meyer v. Cunningham, 35 Barb. 615, s. c. 22 How. Pr. 87.
6 See Gouge v. Roberts, 63 N. Y. 619, s. p. Blanchard v. N. J. Steamboat Co. 69
N. Y. 300, affi'g 3 Supm. Ct. (T. <fc C.) 771 ; Color Printing Attacht. Co. v. Brown,
37 Super. Ct. (J. <fe S.) 433.
* This is one of the cases where, in the present state of our law, the processes by
which witnesses arrive at their opinions are not allowed to be given to the jury, on
direct examination. The case of comparison of handwriting is another. How far it
is allowable on cross-examination is not well settled.
308 ACTIONS FOR PRICE OF GOODS, Ac.
contracts or of warranties, but the rules for proving it may be
most conveniently stated here, in connection with the general
question of proof of value.
To constitute a market value, it must appear that similar
articles have been bought and sold in the way of trade, in suffi-
cient quantity or frequency. 1 If the contract or conduct of the
parties fixed a day, so that the right of recovery, strictly consid-
ered, turns on the then market value, the evidence should be
directed to the market value on that precise day, 2 and not extend
to the ordinary market value at other times. 8 But if there were
no sales then, 4 or if the sales had are shown to have been at
fictitious prices, or at prices unnaturally inflated or depressed by
artificial combination for the purpose of fixing a false price, 6 evi-
dence of prices before and after the day within a reasonable limit
resting in judicial discretion, 6 is competent for the purpose of
inferring the value on the precise day ; and it is no objection to
the application of this principle that it admits evidence of sales
in the market made after suit brought. 7 The proper limit of
time is to be determined by the principle of requiring the best
evidence the circumstances permit. In case of commercial mer-
chandise having constant market, the limit is shorter than in the
case of less salable goods. 8 This excluding rule is not so strictly
applied in Actions for price of goods sold and delivered at succes-
sive dates, where it does not appear that the market price varied
during the general period of the witness' conversance with it. 9
If the contract or the conduct of the parties fixed a place, 10 by
the market rates of which the value is to be ascertained, the evi-
dence should be confined to the market value at that place, and
not extend to the value in other markets. 11 But if there were no
sales there, evidence of the price at places not distant, or in other
I Harris v. Panama R. R. Co. 58 N. Y. 660. So held in an action against a
carrier. >
* Dana v. Fiedler, 12 K T. 40, affi'g 1 E. D. Smith, 463.
3 Cahen v. Platt, 69 N. Y. 348, 352 ; Belden v. Nicolay, 4 E. D. Smith, 14.
4 Dana v. Fiedler, and Cahen v. Platt (above).
6 Kountz v. Kirkpatrick, 72 Penn. St. 376, s. c. 13 Am. R. 687. Bnt the probable
effect on prices, of throwing on the market so large a quantity as that contracted for,
is not relevant. Dana v. Fiedler (above).
6 Dana v. Fiedler (above).
1 But the motives and interest of the parties, and other circumstances of the sale,
may of course be inquired into and considered by the jury in determining the
weight to be given to such evidence. Kingsbury v. Moses, 45 Jf. H. 222.
b Thus where sales of such merchandise within two or three weeks of the precise
day are shown to have been had, the market price running through two or three
months should not be admitted. Dana v. Fiedler (above). On the other hand, in
the case of second-hand household goods, the price they brought at auction within
three months is relevant. Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475. But if any-
thing occurred in the interim materially affecting the value, it is competent for the
adverse party to show it. Id.
9 Kerr v. McGuire, 28 N. Y. 446, 8. o. 28 How. Pr. 27.
10 See Cahen v. Platt, 69 N. Y. 348.
II Id., and cases cited. Except when proper as corroborative. Gordon v. Bowers,
16 Penn. St. 226.
THE FACT OF SALE. 309
controlling markets may be given, not for the purpose of estab-
lishing the market price of such other place, but for the purpose
of showing indirectly, in the absence of direct evidence, the
market price at the place of delivery ; l and hence, in connection
with market value at other places, evidence of the expense of
transportation between such places is relevant. 2 Upon the same
principle, if the plaintiff's proof of market value at the precise
place is uncertain, evidence of the market value in an adjoining
town easily and speedily reached, is competent. 8
The market value at a given time and place may be proved
by evidence of actual sales then and there of merchandise of the
same quality; 4 and a single sale 5 is relevant and admissible in
the absence of better evidence, but not always alone sufficient to
establish the market value. 6 For the purpose of proving the
rates of a foreign market, statements and declarations of strangers
to the action, engaged in that market, and made in the ordinary
course of their business for example, merchants' letters offer-
ing their goods at a price are competent evidence of the market
value at the time the declaration was made, without proof of the
death of the declarant. 7
22. Prices current.'] The price list or price current issued by
a merchant or his agent in the ordinary course of business, 8 or
corrected by him for a newspaper, 9 is competent evidence of
market value as against himself. In the absence of better avail-
able evidence, regular prices current or market reports, published
in course, in a commercial journal pursuant to the professional
duty of the journalist to ascertain constantly from those engaged
in the market the actual current rates, and tabulate and publish
them for the information and guidance of the commercial world,
are competent prima facie evidence of the contemporaneous mar-
ket price, on production of the newspaper or file, preliminary
proof of these conditions, and of the identity of the paper, being
given. 10 Without some extrinsic evidence of the sources of the
information, or the mode in which the prices current were made
up, the publication is incompetent. 11
1 Id., and cases cited ; Harris v. Panama R. R. Co. 58 N. Y. 660.
2 Wemple v. Stewart, 22 Barb. 154, and cases cited.
3 Siegbert v. Stiles, 39 Wis. 533.
4 See Lawton v. Chase, 108 Mass. 238. Compare Roe v. Hanson, 8 Lans. 304.
Gill v. McNamee, 42 N. Y. 45 ; Dixon v. Buck, 4 Barb. TO.
* See Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475.
6 Graham v. Maitland, 6 Abb. Pr. N. S. 327, s. c. 37 How. Pr. 307; 1 Sweeny, 149.
7 Fennerstein's Champagne, 3 Wall. 149; 1 Greenl. Ev. 120.
8 Cliquot's Champagne, 8 Wall. 140.
Henkle v. Smith, 21 111. 238.
10 Whelan v. Lynch, 60 N. Y. 469, 474; 1 Whart. Ev. 638, 674. So on the
question of what was the market value, in France, of the champa<jne of a particular
maker, the price current of another maker, prepared and furnished there in the usual
course of business, is relevant, and its effect, in connection with other evidence of
value, is a question for the jury. Cliquot's Champagne, 3 WalL 114.
11 Wheian v. Lynch (above).
310 ACTIONS FOR PRICE OF GOODS, <fco.
A witness cannot testify to value or market price whose
knowledge is derived merely from examining newspaper prices
current. 1 But if the witness has a knowledge of the value from
other proper sources, it is no objection to his testimony that it is
based in part upon such prices current, 2 or even upon letters and
invoices received by him in the usual course of his business. 3
23. Opinions of witnesses as to quality and value.] Ques-
tions of value are subject to the general rule that in matters re-
quiring special experience or knowledge, 4 not presumably pos-
sessed by all the jurors, a witness shown to be peculiarly qualified
by such experience or knowledge may testify to his opinion 5 on
a question of fact ; and a witness who has such experience or knowl-
edge with reference to the value of things of the kind of that in
question 6 such as a dealer, 7 salesman, 8 or book-keeper 9 in the
trade may express his opinion of values of things of the same
class as that in question, even though he has not seen the partic-
ular thing itself. But a witness having only the ordinary expe-
rience of life, and none in the business in which the articles are
dealt in, 10 or made or used, 11 and not having bought or sold, and
having no special means of information as to market rates, 12 is not
qualified. The mere fact that he has once bought or sold the
very article in question does not necessarily qualify him to ex-
press an opinion on its value ; although the price he paid or re-
ceived may be competent evidence. 13
* Harris v. Ely, Seld. Notes, No. 1, 35, s. c. 1 Liv. Law Mag. 145.
9 Whitney v. Thacher, 117 Mass. 527. Compare Sisson v. Cleveland <fe Toledo R.
. R. Co. 14 Mich. 489; Cleveland & Toledo R. R. Co. v. Perkins, 17 Id. 296 ; Laurent
v. Vaughan, 30 Vt. 90.
3 Alfonso v. United States, 2 Story, 421.
4 For instance, an ordinary witness may testify to the fact that plants were dead ;
an expert, to his opinion as to what killed them. Stone v. Frost, 6 Lans. 440.
6 It is no objection to receiving the opinion, that the witness is a party testifying
in his own behalf. Dickenson v. Fitchburgh, 13 Gray, 546, 555.
8 Clark v. Baird, 9 N. Y. 183, 196.
* Bush v. Westchester Fire Ins. Co. 2 Supm. Ct. (T. <fe C.) 629.
8 Id.
* Kerr v. McGuire, 28 N. Y. 446, s. c. 28 How. Pr. 27.
10 Teerpenning v. Corn Exch. Ins. Co. 43 N. Y. 279 ; Bush v. Westchester Fire
Ins. Co. (above).
11 Winter v. Burt, 31 Ala. 33.
12 See Whelan v. Lynch, 60 N. Y. 469.
13 Compare Chambovet v. Cagney, 35 Super. Ct. (J. & S.) 474, 489 ; Smith v. Hill,
22 Barb. 656 ; Watson v. Bauer, 4 Abb. Pr. N. S. 273. There is much difference of
opinion and practice in reference to the degree of knowledge or experience which
will qualify the witness. Some anomalous rulings are seen to be ill-considered when
it is remembered, that if the question is not on the quality of the article, but on the
value of articles of a given quality, conversance with the market rates is the qualifi-
cation ; if there is no regular market value, conversance with other things of the kind,
and their uses, fitness, or cost, is the qualification ; while, on the other hand, if the
jury may be supposed conversant with the kind of article and its ordinary values, the
object of inquiry, though in form a question as to value, may be re-ally as to the grade
or condition of the particular thing at the time of sale. In, this class 1 of cases a wit-
ness, who has in common with the jury only an ordinary knowledge of values, may
by reason of his inspection of a particular thing which ordinary knowledge enables
THE FACT OF SALE. 311
To testify to the quality of a particular thing it is presump-
tively enough that the witness has long been a maker of or dealer
in such articles, or otherwise so engaged as to be practically fa-
miliar with the qualities involved in the inquiry, 1 even though he
does not know the market prices ; 2 but he must have seen the
thing within a reasonable time of the date to which evidence of
value is to be addressed, a limit varying in the judicial discretion
of the court, according to the permanent or perishable character
of the thing ; 3 and in case of a varied lot of merchandise, the wit-
ness must have made a sufficient examination in detail to speak
specifically of the various parcels or grades.*
After the qualities or grade on which value depends have
been proven, a witness qualified by special experience er knowl-
edge to testify to the intrinsic value of the particular article, 5 or
to the market price of such articles, (as the case may require), may
testify to its value, although he has not seen the article. 6 Such
testimony may be founded on the witness having heard or read
all the testimony which has been given by the party on the facts
of quality, grade, etc., on which value or price depends ; in which
case the question may be : " Assuming that the goods were as
described by plaintiff [or other testimony heard or read by the
witness], what were they worth ? " 7 Or it may be called forth by
an hypothetical question, embracing all the same facts which may
fairly be assumed to be sufficiently in evidence. 8
A witness to market values must be shown to be conversant
with prices at the market in question, 9 but he need not be a resi-
dent there. 10 His testimony is not necessarily made incompetent
by the fact that his knowledge of sales and prices was derived
from inquiry in the trade, 11 or by examinatation of invoices and ac-
one to value, be competent to express his opinion of its value as the direct and natu-
ral way of describing his judgment of its grade and condition. In this point of view
Smith v. Hill and Watson v. Bauer are sounder guides than Chambovet v. Cagney
(all above cited), and the ruling iu Nickley v. Thomas, 22 Barb. 652, more satisfac-
tory than Low v. Conn. <fec. R. R. Co. 45 N. H. 370, 1. See paragraphs 20 and 21.
1 Hoe v. Sanborn, 36 N. Y. 93, s. c. 3 Abb. Pr. N. S. 189; 35 How. Pr. 197; Jef-
ferson ville, <fec. R. R. Co. v. Lanahan, 27 Ind. 171.
* See Beecher v. Denniston, 13 Gray, 354.
3 See Judson v. Easton, 58 N. Y. 664, affi'g 1 Snpm. Ct (T. & C.) 598.
4 Brown v. Elliott, 4 Daly, 329, 333, and cases cited.
s Sturm v. Williams, 38 Super. Ct. (J. & S.) 323, 844.
8 Mish v. Wood, 34 Penn. St. 451 ; Orr v. Mayor, <fec. of N. Y. 64 Barb. 106 ; and
see Draper v. Saxton, 118 Mass. 428. Contra, where the matter is not one for expert
testimony. Hook v. Stowell, 80 Geo. 418, 422; Board v. Kirk, 11 N. II. 397; and
see Sunderlin v. Wyman, 1 Supm. Ct. (T. & C.) adden. 17. It is not error to allow
the expert who is familiar with the particular thing to designate the similar article
he has known sold in general terms, as " like " the thing; in controversy, instead of
describing it and leaving the jury to judge of its similarity. Hachett v. Boston, Ac,
R. R. Co. 35 N. H. 390, 398.
' See McCollum v. Seward, 62 N. Y. 816.
8 See Jackson v. TS. Y. Central R. R. Co. 2 Supm. Ct. (T. <fe C.) 653.
Greeley v. Stilson, 27 Mich. 153 ; but compare Lawton v. Chase, 108 Mass. 238.
10 Alfonso v. United States, 2 Story, 421.
Lush v. Druse, 4 Wend. 313; Cliquot's Champagne, 3 "Wall. 143.
312 ACTIONS FOR TRICE OF GOODS, Ac. ^
counts ; l nor bj the fact that his general experience and knowl-
edge is not aided by knowledge of sales on the very day in ques-
tion ; 2 nor is it made incompetent by the fact that nis knowledge
of market value is derived mostly from sales on credit, for by
cross-examination the difference in price between cash and credit
sales may be ascertained. 8 In cases where there is a market value,
the usual mode of proving it is by a general question as to value
or price at the particular time and place, without reference to
actual sales ; but in such cases inquiries as to particular sales are
admitted on cross-examination, and for the purpose of testing the
accuracy and extent of the witness' knowledge. 4
24. Time for performance or payment.] If the time for de-
livery or payment is fixed by the terms of the writing, evidence
of a contemporaneous oral stipulation for a different time is in-
competent. 5 If by not designating any time in their writing, the
parties have made a contract which by implication of law allows
a reasonable time, oral evidence of a contemporaneous stipulation
fixing a date is incompetent ; 6 but the circumstances and conver-
sations of the parties at the time the contract was entered into
may be proved for the purpose of showing what they regarded
as a reasonable time. 7 Upon the same principle if the writing
names no place of delivery, the law fixes it, and oral evidence of a
contemporaneous stipulation for a different place is incompetent. 8
So if the terms of the writing contemplate a single quantity or
delivery, oral evidence is not competent to show a contempora-
neous understanding of the parties that on successive delivery in
parcels payment should be made for each parcel as delivered. 9 So
if the writing calls for delivery of a specified quantity of mer-
chandise in a month or year, or in each of several successive periods
without other limitation, extrinsic evidence is not competent to
show that it was intended by the parties that the delivery within
any period should be regulated in time and quantity by the exi-
gencies of the purchaser's business. 10
Upon the question whether the sale was entire, the circumstance
1 Alfonso v. United States, 2 Story, 421.
8 Norman v. Ilsley, 22 Wise. 27 ; Belden v. Nicolay, 4 E. D. Smith, 14.
8 Judson v. Easton, 58 N. Y. 664, affi'g 1 Supm Ct. (T. <fe C.) 598. See as to sales
In exchange for things in action, or at an inflated estimate, Sturm v. Williams, 38
Supm. Ct. (J. <fe S.) 323.
4 Dana v. Fiedler, 1 E. D. Smith, 463, 474. Com pare paragraph 21 (abov<-).
6 Parol evidence that by the custom of merchants, the words " to arrive by the
15th of Nov." meant " deliverable on or before the 15th of Nov." held incompetent.
Rogers v. Woodruff, 23 Ohio St. 632, s. c. 13 Am. R. 276; see also Stewart v.
Sender, 4 Zab. N. J. 96.
6 Greaves v. Ashlin, 3 Camp. 426 ; Halliley v. Nicholson, 1 Price, 404 ; Cocker
V. Franklin Hemp <fe Flax Manuf. Co. 3 Sumn. 530.
1 Cocker v. Franklin Hemp, <fec. Co. (above).
8 La Farge v. Rickert, 5 Wend. 187, and ca,ses cited.
9 Baker v. Higgins, 21 N. Y. 897. Compare Winne v. McDonald, 39 Id, 238;
Gault v. Brown, 48 N. H. 183, s. c. 2 Am. R. 210.
10 Curtiss v. Howell, 39 N. Y. 211.
THE FACT OF SALE. 313
that the bargains, though for different lots of the same kind of
property, lying at different places, were all made on the same
day, is entitled to some weight. 1 So is the fact that all were in-
cluded in one bill. 2
Where the contract omits to fix any time for payment, the
presumption is that the delivery and payment are to be concur-
rent acts. 3 If a sale on credit is proved, evidence of a usage to
give notes is competent, and if knowledge of it may be imputed
to defendant, it will be presumed that the parties contracted
with reference to such usage, there being nothing in the contract
to the contrary. 4 If a term of credit, or payment in negotiable
paper, or the like, was agreed for, the seller may recover imme-
diately, regardless of the stipulation, on proof that the defend-
ant, on being requested to pay the amount due, or give his notes
at long periods, or make sume arrangement in reference to the
debt, absolutely refused to perform, 5 or that defendant induced
plaintiff to give the credit by fraud. 6
25. Conditions and warranties.'] Where the obligations
are concurrent, either who seeks to enforce the obligation of the
other must prove performance of his own, or an offer to per-
form. 7 But under a stipulation to do an act if called for, or when
or as directed by the other, the burden is on the latter to prove
that he called for or directed the act. 8 Where there is a com-
plete actual delivery of goods sold on a condition, the burden is
on him who claims that the condition was not waived by delivery,
of showing that fact. 9 If plaintiff's evidence shows a warranty
he must also show that the thing corresponded to it, or that de-
fendant, by failing seasonably to object, or otherwise, waived it.
The mode of this proof is stated in connection with warranties.
26. Options.'] It is not competent for one sued upon his
written contract, to show a parol agreement made prior or con-
temporaneously with it, that he might countermand it subse-
quently if he chose, and that he did so. Parol evidence that the
commencement of the obligation was suspended, might be received,
that is to say, of a condition precedent, but not of a defeasance
or condition subsequent. 10 But a mere memorandum, unsigned,
1 Biggs v. Whisking, 25 Eng. L. & "Eq. 257 (compare Swift v. Opdyke, 43 Barb.
274).
1 Id. Compare Gardner v. Clark, 21 N. Y. 399 ; Mount v. Lyon, 49 N. Y. 652.
3 Tipton v. Feitner, 20 N. Y. 423. Otherwise, perhaps where the seller does not
undertake to deliver, as in a contract for sand to be excavated and carried away
within a year. Brehen v. O'Donnell, 34 N. J. Law, 408.
4 Salmon Falls Manuf. Co. v. Goddard, 14 How. U. S. 446.
6 Lee v. Decker, 6 Abb. Pr. N. S. 392; Wills v. Simmonds, 8 Hun, 189, and cases
cited; Hochster v. De La Tour, 2 Ell. <fe B. 678. And see Snoot's case, 15 Wall. 36.
Wei^and v. Sichel, 4 Abb. Ct. App. Dec. 592, affi'g 34 Barb. 84 ; Roth v. Pal-
mer, 27 Barb. 652, and cases citi'd.
' Dunham v. Pettee, 8 N, Y. 508.
8 H ollister v. Bender, 1 Hill, 150 ; West v. Newton, 1 Duer, 277.
9 Smith v. Lynes, 5 N. Y. 41, rev'g 3 Sandf. 203.
10 Wemple v.' Knopf, 16 Minn. 440, u. c. 2 Am. R. 147.
314 ACTIONS FOR PRICE OF GOODS, <ko.
though indicating a sale, may be explained by parol evidence
that it was a sale on return, or a delivery to an agent to sell. 1
Not so of a written contract. 2 But under an optional contract,
for which writing is required, the option may be exercised by
parol notice. 8 An optional contract for future sale is not pre-
sumed to be a gaming contract, but the burden is on him who
impeaches it to show the illegal intent. 4
27. Subsequent modification.] At common law, the fact that
the contract was in writing does not exclude oral evidence of a
subsequent modification, if the instrument was not under seal ; 5
and even if under seal, a subsequent waiver of a stipulation as to
time may be proven as an estoppel. 6 If the statute of frauds
requires a writing, the modification sought to be proved must be
evidenced by writing as well as the original contract. 7 A party
alleging a modification of a written agreement to have been made
by conduct on the other side amounting to a substitution of
another arrangement, must clearly show not only his own under-
standing as to the new terms, but that the other party had the
same understanding. 8
28. Delivery or offer."] In an action by a seller of goods sold
to be paid for on delivery, plaintiff must prove, not only that
the buyer failed to pay, but that he himself offered to deliver the
goods. The obligations of the parties to such a contract being
concurrent, whichever one seeks to enforce it must show a tender
of performance on his part. Until that be shown, he is himself
in default. 9 If he proves a delivery at the place agreed, and that
there remained nothing further for him to do, he need not show
an acceptance by the buyer, 10 unless the order or contract was
not strictly complied with by plaintiff. 11
Delivery may be proved by evidence of an admission by the
buyer of the correctness of the account against him, there being
no dispute on the trial as to the amount ; n and from evidence that
1 Errico v. Brand, 9 Hun, 654.
a Marsh v. Wickham, 14 Johns. 167; and see Depew v. Keyser, 3 Duer, 835.
'Brown v. Hall, 5 l.ans. 177.
4 Story v. Solomon, 71 N. Y. 420, affi'g 6 Daly, 531.
6 Benj. on S. 216.
6 Hadden v. Dimmick, 16 Abb. Pr. K S. 140 ; Fleming v. Gilbert, 3 Johns. 628;
Townsend v. Empire Stone Dressing Co. 6 Duer, 208.
7 Hickman v. Haynes, L. R. 10 C. P. 598, 605, s. c. 14 Moak's Eng. 447, 453 ;
Swain v. Semens, 9 Wall. 271, and cases cited. Contra, Cummings v. Arnold, 5 Mete.
486 ; Gault v. Brown, 48 N. H. 183 ; and see Benj. on S. 216, and notes. On the
ground that the terms of a sealed agreement cannot be varied by a subsequent
parol contract, so as to authorize a suit on the sealed agreement, which puit without
the parol contract, could nut be sustained ; it has been held that the existence of the
sealed agreement, in such a case, is no bar to a suit on the parol contract. Sinard
V. Patterson, 3 Blackf. 353, 357.
8 Utley v. Donaldson, 94 U. S. 48, and cases cited.
9 Dunham v. Pettee, 8 K Y. 4 Seld. 508 ; 4 E. D. Smith, 600.
10 Nichols v. Morse, 100 Mass. 523.
" Corning v. Colt, 5 Wend. 253.
18 N. Y. Ice Co. v. Parker, 21 How. Pr. 302.
PERFORMANCE, Ac. 315
he denied having received part of the goods, it may be inferred
that he received the other articles mentioned in the bill ; l and
his admission that he had had the goods, is sufficient evidence of
delivery, to go to the jury, though it appear they were, in
fact, delivered to another person, 2 especially if by his authority. 3
So his promise to pay a draft which had been drawn on him for
the price of the goods is, with other evidence tending to show
delivery, competent evidence of delivery. 4 An order drawn by
defendant for the delivery of the goods to the bearer, or to a per-
son shown to have had possession of the order, is, when pro-
duced from the possession of the drawee, and its execution proved,
prima facie evidence that he delivered the goods. 5 If the
order is in favor of a specified person, the receipt of such person
is competent against the drawer. 6 Delivery cannot be made out
by proof of a usage to treat as a delivery that which is not in
law a delivery. 7 Delivery if shown is presumed, in the absence
of evidence to the contrary, to be in fulfillment of the contract ;
but evidence is competent that it was made for the purpose of
allowing examination of the goods, and in such case, evidence
that this was the usual course of dealing is competent, though it
would not be, in the absence of anything else to qualify legal
effect of a delivery. 8 If the circumstances relied on as constitut-
ing delivery or acceptance are equivocal, the person who per-
formed either act may testify to his intent in doing it. 9
Evidence of discrepancy in size or weights of packages is met
by showing that the buyer waived it by receiving them with
knowledge. 10 If the sale was subject to inspection of a third per-
son, there should be evidence of his determination, 11 and in the
form contemplated by the contract ; but this may be dispensed
with by a waiver. 13 Inspection duly had under such a contract is
1 i<?
conclusive. 18
29. Delivery through carrier, .] Evidence of the shipping
of goods ordered by defendants, and the mailing of the bills of
lading to defendants, and that the bills were not returned, and
that at the terminus the carrier's servant delivered merchandise
1 Power v. Root, 3 E. D. Smith, 70.
* Griffin v. Keith, 1 Hilt. 58.
1 Monroe v. Hoff, 5 Den. 360.
4 Patterson v. Stettauer, 40 Super. Ct. (J. <fe S.) 54.
6 Alvord v. Baker, 9 Wend. 823. Contra, Blounf v. Starkey, 1 Tayl. N. C. 110,
8. c. 2 Hayw. 75.
9 Rawson v. Adams, 17 Johns. 130.
7 Suydam v. Clark, 2 Sandf. 133 ; and see Smith v. Lynes, 3 Id. 203 ; 5 N. T. 41.
8 Haskins v. Warren, 115 Mans. 514.
Hale v Taylor, 45 N. H. 405; Southwestern R. R. Co. v. Rowan, 43 Geo. 411.
Compare Folsom v. Batchelder, 2 Fost. (N. H.) 47.
10 Fitch v. Carpenter, 40 Barb. 40.
11 McAndrews v. Santee, 7 Abb. Pr. N. S. 408, 8. o. 57 Barb. 193; Stephens v.
Santee. 49 N. Y. 35, rev'g 51 Barb. 532.
11 Clinton v. Brown, 41 Barb. 226 ; Gillespie v. Carpenter, 1 Robt. 65, 8. c. 25
How. Pr. 203; Delafield v. De Grauw, 9 Boew. 1 ; 1 Abb. Ct, App. Dec. 600.
13 Severcool v. Farewell, 17 Mich. 808. Otherwise of mere official inspection.
Clintsman v. Northrop, 8 Cow. 45; Williams v. Merle, 41 Wend. 80.
316 ACTIONS FOR PRICE OF GOODS, <fcc.
such as is described, to defendants, and that they paid the freight
bills without objection, is prima facie, and, if unexplained, suf-
ficient evidence of delivery. 1 If the seller sent the goods in a
manner directed by the buyer, his mistake in addressing them
will not defeat his right to recover, unless there be some evidence
that the loss was attributed to the error ; in other words, that the
error was material. 2 If the mode of transportation was not fixed
by the contract, evidence of usage is competent on the question
of the duty of the seller in respect to taking and forwarding a
bill of lading. 8
30. Tender."] An averment of tender (when it is an act in pais,
not part of the contract) simply affirms that the party had done
all in his power, toward fulfilling his obligation ; and under this
averment, proof that the other party had prevented or dispensed
with some of the legal requisites of a formal tender, is admissible. 4
Evidence that the person making the tender found at the place of
business of the other party a person answering to the name, who
said he was the man, and admitted the contract to be his, but re-
fused to pay the money, is competent to go to a jury upon the ques-
tion of identity, and sufficient to uphold a verdict in the absence of
all evidence tending to raise any suspicion of mistake or collusion. 5
Evidence of a refusal 6 or delaration of inability, 7 either by the
buyer 8 as to receiving or paying, or by the seller 9 as to delivery,
made to the other party 1 " on his due demand, 11 dispenses with
proof of formal tender.
31. Packing and freight."] In the absence of agreement
there is no implied promise to pay for the packing done for the
purpose of making delivery as agreed, even though the goods
were put into the buyer's cases or bags. 18 But evidence of usage
is competent for the purpose of showing which party is charge-
able with expenses of packing, wrappers or cases, and freight. 13
32. The passing of the titled} The question whether the prop-
1 Cooper v. Coates, 21 Wall. 110. If delivery to the carrier is full performance,
receipt by the buyer need not be shown. 62 N. Y. 272.
2 Garretson v. Selby, 37 Iowa, 629, s. c. 18 Am. R. 14.
3 Johnson v. Stoddard, lOOMr.ss. 306; Putnam v. Tillotson, 13 Mete. 517. Com-
pare Magrudvr v. Gage, 33 Md. 344.
4 Holmes v. Holmes, 9 N. Y. 525, affi'g 12 Barb. 137. Compare 5 Duer, 336.
5 Howard v. Holbrook, 9 Bosw. 237, s. c. 23 How. Pr. 64.
6 Dana v. Fiedler, 1 E. D. Smith, 463.
7 Wheeler v. Garcia, 40 N. Y. 584, affi'g 2 Robt. 280.
8 Bungev. Koop, 5 Robt. 1.
"Wheeler v. Garcia (above).
10 Otherwise of a mere declaration to a stranger. McDonald v.Williams, 1 Hilt. 365.
11 Wheeler v. Garcia (above). As to a refusal deliberately made in anticipation of
the time for a demand, and with intent that it may be acted on, eee 17 Q. B. 127, s. c.
15 Jur. 877, 6 Eng. L. <fe Eq. 230; 2 El. & B. 678, s. c. 17 Jur. 972, 20 En<^. L. <fe Eq.
157 ; 42 N. Y. 246, 61 Id. 362, 69 Id. 293 ; 16 Abb. Pr. N. S. 428, 1 Abb. New Cas. 93.
12 Cole v. Kerr, 20 Vt. 21. Contra, Burr v. Williams, 23 Ark. 244.
13 Robinson v. United States, 13 Wall. 363 ; Howe v. Hardy, 106 Mass. 329 ; Beni
on S. 698.
PERFORMANCE, Ac. 317
erty had passed at any given time is one of intention, which, if
not expressed, is to be collected from all the circumstances, and
no single circumstance is necessarily conclusive in all cases, but the
conclusion to be drawn must depend on a balance of the various
circumstances on one side and the other. 1 The following rules
are a guide in ascertaining the intention : a
1. Where, by the agreement, the seller is to do anything to the
goods for the purpose of putting them into that state in which
the buyer is bound to accept them (or, as it is sometimes worded,
into a deliverable state), the performance of these things must, in
the Absence of circumstances indicating a contrary intention, be
taken to be a condition precedent to the vesting of the property. 3
2. Where anything remains to be done to the goods for the
purpose of ascertaining ,the price, as by weighing, measuring, or
testing the goods, where the price is to depend on the quality or
quantity of the goods, the performance of these things must
also be a condition precedent to the transfer of the property, al-
though the particular goods be ascertained, and they are in the
state in which they ought to be accepted. 4
3. Where the buyer is by the contract bound to do anything
as a consideration, either precedent or concurrent, on which the
property depends, the property will not pass until the condition
be fulfilled, even though the goods may have been actually* deliv-
ered into the possession of the buyer. 5
4. The giving of earnest does not pass the property in the
subject matter of the sale, where the completed bargain if proved
in writing, or in any other sufficient manner, would not have
equally altered the property. 6
On the other hand, if tne express contract or the acts of the
parties manifest a clear intent to vest the title immediately in
the buyer, its passing is not postponed by the fact that the seller
undertook to make a delivery, 7 or procure necessary authority for
the shipment, 8 or even that there had been no actual separation
of the thing sold from an entire mass of which it was part. 9
1 A stipulation for " cash on bill of lading " would, in the absence of other cir-
cumstances, be sufficient evidence that title was not to pass before payment ; but
may be countervailed by such circumstances as that the good3 were packed in the
buyer's sacks, that part payment had been made in earnest, and that the goods were
deliverable free on board. Ogg v. Shuter, L. R. IOC. P. 159, s. o. 11 Moak Ens?. 316.
4 See Benj. on S. 235 ; Blackb. on S. 151 ; The Elgee Cotton Cases, 22 Wall. 180,
188.
3 Id. ; Anderson v. Morice, L. R. 10 C. P. 609, 618, rev'g 11 Eng. Rep. 262, s. c.
14 Moak's Eng. 465, 463; Ganson v. Madigan, 15 Vt. 144.
4 The Elgee Cotton Cases (above) ; and see Kein v. Tapper, 52 N. Y. 550, affi'g
83 Super. Ct. (1 J. AS.) 465.
8 Elgee Cotton Cases (above).
Id.
7 Terry v. Wheeler, 25 N. Y. 520 ; and see Stiles v. Rowland, 32 Id. 309 ; Brad-
ley v. Wheeler, 44 N. Y. 495, affi'g 4 Rob. 18.
8 Waldron v. Romaine, 22 N. Y. 368.
Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118.
318 ACTIONS FOR PRICE OF GOODS, <ko.
On the question of the intent of the parties in the acts per-
formed by them, theii; declarations, part of the res gcstce, are com-
petent, 1 and so is the testimony of each to his understanding at
the time of the transaction, if such understanding does not con-
flict with law. 2 In the absence of express proof of the terms of
the contract, evidence is admissible of the course of business in
former dealings between the parties, of the same character, in order
to show whether, in the acts done under the sale in question, there
was an intent to pass title. 3
33. Delivery to satisfy the statute of frauds.] Where de-
livery is relied on for the purpose of proving a valid contract,
Tinder the statute of frauds, in the absence of a writing or part
payment, stricter proof may be required. Mere words of delivery,
though the thing were present and pointed out, will not suffice. 4
The delivery of a bill of lading or other written evidence of
property and dominion is not enough, unless it is shown or may
be inferred that both parties intended that it should pass the
property. If it was obtained from the seller without intent on
his part to deliver it, 5 or left with the buyer without intent on
his part to accept the goods thereby, 6 the statute is not satisfied.
Delivery by the seller to a third person pursuant to the buyer's
direction is enough, 7 unless the buyer had a right of examination
before acceptance, 8 and even then is enough, it such third person
was authorized by him to accept so as to conclude him. 9
Evidence of a delivery to a general carrier not selected by the
buyer is not enough ; although it might be if there were a valid
contract otherwise proved. 10 Evidence of delivery to a carrier
designated for the purpose by the buyer is enough, if coupled
with evidence that the buyer had previously accepted the goods, 11
or that the carrier had express authority to accept so as to con-
clude as to quality ; u otherwise not.
Symbolical delivery of bulky articles may be proved by any
act importing a surrender on one side and acceptance on the
1 See Clark v. Rush, 19 Cal. 893.
2 Prescott v. Locke, 51 N. H. 94, s. c. 12 Am. R. 55. Compare Foley v. Mason,
6 Md. 37 ; Benj. on S. 213.
3 Lelar v. Brown, 15 Penn. St. 215. So held in trespass for seizing the goods as
the sellers. Compare Richarda v. Millard, 56 N. Y. 574.
4 Shindlerv. Houston. 1 N.Y. 261.
6 Brand v. Focht, 1 Abb. Ct. App. Dec. 185, s. c. 5 Abb. Pr. K S. 225, affi'g 6
Robt. 426 ; 30 How. Pr. 813.
8 Quintard v. Bacon, 99 Mass. 185; and see Rodgers v. Phillips, 40 N. Y. 619.
7 Dyer v. Forest, 2 Abb. Pr. 282.
8 See Stone v. Browning, 51 N. Y. 211, reVg 49 Barb. 244; again 68 N. Y.
9 Allard v. Greasert, 61 N. Y. 1.
10 Rodgers v. Phillips, 40 N. Y. 519.
11 Cross v. O'Donnell, 44 N. Y. 661.
11 Allard v. Greasert, 61 N. Y. 1 ; Grimes v. Van Vechten, 20 Mich. 410. Deliv-
ery to carrier, if sufficient at common law, is enough under a contract made and to
be performed in another State, unless the statute of frauds of that State is proved as
a fact Wilcox Silver Plate Co. v. Green, 9 Hun, 347.
PERFORMANCE, Ac. 319
other, 1 such as delivering a schedule of them, 2 or the keys of
the repository, 3 with that intent.
It is not essential that a delivery to satisfy the statute be
shown to have been contemporaneous with the oral agreement.
A delivery even several months afterward may be proved. 4
Any acts of the parties indicative of ownership by the buyer
may be given in evidence by the seller to show the receipt and
acceptance of the goods. Conduct, acts and declarations are all
competent. 5 An attempt on the part of the buyer in good faith,
immediately on receipt and examination of the goods, to com-
municate to the seller a message declining to accept, is competent
as a part of the res gestce, and material as qualifying the act of
receiving and retaining the goods. 6 In whatever way the fact is
proved, the evidence must show both delivery and acceptance of
the thing sold, or some part of it, and that they were intended
by the parties to effect a final and complete change of property. 7
If the circumstances be such that the buyer is not hnally pre-
cluded from objecting that the goods do not correspond with the
contract, they are not enough. 8
34. Part payment to satisfy the statute of frauds.] Upon
the same principles mere words of agreement, however effectual
they might be, independent of the statute, to establish an accord
and satisfaction or payment by application of indebtedness, cannot
satisfy the statute. 9 There must be an act of payment or written
evidence. 10 But an actual payment made for the purpose of bind-
ing the parties, though not made at the time of the oral agree-
ment, is a renewal of it, and effectual. 11
35. Various rules admitting documents otherwise incompe-
tent.'] There are several principles of growing importance in
the present state of the law, under which entries or memoranda
which are not in themselves competent, are admissible as auxiliary
to oral testimony.
36. Contemporaneous 'memoranda.] When a witness has tes-
tified that he made a memorandum of a transaction had in his
I Stanton v. Small, 8 Sandf. 230.
8 Dixon v. Buck, 42 Barb. 70.
* Parker v. Jervis, 3 Abb. Ct. App. Dec. 449 ; Gray v. Davis, 10 N. Y. 6 Seld. 285.
4 McKnight v. Dunlop, 6 N. Y. 637.
6 Where the goods were liquors, and labels intended to be put on the bottles were
sold with them as a part of the contract : Held, the delivery and acceptance of the
labels was evidence to goto the jury of acceptance of all under the statute of frauds,
in connection with a letter from defendants admitting the existence of a contract and
implying that the liquors had been sold. Garfield v. Paris, 96 U. S. (6 Otto), 557.
8 Caulkins v. Hellman, 47 N. Y. 449.
. T Hewes v. Jordan, 39 Md. 472, s. o. 17 Am. R. 578.
s Id.
' Mnttice v. Allen, 3 Abb. Ct. App. Dec. 248, rev'g 33 Barb. 543.
10 Brabin v. Hyde, 32 N. Y. 519, rev'g 30 Barb. 265.
II Bissell v. Balcom, 39 N. Y. 275, rev'g 40 Barb. 98 ; Allis v. Read, 45 N. Y. 142.
320 ACTIONS FOR PRICE OF GOODS, <fco.
presence, the memorandum may be read in evidence, 1 if it was
read to or by the parties and assented to as embodying their
agreement, or certain terms of it, or if the making of it was part
o? the res gestc/B of an act of the witness already properly in
evidence. 2 But if neither, the mere fact that it was a contempor-
aneous memorandum does not render it competent. 3
37. Memoranda refreshing memory.'] A witness whose re-
collection is not sufficient to enable him to answer a question 4
may, notwithstanding he is under examination at the time, refresh
his memory by referring to a writing or other record or docu-
ment 5 as a memorandum, in the following cases :
1. If the memorandum was made by himself (or by another
person at his dictation), 6 at the time of the transaction concerning
which he is questioned, or so soon afterward that the judge con-
siders it likely that the transaction was at that time fresh in his
memory ; 7 or if made by any other person, and read by the witness
within the same limits as to time, and if, when he read it, he knew
it to be correct. 8 If the witness testifies that he knew the writing
to be correct at the time he made or read it, 9 the competency of
testimony made by its aid is not impaired by the fact that he re-
lies not on his memory of the fact itself, but on his confidence in
the accuracy of the memorandum. 10
A memorandum which is- proper under this rule, and is
used accordingly, becomes competent, and may be read as evidence
of the facts testified to from it, 11 if it be the original entry, not a
copy, 12 and if the witness' memory, after being refreshed, does
not enable him to testify to the facts without the memorandum. 13
It is not error, however, to allow a copy made by the witness from
his original entry, or reproduced by him in substance, from mem-
ory, after the loss of the original, to be read to the jury, not as
evidence of the facts contained in it, as in case 01 an original
entry, but as a statement in detail of what the witness has testi-
fied to directly. 14
1 Lathrop v. Bramhall, 64 N.,Y. 372.
2 See p. 228 of this vol.
3 Flood v. Mitchell, 68 N. Y. 507 ; Moore v. Meacham, 10 N. Y. 207.
4 The use of memoranda to refresh memory is confined to cases where the wit-
ness' memory is at fault without it. Young v. Catlett, 6 Duer, 437; Sackelt v.
Spencer, 29 Barb. 180. He should be allowed time. Key v. Lynn, 4 Litt. 338, 340.
5 Any memorandum (Guy v. Mead, 22 N. Y. 462), even such as his marks on a
board. See Marcly v. Shults, 29 N. Y. 851, where, however, the memorandum
offered was excluded on other grounds.
6 Filkins v. Baker, 6 Lans. 518; or from his memoranda, and subject to his im-
mediate supervision; Krom v. Levy, 1 Hun, 173.
I Steph. Dig. Ev. Art. 136. 8 Id,
9 Lewis v. Ingersoll, 3 Abb. Ct. App. Dec. 55 ; Van Buren v. Cockburn, 14 Barb.
181.
10 Cole v. Jessup, 10 N. Y. 96 ; 9 Barb. 395, 8. c. 10 How. Pr. 515; Filkins v.
Baker, 6 Lans. 518.
II Halsey v. Sinsebagh, 15 N. Y. 485.
15 Marcly v, Shults, 29 N. Y. 348; and see 49 N. Y. 316.
13 Id. Id.
14 McCormick v. Pennsylvania Central R. R. Co. 49 N. Y. 316.
ACCOUNTS AND MEMORANDA. 321
Hence in an action for goods sold, a witness who testifies that
he made correct original entries of the transaction, and he has for-
gotten the transaction, may be shown his original entries, and read
them as evidence. 1 The correctness of the entries may be shown
either by his testimony of his own knowledge, or his testimony
that he entered correctly what others told him, if such others
are produced and testify that they gave him, correctly, facts
within their own knowledge. 3
2. Original memoranda made contemporaneously with the fact, 8
usually such as accounts, bills of parcels, and the like, although
not shown to have been made by the witness, 4 and copies or ab-
stracts made by him from his inspection of such memoranda, 5 may
be referred to by him while on the stand, if his memory, refreshed
by them, enables him to testify from recollection of the original
facts, independent of his confidence in the accuracy of the mem-
oranda. 6 He is not in such case to read from the memorandum,
nor does the memorandum become admissible in corroboration. 7
3. In cases requiring many details of date, quantity, &c., it is
common practice to allow a witness to consult, but not to read
from, memoranda made by him of facts within his own knowl-
edge, to which he cannot speak in sufficient detail without such
aid, although the memoranda were made in preparation ftfr trial.
But such memoranda, if not within the preceding rules, are not
admissible in evidence, 8 unless they are of a character such as
maps, diagrams or tabular statements reasonably necessary to
render the testimony intelligible, and are proven to be correct.
Any thing referred to by a witness to refresh memory must,
if required, be shown to the adverse party ; and he may cross-
examine the witness thereupon, 9 but is not bound to put the paper
in evidence. 10
'Philbin v. Patrick, 3 Abb. Ct. App. Dec. 605 ; S, P. 9 Hun, 347, and cases cited.
It is not necessary that the memorandum be a formal account. Any record, however
rude, made to mark the event or as an aid to memory, may serve. See Marcly v.
Shults (above).
4 Payne v. Hodge, 7 Hun, 612. It has been recently held in Shear v. Van Dyke,
10 Hun, 528, in extension of this rule, that a witness having testified that a quantity,
which he had now forgotten, lie had, at the time of delivery, reported correctly to
another, the other might be called and testify what the quantity was thus reported;
that is to say, a human memory may serve as a book of original entries, $<>, where
a temporary memorandum, made by a witness who had since forgotten what was
written, had been destroyed by another witness who in the course of duty transcribed
it in more permanent form, the latter was permitted to produce his copy and testify
to what he transcribed. Adams v. People, 8 Hun, 654.
3 This contemporaneous character is not always strictly to be required.
4 Sturm v. Atlantic Ins. Co. 38 Super. Ct. (J. <fe S.) 286, 296, 318; Huffv. Ben-
nett, 6 N. Y. 337.
Rowland v. Sheriff Willetts, 5 Sandf. 221 ; and see Sturm v. Atlantic Ins. Co.
(above).
Wilde v. Hexter, 50 Barb. 448.
7 Russell v. Hudson River R. R. Co. 17 N. Y. 134. Compare note 14, above.
Stuart v. Binuse, 7 Bosw. 195.
Peck v. Lake, 3 Lans. 136; Steph, Dig. Art. 137; Tibbetts v. Stornberg, 66
Barb. 201. 10 Peck v. Lake (above).
322 ACTIONS FOR PRICE OF GOODS, fco.
38. Memoranda made by a third person in the usual course
of business.] An entry or memorandum, whether in a book or in
any other form, 1 made in the usual course of business, and at or
about the time of the transaction, by a person not a party to the
action, who is shown to have had means of personal knowledge 3
of the fact recorded, is competent evidence of such fact ;
1 . If the person who made it is produced, and verifies the
handwriting as his own, 8 and testifies that it was so made, and
correct when made, although he may have no present recollection
whatever of the transaction ; 4 or,
2. If the person who made it is dead, and his signature or hand-
writing is proved, and he does not appear to have had any interest
to falsify. 4 If living, though he be without the jurisdiction, he
must be produced. 5
It is not necessary that the person should have been under an
absolute duty to make the entiy; it is enough if it was the
natural concomitant of the transaction to which it relates, and
usually accompanies it. 6
39. Shop books and other Accounts of a party offered in his
own favor :] The statutes allowing parties to testify have revolu-
tionized the practice, by making the party the witness and allow-
ing him commonly to use his book as a memorandum to refresh
his memory; 7 but the rule admitting his account as primary
evidence, with certain preliminary proof, is still in force ; 8 and it
1 Livingston v. Arnoux, 56N.Y. 518. Notacopy. James v.Wharton, 3 McLean, 492.
a The entries are not admissible under this rule if made on information received
from a third person, although communicated by him in the course of duty ; Thomas
v. Price, 30 Md. 483; White v. Wilkinson, 13 La Ann. 359; even though the person
who made the entry testify that his informant (not shown to be deceased) saw and
corrected it. In such case the latter should be produced. See Gould v. Conway. 59
Barb. 355; Chenango Bridge Co. v. Lewis, 63 Id. 111. The informant not hav-
ing adopted the entry as his own, the mere fact that lie is dead does not admit the
entry made by the witness on his information. Brain v. Price, 11 Mees <fc W. 773.
As to the effect of ignorance of some of the entries, see Burke v. Wolfe, 88 Super.
Ct. (J. & S.) 263.
3 Gilchrist v. Brooklyn Grocers' Asso. 59 N. T. 499.
4 Price v. Torrington, Salk, 285, s. c. 1 Smith's L. C. 390 ; Merrill v. Ithaca, Ac. R.
R. Co. 16 Wend. 586. The rule applies, although the entries were only of each order
in gross, without stating the items. Gilbert v. Sage, 57 N. Y. 639, affi'g 5 Lans. 287.
5 Ocean Nat. Bank v. Carll, 55 N. Y., 440 ; again, 9 Hun, 239, and cases cited.
In some States permanent insanity, in others permanent absence from the State, is
equivalent to death for this purpose. For instances, see 1 Smith's L. Cas. 139 ; note
to Price v. Torrington
8 Fisher v. Mayor, <fec. of N. Y. 67 N. Y. 77; Morrow v. Ostrander, 13 Hun, 219.
It haa lately been held that in a conflict of evidence as to whether the witness per-
formed an alleged act, his book, testified to by him to be a complete record of all his
transactions of the nature of that alleged, is admissible, for the purpose of inferring
from the absence of an entry of the alleged transaction, that it did not occur. Mor-
row v. Ostrander, 13 Hun, 219.
Alterations, <fec. seriously impair the credit of the entry, Gilchrist v. Brooklyn
Grocers' Asso. 59 N. Y. 499, but do not necessarily render it incompetent. Adams v.
Coulliard. 102 Mass. 167.
7 Henry v. Martin, 1 Weekly Cas. (Pa.) 277 ; Barnet v. Steinbnch, Id. 335.
f Stroud v. Tilton, 4 Abb. Ct. App. Dec. 324 ; Burke v. Wolfe, 38 Super. Ct
(J. A S.)
ACCOUNTS AND MEMORANDA. 323
is convenient to rely upon it in some cases where the right to
read the account, as having refreshed the witness's memory, may
be doubtful. 1 It is not essential under this rule to produce the
party himself as a witness, even since the disqualification of
parties has been removed. 2
The general rule is that in actions for goods sold (and some
others), not founded on special contract, 3 the party's books of
account are admissible in evidence for the consideration of the
jury, in his own favor, upon due preliminary proof ; 1. That they
are his books of account kept in the regular course of business ;
2. That there was a course of dealing between the parties;
3. That some article or service charged was actually furnished ;
4. That the party had no clerk or book-keeper ; 5. That he kept
fair and honest accounts. 4
In more detail observe : 1. The record must be shown to have
been the party's account, kept in the regular course of business.
Formal book-keeping is not important. The record derives what-
ever respect it receives, from the fact that it it is the personal
record of the party, kept according to his usage and degree of
intelligence, for the purpose of preserving the memory of moneys
due him for goods or labor. 5 The account is not to be excluded
because kept in ledger form, so that the charges against defendant
are on a separate page from those against others ; 6 although entries
scattered through an account in the journal or day-book form
are more cogent evidence. But if shown not to be the book of
original entries, it is not competent without producing or account-
ing for those entries. 7 If it appear either from the books them-
1 The value and importance of the party's account are asserted in Butler v. Corn-
wall Iron Co. 22 Com. 360, and denied in Larue v. Rowland, 7 Barb. 107, and Tomlin-
son v. Borst, 30 Id. 46.
* Tomlinson v. Borst, 30 N. Y. 42. This is the New York Rule. In those juris-
dictions where the suppletory oath of the party himself is required, the general rule
is, that if part of the transaction was done by one partner, and part by another, as
where one delivered the goods and another made the entries, ench may testify to his
own share in the transaction. If the person who kept the books is dead, the supple-
tory oath may be made by the executor or administrator speaking to the best of his
knowledge and belief; and testifying also that the books came to his hands as the
genuine and only account books of the deceased ; but in such case, there must also
be proof of the handwriting of the deceased. If the person who kept the books is
insane, the question of insanity being one for the judge, the books are admissible on
the like suppletory oath of the committee or guardian, with proof also of handwriting.
8 Merrill v. Ithaca, &c. R. R. Co. 16 Wend. 686; Contra, Cummings v. Nichols,
13 N. H. 420.
Vosburgh v. Thayer, 12 Johns. 461 ; Stroud v. Tilton, 4 Abb. Ct. App. Dec.;
Knight v. Cumington, 6 Hun, 100; Foster v. Coleman, 1 E. D. Smith, 86; and see
further, 1 Smith's L. Cas. 142; 1 Greenlf. Ev. 118; 1 Whart. Ev. 678, tfrc. 700.
5 Thus a notched stick kept for this purpose was admitted in Rowland v. Burton,
2 Harr. (Del.) 288 ; scraps of paper in Smith v. Smith, 4 Id. 632, 633; Taylor v.
Tucker, 1 Geo. 231. But these are exceptional cases. See Hall v. Glidden, 89
Me. 445 ; Jones v. Jones, 21 N. H. 219. On the other hand, a pocket memorandum
book has been excluded. Richardson v. Emery, 23 N. H. (3 Fost) 220; Thayer v.
Been, 2 Hill (So. Car.)
6 Faxon v. Hollis, 13 Mass. 428. A tabular form may be admissible. Mathes T.
Robinson, 8 Mete. 269. And alterations are suspicious. Lloyd v. Lloyd, 1 Redf. 398
1 Vilmar v. Schall, 35, Super. Ct. (J. <fc S.) 67.
\
324 ACTIONS FOR PRICE OF GOODS, Ac.
selves, or extrinsic evidence, 1 that they are a part of a system of
books involving others which may be necessary to a complete
view of the state of accounts, 2 the others must be produced or
accounted for. 8 Thus where the ledger is relied on, a day-book
shown to have been kept must be produced. 4 The charge should
be made under an existing right to charge, not merely in anticip-
ation of such a right, 5 and must appear to have been made for
the purpose of charging, 6 for specific things, 7 the person upon
whose credit the transaction was had, 8 as distinguished from me-
moranda of orders, or deliveries, or of things to be subsequently
done. 9
2. There must have been some course of dealing between the
parties. A single sale, though of more than one article, is not
enough to constitute that relation between the parties which
allows the books to be admitted. 10
3 Independent evidence that some article or service charged
was furnished, is indispensable. 11 Proof of this prior to the time
covered by the account is insufficient. 12 One article delivered and
one item of work done, as charged, satisfy this requirement. 13
4. The rule we are now considering does not apply to admit ttie
books of a party to the suit, if they were kept by a regular clerk
or book-keeper, 14 whose business it was to notice sales and enter
them in the books : 15 such entries are admissible under other
rules already stated. But the books of daily entries made by
the party himself are not rendered incompetent by the fact that
his servant, porter or messenger noted in temporary form the
deliveries made by him, and reported them to the party, who,
upon such information, or copying from the temporary memo-
randa, made the entries in question. 16 If there were partners, it is
I Pendleton v. "Weed, 17 N. Y. 72 ; see also, Schenck v. Wilson, 2 Hilt. 92.
3 As for instance where a journal is produced, and it bears marks indicating that
the entries have been posted into a ledger. Prince v. Sweet, 2 Mass. 569. Compare
Hervey v. Hervey, 15 Me. 357.
3 And the testimony of a witness that the reference in the book produced, to
others not produced, was a mistake, does not justify the admission of the former
alone. Lame v. Rowland, 7 Barb. 107.
4 McCormick v. Elston, 16 111. 204.
6 Heughley v. Brewer, 16 Serg. & R. 133. And should bear some date, though
not necessarily the day. Cumminers v. Nichols, 13 N. H. 420.
6 Lynch v. Petrie, 1 Nott. & Me. 130 ; Walter v. Bolman, 8 Watts, 544.
7 Hughes v. Hampton, 2 Const. 745.
* Rogers v. Old, 6 Serg. & R. 454. Mistake in the person may be explained.
Schettler v. Jones, 20 Wis. 412.
9 Fairchild v. Dennison, 4 Watts Pa. 258; Bradley v. Goodyear, 1 Day Ct. 104;
Terrill v. Beecher, 9 Conn. 344.
10 Corning v. Ashley, 4 Den. 354.
II Morrill v. Whitehead, 4 E. D. Smith, 239. .
Conklin v. Stawler, 8 Abb. Pr. 395, s. c. 2 Hilt. 422.
13 Linnell v. Sutherland, 11 Wend. 568.
'* Gould y. Conway, 59 Barb. 355; MeriU v. Ithaca, <tc. R. R. Co. 16 Wend. 587. "
15 Sickles v. Mather, 20 Wend. 72.
14 Within reasonable limit of time for the keeping of such accounts, see Id. ;
Stroud v. TUton, 4 Abb. Ct. App. Dec. 324 ; Hauptman y. Catlin, 1 E. D. Smith, 729.
ACCOUNTS AND MEMORANDA. 325
enough to produce the one who kept the book ; but if he is dead,
the book may be admitted on the oath of the other, if he can
testify to his knowledge of the correctness of the entries. 1
5. To show that the party kept fair and honest books, the tes-
timony of one witness is enough, who has dealt with the party,
and settled with him by his account ; 8 but he should be not an
employee, but a customer, 3 or a witness to settlement by custo-
mers. 4 A settlement by the ledger is enough, though the witness
did not see the day-books. 5 The evidence of fair and honest
accounts should be directed, in part at least, to the period covered
by the dealings in question. 6
The competency of an account under these rules is a prelim-
inary question for the court. 7
An account offered in evidence under these rules should be
submitted to the judge for inspection. 8 But if the books are
shown to have been lost or destroyed, secondary evidence of
their contents may be received. 9 Without laying a foundation
for secondary evidence, a copy is not admissible. 10 Abbrevia-
tions u and symbols 12 may be explained by parol, by testimony
other than that of the party himself. 18 The party may explain by
stating his usage, not by stating a secret intent. The fact that the
book has been mutilated in a part not appearing to be material to
the issue, such as having leaves torn out, etc., does not make it
incompetent, but goes to its credit. 14 But apparent alterations or
erasures in a part material to the cause must be explained before
the account can be admitted. 15 Any fact showing the books un-
worthy of credit may be proved, such as bad method of book-
keeping ; or bad business character of the party ; or erasures,
1 Krom v. Levy, 1 Hun, 172 ; and see Butler v. Cornwall Iron Co. 22 Conn. 360.
3 Beattie v. Qua, 15 Barb. 137.
a Hamptman v. Catlin, 1 E. D. Smith, 729.
4 McAllister v. Real, 4 Wend. 483. Or any witness who can prove actual accu-
racy. WOODRUFF, J. in Foster v. Coleman, 1 E. D. Smith, 85.
6 Stroud v. Tilton, 4 Abb. Ct. App. Dec.
8 Foster v. Coleman, 1 E. D. Smith, .85.
I Larue v. Rowland, 7 Barb. 107. Objections to its admissibility must be made
on the trial, or cannot be considered on appeal. Peck v. Richmond, 2 E. D. Smith,
380 ; Brahe v. Kimball, 5 Sandf. 237. W here the books of a party are read in evi-
dence for him without objection, they are evidence by consent, and are to be weighed
by the jury. Brahe v. Kimball. 5 Sandf. 237.
8 It cannot be proved by deposition without production in court. Churchill v.
Fulliam, 8 Iowa, 45.
9 Holmes v. Marden, 12 Pick. 169. And see Hilderbrant v. Crawford, 6 Lans.
600 ; Prince v. Smith, 4 Mass. 455.
10 Reddington v. Gilman, 1 Bosw. 235.
II Curnen v. Crawford, 4 Serg. & R. 3.
15 Rowland v. Burton, 2 Harr. (Del.) 288.
13 Cummings v. Nichols, 13 N. II. 420. His own testimony for this purpose ought
to be received if it goes to show habitual usage, not merely a secret intent on the
particular case.
u Jones v. Dekay, 2 Penn. 955 N. J. (Ed. of 1836, p. 695).
15 Churchman v. Smith, 6 Whart. 106.
326 ACTIONS FOR PRICE OF GOODS, &o.
mutilations, etc. 1 But not the general bad moral character of the
party. 8
An account properly in evidence under this rule is com-
petent evidence of the facts of sale, of the dates, 3 of the price or
value, 4 and of the delivery ; 5 but not evidence of any other mat-
ter than the issue of debt and credit between the parties. 6
Pass looks, kept by one party and written up by the other,
are competent, irrespective of whether the entries were original
memoranda, or copies. 7
40. When using part of an account admits the rest.~\ If a
party uses books of account against his adversary, he makes them
evidence for the adversary on the same subject. They are like
any declaration or admission by writing or orally ; if part is used,
the whole qualifying the same matter is admissible. He cannot
offer his books in evidence, to establish some things, under the
restriction that they should not be received to prove others, to
show which they were equally competent. 8 After they have
been introduced in evidence, -they are available as the property of
both parties, as evidence, and he who adduced them cannot with-
draw them from the consideration of the .jury, without consent
of the adverse party. 9 Hence when one party has used the ac-
count to establish credits in his favor, it is competent for the
other plaintiff to read from the same books, entries, although
they were made by himself, which show that those credits have
been exhausted by counter-charges of debit, made at about the
same time and afterward. 10
41. Memoranda as part of the res gestse.] In connection with
the last few paragraphs reference should be had to the rule ad-
mitting entries and declarations as part of the res gestce of an act
already properly in evidence, a rule which has been sufficiently
illustrated elsewhere. 11
42. Admissions and promises to pay.~\ In proving oral admis-
sions, etc , the witness must state the facts, and the conversation
in substance at least; and not his own conclusion derived there-
from. 13 An admission or declaration made by a party in writing 13
I Lame v. Rowland, 7 Barb. 107.
* Tomlinson v. Bort, 30 Barb. 42.
8 Sickles v. Mather, 20 Wend. 72.
4 Morrill v. Whitehead, 4 E. D. Smith, 239.
6 See also paragraphs 4 and 28.
6 Batchelder v. Sanborn, 22 N. H. (2 Fost.) 325, rev's cases.
7 Burke v. Wolfe, 38 Super, a. (J. <fe S.) 263.
8 I'endleton v. Weed, 17 N. Y. 72; Winans v. Sherman, 3 H31, 74. But he may
contradict items. \Valden v. Sherburne, 15 Johns. 409.
9 Clinton v. Rowland, 24 Barb. 634, and cases cited.
10 Dewey v. Hotchkiss, 30 N. Y. 497. Detached items in accounts, however, are
not necessarily so connected that the one drags in the other. 1 Whart. Ev. 591, 620.
"Pages 170, 245, 2^, 264, 269, 275; and see Arms v. Middleton, 23 Barb. 571.
II Parsons v. Disbrow, 4 E. D. Smith, 547.
13 Even though dictated to plaintiffs agent, and unsigned by defendant. Wollen-
weber v. Ketterlinus, 17 Penn. St. 389.
SALE BY AUCTION. 327
is competent against him, without calling him. If a memorandum
of defendant's admission was made by plaintiff or his agent, it
need not be produced, unless it was communicated to defendant. 1
Upon the question, whether a transaction was a sale or not, it is
competent to prove an entry made by the plaintiff in his books,
of the transaction as a sale, if accompanied by proof that the
entry was subsequently read to the defendant, and he admitted
its correctness. 2 The existence, and defendant's knowledge of the
demand being shown by other evidence, defendant's acknowl-
edgment of an indebtedness is presumed to have referred to the
demand proven, in the absence of proof that other demands ex-
isted, to which the acknowledgment might apply. 3 A promise
"to settle," if made in reference to a demand of a liquidated
amount, is equivalent to a promise to pay. 4 On a promise to pay
in. a contingency, though indefinite such as to pay when able
plaintiff should show that the contingency has occurred. 5
The admissions and declarations of defendant's agent are
competent only when shown to have been made by him at the
time of making the agreement about which he was employed, or
while acting within the scope of his authority. 6 Upon proof that
defendant referred plaintiff or his agent to a third person for infor-
mation, 7 the admissions and declarations of the latter, ms.de pur-
suant to the reference to him, are competent against defendant. 8
An admission of a distinct fact, such as the correctness of an
account presented to the party, may be proved against him,
though made during a negotiation for settlement, and coupled
with an offer to allow the account on a condition ; 9 and after the
correctness of the items has thus been proved, the account, and
entries and vouchers concerning the items, are admissible. 10
43. Auction sales J] An auctioneer suing in his own name
need not prove that he has a special property or interest, for that
follows from his position as an auctioneer. 11
Under the statute of frauds, as applicable to auctions, 12 one
who has to prove compliance with the statute must produce or
account for the memorandum, 13 and show that it was made by the
1 Parsons v. Disbrow, 1 E. D. Smith, 547.
* Tanner v. Parshall, 4 Abb. Ct. App. Dec. 356, s. c. 5 Abb. Pr.N. S. 373; and 35
How. Pr. 472.
3 McNamee v. Tenny, 41 Barb. 495. Sugar v. Davis, 13 Ga. 462. The sufficiency
of this evidence, txlone, is questionable.
4 Barker v. Seaman, 61 N. Y. 648.
4 2 Abb. N. Y. Di<jf. 2d ed. 209.
6 Vail v. Judson, 4 E. D. Smith, 165.
1 Allen v. Killin^er, 8 Wall. 480.
8 Folsom v. Batchelder, 2 Post. (8; H.) 47.
9 Bartlett v. Tarbox, 1 Abb. Ct. App. Dec. 120.
10 Id.
11 Minturn v. Main, 7 N. Y. 220.
18 2 N. Y. R. S. 136, 4 (3 R. S. 6th ed. 143).
13 Davis v. Robertson, 1 Mill (So. Car.) 71.
328 ACTIONS FOR PRICE OF GOODS, Ac.
auctioneer or his clerk at the time of the sale, 1 that is to say, before
other business intervened after the auction, so that nothing was
left to memory. 3 In case of a continued sale of many parcels, it
is sufficient to prove that the memorandum was kept complete
as to everything but subscription, as the sale progressed from
day to day, and was subscribed (where necessary) immediately
upon the close of the sale. 8
The memorandum must show everything necessary to estab-
lish the existence of the contract without having recourse to ex-
trinsic evidence. 4 For the purpose of making out the facts re-
quired by the statute of frauds, the printed terms of sale or other
separate papers cannot be used, unless referred to in the memo-
randum which was subscribed, 6 or unless physically annexed at
the time of sale. 6 A coincidence in the contents of separate
papers is not enough to connect them ; 7 nor is evidence that the
papers were actually intended by the parties to be read together. 8
A mistake in the given name of the buyer may be corrected by
parol, if, rejecting the erroneous words or letters, enough re-
mains to identify the person by, with the aid of extrinsic evi-
dence. 9 And the identity of the property may be ascertained if
the memorandum contains the means of identification by aid of
extrinsic evidence. 10
The written or printed terms of sale cannot be varied by
evidence of the parol declarations of the auctioneer. 11 The quantity
or amount of property offered in a lot may be proved by parol ;**
and so may the fact that misdescriptions in the catalogue were
publicly corrected. 13 But the rules excluding oral evidence to ex-
plain or vary the contract, which have already been stated in the
case of other modes of contract under the statute of frauds, apply
to sales by auction.
44. Sales through a "broker '.] The broker's authority must be
shown, 14 if his entry or memorandum is relied on as the evidence
of the sale ; but it need not be in writing. 13 If it appears that he
J Frost v. Hill, 3 "Wend. 386 ; Price v. Durin, 56 Barb. 647 ; Hicks v. "Whitmore,
12 Wend. 648; Walker v. Herring, 21 Gratt. 679, s. c. 8 Am. R. 616.
5 Hicks v. Whitmore (above); Goelet v. Cowdrey, 1 Duer, 140.
8 Price V. Durin, 56 Earb. 647.
4 First Bapt. Ch. v. Bigelow, 16 Wend. 31, and cases cited.
* Norris v. Blair, 39 Ind. 90, s. c. 10 Am. R. 135.
Tallmnn v. Franklin, 14 N. Y. 588, rev'g 3 Duer, 395.
7 So held of a mere coincidence ot d.ites, between the catalogue containing terms
of sale of specified lots for a day narnerl, and a memorandum of sale of a lot by the
catalogue number. Peirce v. Corf, L. R. 9 Q. B. 210, s. c. 8 Moak Eng. 316 ; and
see First Ch. v. B'gelow, 16 Wend. 82.
8 Johnson v. Buck, 85 N. J. 838, s. c. 10 Am. R. 243, and cases cited.
9 Pinckney v. Hagadorn, 1 Duer, 1*7.
10 Tellman v. Franklin, 14 N. Y. 684, rev'g 3 Duer, 395.
11 Shelton v. Livius, 2 Ci-ompt. & J. 411; Wright v. Deklyne, Pet. C. C. 199
Compare Hadley v. Clinton, 13 Ohio St. 502.
12 Wright v. Deklyne (above).
18 Eden v. Blake, 13 M. <fe W. 614.
14 Moses v. Banker, 7 Uobt. 441.
16 Merritt v. Clason, 12 Johns. 102, affi'd in 14 Johns. 484.
SALE BY BROKER. 329
was employed by one party, the question whether he was also
agent for the other, is usually one of fact ; and the presumption
that he was, if any such arises from his character of broker, is
repelled by evidence that the other party had another agent or
broker in the transaction. 1 Although his original authority was
only from one, his authority to bind the other may be shown by
the ratification by the latter of his act. 2
In respect to the mode of proving the contract, especially
where the statute of frauds requires a memorandum, the follow-
ing rules are guides :
1. The broker's entry in his book, subscribed by him, 8 satisfies
the statute. If authorized, it constitutes the contract between the
parties, and is binding on both. 4 And it need not be shown that he
communicated it to the defendant, 5 if it be shown that he was au-
thorized to make it by defendant. 6 And if communicated, a vari-
ance in the terms as communicated, does not impair its validity. 7
2. If the broker subscribed' such an entry, bought and sold
notes, delivered by him, do not constitute the contract. 8
3. The bought and sold notes, when they correspond with
each other and state all the terms of the contract, are complete
and sufficient evidence to satisfy the. statute, even though there
be no entry in the broker's book, or, what is equivalent, only an
unsigned entry. 9
4. Though the broker made such an entry, if he did not subscribe
it, and did not deliver a note, the terms of the contract may be
proved by parol if the statute of frauds can be otherwise satisfied. 10
5. Either a bought or sold note alone may satisfy the statute ; n
and though both are shown to have been delivered, the plaintiff need
only produce the one delivered to him, unless a variance appears. 12
I Dilworth v. Bostwick, 1 Sweeney, 688, Monell, J.
8 Hankins v. Baker, 46 N. Y. 666. It may be proved by evidence that he sent a
note of the bargain to the buyer, who kept it without objection until called on to
fulfill the contract, when he objected merely on the ground that the broker did not
sign it, Thompson v. Gnrdiner, 1 C. P. Div. 777, s. c. 18 Moak's Eng. 328 ; or sent a
warehouse order, which he retained, and upon which he authorized an, effort to sell
the goods. Hankins v. Baker (above).
3 Davis v. Shields, 26 Wend. 341.
4 Sivewright v. Archibald, 17 Q. B. 115, s. c. 20 L. J. N. S. Q. B. 529 ; Benj. on S.
290, etc. (Contra, 1 Tayl. Ev. 416. Stephen Pays tlia question is unsettled. Steph.
Dig. Ev. Art. 64, n.) Unless apparently made only for another purpose. Gallagher
v. Waring, 9 Wend. 28. A memorandum made, for his own convenience of charges,
by a broker who merely brought together the parties who contracted, is not the con-
tract. Aguirre v. Allen, 10 Barb. 74, affi'd, on other points, in 7 N. Y. (3 Seld.) 548.
6 Mcrritt v. Clason, 12 Johns. 102; 14 Id. 484; Sivewright v. Archibald (above).
6 See Davis v. Shields, 26 Wend. 341, 350.
7 Sivewright v. Archibald (above).
8 Same authorities and same conflict.
Id.
10 Waring v. Mason, 18 Wend. 425.
II This conclusion seems supported by the doctrine of Butler v. Thompson, 92
U. S. (1 Otto), 416; and Parton v. Crofts, 16 C. B. N. S. 11 (recognized in 42 N. Y.
620); Hankins v. Baker, 46 N. Y. 666.
Durrell v. Evaus, 1 U. & C. 174, s. c. 31 L. J. Ex. 837 ; 1 Tayl. Ev. 416.
330 ACTIONS FOR PRICE OF GOODS, Ac.
6. "Where one note only is offered in evidence, the party
sought to be charged has a right to offer the other note, or the
subscribed entry in the book, to prove a variance. 1
7. If the bought and sold notes correspond with each other,
but vary from the subscribed entry in the book, the jury may
find that the acceptance by the parties of the bought and sold
notes constituted a new contract modifying that which was en-
tered in the book.
8. If the bought and sold notes differ with each other in sub-
stance, 2 and there is no subscribed entry showing the terms of the
contract in the broker's book, the papers do not satisfy the re-
quirement of the statute. 8
The understanding of a mere mutual agent, not a broker, as to
the terms of sale, unless communicated by him to one party, and
acceded to, or not objected to, by the other, is not evidence of a
contract which will bind both. 4
If the broker was agent for only one of the parties, parol evi-
dence is competent to show that the contract he actually made
with the other was not truly stated in the memorandum. 5 If he
was agent for both parties such parol evidence is not competent ; 6
but it may be shown by parol that the terms stated in the memo-
randum exceeded his authority. 7 If all the terms appear on the
notes, the question whether the transaction was a sale or for
some other purpose, may be determined by the aid of a separate
writing though addressed to a third person, if subscribed by the
party to be charged. 8
45. Demand?] The fact that the contract fixed a time and
place for payment, does not require plaintiff to prove demand be-
fore suit ; 10 but if the contract is so expressed as to make demand
a condition precedent, 11 or the price was payable in specific arti-
cles, to be furnished by the debtor, a demand and refusal must
be shown, 12 unless the contract is so expressed as to put him in
default without them. And where the defendant is entitled to
a reasonable time to comply with a demand, the demand must be
made a reasonable time before suing. 13
46. Interest.'] Unless a credit is proven, a sale is presumed to
1 Sivewright v. Archibald (above).
1 Variances may be explained by parol to be not material. Bold v. Rayner, 1
Mees. & W. 343 ; Kempson v. Boyle, 3 Hurlst. & C. 763.
* Sivewright v. Archibald (above).
4 Fiedler v. Tucker 13 How. Pr. 9, Mitchell, J.
6 See Davia v. Shields, 26 Wend. 341.
Coddington v. Goddard, 16 Gray, 436.
' Id. ; Peltier v. Collins, 8 Wend. 459.
8 Peabody v. Speyers, 56 N. Y. 230.
8 See also pp. 265 and 281 of this vol.
10 Locklin v. Moore, 57 N. Y. 360, affi'g 6 Lans. 307.
"Id.
Smith v. Tiffany, 36 Barb. 23 ; Hunt v. Westervelt, 4 E. D. Smith, 226.
13 Boutwell v. O'Keefe, 82 Barb. 434, 439.
NON-PAYMENT. 333
have been for cash, 1 and if it be shown that the price was fixed,
either by the contract 2 or by the buyer promising, on receiving
information of the amount, that lie would pay, 3 interest is recover-
able from the time of demand.
A draft drawn by plaintiff upon defendant for the price,
which he refused to accept, is equivalent to a demand of pay-
ment for this purpose. 4
Where there is a general usage in the particular trade or
branch of business, or among merchants of the place, to charge
and allow interest, parties having knowledge o the usage are
presumed to contract in reference to it. 5 Evidence that the buyer
was one of the seller's customers, and that plaintiff always
charged interest after a certain time, is prima facie enough. 6
47. Non-payment.'} Unless the contract is special, plaintiff
need not allege 7 or prove 8 non-payment ; but the sale and deliv-
ery being proved or admitted, the burden is on defendant of
proving payment if he rely on that fact. 9 Negotiable paper of
the buyer, 10 or of his agent, 11 or of either of several joint buyers, 12
received by the seller, for price, whether at the time of the sale
or at any other time, or negotiable paper of any other person w
received by the seller after the sale, at a time when the price may
be regarded as a pre-existing debt, 14 is presumed not to have been
received in payment. Negotiable paper of another than the
buyer or his agent, received at the time 15 of sale and delivery, it
is presumed was received in payment. 16
These presumptions may be rebutted by evidence of an ex-
press agreement to the contrary, 17 even though a receipt was
passed acknowledging that the paper was given in payment. 18
1 Pollock v. Ehle, 2 E. D. Smith, 541.
2 Beers v. Reynolds, 11 N. Y. 97, affi'g 12 Barb. 288.
8 Pollock v. Ehle (above).
4 Cooper v. Coatee, 21 Wall. 111.
6 Esterly v. Cole, 3 N. Y. 602.
' Reab v. McAllister, 8 "VVend. 109, affi'g, 4 Id. 483. The admission of evidence
of the usage does not become improper, because the party fails subsequently to fur-
nish the necessary proof that the other had knowledge of the usage. Esterly v. Cole
(above); but compare Trotter v. Grant, 2 Wend. 413; Wood v. Hickok, 2 Id. 501 ;
and cases cited under paragraph 9, above.
I Salisbury v. Stinson, 10 Hun, 242.
Id; Buswell v. Poineer, 37 N. Y. 312.
9 Id. ; Id.
10 Murray v. Gouverneur, 2 Johns. Cas. 438.
11 Porter v. Talcott, 1 Cow, 859 ; Davis v. Allen, 3 N. Y. 168 ; Higby v. N. Y. <fe
Harlem R. R. Co. 3 Bosw. 497. s. c. 7 Abb. Pr. 259.
" See Bates v. Rosecrans, 37 N. Y. 409, s. c. 4 Abb. Pr. N. S. 276, affi'g 23 How.
Pr. 98.
13 Vail v. Foster, 4 N. Y. 312 ; Smith v. Applegate, 1 Daly, 91.
14 See Gibson v. Tobey, 46 N. Y. 637; 53 Barb. 191.
15 Gibson v. Tobey, 46 N. Y. 637; 53 Barb. 191. and cases cited.
16 Noel v. Murray, 13 N. Y. 167, afl.'g 1 Duer, 385; see also Darnall v. More-
house, 46 N. Y. 64,Vev'g 36 How. Pr. 611.
II Young v. Stahelin, 34 N. Y. 258; Steamer St. Lawrence, 1 Black, 622, 532.
18 So held of a receipt attached to a bill of parcels, acknowledging that the seller
332 ACTIONS FOR PRICE OF GOODS, Ac.
Such an agreement may be inferred from circumstances, such, for
instance, as that the buyer guaranteed the paper. 1 But the fact
that the buyer did not indorse the paper does not raise a pre-
sumption that there was no agreement to take it in payment/
If negotiable paper given did not amount to payment under
these rules, the seller must produce and offer to surrender it at
the trial, 8 or prove that it is lost or destroyed. 4 If he produces it
for cancellation, the fact that it had meanwhile been held by an-
other does not avail. 5
Evidence that the seller agreed, as part of the contract of sale,
to receive negotiable paper of a third person in payment, 6 unless
he agreed to take the risk, 7 does not preclude him from refusing
a tender of it, if the insolvency of the makers became known there-
after and before delivery. 8 In such case he may recover the price.
Otherwise, if it was not known to either party till after delivery. 9
Evidence that, after the sale, he expressly accepted the note as pay-
ment of the pre-existing debt, does not preclude him from proving
that the maker was then insolvent, and that he was ignorant of the
fact ; and thereupon he may recover the price. 10
II. DEFENDANT'S CASE.
48. Denial of Contract.] Under a general denial, 11 or denial
of the making of the contract alleged, 12 evidence is admissible that
the goods were delivered under a special contract which was sub-
stantially and materially different from that alleged, and was un-
performed by plaintiff. 13 The rules as to contradicting an appa-
rent written agreement of sale have already been stated. 14 If the
seller has testified as a witness to prove his sale, he may be iin-
has " received payment by note." Buswell v. Poineer, 37 N. Y. 312, s. c. 4 Abb. Pr.
N. S. 244; 35 How. Pr. 447. Otherwise of a receipt " on account, without recourse."
Graves v. Friend, 5 Sandf. 568 ; Bee also Richard v. Wellington, 66 N. Y. 808.
1 Butler v. Haight, 8 Wend. 535. Even though the guaranty was void, for not
expressing a consideration (Monroe v. Hoff, 5 Den. 360), for it shows the intent
equally well.
a Whitbeckv. Van Ness, 11 Johns. 409.
3 Holmes v. D'Camp. 1 Johns. 34; Burdick v. Green, 15 Johns. 247.
4 Id.
5 Patterson v. Stettauer, 40 Super. Ct. (J. & S.) 69.
' Benedict v. Field, 16 N. Y. 595.
7 Id. (And even then if he was induced to do so by fraud. Pierce v. Drake, 1 5
Johns. 475.)
i,^
9 Des Arts v. Leggett, 16 N. Y. 582.
10 Roberts v. Fisher, 43 N. Y. 159.
11 Manning v. Winter, 7 Hun, 482.
12 Wheeler v. Billings, 38 N. Y. 263; Hawkins v. Borland, 14 Cal 412; Marsh v.
Dodge, 66 N. Y. 533, rev'g 4 Hun, 278.
la Manning v. Winter (above). If the answer sets up that defendant was to pay
when he could, the burden of the proof is upon him to make out the defense. Johnson
v. Plowman, 49 Barb. 472.
14 See paragraphs 8, 9, <fec. ; Lent v. Hodgman, 15 Barb. 274; Groot v. Story, 44
Vt. 200; George v. Foy, 19 N. H. 644.
DEFENDANT'S CASE. 333
peached on cross-examination by asking if lie has not offered to
sell again. 1
49. Set-off against Plaintiff's Agent.~\ To let in the state of
the accounts between defendant and an alleged agent of plaintiff,
with whom defendant dealt as if he were the principal, it should
be shown that the plaintiff had intrusted the alleged agent with
the possession of the goods, that such person had sold them as his
own, in his own name ; that defendant dealt with him as, and be-
lieved him to be, the principal in the transaction, and that before
he was undeceived the set-off accrued. It is not necessary for de-
fendant to show that he had no means of knowing that such per-
son was only in appearance the owner. 2 The fact that the alleged
agent charged the defendant a commission, and the fact that in
the invoice rendered to defendant he did not charge him as pur-
chaser from him, but for goods bought by his order and on his
account, are relevant ; but not conclusive against letting in the
state of the accounts between the defendant and the agent. 3
50. Denial of agency binding Defendant^ Under a general
denial defendant may contest the authority of a 'person who is
claimed to have bought as his agent, and may show that, the
agency, if once existing, had been revoked, and that plaintiff had
notice of such revocation. 4 Evidence of the way in which the al-
leged agent carried on business is competent for that purpose. 5
But if the existence of agency is admitted, excess of authority is
not provable unless alleged in the answer. 6 If it appear that the
foods were purchased on credit by a known agent, for use of a
nown principal, the presumption is that the credit was given to
the principal, and he can rebut this by affirmative evidence that it
was given exclusively to the agent. 7 This fact must appear
clearly. 8 The fact that the alleged agent has not recognized the
claim as his debt, is not competent in favor of defendant. 9
51. Plaintiff an agent for Defendant."] If it appear that
plaintiff was the agent of defendant to buy, he must prove that he
made a full disclosure to plaintiff of the fact that he was the
owner of the goods charged, or the nature of his adverse interest
in the transaction. 10 It is not enough to prove that he made such
1 Knight v. Forward, 63 Barb. 311.
8 Borries v. Imperial Ottoman Bk. L. R. 9 C. P. 38, 8. c. 7 Moak's Eng. 138.
8 Armstrong v. Stokes, L. R. 7 Q. B. 698, a. c. 3 Moak's Eng. R. 217.
4 Heir v. Grant, 47 N. Y. 278.
5 Id.
6 See Merchant's Bank v. Griswold, 9 Hun, 561.
' Butler v. Evening Mail Ass. 61 N. Y. 634, rev'g 34 Super. Ct. (J. & S.) 58.
8 Meeker v. Claghorn, 44 N. Y. 849.
9 Turner v. See, 57 N. Y. 667. Compare Springer v. Droscb, 32 Ind. 486, 8. c. 2
Am. R. 356.
10 Conkey v. Bond, 36 N. Y. 427, 8. c. 3 Abb. Pr. N. S. 415, affi'g 34 Barb. 276;
Dunne v. English, L. R. 18 Eq. Cas. 624 ; 10 Moak's Eng. 837. For this purpose the
testimony of the agent is not alone enough to countervail that of the principal to the
contrary, if their credibility appears equal. Duiiuo y. English (above).
334 ACTIONS FOR PRICE OF GOODS, <fcc.
statements as should put the principal on inquiry. 1 Agency and
failure to disclose interest being shown, the facts that the agent
acted without compensation, and without intent to defraud, and
made no false representations, 2 or acted according to a usage of
trade, not shown to be known to, and assented to by the defend-
ant, 3 are not material. The fact that plaintiff made, or assented to
a charge for commissions, is conclusive against him to show that
to some extent the relation of principal and agent existed. 4
52. Defendant Not the Buyer, but agent for another^ Un-
der a general denial, defendant may show that, in making an oral
contract sued on, he acted as agent for another, and on Ins credit,
plaintiff knowing of the agency ; s and for this purpose defendant
may prove the relations between himself and his alleged princi-
pal ; " but the subsequent admissions of the latter, that he was the
real debtor, if not part of the res gestce of an act properly in evi-
dence, are not competent against the plaintiff. 7 If, however, the
contract was in writing, and defendant appears in it as principal,
parol evidence cannot be admitted for the purpose of exonerating
him, even though he should propose to show, if allowed, that he
disclosed his agency and mentioned the name of his principal at
the time the contract was executed ; 8 or even that he was known
to the other party to be an auctioneer or broker, who is usually
employed in selling or buying property as agent, 9 or an attorney
for a party named on the record. 10
53. By bidding at Auction.'] "Where a buyer at auction de-
fends on the ground of by bidding, the burden of proof is on him
to prove the fraud ; but if there be proof that the fraud was
practiced for the purpose by the auctioneer, it is not essential that
he should prove that the owner knew of it. 11 But it should ap-
pear that defendant was actually misled ; though this may be in-
ferred by the jury from the intent to mislead, and the nature of
the method pursued. 12
54. Rescission.'] When the maker, or seller, of an article
takes it back after delivery, because the price remains unpaid, the
legal presumption is that the sale is rescinded, unless there is
1 Dunne v. English (above).
I Conkey v. Bond (above).
3 Robinson v. Mollett, L. R. 7 Ho. of L. 802, s. o. 14 MoaVs Eng. 177.
4 Armstrong v. Stokes, L. R. 7 Q. B. 598, s. c. 3 Moat's Eng. 217.
6 Merritt v. Briggs, 57 N.,Y. 651.
8 McDougall v. Hess, 68 N. Y. 620; Fuller v. Wilder, 61 Me. 625.
7 Wilson v. Sherlock, 36 Me. 295. Compare Black v. Richards, 2 Stew. <fe P.
(Ala.) 338.
8 Nash v. Towne, 5 "Wall. 703 ; Higgins v. Senior, 8 Mees. A W. 844 ; Babbett y.
Young, 51 Barb. 466. Except, perhaps, where he or his principal waa a public
officer, and known to be dealing as such. Walker v. Christian, 21 Gratt. (Va.) 291.
8 Mills v. Hunt, 20 Wend. 431 ; McComb v. Wright, 4 Johns. Ch. 659.
10 Chappell v. Dann, 21 Barb. 17.
II Curtis v. Aspinwall, 114 Mass. 187, s. o. 19 Am, R. 832.
"Id.
DEFENDANT'S CASE. 335
eome evidence to show an intent to take it for the purpose of re-
Bale on the buyer's account, or otherwise not to discharge the debt
for the price. 1 Even if a modification or rescission of an executory
contract may be proved by parol, notwithstanding the statute of
frauds, still, after a sale has been executed, the taking back is a
new contract within the meaning of the statute, and its terms
must be proved by the statute evidence. 2 Evidence of the insol-
vency of the buyer, and notice of it given by him, coupled with
the facts that after such insolvency no steps were taken indicat-
ing an intention to stand by the contract, and that time for sev-
eral installments passed without delivery or payment, will sustain
an inference that the seller had a right to conclude that the insol-
vent had abandoned the contract, and if he did so conclude, had
a right to abandon it himself. 3 Where the seller has been de-
frauded, lapse of time without rescinding is some evidence that
he has determined to affirm the contract ; and when the lapse of
time is great, it may be treated as sufficient evidence to show that
he has so determined. 4
A general agent to buy (though in a particular business only),
is presumed to have had power to rescind. 5 Otherwise, ol a
special agent.
55. ^Recoupment.'] The breach of a valid agreement between
the same parties, which might itself be the subject of a cross ac-
tion against the plaintiff, may always be given in evidence (under
proper pleading), either in mitigation of damages or in bar of an
action on the agreement of which it formed either the whole or
part of the consideration. If the stipulation on plaintiff's part
was a condition precedent to defendant's obligation, evidence of
its breach is generally admissible under a general denial; but
otherwise should be pleaded by defendant. 6
56. Defects in title, quantity or quality^ If delivery or ac-
ceptance is in issue on the pleadings, evidence that the thing ten-
dered did not correspond with the contract, or that plaintiff
could not give title, will be admissible, though not specially
pleaded ; but if acceptance is admitted, or proved, and a price
fixed by contract is relied on by plaintiff, evidence of deficiency
in quality is not admissible, unless set up in the answer. 7 If the
1 Sloan v. Van "Wyck, 4 Abb. Ct. App. Dec. 250, nffi'g 47 Barb. 634, and rev'g 36
Id. 335.
* Blanchard v. Trim, 38 N. Y. 228. Compare 9 Wall. 272, and p. 314 of this vol.
8 Morgan v. Bain, L. R. 10 C. P. 15, s. c. 11 Moak*s Eng. 220, and cases cited.
Compare Freeth v. Burr, L. R. C. P. 208, s. o. 9 Moak"s Eng. 393.
4 Clough v. London & North Western R. Co. L. R. 7 Exch. 26, 35, s. c. 1 Moak's
Eng. 148, 158.
* NELSON. Ch. J. Anderson v. Coonley, 21 "Wend. 279; and see Dillon v. Ander
son, 43 N. Y. 231.
* The lending cases areReab v. McAllister, 8 Wend. 110; Batterman v. Pierce, 3
Hill. 171; Harrington v. Stratton, 22 Pick. 510. Compare Seymour v. Davis, 2
Sandf. 239.
1 McCormick v. Sarson, 1 Sweeney, 161, B. c. 38 How. Pr. 190; Fetberly v.
Burke, 64 N. Y. 646.
336 ACTIONS FOR NOT ACCEPTING GOODS, Ac.
plaintiff sues on a quantum memit, evidence of deficiency in
quality is admissible, if alleged, even though acceptance under a
contract fixing a price be proved. 1 If the defendant sets up war-
ranty, or false representation, 2 either directly, or by denying that
there was a purchase except upon terms specified in the answer,*
the burden is on him to prove the defense.
The mode of proving defects is stated below.
57. Deceit.'] -The rules regulating the mode of proof of false
representations are substantially the same as in an action for
damages. 4
58. Inconsistent remedies.'] The pendency of replevin by the
same plaintiff to recover the goods, goes in bar of an action sub-
sequently brought for the price. 5 The pendency of a mechanic's
lien foreclosure, for the same goods, against the same defendant,
is also a defense. 6
59. Wager contract.'] Unless the terms of the contract show
the contrary, it is presumed that delivery was intended. 7 The
burden is on defendant 8 to show that neitner party 9 intended de-
livery. What was said at the time of contracting is competent ; 10
and a party may be asked what was his intent. 11 The buyer's
lack of means to pay, 12 if known to the seller, 18 or the fact that
both were endeavoring to make " a corner " 14 is relevant : but the
seller's lack of the property, though known to the buyer, 15 or
that one party made wager contracts with other persons, 16 is not.
HI. ACTION AGAINST BUYER, FOR DAMAGES FOR NOT ACCEPTING.
60. General principles.'] Plaintiff may be put to proof of
the contract, the performance of all conditions precedent on his
part, the refusal to receive, and the amount of damage. 17 The
rules already stated as to the mode of proof of these facts are in
general applicable. Indeed, under a complaint alleging sale and
delivery, plaintiff may recover on proof of sale and wrongful
1 Moffett v. Sackett, 1.8 N. Y. 622.
* Dorr v. Fisher, 1 Cush. 271.
3 Goodwin v. Hirsch, 37 Super. Ct. (J. & S ) 503.
4 See paragraph 68, Ac., and the Chapter on ACTIONS FOR DECEIT.
5 Morris v. Rexford, 18 N. Y. 552. Compare Kinney v. Kiernan, 49 N. Y. 164.
8 Ogden v. Bodle, 2 Duer, 611.
' Story v. Salomon, 71 N. Y. 420, nffi'g 6 Daly, 638.
8 Bigelow v. Benedict, 70 N. Y. 206, affi'g 9 Hun, 429; Clarke v. Foss, 7 Biss.540.
Gregory v. Wendell, 40 Mich. 432, s. c. 9 Cent. L. J. 76 ; Warren v. Hewitt, 46
Geo. 601 ; Clark v. Fosa (above) ; Pizley v. Boynton, 79 III 851 ; Ramsey v. Berry,
65 Me. 570.
10 Caisard v. Hinman, 6 Bosw. 14.
11 Yerkes v. Salomon, 11 Hun, 471.
12 Kilpatrickv. Bonsall, 72 Penn. St. 155.
13 In re Green, 7 Bill. 338.
" Exp. Young, 6 Bias. 53.
15 Rumsey v. Berry (above).
18 Gregory v. Wendell (above).
" Rose. N. P. 495.
ACTIONS FOR NON-DELIVERY. 337
refusal to accept, if defendant is not misled to his prejudice, for
the variance is amendable. 1
61. Readiness to perform.'] Where delivery and payment
were to be concurrent acts, an averment that at the time and
place fixed plaintiff was ready and willing to deliver, &c., is
enough ; 2 and under this allegation, if put in issue, plaintiff must
show that he had the article ready for delivery, and that it cor-
responded with that contracted for, 8 and either that he offered to
deliver, or that defendant dispensed with delivery, or made it an
idle and useless form to attempt to deliver. The averment in-
volves the ability of the plaintiff to deliver. 4 Evidence that a
sufficient quantity of goods were at the place fixed for delivery,
without proving that they were plaintiff's property, 5 or that he had
a right to sell them, 6 is not enough to show performance. Excuse
for oreach is not admissible under an allegation of performance.
But if the defendant notified his intention to refuse, and forbade
the plaintiff to deliver goods ordered to be made, then plaintiff need
not proceed to complete the contract on his part, and may show
this under an allegation of refusal to accept, although the goods
were not ready for delivery, and could not be delivered ; for the
plaintiff is thereby discharged from proceeding further ; and such
a notice to the plaintiff will support an allegation that the de-
fendant prevented and discharged the plaintiff from supply-
ing the goods and executing the contract. 7 To support an alle-
gation of plaintiffs readiness to manufacture articles ordered by
defendant, it is enough, in the first instance, to show that de-
fendant had countermanded the manufacture while in progress
and after delivery of some, and had notified his refusal to accept
any more. 8
IY. ACTION AGAINST SELLER FOE NON-DELIVERY.
02. General Principles.'] The general principles which apply
to the various facts to be proved are already stated. It only remains
to notice some rules specially applicable in this class of actions.
63. Orders, and Acceptance.] Evidence that defendant, in
acknowledging the receipt of an order, added qualifications as to
undertaking to fill it, rebuts the presumption of assent raised by
retaining the order, and throws on plaintiff the b.urden of show-
ing that he communicated to defendant his assent to any new
1 See paragraph 1.
1 Rose. N. P. 510.
8 Boyd v. Lett, 1 C. B. 222.
4 Id. citing Lawrence v. Knowles, 6 N. C. 899; De Medina v. Norman, 9 M. <fe W
820 ; Spotswood v. Barrow, 1 Exch. 804.
Cobb v. Williams, 7 Johns. 24.
See Nixon v. Nixon, 21 Ohio St. 114.
7 Rose. N. P. 611, citing Cortv. Ambergate Ry. Co. 17 Q. B. 127, 144.
Id. citing also Baker v. Farminger, L. J. 28 Ex. 130. See also paragraph 30.
22
338 ACTIONS FOR NON-DELIVERY, Ao.
conditions thus made. 1 The holder, by assignment, of an order
on defendant, may recover, on parol evidence, that defendant had
verbally accepted the order when in the hands of the payee, and
that the latter's assignee had stipulated to and had duly performed
the conditions of it. 2 A variance in the consideration is not ma-
terial, unless shown to have misled defendant to his prejudice. 8
64. Readiness to perform^ Under an agreement to deliver
at a particular place, for payment on delivery, the buyer must al-
lege* and prove 5 readindss and willingness to receive and pay at
that place, or show that so doing was waived or prevented by
some act of the seller ; 6 and this is so whether the defendant was
at the place ready to deliver or not. 7 But he need not prove ten-
der and demand. Any satisfactory evidence that plaintiff was
able and willing to fulnll the terms of the contract, on his part, is
sufficient. 9 If the seller refused to deliver, and put it out of his
power to do so, it is unnecessary for the buyer to offer to pay the
unpaid price before suing ; 10 and if having put it out of his own
power ever to perform, he disavows and repudiates the contract,
this, although done before the time for performance, is a breach
without further demand. 11
Under an allegation of defendant's non-delivery, evidence of
his tender properly refused by plaintiff, is admissible, unless de-
fendant shows he was actually misled. 12
65. Object of buying.'] Plaintiff may prove that defendants
were informed that the object of the order was to enable plaintiff
to fill a contract made by him with others, and that defendants
1 Briggs v. Sizer, 30 N. Y. 647. *
* Bailey v. Johnson, 9 Cow. 115. But a written acceptance of a written order for
mere delivery of goods is not a sale, but a promise to deliver on request; and so to
be declared on. Bur rail v. Jacot, 1 Barb. 165.
3 See, for instance, Meriden Britannia Co. v. Zingsen, 4 Robt. 312, affi'd in 48 N. Y.
247. At common law, evidence of a sale, and payment by a sight-draft, duly paid,
will support a declaration of a sale for so much " in hand paid." Nash v. Towne, 5
Wall. 690.
4 Clark v. Dales, 20 Barb. 42.
5 Topping v. Root, 5 Cow. 404; Vail v. Rice, 5 N. Y. 155; Bronson v. Wiman, 8
Id. 182.
8 Cornwell v. Haight, 8 Barb. 327. In strictness, such waiver or prevention ia
not appropriate evidence under an allegation of readiness. Crandall v. Clark, 7 Barb.
169, 171 ; Cherrey v. Newby, 11 Tex. 457. But, properly, it is a question of vari-
ance, to be disregarded or amended, unless defendant is misled.
1 Porter v. Rose, 12 Johns. 209.
8 Coonley v. Anderson, 1 Hill, 519; Crosby v. Watkins, 12 Cal. 85. Compare
Dunham v. Pettee, 8 N. Y. (4 Seld.) 508. According to the English authorities, a
demand of the goods is sufficient evidence that the plaintiff was ready and willing to
pay. Wilks v. Atkinson, 1 Marsh. 412; Levy v. Herbert, Lord, 7 Taunt. 318; and
this, though the demand may be by the plaintiff's servant ; Squier v. Hunt, 3 Price,
68, cited in Rose. N. P. 517.
9 Vail v. Rice, 5 N. Y. 155.
10 Hawley v. Keeler, 63 N. Y. 114, affi'g 62 Barb. 231.
11 Sears v. Conover, 4 Abb. Ct App. Dec. 179 ; contra, Daniels v. Newton, 114
Maes. 530, B. c. 19 Am. R. 384.
13 Seaman v. Low, 5 Barb. 337.
BREACH OF WARRANTY. 339
contracted in reference to that fact, as evidence affecting the rule
of damages. 1
66. Defendant's Case Only an Agent.'] If the nominal
seller, in contracting, did not disclose his principal, he may, if he
disclosed the fact that he was acting as agent, exonerate nimself
from liability by showing a payment over to his principal, or
other special circumstances rendering it inequitable, as between
the parties, to hold him responsible. 2
67. Intermediate destruction of thing sold.'] Under an execu-
tory contract of sale, the presumption is, in the absence of evidence
of a different intent, that the parties contemplated the continued
existence of the thing sold, until the time for delivery, so that if
it is destroyed by accident before delivery, without the seller's
fault, he is not liable for failure to fulfill. 3
V. ACTIONS AND DEFENSES ARISING ON BREACH OF WARRANTY.
68. Grounds of the action.'] For a false warranty the action
may be either on contract or for deceit. 4 If warranty, as distin-
guished from a mere representation, 5 is alleged and proved,
acienter need not be averred, nor proved if averred ; 6 but
plaintiff may recover on proof of the false warranty, express or
implied, if alleged as his cause of action, although allegations of
fraud are unproved. 7 If the complaint is so framed as to make
fraud the cause of action, a warranty being alleged as the means
of the fraud, the warranty should be proved ; 8 and plaintiff can-
not abandon the charge of fraud and recover on mere false war-
ranty.' A recovery for fraud alone, however, may be sustained. 10
If the complaint sets forth only a warranty, recovery for fraud
alone is not allowable. 11
69. Pleading.'] "Warranty, if relied on, must be alleged, 13
even though it be implied by law ; 13 but, under an allegation not
stating whether the warranty was express or implied, proof of
I Messraore v. N. Y. Shot & Lead Co. 40 N. Y. 422.
* Morrison v. Currie, 4 Duer, 79 ; and cases cited.
3 Dexter v. Norton, 47 N. Y. 62, affi'g 65 Barb. 272. Compare 52 Id. 96.
4 Schuchardt v. Aliens, 1 Wall. 368, and cases cited.
* Quintard v. Newton, 6 Robt. 72.
4 Schuchardt v. Aliens (above); Case v. Boughton, 11 Wend. 106; Holman v.
Dord, 12 Barb. 336.
' Ledwich v. McKim, 53 N. Y. 307, affi'g 35 Super. Ct. (J. & S.) 304 ; Ross v.
Terry, 63 N. Y. 613. Contra, now by N. Y. Code Civ. Pro. 8 549.
8 Snell v. Moses, 1 Johns. 96 ; and see Perry v. Aaron, Id. 129.
* Rosa v. Mather, 51 N. Y. 108, rev'g 47 Barb. 582.
10 Indianapolis, <fcc. R. R. Co. v. Tyng, 63 N. Y. 653, affi'g 2 Hun, 311.
II Fisher v. Fredenhall, 21 Barb. 82. For other illustrations, and the reasons of
these distinctions, see pp. 272, 273, and 285 of this voL
" Diefendorff v. Gage, 7 Barb. 18.
13 Prentice v. Dike, 6 Duer, 220.
340 ACTIONS AND DEFENSES ON
either is admissible, and sufficient. 1 Evidence of a warranty is
not to be excluded because the language proved does not strictly
follow the allegation ; 2 and if there be a substantial variance, an
amendment should be allowed, unless the adverse party has been
misled to his prejudice.
70. Warranty of things in action.'] On a transfer of nego-
tiable paper, or things in action, for a valuable consideration,
there is, unless circumstances raise a contrary presumption, an
implied warranty, not only of title, but of genuineness, and that
there is no defense arising out of the seller's own act, 3 and that
he has no knowledge of any fact which makes it worthless, such
as usury, 4 payment, insolvency of the maker, 6 &c. There is, how-
ever, no implied warranty as to legal validity, beyond this. 6
71. Warranty of titled. On a sale of chattels in the seller's
possession, a warranty of title is implied, 7 unless the circum-
stances are such as to give rise to a contrary presumption. 8
Where the seller is not in possession of the chattel at the time of
sale, a warranty of title is not implied. It should only be implied
where good faith requires it. 9
72. Express warranty I\ To constitute an express warranty,
there must be some expression by the seller amounting to an un-
equivocal affirmation, relied on by the buyer, that the goods are
of some certain quality. It is not enough to prove mere expres-
sions of opinion. 10 But it is not necessary that the word " war-
rant " should be used. Any affirmation amounting to it is suffi-
cient. 11 No particular phraseology is necessary. Any distinct as-
sertion of the quality of the thing, made by the seller as an in-
1 Hoe v. Sanborn, 21 N. Y. 552; Hannum v. Richardson, 48 Vt. 508, s. o.*21
Am. R. 162.
2 Oneida Manuf. Soc. v. Lawrence, 4 Cow. 440; Hastings v. Lovering, 2 Pick. 214.
Contra, Summers v. Vaughan, 35 Ind. 323; s. c. 9 Am. R. 741.
3 Delaware Bank v. Jarvis, 20 N. Y. 226.
4 Fake v. Smith, 7 Abb. Pr. N. S. 106.
5 Brown v. Montgomery, 20 N. Y. 287.
8 The authorities are not agreed. Compare Ross v. Terry, 63 N. Y. 615; and
Otis v. Cullum, 92 IT. S. (2 Otto), 447. According to the latter case, the only lia,
bility, ex contractu, is for title and genuineness; and any other liability is in tort for
bad faith. On an assignment of a judgment for value, without disclosing payments,
there is an implied warranty that it is unpaid. Furniss v. Ferguson, 15 N. Y. 437 ;
84 Id. 485 ; but not that it will not be reversed. Glass v. Reed, 2 Dana (Ky.) 168.
7 Calye's Case, 1 Smith's L. Cas. 241, 342 ; Burt v. Dewey, 40 N. Y. 283, rev'g 31
Barb. 540; Hoe v. Sanborn, 21 N. Y. 552.
8 As where the seller merely sells such right as he has, without either having or
undertaking to give actual or constructive possession, Id. ; or is a pawnbroker, sell-
ing unredeemed pledges. Morley v. Attenborough, 3 Exch. 500.
9 McCoy v. Artcher, 3 Barb. 323 ; Edick v. Crim, 10 Id. 445 ; Hopkins v. Grin-
nell, 28 Barb. 533 ; Scranton v. Clark, 39 N. Y. 220, affi'g 39 Barb. 273.
10 Swett v. Colgate, 20 Johns. 196; 1825, Oneida Manuf. Soc. v. Lawrence, 4 Cow.
440.
11 Whitney v. Sutton, 10 Wend. 412; 1835, Cook v. Mosely, 13 Id. 277; Wilbur
v. Cartwright, 44 Barb. 536 ; Wells v. Selwood, 61 Id. 238.
BREACH OF WARRANTY. 341
ducement to purchase, and relied on by the buyer, may be ground
for finding a warranty. 1 Evasive or equivocal language may be
left to the jury, to determine whether it was intended to be under-
stood as a warranty or affirmative representation. 2 Any positive
affirmation, understood and relied on by the buyer, is a warranty,
or, at least, evidence to go to the jury. 3 The description of the
goods, in a bought and sold note, advertisement, bill of parcels, in-
voice, or in an oral assurance to the buyer, is evidence of a war-
ranty. 4
If the words used were such as might have been understood-
and intended by tfye parties as a warranty, the question whether
they actually were, is a question of fact for the jury. 5 If the
contract be in words clearly constituting a warranty, the seller
cannot avoid it by evidence that he did not intend to be under-
stood as intending what his language declares. 6
Where the sale was oral, evidence of everything that took
place between the parties, upon the subject, before and at its final
completion, is competent. 7 If the warranty relied on was made
after the seller had completed the sale, so that the consideration
already given had been exhausted by a transfer without warranty,
a new consideration must be proved. 8
Upon a sale with express warranty, whether the sale be exe-
cuted or executory, the buyer is not bound to rescind and return,
on discovering a breach, 9 but in such case clearer proof of breach
is required than if he did return the thing. 10 In respect to de-
fects that were not open and visible, the buyer, with express war-
ranty, is not bound to prove that he applied tests before consum-
ing it in use. 11
73. Agent's authority to warrant.'] Evidence of authority
conferred on an agent, general or special, 12 or a broker, 13 to sell,
(restrictions not appearing), raises a legal presumption of au-
thority to warrant. Otherwise of a mere servant. 14 But the pre-
1 Chapman v. Murch, 19 Johns. 290; Gallagher v. Waring, 9 Wend. 20.
1 See, for instance. Cook v. Mosely, 13 Wend. 277 ; Burge v. Stroberg, 42 Geo. 88.
3 Hawkins v. Pemberton, 61 N. Y. 198, rev'g 6 Robt. 42, and modifying earlier
cases.
4 Id. ; Wolcott v. Mount, 9 Vroom, N. J. 496, s. c. 20 Am. R. 425, affi'g 13 Am. R.
4^8 ; Dounce v. Dow, 64 N. Y. 16, rev'g 6 Supra. Ct. (T. & C.) 653. So of an order
for a specified kind of goods, followed by delivery of a thing as such. White T.
Miller, 7 Hun, 427.
5 Duffee v. Mason, 8 Cow. 25; Whitney v. Sutton, 10 Wend. 412; Blakeman v.
McKay, 1 Hilt. 266; Hawkins v. Pemberton, 51 N. Y. 198, rev'g 6 Robt. 42.
Hawkins v. Pemberfcon, 51 N. Y. 198. rev'g 6 Robt. 42.
* Pierson v. Hoag, 47 Barb. 243 ; Cunningham v. Parks, 97 Mass. 172.
8 Summers v. Vaughan, 85 Ind. 323, s. c. 9 Am. R. 741.
9 Day v. Pool, 52 N. Y. 416, affi'g 63 Barb. 506; Ross v. Terry, 63 N. Y. 613.
10 Day v. Pool (nbove).
11 Dounce v. Dow, 67 N. Y. 16, rev'g 6 Supra. Ct (T. A C.) 653', Gaatier T.
Douglass M'fg Co. 13 II un, 614.
l * Schuchardt v. Aliens, 1 Wall. 369, and cases cited.
18 Nelson v. Cowing, 6 Hill, 336.
14 Woodin v. Burfo'rd, 2 Cr. <fc M. 891.
34:2 ACTIONS AND DEFENSES ON
i
sumed authority is not to be stretched to nnusual warranties. 1
Evidence of the usage of the trade is admissible as one means of
defining the scope of the apparent authority of the agent or
broker. 2 If there was neither express nor implied authority, it is
not enough to show that the principal received and retained the
price, without showing that he knew of the unauthorized war-
ranty. 8
74. Implied Warranty on an Executed Sale.~] An executed
sale of chattels that is, a sale executed when made does not of
itself imply any warranty of quality. To establish such an im-
plied warranty there must be evidence of circumstances not es-
sential to sale,, which afford ground for presuming a warranty to
have been within the intention of the parties. 4 It cannot be im-
ported into the contract merely by evidence of commercial usage
to recognize an implied warranty. 5 Evidence that the buyer's
purpose was communicated, does not alone raise an implied war-
ranty that the thing was fit for the purpose, 6 for it is enough if
the known, defined, described thing bought, was delivered. 7
Neither the silence of the seller at the time of sale, 8 nor the fact
that a sound price was paid, 9 will alone imply a warranty. But if
the article was contracted to be furnished for a particular use, there
is an implied warranty that it should be suited for that use. 10
The exposure or offer of goods for sale by a manufacturer as
being of his build or workmanship (whether truly so or not), im-
plies a warranty or representation that they are made properly,
and that the fault, if any, is a latent one, arising from causes
which he could not control. 11 Hence even on an executed sale by
one assuming to be the maker, he is liable upon an implied war-
ranty that the article is free from any defect produced by the
manufacturing process itself. 12 Where the defect in the article
arises from a defect in the materials employed, the warranty is
1 Smith v. Tracy, 36 N. Y. 79 ; 2 Greenl. Ev. 13 ed. 50 n.
s 2 Whart. Ev. 967. Contra, Dodd v. Farlow, 11 Allen, 421.
3 Smith v. Tracy, 36 N. Y. 79. Compare Brower v. Lewis, 19 Barb. 674 ; Sweet
V. Bradley, 24 Id. 549.
4 See Redhead v. Midland Rw. Co. L. R. 4 Q. B. 392; Bywater v. Richardson, 1
Ad. & E. 508.
6 Barnard v. Kellogg, 10 Wall. 383.
' Crogate's Case, 1 !Sm. L. Cas. 247, 250 ; Jones v. Just, L. R. 3 Q. B. 197 ; Bart-
lett v. Hoppock, 34 N. Y. 118.
1 See Dounce v. Dow, 64 N. Y. 416.
8 Calye's Case, 1 Sm. L. Cas. 241, 243.
9 Wright v. Hart, 18 Wend. 449, affi'g 17 Id. 267.
10 Brown v. Sales, 27 Vt. 227, 232; Howard v. Hoey, 23 Wend. 850; Gallagher
v. Waring, 9 Id. 20. Where the allegation is that plaintiffs were accustomed to use
the best, <fcc., and defendants falsely represented and sold, <fcc., knowing it was
bought for use in their business, plaintiff may prove what kind he was accustomed to
use ; and for this purpose may ask his broker what kind he had been in the habit of
buying. Schuchardt v. Aliens, 1 Wall. 368.
11 Chandelor v. Lopus, 1 Sm. L. Cas. 299, 316.
12 Hoe v. Sanborn, 21 N. Y. 552. Compare Beck v. Sheldon, 48 N. Y. 865 ; Bart-
lett v. Hoppock, 34. N. Y. 118.
BREACH OF WARRANTY. 343
implied, for the same reason, only where he is shown, or may be
presumed to have known, the defect. 1
In the case of provisions, for human food, there is an implied
warranty that they are sound and wholesome, if they are sold for
domestic consumption, 2 but not if they are sold as merchandise,
and not for immediate domestic use.
Where there is no other liability as to quality, none is implied
from a warranty of quantity ; but the quantity is made up by un-
sound and sound together. 3
In aid of evidence of an implied warranty, the buyer may tes-
tify to the fact that he purchased relying on the existence of the
supposed quality. 4
Where the warranty is an implied one, or the breach is a con-
dition of the sale, as distinguished from a warranty, retaining the
article after opportunity to ascertain the defect, raises a presump-
tion of acquiescence in the quality, 5 which is usually conclusive,
unless induced by fraud. 6 If fraudulent acts inducing acceptance
are alleged, and proved, it is no objection that other such acts also
alleged remain unproved. 7
75. on sale partly or wholly Executory^ An executory
contract, unless the circumstances indicate a different intent, im-
plies a warranty that the thing delivered shall be of such quality
as to be merchantable or salable that is, at least of medium qual-
ity or goodness. 8
7G. Sale by Sample.'] The mere exhibition of a sample at the
time of sale is not evidence of a sale by sample ; it is evidence
only of a representation that the sample has been taken from the
bulk in the usual way. 9 If such a sale was not expressly agreed to
be by sample, it is a question of intent whether it was a sale by
sample. 10
A sale, though evidenced by a bill of parcels, 11 or a bought and
sold note, 12 not referring to a sample, may be shown by parol to
have been by sample, especially if the designation in the writing
is not a sufficient description ; 1S and evidence of the usage of the
1 Hoe y. Sanborn, 21 N. Y. 652. Compare Beck v. Sheldon, 48 N. Y. 365; Bart-
lett v. Hoppock, 34 N. Y. 118.
9 Van Bracklin v. Fonda, 12 Johns. 468; Jones v. Murray, 3 Monr. (Ky.) 83;
Moses v. Mead, 5 Den. 617 ; and see Divine v. McCormick, 60 Barb. 116.
3 Jones v. Murray, 3 Monr. (Ky.) 83.
Ross v. Terry, 63 N. Y. 615.
Reed v. Randall, 29 N. Y. 358.
Dutchess Co. v. Harding, 49 N. Y. 324.
Id.
Howard v. Hoey, 23 Wend. 350; Renaud v. Peck, 2 Hilt. 137 ; Lawlon v. Kiel,
61 Barb. 65b; Hamilton v. Ganyard, 2 Abb. Ct. App. Dec. 314, affi'g 34 Barb. 204.
Compare Chandelor v. Lopus, l'gm. L. Cas. 299, 318 [251.]
9 Waring v. Mason, 18 Wond. 425, 434~; Hargous v. Stone, 5 N. Y. 85, 90.
10 Waring v. Mason (above).
11 Bradford v. Manly, 13 Mass. 139.
" Boorman v. Jenkins, 12 Wend. 666 ; 18 Id. 435; Koop v. Handy, 41 Barb. 454.
13 Pike v. Fay, 101 Muss. 134. Otherwise under special contract. Thomas v.
Hunt, 4 Abb. Ct. App. Dec. 416.
344 ACTIONS AND DEFENSES ON
trade to make all such sales by sample, is competent for this pur-
pose. 1 But if the circumstances of the sale are such that there
was no express warranty, and the law does not imply one, a war-
ranty cannot be established (even to the extent of conformity to
samples exhibited), by mere proof of a usage of the trade to con-
tract, with such warranty, in the manner proven. 2 Whether the
sale was by sample or not, is a question of fact, on which evidence
of usage is competent ; but the liability resulting is a question of
law, on which usage can have no weight. But no usage can be
sustained in opposition to the established principles of law, so as
make the seller of manufactured goods, by sample, liable to the
purchaser for damages occasioned oy latent defects in the goods
sold, not discoverable either in them or the sample by ordinary
care. 8 Sale by sample, and warranty, may both be proved, and
one does not necessarily merge or supersede the other. 4 Sale by
sample is only one kind of warranty, and does not preclude others.
To have the effect of proving sale by sample, the evidence
must show that the parties mutually understood that they were
dealing with the sample upon an agreement on the part of the
seller that the bulk of the commodity corresponded with the
sample. 5 If the sale is by agent, in the ordinary course of trade,
special authority to use a sample, or otherwise warrant, need not
be proved, even though the agency be special. 6
Y7. Presumption of knowledge.] The law presumes that
every dealer in articles brought to market is acquainted with all
the circumstances, such as tendencies to deterioration, usually 7 at-
tendant on cargoes composed of those articles ; but a mere dealer
is not presumed to know the precise quality of goods of a par-
ticular brand. 8
78. Parol evidence of warranty on written saleJ] If the par-
ties have reduced their contract to writing, the instrument can-
not be varied by oral evidence of a warranty 9 or representation 10
not expressed or implied in the writing, 11 unless fraud be shown,
1 Syers v. Jonas, 2 Exch. 111.
s Beirne v. Dord. 5 N. Y. 102.
3 Randall v. Smith, 63 Me, 105, s. c. 18 Am. R. 200, and cases cited; s. p. Bar-
nard v. Kellogg, 10 Wall. K83.
4 Murray v. S-'mith, 4 Daly, 273 ; and see Pands v. Taylor, 6 Johns. 410; but a
written agreement of sale mny exclude oral evidence of warranty.
6 Beirne v. Dord, 5 F. Y. 96.
* Andrews v. Kneeland, 6 Cow. 354 ; see also Boonnan v. Jenkins, 12 Wend. 672.
7 Hargous v. Stone, 5 N. Y. 94.
8 Dounce v. Dow, 57 N. Y. 16, rev'g 6 Supm. Ct. (T. & C.)653.
* Dean v. Mason, 4 Conn. 428.
10 Rice v. Forsyth, 41 Md. 389.
11 Pickering T. Dowson. 4 Taunt. 779 ; Benj. on S. 621. But compare para-
graph 9. So held of a bill of sale, Mumford v. McPherson, 1 Johns. 414; Pender
V. Forbes, 1 Dev. <fe B. 250; Sparks v. Messick, 65 No. Car. 440: of an assignment
of a patent right, Van Ostrand v. Reed, 1 Wend. 424 ; Rose v. Hurley, 39 Ind. 77:
<tf a letter, "Whitmore v. South Boston Iron Co. 2 Allen, 62, s. c. 1 Am. L. Reg. N.
BREACH OF WARRANTY. 345
nor can the warranty be established by extrinsic written evi-
dence of a prior representation, such as the letters of negotia-
tion, 1 or the advertisement of sale. 2 The writing may be deemed
to contain the whole contract. 3 But this rule is greatly limited,
where the statute of frauds does not require a writing, 4 and the
instrument is one which does not purport to embody all the
terms of the contract. 5 A bill of parcels, or sold note, given ap-
parently as a receipt for the price, 6 or an invoice made out by the
seller after an oral warranty, 7 is not a contract within the rule,
and does not preclude evidence of oral warranty. And if there
be a written contract, the fact does not preclude evidence of a
warranty made by parol, subsequent to the execution of the writ-
ten contract. 8
An express warranty does not preclude an implied warranty
to the same effect. 9 And an express warranty may be helped out
or enlarged by a warranty implied from knowledge of the pur-
pose for which the thing was ordered. 10
79. Parol evidence to explain warranty.'] Upon principles
already stated, ambiguous expressions in the warranty may be
explained by parol. 11
80. Variances in the contract, and breach.~] Variances be-
tween the allegation and proof, in respect to other parts of the
contract, the title to the goods, 12 the consideration of the sale, 13
S. 403 ; and of the printed conditions of sale subscribed by the auctioneer, Powell v.
Edmunds, 12 East, 6. Otherwise of unsigned conditions. Eden v. Blake, 13 Mt-es.
& W. 614. Where the sale was not in writing, a warranty may be proved, though
made during negotiations, some days before the sale. \Vilmotv. Hurd, 11 Wend.
684.
1 Randall v. Rhodes, 1 Curt. C. Ct. 90.
s Mumford v. McPherson (above).
3 Van Ostrand v. Reed, 1 Wend. 427.
4 ISee 1 Pars, on Contr. 547.
6 Thus where the writing consists of a written undertaking to ship, with an ac-
knowledgment of previous receipt of payment, parol evidence is admissible to show
what the terms of contract of sale were, and that the goods were those actually or-
dered. Hogins v. Plympton, 11 Pick. 97, SHAW, Ch. J.
8 filkins v. Whyland, 24 N. Y. 338 ; 24 barb. 379 ; Allen v. Pink, 4 Mees. & W.
14<X Centra, where the statute of frauds required the bill. Lamb v. Crafts, 12
Mete. 353.
I Foot v. Bentley, 44 N. Y. 166.
8 Bresvster v. Countryman, 12 Wend. 446..
" Ross v. Terry, 63 N. Y. 615. Contra, Whitmore v. South Boston Iron Co. 2
Allen, 52, 60, s. o.'l Am. L. Reg. N. S. 403. Compare Boothby v. Scales, 27 Wis.
626.
10 See Parks v. Morris Tool Co. 54 N. Y. 586, affi'g 4 Lnns. 103, 8. c. 60 Barb. 140.
II Paragraphs 9, 10. Thus on a warranty that a machine could do certain work
"with a good team," parol evidence of the declarations of the party is admissible, to
B'IOW whether u two hor.-e or four horse team was meant. Sanson v . Madigan, 15
Vt. 144. And see Pike v. Fuy, 101 Mass. 134. Otherwise of evidence contradicting
the language. Yates v. P.ym, 6 Taunt. 446.
13 StarrV. Anderson, 19 Conn. 858.
18 Smith v. Battams, L. J. 26 Exch. 232 ; Turner v. Huggins, 14 Ark. 21. The
fact that the money was paid by plaintiffs agent who had not been reimbursed, is
not material. Indianapolis, Peru <fc Chicago Railw. Co. v. Tyng, 63 N. Y. 653, affi'g
2 Hun, 811, a o. 4 Suprn. Ct. (T. & C.) 524.
346 ACTIONS AND DEFENSES ON
and the like, are of secondary importance in proving the war-
ranty, and are indulgently treated.
Under the allegation of warranty and breach, evidence of de-
fendant's subsequent promise to cure the defect is admissible,
and he may be held liable on that promise ; 1 but mere proof of a
subsequent agreement to rescind the original contract and return
the money, 2 is not sufficient, at least without amendment.
81. Breach."] To sustain an action upon a warranty, it is not
necessary to prove that all the representations made by defendant
were false, or actionable. It is enough to prove that any were
so. 3 And it is not necessary to prove that the seller knew of the
defect. 4 The question whether the article corresponds with the
warranty, is usually one for the jury. 3 If the qualities of the
article be proved by the testimony of a witness to whom it has
been submitted for inspection, there must be direct evidence that
the thing of which the witness speaks was the same as that deliv-
ered or offered. 6 If fraud is alleged, evidence that other goods
were fraudulently sold by the seller to other persons, is relevant
to the question of scienter within the limits marked by the rules
applicable in actions for deceit. So if the seller has adduced
evidence that he never made or sold inferior goods to any one,
evidence of sales, etc., to third persons is competent in rebuttal. 7
And in other cases, on a conflict of evidence as to quality, evi-
dence of the bad quality of other things of the same production
and condition of keeping, may be relevant as raising a presump-
tion that the thing in question, parcel of the same batch or crop,
had the like alleged detect. 8 Where the article is contracted for,
to serve a specified use, evidence is admissible of the difference
in the results produced in such use, by the sample or model or-
dered, and the imitation, as corroborative 01 their inherent differ-
ence. 9 If the parties agreed on submitting tie question of con-
formity to the warranty to the arbitrament of a third person, 10 or
to a specific test, 11 the decision so had, is conclusive, 1 " unless fraud
or bad faith is shown. 13 Where the thing sold consists of a large
quantity of merchandise, it is not necessary in the first instance
1 Dennis v. Coman, 61 N. Y. 642.
3 Dickinson v. Lane, 107 Mass. 548.
* Sweet v. Bradley, 24 Barb. 549.
4 Carley v. \Vilkins, 6 Barb. 557. Otherwise as to a mere representation, as dis-
tingtvshed from a warranty. Id. Compare Edick v. Crim, 10 Id. 445.
5 Even if the thing be produced in court. Morton v. Fairbanks, 11 Pick. 868.
* Perry v. Smith, 22 Vt, 301.
7 Durst v Burton, 2 Lans. 137, affi'd in 47 N. Y. 167.
8 Buchanan v. Collins, 42 Ala. 419.
Tilton v Miller A Co. f>6 Penn. St 388, s. c. 5 Am. R. 373.
10 McParlin v. Boynton, 8 Hun, 449.
11 Sharpe v. Great Western Hw. 9 Mees <fe W. 6, 8. c. 2 Am. Rw. Cas. 722.
14 See for the cases ou the general question, Schencke v. Rowell, 3 Abb. New Cas.
42.
18 See Bowery Nat. Bank v. Mayor, <fec. 63 N. Y. 363, rev*g 8 Hun, 63 a
BREACH OF WARRANTY. 347
to prove that every lot or package was examined. It is enough
that, of a quantity of similar parcels, a reasonable number were
opened and all found alike defective. 1 The general character or
quality of the thing beyond the limits of that called for by the
warranty, is not relevant. 2
In an action on a warranty of title to a chattel, breach is usu-
ally proved by an eviction by recovery ; 8 but the buyer may re-
cover on proof of a demand made on him by virtue of a para-
mount claim to which he voluntarily surrendered ; in such case,
however, the burden of proving the claim is on him. 4 If eviction
by recovery is relied on, the judgment against the buyer is
competent.* It has been held incumbent on the defendant to
plead and prove fraud or collusion in the judgment of eviction, if
he would avoid its effect, even where the plaintiff did not attempt
to prove notice of the suit to the warrantor ; 6 and if the War-
rantor had adequate notice of the action, and an opportunity to
litigate it, the "judgment recovered on the merits is conclusive
against him. 7 But mere knowledge of the action and a notice to
attend the trial are not enough. 8
82. Opinions of witnesses.'] "Where a qualified expert is ex-
amined as to the quality of the article, it is competent to ask the
general question as for instance, whether the machine in ques-
tion was made in a workmanlike manner. The facts may be
called for in detail, and in the case of any other than a skilled
witness, they should be called for ; 9 but in examining a skilled
witness, the party may, if he choose, rest upon the general state-
ment alone, and leave it to his adversary to call for more specific
objections to the work by cross-examination, and he has a right
to do so. 10
A liberal rule is applied in regard to opinions as evidence
as to diseases of animals, as it is rare that persons are found
who make the treatment of diseases of domestic animals a dis-
tinct profession, or attain to great skill or science therein. The
best skill and science that can be expected will be the evidence
of persons who have had much experience, and have been for
years made acquainted with such diseases and their treatment. 11
1 Renaud v. Peck, 2 Hilt, 137.
2 Thus under a warranty that a furnace should heatth.3 building to 70, the re-
quisite degree of heat for ordinary dwellings is. irrelevant. Bristol v. Tracy, 21 Barb.
236.
8 And it was formerly held that this was the only evidence, unless there waa
affirmative proof of guilty knowledge. Case v. Hall. 24 Weud. Iu3.
4 Bordwell v. Collie, 45 N. Y. 494, affi'g 1 Lans. 141.
5 Atkins v. Hoslcy, 3 Supra. Ct. (T. & C.) 322.
8 Blasdale v. Babcock, 1 Johns. 617; Barney v. Dewey, 13 Id. 224.
7 Fake v. Smith, 2 Abb. Ct. App. Dec. 76.
8 Somers v. Schmidt, 24 Wis. 417, 8. c. 1 Am. R. 191.
* Strevel T. Hempstead, 44 Barb. 618.
10 Curtis T. Gano, 26 N. Y 426; Beekman v. Johnson. 85 Ala. 252.
11 Slater v. Wilcox, 67 Barb. 604. Compare McDonald v. Christie, 42 Barb. 86;
348 ACTIONS AND DEFENSES ON
The qualification of the witness is a question of law for the
court ; but in proportion as his character as an expert is con-
tested, it is important that his testimony should be confined to
facts rather than opinion. In a case of breach of warranty, by
disease, a medical witness, who has stated that he has read various
standard authors on the subject of disease, and has given his own
opinion in respect to the character of the disease of which the
animal died, may be asked : " What is the best opinion, according
to the best medical authority ? " 1
83. Admissions and declarations.'] Evidence that the buyer
on being complained to that he had given a warranty, and that it
was broken, only denied the breach, is sufficient evidence to sus-
tain a finding that he gave the warranty. 2 Whether declarations
of an agent are competent depends on the test applicable in other
cases. An authority to receive payment for goods sold, does not
make the agent's declarations in regard to the condition of the
goods, evidence against his principal. 3 But where one is em-
ployed by the seller to remedy the alleged defect after delivery,
his declarations, made as part of the res gestce, while engaged in
the work, are competent. 4
84 Omission to return the article.~] If a warranty has been
proved, keeping the goods, delaying to give notice of the defect,
&c., may furnish a strong presumption against an alleged breach
of warranty ; but cannot bar the buyer from suing for, or recoup-
ing his damages for such breach, if proved. 5
85. Damages!} A breach having been proved there must be
some evidence- of difference in value between the article as fur-
nished and the article as agreed to be furnished. 6 A mere offer
to prove the value of the thing furnished, unconnected with evi-
dence of that of the thing agreed for, may be excluded. 7 The
witness cannot speak directly to the amount of damages recover-
able ; but, if the thing have a market value, a qualined witness
may give an opinion of its value, and of the difference between
its actual value, and what would have been its value had it corre-
sponded to defendant's representations. 8 If the thing or its
Joy v. Hopkins, 5 Den. 84; Willis v. Quimby, 11 Fost. (N. H.) 485. Contra, Graves
v. Moses, 13 Minn. 335 ; and see Spear v. Richardson, 34 N. H. 428.
1 Pierson v. Hoag, 47 Barb. 243.
2 Miller v. Lawton, 15 C. B. N. S. 834; Salmon v. Ward, 2 Carr. & P. 211.
3 Hyland v. Sherman, 2 E. D. Smith, 234.
4 Kimball Manuf. Co. v. Vroman, 85 Mich. 310.
8 Muller v. Eno, 14 N. Y. (4 Kern.) 597 ; Feilder v. Starkin, 1 H. Blackst. 17;
Coner v. Dempsey, 49 N. Y. 665 ; Suieltzer v. White, 92 U. S. (2 Otto), 390, 395.
But under executory contract, acceptance after opportunity to examine, waives ob-
jections to patent defects. Gay lord Manuf. Co. v. Allen, 53 N. Y. 515. Compare
Grirnoldby v. Wells, L. R. 10 C/P. 391, a. c. 12 Moak. Eng. R. 451, and cases cited.
Fales v. McKeon, 2 Hilt. 63.
7 Leonard v. Fowler, 44 N. Y. 296.
8 Rogers v. Ackerman, 22 Barb. 134; Nickley v. Thomas, Id. 652; Miller v.
Smith, 112 Mass. 470.
BREACH OF WARRANTY. 349
condition be such that it has no known or market value, the dam-
ages are necessarily special, and the items of actual loss should be
proved, and the whole left to the jury. 1 To Charge with conse-
quential damages there should be evidence either that the object
of the buyer was specially brought to the notice of t he seller, 8 or
that circumstances were known to the seller, from which the in-
tention ought in reason to be inferred, so that the object may be
taken to have been within the contemplation of both parties.'
In an action for breach of the warranty implied or expressed
in the assignment of a judgment, the prima facie value of the
judgment is the amount of money which the debtor in the judg-
ment appears liable to pay thereon. 4 The amount of the consid-
eration of the assignment is immaterial. 5 But evidence of the
less value of property which could have been taken on execution
at the time of the assignment, may be competent in nfitigation. 6
The expenses of attempting to enforce the judgment against one
who had been released, if pleaded, are recoverable. 7
86. Disproof of implied warranty.'] Proof of express and
unqualified 8 refusal to warrant, negatives the implied warranty
that otherwise might arise. 9 The implied warranty of title, and
the implied warranty of amount unpaid upon a security assigned,
rest upon the presumption of law that the vendor knows the
facts which he impliedly warrants ; and this is a conclusive pre-
sumption, and cannot be contradicted. 10
87. Buyer's knowledge of defect.] In an action on a written
warranty of soundness of a chattel, parol. evidence is admissible,
to show that the defects complained of were made known to the
plaintiff at the time of the sale. A warranty does not extend to
defects which are visible. 11 And when it is proved affirmatively,
that the purchaser knew of the defect at the time of the sale, he
cannot recover damages. 12 But an offer to show that he had
means of knowledge is not enough. 13
88. Sellers good faith.~\ A breach of warranty, as distin-
guished from a mere false representation having been proved,
evidence of facts showing that defendant made it under misin-
formation 14 and in good faith, is irrelevant.
1 Whitney v. Taylor, 54 Barb. 536.
s As in Messmore v. N. Y. Shot and Lead Co. 40 N. Y. 422.
3 Smith v. Green, L. R. 1 C. P. Div. 94, s. o. 16 Moak*s Eng. 443.
4 Furniss v. Ferguson, 34 N. Y. 485, affi'g 3 Robt. 269.
8 Sweet v. Bradley, 24 Barb, 549.
' Jansen v. Ball, 6 Cow. 628.
1 Westoh v. Chamberlain, 56 Barb. 415.
8 Wood v. Smith, 5 M. <fc Ry. 124.
9 So held as to genuineness of note. Bell v. Dagg, 60 N. Y. 528.
10 Furniss v. Ferguson, 34 N. Y. 485, affi'g 3 Robt. 269.
11 Schuyler v. Russ, 2 Cai. 202.
Ig Chandelor v. Lopus, 1 Smith's L. Cas. 299, 320, and cases cited.
13 Furniss v. Ferguson, 34 N. Y. 485, affi'g 3 Robt. 269.
14 Brisbane v. Parsons, 33 N. Y. 332.
350 ACTIONS AND DEFENSES ON CONTRACTS OF SALE.
89. Former adjudication^ Judgment in an action of deceit,
for a false statement as to quality, is a bar to an action of con-
tract on a false warranty of the same quality, and so of the con-
verse. 1 Judgment in an action for the price is also, if the buyer,
by his answer in that action or his course on the trial of it, ad-
mitted the validity of the seller's claim ; otherwise not. 2
1 2 Whart. Ev. 779, citing Ware v. Percival, 61 Me. 391 ; Norton v. Doherty,
8 Gray, 872. But partly contra, now by N. Y. Code Civ. Pro. 629.
8 Whart. Ev. 790, citing Davia v. Talcott, 12 N. Y. 184; Mondel v. Steel, 8
Mees. & W. 858 ; Davis v. Hedges, L. R. 6 Q. B. 687 ; Bascom v. Manning, 62 N. H.
132; Burnett v. Smith, 4 Gray, 50; Ihmseu v. Onnsby, 82 1'cnn. St. 198.
CHAPTEE xvrr.
ACTIONS FOR USE AND OCCUPATION OF REAL PROPERTY.
1. Grounds of the action. 5. Defendant's occupation.
2. The relation of landlord and tenant. 6. Measure of recovery.
3. Express contract. 7. Admissions and declarations.
4. Parties.
1. Grounds of the action.'] The gist of the action is that de-
fendant has had the use and occupatipn of plain tiff's real prop-
erty, by virtue of an agreement therefor, express or implied,
made between them, under which plaintiff is entitled to a reason-
able compensation.
2. The relation of landlord and tenant.'] There must be proof
that the conventional relation of landlord and tenant existed. 1 It
is not enough to show privity of estate ; there must be privity
of contract. 2 The contract, however, need 'not be expressed, but
may be implied from circumstances, such as defendant's entering,
or holding over, after notice from plaintiff that he should expect
a rent ; s or from the defendant's recognition of the plaintiff as
landlord, as, for example, by repeatedly paying rent to the agent
of the plaintiff, and taking receipts from him as landlord. 4 An
implied obligation to pay is not, however, raised from mere pos-
session ; there must be an implied agreement for the use. The
evidence must imply that the relation of landlord and tenant was
created by agreement or understanding of the parties. 5 Where
defendant has entered and occupied by permission of plaintiff,
without any express agreement, the law implies a promise on his
part to pay a reasonable compensation, but such presumption does
not arise when an arrangement is proven showing that the parties
did not intend to constitute the relation of landlord and tenant. 6
Evidence that after the determination of a lease, the tenant held
over and paid rent, is conclusive evidence of a tenancy, 7 and the
1 6 Abb. N. Y. Dig. New Ed. 54 ; Carpenter v. U. S. 17 Wall. 489, 493 ; City of
Boston v. Binney, 11 Pick. 1 ; Thompson v. Bower, 60 Barb. 463; Dennett v. Penob-
scot Fair Co. 67 Me. 425, 8. c. 2 Am. R. 58.
* Glover v. Wilson, 2 Barb. 264.
3 Coit v. Planer, 4 Abb. Pr. N. S. 140, s. c. 7 Robt. 413 ; Despard v. Walbridge,
15 N. Y. 374.
4 McFarlan v. "Watson, 3 N. Y. 286.
* Id., and cases cited.
* Carpenter v. U. S. 17 Wall. 489, 493.
7 Rose. N. P. 310, citing Bishop v. Howard, 2 B. <fe C. 100; and see Bayley v.
Bradley, 5 C. B. 326. But where a tei.ant from year to year, after the expiration of
his landlord's title continued in possession for one quarter, and paid rent for that
[Ml]
352 ACTIONS FOR USE AND
action lies for rent subsequent to the term, although the lease was
sealed. 1 Any evidence of indebtedness for rent in an immediately
preceding period is competent, in connection with evidence of
continued occupation. 2
3. Express agreement^ If the occupation was under an ex-
press agreement which is void under the statute of frauds, the
agreement may be proved for the purpose of showing the in-
tended relation of landlord and tenant. 8 If, however, it was
under a valid sealed agreement the action must be upon the deed
itself. 4 The statute, 5 which permits an action of assumpsit for
use and occupation where the agreement was express, but not
by deed, allows the agreement, i it reserves a certain rent, to
be used as evidence of the amount recoverable. 6 Under the
new procedure, the distinction between this action and an ac-
tion on the sealed contract is formal ; and if the proper parties
are joined, an amendment may be allowed at the trial, if there
has been no surprise on defendant, in not counting on his con-
tract. 7 Either an oral or unsealed written agreement for hiring,
or, in case there was no express agreement, such facts as will raise
an implied contract, may be proved under a general allegation
of indebtedness for use and occupation. 8 If the agreement was
not made in writing a witness may be asked to " state the terms."
It is not necessary to ask him to state what was said. 9 If it ap-
pears from the plaintiff's evidence that defendant held under a
written agreement not produced or accounted for, plaintiff will
not be allowed to give parol evidence of the holding. 1 '* But if the
plaintiff has made out a prima facie case, without proof of the
existence of a writing, and defendant seeks to show that he held
under a written agreement, he must produce the instrument, 01
his objection is untenable. 11 To what extent a written agreement
quarter to the reversioner, but quitted at the end of it, the payment is not evidence
of a tenancy for more than the quarter. Id.; citing Freeman v. Jury, M. <fc M. 19 ;
Jenner v. Clegg, 1 M. & Rob. 213.
1 Abeel v.'Radcliff, 13 Johns. 297; and see Bishop v. Howard, 2 B. & C. 100.
s See Withington v. Warren, 12 Mete. 114; Morris v. Niles, 12 Abb. Pr. 103.
8 See Eccles. Commis. v. Merral, L. R. 4 Exch. 162 ; and see Greton t. Smith, 33
N. Y. 245, affi'g 1 Daly, 380.
4 Kiersted v. Orange, <fec. R. R. Co. 69 N. T. 343, 346, rev'g 1 Hun, 151 ; Abeel
v. Radcliff, 13 Johns. 297 ; Pierce v. Pierce, 25 Barb. 243. For the rule that debt
will lie for use and occupation under a deed, compare 6 Am. Law Rev. 17, 18.
5 11 Geo. II. c. 19, 14; IN. Y. R. S. 748, 26.
' See Abeel v. Radcliff and Pierce v. Pierce (above) ; Williams v. Sherman, 7
Wend. 109.
I Bedford v. Terhune, 30 N. Y. 453, s. c. 27 How. Pr. 422, affi'g 1 Daly, 471.
8 Waters v. Clark, 22 How. Pr. 104; Morris v. Niles, 12 Ab'j. Pr. 103.
' Frost v. Benedict, 21 Barb. 247. Thus a witness may testify that he leased the
property to defendant at a certain rent, reserving the right to sell it at any lime, and
that'defendant accepted it on such terms. Id.
10 Brewer v. Palmer, 3 Esp. 213 ; Ramsbottom T. Mortley, 2 M. <fe S. 445, cited in
Rose. N. P. 334.
II Id.; citing Fielder v. Ray, 6 Bing. 332; R. v. Padstow, 4 B. <fc Ad. 208; 1
GreenL Ev. 13th ed. Ill 87.
OCCUPATION OF REAL PROPERTY. 353
of lease excludes oral evidence of the terms is considered in con-
nection with Actions on Leases.
4. Parties.] Tenants in common may join as plaintiffs, upon
evidence that the tenant has always paid the rent to their joint
agent ; for this is evidence of a joint letting. 1 But a lessee of
one tenant in common is not liable to the other without proof of
a joint letting or an attornment. 2
The mere fact that one of two joint lessees holds over does not
charge both. 3 But where two persons sign an agreement to be-
come tenants, and one enters under it, it may be presumed that
he entered for both ; and use and occupation against both will
lie. 4 The fact that one tenant in common has had the entire
occupancy of the common estate, and his co-tenants have not oc-
cupied it, with proof of value, is not enough to sustain their ac-
tion against him for the value of the use of their interests. 5 Each
is entitled to occupy ; and the presumption of law is that either
is in possession under his own title, until evidence is adduced
that he holds as tenant of the others. 6 For this purpose the fact
that he is holding over after the expiration of a lease from his
co-tenants is not enough. The fact of his not leaving the posses-
sion does not authorize the inference that he still intends to hold
under the lease ; the presumption is that he holds under his own
title ; but this presumption may be rebutted. 7
5. Defendant's occupation.] Evidence of an agreement to
take the. premises and pay rent, is not alone enough. 8 There
must be evidence of beneficial enjoyment, or of constructive pos-
session or dominion. It is not necessary to prove defendant to
have been in manual occupation during the time for which recov-
ery is sought. It is enough to show that the power to occupy
and enjoy was given by the landlord to the tenant. 9 Hence
(agreement having been proved) evidence of delivery and accept-
ance of the key, though without proof of continued actual pos-
session, is enough to sustain a finding ; 10 and the occupation so-
shown will be presumed to have continued until the contrary ap-
pears. 11 Payment of rent by defendant to plaintiff is presumptive
evidence of occupation. 12 Such payment during the occupancy Q
1 Last v. Dinn, L. J. 28 Ex. 94.
* Austin v. Ahearne, 61 N. Y. 14.
8 Draper v. Crofts, 15 M. & W. 166.
4 Rose. N. P. 340, citing Glen v. Dungey, 4 Exch. 61.
Everts v. Beach, 31 Mich. 136, s. c. 18 Am. R. 169.
6 Dresser v. Dresser, 40 Barb. 300.
I McKay v. Mumford, 10 Wend. 351. NELSON, J.
8 Wood v. Wilcox, 1 Den. 37. and casea cited. Otherwise in. an actiou' on the
contract. Gilhooly v. Washington, 4 N. Y. 217, affi'r 3 Sandf. 830.
9 Hall v. Western Trans. Co. 84 N. Y. 284, and cases cited.
10 Id. ; Little v. Martin, 3 Wend. 220.
II Seaman v. Ward, 1 Hilt, 62, 65.
Bishop v. Howard, 2 B. <fe C. 100; Harden v. Heaketh, 4 H. <fe N. 176.
23
354 ACTIONS FOR USE AND
a third person is presumptive evidence that the occupant held
under defendant, which is the same as actual occupancy by de-
fendant. 1 If defendant was an under-tenant, still an agreement
to pay rent to the original lessor may be inferred from contin-
uous payments of the previous rents to him. 2 The receipt by the
defendant of the rents and profits, or an attomment from an
under-tenant, is evidence of use and occupation by the defendant. 8
Occupancy by a third person who was put into possession by the
defendant, is evidence from which the jury may infer occupancy
by defendant. 4 And subleases and similar writings, made by de-
fendant to third persons, are competent evidence. 8 But there
does not appear to be any authority for the proposition that use
and occupation can, in the absence of an actual demise, be main-
tained on a constructive occupation after the tenant has in fact
ceased to occupy, and has offered to surrender the premises to
the landlord. 6
If defendant denies privity with the occupant, and alleges
possession by the occupant under a stranger, evidence of employ-
ment of the occupant by the stranger is competent, although the
transaction was not had in plaintiffs possession. Defendant
may show that the occupation attributed to him was res inter
olios actaS
6. Measure of recovery.'] Where there has been a lease at an
annual rent and the tenant held over after its expiration, without
any new agreement as to the rent, the law implies that he held
from year to year and at the original rent. 8 The landlord is
not necessarily entitled to an increased rent, because the lease
contemplated a renewal at an appraisement. 9 But if the former
rent was not upon the basis of an annual value, as, for instance,
where it was for a fraction of a year only, 10 or where it is only a
ground rent, the value of buildings being otherwise stipulated
for, 11 evidence of actual value can be received. If during occu-
pancy after expiration of a lease, the title is in dispute, and there
is no recognized landlord, the rate of rent fixed by the lease is
not conclusive on either party. 12
Where the agreement of tenancy (even though proved merely
by the tenant's tacit assent to terms stated by the lessor), fixed
J Moffatt v. Smith, 4 N. Y. 126.
8 McFarian v. Watson, 3 N. Y. 286.
8 Rose. N. P. 338, citing Neal v. Swind, 2 C. fc J. 377.
4 Dimock v. Van Bergen, 12 Allen, 661.
6 Cornwall v. Hoyt, 7 Conn. 420, 428.
Rose. N. P. 337.
T Lewis v. Havens, 40 Conn. 361. For the same principle see p. 334 of this voL
8 Abeel v. Radcliff, 15 Johns. 606.
Holsman v. Abrams, 2 Duer, 436.
10 Evertson v. Sawyer, 2 Wend, 607.
11 Abeel v. Radcliff (above).
19 Van Brunt v. Pope, 6 Abb. Pr. N. S. 217.
OCCUPATION OF REAL PROPERTY. 355
the rent for the period in question, evidence of actual value is
irrelevant. 1 If defendant occupied under a lease fixing the rent,
the fact that the lease was not valid as against him, for example,
by reason of want of sealed authority in the agent who executed
it, does not prevent its use against him as furnishing an admission
establishing the measure of recovery. 3 If one holding over under
a prior lease retains only a part of the premises, or if part of the
premises have been recovered from the tenant by title para-
mount, plaintiff may recover a reasonable compensation for the
part defendant enjoyed. 3
7. Admissions and declarations. .] Evidence that a bill for
the rent was presented to defendant, and that he promised to
pay it, is, in connection with very slight evidence of occupation,
sufficient to sustain a verdict. 4 If a valid agreement of hiring be
proven, defendant's general admissions of occupation may be re-
zerred to that agreement ; but if it be shown to be void, the bur-
den is on the tenant of proving that the occupation referred to
was under that agreement, if he relies on it to defeat the action. 5
Acts and declarations characterizing possession may be proven ; 6
but the- meaning of the terms of a written lease cannot be varied
by the declarations of the parties as to their understanding of
them. 7
1 Despard v. Walbridge, 1 5 N. Y. 374.
8 Morrell v. Cawley, 17 Abb. Pr. 76.
8 Christopher v. Austin, 11 N. Y. 216, affi'g 2 E. D. Smith, 203. As to a mere
trespress by the landlord, see Lounsbery v. Snyder, 31 N. Y. 614.
Tread well v. Bruder, 3 E. D. Smith, 596.
8 Buell v. Cook, 6 Conn. 206. Otherwise if valid.
Corbett v. Costello, 8 La. Ann. 427.
* Bigelow v. Collamore, 5 Cush. 226.
CHAPTEE XVIII.
ACTIONS FOR THE HIRE OF PERSONAL PROPERTY.
1. Agreement to pay. 2. Measure of recovery.
1. Agreement to ^ay."] In the absence of evidence that the
use, by one person, ot the chattels of another, was intended to be
gratuitous, the law implies a promise to pay fair value of such
use. The fact that such use was under the mutual expectation
that the user would buy them, does not raise a presumption that
the use was gratuitously given. 1 Declarations of either party or
his agent, which form part of the res gestm of the delivery or
return of the property are competent, if relevant to the ques-
tion. 8 Evidence that defendant after being informed that plaint-
iff's charge would be at a specified rate for the time, took the
thing into his possession and kept it for a certain time is suffi-
cient prima facie? But if plaintiff relies on an executory
agreement, he may be required to prove readiness and offer to
perform. 4
The general rules, elsewhere stated as applicable to proof of
agreements for sale of goods, and for work, labor and services,
apply to these contracts. 5
2. Value.'] If there is uncontradicted evidence of an express
contract fixing the rate of compensation, evidence of value is
irrelevant. 6 If the rate was not fixed, evidence of the value of
the article before and after the use, is competent on the value of
its use, for it shows the wear and tear. A witness who has
bought, sold and used similar articles may testify to his opinion
of the value of the use. 8 The opinion of a witness who has not
seen the thing, nor heard the testimony describing it, is not com-
petent, unless there is a market value, or it appears or may be
presumed that all apparatus answering such general description
is alike valuable for the purposes for which it was employed. 9
1 Rider v. Union Rubber Co. 28 N. Y. 379, affi'g 6 Bosw. 85.
2 Knauss v. Shiffert, 58 Penn. St. 152.
8 Reilly v. Rand, Mass. Supm. Ct. Mar. 1877.
4 See'Babcock v. Stanley, 11 Johns. 178.
5 See pp. 284 and 357 of this volume. As to parol evidence to explain a written
contract, see also Bradley v. Washington, Ac. Steam Packet Co. 13 Pet. 89, 99; aa
to usage, Sipperly v. Stewart, 50 Barb. 62, 68.
6 Sherman v. Champlain Trans. Co. 31 Vt. 162, 176.
7 Wilcox v. Palmeter, 2 Hun, 517.
8 Brady v. Brady, 8 Allen, 101.
Dixon v. La Farge, 1 E. D. Smith, 722.
[356]
CHAPTER XIX.
ACTIONS ARISING ON CONTRACTS FOR SERVICES.
I. ACTIONS FOK COMPENSATION BY THE PER-
SON EMPLOYED.
1. Grounds of action.
2. License.
3. Implied contract,
4. Presumption that service was gra-
tuitous.
5. Admissions and promises.
6. Question who was employer.
7. Declarations of employees.
8. Express contract when admissible
under general allegation.
9. Express contract if subsisting must
be put in evidence.
10. What are contracts within the rule.
11. Extra work.
12. Variances.
13. Requisite memorandum under stat-
ute.
1 4. Oral evidence to vary writing.
15. Kind of service.
16. Measurements.
17. Term of service, holidays, day's
work, <fec.
18. Rate of compensation.
19. Fixed price, or quantum meruit.
20. Value of service.
21. Bill rendered, not a limit,
22. Opinions of witnesses.
23. Modification of contract.
I. ACTIONS FOR COMPENSATION BY THE PER-
SON EMPLOYED continued.
24. Performance.
25. Certificates.
26. Excuse.
27. Shop-books and other accounts of a
party offered in his own favor.
28. Defenses What admissible under
denial.
29. Disproof of employment.
30. Payment.
31. Former adjudication.
32. Limitations.
II. RULES PECULIARLY APPLICABLE TO PAR-
TICULAR KINDS OF SERVICE.
33. Advertising.
34. Artists, architects, authors.
35. Attorney and counsel.
36. Board and lodging.
37. Brokers.
38. Officers and promoters of corpora-
tions.
39. Parent and child.
40. Physicians, <fec.
41. Rewards.
III. ACTIONS FOR WRONGFUL DISMISSAL oa
REFUSAL TO RECEIVE.
42. Dismissal or refusal, <fec.
43. Defenses.
I. ACTIONS FOE COMPENSATION BY THE PERSON EMPLOYED.
1. Grounds of action.'] A claim for articles made and deliv-
ered for a specified sum pursuant to agreement, may be recovered
on a complaint for work, labor and materials, as well as on a
complaint for goods sold, 1 subject however to the rules as to vari-
ance, and surprise. Under the general allegation of work and
labor, plaintiff may give evidence of a particular kind of service
and of materials. 2 A recovery of damages for breach of the con-
1 Prince V. Down, 2 E. D. Smith, 525. Compare Union India Rubber Co. v. Tom-
linson, 1 Id. 364, and see p. 285 of this vol. Contra, at common law, Rose. N. P. 555.
The distinction between these two classes of causes of action is chiefly illustrated by
the cases arising under the statute of frauds which requires a writing in certain
sales, but not in contracts for manufacture. See 48 N. Y. 17, and cas. cit. As to
recovery in some cases on proof of money paid, see Knowlman v. Bluett, L. R. 9
Exch. 307, s. o. 10 Moak*s Eng. 466.
* For example, the services of a farrier, and the medicines administered. Clarke
v. Mumford, 3 Camp. 37. Or scientific experiments, and materials used in making
them, Grafton v, Armitage, 2 C. B. 836 ; 2 Rose. N. P. 555.
[357]
358 ACTIONS ON CONTRACTS FOR SERVICES.
tract of employment by discharging the plaintiff, ought not to
be allowed without amendment. 1
2. License.'] If a license is necessary to render the services
legal, it will be presumed that plaintiff nad one until the con-
trary appears. 2 In the case of services rendered in another
State, the court will not presume that its statute requires a
license because ours does. 8
3. Implied contract.] In general, there must be evidence
that defendant requested plaintiff to render the services, or
assented to receiving their benefit under circumstances negativing
any presumption that they were to be gratuitous. 4 The evidence
usually consists, either in, 1, an express request, precedent to
the service, or, 2, circumstances justifying the inference that
plaintiff in rendering the service expected to be paid, and de-
fendant supposed, or had reason to and ought to have supposed,
that he so expected, and still allowed him to go on in the service
without doin^ anything to disabuse him oi this expectation ;
or, 3, proof oi benefit received, not on an agreement that it was
gratuitous, and followed by an express promise to pay. Evidence
that defendant voluntarily accepted and availed himself of valu-
able services rendered for his benefit by plaintiff, when he had
the option whether to accept or reject them, especially when he
had reason to know that plaintiff rendered them with the expec-
tation of payment by defendant, will sustain a finding by the
jury that defendant promised to pay for them, 5 although there
may have been no actual request or promise. 6 Where work is
done on property of a married woman under contract with her
husband and on his credit, the mere fact that she knew the work
was in progress and did not object, is not evidence of agency on
his part sufficient to charge her. 7
If benefit to defendant by the service is clear, slight evidence
1 "Wiseman v. Panama R. R. Co. 1 Hilt. 300. For the distinction between action
for wages and for wrongful discharge, see Howard v. Daly, 61 N. Y. 362 ; Clark
v. Mayor, <fcc. of N. Y. 4 N. Y. 338, rev'g 3 Barb. 288; Colburn v. Woodworth, 31
Barb. 381 ; Routledge v. Hislop, 2 E. <fe. E. 549; and see L. R. 10 C. P. 29, s. o. 11
Moak's Eng. 232.
3 So held in case of physicians. Thompson v. Sayre, 1 Denio (N. Y.) 175, 180 ;
Crane v. McLaw, 12 Rich. (S. C.); 129 s. p. p. 287 of this voL Contra, Adams v.
Stewart, 5 Harr. (Del.) 144 ; Bower v. Smith, 8 Geo. 74.
3 Downs v. Minchew, 30 Ala. 86.
4 Mumford v. Brown, 6 Cow. 475. On what evidence one who becomes a joint
owner, after the employment of services, may be held liable, compare Belfast, Ac.
Plank R. Co. v. Chamberlain, 32 N. Y. 621 ; Fuller v. Rowe, 67 N. Y. 23, rev'g 59
Barb. 344 ; Smith v. Douglass, 4 Daly, 191.
5 Day v. Caton, 119 Mass. 513, s. c. 20 Am. R. 347.
1 Abbott v. Inhabitants of Hermon, 7 Greenl. 118 ; Morris v. Burdett, 1 Campb.
218.
7 Jones v. Walker, 63 N. Y. 612, compare Fowler v. Seaman, 40 N. Y. 522;
Ainsley v. Mead, 3 Lans. 116 ; Fairbanks v. Mothersell, 60 Barb. 406, s. c. 41 How.
Pr. 274.
BY PERSON EMPLOYED, FOE COMPENSATION. 359
will justify the finding of a request. 1 The fact that the services
were for the sole benefit of a third person, is not material, if an
original request and agreement to pay is shown; 2 otherwise, if
only a request is shown. 3 An agreement to contribute, with
others, for the purpose of a work, does not necessarily imply a
request to whomsoever may do the work. 4 The evidence must
connect the defendant with the request.
4. Presumption that service was Gratuitous.} The law will
not imply a promise to pay for board or services as among mem-
bers of the same family, and persons more or less intimately or
remotely related, where they are living together as one household,
and nothing else appears. 5 Evidence of the situation of the par-
ties, and of the surrounding circumstances is freely received, for
the purpose^ of determining the question whether there was an
understanding that payment should be made. If the person re-
ceiving the service is deceased, the executor or administrator is
not bound to establish a negative in order to defeat the claim.
The relation existing between the parties, as parent and child,
step-parent and step-child, brother and sister, and the like, is it-
self strong negative proof, and raises a presumption that no pay-
ment or compensation was to be made beyond that received by
the claimant at the time. The evidence to the contrary must sus-
tain the conclusion that the services were rendered, not in the
ordinary relation of parent and child, or of brother and sister,
nephew and uncle, and the like, but in that of debtor and cred-
itor, or of master and servant. 6
The further removed* the parties are from the filial relation,
the less need there is of evidence of intention to compensate. 7 If
a child rendering service was of full age, the presumption that the
service was gratuitous is weaker than if he were a minor. 8 If the
child continued in the same filial service, after majority, as be-
fore, there must be evidence of a mutual understanding that pay-
ment was to be made, 9 so as to constitute the relation of master
and servant. Evidence of mere loose, verbal declarations, made
to a third person, by the one who had enjoyed the service, that he
intended to compensate it, are not alone sufficient in case of pa-
1 Sinclair v. Tallmadge, 35 Barb. 602.
s Quackenbos v. Edgar, 84 Super. Ct. (2 J. <fe S.) 333.
8 As where one calls a physician to attend another.
4 Van Rensselaer v. Aikin, 44 N. Y. 126, reVg 44 Barb. 54T; Berchorman v.
Murken, 2 E. D. Smith, 98 ; Smith v. Duchardt, 45 N. Y. 597. Compare Gray v.
Murray, 3 Johns. Ch. 167 ; Rourke Y. Story, 4 E. D. Smith, 54.
5 Wilcox v. Wilcox, 48 Barb. 327, and cases cited; Williams v. Hutchinson, S
N. Y. 312; and see Bartley v. llichtmycr, 4 Id. 38; Nicholls v. Hodges, 1 Pet. 562.
6 Hall v. Finch, 29 Wis. 278, s. c. 9 Am. R. 559, DIXON, C. J. But compare Rob-
inson v. Raynor, 28 N. Y. 494. The agreement may be valid even against interme-
diate creditors of the deceased. Brown v. Pyle, 4 Weekly Notes (Penn.) 394.
1 Gordner v. Heffley, 49 Penn. St. 163.
8 Moore v. Moore, 3 Abb. Ct. App. Dec. 303, s. c. 21 How. Pr. 211.
Green v. Roberts, 47 Barb. 621.
360 ACTIONS ON CONTRACTS FOR SERVICES..
rent and child ; but are competent as tending to show a contract
relation. 1
5. Admissions and promises.'] Evidence having been given
that work was done by plaintiff for defendant, it is enough to
prove that defendant, on presentation of plaintiff's bill therefor,
promised to pay it, or admitted its correctness ; 2 but mere dec-
larations to a third person, of intent to pay for services, are
not equivalent to a promise. 3
6. Question who was employer.'] To determine by which of
two persons the plaintiff was employed, it is proper to ask a wit-
ness for whom, or on whose behalf were the services rendered ; *
though it is not proper to ask the same question with the qualifi-
cation, " as you supposed." 5 Evidence of the insolvency of either
of the alleged employers is not competent for the purpose of rais-
ing a presumption that the credit was not given to him. 6 De-
fendant cannot set up that he acted only as agent, &c., without
evidence that he disclosed the fact of the agency at the time of
making the contract. 7 General reputation as to the agency is not
competent. 8 Where plaintiff may prove defendant s dominion
over the property benefited, as one element in the evidence that
defendant was the real employer, it is competent to show that
other persons had received orders from the defendant to do work
on the same property, without showing that the plaintiff knew of
these orders at the time he did the work. 9
Declarations made by plaintiff while at work, and part of the
res gettce, and tending to show for which of several he was work-
ing, may be competent on that point, 10 though they cannot, of
course, be evidence of employment, unless brought home to de-
fendant. 11
When defendant, in making the contract, acted as agent, and
within the authority conferred, and disclosed his principal at the
time, he is not personally bound, unless upon clear and explicit
evidence of an intention to interpose his personal liability. 12 In
1 See Robinson v. Raynor, 36 Barb. 128, rev'd in 28 N. Y. 494; Gordner v.
Heffley, 49 Penn. St. 163; Hertzog v. Hertzog, 29 Id. 465. For the presumption
that the whole services were gratuitous, if part were, see Ross v. Ross, 6 HUD, 182.
2 Haymaker v. Haymaker, 4 Ohio St. 272; Houston v. Crutcher, 31 Miss. 61, 56.
Compare as to imperfect performance of part, Hollis v. Wagar, 1 Lans. 4.
3 Ditch v Wilkinson, 10 Louis. 205.
4 Sweet v. Tuttle, 14 N. Y. 465, affi'g 10 How. Pr. 40.
5 Denman v. Campbell, 7 Hun, 88 ; Murray v. Deyo, 10 Id. 3, and cases cited. For
other cases, see pp. 240, 265, nnd 302, of this vol. A witness cannot be asked
whether plaintiff " knew " the work was not done for defendant. The fact from which
knowledge is to be inferred must be proved. Major v. Spies, 66 Barb. 576.
8 Trowbridge v. Wheeler, 1 Allen, 162.
* Cabre v. Sturges, 1 Hilt. 160.
8 Trowbridge v. VVheeler, 1 Allen, 162.
8 Woodward v. Buchanan, L. R. 5 Q. B. 285. Compare Fuller v. Clark, 3 E. D.
Smith, 302.
i Printup v. Mitchell, 17 Goo. 558, 562 ; Autauga County v. Davis, 32 Ala. 703, 708.
11 Erbe'n v. Lorillard, 19 N. Y. 299, rev"g 23 Barb. 82.
" Hall v. I auderdale, 46 N. Y. 70.
BY PERSON EMPLOYED, FOR COMPENSATION. 361
the case of a public agent, much stronger evidence is required of
such an intention. 1 If it is sought to charge him on the ground
that he acted as agent without authority, the burden is on plaint-
iff to show that defendant had not the authority under which he
professed to act. 2
7. Declarations of employees.] The mere relation of employ-
ment does not render evidence of the admissions and declarations
of the employee competent against the employer. 8 Where the
servants 01 one party are, under the contract, at work for the
other, this may preclude the latter from using their declarations
against the former. 4
8. Express contract when admissible under general allegation.']
Under a general complaint for a quantum meruit, for work, la-
bor and services, plaintiff cannot prove a contract which remains
executory on his part, 5 nor one which, though fully performed on
his part, is special in respect to the time or manner of payment,
so that it cannot be said that nothing remains but the payment of
money already due. 6 A variance in this respect, nevertheless, may
be cured by amendment. He may, however, under such a com-
plaint, prove that a price was fixed by agreement ; 7 or may give
in evidence any express or special contract payable presently in
money, together with evidence either of full performance on his
part, 8 or an excuse exonerating him from full performance, 9 such
as illness ; 10 or that he has, in good faith, fulfilled, but not in the
manner, or not within the time prescribed by the contract, and
that the other has sanctioned or accepted the work ; u or that he
has fully, or partly, performed, and that the contract has been*
abandoned by mutual consent, or has been rescinded and become
1 Hall v. Lauderdale, 46 K Y. 70.
s Plumb v. Milk, 19 Barb. 74. The cases holding the burden to be on defendant
are where the contract purported to be that of the defendant. Id.
3 Cook v. Hunt, 24 111. 535 ; Corbin v. Adams, 6 Gush, 93 ; Maher v. Chicago, 38
111. 266, 273. A contractor for building a ship is not the agent of the owner within
the rule, so as to make his admission that materials were used in the construction, ad-
missible against the owner. Happy v. Mosher, 48 N. Y. 813, rev'g 47 Barb. 501.
Compare Fleming v. Smith, 44 Barb. 554, where the contrary principle seems to have
been applied in the case of a contractor for building a house.
4 Dennis v. Belt, 30 Cal. 247, 253.
8 Dermott v. Jones, 2 Wall. 9 ; 2 Greenl. Ev. 82, 104.
* Champlin v. Butler, 18 Johns. 169 ; Ladue v. Seymour, 24 Wend. 59. Although
the work may have been in part done, if the stipulations of the contract have not been
fully performod as. for instance, if the work has not been approved by a third per-
son, whose approval was made a condition precedent the plaintiff cannot recover
under a general allegation. Atkinson v. Collins, 30 Barb.. 430, s. c. 9 Abb. Pr. 353 ;
18 How. Pr. 235.
7 Fells v. Vestvali, 2 Keyes, 152.
8 Hurst v. Litchfield, 39 N. Y. 877 ; Dermott v. Jones, 2 Wall. 9. Contra, Adams
V. Mayor, <fec. of N. Y. 4 Duer, 295.
9 Hosley v. Black, 28 N. Y. 438, a o. 26 How. Pr. 97; Farron v. Sherwood, 17
N. Y. 227.
10 Wolfe v. Howes, 20 N. Y. 197, nffi'g 24 Barb. 174, 666.
11 Dermott v. Jones (above) ; Hutchinson v. Cullum, 23 Ala. 622; Dubois v. Dehv
ware & Hudson Can. Co. 4 Wend. 285.
362 ACTIONS ON CONTRACTS FOR SERVICES.
extinct by act of the other. 1 In all these cases the contract is no
longer executory on his part, nor a hindrance to a money judg-
ment for price or value.
9. Express contract, if subsisting, must be put in evidence."]
If it appear by plaintiffs evidence that a special agreement
exists, even though not pleaded, it must be produced or accounted
for, and its contents proved, for the purpose of seeing whether it
has been performed by the plaintiff, and whether the stipulated
time and mode of payment were such as to warrant a recovery. 2
And if the contract was not in writing, plaintiff must neverthe-
less prove its substance before he can recover. 3 The contract so
proved will be applied as far as its application can be traced ; but
if, by the defendant's fault the cost of the work or materials has
been increased, in so far the jury will be warranted in departing
from the contract prices. 4
If, after parol evidence has been taken of an agreement, a
written agreement is produced embodying the contract, the parol
evidence may be struck out on motion. 5
10. What are contracts within the rule.*} If the contract re-
fers to another document for details of the work to be done, the
plaintiff in order to prove performance must produce it, 6 or
account for its non-production, and prove its terms ; but it is
enough to identify it without proving its execution. 7 A docu-
ment specifying the work or other conditions, and communicated
by one party, and accepted by the other, as the terms of employ-
ment, although not signed by either, is a written contract within
the rule requiring production, 8 but it does not necessarily exclude
oral evidence of other terms. If, however, assent is proven,
ignorance of the contents is not material. 9 An unexecuted draft
contract, drawn up by a third person at the request of the par-
ties, is not necessarily competent. 10
11. Extra work.'] An independent oral onier for separate
work may be proved in an action for compensation for such
1 2 Greenl. Ev. 82, 104 ; Burlingame v. Burlingame, 7 Cow. 92.
* * Ladue v. Seymour, 24 Wend. 59; Alger v. Raymond, 7 Bosw. 418.
3 Smith v. Smith, 1 Sandf. 206.
4 Dermott v. Jones, 2 Wall. 9.
5 Newkirk v. New York & Harlem R. R. Co. 38 N. T. 158.
6 Bryant v. Stilwell, 24 Penn. St. 314, 317. Compare, to the contrary, Coles v.
Holmes, 2 Spears (So. Car.) 360.
7 Page 288 of this Tol.
8 Whitford v. Tutin, 10 Bing. 395, p. 34 of this vol. ; Rice v. Dwight M'fg Co. 2
Cash. 80, 87, p. 288 of this vol. Otherwise, of terms read to one party by the other
from a writing not shown.
9 Rice v. Dwight M'fg Co. (above).
10 Flood v. Mitchell, 68 N. Y. 507, confirming 4 Hun, 813, but rev'g it on other
points. Compare p. 53 of this vol. If an offer by one to the other has been proven,
a letter signed by the former and produced by the latter, although not addressed,
agreeing on the sum specified in the offer, is admissible. BagHolo v. Scott, 5 Mo.
341, 343.
BY PERSON EMPLOYED, FOR COMPENSATION. 363
work, although given during the performance of a written con-
tract which is not produced. 1 But if it is not clear that the work
was entirely separate from that called for by the written contract,
the latter must be produced,' 4 or accounted for ; and even a dis-
tinct promise to pay for the *work does not dispense with this
necessity. 8 If the existence of an express contract appears, the
employer's request for extra work is deemed, in the absence of
further evidence, to be merely a notice of his claim that the con-
tract calls for such work. 4 The contract is the proper evidence
to show what are extras. 5
12. Variances.] In pleading a contract by its legal effect,
the omission to state conditions which altered the liability or ob-
ligation may be a variance, 6 but the omission to state a contingent
condition, which never took effect, is not. 7 Under an allegation
of a special contract for work and materials, a contract for work
only may be proved. 8
13. Requisite memorandum under statute of frauds. ~\ The
general principles applicable have been already stated. 9 It is
essential that the writing should be final, as distinguished from a
statement of some terms, leaving others to be subsequently agreed
on. 10 But the memorandum is not vitiated by omitting to des-
ignate the kind of service, even though on familiar principles the
obligation of the employee will consequently depend on oral
evidence of surrounding circumstances and of usage. 11 The party
who is sought to be charged, having subscribed the memorandum,
the assent of the other may be proved by parol. 12 If the terms
of the contract do not negative the feasibility or right of per-
formance within the year, evidence that it was not completely
performed, or as the event proved, could not have been so per-
formed, is not enough. If the terms require more than a year,
evidence that it actually was performed within the year does not
avail. If a contract for a year's service does not express the time
for commencement of the term of service it commences in con-
templation of law immediately, and is valid without writing. 13 If
1 Reid v. Batte, Moody & M. 413.
9 Parton v. Cole, 6 Jur. 370.
3 Vincent v. Cole, Moody <fc M. 257.
* Colly er v. Collins, 17 Abb. Pr. 467.
5 Jones v. Howell, 4 Dowl. 176 ; Buxton v. Cornish, 12 M. & "W. 426; Rose. N.
P. 652. A promise to pay for extra material may be implied from the employer's
own act, which rendered the extra material necessary to conform the work to the
conditions of the contract. Messenger v. City of Buffalo, 2.1 N. Y. 196.
8 See, for instance, Sheafe v. Locke, 1 Allen (Mass.) 369 ; compare Bruce v.
Greenbanks, 33 Vt. 226.
7 Cobb v. West, 4 Duer, 38 ; Short v. McRea, 4 Minn. 119, 124.
8 Cobb v. West, 4 Duer, 38.
9 Page 292 of this vol.
10 Appleby v. Johnson, L. R. 9 C. P. 158.
11 Hagan v. Domestic Sewing Mach. Co. 9 Hun, 73, and see paragraph 15.
11 Reuss v. Pickley, L. R. 1 Ex. 342; 4 H. & C. 588.
13 Ruaaell v. Slade, 12 Conn. 455.
364 ACTIONS ON CONTRACTS FOR SERVICES.
for a year commencing at a future day, it is void if not in writ-
ing, and evidence of performance by plaintiff until discharge is
not evidence of a new contract for the same term, but only en-
titles him to recover for actual service. 1
If services are rendered under a contract, which is wholly
void by the statute of frauds, no action can be maintained to re-
cover their value, except upon evidence of the default of the
other party, or his refusal to go on with the contract. 2
Evidence that the emplovee refused to go on, on the credit of
the original employer, and thereupon at the request of defendant,
and on nis oral promise to pay, went on with the work, is suffi-
cient to go to the jury to sustain an inference of a new and orig-
inal undertaking s by defendant, on which he is liable for work
thereafter done.
14. Oral evidence to vary writing.'] In application of the gen-
eral principles already stated as to oral evidence in connection
with written, 5 it is to be observed that evidence of the surround-
ing circumstances, the previous negotiations and the usage of the
business or vocation, are freely admitted to explain ambiguous
terms ; but not to contradict unambiguous terms, except within
the limits already stated, of evidence to show usages of language. 6
A stipulation on a point which the writing either expressly or
impliedly controls cannot be added by parol. 7 But usage may be
proved to show what amounts to complete performance of the
express contract under the presumed understanding of the parties. 8
If the time for performance is not specified, subsequent conversa-
tions of the parties are competent evidence to show what they re-
garded as a reasonable time. 9
Such papers as a circular of instructions accepted by an agent
on entering employment, 10 further instructions in writing received
by him during his employment, and acted on by him continuously
1 Oddy v. James, 48 N. Y. 686.
2 Galvin v. Pentice, 45 N. Y. 162, per RAPALLO, J. ; and see William Butcher
Steel Works v. Atkinson, 68 HI. 421.
3 Lakeman v. Mountstephen, L. R. 7 H. of L. 17, s. c. 9 Moak's Eng. 6.
4 Rand v. Mather, 11 Cush. 1.
6 Page 294 of this vol.
Compare Partridge v. Ins. Co. 15 Wall. 573; 1 Dill. 139 ; Stoops v. Smith, 100
Mass. 63, s. c. 1 Am. R. 85; Sweet v. Lee, 3 Mann. <fe G. 452, 460; Myers v. Sari, 3
E. <fe E. 306; Zerrahn v. Ditson, 117 Mass. 553; and pp. 294, <fcc. and 132 of this
vol. Whether contradictory clauses, which may be reconciled by construing one as
an exception from the other, can be otherwise explained by parol evidence, see
Porter v. Spence, 38 N. Y. 119.
7 Thorp v. Ross, 4 Abb. Ct. App. Dec 416. Whether a verbal limit of cost, on a
written order, is competent, see Hooper v. Taylor, 4 E. D. Smith, 486 ; Carll v.
Spofford, 45 N. Y. 61.
8 Cooper v. Kane, 19 Wend. 386, NELSON, Ch. J.
9 Davis v. Talcott, 14 Barb. 611, revM, on other points, in 12 N. Y. 184. Thus
under a contract to build such a drawbridge as specified in the contract, it is compe-
tent to prove that it is the common understanding that it should be so constructed as
to be easily turned in two or three minutes, by one man. R. R. Co. v. Smith, 21
Wall. 262.
10 Stagg v. Ins. Co. 10 Wall 589.
BY PERSON EMPLOYED, FOR COMPENSATION. 865
thereafter, are contracts within the rule. 1 So is a stipulation in a
receipt for a payment in advance, stating how it is to be applied
or forfeited. 2 %
15. Kind of Service."] Where the writing is silent as to the
kind of service agreed for, it may be shown by oral evidence of
the surrounding circumstances, 3 and for this purpose the nature
of the employer's business, and the kind of occupation to which
the employee was known to be accustomed, are competent, 4 and
the general usage in such business. 5 If the writing designates the
service in the language of trade, oral evidence to show what busi-
\iess was properly included in the phrase used, is competent. 8
16. Measurement.'] In application of the principle as to usage
already stated, 7 evidence of usage in the locality, or in the trade,
is competent to show in what manner measurements provided for
by the contract are to be taken; 8 and the usage need not be
pleaded. 9
17. Term of /Service; Holidays, "Day's work" &c. If the
allegation is o service between specified dates, prior or later serv-
ices are not strictly provable, 10 except on the principles on which
variance may be disregarded ; but if the allegation is of indebted-
ness on a day named, or service before a day named, a term of
service or various services before that day may be proved. 11
If there is a written contract specifying the term of service, 12
or which, by specifying no term and stipulating for wages by the
I Ib. Letter written by employer in answer to his remonstrances asking what
his status was ; or the employer's letter to his employee, written in answer as to the
latter's inquiry as to the terms on which he was to be understood as serving, and
put in evidence by him as proving his employment, are contracts within the rule
that the writing cannot be contradicted by oral evidence. Partridge v. Insurance
Co. 15 Wall. 579.
* Townsend v. Fisher, 2 Hilt. 47.
8 Price v. Mouat, 11 C. B. N. S. 508; Mumford v. Gething, 7 C. B. N. S. 305 ; L.
J. 29 C. P. 105.
4 Hagan v. Domestic Sewing Machine Co. 9 Hun, 73.
* Eldredge v. Smith, 13 Allen, 140, 143.
6 Stroud v. Frith, 11 Barb. 300.
7 Page 296 of this vol.
8 As, for instance, under a contract calling for bricks and laying them in a wall
at so much " per thousand," that the number is ascertainable by measurement and
estimate; Lowe v. Lehman, 15 Ohio St. 179; or how a wall with angles is to be
measured when it is to be paid for "by the foot." Ford v. Tirrell, 9 Gray, 401 ;
whether an agreement to pay for plastering " per square yard," includes or excludes
measurement of spaces of base-boards, doors, <fec. Walls v. Bailey, 49 N. Y. 467 ; and
how wall more than nine inches thick is to be measured under a clause for payment
"per superficial yard of work nine inches thick." Symonds v. Floyd, 6 C. B. N. S. 691.
9 Lowe v. Lehman (above). As to proving the meaning of such terms as " hard
pan," see Dubois v. Delaware, <tc. Co. 12 Wend. 334, 15 Id. 87; Dickinson v. Water
Comm'rs of Poughkeepsie, 2 Hun, 615 ; Currier v. Boston, <fec. li. R. Co. 34 N. H.
498, 508.
10 Manch. <fe Law. R. R. v. Fisk, 83 N. H. 297, 305.
II Beekman v. Platner, 15 Bnrb. 550.
M Sweet v. Lee, 3 Mann. <fc G. 452, 466.
366 ACTIONS ON CONTRACTS FOR SERVICES.
week, month, or other period, implies that the term is for that
period, 1 oral evidence is not competent to contradict the language ;
but it is competent to show what length of actual service is by
ifsage designated by such language. Thus in a contract for the
services of an actor for three years, a party may show that " year "
means annual season, 8 but not that four years or seasons were
agreed for. 8 " Month" means calendar month, unless otherwise ex-
pressed. 4 Parol evidence of a usage in the trade or business to
allow holidays is competent; 5 and so is a usage not to pay the
stipulated weekly salary during vacation. 6
A general usage of the trade 7 is competent to show that an
agreement for a day's work is satisfied by a certain number of*
hours, so- as to entitle the employee to work for himself the rest
of the time. So a usage to pay proportionally more than the
day's wages for more hours than the usual day's work, is compe-
tent. 8 W here a, statute fixes the number of hours in a day's work,
unless otherwise expressly agreed, if the parties render and accept
less or more, without any express agreement, an agreement may
be inferred that the work actually done in a day shall be reckoned
a day's work. 9 If such a statute does not require an express
agreement to manifest a different intention, the rendering of more
hours' service in a day than it calls for does not prove an intent
that more than a day's wages shall be paid. 10
18. Rate of compensation^ Usually if, after the expiration of
an hiring for an agreed compensation, the employee continues in
the same service, the law implies, in the absence of other evi-
dence, a promise to continue to pay at the same rate ; u but such
a promise is not implied after the expiration of service under an
agreement to pay at a specified rate for a limited period, without
evidence of actual engagement for that period. 12 !Nor is an agree-
ment to accept the same rate implied, if the employee commenced
in ignorance of the business, and during a part of the period of
the original contract was a learner. 13
I Evans v. Roe, L. R. 7 Com. PI. 138, s. c. 2 Moak's Eng. R. 116.
s Grant v. Maddox, 15 Mees. & W. 737.
8 Sweet v. Lee (above). It has been held that evidence of a usage of the trade to
allow termination on certain notice, before the end of the periodical hiring, is com-
petent. Parker v. Ibbetson, 4 C. B. (N. S.) 348, s. c. L. J. 27 C. P. 236.
4 1 N. Y. R. S. 606, 4. Contra, at common law, Simpson v. Margitson, 11 Q.
B. 23, 32.
5 Reg. v. Stoke upon Trent, 5 Q. B. (Ad. <t EL N. S.) 303 ; and see Hosley v.
Black, 28 N. Y. 438. s. c. 26 How. Pr. 97.
6 Grant v. Maddox, 16 Mees. & W. 737.
7 Perhaps also a general usage of other kindred vocations in the same place.
Barnes v. Ingalls, 39 Ala. 393.
8 Hinton v. Locke, 6 Hill, 437.
9 Brooks v. Cotton, 48 N. H. 60, 8. c. 1 Am. R. 172.
10 Luske v. Hotchkiss, 37 Conn. 219, s. c. 9 Am. R. 814.
II Smith v. Velie, 60 N. Y. 106 ; Vail v. Jersey Little Falls Manuf. Co. 32 Barb.
564. Compare Miller v. Hooper, 7 Hun, 200 ; Nutt v. Minor, 14 How. U. S. 464.
12 Smith v. Velie (above).
13 Galvin v. Prentice, 45 N. Y. 162.
BY PERSON EMPLOYED, FOR COMPENSATION. 367
A hiring at so much per week or month usually implies a
promise to pay at the end of the periods thus specified. 1
If complete performance of a special contract is prevented by
sickness or death, 2 or by act of the law, 8 or other legal excuse ex-
onerating the employee, the contract is competent evidence on the
question of the rate of compensation for services actually per-
formed ; and contract rates cannot be reduced by proving that
the portion unfinished would be more expensive in its nature than
the portion completed. 4 So where the contract is absolutely void
by t]ie statute of frauds, it may still be put in evidence to fix the
rate of compensation, 5 if any be recoverable. 6 If the void con-
tract calls for compensation not by a pecuniary standard, 7 but in
a specific thing the value of which is not fixed, such as a tract
of land, the value of the services must be shown, and evidence of
the value of the land is incompetent. 8
19. fixed price, or quantum rneruit.'] Under an allegation of
a contract to pay a specified rate of compensation, plaintiff may
prove a promise to pay what the services were reasonably worth, 9
or an implied promise to pay usual compensation. 10 The variance
is immaterial, if the defendant is not misled ; u especially where
there are sufficient averments to enable him to recover without
reference to the allegation of an agreed compensation. 12 But if
he rests his case on a contract fixing the price to be recovered, it
is not competent for him to give evidence of value as a basis of
recovery beyond the contract ; 13 nor for the defendant, without
denying the making of the contract, to give evidence that the
value of the services was less. 14 Even where the complaint is on
a quantum meruit, a contract at a specified sum, if proved, con-
trols. 15 But if evidence of value is received from either side with-
out objection, the other may be allowed to give evidence of the
same kind. 18 And in a conflict of evidence as to whether a speci-
fied rate was agreed on or not, evidence of its reasonableness or
1 Helm v. Wolf, 1 E. D. Smith, 70.
1 Clark v. Gilbert, 26 N. Y. 279, rev's 32 Barb. 676.
I Jones v. Judd, 4 N. Y. 441.
4 Id. Where a contract of yearly service is determined by consent in the middle
of a quarter, there is no necessarily implied contract to pay pro rota ; but a jury
may infer such an agreement from circumstances. Rose. N. P. 492, citing Lamburn
V. Cruden, 2 M. fe Gr. 253 ; Thomas v. Williams, 1 Ad. <fe E. 685.
6 Nones v. Homer, 2 Hilt. 116.
Galvin v. Prentice, 45 N. Y. 162.
7 Lisk v. Sherman, 25 Barb. 433.
8 Erben v. Lorillard, 19 N. Y. 299, rev'g 23 Barb. 82.
9 Scott v. Lilienthal, 9 Bosw. 224; s. p. Harrington v. Baker, 15 Gray, 538. ,
Contra, Seale v. Emerson, 25 Cal. 293.
10 Morgan v. Mason. 4 E. D. Smith, 636.
II Scott v. Lilienthal (above).
13 Sussdorf v. Schmidt, 55 N. Y. 319.
13 Trimble v. Stilwel!, 4 E. D. Smith, 512.
14 Marsh v. Holbrook, 8 Abb. Ct. App. Dec. 176.
15 Ludlowv. Dole, 62 N. Y. 617, affi'g 1 Hun, 715, s. o. 4 Supm. Ct. (T. A C.) 655.
18 Morgan v. Mason, 4 E. D. Smith, 636.
368 ACTIONS ON CONTRACTS FOR SERVICES.
unreasonableness, and particularly of the usual price, is competent,
as bearing on the probable truth of the allegation of rate agreed. 1
But evidence of me profitableness or unprofitableness to the em-
ployer of an engagement at such a rate is not competent. 2 Where
the claim is for commissions, a variance as to the amount on which
they are computable, may be disregarded. 8
20. Value of service.'] On the question of the value of serv-
ices of a workman, evidence of his skill is competent in his favor,
in connection with evidence of the usual wages ; 4 and evidence
of his unskillfulness or his intemperate habits is competent against
him. 5 Evidence of the recommendations of third persons on
which he was engaged is not competent. 6
To prove value of work and materials it is not competent to
show the cost of constructing a different structure, for it leads to
a collateral issue involving comparison between the structures ; 7
and on the same principle to show the value of a service for
instance, negotiating the sale of a lease it is not competent to
prove the relative labor involved in negotiating that and the sale
of the fee. 8 An agreed price being proved, evidence by com-
parison of plaintiffs services with those of his fellows, is not
competent. 9
21. Bill rendered not a limit.'] The presentment by a party
to his debtor of a bill in which he charges a gross sum for serv-
ices, for which he is entitled to claim quantum meruit, where the
subject of the demand is one which would naturally consist of
many items, there being no payment nor settlement of the ac-
count, does not preclude the creditor from showing what the
services were reasonably worth, and recovering more than he had
so charged. 10
22. Opinions of witnesses.] In applying the general rule ad-
mitting opinions of witnesses as to value, 11 it is held that the
I Harrington v. Baker, 15 Gray, 538, 540; Darling v. "Westmoreland, 62 N. H.
401, a c. 13 Am. R. 55 ; s. p. Moore v. Davis, 49 N. H. 45, s. c. 6 Am. R. 460.
3 Harrington v. Baker (above).
3 Morgan v. Mason, 4 E. D. Smith, 636 ;* Durkee v. Vermont, &c. R. R. Co. 29
Vt. 127. It must be objected to, if at all, at the trial, so as to allow amendment.
Divoll v. Henken, 48 N. Y. 672.
* Cummings v. Nichols, 13 N. H. 420 ; Barnes v. Ingalls, 39 Ala. 193 ; Major v.
Spies, 66 Barb. 576.
8 Cummings v. Nichols (above) ; and see Harmer v. Cornelius, 6 C. B. N. S. 236.
6 Wolstenholme v. Wolstenholme Tile Manuf. Co. 3 Lans. 457. Evidence of what
the employee had received from other employers has been held inadmissible. Stevens
v. Benton, 2 Lans. 156, s. c. 39 How. Pr. 13 ; and see Collins v. Fowler, 4 Ala. 647.
But compare Kingsbury v. Moses, 45 N. H. 22?.
7 Gouge v. Roberts, 63 N. Y. 619 ; s. p. 59 Id. 300; 37 Super. Ct. (J. <fc S.) 433.
And see Cbnpter on SALES, paragraphs 20, 21.
8 Siegel v. Lewis, 54 N. Y. 661 ; s. p. Gouge v. Roberts, 53 Id. 619.
Green v. Washburn, 7 Allen, 390.
10 Williams v. Glenny, 16 N. Y. 389 ; and see Romeyn v. Campan, 17 Mich. 327 ; 3
Am. Law Rev. 381.
II See pp. 310-312 and 347 of this voL But compare Pullman v. Corning, 9 N. Y.
BY PERSON EMPLOYED, FOR COMPENSATION. 369
witness must be shown to have some special conversance with
the subject. 1 The question of competency to express an opinion
is for the court ; and if facts appear showing a reasonable degree
of conversance, it is not material that the witness says he does
not profess to be an expert. 2 It is not a matter of right to cross-
examine an expert as to his own professional income, by way of
testing his qualifications. 8 It is not essential that the witness
should have been employed in the vocation concerned ; 4 and if
he has been so employed, it is not a disqualification that he has
abandoned it and engaged in other business. 5 If otherwise com-
petent, it is no objection that the witness is the party examined
in his own behalf. 8
The testimony of a qualified witness, who has heard the serv-
ices described by the other witnesses, or read their testimony,
may be asked as to what would be the value of such services, if
rendered as stated. 7 The value may be called for by a general
93, affi'g 14 Barb. 174, where it was held that a witness who has examined buildings
may, though neither a mason nor an expert, testify that, in his opinion, one was built
more compactly than the other ; or that a wall was not worth covering ; that the ma-
terials were worth more than tlie wall.
1 Lamoure v. Caryl, 4 Den. 370 ; Elfelt v. Smith/l Minn. 125. Thus one who has
owned and managed mills for years, and employed millwrights, is competent to testify
whether a millwright he has often employed is a good workman. Doster v. Brown,
25 Geo. 24. But the mere fact of being a miller does not qualify to express an opin-
ion oi the skillfulness of such work. Walker v. Fields, 28 Geo. 237. So one who ia
somewhat familiar with book-keeping and accounting, and shows a somewhat intimate
familiarity with a book-keeper's services, is competent to testify to their value. Scott
v. Lilienthal, 9 Bosw. 224. But one who is a farmer and does not know the usual
compensation of clerks, is jfot. Lamoure v. Caryl, 4 Den. (N. Y.) 370, 373. So testi-
mony of master builders as to value of a house, and of the work and materials, is com-
petent. Tebbetts v. Haskins, 16 Me. 283, 289. But members of a committee are not
rendered competent to express an opinion of the value or cost of fitting up a stage,
by the fact that, after consultation with stage carpenters and artists, they had once
fitted up a theatre. Forbes v. Howard, 4 R. I. 364.
A brick and tile maker of some years' experience is qualified to give an opinion
on the proper mode of burning tiles, and what would be the effect of burn-
ing in one way or another. Wiggins v. Wallace, 19 Barb. 338. A carpenter
of experience in the place is competent to testify to the value of carpenter work
done, at the time and place of performance. Major v. Spies, 66 Barb. 576. So
witnesses who were not ship-carpenters, but who had been in and about ships as
masters and workmen, are competent to show the difference between the value of
a vessel as repaired, and its value had it been repaired according to contract.
Sikes v. Paine, 10 Ired. (N. C.) 280. So a physician is competent as to value of a
nurse's services. Woodward v. Bngsbee, 2 Hun, 128. A mason may be asked how
long, in his opinion, it would take to dry the walls of a house so as to render it
fit and safe for human habitation. Sedgw. on Dam. 591 ; Smith v. Gugerty, 4 Barb.
515.
2 Mercer v. Vose, 40 Super. Ct. (J. <fe S.) 218.
3 Harlaud v. Lilienthal, 53 N. Y. 438.
4 Pullman v. Corning, 14 Barb. 174, 9 N. Y. 93 ; Carroll v. Welch, 26. Tex. 147;
Barnes v. Ingalls, 39 Ala. 193.
Bearss v. Copley, 10 N. Y. 93 ; Robertson v. Knapp, 35 Id. 91, s, o. 83 How. Pr.
309.
6 Nourry v. Lord, 3 Abb. Ct. App. Dec. 392.
1 McCollum v. Seward, 62 N. Y. 316 ; Beekman v. Platner, 15 Barb. 550 ; Reynolds
V. Robinson, 64 N. Y. 589. As to the proper form of the question, see pp. 811 and 314 of
24
370 ACTIONS ON CONTRACTS FOR SERVICES.
question, leaving the details to cross-examination. 1 The witness
may be asked to describe the peculiarities, the excellencies, or
the defects, which enter into his estimate of value ; 2 and it is not
error to allow him to be asked, on cross-examination, what he
would have undertaken the work for. 8
23. Modification of contract.] Oral evidence is admissible to
prove a new and distinct agreement made upon a good and valid
consideration, although the previous written agreement had been
partly performed, and rescision is not shown by writing ; 4 and
the rule is the same though the previous agreement was sealed. 5
"Where the statute of frauds requires a writing, an oral modi-
fication does not satisfy the statute*
24. Performance.'} On a special contract, substantial perform-
ance, notwithstanding slight defects caused by inadvertence or un-
intentional omissions, may be proved, unless full performance be an
express condition : then it must be strictly proved, 7 or defendant's
assent to deviation, 8 or his prevention of performance, be shown
this vol. And compare Lewis v. Trickey, 20 Barb. 387, with Stevens v. Benton, 2
Lans. 156, 164, s. c. 39 How. Pr. 13, 34 ; Scott v. Lillienthal, 9 Bosw. 224, 228.
1 Parker v. Parker, 33 Ala. 459, 462 ; Garfield v. Kirk, 65 Barb. 464.
And where a witness has testified to value of services, on the theory that tlie case
was a difficult one, the defendant has a right to ask him, on cross-examination, whether
assuming the nature of the case were such as defendant claims it was, he would not esti-
mate the value lower. Garfield v. Kirk (above). Butsee Siegel v. Lewis, 54 N. Y. 651.
In the absence of market value of a structure, cost is relevant, in connection with
opinions as to value. Patterson v. Kingsland, 8 Blatchf. 278.
A ompetent expert who has seen the engine and heard the testimony as to the re-
pairs upon it, the value of which are sued for, may be asked if it be possible that such
an engine could be so damaged as testified to, that a reasonable charge for its repair
could amount to the sum claimed. Tyng v. Fields, 3 Hun, 75.
a Jackson v. N. Y. Central, <fcc. R. R. Co. 2 Supm. Ct. (T. & C.) 653. But it is not
error to exclude a question as to how he arrived at his opinion, as too general. Booker
V. Adkins, 48 Ala. N. 8. 529.
8 Oilman v. Gard, 29 Ind. 291, 293.
4 Piatt's Adm'r v. U. S. 22 Wall. 506, and cases cited. There it was held compe-
tent to prove by parol that a contractor with the government refused to continue per-
formance of his written contract, because he was unpaid, and thereupon orally agreed
to continue at higher prices and wait for payment, s. P. Stewart v. Keteltas, 36 N. Y.
388, affi'g 9 Bosw. 261.
5 Munroe v. Perkins, 9 Pick. 298, and cases cited. Compare Tinker v. Geraghty,
1 E. D. Smith, 687, and 2 Abb. N. Y. Dig. new ed. tit. CONTRACTS, modi/. Oral evi-
dence is competent to show that the time of performance of the work was extended
or waived ; and this need not be established by positive testimon y ; it may be inferred
from circumstances. Meehan v. Williams, 2 l)aly, 367, B. c. 36 How. Pr. 73. The re-
quest of the employer to make a change in the mode of construction, of a raturo
which both parties know to require more time, implies consent to a reasonable exten-
sion of time. Manuf. Co. v. U. S. 17 Wall. 595. Where the defense to a builder's
suit for the money due on the contract is a claim for damages stipulated for his deliiy
in completing a small part of the work, and it is shown that the contract was changed
by introducing extra work, the burden of proof is on the party claiming the dam-
ages, to show either that the delay was but slightly produced by the change in the
contract, or that it was caused by the builder's negligence or fault. Bridges v. Hyatt,
2 Abb. Pr. 449.
6 Swain v. Seamens, 9 Wall. 254.
' Phillip v. Gallant, 62 N. Y. 264, and cas. cit.
8 Rose. N. P. 658 ; Hayden v. Hayward, 1 Camp, 180, Part performance followed
by his voluntary and unexcused cessation of performance is not enough. Jennings
v. Camp, 13 Johns. 94; Lantry v. Parks, 8 Cow. 63. In an action on an agreement
BY PERSON EMPLOYED, FOR COMPENSATION. 371
by the act of the other party ;* or other excuse exonerating him. 2
If the employer refuses to perform on his part, and actually pre-
vents performance by the contractor, it is unnecessary for the
latter to prove readiness and ability to perform. 8
In a contract to perform work as soon as possible, or within a
reasonable time, evidence of the surrounding circumstances is
competent to show what was understood as a reasonable time.*
When the thing to be performed is expressed in terms of art,
or technical terms, it is competent to ask a qualified witness as to
whether the stipulation calls for a particular thing, 5 and as to the
manner of performance. 6
The mere fact that defendant took possession of his property,
whether real 7 or personal, 8 does not necessarily amount to an ad-
mission that a contract to do work thereupon had been so per-
formed as to impose any liability on him. The factthat defend-
ant clandestinely removed the thing, 9 or refused to allow its
inspection, 10 so as to preclude plaintiff having testimony to its
quality, is relevant.
25. Certificates of performance.'] Certificates of performance,
given by a third person, although he superintended the work, are
not competent, 11 unless made so by agreement, or unless coupled
with evidence that the person was the authorized agent of de-
fendant to give such certificate. 12 If the promise to pay is condi-
tioned on the work being done to the satisfaction of a third per-
son, evidence of performance is not enough, without showing the
satisfaction of that person. 13 But a stipulation to pay according
to pay a certain portion of the profits of a joint adventure, upon condition that in-
formation furnished by the plaintiff should be true, the burden is on plaintiff to show
that the information was true. Strong v. Place. 4 Robt. 385, 8. c. 33 How. Pr. 114.
Although if there was no such expressed condition the burden would be upon de-
fendant to prove falsity, if he relied upon that. Id. ; but compare Townseud v.
Neale, 2 Camp. 191.
1 Henderden v. Cook, 66 Barb. 23.
9 Wolfe v. Howes, 20 N. Y. 197, affi'g 24 Barb. 174, 666. The objection that the
contract was entire, so that full performance must be shown, if not taken at the trial,
is not available to defendant on appeal. Jenkins v. Wheeler, 2 Abb. Ct. App. Dec. 442.
3 Howell v. Gould, 2 Abb. Ct. App. Dec. 418.
4 See Hydraulic Engineering Co. v. McHaffie, 27 "Weekly R. 222.
5 Colwell v. Lawrence, 38 N. Y. 71, s. c. 36 How. Pr. 306, affi'g 38 Barb. 643 ; 24
How. Pr. 324.
6 Reed v. Hobbs, 3 Til. (2 Scam.) 297; Conrad v. Trustees of Ithaca, 16 N. Y. 158.
The testimony of the architect should be regarded as controlling, in a conflict of evi-
dence, whether a building is erected in conformity with the contract. Tucker v.
Williams, 2 Hilt. 662. As to production of plans on the trial, see Stuart v. Binsse,
10 Bosw. 436, and p. 321 of this vol.
1 Reed v. Board of Education of Brooklyn, 4 Abb. Ct. App. Dec. 24.
8 The Isaac Newton, 1 Abb. Adm. 11, 19.
9 Kidd v. Belden, 19 Barb. 266.
10 Bryant v. Still well, 24 Penn. St. 314, 317.
11 Reed v. Scituate, 7 Allen, 141, 144.
" Smith v. Kahili, 17 111. 67; Sutherland v. Kittredge, 19 Me. 424.
13 Butler v. Tucker, 24 Wend. 447, and cases cited; Barton v. Hermann, 11 Abb,
Pr. N. S. 378. Compare Hart v. Lauman, 29 Barb. 410 . Sharpe v. San Paulo Eailw.
Co. L. R. 8 Ch. App. 697, B. c. 6 Moak's Eng. 516.
372 ACTIONS ON CONTRACTS FOR SERVICES.
to estimates of a third person, 1 or that any matter of difference
shall be determined by a third person, 2 without making his act a
condition or conclusive, does not exclude other evidence of per-
formance, or non-performance. 8 If the contract contemplates a
conclusive certificate, plaintiff must prove one, 4 substantially com-
plying with the stipulation. 5 A general certificate, to a conclusion
implying all the particulars, is enough, 6 but an evasive one is not. 7
On a question arising whether the certificate is sufficient within
this rule, evidence that defendant made payments to plaintiff
under the same contract, on similar certificates, without objection
to their form, at the time of presentation, is relevant and conclu-
sive. 8 Under these rules a certificate is conclusive in plaintiff's
favor, unless defendant can show that it was procured by fraud. 9
Plaintiff may dispense with the requirement of a certificate by
showing that the third person had unreasonably, and in bad faith,
refused the certificate, and thereupon proving performance of
the work ; or by showing that defendant had waived the matters
to which the certificate was required. 11
If the stipulation makes the third person an arbitrator, notice
of his examination is material. 12
26. Excuse!} Evidence of an excuse for partial non-perform*
ance is objectionable under an allegation of performance, but
should be admitted by amendment if defendant is not misled. 13
27. Shop-looks and other accounts of a party offered in his
own favor, ,] The rules already stated on this point 14 admit the
account of mechanics and tradesmen ; 15 and, upon the same prin-
ciple, those of physicians. 16
I Sherman v. Mayor, Ac. of N. Y. 1 N. Y. 316.
s Hurst v. Litchfield, 39 N. Y. 377, and cases cited. Compare Morris Canal A B.
Co. v. Nathan, 2 Hall, 239.
3 Bigler v. Mayor, Ac. of New York, 253.
4 Smith v. Brady, 17 N. Y. 173, s. p. 1859, McMahon v. N. Y. A Erie R. R. Co.
20 N. Y. 463.
6 Adams v. Mayor, Ac. of N. Y. 4 Duer, 295 ; Morgan v. Birnie, 9 Bing. 672. The
certificate need not be given in writing, unless expressly required by the contract.
Roberts v. Watkins, 14 C. B. N. S. 592, s. c. L. J. 32 C. P. 291.
6 Stewart v. Keteltas, 36 N. Y. 388, affi'g 9 Bosw. 261 ; Wyckoff v. Myers, 44 Id.143.
7 Smith v. Briggs, 3 Den. 73.
8 Bloodgood v. Ingoldsby, 1 Hilt. 388.
9 Wyckoff v. Meyers, 44 N. Y. 143. Unless the contract requires proof of per-
formance and certificate. Glacius v. Black, 50 N. Y. 151.
10 Thomas v. Fleury, 26 N. Y. 26 ; Bowery Nat. Bank v. Mayor, Ac. of N. Y. 63
N. Y. 336, rev'g 8 Hun, 639. Contra, Milner v. Field, 5 Exch. 829. Or that the de-
fendant had such secret relations with the third person as to make the latter inter-
ested. Kimberley v. Dick, L. R. 13 Eq. 1.
II Smith v. Gugerty, 4 Barb. 614; compare Barton v. Hermann, 11 Abb. Pr. N.
S. 378. See further as to the subject of certificates. 1 Moak*s Eng. 532, n. ; 6 Id.
628, 871 ; 1 Redf. on Rw. 435 ; Schencke v. Rowell, 3 Abb. N. C. 42.
12 McMahon v. N. Y. A Erie. R. R. Co. 20 N. Y. 463; Collins v. Vanderbilt, 8
Bosw. 313.
13 Hosley v. Black, 28 N. Y. 438, B. c. 26 How. Pr. 97.
14 Page 322 of this vol.
15 Linnell v. Sutherland, 11 Wend. 668; The Potomac, 2 Black, 581.
" Foster v. Coleman, 1 E. D. Smith 85 ; Knight v. Cunnington, 6 Hun. 100.
BT PERSON EMPLOYED, FOR COMPENSATION. 373
Charges made as each part of an entire work was completed are
not incompetent ; x but charges for anything done under a supposed
special contract, but which, by reason of a rescission of the con-
tract, afterwards became matter of account by pperation of law,
cannot be proved by the party's book. There must be a right to
make an efficacious charge when the service is done. 2 Pay-rolls
or check-rolls between a contractor and his laborers, though such
as would be admissible as accounts between him and thejm, are
not admissible in evidence against the contractor's employer, to
enable the contractor to establish a quantum meruit, on the rescis-
sion of the contract, unless upon the ground that they were orig-
inal entries. 8
28. Defenses What Admissible under Denial.'] Under a
general denial, defendant may prove any circumstances tending
to show that he was never indebted at all, or that he never owed
so much as was claimed ; for example, that he never incurred the
debt ; or that the services, either in whole or in part, were ren-
dered as a gratuity ; or that plaintiff had himself fixed a less price
for them than he claimed to recover ; or that they were rendered
upon the credit of some other person than the defendant. 4 If
the complaint is a mere allegation of indebtedness the rule is still
more liberal. 5 But a general denial does not admit evidence that
plaintiff has converted the thing, in respect of which the services
were alleged to have been rendered. 6 If the complaint is on a
quantum meruit, not for an agreed price, a general denial admits
evidence in reduction of the value, such as, that the work was
unskillfully done, or that defendant had discharged plaintiff, or
given him notice to stop. 7 If the answer admits the employment
and service alleged, and only denies the value, the quantity of
work is not in issue, but only the value ; 8 otherwise if it only ad-
mits employment and some service, not indicating the amount,
and denies all other allegations. 9
If the complaint is for an agreed price, a general denial does
not admit evidence of unworkman-like manner, 10 nor of negli-
gence or affirmative misconduct ; n unless the contract as pleaded
requires plaintiff to show performance of its stipulations, in which
Contra, as to necessity of preliminary services, proof that physician kept correct
books, Ac., Clarke v. Smith, 46 Barb. 30.
1 Kaughley v. Brewer, 12 Sergt. <fe R. 133.
s COWEN, J., Merrill v. Ithaca <fc Oswego R. R. Co. 16 Wend. 585, and casps cited.
8 Merrill v. Ithaca <fe Oswego R. R. Co. 16 Wend. 586. For the rule as to original
entries see pp. 320-322 of this vol.
4 Schermerhorn v. Van Allen, 18 Barb. 29.
8 Brown v. Colie, 1 E. I). Smith, 265.
6 Wood v. Belden, 54 N. Y. 658, rev'g 59 Barb. 549. This is a counter-claim.
Wadley v. Davis, 63 Barb. 500.
7 Raymond v. Richardson, 4 E. D. Smith, 171 ; a. p. Bridges v. Paige, 13 CaL 64(1
8 Van Dyke v. Maguire, 67 N. Y. 429.
9 Albro v. Figuera, 60 Id. 630.
10 Kendall v. Vallejo, 1 Cal. 371.
11 Stoddard v. Treadwell, 26 CaL 294, 305.
374: ACTIONS ON CONTRACTS FOR SERVICES.
case a general denial allows evidence to disprove performance. 1
If the answer alleges generally that plaintiff had failed to fulfill
the contract, and also sets forth particular defaults, he is not con-
fined to proving the particular defaults stated, but may prove any
defaults under his general allegation. 8 If there is no general al-
legation, defendant may be confined to proof of the default al-
leged. 3 If the contract is special, a general denial admits evidence
that it was different from that alleged, for instance, a qualifying
contract of the same date, 4 or a usage which in contemplation of
law formed an integral part of the agreement ; 5 but a denial of
the contract only, does not admit evidence of a mutual abandon-
ment of it. 8
If there is a special contract, which the result of the work
corresponds to, evidence that the thing will not answer its pur-
pose is irrelevant. 7 On the other hand, if defendant shows that
the contract was not faithfully performed, plaintiff cannot prove
that the work would have been worth more than the contract
price had it been performed. 8 An excess in the performance, if
not shown to be detrimental, is not relevant. 9 But a departure
may be, though not shown to be detrimental. 10
If the complaint is general, defendant must aver a special
contract, if he relies on it to show that by its terms nothing is
due. 11 But under a general denial he may prove an agreement
fixing a less price than that sued for. 12
If the complaint is general for indebtedness, and does not
allege a contract, the statute of frauds is available under a general
denial. 13 Where the complaint sets forth a contract and the an-
swer admits it, the statute is not available unless the facts to in-
voke the statute of frauds are pleaded. 14
29. Disproof of employment^ In a conflict of evidence as to
who was the real employer, it is competent for defendant to show
that he employed another person to do the whole work, 15 and paid
him. 16 Evidence that plaintiff received payments from a third per-
1 Siseon v. "Willard, 25 Ward. 672.
* Trimble v. Stilwell, 4 E. D. Smith, 512.
* Brown v. Colie, 1 Smith, 265.
4 See Marsh v. Dodge, 66 N. Y. 533, rev'g 4 Hun, 278.
'Miller v. Ins. Co. of North Am. 1 Abb. New Cas. 470.
* Laraway v. Perkins, 10 N. Y. 371.
7 Kendall v. Vallejo, 1 Cal. 371, 373.
8 Williams v. Keech, 4 Hill, 168.
9 Turner v. Haight, 16 N. Y. 465.
10 See Swain v. Seamens, 9 Wall. 254.
11 Reed v. Scituate, 7 Allen, 141; Hagan v. Burch, 8 Iowa, 809, 312. Where a
plaintiff closes his case without its appearing that there is any written contract re-
lating to the subject-matter of the action, the defendant, if he means to set up that
there is such a contract, must produce it. Magnay v. Knight, 1 M. <k Gr. 944, 950.
12 Budreaux v. Tucker, 10 La. Ann. 80.
13 Alger v. Johnson, 6 Supm. Ct (T. & C.) 632.
14 Id.
15 Poineroy T. Pierce, 6 Hun, 119; s. P. Pelanne v. Coudreau, 16 La. Ann. 127.
16 Gerish v. Chartier, 1 C. B. 13 ; Steph. Ev. 18.
BY PERSON EMPLOYED, FOR tOMPENSATION. 375
son is competent, as tending to show that it was to him that plaintiff
looked as employer. 1 The declarations of defendant, a part of the
res gestce of the circumstances under which the request was made,
are competent in his own behalf. 2 Where the defence is that by
agreement the business was carried on for joint account evidence
of the acts, doings and declarations of the parties, the mode of
transacting business and keeping the accounts, the dealings with
others, and a memorandum in the handwriting of one and held by
the other, though unsigned, tending to show such an agree-
ment, are competent. 8 In disproof of the allegation of employ-
ment, evidence of plaintiffs conduct during the period, inconsis'
tent with the relation, is relevant. 4
30. Payment.'] In the case of weekly wages, systematically
paid to a number of workmen or servants, evidence that plaintiff
had been seen waiting with the others to receive his wages is
competent to go to the jury, in connection with lapse of time be-
foresuit, from which to infer payment. 5 But the mere fact that
fellow laborers were paid does not raise a presumption that
plaintiff was. 6 Nor does mere lapse of time raise such a pre-
sumption, in the case of an ordinary domestic servant. 7
31. Former adjudication.'] A former recovery for a part of
a running account for continuous service, such as that of a phy-
sician, bars a new action for another part, even though the items
be separate and distinct. 8 Otherwise, if the former recovery was
on a distinct and separate contract. 9
32. Limitations.] In applying the statute of limitations to a
claim for services rendered continuously during a long series of
years, it may be presumed that the contract contemplated yearly
or monthly payments, 10 and if the employer is deceased, the stat-
utes is deemed to run from the completion of such periods of
service, unless there is sufficient evidence of the decedent's agree-
ment to make provision for compensation by a disposition of his
property at death. 11
1 Gilmore v. Atlantic & Pacific R. R. Co. 35 Barb. 279.
2 Smi h v. Smith, 1 Sand. S. C. 206.
8 Dickinson v. Robbins, 1 2 Pick. 74.
4 See Daylon v. Hall, 8 Blackf. Ind. 556 ; Weber v. Kingsland, 8 Bosw. 415.
8 Lucas v. Novosilieski, 1 Esp. 296 ; and see Seller v. Norman, 4 C. <fc P. 80.
6 Filer v. Peebles, 8 N. H. 226, 231.
I Suediker v. Everingham, 27 N. J. L. (3 Dutch.) 143 ; and i-ee Holmes T. The
Lodemia, Crabbe, 434.
8 Oliver v. Holt, 11 Ala. 574 ; compare O'Beirne v. Lloyd, 43 N. Y. 248.
9 Phillips v. Berick, 16 Johns. 139. As to judgments for wages or price and
judgments for discharge or breach, compare L. 11. 10 C. P. 29, 8. c 11 Moak's En?.
232"; Routledge v. Hislop, 2 E. <fc E. 549; De Wolf v. Crandall, 34 Supor. Ct. (J. A
S.) 14; Davenport v. Hubbard, 46 Vt. 200, s. o. 14 Am. R. 620; and cases cited In
note 1 on p. 358 of this vol.
10 Davis v. Gorton, 16 N. Y. 255.
II Nicholl v. Larkin, 2 Redf. Surr. R. 236.
376 ACTIONS ON CONTRACTS FOR SERVICES.
II. RtJLES PECULIARLY APPLICABLE TO PARTICULAR KINDS OF
SERVICE.
33. Advertising. ,] Evidence of sending in an advertisement,
not in itself implying a limitation such as is implied bv an ad-
vertisement of a sale on a day named, and other transitory an-
nouncements and without any direction as to number of inser-
tions, implies a direction to continue till stopped. 1 Where a
limitation is expressed or implied, evidence that the advertiser
took the paper, and that the advertisement was brought to his
knowledge, is not enough to sustain a finding that he authorized
the continuation of it. 2 For advertising after valid notice to dis-
continue, the price is not recoverable ; the claim, if any, must be
for damages. 3
It is better to be prepared to produce the file as the best evi-
dence of actual publication ; 4 but an advertising agent suing on a
contract to insert in papers of a certain description, must at least
prove the papers to have been such, and continuance for the time
stipulated. 5 The rule as to shop-books 6 applies to the books of a
newspaper printer to show his authority and prices, in connection
with such evidence of performance. 7 A witness who wrote <out
a notice to be advertised, and gave it to another person to be in-
serted, but has no personal knowledge of the publication, cannot
be examined, in the absence of all other proof, as to the contents
published. 8
Where the advertising was agreed to be done in some special
form, such as a chart, not particularly described in the written
contract, oral evidence is admissible to show that, at the time the
contract was made, the , plaintiff agreed to make the chart of a
certain material, and to publish it in a certain manner. 9
On the question of value, a qualified witness may be asked
what is a fair price for advertising such a card in the manner pub-
lished by the plaintiff. 10
34. Artists; Architects; Authors.] In an wrtisfs action for
price of a portrait, evidence that defendant admitted that the
portrait was good and accepted a delivery, is enough to go to the
jury, though there be conflicting evidence on the question whether
1 Ahem v. Standard Life Ins. Co. 2 Sweeny, 441.
s Dake v. Patterson, 5 Hun, 658. One who publishes an advertisement by direc-
tion of a sheriff, marshal or other officer, cannot recover against the party without
showing that the latter authorized the publication. Raney v. Weed, 3 Sandf. 677,
8. c. 8 N. Y. Leg. Ob*. 182.
3 Stephens v. Howe, 34 Super. Ct. (2 J. &. S.) 133.
4 This was held necessary in Richards v. Howard, 2 Nott & M'C. 474. Contra,
Enloe v. Hall, 1 Humph. (Tenn.) 303, 310. Compare next paragraph.
* Holloway v. Stephens, 2 Supm. Ct. (T. & C.) 662.
6 Pages 322 ami 872 of this vol.
7 Richards v. Howard (above) ; Thomas v. Dyott, 1 Nott & M'C. 186.
8 City Bank of Brooklyn v. Dearborn, 20 N. Y. 244.
Stoops v. Smith, 100 Mass. 63, s. c. 1 Am. R. 85. .
10 Palmer v. White, 10 Cush. 321, 323.
BY PERSON EMPLOYED, FOR COMPENSATION. 377
it was really a good likeness. 1 It is not necessary that a witness
be an artist, in order to be competent to express an opinion on the
question of likeness. 2
On the question whether an architect's employment was con-
ditioned on the adoption of his plans, the fact that he took the
plans away does not raise a legal presumption against him. 8 If
it appear that the .plans were left with the employer, the nature
of the action is sufficient notice to produce them. 4 In the absence
of express agreement, it is a question for the jury whether the
commission charged is, under the circumstances, reasonable or
unreasonable. 5
In an action by an author or writer, for compensation, it is
not necessary to produce the work written. 6 The authorship being
in question, it is not competent to ask the opinion of a witness
(founded merely on his having read the articles, and professing a
knowledge of the plaintiffs style of writing), as to whether they
were written by plaintiff. 7 On the question of value, the
opinion of the writer, formed with reference to the time and
labor employed in its preparation, is competent, 8 and, if uncontra-
dicted, is sufficient. 9
35. Attorney and Counsel.'} An attorney must prove an em-
ployment, either original, or by recognition during the progress
of the suit; 10 or a promise to pay, made with knowledge of
service rendered. Evidence of services rendered merely is not
enough. 11 If retainer is proved, the fact that the service was for a
third person does not defeat the recovery. 12 A paper in the
1 Francois v. Ocks, 2 E. D. Smith, 417.
9 Barnes v. Ingalls, 39 Ala. 193.
Nourry v. Lord, 3 Abb. Ct. App. Dec. 397.
4 Hooker v. Eagle Bank of Rochester 30 N. Y. 83.
5 Rose. N. P. 558, citing Chapman v. De Tastet, 2 Stark. 294 ; Upsdell v. Stewart,
Peake, 1 93. The schedule of the American Institute of Architects in New York is held
not a proper rule of value of services elsewhere. Mason v. United States. 4 Ct. of CL
496. 'As to defects in the work, see Peterson v. Rawson, 34 N. Y. 370; 2 Bosw. 234.
Houghton v. Paine, 29 Vt. 57.
1 Lee v. Bennett, How. App. Cas. 187, 202.
8 Babcock v. Raymond, 2 Hilt. 61.
' Id. ; s. P. Dickenson v. Fitchburgh, 13 Gray, 546, 656.
10 Hotchkiss v. Le Roy, 9 Johns. 142 ; Burghart v. Gardner, 3 Barb. 64. (For
other earlier cases see 2 Greenl. Ev. 120, 139, <fcc.)
11 Id. Attorneys transacting business as brokers, and entitled to compensation as
euch, must prove express contract, to recover a counsel fee lor conversations with
their employers about the business. Walker v. Am. Nat. Bank, 49 N. Y. 659.
12 Wilson v. Burr, 25 Wend. 386. As to proving ratification of employment of
counsel, see Harnett v. Garvey, 36 Super. Ct. (4 J. & 8.) 326. Retainer by one
partner, Merchant v. Belding, 49 How. Pr. 344. As to combined employment, see
Smith v. Duchardt, 45 N. Y. 597; Van Rensselaer v. Aikin, 44 N. Y. 126, rev'g 44
Barb. 647. For rules applicable to contingent agreements, see Ogden v. Des Arts, 4
Duer, 275 ; Ely v. Spofford, 22 Barb. 231 ; Wood v. Young, 5 Wend. 620 ; Wads-
worth v. Green, 1 Sand'. 78 ; Satterlee v. Jones. 3 Duer, 102 ; Marsh v. Holbrook, 3
Abb. Ct. App. Dec. 176; Coughlin v. N. Y. Cent. R. R. 71 N. Y. 443, rev'g 8 Hun,
136 ; Whitehead v. Kennedy, 69 N. Y. 462, 467, revg 7 Hun, 230.
878 ACTIONS ON CONTRACTS FOR SERVICES.
cause, signed by the client, is better than oral evidence ; * but
there must be proof of the signature. 2
For services, under the Code of Procedure, 8 an attorney or
counsellor must prove, in the absence of an express agreement as
to amount, the value of the services actually rendered. 4 Taxable
costs are not the measure ; and production of the judgment roll
showing the costs taxed is not alone enough ; 5 but the amount
of taxable costs is competent as bearing on the value of the
services. 6 Where the amount of compensation to be paid was
not fixed, evidence of what is ordinarily charged by attorneys or
counsel in cases of the same character, is admissible. 7 The im-
portance and incidental effects of the controversy, 8 and the value
of the property involved in litigation, 9 are competent for the
same purpose, and as bearing on the care and labor involved.
Evidence of how often the plaintiff appeared as attorney or
counsel in the court where the services were rendered, is compe-
tent as showing skill and experience. 10 Retainer and service in a
cause being proved, at an agreed rate, the question whether there
were merits is irrelevant. 11
Upon principles already stated, 12 the opinion of an attorney or
counsellor as to the value of the services 1S (but not as to legal
effect or right), 14 is competent; but that of a non-professional
witness is not. 15
Uselessness of the service, through error in advice, is not a
defense, unless negligence or want of skill be shown to have con-
tributed thereto. 16 The burden of proof of negligence is on the
client. 17 Failure of success is not prima facie evidence of negli-
gence or want of proper skill. 18
1 Harper v. Williamson, 1 McCord (So. Car.) 156 ; and see Hughes v. Christy, 26
Tex. 230, 232.
4 Burghart v. Gardner (above). The presumption that the officer who allowed the
document to be filed would not do so if it were not genuine, is not enough. Id.
3 N. Y. Code, 303 ; Code Civ. Pro. 66.
4 Garr v. Mairet, 1 Hilt. 498 ; s. p. Moore v. Westervelt, 3 Sandf. 762.
8 Id.
* Foster v. Newbrough, 66 Barb. 645. ,
1 Stanton v. Embrey, 93 U. S. (3 Otto), 548. An appellate court will not take
judicial notice of value by looking at the reported briefs, <fec. Pearson v. Darring-
ton, 32 Ala. 227, 262.
8 Harland v. Lilienthal, 53 N. Y. 438.
9 Garfield v. Kirk, 65 Barb. 468.
10 Harland v. Lilienthal (above).
11 Case v. Hotchkiss, 1 Abb. Ct. App. Dec. 324, 6. c. 3 Abb. Pr. N. S. 381 ; 3 Keyes,
334 ; 37 How. Pr. 233.
12 Pages 323 and 368 of this vol.
13 Beekman v. Platner, 15 Barb. 550 ; Hart v. Vidal, 6 Cal. 56.
14 Clussman v. Merkel, 3 Bosw. 402. Other than foreign law.
15 Smith v. Kobbe, 59 Bnrb. 289.
16 Bowman v. Tallman, 3 Abb. Ct. App. Dec. 182, note. The right to compensa-
tion for services in one matter is not forfeited by his misconduct in another ; Currie
v. Cowles, 6 Bosw. 452 ; nor by acting adversely; Porter v. Ruckman, 38 N. Y. 210,
11 Seymour V. Cagger, 13 Hun, 29.
18 Id.
BY PERSON EMPLOYED, FOR COMPENSATION. 379
36. Board and lodging.'] An implied promise by a father to
pay for board and lodging of a child may be inferred from
knowledge and omission to dissent. 1 Declarations of the child, if
part of the res gestw of removal, may be competent on the ques-
tion of loco parentis, or gratuitous support. 2 The implied prom-
ise of a guardian to continue to pay may be implied from pre-
vious payments. 3 Such agreements are not within the statute of
frauds, unless expressly to continue beyond a year from the time
when made. 4 But if for a year or more to commence at a future
day thev are. 5 An agreement for board, though with lodging, in
a specihed apartment, is not a tenancy of real estate within the
statute requiring writing. 6
One who has had long experience in the care of a person, non
compos, is competent to express an opinion as to the value of his
board and care. 7
37. Brokers.']- In a conflict of evidence as to employment,
evidence of acts and declarations by the plaintiff, made in the
interest of the other party to the bargain, and in hostility to de-
fendant within the period covered by the alleged employment, is
competent. 8 A clause stating terms of employment, inserted in
a contract with a third person to which plaintiff was not a party,
does not exclude oral evidence. 9 The testimony of a broker, that
in a hypothetical case stated, brokers would be entitled to com-
mission, is inadmissible. This is a question of law. 10
A real estate broker, acting as such (and not as middleman,
with the knowledge of both parties that he acts for both), 11 can-
not recover from either, if employed by and entitled to compen-
sation from the other, 12 unless this double employment M r as dis-
closed to 13 and assented to, by both, 11 and evidence in his behalf to
1 Nichole v. Allen, 3 C. & P. 36. To recover for board and maintenance of de-
fendant's illegitimate child, an express promise must be shown, or it must be shown
that he admitted himself the father and adopted the child, in which case plaintiff may
recover on the implied promise for maintenance during the adoption, but not for that
after the adoption has been revoked. NELSOX, CH. J. Moncrief v. Ely, 19 Wend. 406,
and caes cited.
* Edy v. McCoy, 20 Ala. 403 ; and see p. 179 of this vol.
3 Pegge v. Guardians of Lampeter Union, L. R. 7 C.- P. 366, s. c. 2 Moats En^.
668.
4 Knowlman v. Bluett, L. R. 9 Ex. 1, s. c. 7 Moak's Eng. 287.
* Wilson v. Martin, 1 Den. 602.
* Wilson v. Martin (above); Inman v. Stamp, 1 Stark. 12 ; Edge v. Strafford, 1 C.
<fc J. 391. Nor is an agreement for lodgings only. White v. Maynard, 111 Mass. 250,
6. c. 15 Am. R. 28. Contra, Wright v. Stavert, 2 E. <fc E. 721 ; L. J. 2'J Q. B. 161.
1 K-ndall v. May, 10 Allen (Mass.) 59, 67. And see Reynolds v. Robinson, 64 N.
Y. 589.
8 Miller v. Irish, 63 N. Y. 652. affi'g 3 Hun, 352, s. c. 5 Supm. Ct. (T. &. C.) 707.
* Weber v. Kingsland, 8 Bosw. 415.
10 Main v. Eagle, 1 E. D. Smith, 619; Weber v. King^land, 8 Boaw. 415. Coin-
pare Allan v. Sunditis, 1 H. <fe C. 123.
11 Siegol v. Goul.l, 7 Lans. 177; Rupp v. Sampson, 16 Gray, 393.
15 Watker v. Osgood, 98 Ma*s. 348.
13 Redfield v. Tegg, 38 N. Y. 212; and see Coleman v. Garrigues. 18 Barb. 60;
Glentworth v. Luthen, 21 Id. 145 ; Morrison v. New York &. New Ilaveu R. R. Co.
Sli Id. 568.
14 Rice v. Wood, 113 Mass. 133, s. c. 18 Am. R. 459.
380 ACTIONS ON CONTRACTS FOR SERVICES.
show a custom among brokers to charge a commission to both
parties in such cases is inadmissible. 1
It is competent to ask the purchaser, as a witness, if he would
have purchased had he not gone to the plaintiff and obtained in-
formation from him. 3 If the employment requires the broker to
conclude a contract, he cannot prove a sale by a written instru-
ment which on its face does not bind the purchaser, aided by
parol evidence of mistake or other circumstances which would
make it binding, for the seller (unless his acceptance of a purchaser
is shown) is entitled to a valid contract under the statute. 8
If there was a contract for compensation, plaintiff need not
prove any usage of brokerage for like services ; 4 and if it spe-
cified the conditions, evidence that, by the usage of brokers,
commissions are allowable, although the conditions are not com-
plied with, is not competent. 5 If plaintiff was not a broker by
vocation, evidence of the usual commissions of a broker is not
competent. 6 He must prove that he was a broker, to make
evidence of their usual charge available as the measure of recov-
ery. 7 General value of time, travel and expense may be proved
by opinion. 8 Opinion is not competent on the value of brokage
services for procuring a loan, for that is fixed by statute ; nor the
value of a loan of credit, for credit has no market value. 9 Evi-
dence that defendant had previously paid plaintiff brokage on
similar transactions is competent, as tending to show usage and
knowledge of it. 10
38. Officers and promoters of corporations^ The law does
not imply a promise on the part of corporations to pay their
directors, as such ; and it must appear that an express by-law or
a resolution of the board u was adopted to compensate them, be-
fore a director can recover for services as director. 12 If the com-
1 Farnsworth v. Hemmer, 1 Allen, 494 ; Raisin v. Clark, 41 Md. 168, s. c. 20 Am.
R. 66; and see Lynch v. Fallon, 11 R. I. 311, s. c. 23 Am. R. 458; and p. 298 of thia
vol.
8 Mansell v. Clements, L. R. 9 Com. PI. 139, B. c. 8 Moats Eng. R. 449.
3 Stitt v. Huidekopers, 17 Wall. 397. As to whether consummated purchase
must be shown, compare Love v. Miller, 53 Ind. 294, s. c. 21 Am. R. 192; and Rich-
ards v. Jackson, 31 Md. 250, s. c. 1 Am. R. 49.
4 Paulsen v. Dallett, 2 Daly, 40.
* Main v. Eagle, 1 E. D. Smith, 619.
6 Lyon v. Valentine, 33 Barb. 271. Compare Erben v. Lorillard, 19 N. Y. 299;
2 Keyes, 567. Contra, Elting v. Sturtevant. 41 Conn. 176.
' Main v. Eagle (above).
8 Perrine v. Hotchkiss, 58 Barb. 77.
9 Perrine v. Hotchkiss, 58 Barb. 77.
10 Weber v. Kingsland, 8 Bosw. 415.
11 Or of the corporators.
12 Rockford, Rock Island & St. Louis R. R. Co. v. Sage; 65 111. 328. s. r. 16 Am.
R. 587, and cases cited. The resolution cannot be sustained by the plaintiff's vote
or presence to make quorum. Butts v. Wood, 37 N. Y. 317, affi'g 38 Barb. 181 ; and
see Gridley v. Lafayette. <fcc. R. R. Co. 71 111. 200. The board cannot vote them-
selves extra pay for extra service. See Branch Bank v. Collins, 7 Ala. 95 ; Blatch-
ford v. Ross, 5 Abb. Pr. N. S. 434; B. r. 37 How. Pr. 110; 54 Barb. 42.
BY PERSON EMPLOYED, FOR COMPENSATION. 381
pensation is fixed by statute, a director cannot be allowed extra
compensation for extra services rendered while he was a director. 1
Otherwise, as to duties not imposed upon him as director by the
charter or by-laws of the company, where he acted not as director
but as agent, for instance, in soliciting subscriptions and procur-
ing right of way. 2 If a director is appointed by the board agent
of the corporation in such other matters, clearly beyond the range
of his duty, there is an implied promise on the part of the cor-
poration to compensate him for such services rendered; 3 but not
for services in effecting the organization, unless they were unques-
tionably beyond the range of his official duties. 4 Where the
charter provides that the president shall receive no pay for offi-
cial services unless voted him by the board, any service per-
formed by him will be presumed to .have been rendered as presi-
dent, unless from its nature it appears that it was outside the
duties of his office. 5 The rule requiring an express contract
to pay directors, made before service rendered, is applicable to the
offices of president, treasurer, and the like, who hold as trustees. 6
If the evidence of promise is oral, the admissions of the officer
that he was not to have compensation are competent against him. 7
To enable a promoter to recover against the subsequently or-
ganized corporation, it is not enough that the corporation has
accepted the result of his labors and enjoyed its benefits, unless it
appear that the projectors, by whom the services were employed,
1 Branch Bank v. Collins, 1 Ala. N. S. 95 ; The same v. Scott, Id. 107. But he
may be allowed compensation for services rendered before he became director. Ib.
2 Cheeney v. Lafayette, Bloomington A Mississippi R. R. Co. 68 111. 570, s. c. 18
Am. R. 585 ; Shackleford v. Orleans R. R. Co. 37 Miss. 202 ; Hall v. Vt. & Mass. R.
R. Co. 28 Vt. 401.
3 Shackelford v. New Orleans R. R. Co. 37 Miss. 202. Contra, New York A
New Haven R. R. Co. v. Ketchum, 27 Conn. 170, 181 ; and compare Stacy v. State
Bank of Illinois, 4 Scam. 91.
4 New York & New Haven R. R. Co. v. Ketchum, 27 Conn. 170. But compare as
to services in organization, Hall v. Vermont, Ac. R. R. Co. 28 Vt. (2 Ams.) 401 ;
Low v. Connecticut, Ac. R. R. Co. 45 N. H. 370.
* Olney v. Chadsey, 7 R. I. 224. A director elected to serve without compensa-
tion cannot recover against the company for services rendered in that capacity, or
for such as were incidental to his office as director. Loan Association v. Stonemetz,
29 Pa. St. 534. Even a resolution passed by the corporation after the services were
rendered, that they be paid for, is without consideration and cannot be enforced by ac-
tion. Ib. And to similar effect is Dunstan v. Imperial Gas Co. 3 Barn. A Ad. 125.
See also on the general subject of officers' implied contract for compensation, (besides
the cases cited in following notes): Jackson v. N. Y. Cent. R. Co. 2 Supreme Ct. (T.
A C.) 653; Henry v. Rutland A Burlington R. Co. 27 Vt. 435; Rockford, Reck Is-
land, Ac. R. Co. v. Sage, 65 111. 328; Baistow v. City R. Co. 42 Cal. 465; Godbold
V. Bank of Mobile, 11 Ala. 191; Belfast <fc County Downs R. Co. v. Belfast, Holy-
wood, Ac. R. Co., Ir. R. 3 Eq. 581. A vote of the directors during the incumbency
of one president, fixing the salary of the president, does not amount to a written
agreement to pay the same to a president subsequently elected, and any presumption
arising from it may be rebutted by evidence of the situation or cessation of business,
etc. Commonwealth Ins. Co. v. Crane, 6 Mete. 64.
8 Holder v. Lafayette, Ac. R. R. Co. 71 111. 106, s. c. 22 Am. R. 29 ; Kilpatrick r.
Penrose Ferry Co. 49 Penn. St. 118 ; and see Cheeney v. Lafayette, Ac. R. R. Co. 68
DL 570, s. o. 18 Am. R. 684.
T Commonwealth Ins. Co. v. Crane, 6 Mete. 64.
382 ACTIONS ON CONTRACTS FOR SERVICES.
on an understanding they should be paid for, were a majority of
the promoters, or that the charter had already been obtained, so
that there was an inchoate corporation. 1 If no corporation was
formed, evidence that defendant took part in the preliminary
proceedings is competent as tending to show his authority to in-
cur the necessary expenses. 2
39. Parent and child.~\ To sustain the father's action for the
child's services, general evidence that plaintiff is the father, is
prlma facie enough. He is not to be required to prove legiti-
macy in the first instance. 3 If a parent sends the child to en-
gage himself, he may recover on the terms the child made, with-
out proof that they were known to the father. 4
To entitle the child to sue, evidence that the child con-
tracted on his own account, with the knowledge and tacit assent
of the father ; 5 or that the father has been continuously absent,
without providing for the child, 6 or that the father made the con-
tract, stipulating that the wages should be paid to the child, 7 is
enough. So is evidence of express emancipation. Payment to
the child may be a defense, unless the parent gave notice. 8
40. Physicians, t&c.~\ A diploma from a medical college is
sufficiently proved by a witness who identifies the corporate seal,
and testifies to the genuineness of the signatures of the officers,
though his knowledge of their writing was not acquired by see-
ing them write, but by familiarity with diplomas under their sig-
natures, including one granted to himself. 9 Recovery for a bene-
ficial operation is not prevented by showing that it was not per-
formed with the highest skill. 10 Even if the patient is deceased,
1 Bell's Gap R. R. Co. v. Christy, 79 Penn. St. 54, s. c. 21 Am. R. 39. But com-
pare Rockford, Rock Island, <fec. R. R. Co. v. Sage, 65 111. 328, s. c. 16 Am. R. 587,
and cases cited.
2 Lake v. Duke of Argyll, 6 Q. B. 479 ; and see Ebbinghousen v. Worth, 4 Abb.
New Cos. note.
3 Haiglit v. Wright, 20 How. Pr. 91. Contra, Armstrong v. McDonald, 10 Barb.
300, clearly unsound.
4 Herderhen v. Cook, 66 Barb. 21. As to whether the declarations of the son in
such case are competent in evidence to prove the terms of the contract, compare
Corbin v. Adams, 6 Cush. 93, and p. 177, of this vol.
8 Armstrong v. McDonald, 10 Barb. 300.
6 Canovar v. Cooper, 3 Barb. 115.
7 Snedeker v. Everingham, 27 N. J. L. (3 Dutch.) 143, 148. Compare Brown v.
Town of Canton, 49 N. Y. 632, rev"g 4 Lans. 409 ; Atwood v. Holcomb, 39 Conn.
270, a. c. 12 Am. Rep. 386. As to service under void indentures, compare Letts v.
Brooks, Hill A D. Supp. 36, and Lewis v. Trickey, 20 Barb. 387.
8 Herrick v. Fritcher, 47 Barb. 589 -, N. Y. L. 1850, c. 266; Clinton v. Rowland,
24 Barb. 634.
9 Finch v. Gridley, 25 "Wend. 469. For other rules, as to corporate acts, see p.
46, <fec., of this vol., and compare Hunter v. Blount, 27 Geo. 76. As to evidence of
employment, see Crane v. Baudoine, 55 N. Y. 256, rev'g 65 Barb. 260; Cooper v.
N. Y. Central <fe Hudson River R. R. Co. 6 Hun, 276; Mundorf v. Wickersham, 63
Penn. St. 87, s. c. 3 Am. R. 531 ; M'Bride's Ex'x v. Watts, 1 M'Cord, 384.
10 Alder v. Buckley, 1 Swan (Tenn.) 69 ; and see 3 Abb. New Cas. 229. General
professional character not in issue. Jeffries v. Harris, 3 Hawks (No. Cas.) 105. As
BY PERSON EMPLOYED, FOR COMPENSATION. 383
the burden of proof is on his executor or administrator, to show
that services proved to have been rendered, were gratuitous, if
that be relied on. 1
41. Rewards.] The printed advertisement is competent
upon adducing evidence tending to show that it was published
by authority of defendant, or his agent. 2 Oral evidence is ad-
missible to show that an ambiguous offer of reward relating to a
class of crimes, was not retrospective. 3 Plaintiff must show that
performance, on his part, was in consideration of the offer. 4 He
cannot recover if he acted in ignorance of it. 5 But notice to de-
fendant that he was acting on the offer, is not necessary. 6 If the
reward was offered for two results, such as apprehension and con-
viction, 7 or apprehension and recovery of stolen property, 8 both,
must be shown. On a reward for a detection or conviction, &c.,
the record of a conviction of an offender is competent, 9 but not
conclusive, 10 evidence of his guilt, as against the offerer. If con-
viction was prevented by dismissal of the charge procured by the
offerer, plaintiff may still recover, as if he proved conviction ; and
if the dismissal was procured by the attorney of the offerer, for
the purpose of using the testimony of the accused, it may be in-
ferred, in the absence of evidence, that the attorney acted within
his authority. 11
Evidence that the offer was publicly withdrawn before
plaintiff acted on it, is competent, and is a defense, although
plaintiff acted in ignorance of the withdrawal. 12
to declining to answer respecting secret processes, compare Naumon v. Zoerklaut, 21
Wise. 466; Richards v. Judd, 15 Abb. Pr. N. S. 184.
1 Scott's Case, 1 Redf. Surr. R. 234, 237.
9 Lee v. Flemingsburg, 7 Dana (Ky.) 28; see, also, p. 96, of this vol.
3 Salbadore v. Crescent Mut. Ins. Co. 22 La. Ann. 338.
4 Lee v. Flemingsburgh (above), and see Marvin v. Treat, 31 Conn. 96, s. o. 9
Am. R. 307.
6 Howland v. Lounds, 51 N. Y. 604. And if the offer is for apprehension and
conviction of the offender, one who procured apprehension before he knew of the of-
fer, cannot recover on proof of a subsequent conviction, even though after he became
aware of the offer he aided the conviction ; for both apprehension and conviction
must be aided, in consequence of such a reioard, to entitle the party to claim it. Fitch
v. Snedaker, 38 N. Y. 248. Compare Gregg v. Pierce, 53 Barb. 387. As to appor-
tionment of reward, see Janvrin v. Town of Exeter, 48 N. H. 83, s. c. 2 Am. R. 185;
City Bank v. Bangs, 2 Edw. 95; Fargo v. Arthur, 43 How. Pr. 193; Prentisa v.
Farnham, 22 Barb. 619.
* Baker v. Hoag, 7 Barb. 113 ; Hayden v. Songer, Ind. May, 1877.
7 Fitch v. Snedaker (above).
8 Jones v. Phoenix Bank, 8 N. Y. 228.
9 Borough of York v. Forscht, ?3 Penn. St. 391.
10 Mead v. City of Boston, 3 Cnsh. 404. It has been held that on an offer for detec-
tion of a thief, evidence that defendant, on plaintiff's information, caused a person to
be arrested on the charge, may be prima facie sufficient. Brennsn v. Haff, 1 Hilt.
511.
11 Louisville & Nashville R. R. Co. v. Goodnight, 10 Bush, 562, s. o. 19 Am. R. 80.
18 Shuey v. United States, 92 U. S. (2 Otto), 73.
384 ACTIONS ON CONTRACTS FOR SERVICES.
III. ACTIONS FOR WRONGFUL DISMISSAL, or KEFUSAL TO RECEIVE.
42. Dismissal or refusal.'] On the question whether an em-
ploye was discharged, the declarations of a party, made in con-
tinuation of the transaction, may be competent as part of the res
gestce / * but evidence of subsequent instructions never communi-
cated to the employe, is not. 8 Under a contract for future em-
ployment, evidence that on the arrival of the time for commen-
cing service the employe was ready and willing (and offered, if
necessary), to perform, and that the employer absolutely re-
pudiated the contract, is sufficient without proof that the plaint-
iff thereafter tendered service, or kept himself in readiness to per-
form; 8 and the damages are primafacie the wages for the entire
term. 4 In showing the probable compensation for a voyage,
where the amount was contingent, testimony of experts to the
average results of similar voyages, is competent; and the ac-
counts of such voyages need not be produced. 5
43. Defenses^ Misconduct known at the time of discharge
may be proven, though committed some time before the dis-
charge, and though no cause was assigned for the discharge. 8
Evidence of total incapacity for service (if pleaded), is competent
in defense of an action for discharging plaintiff without the
length of notice to terminate the contract provided for by its
terms. 7
1 Thus, where the owner went on board the ship and took away the ship's papers,
evidence that, on immediately depositing them with a third person, he indicated dis-
missal to be the reason, brings the words within the rule of the res gestce. Russell v.
Frisbie, 19 Conn. 205.
2 Carrig v. Oaks, 110 Mass. 146.
3 Howard v. Daly, 61 N. Y. 362 ; and see Dngan v. Anderson, 36 Md. 667, 8. c.
11 Am. R. 609. Compare Colbnrn v. Woodworth, 31 Barb. 381. It is the better
opinion that a repudiation of the contract before the time for commencing will be a
breach, if the employer also put it out of his power to perform ; or if the avowal was
intended to and did influence the conduct of the employe to his damage ; see, also,
Gray v. Green, 9 Hun, 334.
* Howard v. Daly (above). Whether plaintiff must prove that he sought employ-
ment elsewhere, compare Id. and Polk v. Daly, 14 Abb. Pr. N. S. 156 ; Moody v.
Leverich, Id. 145; Farrellv. French, Blatchf & H. 275; Id. 366.
8 Eldredge v. Smith, 13 Allen, 140.
Harrington v. First Nat. Bank of Chittenango, 1 Supm. Ct. (T. & C.) 361. Com-
pare Spotswood v. Barren, 6 Exch. 110. If the contract reserved absolute right to
dismiss, assigning a false reason is not material. Smith v. Douglass, 4 Daly, 191.
T Lyon v. Pollard, 20 Wall. 403. Inability resulting from sickness, while it may
not render the employe liable, may prevent him from sustaining an action for dismis-
sal. Poussard v. Spiers, 1 Queen's Bench Div. 410, 8. c. 17 Moak's Eng. 93.
CHAPTER XX.
ACTIONS ON VARIOUS EXPRESS PROMISES TO PAY MONET.
1. General principles. 4. Promise to third person to pay
2. Promise to pay purchase-money. plaintiff.
3. incumbrance. 5. Promise to plaintiff to pay third
person.
1. General principles.'] The rules applicable to oral con-
tracts generally are illustrated in chapters XIII to XX ; those
applicable to unsealed writings in chapters XVI to XXVI ; and
those applicable to sealed and witnessed instruments in chapter
XXVII.
2. Promise to pay purchase-money. ~\ The original contract,
and delivery and acceptance of deed having been proved, evi-
dence of express promise to pay balance is not necessary. 1 Con-
versely if an express and unconditional obligation to pay is
proved, as, for instance, notes given for purchase-money,
plaintiff need not prove the conveyance. 2 Parol evidence is ad-
missible to show the amount agreed to be paid, 3 and the time, 4 and
its non-payment, 5 notwithstanding an acknowledgment in the
deed of the payment of a different or less 6 consideration in full.
A covenant purporting to bind the grantee will sustain an
action against him, although he did not sign, if there be evidence
of his acceptance of the deed. 7
Declarations of the grantor that a specified sum was due, are
competent against him to show that no more was due; 8 but are
not competent in his own favor, even though made at execution,
unless brought home to the grantee or plaintiff. 9
3. incumbrance.'] Plaintiff may show that, as a condition
of delivery or acceptance of a deed without covenants, defendant
orally promised to pay an incumbrance. 10 Otherwise if the-
promise was only for the consideration mentioned in the deed
and the deed contains special covenants, and the incumbrance
was not created by the party. 11
1 Vernol v. Vernol, 63 N. Y. 45. Compare Huffman v. Ackley, 84 Mo. 277.
8 Lyman v. United States Bank, 12 How. (U. S.) 225.
3 Bowen v. Bell. 20 Johns. 338 ; McCrea v. Purmort, 16 Wend. 460, anTg 5 Paige,
620, and see 16 N. Y. 538.
4 Shepard v. Little, 14 Johns. 210.
6 Same cases.
6 Murray v. Smith, 1 Duer, 412; Strawbridge v. Cartledge, Y Watts & S. 894.
7 Atlantic Dock Co. v. Leuvitt, 54 N. Y. 35.
8 Reed v. Reed, 12 Penn. St. 117.
9 Trimmer v. Trimmer, 18 Hun, 182.
10 Remington v. Palmer, 62 N. Y. 31, rev'g 1 Hun, 619, s, c. 4 Supm. Ct. (T. <fe
C.) 696. And see 12 Moak's Eng. 243, n.
' Howe v. Walker, 4 Gray, 318 ; 1 Greenl. Ev. 13 ed. 827, n. ; 2 Whart Ev. 1014.
25 [335]
386 ACTIONS ON EXPRESS PROMISES TO PAT.
4. Promise to third person to pay plaintiff ;] A promise on
a valid consideration, to pay a third person, 1 will sustain an action
by the latter in his own name, though he was not privy to the
consideration. 2 The promise may be implied from the acceptance
of a conveyance expressed to be subject to the payment of a
specified incumbrance, 8 or a specified sum. 4 If in writing, the
instrument must be produced, or accounted for. 5 If the language
of the promise is indefinite or ambiguous, as, for instance, to
pay " your account with A.," it may be explained by parol evi-
dence, to show whether a past or future account was intended. 6
Proof of the statement of the third person, at the time of
incurring the debt, is sufficient evidence of his indebtedness to the
plaintiff. 7 A judgment upon the merits recovered against the
third person, even after the promise, in an action fully litigated
and deliberately and intelligently decided by a competent court,
is prima facie, and usually conclusive, evidence, against the prom-
issor, of the amount of the debt, unless fraud or collusion is
shown. 8 If the precise obligation incurred is identified by the
promise, as in case of a covenant to pay a designated mortgage,
the defendant cannot question the existence ancl validity of the
obligation, but may show that it has been paid. 9 It is not neces-
sary to prove the concurrence or assent of other beneficiaries, 10
unless the contract requires it. But revocation by the promisee,
before assent by the plaintiff, will bar the action. 11 Oral evidence
that the promisor was agent for the creditor is not competent as
between them, to exonerate the promisor from liability, unless the
face of the instrument bears some indication of the agency. 12
5. Promise to plaintiff to pay third personj] Upon a prom-
ise to plaintiff to pay a third person, plaintiff need not show that
he has paid the debt. 13
1 As distinguished from a bond conditioned for such payment. Turk v. Ridge,
41 N. Y. 201.
* Lawrence v. Fox, 20 N. Y. 268 ; Hutchings v. Miner, 46 Td. 456 ; Hall v. Rob
bins, 61 Barb. 33, s. c. 4 Lans. 463 ; Barlow v. Myers, 64 N. Y. 41, rev'g 8 Hun, 270;
Hendrick v. Lindsay, 93 U. S. (3 Otto), 143 ; and cas?s collected in 2 Abb. N. Y. Dig.
New ed. 170, 174 ; 5 Id. 289. Contra, except in cases of trust, agency, <fcc., Exch.
Bk. of St. Louis v. Rice, 107 Mass. 37, s. o. 9 Am. R. 1.
8 Collins v. Rowe, 1 Abb. New Cas. 97, and cases cited. For the theories sus-
taining this implication, see note in Binsse v. Paige, 1 Abb. Ct. App. Dec. 138.
4 Dingeldein v. Third Ave. R. R. Co. 37 N. Y. 575, reVg 9 Bosw. 79.
6 Hatch v. Pryor, 2 Abb. Ct. App. Dec. 343.
6 Wallrath v. Thompson, 4 Hill, 200.
T Lawrence v. Fox, 20 N. Y. 268. And see Draper v. Austin, 46 Vt. 215; and
page 260 of this vol.
8 See Luddington's Petition, B Abb. New Cas. 307, and cases cited.
9 Hartley v. Tatham, 2 Abb. Ct. App. Dec. 339 ; and see Ritter v. Phillips, 53 N.
Y. 586, affi'g 34 Super. Ct. (J. <fe S.) 289; 35 Id. 388.
10 Seaman v. Hasbrouck, 35 Barb. 151.
11 Kelly v. Roberts, 40 N. Y. 432 ; 16 Alb. L. J. 378; and see Devlin v. Murphy,
6 Abb. New Cas. 242.
14 Auburn City Bank v. Leonard, 40 Barb. 119.
18 Stout v. Folger, 34 Iowa, 71, s. c. 11 Am. R. 138 ; Furnas v. Durgin, 119 Mass.
600, s. c. 20 Am. R. 841 ; 15 Alb. L. J. 424. Otherwise if the promise was only to
indemnify.
CHAPTER XXL
ACTIONS ON NEGOTIABLE PAPER.
I. RULES APPLICABLE TO NEGOTIABLE PAPEB I. RULES APPLICABLE TO, GENERALLT COW.
GENERALLY. Unued.
1. General order of proof. 44. Particular fund ; agreement to
2. Production. set-off; to renew.
8. Lost or destroyed paper. 45. Subsequent modification.
4. Proof of execution. 46. Indorsement.
6. Admissions. 47. Oral evidence to vary an indorse-
6. Testimony of the supposed ment.
writer. 48. Indorsement as a transfer of title.
7. Direct testimony to signature. 49. Demand.
8. Witness who knows the hand- 60. Non-payment.
writing generally. 61. Indorsements of payment, <fcc.
9. Means of knowledge. 62. Competency of a party to the in-
10. Opinion or belief. strument to impeach it. The
11. Refreshing memory. New York rule.
12. Testing the witness. 63. the United States Court rule.
13. Comparison of handa. 64. Admissions and declarations.
14. Opinions of witnesses. 65. Foreign law.
15. Matters of description.
16. Qualifications of witness. II. ACTION BY PAYEE (OR ORIGINAL "BEAR-
17. Photographs. . ER ") AGAINST MAKER.
18. Mark. 56. Plaintiff's case.
19. Identity of names.
20. Fictitious person. III. ACTION AGAINST ACCEPTOR.
21. Joint makers, <fcc. 67. Acceptance.
22. Married woman. 58. Other facts.
23. Agent's signature. 69. Promise to accept.
24. Partnership signature. 60. Several parts, or duplicates.
25. Corporation paper.
26. Oral evidence to show real patty. IV. ACTION AGAINST DRAWER ; ON NOM-
27. Evidences of title. ACCEPTANCE.
28. Delivery. 61. Refusal to accept.
29. Consideration. 62. Excuse for non-presentment.
80. Accommodation paper.
81. Alterations. V. ACTION AGAINST DRAWER, .Ac. ; OK
82. how pleaded. NON-PAYMENT.
83. mode of proof. 63. Acceptance and presentment.
84. Blanks.
35. Marks of cancellation. VI. ACTION AGAINST INDORSERS, <tc.
86. General rule as to oral evidence 64. Execution of the instrument.
to vary. 65. Pleading facts to charge indoreer-
37. Date. 66. Cogency of the evidence.
88. Time of payment. 67. Time of demand.
89. Amount. ' 68. Place.
40. Medium. 69. Authority.
41. Interest. 70. Identity of maker or drawee, and
42. Place of payment. authority of agent or servant.
43. Defeasance. 71. Production of the instrument.
[387]
388
ACTIONS ON NEGOTIABLE PAPER.
VI. AcrroN AGAINST iNDORSERs continued.
72. Due diligence in demand.
78. Official protest as evidence.
74. Sealed certificate.
75. Unsealed certificate.
76. Copy.
77. Secondary evidence.
78. Memoranda to refresh memory.
79. Memoranda of deceased person.
80. Legal notice to charge indorser.
81. Identity of person served.
82. Executors and administrators.
83. Time of service.
84. Actual notice.
85. Due diligence by the holder.
86. Place of directing notice.
87. Due diligence in inquiry.
88. Evidence of the contents of the
notice.
89. Extrinsic evidence as to imper-
fect notice.
90. Mailing.
91. Inference of delivery or mailing
from ordinary course of busi-
ness.
92. Admissions of demand made and
notice received.
93. Indirect evidence of notice.
94. Waiver of demand or notice.
95. Want of funds as an excuse.
VIL IRREGULAR INDORSEMENT (BY THIRD
PERSON BEFORE PAYEE).
96. Payee against irregular indorser.
New York doctrine.
97. Defenses.
98. Subsequent transferee against ir-
regular indorsee.
99. The United States Court doc-
trine.
100. Oral evidence to vary the ascer-
tained contract.
VIII. DEFENSES GENERALLY.
/ 101. Defenses available against all
holders, whether bona fide or
otherwise.
102. Failure or want of consideration.
103. Accommodation paper.
104. Fraud.
105. Duress.
106. Impeaching plaintiff's title.
107. Collateral security.
108. Transfer after maturity.
VIII. DEFENSES GENERALLY continued.
109. Suretyship, and dealing with
principal.
110. Payment.
111. Qualifying agreement.
IX. DEFENDANT'S EVIDENCE TO REQUIRE
PLAINTIFF TO PROVE TITLE AS A
BONA FIDE HOLDER FOR VALUE BE-
FORE MATURITY.
112. The general rule.
113. Failure or want of consideration.
X. PLAINTIFF'S EVIDENCE OF TITLB AS
HOLDER FOR VALUE BEFORE MA-
TURITY.
114. Burden of proof.
115. Evidence that transfer was be-
fore maturity.
116. and before notice.
117. and for value.
118. Evidence of good faith.
119. " Taking up."
XI. DEFENDANT'S EVIDENCE THAT PLAINTWF
18 NOT A HOLDER IN GOOD FAITH.
120. Bad faith.
121. Notice.
122. Negligence.
XII. ACTION ON MUNICIPAL AND OTHER
COUPON BONDS.
123. Title.
124. Evidence of regularity and
power.
125. Notice of defect, <fcc.
XIII. BANK CHECKS.
126. Stamp.
127. Title.
128. Oral evidence to vary.
129. Laches.
130. Action against drawer.
131. Action against the bank.
XIV. ACTION ON STOCK AND PREMIUM NOTES
GIVEN TO INSURANCE COMPANIES.
. 132. Stock notes.
133. Premium notes.
134. Losses and assessments.
135. Defenses.
RULES APPLICABLE GENERALLY. 389
I. RULES APPLICABLE TO NEGOTIABLE PAPEB GENERALLY.
1. General order of proof.'] In all classes of cases the usual
order of proof * is, for plaintiff ;
1. To produce the paper sued on ;
2. If execution be not admitted, to prove the signatures, and
the necessary indorsements, if any ;
3. To give such extrinsic evidence, if any, as may be neces-
sary to explain the paper. If the action is against an indorser,
or against a drawer of a bill, plaintiff will go on ;
4. To prove presentment, and demand and dishonor (and, if
necessary, protest), or circumstances to excuse these ; and
5. Notice of dishonor, &c., to the indorser, or circumstances
to excuse it.
The possession and proof of execution, &c., raise a legal pre-
sumption of consideration, and of title in plaintiff by a transfer
before maturity in good faith and for value. 2 If plaintiff was not
an original party to the paper, evidence of certain infirmities ^be-
low stated), will throw on him the burden of. affirmative proof of
title before maturity and for value ; and this having been given,
defendant may then prove that, nevertheless, plaintiff had notice
of the infirmity. Though defendant be not able to prove such in-
firmity in the inception of the paper as will cast this burden on
plaintiff, he may show that plaintiff was not a Ijonafide holder for
value, before maturity ; an&prima facie evidence to negative either
of these elements in plaintiff's title will let in evidence of any
equity in favor of defendant that would be available against the
original payee, if properly pleaded. As the mode of proof of
some of the facts thus involved is common to actions of a great
variety of classes, the most useful method will be to state first
those rules applicable in actions of several classes, and afterward
those peculiar to actions by Payee against Maker, Indorsee against
Indorser, and the like.
2. Production.'] If the making or contents of the paper are
in issue, the paper must be produced, 3 or its absence accounted
for. 4 It is not an excuse to show that the paper is without the
jurisdiction, 'and in the possession of an adverse claimant by de-
fective title. 5 Defendant does not waive non-production of a ne-
gotiable note by going into evidence on the merits. 6 Production
at the trial is enough, although the paper had been previously
1 See paragraphs 112 and 1 1 3, below, and Michigan Bank v. Eldred, 9 "Wall. 548 ;
and paragraphs 114118, below.
8 See paragraphs 27, 46, 97,103, 112, 1 23 and 127, below, and Chambers Conntyr.
Clews, 21 Wall. 317.
3 Potter v. Earnst, 51 Ind. 384.
4 By the English rule, even when not in issue, interest is not recoverable without
production. Hutton v. Ward, 15 Q. B. 26 ; L. J. 19 Q. B. 293 ; Rose. N. P. 350.
6 Van Alstyne v. Commercial Bank, 4 Abb. Ct. App. Dec. 452.
' Kirby v. feisson, 2 Wend. 550.
390 ACTIONS ON NEGOTIABLE PAPER.
lost, if no objection was made to, and no prejudice suffered by,
demand and notice while lost. 1
If the paper was intentionally destroyed by plaintiff himself,
he must give a satisfactory explanation preliminary to secondary
evidence. If plaintiff's pleading and evidence trace the note into
defendant's possession, the action itself is sufficient notice to pro-
duce it, to allow secondary evidence of its contents, 8 and of its
indorsements of whatever kind, 4 if he does not produce it.
A statute excusing proof of execution unless there is a sworn
denial of signature, does not dispense with production of the note. 5
A rule of court excusing plaintiff from proving execution, if de-
fendant omits to file an affidavit denying it, means only actual
making and delivery of the paper, not its validity, and only en-
ables plaintiff to make out a prima facie case, not a conclusive
one. 6 If execution is admitted, the existence of the instrument
is proved by its production and evidence of identity.
3. Lost or destroyed paper '.] The loss or destruction need not
be alleged in. the complaint. 7 The question whether the evidence
of loss or destruction is sufficient to admit secondary evidence is
for the court, not the jury. 8 Positive and unequivocal evidence
is not essential. 9 Parol evidence of the contents of a lost note or
bill is admissible ; 10 but the court are to require indemnity, if it
was negotiable. 11 To entitle to indemnity, there must be some
evidence that the paper was negotiable ; M but there need not now
be evidence that it was indorsed or payable to bearer. The stat-
ute 13 requires indemnity, though unindorsed. 14 It is not necessary
to prove tender of indemnity before trial, 15 except for the purpose
of recovering interest where the party was not in default with-
1 Smith v. Rockwell, 2 Hill, 482.
s Blade v. Noland, 12 Wend. 173; and see Steele v. Lord, 70 N. Y. 283. Com-
pare Vanauken v. Hornbeck, 2 Green (N. J.) 178.
3 Hammond v. Hopping, 13 Wend. 605.
4 Howell v. Huyck, 2 Abb. Ct. App. Dec. 425. It may be proved by a witness
testifying that he has seen the note in defendant's possession, and that he knows the
signature to be genuine. Prescott v. Ward, 10 Allen, 203.
s Sebree v. Dorr, 9 Wheat. 681.
6 Freeman v. Ellison, 37 Mich. 459, s. c. 18 Alb. L. J. 210.
7 Rcnner v. Bank of Columbia, 9 Wheat. 581.
8 Page v. Page, 15 Pick. 374. Whether the loss was by destruction, so that in-
demnity is dispensed with, may be a question for the jury. Swift v. Stevens, 8
Conn. 436.
9 Swift v. Stevens (above) ; see, also, 3 Abb. N. Y. Dig. new ed. 64-67.
10 2 N. Y. R. S. 406, 75. Even though lost since the commencement of the suit.
Jacks v. Darrin, 1 Abb. Pr. 148, s. c. 8 E. D. Smith, 548. For the conflicting rules,
where no such statute exists, see 2 Pars, on Pr. N. <fec. 290, <fec. Being beyond the
jurisdiction, and adversely held, is not a loss. Van Alstyne v. Commercial Bank, 4
Abb. Ct. App. Dec. 449.
11 Same statute.
18 Blade v. Noland, 12 Wend. 173, and see Wright v. Wright, 54 N. Y. 441.
13 2 N. Y. R. S. 406, 75, 76.
14 Frank v. Wessels, 64 N. Y. 158. Compare 2 Pars, on Pr. N. <tc. 290.
15 Frank v. Wessels, 64 N. Y. 158, 159.
RULES APPLICABLE GENERALLY. 391
ont it, and, in some cases, costs. 1 Proof of actual destruction,
whether accidental 2 or explained, dispenses with indemnity.
Proving loss or destruction does not dispense with proof of
the execution and identity of the original. A sworn copy, given
in evidence, excludes parol evidence to vary the contract, as would
the original. 3 But it is not necessary to prove the original consid-
eration, nor non-payment, merely because of loss or destruction.
4. Proof of execution^ The signature of the party to be
charged, if execution is not admitted, must be proved, before the
note can be put in evidence. 5 The signer, though competent and
available as a witness, need not be called. 6 Proof of signature
is prima facie sufficient, without other proof of genuineness. 7
But if there was a subscribing witness, he must be called, 8 or
his absence accounted for by showing that he is not living, 9 or not
competent to testify, or not within the jurisdiction of the court,
or not to be found with due diligence ; and where his absence is
thus excused, his handwriting must be proved. If there are sev-
eral subscribing witnesses, it is sufficient to produce either who
can prove the note ; but the absence of all must be accounted for
before the note can be proved by the handwriting of either. 10 The
fact that the execution was abroad raises a presumption that the
subscribing witness is beyond jurisdiction. 11 Plaintiff may prove
that a name written at the left hand, in the place usual for the
signature of a subscribing witness (though without a prefix indi-
cating that it was a witness's signature), was, in fact, the signature
of a maker. 12 If the subscribing witness leaves the question of
execution in doubt, 13 other evidence of execution becomes admis-
sible. A note bearing a seal is admissible under a complaint not
1 2 Pars, on Pr. N. fec. 302.
8 Des Arts v. Leggett, 16 N. Y. 586, 688.
I Reed v. United States Express Co. 48 N". Y. 462.
4 Or, if execution is denied on oath, where that is required by tha statute.
Holmes v. Riley, 14 Kans. 131.
8 Id.
Smith v. Prescott, 17 Me. 277.
1 St. John y. Am. Mut. Life Ins. Co. 2 Duer, 412 ; and see Irvine v. Lumberman's
Bank, 2 Watts & S. 190. The fact that the handwriting in the body of a check was
not that of the drawer, raises no presumption that the check was not genuine, es-
pecially where there is evidence that the usage of the drawer was to have his checks
filled up by a clerk or book-keeper. Redington v. Woods, 45 CaL 406, s. o. 13 Am. R.
190.
8 3 Abb. N. Y. Dig. new ed. 133; 2 Pars, on Prom. N. & B. 474. The fact that
the maker is non-competent does not dispense with the necessity.
9 Or, unless plaintiff can prove an admission. See paragraph 5.
10 3 Abb. N. Y. Dig. new ed. 134, 135.
II Savage v. D'Wolf, 1 Blatchf. 343.
1S Rape v. Westcott, 18 N. J. L. (3 Harr.) 245. So he might show that a signa-
ture appearing to be that of a witness was a fictitious one, or a subsequent memoran-
dum for purposes of identification, or an unauthorized addition. Id. Per HORN-
BLOWER, C. J.
13 Either by imperfect recollection ; Quimby v. Buzzell, 1 6 Me. 470 ; or by deny-
ing all knowledge of tha matter. Talbot v. Hobson, 7 Taunt. 264.
392 ACTIONS ON NEGOTIABLE PAPER.
alleging that it was sealed j 1 and if the words of the instrument
refer to a seal, or make no reference to mode of authentication,
the presumption is that the seal was duly affixed ; 2 but, if the
words of the note refer to signing only, as " witness my hand
this," fec., a seal if affixed should be proved as well as the signa-
ture. 3
5. Admissions.'] The admission of defendant, 4 or his attorney
in the cause, 5 is competent proof of the genuineness of the signa-
ture. But the evidence must tend to identify the note admitted
with that produced. If the note was shown when the admission
was made, a very general admission that it is all right, is enough ; 6
if not shown, an admission referring to it either by the amount
alone, 7 or by the name of the payee alone, 8 is not enough. If
only a copy was shown there must be other evidence that the note
produced on the trial is the original and genuine one. 9
If the note is not under seal, proof of an admission by the
signer of its genuineness, dispenses with the necessity of calling a
subscribing witness. 10 If under seal it does not. 11
The admission alone is not conclusive ; n but if made deliber-
ately, and with knowledge that the signature was not genuine, it
may be available as a ratification, even though the facts do not
raise an estoppel. 13 Evidence that defendant accredited the paper
by acknowledging it to be genuine, and that plaintiff acted, 1 * or
refrained from acting, 15 on the faith of such representation, estops
defendant from denying the genuineness. Evidence that defend-
ant had previously recognized the validity of similar unauthor-
ized signatures, with knowledge that they were such, is compe-
tent, as tending to show authority in the one who assumed to
sign. 16
6. Testimony of the supposed writer.'] One cannot be required
to testify whether a signature is his until he has been shown the
1 ParMson v. McKim, Burn. (Wis.) 63. Contra, Heifer v. Alden, 3 Minn. 332.
* Merritt v. Cornell, 1 E. D. Smith, 335 ; Muckleroy v. Bethany, 27 Tex. 551.
8 Merritt v. Cornell (above).
4 Though made pending negotiation for compromise. Waldridge v. Kennison, 1
Esp. 143.
6 Giving notice to produce a bill describing it as signed by the party is an admis-
sion of signature. Steph. Ev. 26.
6 Suydam v. Coombe, 3 Green (N. J. L.) 133.
I Palmer v. Manning, 4 Den. 131.
8 Shaver v. Ehle, 16 Johns. 201. Compare Minard v. Mead, 7 Wend. 68.
" Pentz v. Winterbottom, 5 Den. 61.
10 Hall v. Phelps, 2 Johns. 451.
II Holland v. Sebring, 1 South (4 N. J. L.) 105. Contra, Stark. Ev. 606.
12 Salem Bank v. Gloucester Bank, 17 Mass. 1, 27.
13 Hefner v. Vandolah, 62 111. 483, s. c. 14 Am. R. 106.
* M Kosc. N. P. 859, citing Leach v. Buchanan, 4 Esp. 226.
15 Casco Bank v. Kcene, 53 Me. 103.
16 Hammond v. Varian, 64 N. Y. 898. Whether it is conclusive, without showing
plaintiff's reliance on the recognition, compare Weed v. Carpenter, 4 Wend. 219, and
Morris v. Bethel, L. R. 5 C. P. 47 ; 4 Id. 765.
RULES APPLICABLE GENERALLY. 393
body of the paper itself. 1 The party 2 or a witness 3 who has tes-
tified as to whether a signature is nis own, is not entitled, and
cannot be required to write in court as a test; 4 but it is not
error to permit him to do so by consent. 5 He may be asked if
the body of the note is in his handwriting. 6
The testimony of the writer, though he be in court and com-
petent, is not exclusively the primary evidence. Other modes of
proof, below stated, may be resorted to without calling him. 7
The testimony of the party is not a substitute for calling a sub-
scribing witness, if there be one.
7. Direct testimony to Particular Signature.'] A witness
may testify positively, in the first instance, that he knows the sig-
nature shown him to be that of the defendant, 8 and without stat-
ing in the first instance his means of knowledge. It is for the
opposite party to ascertain by cross-examination, now he acquired
his knowledge. 9
8. Witness who knows the Handwriting generally^ If the
witness cannot swear thus positively to the particular signature,
he is incompetent to prove the signature without proof of hav-
ing seen the person write, or of other circumstances to show
knowledge of the handwriting which he is called to prove. 10 Such
a witness therefore should be asked first if he " knows " the
handwriting of the defendant, or if he is " acquainted " with it,
or questions to that effect ; and next should be asked to state
his means of knowledge ; n and then, whether the signature is
that of the party ; * or whether he believes it to be. Tlie opinion
or belief of the witness should be excluded, unless foundation is
N. Am. Fire Ins. Co. v. Throop, 22 Mich. 161. But on cross-examination it is in
the discretion of the Court to allow this. Hardy v. Norton, 66 Barb. 527.
8 King v. Donahue, 110 Mass. 155, 8. c. 14 Am. R. 589.
Hutchin's Case, 4 City H. Rec. 119.
4 Gilbert v. Simpson, 6 Daly, 29. Compare Chandler v. Le Baron, 45 Me. 534.
5 Hayes v. Adams, 2 Suprn. Ct. (T. fe C.) 593.
6 Haughey v. Wright, 12 Hun, 179. Especially if the terms of the note are in
controversy. Id.
7 Edw. Notes to 2 Cow. <fc H. 507, and auth. cit. ; s. P. An indictment for forgery.
Foulker's case, 2 Rob. (Va.) 836.
Whittier v. Gould, 8 Watts (Penn.) 485; Goodhue v. Bartlett, 5 McLean, 186;
contra, Slaymaker v. Wilson, 1 Penr. <fc W. 216.
9 Whittier v. Gould ; Goodhue T. Bartlett (above).
10 The rule in Slaymaker v. Wilson (above), to the effect that means of knowledge
must be shown in the first instance, is a sound rule for cases where the witness testi-
fies to his opinion from his knowledge of the party's handwriting as distinguished
from testifying directly to the genuineness of the signature from his knowledge of
the particular instrument; and this accords with the general principle as to opinion
evidence. But Moody v. Rowell, 17 Pick 490, admits the testimony in both cases,
leaving the means of opinion to cross-examination.
11 Pate v. People, 8 111. 644, 660. Even though he have apparent means of knowl-
edge, he is not competent if he can only say he rather thinks he could tell the hand-
writing. Burnhaiu v. Ayer, 36 N. H. 182.
894: ACTIONS ON NEGOTIABLE PAPER.
thns first laid. 1 The adverse party may interpose by cross-exam-
ination on this as a preliminary question ; 2 and it is for the judge
to pass on the competency of the witness to express an opinion
or belief.
9. Means of knowledge.'] There is no precise standard fixing
the degree of knowledge necessary. 3 The question of qualifica-
tion depends rather on the source of knowledge than its degree. 4
It is sufficient for the purpose if it appear either : 6
1. That the witness has seen defendant write at least once ; 6
or,
2. That he has seen writings which defendant either directly, 7
or indirectly, acknowledged to be in his handwriting as, for in-
stance, a note which the defendant paid ; 8 or,
3. That he has received letters, or other documents, purport-
ing to be written or signed by the defendant, in answer to com-
munications 9 written by himself, or under his authority, and ad-
dressed to defendant, and has acted on them as such ; 10 or, if the
1 McCracken v. West, 17 Ohio, 16. The better opinion is, that if no objection is
made to the qualification of the witness, the omission to show the source of his knowl-
edge is waived.
4 See Henderson v. Bank, 11 Ala. 855 ; Barnich v. Wood, 3 Jones (N. C.) L. 306,
310; Moody v. Rowell, 17 Pick. 490.
3 Hartung v. People, 4 Park. Cr. 319, 324.
4 Smith v. "Walton, 8 Gill (Md.) 77.
5 There is no good reason, says Davis, J., for excluding testimony founded on any
other mode of. getting knowledge of handwriting, if the court, on the preliminary
examination, can see that the witness has that degree of knowledge which will enable
him to judge. Rogers v. Ritter, 12 Wall. 317.
6 Magee v. Osborn, 32 N. Y. 669, reVg 1 Rob. 689 ; Hammond v. Yarian, 54 N.
Y. 398; Smith v. Walton, 8 Gill (Md.)77; Edelen v. Gough, Id. 87; Rideout v.
Newton, 17 N. H. 71. Having seen him sign by initials was held sufficient, where
the belief in genuineness depended on their form. Jackson v. Van Dusen, 5 Johns.
144. The testimony is not incompetent because he only saw defendant write many
years ago, R. v. Hornstooke, 25 St. Tr. 71, cited in Steph. Ev. 58; or since the date
of the disputed signature, Keith v. Lathrop, 10 Gush. 453; but if only since the con-
troversy arose it is insufficient, if not incompetent. Utica Ins. Co. v. Badget, 3
Wend. 102. But seeing defendant in the aot of writing is not enough, if there was
no- inspection of what he wrote. See Brigham v. Peters, 1 Gray, 139. The fact that
the witness is not absolutely positive of the identity of the defendant with the person
whom he saw write, does not render his testimony incompetent. See Woodford v.
McCluahan, 9 111. 85 ; Warren v. Anderson, 8 Scott, 384.
7 State v. Spence, 2 Harr. (Del.) 348.
8 Johnson v. Daverne, 19 Johns. 134; Hammond v. Varian, 54 N. Y. 398; and
see Hess v. State, 5 Ohio, 5 ; State v. Cheek, 13 Ired. L. (N. C.) 114, 120.
9 Webb v. Mauro, 1 Morr. (la.) 329.
10 Tilford v. Knott, 2 Johns. Cas. 211; Southern Express Co. v. Thornton, 41
Miss. 216. But it is not enough to show that the witness has had some business
with defendant. Mapes v. Leal, 27 Tex. 345. Nor that he had seen letters purport-
ing to come from him, or said, by other persons not produced, to have come from
him. Philadelphia, <fec. R. R. Co. v. Hickman, 28 Penn. St. 318, 329; Goldsmith v.
Bane, 3 Halst. (8 N. J. L.)87; even though the witness acted on them. Cunning-
ham v. Hudson River Bank, 21 Wend. 557. Compare Steph. Ev. Art. 51. Or
though he can testify that from their contents he knows they mast have come from
defendant Philadelphia, <fcc. R. R. Co. v. Hickman (above).
RULES APPLICABLE GENERALLY. 395
acts of the witness done pursuant to the letters purporting to
come from defendant have been ratified by defendant ; x or,
4. That, in the ordinary course of business, writings or sig-
natures purporting to be made by defendant, have been habitually
passed through his hands, and acted on by him as such ; 2 or,
5. That, as a public officer, he has been called upon to pass
on what he believed to be the defendant's signature, and has done
so. 8
If it appear that the knowledge was acquired for the purpose
of the present controversy, the witness is not qualified. 4
10. Opinion or belief.'] After showing knowledge of the
handwriting (or of the signature alone as distinguished from the
handwriting generally), 5 founded on adequate means of knowl-
edge, the witness may testify to his belief or his opinion, 6 as to
genuineness ; and this evidence is sufficient to go to the jury in
proof of execution. 7 An expression of belief, though not posi-
tive, is competent ; but if hesitating or qualified, it may not alone
be sufficient. 8
It is not competent for a witness who cannot swear to belief
or opinion to testify that the writing is like defendant's. 9
11. Refreshing memory.'} A witness who satisfies these
rules may, before 10 or at the trial, 11 refer to papers in his pos-
session which he knows to be in defendant's handwriting, to re-
fresh his memory, before testifying ; but if, after so doing, he is
not able to speak to the genuineness of the signature in suit, ex-
cept from comparing the two, his testimony on the point is not
competent. 13
1 BRONSON, J. Cunningham v. Hudson River Bank, 21 Wend. 55*7. But, in all
these cases, personal knowledge of the facts constituting the means of forming an
opinion, must be in the witness who is to express the opinion. Knowledge in one,
and belief of another, will not do. Power v. Frick, 2 Grant (Penn.) 306. The
writings by which the witness acquired his conversance with the handwriting, need
not be produced. Jackson v. Murray, Anth. N. P. 143.
9 Bowman v. Sanborn, 25 N. H. 8*7. As in the case of a bank cashier passing the
bills of a neighboring bank. So, also, of the case of a messenger carrying defend-
ants letters to the post-office. See Doe & Mudd v. Suckermore, 6 Ad. <fe E. 703, 740;
Hess v. State, 5 Ohio, 5.
3 Bank of Commonwealth v. Mudgett, 44 N. Y. 614, affi'g 45 Barb. 663; U. S. v.
Champagne, 1 Ben. 241, 243 ; Amherst Bank v. Root, 2 Mete. 622, 532.
4 1 Whart. Ev. 707.
5 McKonkey v. Gaylord, 1 Jones L. (N. C.) 94.
* Shitler v. Bremer, 23 Penn. St. 413; Clark v. Freeman, 25 Id. 133; Fash v.
Blake, 38 111. 363.
1 Hopkins v. Megguirp, 35 Me. 78 ; Magee v. Osborn (above).
8 Smith v. Walton (above); Warson v. Brewster, 1 Penn. St. 381. Compare
Wiggin v. Palmer, 31 N. H. 251, 270.
Contra, 1 Whart. Ev. 709. The reason why it is not competent is that evi-
dence that one handwriting is like another, or resembles another, is no evidence
whatever that it is the same.
10 Redford v. Peggy, 6 Rand. (Va.) 816 ; see page 321, of this vol.
11 Smith v. Walton, 8 Gill (Md.) 77 ; McNair v. Commonwealth, 26 Penn. St. 888.
13 Id.
396 ACTIONS ON NEGOTIABLE PAPER.
12. Testing witness.'] To test or impeach the witness, he can-
not be shown, and examined as to the genuineness of papers,
neither in evidence, nor adduced for comparison. 1 A witness can-
not be required to answer as to part of a signature before being
permittee! to see the whole ; 2 but may express an opinion as to
part, though unable to form one as to the rest. 8
13. Comparison of hands. ~\ The statute 4 is, "Comparison
of a disputed writing with any writing 5 proved 6 to the satisfaction
"of the court to be genuine, shall be permitted to be made by wit-
nesses in all trials and proceedings, and such writings and the evi-
dence of witnesses respecting the same may be submitted to the
court and jury, as evidence of the genuineness, or otherwise, of
the writing in dispute." At common law, this comparison may
be made with writings already in evidence ; 7 but not with others, 8
except to prove an ancient document. 9
A skilled witness may give opinion as to the identity or differ-
ence of the handwritings. 1 " And the jury may compare them. 11
14. Opinions of witnesses.'] In order to express an opin-
ion directly upon the question, whether the writing shown
1 Van Wyck v. Mclntosh, 14 N. T. 439. Contra, 1 Whart. Ev. 710. Nor can
a party allowed to do this contradict the answers. Van Wyck v. Mclntosh (above).
8 See N. Am. Fire Ins. Co. v. Throop, 22 Mich. 161. Compare 41 Ala. 626, 634.
Testing party by signature of concealed paper, allowed. 66 Barb. 527.
3 Smith v. Walton, 8 Gill. (Md.) 77.
4 N. Y. L. 1880, c. 36. Same Stat. 28 <fc 29 Viet c. 18, 8; Iowa Code, 3,655.
Same rule without ^statute, in Connecticut, Lyon v. Lyman, 9 Conn. 55, 61 ; Maine,
Woodman v. Dana, 62 Me. 9; Mississippi, Wilson v. Beauchamp, 50 Miss. 24; Mass.,
Moody v. Rowell, 17 Pick. 490; and New ffamp., State v. Hastings, 53 N. H. 452.
5 Unsigned writings may be used. Richardson v. Newcomb, 21 Pick. 315, 317.
But not letter-press copies. Commonw. v. Eastman, 1 Cush. 189.
6 Beyond doubt. Martin v. Maguire, 7 Gray (Mas?.), 177, 178. For instance, by a
witness who saw the person write the very paper (1 Iowa, ] 59); or by the admission of
the writer, or of his counsel (2 Me. [2 Greenl.] 33), unless offered on his own behalf
(1 Iowa, 159). The opinion of awitnessis not enough (1 Cush. 189). Nor letters merely
proved to have been received (108 Mass. 344). Nor a certificate of acknowledgment
(7 Gray, 177; 1 Iowa, 159).
' Moore v. U. S. 9] U. S (1 Otto), 270 ; Henderson v. Hackney, 16 Geo. 521 ; Wil-
liams v. Drexel, 14 Md. 566. And, according t-> some authorities, any proceeding in
the cause, incontestably signed by the party (Northern Bk. v. Buford, 1 Duv. [Ky.]
835; Dunlop v. Silver, 1 Cranch C. Ct. 27; Shannon v. Fox, Id. 133).
8 Moore v. U. S. (above), (unless by consent, Kannou v. Galloway, 58 Tenn. 230).
This rule has been applied also in Alabama, State v. Givens, 6 Ala. 747; Illinois, Bd. of
Trustees v. Misenheimer, 78 111. 22; Kentucky, McAllister v. McAllister, 7 B. Mon.
269; Maryland, Tome v. Parkersburgh R. R. Co., 39 Md. 36, s. c. 17 Am. R. 640,661;
Micfiiffan,\&n Sickle v. People, 29 Mich. 61; New Jersey, West v. State, 22 N. J. L.
(2 Zab.) 212 ; North Carolina, Ot?y v. Hoy. 3 Jones, 407 ; Tennessee, Clark v. Rhodes,
2 Heisk. 206 ; Texas, Hanley v. Gandy, 28 Tex. 211 ; Virginia, Rowt v. Kyle, 1 Leigh,
216; West V. Clay v. Alderson, 10 W.Va. 49; Wisconsin, Pierce v. Northey, 14 Wis. 9.
In Indiana (Burdick v. Hunt, 43 Ind. 281). writings, admitted to be genuine, are
thus used. Writings proved or admitted are used for purposes of corroboration only,
in Indiana, Clark v. Wygatt, 15 Ind. 271 ; but see 43 Id. 281; Pennsylvania, Hay-
cock v. Greup, 57 Penn. St. 438 : Souffi Car., Bennett v. Matthews, 5 S. C. 478.
9 Strother v. Lucas, 6 Pet. 763; Woodard v. Spiller, 1 Dana. (Ky.) 179, 181.
10 Moody v. Rowell, 1 7 Pick. (Mass.)490,496. Contra, Travis v. Brown, 43 Penn. St. 9.
11 State v. Hastings, 63 N. H, 452. Contra, Huston v. Schindler, 46 Ind. 38.
RULES APPLICABLE GENERALLY. 397
the witness is that of the person to whom it is imputed, when
this is the question for the jury, the witness must know the
handwriting, by means of knowledge such as are indicated above. 1
But an expert properly qualified, although he does not know the
handwriting, may express an opinion as to the characteristics of
the writing in evidence for instance, as to the age of the
writing, and of the paper ; as to whether the writing is simu-
lated or constrained, or natural ; 2 whether the whole was written
at the same time, 3 by the same hand, 4 and with the same pen and
ink; 5 whether it has been altered; 6 whether writing upon a
crease in the paper was made before or after the crease ; 7 and
whether writing upon an erasure was made before or after the
body of the document was written, 8 and k> general as to all matters
which require special skill and scientific research to discover
and explain. 9
The grounds and reason of his opinion may be called for on
direct as well as on cross-examination. 10
15. Matters of 'description.'] Beside the expression of opinion,
a competent witness may describe the condition and appearance
of the document, so far as material, for the purpose of having
them stated in the record. 11 So one not an expert may, of course,
testify to facts he observed, such as the apparent effect of a pow-
der found on the alleged forger's person. 1 ^
1 Paragraphs 8 and 9. This I understand to be the common law rule still in force
in New York and some other States. Goodyear v. Vosburgh, 63 Barb. 156 ; Frank
v. Chemical Bank, 87 Super. Ct. (J. & S.) 31 ; People v. Spooner, 1 Den. 543; Tome
v. Parkersburgh R. R. Co. 39 Md. 36, s. o. 17 Am. R. 540; although the rule is not
uniformly applied in practice. The rule is a proper corollary of that which ex-
cludes comparison of hands ; for otherwise an expert might testify to an opinion
formed on a comparison of hands out of court, and exclude the comparison from the
jury. Contra, Moody v. Rowell, 17 Pick. 490 (the leading case in favor of expert
opinions as to genuineness); Hicks v. Person, 19 Ohio, 426, 441 ; Withee v. Rowe,
45 Me. 571, 589 ; Woodman v. Dana, 52 Id. 9 ; and see Lyon v. Lyman, 9 Conn. 55;
Travis v. Brown, 43 Penn. St. 9 ; and 5 Am. L. Rev. 238.
s People v. Hewit, 2 Park Cr. 20. But the mere denial of a signature, without al-
legation or evidence that it is simulated, does notjustify the admission of evidence
that it is not simulated. Rowing v. Manly, 49 N. Y. 192, 203, s. c. li Abb. Pr. N. S.
276.
3 Dubois v. Baker, 30 N. Y. 355, 363, 365, affi'g 40 Barb. 556 ; Quinsigamond
Bankv. Hobbs, 11 Gray, 250, 257.
* State v. Ward, 39 Vt. 225, 236. But compare Lodge v. Phipher, 11 Serg. &
R. 833 ; and Fulton v. Hood, 84 Penn. St. 365.
6 Fulton v. Hood, 84 Penn. St. 365.
6 Moye v. Herndon, 30 Miss. 110, 118.
7 Bacon v. Williams, 13 Gray, 525. Contra, Sackett v. Spencer, 29 Barb. 187.
Unsound.
8 Dubois v. Baker, 30 N. Y. 355. But not whether erasures were made by a pe-
culiar instrument found in the party's possession. Commonwealth v. Webster, 5
Cush. 295.
9 Frank v. Chemical Nat. Bk. 37 Super. Ct. (J. <fc S.) 81.
10 Keith v. Lathrop, 10 Cush. 453.
11 Dubois v. Baker (above).
18 People v. Brotherton, 47 Cal. 888.
398 ACTIONS ON NEGOTIABLE PAPER.
16. Qualifications of witness.'] The qualifications of the ex-
pert must be such as are appropriate to the questions on which
nis opinion is sought. Special conversance with handwriting,
whether acquired in teaching it as a writing-master, 1 or in scruti-
nizing it as a bank cashier, 2 or as a business man in commercial
employments, 3 qualifies a witness to express some opinion as to
handwriting; for the qualification does not depend on vocation,
but on intelligence, means of knowledge and practical experience ;
and it is not necessary that the witness claim to be an expert ; *
although experience in the special duty of examining and detect-
ing alterations, erasures and forgeries, enhances the qualification
of the witness. But mere skill in judging handwriting does not
necessarily qualify to express an opinion as to the age of writing ; s
or whether an erasure has been made. 6
17. Photographs.'] In aid of evidence on the question of gen-
uineness, magnified photographs of the writing in evidence are
competent, 7 upon preliminary proof of their accuracy, 8 and the
photographer may be examined as an expert. 9
18. Mark] Signature by mark does not require any special
allegation, 10 nor any different mode of proof. 11 An expert may
testify that a mark, purporting to be the signature of a very old
man, could not have been made by the unaided hand of such a
man. 12
19. Identity of names.'] A discrepancy in name between the
pleading and the bill or note, or between the name of the payee
and the indorser, should be explained by evidence of identity. 13
Where the names are identical, identity of person is presumed in
support of the action, unless the name is too common to allow
the reasonableness of a presumption of identity, 14 or there are cir-
cumstances in evidence negativing it, 15 or it appears that there are
1 Moody v. Rowell, 17 Pick. 490 ; Bacon v. Williams, 13 Gray, 525.
2 Dubois v. Baker, 30 N. Y. 355.
3 Hyde v. Woolfolk, 1 Iowa, 159, 166.
4 Id
6 Clark v. Bruce, 12 Hun, 271.
6 Swan v. CTFallon, 7 Mo. 231, 237.
7 Marcy v. Barnes, 16 Gray, 161. Contra, Tome v. Parkersburgh, <fec. R. R. Co.
39 Md. 36, s. c. 17 Am. R. 540.
8 Taylor Will Case, 10 Abb. Pr. N. S. 301.
9 Marcy v. Barnes (above).
10 Walbridge v. Arnold, 21 Conn. 424, 429.
11 See Jackson v. Van Duaen, 5 Johns. 144 ; 1 Whart. Ev. 696.
12 Lansing v. Russell, 3 Barb. Ch. 325. But such testimony loses its force if the
subscribing witness testify that the hand was guided by another.
18 2 Pars, on Pr. N. & B. 474, 479. Compare Hunt v. Stewart, 7 Ala. 525 ; where
the omission of a middle initial was not held sufficient to require evidence of identity,
and see 2 Dan. Neg. Inst. 221 ; and see Fletcher v. Conly, 2 Greene (Iowa), 88. But
identity of holder with payee of the same name was not presumed in Curry v. Bank
of Mobile, to defeat claim to be bonafide indorsee before maturity.
14 1 Whart. Ev. 665, 701.
15 See p. 101, of this voL
RULES APPLICABLE GENERALLY. 399
two persons of similar name and residence, or similar name and
vocation. 1 Parol evidence of identity is admissible, and a va-
riance in the pleading amendable.
20. Fictitious person^ The fact that a person to whose or-
der the paper was payable was a fictitious person, 2 may be shown
by parol ; and as evidence of the party's knowledge of the fact, it
is competent to show that he had executed other similar paper,
under circumstances implying such knowledge. 3
21. Joint makers, &cl\ Where a joint note is shown to have
been given upon a joint liability, it will be presumed it was in-
tended the note should be several as well as joint, except in the
case of a mere surety. 4
22. Married women.'] In an action on notes made by a mar-
ried woman to the order of and indorsed by her husband, there
must be extrinsic evidence that they were in fact made in her
separate business, or for the benefit of her separate estate. The
fact that she gave them to her husband to be discounted, raises
no presumption for this purpose. 5
23. Agent's Signature.'] If the signature or indorsement is
by an agent, his handwriting and authority must be proved. 6 An
allegation of agency is not necessary, and if it be alleged, a
further allegation or authority is not needed. 7 If the allegation
is that the defendant signed or indorsed, an admission of execu-
tion will usually include admission of the authority of the agent ;
but if the signature is that of an apparent agent, and the allega-
tion is that the agent signed, an admission of the execution with
a denial of all other allegations, will put in issue the authority of
the agent. 8 But an admission of the agent's authority without
qualification, admits that he acted within its scope.
The authority of an agent to sign or to indorse may be shown
by oral communications or by implication. 9 "Written evidence is
not necessary. Authority may be inferred even where no ex-
press authority existed, from the usage of the agent to make
such paper, w\th the knowledge and tacit assent of the principal ;
1 2 Whart. (above). For a collection of authorities on names, see 18 Alb. L. J.
126.
1 1 N. Y. R. S. 768, 6.
1 Gibson v. Hunter, 2 H. Bl. 288 ; Rose. N. P. 93.
4 Yorks v. Peck, 14 Barb. 644. For the rules of proof in case of joint admissions,
see pp. 186, Ac. of this vol.
5 Second National Bank of Watkins v. Miller, 63 N. Y. 639, affi'g 2 Supm. Ct.
(T. A C.) 104. For the rules of proof in actions on married women's notes, Ac. see
pp. 163, Ac. of this voL
See Nixon v. Palmer, 8 N. Y. 398 ; Beach v. Vandewater, 1 Sandf. 265.
7 Moore v. McClure, 8 Hun, 557.
8 Chambers County v. Clews, 21 Wall. 822.
9 2 Greenl. on Ev. 49, 61 ; Trull v. True, 33 Me. 367; Moore v. Bank of Me-
tropolis, 13 Pet. 802. As to what amounts to evidence of authority, compare N. Y.
Dig. new ed. Prin. A A. 76, 82, 95, 114.
400 ACTIONS ON NEGOTIABLE PAPER.
and evidence of such a fact is competent even though it be not
also shown that it was known to the plaintiff. Evidence that the
plaintiff knew the fact and in good faith relied on it as showing
authority, is competent, and may raise an equitable estoppel in
his favor.
One who seeks to support a transaction with an agent in his
own name, by a previous course of dealing implying authority,
should show that the form of the previous transactions were
such as to justify reliance on the agent's authority ; 1 or, at least,
to amount to a holding out of the agent as authorized. Author-
. ity to buy and sell does not imply authority to make negotiable
paper even in buying. 2 Authority to sign as maker or surety
cannot be inferred from a general usage to indorse. 3
To charge one personally, who signs as agent in a form ade-
quate to bind his principal, the burden is on plaintiff to show
that defendant was not in fact authorized to sign. 4
24. Partnership Signature."] The partnership of the defend-
ants having been proved, as stated elsewhere, 5 it is enough to
prove the signature, unless by reason of the character of the busi-
ness, etc., evidence of authority is necessary ; and the signature
may be proved by evidence of the handwriting of him who wrote
it, or by admission of either partner. The partnership, and their
signature being shown, plaintiff may rely on the presumption of
law that the signature was given for partnership purposes, or by
authority of the other partners (even though the partner be in-
dividually a party) 6 without showing that the firm was a com-
mercial or trading firm, or that the act was ratified, unless some
of these facts are alleged in his pleading. 7 If it appear, however,
on the face of the paper 8 or otherwise, either that the firm was a
non-trading firm, in which such authority is not implied, 9 or that
1 Thus an agent of a firm who took a draft from their debtor payable to " my
order " instead of to " our order," is not presumed to have been authorized, from
mere proof that he had previously taken drafts in the course of his agency, unle s
the form of the previous drafts is shown. Hogarth v. Wherley, L. R. 10 Com. PI.
630, s. c. 14 Moak's Eng. R. 474. Compare Exchange Bank v. Monteath, 26 N. Y.
505 ; Reed v. Carpenter, 10 Wend. 403 ; Llewellyn v. Winckworth, 13 M. & Tr. 598 ;
Rose. N. P. 358.
2 But an amendment so as to recover on the original consideration is allowable.
Vibbard v. Roderick, 51 Barb. 616.
8 Early v. Reed, 6 Hill, 12.
4 Walker v. Bank of State of N. Y. 9 N. Y. 682, affi'g 13 Barb. 636 ; and see Shef-
field v. Ladue, 16 Minn. 388, s. c. 10 Am. R. 145. According to the Massachusetts
cases also, he must show that defendant intended to use the name to bind himself.
Bartlett v. Tucker, 104 Mass. 836, a. c. 6 Am. R. 240 ; or actually received the con-
sideration. Compare White v. Madison, 26 N. Y. 117, 8. o. less fully, 26 How.
Pr. 481.
6 Pp. 206-210 of this vol.
6 Bank of Commonwealth v. Mudsjett, 44 N. Y. 514.
T Carrier v. Cameron, 31 Mich. 373, s. c. 18 Am. R. 192; Gansevoort v. Williams,
14 Wend. 134; 1 Wood's Coll. 678, n.
8 As, for instance, where the firm sign as surety. Boyd v. Plumb, 7 Wend. 309.
Smith v. Sloan, 37 Wis. 285, s. c. 19 Am. R. 757.
RtJLES APPLICABLE GENERALLY. 401
the paper was given by a member out of the firm business, 1 the
burden is upon the plaintiff, 2 holder of the note, to prove the au-
thority, necessity, usage or ratification which may sustain the
act. The fact that paper indorsed was negotiated to plaintiff by
the maker or payee, is prima facie evidence that it was accom-
modation. 3 If it was in terms payable to the firm, in whose name
it is indorsed, the fair inference is that it was indorsed in usual
course of business. 4 Evidence that it was accommodation paper
is sufficient to throw on plaintiff the burden of giving further
evidence to bind the other partners than the one who signed the
firm name. 5
As against one who has made negotiable paper payable to a
firm name, 6 or indorsed negotiable paper drawn by a firm name, 7
the production of the paper is sufficient evidence of the existence
of the firm ; and the names of the third persons who constituted
the firm need not be alleged. 8
25. Corporation Paper. ~\ A business 9 corporation, in the ab-
sence of special provision of charter, has implied power to make
negotiable paper in the usual course of its business, 10 but the au-
thority of the officer or agent, and the fact that the note was
given in the legitimate business of the company, must be
proven. An allegation that the paper was made or indorsed by
defendants implies a lawful making or indorsement ; and the
burden is on defendants to show that it was not lawfully
done. It need not be averred in the complaint that the note
was indorsed by defendants in the course of their legitimate
business. 11
The cashier of a bank is presumed to have authority to in-
dorse and transfer paper belonging to it, in the ordinary course
of business^ 12 but not to indorse for his own accommodation. 18
1 Gansevoort v. Williams (above); Hoskinson v. Eliot, 62 Penn. St. 393; Man-
ning v. Hays, 6 Md. 5; Leverson v. Lane, 13 C. B. N. S. 278; Kendall v. Wood, L.
R. 6. Exch. 243.
s As to bonafide transferees, see subsequent paragraphs.
8 Hendric v. Berkowitz, 37Cal. 113.
4 Catskill Bank v. Stall, 15 WenJ. 366 ; 18 Id. 466.
5 Lemoine v. Bank of N. A. 3 Dill. C. Ct. 48. Otherwise, of a guaranty. Nat.
Bank T. Carpenter, 34 Iowa, 433.
8 Blodgett v. Jackson, 40 N. H. 21.
7 Dalrymple v. Hillenbrand, 62 N. T. 5, s. c. 20 Am. R. 438.
8 Bacon v. Cook, 1 Sandf. 77.
9 As to municipal corporations, see Mayor, <fec. v. Ray, 19 Wall. 468.
10 McCullough v. Moss, 5 Den. 567 ; Benedict v. Lansing, Id. 283 ; and see Moss
v. McCullough, 7 Barb. 279. As to distinction between this and accommodation
paper, see Olcott v. Tioga R. R. Co. 27 N. Y. 546, affi'g 40 Barb. 179; Morford v.
Farmers' Bank of Saratoga Co. 26 Barb. 568 ; Bridgeport City Bank v. Empire Stone
Dressing Co. 30 Barb. 421, s. c. 19 How. Pr. 51 ; Mech. Bank. Asso. v. N. Y. <fe Sau-
gerties White Lead Co. 35 N. Y. 505, affi'g 23 How. Pr. 74, s. c. less fully. 20 Id. 609.
11 Mechanics' Banking Association v. Spring Valley Shot <fe Lead Co. 25 Barb 419
rev'g 13 How. Pr. 227.
11 Matthews v. Mass. Nat. Bk. 1 Holmes, 396, and see 3 Am. L. Rev. 612, and cas. cit
13 West. St. Louis Sav. Bk. v. Shawn.ee Co. Bk. 95 U. S. (5 Otto) 537. affi'g 3,
Dill. 403. Compare Pope v. Bank of Albion, 57 N. Y. 126, rev'g 59 Barb. 226.
26
402 ACTIONS ON NEGOTIABLE PAPER.
Authority in other officers is sufficiently shown by evidence of
their constant usage to do so, 1 known to the corporation or board. 2
26. Oral evidence to show real party.~\ Persons dealing with
negotiable instruments are presumed to take them on the credit
of the parties whose names appear upon them ; but if there are
sufficient indications on the face of the paper to show that it
might reasonably have been intended as a contract by 8 or with 4
another than the one named, as for instance where a corpora-
tion note is signed by an officer, or where a note is expressed or
indorsed as payable to a cashier, oral evidence is admissible for
the purpose of enabling the real party to recover ; and equally to
charge the real party; 6 but not usually for the purpose of
exonerating the signer, 6 unless to show that he contracted as
agent for a government. 7 For the purpose of thus showing the
real party, the conversations of the parties to the transaction, at
the time of making the paper, and at the time of creating the
consideration for the bill or note( are admissible as part of the res
gestce. 6 When individuals subscribe their proper names to a
promissory note, prima facie they are liable personally, though
they add a description of the character in which the note is
given ; but such presumption of liability may be rebutted, as
between the original parties, by proof that the note was in fact
given by the makers as agents, with the payee's knowledge of
that fact. 9 But even where the signature is with an addition
1 Marine Bank v. Clements, 81 N. Y. 33, affi'g 6 Bosw. 166.
9 Lawrence v. Gebhard, 41 Barb. 575. Whether the bank ia estopped by state-
ment of cashier to surety, whom he knew to be such, that note was paid, compare
Cocheco Nat. Bank v. Haskell, 51 N. H. 116, s. c. 12 Am. R. 67 and 75 note, and
Bank v. Seward, 37 Me. 519.
3 Mechanics Bank v. Bank of Columbia, 6 "Wheat. 326, 337.
* Baldwin v. Bank of Newbury, 1 Wall. 234.
6 Compare Baldwin v. Bank of Newbury, 1 Wall. 234; Briggs y. Partridge, 65
N. Y. 363, and cases cited ; Eastern R. R. Co. v. Benedict, 5 Gray, 566, and see p.
672; Caldwell v. Mohawk Bank, 64 Barb 333, and cases cited; and see 9 Moak's
Eng. 15, and cases cited. The Supreme Court of the United States sanctions the
same rule where nothing appears on the f. ice of the paper to indicate agency. A
certificate of deposit signed with an individual name, may be shown by parol evi-
dence in an action against one not named, to be the contract of the latter made by
the signer as the clerk or agent of the latter. Coleman v. First Nat. Bank, 53 N. Y.
388 ; 64 Barb. 83. Evidence that the transaction was at defendant's counter, in the
usual course of their business, in pursuance of inquiry for defendants and without
mention of the agent's name, is sufficient to sustain a finding that the contract was
by the defendant*. Compare Shields v. Niagara Savings Bank, 3 Hun, 477 ; Rich v.
Niagara Savings Bank, 3 Hun, 481 ; and Van Leuven v. First Nat. Bank, 54 N. Y.
671, affi'g 6 Lans. 373.
For the rule where there is no extrinsic evidence, see De Witt v. Walton, 9 N. Y.
571 ; Fisher v. Eldridge, 12 Gray, 472 ; and see 9 Am. R. 161.
6 Compare Brown v. Poster, 7 Allen, 337; Barbour v. Litchfield, 4 Abb. Ct. App.
Dec. 655.
, 7 Goodwin v. Robarts, L. R. 10 Exch. 337, s. c. 14 Moak's Eng. 591.
8 Bank v. Kennedy, 17 Wall. 24.
9 Haile v. Pierce, 33 Md. 327 ; Hood v. Hallenbeck, 7 Hun, 362. Contra, Tucker
Co. v. Fairbanks, 98 Mass. 101, and cases cited ; Carpenter v. Farnsworth, 106 Id,
661, s. o. 8 Am. R. 360; Sturdevant v. Hall, 59 Me. 172, s. c. 8 Am. R. 409.
BULES APPLICABLE GENERALLY. 403
indicating agency or official character, it is not always enough to
prove that the other contracting parties knew the facts, and that
the consideration went to the principal or corporation : for the
parties may have intended to pledge the personal credit of the
apparent signers. x
As between principal and agent, an agent who signs or in-
dorses in his own name, may prove by parol, that it was not the
intention that he should be bound personally, 2 but the evidence
should be clear and strong. 3
27. Evidences of 'title .] Plaintiffs possession 4 of negotiable
paper, not expressed or indorsed to be payable to another person, 5
\Qprimafacie (but not conclusive) evidence of his title, and if it
be expressly payable to him, or, if not so expressed, if it be pay-
able after its date, he holds it clothed with the presumption that
it was negotiated for value in the usual course of business at the
time of its execution, and without notice of anv equities between
the prior parties to the instrument. 6 Even if he once indorsed
it away, his possession is presumptive evidence of his title,
whether his and subsequent indorsements be cancelled 7 or not. 8
If the paper is restricted " to order," and title is not shown as
above, plaintiff must give evidence of his title. 9 In an action by
an indorsee against the drawer of a bill or acceptor or maker of a
note payable to order, the payee's indorsement must be proved ; 10
but when sufficient has been proved to show the instrument pay-
able to bearer, subsequent indorsements need not be proved, in
the first instance, although restrictive. 11 Against an indorser
1 Powers v. Briggs, 79 HI. 493, s. c. 22 Am. R. 175. Compare Houghton v. First
Nat. Bank of Elkhorn, 26 Wise. 663, a c. 7 Am. R. 107.
5 Lewis v. Brehme, 33 Md. 412, s. c. 3 Am. R. 190, qualifying Story on Ag. 157 ;
Chitty on B. 46.
3 lb.
4 Actual possession as distinguished from constructive possession, or symbolical
delivery, essential. Muller v. Pondir, 55 N. Y. 325, affi'g 6 Lans. 472.
8 Collins v. Gilbert, 94 U. S. -(4 Otto), 753, and cases cited. The presumption is
sufficient even where it appears that plaintiff, not being the original party, paid noth-
ing for it. Brown v. Penfield, 36 N. Y. 473, affi'g 24 How. Pr. 64; May v. Richard-
son, 3 Gray, 142. If the plaintiff, with possession, has other lawful documents going
with the instrument, as a genuine letter of introduction from a correspondent this
presumption is strengthened. And in general this presumption is stronger in pro-
portion as it would be easy to rebut it if erroneous, 2 Pars, on Pr. N. <fec. 480.
Where the paper is to bearer or indorsed in blank, allegations in the complaint
as to how the hollar acquired title thereto from the payee, are unnecessary. Mech-
anics' Bank v. Straiton, 8 Abb. Ct. App. Dec. 269 ; and if made need not be proved.
Bedell v. Carll, 83 N. Y. 581. If plaintiff, appearing on the record individually, be
an executor or administrator, the objection that he holds as such, if material, must
be raised at the trial in order that he may give further evidence as to his personal
interest. See Barlow v. Myers, 64 N. Y. 41, 46.
6 Collins v. Gilbert, 94 tl. S. (4 Otto), 758.
1 Dollfus v. Frosch, 1 Den. 367.
8 Mottram v. Mills, 1 Sanclf. 37.
9 Dorn v. Parsons, 56 Mo. 601.
10 2 Pars, on Pr. N. <fcc. 485.
"Id.
404 ACTIONS OX NEGOTIABLE PAPER.
proof of his indorsement is sufficient proof of all the previous
indorsements through whom the holder chooses to deduce title. l
28. Delivery, .] Delivery is prima facie shown by production
of the paper. 3 The time and purpose 4 of delivery may be
proved by parol. If delivered by letter the letter is competent,
as part 01 the res gestce ; 8 if manually delivered, the conversation
is competent. 6
Unless the note be sealed, oral evidence is competent to show
that it was delivered to the party in whose favor it was drawn, 7
upon a condition, such that without performance of the condition
he acquired no right to enforce it. 8
29. Consideration^ The burden of proof of the existence of
a consideration between the original parties, is on plaintiff, and
in case of a conflict of evidence, remains on him to satisfy the
jury by preponderance -of evidence. 9
But the production of negotiable paper, whether made by in-
dividuals or corporations, 10 is presumptive evidence of considera-
tion u both in the original making, w and in the transfers by which
plaintiff acquired it. 18 This presumption may be repelled by
extrinsic evidence, u or by the terms of the note itself, as where it
shows the value was received from a third person. 15 And where
consideration must be proved, the words "value received" in the
1 2 Pars, on Pr. K <fcc. 484.
s Sawyer v. Warner, 15 Barb. 282. As to proof of actual delivery, see Kinne v.
Ford, 43 N. Y. 587, affi'g 52 Barb. 194.
8 Good v. Martin, 95 U. S. (5 Otto), 90, 96.
4 Bank v. Kennedy, 17 Wall. 26. The person who delivered it may state for
what purpose. Id. But the mere belief or impression of a witness of the transac-
tion is not competent. Head v. Shaver, 9 Ala. 791 ; Crounse v. Fitch, 14 Abb. Pr.
346.
6 See Bank of Monroe v. Culver, 2 Hill, 531 ; Darling v. Miller, 54 Barb. 149 ;
but compare Bailey v. Wakeman, 2 Den. 220.
6 Bank v. Kennedy (above).
I Or to a third person. Vallett v. Parker, 6 "Wend. 615 ; Chapman v. Tucker, 38
"Wise. 43, s. c. 20 Am. R. 1.
8 Seymour v. Cowing, 4 Abb. Ct. App. Dec. 200 ; and see Couch v. Meeker, 2
Conn. 302 ; Barton v. Martin, 62 N. Y. 570 ; Bookstaver v. Jayne, 60 N. Y. 146.
The evidence, to be admissible, must qualify the delivery, as distinguished from the
terms of the note. Compare Erwin v. launders, 1 Cow. 249, and cases cited.
9 Small v. Clewley, 62 Me. 155, s. c. 16 Am. R. 410; Delano v. Bartlett, 6 Cush.
364; Story on Pr. N. 181; 1 Dan. Neg. I. 129. But see Sawyer v. McLouth, 46
Barb. 350. "Whether the rule is the same as to a failure of consideration, see Burn-
ham v. Allen, 1 Gray, 496.
10 See "Willmarth v. Crawford, 10 "Wend. 341.
II Whether the words for "value received" are in it, or not. Kinsman v. Bird-
Ball, 2 E. D. Smith, 395. As to the recent statutes avoiding notes given for patent
rights unless so expressed, see note in 22 American Reports, 67.
12 Black River Savings Bank v. Edwards, 10 Gray, 387.
13 Collins v. Gilbert, 94 U. S. (4 Otto), 753. From the issuing and delivery of
negotiable drafts for money, though illegal, there is a legal presumption that the
consideration was money. Oneida Bank v. Ontario Bank, 21 N. Y. 490.
14 See Dodge v. Pond, 9.3 N. Y. 69.
15 Tenyck v. Vanderpoel, 8 Johns. 120. To recover on a note given for no other
consideration than payment of the debt of another, the payee must prove the privity
or assent of the debtor. "Williams v. Sims, 22 Ala. 512.
RULES APPLICABLE GENERALLY. 405
paper, set out in the pleading is a sufficient allegation, even as
against indorsers ; 1 and the consideration need not be an equiva-
lent, even as between the original parties. 2 Inadequacy of con-
sideration 3 is not a defense, 4 unless fraud be in issue, and then it
may be a relevant circumstance. 5 A consideration consisting of
a prior indebtedness on an account stated or the like, may be
proved by parol without producing the document evidencing the
consideration; but the document is competent. 6 Evidence that
the paper was given in consideration of the surrender of a prior
note made by the same party is prima facie sufficient, and raises
a legal presumption that differences as to the validity of the
former note were settled. 7 But this, even if expressed, is not
conclusive as between the original parties, 8 and those limited to
their rights. If a note is expressed to carry interest from a time
prior to its date, the presumption is not that it is usurious, but
that it was given for an antecedent consideration. 9
In cases where the existence of a consideration between the
original parties is open to inquiry, the writing does not exclude
oral evidence. The purpose for which a note was made is admis-
sible if entirely consistent with its terms and conditions ; 10 and a
witness who knows the purpose may testify directly to the fact, u
but not whether it would or would not have been made in a sup-
posed case. 12 A witness having knowledge of the transaction
may be asked directly what was the consideration, whether two
notes were part of the same transaction and the like, leaving
details to be called for by cross examination. 13
The declarations of a prior party 14 are not generally admissible
against the right of a subsequent holder, except within the rules
stated in Chapter I, or when part of the res gestce of an act prop-
erly in evidence, u or unless some further connection between the
two persons is shown. 16
1 Meyer v. Hibsher, 47 N. Y. 265. Otherwise at common law. Saxton v. John-
son, 10 Johns. 418; see also Bourne v. Ward, 61 Me. 191.
2 Worth v. Case, 42 N. Y. 862, affi'g 2 Lans. 264. If an executory consideration
is indorsed on the note, it may be notice of equities to transferees, but does not pre-
vent the note being admitted as a negotiable instrument; and plaintiff should prove
performance, if required at the trial. Sanders v. Bacon, 8 Johns. 485.
3 As distinguished from usury pleaded, and from grossly unconscionable bargain.
* Earl v. Peck, 64 N. Y. 698.
5 Especially where incapacity or undue influence is alleged. Molson v. Hawley,
1 Blatchf. 409.
6 Leland v. Manning, 4 Hun, 7; Friedman v. Johnson, 21 Minn. 12.
7 Hper v. Wade, 57 Geo. 223; and see Davis v. Gray, 17 Ohio St. 330.
8 McDougall v. Cooper, 31 N. Y. 498.
9 Ewing v. Howard, 7 Wall. 505.
10 Bell v. Shibley, 83 Barb. 610, and cases cited. Compare Mathews v. Crosby,
56 N. H. 21. .
11 Osborn v. Robbins, 36 N. Y. 865, s. c. 4 Abb. Pr. N. S. 15, rev'g 37 Barb. 481.
Newell v. Doty, 83 N. Y. 83.
18 Ayrault v. Chamberlain, 33 Barb. 229.
14 Even though he be since deceased. Kent v. Walton, 7 Wend. 256.
15 See Snyder v. Willey, 83 Mich. 483; First Nat. Bank v. McMaingle, 69 Penn.
St. 156; Nutter v. Stover, 48 Me. 163.
Phillips v. Cole, 10 Ad. & E. 106 ; Rose. N. P. 384.
406 ACTIONS ON NEGOTIABLE PAPER.
30. Accommodation paper."] The presumption of considera-
tion, even where the paper is expressed to be for value received,
does not estop maker, 1 drawer, acceptor, 3 or indorser, 8 from
proving that his act was done for accommodation ; but such proof
does not alone (except as between the original parties and those
subject to their equities), throw the burden on plaintiff to give
further evidence of consideration. 4
31. Alterations.] If any material alteration, 5 whether ap-
parently advantageous to the holder or not, 6 appears on the face
of the paper, or in the indorsements on which his action depends, 7
he should be prepared with at least some evidence tending to
explain it. The question whether the alteration is such that the
absence of an explanation excludes the paper, is one for the
court. 8 If there is nothing suspicious about the alteration, it is
not error to admit the paper without explanation. If there is
anything suspicious, the court should require explanation ; and the
evidence offered for this purpose, which may include all the cir-
cumstances of its history, its nature, the appearance of the altera-
tions, the possible or probable motives for the alteration or against
it, and its effect upon the parties respectively, ought to be sub-
mitted to the jury with the paper itself. 9
1 Corlies v. Howe, 11 Gray, 125.
2 Clark v. Sisson, 22 N. Y. 312, affi'g 5 Duer, 468.
3 Patten v. Pearson, 55 Me. 39.
4 Ellicott v. Martin, 6 Md. 509; 1 Dan. Neg. In. 129; Pee also 2 Abb. N. C. 305.
5 Or an immaterial one fraudulently made. 1 Greenl. Ev. 608, 568.
6 If the alteration was apparently disadvantageous to the holder, this goes to re-
lieve the case from suspicion that it was made after execution and without consent ;
see Bailey v. Taylor, 11 Conn. 531 ; but even if shown to have been so made, does
not prevent the alteration from defeating the action. See Heins v. Cargill. 67 Me.
554; Franklin Ins. Co. v. Courtney, 6 Rep. 712; Huntington v. Finch, 3 Ohio St.
445 ; 2 Dan. Neg. In. 376. For other cases on the different views that have pre-
vailed on this question, see also 17 Am. R. 97; 14 Moak's Eng. 585 ; 16 Id. 585 ; 16
Alb. Law. J. 64, 80
1 Otherwise of words written on the back, and thus not essential. See Bay v.
Schrader, 30 Miss. 326; Kimball v. Lawson, 2 Vt. 138.
8 Tillou v. Clinton, <fcc. Ins. Co. 7 Barb. 564.
9 Maybee v. Sniffen, 2 E. D. Smith, 1, s. o. 10 N. T. Leg'. Obs. 18; Artisans
Bank v. 'Backus, 31 How. Pr. 242, 36 N. Y. 100, s. c. 3 Abb. Pr. N. S. 273.
Four different rules contend for control on this vexed question, 1. That an al-
teration apparent on the face of the paper raises no presumption either way, but the
question is for the jury. (Hunt v. Gray, 35 N. J. L. 227 ; Hayden v. Goodnow, 39
89 Conn. 164, and see Davis v. Jenney, 1 Mete. 221.)
2. That it raises a presumption against the paper, and requires, therefore, some
explanation to render the paper admissible. (Rosa N. P. 351, 384; 2 Pars, on Contr.
228 ; and see 2 Dan. Neg. In. 314, 374, etc. ; Mills v. Barnes, UN. H. 395 ; Low v.
Merrill, Burn. [Wise.] 185.)
3. That it raises such a presumption when it is suspicious, otherwise not. (1
Whart. Ev. 601, 629 ; 1 Greenl. 604, 564 ; Welch v. Coulbord, 3 Houst. [Del.] 647-
Compare Farnsworth v. Sharp, 4 Sneed [Tenn.] 55.)
4. That it is presumed, in the absence of explanation, to have been made before
delivery, and, therefore, requires no explanation in the first instance. (White v.
Hnss, 32 Ala. 470; Paramour v. Lindsey, 63 Mo. 63.) The third rule, though some-
what vague, is the true one. It is impossible to sustain the unqualified assertion
that every alteration must raise a presumption either way, or that there can be no
RULES APPLICABLE GENERALLY. 407
An interlineation or addition, in a hand different from the
other writing in the body of the note and from the signature, is
presumptively an alteration, within these rules. Otherwise of the
mere use of a different ink for part of the writing. 1
Alteration, though not appearing on inspection, may be shown
by extrinsic evidence ; and this throws the same burden on the
party offering the instrument, to explain the alteration. 2
32. JIow pleaded.'] If the action is on the instrument in its
original form, a material alteration raises a question of variance or
failure of proof, as well as admits the objection that the instrument
has been made void. 3 If the action is on the instrument in its
altered form, an answer admitting execution, without alleging
the alteration, precludes evidence of alteration ; 4 but under a de-
nial of execution 5 or a general denial, evidence that an alteration
was made after delivery is admissible. 6 Proof of the defendant's
signature is prima facie evidence that the whole body of the note
written over it is the act of the defendant (subject to the rules as
to suspicious alterations above stated) ; but the burden of proof
remains on the plaintiff to show, on the whole evidence, that the
note declared on was the note of the defendant. 7
33. Mode of proof .~\ Alterations may be proved by a wit-
ness who saw the instrument prior to alteration, although not
present when made ; 8 and he may testify that he has no knowl-
edge or recollection that the alteration existed when he in-
spected the instrument ; 9 and, under the rules already stated, ex-
alteration that will not raise a presumption against the note. Thus a cancellation of
the printed word " bearer" and insertion of " order," in the same hand and ink as the
other writing, could not ordinarily exclude the paper for want of explanation. On the
other hand, an increase of the amount, written over an erasure, and exceeding the
marginal figures would require explanation before the case could go to the jury.
Between such extremes there is every variety of degree ; and the only safe guide is
that stated in the text. For recent cases, where the particular kinds of alteration are
considered, see, as to altering Date, Low v. Merrill, Burn. (Wise.) 185 ; Wood v.
Steele, 6 Wall. 80; Time to run, Davis v. Jenney, 1 Mete. 221 ; Place of payment,
"White v. Has?, 32 Ala. 470 ; Corcoran v. Dall, 32 Cal. 82 ; Meikel v. State Havings
Bank, 36 Ind. 355; Diminishing the amount, Heins v. Cargill, 67 Me. 554; Adding
interest clause, Iron Mountain Bark v. Murd<>ck, 62 Mo. 70; Precluding interest ex-
cept after maturity, Franklin Ins. Co. v. Courtney (Fnd. S. Ct. 1878), 6 Reporter, 712;
compare Paramour v. Lindsey, 63 Mo. 63; Alteration in clause "without defalcation
or discount," Hunt v. Gray, 35 N. J. L. 227; Inserting charge on separate estate,
Taddiken v. Cantrt-11, 69 N. Y. 697; Erasure from priuted form, Corcoran v. Dall,
32 Cal. 82 ; Paramour v. Lindsey, 63 Mo. 63.
For the rule as to sealed instruments, compare Little v. Herndon, 10 Wall. 31, and
cases cited ; Smith v. U. S. 2 Id. 231, and see 1 Id. 282, and Ch. XLVIIl, paragraph 7.
1 Wilson v. Harris, 85 Iowa, 507.
s Ilerrick v. Malin, 22 Wend. 388; Jackson v. Osborn, 2 Id. 565.
3 Contra, Hirschman v. Budd, L. R. 8 Ex. 171, 8. c. 6 Moats Eng. 361.
4 Smedbcrgh v. Whittlesey, 3 Sandf. Ch. 320.
8 Rose. N. P. 384.
6 Boomer v. Koon, 6 Hun, 645; Lincoln v. Lincoln, 12 Grav, 47.
7 Simpson v. Davis, 119 Mass. 269, 8. c. 20 Am. R. 324; Willett v. Shepard, 34
Mich. 106.
8 Ansley v. Peterson, 30 Wise. 653.
9 Abel v. Fitch, 20 Conn. 90, 97.
408 ACTIONS ON NEGOTIABLE PAPER.
perts and those who are acquainted with the handwriting, may be
examined. 1 Original memoranda or entries of the transaction are
competent also, under rules already stated. 8
The fact that the defendant was the maker or indorser of
other paper having a similar clause to the one alleged to be an al-
teration, is not admissible in evidence, for the purpose of raising
an inference that the clause was not an alteration. 8 The fact
that the party to whom the alteration is imputed, was in embar-
rassed circumstances, when he negotiated the paper, is not com-
petent as tending to show that it was altered by him so as to in-
crease its amount before negotiation. 4 Evidence that defendant
has paid interest on the altered paper, is relevant to show con-
sent. 9 Evidence that plaintiff demanded payment, is not neces-
sarily a ratification of an unauthorized alteration made by a third
person. 6 A general consent or authority to add or alter may be
proved ; and it is not material that the maker was not informed
what addition was made. 7
34. Blanks.'} Evidence that a party to the instrument in-
trusted it to another, for use as such, with blanks not filled, is
prima facie evidence of authority to complete it by filling them,
but not to vary or alter its material terms by erasing what was
written or printed as a part thereof, nor to pervert its scope or
meaning by filling the blanks with stipulations repugnant to what
was plainly and clearly expressed in the instrument; 8 and this
authority enures to successive holders who take it with the blank
unfilled ; 9 and evidence of the blank and of the filling of it, is
admissible under an allegation describing simply the completed
paper. 10
35. Marks of cancellation^ Lines cancelling the whole in-
strument, 11 or the stamp " Paid," w raise a presumption of dis-
charge ; but this may be rebutted. 18 The presumption of discharge
I Paragraphs 8 to 17. If reliance is put on the fact that a part is in different ink
from the rest, interrogate a witness as to the fact, so as to have it on the record.
See Hardy v. Norton, 66 Barb. 528.
8 Kennedy v. Crandell, 3 Lans. 1 ; and p. 322 of this vol.
8 Iron Mountain Bank v. Murdock, 62 Mo. 70 ; Paramour v. Lindsey, 63 Id. 63.
But he may be asked whether he ever made any such note whatever. First Nat. Bank
of Pittsburgh v. Heaton, 6 Supra. Ct. (T. & C.) 37; Jourden v. Boyce, 33 Mich. 302.
4 Agawam Bank v. Sears, 4 Gray, 95.
Rose. N. P. 383.
6 Laugenberger v. Kroeger, 48 Cal. 147, s. c. 17 Am. R. 418.
7 Taddiken v. Cantrell, 69 N. Y. 597. Compare Davidson v. Lanier, 4 Wall. 447.
8 Angle v. North-western Mutual Life Insurance Co. 92 U. S. (2 Otto), 330; Ab-
bott v. Rose, 62 Me. 194, s. c. 16 Am. R. 427; lledlich v. Doll, 54 N. Y. 234.
9 Page v. Morrel, 3 Abb. Ct. App. Dec. 433 ; and see Spitler T. James, 82 Ind. 202,
8. c. 1 Am. R. 334, and note ; Michigan Bank v. Eldred, 9 Wall. 544 ; Davidson v.
Lanier, 4 Wall. 447.
10 Rose. N. P. 852.
II Pitcher v. Patrick, 5 Ala. (1 Stew. <fe P.) 478.
18 See Turner v. Bank of Fox Lake, 4 Abb. Ct. App. Dec. 434.
11 Same cases.
RULES APPLICABLE GENERALLY. 409
arising from actual cancellation is not necessarily rebutted by
evidence that the discharge was not by payment or set-off. 1
36. General rule as to oral evidence to vary.'] Parol evi-
dence of an oral agreement alleged to have been made at the tune
of the drawing, making or indorsing of a bill or note, cannot be
permitted 2 to vary, qualify, or contradict, or to add to or subtract
from the absolute terms of the written contract, there being no
fraud, accident or mistake. 3 If a memorandum appears upon the
paper in such a position as not to be authenticated by the signa-
ture, either party may show parol facts as to its being affixed,
and if it be shown that it was affixed before delivery, as a part of
the contract, it is part of the note within the above rule. 4
37. Date.'] If no date is expressed, the date of delivery may
be proved by parol. A date expressed 5 is prima facie evidence
of the time 01 delivery ; 6 unless the admissibility of the instru-
ment depends on its date. 7 If the date is referred to in the body
of the contract, as fixing the time of payment, it cannot be va-
ried by parol, 8 unless fraud, accident or mistake is shown; 9 and
even then evidence of error may not be competent for the pur-
pose of showing, as against a bonafide holder, that the paper was
illegal, as made on Sunday. 10
38. Time of 'payment.~\ If the time of payment is expressed, 11
or if not, and the note is therefore payable immediately, 12 parol
evidence that another time of payment or presentment 13 was agreed
upon between the parties at or before delivery, is not competent.
The time and mode cannot be varied by parol. Hence if pay-
ment by installments is specified, a parol agreement that the whole
1 Gray v. Gray, 2 Lans. 173, but see 47 N. Y. 552.
2 Unless performed and accepted. Bank of Lyons v. Demmon, Hill <fe D. Supp.
398.
3 Forsythe v. Kimball, 91 U. S. (1 Otto), 291, 294. Compare 1 Greenl. Ev. 13 ed.
822, note. But a contemporaneous memorandum between the same parties, and not
merely collateral (Webb v. Spicer, 13 Q. B. 894, affi'g S H. L. C. 510); if shown
to be founded on good consideration (McManus v. Bark, L. R. 5 Ex. 65); is ad-
missible for that purpose, whether on the same or a separate paper (Leeds v. Lan-
cashire, 2 Camp. 205; Bowerbank v. Monteiro, 4 Taunt. 844); and though not al-
leged to be in writing (Young v. Austen, L. R. 4 C. P. 553 ; Corkling v. Massey,
L. R. 8 C. P. 395); but the allegation will not be proved unless an agreement in
writing is given in evidence in support of it at the trial. Young v. Austen, supra ;
Abrey v. Crux, L. R. 5 C. P. 87 ; Rose. N. P. 389.
4 Heywood v. Perrin, 10 Pick, 228.
6 Even if only on the stamp, for its cancellation. Holbrook v. N. J. Zino Co. 57
N. Y. 616.
6 1 Pars, on Pr. N. Ac. 41.
1 Smith v. Shoemaker, 17 Wall. 637.
8 Joseph v. Bigelow, 4 Cush. 82, 84. SHAW, Ch. J. This case, so far as it ex-
cludes the evidence in connection with proof of mistake or fraud, goes too far.
9 Breck v. Cole, 4 Samlf. 79 ; Germania Bank v. Distler, 4 liun, 638.
10 Knox v. Clifford, 88 Wise. 651, s. c. 20 Am. R. 28.
11 Walker v. Clay, 21 Ala. 797.
11 Thompson v. Ketcham, 8 Johns. 190.
18 Blakemore Y. Wood, 3 Sneed (Tenn.) 470.
410 ACTIONS ON NEGOTIABLE PAPER.
should be due, on default in one, cannot be proved. 1 But an error
in date for payment, obvious on the face of the paper, may be
corrected by parol. 8 A variance between the allegation and proof
as to the time when payable, or the length of time to run, even if
substantial, should be disregarded if defendant is not misled to
his prejudice; 3 and amendment should be allowed, if necessary,
to identify the instrument. If the law allows grace, evidence of
a usage to the contrary is not competent. 4
39. Amount.] The sum stated in the body prima facie gov-
erns ; 5 and if complete and unambiguous, cannot be varied by
parol, 6 even if the marginal figures are diiferent. 7 The figures
in the margin serve to aid and explain apparent defects in state-
ments of the amount in the body, but if there is no statement in
the body, marginal figures do not supply the blank, 8 but only
limit the holder in filling it. 9 Mistake in the amount written,
when available as a defense, must be pleaded. 10
40. Medium.'] For the purpose of showing the medium of
payment, evidence of the place where the contract was made, and
subject to the law of which it was to be performed, is competent ;
and if there are several currencies, oral evidence of which w r as
intended is competent. 11 Otherwise, an unambiguous designation
cannot be qualified by oral evidence that a different or depreci-
ated medium was intended, 18 unless fraud or mistake is shown.
Proof of the foreign law is not essential ; but the value, unless
established under the act of Congress, 13 may be shown, like the
1 Brown v. Wiley, 20 How. U. S. 442. But the writing does not exclude oral
evidence that it was falsely read over at the time of signing, and that the true agree-
ment Was diiferent. Farmers' & Manufacturers' Bank v. Whinfield, 24 Wend. 419.
If there is an ambiguous character in the instrument, evidence of how it was read to
the signer at the time of signing is competent (subject, however, to the rules as to
bonn fide holders stated below) ; for in such a case the reading of the note to the
maker is part of the res gestce. Arthur v. Roberts, 60 Barb. 680.
2 Miller v. Cray ton, 3 Supin. Ct. (T. & C.) 360; and see 13 Conn. 282, 285, n.
3 Chapman ". Carolin, 3 Bosw. 456 ; Page v. Bank of Alexandria, 7 Wheat. 35 ;
Sebree v. Dorr, 9 Wheat. 558. Contra, at common law, Trowbridge v. Didier, 4
Duer, 448.
4 Woodruff v. Merchants' Bank, 25 Wend. 673; and see 16 N. Y. 395. But com-
pare Renner v. Bank of Columbia, 9 Wheat. 581 ; Bank of Washington v. Triplett,
1 Pet 32.
6 Norwich Bank v. Hyde, 13 Conn. 282.
6 Glazoway v. Moore, Harper (S. C.) 401 ; Hall v. Mott, Brayton (Vt.) 79.
7 Rose. N. P. 353, citing Saunderson v. Piper, 5 N. C. 425 ; Wolfolk v. Bank, <tc.
10 Bush (Ky.), 504.
8 Norwich Bank v. Hyde (above).
9 Boyd v. Brotherson, 10 Wend. 93.
10 See Seeley v. Engell, 13 N. Y. 542.
11 Thus a contract made in the Confederate States, during the war of the rebellion,
to pay " dollars," may be shown by parol evidence to mean Confederate currency.
Thorington v. Smith, 8 Wall. 1 ; Donley v. Tindall, 32 Tex. 43, 8. c. 5 Am. R. 234.
But without such evidence the legal presumption is that lawful money of the United
States was meant. Confederate Note Case, 19 Wall. 548. As to what kind of evi-
dence of intention would suffice, see id. p. 559.
13 Baugh v. Ramsey, 4 T. B. Monr. 156 ; Bradley v. Anderson, 5 Vt. 152.
13 U. S. R. S. 3564, 3565. Compare McButt v. Hoge, 2 Hilt. 81 ; Stranaghan
V. Youmans, 65 Barb. 392.
RULES APPLICABLE GENERALLY. 411
value of chattels in a distant market, by the opinions of wit-
nesses. 1 The court is not bound to take judicial notice of the
value even of Canadian currency, 2 unless fixed by or under the act
of Congress. 8
41. Interest.'] If the instrument fixes the time for paying
interest, either by specifying it, or by naming no time, and thus
in legal effect making it payable only at maturity, oral evidence
that it was to be paid previously or periodically is not compe-
tent, 4 unless fraud or mistake is shown.
The court is not bound to take judicial notice of the rate of
interest, even in a neighboring country, 5 but may do so. The
rate in another State or nation is not presumed to have the same
limits as here ; but the foreign statute should be proved by the
party relying on it. 8
42. Place of payment^ In the absence of anything on the
paper to indicate or restrict the place of payment, the presump-
tion of law is that it is payable where dated, if dated at anyplace;
otherwise, where made or delivered. The designation on the note
cannot be varied by a contemporaneous parol agreement fixing a
different place ; nor by evidence of a different residence of the
parties. 7 A variance in designating the particular place of pay-
ment specified in the body of the note is to be disregarded, unless
defendant has been misled. 8 Parol evidence of an agreement
contemporaneous with the making of negotiable paper, that it
should be payable at a specified place not expressed in it, is not
competent. 9
1 Kermott v. Ayer, 11 Mich. 181 ; Comstock v. Smith, 20 Mich. 338; pages 307-
311 of this vol. ; Schmidt v. Herforth, 5 Robt. 124.
8 Kermott v. Aver (above).
3 McButt v. Ho'ge, 2 Hilt. 81 ; U. S. R. S. S564, 3565.
4 Koehring v. Muemminghoff, 61 Mo. 403, s. c. 21 Am. R. 402. As to varying
the rate of interest by parol, compare Rohan v. llanson', 11 Cush. 44; Shoop v.
Clark, 4 Abb. Ct. App. Dec. 235.
6 Kermott v. Ayer, 11 Mich. 181.
6 Kermolt v. Ayer, 11 Mich. 181. As to the mode, see p. 22 of this vol.
7 2 Pars, on I'r.'N. &c. 833, 338. Prof. Parson's six rules (2 Pars, on Pr. N. <tc.
324) as to the law of place applicable to negotiable paper are :
I. If a bill or note be payable in a particular place, it is to be treated as if made
there, without reference to the place at which it is written, or signed, or dated.
II. If by the express terms of a note or bill, or by legal construction of its terms,
it is payable especially in any place, it is presumed that both parties know this
fact.
III. It is presumed that both parties know the law of the place in which the paper
is payable ; and
IV. That both parties intend that this law shall govern the contract.
V. While this law governs the contract as to all the rights and obligations rest-
ing upon it, the law of the place in which such a note or bill is sued (the lex fori)
governs the remedies upon the note or bill.
VI. The lex loci contractus depends not upon the place where the note or bill is
made, drawn or dated, but upon the place where it is delivered from drawer to
drawee, from promisor to pavee, from indorser to indorsee. See 6 Abb. New Cas. 76.
8 Rose. N. P. 852; Comstock v. Savage, 27 Conn. 184.
9 Specht v. Howard, 16 Wall. 565. Contra, Brent v. Bank of Metropolis, 1 Pet.
89, affi'g 2 Cranch C. Ct 530.
412 ACTIONS ON NEGOTIABLE PAPER.
43. Defeasance.'] Oral evidence that defendant delivered the
instrument to plaintiff, on a present condition which he refused
to perform, as distinguished from a future contingency, or the
future performance of a condition, is competent ; * and BO it may
be shown that he made it as part of an entire verbal contract, as,
for example, that it was given for the price of property sold, on a
contemporaneous agreement that if the property fell below a
given measurement, an abatement from the note should be made ;
and that, on measurement, it did so fall short ; 2 or that it was
made and delivered as security only. 3 And a written agreement be-
tween the same parties, contemporaneous with the instrument,
may be proved as part of the res gestce, though it vary the legal
effect of the instrument. 4 But, effectual delivery or indorsement 5
not being negatived, parol evidence of an agreement, contem-
poraneous with the instrument, that it should be void in a certain
event, is inadmissible. When, however, such an agreement has
been executed by the return of the consideration to the payee, and
his acceptance thereof, the evidence is competent as introductory
to the latter facts. 7
44. Particular fund / Agreement to set-off to renew."]
Upon the same principle oral evidence is inadmissible to show
that the paper was to be paid out of a particular fund only, 8 or
only in the contingency of a fund being realized by the maker 9
or the payee ; 10 or that before payment could be required certain
collateral securities must be applied. 11 Nor is it competent to
show a contemporaneous oral agreement, that a cross demand
should be applied in reduction of the note, 13 as distinguished from
1 Shepard v. Hall, 1 Conn. 497 ; Calhoun v. Davis, 2 Jnd. 532. Thus it may be
proved that a note was delivered not as such, but as a mere memorandum of a cross
note loaned to the maker (Seymour v. Cowing, 4 Abb. Ct. -A pp. Dec. 200, 206); but
not that it was given ft.r anticipated services, on an agreement that it should not be pay-
able if the services were not rendered; Dale v. Pope, 4 Litt. 166; West v. Kelly. 19
Ala. 353 ; or for the price of goods to be returned if not satisfactory. Allen v. Fur-
bish, 4 Gray, 504. (Contra, Folger v. Donsman, 37 Wise. 619.) Nor even that it was
given for a disputed demand on an agreement to surrender it, in case a receipt could
not be found; Brown v. Hull, 1 Den. 400; or for a release, by the payee, of his in-
terest in an estate, with an agreement that, if the interests of the other heirs could
not be obtained, both the note and release should be void. Ely v. Kilborn, 5 Den.
514
* Carter v. Hamilton, Seld. Notes, No. 6, 80, rev'g 11 Barb. 147 ; Lewis v. Gray,
1 Mass. 297, 1 Greenl. Ev. 284a, and cases cited. Contra, Miller v. White, 7
Blackf. 491.
8 Agawam Bank v. Strever, 18 N. Y. 502 ; Moses v. Murgatroid, 1 Johns. Ch. 119.
Contra, Walker v. Crawford, f.6 111. 444, s. c. 8 Am. R. 701.
4 Rogers v. Broad n ax, 27 Tex. 238.
* Skinner v. Church, 36 Iowa, 91.
6 Payne v. Ladue, 1 Hill, 116.
7 Bank of Lyons v. Demmon, Hill & D. Supp. 398, and cases cited.
8 Gridley v/Dole, 4 N. Y. 486 ; Adams v. Wilson, 12 Mete. 138.
9 Underwood v Simmons, 1 2 Mete. 276.
10 Currier v. Hale, 8 Allen, 47. As to the rule when the note refers to the fond,
see Sears v. Wright, 24 Me. 278.
11 Abrey v. Crux, L. R. 5 C. P. 37.
18 Eaves v. Henderson, 17 Wend. 190; St. Louis Ins. Co. v. Homer, 9 Mete. 39.
RULES APPLICABLE GENERALLY. 413
a reduction by a failure of consideration; 1 nor that the paper
should be renewed, in whole 2 or in part, 8 at maturity.
45. Subsequent modification.'] A subsequent modification of
the terms, founded on sufficient consideration, may be proved, as
between the parties bound thereby, if alleged in pleading, other-
wise not. 4 If in writing, parol evidence of qualifications of it is
not competent. 5
46. Indorsement.'] The mode of proving indorsement is the
same as that of other signatures. The use of initials or other
writing or characters, may be shown by parol to have been
made as an indorsement. 6 Indorsement in the hand of the maker
maybe sustained by parol authority from the payee, 7 or by recog-
nition or holding out. 8 Evidence that a lost note was acquired
by purchase or in payment for property, raises no presumption
tnat it was indorsed by the transterrer. 9 There is a legal but not
conclusive presumption that an undated indorsement was made
before the paper became dne ; 10 which is allowed for the sake of
the negotiable character of paper ; but if the time is material to
plaintiff, in any other respect than this, the burden of proof is on
him to show the time. 11 The presumption may be rebutted by
any competent evidence that the paper remained the property of
the payee after its maturity ; 12 but the declarations and admissions
of the payee, indorser, or other holder, are not competent for this
purpose against the subsequent holder, 13 unless part of the res
gestce of an act properly in evidence. Even where it appears that
the indorsement was for accommodation, the transferee may rely
on the prima facie presumption that it was made before negotia-
tion to him. 14
A valuable consideration for an indorsement is presumed ;
and it is incumbent upon the other party to show the real consid-
eration, if inadequate. 15 If the indorsement is relied on merely
as a transfer of title, evidence that there was no consideration is
not, by itself, relevant. 16
I Smith v. Carter, 25 "Wise. 283.
8 Burge v. Disliman, 5 Blackf. 272; Ockington v. Law, 66 Me. 651; Anspach v.
Bast, 52 Penn. St. 356.
3 Barton v. Wilkins, 1 Miss. 75 ; Dawson v. Bank of 111. 5 111. 56. But an agree-
ment to renew, indorsed, though unsigned, may be valid. Flynn v. Mudd, 27 111. 323.
4 Newell v. Salmons, 22 Barb. 647.
B Alston v. Wingfield, 53 Geo. 18.
6 Merchants' Bank v. Spicer, 6 Wend. 443 ; Brown v. Butchers, <tc. Bank, 6 Hill,
443.
' T Turnbull v. Trout, 1 Hall.. 336.
8 Weed v. Carpenter, 10 We'nd. 403.
9 Woods T. Gassett, 1 1 N. H. 442.
10 Rose. N. P. 381 ; 2 Pars, on Pr. N. <fec. 10.
II Pars, on Pr. N. <fcc. 10; Solomon v. Holt, 8 E. D. Smith, 139.
"Id.
13 Page 12 of this vol. Contra, 2 Pars, on Pr. N. <frc. 10.
14 See Michigan Bank v. Eldred, 9 Wall, 544, and cases cited.
15 Riddle v. Mandevillc, 5 Cranch, 322.
16 See Chapter I. City Bank of N. II. v. Perkins, 29 N. Y. 554, affi'g 4 Bosw. 420.
414 ACTIONS ON NEGOTIABLE PAPER.
47. Oral evidence to vary an indorsement.'] The law recog-
nizes five principal objects for which indorsement may be made,
which are distinct from, and often inconsistent with, each other.
These objects (the first two of which are often conjoined in one
indorsement) are : 1. To show that the indorser transfers the legal
title ; 2. To show that he acknowledges his liability, in case of
dishonor and notice, according to the law merchant ; 3. To show
that one who may have not nad nor transferred title, lends his
credit to the paper on the like condition ; 4. To show that the in-
dorser constitutes the transferee his agent for collection ; 5. To
show payment received. In the absence of extrinsic evidence,
there is a legal presumption that an indorsement was in-
tended for the first two purposes and those only. He who
relies on either purpose alone or on either of the other
two, to characterize the act, must show that such was the
object ; and the question whether oral evidence is competent
for this purpose is much contested. Two very different rules
are invoked to exclude such evidence ; one that it is oral evi-
dence to vary a writing, the other that subsequent transferees
in good faith, &c., have a right to rely on the legal presump-
tions of intent to transfer and become liable. The better opinion
is that the rule against oral evidence to vary a writing, does not
exclude such evidence for the purpose of showing what the ob-
ject and consequent legal character of the contract was ; * but
when its legal character has been ascertained, evidence of a con-
temporaneous oral agreement is not competent to vary the legal
consequences or measure of its effect. Yet the rule protecting
transferees in good faith, &c., does exclude all extrinsic evidence,
whether oral or written, when offered to deprive them of the
effect of the legal presumptions above stated.
Hence, except as against a transferee in good faith, &c., oral
evidence is admissible to show that the object was not to assume
the liability of an indorser, but only to transfer title, on a sale of
the note, 2 or upon a special trust, such as to enable the indorsee
to collect it as agent for the indorser, 3 or to transfer it in payment
of a debt, 4 or to show, as between successive indorsers, that they
were sureties, and what was their relative liability to each other, 5
1 The contract between indorser and indorsee does not consist exclusively of the
writing popularly called an indorsement. The contract consists partly of the writ-
ten indorsement, partly of the delivery of the bill to the indorsee, and may also con-
sist partly of the mutual understanding and intention with which the delivery was
made by the indorser and received by the indorsee. That intention may be col-
lected from the words of the parties to the contract), either spoken or written, from
the usage of the place, or of the trade from the course of dealing between the parties
or from their relative situation. Bruce v. Wright, 5 Supm. Ct. (T. & C.) 81 ; Castrique
v. Buttigieg, 10 Moore P. C. 94, and cases cited ; Byles on B. 147 ; Ro^s v. Espy, 66
Penn. St. 481, s. c 6 Am. R. 394, and cases cited; Key v. Simpson, 22 How. U. S.
841. Contra, 1 Dan. on Neg. Inst. 632.
* Bruce v. "Wright (above); or as agent, Elwell v. Dodge, 33 Barb. 386.
' Sweeny v. Easter, 1 Wall. 166.
* Davis v. Brown, 94 U. S. (4 Otto), 423.
' Phillips v. Preston, 6 How. U. S. 278, and se p. 257 of this vol.
RULES APPLICABLE GENERALLY. 415
or whether the words " without recourse " qualify the preceding
or following name, 1 or to show that the indorsement was made
only to be used as evidence of payment of the instrument. 2
But even between the immediate parties to the indorsement,
parol evidence is not admissible to show a contemporaneous agree-
ment that in consideration of the indorser's omitting to qualify
his indorsement with the words " without recourse," the plaintiff
would hold him harmless from all liability, 3 nor that the indorser
would be liable without demand or notice. 4 The rule that to this
extent an indorsement cannot be varied by parol, is a rule of evi-
dence, and does not go to the validity of the contract. Hence the
law of the forum applies. 5
To establish joint liability of consecutive indorsers, there
must be independent proof of contemporaneous execution, 6 unless,
perhaps, where they are the partners in the firm to whose order
the paper was payable. 7
The qualifying agreement should be pleaded; 8 it may, how-
ever, be available under a denial of indorsing. 9
48. Indorsement as a transfer of title. ~\ The object of the
statute 10 is that before an indorsee can recover, in his own name,
the contents of an instrument payable to order, he shall show
that he has acquired a property in it, by a transfer from those
who were the original payees. 11 The statute is satisfied by an in-
dorsement by the real payees ; and parol evidence is competent to
show that an indorsement which, on its face does not appear to
represent the payees, legally does so. 12
The fact that two persons, not partners, are joint payees or
indorsees, is no evidence of authority in one to indorse the name
of the other. 13
I Fitchburg Bank v. Greenwood, 2 Allen, 434.
8 Morris v. Faurot, 21 Ohio St. 155, e. c. 8 Am. R. 45.
Dale v. Year, 38 Ct. 15, s. c. 9 Am. R. 353.
4 Bank of Albion v. Smith, 27 Barb. 489; Tebbetts v. Pickering:, 5 Cash. 83;
Barry v. Morse, 3 N. H. 132. Contra, 1 Dan. 717. But a subsequent waiver by
parol may be shown. See paragraph 45 ; and perhaps an express authority to over-
write a guaranty might be shown. Oottrell v. Conklin, 4 Duer, 45.
6 Downer v. Chesebrough, 36 Conn. 89, s. c. 4 Am. R. 29.
6 Wetherwax v. Payne, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150.
7 Bell v. Massey, 14 La. Ann. 831.
8 See Meador v. The Dollar Savings Bank, 66 Goo. 605.
9 Marston v. Allen, 8 M. & W. 503 ; Rose. N. P. 360 ; Denton v. Peters, L. R. 5 Q.
B. 475.
10 1 N. Y. R. S. 768, 4, same stat. 3 A 4 Anne, c. 9.
II Pease v. Dwight, 6 How. IT. S. 198.
12 Id. Thus parol evidence is admissible to show that the apparent payee ia dead,
and that the indorser is his administrator (see 2 Pars, on Pr. N. 5) ; that an individual
name indorsed in place of a firm name of payees, was the name habitually used, by
the firm for their indorsements. South Carolina Bank v. Case, 8 Barnw. <fe C. 436.
That a name of a payee, whose indorsement is apparently necessary and is lacking,
was put or left in as payee by mistake, so as to entitle an indorsee of the true payee
to recover as indorsee, actually, though not apparently, of the whole interest. Pease
v. Dwight (above).
13 Wood v. Wood, 1 Harr. (N. J/) 428 ; 3 Pars, on Pr. N. <tc. 4, and see p. 189, of
this vol. Contra, Snelling v. Boya, 5 Monr. 173.
416 ACTION ON NEGOTIABLE PAPER.
49. Demand.] Though the instrument be payable on demand,
it is not necessary, except as against drawer or indorser, to prove
a demand, 1 even though alleged. 2
50. Non-payment.] Plaintiff's possession of the paper is suffi-
cient prima facie evidence of breach by non-payment. 8
51. Indorsements of payment, &c.~] The holder producing
the instrument from his own custody, puts it in evidence subject
to the disadvantage of whatever indorsements in reduction of it
appear upon it. 4 As against him such indorsements need no
further proof than their appearance. They are not evidence in
his favor, against others, without some evidence of handwriting,
signature, or other assent. They are evidence against him, unless
explained. Such an indorsement, if dated, is presumed (as
against the holder who puts it in evidence) to have been made at
the time of its date, and, unless otherwise expressed, will be un-
derstood to indicate a transaction had at that time. If not dated,
it is not presumed to have been made at or before delivery, with-
out extrinsic evidence to that effect." Such indorsements are not,
however, conclusive. 6
52. Competency of a party to the instrument to impeach it.
The New York Rule.'] The better opinion is that parties to ne-
gotiable paper are equally competent as any other witnesses to
testify to any facts impeaching its validity. 6
53. the United States' Court rule.] In the Supreme Court
of the United States, and in some of the State courts, it is held,
on the contrary, that a person who has placed his name on a nego-
1 Fairchild v. Ogdensbnrg, Clayton & Rome R. R. Co. 15 N. Y. 837.
s Burnham v. Allen, I Gray, 496.
3 Howell v. Van Sicklen, 6 Hun, 115. It is often said that plaintiff need not
prove non-payment ; but this is because his possession raises a sufficient presump-
tion of non-payment. In an action by the payee's administrator against the maker,
the presumption of discharge arising from the maker's possession of the note is not
rebutted by the mere fact of the payee's death. The question is for the jury. Larre-
more v. Wells, 29 Ohio St. 13. Compare Grey v. Grey, 47 N. Y. 552. In Powell v.
Swan, 5 Dana, 1, it was held, in a peculiar case, that the fact that a note, with the sig-
nature of the promisor torn off, remains in the possession of the promisee, repels the
presumption of payment.
4 Morris v. Morris, 5 Mich. 171,180; Thompson v. Blanchard, 2 Iowa, 44, 48;
Greenough v. Taylor, 17 111. 602. (Contra, of full payment, Ray v. Bell, 24 111. 444,
not well considered.) Even if the indorsements have been erased. Carson v. Dun-
can, 1 Greene (Iowa). 466; Graves v. Moore, 7 T. B. Monr. 341.
6 Kingman v. Tirrell, 11 Allen, 97.
6 This is the general rule administered now in England, Jordain v. LashbrooA, 7
T. R. 601; and in Alabama, Griffing v. Harris, 9 Port. 225 ; Connecticut, Jackson v.
Packer, 13 Conn. 342; Georgia, Slack v. Moss, Dud. 161; Kentucky, Gorham v. Car-
roll, 3 Litt. 221 ; Maine (in a very qualified form), Abbott v. Kose, 62 Me. 194, s. c.
16 Am. R. 427 ; compare Deering v. Sawtel, 4 Greenl. J91 ; Maryland, Ringgold v.
Tyson, 3 Harr. & J. 172; Michigan, Orr v. Lacey, 2 Doug. 230; Missouri, Bank of
Mo. v. Hull, 7 Mo. 273; St. John v. McConnell, 19 Id. 38; New Hampshire, Haines
v. Dennett, 11 N. H. 180; New Jersey, Freeman v. Britton, 2 Harr. 191 ; New York,
Williams v. Walbridge, 3 Wend. 415; North Carolina, Guy v. Hull, 3 Murph. 150;
South Carolina, Knight v. Packard, 3 MoCord, 71 ; Texan, Parsons v. Phipps. 4 Tex.
841 ; Vermont, Pecker v. Sawyer, 24 Vt. 45 ; Virginia, Taylor v. Beck. 3 Rand.
816.
RULES APPLICABLE GEITERALLY. 417
tiable paper, as a party to it, is not afterward, in a suit on such
security, competent as a witness to prove any fact existing at the
time of his accrediting the paper, which would tend to impeach
or invalidate it. 1
"Where this rule is recognized, it is generally restricted so as
not to apply except to negotiable paper indorsed and put into cir-
culation in the usual course of business, before maturity or dis-
honor, 2 nor to apply between original parties or those affected with
notice of their equities, 3 nor to exclude testimony to a fact subse-
quent to the act by which the witness gave credit to the paper, 4 or
to a fact not impairing the validity of the paper, but consistent with
its terms, 5 nor to apply to one who indorsed " without recourse." 6
54. Admissions and declarations.'] The admissions and dec-
larations of a party sought to be charged are, in general, compe-
tent against himself , 7 whether made to the plaintiff or a stranger;
but not competent in his own favor, unless connected with the
party against whom they are adduced, or part of the res gestce of
an act properly in evidence. 8
The admissions and declarations of a former holder of the in-
strument are not competent against a subsequent holder if made
after he parted with his title to the instrument. 9 If made before
1 Sweeny v. Easter, 1 Wall. 166. The reason assigned for this rule sufficiently indi-
cates its unsoundness, viz., that it is against good morals and public policy to permit a
person who has thus aided in giving currency and circulation to such paper to testify
to facts which would render such paper void, after he has thus imposed it upon the
public as valid, with all the sanction which his name will give it. This is a good
reason for holding him, as a party to the action, estopped from alleging or proving
such a fact ; but it is not a reason for silencing him as a witness, if the law allow
the fact to be alleged and proved, and it rests within his knowledge.
Nevertheless the rule has been recognized not only in, earlier English cases now
overruled, and in the Supreme Court of the United States, Sweeny v. Easter (above) ;
but also in Ittin&R, Dewey v. Warriner, 71 111. 198, e. c. 22 Am. 11. 91 ; Iowa, Strang
v. Wilson, 1 Morris, 84; Louisiana, Shamburgh v. Commagere, 5 Martin (La.), 9;
Maine, Deering v. Sawtel, 4 Greenl. 191 ; but compare Abbott v. Rose, 62 Me. 194,
s. c. 16 Am. R. 427; Massachusetts, Thayer v. Grossman, 1 Mete. 416; Mississippi,
Drake v. Henly, Walk. 641 ; Pennsylvania, Gaul v. Willis, 26 Penn. St. 259 ; Parke v.
Smith, 4 Watts <fe S. 287; Ohio, Treon v. Brown, 14 Ohio, 482 ; Tennessee, Smithwick
v. Anderson, 2 Swan. 673.
9 Parke v. Smith, 4 Watts <fe S. 287 ; Rohrer v. Morningstar, 18 Ohio, 679 ; Smith-
wick v. Anderson, 2 Swan. 573 ; Thayer v. Grossman, 1 Sletc. 416.
3 Eastwood v. Creecy, 1 MacA. 232; Bubier v. Pulsifer, 4 Gray, 592. Thus the
witness may testify to facts showing that the objector was not a bona fide holder.
Id.
4 Such as omission to give notice of dishonor to charge the indorser, Drake v.
Ilenly, Walk. (Miss.) 641 ; or an alteration, Haines v. Dennett, 11 N. H. 180 ; Sham-
burgh v. Commagere, 5 Mart. (La.) 9.
Sweeny v. Easter, 1 Wall. 174.
2 Pars, on Pr. N. & B. 470.
T As to admissions where there is a joint or a several liability, see p. 188 of this
vol.
8 As to what constitutes part of the res gestce, compare Osborn v. Robbins, 87 Barb,
482. rev'd in 86 N. Y. 365; Dexter v. Clemens, 17 Pick. 176.
' City Bank of Brooklyn v. McChesney, 20 N. Y. 240. But they may be made
competent by showing that he acted as agent for the subsequent holder, see Lancey
v. Clark, 3 liun, 675/affi'd in C4 N. Y. 209.
27
418 ACTIONS ON NEGOTIABLE PAPER.
that, they are not competent against a transferee for value, even
after dishonor, 1 unless his interest is legally identical with that
of the declarant, 2 or he took with actual notice of the facts. 3 The
fact that the declarant had possession of the instrument at the
time of making declarations and admissions is not alone sufficient
to render such statements competent against the one who was
then the owner. 4
55. Foreign law.~\ Matters bearing upon the execution, the
interpretation, and the validity of the contract, are generally to
be determined by the law ot the place where it was made; 5
matters connected with its performance by the law of the place
for performance ; 6 and matters respecting the remedy, including
questions of the admissibility of evidence, 7 upon the law of the
forum. 8
The law merchant is presumed by the court, in the absence of
evidence to the contrary, to be the same beyond as within its
jurisdiction. 9 But that law cannot override the local laws and
legalized commercial usages of any State which sees fit to alter
it? Such law of a foreign State, if different from our own, must
be proved as any other fact, in the modes allowed by law. 11 The
court need not notice the foreign local law judicially without such
f 19
proof."
II. ACTION BY PAYEE (OB ORIGINAL "BEABER") AGAINST MAKER.
56. Plaintiff's case.'] In addition to general rules already
stated, it is only necessary to add that a due bill, 13 or a draft
drawn by one officer or agent on another officer or agent of the
same principal, 14 is admissible under an allegation 01 a promis-
sory note.
The payee need not prove indorsements on the back of the
instrument. His possession of the instrument is prima facie
(but not conclusive) evidence of his title, 15 even though it have his
1 Jermain v. "Worth, 5 Den. 342, rev'd on another point in 6 N. Y. 276. Otherwise
of actual transactions as distinguished from loose oral declarations. Id.
8 The rule stated in the text is the New York Rule. Paige v. Cagwin, 7 Hill, 361.
For contrary rules, see p. 12 of this voL
8 Roe v. Jerome, 18 Conn. 138, 152.
4 Scott v. Stevenson, 3 Hun. 352, s. o. 5 Supra. Ct. (T. & C.) 352.
5 Scudder v. Union National Bank, 91 U. S. (1 Otto), 406 (and see Tilden v. Blair,
21 Wall. 241.; Wayne Co. Bank v. Low, 6 Abb. New Cas. 76 and cases cited).
6 Id.
7 Downer v. Cheseljrough, 36 Ct. 89.
8 Scudder v. Union National Bank (above). See page 411, n. 7.
' See Leavenworth v. Brockway, 2 Hill, 201 ; compare Dollfus v. Frosch, 1 Den.
367.
10 2 Pars, on Pr. N. <fec. 817.
11 See pp. 22 and 23 of this voL
12 Donegan v. Wood, 49 Ala. 242, s. c. 20 Am. R. 276.
13 Kiraball v. Huntington, 10 Wend. 675.
14 Fairchild v. Ogdensburgh, Clayton & Rome R. R. Co. 15 N. Y. 337.
15 For the rule in cases of partnership, see p. 224 ; and for evidence of transfers
among them before suit, Whitlock v. McKecknie, 1 Bosw. 427.
ACTION AGAINST ACCEPTOR. 419
indorsement upon it. 1 But if there are suspicious circumstances,
he may be put to further proof. 2 If it appear that he inserted
his own name as payee, in a blank left in a note payable to order,
he must adduce evidence that he was intended as payee, or au-
thorized to insert his name. 3 If it appear that there are two persons
of the payee's name, plaintiff's possession is some evidence that
he is the one intended, 4 but it is best to be prepared with other
evidence. Defendant's possession of the note, 5 even though it be
canceled, 6 is not conclusive evidence against plaintiff's right to
recover. If it appear that plaintiff had at one time transferred
the note to a third person, evidence of a re-assignment, 7 or that
the transfer was without consideration, and merely for a tem-
porary purpose which had failed, such as to enable him to bring
an action, which has been discontinued, is admissible. 8
III. ACTION AGAINST ACCEPTOR.
57. Accep ta nee.'] Against the acceptor, his acceptance must
be proved, if in issue ; which is done by producing the bill, with
evidence of his handwriting. This raises a presumption of ac-
ceptance within due time and according to the course of busi-
ness. 9 If the words do not necessarily import acceptance, although
such as to be sufficient if unexplained, parol evidence is compe-
tent to show the circumstances under which they were written,
and accompanying declarations which are not necessarily incon-
sistent with the writing. 10 At common law, a parol acceptance
may be proved either by a promise to pay or to accept an existing
bill, 11 or by a promise to accept a future bill coupled with evidence
that the bill was taken on the faith of the promise. 12
Under the statute, a writing, signed, or at least signature, 13
must be shown, 14 in the case of any bill accepted and to be paid
in this State. 15
1 Mottram v. Mills, 1 Sandf. 37.
s Grant v. Vaughan, 3 Burr. 1627.
3 Crutchly v. Mann, 5 Taunt. 529. But see paragraph 34.
4 Sweeting v. Fowler, 1 Stark. 106 ; Stebbing v. Spicer, 8 C. B. 827.
5 Garlock v. Geortner, 7 Wend. 198.
6 Grey v. Grey, 47 N. Y. 652, rev'g 2 Lans. 173.
7 Smith v. Childress, 27 Ark. 328; s. P. Washoe v. Hibernia Fire Ins. Co. 7 Hun, 75.
8 Hatters' Bank v. Phillips, 38 N. Y. 128.
9 Rose. N. P. 856, citing Roberts v. Bethel!, 12 C. B. 778.
10 So held where the indorsement was : " I take notice of the above." Cook v.
Baldwin, 120 Mass. 317, s. o. 21 Am. R. 517. When from the position of names in
the paper it is uncertain which is drawer and which is acceptor, parol evidence may
be given in an action by the payee, to show the intention of the parties. Walton v.
Williams, 44 Ala. N. S. 848; and see Druiff v. Lord Parker, L. R. 6 Eq. 131.
11 Edson v. Fuller, 22 N. H. (3 Post.) 189; Bank of Michigan v. Ely, 17 Wend.
611, per NELSON, Ch. J.
12 Ontario Bank v. Worthington, 12 Wend. 698.
13 Spear v. Pratt, 2 Hill, 683. See Walker v. Bank of State of N. Y. 9 N. Y. 684.
14 1 N. Y. R. S. 768, 6 (2 R. S. 6th ed. 1160); Blakiston v. Dudley, 5 Duer, 376.
Otherwise of a_n order operating as an assignment. Morton v. Naylor, 1 Hill, 684 ;
compare Luff v. Pope, 5 Id. 417.
16 N. Y. &c. Bank v. Gibson, 5 Duer, 683.
420. ACTIONS ON NEGOTIABLE PAPER.
One suing on a conditional acceptance must show performance
of the condition. 1
58. Other facts.'} Acceptance being proved, the drawer's
signature is thereby admitted and need not be proved ; but the
genuineness of an indorsement made by the drawer of a bill pay-
able to his own order, though made at the time of drawing and
before acceptance, is not admitted, 2 but must be proved. An
acceptance 8 precludes the acceptor from proving that the drawers
were legally incapable of contracting, 4 or that they were not a
firm as indicated by the bill itself, 8 but not from proving altera-
tion of the body of the instrument. 6 Due presentment for ac-
ceptance is proved by proof of acceptance. 7
59. Promise to accept.'] An agreement or promise to accept,
if equivalent in law to acceptance, may be proved under an alle-
gation of acceptance; 8 and no consideration need be shown. 9
Absolute written 10 authority to draw is equivalent to an uncondi-
tional promise to accept, 11 within the statute ; but authority to
draw must point with certainty to the bills sued on. 13 A con-
ditional authority or promise is not enough under the statute, 14
even if the condition be shown to have been performed. 15 In
case of an acceptance on a separate paper, or a promise to accept
a future bill, it is not essential to prove that the writing was
shown to the person who took the bill ; it is enough, if informed
of it, he took the bill on the faith of it. 16 To recover as bona
fide holder, against an acceptor who would not be bound other-
wise, it is not enough to show parting with value before the
acceptance, even in reliance that the bill would be accepted as
other like bills had been before. 17
' Read v. Wilkinson, 2 Wash. C. Ct. 514 ; Ford v. Angelrodt, 37 Mo. 50. Whether
a qualification imports a condition is a question of law for the judge. Sprout v.
Matthews, 1 T. R. 182 ; Rose. N. P. 355.
2 Pars, on Pr. N. <fec. 483. And evidence of the genuineness of the latter
having been given, the jury may compare the two. Id. A variance in stating the
initial of first name of drawer will not sustain a general denial. (Jlalliu v. Griffin,
8 Bosw. 689.
3 Even if for honor. Rose. N. P. 380.
4 Rose. N. P. 358.
5 2 Pars, on Pr. N. Ac. 484.
6 White v. Continental Bank, 64 N. Y. 316.
7 Edson v. Fuller, 22 N. H. (2 Fost.) 183, 186.
8 Ontario Bank v. Worthington, 12 Wend. 593. But it may be specially pleaded.
Barney v. Worthington, 37 N. Y. 112 ; and should be if general. Boyce v. Edwards,
4 Pet. 111.
9 Ontario Bank v. Worthington (above).
10 So held of a telegram. Johnson v. Clark, 39 N. Y. 216.
11 Ulster Co. Bank v. McFarlan, 5 Hill, 434.
13 IN. Y. R. S. 1160, 8.
13 Boyce v. Edwards, 4 Pet. 121, and cases cited.
14 Shaver v. Western Union Tel. Co. 57 N. Y. 459.
15 N. Y. <fe Virginia, <fcc. Bank v. Gibson, 5 Duer, 584 ; contra, per DWIQHT, C.,
dissenting in Shaver v. Western Union Tel. Co. 57 N. Y. 467.
16 Bank of Mich. v. Ely, 17 Wend. 508.
" Farmers', <fcc. Bank v. Empire Stone Dressing Co. 10 Abb. Pr. 47, s.c.5 Bosw.275.
AGAINST DRAWER, Ac., ON NON-ACCEPTANCE. 421
60. Several parts, or duplicates.] In an action against the
drawer or indorser, of a bill of exchange drawn in parts, plaintiff
must produce at the trial the identical bill or number of the set
that was protested, or account for its absence. 1 Extrinsic evi-
dence is competent for the purpose of showing that the word
" duplicate " written across the instrument, was affixed because it
was given merely as a substitute for a lost original, 8
IV. ACTION AGAINST DRAWEE; ON NON-ACCEPTANCE.
61. Refusal to accept.] In an action against drawer or in-
dorser, for the drawee's refusal to accept, presentment for accept-
ance must be alleged and proved ; 8 and it is sufficient for the
plaintiff to show that the drawee refused to accept in the terms
of the bill. 4 On the question what was a reasonable time for
presentment, the distances, the means of communication, the
usages of trade, the fluctuations of exchange, and illness or in-
evitable accident, are relevant. 5 If presented to an agent, plaintiff
must give some evidence of authority to accept or refuse, but
this may be circumstantial, as, for instance, that the person was
the drawee's clerk, known to be accustomed to do this kind of
business for him. 6
62. Excuse for non-presentment.'] Evidence that the drawer
had no funds in the hands of the drawee from the time the bill
was drawn till the time it became due, dispenses with the neces-
sity of presentment, 7 unless the drawer shows he had a reason-
able expectation that it would be paid. 8 As against the drawer,
his oral request to delay presentment is competent. 9
Without proof of agency to speak for the drawer, the drawee's
declarations, though made at the time of presentment, that he
had no funds of the drawer in his hands, are not admissible
against the drawer. 10
1 Wells v. Whitehead, 15 Wend. 627. As to effect of the words " second of ex-
change, first unpaid," see Bank of Pittsburgh v. Neal, 22 How. U. S. 96, and cases
cited.
* Benton v. Martin, 40 N. Y. 345, qualifying result in 31 Id. 382.
8 Mercer v. Southwell, 2 Show. 180; Rose. N. P. 367.
4 Boehm v. Garcias, 1 Camp. 425, n. ; Rose. N. P. 367.
6 Pars, on Pr. N. Ac. 342.
6 Pars, on Pr. N. <fec. 849.
T Kingsley v. Robinson, 21 Pick. 328. The presumption is that the drawee is in
fonds. Thurman v. Van Brunt, 19 Barb. 409; even though several places of pay-
ment are named. North Bank v. Abbot, 1 3 Pick. 465. Evidence of a refusal to pay
the drawer's drafts a day or two before and after may be sufficient to rebut this pre-
sumption. Ransom v. Wheeler, 12 Abb. Pr. 139.
8 Carle v. White, 9 Greenl. (Me.) 105. The allegation of no funds is disproved if
it be shown that the drawer had effects on their way to the drawee, though they
never reached him. Rose. N. P. 378.
9 Sheldon v. Chapman, 31 N. Y. 644.
10 Carle v. White, 9 Greenl. (Me.) 104. And the notary's statement of such dcclar.
ations inserted in his protest is not evidence. Dumont v. Pope, 7 Blackf. 807;
Dakin v. Graves, 48 N. H. 46.
422 ACTIONS ON NEGOTIABLE PAPER.
Although the acceptance was expressed to be payable at a
particular place, the acceptor is prima facie liable without alle-
gation or proof of demand for payment there. It is for him to
show readiness to pay if he rely on that. 1
Y. AGAINST DRAWER, &c. ; ON NON-PAYMENT.
63. Acceptance and presentment.'] If the acceptance specifies
a place other than the acceptor's residence as the place of pay-
ment, there must be evidence of the handwriting of the acceptor. 8
Evidence that the drawer, after the return of the bill to him for
non-payment, and after inspection of the bill, promised to pay
it, raises a presumption against him that the acceptance is genu-
ine. 3 Evidence of presentment at the place specified is admis-
sible, under a general allegation that the bill was duly presented. 4
And under an allegation that a bill drawn on one as of a specified
address, and accepted generally, was presented to the drawee for
payment, evidence that the holder went to the address, but found
no one there, is admissible. 5
Other rules as to dishonor are stated below, in connection
with those as to charging indorsers.
YL ACTIONS AGAINST INDORSERS, &c.
64. Execution of the instrument^ It is not necessary, as
against an indorser, to prove the signature of the maker, 6 drawer, 7
or of prior indorsers. 8 Nor can the indorser question their capa-
city ; 9 nor the genuineness of the signatures. 10 Under a denial
of indorsing, defendant may show that, without negligence on his
part, his signature was fraudulently obtained, without any inten-
tion on his part to indorse. 11 The rules applicable to the mode
of proving the defendant's indorsement, 12 and to oral evidence to
vary it, 13 have been already stated.
As against an indorser, on non-payment of a bill by the
drawee, evidence .of a presentment for payment, at the place, if
any, pointed out in the acceptance, is enough, without proving
the acceptance itself. 14
1 Green v. Goings, 7 Barb. 652 ; Terbell v. Downer, 28 Vt. (1 "Will.) 511.
8 Rose. N. P. 369.
1 Mottram v. Mills, 1 Sandf. 37.
4 Rose. N. P. 369.
8 Id.
8 Dalrymple T. Willenbrand, 62 N. Y. 5, affi'g 2 Hun, 488, s. c. 6 Supm. Ct. (T. &
C.) 57.
I Rose. N. P. 381, 399.
8 Evidence of a misspelling of such a name is admissible to show that it was in-
tpnded to make the paper payable to a fictitious person. Turnbull v. Bowyer, 40 N.
Y. 456,\affi'g 2 Robt. 406.
9 Id. ; Erwin v. Downs, 15 N. Y. 575.
10 See Turner v. Keller, 66 N. Y. 66.
II Foster T. Mackinnon, L. R. 4 C. P. 704; Rose. N. P. 380.
12 Paragraphs 46 and 4 to 26.
13 Paragraphs 47 and 48, and 26.
14 Rose. N. P. 381. *
ACTIONS AGAINST INDORSERS, Ac. 423
65. Pleading facts to charge indorserJ] An allegation of de-
mand and notice of dishonor is essential ; and its omission is not
dispensed with by giving a copy of the instrument and alleging
the sum due, and performance of conditions, &c., in the short
form, allowed by Code of Procedure, for pleading instruments for
the payment of money only. 1 Under an allegation of demand
and notice, the fact must be proved, and an excuse for failing to
demand, 2 or to give notice, 3 is not admissible 4 without amend-
ment; 5 but indirect evidence, such as a subsequent promise to
pay, or an actual part payment, or an admission of liability, is ad-
missible ; 6 and evidence of an informal demand, with reasons justi-
fying it, as distinguished from excuse for non-demand, is admis-
sible. 7
66. Cogency of the evidence.'} The evidence of demand and
notice must be sufficiently clear. Mere probability of proof is
not enough ; 8 but direct and positive evidence is not essential. 9
67. Time of demand.'] The court may take judicial notice
of the law merchant which allows grace, 10 and of the occurrence of
Sundays, 11 and other universally known festivals, such as Christ-
mas. 12 Evidence of usage is not competent, in opposition to the
established principles of law, as to shorten the time fixed by law. 13
Evidence that demand was made, at the proper place and on the
proper day, is prima facie evidence that the act was done at a
proper time of the day. 14 According to high authority, those
1 Conkling v. Gandall, 1 Abb. Ct. App. Dec. 423.
3 Garvey v. Fowler, 6 Duer, 587 ; Dolph v. Rice, 18 Wise. 397 ; Shultz T. Depuy,
3 Abb. Pr. 252 ; Rose. N. P. 377. The excuse is deemed one of the facts constitut-
ing the cause of action. Pier v. Heinnchoffen, 52 Mo. 333. Contra, at common law,
Williams v. Matthews, 3 Cow. 252; 2 Greenl. on Ev. 197. approved by Daniel,
vol. 2, p. 90, Ac. 1048. The variance ought to be freely amendable if it has not
misled. An express written acknowledgment of demand, <fcc., is competent under an
allegation of the demand, <fec., although it be proved as matter of fact that there was
none ; if the acknowledgment was made with full knowledge of the facts. Camp v.
Bates, 11 Conn. 487.
8 Curtis v. State Bank, 6 Blackf. 312; Rose. K P. 377.
4 Leeson v. Pigott, Bayley on Bills, 9th ed. 409.
6 Rose, on P. 369, 377.
6 Bank of United States v. Lyman, 1 Blatchf. 297, B. c. 20 Yt. 666, 679, affi'd 12
How. 225; Sherman v. Clark, 3 McLean, 91. Evidence that the drawees after ma-
turity repeatedly promised to pay the bill, is sufficient to sustain a finding that it
was duly presented at maturity, although the drawees testify it was not so presented.
Patterson v. Stettauer, 40 Super. Ct. (J. <fe S.) 54.
1 Rose. N. P. 369, 379 ; Jones v. Fales, 4 Mass. 245 ; City Bank v. Cutter, 3 Pick.
414.
8 Martinis v. Johnson, 1 Zabr. (N. J.) 239. But compare Kane v. Ins. Co. 20
Am. R. 409
9 Commercial Bank v. Strong, 28 Vt. 816.
10 Renner v. Bank of Columbia, 9 Wheat. 581.
11 Mechanics <fe Farmers' Bank v. Gibson, 7 Wend. 460.
14 Sasscer v. Farmers' Bank, 4 Md. 409, 420.
13 Randall v. Smith, 63 Me. 105, s. o. 18 Am. R. 200. Compare City Bank v.
Cutter, 3 Pick. 414.
14 Wiseman v. Chiappella, 23 How. (U. S.) 368 ; DeWoJf v. Murray, 2 Sandf. 166 ;
Fleming v. Fulton, 7 Miss. (6 How.) 473.
424 ACTIONS ON NEGOTIABLE PAPER.
who make paper payable at a bank are bound by the usage of the
bank, whether they Know it or not. 1 The court may take judicial
notice of what are banking hours within their own local jurisdic-
tion, but will not do so as to places beyond the State. 2
68. Place of demand?\ If the paper specifies the place of
payment, the evidence must show aemand there ; 3 if not,
the place of date, 4 or, if undated, the place of making, 5 is pre-
sumptively the place for payment ; but oral evidence not contradict-
ing what is thus expressed, is competent. 6 If a specific address is
not stated or shown by extrinsic evidence, the plaintiff, in order to
rely on the fact that holder had the note at the place generally
mentioned, on the day, ready to receive payment, must show that
the maker had no ascertainable place of business or residence there. 7
69. Authority to demand^ The fact that the instrument
was in the possession of the notary or other person making the
demand, is prima facie evidence of his authority to demand
payment. 8
TO. Identity of maTcer or drawee, or authority of agent or
servant.'} To show that the demand was made on the proper
person, indirect evidence is sufficient, and very slight evidence
has often been accepted, in the absence of all evidence to the
contrary. Answers made by a person applied to as the maker or
drawee, on a demand of payment, admitting himself to be the
person supposed, are admissible as part of the res gestce, and are
presumptive evidence that the person of whom the demand was
made was the maker or drawee. 9 For this purpose, parol evi-
dence is competent, 10 and very slight evidence may be enough.
It is not sufficient to show that the bill was presented to some
person on the premises of the maker or drawee without connect-
ing them. 11
A notarial certificate, competent to prove demand, is prima
facie evidence of the identity of the person on whom the demand
1 1 Dan. Neg. Inst. 662.
2 See 1 Dan. Neg. Inst. 601.
3 Meyer v. Hibsher, 47 N. Y. 270. But evidence of special agreement, or of
usage equivalent thereto, is competent to show that notice to the maker what bank
held the note was contemplated and was given, in lieu of literal demand. North
Bank v. Abbot, 13 Pick. 464.
4 Nailor v. Bowie, 3 Md. 251.
6 Id. ; Herrich v. Baldwin, 17 Minn. 209, s. c. 10 Am. R. 161.
6 Meyer v. Hibsher, 47 N. Y. 271. And see King v. Crowell, 61 Me. 244, s. c. 14
Am. R. 560.
7 Meyer v. Hibsher (above).
8 Bank of Utica v. Smith, 18 Johns. 239 ; Burbank v. Beach, 16 Barb. 331.
9 Hunt v. Maybee, 7 N. Y. 266 ; s. p. Howard v. Holbrook, 9 Bosw. 237, s. c. 23
How. Pr. 64.
10 Staenbach v. Bank of Virginia, 11 Gratt. 260.
11 Cheek v. Roper, 5 Esp. 175 ; Rose. N. P. 367.
ACTIONS AGAINST INDORSEES, Ac. 425
was made, or, equally, of the fact stated that he was a member of
the firm l or agent for the maker or drawee. 2
71. Production of the instrument.'} Yisible production of
the instrument need not be proved if the person making demand
had it there in his possession, and there was an absolute refusal
to pay. 3 The fact that the notary had the instrument with him,
though not stated, may be presumed in aid of his certificate. 4
When the instrument is made payable at a bank, if the bill is
the property of the bank, the presence of the instrument there
need not be proved, as the presumption of law is, that the paper
was in the bank, and the burden rests upon the defendant to
show that the party liable called to pay it. 5 Even if not the
property of the bank, plaintiff need not show that the instrument
was in the hands of the officer of the bank whose duty it was to
receive payment ; and the contrary would not be material, if the
note was in the bank ready for payment, 8 and remained unpaid.
If shown to have been in the bank, the presumption is that the
proper officer could have obtained it. Evidence that it belonged
to the bank, raises a prima facie presumption that it was there. 7
72. Due diligence in demand.'] On the question whether
due diligence was used in making inquiry, the answers made by
persons of whom inquiry was properly made, are competent as
parts of the res gestce, not as evidence of the facts stated, but as
bearing on the question of diligence. 8 If the person making de-
mand or inquiry is dead, his memoranda, made in the course of
duty, of his acts in pursuance of inquiry are competent. 9 So
where the law requires diligence to collect of maker and prior
indorsers, the record of an action against them is competent. 10
73. Official protest as evidenced] By the law merchant, de-
mand, presentment and dishonor of a foreign negotiable bill of
exchange (that is, of one payable without the State) u can be
proved for the purpose of charging a drawer or indorser, only by
1 Elliott v. White, 6 Jones (N. C.) 98. But compare Otsego Co. Bank v. Warren,
18 Barb. 290.
2 Dickerson v. Turner, 12 Ind. 223; Phillips v. Poindexter. 18 Ala. 579. Contra,
Drumni v. Bradfute, 18 La. Ann. 680. The evidence is aided by the presumption of
official regularity. See Gardner v. Bank of Tennessee, 2 Swan, 420.
8 King v. Crowell, 61 Me. 244, 8. o. 14 Am. R. 560; Etheridge v. Ladd, 44 Barb.
69.
4 Ross v. Bedell, 5 Dner, 462 ; Union Bank v. Foulkes, 2 Sneed 655.
1 Chicopee Bank v. Philadelphia Bank, 8 Wall. 641, and cases cited.
6 Otherwise if mislaid. Chicopee Bank v. Philadelphia Bank (above).
1 1 Pars, on Pr. N. <fcc. 437.
8 Adams v. Lelnnd, 80 N. Y. 309, affi'g 5 Bosw. 411.
9 Halliday v. Martinet, 20 Johns. 168.
10 Caraden v. Doremus, 3 How. (U. S.) 515 ; 2 Whart. 823.
11 Whether protest is competent in case of a bill drawn without, and payable and
protested within the State, see 2 Dan. Neg. Inst. 969, and cases cited; Brain v.
Preece, 11 Mees. & W. 775.
426 ACTIONS ON NEGOTIABLE PAPER.
protest ; l and no part of these facts can be proved by extrinsic
evidence. If the demand and notice were made by the clerk or
partner of the notary whose certificate of the act is relied on,
evidence of a local usage for the notary's clerk to make the de-
mand, is competent and necessary ; 2 and the usage must be shown
to relate to the class of paper in question, foreign or domestic. 8
In the case of promissory notes 4 and inland I ills, 5 the com-
petency of the notarial certificate depends entirely upon statute '
Where proof by certificate is, by statute, substituted for common-
law evidence, all the forms directed by the statute, whether pre-
1 By notary's certificate or by proof that it was made at a place where there was
no resident notary, and by a substantial person of the place. Chanoine v. Fowler,
8 Wend. 173; and see Burke v. McKay, 2 How. (U. S.) 66.
4 Commercial Bank of Ky. v. Varnum, 49 N. Y. 269, s. o. 11 Am. Law Reg. (N.
S.) 307, rev'g 3 Lans. 86 ; Cribbs v. Adams, 13 Gray, 600.
3 1 Dan. Neg. Inst. 587 ; 2 Dan. Neg. Inst. 926.
4 Bond v. Bragg, 17 111. 69. Contra, in some States, as to notea payable in one
State and indorsed by a resident of another State. Williams v. Putnam, 14 N. H. 540.
So, too, evidence of usage may avail in some jurisdictions. See Townley v. Sumrall,
2 Pet. 170.
6 Union Bank v. Hyde, 6 Wheat. 572 ; Nicholls v. Webb, 8 Id. 326.
8 See, for instance, Walker v. Turner, 2 Gratt. 534.
The New York Statutes, as to notarial certificates, are as follows :
" The certificate of a notary public of the State, under his hand and seal of office,
of the presentment by him, for acceptance or payment, or of the protest, for non-ac-
ceptance or non-payment of a promissory note or bill of exchange, or of the service of
notice thereof on a party to the note or bill ; specifying the mode of giving the notice,
the reputed place of residence of the party to whom it was given, and the post-office
nearest thereto, is presumptive evidence of the facts certified, unless the party,
against whom it is offered, has served upon the adverse party, with his pleading, or,
within ten days after joinder of an issue of fact, an original affidavit, to the effect,
that he has not received notice of non-acceptance, or of non-payment of the note or
bill. A verified answer is not sufficient as an affidavit, within the meaning of this
section." Code Civ. Pro. 923, from L. 1833, c. 271, 8 (3 R. S. 6th ed. 445, 36) ;
and see 3 R. S. 6th ed. 1163.
" In case of the death or insanity of a notary public of the State, or of his absence
or removal, so that his personal attendance, or his testimony, cannot be procured, in
any mode prescribed by law, his original protest, under his hand and official seal, the
genuineness thereof being first duly proved, is presumptive evidence of a demand of
acceptance, or of payment, therein stated ; and a note or memorandum, personally
made or signed by him, et the foot of a protest, or in a regular register of official acts,
kept by him. is presumptive evidence that a notice of non-acceptance or non-payment
was sent or delivered, at the time, and in the manner, stated in the note or memo-
randum." Code Civ. Pro. 924, from 2 R. S. 283, 284, 46, 47 (3 R. S. 6th ed. 444,
446).
" Proof of the presentment, for acceptance or payment, of a promissory note or
bill of exchange, payable in another State, or in a Territory, or foreign country, or of
a protest of the note or bill, for non-acceptance, or non-payment, or of the service of
notice thereof, on a party to the note or bill, may be made, in any manner authorized
by the laws of the State, Territory, or country, where it was payable." Code Civ.
Pro. 925, from L. 1865, c. 309 (2 R. S. 6th ed. 1164, 82).
The act of 1833, above stated, has no application to the case of a certificate of a
notary of this State to the presentment of a note drawn payable at a place in another
State. Dutqhess Co. Bank v. Ibbotson, 5 Den. 110; Kirtland v. Wanzer, 2 Duer,
278. Nor does it make a notary's certificate evidence of an excuse for not presenting
e. g., that on due inquiry he had been unable to find the maker. Furniss v. Hol-
land, 1 Edm. 470. Where the notarial certificate makes no mention of the service
of notice of protest, a memorandum at the foot of the draft annexed to the certi-
ficate, is no evidence of such service. Bank of Vergennes v. Cameron, 7 Barb. 143.
ACTIONS AGAINST INDORSEES, <feo. 427
liminaiy or substantial, must be strictly complied with. 1 A stat-
ute making the notarial certificate or record evidence on notes or
inland bills, does not make it evidence in the courts of another
State; 2 nor does a statute making it evidence of demand and
dishonor, imply that it is to be received as evidence of notice in
the courts of the same State. 8 If the statute declares the notarial
certificate to be evidence, the certificate must not purport to be
a mere copy of a record from the notary's books. But it need not be
made out and signed at the time of making the protest. 4 The
official certificate is not rendered incompetent by the fact that
it was drawn up, 5 or a mistake in it was corrected by the notary 6
after suit brought.
If there is not annexed 7 to an answer denying notice of pro-
test, an affidavit of denial of receipt of notice, as required by the
act of 1833, 8 the notary's certificate is presumptive evidence ; and
this presumption is not destroyed by defendant's testimony on
the trial, that he did not receive the notice sent through the post-
office. 9
In New Tork, a plaintiff relying on the act allowing protest
in another State to be proved according to the law of that State, 10
should produce the foreign certificate duly authenticated accord-
ing to the law of the place where made, with evidence of the law
of that place, sufficient to show that the facts stated in the certi-
ficate do, by that law, charge the party. 11 If the certificate does
not state the facts, there should be other proof, or at least evi-
dence that by the same law such a general certificate is suffi-
cient. 12
Where protest is competent, but not the only competent evi-
dence, extrinsic evidence of necessary facts not sufficiently stated
in it, 13 and not inconsistent with it, is competent. A protest, when
exclusively relied on to prove the necessary facts, must contain
sufficient averments that everything requisite has been done to
authorize the demand upon the indorser; 14 but the court will
make all reasonable presumptions of detail in aid of the certificate
which are justified by the language of its statements ; 15 yet, should
not, in general, presume a precedent act like demand, from a
1 Rogers v. Jackson, 19 Wend. 383.
2 Kirtland v. Wanzer, 2 Duer, 278.
8 Curtis v. Buckley, 14 Kans. 449. Compare 2 Dan. Neg. Inst. 18. Contra, 2 Pars,
on Pr. N. <fcc. 498.
4 Brandon v. Loftus, 4 How. 127.
5 Cayuga Co. Bank v. Hunt, 2 Hill, 635.
6 Estep v. Cecil, 6 Ohio St. 536, and cases cited.
1 Gawtry v. Doane, 51 N. Y. 89.
8 Note 6 p. 427 (above), 923.
9 Dunn v. Devlin, 2 Daly, 122.
10 See note above, 925.
11 Lnwson v. Piuckney, 40 Super. Ct. (J. <fe S.) 187
'*Id.
13 Nailor v. Bowie, 8 Md. 251.
14 People's Bank of Baltimore v. Brook, 31 Md. 7, s. c. 1 Am. R. 11.
15 See 2 Dan. Neg. Inst. 962, 964.
428 ACTIONS ON NEGOTIABLE PAPER.
statement of a subsequent act like notice ; nor matters of fact,
like inquiries, from a mere legal conclusion, such as an allegation
of due diligence. The protest, when admitted, is prima facie
but not conclusive * evidence of the facts stated, and within the
official power and duty of the notary. Any statement in it may
be rebutted by any competent testimony. 2 If the certificate
states what is necessary, the fact that the notary or clerk called
as a witness has no recollection, does not impair its effect.
74. Sealed Certificate^ The notary's official seal is sufficient
prima facie evidence of the authenticity of the certificate. The
courts take judicial notice of the seal, and it proves itself by its
appearance 8 in any part of the certificate. 4 But it may be con-
troverted as fictitious or improperly affixed. 5 A seal printed, 6 or
scrawled, 7 is not enough at common law ; but an impression in
the paper is prima facie sufficient ; 8 and it will be presumed to
have been affixed according to the law of the country where the
dishonor occurred, until there is something to impeach it. 9
75. Unsealed Certificate."] If the certificate is not under the
notary's seal, or not made by the notary in person, it does not
prove itself, and there must be extraneous evidence to show that
it was duly made by the person officiating, and that by the
law of the country where it was made, it is sufficient without a
seal. 10
76. Copy.~] A duly authenticated duplicate protest, 11 or a
verified copy, 12 drawn up from the notary's book, is admissible
secondary evidence in lieu of the original sent abroad. If the
statute makes a certified copy of the record admissible evidence, it
is not necessary to account for the non-production of the original. 13
Testimony as to the form of notice the notary was accustomed
to use, and a copy of his blank, are competent secondary evi-
dence in connection with evidence that he sent the usual notice.
77. Secondary evidence of statutory certificate.'] But where
the competency of the certificate depends on the statute, the neces-
sary facts cannot be proved by showing that a notary's certificate
I Nelson v. Fotterall, 8 Leigh, 118.
4 2 Dan. Neg. Inst. 959.
3 United States v. Libby, 1 Woodb. & M. 221, and cases cited ; 2 Dan. Neg. Inst
945. Contra, as to foreign notaries, 1 Whart. Ev. 286, 320; not sound here.
4 Olcott v. Tioga R. R. Co. 27 N. Y. 546, affi'g 40 Barb. 179.
6 2 Dan. Neg. Inst. 945.
6 Richard v. Boiler, "(5 Daly, 460, s. c. 51 How. Pr. 371.
7 Rosa v. Bedell. 5 Duer, 462, and cases cited.
8 And is sufficient by statute in N. Y. 2 N. Y. R. S. 276, 10 ; Id. 404, 61.
9 Id. 947. As to defective seal, see Re Phillips, 14 Nat. Bkcy. Reg. 219, and
cases cited; Donegan v. Wood, 49 Ala. 242, s. c. 20 Am. R. 280.
10 2 Dan. Neg. Inst. g 946, 948.
II Geralspulo v. Wieler, 10 C. B. 690, 715, 8. c. 20 L. J. C. P. 105 ; Phillips v.
Poindexter, 18 Ala. 579.
12 Halliday v. McDougall, 20 Wend. 81 ; Mauri v. Heffernan, 13 Johns. 58.
JS McAfee v. Doremus, 5 How. 53.
ACTIONS AGAINST INDORSEES, Ao. 429
of those facts, once existed, and has been lost, and then proving its
contents. The statute makes the certificate evidence ; which is
an innovation on the common law. If the certificate itself is not
produced, the statute is not complied with, and common law evi-
dence of the presentment, &c., must be given. 1
78. Memoranda to refresh memory ^\ Under the rule already
stated, 3 the person who did any act to charge the indorser, may
refresh his memory by reading his contemporaneous entry ; but
to render his testimony sufficient, either the fact must appear
stated in the entry, or he must be able to remember it. His ar-
gumentative belief that a fact not stated must have existed, be-
cause he would not have entered other facts if it had not, is not
enough. 3
79. Memoranda of deceased person.] In cases where produc-
tion of protest is not essential, the entries and memoranda,
whether in his book or on the instrument, 4 made by the notary
or his clerk, or a bank officer, 5 or messenger, 6 since deceased,
whose obligation it was to do the act, and who made the memo-
randum contemporaneously in the course of his duty, are com-
petent as memoranda in the usual course of business, 7 or to re-
fresh memory, 8 to prove facts so done. It is no objection that
the person was a notary, 9 and notarial protest was unnecessary or
not effectually accomplished. 10 Hence a protest of an inland bill
or a note, even if not admissible by statute as primary evidence,
is, after the notary's death, competent secondary evidence, as a
memorandum made in the usual course of business. 11 If the per-
son who made the entry is living his testimony must be adduced. 12
The entry can prove no more than what it states ; and if it omits
to state the residence of the indorser, the post-office to which
notice was addressed, or any other material fact, it cannot be
inferred. 13
Experts may be called to decipher abbreviated and elliptical
entries in the book of a notary who is deceased, 14 as distinguished
from testifying what the construction is. 15
1 Dutchess County Bank v. Ibbotson, 5 Den. 110.
J Page 320 of this vol. Sasscer v. Farmers' Bank, 4 Md. 409.
* Gaylor v. Stringer, 1 Hilt. 337. Compare Bank of Columbia v. McKenney, 3
CranchC. Ct. 361.
4 Hart v. Wilson, 2 Wend. 513.
8 Nichols v. Goldsmith, 1 Wend. 160, and cases cited.
6 Welsh v. Barrett, 15 Mass. 380.
' Nicholls v. Webb, 8 Wheat. 326 ; Halliday v. McDougall, 20 "Wend. 85.
8 Cole v. Jessup, 10 N. Y. 100. See the rules as to such mem. on pp. 331, 332, of
this vol., and Lewis v. Kramer, 3 Md. 265.
9 Gawtry v. Doane, 51 N. Y. 84, affi'g 48 Barb. 148.
10 Cole v. Jessup (above).
11 Porter v. Judson, 1 Gray, 175, SIIAW, Ch. J.
" Wilbur v. Selden, 6 Cow. 162.
13 2 Dan. Neg. Inst. 1057, and cases cited. Paragraphs 73 and 78 (above).
14 Sheldon v. Benham, 4 Hill, 129.
1* Compare Duncan v. Watson, 10 Miss. 121.
430 ACTIONS ON NEGOTIABLE PAPER.
80. Legal notice to charge indorser.~\ Notice may be shown,
either directly, by evidence of actual notice seasonably received
by defendant j 1 or by evidence of due diligence by the holder in
sending notice ; 2 or indirectly, by evidence that defendant has
expressly or irnpliedly admitted that he had due notice. 8
81. Identity of person served.] The same rules as to the evi-
dence of the identity of the person served apply as in case of the
person on whom demand is made, 4 and, if anything, more
freely, because the defendant charged can the better rebut the
evidence.
82. Executors and Administrators, .] To charge the estate of
a deceased person on his indorsement, matured after his death,
the holder must show service of the notice at the last residence,
or last place of business of the deceased, or on the executor
named in the will, if any ; or on one who actually at the time is
administrator, or special administrator. Service on one who was
named executor in the will, and who had been removed or re-
nounced, is not sufficient, if it appear that, with reasonable dili-
gence, the holder might have ascertained the existence of a
special administrator, who was the proper person to receive the
notice. 5
83. Time of service.'] If plaintiff relies on direct evidence of
notice, whether actual or constructive, he must distinctly show
that it was given on the proper day. 6 It will not suffice to show
that it was given on one of two days, if the latter would be too
late. 7
84. Actual noticed] To show actual notice an oral communi-
cation may be proved ; 8 but evidence of mere knowledge, 9 or of
notice from a stranger, 10 is not enough.
If a number of parties were entitled to notice, it is sufficient
to charge any one, to show that notice actually reached him in
such a time as would be required for the intermediate parties to
transmit it to him in the usual course of the mail, allowing each
one his day. 11 But the courts need not take judicial cognizance
of the course of the mails. 13 That should be shown by the party
1 Paragraph 84.
* Paragraphs 8590.
I Hyde v Stone, 20 How. U. 8. 170 ; 2 Dan. Neg. Inst. 1050.
4 See paragraph 70. Hunt v. Maybee, 7 N. Y. 266.
* Goodnow v. Warren, 122 Mass. 79, s. c. 23 Am. R. 289,' and cases cited. Com-
pare Maspero v. Pedesclaux, 22 La. Ann. 227, s. c. 2 Am. R. 727.
6 Friend v. Wilkinson, 9 Gratt. 31.
7 2 Dan. Neg. Inst. 1051.
8 Woodin v. Foster, 16 Barb. 146 ; Cuyler v. Stevens, 4 Wend. 566.
* Rose. N. P. 371.
10 Walmsley v. Acton, 44 Barb. 812 ; 2 Dan. Neg. Inst. 988.
II 2 Dan. Neg. Inst. 1053. Compare Sheldon v. Benham, 1 Hill, 429, and Van
Brnnt v. Vaughn, 7 Reporter, 397, s. c. 47 Iowa.
18 See Early v. Preston, 1 Patt & H. (Va.) 228.
ACTIONS AGAINST INDORSEES, <fco. 431
relying on it. It would be better for plaintiff to show also that
he gave notice in due season to his immediate indorser. When
he has shown that notice reached the remote party within the
time which would regularly be consumed, it will be for the
latter to show a defective link in the chain of notices, if any
there be. 1
A denial of receiving notice may be sustained by testimony
of a clerk or cashier, leaving it to cross-examination to inquire
into his means of knowledge. 2
85. Due diligence by the holder.'} If it be shown that due
and legal diligence was used by the holder in sending notice, a
conclusive legal presumption of notice attaches, or, in other
words, the fact that the notice was never received becomes im-
material. 3
86. Place of directing notice.~] The place of date of the in-
strument is prima facie but not conclusive evidence, for the
purpose of notice, that the maker or drawer resides there. 4 And
coupled with other circumstances, it may be evidence of the res-
idence of the indorser. Such circumstances should, however, be
strong and persuasive, for there is no prima facie presumption
that an indorser resides at the place of date, or at the place of
payment. 5 A certificate of service, specifying the reputed res-
idence to which the notice was sent, is prima facie evidence of
the reputed place of residence of the party notified. 6 But the
place of residence or business is not sufficiently shown by the
notary's certificate, merely that he mailed the notice addressed
to the indorser at, &c. 7
The better opinion is, that in all cases, no matter how long
the paper had to run, notice addressed to the indorser at the
place where he resided when he made the indorsement is suffi-
cient to charge him, although he may have changed his residence,
unless it be shown that the holder had received information of
the change of residence. 8
An erroneous address may be sustained by evidence that the
party held himself out as resident there, 9 or directly caused the
mistake by the manner of his own writing, 10 so as to be estopped
from objecting.
1 2 Dan. Neg. Inst. 1053.
1 Union National Bank v. Sixth National Bank, 1 Lans. 13 ; 43 N. Y. 452.
* Dickens v. Beal, 10 Pet. 572, 582.
4 2 Dan. Neg. Inst 1030. It is a slight presumption. Lowery v. Scott, 24 Wend.358.
6 Id. 1031.
6 Bell T. Lent, 24 Wend. 230, NELSON, Ch. J.
7 Bradshaw v. Hedge, 10 Iowa, 402 ; Kaine v. Rice. 2 Patt. A H. (Va.) 529 ; Tur-
ner v. Rogers, 8 Ind. 139; U. S. Bank v. Smith, 11 Wheat. 171. But a certificate
that he notified the indorser by mailing a notice to him addressed at, <fcc., has been
held sufficient, within the rule stated in the text. Wamsley v. Rivers, 34 Iowa, 463.
8 Requa v. Collins, 51 N. Y. 144, 148, approved in 2 Dan. Neg. lust. 1032.
9 2 Dan. Neg. Inst. 1029.
10 Manu <fcc. Bank v. Hazard, 30 N. Y. 226.
432 ACTIONS ON NEGOTIABLE PAPER.
87. Due diligence in inquiry. ,] The parties through whoso
hands negotiable paper has passed, are presumed to know the
residence of the parties from whom they received it, and of the
prior parties ; and therefore evidence that they were properly
applied to for information, and assumed to know, justifies acts
done upon information given by them. 1 Diligence is not shown
by merely consulting the directory, when other sources of ac-
curate information may be within the convenient reach of the
person whose duty it may be to secure it, through which it can
be obtained. 2 The notary's testimony that he made diligent in-
quiry and ascertained the reputed residence, &c., is sufficient to
go to the jury, if not objected to as too general. 3 Details may be
called out on cross-examination.
88. Evidence of the contents of the notice.'] The fact that
notice was given in writing does not preclude oral or other evi-
dence of the giving of due notice (either by direct testimony 4 or
by putting in evidence a duplicate) ; 5 and producing or giving
notice to produce the original is not necessary. But tnere should
be sufficient evidence of the contents of the written notice relied
on to show that it was due notice. 6 But it is not essential to
prove in detail the exact contents of the notice ; general testi-
mony, especially from the notary, may be enough. 7
89. Extrinsic evidence as to imperfect notice.'] Where the
notice served is erroneous in some particulars, rendering it am*
biguous on its face, evidence is admissible, to show that there was
only one note or bill to which it could possibly have applied. 8
Evidence of defendant's knowledge of the circumstances, is com-
petent, for the purpose of showing that he could not have been
misled. 9 Even when the notice is defective, it may be shown by
extrinsic evidence that the indorser was not misled as to the iden-
tity of the dishonored note ; 10 and if the notice be correct and suf-
ficient in view of the note or bill which it describes, it cannot be
rendered invalid by showing aliunde that notes, similar in par-
ties, date, amount, and time and place of payment, were out-
standing, and were only distinguishable from each other by their
numbering. 11
1 Beale v. Parrish, 20 N. Y. 407, rev'g 24 Barb. 243 ; Lawrence v. Miller, 16 N.
Y. 235.
2 Greenwich Bank Y. DeGroot, 7 Han, 213.
3 Carroll Y. Upton, 3 N. Y. (3 Comst.) 272.
4 Lindenberger v. Beall, 6 Wheat. 104; Rose. N. P. 376 ; Johnson Y. Haight, 13
Johns. 470. This is so whether the notice is given by a notary public or a private
person. Scott v. Betts, Hill & D. Supp. 363.
5 2 Dan. Neg. Inst. 1051.
6 Id. Smith v. Hill, 6 Wis. 154.
7 Dickens v. Beal, 10 Pet. 572 ; and see Lindenberger v. Beall, 6 Wheat. 104.
Cayuga County Bank v. Warden, 6 N. Y. 19, reaffi'g 1 Id. 413. Compare 1
Pars, on Pr. N. 474.
Cook v. Litchfield, 9 N. Y. 279.
10 Hodges v. Shuler, 22 N. Y. 114, affi'g 24 Barb. 68.
"Id.
ACTIONS AGAINST INDORSEES, Ac. 433
90. Mailing.'] Where the holder 1 and the party to be charged
by the notice, reside in different places, or the party entitled to
notice resides at a place other than the particular place at which
the bill or note is payable, or, after diligent inquiry was supposed,
though erroneously, to so reside, 2 it is in general, sufficient to
prove notice of dishonor duly addressed, and mailed within the
proper time. This done, the fact that the notice was not re-
ceived, is irrelevant. 3 The usage of a bank, if relied on to sus-
tain service by mail on persons residing in the same place should
be proved by clear and satisfactory evidence, so that it may be
presumed that the parties had reference to it in contracting. 4
In addition to rules already stated as to communications by
mail, 5 it may be observed that when one relies on mailing he must
show the mailing to have been in time to be timely received ac-
cording to the ordinary course. 6 The court is not bound to take
judicial notice of the course of the mails, nor of the time required
for a letter to go from one post-office to another. 7 In support of
mailing, as due diligence, plaintiff may give evidence of the usual
course of the mails, and the knowledge of the post-office authori-
ties and other circumstances throwing light on the question
whether the notice, as addressed and mailed, was reasonably dili-
gent, within the rule, 8 or even for the" purpose of raising a pre-
sumption that the notice was actually received, although due dili-
gence was not used. 9
A notary's certificate that notice was mailed, if competent,
raises a presumption that the postage was paid. 10 Such a certifi-
cate that it was " mailed for " the indorser raises a presumption
that it was directed to him. 11
91. Inference of delivery or mailing, from ordinary course of
'business.'] It is not necessary to show, by direct evidence, that
the particular letter containing the notice was put into the
mail. It may be inferred from indirect evidence, such as that
it was put with letters for the post-office by one clerk, and that
the letters of that day were deposited by another clerk ; or that
it was put with letters customarily made up in the usual course
1 See Bowling v. Harrison, 6 How. (IT. S.) 259.
* Saco Nat. Bank v. Sanborn, 63 Mo. 340, s. c. 18 Am. R. 224.
J Bussard v. Levering, 6 Wheat. 102; Rose. N. P. 374.
4 Bowling v. Harrison, 6 How. (U. S.) 259 ; 2 Dan. Neg. Inst. 1013.
6 Page 29 1 of this vol.
6 The presumption that notice of protest, <fec., sent by mail, reached the person
addressed, ends when the mode of conveyance is irregular and illegal, and the mail
may not be carried at all, and when it is known that the regular mail has been in-
definitely suspended. Donegan y. Wood, 49 Ala. 242, s. o. 20 Am. R. 279, and cases
cited.
1 Early v. Preston, 1 Patt. A H. (Va.) 228.
8 Dickens v. Beal, 10 Pet. 579.
Id.
10 Brooks v. Day, 11 Iowa, 46.
11 Smith v. Jane's, 20 Wend. 192 ; and see Dunn v. Devlin, 2 Daly, 122.
28
434: ACTIONS ON NEGOTIABLE PAPER.
of business for the postman, and that he invariably carried all the
letters found upon the table. 1 Where service is thus proved by
presumption from the ordinary course of business, the testimony
of each person through whose hands in ordinary course the letter
would have passed to the mail or to the custody of the postman,
should be adduced, 2 but it is not essential that each remember
the particular letter, and be able to negative its loss, &c. 8
02. Admissions of demand made and notice received.] The
protest may be proved by the express admission of the party
sought to be charged, without producing the notary or his certifi-
cate. 4 Such an admission, though strong evidence, is not conclu-
sive, even if written, but he may show that the paper was signed
under mistake, 5 unless another person has been induced to alter
his condition thereby. 6
An admission of liability, whether express 7 or implied, 8 or by
a promise, made to the holder, or to a third person, 9 if shown to
have been made subsequent to the dishonor, is competent evi-
dence from which to inter due demand, presentment and notice. 10
Part payment after maturity, by the drawer or indorser, is an ac-
knowledgment of liability; and if unexplained is presumptive
evidence against him of demand and notice. And if it be shown
that such part payment was made with knowledge of laches of
the holder, it constitutes a waiver. 11
The burden of proof is upon the plaintiff to show clearly and
distinctly the acknowledgment of liability or promise to pay;
but it matters not what particular phrase was used, if it amounted
to such acknowledgment or promise. If the promise was quali-
fied by a condition, evidence of its acceptance, or of performance
of the condition, is necessary to make it available as a waiver ; tt
but without such evidence, it is competent in connection with
other circumstances, as tending to show that due demand was
made and notice given. 13
When the admission or promise is adduced as evidence that
1 2 Dan. Neg. Inst. 1054.
8 See Hawkea v. Salter, 4 Bing. 715.
8 Commercial Bank v. Strong, 28 Vt. 316 ; Hetherington v. Kemp, 4 Campb. 193.
Compare Bradley v. Davis, 25 Me. 49.
4 Derrickson v. Whitney, 6 Gray, 248.
6 Commercial Bank of Albany v. Clark, 28 Vt. 325.
6 Heane v. Rogers, 9 Barn. <fe Cress. 577.
I Rose. N. P. 874.
8 As, for instance, by including the bill in the indorser's schedule of debts in in-
solvency, Hyde v. Stone, 20 How. U. S. 170; or in an account stated, Bank of U. S.
V. Lyman, 20 Vt. 666; or allowing judgment to go by default in an action brought by
a former holder of the same bill. Rabey v. Gilbert, 6 H. <fc N. 636; L. J. 80 Ex.
170; cited in Rose. N. P. 382.
9 Potter v. Ray worth, 73 East, 417; Rose. N. P. 382.
10 Lewis v. Brehme, 33 Md. 412, s. c. 3 Am. R. 190.
II 2 Dan. Neg. Inst. 1165.
Id 1162.
11 Id. 8 1164.
ACTIONS AGAINST INDORSEES, Ao. 435
notice was received, and not as evidence of a contract or waiver,
dispensing with the right to notice, 1 the burden is on the party
whose admission or promise is adduced, to show that he made it
without knowledge of the facts, and that the facts were not suffi-
cient to charge him. 2
93. Indirect evidence of notice.'] Evidence of any acts and
declarations of the party sought to be charged, which tend to
show that he had received notice is competent in aid of direct evi-
dence of actual notice or due diligence, such, for instance, as the
fact that he has taken back the original consideration of the dis-
honored note ; 8 or has taken indemnity ; 4 or has objected to pay-
ing solely on other grounds, 5 and the like.
94. Waiver of demand or notice.] If the holder has any
legal excuse for not having actually made demand and given
notice, it lies on him to prove it. 6 But such evidence is not
strictly admissible under an allegation of demand or notice. 7
The waiver may be proved by, 1, an express previous assent to
omission ; or 2, by subsequent promise with full knowledge ; or
3, by evidence that defendant gave the holder notice that the paper
would not be paid, and promised to make it good, even though
such notice did not reach the holder so as to influence his action
as to demand, &c. 8
Evidence that the indorser, with full knowledge of the laches,
unequivocally assented to continue his liability, or to be responsi-
ble as though protest had been made, establishes a waiver of
omission to demand and give notice. 9 The assent must be clearly
established, and will not be inferred from doubtful or equivo-
cal acts or language. 10 An express promise to pay, made after dis-
charge, and with full knowledge, is enough. But it is not neces-
sary to prove an express promise. Any transaction between him
and the holder is enough, which clearly indicates this inten-
tion. 11
Where a subsequent admission or promise is adduced as evi-
dence of a waiver of omission, as distinguished from using it as
evidence, that there was no omission, plaintiff must show that it
1 See Rose. N. P. 374.
8 Lewis v. Brehme (above); Tebbetts v. Dowd, 23 "Wend. 379.
3 Andrews v. Boyd, 3 Mete. 434.
* Ross v. Planters' Bank, 5 Humph. 335.
8 Curlewis v. Corfield, 1 Q. B. 814, s. c. 6 Jur. 259; 1 G. A D. 489.
8 United States v. Barker, 4 Wash. C. Ct. 464.
7 Paragraph 65. Contra, in some States. Harrison v. Bailey, 99 Mass. 620, and
approved by 2 Dan. Neg. Inst. 8 1049; and see 14 Wall. 874.
8 Yeagcr T. Farwell, 13 Wall. 13.
Ross v. Hurd, 71 N. Y. 18.
10 Ross v. Hurd (above).
11 Ross v. Hurd (above) ; such as saying, " I will waive protest. 1 ' Id. Or agree-
ing to consider the demand and notice as made in due time, and himself liable as in-
dorser. Duryea v. Dennison, 5 Johns. 248.
436 ACTIONS OX .NEGOTIABLE PAPER.
was made with full knowlege of the omission. 1 The weight of
authority is that in order to sustain a waiver by subsequent
promise, defendant's knowledge that he had not received regular
notice may be inferred, as a fact, from the promise under the at-
tending circumstances without requiring clear and affirmative
proof of knowledge. 2 Evidence of a consideration for waiver is
not necessary. 3
Even a previous written waiver may be explained by parol, 4
within the limits elsewhere stated. 5 Where there is on the face
of the instrument a written waiver of either act demand or
notice oral evidence is competent to show that there was also
a verbal waiver of the other act. 6
95. Want of funds as an excuse.] If a holder seeks to rely
on want of funds as an excuse for omission to demand and give
notice, the burden of proof is on him to show that there were no
funds in the hands of the drawee to meet the bill ; and this he
must do by affirmative proof, as it will be presumed that there
were funds, although the bill was dishonored. Having shown
that there were no funds, a,prima facie excuse is made out; and
if there were qualifying circumstances entitling the drawer to re-
quire strict presentment and notice such as his being an accom-
modation drawer, or keeping an open account, and the like he
must show them, for they lie peculiarly within his own knowl-
edge. 7 Evidence that an indorser had funds which he might law-
fully have applied to payment, but did not receive or hold solely
for the purpose, is not necessarily an excuse for omission to give
him notice ; but is enough -to go to the jury. 8
YII. IRREGULAR INDORSEMENT.
96. Payee against irregular indorser: New York doctrine."]
Evidence that defendant wrote his name on the back of the note
before its delivery to the payee, without any extrinsic evidence
of intention in so doing, raises a legal but not conclusive pre-
sumption that he did so for the payee's accommodation, intend-
J Tebbetts v. Dowd, 23 Wend. 379 ; Walker v. Rogers, 40 HI. 278. Contra, Loose
v. Loose, 36 Penn. St. 538, compare Wade on Notice, 429, and 2 Dan. Neg. Inst. 1 152
and 1157.
Knowledge of the law or the legal liability, as distinguished from the fact, need
not be shown. Matthews v. Allen, 16 Gray, 594.
8 Tebbetts v. Dowd, 23 Wend. 379, and cases cited.
8 2 Dan. Neg. Inst. 1147. The contrary opinion ia urged in 4 So. L. Rev. 426, aa
to cases where the defendant shows that he was in fact injured by the omission.
4 Union Bank v. Hyde, 6 Wheat. 572 ; Porter v. Kimball, 53 Barb. 467, compare
Ayrault v. Pacific Bank, 47 K Y. 570.
6 Buckley v. Bentley, 48 Barb. 283 ; s. r. in a previous decision, 42 Id. 646, pages
294, 409, of this vol.
6 2 Dan. Neg. Inst. 1098 ; see also p. 294 of this voL
1 2 Dan. Is 7 eg. Inst. 1084.
8 Ray v. Smith, 17 Wall. 411.
IRREGULAR INDORSEMENT. 437
ing to become indorser subsequent to the payee ; that he knew
the indorsement of the payee must be given before the note
could become operative, and indorsed the note on that under-
standing. 1 On the face of the paper, therefore, without extrinsic
evidence, 2 he cannot be held liable at suit of the payee, or of any
one suing in behalf of the payee, or who has taken title from
the payee after maturity, 3 or with knowledge of the facts. 4
As between the parties and those subject to their equities,
oral evidence is competent to rebut this presumption by show-
ing 5 that the indorsement was made to give the maker credit
with the payee, 6 and that the payee parted with value on the faith
of it. 7 For this purpose oral evidence is admissible to show the
circumstances under which the note was made and indorsed, 8 th*
consideration on which it was given, 9 the course of transactions
between the parties, 10 that the indorser placed his name on the
note at its inception, and before it passed to the plaintiff, 11 &c.,
and the form of the paper itself may aid the presumption. 12 Evi-
dence of the indorsees privity with the negotiation and its result
is competent, 13 although it be not shown that he knew the precise
nature of the credit to be procured. 14 Showing that he indorsed
with knowledge that it was required as a condition of credit to
be given the maker, is enoughX
1 This 58 the New York Rule, 1 Abb. N. Y. Dig. new ed. 492, n. ; Coulter v. Rich-
mond, 59 N. Y. 478. It is applied also in Indiana, (Dale v. Moffitt, 22 Ind. 114);
Iowa, (Frear v. Dunlap, 1 Iowa, 335, now otherwise by statute of 1851, Knight v.
Dunsmore, 12 towa, 35); Minnesota, (Marienthal v. Taylor, 2 Minn. 147; McComb
v. Thompson, 2 Id. 139); Mississippi, (Jennings v. Thomas, 13 Smedes <fe M. 617);
Pennsylvania, (Fegenbush v. Lang, 28 Perm. St. 193 ; Eilbert v. Finkbeiner, 68 Penn.
St. 243, s. c. 8 Am. R. 176); and Wisconsin, (Cady v. Shepard, 12 Wis. 642, followed
in 13 Id. 229, 18 Id. 654).
After a Jong line of contrary decisions in Massachusetts, part of the New York
rule has been adopted and extended in that State, by a statute entitling the indorser
in all cases to demand and notice. L. 1874, c. 404.
8 Lester v. Paine, 37 Barb. 617, 620. In New Jersey there is no presumption
either way without extrinsic evidence. Chaddock v. Van Ness, 85 N. J. L. 517, s. c.
10 Am. R. 256. Compare Laubach v. Pursell, 35 N. J. L. 434.
3 Bacon v. Burnham, 37 N. Y. 614.
4 Phelps v. Vischer, 60 Id. 74.
5 Under proper allegation. Meyer v. Hibsher, 47 N. Y. 265 ; Gfroehner v. Mc-
Carty, 2 Abb. New Cas. 76 ; Draper v. Chase Mfg. Co. Id. 79 ; Smith v. Smith, 87
Super. Ct. (J. & S.) 203.
Coulter v. Richmond, 59 N. Y. 481.
7 Id ; or at least that the payee gave credit or forbearance on the face of it.
8 The party may be asked, as a witness, to state the circumstances under which
the note was made. Smith v. Smith, 37 Super. Ct. (5 J. & S.j 203.
9 As, for instance, to enable the maker to buy goods of the payee, Moore v.
Cross, 19 N. Y. 227 ; or to give the payee a security for a pre-existing debt, Clothier
v. Aclrianci-, 51 N. Y. 822.
10 Coulter v. Richmond, 59 N. Y. 478.
11 Rey v. Simpson, 22 How. (U. S.) 341. And an erasure of plaintiff's own in-
dorsement may be explained. Austin v. Boyd, 24 Pick. 64.
18 As, for instance, where it was made payable at the payee's house. Coulter v.
Richmond (above).
18 Meyer v. Hibsher, 47 N. Y. 268.
14 Coulter v. Richmond, 59 N. Y. 483.
15 Meyer v. Hibsher (above); Luft v. Graham, 13 Abb. Pr. N. S. 175, 178.
438 ACTIONS ON NEGOTIABLE PAPER.
The burden is on plaintiff to show that the true relations of
the parties were not those apparent on the instrument. 1
If it appear by extrinsic evidence that the indorsement was
given with intent to give the maker of the note credit with the
payee, the payee may sustain his action against the indorser as
such. 2 The defendant can only be charged as indorser by dis-
honor and notice or waiver, as in other cases. 8 It is not neces-
sary that the payee actually exercise his implied right to over-
write the indorsement with his own indorsement " without
recourse." * *
97. defenses.] If it be shown that the payees were lona
fide holders for value without notice, they cannot be affected by
fraud or other equities between the maker and the irregular in-
dorser. 5
98. subsequent transferee against irregular indorser."] If
it appear that the transferee knew that the note was indorsed by
defendant before the payee overwrote his indorsement without
recourse, the transferee cannot recover of the irregular indorser
without the same extrinsic evidence which the payee would have
to give. 6
99. The United States Court doctrine.~\ In the Supreme
Court of the United States, the irregular indorser is held to be
an original promisor, a guarantor, or an indorser, according to
the nature of the transaction and the understanding of the par-
ties at the time it took place ; 7 under the following rules : 1. If
he put his name in blank on the back of the note at the time it
was made, and before it was indorsed by the payee, to give the
maker credit with the payee, or if he participated in the con-
sideration of the note, he must be considered as a joint maker
of the note. 8 2. If his indorsement was subsequent to the
making of the note and to the delivery of the same to take
effect, and he put his name there at the request of the maker,
pursuant to the contract of the maker with the payee for
further indulgence or forbearance, he can only be held as guaran-
tor, which can only be done where there is legal proof of consid-
1 Hull v. Marvin, 2 Supra. Ct. 420, 422. It is a general rule that the presumption
is that the liabilities, <fec., of parties to negotiable paper are those indicated on face
of the paper. Central Bank v. Hammett, 50 N. Y. ] 68. But an indorsee, who is also
a prior indorser, can, nevertheless, recover of the one who indorsed to him where it
was the intention of the parties that the intermediate indorser should be liable to
him. Hubbard v. Matthews, 54 N. Y. 43, 48.
4 1 Abb. N. Y. Dig. new ed. 492, n.
3 Id., and cases above cited, Griswold v. Stoughton, 2 Oreg. 61. Contra, Drake
T. Markle, 21 Ind. 434.
4 Moore v. Cross, 19 N. Y. 227 ; Chaddock v. Van Ness, 35 N. J. 517, s. c. 10 Am.
R. 256.
8 Clothier v. Adriance, 61 N. Y. 326.
Phelps v. Vischer, 50 N. Y. 74.
T Good v. Martin, 95 U. S. (5 Otto), 90, 94, affi'g 1 CoL 165, 2 Id. 218.
8 Id., citing Schneider T. Schiffinan, 20 Mo. 571 ; Irish v. Cutler, 31 Me. 636. But
see note 4 below.
IRREGULAR INDORSEMENT. 439
eration for the promise, unless it be shown that he was connected
with the inception of the note. 1 3. But if the note was intended
for discount, and he put his name on the back of the note with
the understanding of all the parties that his indorsement would
be inoperative until the instrument was indorsed by the payee,
he is liable only as a second indorser in the commercial sense,
and as such is entitled to the privileges which belong to such an
indorser. 2
Oral evidence is competent to show whether the indorsement
was made before the indorsement of the payee and before the in-
strument was delivered to take effect, or after the payee had be-
come the holder of the same. 3 In the absence of evidence on this
point, an undated indorsement will be presumed to have been
made at the inception of the note. 4
If made at the inception of the note, it is prima facie pre-
sumed to have been made for the same consideration, and a part
of the original contract expressed by the note. 5 If made after
the' inception of the note, and after an indorsement by the payee,
it will be presumed it was not made for the same consideration ; 6
1 Good v. Martin, 95 U. S. (5 Otto), 90, 94, affi'g 1 Col. 165, 2 Id. 218.
3 Id.
3 Id.; Badger v. Barnabee, 17 N. H. 120. But he may be also co-surety with
payee. Carrier v. Fellows, 27 N. H. 369.
4 Good v. Martin (above) p. 94, and cases cited ; Martin v. Boyd, 11 N. H. 385,
387 ; Parkhurst v. Vail, 73 111. 343 ; Cbllds v. Wyman, 44 Me. 441 ; Gilpin v. Marley,
4 Houst. (Del.) 284; Massey v. Turner, 2 Id. 79, 89 ; compare Union Bank v. Willis,
8 Mete. 504.
In different jurisdictions Ihere is much diversity of opinion as to whether, under
this presumption (or under direct evidence to the same effect), the irregular indorser
should be held as Joint maker or Surety, as in the Supreme Court of the United State*,
and as has been held also in Arkansas, (Killian v. Ashley, 24 Ark. 515) ; Delaware,
(Gilpin v. Marley, 4 Iloust. [Del.] 284; Massey T. Turner, 2 Id. 79, 89); Georgia, (by
statute : Collins v. Everett, 4 Ge'o. 273); Louisiana, (Lawrence v. Oakey, 14 La. 389;
Chorn v. Merrill, 9 La. An. 533); Maine, (Childs v. Wyman, 44 Me. 441, Leonard v.
Wilds, 36 Me. 265 ; Good v. Martin, above); Maryland, (Ives v. Bosley, 35 Md. 262,
268; Walz v. Alback, 37 Id. 404, 409); Massachusetts, (Hawks v. Phillips, 7 Gray,
284); Michigan, (Witterwax v. Paine, 2 Mich. 559; Rothchild v. Grix, 31 Id. 150);
Minneso'a. (Piers^ v. Irvine, 1 Minn. 377); Missouri, (Scheider v. Schiffman, 20 Mo.
671); New Hampshire, (Martin v. Boyd, 11 N. H. 385, 387; bub compare Currier v.
Fellows, 27 LI. 369) ; North Carolina, (Baker v. Robinson, 63 N. C. 191); Rhode
Inland, (Perkins v. Barstow, 6 K. I. 607); South Carolina, (McCreary v. Bird, 12 Rich.
554); Vermont, (Strong v. Riker, 16 Vt. 557; Sylvester v. Downer, 20 Vt. 3">5); and
Went Virginia, (if the payee so elects, Burton v. Hansford, 10 W. Va. 470, 481); or aa
a Guarantor, aa in England and in Arkansas, (if the payee overwrites n guaranty,
Killian v. Ashley, 24 Ark. 515); California, (Pierce v. Kennedy, 5 Cal. 138 ; contra,
Jones v. Goodwin, 39 Id. 493, s. c. 2 Am. R. 473) ; Connecticut, (Perkins v. Catlin, 1 1
Conn. 212 ; Ransom v. Sherwood, 26 Id. 437; Clark v. Merriman, 25 Id. 576); Illinois,
(Webster v. Cobb, 17 111. 459, 465, and cases cited); Iowa, (by statute: Knight v.
Dunsmore, 12 Iowa, 85); Kansas, (Firman v. Blood, 2 Kan. 496, 626); Kentucky, (by
statute: Arnold v. Bryant, 8 Bush. 668); Nevada, (Van Doren v. Tjader, 1 Nev. 880,
887, 389) ; Ohio, (Champion v. Griffith, 13 Ohio, 228) ; Texas, Chandler v. Westfall. 30
Tex. 477) ; Virginia. (Watson v. Hunt, 6 Gratt. 033, 642; Orrick v. Colston, 7 Id. 189,
199) and West Virginia, (if the payee so elects. Burton v. Hansford, 10 W.Va. 470. 481).
In New Jersey there seems to be no liability without extrinsic evidence. Cbaddock
v. Van Ness, 35 N. J. L. 517, s. c. 10 Am. R. 256.
8 Good v. Martin (above) ; Austin v. Boyd, 41 Mass. 64 ; Parkhurst v. Vail, 73
III 343.
' Good v. Martin (above).
MO ACTIONS ON NEGOTIABLE PAPER.
and if it be attempted to charge the party as a guarantor, a dis-
tinct consideration must appear. 1 To show that that which was
presumptively an indorsement was, by intention of the parties, a
guaranty to the payee, it is competent to prove the indorser's
subsequent admissions of liability or promises to pay made to the
payee/ provided the evidence satisfies the statute of frauds as to
guaranties.
Under these rules oral evidence is admissible to show that, in
the intent and understanding of the parties, an indorsement made
in fact after manual delivery, was made in pursuance of a pre-
vious condition or understanding, such that it is to be referred
back and take effect as if made before delivery. 8 The interpreta-
tion ought to be such as to carry into effect the intent of the par-
ties; and evidence of the facts and circumstances which took
place at the time of the transaction are admissible to aid in the
interpretation of the language employed. 4
100. Oral evidence to vary the ascertained contract.'] When
the object and consequent legal effect of the indorsement have
been thus ascertained, the same rules heretofore stated 5 exclude
oral evidence of intention inconsistent with the legal effect of an
indorsement, guaranty or joint promise, as the case may be. 6
VIII. DEFENSES GENERALLY.
101. Defenses available against all Holders, whether bona
fide or otherwise.'] The following defenses may be' pleaded and
proved against even an innocent holder for. value :
1. The fact that defendant had no legal capacity to make the
contract alleged to have been made by him. 7
1 Good v. Martin (above), p. 98, citing Essex Company v. Edmunds, 12 Gray
(Mass.) 272 ; "firewater v. Silence. 7 N. Y. 207. If the indorsement is shown to have
been made prior to or contemporaneous with the delivery to the payee, or in pursu-
ance of an agreement made prior to or contemporaneous "with the delivery, in consid-
eration of which the payee agrees to accept it, a guaranty overwritten is a sufficient
memorandum within the statute of frauds. Chaddock v. Van Ness, 35 N. J. 517, B. c.
10 Am. R. 256, and cases cited. But compare Van Doren v. Tjader, 1 Nev. 380.
2 Eilbert v. Finkbeiner, 68 Penn. St. 243, s. c. 8 Am. R. 176. It mi^bt be other-
wise of promises, <fcc., to a subsequent holder, for they might be made in mistake of
law. Id., per SHARSWOOD, J.
3 Hawkes v. Phillips, 7 Gray, 284.
4 Good v. Martin (above), p. 95 ; Badger v. Barnabee, 17 N. H. 120 ; Pierse v.
v. Irvine, 1 Minn. 369; Perkins v. Catlin, 11 Conn. 212. Declarations in payee's
absence do not bind him. Draper v. Weld, 13 Gray, 580 ; Strong v. Riker, 16 Vt. 654.
6 Paragraph 47.
6 Allen v. Brown, 124 Mass. 78 ; Trescoll B'k v. Caverly, 7 Gray, 217 ; Vore v.
Hurst, 13 Ind. 551.
7 The incapacity of a party prior or subsequent to defendant is not usually a de-
fense. Burke v. Allen, 29 N. H. 106, and cases cited. If the making or the transfer
is even tacitly admitted in pleading, incapacity of the maker or the indorser, as the
case may be, cannot be proved unless expressly alleged. Robbius v. Richardson, 2
Bosw. 248. Converselv, a mere allegation of incapacity does not admit evidence
that an indorsement alleged to have been duly made, was not made in the lawful
manner. Ogden v. Raymond, 6 Bosw, 16 ; 3 Abb. Ct. App. Dec. 396.
DEFENSES GENERALLY 441
2. The fact that the instrument was given for a consideration
for which the instrument itself, by statute, is declared void. 1
3. The spuriousness or forgery of the contract alleged to have
been made by defendant.
4. A material alteration in the contract of the defendant, made
by a holder of the paper, and in no way sanctioned by defendant. 2
5. Fraud in the obtaining of defendant's signature, without
any negligence on his part, or any intent to make any obligation
or transfer. 8
The mode of pleading and proving these facts, except so far
as already stated, is reserved for the chapters on defenses in ac-
tions on contract.
102. Failure or want of consideration] As between the par-
ties to the act that lacks consideration, this defense is available.
As against subsequent transferees it is available after defendant
has shown that plaintiff has not the title of a lonafide holder. 4
It should be pleaded, 5 but it is not essential that the answer state
whether the failure is set up as a denial, or a recoupment or coun-
ter-claim. 6 Upon the whole issue as to original want of consid-
eration, it will be for plaintiff to sustain the burden of showing
that there was one ; 7 although the negotiable paper is itself prima
facie evidence of it. If there was a consideration, and defendant
relies on its failure, the burden is on defendant 8 to prove the
failure fully and explicitly. 9 When the defense is available, oral
evidence is competent of the real consideration and the facts
attending the making and delivery of defendant's obligation,
which are not inconsistent with the instrument, and which tend
to show that it has been diverted from its original purpose. When
the paper was made in pursuance of a contract, it is competent to
show what that contract was and its purpose. 10
1 1 Dan. Neg. Inst. 807. But if the statute does not expressly avoid the instru-
ment, it. is valid in hands of a bona fide purchaser for value, before maturity. Cow-
ing v. Altman, 71 N. Y. 439, rev'g 5 Hun, f>56.
8 Otherwise if defendant put it in the power of the wrong-doer to alter, by deliv-
ering the paper with blanks, <fec.
3 See Chapman v. Rose, 66 N. Y. 137, rev'g 44 How. Pr. 864. As to duress,
see paragraph 105.
* Wright v. Irwin, 33 Mich. 32.
s Moak's Van Santv. PL 607, n.; Bingham v. Kendall, 17 Ind. 396, 399. Contra,
at common law.
6 Wiltsie v. Northam, 8 Bosw. 162 ; Springer v. Dwye-, 50 N. Y. 19. rev'g 68
Barb. 189. Compare Dubois v. Hermans, 66 N. Y. 673, 674 ; Payne v. Cutler, 13
Wend. 6C5 ; Meakim v. Anderson, 11 Barb. 215 ; Craig v. Missouri, 4 Pet. 410.
7 Paragraph 29 ; Estabrook v. Boyle, 1 Allen, 412.
8 Dresser v. Ainsworth, 9 Barb. 619.
9 Holbrook v. Wilson, 4 Bosw. 64; Smith v. Paton, 6 Bosw. 145; affi'd in 81 N.
Y. 66.
The motive is not necessarily the consideration:. and breach of a promise which
constituted part of the motive lor giving a note for a valid consideration is not neces-
sarily a failure of consideration. Philpot v. Gruninger, 14 Wall. 677.
10 Bookstaver v. Jayne, 60 N. Y. 146, rev'g 3 iSupm. Ct (T. & C.) 397.
442 ACTION ON NEGOTIABLE PAPER.
Partial failure is admissible, under an allegation of total fail-
ure, 1 unless defendant has been misled to his prejudice.
It is not sufficient for one of several joint makers to show
that he received no consideration. He must also show that
neither of the others did. 2
103. Accommodation paper."] This defense may be made
available against another than the party accommodated, if de-
fendant can show, either :
1. That plaintiff was a transferee after maturity ; 8 or,
2. That he did not take for any consideration ; 4 or,
3. That he took with notice or the accommodation character
of the signature, and that the signature was beyond the scope of
the writer's authority ; or
4. That the paper was wrongfully diverted, and that plaintiff
did not take for value. 5
Evidence of accommodation character alone does not put on
plaintiff the burden of proving what value he paid ; 6 but coupled
with evidence of fraud, duress, or fraudulent diversion of the
paper, it does. 7 Where there is only the simple fact that it
was an accommodation bill or note, then the inference is that the
holder did give value for it, because that was the very object for
which the instrument was given. 8 Evidence of consent to a di-
version of the paper from the purpose originally intended should
be clear and explicit, not doubtful or liable to misconstruction. 9
Evidence that the paper was made for a special purpose, and
fraudulently misappropriated, is not available under a mere
denial of making or indorsing, 10 nor under a mere allegation of
want of consideration. 11 The fact that the maker of the paper
held and put it into circulation for his own advantage, is sufficient
evidence of notice to the party taking it that the indorsements upon
it were made for his benefit, and not in the course of business. 12
1 Landry v. Durham, 21 Indt 232 ; Willis v. Bullitt, 22 Tex. 330.
2 Kinsman v. Birdsall, 2 E. 1). Smith, 395. ,
3 Chester v. Dorr, 41 N. Y. 279.
4 But it is not enough to show that he took as collateral security for an antece-
dent debt. Grocers' Bank v. Penfiold, 2 Abb. New Cas. 305, s. c. 69 N. Y. 502,
qualifying 7 Hun, 279.
5 A fraudulent diversion of the' paper, as distinguishod from a misapplication of
the proceeds, must be shown for this purpose. Farmers' & Cit. Bank v. Noxon, 45
N. Y. 762 ; Wolfe v. Brouwer, 5 Robt. 601 ; Gray v. Bank of Ky. 29 Penn. St. 365.
If the accommodation character of the paper is shown, and a diversion of it, de-
fendant need not show that the diversion was injurious to him ; the burden is on
plaintiff to show that it was not. Rochester v. Taylor, 23 Barb. 18.
6 Harger v. Worrall, 69 N. Y. 370.
7 Farmers', <fec. Bank v. Noxon, 45 N. Y. 762.
8 Seybel v. Bank, 54 N. Y. 291 ; Collins v. Gilbert, 94 IT. S. (4 Otto), 753. Ac-
cording to some authorities, defendant must show that plaintiff had knowledge of the
equity as well as of the accommodation character of the signature. 1 Dan. Neg. Inst.
790, 791.
9 People ex rel. Barton v. Rensselaer Ins. Co. 38 Barb. 323.
10 Rose. N. P. 365 ; Collins v. Gilbert, 94 U. S. (4 Otto), 757.
11 Catlin T. Ilansen, 1 Duer, 309.
18 Fielden v. Lahens, 2 Abb. Ct. App. Dec. Ill ; Lemoine v. Bank of North Amer-
ica, 3 Dill. C. Ct. 44, and cases cited.
DEFENSES GENERALLY. 443
104. fraud.'] As against a bona fide holder, it is not enough
to show fraud even in regard to the nature or contents of the in-
strument, if it appears that the party meant to make some obliga-
tion, and left it to another to put in writing the limits of it, with-
out due supervision. 1 The evidence of such fraud, however, is
available if coupled with evidence that the defendant was free
from negligence. 2 Thus evidence that defendant could not read
will excuse a confidence which would otherwise be negligence. 3
105. DuressJ] Evidence that the defendant's signature was
obtained by duress puts on plaintiff the burden of proving his
title. 4 Evidence that it was obtained by violent duress, witnout
any consideration, avoids the note even as against a bona fide
holder. 5
106. Impeaching Plaintiff's Title.'] If the instrument, though
not specially payable to plaintiff, is drawn or indorsed so as to be
payable to bearer, its production by plaintiff, without any other
evidence of his title, throws on defendant the burden of impeach-
ing that title. 6 This may be done, under proper pleading, by evi-
dence that he never acquired any title, or that he has absolutely
divested himself of it, or that he acquired the paper with notice
that his transferror had parted with title to another. 7
If the complaint sets forth the plaintiff's title, as, for in-
stance, by alleging that defendant gave the note, or indorsed the
note to B., &c., 8 defendant may, under a denial, show that it was
given or indorsed to others who still hold it. If the complaint
makes only a general allegation of title, evidence that title is in
another is not admissible as a defense, unless pleaded as new mat-
ter. 9 But in either case, if plaintiff shows that he has legal right
to demand payment as against .defendant, nothing short of evi-
dence of his bad faith will avail the debtor to defeat the action. 10
Even if defendant should show that a stranger had a right to
contest the plaintiff's title, the legal presumption is that the
stranger does not intend to do so. 11 If plaintiff's title is not duly
put in issue, evidence that he had none, and had not authorized
1 Chapman v. Rose, 66 N. Y. 137, reVg 44 How. Pr. 364. Compare Brown v.
Reed, 79 Penn. St. 370, s. o. 21 Am. R. 75 ; and see 16 Alb. L. J. 1^7.
2 Walker v. Egbert, 29 Wise. 194, 8. c. 9 Am. R. 548, and cases cited ; Briggs v.
Ewart, 51 Mo. 245, 8. c. 11 Am. R. 445.
3 Whitney v. Snyder, 2 Lans. 477 (approved in 56 N. Y. 142) ; Griffiths v. Kel-
logg, 39 Wise. 290, 8. c. 20 Am. R. 48.
4 McClintick v. Cummina, 2 McLean, 98; 1 Dan. Neg. Inst. 611.
5 See Loomia v. Ruck, 66 N. Y. 465.
6 Smith v. Sac County, 1 1 Wall. 139, and cases cited.
I Sheldon v. Parker, 3 Hun, 498, s. c. 5 Supra. Ct. (T. <k C.) 616.
8 Rose. N. P. 864, 3C5; Hull v. Wheeler, 7 Abb. Pr. 411.
See White v. Drake, 2 Abb. New Cas. 133, and cases cited. Compare Wedder-
spoon v. Rogers, 32 Cal. 669.
10 City Bank of New Haven v. Perkins, 29 N. Y. 568 ; and see Poorman v. Mills,
35 Cal. 118.
II City Bank v. Perkins, 29 N. Y. 567.
444 ACTIONS ON NEGOTIABLE PAPER.
the action, is inadmissible. 1 Under even a general denial, how-
ever, defendant may show that plaintiff has but a naked legal
title, and that the real interest is in another, for the purpose of
letting in evidence of the declarations and admissions of that
other/
The evidence of title afforded bv producing the instrument on
the trial may be rebutted by showing that the plaintiff did not
obtain the right or title by which he seeks to recover until after
the commencement of the action ; 8 or that possession was origin-
ally acquired for a special purpose, and not as accompanying
title. 4 The appearance of restrictive indorsements, subsequent
to one which would charge defendant as liable to bearer, is not
evidence of title in another. 5 The fact that the plaintiff suing
indorsers on a bill of exchange acquired title from the acceptor
is prima facie evidence that he is not a bona fide holder. 8
If the instrument is not in plaintiff's possession, his recovery
may be defeated by showing that it is in the possession of an
adverse claimant who would have apparent right of recovery by
its production. 7 But the mere fact that plaintiff has not actual
possession of the instrument, does not necessarily defeat his re-
covery. It is sufficient if he has the right to the money due
upon it. 8
107. Collateral security.] Evidence adduced by defendant
that plaintiff took the paper merely as collateral security does not
alone affect plaintiff's right to recover ; 9 but if defendant also
shows an equity against the pledger, such as that the paper was
accommodation paper on his part, 10 the law, for the purpose of
preventing circuity of action, limits the recovery to the amount
due from the pledger. 11 The burden is on the plaintiff to prove
1 "Way v. Richardson, 3 Gray, 412.
s Davis v. Carpenter, 12 How. Pr. 287.
8 Hovey v. Sebring, 24 Mich. 232, s. c. 9 Am. R. 122 ; Reynolds v. Kent, 6 Cent.
L. J. 155 ; compare 43 Me. 364.
4 See Rogers v. Morton, 12 Wend. 487, affi'd in 14 Id. 675; Micklethwaite v.
Thebaud, 4 Sandf. 97. Evidence that the payee had possession of the note after he
had assigned it, for the purpose of demanding payment for plaintiff, and put it in an
attorney's hands to sue, does not necessarily prove that he is the real party in inter-
est. Grimes v. McAninch, 9 Ind. 278.
5 Rider v. Taintor, 4 Allen, 856.
8 Central Bank of Brooklyn v. Hammett, 50 N. Y. 158. Contra, Morley v. Cul-
verwell, 7 Mees <fe W. 174; 1 Dan. Neg. Inst. 781 a. Compare Hunter v. Kibbe, 5
McLean, 279.
7 Van Alstvne v. Commercial Bank, 4 Abb. Ct. App. Dec. 452 ; Crandall v.
Schrceppel, 1 Hun, 557, s. c. 4 Supm. Ct. (T. & C.) 78. See also Sheldon v. Parker,
3 Hun, 498, s. c 5 Supm. Ct. (T. <fc C.) 616.
8 Selden v. Pringle, 17 Barb. 458.
9 Atlas Bank v. Doyle, 9 R. I. 76, s. c. 11 Am. R. 219. See also Grocers' Bank
V. Penfield, 2 Abb. New Cases, 305.
10 Atlas Bank v. Doyle (above); 1 Dan. Neg. Inst. 8 832.
11 See cases collected in 18 Alb. L. J. 247 ; Holcomb v. Wyckoff, 85 N. J. 35, 8. 0.
10 Am. R. 219.
DEFENSES GENERALLY. 445
what debts were secured and the amount due. 1 But if defepd-
ant relies on the fact of a payment or discharge of such debts,
that is for him to show. 2
Irregularity in forfeiting the pledge is not available to one
not a party to the contract of pledge. 8
108. Transfer after maturity^ Proving transfer after matur-
ity is not available unless coupled with evidence of equities exist-
ing against prior parties, 4 and attaching to the paper itself, as dis-
tinguished from collateral transactions. 5 Even then, plaintiff may
prove that he took from one who was a bona fide purchaser for
value before maturity, although plaintiff himself may have pur-
chased after maturity or witn a knowledge of the infirmity. 6
Where the time of maturity depends on the time of delivery, and
the date and the time of delivery are not coincident, the latter
may be shown by parol, in order to avoid the presumption of
dishonor before transfer. 7
109. Suretyship and Dealing with principal^ As between
the original parties to the transaction, one of several may show
by oral evidence that he signed as surety, so as to let in the defense
of an extension discharging.him ; 8 but special conditions of sure-
tyship not implied in the legal relation cannot be proved by
parol evidence of contemporaneous agreement, if they would
contradict the writing. 9 The like evidence of suretyship is
competent against a subsequent holder if he is shown to have had
knowledge of the true relation of the parties at the time of his
dealing with the principal ; 10 otherwise not. 11
A defendant who is shown to be a surety under the foregoing
rules, or who is charged as an indorser, 12 or drawer, 13 may show a
valid agreement between the holder and the maker, or acceptor,
or any party prior to defendant, 14 extending the time for pay-
ment, without consent of the defendant. But such agreement is
matter of defence which must be affirmatively alleged 15 and
proved 16 by the defendant.
I Maitland v. Citizens' Nat. Bank of Baltimore, 40 Md. 540, s. c. 17 Am. R. 620.
Contra, Atlas Bank v. Doyle (above).
' Hilton v. Smith, 5 Gray, 400.
8 Hatch v. Brewster, 53 Barb. 276.
4 Way v. Richardson, 3 Gray, 414.
5 National Bank of Washington v. Texas, 20 "Wall. 88, and cases cited.
6 Roberts v. Lane, 64 Me. 108, s. o. 18 Am. R. 242.
7 Cowing v. Altman, 71 N. Y. 441, rev'g 5 Hun, 556.
8 Hubbard v. Gurney, 64 N. Y. 457 ; 8 So. Law Rev. 439.
' Thompson v. Hall, 45 Barb. 214, and cases cited.
10 Oriental Financial Co. v. Overend, L. R. 7 Ch. 142 ; 7 H. L. 348. Contra, 1
Dan. Neg. Inst. 1338. Compare 1 Pars. Pr. N. (fee. 233.
II Summerhill v. Tapp, 52 Ala. 227.
Artisans' Bank v. Backus, 36 N. Y. 100, s. c. 3 Abb. Pr. N. S. 273, nffi'g 81
How. Pr. 242.
13 English v. Darley, 2 Bos. <fe P. 61.
14 Rose. N. P. 393, citing Hall v. Cole, 4 Ad, <k E. 577.
11 Rose. N. P. 393.
15 Artisans' Bank v. Backus (above).
446 ACTIONS ON NEGOTIABLE PAPER.
To invoke the rule that taking a new note suspends the right
of action and discharges the surety not assenting, it should be
made to appear that there was an agreement, either express, or
implied from the facts proved, that the new note was taken in
payment of the first note, or that the time of payment of the
iirst note was extended in favor of the party who was primarily
liable. 1 If either be proved, it is not necessary to show that the
first note was surrendered. 2 If a new obligation was taken, evi-
dence of a different contemporaneous oral agreement, is not
competent. 8
110. Payment.] Payment must be affirmatively pleaded. A
denial of the formal allegation of non-payment is not equivalent
to an allegation of payment. 4 On an issue of payment, alone,
the burden is on the defendant to show payment ; 5 and this is
so even where evidence is requisite, and has been given, that
the instrument was present at the place where it was payable,
on the day it fell due. 6 Where the only issue is payment, neither
nis bound to produce the instrument. 7
a party to the instrument is shown once to have delivered
it so as to become liable on it, the mere fact of its present pro-
duction by him is generally prima fade evidence against those
seeking to hold him liable on it, and in his favor, that it has been
paid or otherwise discharged ; 8 but this presumption does not
necessarily. arise where he is shown to have had other means of
regaining possession.
The possession of the paper by the plaintiff is presumptive
evidence that it has not been paid by those liable on it to him.
But if he was liable on it to others, to -whom he paid the amount
at maturity, it may defeat his action, unless he gives evidence
that he acquired title by transfer, not merely possession by sur-
render on payment. 9 A payment, for which a general receipt is
indorsed upon the instrument, is presumed to have been made
by the maker or acceptor, who was primarily liable, even when
the drawer has possession and sues the acceptor. 10 If the instru-
1 Hubbard v. Gurney, 64 N. Y. 467. Testimony of a party to the alleged agree-
ment of extension relied on to discharge an indorser, merely to the effect that he
solicited indulgence to arrange his affairs and try and relieve his indorsers, and that
he was given to understand that this would be extended to him, if he remembers nothing
more than this, is insufficient to sustain a finding of an agreement. NELSON, Ch. J.
Bank of Utica v. Ives, 17 Wend. 503.
4 Hubbard v. Gurney (above).
8 Burbank v. Beach, 15 Barb. 326.
4 Edson v. Dillaye, 8 How. Pr. 273.
5 Knapp v. Runals, 37 Wis. 135.
6 Fullerton v. Bank of United States, 1 Pet 604, 617.
T Rose. N. P. 392; Mead v. Brooks, 8 Ala. 840. Contra, Marfield v. Davidson, 8
Gill A J. 209.
8 Se paragraph ; Grey v. Grey, 47 N. Y. 652, reVg 2 Lans. 173 ; and see Hack-
ney v. Vrooman, 62 Barb. 650.
* See page 2 of this vol., paragraph 4.
10 1 Dan. Neg. Inst. 1229.
DEFENSE SHIFTING BURDEN OF PROOF. M7
ment is produced from the plaintiff's custody, it is for him to ex-
plain a receipt appearing thereon if he seeks to impeach it. 1
Where a new bill or note is given in renewal of an earlier, and
the earlier is retained, the new is presumptively only a suspension
of the debt, and not a satisfaction until paid, unless it be shown
that it was expressly agreed that the earlier one should be extin-
guished. Delivery of the earlier without such agreement does
not of itself raise a presumption of extinguishment. And pre-
sumptive evidence of intent to extinguish may generally be
rebutted hy showing that by such construction the debt would be
lost. 2
111. Qualifying agreement.'] Evidence of an agreement be-
tween the original parties qualifying or suspending the apparent
liability of the maker is not competent against a holder for
value before maturity, unless it is first shown that he had knowl-
edge thereof at the time the transfer was made. 8
IX. DEFENDANT'S EVIDENCE TO REQUIRE PLAINTIFF TO PEOVE
TITLE AS A HOLDER FOR VALUE BEFORE MATCRITY.
112. The general rule.'} The right of a transferree to shut
out defenses such as arise from equities between the antecedent
parties, depends on his having the title of a purchaser and holder
of a negotiable instrument, who took it, 1, in good faith ; 2,
for a valuable consideration ; 3, in the ordinary course of business ;
4, when it was not overdue ; 5, without notice of its dishonor, and
6, without notice of facts which impeach its validity as between
the antecedent parties. The plaintiffs production of the instru-
ment, with proof of its execution, &c., as above stated, raise a
sufficient presumption in his favor on all these points. 4
Defendant, to lay the foundation for defenses arising from
such equities, must adduce evidence sufficient to go to the jury, 5
tending to show either, 1. That plaintiff, when he took the paper,
had notice of the equities in other words, must negative plaint-
iff's good faith (in which case the burden is thrown on plaintiff to
prove that one under whom he claims was in fact a purchaser for
value, &c., before maturity) ; c or, 2. That there was iraud, duress,
1 See paragraph 61. Compare 2 Greenl. Ev. 13th ed. 480, 627. Authority of
an agent to receive payment is not necessarily implied from possession. Doubleday
v. Kress, 50 N. Y. 410, reVg 60 Barb. 181 ; Scoville v. Landon, Id. 686.
8 2 Dan. Neg. Inst. 1266. Compare Nightingale v. Chafee, 11 R. I. 609, s. o. 23
Am. R. 631.
a Brown v. Spofford, 95 U. S. (5 Otto), 474, 483.
4 Collins v. Gilbert, 94 U. S. (4 Otto), 754, and cases cited.
1 Smith T. Sac County, 11 Wall. 139, 147, nud authorities cited. If the cause is
tried without a. jury the jud^e may pass on the question, as preliminary to further
evidence. Brookman v. Millbank, 50 N. Y. 378.
6 Hill v. Sands, 6 N. Y. Le?. Obs. 19. On proof that the note was fraudulent and
void as between the maker and payee, an intermediate holder will not be presumed,
448 ACTIONS ON NEGOTIABLE PAPER.
or illegality in the inception of the contract, or negotiation in
fraud of the rights of the defendant (in which case, and without
evidence that plaintiff had notice thereof, 1 the burden is thrown
upon plaintiff of supporting the presumption of title by showing
due negotiation in fact.) 8 if defendant shows that the paper was
lost or stolen, it throws the burden on plaintiff of showing that it
came to him in due course of business and for value. 8
113. Failure or want of Consideration.'] Failure or want of
consideration, 4 as distinguished from a fraudulent or illegal incep-
tion of the contract, 5 is not enough to rebut the presumption that
plaintiff is a bona fide holder, or put him to proof of the amount
paid by him. Evidence that the consideration was positively il-
legal, 6 as distinguished from being merely void, 7 does throw the
burden on plaintiff.
X. PLAINTIFF'S EVIDENCE OF TITLE AS HOLDER FOR YALUE BEFOEE
MATURITY.
114. Burden of proof ^\ To enable him to recover, after the
burden is thrown upon him, plaintiff must prove that he (or one
under whom he claims) took the paper before maturity, for
value, 8 even although there were intermediate indorsers, unless
there is evidence that they paid value. 9 Fraud being shown, the
presumption is that the deceiver will transfer the paper, so as to
enable some other to collect it ; and this presumption avails
against the holder to require him to show that value was paid. 10
115. Evidence that transfer was before Maturity. ~] Plaintiff
must show that delivery, 11 and also indorsement, if indorsement
was necessary, were made before maturity. Delivery and mis-
take do not excuse delay in indorsing. 12
Against a maker or drawer who delivers paper after its date,
in favor of plaintiff, to have paid value. Holcomb v. Wyckoff, 35 N. J. 35, s. o. 10
Am. R. 219, 222; Roberta v. Lane, 64 Me. 108, s. c. 1 8 Am. R. 242.
: ' N. y. & Virginia State Stock Bank v. Gibson, 5 Duer, 574. Bat see Hutchin-
son v. Boggs, 28 Penn. St. 294.
2 The necessity of evidence of this may be dispensed with by omitting to require
it at the trial. Wilson v. Rocke, 58 N. Y. 642.
3 Kuhns v. Gettysburg!* Nat. Bk. 68 Penn. St. 446. So, perhaps, where it was
lodged in escrow, and wrongfully delivered. Chipman v. Tucker, 38 Wise. 43, and
see pp. 52, 60.
4 Mechanics' & Traders' Nat. Bank of N. Y. v. Crow, 60 N. Y. 85, affi'g 5 Daly,
191; Wilson v. Lazier, 11 Gratt. 477.
5 Ross v. Bedell, 5 Duer, 465 ; Valhir v. Zane, 6 Gratt. 246.
6 Holdeu v. Cosgrove, 12 Gray, 216.
7 Rose. N. P. 886.
8 Collins v. Gilbert, 94 U. S. (4 Otto), 753, and cases cited.
Bank of St. Albans v. Gilliland, 23 Wend. 811.
10 Bailey Y. Bidweli, 13 Mees. & W. 73; First Nat. Bk. v. Green, 43 N. Y. 298.
11 A verbal pledge of the paper without delivery is not enough. Either a delivery,
or some positive act showing an actual transfer of the paper itself, or of the right to
dispose of it, should be proved. Russell v. Scudder, 42 Barb. 31, 35, MILLER, J. ;
and see Woodruff v. Wicker, 2 Bosw. 613.
19 Lancaster Nat. Bk. v. Taylor, 100 Mass. 18 ; 1 Am. R. 71, and cases cited.
EVIDENCE OP TITLE AS BONA FIDE HOLDER. 449
or lodges it with a depositary with authority to make such a de-
livery, one claiming as a transferree for value may show that it
was delivered at the time of the transfer, and thus remove the
presumption of dishonor arising from the apparent date. 1
If paper payable on demand is offered in evidence duly in-
dorsed, but with an undated indorsement, the presumption is that
it was indorsed before maturity ; and the burden is on him im-
peaching it on the ground of dishonor before indorsement, to
show that the transfer took place after a reasonable time had
elapsed. But if the transfer is shown to have taken place after
the expiration of a reasonable time, or if no demand was made
within such time, so as to charge the indorser, the burden is on
plaintiff to show excuse for the delay. 3
116. and before noticeJ] If notice of the infirmity is shown
to have been given to the holder before maturity, plaintiff must
show that the title was perfected not only by delivery but by
indorsement, 3 and (if necessary) by payment of value, all made
before such notice ; and on showing this he will be protected
only to the extent of the value so paid. 4
117. and for valued] Plaintiff must show what value was
paid. 5 If the paper never had an inception until it came to the
holder's hands, he cannot recover without proof of payment of
full value. Usurious discount is fatal. 6 Otherwise, the amount
of consideration is not material, except as bearing on the question
of actual or constructive notice, 7 or as limiting the recovery in
certain cases.
118. Evidence of good faith."] At this stage of the case
plaintiff is not called on to show that he had no notice. 8 If he
shows that he, or the one under whom he claims, is a transferree
for value and before maturity, within the foregoing rules, and there
is nothing on the face of the paper, to charge him with inquiry, 9
or in the circumstances, to show his bad faith, 10 the burden is
thrown on defendant to prove bad faith in taking the transfer. 11
119. " Taking up."~\ To enable one already liable upon the
I Cowing v. Altman, 71 N. Y. 441, reVg 5 Hun, 656.
* 1 Pars, on Pr. N. Ac. 380. For the mode of proving discount in the ordinary
course of business, by producing the bank's books, see Ocean Nat. Bank v. Carll, 55
N. Y. 440, and again, 9 Hun, 237.
3 Clark v. Whitaker, 50 N. H. 474, s. o. 9 Am. R. 286.
4 Dresser v. Missouri, fcc. Railway Construction Co. 93 U. S. (3 Otto), 92.
8 First National Bank v. Green, 43 N. Y. 298, 301.
Eastman v. Shaw, 65 N. Y. 522. Compare Miller v. Crayton, 3 Supm. Ct. (T. <k
C.) 360, and Williams v. Tilt, 36 N. Y. 319.
7 Gould v. Segee, 5 Dner, 270.
8 Cowing v. Altman, 71 N. Y. 440, rev'g 6 Hun, 656; Dalrymple v. Hillenbrand,
62 N. Y. 5, affi'g 2 Hun, 488, s. c. 5 Supm. Ct. (T. A C.) 67.
* See paragraph 121.
10 Jones v. Gordon, H. of L. 87 Law Times, N. S. 480. Per BLACKBURN, J.
II Catlin v. Uanaen, 1 Duer, 309; Hart v. Potter, 4 Id. 458; Davia v. Bartlett, 12
Ohio St. 634
29
4:50 ACTIONS ON NEGOTIABLE PAPER.
paper, or already chargeable with notice of equities, to recover
against others, as a lona fide holder on taking it up, he should
show a transfer of it to him * as distinguished from a payment of
it by him, 2 but the evidence that the transaction was so intended
need not be express, for the intent may be inferred from circum-
stances. 8 If it be shown that he took it up, as distinguished from
paying it, evidence of his knowledge of an original want of con-
sideration, &c., is not admissible. 4 .
XI. DEFENDANT'S EVIDENCE THAT PLAINTIFF is NOT A HOLDER
IN GOOD FAITH.
120. Bad faith.']- To show bad faith, evidence of guilty
knowledge, or of willful ignorance is essential. 5 For this purpose
circumstances which ought to have put a prudent man on in-
quiry are admissible in evidence ; and fraud established, whether
by direct or circumstantial evidence, is sufficient ; 6 but, on the
whole evidence, notice or fraud must clearly appear. 7
A very trivial price is a circumstance relevant on the ques-
tion of bad faith. 8
121. NoticeJ] Notice, or other facts equivalent, must be al-
leged in order to be admissible. A general allegation of bad
faith is not enough. 9
Express notice given to the transferee prior to the transfer,
as, for instance notice that certain securities had been stolen, is
prima facie, but not conclusive, evidence of bad faith, and may
be rebutted by proof that the notice was lost, or its existence or
contents "forgotten at the time of transfer. 10 Advertisement of
loss is not competent unless brought home to the transferee; 11
but evidence from which it is probable that the advertisement
was seen, for instance that he took or habitually read the paper,
is enough to go to the jury. 12
Marks on the instrument itself, of a character to apprise one
I Frecdman's Savings, <fcc. Co. v. Dodge, 93 TJ. S. (3 Otto), 382 : and see p. 2 of
this Vol.
8 Lancey v. Clark, 64 N. Y. 209.
8 Same cases.
4 Benedict v. De Groot, 1 Abb. Ct. App. Dec. 125. Compare Burr v. Smith, 21
Barb. 262; Hooper v. De Long, 37 Super. Ct. (J. <fe S.) 127.
8 Hotchkiss v. Nat. Bank, 21 Wall. 354 ; Collins v. Gilbert, 94 U. S. (4 Otto), 753 ;
Commissioners of Marion County v. Clark, Id. 285 ; 1 Dan. Neg. Inst 775.
6 Murray v. Lardner, 2 Wall. 121.
7 Morehead v. Gillmore, 77 Penn. St. 118, s. c. 18 Am. R. 435; Hamilton v.
Vought, 34 N. J. 18; Phelan v. Moss, 67 Pa. St. 59, s. c. 5 Am. R. 402. Contra, 43
Vt. 125, 8. c. 5 Am. R. 265.
8 1 Dan. Neg. Inst. 779. But see Scott T. Johnson, 5 Bosw. 213.
9 2 Pars, on Prom, N. <fec. 274 ; Ball v. Consolidated, <fcc. Co. 32 N. J. L. 102 ; Par-
ker v. Raynal, 1 La. Ann. 209.
10 Lord v. Wilkinson, 56 Barb. 593.
II Pars, on Prom. N. fec. 258.
19 Id. ; and see p. 225 of this voL Compare Kellogg v. French, 15 Gray, 854.
MUNICIPAL AND OTHER COUPON BONDS. 451
to whom it is offered, of the alleged defect, are sufficient to estab-
lish notice. 1 But the fact that tlie terms of the instrument indi-
cate a special consideration, such as a warranty, for instance, do
not charge the transferee with notice of a breach. 2 The duty of
inquiry raised by a mistake of date apparent on the face of the
note, is satisfied by inquiry as to the fact of date ; and does not
charge with knowledge of a disconnected matter, such as defect
of authority in an agent. 3
122. Negligence.'] Proof that the holder was in such a situa-
tion as that he might have had notice, had he been diligent in
making inquiries which the situation offered and invited liim to
make, is not enough. 4 Hence suspicious circumstances, such as
that the seller, alleged to have diverted .the paper, was embar-
rassed in circumstances "and did business with plaintiff as agent; 5
or that he offered it for a less sum than at the legal rate of dis-
count; 8 or that the paper was nearly due; 7 are not alone suffi-
cient evidence of bad faith. Mere negligence in taking the paper,
however gross, is not sufficient as matter of law. 8 But while
fross negligence is not itself bad faith, it may be competent evi-
ence for the jury. 9
XII. MUNICIPAL AND OTHER COUPON BONDS.
123. Title.'] Possession of bonds drawn or indorsed so as to
be payable to bearer, is frima facie evidence of title. 10 The iden-
tity of the bonds produced with those alleged in the complaint,
may be assumed if no objection is made at the trial. 11 In an action
on coupons, the possession of the coupons is prima facie evidence
that the holder of them is the holder of the bonds from which
they were cut, without producing the bonds themselves. 12
1 Goodman T. Simonds, 20 How. (U. S.) 342, 365 ; Iron Mountain Bank v. Mnr-
dock, 62 Mo. 70 ; Collins v. Gilbert, 94 U. S. (4 Otto), 753. As, for instance, where
printed words were erased but still visible. Angle v. Northwestern Mutual Life
Insurance Co. 92 U. S. (2 Otto), 330, 341. Absence from the bond of a scrip certifi-
cate which had been pinned to it and was referred to in it, held competent but not
sufficient evidence to put the purchaser on inquiry. Hotchkiss v. National Banks,
21 Wall. 358 ; and see 47 N. Y. 143.
* Mabie v. Johnson, 8 Hun, 309.
8 Miller v. Crayton, 3 Supra. Ct. (T. <fc C.) 360.
* Lake v. Reed, 29 Iowa, 258, s. o. 4 Am. R. 209 ; Collins v. Gilbert, 94 U. S.
(4 Otto), 758.
6 Farmers' & Citizens' Nat. Bank v. Noxon. 45 N. Y. 762.
6 Mechanics' Bank of Williamsburgh v. Foster, 44 Barb. 87, s. o. 19 Abb. Pr. 47 ;
29 How. Pr. 408.
1 Marine Bank of New York v. Clements, 31 N. Y. 33.
8 Chapman v. Rose, 56 N. Y. 137, rev'g 44 How. Pr. 364; Brown v. Spofford, 95
U. S. (5 Otto), 474, 478.
9 Collins v. Gilbert (above) ; Jones v. Gordon (H. of L.) 37 Law Times, N. S. 480;
2 Pars on Prom. N. <fec. 279.
10 Martin v. Somerville Water Power Co. 27 How. Pr. 161, 169.
11 Wickes v. Adirondack Co. 4 Supln. Ct. (T. A C.) 260. Compare Chambers
County v. Clews, 21 Wall. 817.
Aurora City v. West, 7 Wall. 82 ; Doming v. Inhabitants of Houlton, 64 Me.
254, s. o. 18 Am. R. 253 ; and see 6 Moak's fing. 120, n.
452 ACTIONS ON NEGOTIABLE PAPER.
124. Evidence of regularity and power '.] A municipal cor-
poration is not estopped from asserting the invalidity of its bonds
by. the conduct of its officers or agents, or acts of acquiescence
on the part of the inhabitants. 1 Want of power in the officer by
whom the act was performed cannot be supplied by estoppel
drawn from the conduct of the officer, nor by ratification by
him ; and want of power in the corporation cannot be supplied
by estoppel against it or ratification by it. But if it had power,
want of its delegation to the officer may be supplied by estoppel
or by ratification, drawn from its own conduct or silence. 2
In favor of a bona fide purchaser for value and before matur-
ity, or an assignee of such a purchaser, the recital in municipal
bonds, by officers empowered to determine the question, that the
precedent conditions prescribed by law -have been performed, is
conclusive. 3 The recital is itself a decision of the fact by the ap-
pointed tribunal. 4 And the certificate of the proper officer that
the bond has been duly issued and the signatures are genuine, and
that the same has been duly registered in his office according to
law, cannot be contradicted by evidence that there was actually
no registration in his office. 5 But the validity or existence of the
alleged statute may be impeached against any holder. 6 If it ap-
pear on the face of the bonds that they are not in conformity
with the act, the holder cannot prove ignorance 7 of the terms of
the act.
125. Notice of defect, <&c.~\ The non-payment of a single
coupon overdue since the commencement 01 the month in which
the bond was purchased, though competent on the question
whether plaintiff is a lonafide holder, yet, in connection with the
fact that previous coupons had been paid, is entirely insufficient
to charge him with notice or duty of inquiry. 8 The number of a
coupon bond, being essential to identity, may be regarded as ma-
terial, within the rule as to alterations. 9
1 "Weismer r. Village of Douglass, 64 N. Y. 91, 105.
2 5 Abb. N. Cas. 49, note, and cases cited.
8 Commissioners, <fec. v. Bolles, 94 U. S. 108, and cases cited ; and notwithstand-
ing error in the recital. Commissioners, <fec. v. January, Id. 206. Thus it is conclu-
sive as to the validity and genuiness of the signatures of the requisite number of tax
payers, (Town of Venice Y. Murdock, 92 U. S. [2 Otto], 494); as to the giving of
regular notice of the popular election, which was a condition precedent, (Humboldt
Township v. Long, Id. 642); and that the value of the taxable property of the town-
ship was in amount sufficient, (Marcy v. Township of Oswego, Id. 637).
4 Town of Ooloma v. Eaves, 92 U. S. (2 Otto), 484 ; and see Van Hostrup v. Mad-
ison City, 1 Wall. 291.
6 Township of Rock Creek v. Strong, 96 U. S. (6 Otto), 271, 278.
Town of S. Ottawa v. Perkins, 94 U. S. (4 Otto), 267. As to the mode of doing
this, see 3 Abb. New Cas. 372, note.
7 Horton v. Town of Thompson, 71 N. T. 514, reVg 7 Hun, 452.
8 Cromwell v. County of Sac, 96 U. S. (6 Otto), 51, 57.
9 Force v. City of Elizabeth, 28 N. J. Eq. 403, and casts cited.
BANK CHECKS. 453
XIII. BANK CHECKS.
126. Stamp.'] The provision of the internal revenue law l ex-
cluding checks, drafts and orders, or copies thereof, from admis-
sion in evidence unless duly stamped, applies only to United
States courts, not to the State courts. 2 Omission to stamp, to de-
feat the paper, must be shown to have been done with intent to
defraud the revenue. 3 It is not enough to show that it was done
intentionally for another purpose. 4 The burden of proving a lost
instrument to have been unstamped is on the party objecting to
its production. There being no evidence on either side, it will
be presumed to have been stamped. When it has been shown
that at any particular time it was unstamped, the burden is shifted,
and the party relying upon it must prove that it was duly
stamped/
127. Title.] Production is the same evidence of title as in
the case of other negotiable paper. 6 The payee may recover in
his own name, although another person may be interested in the
proceeds. 7 Evidence- of usage is competent to show that a bank
which in good faith receives a check from a depositor and passes
it to his credit, and on the same day pays, and charges against
such deposit, checks drawn by him, is a oona fide holder of the
deposited check for value. 8
A check payable to a fictitious or impersonal payee, is admis-
sible under an allegation of a check payable to bearer. 9
128. Oral evidence to vary.'] In accordance with rules already
stated, 10 it is not competent to vary the terms of the check by
showing a contemporaneous oral agreement that payment was not
to be demanded at maturity, but that time was to be given at the
election of the drawer, 11 or was to be made in uncurrent funds. 12
But oral evidence that it was given as security for a proposed
loan which was not made, and that it had therefore no considera-
tion, is admissible. 13
I U. S. R. S. 3421.
s People ex rel. Barbour v. Gates, 43 N. Y. 40, rev'g 57 Barb. 291, s. o. 39 How.
Pr. 74. Contra, Chat-tiers & Robinson Turnpike Co. v. McNamara, 72 Penn. St. 278,
a c. 13 Am. R. 673.
a Baker v. Baker, 6 Lans. 609.
4 Redlich v. Doll, 64 N. Y. 234. Rules applicable to affixing of stamps by col-
Lector, to cure omission. 14 Wall. 861.^
5 Marine Investment Co. v. Haviside, L. R. 8 H. of L. 624, s. c. 4 Moak's Eng. 17.
6 Townsend v. Billinge, 1 Hilt. 853 ; Cruger v. Armstrong, 5 Johns. Cas. 7.
7 Fish v. Jacobsohn, 2 Abb. Ct. App. Dec. 132.
8 Market Bank v. Hartshorne, 3 Abb. Ct. App. Dec. 173, s. c. 3 Keyes, 137. Conv
pare National Gold Bank & Trust Co. v. McDonald, 61 Cal. 64, s. c. 21 Am. R. 697.
9 Mechanics' Bank v. Straiton, 8 Abb. Ct. App. Dec. 269, s. c. 86 How. Pr. 190.
10 Paragraphs 36, <fec.
II Hill v. Gaw, 4 Barr (Pa.) 493.
18 Pack v. Thomas, 21 Miss. (13 Smedes <fe M.) 11.
13 Bernhard v. Brunner, 4 Bosw. 528.
454 ACTIONS ON NEGOTIABLE PAPER.
129. Laches.'] Unreasonable delay in the presentment of a
check, if relied on as a defense, should be averred in the answer. 1
The better opinion is that the court will not presume laches
against the plaintiff without some evidence indicating it ; a but if
delay and injury thereby is shown, the burden is on plaintiff to
prove an excuse for the delay. 8 For this purpose evidence of
usage of the place is competent ; 4 but it must be shown ; it can-
not be presumed to exist without evidence. 5
130. Action against drawer.'] A simple check which has not
been presented for payment, is not evidence of indebtedness from
the drawer to the payee, before demand. But after dishonor and
notice the check imports a debt from the drawer to the payee,
and it may be sued on without proving the consideration, value
received being presumed. 6
Plaintiff may show that the check, though drawn in the name
of one partner onlv was so drawn pursuant to usage of the de-
fendant's firm to keep their bank account in that name, and that
he advanced the consideration upon credit of the firm, and not
upon the individual security of the partner in whose name the
check was drawn. 7 A check is presumed to be drawn against a de-
posit ; 8 and plaintiff must aver and prove either demand, non-
payment, and notice to the drawer, or such facts for example,
want of funds at the bank, or stopping payment as dispense
with demand and notice. 9
A check with " memorandum " or " mem." written on its face,
is, according to the usage of merchants, a mere due bill, 10 and de-
mand and notice are unnecessary. 11
131. Action against the Bank^\ The holder of a bank check,
whether a private person or a public officer, suing the bank
thereon, must prove, either that the bank accepted or certified it,
or that they charged it against the drawer. 12 Against a bona fide
holder, evidence of violation of instructions, 13 or want of funds, 14
or the holder's delay in presenting for payment, 15 is not available.
1 See Harbeck v. Craft, 4 Duer, 122.
2 Smith v. Janes, 20 Wend. 192.
3 Hazleton v. Colburn, 1 Robt. 345, s. c. 2 Abb. Pr. N. S. 199.
4 Turner v. Bank of Fox Lake, 4 Abb. Ct. App. Dec. 434, affi'g 23 How. Pr. 399.
* Smith v. Miller, 43 N. Y. 171, rev'g 6 Robt. 157, 413, a. c. 6 Abb. Pr. N. S. 234.
6 2 Dan. Neg. Inst. 560.
I Crocker v. Colwell, 46 N. Y. 212.
8 White v. Ambler, 8 N. Y. 170.
9 Shultz v. Depuy, 3 Abb. (N. Y.) Pr. 25Q. But as to pleading, see Requa v.
Guggenheim, 3 Lans. 61.
10 U. S. v. Isham, 17 Wall. 602.
II Turnbull v. Osborne, 12 Abb. Pr. N. S. 200.
12 Bank of the Republic v. Millard, 10 Wall. 152, and cases cited. And see Attor-
ney General v. Continental Life Ins. Co. 71 N. Y. 325, rev'g 10 Hun, 604.
13 Farmers' <fc Mechanics' Bank v. Butchers' <fc Drovers' Bank, 4 Duer, 219, affi'd in
16 N. Y. 125, s. c. Id. 623, 28 Id. 425 ; Merchants' Bank v. State Bank (below).
14 Phoenix Bank v. Bank of America, 1 N. Y. Leg. Obs. 26 ; Meads v. Merchants'
Bank of Albany, 25 N. Y. 143.
Willets v. Phoenix Bank, 2 Duer, 121, s. c. 11 N. Y. Leg. Obs. 211, 1 Liv L,
STOCK AND PREMIUM NOTES. 455
The authority of a cashier to certify a check drawn by a third
person l may be inferred by the jury from evidence that with the
knowledge and acquiescense of the directors he had frequently
pledged the credit of the bank, in other similar ways ; for exam-
ple, by certificates of deposit, memoranda, etc., and from evidence
of usage to the same effect in other banks of the same place. 3
XIY. STOCK AND PREMIUM NOTES.
132. Stock notes.'] Although the note sued on is in form for
premiums, plaintiff may allege and prove that it was in fact given
and taken as a capital-stock note, and used as such in organizing
the company, so as to recover its entire amount, without showing
that it has been assessed. 3
133. Premium notes.'] In the absence of any denial, in plead-
ing, an admission by the insured, in his premium note, of the policy,
its number and date, is prima, facie evidence of the issuing and
existence of the policy, and of its contents. 4 From the fact that
the note was given to a corporation whose business was insurance,
as part of an insurance premium then payable, the insurance may
be presumed to have been within the corporate powers. 5
134. Losses and Assessments, ,] In an action on a premium
note for losses assessable, plaintiff, whether the corporation 6 or
a receiver, 7 must give some evidence that losses, or other valid
liabilities, which rendered an assessment proper, 8 actually occurred 9
during defendant's membership, 10 and that pursuant to the statute, 11
and upon inquiry had, 12 an assessment was actually 13 and legally 14
made. The evidence of losses should be such as would avail
against the corporation, for instance, a report adjudicating its
insolvency ; 15 or proof of judgments recovered against it, or the
presentment and allowance of claims ; 16 or the record of losses
Mag. 649 ; Farmers' <fe Mechanics' Bank v. Butchers' & Drovers' Bank, 4 Duer, 219
16 N. Y. 125, 14 Id. 623, 28 Id. 425.
1 Claflin v. Farmers' & Citizens' Bank, 25 N. Y. 293, 8. c. 24 How. Pr. 1, rev'g 36
Barb. 540 ; Pope v. Bank of Albion, 59 Barb. 226.
2 Merchants' Bank v. State Bank, 10 Wall. 604.
3 Sands v. St. John, 36 Barb. 628, 8. c. 23 How. Pr. 140 ; s. p. Sand v. Son, 56 N.
Y. 662, rev'g 1 Supm. Ct. (T. & C.) adden. 13.
* Way v. Billings, 2 Mich. (Gibbs), 897.
5 Mutual Benefit Life Ins. Co. v. David, 12 N. Y. (2 Kern.) 569.
8 Atlantic Mut. Fire Ins. Co. v. Fitzpatrick, 2 Gray, 279, 281.
i Jackson v. Roberts, 81 N. Y. 304.
8 Jackson v. Roberts, 31 N. Y. 304; Devendorf v. Beasley, 22 Barb. 656; Ameri-
can Ins. Co. v. Schmidt, 19 Iowa, 502.
Pacific Mut. Ins. Co. v. Guse, 49 Mo. 329, s. c. 8 Am. R. 132.
10 Manlove v. Bender, 89 Ind. 871, s. o. 13 Am. R. 280.
11 Thomaa v. Whallon, 81 Barb. 172.
19 Sands v. Graves, 68 N. Y. 94, rev'g 1 Supm. Ct. (T. <fe C.) adden. 13.
13 Id.
14 Augusta Mut. Fire Ins. Co. v. French, 39 Me. 522, 625.
15 Sands v. Shoemaker. 4 Abb. Ct. App. Dec. 149.
18 Sands v. Kimbark, 27 N. Y. 147, affi'g 89 Barb. 108; see, also, Sands v. Ilill,
42 Barb. 651.
456 ACTIONS ON NEGOTIABLE PAPER.
kept by the company. 1 Evidence that there was ground for an
assessment cannot supply the omission to assess, 2 nor can the ex-
istence of an assessment raise a sufficient presumption of liabil-
ities. 8
135. Defenses.'] If defendant relies on want or failure of con-
sideration, such as the fact that the company has not earned pre-
miums from him to the amount of the note, the burden is on him
to prove it. 4 So, if he relies on the insolvency of the company,
at the time of issuing the policy, known to its officers and to the
plaintiff, the burden is on him to prove such knowledge. 5
The form of a note is not conclusive, but it may be shown to
have been given as a stock or capital note, and tnus let in the
statute of limitations. 6 Nor is an apparent assessment conclusive. 7
1 People's Mut. Ins. Co. v. Allen, 10 Gray, 297,
8 Sands v. Graves, 68 N. Y. 94, rev'g 1 Supm. Ct. (T. & C.) adden. 18.
8 Pacific Mut. Ins. Co. v. Guse, 49 Mo. 329, s. o. 8 Am. R. 132. Compare Sands
v. Hill, 42 Barb. 651. As to demand, etc., see Sands v. Shoemaker, 4 Abb. Ct. App.
Dec. 149 ; and Sands v. Graves (above), and cases cited ; Sands v. Lilieuthal, 46 N.
Y. 541.
* Nelson v. Wellington, 5 Bosw. 178. .
8 Clark v. Metcalf, 54 N. Y. 683.
6 Sand v. Son, 56 N. Y. 662, rev'g 1 Supm. Ct. (T. & C.) adden. 13.
7 People's Mut. Fire Ins. Co. v. Westcott, 14 Gray, 440 ; and see Sanda v. Sweet,
44 Barb. 108.
CHAPTEE XXII.
ACTIONS ON NON-NEGOTIABLE PROMISSORY NOTES.
Peculiar rules."] Most of the rules stated in the first di<
vision of the last chapter apply ; but in qualification of them it
it should be observed that in case of non-negotiable paper, pos-
session by one other than the payee is not, alone, evidence of
title ; * nor is possession necessary, to enable to recover. 2 Consid-
eration must be alleged and proved. 3 The words ''for value re-
ceived " in pleading are a sufficient allegation ; 4 and in the instru-
ment sure prim a facie evidence of consideration. 5 If a considera-
tion is indicated, but its actual payment is not, the fact that it
had passed should be alleged and proved. 6
Oral evidence is not competent to show that a non-negotiable
note was intended to have a negotiable quality, 7 such as that of
entitling an indorser to notice, 8 but he is liable as guarantor or
joint maker, according to the intention of the contract, which
may be shown by oral evidence ; 9 and notice need not be proved
though alleged. 10
1 Barrick v. Austin, 21 Barb. 241.
2 Rose. N. P. 351. Proof of loss is enough without proof of destruction. 2 Pars.
onPr. N. 290.
3 Spear v. Downing, 34 Barb. 522, 8. c. 12 Abb Pr. 437, 22 How. Pr. 30.
4 Id.
6 Jerome v. "Whitney, 7 Johns, 321.
8 Spear v. Downing (above); Considerant v. Brisbane, 14 How. Pr. 487; Evans
v. Williams, 60 Barb. 346.
1 Ballard Pavement Co.'v. Mandel, 2 MacArthur, 351, 359.
8 Richards v. Warring, 4 Abb. Ct. App. Dec. 47 ; Cromwell v. Hewitt, 40 N. Y.
491, 16 Alb. L. J. 47, and cases cited.
9 Id., and see pp. 437-440 of this voL
10 Billingham v. Bryan, 10 Iowa, 317.
[457]
CHAPTER XXIII.
ACTIONS ON ACCOUNTS STATED.
1. Grounds of action. 9. Tacit assent to account stated
2. Pleading. 10. Defendant's evidence to disprove
8. Character of the parties. assent.
4. The account and its statement. 11. Incapacity.
6. The promise. 12. Impeaching the account itself.
6. Testimony of witness : production 13. Consideration.
of account. 14. Omissions and errors.
7. Res geste. 15. Offsets.
8. Express assent. 16. Limitations.
1. Grounds of action. ,] An account stated is an agreement
between persons who have had previous transactions, nxing the
amount due in respect of such transactions, and promising pay-
ment. As distinguished from a mere admission or acknowledg-
ment, it is a new cause of action, 1 and hence, if appearing to have
been made since the action commenced, is not competent in evi-
dence. 2 An account stated is not now regarded as a contract
upon new consideration, and does not create an estoppel, but it
establishes prima facie the accuracy of the items without further
proof. The statement is not the equivalent of an express promise
to pay the balance when the items do not constitute a legal debt
or duty. 3
2. Pleading.'] An allegation that one party made a state-
ment of an account, and delivered it to the other, who made no
objection to it, is not an allegation that an account was stated be-
tween them. These are but matters of evidence tending to show,
but not conclusively, an account stated. If an account stated is
alleged, the original consideration need not be alleged nor proved. 5
Under the new procedure, the question whether evidence of
the original indebtedness is competent where plaintiff fails to
1 An unsigned account is not a new cause of action for the purpose of enabling
plaintiff to recover in an action brought after the original cause of action was barred
by the statute where the statute requires a new promise to be in writing, signed, <fec.
Chace v. Trafford, 1 16 Mass. 629, s. c. 17 Am. R. 171. Compare Smith v. Forty, 4
C. & P. 126 ; N. Y. Code Civ. Pro. 395.
4 Rose. N. P. 590.
3 Young v. Hill, 67 N. Y. 162, rev'g 6 Hun, 613. Compare Melchior v. McCarty,
81 Wise. 252, s. c. 11 Am. R. 605 ; Seago v. Deane, 4 Bing. 459. As to jump settle-
ments, see Calkins v. Griswold, 11 Hun, 208 ; Hamilton, <fec. Co. v. Goodrich, 6 Allen,
191, 199.
4 Emery v. Pease, 20 N. Y. 62. But if there is no dispute as to the facts, it is
competent for the court to instruct the jury that such an account is a stated account.
Toland v. Sprague, 12 Pet. 800.
* 1 Steph. N. P. 362; 1 Chit. PL 358 ; Milward v. Ingram, 2 Mod. 43.
[458]
ACTIONS ON ACCOUNTS STATED. 4:59
prove the statement of an account, depends on whether defend-
ant has been misled to his prejudice by the variance. If not, the
pleading is amendable. 1
3. Character of the parties.'] If defendant accounted with
plaintiff in a particular character, he will be taken to have ad-
mitted that character. 2
4. The account and its statement.'] It is not necessary to
show a mutual account 8 between the parties, nor even any account
in the commercial sense, nor more than one item. 4 The transac-
tions must be past transactions, 5 but the dates in the statement
are sufficient proof of this. The statement must be express, and
fix a sum, 6 but it is not essential that it include, or purport to in-
clude, all indebtedness between the parties. If it fix the sum for
a certain period, it is competent, leaving defendant to establish a
set-off. 7
An allegation of account stated is supported by evidence that
the parties actually met and considered and agreed upon the items
and the result, 8 or by evidence of a bill rendered by one and not
objected to by the other, 9 or by the delivery of the common pass-
book of the parties, balanced, 10 or by an award of arbitrators if
coupled with an admission that the balance was due ; n but with-
out some such ratification an award is not competent. 12
5. The promise.'] To prove an account stated the evidence
must justify the inference of an agreement 13 as distinguished from
a mere admission. 14 Thus a compulsory admission by a witness, 15
1 Woolsey v. Village of Rondout, 4 Abb. Ct. App. Dec. 639 ; and see Goings v.
Patten, 1 Daly, 168, s. o. 17 Abb. Pr. 339 ; Smith v. Glens Falls Ins. Co. 66 Barb.
556 ; 62 N. Y. 85 ; Greenfield v. Mass. Mut. Life Ins. Co. 47 N. Y. 430. Otherwise
at common law.
* Peacock v. Harris, 10 East, 104 ; Rose. N. P. 590.
3 See Case v. Hotchkiss, 1 Abb. Ct. App. Dec. 324 ; Cobb v. Arundell, 26 Wise.
553.
4 See cases below.
5 Mellon v. Campbell, 11 Penn. St. 415. But money due on a sealed instrument
is not alone matter for an account stated ; Middleditch v. Ellis, 2 Exch. 623; Rtsc.
N. P. 590. Otherwise if it be included with other items. Foster v. Allanson, 2
Term. R. 479. Compare Young v. Hill, 67 N. Y. 162, reVg6 Hun, 613. Compound
interest is not recoverable merely because included in an account stated. Young v.
Hill (above).
6 Bouslog v. Garrett, 39 Ind. 338 ; Lane v. Hill, 18 Q. B. 252 ; Bernasconi v. An-
derson, M. <fe M. 183.
I Filer v. Peebles, 8 N. H. 226.
8 Darlington v. Taylor, 3 Grant. 195 ; and see McCullough v. Judd, 20 Ala. 703.
Cobb v. Arundell (above); Wiggins v. Burkham, 10 Wall. 129, and without
itemizing. May v. Kloss, 44 Mo. 300.
10 Hutchinson v. The Bank, 48 Barb. 302.
II Buschman v. Morling, 30 Md. 384; Salmon v. Watson, 4 B. Moore, 73.
19 Bates v. Townley, 2 Exch. 152.
13 Robertson v. Wright, 17 Gratt. 534.
14 Breckoa v. Smith, 1 Ad. fe E. 488.
15 Tucker v. Barron, 7 B. & C. 623.
460 ACTIONS ON ACCOUNTS STATED.
or assent obtained by a threat to sell the property of the party, 1
or the act of a clerk in giving a transcript from corporate books,
without evidence of intent to state the account, 8 is not enough.
But the agreement may be implied from circumstances. 8 A writ-
ten promise need not be proved, 4 nor even an express promise. 5
But a written admission, such as implies a promise, may be proved,
though made in any form, such, for instance, as a signature of the
account ; 6 or a due bill, though naming no payee j" or a note, if
absolute as to the indebtedness, though conditional as to time of
payment ; 8 or a letter acknowledging correctness of, 9 or making no
objection to, an account rendered, and drawing for the precise
balance. 10 An admission in a writing under seal will sustain the
action if the instrument is not a substitute for or merger of the
original simple contract. 11
A qualified acknowledgment is not enough ; 12 but an unquali-
fied admission of a single item is competent ; 13 and objection to
one item alone may imply admission of the rest. 14 ,
If the account was stated by or to an agent there must be evi-
dence of his authority 15 at the time. 16 Admission to a stranger is
not evidence of account stated. 17
6. Testimony of witness: Production of 'account .] The witness
may state what he understood at the time as the agreement of the
parties, if it be his impression as to what was said, 18 though he can-
not recollect the precise language ; 19 but he cannot state his belief, as
an inference from what was said, 20 or as a matter of opinion respect-
ing the bearing of what was said upon the question of fact. 21 The
1 Stenton v. Jerome, 54 N. Y. 480.
8 Harvey v. West Side Elevated Rw. Co. 13 Hun, 392.
3 Stebbins v. Niles, 25 Miss. 267.
4 Freeman v. Howell, 4 La Ann. 196. A corporate resolution, though unrecorded,
is enough. St. Mary's Church v. Cagger, 6 Barb. 576.
5 But between partners, an express promise must be proved, 4 Abb. N. Y. Dig.
new ed. 736 ; Rose. N. P. 590.
6 Montgomerie v. Ivers, 17 Johns. 38.
7 Fesenmayer v. Adcock, 16 Mees. <fe W. 449. If defendant relies on the fact that
plaintiff is not the true payee, it is for defendant to prove it. Id.
8 Nunez v. Dautel, 19 Wall 560; Morgan v. Jones, 1 C. <fc J. 162, s. P. Rose. N. P.
382 ; Lemere v. Elliott, 6 H. <fc N. 656.
9 Vinal v. Burrill, 16 Pick. 401.
10 Lockwood v. Thorne, 11 N. Y. 170, rev'g 12 Barb. 487.
11 Hoyt v. Wilkinson, 10 Pick. 33.
" Rose. N. P. 688.
13 -2 Whart. Ev. 1140.
14 Rose. N. P. 590.
15 Rose. N. P. 589; Harvey v. West Side Elevated Rw. Co. 13 Hun, 392.
14 Thallimer v. Brinckerhoff, 4 Wend. 394. An account stated by the treasurer of
a corporation is evidence to charge the corporation. Davis v. Georgetown Bridge
Co. 1 Cranch C. Ct. 147. Compare note 2, above.
" Rose. N. P. 590.
Thomas v. White, 11 Ind. 132.
11 See Chaffee v. Cox, 1 Hilt. 78.
* Williams v. Dewitt, 12 Ind. 309, 311.
81 As to this distinction, see 2 Abb. New Cas. 22.9, note.
ACTIONS ON ACCOUNTS STATED. 461
parol testimony of a witness that the parties made a settlement
of accounts in his presence, his knowledge -being derived from
declarations and admissions to each other in his hearing, is not
rendered incompetent by the fact that the settlement was based
on a written memorandum produced by one of the parties at the
time, and which was not shown to, and never in the possession of
the witness. 1 But if the agreement proved by the witness was
an assent to the written statement, the paper should be pro-
duced, or its absence accounted for. 2 If the statement so agreed
to was a copy, it is not necessary to produce the books or other
original ; 3 but the original is better evidence than a copy of the
copy. 4 Defendant's admission that the account examined by him
was correct is admissible against him, although made during a
negotiation for settlement. 5 And after the correctness of the
items of an account has been proved, the account and entries and
vouchers concerning the items are admissible, not as evidence in
themselves, but as explaining what is referred to. 6 If the wit-
ness's testimony is to the identity of the written statement pro-
duced, the paper is competent, although he cannot recollect from
memory the items he was directed to set down, and vouchers re-
ferred to in the account are not produced. 7
7. Res gestoB.~\ What one of the parties said immediately
after the settlement, and in explanation of it, but in the absence
of the other, is not a part of the res gestcs so as to be competent
in his own favor. 8
8. Express assent.'] If defendant's express assent to the ac-
count is proved, he may prove in his own favor all that was said
by him in the same conversation 9 that in any way qualifies or
explains the statement already in evidence, or modifies the use
that plaintiff might otherwise make of it. 10
9. Tacit assent to account rendered.^ Between merchants of
the same n or different 12 countries, or other persons between whom
there are accounts current in the ordinary course of business, 13 if
an account has been presented, and no objection has been made
thereto, after a reasonable time, 14 it is treated, under ordinary cir-
1 Cramer v. Shriner, 18 Md. 140.
s Vinal T. Burrill, 16 Pick. 401.
3 See Phillips v. Tapper, 2 Penn. St. 323.
4 Reddington v. Oilman, 1 Bosw. 235.
8 Bartlett v. Tarbox, 1 Abb. Ct. App. Dec. 120.
Id.
I M'Clelland v. Crawford, 2 Bibb (Ky.) 386. And see p. 320 of this vol.
8 Rockwell v. Taylor, 41 Conn. 55.
* Compare Nesbit v. Stringer, 2 Duer, 26.
10 Rouse v. Whited, 25 N. Y. 170, rev'g 25 Barb. 279. Compare Delamater v.
Pierce, 3 Den. 315, affi'd in How. App. Cas. 1.
II Wiggins v. Burkham, 10 "Wall. 129.
15 Freeland v. Heron, 7 Cranch, 147 ; Tickel v. Short, 2 Ves. Sr. 239.
13 Shepard v. Bank, 15 Mo. 143.
14 Two or three posts. Sherman v. Sherman, 2 Vern. 276. Story says several
posts. 1 Story's Eq. Jur. 520.
462 ACTIONS ON ACCOUNTS STATED.
cumstances, as being, by acquiescence, a stated account, because
the silence of the one to whom the account is sent warrants the
inference of an admission of its correctness. 1 This inference is
more or less strong according to the circumstances of the case.
Plaintiff better be prepared with some evidence that he re-
ceived no objection from defendant within a reasonable time ; 2
and to prove the ordinary course of mail, if necessary, in order to
show that a reasonable time elapsed, for the court will not take
judicial notice of it. 8 If such proof is made and no excuse for
not objecting shown by defendant, the account will be admitted
as a stated account. 4 "When thus admitted, the burden is thrown
upon defendant to impeach it, 6 in the manner stated below. If
express promise or assent is not shown by direct evidence, the
account is not conclusive, 6 but only shifts tne burden of proof. 7
10. Defendants evidence to Disprove assent.'] The inference
of assent may be repelled not only by direct evidence of objec-
tion made before the account was rendered, 8 or even after acting
on it, 9 but by any circumstances tending to a contrary conclusion, 10
such as that the party was absent from home, suffering from ill-
ness, or expected shortly to see the other, and intended and pre-
ferred to make his objections in person. 11 . Express assent may be
rebutted by evidence that it was hastily and inconsiderately
made. 12
11. Incapacity."] It is not competent to prove that in the
opinion of a witness the defendant was dull of comprehension, and
not of sufficient capacity or education to understand long accounts, 13
unless in connection with evidence of unsoundness of mind, or
undue influence or fraud. 14
12. Impeaching the account itself. ~] An account stated if es-
tablished, whether by express or implied assent, throws upon the
other party the burden of showing its incorrectness. He may
prove fraud, omission, or mistake, and in these respects he is in
no wise concluded by the admission implied from his silence after
1 Contra, 2 Whart. Ev. 1140.
2 According to some authorities the burden is on defendant to prove objection
made. Ruffner v. Hewitt, 7 W. Va. 685.
3 Wiggins v. Burkham, 10 Wall. 129.
4 Tolland v. Sprague, 12 Pet. 330; Towsley v. Dennison, 45 Barb. 490. Compare
Guernsey v. Rexford, 63 N. Y. 631.
6 Wiggins v. Burkham (above).
6 Guernsey v. Rexford, 63 N. Y. 631.
* Towsley v. Dennison, 45 Barb. 490 ; Freeland Y. Heron, 7 Cranch, 14V.
8 Cobb v. Arundell, 26 Wise. 553.
9 Lock wood v. Thome, 18 N. Y. 285, rev'g 24 Barb. 391 ; and explaining UN
Y. 170.
10 Guernsey v. Rexford, 63 N. Y. 631 ; Champion v. Joslyn, 44 Id. 653.
11 Wiggins v. Burkham, 10 Wall. 129.
14 Stewart v. Conner, 13 Ala. 94.
18 Stewart v. Conner, 13 Ala. 94.
14 See p. 14, of thisvoL
ACTIONS ON ACCOUNTS STATED. 463
it was rendered. 1 He must, however, prove fraud, or show clear-
ly the error or mistake on which he relies ; 2 and it is conclusive
unless some fraud, mistake, omission or inaccuracy is shown. 8 An
exception is recognized when the parties are not upon equal
terms, and then a court of equity may wholly disregard it. 4
Even the signing of the account by a party is not conclusive
evidence of accuracy. 5 And, on the other hand, a clause stating
that the settlement is subject to the correction of errors and
omissions which may afterward be found, does not render the ac-
count any the less a settled account, and subject to all the rules
applicable to stated accounts. 6 A mistake in footing does not af-
fect the legal effect of an account stated, which may be ascer-
tained by a correct footing. 7
Under the new procedure, it is the better practice to allege, in
pleading, the fraud or mistake on which defendant relies to sur-
charge or falsify plaintiff's account. 8 To falsify items the original
books, if any, should be produced, or the accounting party sub-
poenaed, 9 or given notice to produce them.
13. Consideration^ Evidence that the original consideration
of an item was positively illegal, is competent ; but evidence that
the original agreement, of which that consideration was a part,
was not valid, is not competent, if defendant had a legal consid-
eration. 10
14. Omissions and errors.'] For the purpose of explaining or
negativing an omission or other error, it is competent to adduce
the original books from which the account was drawn off, 11 and to
prove why the party failed to discover, and how he did discover
the error ; tt but a party cannot testify, as a witness, to his reason,
not communicated to the other party, for the omission. 13 A mere
omission of a questioned item by assent of both parties, is not
conclusive against it. 14
15. Offsets.] A claim of offsets as distinguished from an
omission, should be alleged in pleading ; and even if anterior to
1 Wiggins V. Bnrkham, 10 "Wall. 129; Perkins v. Hart, 11 Wheaton, 256.
* Towsley v. Dennison, 45 Barb. 490.
* Young v. Hill, 67 N. Y. 162, rev'g 6 Hun, 613. It is never an absolute estop-
pel. Hutchinson v. Bank, 48 Barb. 302.
* Young v. Hill (above). Contra, as to all but professional relations. Phillips v.
Belden, 2 Edw. Ch. 1, 17, and see Ogden v. Astor, 4 Sandf. 336.
5 Nichols v. Alsop, 6 Conn. 477 ; Stewart v. Conner, 13 Ala. 94.
6 Young v. Hill (above).
' Walling v. Rosevelt, 1 Hair. 41.
8 Compare Bouslog v. Garrett, 39 Ind. 338.
* Upton v. Bedlou, 4 Daly, 216.
10 This seema to be the true principle. See Melchoir v. McCarty, 81 Wis. 252, s. o.
11 Am. R. 605 ; Youngs v. Hill, 67 N. Y. 162, rev'g 6.Hun, 613.
11 Hampton v. Michael. 6 Gratt. (Va.) 161.
" Glenn v. Salter, 50 Geo. 170.
13 Champion v. Joslyn, 44 N. Y. 653.
14 Bright v. Coffman, 15 Ind. 371.
464: ACTIONS ON ACCOUNTS STATED.
the account, it is not merely on that ground admissible unless al-
leged. 1 A general settlement raises a legal, 3 but not conclusive 8
presumption that earlier demands were satisfied. A subsequent
accounting, including fresh items, should be pleaded ; otherwise
of a mere correction of the first. 4
16. Limitations] If no new consideration upon the state-
ment of account is shown, other than the mutual assent, the stat-
ute of limitations applicable to the original indebtedness may
serve to bar it, if pleaded, 5 but the statement itself may take the
case out of the statute, if it be such as to satisfy the requirement
of an acknowledgment or new promise.
1 Johnson v. Johnson, 4 Call (Va.) 88.
8 Smith v. Tucker, 2 E. D. Smith, 193.
8 Busheev. Allen, 31 Vt. 631.
4 Rose. N. P. 691.
B See paragraph 1, note 1.
CHAPTER XXIV.
ACTIONS ON AWARDS.
1. Fact of submission. 9. Extrinsic evidence to vary.
2. Its scope. 10. Effect of award.
8. Promise to abide award. 11. Competency of arbitrator as wit-
4. Umpire, <fcc. ness.
5. Oath. 12. Defenses ; pleading.
6. Enlargement of time. 13. omissions ; excess of author-
7. Making award. ity.
8. Presumptions in favor of award. 14. other objections.
1. Fact of submission.'] The submission, if in issue, must be
proved by evidence that both the parties were bound. 1 If it was
in writing, the rules stated in chapter XXI and chapter XXVII
will apply to mode of proving execution. A rule of court entered
on the submission is not a sufficient authentication of the submis-
sion ; but a submission by order of the court, in a case where the
court had power to refer, is proved by production of the order, 2
or a duly certified copy. Even where the statute prescribes the
formalities of submissions, the presumption is in favor of the
validity of a submission, unless the contrary appears. 3 In case of
an oral submission, or in a conflict of evidence as to the execu-
tion of a written submission, or as secondary evidence of the
making of a written submission, it is competent to show that
defendant had partly performed the award, or that he had, on
presentation of the award, promised to perform it, or his admis-
sion of having submitted the matter to arbitration. 4 Unless the
statute requires writing, assent to a submission, even by a cor-
poration, may be inferred from circumstances. 5
The authority of an agent or attorney to submit may be in-
ferred from evidence of the principal's acquiescence in similar
submissions. 6 It is conclusively proved by evidence that the
principal appeared and proceeded before the arbitrator, 7 or other-
wise acquiesced in and ratified the submission. 8
1 Rose. N. P. 471.
3 Id ; Morse on Arb. 600.
3 Morse on Arb. 49. But see paragraph 14.
4 Morse on Arb. 602, and cases cited.
8 Isaacs v. Beth Hamedash Soc., 1 Hilt. 469.
6 Wood v. Auburn & Rochester R. R. Co. 8 X. Y. (4 Seld.) 160.
1 Diedrick v. Richley, 2 Hill, 271.
8 Smith v. Sweeny, 85 N. Y. 291.
30 [465]
466 ACTIONS ON AWARDS.
An oral submission, and proceeding npon it, do not estop the
party from setting up that the controversy was one not a subject
lor arbitration, or not a subject for oral submission. 1
2. Its scope.'] A submission is to be given a liberal, but not a
forced construction, in favor of including and terminating con-
troversies. 2 Documents referred to in it are competent evidence
to show what was in controversy. 3 If ambiguous, the course of
evidence and discussion before the arbitrators in presence of
both parties, is competent as tending to show that matters pre-
sented on both sides were embraced, and matters not mentioned
by either were not embraced in the submission. 4 A written sub-
mission is a contract within the rule that its terms cannot be
varied by an oral contemporaneous or previous agreement ; 5 but it
may be modified or superseded by a subsequent oral agreement. 6
3. Promise to abide award.~\ When a submission is proved,
an agreement to abide by the award is implied, and an express
promise need not be proved. 7
4. Umpire, <&c.~\ Under an allegation of submission to and
award by arbitrators, submission to and award by an umpire, is a
variance. 8 The appointment of an umpire, or additional arbi-
trator, if any, such were appointed and made the award, must be
proved. It cannot be proved by a recital in his award. 9 Ap-
pointment by parol is good unless otherwise provided by statute
or by agreement. 10
5. Oath.'] The arbitrator's oath, if required by statute, 11 and
notice of hearing, 12 are presumed, unless the contrary appear.
Evidence of waiver excuses the omission ; and the fact that de-
fendant proceeded without them is sufficient evidence of waiver. 13
6. Enlargement of time.~\ An enlargement of the time to
award implies a new submission, and the new agreement in strict-
I French v. New, 2 Abb. Ct. App. Dec. 209, s. c. 28 N. Y. 147, reVg 20 Barb.
481.
s Munro v. Alaire, 2 Cai. 820 ; Curtis v. Gokey, 68 N. Y. 306.
8 Winship v. Jewett, 1 Barb. Ch. 173.
4 Morse on Arb. 59-64 ; but compare Feidler v. Cooper, 19 Wend. 285.
5 For this rule see pp. 294, 364, &c., of this vol.
6 French v. New, 28 N. Y. 147, rev"g 20 Barb. 481.
7 Smith v. Morse, 9 Wall. 76 ; Valentine v. Valentine, 2 Barb. Ch. 430 ; Efner v.
Shaw, 2 Wend. 567.
8 Lyon v. Blossom, 4 Duer, 318. Unsound in so far as it holds that the variance
cannot be cured by amendment.
9 Still v. Halford, 4 Campb. 19. Compare Morse on Arb. 446, and cases cited.
10 Elmendorf v. Harris, 6 Wend. 516, s. c. 23 Wend. 628. Compare Smith v.
Morse, 9 Wall. 76.
II See Browning v. Wheeler, 24 Wend. 258.
12 Mayor, <fcc. of N. Y. v. Butler, 1 Barb. 325.
13 This is the rule in New York and some other States. Contra, in Kentucky,
Louisiana, Missouri and New Jersey. Day v. Hammond, 57 N. Y. 479.
ACTIONS ON AWARDS. 467
ness should be alleged ; 1 and if in issue must be proved, 2 if the
validity of the award depends upon it. If the time was fixed by
a sealed submission, written evidence, though unsealed, is compe-
tent to show extension, 3 and so, in any case, is oral evidence of
waiver by proceeding without objection after the time had
passed. 4
7. Making award.'] The execution of a written award may
be proved like that of other deeds or writings. 5 If the submis-
sion was to several, the concurrence of all must be shown ; 6 un-
less the statute, 7 or the terms of submission, 8 sanction a decision
by a less number ; in which case oral evidence is competent to
show that the one not signing, had jointly with the others, heard
the case. 9
If the submission required the award to be ready for delivery
at a time named, it is sufficient to prove that all the formalities,
if any, were completed at that time, so that it was ready to be
delivered to defendant (if he was entitled to delivery), 1 " on re-
quest, 11 and on payment of fees if any. 12 A tardy date to the award
is not alone enough to rebut the presumption of timely comple-
tion. 13 A waiver of delivery by the defendant may be proved by
parol. 14 Under an allegation that the award was duly made or
published on, &c., readiness to deliver may be proved. 15 Unless
publication to the party is required by the submission, plaintiff
need not prove that defendant had notice of the award. 16
Objections to the award which do not show it to be positively
illegal, or absolutely void under the statute, may be cured by
evidence of its ratification by the parties. 17
8. Presumptions in favor of awards.'] All presumptions
and intendments are in favor of an award, 18 as in case of a judg-
ment, 19 and for this purpose arbitrators are presumed to have per-
1 Myers v. Dixon, 2 Hall, 456.
* Rose. N. P. 471.
8 Bloomer v. Sherman, 5 Paige, 575, affi'g 2 Edw. 452.
4 Morse on Arb. 83, 173.
8 Rose. N. P. 472, see pp. 391, Ac., of this vol.
6 Green v. Miller, 6 Johns. 39, and cases cited.
7 2 N. Y. R. S. 542, 7.
8 Isaacs v. Beth Hamedash Soc. 1 Hilt. 469.
Schultz v. Halsey, 8 Sandf. 405.
10 Pratt v. Hackett, 6 Johns. 14.
11 Burnap v. Losey, 1 Lans. Ill ; Morse on Arb. 279.
19 Ott v. Schroepel, 3 Barb. 56.
13 Owen v. Boerum, 23 B:irb. 187.
14 Perkins v. Wing, 10 Johns. 143; Warren v. Haight, 65 N. T. 169; Sellick v.
Adclams, 15 Johns. 197. But compare Buck v. Wadsworth, 1 Hill, 321.
15 Munro v. Alaire, 2 Cai. 320.
14 Rose. N. P. 471; Morse on Arb. 285. Contra, Id. 290.
17 Morse on Arb. 580.
18 Morewood v. Jewett, 2 Robt. 496; Morse on Arb. 179.
19 Lowenstein v. Mackintosh, 37 Barb. 251 ; Morse on Arb. 446, and cases cited.
468 ACTIONS ON AWARDS.
formed all their duties. 1 They are presumed to have considered
every subject brought before them within the submission, 2 and
nothing more, 8 unless the terms of the award affirmatively show
that they did not. 4 The award, although appearing less extensive
in its terms than the submission, is presumed to embrace every
question before the arbitrators. 5 If the submission expressly or
by just implication makes it a condition that all matters sub-
mitted be determined, the same presumption applies, if there are
Ssneral words in the award which can give any support to it.
ut this presumption is not conclusive. 6
9. Extrinsic evidence to vary] An award apparently uncer-
tain, may, like a deed, be aided by extrinsic evidence of undis-
puted facts, or documents referred to in it, for the purpose of
showing what it is that was referred to ; 7 but the terms of a writ-
ten award cannot be varied by parol, 8 nor uncertainty in it aided
by testimony of the arbitrator, or evidence of his declarations, as
to what was intended ; 9 but oral evidence of an award is not nec-
essarily excluded by the fact that the arbitrator delivered a mem-
orandum on its face incomplete. 10
10. Effect of award.] The award unimpeached is conclusive
as a judgment. 11
11. Competency of Arbitrator as Witness.] An arbitrator
may be required to testify to facts upon which his legal power
depended : but not to the propriety or impropriety of his exer-
cise of it. To illustrate this distinction : he is a competent wit-
ness in a legal proceeding in which it is sought to enforce his
award ; n and like any other witness, may testify to the extent of
an oral submission, 13 or to what passed before him at a hearing of
the parties, 14 what matters were presented for consideration, 15 and
what were or were not considered, 16 and what was openly decided
! Owen v. Boerum, 23 Barb. 187 ; and see Butler v. Mayor, <fec. of N". Y. 1 Hill,
489, rev'd in 7 Id. 329 ; see also 1 Barb. 325.
* Morewood v. Jewett, 2 Robt. 496.
3 Solomons v. McKinstry, 13 Johns. 27, affi'g 2 Id. 67; Pierce v. Morrison, 6
Hun, 236.
4 Wright v. "Wright, 5 Cow. 197 ; Backus v. "Fobes, 20 N. Y. 204.
8 Ott v. Schroeppel, 6 N. Y. 482, rev'g 7 Barb. 431.
Morse on Arb. 342-350, 363.
7 Jackson v. Ambler, 14 Johns. 96 ; Morse on Arb. 411-413, 445.
8 Cobb v. Dostch, 62 Geo. 548.
9 Morse on Arb. 435, 563.
10 See Becker v. Boon, 61 N. Y. 324.
11 Brazell v. Isham, 12 N. Y. 9 ; Lowenstein v. Mclntosh, 37 Barb. 25] ; and see
Coleman v. Wade, 6 N. Y. 44. But not more so. Morse v. Osborn, 64 Barb. 546.
]i Duke of Buccleuch v. Metropolitan Board of Works, L. H. 5 Ho. of L. 418, s. c.
2 Moak's Eng. 448 ; Mayor, <fec. of N. Y. v. Butler, 1 Barb. 326.
ls Birbeck v. Burrows, 2 Hall, 61.
14 Duke of Buccleuch v. Metropolitan Board of Works (above) ; Cole v. Blunt,
2Bosw. 116.
15 Id. Id.
16 Butler v. Mayor, Ac. of N. Y. (above).
ACTIONS ON AWARDS. 469
in the presence of the parties j 1 as well as other incidents of the
proceedings ; such, for instance, as delivery of the award. He is
thus competent, even when the object of the testimony is to
avoid the award in which he joined,^ unless by showing mistake,
bad faith, misconduct or other irregularity, in making it, 8 for
which purpose he is not competent, unless he declared his dissent
at the time of the irregularity. 4 Nor can he be asked any ques-
tions as to what passed in his own mind when exercising his dis-
cretionary or judicial power on the matters submitted to him. 5
One who signed canrfot testify that in fact he did not concur; 6
nor is it relevant to prove that one who signed afterwards dis-
sented ; 7 unless there be evidence of fraud or misconduct, or mis-
representation practiced upon him and inducing signature. 8
12. Defenses; Pleading^ A denial that an award was made
of and concerning the premises, &c., does not put in issue the
making, but only the fitness of the award to the submission. 9 A
denial of award admits evidence that there was none in fact ; but
if there was one in fact, there should be an allegation of the ir-
regularity, 10 departure from submission, 11 subsequent vacatur, or
other ground of invalidity relied on, 13 to admit evidence of the
objection. Under the new procedure proper allegations may
admit as a defense whatever is a ground for application to the
equitable power of the court to vacate the award. 1 *
13. Omissions; Excess of authority.} If defendant relies on
the objection that the arbitrators omitted to pass upon a matter
within the submission and brought before them by the parties, or
that they considered a matter not submitted, the burden is on
him to show the fact. It may be shown by parol unless it con-
tradicts the terms of a written award, or unless the omission was
caused by defendant himself. 15 The fact that matters not con-
sidered were brought before the arbitrator, may be shown by
parol, or by recitals in the award. 16 The fact that they were not
I Cole v. Blnnt (above), and Boughton v. Seamana, 9 Hun, 392, 394, where the
arbitrators testified to their oral award.
s Briggs v. Smith, 20 Barb. 409.
* Newland v. Douglass, 2 Johns. 62.
4 Jackson v. Gager, 5 Cow. 883.
8 Duke of Buccleuch v. Metropolitan Board of "Works (above).
' Campbell v. Western, 3 Paige, 124.
' Winship v. Jewett, I Barb. Ch. 173.
8 Wellington v. Warren, 10 Mete. 431.
9 Id.
" Knowlton v. Mickles, 29 Barb. 465. Failure to deliver within the time limited
was not, at common law, available under a denial of award. Perkins v. Wing, 10
Johns. 143 ; Morse on Arb. 284. Contra, Dresser v. Stansfield, 14 Mees. t W. 822.
II Bean v. Farnnm, 6 Pick. 269. Contra, Rose. N. P. 473.
11 Rose. N. P. 472.
13 Morewood v. Jewett, 2 Robt. 496 ; Morse on Arb. 594.
14 Day v. Hammond, 57 N. Y. 484, 489.
u Morss v. Osborn, 64 Barb. 546.
" Morse on Arb. 359, 361.
470 ACTIONS ON AWARDS.
i
considered or determined cannot be shown by extrinsic evidence
if the award is in terms adequate to conclude the parties as a
judgment would. 1 Excess of authority must be clearly shown,
t is not enough that it may have occurred. 3
14:. Other objections.] An award may be proved void, with-
out showing corruption or bad faith, by evidence, under proper
allegation, that the arbitrator's oath, required by statute, was not
taken ; 8 that the arbitrators took evidence or heard argument at a
meeting of which defendant had no nptice ; 4 or made award be-
fore defendant had closed his proofs ; 5 that they resigned, even
by parol, before award, and their resignation was accepted ; 6 that
before award the submission was revoked by operation of law, or
by act of a party, notified to the other, in a form equally solemn
as the submission ; 7 that defendant being entitled to the award
on a day named, then demanded it and was refused ; 8 or that they
had made an award 9 previous to the award sued on.
If the submission, and the conformity of the award with it,
are not impeached, nothing extrinsic to the award can be proved
against it except corruption or misconduct in the arbitrators, 10 and
(under the new procedure) such mistake of fact, as, for instance,
a miscalculation of figures, or the like, as is a proper ground for
equitable relief. Mistake of law is available only when it appears
expressly or by inference, from the face of the award, 11 or in some
connected paper delivered with it. 12 An allegation of corruption
or partiality must be clearly made out ; 13 but evidence that the
award was grossly excessive will entitle the defendant to go to
the jury on the question. 14
1 Lowenstein v. Mackintosh, 37 Barb. 251.
2 Solomons v. McKinstry, 13 Johns, 27, affi'g 2 Id. 57 ; Bacon v. Wilber, 1 Cow.
117 ; Morse on Arb. 443, 445.
3 Day v. Hammond, 67 N. T. 483. Unless the oath was waived, Id,
4 Elmendorf v. Harris, 23 Wend. 628, rev'g 5 Id. 516 ; Knowlton v. Michles, 29
Barb. 465. Compare Mosely v. Simpson, L. R. 16 Eq. 226, 8. c. 6 Moak's Eng. 728;
Day v. Hammond, 57 N. Y. 487.
5 Garvey v. Carey, 4 Abb. Pr. N. S. 169. a c. 7 Robt. 286. But evidence that
there was a heated discussion between the arbitrators, ending in a refusal of the ma-
jority to discuss the question further, does not impeach the award. Roberta v. Old
Colony R. R. Co. 5 Reporter, 175.
6 Relyea v. Ramsay, 2 Wend. 602.
' Morse on Arb. 230-232.
8 Morse on Arb. 283.
9 Doke v. Jame.8, 4 N. Y. 568.
10 Herrick v. Blair, 1 Johns. Ch. 101, and cases cited. In the arbitrators person-
ally, as distinguished from injustice in their award. Perkins v. Giles, 50 N. Y. 228,
affi'g 53 Barb. 842.
" Bissell v. Morgan, 56 Barb. 369 ; Campbell v. Western, 3 Paige, 124; Fudickar
V. Guardian Mut. Ins. Co. 62 N. Y. 392, 401, affi'g 37 Super Ct. (J. A S.) 358.
14 Morris Run Coal Co. v. Salt Co. of Onondaga, 58 N. Y. 667.
13 Wood v. Auburn, <fec. R. R. Co. 8 N. Y. 168 ; Perkins v. Giles, 50 N. Y. 232.
14 Smith v. Cooley, 5 Daly, 401.
CHAPTER XXV.
ACTIONS ON GUARANTIES.
1. Oral contract. 7. Transactions under the guaranty.
2. Promise to answer for debt, <kc. of 8 Non-payment or non-performance.
another. 9. Admissions and declarations of the
8. Execution of the contracts. principal debtor.
4. Consideration. 10. Judgments.
6. Rules of interpretation. 11. Defenses.
6. Oral evidence to vary.
1. Oral contract.'] The fact that a promise was in form to
pay the debt, &c., of another, does not conclusively require evi-
dence such as satisfies the statute of frauds. 1 Evidence of the
surrounding circumstances is competent to enable the jury to
determine whether ambiguous words were a guaranty of payment
or performance by another, or were an' original undertaking. 2
For this purpose plaintiff's evidence must be clear and satisfac-
tory. 3
2. Promise to answer for debt, c&c., of another."] If the con-
tract is within the statute of frauds, 4 plaintiff should be prepared
with written evidence, if the making of the contract is in issue. 3
If the making is admitted, or if the terms only are in issue, the
statute of frauds is not available unless the want of a memoran-
dum is pleaded. 6 The necessary writing is admissible under a
general allegation of the promise, without mentioning a writing. 7
The form 01 the instrument is not material ; but if made out by
several papers, they must refer to each other in such a manner as
to show that they are parts of the same contract, requiring noth-
ing to be supplied for this purpose, by verbal evidence, except the
identity of the documents. 8 The statute precludes resort to oral
evidence to supply any substantial element lacking in the writing
and necessary to constitute a contract ; 9 except the consideration, 1 "
1 Emerson v. Slater, 22 How. U. S. 28.
* Brandt on Sureties <fe G. 82, 63, 64.
1 Haverley T. Mercur, 78 Penn. St. 257.
4 2 N. Y. R. S. 135, 2, sub 2.
6 Lewin v.. Stewart, 10 How Pr. 509.
Id.
7 Brandt on Snr, <fe G. 102, 77; De Colyar (by Morgan), 178,, 209.
8 Peirce v. Corf, L. R. 9 Q. B. 210 ; Broom's Phil, of L. 90.; p. 292 of this vol.
Compare Lee v. Dick, 10 Pet. 482.
9 Holmes v. Mitchell, 7 C. B. N. S. (Scott), 361 ; L. J. 28 C. P. 301 ; Williams v.
Lake, 2 El. <fe El. 849 ; L. J. 29 Q. B. 1.
10 2 N. Y. R. S. 135, 2, as am'd by L. 1863, p. 802, c. 464, dispensing with expres-
sion of consideration. Speyer v. Lambert, 1 Sweeny, 335,. s. c. 6 Abb. Pr. N. S. 809,
87 How. Pr. 315. (Contra, Castle v. Beardsley, 10 Hun, 343.) So at common law,
and under some earlier statutes, Leonard v. Vredenburgh, 8 Johns. 29 ; Packard v.
[471]
472 ACTIONS ON GUARANTIES.
the delivery and acceptance, and such matters as may be neces-
sary under any contract to show a quantum meruit arising upon
facts specified in the writing : these may be shown by parol. An
instrument inadequate under the statute cannot be helped by
parol evidence of mistake on the part of the writer only. 1
3. Execution of the contracts.} Production and proof of exe-
cution of the guaranty indorsed on 8 or correctly describing 8 the
evidence of debt guaranteed, with production of the latter, is suf-
ficient without other proof of execution of the latter. The au-
thority of an agent, subscribing, need not be in writing ; 4 and
slight evidence is prima facie sufficient. 5 A guaranty written
over an indorsement of a bill or note is presumed to nave been
written at the time of making the indorsement, 6 even though in
a different hand. 7 A guaranty is conclusive against the guaran-
tors as to the power of the principal debtors to make their con-
tract, 8 and as to its validity in respect to formalities required by
foreign law. 9
Production of an instrument transferable by delivery, with
the guaranty indorsed or annexed, is prima facie, 10 but not con-
clusive, 11 evidence of plaintiff's title to both contracts. A parol
assignment of guaranty may be proved. 12
4. Consideration.'] If it appear that the guaranty was exe-
cuted at or before delivery of the principal contract, the consid-
eration of the latter is enough. 13 If execution of the guaranty
after delivery is shown, the burden is on plaintiff to show a new
consideration. 14 The date is not conclusive. 15 .
A seal, 16 or words in the guaranty importing a consideration,
such as " value received," n are sufficient prima facie evidence of
Richardson, 17 Mass. 122, 144 ; Reed v. Evans. 17 Ohio, 128, 133. Contra, Deutsch
v. Bond, 46 Md. ] 64 ; Palmor v. Haggard, 78 111. 607. Under statutes requiring the
consideration to be stated, the words " for value received," are sufficient. Mosher v.
Hotchkiss, 3 Abb. Ct. App. Dec. 326.
1 Grant v. Naylor, 4 Cranch, 224.
s Cooper v. Dedrick, 22 Barb. 516. '
8 Forman v. Stebbins, 4 Hill, 181.
* De Colyar (by Morgan), 189.
B Pow. Ev. 261 ; 2 GreenL Ev. 13 ed. 52 ; Watkins v. Vince, 2 Stark. 868.
6 Oilman v. Lewis, 15 Me. 452.
7 Small v. Sloan, 1 Bosw. 852.
8 Remscn v. Graves, 41 N. Y. 471.
9 Smeltzer v. White, 92 U. S. (2 Otto), 892 ; and it seems, also, of validity gener-
ally, unless positively illegal. Id.
10 Smith v. Schanck, 18 Barb. 344 ; Cooper v. Dedrick, 22 Id. 516.
11 Gallagher v. White, 31 Id. 92.
11 Gould v. Ellery, 39 Id, 163.
McClaughry,
14 Klein v. Currier, 14 111. 237.
" Draper v. Snow, 20 N. Y. 331, affi'g 6 Duer, 662.
18 2 N. Y. R. S. 406, 77.
J 7 Quimby v. Merrill, 47 Me. 470.
ACTIONS ON GUARANTIES. 473
consideration. If the statement of consideration is general, 1 nom-
inal, 8 or ambiguous, 8 or consideration is only presumed from a
seal, 4 the particular consideration may be shown by oral evidence
not contradictory of the writing. 5 Words in the past tense are
not conclusive evidence that the consideration was past. 6 If the
particular consideration is specified in a written guaranty, it can-
not be varied by parol, 7 but may b.e contradicted by defendant.
Inadequacy of consideration is irrelevant ; 8 and so is evidence that
even a nominal consideration remains unpaid. 9
5. Rules of 'interpretation.'] In order to apply the rule that
the words of a guaranty are to be construed as strongly against
the guarantor as the sense will admit, 10 it is proper to admit evi-
dence of surrounding circumstances at the time of the transac-
tion, to discover the subject-matter the parties had in view, and
thus ascertain the scope and object of the guaranty. 11
6. Oral evidence to vary.] A written guaranty, like any
other contract, excludes oral evidence of its terms," upon prin-
ciples already stated. 13 But extrinsic evidence of all the sur-
rounding circumstances, and the pre-existing relation between the
parties, is admissible to enable us to Bee what they mean by the
language used ; 14 to show, for instance, whether equivocal lan-
guage contemplated past or future transactions ; 15 and a limit of
amount, 16 or time, 17 or person ; 18 or a continuing guaranty. 19
1 Sterns v. Marks, 35 Barb. 565 ; Quimby v. Morrill, 47 Me. 470.
8 Redfield v. Haight, 27 Conn. 31, 40.
8 Goldshede v. Swan, 1 Exch. 154; Haigh v. Brooks, 10 Ad. & E. 309, 323, 334;
Walrath v. Thompson, 4 Hill, 200. Compare Parker v. Bradley, 2 Hill, 584.
4 Morgan v. Smith, 7 Hun, 244-
6 De Coly. (by Morgan), 177. Compare, for a freer rule, the chapters on actions
affecting REAL PROPERTY and CREDITORS ACTIONS.
6 For instances, see Agawam Bank v. Strever, 18 N. Y. 602; Williams v. Mar-
Bhall, 42 Barb. 524, and cases above cited. Contra, Parker v. Bradley, 2 Hill, 584.
' De Colyar (by Morgan), 179. Contra, Morgan v. Smith, 7 Hun, 244.
8 De Colyar (by Morgan), 34.
9 Childs v. Barnum, 11 Barb. 14, affi'g 1 Sandf. 58.
10 Drummond v. Prestman, 12 Wheat. 515; Wood v. Prestner, L. R. 2 Exch. 68.
11 sneffield v. Meadows, L. R. 4 C. P. 595 ; Smeltzer v. White, 92 U. S. (2 Otto),
892. As to the different rules of interpretation dependent on such evidence, com-
pare Russell v. Clark, 7 Cranch, 69 ; Ludlow v. Siniond, 2 Cai. Gas. 1 ; Gates v.
McKee, 18 N. Y. 232; Rochester City Bk. v. Elwood, 21 Id. 88; Benjamin v. Hil-
lard, 23 How. (U. S.) 149 ; Mauran v. Bullus, 16 Pet. 628 ; Belloni v. Freeborn, 63
N. Y. 888, and cases cited.
13 Laurie v. Scholfield, L. R. 4 C. P. 622 ; Ellmaker v. Franklin, 5 Barr, 183, 190.
18 Page 294 of this vol.
14 Spencer v. Babcock, 22 Barb. 326. The instrument may be reformed where it
\B the subject of fraud or mutual mistake. Prior v. Williams, 3 Abb. Ct. App. Dec.
624.
15 Bainbridge v. Wade. 16 Q. B. 89, 98, s. o. 20 L. J. N. S. 7 ; Broom v. Batchelor,
1 H. <fc N. 255 ; Hoad v. Grace, 7 Id. 494, s. c. L. J. 31 Exch. 98.
16 Laurie v. Scholfield (above).
"Id.
18 Lowry v. Adams, 22 Vt. 160; and see Drummond v. Prestman, 12 Wheat. 615;
Lcathy v. Speyer, L. R. 6 C. P. 695.
" Agawam Bank v. Strever, 18 N. Y. 502; Wood v. Priestner, 4 H. <fc C. 681;
474: ACTIONS ON GUARANTIES.
7. Transactions under the guaranty^ Evidence of usage
is not competent to being witnin the effect of the guaranty
a transaction not within its terms, 1 but a transaction within
its terms having been shown, evidence of usage is competent to
explain subsequent dealings with the debtor which might, unex-
plained, exonerate the defendant. 8 The original bill of sale given
by plaintiff on delivery of the goods, &c., is conclusive against
him as to whether the terms of credit conformed to the guaranty. 8
Otherwise of a bill subsequently delivered, which is a mere ad-
mission. 4
The fact that the plaintiff acted on the credit and faith of the
guaranty, may be proved by parol, 5 by his testimony of or that of
a witness cognizant of the fact. 6
8. Non-payment or non-performance.'] Plaintiff should usu-
ally be prepared with some evidence of a breach by the principal
debtor. 1 '
If request or other condition is expressed or fairly implied
in the contract of guaranty, it must be alleged and proved.* A
condition only in the contract of the principal debtor, does not
require proof against the guarantor unless it would as against
the former, 9 except where the fact is peculiarly in plaintiff's
knowledge. Under a guaranty of collection, the due exhaustion
of remedy by judgment and execution unsatisfied, fa priana facie
enough. 10 "Where absolute insolvency excuses, an adjudication in
bankruptcy is conclusive. 11
9. Admissions and declarations of principal debtor."] The
admissions and declarations of the principal debtor are competent
against the guarantor, when made* in the transaction of the busi-
ness for which the guarantor is bound, so as to be part of the res
Heffield v. Meadows, L. R. 4 C. P. 595. A guaranty is presumed to be not a con-
tinuing guaranty, in the absence of anything in it or in extrinsic evidence to indicate
that it was such. Fellows v. Prentiss, 3 Den. 512; Whitney v. Groot, 24 Wend. 82.
Contra, Rose. N. P. 457.
1 See Carkin v. Sarony, 14 Gray, 528. /
8 See Fox v. Parker, 44 Barb. 541.
3 Per Lord ELLENBOROUGH, Bacon v. Chesney, 1 Stark. 192; and see Leeda v.
Dunn, 10 N. Y. 469.
4 Bacon v. Chesney (above).
6 Douglas v. Reynolds, 1 Pet. 113, 118.
6 Pages 240, 265, of this vol.
7 See Schlesinger v. Hexter, 34 Super. Ct. (J. & S.) 499.
8 Nelson v. Bostwick, 5 Hill, 37, and cases cited ; Douglass v. Rathbone, Id. 143.
For conflicting opinions on the necessity of demand, notice, Ac., see Central Savings
Bank v. Shine, 48 Mo. *56, s. o. 8 Am. R. 112 ; Safford v. Stevens, 2 Wend. 158, 164 ;
McMillan v. Bull's Head Bank, 32 Ind. 11, s. c. 1 Am. R. 323 ; Clay v. Edgerton, 19
Ohio St. 549.
8 Douglass v. Howland, 24 Wend. 35, citing conflicting cases.
10 Backus v. Shepherd, 11 Wend. 629. Aa to what are such guaranties, see Alb.
L. J. 1878, p. 360, and cases cited.
11 First Nat. Bank of Charlotte v. Nat. Exchange Bank of Baltimore, 92 U. S. (2
Otto), 122.
ACTIONS ON GUARANTIES. 475
gestce, or when made in a transaction subsequent to the guaranty,
and which the guaranty contemplated and authorized ; * out other
admissions and declarations, such as subsequent acknowledgment
of having had goods or the like, are not competent 2 unless
brought home to the guarantor. 8
10. Judgments.] A judgment against the principal debtor is
in all cases evidence against the guarantor, of the fact of its re-
covery, 4 but not of the indebtedness, &c., unless recovered on
notice to him, 8 or unless his guaranty binds him by the result of
the proceeding. 6
11. Defenses] The fact that there was no writing is avail-
able under the general issue. 7 The fact that his principal was
indebted to the guarantor, or forbade him to fulfill nis guaranty,
is no defense. 8 Fraud of the principal is not available against a
creditor who innocently parted with value on the faith of the
guaranty. 9 Evidence that the principal delivered money or prop-
erty to plaintiff is not sufficient to prove payment, without evi-
dence which may sustain an inference that it was applied to the
debt. 10
1 Hatch v. Elkens. 65 N. Y. 489 ; and see Brandt on Sur. & G. 656, <fcc.
8 Evans v. Beattie, 5 Esp. 26.
Griffith v. Turner, 4 Gill (Md.) 111.
4 Clark v. Carrington, 7 Cranch, 308.
6 Compare Drummond v. Prestman, 12 "Wheat. 615.
6 Douglass v. Howland, 24 Wend. 35, 54, <fcc. ; Rapelye v. Prince, 4 Hill, 119.
7 Brandt on Sur. fe G. 103, 77; Rose. N. P. 459.
8 East River Bank v. Rogers, 7 Bosw. 498.
9 McWilliams v. Mason, 31 N. Y. 294.
10 Tyler v. Stevens, 11 Barb. 465.
CHAPTER XXVI.
ACTIONS ON CONTRACTS OF INSURANCE.
I. GENERAL RULES. I. GENERAL RULES continued.
1. Action on preliminary agreement. 25. Defenses.
2. Execution of policy. 26. False representations.
8. Delivery. 27. False warranty.
4. The application. 28. Concealment.
6. Authority and scope of agency. 29. Materiality to the risk.
6. Payment of premium. 80. Over-valuation.
7. Waiver of non-payment ; excuse 81. Charge of crime.
for failure.
8. Renewal. II. RULES PECULIARLY APPLICABLE TO MA-
9. Ordinary course of proof. Prima RINE INSURANCE.
facie case. 82. Interest.
10. Warranties. 33. Warranties.
11. General rule as to oral evidence. 34. Seaworthiness.
12. Circular or prospectus. 85. Rating.
13. Mistake. 36. Shipment.
14. Usage. 87. The voyage.
15. Ownership or insurable interest. 88. Weather.
16. Mode of proving ownership. 89. Loss.
17. The peril. 40. Barratry.
18. Loss.
19. Value; damage. HI. RULES PECULIARLY APPLICABLE TO LIFE
20. Preliminary proofs. AND ACCIDENT INSURANCE.
21. Not ice to company. 41. Disease; death.
22. Waiver of conditions, or forfeit- 42. Suicide and insanity.
ure. 43. Declarations and admissions of
23. Adjustment. the subject.
24. Declarations and admissions of 44. Accident insurance,
officers and agents.
I. GENERAL RULES.
1. Action on preliminary agreement.'] An oral contract of
insurance is valid,* unless the charter forbids ; but it must not be
indefinite as to time, and rate of premium, &c. 2 The evidence
must justify the inference of a completed contract; and, if the
language contemplated a policy, that none was made. 8 A general
agent has implied authority to make a preliminary agreement, 4
and his usual course of business to make such contracts for de-
fendants is evidence of his authority. 5
1 Relief Fire Insurance Co. v. Shaw, 94 U. S. (4 Otto), 574 ; First Baptist Ch. v.
Brooklyn Fire Ins. Co. 19 N. Y. 305. For the English usage compare Fisher v.
Liverpool Marine Ins. Co. L. R. 8 Q. B. 328, 8. o. 7 Moak's Eng. 82, affi'd in L. R. 9
Q. B. 418, s. c. 9 Moak's Eng. 352.
As to mode of proving terms of agreement, see Fabri v. Phoenix Ins. Co. 55 N. Y.
129. Mode of proof of contract by correspondence, see p. 289 of this vol. and
May on Ins. 45.
* Strohn v. Hartford Fire Ins. Co. 87 Wis. 625, s. c. 19 Am. R. 777 ; s. P. 28 N.Y. 163.
3 Insurance Co. v. Lyman, 15 Wall. 664. And see Audubon v. Excelsior Ins.
Co. 27 N. Y. 216.
* Ellis v. Albany City Fire Ins. Co. 50 N. Y. 402 ; Angell v. Hartford Fire Ins,
Co. 59 Id. 171.
6 Putnam v. Home Ins. Co. 123 Mass. '824.
[476]
ACTIONS ON CONTRACTS OF INSURANCE. 477
A witness cannot be asked whether the facts stated were in his
opinion a completed contract. 1 To allow him to explain ordinary
terms used in the negotiation, it should appear that they are
terms of art, or employed in the particular business, and that the
witness has qualifications for interpreting not equally possessed
by the judge and jurv. 2
Where the preliminary agreement rests in writing, as, for in-
stance, a written, application, a note for premium and a receipt
therefor, parol evidence is not admissible to show that it was to
take effect contrary to the terms so expressed. 3 In an action on
an agreement to issue a policy in a form used by a specified com-
pany, a blank form of that company is admissible. 4 The amount
agreed to be insured may be recovered. 5
2. Execution of policy.] The policy, unless admitted, 8 should
be produced or accounted for, and the signatures (including
countersigning) proved. 7 Physical delivery is prima facie
evidence of a binding contract. 8 Where the facts connected
with the delivery of the policy show that the insured was called
on to manifest by some act that he accepted the policy, it is not
binding without proof of some such act; 9 mere silence will
not alone suffice, but it will in connection with evidence that he
was in substance told he would be considered as accepting unless
he refused. 10 Payment, with delivery, is nerely conclusive evi-
dence of consummation of the contract. Payment, without
delivery, is ambiguous. If made at time of application it is
of little weight, except as throwing light on other acts. 11 Lack
of delivery is not conclusive. 12 Even the fact that there was
neither payment nor delivery is only prima facie, not conclusive,
evidence that there was no contract. 13 A policy, although ex-
pressed to be made in consideration of representations made in
the application, is competent without the application, if it does
not, in any other manner, refer to it, and is itself a complete con-
1 Lindauer v. Delaware Ins. Co. 13 Ark. 461, 470.
s Baptist Ch. v. Brooklyn Fire Ins. Co. 28 N. Y. 153, affi'g 23 How. Pr 448.
* Wiunesheik Ins. Co. v. Holzgrafe, 53 111. 516, s. c. 5 Am. R. 64. Compare Liv-
ingston v. Delatield, 1 Johns. 522.
4 Van Tuyl v. Westchester Fire Ins. Co. 55 N. Y. 657.
5 Angell v. Hartford Fire Ins. Co. 59 N. Y. 171.
6 Hunter v. Am. Pop. Life Ins. Co. 4 Hun, 794.
7 As to mode of proving handwriting, see chapter XXI. As to effect of charter
provisions on mode of executing, see 24 Ohio St. 345, s. c. 15 Am. R. 612 ; May on
Ins. 65.
8 Bliss on Life Ins. 253, 163 ; May on Ins. 58, 56.
9 Id. ; May on Ins. 56. Such, for instance, as payment of premium ; or, if this be
waived, some other affirmative act of acceptance. Bliss on Life Ins. 253, 163.
10 Id.
"Id.
12 Fried v. Royal Ins. Co. 60 N. Y. 243, affi'g 47 Barb. 127. Authentication as
" signed, sealed and delivered," without physical delivery, held conclusive evidence
of contract. Xenos v. Wickham, L. R. 2 H. L. 296.
11 May on Ins. 57, 56.
478 ACTIONS ON CONTRACTS OF INSURANCE.
tract. 1 The fact that there was no application, 2 or that it was not
signed, 8 does not affect the competency of the policy, though it
refer to an application.
If subscribed by agent, his handwriting and authority must
be proved. If the authority was in writing, it should generally
be produced ; but it may also be proved by showing that defend-
ants had recognized the act of the agent in this instance, or in
other similar instances in which he had subscribed policies for
them. 4
If defendants, having possession of the contract, refuse to
produce it on notice, parol evidence of its contents may be
given ; and all inferences arising from necessary ambiguities in the
secondary evidence may be taken most strongly against the com-
pany. 5
The usual blank form of the company is competent second-
ary evidence, in the absence of the actual policy. 6
3. Delivery. ~\ Possession by the plaintiff is prima facie, but
not conclusive, evidence of delivery. Delivery, in legal effect,
may be proved by any act manifesting the intent of the parties
that the instrument should have present vitality, although not
physically handed over. 7 Delivery is not proved by admissions
even of a general agent, made after loss. 8 The date in the policy
raises a legal though not conclusive presumption of the time of
the execution and delivery of the instrument. 9
4. The application.'] In an action on a policy, the slip, or ap-
plication for insurance, unless referred to in the policy, or
annexed, as a part of it, 10 is inadmissible to show the intention
of the parties ; n except on an application to reform the pol-
icy, 12 or on an issue of fraud or misrepresentation in obtaining
1 Edington V. Mut. Life Ins. Co. 67 N. Y. 185, rev'g 5 Hun, 1.
8 May on Ins. 174, 169.
3 Bohringer v. Empire Mut. Life Ins. Co. 2 Supm. Ct. (T. <fc C.) 610.
4 Rose. N. P. 403, s. P. Putnam v. Home Ins. Co. 123 Mass. 324. Thus, for in-
stance, where a witness stated that he was authorized by power of attorney, but
added that defendants had been iu the habit of paying losses upon policies which the
witness had subscribed in their name, the power need not be produced. Rose. N. P.
403.
8 Caken v. Continental Life Ins. Co. of N. Y. 69 N. Y. 300, 306, rev'g 41 Super. Ct.
(J. <fe S.) 296. The refusal to produce does not supply the place of secondary evidence
so as to raise a presumption that the fact is as alleged ; but it aids the secondary
evidence by a presumption in favor of the construction of it most adverse to the party
refusing.
6 Van Tuyl v. Westchester Fire Ins. Co. 55 N. Y. 657.
7 May on Ins. 61, 60.
8 Contra, Insurance Co. v. Woodruff, 26 N. J. L. (2 Dutch.) 541 ; disapproved by
Redfield, in 1 Greenl. Ev. 135, n.
9 St. John v. Am. Mut. Life Ins. Co. 2 Duer, 419, s. c. less fully, 12 N. Y. Leg.
Obs. 265, affi'd 13 N. Y. 31.
- 10 Murdock v. Chenango Mut. Ins. Co. 2 N. Y. 210.
11 Ewer v. Washington Ins. Co. 16 Pick. 602; Dow v. Whetten, 8 Wend. 160;
Vandervoort v. Smith, 2 Cai. 155. Contra, lonides v. Pacific Ins. Co. L. R. 7 Q. B.
617 ; 6 Id. 674, s. c. 6 Am. L. Rev. 297.
18 Dow v. Whetten, 8 Wend. 160.
I
ACTIONS ON CONTRACTS OP INSURANCE. 479
it. 1 Terbal representations are equally incompetent. A written
application is presumed to contain the representations which
induced the contract, and renders evidence of prior or sub-
sequent oral representations incompetent, 2 in the absence of
fraud ; for their admission would vary the written contract by
parol ; and if they be relied on as showing fraud or a collateral
warranty, the fact must be specially pleaded as such in order to
be admissible. 8 If the policy refers to an application, it may be
identified by parol ; and the usual printed questions and written
answers made before an insurance is effected are presumed, until
the contrary is shown, to be those referred to. 4 The application
is admissible in evidence if pleaded ; 5 but its effect depends on
the privity of the parties with it, and the intent manifested by
its language arid that of the policy. The policy is admissible
without it unless it is in plaintiffs possession. 6
The law presumes that the applicant understood the applica-
tion signed by him, though drawn up by the insurer's agent. 7 Still,
where the alleged false warranty is an ambiguous answer, plaint-
iff may prove that before applying he stated the facts fully to the
agent, who advised him that his answer should be as made in the
application ; and that he believed the answer to be truthful, and
would not have signed the application but for such advice. 8 The
purpose of such evidence is not to vary or contradict the contract
of the parties, but to preclude the party who framed it from re-
lying upon incorrect recitals to defeat it, when he, himself, had
drafted those recitals, and was morally responsible for their truth-
fulness. 9 So parol evidence is admissible that sucli agent who
filled out the application was, at the time of application, answered
truly by the insured, but inserted the answer alleged to be false,
or omitted answers which should have been inserted, without the
knowledge of the latter, even though the answer written was
thereupon read to and signed by the latter. 10 Facts relied on as
establishing such fraud on the part of the agent must be clearly
and satisfactorily established. 11
1 Folsom v. Mercantile Ins. Co. 9 Blatchf. 201 ; Rawls v. Am. Mut. Life Ins. Co.
27 N. Y. 282, affi'g 36 Barb. 857. See also Valton v. National Loan Fund Ass. Co.
4 Abb. Ct. App. Dec., s. o. I Keyes, 21, rev'g 17 Abb. Pr. 268.
4 Jennings v. CUenango County Mut. Ins. Co. 2 Den. 75 ; Gates v. Madison
County Mutual Ins. Co. 5 N. Y. 469 ; May on Ins. 202, 192.
8 Mayor, dec. of N. Y. v. Brooklyn Fire Ins. Co. 3 Abb. Ct. App. Dec. 251.
4 Clark v. Manufacturers' Ins. Co. 2 Woodb. <fe M. 472.
5 Weed v. Schenectady Ins. Co. 7 Lans. 462.
Mut. Ben. Life Ins. Co. v. Robertson, 59 111. 123, s. c. 14 Am. R. 8.
7 Geib v. International Ins. Co. 1 Dill. C. Ct. 443 ; and in Mass. <fe R. I. May on
Ins. 148, 145.
8 JStua Live Stock, Fire & Tornado Ins. Co. v. Olmstead, 21 Mich. 246, s. c. 4
Am. R. 483.
9 North American Fire Ins. Co. v. Throop, 22 Mich. 146, e. c. 7 Am. R. 638.
10 Insur. Co. v. Mahonc-, 21 Wall. 155 ; Union Mut. Ins. Co. v. Wilkinson, 13 Id.
222. Contra, Ryan v. World Mut. Life Ins. Co. 41 Conn. 168, 8. c. 19 Ain. R. 490.
11 Geib v. International Ins. Co. 1 Dill. C. Ct 443.
480 ACTIONS ON CONTRACTS OF INSURANCE.
5. Authority and scope of agency. Neither the fact nor the
scope of agency can be proved by the agent's acts, representations,
declarations or admissions. The agency must first be established ;
and either a specific authority, or one of so general a nature as to
give him authority to do the act in question, or a subsequent rat-
ification with full knowledge, or a holding out to the world, must
be proved. 1 But the agent's course may be proved in con-
nection with evidence that the company tacitly assented to it, or
held the agent out to the world as such, 2 or repeatedly adopted,
with knowledge, similar acts of his in other dealings, either with
plaintiff or third persons. 8 The court may take judicial notice of
the way in which contracts for insurance are usually negotiated,
and that the application of the insured is usually drawn up by the
agent of the insurer. 4 In proof of general agency, the possession
of blank policies and renewal receipts is relevant. 5 Where the
act of a sub- agent is within the scope of the authority of the su-
perior agent, ratification by the principal is not necessary. 6
Restrictions of authority, though expressed in the policy, are
not conclusive ; but a waiver of them by parol may be shown,
and may be inferred from the company's course of dealing. 7 To
sustain an unratified act in excess of express authority, the evi-
dence must show, if not a succession of cases, at least several, in
which the agent had done acts similar to those for which author-
ity is claimed, and the subsequent acquiescence of the principal
therein, upon their coming to his knowledge. 8
The authority of a person to do acts within the ordinary duty
of a clerk, such as to receive payments and give receipts, and re-
spond to inquiries for information, may be inferred from evi-
dence that he was behind defendant's counter, and assumed to act
as clerk. 9
Notice to the agent is notice to the company, if given while
the agency exists, and referring to business then within the scope
of his authority, 10 or if he is one whose duty it is to communicate
such notice to the company. 11 If given before the agency or au-
thority, it must be shown to have been so near that he must be
1 Stringham v. St. Nicholas Ins. Co. 4 Abb. Ct. App. Dec. 315; Miller v. Phoenix
Ins. Co. 27 Iowa, 203, B. c. 1 Am. R. 262.
2 As, for instance, by circulars, even though at the time unknown to plaintiff.
Walsh v. .(Etna Life Ins. Co. 30 Iowa, 133, s. c. 6 Am. R. 664.
8 Bunten v. Orient Ins. Co. 4 Bosw. 254; 2 Greenl. Ev. 13 ed. 51. As to ratifica-
tion by apparent officer, see Buchanan v. Exchange Fire Ins. Co. 61 N. Y. 26.
4 N. A. Fire Ins. Co. v. Throop, 22 Mich. 146, P. c. 7 Am. R. 638.
6 Carroll v. Charter Oak Ins. Co. 40 Barb. 292 ; May on Ins. 126, 126.
6 Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 55 N. Y. 343.
' Insurance Co. v. Norton, 96 U. S. (6 Otto), 234.
8 Bunten v. Orient Mutual Ins. Co. 4 Bosw. 254, and see further decision in 8 Id.
448 ; 2 Greenl. Ev. 13 ed. 51.
9 Leslie v. Knickerbocker Life Ins. Co. 63 N. Y. 27, affi'g 2 Hun, 616, s. c. 5
Supra. Ct. (T. & C.) 193; and see Buchanan v. Exchange Fire Ins. Co. 61 N. Y. 26.
10 Hayward v. Nat. Ins. Co. 52 Mo. 181, s. c. 14 Am. R. 400.
11 May on Ins. 156.
ACTIONS ON CONTRACTS OF INSURANCE. 481
presumed to have recollected it. 1 The principal is not chargeable
with knowledge on part of the agent, as towards one acting in
collusion with the agent. 2
6. Payment of Premium^ A recital in the policy that the
premium has been paid is prima facie, but not conclusive 3 evi-
dence of payment.
If the agent giving receipt is interested in the insurance, a re-
ceipt given by hirn in his capacity of agent is not sufficient with-
out some additional evidence of payment. 4
7. Waiver of non-payment : Excuse for failure, .] "Waiver of
a condition in an insurance policy requiring payment to make the
policy valid, may be inferred from delivery without payment ; 5
and a general agent 6 has authority to waive pre-payment, what-
ever his secret instructions. 7 Evidence of a prior dealing by
plaintiff with the company for years, and that he was in the
habit of getting policies without paying for them at the time, is
competent, but not controlling evidence of the intention of the
agent to waive payment. 8 Ihe fact that on a single .occasion
credit was given for the premium, upon the present, 9 or even on a
prior policy, 10 is relevant on the question of waiver. Evidence of
a general usage of insurance companies to receive payment after
the day, is competent u in aid of other evidence of a waiver. 12
To prove excuse for non-payment, evidence of an oral agree-
ment prior to the policy, that the company should give the
plaintiff notice of the time when each payment should be due, and
that they failed to do so, which caused the default, is not compe-
tent. 13 JBut evidence of the course of dealing of the company af-
1 Hayward v. Nat. Ins. Co. (above).
2 Nat. Life Ins. Co. v. Minch, 53 N. Y. 144 ; rev'g 6 Lans. 100.
8 Baker v. Union Mut. Ins. Co. 43 N. Y. 283, rev'g 6 Robt. 393, s. c. 6 Abb. Pr.
N. S. 144 ; Sheldon v. Atlantic Fire & Marine Ins. Co. 26 N. Y. 460. Contra, Basch
v. Humboldt Mut. F. <fe M. Ins. Co. 6 Vroom, 429 ; Prov. Life Ins. Co. v. Fennell, 49
111. 180; Rose. N. P. 70.
4 Nuendorff v. World Mut. Life Ins. Co. 69 N. Y. 392. Compare Norton v. Phoenix
Life Ins. Co. 36 Conn. 303.
6 Boehen v. \Villiamsburgh Ins. Co. 35 N. Y. 181.
6 Otherwise of a local agent (see Bush v. Westchester Fire Ins. Co. 63 N. Y. 631,
rev'g 2 Supm. Ct. (T. & C.) 629), and of a clerk authorized to collect maturing pre-
miums only (Kolgers v. Guardian Life Ins. Co. 9 Abb. Pr. N. S. 91, s. c. 58 Barb.
185; 2 Lans. 480)
7 Sheldon v. Atlantic Fire & Marine Ins. Co. 26 N. Y. 460 ; Wood v. Poughkeep-
sie Mut. Ins. Co. 82 Id. 619; andseeBodine v. Exchange Fire Ins. Co. 51 N. Y. 117.
Proof that the agent was given credit for the payment of premium, and the company
demanded subsequent premiums without insisting on forfeiture, held not, as matter
of law, a payment. Wright v. Equitable Life Assur. Soc. 41 Super. Ct. (J. <fc S.) 1.
8 Church v. Lafayette Fire Ins. Co. 66 N. Y. 222.
Id.
10 Bowman v. Agricultural Ins. Co. 69 N. Y. 521, affi'g 2 Supm. Ct. (T. A C.) 261.
11 Helme v. Philadelphia Life Ins. Co. 61 Penn. St. 107 ; Pino v. Merchants' Mut
Ins. Co. 19 La. An. 214, 233.
11 It is not alone enough to vary the contract. Howell v. Knickerbocker Life Ins.
Co. 8 Robt. 232, p. c. 19 Abb. Pr. 217, and cases cited.
13 Insurance Co. v. Mowry, 96 U. S. (6 Otto), 644.
31
482 ACTIONS ON CONTRACTS OF INSURANCE.
ter the issue of the policy, revoking the authority of the agent
who first collected premiums, and notifying the insured from
time to time where and to whom to pay, will show that he was
entitled to rely on receiving such notice, and will estop them from
claiming a forfeiture in consequence of their omitting to give it. 1
So evidence that the insured, not having other means of Knowl-
edge, applied at the company's office for information as to time
of payment, and was torn by an apparent clerk behind their desk
that they would send notice, is sufficient to excuse delay in wait-
ing for notice. 2 Evidence that the general agent to whom pre-
miums had been paid, without objection from the company, re-
ceived a renewal premium on the day when due, is sufficient and
conclusive as against the company, unless previous to such pay-
ment the assured had notice that the agent's authority had been
revoked or qualified. 3 Evidence that the company refused to re-
ceive the premiums and repudiated the contract, wholly dispen-
ses with the necessity of proving the offer of subsequent pre-
miums. 4
8. Renewal.] A renewal may be proved by parol, unless
the charter forbids oral contract. 6 A witness may state generally
that there was or was not a renewal, 6 subject to cross-examina-
tion, but not whether specified facts amounted to a renewal. 7 A
request for renewal is evidence that the representations on which
the policy originally issued were adopted or assented to by the one
making the request. 8
9. Ordinary course of proof . Prima facie case. ~\ Tn ordi-
nary cases plaintiff makes out &prima facie case by proving the
policy, the renewal receipts, if any relied on, the loss, the giving
proof of loss as required by the policy, and, if on property not
valued, the value of the property destroyed. 9
10. Warranties.'] Even when warranties are proved or ad-
mitted, plaintiff is not bound to prove their truth, unless it is put
in issue. 10 In that case the burden of proof is on him to show
1 Insurance Co. v. Eggleston, 96 U. S. (6 Otto), 572.
s Leslie v. Knickerbocker Life Ins. Co. 63 N. Y. 27, affi'g 2 Hun, 616. e. c. 5 Supm.
Ct. 193.
3 Insurance Co. v. McCain, 96 U. S. (6 Otto), 84.
4 Shaw v. Republic Life Ins. Co. 69 N. Y. 286, affi'g, with modification, 67 Barb.
686.
5 First Baptist Church v. Brooklyn Fire Ins. Co. 19 N. Y. 305, 18 Barb. 69.
6 Baptist Church v. Brooklyn Fire Ins. Co. 23 How. Pr. 448, affi'd on the merits
.in 28 N. Y. 163.
' See Lindauer v. Delaware Ins. Co. 13 Ark. 461, 470.
8 Clark v. Manuf. ins. Co. 2 Woodb. <fe M. 472.
9 Geib v. International Ins. Co. 1 Dill. C. Ct. 443 ; Mut. Benefit Life Ins. Co. v.
Robertson, 69 111. 123, 8. c. 14 Am. R. 8. See New Eng. Fire, <tc. Ins. Co. v. Wet-
more, 32 III. 221.
10 Boos v. World Mut. Fire Ins. 6 Supm. Ct. (T. <fe C.) 364 ; Jones v. Brooklyn
Life Ins. Co. 61 N. Y. 79.
ACTIONS ON CONTRACTS OF INSURANCE. 483
performance of the warranty, 1 whether material or immaterial ; *
past or promissory ; 3 or acted on by the insurers or not ; 4 and even
though this reojiire plaintiff to prove a negative. 5
But plaintiff has not the burden of proving the truth of rep-
resentations as distinguished from warranties. Evidence that the
insurer's agent had notice that the fact was not according to the
condition is not alone competent. 6
A literal and strict compliance with an express warranty must
be proved ; it is not sufficient to show something tantamount to
a performance, unless it be a waiver or dispensation of perform-
ance ; 7 which must be pleaded as such, and not as a compliance. 8
But indirect evidence is competent from which to infer strict
performance. In proportion as the warranty is general or in the
nature of a legal conclusion, general evidence is sufficient until
some doubt is raised. 9 Evidence of usage, 10 or a prior oral agree-
ment, 11 is not competent to show that what is not strictly a com-
pliance was so regarded.
11. General rule as to oral evidence to vary policy.'] The
general principles 13 that words must have the sense in which the
parties understood them ; and, that to understand them as the par-
ties understood them, the nature of the contract, the objects to be
attained, and all the circumstances must be considered, are freely
applied to these contracts. 13 The intention is to be ascertained,
except in cases of latent ambiguity, by a development of the cir-
cumstances under which the instrument was made. Mere dec-
larations are not admissible for the purpose, but the state of the
party's knowledge of facts is competent. Thus, notice to the in-
I McLoon v. Commercial Mat. Ins. Co. 100 Mass. 472, s. o. 1 Am. R. 129; May
on Ins. 192, 183.
8 Id. 184; Ripley v. JStna Ins. Co. 30 N. Y. 136, 160, rev'g 29 Barb. 552;
Jeffries v. Econom. Life Ins. Co. 22 Wall. 47. Compare Mut. Life Ins. Co. v. Snyder,
4 Cent. L. J. 106.
3 Wilson v. Hampden Fire Ins.Co. 4 R. 1. 159, 172 ; Ripley v. ^Etna Ins. Co. (above).
4 Brennan v. Security Life Ins. Co. 4 Daly, 296.
6 McLoon v. Commercial Mut. Ins. Co. (above). Contra, Piedmont Life Ins. Co.
v. Ewinir, 92 IT. S. (2 Otto), 378.
4 Dewees v. Manhattan Ins. Co. 6 Vroom (N. J.), 366.
7 Nat. Life Ins. Co. v. Minch, 53 N. Y. 144, rev'g 6 Lans. 100.
8 Rose. N. P. 409.
Pacific Ins. Co. v. Catlett, 4 Wend. 75, affi'g 1 Id. 561 ; Rose. N. P. 410, 414.
10 Ripley v. ^Etna Ins. Co. (above). Compare Crocker v. People's, <fcc. Ins. Co. 8
Cusb. 79. As to limits of this principle, see pp. 296, 365, of this vol.
II Hovey v. American Mutual Ins. Co. 2 Duer, 554.
12 Discussed on p. 29 1 of this vol.
13 Reed v. Ins. Co. 95 U. S. (5 Otto), 31. Compare Van Schoick v. Niagara Fire Ina
Co. 68 N. Y. 434, 438, and cases cited; Insurance Co. v. Wright, 1 Wall. 456 (an
extreme case in excluding oral evidence); and Insurance Co. v. Wilkinson, 13 Wall.
222.
For the purpose of upholding a contract of insurance, its provisions will be con-
strued strictly against the underwriter (McMaster v. Ins. Co. of North America, 65
N. Y. 2-22, affi't,' 64 Barb. 536; compare Rann v. Home Ins. Co. 53 N. Y. 387), and
liberally in favor of the insured (Rolker v. Great Western Ins. Co. 4 Abb. Ct. App.
Dec. 76, rev'g 8 Bosw. 222; and see Reed v. Ins. Co. 95 U. S. (5 Otto), 23, 80).
484 ACTIONS ON CONTRACTS OF INSURANCE.
Burers that a change had been made in the use of the property, is
competent to explain the intention of an ambiguous policy in re-
spect to rates of hazard. Such evidence is to be received as will
place us, as nearly as may be, in the position of the author of the
instrument, and enable Us to consider the facts surrounding him,
with his knowledge or ignorance, and his belief as to the facts. 1
Ambiguity may arise either from inconsistent provisions or
from equivocal terms ; and an equivocal term exists alike when
a word has, in ordinary use, two or more meanings or appli-
cations, or when it may have been used technically in a sense
different from its ordinary meaning or application. Extrinsic evi-
dence is competent to show the existence of the technical meaning
in a trade or business involved in the transaction, and thus, at once,
to manifest and to cure the ambiguity. 2 An ambiguity, whether
apparent in the ordinary meaning of the language, or introduced
by extrinsic evidence either of a technical use 01 language, or of
the existence of several objects corresponding to the designation,
may be explained by oral evidence identifying the thing referred
to. 8
But the rule that parol testimony may not be given to con-
tradict a written contract is .applied only in suits between the
parties or their privies. It does not apply to prevent a party
from proving the truth contrary to the instrument, in a conten-
tion with a stranger to it. 4
12. Circular or prospectus, ,] To render a circular or prospec-
tus issued by the company, competent against them as qualifying
the contract, it is not enough to show that it was publicly cir-
culated before the policy issued. 5 There should be evidence
tending to show that the insured or the plaintiff had knowledge
of the statement and acted on it. 6
1 Reynolds v. Commerce Fire Ins. Co. 47 N. Y. 597.
8 This is the sound general principle, though some cases ignore it: Bee, for in-
stance, Ins. Co. v. Wright, 1 Wall. 456.
8 For instance, to show what building was meant by the words, " known as D. A
Co.'s car factory" (Blake v. Ins. Co. 12 Gray, 265, 270); or by a statement that the
things insured were in plaintiff's "barn or barns" (Bowman v. Agricultural Ins. Co.,
59 .N. Y. 521, affi'g 2 Supm. Ct. [T. & C.] 261). But where the building is defined,
the fact that the insurer indorsed on the policy a simple consent that a communica-
tion opened into an adjoining building, should not prejudice the insurance, does not
let in parol evidence to show that the parties intended thereby to extend the insur-
ance over such building. Liddle v. Market F. Ins. Co. 4 Bosw. 179, affi'd in 29 N.Y. 184.
So, again, under a policy on timber in a specified building, parol evidence is not
admissible to show intent to include such timber piled in the adjoining yard (North
American Fire Ins. Co. v. Throop, 22 Mich. 146, s. c. 7 Am. R. 633), for here is no
ambiguity ; but under a policy on a stock of " ship-timber in a ship-yard," bounded
by streets, <fec., evidence of usage of language is competent to show that " ship-yard,"
as used by the parties, means the yard, as in fact used, thus embracing timber on the
sidewalks (Webb v. National Fire Ins. Co. 2 Sandf. 497).
So if there are two buildings, each nearly but neither precisely answering the
designation, j>arol evidence to identify the intent of the parties is admissible. Burr
T. Broadway Ins. Co. 16 N. Y. 267.
McMaster v. Ins. Co. of North America, 55 N. Y. 222, affi'g 64 Barb. 536.
6 Rose. N. P. 436.
6 Whether this is enough is disputed. Steel v. St. Louis Life Ins. Co. 5 Cent
ACTIONS ON CONTRACTS OF INSURANCE. 485
13. Mistake.'} Under the new procedure, if the complaint
alleges facts constituting a mistake, though without the formal
allegation of mistake, and demands a reformation of the policy,
parol evidence is competent to show that both the insurer and
the insured meant to insure the thing lost, and meant to put into
the policy no expression as to its character or situation different
from the facts, but, by misconception as to language, they used
terms expressing that which they did not, and failing to express
that which they did intend. 1 Under allegations permitting him
to prove mistake, plaintiff may show that he was thrown off his
guard and dissuaded from a correction of the language of the
policy by the acts or declarations of the agent of the insurer. 2
14. Usage.'] Ambiguous words in a policy may be construed
by extrinsic evidence of accompanying circumstances and the
usages of the business in which the property insured was em-
ployed ; 3 but evidence of usage is not competent to vary or con-
tradict what is expressed, nor even what is necessarily implied, 4
in unambiguous language. Yet it is competent, to show the course
of trade and business to which the parties refer ; and when that
is ascertained, the court must apply the language of the policy.
To justify departure from the ordinary meaning of its language,
a usage of language must be shown, from which the court may
see that the phraseology used had, in the intent of the parties
adopting it, a special or technical meaning. When this is shown,
the court still apply the language of the policy, but apply it as
thus understood/ When, however, the language, properly inter-
preted, calls for a certain thing, evidence of usage of trade to
suffer or be satisfied with something else, under that language, is
L. J. 153; Ruse v. Mut. Benefit Life Ins. Co. 23 N. Y. 518 ; 24 Id. 653 ; and see 1C
Alb. L. J. 175, and cases cited. According to settled general principles, it should
be enough, if subsequent to the policy, thus bringing the case within the rules as to
waiver and estoppel. See paragraph 22.
1 Maher v. Hibernia Ins. Co. 67 N. Y. 283, affi'g 6 Hun, 353.
s Id. As to ignorance of fine print clause, see Ervin v. N. Y. Central Ins. Co. 3
Supm. Ct. (T. fe C.) 213.
3 N. Y. Belting Co. v. "Washington Fire Ins. Co. 10 Bosw. 428, and cases citea.
4 Hearno v. Marine Ins. Co. 20 Wall. 488.
5 Thus, respecting the phrase " glassware in casks," usage of trade-language may
be proved to show that it means open casks (Bend v. Georgia Ins. Co. 1 N. Y. Leg.
Obs. 12; 1 Greenl. Ev. 13 ed. 844); "bundles of rods" may be shown to include, in
trade.usago, bar iron (Evans v. Commercial, <fec. Ins. Co. 6 R. I. 47, 63); "cargo" to
include live stock (Allegro's Admr. v. Mary^nd Ins. Co. 2 Gill <fe J. 13fi); " roots"
not t > include perishable roots such as sarsaparilla (Coit v. Com. Ins. Co. 7 Johns.
885); "skins" n> t to include furs (Astor v. Union Ins. Co. 7 Cow. 202); nnd that
in a policy upon goods out, and upon their proceeds home, "proceeds" includes the
same goods on the return voyage (Dow v. Whetten, 8 Wend. 160); and "brick
buildings" may be shown to include buildings, the partitions separating which were
of wood, filled in wish brick (Mead v. Northwestern Ins. Co. 7 N. Y. 530). But, on
the other hand, under a policy on tackle, apparel, " boats," <fcc., it ia not admissible
to show that boats slung outside the ship's quarter, aCre not deemed to be included
(Blackett v. Rojal Exch. Assurance Co. 2 Cr. & J. 244).
486 ACTIONS ON CONTRACTS OF INSURANCE.
not competent. 1 In no case is usage competent to vary the set-
tled rules of commercial law, s nor the meaning of words which
have received a settled judicial interpretation. 3 Where the law
is unsettled, the construction may be determined by the usage,
but not by the opinion of witnesses. 4
A general usage of trade may be judicially noticed. 5 Other
usages must be proved: and it is better to be prepared with
some evidence even of a general usage. 6 If the usage is that of
the trade of the insured, the insurers are presumed to nave known
it. 7 If it is that of insurers, knowledge of it must be brought
home to the insured. 8 Evidence of a known usage of trade is not
objectionable merely because it shows only a usage in the particu-
lar trade in question. 9 The local usage of the insurers only, which
does not prevail where the policy was executed, nor where the
insured resided, is not admissible, to countervail the local usage
of the place where the policy was made. 10 A general usage of
trade may be shown, although it is founded on the laws or
edicts of the government 01 the place. The usage may be
proved by parol, and its effects are the same, whether it originated
in an edict or in instructions given by a government to its offi-
cers. 11 Usage is to be proved, as a fact, by evidence of usage, not
by the opinion of the witness as to the enect or meaning of the
contract. 12 The witness must be conversant with the particular
business, whether that of insurance or of another trade, the
usage of which is sought to be proved as controlling. 13
15. Ownership or insurable interest.'] Interest need not be
proved, unless put in issue. 14 It cannot be proved by the policy
alone ; 1S but plaintiff cannot contradict the language of the
policy 16 or of his application, 17 by proving a different interest
from that stated.
1 Upon this distinction, nearly all the well-considered cases, however much apparent
conflict they involve, arrange themselves in harmony.
* Randall v. Smith, 63 Me. 105, s. c. 18 Am. R. 200, and cases cited. Contra,
Fulton Ins. Co. v. Milner, 23 Ala. 423, 427.
8 Bargett v. Orient Mut.ual Ins. Co. 3 Bosw. 385.
4 Winthrop v. Union Ins. Co. 2 Wash. C. Ct. 7.
6 Sleght v. Hartshorne, 2 Johns. 531.
6 See p. 297 of this vol.
7 Noble v. Kennoway, 2 Dougl. 613 ; see also 1 Abb. N. C. 470, note. Compare
Eipley v. -<Etna Ins. Co. 30 N. Y. 1 36.
8 Hill v. Hibernia Ins. Co. 10 Hun, 26.
9 Astor v. Union Ins. Co. 7 Cow. 202 ; Thompson v. Sloan, 23 "Wend. 70,
COWEN, J.
10 Child v. Sun Mutual Ins. Co. 3 Sandf. 26.
11 Livingston v. Maryland Ins. Co. 7 Cranch, 506, 539, 547.
12 Steinbach v. La Fayette Fire Ins. Co. 54 N. Y. 90; and see Steinbach Y Ins.
Co. 13 Wall. 183.
13 Evans v. Commercial, <fcc. Ins. Co. 6 R. I. 47, 53.
14 Rose. N. P. 404.
15 See Clendining v. Church, 3 Cai. 141 ; Rose. N. P. 404. Compare Huth v N. Y.
Mut. Ins. Co. 8 Bosw. 538.
16 Jennings v. Chenango Mut. Ins. Co. 2 Den. 72, 79.
17 Birmingham v. Empire Ins. Co. 42 Barb. 457.
ACTIONS ON CONTRACTS OF INSURANCE. 487
"Where it appears upon the face of the policy, by a fair inter-
pretation, that there was an intention to insure the owner or
owners, then extrinsic evidence may be given to show who such
owner is, and the nature and extent of the interest covered. 1 If
the name of the one for whose benefit the insurance is made does
not appear upon the face of the policy, or if the designation used
is applicable to several persons, or so imperfect that it cannot be
understood alone, extrinsic evidence may be resorted to, to ascer-
tain the meaning of the contract. 2 The rules allowing oral proof
to show the real party in interest 3 are now freely administered,
so far as explaining the instrument is concerned ; 4 but are sub-
ject to important qualification, resulting from the peculiar nature
of insurance, and the usual clauses as to ownership requiring that
the real interest must not be concealed. 5
Under a general averment of interest in the entire subject of
insurance, plaintiff may prove his particular interest. 6
The amount and absolute or contingent character of the in-
terest of the insured, or the validity of his title, are not material,
except on the question of fraud or of wager policy, or amount of
loss/
16. Mode of proving ownership.'} Evidence of possession
and acts of ownership is prima facie evidence of title. 8
Property in a ship may be proved by parpl evidence of the
possession, unless disproved by the production of the written
documents of the ship under the register acts. 9 Property in
goods may be shown by evidence that plaintiff bought and paid for
them ; 10 or by producing a bill of lading, stating the property to
belong to plaintiff, 11 or directing delivery to him, 12 the captain
1 Mead v. Mercantile Mut. Ins. Co. 67 Barb. 519; Catlett v. Pacific Ins. Co. 1 Wend
661 ; Foster v. United States Ins. Co. 11 Pick. 85 ; Bidwell v. Northwestern Ins. Co.
24 N. Y. 302.
5 Clinton v. Hope Ins. Co. 45 N. Y. 454, affi'g 51 Barb. 647 ; Turner v. Burrows,
8 Wend. 144, affi'g 5 Id. 541 ; explained by Burrows v. Turner, 24 Wend. 276.
3 Page 298 of this vol.
4 Pitney v. Glenn's Falls Ins. Co. 65 N. Y. 6.
5 See, for instance, Solms v. Rutger's Fire Ins. Co. 4 Abb. Ct. App. Dec. 279.
8 Murray v. Columbian, Ins. Co. 11 Johns. 302.
I See May on Ins. 82, 83 ; 105, 109.
8 Thomas v. Foyle, 6 Esp. 88 (of a ship); BAETOL, C. J., Franklin Fire Ins. Co. v.
Chicago Ice Co. 36 Md. 102, s. c. 11 Am. R. 469 (of a building) ; Rose. N. P. 405 (of
goods).
9 And such parol evidence of ownership, arising from possession at a particular
period, is not disproved by showing a prior register in the name of another and a
subsequent register to the same person. Robertson v. French, 4 East, 130, 136.
Compare Sharp v. United Ins. Co. 14 Johns. 201 ; Leonard v. Huntington, 15 Id.
298.
10 Sturm v. Atlantic Mutual Ins. Co. 38 Supr. Ct. (6 J. <fe S.) 281. Compare Frank-
lin Fire Ins. Co. v. Vaughan, 92 U. S. (2 Otto), 516. Where, to prove property in a
cargo by purchase beyond seas, the plaintiff produced a bill of parcels of one G., at
Petersburg, with his receipt to it, and proved his hand, LKE, C. J., admitted it as evi-
dence against the insurers. Russel v. Boheme, 2 Str. 1127; Rose. N. P. 405.
II Maryland In*. Co. v. Ruden, 6 Cranch, 338.
15 Rose. N. P. 405.
488 ACTIONS ON CONTRACTS OF INSURANCE.
proving that he received the goods under it. 1 And where the
goods are made deliverable to the consignor, the bill indorsed by
him, either specially or in blank, is evidence of interest in the in-
dorsee or holder ; 2 but such evidence is prima facie only, and
not conclusive. 8 The word "consigned" implies agency, not
ownership in the consignees. 4 In marine insurance, a common
mode of proof is to call the captain or master, who will prove
that he was appointed and employed by the parties in whom the
interest is averred ; and though it should appear, on cross-exam-
ination, that the plaintiff claims under a bill of sale, it is not, on
that account, necessary for him to produce the bill or the ship's
register, unless such further evidence should be rendered neces-
sary in support of the prima facie proof of ownership, in conse-
quence of proof to the contrary. 5 Where interest is in one who
was never in possession, it may be proved by showing the owner-
ship of the persons under whom he claims, and the derivative
title from them, such as a bill of sale. 6
The mere fact that a third person was in possession does not
render his declarations that he was owner admissible against
plaintiff. 7
17. The peril.'] Insurers are presumed to be acquainted with
the customs of the place where they transact their business, as
well as with the usages of the trade to which their contract re-
lates ; 8 but not necessarily with all the intelligence contained in
the papers taken at their office ; although the general presumption
is, that the agents of a marine office will examine with some care
those items of marine intelligence which are expressly designed
speedily to diffuse information upon a subject so immediately in-
teresting to them, especially in relation to vessels belonging to
their own port. 9 To aid in the construction of the policy, it is
competent to show that the defendants had insured the property
for several years, and knew the uses to which it was applied, and
generally the nature and extent of the risk ; 10 but such evidence
cannot vary explicit language in the policy. 11
18. Loss^\ The burden of proving a loss from a cause, and
to an amount for which the insurers are liable, is upon the in-
I M' Andrew v. Bell, 1 Esp. 373.
8 Lickbarrow v. Mason, 2 T. R. 71.
3 Rose. N. P. 405 ; Maryland Ins. Co. v. Ruden, 6 Cranch, 338 ; Blagg v. Phoenix
Ins. Co. 3 Wash. C. Ct. 6.
4 Rolker v. Great Western Ins. Co. 4 Abb. Ct. App. Dec. 76.
5 Rose. N. P. 405, citing Robertson v. French, 4 East, 136.
6 Rose. N. P. 405.
' Eureka Ins. Co. v. Robinson, 56 Penn. St. 256, 266.
8 Hartshorne v. Union Mut. Ins. Co. 36 N. Y. 172, affi'g 5 Bosw. 538 ; paragraph
14, above.
9 Green v. Merchants' Ins. Co. 10 Pick. 406.
10 Mayor, <fec. of N. Y. v. Exchange Fire Ins. Co. 3 Abb. Ct. App. Dec. 261, affi'g
9 Bosw. 424, and 9 Abb. Pr. 243, note.
II Pindar Y. Resolute Fire Ins. Co. 47 N. Y. 1 14 ; but compare 36 N. Y. 648.
ACTIONS ON CONTRACTS OF INSURANCE. 489
sured. 1 The preliminary proofs, being ex parte, are not compe-
tent on this question, 2 unless connected with an admission on the
part of the insurers. 8 The opinion of a witness to the effect that
a loss has occurred of a nature and extent entitling the plaintiff
to recover, is not competent ; 4 but to explain obscure causes of
injury, evidence of similar injuries to other property similarly
situated may be relevant. 5
19. Value Damage.'] In addition to general rules as to prov-
ing value and damage, elsewhere stated, it should be observed
that the invoice, or bill of parcels showing the cost, are compe-
tent prima facie evidence of value ; 6 and its correspondence with
the books of the party producing it need not be shown. 7 Price
or value of similar property is not competent without evidence of
identity in quality or value. 8
The valuation in a valued marine policy is conclusive 9 on the
insurers, if there was a total loss, and no fraud, imposition, 10 or ac-
cidental overrating. 11 Hence plaintiff need not prove value. 13 Oh
a partial loss, or on an open policy, he must. 18 A provisional
valuation in a preliminary agreement is not conclusive. 14
20. Preliminary proofs."] If preliminary proofs of loss are
required by the contract, plaintiff must prove substantial and
timely compliance, 15 or waiver by the insurers. Statements or acts
by the insurers, justly leading the insured to rest on his proofs as
a compliance with the condition, or even silence when they are
delivered, coupled with plain assertion of a distinct objection, or
a mere general denial of liability, are evidence of waiver of other
objections which might have been remedied. Where the pre-
1 Cory v. Boylston Fire & Marine Ins. Co. 107 Mass. 140, s. c. 9 Am. R. 14, and
cases cited. And see Ogden v. N. Y. Mutual IDS. Co, 4 Bosw. 447 ; 35 N. Y. 418.
What is necessary to prove a total loss of machinery and other cargo, see Ins. Co. v.
Fogarty, 19 Wall. 640, and cases cited.
* Citizens' Fire Ins. Security <fc Loan Co. v. Doll, 35 Md. 89, s. c. 6 Am. R. 360 ;
Yonkers <fe N. Y. Fire Ins. Co. v. Hoffman Fire Ins. Co. 6 Robt. 316.
8 Insurance Co. v. Newton, 22 Wall. 82.
4 Rider v. Ocean Ins. Co. 20 Pick. 259, 262.
B Bradford v. Boylston Fire & Marine Ins. Co. 11 Pick. 162.
8 Graham v. Pennsylvania Ins. Co. 2 Wash. C. Ct. 113. Contra, De Groot v.
Fulton Fire Ins. Co. 4 Robt. G04 ; Wolf v. Nat. Marine and Fire Ins. Co. 20 La. Ann.
683.
I Graham v. Penn. Ins. Co. (above). Compare Insurance Co. v. Weide, 9 Wall.
677.
8 De Groot v. Fulton Fire Ins. Co. 4 Robt. 504.
9 Marine Ins. Co. v. Hodgson, 6 Cranch. 206, 220.
10 Kane v. Commercial Ins. Co. 8 Johns. 229 ; Whitney v. American Ins. Co. 8
Cow. 210.
II Watson v. Ins. Co. of North America, 3 Wash. C. Ct. 1. If the valuation is by
weight, <fec., the standard of the place where the insurance was effected will be pre-
sumed intended. Gracie v. Bowne, 2 Cai. 30.
" Sturm v. Atlantic Mutual lus. Co. 38 Super. Ct. (6 J. <fc S.) 281, 303, affi'd 63 N.
Y. 77 ; Delano v. Am. Ins. Co. 42 Barb. 142.
13 Hose. N. P. 426.
14 Fnbbri v. Merchants' Mut. Ins. Co. 6 Lans. 446.
15 Blisa ou Life Ins. 435, g 257, <fcc. ; May on Ins. 664, 460, Ac.
490 ACTIONS ON CONTRACTS OF INSURANCE.
liminary proofs are in defendant's possession, and not produced
by them, evidence that they were made in presence of defend-
ant's agent, by filling a blank furnished by them, and were re-
ceived without objection, is enough to go to the jury, without
proof of contents. 1 Notice of loss is not equivalent to proof of
loss ; 8 and silence on its receipt is not a waiver. 3 Slight evidence
that the certifying magistrate was the nearest one is enough. 4
Evidence that the nearest magistrate, &c., on a proper application
by the insured, refused to give a certificate such as the policy stipu-
lated for, is not sufficient to dispense with the requirement, in the
absence of any evidence of interference or waiver by defendants. 6
The preliminary proofs, duly furnished, are admissible ; but
are not competent evidence in favor of plaintiff of the facts
therein stated. 6 They are competent evidence in favor of the in-
sured, and against plaintiff, as his admissions of the facts repre
sented therein. 7 They are not, however, conclusive ; 8 but they
are generally sufficient against the insured, unless it be shown
that the representations were made under a misapprehension of
the facts, or in ignorance of material information subsequently
had. 9 And even then the insured will not be allowed on the trial
to show that the facts were different from those stated, if the in-
surers have been prejudiced in their defense by relying on the
statements contained in the proofs. In these cases the question
is one of equitable estoppel. 1 " A statement which was not called
for by the contract may be corrected by evidence of mistake,
without giving notice to the insurers before the trial. 11
21. Notice to company.'] Duly mailing notice or proofs of
loss, is evidence for the jury, 12 but not conclusive evidence, 13 that
1 Life Insurance Co. v. Francisco, IT Wall. 672 ; Hincken v. Mut. Benefit Life
Ins. Co. BO N. Y. 657,affi'g 6 Lans. 21.
2 O'Reilly v. Guardian Mut. Life Ins. Co. 60 N. Y. 169.
3 Id.
4 May on Life Ins. 671, 466.
5 Johnson v. Phoenix Ins. Co. 112 Mass. 49. s. o. 17 Am, R. 65 ; Brown v. Mayor
of N. Y. 63 N. Y. 239.
8 New Ion v. Mut. Benefit Life Ins. Co. 2 Dill. 154; paragraph 18 (above);
Howard v. City Fire Ins. Co. 4 Den. 5o2. Contra, Jones v. Mechanics' Fire Ins. Co.
86 N. J. (7 Vroom), 29, s. c. 13 Am. R. 405.
7 But a separate narrative, such aa a newspaper slip, submitted with the proofs,
but not sworn to, nor necessary as a part of them, is not admissible in favor of the in-
surers. Clieff v. Mut. Ben. Ins. Co. 99 Mass. 317.
8 A statement in the proof of loss that the premises were vacant at the time of the
fire, is not conclusive to prevent the insured from proving the circumstances of va-
cancy, so as to show that it was not within the terms of the policy. Cummins v.
Agricultural Ins. Co. 67 N. Y. 260, rev'g 5 Hun, 554.
9 Insur. Co. v. Newton, 22 Wall. 32.
10 Campbell v. Charter Oak Ins. Co. 10 Allen, 213 ; Irving v. Excelsior Ins. Co. 1
Bosw. 507, as explained in 22 Wall. 86. Compare, however, McMaster v. Ins. Co. of
N. Am. 55 N. Y. 222, am'g 64 Barb. 536; Parmelee v. Hoffman Fire Ins. Co. 64 N.
Y. 193.
11 Connecticut Mut. Life Ins. Co. v. Schwenk, 94 U. S. (4 Otto), 593.
12 Killips v. Putnam Fire Ins. Co. 28 Wis. 472, s. o. 9 Am. R. 506.
13 Plath v. Minnesota Farmers' Mutual Firo Ins. Association, 23 Minn. 479, B. c,
23 Am. R. 697.
ACTIONS ON CONTRACTS OF INSURANCE. 491
the company received them in due course of mail. Evidence of
notice to one who was not the proper agent to receive it, may be
aided by evidence that the company acted on it, and will sustain
an inference of waiver. 1
22. Waiver of conditions or forfeiture. ~] Waiver of a condi-
tion prior to 2 or contemporaneous 3 with the execution of the
writing containing the condition cannot be proved by parol. A
waiver subsequent to the policy may be shown by parol, notwith-
standing the policy expressly requires a writing.* To prove a
waiver of a condition, the evidence must justify the inference of
an agreement founded on a valuable consideration ; or the act re-
lied on must be such as to estop the insurer from insisting on per-
formance of the contract or forfeiture of the condition. 5 If the
forfeiture was not absolute, but optional, there must be evidence
that the option was manifested. 6 Even after forfeiture, a waiver,
and the revival of the policy, may be shown by any act from
which the consent of the underwriters may be inferred. 7
A general agent has power to waive most forfeitures ; a local
agent or clerk has not. 8 The charter and by-laws are admissible
in evidence against the insured to show who are competent to
waive a forfeiture. 9 Where facts tending to show waiver are in
evidence, the question of waiver is a conclusion, and a witness
should not be allowed to express his opinion on it, or be asked
generally whether there was a waiver. 10
23. Adjustment.] An adjustment of loss, if made by the in-
surer, with knowledge of all the facts, is conclusive on him ; n
otherwise, if he show that it was made on the misrepresentation
(whether intentional or not) of the insured. 13 In a case of con-
1 Inland Ins. Co. v. Stauffer, 9 Cas?y, 397, 403 ; and see Kendall v. Holland Pur-
chase Ins. Co. 2 Supra. Ct. (T. & C.) 375. As to what amounts to notice to the com-
pany, see Thomas v. Builders' Mut. Fire Ins. Co. 20 Am. 11. 317, 322, note.
1 Hartford Fire Ins. Co. v. Davenport, Mich. 8. Ct. Oct. 1877, Cent. L. J.
8 Lamatt v. Hudson River Ins. Co. 17 N. Y. 199, note.
4 Carroll v. Charter Oak Ins. Co. Abb. Ct. App. Dec. 316, affi'g 40 Barb. 292 ; In-
surance Co. v. Norton, 96 U. S. (6 Otto), 234; and see Bodine v. Exchange Fire [ns.
Co. 61 N. Y. 117. For conflicting cases on waiver of clauses as to consent to other
insurance, see Gilbert v. Phoenix Ins. Co. 36 B irb. 372 ; Couch v. City Fire Ins. Co.
of Hartford, 38 Conn. 181, 8. c. 9 Am. R. 375; Goodall v. New Eng. Mut. Fire Ins.
Co. 5 Foster (N. H.), 169, 189; Barrett v. Union Mut. Fire Ins. Co. 7 Gush. 175, 180;
Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; 1 Greenl. Ev. 13 ed. 826,
281; Thomas v. Builders' Mutual Fire Ins. Co. 119 Mass. 121, s c. 20 Am. R. 317;
Lindley v. Union Farmers' Mutual Fire Ins. Co. 65 Me. 368, s. o. 20 Am. R. 701.
6 Ripley v. yEtna Ins. Co. 30 N. Y. 136, rev'g 29 Barb. 552; Leslie v. Knicker-
bocker Life Ins. Co. 63 N. Y. 27; affi'g 2 Hun, 616, s. c. 5 Supra, Ct. 193; Insurance
Co. v. Eggleston, 96 U. S. (6 Otto), 572 ; Beatty v. Lycoming Co. Mut. Ins. Co. 66
Penn. 9, s. o. 5 Am. R. 318; Insurance Co. v. Wolff, 95 U. S. (5 Otto), 326.
6 Mut. Life Ins. Co. v. French, 30 Ohio St. 240.
* Shearman v. Niagara Falls Ins. Co. 46 N. Y. 326, affi'g 9. Sweeny, 470.
8 Paragraph 5.
9 Kolgers v. Guardian Life Ins. Co. 9 Abb. Pr. N. S. 91, s. c. 58 Barb. 185, 2
Lans. 480.
10 Adams v. Greenwich Ins. Co. 4 L. <fe Eq. R. 291.
11 Dow T. Smith, 1 Cat 82.
11 Faugier v. Hallett, 2 Johns. Cai 233 ; Rose. N. P. 425.
492 ACTIONS ON CONTRACTS OF INSURANCE.
tributing policies, an adjustment by an expert may be submitted
to the jury, not as evidence of the facts stated therein, nor as ob-
ligatory, but to assist the jury in calculating the amount of lia-
bility upon the several hypotheses of fact mentioned in the ad-
justment, if they find either hypothesis correct. 1
24. Declarations and admissions of officers and agents.'] In
addition to what has been already said on this point, 2 it may be
useful to add that evidence of admissions or declarations of a dis-
tinct fact, made by the president or other proper officer having
power to settle and adjust claims, when the matter was presented
to him for settlement, is competent against the company. 3 Other-
wise, if the admission was not a part of the res gestce of the actual
dealing of the officer or agent with the subject. 4 Evidence of the
agent's declarations of his opinion, based upon past occurences,
is not to be received as an admission of his principals, especially
when the agent was not a party to the occurrences ; 5 and it is to
be excluded even where the agent had been deputed to examine
the question of liability of the principal. 6 An admission is to be
taken, as an entirety, of the fact which makes for the one side,
with the qualifications which limit, modify or destroy its effect,
on the other. 7
25. Defenses^ Special matters of defense, including false
warranty and representations, and concealment, must be pleaded
or cannot be proved, 8 and the burden is on defendants to prove
them. 9
26. false representations J] The burden is on defendants to
show the untruthfulness of representations, and either their ma-
teriality, 10 or actual fraudulent design and deceit thereby. The
materiality of a representation is to be presumed from the fact of
its having been made in answer to a specific question. 11
27. false warranty.] A warranty or condition not in the
1 Home Ins. Co. v. Baltimore Warehouse Co. 93 U. S. (3 Otto), 527, s. c. 16 Am.
Law Res. 162, 169.
2 Page 44 of this Vol.
8 Northrup v. Miss. Valley Ins. Co. 47 Mo. 435, s. o. 4 Am. R. 337. So held even
of a general promise to pay, if the other companies did.
4 Baptist Church v. Brooklyn Fire Ins. Co. 28 N. Y. 153, affi'g 23 How. Pr. 448.
6 Packet Co. v. Clough, 20 Wall. 528.
6 Insurance Co. v. Mahone, 21 Wall. 157.
I Insurance Co. v. Newton, 22 Wall. 32. Thus, where proofs of death showed
that the death was by suicide, the company's admission that the proofs were suffi-
cient in form, coupled with the objection at the same time that they were not liable
for suicido, are to bs taken together, and only admit death in a mode not rendering 1
them liable.
8 Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206 ; Northrup v. Miss.
Valley Ins. Co. 47 Mo. 435, 8. c. 4 Am. R. 337. .,
9 Piedmont & Arlington Life Insurance Co. v. Ewing, 92 II. S. (2 Otto), 377;
Trenton Ins. Co. v. Johnson, 24 N. J. L. (4 Zab.) 576; Elkin v. Janson, 13 M. & W.
655; Ins. Co. v. Folsom, 18 Wall. 252.
10 May on Ins. 193, 8 183 ; N. Y. Life Ins. Co. v. Graham, 2 Duv. (Ky.) 506.
II May on Ins. 194, 185, 186.
ACTIONS ON CONTRACTS OF INSURANCE. 493
policy cannot be proved by parol. 1 A variance between an alle-
gation of false warranty and its proof, if not substantial, will be
disregarded. 2 Neither materiality of the warranty, fraudulent
intent, nor that the insurer acted on it, need be showiu 3
28. concealment.'] The application is not evidence, as that
plaintiff did not communicate all he knew on subjects not
referred to in it. 4 But slight evidence of non-communication
is enough, in the first instance. 5 Knowledge by the concealer
is essential ; but for this purpose an insurer is conclusively
presumed to know what a man of ordinary intelligence ought to
know, 6 and what his agent at the time knew. 7 The jury may
also infer knowledge as a matter of fact, from probabilities, such
as the situation of the person and the character of the fact. 8
The insurers are presumed to be skilled in their business, and
to know (and therefore need no communication of) those general
facts, geographical, political, and others, which are open to the
public, and may be known to all who are interested to inquire. 9
A newspaper taken by them is competent as raising an inference
that they had knowledge of information, affecting the business,
contained in it. 10
29. materiality to the risk.] On the question whether a
fact, representation or concealment was material to the risk, if it
be on a point of common experience, not requiring special knowl-
edge, as, for instance, whether a change in the occupation of a
dwelling altered the risk the opinions of witnesses are not com-
petent." If it be a matter requiring special knowledge or skill,
the opinions of skilled witnesses are competent. 13 But in either
class of cases the actual usage of insurance companies generally,
to charge a greater or less rate (as distinguished from a custom of
the particular company not shown to have been communicated to
the insured), is competent, 13 and may be proved by the testimony
of experts in insurance, 14 stating the usage as a fact, 15 as distin-
guished from stating what would or would not be considered an
insurable subject or a greater or less risk. 16 For the purpose of
1 Alston v. Mechanics' Mut. Ins. Co. 4 Hill, 329, and cases cited.
* McCornber v. Granite Ins. Co. 15 N. Y. 495.
* Brennan v. Security Life Ins. Co. 4 Daly, 296.
4 Ins. Co. v. Folsom, 8 Blatcht 170; 9 Id. 202; 18 Wall. 252.
5 Elkin v. Janson, 13 Mees. & W. 655, 663; Steph. Di". Ev. 100
6 May on Ins. 211, 202.
7 Id.
8 Id. 213, 202.
9 May on Ins. 217, 207 ; De Longuemere v. N. Y. Fire Ina. Co. 10 Johns. 120.
10 Green v. Merchants' Ins. Co. 10 Pick. 402.
11 Luce v. Dorchester Mut. Fire LJLS. Co. 105 Mass. 297, s. c. 7 Am. R. 522; Hart-
ford Protective Ins. Co. v. Harmer, 2 Ohio St. 452.
12 See Leitch v. Atlantic Mut. Ins. Co. 66 N. Y. 100.
13 Luce v. Dorchester Mut. Fire Ins. Co. 105 Mass. 297, s, o. 7 Am R. 522.
14 Id. ; Hobby v. Dana, 17 Barb. 111.
15 Luce v. Dorchester Ins. Co. (above).
11 Rawls v. American Mut. Life Ins. Co. 27 N. Y. 282, affi'g 30 Barb. 357; Jefier-
494 ACTIONS ON CONTRACTS OF INSURANCE.
determining the question of materiality, it is not competent to
ask a witness, even one who acted in the transaction, whether he
considered the fact material ; or whether he would have taken
the risk had he known the fact ; or what influence the fact would
have on the mind of an insurer. 1 But one to whom a material
representation was made may be asked what effect it actually had
on his mind in the transaction. 2
To qualify a witness to express opinion, it is not enough that
he is conversant with insurance business in general ; but he should
be shown to have special knowledge upon the particular topicnn
question. 3
Testimony given by experts, and especially by insurers, when
necessary on the question of materiality, because without it the
fact is not sufficiently obvious to sustain a decision, is to be
treated like the testimony of credible witnesses upon any other
fact ; and is controlling if there is no conflict. It is only where
there is a difference o? opinion that the question is one for the
jury. 4
30. over-valuation.'] Evidence of over-valuation in the pol-
icy, 5 or in the proofs of loss, 6 without evidence of bad faith, does
not bar the action. 7 Evidence that other dealers in the same
trade and place usually had a much less stock, is not competent
evidence of over-statement or valuation. 8 The usual proportion
of stock to annual sales may be proved, for the purpose of rais-
ing an inference, by comparison with the annual sales of the in-
sured, that his statement of amount of stock was grossly exag-
gerated. 9 This should be proved by merchants of the same trade
and place ; 10 those of other places, different in size and business
usages, are not competent on the point. 11
31. Charge of Crime.'] Where the issue requires the defend-
eon Ins. Co. v. Cotheal, 7 Wend. 72. Compare Kern v. South St. Louis Mut. Ins.
Co. 40 Mo. 19, 26; Schenck v. Mercer Co. Ins. Co. 24 N. J. L. (4 Zabr.) 447, 451.
1 Jefferson Ins. Co. v. Cotheal (above); Rawls v. Am. Mut. Life Ins. Co. (above);
Walsh v. ./Etna Life Ins. Co. 30 Iowa, 133, s. c. 6 Am. R. 664 ; and see Atlantic Dock
Co. v. Libby, 45 N. Y. 499. Contra, Hawes v. New England, &c. Ins. Co. 2 Curt.
C. Ct. 229 ; Roberts v. Continental In. Co. 3 Law & Eq. R. 767 ; Hartman v. Key-
stone Ins. Co. 9 Harr. (Penn.)466, 478. Compare, on this subject, 5 Am. L. Rev. 231.
2 Valton v. National Loan Fund Assurance Society, 4 Abb. Ct. App. Dec. 437,
rev's 17 Abb. Pr. 268.
3 Schmidt v. Peoria Marine Ins. Co. 41 HI. 295, 299 ; Nelson v. Sun Mut. Ins. Co.
71 N. Y. 453, affi'g 40 Super. Ct. (J. & S.) 417.
4 Leitch v. Atlantic Mut. Ins. Co. 66 N. Y. 100.
s Huth v. New York Mutual Ins. Co. 8 Bosw. 538.
8 Owens v. Holland Purchase Ins. Co. 56 N. Y. 565, affi'g 1 Supm, Ct. (T. A C.)
285.
I Franklin Fire Ins. Co. v. Vaughan, 92 U. S. (2 Otto), 516.
8 Phoanix Fire Ins. Co. v. Philip, 13 Wend. ! ; Townsend v. Merchants' Ins. Co.
86 Super. Ct. (4 J. & S.) 172.
9 Ins. Co. v. Weide, 11 Wall. 440.
10 Id.
II Jones v. Mechanics' Fire Ins. Co. 36 N. J. (7 Vroom), 29, s. c. 13 Am. R. 405.
ACTIONS ON CONTRACTS OF INSURANCE. 495
ant to establish, a charge of crime, such as arson, in burning the
thing insured ; or perjury, in swearing to false preliminary
proofs, the rule followed by the greater number 01 American
authorities is that proof beyond a reasonable doubt, such as is re-
quired in criminal cases, is not necessary. 1 "Whether a mere pre-
ponderance of evidence is enough, 2 or whether the jury should
be instructed to consider the gravity of the charge, and the legal
presumption of innocence, 8 and that the legal evidence must be
such as taken together clearly satisfies them, 4 is still disputed. 5 '
1 So held in Kentucky, (^Etna Ins. Co. v. Johnson, 11 Bush. 687, s. c. 21 Am. R.
223); Louisiana, (Hoffman v. Western Mar. & F. Ins. Co. 1 La. Ann. 216,219;
Wightman v. The Same, 8 Rob. La. 442) ; Massachusetts, (Schmidt v. N. Y. Union
Hut. F. Ins. Co. 1 Gray, 529, 534) ; Missouri, (Rothschild v. Am. Cent. Ins. Co. 62 Mo.
8?>6; Marshall v. Thames Fire Ins. Co. 43 Id. 586); Wisconsin, (Washington Union
Ins. Co. v. Wilson, 7 Wise. 169; Blaeser V.Milwaukee Mech. Mut. Ins. Co. 37 Id. 31,
B. c. 19 Am. II. 747); and by Dnxox, J., in the U. S. Cire. Court, Scott v. Home Ins.
Co. 1 Dill. C. Ct. 105 ; see also Huchberger v. Merchants' Fire Ins. Co. 4 Bis*. C. Ct.
265; s. P. in other issues ; Michigan, (Walking v. Wallace [Fraud], 19 Mich. 57);
New Hampshire, (Mathews v. Huntley [Slander], 9 N. H. 150; Folsom v. Brown
[Slander], 5 Fost. N. H. 122); North Carolina, (Kincndo v. Bradshawe [Slander], 3
Hawks, 63); Wisconsin, (Wright v. Hardy [Fatal Malpractice], 22 Wise. 348).
Contra, and requiring proof beyond reasonable doubt, are decisions in England,
(Thurtell v. Beaumont, 1 Bing. 339; Steph. Dig. Ev. 98); Illinois, (McConnell v.
Delaware, <fec. Ins. Co. 18111. 228); and Ohio, (Lexington Ins. Co. v. Paver, 16 Ohio
St. 324). So in other civil actions, where the issue involves a charge of crime, <fec.,
the same and some other courts require proof beyond reasonable doubt. Indiana,
(Wonderly v. Nokes [Slander], 8 Blackf. 589. Compare Bissel v. West, 35 Ind. 54);
Iowa, (Ellis v. Lindley [Slander], 38 Iowa, 461 ; Fountain v. West [Libel], 23 Id. 1);
Missouri, (Polston v. See [Slander], 54 Mo. 291); New York, (Clark v. Dibble [Slan-
der], 16 Wend. 601; Hopkins v. Smith [Slander], 3 Barb. 692, 602); New Jersey,
(Berckmans v. Berckmans [Charge of Adultery in Divorce], 17 N. J. Eq. 453; Taylor
v. Morris [Usury], 22 Id. 606) ; Ohio, (Strader v. Mulvane [Slander], 17 Ohio, 624);
Pennsylvania, (Steinman v. McWiliiams [Slander], 6 Penn. St. 170; Gorman v. Sut-
ton, 32 Id. 247); Tennessee, (Coulter v. Stewart [Slander], 2 Yerg. 225) ; and Wis-
consin, (Freeman v. Freeman [Charge of Adultery in Divorce], 31 Wise. 235. Com-
pare Warner v. Commonwealth, 2 Va. Cas. 105); and in the Supreme Court of the
United States, in debt for a statute penalty. Chaffee v. U. S. 18 Wall. 616.
2 As is held in Alabama, (Spruil v. Cooper [Slander], 16 Ala. 791); California,
(Ford v. Chambers [Fraud], 19 Cal. 143); Colorado, (Downing v. Brown [Justifica-
tion in Libel], 3 Col. 591); Connecticut, (Munson v. Atwood [Felonious Taking], 30
Conn. 102); Georgia, (Wright v. Hicks [Adulterine Bastardy], 12 Geo. 155); Maine,
(Knowles v. Scribner [Bastardy], 57 Me. 497); Missouri, (Rothschild v. American
Cent. Ins. Co. [Insurance], 62 Mo. 356 ; Marshall v. Thames Fire Ins. Co. 43 Id. 686);
and Wisconsin, (Blaeser v. Milwaukee Mech. Mut. Ins. Co. 87 Wise. 31, s. c. 19 Am.
R. 747); and see 10 Am. Law Rev. N. S. 642.
3 As held in Kane v. Hibernia Ins. Co. 10 Vroom N. J. 697, s. c. 23 Am. R. 239 ;
and Brandish v. Bliss [Action for Burning Plaintiffs Barn], 35 Vt. 326.
4 As held in Kane v. Uibernia Ins. Co. (above), and Scott v. Home Ins. Co. 1
Dill. C. Ct. 106.
6 The reasons assigned for following mere preponderance of probabilities are, 1st,
that this is the rule in all civil issues; and, SJd, that the issue is really not a question
of criuie, but of dollars and cents. To this it may be replied that there is no such
universal rule in civil cases. It has been a general (but not universal), rule tor ju-
ries, in civil cases at common law, never a general rule for the chancellor nor for ju-
ries ir. feigned issues. Again, how ouijht the fact that a question of dollars and cents
is presented, to affect the rule ? If plaintiff makes a charge of crime for the sake of
recovering money, or the defendant sets up a charge of crime to exonerate him from
an otherwise admitted obligation, ought either to succeed on evidence that would be
. inadequate if the State undertake to investigate ? On the other hand, ought one to ba
496 ACTIONS ON CONTRACTS OF INSURANCE.
But in a doubtful case evidence of his previous successive losses,
and collection of insurance moneys, may be competent as tending
to show that the loss now in question was not accidental. 1
A defense of this nature does not put character in issue ; 3 and
plaintiffs general character not having been impeached, evidence
of his good character is not admissible in his own behalf. 3 Evi-
dence of another firing in the same town, at the same time, is
not alone relevant as tending to prove that it was set by a
stranger. 4
II. 'RULES' PECULIARLY APPLICABLE TO MARINE INSURANCE
32. Interest^ The registry is competent 5 but not conclu-
sive evidence of ownership. A copy of a register from the
proper department of the United States where the original is re-
quired by the act of Congress to be filed, duly certified, is proof
of the register ; and proof that there was a register, with very
slight evidence that it was on board during the voyage, is prima
facie proof that the vessel was duly documented. 7
Interest in freight is proved by showing an interest in the
ship, founding an interest in its freight, and then a shipment or
other act or contract sufficient to give that interest in the partic-
ular freight in question. 8
33. Warranties.'} In general the performance of an express
warranty in marine insurance is said to be a condition precedent,
to be averred and proved by plaintiff ; 9 but if no question arises
on the warranty, as where there is a warranty " free from aver-
age," and no claim as to average is made, or where the warranty
is in terms negative, such as that certain goods shall not be car-
ried, affirmative'proo^ of performance is not necessary unless
the evidence indicates a breach, 10 or a breach is averred by de-
fendant.
34. Seaworthiness.'] "Where there is an implied warranty of
made to respond in damages for expressing his belief in a charge of crime, because
the evidence on which he acted proves insufficient to convict? Jt seems difficult to
justify the proposition that the jury are to proceed on the preponderance of testimony,
disregarding the presumption of innocence. Compare 2 Whart. Ev. 1245. For
other cases of proof beyond reasonable doubt required in civil actions, see Chaffee v.
U. S. 18 Wall. 545; The Mohler, 21 Id. 230; and page 234 of this voL n. 2.
1 Rex v. Gray, 4 Fost. & F. 1102; Steph. Dig. Ev. 19.
8 Schmidt v. N. Y. <fcc. Ins. Co. 1 Gray, 629.
3 Fowler v. JEtna Fire Ins. Co. 6 Cow. 673.
4 Faucett v. Nichols, 4 N. Y. Sup. Ct. 597.
5 2 Pars. Mar. Ins. 512. Contra, 2 Phil. 657.
6 Draper v. Commercial Ins. Co. 21 N. Y. 378, rev'g 4 Duer, 234.
1 Pacific Ins. Co. v. Catlett, 4 Wend. 75, affi'g 1 Id. 561. Compare R. S. of U. S.
882, 4131-4195 ; Catlett v. Pacific Ins. Co. 1 Paine, 594 ; Code Civ. Pro. 944,
945.
8 2 Pars. Mar. Ins. 515.
9 2 Pars. Mar. Ins. 510, ; Craig v. U. S. Ins. Co. 1 Pet. C. Ct. 410 ; Wilson v. Hamp-
den, Ac. Ins. Co. 4 R. I. 159.
10 This, at least, is the opinion of Prof. Parsons. 2 Pars. Mar. Ins. 511.
ACTIONS ON CONTRACTS OF INSURANCE. 497
seaworthiness, parol evidence of the nature of the vessel, &c.
such as that she was known to the insurers to be not constructed
for the kind of navigation for which they insured her is compe-
tent for the purpose of showing that such degree of seaworthi-
ness as she was capable of would satisfy the policy. 1
It is held by high authority that on a marine policy, 2 the
insured must aver and prove that the ship was seaworthy when
the risk commenced ; 3 but slight and general evidence, if not con-
tradicted, is sufficient, and shifts the burden upon the insurer. 4
Evidence that inability of the ship to perform its voyage became
evident in port, 5 or soon after leaving port, and that it foundered
without stress of weather, or other apparent and adequate cause
of injury, raises a legal but not conclusive presumption of unsea-
worthiness. 6 And it is immaterial whether these iacts are shown
by plaintiff's or defendant's evidence. 7 The presumption thus
raised is rebutted by proof that the ship was seaworthy on leaving
port, and that it encountered marine perils such as might disable
a staunch and well-manned vessel. To carry the question to the
jury, it is enough that there is other evidence of the ship's con-
dition and of cause of loss, than the mere fact of sinking in
smooth water, tending to show seaworthiness and some peril in-
sured against ; and it is not necessary that the jury be able to
determine the particular cause of loss if it be within those cov-
ered by the policy. 8 The jpresumption of unseaworthiness, on
the other hand, is much strengthened by the length of time that
the vessel has been at sea, and by former manifestations of weak-
ness and decay by leaking or otherwise. 9 There is no presump-
tion that defects found to exist in the hull during the voyage
were produced by a peril of the sea. The burden is on the as-
sured to prove this. 10 Evidence of the performance of other voy-
ages is competent only as they were such, in point of time, &c.,
as to raise just inferences as to her actual condition at the time
in question. 11
What is a competent crew for the voyage ; at what time
* Barges v. Wickham, 3 B. <fe S. 669, 69 1 ; Powell Ev. 430 ; Rose. N. P. 412.
I Compare paragraph 10.
8 Moses v. Sun Mutual Ins. Co. 1 Duer, 159. Contra, Paddock v. Franklin Ins.
Co. 11 Pick. 227 (Shaw, Ch. J.) ; Rose. N. P. 411, and cases cited.
4 Moses v. Sun Mutual Ins. Co. 1 Duer, 159 ; Martin v. Fishing Ins. Co. 20 Pick.
889, 396.
6 Anderson v. Morice, L. R. 10 C. P. 58, s. o. 11 Moats Eng. 252.
Walsh y. Washington Ins. Co. 32 N. Y. 427, affi'g 3 Rob. 202 ; Wright v. Orient
Mut. Ins. Co. 6 Bosw. 269; Davidson v. Burnand, L.^R. 4 C. P. 117. Contra, Pickup
v. Thames, fec. Ins. Co. L. R. 3 Q. B. Div. 594. The controversy is whether there
ia a shifting of the burden of proof or only ground for an inference by the jury.
7 Paddock v. Franklin Ins. Co. (above).
8 Anderson v. Morice, L. R. 10 C. P. 58, 8. o. 11 Moats Eng. 252.
' Paddock v. Franklin Ins. Co. (above).
10 Bullard v. Roger Williams' Ins. Co. 1 Curt C. Ct 148 ; Talcot v. Commercial
Ins. Co. 2 Johns. 124.
II The Vincennes, 3 Ware. 171.
4:98 ACTIONS ON CONTRACTS OF INSURANCE.
they should be on board; what is pilot ground ; and what the
usage of trade, as to the master and crew being on board, when
the ship breaks ground for the voyage ; are questions of fact for
the jury, admitting of expert testimony. 1 Unusual prolongation
of voyage is relevant, but not alone sufficient, evidence of inade-
quacy of crew. 2
To testify directly to the question of seaworthiness as a fact,
the witness must be an expert. 8 A shipwright may give his
opinion, even on facts stated by others. 4
Seaworthiness is conclusively shown by an admission in the
policy. 5
35. Rating.~\ The proof of the rating of a vessel consists,
not only of testimony as to her construction, materials, age, &c.,
but also of the opinion of experts, such as ship-builders and ship-
masters and others familiar with the subject. The opinion of the
witnesses, as to the rating of a vessel, is but the expression of the
result of their examination of her. The rating by official in-
spectors, with a view to an entry in the books of a company, is
evidence of the same character. 6
36. Shipmentl\ The shipment of goods insured is usually-
proved by the captain or any eye witness. If the captain be dead,
the production of the bill of lading and proof of his handwriting
is evidence of the shipment as well as of the interest ; but not if
he added " contents unknown." 7 A witness to the loading of the
goods may refresh his memory by inspection of the bill of par-
cels, and the receipt given by the drayman who delivered them
on board the vessel. 8
On a valued marine policy, plaintiff need not prove that the
whole property was shipped, but it is enough to prove a substan-
tial interest in a subject corresponding to and satisfying the
description in the policy. It then devolves on the insurer to
1 M'Lanahan v. Universal IDS. Co. 1 Pet. 170.
2 The Gentleman, Olc. 110.
8 Marcy v. Sun Ins. Co. 11 La. Ann. 748.
4 Thornton v. The Royal Exch. Ass. Co. 1 Peake, 26 ; Rose. N. P. 412.
6 Rose. N. P. 412 ; Parfitt v. Thompson, 13 M. <fe W. 392.
* Insurance Companies v. Wright, 1 Wall. 456. In the case of a vessel in one
port, insured at another, the rating at the former is not the criterion, but is compe-
tent with other evidence tending to prove her quality and condition. Id.
1 Rose. N. P. 408 ; Haddow v. Parry, 8 Taunt. 303. Nor if he be alive. Dick-
son v. Lodge, 1 Stark. 226. Contra, Wolf v. National, fec. Ins. Co. 20 La. Ann.
583.
8 Sturm v. Atlantic Mut. Ins. Co. 38 Super. Ct. (6 J. <fe S.) 281. Duplicate re-
ceipts for the cases of goods, given and signed by the officer of the vessel who received
them, which had been, at the time, compared with the cargo-book, lost with the
ship, are admissible in evidence to prove the receipt of the cases though not their con-
tents. Id. See, also, pp. 319-326 of this vol. A general statement by the plaintiff,
admitted in evidence, to the effect that he had the goods put on board the ship,
though not evidence of the actual shipment, is not ground for reversal on appeal
where other competent evidence was afterward given of the receipt of the merchan-
dise on board. Id.
ACTIONS ON CONTRACTS OF INSURANCE. 499
show that, either by mistake or design, the whole of the property
insured was not put on board, and thus entitle himself to a pro-
portionate deduction from the valuation of the policy. 1
That a particular line of vessels was exclusively intended as
the course of shipment cannot be shown by parol, where the lan-
guage of the policy is general. 2
37. The voyage.~\ In insurance on a voyage, there must be
some evidence of the ship having left port. 8 The time may be
proved by the shipping list at Lloyd's, 4 or by the log-book of the
commander of the convoy under which she is proved to have
sailed. 5 If the policy designates the termini, oral evidence is not
competent to substitute others, 6 but if a designation of terminus
is indefinite, because of the nature of the terminus, 7 or of the voy-
age and trade itself, 8 oral evidence of the surrounding circum-
stances, and of usage, is competent. 9 So also of an indefinite
period of time ; 10 but a definite limit cannot be varied by parol. u
On a question of reasonableness of delay, the facts should be
proved ; the letters of the plaintiff's agents, to him explaining
the causes, are not competent in his favor, because not part of the
res gcstcB
38. Wealher.~] The official registries of a signal service or
coast-guard office, noting the state and changes of weather, kept
pursuant to the requirement of law, are competent on production,
with proof that they come from the proper official custody, and
the oath of the officer keeping them is unnecessary. 13
39. Loss.~] On evidence that the ship sailed apparently in a
seaworthy condition, and has never been heard from, the law
presumes that the loss was occasioned by a peril of the sea. 14 It
is prima facie enough to prove that she has not been heard of
in the country whence she sailed, without calling witnesses from
the port of destination to prove that she never arrived there, 15 or
even members of crew who were reported to be saved from the
1 Atlantic Ina. Co. v. Lunar, 1 Sandf. Ch. 91, and cases cited.
* N. Y. Fire Marine Ins. Co. v. Roberts, 4 Duer, 141. Compare Weston v. Ernes,
1 Taunt. 115.
* Cohen v. Hinctley, 2 Camp. 61.
* Macintosh v. Marshall, 11 M. & W. 116, 125; 1 GreenL Ev. 13 ed. 236, 198.
* D'Israeli v. Jowett, 1 Esp. 427 ; Rose. N. P. 410.
6 Kaines v. Knightly, Skin. 64.
7 Reed v. Ins. Co. 95 U. S. (5 Otto), 23, 30.
8 Vallnnce v. Dewar, 1 Campb. 603, 608.
* Reed v. Ins. Co. (above).
10 Chaurand v. Angerstein, 3*eake, 43.
. Rose. N. P. 26.
11 Langhorn v. Allnutt, 4 Taunton, 511.
13 The Catherine Maria, L. R. 1 Adm. <fe Ecc. 63. And see De Armond r.
Neasmith, 82 Mich. 231 ; 1 Whart. 689 ; 1 Greenl. 483. See also, The Maria daa
Dorias, 32 L. J. Pr. M. & P. 163 ; N. Y. Code Civ. Pro. $ 944, and pp. 97, 98, of this voL
14 Paddock v. Franklin Ina. Co. (above); Rose. N. P. 417.
"Id.
500 ACTIONS ON CONTRACTS OF INSURANCE.
wreck. 1 In respect to the length of time from which this pre>
sumption is to arise, each case is to depend upon its own circum*
stances. 3 In the absence of anything to indicate a special peril,
the usual and not the utmost period of the voyage is to be con-
sidered. 3 Evidence that when last seen the ship parted from
convoy in a storm, will sustain an inference that she perished in
that storm. 4 Evidence that after the time which plaintiff now
assigns as the time of loss, he procured further insurance 5 or
assumed to assign his interest in the ship, 6 is not conclusive
against him. The protest of a mariner, even though not com-
petent to prove loss, may be admissible to fix the time. 7 If loss
of freight or passage money is in issue, the burden is on plaintiff
to give some evidence that it would have been earned but for the
casualty, 8 and could not be earned because of the casualty. 9
Protest, survey, 10 and log-book are not competent in favor of
the insured, 11 unless authenticated by the testimony, 12 or called for
by the adverse party. 13 Certificates under seal, by United States
consuls, of copies of their official documents, are competent in
the courts of the United States. 14
Experienced navigators, as well as shipwrights, are competent
to express opinion on questions involving nautical skill, as to the
nature and ordinary effects of the perils to which a marine loss is
attributed. 13
40. Barratry.] To establish barratry mere negligence is not
enough, but proof of a wrongful act willfully done by the
master, with knowledge of its wrongfulness and constituting a
breach of his duty, injurious to the freighters and ship-owners,
is sufficient, although the master derived no benefit therefrom. 1 *
1 Koster v. Reed, 6 B. & C. 19.
8 Gordon v. Bowne, 2 Johns. 150; Oppenheim v. De Wolf, 3 Sandf. Ch. 671. On
this subject, see p. 74 of this voL
8 Brown v. Neilson, 1 Cai. 525.
4 Watson v. King, 4 Camp. 272.
5 Brown v. Neilson, 1 Cai. 525.
8 Bunten v. Orient Ins. Co. 1 Abb. Ct. App. Dec. 257.
1 Ruan v. Gardner, 1 Wash. C. Ct. 145. Compare Miller v. South Carolina Ins.
Co. 2 M'Cord, 336.
8 Ogden v. N. Y. Mut. Ins. Co. 4 Bosw. 447.
9 Id. ; Kinsman v. N. Y. Mutual Ins. Co. 5 Bosw. 460.
10 The survey is not essential Bentaloe v. Pratt, Wall. C. Ct. 68 ; Robinson v.
Clifford, 2 Wash. C. Ct. 1.
11 Except to show the fact that they were made. Watson v. Ins. Co. of N. A. 2
Wash. C. Ct. 152. Compare Hathaway v. Sun Mut. Ins. Co. 8 Bosw. 33.
12 2 Pars. Mar. Ins. 520; Howard v. Orient Mut. Ins. Co. 2 Robt. 539.
13 Saltus v. Com. Ins. Co. 10 Johns. 487.
" U. S. R. S. 896, 1707.
15 Walsh y. Washington Ins. Co. 32 N. Y. 427, affi'g 3 Robt. 202. Compare CinV
cinnati Ins. Co. v. May, 20 Ohio,. 211, 223.
Atkinson v, G. Western Ins. Co. 65 N. Y. 531 ; 4 Daly, 1.
ACTIONS ON CONTRACTS OF INSURANCE. 501
HI. RULES PECULIARLY APPLICABLE TO LlFE AND ACCIDENT
INSURANCE.
41. Disease / Death.] Death cannot be proved by the letters
testamentary or of administration. 1 It may be presumed from
absence without being heard from. 2 It may be proved by the
official books of the boards of public officers having cognizance
of deaths and casualties, kept pursuant to a requirement of law ; 8
and their production, with evidence that they come from the
proper official custody, is enough without the oath of the officer
keeping them. 4 That the death was by a peril within the policy
may be inferred from circumstances. 5
Any observer of 'ordinary understanding is competent to
testify whether one appeared sick or well. 6 Witnesses who had
known the subject of insurance intimately down to the period
when the policy was obtained, are competent to testify to his
health and constitution. 7
Under the New York statute, 8 by which communications to
physicians, clergymen and attorneys are to a certain extent privil-
edged, a medical attendant of the insured is not competent
against objection to testify to information acquired as necessary
to enable him to prescribe, whether it be received from the
patient himself, from observation or from the statement of other
attendants. And affirmative evidence that it was acquired for
the purpose of prescribing is not necessary, if the relationship
raise a presumption. 9
42. Suicide and insanity.'] On the question of suicide, the
surrounding circumstances, and the declarations of deceased
made shortly before death and indicating intent, are competent ; 10
but not the mere fact that he was an atheist. 11 On doubtful facts,
the presumption is against suicide. 12
I Page 100 of this vol. ; Thompson v. Donaldson, 3 Esp. 63.
s Page 73, <fec. of this vol.
8 Wallace v. Cook, 5 Esp. 111.
* 1 Whart Ev. 639.
See Rose. N. P. 437; Tisdale v. Conn. Hut. Life Ins. Co. 26 Iowa, 170, 176.
8 Higbie v. Guardian Mut. Life Ins. Co. 53 N. Y. 603; Milton v. Rowland, 11
Ala. 732. Where the agent's certificate that the applicant was a first-class risk, was
appended to the application and declaration, and the latter papers were referred to
as part of the plea, held that the certificate was competent against the insurers.
Ina. Co. v. Mahone, 21 AVall. 152, 155.
' Rawls v.'Am. Mut. Life Ins. Co. 27 N. Y. 282, affi'g 36 Barb. 357.
8 2 N. Y. R. S. 406 ; Code Civ. Pro. 834.
9 Edin^ton v. Mut. Life Ins. Co. 67 N. Y. 185, rev*g 5 Hun, 1. In this case evi-
dence as to the health or disease of an applicant in June waa held incompetent on the
question of his condition in August following, but this is a questionable ruling, un-
less justified by the pleadings. Mode of proving disease of insured not disclosed to
company. Mullincr v. Guardian Mut. Life Ins. Co. 1 Supm. Ct. (T. ct C.) 448.
10 Continental Ins. Co. v. Delpeuch, 82 1'a. St. 225. See also Newton v. Mutual
Benefit Lro Ins. Co. 2 Dill. 154, and cases cited.
II Gibson v. Am. Mut. Life Ins. Co. 37 N. Y. 580.
n Mallory v. Traveler's Ins. Co. 47 N. Y. 52. Evidence that the deceased retired
502 ACTIONS ON CONTRACTS OF INSURANCE.
Self-destruction being shown, there is no presumption of law
that it was caused by insanity. 1 The burden is on plaintiff to
show that the act was in consequence of insanity, and that the
inind of the deceased was so far deranged as to have made him in-
capable of using a rational judgment in regard to the act which
he was committing. 2
The testimony of persons not experts, as to the conduct, man-
ner and appearance of the subject, and the impressions thereby
made on them (within limits already stated), is competent to
go to the jury on the question of his insanity. 3 Although a
skilled witness cannot be asked for his inference whether a sui-
cide was caused by insanity, he may be asked to state, from his
experience and reading and acquaintance with the mental condi-
tion of the deceased, what effect, if any, a specified disease would
have upon the deceased as to his power to control his actions or
resist any impulse with which he might be seized. 4
43. Declarations and admissions of the subject.] In the case
of a policy issued to one person on the life of another, evidence
of the declarations and admissions of the latter are competent
against the former, when offered in connection with evidence of
facts showing the state of health, and if made concurrently with
the fact, and at or prior to the application, and not too remote in
point of time from it, and shown to be a part of the res gestcB of
the fact exhibiting the condition of health which they ultimately
tend to explain. 5 And whenever the bodily or mental feelings
are relevant, declarations of the person himself, as to his then
present condition, ills, pains and symptoms, to whomsoever made
(as distinguished from narratives of past condition), are compe-
tent as part of the res gestce. 6 Except within these limits, such
admissions and declarations are incompetent as evidence of the
fact declared; unless there be something to show agency, or
other ordinary ground for admitting the declarations of third
persons. Declarations of the person on whose life the policy is-
sued made after its issue, are not competent against the insured, 7
at bed time, and at midnight the report of a pistol being heard, was found shot in
the mouth, and the pistol lying near, is not sufficient as matter of law to prove that
he died by his own hand, and prevent a verdict for plaintiff Phillips v. Louisiana
Equitable Life Ins. Co. 26 La. Ann. 404, s. c. 21 Am. R. 649.
1 Terry v. Life Ins. Co. 1 Dill. C. Ct. 403 ; 15 Wall. 580.
9 Id. ; Insurance Co. v. Bodel, 95 U. S. (5 Otto), 232, 240.
1 Insurance Co. v. Bodel, 95 U. S. (5 Otto), 232, 238. Page 118 of this yol.
4 Koenig v. Globe Mut. Life Ins. Co. 10 Hun, 658. Whether the snicids of a per-
son hypothetically regarded as subject to melancholia, might be attributed to the
disease, is not a question for an expert witness, but for the jury. Van Zandt v. Mut.
Benefit Life Ins. Co. 55 N. Y. 169. As to the mode of proving insanity generally,
Bee p. 115, <tc. of this vol.
6 Edington v. Mut. Life Ins. Co. 67 N. Y. 185, and cases cited, rev'g 5 Hun, 1.
8 Insurance Co. v. Mosley, 8 Wall. 397; Ashbury Life Ins. Co. v. Warren, 66 Me.
623, B. c. 22 Am. R. 590.
' Swift v. Mass. Mut. Life Ins. Co. 63 N. Y. 186, 193, rev'g 3 Hun, 651 ; Edington
T. Mat. Life Ins. Co. 67 N. Y. 185, 193, rev'g 5 Hun, 1.
ACTIONS ON CONTRACTS OF INSURANCE. 503
nor are they competent against his assignee of the policy ; 1 but
if there be other evidence of the fact, they are admissible (just
as are the declarations of strangers communicated to the person
whose life was insured), a for the purpose of showing his knowl-
edge of the fact, if knowledge is relevant. 3
44. Accident insurance.] The accident itself, and the manner
of it, occurring without the presence of witnesses, may be proved
by testimony to the declarations of the deceased, made when
found in suffering, that he had immediately previous been in-
jured in a specified way. 4 There is a presumption against sui-
cide ; and evidence that death must have been caused either by a
cause within the policy or by the suicidal act of the deceased,
makes a prima facie case against the insurers. 5
1 Edington v. Mut. Life Ins. Co. 67 N. Y. 186, reVg 5 Hun, 1. The reason is that
after the contract of insurance has been effected, the subject of insurance has no
such relation to the holder of the policy as gives him power to destroy or affect it by
unsworn statements. An offer of evidence of such declarations should show that they
were made before the contract of insurance was effected. Edington v. ^Etna Lifa
Ins. Co. 13 Hun, 643, 648.
2 McNair v. National Life Ins. Co. 13 Hun, 144.
3 Dilleber v. Home Life Ins. Co. 69 N. Y. 256.
4 Ins. Co. v. Mosley, 8 Wall. 405.
* Mallory v. Travellers' Ins. Co. 47 N. Y. 62.
OHAPTEE XXVII.
ACTIONS ON BONDS, COVENANTS, AND OTHER SEALED INSTRU-
MENTS.
I. GENERAL RULES.
1. The making of the contract.
2. Execution.
8. Seal.
4. Sealed authority.
5. Statutory conditions.
6. Delivery.
7. Qualified delivery.
8. Escrow.
9. Acceptance.
10. Date.
11. Consideration.
12. Oral evidence to vary.
13. Practical construction.
14. Lost instrument.
15. Subsequent modification.
16. Breach.
17. Damages.
18. Fraud ; failure of consideration.
19. Reformation.
20. Declarations and admissions of
principal.
II. BONDS.
21. Estoppel by recital
II. BONDS continued.
22. Breach.
24. Bottomry bonds.
23. Administration bonds.
25. Indemnity bonds.
26. Official bonds.
III. CHARTER-PARTIES.
27. General rule as to oral evidence to
vary.
28. Usage.
29. Terms; measurements; cargo; ca-
pacity.
80. Performance.
31. Damages.
32. Demurrage, or damages for deten-
tion.
IV. COVENANTS FOR TITLE.
33. Implied covenants.
34. Covenant of warranty.
35. of seizin and right to convey.
86. against incumbrances.
87. for quiet possession or enjoy-
ment.
I. GENERAL KULES.
1. The making of the contract!] Execution and delivery by
the party to be charged, if not admitted, must be proved, before
the instrument can be put in evidence. If the contract is several
or joint and several, proof of execution by those who are parties
to the action is enough, without proof of the signature of the
others. 1 Under the new procedure, evidence to charge one only,
even jointly liable, may be available against him. 8 Plaintiff may
prove that a name written at the left hand, in the place proper for
a subscribing witness, was the signature of a party. 3
2. Execution!} The signer, though competent and available
as a witness, need not be called. Proof of signature of the party
1 Sandford v. Handy, 23 Wend. 269.; Conard v. The Atlantic Insurance Co. 1
Pet. 386,451.
* Pages 186, 187, 01 this vol.
* Richardson v. Boynton, 1 2 Allen, 138.
[504]
GENERAL RULES. 505
sought to be charged is prima facie sufficient to show execution
by him, without other proof of genuineness, 1 unless there are
alterations not noted in an attestation clause, such as under rules
already stated 2 require explanation.
Execution may be proved by official certificate of acknowl-
edgment or proof, 3 though made since the action was brought. 4
A defective certificate of acknowledgment or proof does not
preclude common law evidence of execution. 5
But if there is no sufficient acknowledgment or proof certi-
fied, and there is a subscribing witness, 6 he must be called, 7 or his
absence must be accounted for. The law recognizes the attesta-
tion clause, signed by a witness, as a legitimate auxiliary, aiding
what would otherwise be fatal defect of memory. If the wit-
ness does not affirmatively impeach the execution or delivery, his
testimony to the genuineness of the signature and of his own
attestation of it, is sufficient to go to the jury. 8 If he leaves the
question in doubt, other evidence of execution becomes admis-
Ml Q
sible.
The absence of the subscribing witness may be accounted for
by showing that he is not living, or not competent to testify, or
not within the jurisdiction of the court, or not to be found with
due diligence ; 10 thereupon his handwriting must be proved. 11 The
fact that the execution was abroad raises a presumption that the
witness is beyond jurisdiction. 12 If there were several subscribing
witnesses, it is enough to produce either who can prove the in-
strument j 13 but the absence of all must be accounted for before
it can be proved by handwriting, 14 and then it may be proved by
1 Wing v. Cooper, 37 Vt. 169, 176.
s Page 406 of this vol.
3 Morris v. Wadsworth, 17 Wend. 103, affi'd in 10 Paige, 109 ; Bowen v. Irish
Presb. Ch. 6 Bosw. 245. And see United States v. Wilkinson, 12 How. U. S. 246.
4 Page 6 of this vol.
6 Borst v. Empie, 5 N. Y. (I Seld.) 33.
4 Who signed ns such nt time of execution or delivery, Henry v. Bishop, 2 Wend.
675; Hollenback v. Fleming, 6 Hill, 303; (Contra, Jackson v. Phillips, 9 Cow. 94.)
or attested on the present request of the parties, Munns v. Dupont, 3 Wash. C. Ct.
81. It may be shown that a name written at the right hand, as if that of a party,
was in fact that of a -witness (Richardson v. Boynton [above], and p. 419 of this
vol. n. 10); or iictitious or unauthorized (p. 391, n. 12).
There is no legal presumption that the obligor and one of the subscribing wit-
nesses are the same from identity of name. Jackson v. Christman, 4 Wend. 277.
1 Story v. Lovett, 1 E. D. Smith, 153; Willoughby v. Carleton, 9 Johns. 136;
notwithstanding parties are now competent as witnesses. Jones V. Underwood, 28
Barb. 481 ; Hodnett v. Smith, 10 Abb. Pr. N. S. 86, B. c. 2 Sweeny, 401 ; 41 How. Pr.
190. ,
8 2 Greenl. Ev. p. 277, 295; Hall v. Luther, 13 Wend. 491, and cases cited;
Hemphill v. Dixon, Henipst. 235.
9 Page 891 of this vol. n. 13.
10 Jackson v. Waldron, 13 Wend. 178; Story v. Lovett (above).
11 Id. ; Clarke v. Courtney, 5 Pet 319.
14 Page 391 of this vol. n. 11.
13 8 Abb. N. Y. Dig. new ed. 134, 135.
M Id. ; Jackson v. Ghristman, 4 Wend. 277.
506 ACTIONS ON SEALED INSTRUMENTS.
the handwriting of either. 1 Under these rules, due proof of the
handwriting of all the witnesses is prima facie evidence of execu-
tion, 2 without proof of the handwriting of the party. 8 If the
witness' handwriting cannot be proved, then, after preliminary
evidence of diligent and fruitless exertions to prove his hand-
writing, proof ol the handwriting of the party may be given. 4
Evidence of the handwriting of the party, though not compe-
tent as a substitute for proof by testimony or handwriting of
subscribing witness; is competent in corroboration of it. 8
The mode of proving handwriting has already been fully
stated. 6 .
3. SealJ] In addition to the rules as to proof of seal already
stated, 7 it should be observed, that the record or a certified copy
of the record of an instrument which has been recorded, if evi-
dence under the statute, is competent, for the purpose of show-
ing whether the instrument had a seal or not at the date of rec-
ord. 8 An expert may express an opinion whether the original
instrument shown him bears marks of having had a seal. 9 -
4. Sealed authority.'] Where foundation has been laid for
secondary evidence, proof of an oral acknowledgment by the de-
fendant that the agent or attorney acted under sealed authority,
is competent, and an acknowledgment of having given authority,
may, with other circumstances, sustain an inference that the ac- '
knowledgment related to sealed authority. 10
5. Statutory conditions.'] The fact that defendant executed
and delivered an obligation required or permitted by statute to
be given under certain conditions whether of jurisdiction n or
procedure 12 amounts to an admission that those conditions ex-
isted, and throws upon him the burden of proving the contrary. 13
1 Van Rensselaef v. Jones, 2 Barb. 643.
4 Murdock v. Hunter, 1 Brock. Marsh. 135 ; Clark v. Courtney (above). Whether,
to impair the effect of proof of witness" handwriting, evidence of liis declarations
that he had never attested the instrument is competent, Compare Neely v. Neely,
17 Penn. St. 227, and p. 112 of this vol. note 8, and 1 Whart. Ev. 731, citing Ho-
bart v. Dryden, 1 Mees. & W. 615.
3 Unless, perhaps, when there are very suspicious circumstances, when proof of
the identity of the grantor may be also necessary. Hrown v. Kimball, 25 Wend.
259, reVg Kimball v. Davis, 19 Id. 437. Contra, Northrop v. Wright, 7 Hill, 476,
493.
4 Jackson v. Waldron, 13 Wend. 178; Clarke v. Courtney, 6 Pet. 319; Morgan T.
Curtenius, 4 McLean, 366, and cases cited.
6 Clarke v. Courtney, 5 Pet. 319.
Pages 392-398.
* Page 392 ; and as to corporate seal, page 36.
8 Follett v. Rose, 3 McLean, 332; Gillespie v. Reed, Id. 877.
9 Follett v. Rose (above); and see p. 397 of this vol.
10 Blood v. Goodrich, 12 Wend. 525, and cases cited.
11 See, for instance, People v. Falconer, 2 Sandf. 81, and cases cited.
14 Whiley v. Sherman, 3 Den. 185 ; Dormday v. Kanouse, 2 N. Y. Leg. Obs. 330.
See, for instance, Onderdonk v. Voorhis, 36 N. Y. 358 ; Delaney v. Brett, 1 Abb,
Pr. N. S. 421.
15 Onderdonk v. Voorhis (above) ; Coleman v. Bean, 1 Abb. Ct. App. Dec. 394.
GENERAL RULES. 507
6. Delivery?] Delivery may be inferred from circumstances. 4
Possession is prima facie evidence of it, 8 as to those who have
signed it, even though others named in the instrument have not.
Y. Qualified delivery, .] If a written instrument is executed
by part only of those named in it as parties, the question whether
those who have executed it are bound, depends upon the circum-
stances under which it was delivered. The burden is on the de-
fendant to show that they were not. 4 The circumstances of
delivery may be proved by parol. If it appears by what was
said at the time of the delivery, or by the nature of the transac-
tion or the attendant circumstances, that any party whose signa-
ture is affixed did not agree to be bound unless the other parties also
signed, the delivery will be considered as not absolute but in
escrow merely. 5 But such an understanding had prior to the ex-
ecution and delivery, and in no other way connected with that
act, cannot be shown. 6 If the instrument is on its face complete
by the signatures affixed before delivery, the stipulation that
others should sign cannot be shown by parol, 7 unless notice of it
is brought home to the obligee. 8
8. Escrow.'] A statement in a receipt given by a third person
for a deed, that it was delivered to him in escrow, is not neces-
sarily controlling. The grantor's intention is to be gathered from
the whole evidence. 9
Evidence that an obligation was placed in the hands of a
stranger to be delivered in a future contingency, and was deliv-
ered by him without it and without authority, is competent, 10
and proves that the obligation never had inception. 11
9. Acceptance.'] Acceptance, whether by plaintiff u or by de-
fendant, 13 may be presumed from the apparently beneficial char-
1 An averment or admission of execution may be a sufficient allegation of execu-
tion and delivery. Roberta v. Good, 36 N. Y. 408.
* Gardner v. Collins, 8 Mass. 898.
3 Sicard v. Davis, 6 Pet. 124; Games v. Dnnn, 14 Id. 822, affi'g 1 McLean, 321;
Grim v. School Directors, <fec. 51 Penn. 219; Dillon v. Anderson, 43 N. Y. 281. Aa
to proof of delivery, see also Brackett v. Barney, 28 N. Y. 333 ; People v. Bostwick,
82 Id. 443; Fisher v. Hall, 41 Id. 416.
4 Dillon v. Anderson, 43 N. Y. 231.
8 Chouteau v. Suydam, 21 N. Y. 179 ; People v. Bostwick, 32 N. Y. 445, affi'g 43-
Barb. 9; Black v. Lamb, 1 Beasley (N. J.), 108. Contra, Pope v. Latham, 1 Pike
(Ark.), 66.
6 Philadelphia, Ac. R. R. Co. v. Howard, 13 How. (U. S.) 307. This seems the
sound principle which should guide where the conflict in authorities permits. Com-
pare Dair v. U. S. 16 Wall. I, citing conflicting cases ; Miller v. Fletcher, 27 Gratt.
408, 8. c. 21 Am. R. 856; People v. Bostwick (above); Pawling v. United States, 4
Cranch, 219.
1 State v. Potter, 63 Mo. 212, s. c. 21 Am. R. 440 ; reviewing conflicting cases.
8 State ex rel. Barnes v. Lewis, 73 N. C. 138. s. o. 21 Am. R. 461.
* Brovrn v. Austen, 35 Barb. 341, s. c. 22 How. Pr. 394, and cases cited.
10 Lovett v. Adams, 3 Wend. 380.
11 Chipman v. Tucker, 38 Wis. 43, a. c. 20 Am. R. 1.
Bank of United States v. Dnndrid<?e, 12 Wheat. 64.
18 Kingsbury v. Burnside, 58 111. 310, s. c. 11 Am. R. 67.
508 ACTIONS ON SEALED INSTRUMENTS.
acter of the contract, and evidence even of slight acts indicating
assent. Non-acceptance is not shown by mere proof that the
instrument was returned for the purpose of having an additional
surety. 1
10. Date."] The date stated in the instrument is usually
prima facie, but not conclusive, 3 evidence of the date of execu-
tion and delivery. When blank, the party who seeks to enforce
the instrument has the burden of showing the true date, 4 if ma-
terial.
11. Consideration."] The seal affixed to the writing sued on 5
is presumptive, 6 but not conclusive, 7 evidence of a consideration ;
but it is not evidence that the consideration was adequate, where
the law requires adequacy to be shown. 8 Hence even partial
failure of consideration is available. 9 Under the statute the con-
sideration is open to inquiry, to the same extent as if the contract
were unsealed. 10 The statute applies to foreign contracts, 11 and to
previous as well as to subsequent contracts, so far as it affects the
remedy only. 13 Beyond this, it cannot apply to previous contracts,
because it would impair their obligation.
Notwithstanding the statute, the rule excluding parol evi-
dence which would vary the writing, remains unaffected. 18
A nominal consideration inserted in the writing does not nec-
essarily preclude evidence of the actual consideration agreed on. 14
12. Oral evidence to vary the obligation!} The rule excluding
oral evidence to vary the terms of a writing has a more strict ap-
plication to formal instruments, such as bonds and covenants,
than to commercial contracts made in the ordinary course of mer-
cantile business. 15 In the former case there is much more ground
for presuming that the parties put all the terms of their contract
into the writing, than in the latter. Hence evidence of any prior
1 Postmaster General v. Norvell, Gilp. 106.
s Pages 14 and 409 of this vol. Seymour v. Van Slyck, 8 Wend. 403.
8 Mayburry v. Biien, 15 Pet. 21.
4 See Graves v. Lebanon Nat. Bank, 10 Bush. 23, 8. c. 19 Am. R. 60.
6 It is only when the writing is set up as a cause of action, or a set-off or counter-
claim, that its conclusive effect is taken away by the N. Y. R. S. Calkins v. Long, 22
Barb. 97. A sealed release is conclusive. Gray v. Barton, 55 N. Y. 68 ; Torry v. Black,
58 Id. 185. Otherwise of a composition deed Russell v. Rogers, 15 Wend. 351.
6 Home Ins. Co. v. Watson, 59 N. Y. 390, rev'g 4 Supra. Ct. (T. & C.) 226, s. c. 1
Hun, 643.
1 2 N. Y. R. S. 406, 77. " There is no longer any magic in a wafer." John-
son v. Miln, 14 Wend. 195. At common law, it is conclusive. Storm v. U. S. 94 U.
S. (4 Otto), 84.
8 As in case of a contract in restraint of trade. Ross v. Sagdbeer, 21 Wend. 166.
Compare Tnllmadge V. Wallis, 25 Wend. 107.
Van Epps v. Harrison, 5 Hill, 63 ; Tallmadge v. Wallis, 25 Wend. 107.
10 Wilson v. Baptist Educational Society, 10 Barb. 308.
11 Williams v. Hayues, 27 Iowa, 251, 8. c. 1 Am. R. 268.
12 Mann v. Eckfo.d, 15 Wend. 502; Case v. Boughton, 11 Id. 106.
13 McCurtic v. Stevens, 13 Wend. 627.
14 Barker v. Bradley, 42 N. Y. 316. Compare Halliday v. Hart, 32 N. Y.
" See pages 294, 409 and 412 of this voL
GENERAL RULES. 509
or contemporaneous oral understanding is generally incompetent ;
but prior or contemporaneous contracts to which the instrument
in question was subsidiary or auxiliary may be shown. Thus an
instrument expressed to be an absolute obligation for payment of
money may be shown, by parol, to have been delivered under an
agreement that it should be held by the obligee as collateral se-
curity for a debt of a third person, and be cancelled on payment
thereof. Such evidence is not regarded as contradictory to the
written undertaking, but as tending to show that it has been dis-
charged. 1
In the case of a sealed agreement parol evidence is not ad-
missible, as in other cases, 8 to show that the one signing was only
an agent, for the purpose of enabling his principal to enforce it,
unless it appears on tne face of the contract that it was intended
to be the contract of such principal ; 3 nor is such evidence admis-
sible for the purpose of holding such alleged principal liable on
it, unless a seal was unnecessary, and the interest of the defend-
ant appears on its face, and he has received its benefit, and rati-
fied it.* So oral evidence is not admissible to enable him to en-
force it, nor to exonerate from personal liability trustees, direct-
ors or the like, who, in their individual names, have entered into
a sealed obligation not indicating their representative capacity. 5
The general rule that unambiguous language in a contract must
control, does not exclude extrinsic evidence of the subject-matter
and other surrounding circumstances to enable the court to con-
sider what the parties saw and knew, in order to ascertain their
meaning. 6
When the terms of an agreement have been intended in a dif-
ferent sense by the different parties to it, that sense is to prevail,
against either party, in which he supposed the other understood it.
13. Practical construction.'] The acts and admissions of a
party to an ambiguous instrument, subsequent to its execution, 7
and particularly a long-continued course of acts under it, giving
it a practical construction, 8 are competent against him. But
if the language is clear and unambiguous, such a practical
construction cannot vary it, 9 unless there is evidence to sustain a
waiver or estoppel.
1 Chester v. Bank of Kingston, 16 N. Y. 336. And see Huntington v. Adams, 13
Ala. 834.
* Pages 298. 302 of this vol.
8 City of Providence v. Miller, 11 R. I. 272, s. o. 23 Am. R. 453, and cases cited.
See also, Stowell v. Eldred, 39 Wis. 614.
4 Briggs v. Partridge, 64 N. Y. 364, and cases cited. And see Squier v. Norris,
1 Lans. 285.
6 Lincolu v. Crandell, 21 Wend. 101. The Pennsylvania rule seems to allow oral
qualification more freely. Lippincott v. Whitman, 83 Pa. St. 244, and cases cited;
Greenwalt v. Kohne, 86 Pa. St. 369.
6 Clark v. United States Life Ins. & T. Co. 64 N. Y. 33, rev'g 7 Lans. 322 ; and
see Reynolds v. Commercial Fire Ins. Co. 47 N. Y. 597.
T Goodyear v. Gary, 4 Blatchf. 271.
8 Forbeav. Watt, L. R. 2 S. & D. App. 214, s. c. 2 Moak's Eng. 512.
Railroad Co. v. Trimble, 10 Wall 367.
510 ACTIONS ON SEALED INSTRUMENTS.
14. Lost instrument.'] Loss need not be alleged in pleading. 1
If the instrument is shown to have been filed pursuant to statute,
its loss may be shown by official certificate of search, if authorized
by statute ; 2 or by testimony of a witness who has searched, unless
the statute makes an official certificate the exclusive evidence. 3
If the lost instrument is otherwise proven, slight evidence that it
had a seal is enough to go to the jury. 4
An agreement of the parties dispensing with production of
the original instrument, does not necessarily dispense with the
ordinary proof of due execution of the original. 5
15. Subsequent modification^ A sealed agreement cannot,
before breach, 6 be modified by a simple executory contract. 7 It
may (subject, however, to the requirements of the statute of
frauds) be modified by an executed contract, either oral or writ-
ten, founded on new consideration. 8 And the right of a party
under it may be impaired by a waiver or estoppel founded on his
acts, his words or even his silence. A discharge or modification
of any liability upon such an instrument, after breach, may be
shown by parol. 9
16. Breach^ On a contract merely to pay money, although
plaintiff usually alleges non-payment, only very slight if anv evi-
dence of breach is required. 1 " In other contracts plaintiff should
allege a breach, and should prove it, unless it is admitted, or per-
formance is affirmatively alleged by defendant. 11 Where indem-
nity alone is expressed, there must be evidence that damage has
been sustained ; but where there is a positive agreement that the
act which is to prevent damage to the plaintiff shall be done,
it is enough that such act is unperformed. 12 Where the covenant
is both to do the act and to indemnify, it becomes a question of
the intention of the parties. 13
Under an allegation of breach of agreement, and a total fail-
ure to prove the agreement, the action is not sustained by evi-
1 Livingston v. White, 30 Barb. 72.
* 2 N. Y. R. S. 3 ed. 639, 13 ; Code Civ. Pro. 921.
Teall v. Van Wyck, 10 Barb. 376.
4 Livingston v. White, 30 Barb. 72.
6 Clark v. Courtney, 5 Pet. 319.
6 See Kuhn v. Stevens, 7 Robt. 644, s. o. 36 How. Pr. 275.
1 Allen v. Jaquish, 21 Wend. 628 ; Eddy v. Graves, 23 Wend. 81.
8 Moses v. Bierling, 31 N. Y. 462 ; Fleming v. Gilbert, 3 Johns. 628 ; Pierrepont v.
Barnard, 6 N. Y. 279, rev'g 6 Barb. 364.
9 Delacroix v. Bulkley, 13 Wend. 71 ; Townsend v. Empire Stone Dressing Co. 6
Duer, 208; Dodge v. Crandall, 80 N. Y. 294. See further as to this subject, p. 314
of this vol.
10 The same has been held of a covenant to do an act or pay a certain sum. Mc-
Gregory v. Prescott, 6 Cush. (Mass.) 67.
11 This I understand to be the general rule and commonly applied in practice,
although the decisions are not harmonious.
18 Matter of Negus, 7 Wend. 498. and cases cited.
13 Rector, fec. of Trinity Ch. v. Higgins, 48 N. Y. 532, rev'g 4 Robt. I ; Gilbert v.
Wiman, 1 N. Y. 550, 554 ; Rubens v. Prindle, 44 Barb. 336.
GENERAL RULES. 511
dence of a tort, although such as would have been a breach had
there been such an agreement. 1
Where performance is in issue, evidence of non-performance
with an excuse therefor, is, in general, inadmissible. 2
17. Damages."] Plaintiff is not entitled to prove a breach not
alleged, 8 unless there is a general allegation ; 4 but he is not bound
to prove a breach to the full extent alleged ; nor is he confined to
the precise number or value alleged. 5 But he cannot recover
more than alleged, and he cannot prove any damages of a kind
not necessarily resulting from the breach alleged and proved, un-
less they are specially stated in the complaint. To recover dam-
ages more than nominal, they must be shown with reasonable cer-
tainty at the trial, and not left to speculation and conjecture ; 6
but every reasonable presumption may be made as to the benefit
which the other parties might have obtained by the bond fide per-
formance of the agreement. 7 The allegation of amount of un-
liquidated damages is not, for this purpose, to be taken as true,
by an omission to deny it. 8 An award as to the amount of dam-
ages, may avail as conclusive, although the action be necessary to
establish liability. 9
If the contract specifies the amount to be paid in case of a
breach, and the settled rules of construction 10 do not conclusively
determine whether it is liquidated damages or a penalty, the in-
strument may be aided and the real intention ascertained by
proof of extrinsic facts. 11 A sum duly fixed as liquidated dam-
ages, and not as a penalty, is recoverable without proof of actual
damage. 12
The general principles as to proof of value, injury, &c., by
the opinions of witnesses, have been already stated. 13 The opinion
or conclusion of a witness as to the amount of damage sustained,
as distinguished from his knowledge of Value, and of the differ-
ence in value caused by breach, is not admissible. 14
18. Fraud; Failure of consideration.'] Fraud in the execu-
tion is always admissible under proper allegation. 15 Fraud in the
1 Beard r. Yates, 2 Hun, 466.
Oakley v. Morton, 11 N. Y. 25 ; Warren v. Bean, 6 Wis. 120.
3 Brings v. Vanderbilt, 19 Barb. 222.
4 Trimble v. Stilwell, 4 E. D. Smith, 612.
e 2 Greenl. Ev. 243, 260.
6 Neary v. Bostwick, 2 Hilt. 614.
1 Wilson v. Northampton & Banbury Junction Ry. Co. L. R. 9 Chan. App. 279,
8. c. 8 Monk's Eng. R. 866, per Ld. SELBORNE.
8 Stuart v. Binsse, 10 Bosw. 436.
Whitehead v. Tattersall, 1 Ad. A E. 491.
' Bagley v. Peddie, 16 N. Y. 469, and cases cited; 2 Greenl. Ev. 241, 258.
11 See Shute v. Hamilton, 3 Daly, 462, 472.
" Smith v. Coe, 83 Super. Ct. (1 J. <fc S.) 480, 483.
13 Pages 310, 348, 368, Ac., of this vol.
14 Moreliouso v. Mathews. 2 N. Y. 614; Wetherbee v. Bennett, 2 Allen, 428, 430.
15 Hartshorn v. Day, 19 How. U. S. 211.
512 ACTIONS ON SEALED INSTRUMENTS.
consideration, or a failure of consideration, though not usually ad-
mitted at common law, 1 is equally available under the new pro-
cedure if it amount to an equitable defense. Evidence that the
signer was illiterate, and that the instrument was not read to him
or only read to him bv the other party, does not avoid it, but
shifts the burden to the other to show that it was explained to
him in substance, and there was no suppression, concealment, or
misrepresentation of any of its obligations. 2 To avoid a surety's
signature for fraudulent concealment by the creditor, it must be
shown that the creditor misled him, or induced him to become
surety in ignorance, or at least was present when another did so. 3
A failure of consideration cannot be proved under a general
denial. 4
19. Reformation.'] Under the new procedure, either the
plaintiff 5 or defendant, 6 if appearing and claiming in one and the
. same capacity, 7 may, under proper allegations show fraud or mis-
take in the instrument sued on, entitling him to a reformation
and judgment accordingly, without bringing a separate action.
I or this purpose, 8 it is necessary to show either mutual mis-
take, or mistake of one party to the instrument, known to the
other, and fraudulently taken advantage of, by him. The mi&-'
take must be as to a fact shown to be material and to have anima-
ted and controlled the conduct of the party in assenting, 9 or as to
the preparation and contents of the instrument, so that it does
not express the actual agreement made. 10 In the case of an error
in the instrument, the fact that the other party knew of the mis-
take, and inequitably suffered it to pass, is practically equivalent
to fraud. 11 Within these limits, even though the contract be
within the statute of frauds, 12 parol evidence of the agreement or
the intent of the parties is admissible, to prove that by mistake
something material has been omitted ; or that the instrument con-
tains more than was intended ; or that it varies from their intent
by expressing something different in substance from the truth of
1 Hartshorn v. Day, 19 How. TT. S. 211.
s Ellis v. McCormick, 1 Hilt. 313 ; Harris v. Story, 2 E. D. Smith, 363 ; Suffern,
v. Butler, 19 N. J. Eq. 202.
3 Atlas Bank v. Brownell, 9 R. I. 168, s. c. 11 Am. R. 231 ; Magee v. Manhattan
Life Ins. Co. 92 U. S. (2 Otto), 93, 99.
* Dubois v. Hermance, 56 N. Y. 673, affi'g 1 Supm. Ct. (T. <fc C.) 293.
8 Laub v. Buckmiller, 17 N. Y. 620 ; Bartlett v. Judd, 21 N. Y. 200, affi'g 23
Barb. 262.
6 Haire v. Baker, 6 N. Y. 357.
I Cady v. Potter, 55 Barb. 463. Compare Haddow v. Ltrady, 59 N. Y. 320, and
Rathbone v. Hooney, 58 N. Y. 463.
8 As distinguished from a claim to rescind. Smith v. Mackin, 4 Lans. 41.
9 Grymes v. Sanders, 93 U. S. (3 Otto), 55, 60, and cases cited.
10 Leavitt v. Palmer, 3 N. Y. 19 ; O'Donnell v. Harmon, 3 Daly, 424 ; Pitcher v.
Hennessy, 48 N. Y. 415,
II Boteford v. McLean, 45 Barb. 478, correcting 42 Id. 445.
" Eider v. Powell, 4 Abb. Ct. App. Dec. 63, s. c. less, fully, 28 N. Y. 310.
BONDS. 513
that intent. 1 The mistake must be clearly made out by the most
satisfactory proof ; a and the actual agreement must also be shown
with clearness. 8
20. Declarations and admissions of principal^] In an action
against principal and surety jointly, the admissions and declara-
tions of the former are competent not only against himself, but
also against the surety, if made as part of the res gestcB of an act
properly in evidence against the former, 4 otherwise not. 5 But
when admissible, such declarations and admissions of the prin-
cipal, and even his formal official reports made during the period
in respect of which the surety is liable, are not conclusive against
the surety. 6
Entries made by the principal against his interest, though in
a private book, are, after his death, competent primary evidence
against his surety, although a witness to the transaction might
have been called.
II. BONDS.
21. Estoppel fiy recital.'] In an official bond the recital of of T
ficial character or appointment is conclusive evidence of the ap-
pointment as against the obligors, sureties as well as principal. 7
A mere recital cannot operate, by way of estoppel, so far as to
preclude the obligees from showing the instrument absolutely
void ; 8 but it may estop as to any particular matter of fact re-
cited. 9 Even sureties are bound by the recital of preliminaries
not affecting the jurisdiction. 10 A recital estops as to the fact re-
1 Pennell v. Wilson, 2 Abb. Pr. N. S. 466, s. c. less fully, 2 Robt. 505 ; Nevins r.
Dunlap, 83 N. Y. 676.
8 Same cases (Lyman v. United Ins. Co. 17 Johns.' 373): "Beyond all reasonable
doubt," says the chancellor in Coles v. Bowne, 10 Paige, 526. But compare p. 495
of this vol.
8 Kent v. Manchester, 29 Barb. 595.
4 Bank of Brighton v. Smith, 12 Allen. 243, 249; Union Savings Assoc. v. Ed-
wards 47 Mo. 445; Snell v. Allen, 1 Swan (Tenn.), 208; Dobbs v. Justices, <tc. 17
Ga. 624, 630 ; 2 Whart. Ev. 1212. (For a broader rule, see Atlas Bank v. Brown-
ell, 9 R. I. 168, s. o. 11 Am. R. 231. But compare p. 188 of this vol.) Unless there
ia evidence of combination between the plaintiff and the principal. Commonwealth, v.
Kendig, 2 Pa. St, 448, 452; United States v. Cutter, 2 Curt. C. Ct. 617.
6 Stetson v. City Bank, 2 Ohio St. 167, 177; Blair v. Perpetual Ins. Co. 10 Mo.
659, 567 ; Smith v. Whiopingham, 6 C. <b P. 78. Compare Amherst Bank v. Root,
2 Mete. (Mass.) 522, 54 f; Parker v. State, 8 Black. 292.
6 Bissel v. Saxton, 66 N. Y. 55.
* Fake v. Whipple, 39 N. Y. S'J4, affi'g 39 Barb. 339, and cases cited ; Bruce v.
United States, 17 How. U. S. 437.
8 Caldwell v. Colgate. 7 Barb. 253. Avoiding the deed avoids also the estoppel.
Id. As, for instance, where the case was without jurisdiction. Caffrey v. Dudgeon.
38 Ind. 512, s. c. 10 Am. R. 126 ; Germond v. People, 1 Hill, 343.
9 See Decker v. Judaon, 16 N. Y. 439.
10 Coleman v. Bean, 1 Abb. Ct. App. Dec. 394.
83
514 ACTIONS ON SEALED INSTRUMENTS.
cited, 1 but docs not necessarily exclude evidence of another inde-
pendent fact which avoids the effect of the former. 2
A bond to an officer is at least prim a facie evidence, against
the obligors, of his appointment. 8 In a bond of indemnity against
the non-performance of a contract, the recital of the execution of
the contract is conclusive evidence of its due execution, 4 and its
validity so far as that is matter of fact. 8 Recitals are evidence,
though the facts recited be not alleged otherwise than by setting
forth the instrument in which they appear. 8
22. Breach.] In an action on a bond for payment of money
only, it is for defendant to prove payment. 7 In an action for
breach of any other condition, plaintiff should allege non-per-
formance of the condition, 8 and give some evidence of non-per-
formance, 9 unless it is admitted expressly or impliedly. 10 It is for
plaintiff to show the state of facts called for to prevent the con-
dition taking effect. 11 If the bond is conditioned for performance
of another contract, and it appears that there were conditions
precedent in that contract requiring something from plaintiff, he
must show performance of those conditions. 12 But if there is a
proviso or defeasance contained in a condition, the facts neces-
sary to invoke it must be set up by defendant in order to avarl
him. 13 Satisfaction by parol, of money due by the condition of a
bond, before forfeiture, may be proved by paroL 14
23. Administration 'bonds.'] Actual appointment, letters and
oath, may be proved by the record ; but, without its production,
may be proved by a recital in the bond, of intent to apply for let-
ters, with evidence that the principal acted as if appointed and
qualified. 15 The surrogate's decree, shown to have been made in
a proper proceeding, 16 and directing the administrator to make a
payment, is conclusive on the sureties, unless fraud or collusion
is shown. 17 Plaintiff must also show disobedience j and proof of
1 Cocks v. Barker, 49 N. T. 107.
8 Reed v. McCourt, 41 N. Y. 436.
8 Scott v. Duncombp, 49 Barb. 73.
4 Lee v. Clark, 1 Hill, 66.
5 Jarvis v. Sewall, 40 Barb. 449.
6 Slack v. Heath, 4 E. D. Smith, 95, B. c. 1 Abb. Pr. 881.
7 Mann v. Eckford, 15 Wend. 619. Compare Jolley v. Plant, 1 MacArthur, 98.
8 Thomas v. Allen, 1 Hill, 145 ; Lipe v Becker, 1 Den. 668; 2 N. Y. R. S. 878,
6.
9 United States v. Bell, Gilp. 41.
10 Cotheal v. Talmadge, 1 E. D. Smith, 673, 576.
11 Ferris v. Purdy, 10 Johns. 358.
19 Water Commissioners of Detroit v. Burr, 56 N. Y. 665, affi'g 35 N. Y. Super,
Ct(3 J. <fcS.)522.
13 Jarvis v. Sewall, 40 Barb. 449.
14 Keeler v. Salisbury, 33 N. Y. 648.
15 Dayton v. Johnson, 69 N. Y. 419. Compare Lent v. Hascall, 22 N. Y. 188.
16 Behrle v. Sherman, 10 Bosw. 292.
"Thaver v. Clark, 4 Abb. C't. App. Dec. 801, affi'g 48 Barb. 243; Casoni V.
Jerome, 53 N. Y. 315. Seo also 1 Wms. Exrs. 6th Am. ed. 696, n.
BONDS. 515
leave to sue is not enough for this purpose. 1 But if plaintiff
show disobedience or failure to comply at a given time, the bur-
den is on defendant to show subsequent compliance if he rely on
that. 3 Plaintiff should be prepared to prove the surrogate's leave
to sue. 3 His leave to sue is conclusive. 4 Neither notice of these
proceedings to the surety, nor a demand on the surety, is neces-
sary. 5
The defendant may show 6 either that the bond was not made,
or that the decree was not made ; or, if made, was collusive, 7 or
that there was no failure by the administrator to comply ; or that
there was no order for the prosecution. But not that lie was
misled in signing the bond, by one with whose deception plaintiff
was not connected ; 8 nor that the surrogate erred in making the de-
cree, nor that he wrongly adjudged the claim established ; nor that
there were in fact no assets, although the surrogate decided that
there were assets to be applied. 9
24. Bottomry bonds.] The bond duly proved raises a pre-
sumption that the amount was furnished to the vessel. 10 But if
executed by the master, plaintiff must show that he acted within
the scope of his authority, that is to say, there must be evidence
of actual necessity for repairs and supplies ; or at least of due in-
quiry and of reasonable grounds of belief that the necessity was
real and exigent. 11 Necessity for repairs and supplies raises a pre-
sumption of necessity for credit, 12 especially if the vessel was in a
foreign port ; 13 and throws on the owner the burden of showing
that the money could have been obtained otherwise than by bot-
tomry. 14
25. Indemnity bonds.'] Possession by the principal is evidence
of authority to deliver ; and parol qualifications not made known
to the obligee cannot be proved against him. 15 The seal raises a
presumption of consideration, even for a bond of indemnity
against the consequences of performing a legal obligation ; and
defendant must overcome this by proof that there were no facts
1 People v. Barnes, 12 Wend. 492.
s Dayton v. Johnson, 69 N. Y. 419.
8 People v. Falconer, 2 Sandf. 81 ; Beall v. New Mexico, 16 Wall 643; and see
Matter of Van Eps, 66 N. Y. 699.
4 People v. Downing, 4 Sandf. 189.
6 Wood v. Barstow, 10 Pick. 868.
6 People v. Laws, 3 Abb. Pr. 460.
1 Annctt v. Terry, 35 N. Y. 256, affi'g 2 Robt 656, s. c. 28 How. Pr. 324; People
V. Townsend, 87 Barb. 620.
8 Casoni v. Jerome, 58 N. Y. 316.
9 People v. Laws (above).
10 Cohen v. The Amanda, Crabbe, 277.
11 The Grapeshot, 9 Wall. 129; The Bridgewater, Olc. 85.
15 The Grapeshot (above).
13 The Washington Irving, 2 Ben. 318, 323.
14 The Knthl -en, 2 Hen. 458 ; The Virgin v. Vyf biua, 8 Pet. 638.
" Belloni v. Freeborne, 63 N. Y. 383.
516 ACTIONS ON SEALED INSTRUMENTS.
throwing donbt on the obligation. 1 On an indemnity against
damage, by reason of any fact, as distinguished from an indem-
nity against liability or an obligation to do a specific act, actual
loss or injury must be shown, except in the case of some statu-
tory bonds/ The competency and effect of a judgment against
the plaintiff has already been stated. 8
26. Official bonds.*] The general rules applicable in actions
by and against public officers have" already been stated. 5 It may
be further added that a fiscal officer may sometimes be presumed
to have received the whole amount collectible upon his warrant,
and that he retains in his own hands the balance unaccounted
for ; and, in such case, the burden of proof is on him to show
that the failure to pay arose from his inability to collect the sum,
except by compulsory measures against the taxpayers ; 6 but a
public officer is not generally presumed to have applied funds to
his private purposes ; and hence his pecuniary embarrassments
are not generally competent ; yet where it has been shown that
those having the right to control his acts, have permitted him to
use such funds, his pecuniary embarrassments may be competent
in favor of his sureties. 7 A balance shown to have been due
from the officer, when re-appointed, is presumed, but not conclu-
sively, to have been then still in his hands ; but his sureties may
show that he was in fact already a defaulter when they became
such. 8
Peculiarities in the mode of keeping public accounts should
be explained by the testimony of those charged with the duty of
keeping them, rather than by the calling 01 a witness who may
happen to be acquainted with the matter, to state his opinion of
the effect. 9
1 Home Ins. Co. v. Watscn, 59 N. Y. 390, rev'g 4 Supm. Ct. (T. <fe C.) 226, s. o. 1
Hun, 643 ; and see Coventry v. Barton, 17 Johns. 142.
8 Churchill v. Hunt. 3 Den. 321 ; Gilbert v. Wiman, 1 N. Y. 650 ; Wright v. Whi-
ting, 40 Barb. 235 ; Weller v. Eames, 15 Minn. 461, 8. c. 2 Am. R. 190.
8 Page 261 of this Tol. ; and see Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275, rev'g
7 Bosw. 4?,7; Taylor v. Barnes, 69 N. Y. 430; Thomas v. Hubbell, 15 N. Y. 405
rev'g 18 Barb. 9; Fay v. Ames, 44 Barb. 327.
4 As to the nature and limits of the liability of fiscal officers, see Cent. L. J. 1877,
p. 478 ; 16 Alb. L. J. 129 ; Perley v. County of Muskegon, 32 Mich. 132, s. c. 20 Am.
E. 637.
6 Pages 169-202 of this vol.
6 Fake v. Whipple, 39 N. Y. 394, affi'g 39 Barb. 339. But compare, contra, Bryan
v. United States, 1 Black. 140.
1 Nolley v. CaUoway County Court, 11 Mo. 447, 468.
8 Bruce v. United States, 17 How. U. S. 437 ; United States v. Eckford, 17 Pet.
251.
United States v. Willard, 1 Paine, 539, 545. For the peculiar rules facilitating
proof in actions against defaulting officers of the United States, see United States v.
Eckford, 17 Pet. 251, s. c. 1 How. U. S. 250 ; United States v. Hodge, 13 How. U. S.
478 ; Watkins v. United States, 9 Wall. 759 ; United States v. Eg^eston, 23 Int.
Rev. Rec. 113; United States v. Jones, 8 Pet. 375 < Bruce v. United States, 17 How.
U. S. 437; United States v. Ganssen, 19 Wall. 193 ; Smith v. United States, 5 Pet
292,299; Bleecker v. Bond, 3 Wash. C. Ct. 529; Lawrence v. United States, 2 Me
Lean, 581.
CHARTER-PARTIES. 517
If a cause of action matured on a breach of the bond, no de-
mand need be proved. 1
III. CHARTER-PARTIES.
27. General rule as to Oral evidence to vary.] The rule
that oral evidence is generally inadmissible to enlarge or vary the
terms of a contract is applied to charter-parties. 2 But if the lan-
guage be indefinite or ambiguous, the situation of the parties
may.be shown as in other cases for the purpose of ascertaining
their intent. 3 Being under seal, the rule excludes evidence to
show that another than the person named as party, was the prin-
cipal for the purpose of enabling him to sue on it. 4 Though the
signer be described as agent in the body of the instrument, yet if
he signs personally, without qualification, he may be held liable,
unless it appears irom the other portions of the instrument that
he did not intend to bind himself as principal. 5 But evidence of
a usage of trade that if the principal's name is not disclosed
within a reasonable time after signing of the charter-party, in
such case the broker shall be personably liable, is admissible. 6 If
the charter-party appears to have been executed as covering the
whole subject-matter of a previous memorandum, a clause in the
memorandum, omitted from the charter-party is merged ; 7 other-
wise if executed only in part performance of the memorandum. 8
A subsequent agreement by parol for the use of the ship at a per-
iod before the charter-party attaches, may be proved. 9
28. Usage] Where local usage of the port is competent, it
is no objection that it was not known to a party who contracted
in such form as to be subject to it. 11
29. Terms; Measurements; Cargo; Capacity.'] A usage as
to terms, &c., may be proved if the charter-party contemplates
it, as whete it stipulates for u the usual and customary terms," u
or " regular terms of loading ; " 13 but not otherwise to vary
1 Albany City Fire Ins. Co. v. Devendorf, 43 Barb. 444 ; School District No. 1 v.
Lyford. 27 Wi*c. 606.
*The Eli Whitney, 1 Blatch. C. Ct. 360; The Hermitage, 4 Id. 474, and see
pages 296 nnd 433 of this vol.
3 See Almgren v. Dutilh, 6 N. Y. 28.
* Humble v. Hunter, 12 Ad. <fe El. N. S. (Q. B.) 310, and see page 298 of this vol.
5 Ilaugh v. Manzanos, 27 Weekly tt. 536 ; compare Hayn v. Clifford, Id. 641.
Hutchinson v. Tatham, L. R. 8 C. P. 482.
I Renard v. Sampson, 12 N. Y. 661, affi'g 2 Duer, 285.
Id.
' White v. Parkin, 12 East, 678. So, of other matters of agreement, express or
implied, extrinsic to the contract. Rose. N. P. 443 ; citing Fletcher v. Gillespie, 3
Bing. 635.
'* As to the mode of proof, see pages 296 and 485 of this vol.
II Robertson v. Jackson, 2 C. B. 412.
19 Roberts .n v. Wait, 8 Exch. 299, and see Rose. N. P. 445.
13 Leidemann v. Schultz, 14 C. B. 38; 23 L. J. C. P. 17.
518 ACTIONS ON SEALED INSTRUMENTS.
clear and unambiguous language. 1 But even ordinary language,
such as "bale, 3 or "full and complete cargo," 8 may be ex-
plained by evidence that in the shipping usage it has a peculiar or
technical meaning. To admit evidence of technical meaning the
phrase need not be on the face of it ambiguous. 4 So if the char-
ter-party is indeterminate as to the place of measurement of
goods, evidence of usage is competent/
The testimony of experts is competent on the question
whether a ship has on board a " full cargo." 6
The defendant may show a fraudulent misrepresentation of
capacity, made by plaintiff at the time of hiring, as a ground of
reducing the recovery, 7 unless inconsistent with the terms of the
instrument. 8
30. Performance^ Performance or waiver must be affirma-
tively established by the plaintiff. 9
31. Damages] The fact that a party to a charter-party paid
an additional price for goods because of delay consequent on its
violation, is prima facie evidence of damage to that extent
without proof of the value at the place of intended sale, and en-
titles him, in the absence of evidence to the contrary, to go to the
jury. 10 Breach in not furnishing a cargo being shown, the bur-
den is thrown on defendant to show, in mitigation of damages,
that another cargo might have been procured by the use of or-
dinary means and proper opportunities on the part of the master
or owners. 11
32. Demurrage, or damages for detention] Where lay
days are to commence running " on arrival," parol evidence is
competent to show what is commonly understood to be the port ;
and this evidence may extend to the fact that in the case of a
particular class of ships like that in question, the lay days com-
mence only from the mooring at the quay, where by % the regula-
1 Phillipps v Briard, 1 II. <fc N. 21, 8. c. 25 L. J. Exch. 233. Compare Brown v.
Byrne, 3 El. <fe Bl. 703, s. c. L. J. 23 Q. B. 313; Rose. N. P. 24.
I Taylor v. Briggs, 2 C. <fe P. 625.
8 Cuthbert v. Gumming, 11 Exch. 405, and see page 484 of this vol.
4 Page 484 of this vol. Myers v. Sari, 3 E. <fc E. 319 (per BLACKBUBX, J.)
6 Bottomley v. Forbes, 5 Bing. N. C. 121.
6 Ogden v. Parsons, 23 How. U. S. 167, 169.
7 Johnson v. Miln, 14 "Wend. 195.
8 Baker v. Ward, 3 Ben. 499.
9 Roberts v. Opdyke, 40 N. Y. 259, affi'g 1 Robt. 287 ; Rose. N. P. 443. Compare
Bowley v. U. S. 8 (X of Cl. 187. As to sea-worthiness, compare The Vincennes, 3
Ware, 171 ; Werk v. Leathers, 1 Woods. 271 ; Rose. N. P. 443; Belham v. Benson, 1
Gow. 45 ; and page 498 of this vol.
10 Featherston v. Wilkinson, L. R. 8 Ex. 122, s. c. 4 Moak's Eng. 493.
II Murrell v. Whiting, 32 Ala. 54, 67.
19 Although no provision be made in the contract for demurrage, damages in the
nature of demurrage may be recovered for detention. Morse v. Pesant, 3 Abb. Ct,
App. Dec. 821.
COVENANTS FOR TITLE. 519
tions of the port she only could discharge. 1 But if the written ob-
ligation is to land the cargo at a specified dock, evidence of usage
is not necessarily competent to show that the allowance for de-
murrage does not begin till after obtaining a berth. 2 Parol evi-
dence is held not admissible to show usage that such an expression
as "to be discharged in fourteen days," means working days, and
excludes Sundays and custom-house holidays. 3
IY. COVENANTS FOB TITLE.
33. Implied covenants.'] By statute in New York 4 and some
other States, no covenant is implied in any conveyance of real
estate. But leases for not more than three years * and convey-
ances of incorporeal hereditaments 6 are not within this rule.
34. Covenant of Warranty.'] An actual eviction or ouster
from the possession of the whole or part of the premises con-
veyed, by force of a paramount title, must be shown. 7 Actual
sale under judicial process is sufficient evidence of the eviction. 8
The judgment is in any case competent evidence of the fact of
its recovery ; but the paramount character of the title is not
proved by the judgment, 9 unless defendant was a party or privy
to the judgment. If the covenantor was not a party on the
record in the evicting judgment, the judgment will still be con-
clusive on him, if distinct and unequivocal notice was given him
expressly requiring him to appear and defend the adverse suit,
and giving him reasonable opportunity to do so. 10 If such notice
appear upon the record of that suit, the court may instruct the
jury that the recovery in that suit is^conclusive on the present de-
fendant, as if he had been a party on the record in the former
suit. If the notice do not thus appear on the record, the ques-
tion of the conclusiveness of the judgment will depend upon the
belief of the jury as to the reception of the notice. 11
1 Norden Steamship Co. v. Dempsey, L. R. 1 C. P. Div. 654, s. o. 18 Moak's Eng. 252.
s PhiL Ac. R. R. Co. v. Northam, 2 BCD. 1.
3 See Cochran v. Retberg, 3 Esp. N. P. 121. Contra, pages 297 and 366 of this voL
Lying days mean working days. Commercial Steamship Co. v. Boulton, L. R. 10 Q.
B. 346, s. c. 13 Moak's Eng. 288.
4 1 N. Y. R. S. 738, 140 (2 Id. 6th ed. 1119). So, to some extent, by the Amer-
ican doctrine of the common law. Frost v. Raymond, 2 Cai. 188 ; Van Rensselaer T.
Kearney, 11 How. U. S. 297, 322. For the rule as to implied covenants, in case of a
conveyance made in one State, of land in another, see Bethell v. Bethell, 54 Ind. 428,
8. c. 23 Am. R. 650.
5 Moffet v. Strong, 9 Bosw. 57 ; Lynch v. Onondaga Salt Co. 64 Barb. 658.
6 Mayor, Ac. of N. Y. v. Mabie, 13 N. Y. 151, rev^g 2 Duer, 401.
7 Blydenburgh v. Cotheal, 1 Duer, 176, 195, and cases cited.
8 Cowdrey v. Coit, 44 N. Y. 382, rev'g 3 Robt. 210. Compare Furnas v. Durgin,
119 Mass. 500, 8. o. 20 Am. R. 341.
9 On this subject, see also page 261 of this vol.
10 Rawle on Cov. 232. The requirement of an express request is not sanctioned
by many of the authorities, see Somers v. Schmidt, 24 Wise. 417, and page 261 of this
voL
"Id.
520 ACTIONS ON SEALED INSTRUMENTS.
If the record of the former action does not exhibit on its face
the title under which the recovery was had, the plaintiff in the
present action must, notwithstanding proper notice has been
given, prove that such title did not accrue subsequently to the
deed to himself. 1
If plaintiff does not rely on the judgment as evidence of
the adverse title, he need not prove that defendant had notice of
the suit.
35. of Seizin and Right to Convey.'} Unless plaintiff avers
a 'particular defect, in a form entitling defendant to rely on his
proving it, the burden is on defendant to prove the seizin denied
by the plaintiff ; for defendant rather than plaintiff is presumed
acquainted with the state of the title. 2 The true consideration,
and its non-payment, may be shown by parol, notwithstanding
the receipt for a different consideration in the deed. 8
36. against 2ncumbrances.~\ The burden is on plaintiff to
prove the incumbrance. 4 The injury sustained must be indicated
in the pleading to admit evidence of special damage. 5 Extrinsic
evidence that the parties did not intend the covenant to extend
to a particular incumbrance not specified, or did intend it to ex-
tend to one which is excepted, is not competent. 6 But on the
question of what is an incumbrance, within the meaning of the
covenant, evidence of the surrounding circumstances, of the re-
lation of the parties to the subject of the conveyance, of notice to
the purchaser, and of local usage, if any, is competent. 7 Evidence
of declarations of a former owner, made during his ownership
and tending to prove existence of a right of way admitted, is
competent against the. present owner; but such declarations,
tending to disprove the existence of the right of way are incom-
petent in favor of the present owner.. 8 If the breach consists in
an incumbrance of record, such as a judgment 9 or a tax sale, 10
the record, or the material part of it, must be produced or ac-
counted for.
37. for Quiet Possession or Enjoyment.] The burden is
on plaintiff to show eviction, actual or constructive, 11 unless de-
fendant has assumed the burden of proof by affirmative allega-
tions in his answer. A purchaser is presumed to know what the
1 Rawle on Cov. 232.
Potter v. Kitchen, 6 Bosw. 572. and cases cited ; Rawle on Cov. 84, 87.
8 Biqgham v. Weiderwax, 1 N. Y. 509.
Rawle on Cov. 114.
* Id. 116.
8 Harlow v. Thomas, 15 Pick 66; Rawle on Oov. 119, 120, n. ; 12 Moak"s Eng.
R. 248, n.
' Raw! eon Cov. 113.
8 Blake v. Everett, 1 Allen, 248.
9 Waldo v. Long, 7 Johns. 173 ; Cooper v. "Watson, 10 Wend. 202.
10 Kennedy v. Newman, 1 Sandf. 187.
Rawle oo Cov. 194.
COVENANTS FOR TITLE. 521
property is which he buys, unless deception is practiced upon
him. 1 JPlaintiff need not show that the paramount title was
established by judgment. 2 The judgment against the plaintiff is
competent evidence against defendant ; s but if he relies on his
surrender without judgment, he must show that the title was
paramount, and could not justly have avoided yielding. 4 It is
not enough to show that the defendants had notice of the claim
against him. 5
1 Spoor v. Green, L. R. 9 Ex. 99, 8. c. 8 Moak's Eng. 540.
* McGary v. Hastings, 39 Cal. 360, s. c. 2 Am. R. 456.
3 Rickert v. Snyder, 9 Wend. 416; and see preceding paragraphs.
4 Rawle on Cov. 150.
8 Kelly v. Dutch Church, 2 Hill, 106
CHAPTER XXVIII.
ACTIONS ON LEASES.
1. Allegation of lease. 13. Possession not esssentiaL
2. Mode of proving the contract. 14. Tenant's estoppel,
8. Conditional delivery. 15. Adverse title.
4- General rule as to oral evidence. 16. Forfeiture.
5. Parties. 17. Assignment.
6. Usage. 18. Demand.
7. Practical construction. 19. Repairs.
8. Implied covenants. 20. Surrender.
9. Identifying the premises. 21. Apportionment.
10. The date and term. 22. Payment.
11. Rate of rent. 23. Eviction.
12. Plaintiff's title. 24. Waste.
1. Allegation of leased] Under the new procedure a written
contract is admissible in evidence tinder a general allegation that
the party contracted, without indicating how, 1 and conversely if
the allegation is of a written contract, evidence of an oral con-
tract, if valid, is admissible by an amendment, 2 unless the ad-
verse party is surprised. At common law, a parol contract is not
admissible under an allegation of a specialty; 8 but the variance
may be cured by amendment, 4 if defendant has not been misled
to his prejudice. Even if the action is for use and occupation,
the court may allow a lease to be proved under amendment, and
a recovery thereon had ; 5 and conversely, if the action is on a
deed, recovery for use and occupation may be had by amend-
ment. 6 Under an allegation describing the lease as for the orig-
inal term, the lease may be admitted in evidence, though ex-
tended by virtue of a covenant therein contained, for an addi-
tional period and at a different rent. 7
Compliance with the statute of frauds need not be alleged,
but if the contract is denied or the statute of frauds pleaded,
compliance must be proved. 8
1 Note 8 below, and see Tuttle v. Flannegan, 54 N. Y. 686, affi'g 4 Daly, 92.
2 Thomas v. Nelson, 4 Law & Eq. Rep. 40 ; Houghton v. Koetiig, 18 <J. B. 235.
'Phillips & Colby Construction Co. v. Seymour, 91 U. S. (1 Otto), 646. Com-
pare Rose. N. P. 343; Dougherty v. Matthews, 35 Mo. 520, 528.
4 Houghton v. Koenig, 18 C. B. 28.
6 Bedford v. Terhune, 30 N. Y. 453, affi'g 1 Daly, 371 ; and see page 352 of this
vol.
6 Houghton v. Koenig (above).
1 Phelps v. Van Dusen, 8 Abb. Ct. A pp. Dec. 604.
8 Marston v. Sweet, 66 N. Y. 206, rev'g 4 Hun, 156. The mode of proving a
memorandum which satisfies the statute has already been indica'.ed, p. 292 of this
vol. And see Baumann v. James, L. R. 3 Ch. App. 508 ; Hand v. Hall, 25 Weekly
R. 734, s. o. L. R. 2 Exch. D. 855; Chretien T. Donney, 1 N. Y. 419; Western
Trans. Co. v. Lansing, 49 N. Y. 499.
[522]
ACTIONS ON LEASES. 523
2. Mode of proving the contract.'] Where a lease may be
proved by parol, the fact and terms of tenancy may be shown by
evidence that plaintiff informed defendant what- they would be if
he occupied, and that he thereafter did so without dissent. 1 A
memorandum of terms, read over at the time of contract, and
assented to, may be put in evidence, or may be used to refresh
the memory of a witness.* But such an unsigned paper, though
read or delivered as a description of the premises, or a staternent
of terms of letting, is not necessarily such a contract in writing
as to be the primary evidence, and exclude oral proof. 8
The fact of tenancy is conclusively proved by an adjudication
in summary proceedings between the same parties, to recover
possession for non-payment of rent. 4
If a written contract is to be proved, the mode of proof is
governed by rules already stated. 5
If the instrument be in duplicates, each containing the whole
contract, each is primary evidence against the one who signed it ; 6
and the production of the one signed by defendant, is enough,
without producing or" accounting for the other duplicate. 7 If
one party produces one of the duplicates signed by the other
party, the presumption its, that the other part, signed by himself,
is in the hands of the other party. 8
If the lease is in counterparts, one containing the stipulations
on the part of the lessor only, the other those on the part of the
lessee, both must be produced or accounted for if required, 9
whenever the whole contract is material. If the -action is on the
covenant of the defendant only, the production and proof of the
part signed by him containing it, is enough, without the counter-
part signed by the covenantee, 10 unless the terms of the counter-
part become material. The existence of the other may be pre-
sumed in the first instance ; u and this presumption excludes oral
1 Despard v. Walbridgc, 15 N. Y. 374.
1 Bolton v. Tomlin, 5 Ad. <fe El. 856.
I Ramsbottom v. Tunbridge, 2 M. & S. 434 ; Trewhitt v. Lambert, 10 Ad. <fe El.
470. And see Bolton v. Tomlin, 6 Ad. <fc El. 856.
4 Jarvis v. Driggs, 69 N. Y. 143. Contra, Boiler v. Mayor, fec. of N. Y. 40
Super. Ct. (J. <fe S.) 523. In Evans v. Post, 5 Hun, 338, it was held that the adjudi-
cation was not le<jcal evidence of the tenancy.
5 For handwriting, see pp. 391-401 of this vol. ; for rules applicable t o sealed and
witnessed instruments, see p. 498; for rules applicable to corporate contracts, see
p. 84, Ac. Under the statute of frauds an agent's authority must be in wilting. Post
v. Martens, 2 liobt. 437. But may be proved by admission. Blood v. Goodrich, 12
Wend. 625.
6 See Lewis- v. Payn, 8 Cow. 71.
1 Hallett v. Collins, 10 How. U". S. 174, 184; page 288 of this vol.; and 1
Greenl. Ev. 13 ed. 120.
8 Hallett v. Collins (above).
Dobbin v. Wntkin, Col. <fc C. Cas. 39, 8. o. 3 Johns. Cas 2 ed. 415. Contra,
Houston v. Koenig, 18 C. B. 238 ; Doe d. West v. Davis, 7 East, 363.
10 Gates v. Graham, 12 Wend. 55; Houghton v. Koeuig, 18 C. B. 235; Woodf
85, 676. And see Pearse v. Morris, 3 B. <fc Ad. 866. Compare p. 288 of this voL
II Cloves v. Willoughby, 7 Hill, 83; Mayer v. Moller, 1 Hilt. 491.
524: ACTIONS ON LEASES.
evidence in substitution for it, unless its absence is accounted
for ; and equally excludes oral evidence in variance of it. 1 De-
fendant may show that no counterpart was executed. 2
A discrepancy between duplicates may be explained by parol
evidence, showing a mistake in one. 8 But an essential discrep-
ancy between two counterparts, one of which is the consideration
for the other, BO that the contract cannot be proven without
both, is fatal, if the writing is essential under the statute of
frauds. 4 The rules as to proving modifications of such contracts,
have been already stated. 5
3. Conditional delivery. ~\ If the contract was in writing, evi-
dence of an oral agreement that it was to have no effect, or none
except on a condition which has never happened, 6 is admissible ;
but evidence of an oral agreement that it was to have only a par-
tial effect, is not. 7
4. General rule as to oral evidence to vary.~] Oral evidence
is not competent (in the absence of fraud or mistake) to show
that the parties stipulated, at or before 8 the execution of the
writing, for something contrary to what is there expressed, or to
what is legally implied. 9 But a collateral agreement may be
made in consideration of one of the parties .executing the lease
although under seal, and may be proved by parol if it is not
contradictory to the terms of the deed itself. 10 So an oral agree-
1 Claves v. Willoughby, 7 Hill, 83; Mayer v. Holler, 1 Hilt. 491.
s Woodf. 676.
3 McNulty v. Prentice. 25 Barb. 204.
4 Compare Burchell v. Clark, 2 C. P. Div. 602, 8. c. 18 Moak's Eng. 232.
5 See pp. 314 and 503 of this vol.
6 For instance, the approval of a third person. 6 El. <fe B. 370, 374; Wallis v.
Littell, 11 C. B. N. S. 369.
1 For instance, that it was made only for the purpose of securing a license, and
was to determine as soon as the premises could be sold. 2 Fost. <fe F. 86.
8 Brigham v. Rogers, 17 Mass. 571 ; D'Aquin v. Barbour, 4 La. Ann. 441.
9 See this subject on p. 295 of this vol. As for instance, that certain repairs
were to be made by the plaintiff, (Mayor, <fec. of N. Y. v. Price, 5 Sandf. 542; Brig-
ham V.Rogers [above]; Mayor v. Moller, 1 Hilt. 491 ; contra, Mann v. Munn, L.
J. 43 C. P. 241); or that lights were not to be obstructed, (Johnson v. Oppenheim, 55
N. Y. 280, affi'g 35 Super. Ct. [3 J. & S.] 440); or that a covenant in restraint of
occupation, should not be enforced so long as occupation should be orderly, (Dodge
v. Lambert, 2 Bosw. 570, 579). So where a mining: lease fixes a price for the coal
mined, it is inadmissible to prove by parol, that when the lease was preparing, the
quantity of coal to be mined under the lease was omitted at the request of the de-
fendant (the lessee), and that he, the lessee, then agreed to mine all that he could
dispose of, the lease containing no such provision. Lyon v. Miller, 24 Penn. St. 392.
10 Erskine v. Adeane, L. R. 8 Ch. App. 756, s. c. 6 Moak's Eng. 594. Thus, where
to induce a tenant to si<;n a lease which, like other leases on the estate, reserved a 1 !
game, etc., and the right to preserve and shoot, the lessor promised, that after a cer-
tain letting should shortly expire, all game should be killed down, etc. Held, that
parol evidence of this was admissible. Id. s. p. Remmington v. Palmer, 62 N. Y.
81, rev'g 1 Hun, 619, s. c. 4 Supm. Ct. (T. & C ) 696. Compare Dubois v. Kellv, 10
Barb. 496; Morgan v. Griffith, L. R. 6 Exch. 70; Angell v. Duke, 32 L. T. N. S.
320, Q. B. ; Steph. Ev. 90. A part of the apparent conflict in the decisions may be
explained, if we observe that it is one question, whether such a collateral agreement
ACTIONS ON LEASES. 525
ment to which the instrument was subsidiary, being given in part
execution of it may be proved. 1 So evidence of possession under
an oral agreement, prior to the term fixed in the written agree-
ment, is competent, for the one does not contradict the other,
although they were made simultaneously. 2 Nor does the rule ex-
clude parol evidence of the representations made as a part of the
negotiation, if adduced, not for the purpose of varying the terms
of the writing, but of showing deceit, 8 or the effect those terms
would have had if the representations had been true. 4 Evidence
of the surrounding circumstances is competent, as in the case of
other contracts. 5
5. Parties."] If the lease was made by plaintiffs, in their
individual names, a recital that they were acting as a committee
by authority of a corporate body, does not prevent them from
recovering. The principle that the lessee cannot dispute his
lessor's title applies. 6 The fact that the landlord has taken sum-
mary proceedings under the statute, against a third person, to
recover possession of the premises, does not preclude him from
showing that the defendant was, in fact, his lessee, or liable to
him under an agreement creating a tenancy. 7 The landlord may
recover if his action is on an express covenant to pay rent, though
prior to the accruing of the ?ent sued for, a renewal of the lease
was assigned to third persons, and the plaintiff accepted subse-
quent rent from them. 8
6. Usage.~] In respect to matters on which the written agree-
ment is silent, 9 as well as in ascertaining the proper interpretation
of language not having a fixed legal meaning, 1 " every demise is
open to explanation by the general usage and custom of the
country, or of the district where the land lies. Every person,
under such circumstances, is supposed to be conversant of the
custom, and to contract with a tacit reference to it. 11
may be proved for the purpose of sustaining an action for its breach ; and a different
question, whether it may be proved for the purpose of defeating an action on the
written lease.
1 Hope v. Balen, 68 N. Y. 380, affi'g 36 Super. Ct. (J. <fr S.) 458.
9 Hubbell v. Clark, 1 Hilt. 67.
3 Allaire v. Whitney, 1 Hill, 484 ; Whitney v. Allaire, 1 N. Y. 305, nffi'g 4 Den. 654.
4 Sharpy. Mayor, <tc. of N. Y. 40 Barb. 256, s. c. 25 How. Pr. 389.
5 See, for instance, Ayer v. Kobbe, 59 N. Y. 454, affi'g 36 Super. Ct. (J. <fe S.) 168.
Stott v. Rutherford, 93 U.-S. (2 Otto), 107. And see Dolby v. lies, 11 Ad. <fc
El. 835; Churchward v. Ford, 2 H. & N. 446; L. J. 26 Ex. 354. The rules as to
ornl evidence to show the real party in interest in. agreements under seal, and not
under seal respectively, are stated at pp. 298-301 and 498 of this vol. See, also,
Mason v. Breslin, 2 Sweeny, 886, 895 ; Jackson v. Foster, 12 Johns. 488.
7 La Forge v. Park, 1 Edm. 223.
8 Phelps v. Van Dusen, 3 Abb. Ct. App. Dec. 604.
9 Van Ness v. Packard, 2 Pet. 137, 148; Mangum v. Farrington, 1 Daly, 236,
238 ; and see pp. 296, 365 and 501 of this vol.
10 See, for instance, Clayton v. Gregson, 4 Nov. t M. 602 ; Wilcox v. "Wood, 9
"Wend. 346 ; and see p. 485 of this vol.
11 So held of a usage allowing a tenant to remove his building. Van Ness v.
Packard (above).
526 ACTIONS ON LEASES.
7. Practiced construction.'] An agreement additional to the
stipulations of the lease, may be inferred from the repeated de-
mand of one party and compliance therewith by the other, on a
point on which the lease is silent, for instance, the time when
rent is payable, 1 but if the lease expresses the obligation, the
conduct of the parties in departure from it, is not evidence of
a contrary agreement. 2 An unambiguous instrument cannot be
varied by evidence of the adverse party's declarations of his un-
derstanding of its terms, nor of his practical concessions during
a former quarter, 8 unless the evidence establishes an estoppel.
8. Implied covenants.'] A covenant for quiet enjoyment is
implied in every mutual contract for the leasing and demise of
land by whatever form of words the agreement is made, 4 un-
less it contains an express covenant on the subject. 5 This cove-
nant means only that tenant shall not be evicted by paramount
title. 6
There is usually, also, an implied warranty of title or power
to demise, in leases containing no express covenant 7 (except, by
statute, leases exceeding three years 8 ) ; and the existence and ex-
tent of the covenant depend on the words of demise. 9
In a lease of real property only, the common law raises no
implied warranty of tenantableness or fitness for use, 10 (although
it may be otherwise of a lease of a furnished house, 11 or of chat-
tels); nor is there any implied covenant to repair 12 or to main-
tain. 13 Where the contract of hiring contains no warranty, ex-
press or implied, that the premises are fit for the purpose for
which they are hired, the declarations of the lessor to that effect,
made at the time of the hiring, do not prove a contract. 14
A covenant on the part of the lessee to use the prem-
ises .<in a proper manner, is implied in absence of any express
covenant. 13
1 Long Island R. R. Co. v. Marquand, 6 N. Y. Leg. Obs. 160.
* Giles v. Comstock, 4 N. Y. 270. But their conduct may be evidence of their
understanding of ambiguous terms. See Pease v. Christ, 31 N. Y. 141.
3 Bigelow v. Collamore, 6 Cush. 226.
4 Mack v. Patchin, 42 N. Y. 167 (and cases cited), affi'g 29 How. Pr. 20.
5 Burr v. Sienton, 43 N. Y. 462.
6 Howard v. Donlittle, 3 Dner, 464.
* Vandekarr v. Vandekarr, 11 Johns. 122 ; Rawle on Cov. 462-8.
8 Moffat v. Strong, 9 Bosw. 67, and see page 519 of this vol.
9 Grannis v. Clark, 8 Cow. 86.
10 McGlashan v. Tallmadgc, 87 Barb. 313, and cases cited; Mayer v. Moller, 1
HUt. 491 ; Erskino v. Adeane, L. R. 8 Ch. 756, 761.
11 Compare Ceesar v. Karutz. 60 N. Y. 229 ; Wallace v. Lent, 1 Daly, 481 ; Wilson
v. Finch-H&tton, L. R. 2 Ex D. 336, and cases cited in 16 Alb. L. J. 195; 17 Id. 208;
Button v. Gerrish, 9 Cush. (Mas".) 94.
12 Howard v. Doolittle, 3 Duer, 464.
13 Erskine v. Adeane, L. R. 8 Ch. 756, 762 ; and see Gallup v. Albany Railw. Co.
65 N. Y. 1.
14 Dutton v. Gerrish, 9 Cush. (Mass.) 89, 94 ; Schermerhorn v. Gouge, 13 Abb. Pr.
815. Compare paragraph 4, n. 4.
15 Woodf. 123.
ACTIONS ON LEASES. 527
9. Identifying the premise^ If the designation of the prem-
ises is ambiguous, as, for instance, where a street number only
is used in the lease of a house, without indicating whether it was
intended to include a yard or an alley, 1 or where a building is
leased as a "Hotel," without indicating whether shops on the
ground floor were included or not, 2 oral evidence of the dec-
larations of the parties at and before the execution of the writing,
and of the usage of language, &c., is admissible. A variance in
the location 3 or quantity 4 or land held by an assignee of part of '
the premises, is not necessarily fatal.
10. The Date and Term.} Parol evideriee is admissible to
show the date of delivery of a lease, though the effect be to fix
a different time than that expressed in the lease ; 5 and a mistake
in a date may be corrected by parol. In the absence of any evi-
dence to the contrary, if a lease is expressed to take effect in
presenti^ and possession under it is averred, the prima facie pre-
sumption is that the lease and possession of the premises were
delivered on the day of the date of the lease. 6
In tenancies under agreements mentioning no time, and not
reserving an annual rent, the period fixed for payment of rent,
as monthly or weekly, &c., implies that the tenancy is of the
same duration, 7 unless otherwise regulated by statute, as in the
city of New York. 8 The fact that a notice to quit on a day
specified was served personally on the tenant, and that he made
no objection to the time, is prima facie evidence which sus-
tains a finding that the tenancy commenced and ended at that
period. 9
Where a lease is from a day named, proof of a local custom
that the term commences at noon of that day, and terminates at
noon,*is admissible ; for custom is good to authorize taking pos-
session under a lease. 10 A lessee sued for rent, upon his covenant,
is not estopped by the covenant from showing that the lessor's
estate ended before the rent accrued. 11
11. Kate of Rent^\ If the rent is not fixed by writing, it is
1 Gary v. Thompson, 1 Daly, 85 ; People ex rel. Murphy v. Gedney, 10 Hun, 151.
9 Sargent v. Adams, 3 Gray, 72, 77. So where the agreement was that " the
present lessee and occupant of the first floor," <fec., might " continue to use" the same,
it being conceded that he did not have a literally exclusive possession of the whole
first floor, parol evidence was admitted to show what he actually used and occupied
before the agreement was executed. Steffens v. Collins, 6 Bosw. 223; and see Cor-
bett v. Costello, 8 La. Ann. 427.
3 Rose. N. 1. 342.
Van Rensselaer v. Jones, 2 Barb. 643, 654.
Steele v. Mart, 4 B. A C. 272.
Rhone v. Gale, 1 2 Minn. 54.
Steffens T. Earl, 40 N. J. L. (Vroom), 128.
1 N. Y. R. S. 744, 81.
Doe v. Forster, 13 East, 405 ; Doe v. Briggs, 2 Taunt. 109.
10 Wilcox v. Wood. 9 Wend. 346.
11 Lamson v. Clarksoo, 113 Mass. 348, s. c. 18 Am. R. 498.
528 ACTIONS ON LEASES.
to be ascertained on principles stated in respect to actions for use
and occupation. If the agreement was in writing, oral evidence
that the rent, even for a particular season, was fixed by the par-
ties at a different rate from that stated in the writing, is inadmis-
sible. 1 The fact that rent was due, 2 but not the amount, 8 may be
proved by an adjudication in summary proceedings between the
same parties, to recover possession for non-payment. The- amount
may be proved by a judgment between the same parties, for the
rent of the same premises for a previous quarter. 4
12. Plaintiff'' s title.'] Where the lessor sues, the lease, 5 or
the fact of possession under an agreement of tenancy, 6 or even the
payment of rent 7 under it, is sufficient evidence of his title. In
an action against the tenant, by one claiming the reversion,
plaintiff should prove his derivative title ; 8 and if the lessor had
only a particular estate, must show its commencement, and the
authority to grant the lease. 9
13. Possession not essential.'] If an express covenant is
proved, an action for the rent does not require from plaintiff
proof of the fact of occupation or enjoyment, but the action may
be maintained though the tenant abandoned possession. 10
14. Tenanfs estoppel.'] A tenant who has entered into pos-
session, 11 or who, without actual possession, has had a permissive
potential possession, 12 whether under a written 13 or an oral lease, 14
1 Patterson v. O'Hara, 2 E. D. Smith, 28. Compare Preston v. Mercereau, 2 W.
BL 1249 ; Remmington v. Palmer, 62 N. Y. 31, rev'g 1 Hun, 619, s. c. 4 Supm. Ct. (T.
& C.) 696.
2 Jarvis v. Driggs, 69 N. T. 143.
8 Id. Contra, Brown v. Mayor, <fec. of N. Y. 6 Daly, 481.
4 Kelsey v. Ward, 38 N. Y. 83.
6 Lush v. Druse, 4 Wend. 313 ; Rose. N. P. 343.
*Id.
7 Chapman v. Beard, 3 Anstr. 942.
8 Schott v. Burton, 13 Barb. 173 ; Tayl. L. & T. 482.
Woodf. 687.
10 Gilhooley v. "Washington, 4 N. Y. 217, affi'g 3 Sandf. 330. Otherwise, in an ac-
tion for use and occupation. Id.
11 Otherwise, if he merely attorned by mistake. Rose. N. P. 335. And see 2 Abb.
N. Y. Dig. new ed. 809.
14 6 Am. Law Reg. 19.
13 Blight v. Rochester, 7 Wheat. 535.
14 The main, if not the only foundation of the rule (as to oral leases).is in the in-
justice of allowing one who obtained possession by admitting the title of another, to
deny that title, and in case of failure of proof of it, to hold the premises himself.
Hilbourn v. Fogg, 99 Mass. 12; MoflFat v. Strong, 9 Bosvv. 57; Art. in 6 Am. Law
Rev. 1. In the case of a written lease, there is the additional sanction of his formal
covenant, without violating which he cannot set up the title of another. Blight v.
Rochester, 7 Wheat. 535. For the history of the technical origin of these estoppels,
see 6 Am. L. Rev. 1. In the case of an indenture, as distinguished from a deed poll,
whatever force, if any, remains in the old doctrine of estoppel by deed, may be in-
voked. See Averill v. Wilson, 4 Barb. 180; Champlain, <fec. R. R. Co. v. Valentine,
19 Id. 484. The estoppel, if it arise from an indenture alone, must be mutual, if it
exist at all ; and if the lessor is not capable of being estopped, the tenant is not
estopped. Rowe v. Scarrot, 4 H. <fc N. 723; L. J. 28 Ex. 325. But in case of a
ACTIONS ON LEASES. 529
or who holds over without any new agreement or claim, 1 is
estopped in respect of the period during which the term 2 or the
possession, as the case may be, continued, to deny that the lessor
had title. The estoppel, when founded on possession (as distin-
guished from an estoppel by deed), is conclusive in respect to the
period of possession under the relation, after as well as during
the term expressly agreed for, being simply concurrent with the
possession. 3 But neither possession, without the conventional
relation of landlord and tenant, 4 nor the conventional relation
without the possibility of possession, 5 will raise this equitable
estoppel. If there be any estoppel without at least potential pos-
session, it must rest on the ancient technical estoppel by inden-
ture, duly pleaded.
But the tenant is not estopped to deny that, since his own
entry, his lessor's title has ceased ; and he may do this by show-
ing either that it has expired by its own limitation, or has ended
by the act of the lessor, or by eviction by title paramount. 6 To
show a change in the title once admitted is no denial, and there-
fore not precluded by the estoppel. 7 If the expiration of the
term is relied on as having ended the estoppel, it must be shown
either that the lessee surrendered possession, or attorned, 8 or at
least that he held in hostility, 9 and gave notice to his landlord
that he thereafter claimed tinder another title, the validity of
which he must be prepared to prove, 10 unless, by lapse of time, it
has become the foundation of an adverse possession which will
bar the landlord's claim. 11 When the estoppel is set up by the
assignee of the lessor, the tenant is not estopped from impeaching
the assignment; 13 and for this purpose he may show that the
lessor's title at the time of demise was a limited one. 13
An equitable estoppel of the tenant need not be pleaded ; but
is conclusive when the undisturbed possession appears in evidence
under a denial. 14 It applies to every form of action in which the
lessor, or those claiming under him, seek to assert against the
purely equitable estoppel arising from possession, mutuality is not always essential.
At least the party entitled to set it up may have an election. See Conway v. Stark-
weather, 1 Den. 113. Contra, Welland Canal Co. v. Hathaway, 8 Wend. 480.
1 Osgood v. Dewey, 13 Johns. 240.
* See Child v. Chappell, 9 N. Y. 246.
3 6 Am. Law Rev. 21.
4 Sands v. Hughes, 63 N. Y. 287 ; Buell v. Cook, 4 Conn. 238, 245.
* Andriot v. Lawrence, 33 Barb. 142.
* Heitzel v. Barber, 69 N. Y. 1 ; Hilbourn v. Fogg (above). Compare Rose. N. P.
343.
1 Despard v. Walbridge, 15 N. Y. 374; 6 Am. Law Rev. 21.
8 Miller v. Lang, 99 Mass. 13.
' Conway v. Starkweather, 1 Den. 113.
10 Miller v. Lani^ (above).
11 Willison v. Watkins, 8 Pet. 48. Compare Tompkins v. Snow, 63 Barb. 625.
19 Despard v. Walbridgo; Hilbourn v. Fogg (above).
13 Doe d. Strode v. Seat. 2 Carr. M. <fe It. (Exch.) 728, and cases cited.
14 Prevotv. Lawrence, 61 N.Y. 219; s. r. 6 Am. Law lluv. 10, 12.
34
530 ACTIONS ON LEASES.
lessee, and those holding under him, the rights reserved or pos-
sessed in the lease. 1 And it not only precludes the tenant from
proving want of title, but equally from availing himself of want
of title brought out by plaintiff's own evidence. 2 Eviction need
not be shown, if actual cessation of title is proven, and the tenant
has made a valid attornment, 8 or upon a valid claim by a third
person, under title paramount, has yielded up or abandoned pos-
session. 4 An attornment, made under proper circumstances, 8 to
one having paramount title, is equivalent to proof of going out
of possession and coming in again under the new landlord. If
the eviction was not by judgment of law, the burden is on the
tenant to prove the paramount title, and that he yielded in good
faith to compulsion.' If there was eviction by judgment of law,
evidence that the landlord was privy to the action, or had due
notice and adequate opportunity to assume charge of the litiga-
tion, renders the judgment conclusive on him as evidence of
eviction.
A mere acknowledgment or attornment by one alrea,dy in
possession, though evidence of a tenancy, does not raise a con-
clusive estoppel ; but the tenant may show in such case that the
party claiming the estoppel was a stranger to the land until the
acknowledgment or attornment, or did not legally succeed to the
original lessor, and that the tenant himself has a paramount title,
and the acknowledgment or attornment was made under mistake
or induced by fraud. 8
15. Adverse title."] Where title in a third person is compe-
tent, it should be shown by the usual muniments of title, or by
evidence of possession for such a period as raises a presumption
of title, 9 or by a former adjudication between the same, parties, or
their privies, establishing it. 10
16. Forfeiture.'} "Where the occurrence of a ground of for-
feiture has been shown, the acceptance of subsequent rent is pre-
sumptive, but not conclusive, evidence of intent to waive the
forfeiture. 11 Lapse of time, and any other circumstance render-
ing it inequitable to enforce the forfeiture, strengthens- the evi-
1 Tayl. L. & T. 485 ; Hiibourn v. Fogg (above).
Dolby v. Isles, 11 Ad. <fe E. 335; but compare 1 Greenl. Ev. 13th ed. 249,
211.
3 Jackson v. Harper, 6 Wend. 666, 6*70; and see Den v. Ashmorc, 2 Zab. 261.
4 Whalin T. White, 25 N. Y. 465.
5 See 1 N. Y. R. S. 743, 3 ; Lawrence v. Brown, 5 N. Y. 394.
6 Austin v. Ahearne, 61 N. Y. 19, per DWIGHT, C.
7 Moffat v. Strong (above); 6 Am. Law Reg. 34, 35.
8 Ingraham v. Baldwin, 9 N. Y. 47, and cases cited ; 6 Am. Law Reg. 27, and
cases cited. Compare Austin v. Ahearne (above) and Hardy v. Akerly, 57 Barb.
148.
9 Treadwell v. Brnder, 3 E. D. Smith, 596.
10 See, for instance, Yonkers <fe N. Y. Fire Ins. Co. v. Bishop, 1 Daly, 449.
11 Manice v. Millen, 26 Barb. 41 ; Dumpor's Case, 1 Smith's L. Cas/93, 100.
ACTIONS ON LEASES. 531
dence of waiver. 1 In strictness, the question is whether the
lessor has manifested an election either way, or none. 2
If defendant relies on the lessor's consent to the act claimed
to be ground of forfeiture, the burden of proof is on the defend-
ant to prove consent. 3
17. Assignment.'] Under an allegation that defendant is in
as assignee, his title as heir, 4 or liability on other equitable
grounds, 5 may, under the new procedure, be proved if amend-
ment be allowed. So, under an allegation that he was assignee
of the whole premises, proof that he was assignee of part only is
admissible. 6 The burden of proof is upon the plaintiff to prove
the assignment. 7 An assignment by writing, though not under
seal, is good. 8 But direct evidence is not required. To charge
an assignee with rent, evidence that he held himself forth as such
is enough. 9 It is competent to prove his acts and admissions
without any express assignment. 10 Having proved the lease, it is
prim a facie sufficient to show any facts from which an assign-
ment, may be inferred. 11
Defendant may prove that he is not assignee, as by showing
that the estate created by the lease declared on ceased before his
entry, 12 or that he claimed to hold under an adverse title. 13 To
entitle him to show eviction from part, as a ground of apportion-
ment, the eviction should be pleaded accordingly. 14 If the de-
fendant relies on the fact that his assignors have paid the rent,
the burden is on him to show it. 15 If he relies on the fact that he
assigned to another, that assignment may be shown by indirect
evidence, 16 as already stated. It is not necessary for him to
1 Damper's Case, 1 Smith's L. Gas. 93, 97.
s Clough v. London <fe Northwestern Railway Co. L. R. 7 Exch. 26, 84, s. o. 1
Moak'sEna:. 148, 157.
3 Lawrence v. Williams, 1 Duer, 685.
4 Derisley v. Custance, 4 T. R. 76.
5 See Mason v. Breslin, 2 Sweeny, 386, 395.
6 Van Rensselaer v. Gallup, 5 Den. 454; Main v. Davis, 32 Barb. 461. Contra,
Hare v. Cator, Cowp. 766.
7 Lansing v. Van Alstyne, 2 Wend. 561.
8 Holliday v. Marshall, 7 Johns. 211, 213. For other rules aa to proving assign-
ment, see Ch^p. I of this vol.
8 Carter v. Hammett. 12 Barb. 253 ; again, 18 Id. 608.
10 Adams v. French, 2 N. H. 387.
11 Such, for instance, as that he occupied, and either acknowledged thnt he held
under the lease, (Main v. Davis, 82 Barb. 461, and cases cited; Van Rensselner v.
Secor, Id. 469) ; or, that he paid rent upon the lease, (Bedford v. Terhune, 80 N. Y.
453, affi'g 1 Daly, 371) ; or, that bo lias claimed to be assignee of the term, (Lush v.
Druse, 4 Wend. 313); or has rented out the premises as his own, ( Armstrong v.
Wheeler. 9 Cow. 88); or even that ho is in possession, (Williams v. Woodard, 2
Wend. 487; Lansing v. Van Alstyne, Id. 561, 563; Armstrong v. Wheeler, 9
Cow. 88).
13 Williams T. Woodard, 2 Wend. 487.
13 City of Boston v. Binney, 1 1 Pick. 1.
14 Landing v. Van Alstyne, 2 Wend. 561.
15 Jones v. Ifausmann, 10 Bosw. 168.
" Carter v. Hammett, 12 Barb. 253 ; again, 18 Id. 608.
532 ACTIONS ON LEASES.
show that he has divested himself of a paper title and a legal
right. 1
Defendant is not liable on parol evidence merely that he took
a general assignment of all the lessee's property in trust? If the
lease is not specified in the assignment, the assignee in trust is
not liable without evidence manifesting an intent to accept the
lease ; 8 and he may rebut the presumption arising from his
temporary occupation, and prove that he did not accept the lease
under the assignment. 4
18. Demand.'] In an action for rent, as distinguished from
a proceeding to forfeit the term for non-payment, a demand need
not be proved. 5 At common law, where a right of re-entry is
claimed on the ground of forfeiture for the non-payment of rent,
there must be proof of a demand of the precise sum due, at a
convenient time before sunset upon the day when the rent is due
upon the land, at the most notorious place on it, though there be
no person on the land to pay. 6
Where demand is made by agent, oral evidence of authority
is enough, 7 unless it appear that the authority was in writing and
some question is made as to its terms. 8
19. Repairs^ In an action for rent plaintiff need not, in the
first instance, prove performance of his covenant to put in re-
pair. 9 A plaintiff, alleging a breach of a covenant to make
repairs, must give some evidence that they were not made, if
it be in issue. 10 If he allege that he made repairs, for which
he is entitled to recover, he must prove the affirmative, if in
issue. 11
20. Surrender : Destruction of premises."] Under the statute
of frauds, 12 which forbids any estate in lands for more than one
year, to be created or surrendered, " unless by act or operation of
law, or by a deed or conveyance in writing, subscribed by the
party " or his agent authorized, in writing, a surrender by act
or operation of law may be inferred from circumstances/ 3 and
may be proved by evidence that the parties, without express sur-
render, did some act which implies that they both agreed to con-
1 Astor v. L'Amouretix, 4 Sandf, 624 ; Carter v. Hammett, 18 Barb. 608.
* Carter v. Hammett, 12 Barb. 253.
* Lewis v. Burr, 8 Bosw. 140.
4 Bagley v. Freeman, 1 Hilt. 196 ; In re Ten Eyck <fe Choate, 7 Nat, Bankr. R 26.
6 Livingston v. Miller, 11 Tf. Y. 80.
* Prout v. Roby, 15 Wall. 471, and cases cited.
1 Sheets v. Selden's Lessee, 2 Wall. 178.
8 See pp. 241 and 480 of this vol.
' Hanger v. Edmonds, 4 Barb. 256.
10 Belcher v. M'Intosh, 8 C. & P. 720, 721.
11 See Levy v. Bond, 1 E. D. Smith, 169.
14 2N. Y.R. S. 134, 6.
13 Bailey v. Delaplaine, 1 Sandf. 5.
ACTIONS OF LEASES. 533
eider the surrender as made ; * for instance, by evidence that
with the assent of the parties, a new and valid lease, wholly in-
consistent with the continuance of the former, was made, and
possession taken under it. 2 If the unexpired term was not more
than one year, a parol surrender may be proved. 3 But abro-
gation of a written lease cannot be shown by evidence of a
mere oral disclaimer, 4 or an oral promise to release from further
liability. 5
Evidence of surrender by act of the parties, should bring the
fact home to all of them. 6 It will not be implied against the in-
tent of the parties, as manifested by their acts. 7
A parol relinquishment of part of the premises in considera-
tion of a reduction of the rent, may be proved, notwithstanding
the statute of frauds, as a lease from year to year. 8
If defendant relies on the fact that money has been or might
have been realized, by letting the premises to others when de-
fendant refused to occupy, the burden is on him to show it. 9
A written stipulation cancelling a lease, does not merge the
previous oral agreement fixing the terms of the surrender, so as
to exclude parol proof of that agreement. 10
The fact that the tenant or sub-tenant continues to occupy
part of the premises after a fire, is not of itself conclusive evi-
dence that the premises are tenantable. Evidence of the circum-
stances which induced remaining is proper. 11
21. Apportionment.'] One of two joint lessees may prove by
parol an apportionment of the premises and rent. 12
22. Payment^ Evidence of payment and acceptance of rent,
for one quarter or period, raises a legal but not conclusive pre-
sumption that previous rent had been paid. 13 This presumption
is one which requires strong evidence to rebut it. 14 Production
1 Beall v. White, 94 U. S. (4 Otto), 382, 389 ; Walker Y. Richardson, 2 M. <fe W.
882, 892.
* Coe v. Hobby, 72 N. Y. 141. affi'g 7 Hun, 159, and cases cited : Amory v. Kan-
noffsky, 117 Mass. 351, s. c. 19 Am. R. 416.
I For instance, by the substitution of another tenant, and receipt of rent from
him. Wilson v. Lester, 64 Barb. 433, and cases cited. But this is only a presump-
tion which cannot be indulged against the apparent intent of the parties. Van Rehs-
selaer v. Ponniman, 6 WencT. 569.
* Jackson v. Kisselbrack, 10 Johns. 336 ; and see Pugsley v. Aiken, 11 N. Y. 494,
rev'g 14 Barb. 114.
6 Goelet v. Ross, 15 Abb. Pr. 251.
Beall v. White, 94 U. S. (4 Otto), 382 ; s. p. Bedford v. Terhune, 30 N. Y. 453,
affi'g 1 Duly, 371.
'Coe v. Hobby (above).
8 Lounsberry v. Snyder, 81 N. Y. 514.
* Greene v. Wng^oner, 2 Hilt. 297.
10 Hope v. Balen, 68 N. Y. 380.
II Kip v. Merwin, 62 N. Y. 642 ; compare Johnson v. Oppenheim, 65 Id. 280.
15 Van Rensselaer v. Gifford, 24 Barb. 349.
13 Brewer v. Knapp, 1 Pick. 82, 336.
14 Pow. on Ev. 97.
634: ACTIONS ON LEASES.
of receipts for the former periods, not expressed to be in full, does
not suffice to rebut it. 1
Rent, even though reserved by parol, is not merged by taking
& sealed security. 8 If reserved by deed, payment is not neces-
sarily presumed from lapse of time. 8
23. Eviction.] Under an allegation of wrongful eviction by
the landlord, as a defense to claim for rent, a constructive evic-
tion may be proved. 4 A mere trespass is not enough ; 5 nor is a
failure to give possession. 6 But an eviction from part is enough, 7
and so is an obstruction to the beneficial enjoyment of the whole
property, and a diminution of the consideration of the contract,
by the landlord's acts, 8 unless the tenant remained in possession
of the entire premises until the rent fell due. 9
24. Acts of waste.] The intent is not essential ; and under an
allegation that the waste was wrongfully committed, plaintiff may
prove that it was negligently committed. 10 The opinion of a
qualified witness is competent as to the amount of waste com-
mitted, for instance, the number of acres from which timber
has been cut, and the like j 11 but not whether the cutting of tim-
ber was a benefit or injury to the estate, 12 nor, if an injury, how
much. 13 Evidence of the value of timber cut may be received,
and of what part of it was suitable for timber. 14
1 Patterson v. O'Hara, 2 E. D. Smith, 58.
* Cornell v. Lamb, 20 Johns. 407.
8 Lyon v. Adde, 63 Barb. 89.
4 Dyett v. Pendleton, 7 Cow. 727.
5 Lounsbery v. Snyder, 31 N. Y. 514, and cases cited.
6 Vanderpool v. Smith, 4 Abb. Ct. App. Dec. 461.
7 Christopher v. Austin, 11 N. Y. 216, affi'g 2 E. D. Smith, 203, 209, note ; Peck
T. Hiler, 24 Barb. 178, 8. c. 14 How. Pr. 155; compare a further decision, in 31
Barb. 116; Colburn v. Morrill, 117 Mass. 262, s. c. 19 Am. R. 415.
8 Dyett v. Pendleton, 8 Cow. 727, rev'g 4 Id. 681 ; and see 106 Mass. 201.
Edgerton v. Page, 10 Abb. Pr. 119, a. c. 20 N. Y. 281 ; 18 How. Pr. 359, affi'g 1
Hilt. 320; 5 Abb. Pr. 1 ; 14 How. Pr. 116; Academy of Music v. Hackett, 2 Hilt. 217,
and cases cited ; De Witt v. Pierson, 112 Mass. 8, s. c. 17 Am. R. 58.
10 Robinson v. Wheeler, 25 N. Y. 252.
11 Woodward v. Gates, 38 Geo. 205.
11 McGregor v. Brown, 10 N. Y. 1 14.
13 Van Deusen v. Young, 29 N. Y. 9, rev'g 29 Barb. 9 ; Robertson v. Knapp, 35
N. Y. 91, s. c. 33 How. Pr. 309.
14 Rutherford v. Aiken, 3 Snpm. Ct (T. fe C.) 60; compare Harder v. Harder, 26
Barb. 409.
CHAPTEE XXIX.
ACTIONS ON JUDGMENTS.
L GENERAL PRINCIPLES. flJ- RULES PECULIAR TO JUDGMENTS o
1. The several modes of proof. COURTS, <fec. continued.
2. Certified copies. 20. Seal.
8. Exemplifications. 21. Judge's certificate.
4. Sworn copies. 22. Presumption in favor of jumdic-
6. Imperfect records. tion.
6. Lost judgment. 23. Service.
7. Date. 24. Constructive service.
8. Identity of parties. 25. Appearance.
9. Docketing. 26. Effect of judgment
10. Impeaching. 27. Justice's judgment.
11. Reversal. 28. Former adjudication.
12. Satisfaction. 29. Appeal pending.
30. Limitations.
II. JUDGMENT OF COURTS WITHIN THE STATE.
13. The New York practice. IV. HOTTED STATES COURTS AND THK
14. Justice s judgment. JUDGMENTS.
HI. RULES PECULIAR TO JUDGMENTS OF 31 - Judgments of those courts, how
COURTS OF SISTER STATES, <fcc. . J?* el 56 16 - _
16. Different methods of proof. 32. The practice in the United States
16. What judgments may be proved courts,
under the act of Congress.
17. Requisites of proof under the act " FOREIGN JUDGMENTS.
18. Certifying officers, 33. Mode of proof.
19. Clerk's attestation. 34. Effect.
I. GENERAL PRINCIPLES.
1. The several modes of proof ?\ There are fonr methods of
proving a judgment ; viz. : by producing 1, a certified copy ; 2,
a sworn copy ; 3, an exemplification ; and, 4, the original record. 1
Oral evidence, 2 the transcript filed and docketed in another
county, 8 or the production of process issued on the judgment, 4 is
not competent except as secondary evidence after proper founda-
tion has been laid for it.
2. Certified copies^ Proof by certified copy, permitted at
common law in case of domestic judgments of courts of general
1 Lansing v. Russell, 3 Barb. Ch. 825 ; Baker v. Kingsland, 10 Pnige, 866 ; Handly
v. Greene, 15 Barb. 601. Statutes prescribing formalities for certified copies, do not
by implication affect the common law modes of proof ia other ways. Peck v. Far-
rington, 9 Wend. 94 ; N. Y. Code Civ. Pro. 962.
* Gass v. Stinson, 2 Sumn. 605.
3 Handly v. Greene, 15 Bnrb. 601. '
4 SmaUwood v. Violet, 1 Cranch C. Ct. 516.
[585]
536 ACTIONS ON JUDGMENTS.
jurisdiction, 1 is now generally, expressly sanctioned by statute,
requiring the whole record to be certified; and is usually the
most convenient. Proof of the official character of the authenti-
cating officer, his signature, and that it was made within his juris-
diction, is not necessary, except so far as made so by the statute. 2
The certificate must be under the seal of the court, if any, 8 unless
produced in the same court or a branch thereof. 4
The clerk's certificate of the existence of a judgment is not
evidence of it unless made so by statute ; 5 and statute authority
to certify a copy for specific purposes, does not authorize to make
certified copies which shall be generally admissible in evidence. 6
3. Exemplifications. .] An exemplification may be said to be
a duplicate of the record, authenticated under the great seal of
the State, or the seal of the court, with a certificate from the au-
thorities appearing to have official custody of the record, that
they have caused it to be exemplified. It is admissible without a
certificate that it has been compared and contains the whole of
the record, &c., as in case of a certified copy. 7
4. Sworn copies.'] Notwithstanding the statute, a copy may
be proved by producing it, with a witness to testify that he com-
pared it with the original record, in the proper court. But it is
essential to show, by evidence extrinsic to the paper, that the
record was found in the proper place of deposit, or in the hands
of the officer in whose custody the records of the court are kept ;
this cannot be shown by any light reflected from the record
itself. 8 If a certified copy or exemplification is rejected for de-
fect of authentication, counsel may fall back on this mode of
proof. 9
5. Imperfect records, c&c.'] Where the law does not require
a formal record to be made up, the entries which are permitted
to stand in its place are admissible ; 10 but in such case, if the
judgment be not one of the same State or of the United States,
there should be evidence of the law sanctioning such entries as
sufficiept. 11 Otherwise they are not competent u except as second-
t
1 Fort v. Burch, 6 Barb. 60, 76 ; and see Bergen v. Bradley, 86 N. Y. 316 ; U. S.
v. Percheman, 7 Pet. 85 ; but compare Errickson v. Smith, 2 Abb. Ct. App. Dec. 70.
8 Thurman v. Cameron, 24 Wend. 87 ; Hatcher v. Rocheleau, 8 N. Y. 94 ; Merritt
v. Lynn, 3 Barb. 110.
3 N. Y. Code Civ. Pro. 968.
4 Id. 959. In New York and some other States the seal may be impressed on
paper, without wax. Id. 960.
& Lansing v. Russell, 3 Barb. Ch. 325.
6 Coolidge v. N. Y. Firem. Ins. Co. 14 Johns. 814.
7 Merritt v. Lyon, 3 Barb. 110; Lazier v. Westcott, 26 N. Y. 146; Vandevoort
v. Smith, 2 Cai. 155. In the case even of an inferior domestic court, an exempli-
fication is sufficient. Vail v. Smith, 4 Cow. 71 ; Robert v. Good, 36 N. Y. 411.
8 Hntchins v. Gerrish, 52 N. H. 205, s. c. 13 Am. R. 19.
9 Seep, 23 of this vol.
10 Rose. N. P. 135 ; Philadelphia, <fec. R. R. Co. v. Howard, 13 How. U. S. 307;
Washington, <fec. Steam Packet Co. v. Sickles. 24 Id. 333.
11 Taylor v. Runyan, 3 Iowa, 474 ; 9 Id. 522.
" Levering v. Dayton, 4 Wash, C. Ct, 698. Enrollment is not necessary to make
ACTIONS ON JUDGMENTS. 537
aiy evidence. In proving a judgment had under the new pro-
ceedure, for the purpose of an action thereon, whatever is made
by law a part of the record or judgment roll should be proved ;
and this is enough in the first instance. 1 At common law it is
enough alike in case of a domestic judgment or one of a sister
State, to prove the record of judgment alone, without the writ or
other proceedings before or after judgment, 2 and defendant may
prove these if he wish. Signature of an original record by the
clerk is not essential, unless made so by statute. 8 The omission,
if a defect, is amendable. 4 To prove a judgment by confession,
the warrant or consent should also be proved. 5
The question whether the document is only an extract or a
copy of the whole record, is determined not by its appearance,
but by the attestation. 6 And, for this purpose, a certificate sub-
stantially importing that it is a faithful and complete copy is
enough, though it do not use the most appropriate words. 7
Otherwise, if the writing certified does not purport to be a
record ; 8 or if the form of the certificate is prescribed by the
statute. 9
the bill, answer, and original decree, evidence (Winans v. Dunham, 6 Wend. 47;
and see Bates v. Delavan, 6 Paige, 299; Fort v. Burch, 6 Barb. 60), unless required
by law. But that which has been enrolled cannot be contradicted or set aside by
what is not enrolled (Crosswell v. Byrnes, 9 Johns. 287 ; McKnight v. Dunlop, 4
Barb. 86 ; Waldron v. Green, 4 Wend. 409).
1 Clark v. Depew, 25 Penn. St. 509 ; Knapp v. Aboil, 10 Allen, 485 ; Barringer v.
King, 5 Gray, 9.
2 Rathbonc v. Rathbone, 10 Pick. 1 ; Miller v. White, 10 Abb. Pr. N. S. 385, s. c.
59 Barb. 434. Compare, contra, Irvine v. Lumberman's Bank, 2 Watts & S. 190;
Edmiston v. Schwartz, 13 Serg. &, R. 135 ; Ashley v. Laird, 14 Ind. 222. At com-
mon law a duly authenticated copy of parts of a record is properly admissible in evi-
dence. The whole is not necessary. It is sufficient that extracts are furnished to
show prima facie the facts sought to be proved. Gardere v. Col. Ins. Co. 7 Johns.
518 ; Packard v. Hill, 7 Cow. 434 ; 5 Wend. 375 ; see 8 N. Y. 92, and Code of Civ.
Pro. 958. If the decree or judgment shows jurisdiction and contains all the facts
required, the proceedings on which it was founded arc not essential to its compe-
tency; but if the particular issue raised is material, the pleadings, and whatever else
is relevant, should appear. Rose. N. P. 128.
8 Goelet v. Spofford, 55 N. Y. 647; Secombe v. Steele, 20 How. U. S. 94; com-
pare Morris v. Patchin, 24 N. Y. 394.
4 Van Alstyne v.. Cook, 25 N. Y. 489 ; Artisans' Bank v. Treadwell, 34 Barb. 553.
6 Rathbone v. Rathbone, 10 Pick. 1 ; Hill v. Tiernan, 4 Mo. 316 ; Rape y. Heaton,
9 Wise. 828.
Voris v. Smith, 13 Serg. <fe R. 834.
1 Thus, " a true copy ; " or, " a copy of the record ; " or, a " true transcript of the
record and proceedings " * * " as fully as they now exist among the records of
my office; " or, "that the foregoing is truly taken from the record of proceedings"
of the court ; or, " a copy of records trjily taken and correctly copied from records";
imports a complete copy, unless the contrary appears from the face of the papers.
Edmiston v. Schwartz, 13 Serg. <fe R. 135 ; Voris v. Smith, Id. 334 ; McCormick v.
Deaver, 22 Md. 187; Ferguson v. Harwood, 7 Cranch, 408; Rcbcr v. Wright, 68
Penn. St. 471 ; Case v. McGill, 8 Md. 10; Caulfield v. Bullock, 18 B. Monr. 494.
8 Ferguson v. Harwood (above).
9 The New York statute (Code Civ. Pro. 957, reproducing 3 R. S. 6th ed. 668),
requires that the person authorized to certify, must state, i:i his certificate, that it has
been compared by him with tho original, and that it is a correct transcript therefrom,
and of the whole of the original.
538 ACTIONS ON JUDGMENTS.
The fact that the judgment roll or exemplification contains
alterations or interlineations marked and verified as such by the
initials of the clerk, 1 or that the roll contains no summons, nor
the order of reference on which the judgment \vas obtained,
does not render it wholly incompetent, 5 if jurisdiction appears. 8
Amendments duly authenticated may be relied on to support the
judgment. 4 The mere fact that a paper was found on file
amongst the papers in a cause is not evidence that it is part of
the record. 5
6. Lost judgment"] Proof that the judgment roll is not found
in the office of the clerk whose duty it is to keep it 6 admits
secondary evidence of its former existence and contents. 7 A
copy of a duly authenticated copy, not apparently within the
power of the parfy to produce, may be received as secondary
evidence. 8 The destruction, or loss from the files, of the papers
by which the court acquired jurisdiction, does not divest the
jurisdiction ; for having been once there, that court is presumed
to know their contents, and may act on that knowledge, and may
resort to parol proof to aid its memory. 9
7. Date~\ The record, ought to indicate the time and place
of the recovery of the judgment. 10 The text of the record is evi-
dence of the time of rendition, and cannot strictly be corrected
by the date of the signing, except on amendment in the court
where the judgment was had ; u but the error may be shown and
cured by the clerk?s certificate. 12 If the date be blank, it may be
supplied by extrinsic evidence in aid of the record. 13 In the ab-
sence of proof of the hour, the judgment may, for reasons of
public policy, be presumed to have been entered at the beginning
of the day."
8. Identity of parties^ In addition to the principle already
1 Lazier v. Westcott, 26 N. Y. 146.
9 Calkins v. Packer, 21 Barb. 275. Contra, James v. Stookey, 1 Wash. C. Ct. 830.
3 See the statute of^eofails, N. Y. Code of Civ. Pro. 721.
4 Wetherill v. Stillman, 65 Penn. St. 105.
5 Sargeant v. State Bank of Indiana, 12 How. U. S. 371, affi'g 4 McLean, 339.
Compare Bosworth v. Vanderwalker, 53 N. Y. 597.
6 N. Y. Code Civ. Pro. 921.
' Mandeville v. Reynolds, 68 N. Y. 528, 533, affi'g 5 Hun, 338.
8 Cornett v. Williams, 20 Wall. 226.
Railw. Co. v. Ramsey, 22 Wall. 322 ; and see 6 Cent. L. J. 100.
10 Phelps v. Tilton, 17 Ind. 427.
11 Vail v. Smith, 4 Cow. 71. As to effect of a date apparently on a dies non, see
Moore v. Tracy, 7 Wend. 229 ; and Re Worthington, 16 Alb. L. J. 63.
12 Jackson v. Davis, 18 Johns. 7.
13 See McKnight v. Devlin, 52 N. Y. 399. The fiction of law, that a term consists
of but one day, cannot be invoked to antedate the judicial rejection of a claim, so aa
to render operative a grant which would otherwise be without effect. Newhall v.
Sanger, 92 U. S. (2 Otto), 761.
" Boyer's Estate, 51 Penn. St. 432, STRONG, J., dissented.
ACTIONS ON JUDGMENTS. 539
stated, 1 it may be observed that, if the names are different, ex-
trinsic evidence of identity is competent 2 and necessary. 3
9. Docketing.} Docketing may be proved by evidence that a
transcript of judgment was received by the county clerk, and that
he furnished a transcript thereof, which is produced. 4
10. Impeaching.} In any action, on any judgment recovered
in any court, jurisdiction may always be impeached, 5 unless the
party is estopped. 6 At common law a judgment of a court hav-
ing jurisdiction (except judgments by cognovit or warrant of at-
torney) could be impeached by a party, only by error, new trial
or bill in equity. 7 Under the new procedure, any ground which
would sustain a bill in equity for relief, 8 may be proved under a
proper answer, in defense of an action on the judgment. 9 A
denial of the existence of the judgment does not admit evidence
in contradiction of the record, that it was without jurisdiction, 10
but an answer putting in issue its legality will. u
11. Reversal.} Reversal may be proved under a general de-
nial ; 12 vacatur, it is held, should be specially pleaded, 13 but amend-
ment should be allowed if defendant is not misled. If the judg-
ment is proved by record, an order or minute, not of record, is not
competent primary evidence of reversal. 14
12. Satisfaction.} Although accord and satisfaction is not
enough, 15 payment may be proved by parol. The issue of execu-
tion is not presumptive evidence of payment, 18 but may be with
further evidence of levy and of circumstances from which to
infer satisfaction. 17 A satisfaction piece is evidence of payment, 18
but not conclusive. 19
1 Page 101 of this vol.
8 Evans v. Patterson, 4 Wall. 231 ; Steveli6 v. Read, 2 Wash. C. Ct. 274.
3 Berber v. Kerzinger, 23 III. 346; Williams v. Bankhead, 19 Wall. 570.
4 Lewis v. Ryder, 13 Abb. Pr 1.
8 Thompson v. Whitman, 18 Wall. 457. Including fraud in inducing the exercise
of jurisdiction. Stanton v. Crosby, 9 Hun, 370. Contra, sea Luckenhach v. Ander-
son, 47 Penn. St. 123 ; Adams v. Saratoga <fe Washington R. U. Co. 10 N. Y. 328.
6 Dyckman v. Mayor, <fec. of N. Y., 5 N. Y. 434, affi'g, 7 Barb. 498; Sheldon v.
Wright, 5 N. Y. 497.
1 See Christmas v. Russell, 6 Wall. 305.
8 See Crim v. Handley, 94 U. S. (4 Otto), 652 ; Stilwell v. Carpenter, 2 Abb. New
Cas. 238 ; and see 7 Am. R. 136, n.
9 Mandeville v. Reynolds, 68 N. Y. 528, 512, affi'g 6 Hun 338 ; Dobson v. Pearcc,
12 N. Y. 165; Rogers v. Gwinn, 21 Iowa, 58. Compare Stantt>n v. Crosby, 9 Hun,
870. The defendant is not necessarily entitled to read the testimony contained in
the record in support of impeachment. Tappan v. Beardsley, 10 Wall. 427.
10 Hill v. Mendenhnll, 21 Wall. 455.
11 Kinsey v. Ford, 38 Barb. 195.
19 Briggs v. Bowen, 60 N. Y. 454.
13 Carpenter v. Goodwin, 4 Dalv, 89. Contra, Kinsey v. Ford, 38 Barb. 195.
14 McKnight v. Dunlop, 4 Barb" 36 ; Niles v. Totraan, 3 Id. 594.
1& Mitchell v. Hawley, 4 Den. 414, and cases cited.
" Runyan v. Weir, 8 N. J. L. (Halst.) 286.
11 Miller v. Smith, 16 Wend. 425, 445, rev'g 14 1:1. 188.
18 Booth v. Fanners' <fe Mechanics' Bank, 50 N. Y. 896, rev'g 4 Lana. 801.
19 Lownds v. Remsen, 7 Wend. 85.
510 ACTIONS ON JUDGMENTS.
*"*"(
II. JUDGMENTS OF COURTS WITHIN THE STATE.
13. The New York practice,^ The most convenient way, in
case of courts of record, is to produce a copy of the judgment
roll, certified as already stated. 1 The jurisdiction of the superior
city courts is now presumed by force of the statute. 2 The judi-
cial presumptions of jurisdiction, which are stated below, respect-
ing judgments of sister States, 3 are in their nature equally appli-
cable in favor of domestic judgments.
14. Justice's judgment.'] A judgment of a justice of the
peace in New York, is proved in a court of the same State, by a
transcript from his docket, subscribed by him, and authenticated
by a sealed certificate of the county clerk, to the effect that the
person subscribing the transcript was, at the date of the judg-
ment therein mentioned, a justice of the peace of that county,
and that the clerk is acquainted with his handwriting, and verily
believes that the signature to the transcript is genuine, 4 provided
the transcript shows upon its face that he had jurisdiction both
of the person and the subject-matter. 5 The transcript is conclu-
sive evidence of all but the jurisdictional facts. 6
Or it may be proved by producing the docket, and proving it
by his oath ; 7 or, in case of his death or absence, producing the
original minutes, with proof of his handwriting, or a copy of the
minutes sworn to by a witness as having been compared with
the original minutes, with proof that they were in his hand-
writing. 8
It may be proved by the parol testimony of the justice only
by consent. 9 In a second action before the same justice, his
docket, or a transcript certified by him, is evidence, per se, of the
former judgment. 10
The justice's acquiring jurisdiction of the person may be
proved in a collateral proceeding, by either 1. The constable's re-
turn ; 2. An entry on the justice's docket, made at the time ; 3.
Direct evidence of the service ; or 4. The testimony of the jus-
tice, showing positively that the service was proved before him. u
1 Paragraph 2 ; Code Civ. Pro. 933, 962.
2 Code Civ. Pro. 266.
3 Paragraphs 22 to 25.
4 N. Y. Code Civ. Pro. 939.
6 Benn v. Borst, 6 Wend. 292.
6 Hard v. Shipman, 6 Barh. 621 ; and see Brintnall v. Foster, 7 Wend. 103 ;
Smith v. Compton. 20 Barb. 262.
7 N. Y. Code Civ. Pro. 940 ; Boomer v. Laine. 10 Wend. 525. Notwithstanding
that on removing from the town he failed to deposit his docket-book with the town'
clerk. Carshore v. Huyck, 6 Barb. 583.
8 N. Y. Code Civ. Pro. 939 ; Baldwin v. Prouty, 13 Johns. 430 ; Pratt v. Peck-
ham, 25 Barb. 195.
9 Lawrence v. Houghton, 6 Johns. 129 ; "Webb v. Alexander, 7 Wend. 281.
10 Smith v. Frost, 5 Hill, 431 ; Groff v. Griswold, 1 Den. 432 ; N. Y. Code Civ.
Pro. 938.
11 Reno v. Pinder, 20 N. Y. 298, reVg, 24 Barb. 423.
ACTIONS ON JUDGMENTS. 541
A judgment of a district court of the city of New York, is
proved by producing the summons, with entry of judgment in-
dorsed. 1
III. RULES PECULIAR TO JUDGMENTS OF COURTS OF SISTER
STATES, &o.
15. Different methods of proof ^ Judicial proceedings of any
other State in the Union, are entitled to full faith and credit un-
der the constitution, 2 but to secure the constitutional effect for a
judgment of a sister State, it must be proved in conformity with
the act of Congress, 3 if it is within the act. 4 The act of Congress
passed to give effect to this provision, 5 does not enable us to prove
all judgments of sister States, but only those of courts having a
record and a clerk; but, on the other hand, the mode of proof it
gives extends to judgments of courts of territories, including the
District of Columbia, 6 and those of any country under the juris-
diction of the United States. The act does not exclude other
modes of authentication. 7
The other modes are, 1. That prescribed by the law of the
forum ; 8 2. Those sanctioned by the common law, 9 viz., exempli-
fication under the great seal of the State; 10 original record,
proved by witness ; u and, examined copy proved by a witness
who compared it. 13
16. What judgments may be proved under the act.'] A judg-
ment of any court of record 1S (or a court of chancery though not
1 Carpentier v. Willett, 6 Bosw. 25, s. c. 18 How. Pr. 400.
* Const, of U.S. art. 4, 1.
3 Act of May 26, 1790 ; same stat. R. S. U. S. 905.
4 DAVIS, J., Caperton v. Ballard, 14 Wall. 242; Homer v. Spellman, 78 111. 206.
And to secure a review in the U. S. Supreme Court of a refusal of the right, the rec-
ord must show that the provision of the constitution and the cl.iiin thereon were
brought to the notice of the State court. Hoyt v. Shelden, 1 Black, 618.
6 U. S. R. S. 905.
Hughes v. Davis, 8 Md. 27.
7 Kingman v. Cowles, 103 Mass. 283; Snyder v. Wise, 10 Penn. St. 157; Ellmore
v. Mills, 1 Haywood N. C. 359 ; Baker v. Fields, 2 Yeatos, 532. Contra, State v.
Twitty, 2 HawTcs N. C. 441 ; Tarleton v. Briscoe, 1 Marsh. (Ky.) 66.
8 Latterett v. ook, 1 Iowa, 1 ; English v. Smith, 26 Ind! 445 ; Phelps v. Tilton,
14 Id. 222; Ault v. Zehring, 38 Id. 429; Dragoo v. Graham, 17 Id. 427 ; Galling v.
Robbins, 8 Id. 184; Snyder v. Wise, 10 Penn. St. 157; Coffee v. Nealy, 2 Heisk.
(Tenn.) 804 ; Capen y. Emery, 5 Mete. (Mass.) 436 ; Simons v. Cook, 29 - Iowa, 824 ;
Railroad Bank v. Evans, 32 Id. 202 ; Caulfield v. Bullock, 18 B. Mour. (Ky.) 494 ;
Mangun v. Webster, 7 Gill. (Md.) 178.
9 Goodwyn v. Goodwyn, 25 Geo. 203 ; Hutchins v. Gerrish, 52 N. II. 205, 8. c.
13 Am. R. 19 ; Mahony v. Gunther, 10 Abb. Pr. 435 ; Peck v. Farrington, 9
Wend. 44.
10 Price v. Higgins, 1 Litt. (Ky.) 273 ; Haggin v. Squires, 2 Bibb, 334.
11 Kean v. Price, 12 Serg. fe R. 203.
12 Hutchins v. Gerriah (above). Some courts also allow proof by a certificate
conforming to tho law of the State where the judgment was rendered. Belton v.
Fisher, 44 111. 32 ; and see Williams v. Wilkes, 14 Penn. St. 228 ; Bissell v. Edwards,
5 Day, 263.
15 Thurber v. Blackbourne, 1 N. II. 242; Judkins v. Union Mut. Fire Ins. Co. 37
Id. 470, According to the language of some authorities the record is not admissible
54:2 ACTIONS ON JUDGMENTS.
technically a conrt of record 1 ), within the United States, 8 or dock-
eted in the office of a clerk of such a court, under a statute declar-
ing that eo docketed it shall be considered a judgment of that
court, 3 may be proved under the act.
17. Requisites of proof under the act.~] Four things consti-
tute this proof, 1. " A copy of the record or judicial proceeding
at length?
2. " The attestation of the clerk ; and
3. " The seal of the court annexed, if there be a seal, together
with;
4. "A certificate of the judge, chief justice, or presiding mag-
istrate, as the case may be, that the said attestation is in due
form." 5
18. Certifying officers."] Where a judge is ex officio clerk,
either by express statute or by implication as may be the case
with a surrogate, or a justice of the peace whose court is a court
of record, he may 6 and must 7 certify in each capacity. The at-
testation and certificate must make the identity of the certifying
officers clear. 8 If there has been a substitution of courts and
transfer of record, the clerk and judge of the succeeding court
may certify; 9 and a statement in the certificate of the clerk 10 or
unless founded on personal service or appearance. The better view is that this goes
to the effect of the judgment, not to the admissibility of the document in evidence.
Even if the rule be to some extent sound, it is too broadly stated, for a judgment on
an award of arbitrators under the statute is admissible. Steeve v. Tenney, 50 N. H.
461. But a replevin bond declared by statute to have the effect of a judgment, is
not within the act. Foote v. Newell, 29 Mo. 400.
There is no presumption as to whether a justice's court is or is not a court of rec-
ord within this rule. The State statute should be proved to show the fact. Pelton
v. Platner, 13 Ohio, 209.
A new record made by order of court, of a lost or destroyed judgment, may be
authenticated umltr the act of Congress. Robinson v. Simmons, 7 Phila. 1 27. A
judgment of a proper court, though rendered by a temporary judge, is within the
act (Walker v. Sleight, 30 Iowa, 310); but a judgment of special commissioners is
not (Taylor v. Barren, 30 N. H. 78); unless by reason of its record being by law
part of the records of a court. Taylor v. Barren, 35 Id. 484.
1 McKim v. Odorn, 12 Me. 94; Low v. Mussey, 41 Vt. 393; Evans v. Tatem, 9
Serg. & R. 852 ; Moore v. A die, 18 Ohio, 430.
* Or a country subject to its jurisdiction. TJ. S. R. S. 9f>5. Including courts of
the United States. Buford v. Hickman, Hempst. 232. A judgment of a State court
may be thus proved although at the time the judgment was rendered the State was in
secession. Steeve v. Tenney, 50 N. H. 461. But the effect of such judgment ia
another question. Pennywit v. Kellogg, 1 Cin. Super. Ct. 17 ; Penny wit v. Foote, 27
Ohio St. 600. The question of full faith and credit is another matter.
8 Upham v. Damon, 12 Allen, 98 ; s. P. Clemmer v. Cooper, 24 Iowa, 185. Com-
pare Aldrich v. Chubb, 35 Mich. 350.
4 A copy from the minutes is not admissible tinder the act. Pepin v. Lachen-
meyer, 45 N. Y. 27 ; Ferguson v. Narwood, 7 Cranch, 408.
6 U. S. R. S. 905.
8 Van Storch v. Griffin, 71 Penn. St. 240; Bissell v. Edwards, 5 Day Conn. 363 ;
Martin v. Wells, 43 Vt. 428.
1 Duvall v. Ellis, 13 Mo. 203 ; Catlin v. Underhill, ,4 McLean, 199.
8 Kirkland v. Smith, 2 Mart. La. N. S. 497; Harper v. Nichol, 13 Tex. 161;
Phelps v. Ti'.ton, 14 Ind. 222 ; Geron v. Felder, 15 Ala, 304.
9 Thomas v. Tanner, 6 Monr. 52 ; Capen v. Emery, 5 Mete. (Mass.) 436 ; Man- .
ning v. Ilogan, 26 Mo. 570.
J Darrah v. Wilson, 36 Iowa, 116; Gatling v. Robbins, 8 Ind. 184.
ACTIONS ON JUDGMENTS. 543
judge 1 showing the transfer of jurisdiction and change of name
and seal, is sufficient prima facie, on those points, without other
proof of the law. 2 But this is not essential. The court may even
presume a change in the legislative apportionment of districts, in
order to render the record and the certificate consistent. 3
19. Clerk's attestation.'] The clerk's attestation is to be in a
form sanctioned by the local law under which he acts ; but the
judge's certificate is conclusive evidence that it is so. The use o r
the word " record " is not essential. 4 It need not certify to the
official character of the judge who authenticates the clerk's attes-
tation; 5 but so doing does not prejudice. 6 An attestation signed
by a deputy clerk is not sufficient, although the deputy clerk be
authorized by the law of the State to certify, 7 and the judge's
certificate states that he is. 8
20. Seal.] The seal should be affixed to the clerk's attesta-
tion or to the.record itself ; rather than to the judge's certificate
attached. 9 If there be no seal that fact should be stated in the
certificate of the clerk or judge. 10 A statement in an attestation
expressed to be by the clerk of the court, that it is the seal of his
office as such, sufficiently imports that it is the seal of the court. 11
21. Judges certificate^ The certificate of the judge is indis-
pensable ; 12 and should be annexed to the copy record. 13 The rec-
ord or certificate must indicate that the certifying officer was the
judge, chief justice or presiding magistrate. 14 His description as
such appearing either upon the record or the certificate, is enough. 15
If it appear either by the certificate or the record that there was
more than one judge, it must also appear that the certifying
judge was the chief justice or presiding magistrate 16 of the court, 17
or was a legally equivalent officer, 18 or that there was no such of-
I Capon v. Emery (above).
* Gatling v. Robbing (above).
8 Hatcher v. Rocheleau, 18 N. Y. 86.
* Grover v. Grover, 30 Mo. 400.
6 Gavit v. Snowhill, 2 Dutch. 76.
8 Young v. Chandler, 13 B. Mon. 252.
* Lathrop v. Blake, 3 Penn. St. 383. Contra, Greasons v. Davis, 9 Iowa, 219.
8 Morris v. Patchin, 24 N. Y. 894.
* See Turner v. Waddington, 3 Wash. C. Ct. 126.
10 Kirkland v. Smith, 2 Mart. La. N. S. 497 ; Alston v. Taylor, 1 Hnyw. (Tenn.) 885.
11 Clark v. Depew, 25 Penn. St. 509; Coffee v. Nealy, 2 Ueisk. (Tenn.) 304.
19 Hutchins v. Gerrish, 52 N. H. 205, s. c. Am. R. 19, and cases cited; Barbour v.
Watts, -2 Mars'i. (Xy.) 290 ; Craig v. Brown, Pet. C. Ct 352.
13 Norwood v. Cobb, 20 Tex. 588.
14 Kirkhnd v. Smith, 2 Mart. La. N. S. 497 ; Settle v. Alison, 8 Geo. 201.
" Mudd v. Beauchamp, Litt. Sel. Cas. 142.
18 Stephenson v. Bannister, 3 Bibb (Ky.) 369.
II Settle v. Alison, 8 Geo. 201 ; Allen v. Allen, Min. (Ala.) 240.
18 A description that imports merely the fact of having presided (Stephenson v.
Bannister, 3 Bibb [Ky.], 369) ; or of seniority (Id.); or of being the presiding magis-
trate of the county, not of the court (Settle v. Alison, 8 Geo. 201). is not enough.
But a de scrip tiun which is apparently a legal title of the head of the court, such as
544 ACTIONS ON JUDGMENTS.
ficer. 1 If there is nothing in the record or certificate to indicate
that there was more than one judge of the court, it will not be
presumed that there was another ; out a certificate by the judge,
whether stating that he is sole judge 2 or not, 8 is admissible ; and
the law of the State may be produced to show whether there
was more than one, 4 and whether there was a chief justice or pre-
siding magistrate. 5
It is essential that the certificate state that the attestation of
the clerk is in due form. 6 On this point it is conclusive. 7
The certificate itself is presumptive proof of the official char-
acter of the certifying magistrate. 8 It need not certify to the
clerk's official character, 9 nor to his signature, nor to the seal. 10
The fact that its date is later than that of the clerk's attestation is
held not an objection, even though it state that the clerk is clerk,
not that he was. 11
22. Presumption in favor of jurisdiction.] Xhe whole rec-
" President" of the court, is (Gavit v. Snowhill, 2 Dutch. 76. Contra, Hudson T. Daily,
13 Ala. 722). So if the court is chancery, tho chancellor's certificate is enough
(Scott v. Blanchard, 8 Mart. La. N. S. 303).
1 Slaughter v. Cunningham, 24 Ala. 261.
8 Van Storh v. Griffin, 71 Penn. 240; Pearl v. Wellmann, 3 Gilm. 311.
8 Central Bank v. Veasey, 14 Ark. 672; Butler v. Owen, 2 Eng. (Ark.) 369.
4 Bennett v. Bennett, Deady, 299.
6 Foster v. Taylor, 2 Overt. (Tenn.) 191, and see Huff v. Campbell, 1 Stew. <fe P.
(Ala.) 643.
6 Smith v. Blagge, 1 Johns. Gas. 238 ; Trigg v. Conway, Hempst. 538 ; Craig v.
Brown, Pet. C. Ct. 352 ; Duvall v. Ellis, 13 Mo. 203 ; Snyder v. Wise, 10 Penn. St. ] 57.
It is not necessary to say " in due form of law." Blair v. Caldwell, 3 Mo. 353 [249] ;
Grover v. Grover, 30 Mo. 400.
7 Hatcher v. Rocheleau, 18 N. Y. 86, and cases cited.
8 Hatcher v. Rocheleau, 18 N. Y. 86.
9 Ducommon v. Hysinger, 14 III 249; McQueen v. Farron, 4 Mo. 212; Linch v.
McLemore, 15 Ala. 632.
10 Cases in note (above).
11 Lothrop v. Blake, 3 Penn. St. 483.
12 The great conflict of opinion presented in the books, on this point, and on the con-
nected question of the effect of a judgment, prevents the reader from reaching a firm
conclusion as to how far he may rely on this presumption, unless he takes care to
appreciate the change in the interpretation of common law rules which a century of
experience under the American judicial organization and practice has wrought.
Anciently, tribunals of special statutory origin and powers were not favored with
this presumption by the great courts which represented the king and derived their
authority from the royal writ; but by far the greater number of American courts of
general jurisdiction, although proceeding by personal service and hearing, according
to the methods of the great common law and equity courts, have a statutory origin,
and rely upon the statute for the definition of their powers. Moreover, the univer-
sality of written records has confused the line of distinction between courts of record
and not of record. Again, a judgment, once considered to be the voice of the court,
and therefore the most solemn of utterances, importing absolute verity, is recognized,
under the new procedure, as the act of the attorney, done under the supervision or
sanction of the court or its clerk ; and hence is open to inquiry on almost every
point except the merits of the adjudication and the formality of proceeding and suffi-
ciency of evidence by which that adjudication was reached. Lastly, great advance
has recently been made in the application of the constitutional rule of " full faith and
ACTIONS ON JUDGMENTS. 545
ord of the proceedings on which the judgment depends should
be produced, in order to show how far it may be conclusive. The
transcript must show that the proceedings are clothed with the
forms necessary to the validity of a judgment in the State from
which it comes. 1 Subject to this general rule, which, of course,
involves a consideration of the requisites of a judgment by the
law of the sister State, the following presumptions apply. Re-
citals of jurisdictional facts in the judgment are presumptive, but
not conclusive evidence of those factsX To render the judgment
presumptively valid, it is enough, in the first instance, if it ap-
pear either from averment or proof in the record, that the court
had jurisdiction of the subject, and of the parties, 3 and that the
judgment was actually rendered. The courts may take judicial
notice as to whether the court of the other State is by its law a
court of general jurisdiction ; 4 or whether it had jurisdiction of
a special and statutory proceeding ; 5 and it is its duty to do so if
the record is proved under the act of Congress.
If the court be one of general jurisdiction in respect of sub-
jects, 6 and proceeding within the general scope of its power,
although it be a local court, 7 the law presumes that it had juris-
diction of the subject-matter, 8 and that it acquired jurisdiction of
the person, 9 unless something to indicate the contrary appears in
the record. 10 The same principle applies, even though the pro-
ceeding be under a special statute, or in the exercise of probate
or admiralty jurisdiction, 11 if only it be by service of process per-
sonally or in rem, in substantial accord with common law or
equity principles as to acquiring jurisdiction by personal service
credit." The rules of presumption stated in the text are in consonance with the
latest decisions of our courts having highest authority on these questions, bat numer-
ous earlier cases, contrary to these conclusions, which space does not allow us to cite,
may be found in the reports.
1 McLaren v. Kehler, 23 La. Ann. 80, s. c. 8 Am. R. 591.
Porter v. Bronson, 19 Abb. Pr. 236, 8. c. 29 How. Pr. 292.
3 Maxwell v. Stewart, 22 Wall. 77; Sweeny v. Lomme, Id. 213.
4 Rae v. Hulbert, 17 111. 672; Butcher v. Bank of Brownsville, 2 Kans. 70; Munn
v. Sturges, 22 Ark. 389; Buffutn v. Stimpson, 5 Allen, 691 ; Clarke's Adm'r v. Day,
2 Leigh (Va.), 172 ; Kemp v. Mundell, 9 Id. 12 ; Coffee v. Nealy, 2 Heisk.(Tenn.) 804.
6 Folger v. Columbian Ins. Co. 99 Mass. 267 ; 8. p. Mills v. McCabe, 44 III. 194.
6 For the distinction between the territorial and the subject limits of jurisdiction,
see Landers v. The Staten Island Ferry Co. 18 Abb. Pr. N. S. 338.
'Such as the usual American circuit courts, courts of common pleas (Harvey v.
Tyler, 2 Wall. 328) ; and although it be subject to appeal (Id.). Contra, McLaughlin
V. Nichols, 13 Abb. Pr. 244.
8 Unless it be of a nature not cognizable without statute authority, such as divorce.
Commonwealth v. Blood, 97 Mass. 638.
9 Voorhees v. Bank of U. 8. 10 Pet. 449 ; Harvey v. Tyler, 2 Wall. 842 ; Galpin
v. Page, 18 Id. 360; Reber v. Wright, 68 Penn. St. 471; Dunbar v. Ilallowell, 34
111. 168; Wilcox v. Knssick, 2 Mich. 166. Compare City Bank v. Dearborn, 20 N. Y.
244. This presumption avails even against infant defendants. Bosworth v. Vande.
walker, 63 N. Y. 597.
10 Galpin v. Page, 18 Wall. 360.
" Harvey v. Tyler, 2 Wall. 322.
35
546 ACTIONS ON JUDGMENTS.
and opportunity of hearing ; l but if the statute forbids a judg-
ment except on certain conditions, the record should show the
existence of the conditions. 2
If the court be an inferior court of special and limited juris-
diction, neither jurisdiction, 8 nor the want of it, 4 is presumed.
Kecitals of the jurisdictional facts, if contained in the record, are
(under the rule of full faith and credit), 6 usually presumptive,
but never conclusive, 6 evidence of such facts. If the recitals are
lacking, the fact may be supplied by extrinsic evidence, 7 unless
the proceeding is a special statutory one in derogation of the
common law, and exercised in a summary manner. In that case,
whatever the court, these presumptions cannot be relied on. 8
In respect to all the classes of courts and proceedings I have
mentioned, if jurisdiction is once thus established, a conclusive
presumption arises that it was exercised regularly and without
error, 9 except in the case of a judgment by confession, respecting
which the presumption is not conclusive as to legality.
The ordinary presumption that a public officer has done his
duty cannot supply the absence of evidence of a vital jurisdic-
tional fact in any judgment. 10 But where the substantial fact is
shown, the presumption may supply details of time, place, and
manner, although these be necessary to the validity of the act. 11
23. Service.] When the record sets forth the manner of the
service, courts of another State will examine it to see if it gave
jurisdiction. 12 The record is not unavailing because the only proof
of service is by an informal return, 13 nor because defendant's first
name is stated by initial only. 14 If an official return of service is
signed by deputy, it is presumed that he was authorized. 15 A
general indication of service without saying on all, implies service
in all ; 16 but a statement of service on a part, implies non-service
of the others. 17 A general statement of service implies that serv-
1 Harvey T. Tyler, 2 Wall. 342; Galpin v. Page, 18 Wall. 850; Potter v. Mer-
chants' Bank, 28 N. T. 641.
4 Allen v. Blunt, 1 Blatchf. 480 ; Harvey v. Tyler (above).
People v. Van Alstyne, 32 Barb. 181.
4 Reno v. Pinder, 20 N. Y. 298, and cases cited, rev'g 24 Barb. 423.
8 Paragraph 15.
6 Bolton v. Jacks, 6 Robt. 166, 200.
7 Van Deusen v. Sweet, 51 N. Y. 378; and see Bolton v. Jacks (above). Contra,
Simmons v. De Barre, 4 Bosw. 548, s. c. 8 Abb. Pr. 269, affi'g 6 Id. 188 ; Powers v.
People, 4 Johns. 292.
Harvey v. Tyler (above).
Comstock v. Crawford, 3 Wall. 896 ; Lynch v. Bernal, 9 Id. 815.
10 See Improvement Co. v. Munson, 14 Wall. 550; and p. 119, n. of this vol.
11 Sheldon v. Wright, 7 Barb. 39; and see p. 202 of this voL
" Ewer v. Coffin, 1 Cush. (Mass.) 23.
18 Such as "served" (Latterett v. Cook, 1 Iowa, 1); or "executed" (Welson v.
Jackson, 10 Mo. 329; Blackburn v. Jackson, 22 Id. 308).
14 Martin v. Barron, 37 Mo. 301.
15 State v. Williamson, 57 Mo. 192. Compare Bosworth v. Vandewalker, 63 N. Y.
697.
' Bosworth v. Vandewalker, 63 N. Y. 697 ; Secrist v. Green, 3 WalL 761.
" Galpin v. Page, 18 WaJL 351 ; Rape v. Heaton, 9 Wise. 328.
ACTIONS ON JUDGMENTS. 547
ice was made at a proper place, 1 and in a proper manner; 2 but a
statement of service at a place without the jurisdiction, implies
that no service of the same defendant was made within the juris-
diction. 3
24. Constructive service*'] Neither constructive service on a
non-resident 5 (whether by publication, 6 attachment of property, 1
leaving at abode, 8 or by personal service on defendant's joint ob-
ligor), 9 nor actual notice to any defendant without service, 10 nor
actual service without the State, 11 (though it be sufficient to give
jurisdiction in rem)^ 2 is sufficient to make the judgment evidence
of a debt against defendant. 13 Evidence in the record, or extrin-
sic to it, that the defendant was, at the time of the alleged service
upon him, beyond the reach of the process of the court, raises a
presumption of want of jurisdiction for this purpose. 14
If regular constructive service is shown, it not appearing
whether the person so served was a resident or not, juris-
diction is presumed, if residence, domicil or citizenship could
give it, and the burden is on defendant to. show the contrary."
No substantial element of constructive service will be presumed
in aid of the jurisdiction ; 16 but if substantial service, by publica-
tion or otherwise, appears, 17 and the court rendering judgment
declared the proof of regularity sufficient, the existence of inci-
dental facts may be presumed in aid of its jurisdiction. 18
1 State v. "Williamson, 67 Mo. 192; Knowles v. Gas-light Co. 19 Wall. 61.
s Lackland v. Pritcbett, 12 Mo. 484.
8 Galpin v! Page, 18 Wall. 350. For the mode of proving territorial boundaries,
see United Stales v. Jackalow, 1 Black. 484, 487.
4 For cases on constructive service, see Earle v. McVeigh, 91 U. S. (1 Otto), 603.
5 Knowles v. Gas-light Co. 19 Wall. 61. As to constructive service on residents,
see Henderson v. Stamford, 105 Mass. 504 ; Stockwell v. McCraken, 109 Mass. 84 ;
Holt v. Alloway, 2 Blackf. 108 ; Buford v. Kirkpatrick, 13 Ark. 33.
6 Pennoyer v. Neff, 95 U. S. (5 Otto), 714.
1 Bicknell v. Field, 8 Paige, 440 ; Rice v. Hickok, 39 Vt. 292 ; Thompson v. Env
mert, 4 McLean, 96. Contra, see Arndt v. Arndt, 15 Ohio, 33.
8 Compare Jardine v. Reichert, 10 Vroom, 165 ; Barney v. White, 46 Mo. 137.
9 D'Arcy v. Ketchum, 11 How. U. S. 165 ; Phelps v. Brewer, 9 dish. (Mass.) 390;
Board of Public Works v. Columbia College, 17 Wall. 621 ; Hall v. Loaning, 91 U. S.
(1 Otto), 160.
10 Woodward v. Tremere, 6 Pick. 354.
11 Ewer v. Coffin, 1 Cush. 23; Price v. Hickok, 39 Vt. 292.
19 Cooper v. Reynolds, 10 Wall. 318.
13 Eastman v. Wadleigh, 65 Me. 251, s. c. 20 Am. R. 695 ; Pennoyer v. Neff, 95 U. S.
(5 Otto), 714, affi'g 3 Sawy. 274. But jurisdiction of the original action being shown,
constructive notice of appeal will sustain a judgment on appeal. Nations v. Johnson,
24 How. U.S. 195.
14 Gray v. Larrimore, 2 Abb. U. S. 542 ; Galpin v. Page, 18 Wall. 860.
15 Bissell v. Wheelock, 11 Cu.*h. (Mass.) 279 ; Stockwell v. McCraken. 109 Mass. 84;
Barney v. White, 46 Mo. 137 ; Jones v. Warner, 81 111. 343 ; Holt v. Alloway, 2 Blackf.
(Ind.) 103 ; and sec Munn v. Sfurges, 22 Ark. 3S9. Otherwise of judgments of divorce
and the like.
Galpin v. Page, 18 Wall. 350.
Smith v. Pomeroy, 2 Dill. 0. Ct. 420.
18 Such as the proximity of the paper (Secrist v. Green, 3 Wall. 761); the use of
the complaint, on file, ns an affidavit (Neff v. Pennoyer, 3 Sawyer, 274); the residence
of the notary verifying it (Mosher v. Heydrick, 45 Barb. 649), and the like.
548 ACTIONS Off JUDGMENTS.
25. Appearance.'] Apparently regular appearance is pre-
sumptively equivalent to process and service. 1 A record which
shows that the party appeared by attorney, 3 though without
proof of the attorney's authority, is prima fade sufficient; 3 even
though the action was commenced by publication, &c., and the
summons and proof of publication do not appear on the record. 4
Where the jurisdiction depends upon appearance, defendant
may prove, under proper allegation, that he was never served
with process, did not know of the action, did not authorize any
one to appear, and he had a good defense upon the merits. 5
Retainer by partner is not enougn. 6
26. Effect of judgment^ A judgment of a sister State, if thus
authenticated, or if duly proved in another mode because the court
has not a clerk and record, 7 is entitled to such faith and credit 8
as it has by law or usage in the courts of the State from whence
the record is taken ; 9 except that neither the recitals nor the
proof, contained in the record, of any jurisdictional fact, are con-
clusive. 10 Unless so brought within the constitutional clause, the
judgment of a sister State is merely prima facie evidence. 11 The
faith and credit thus secured, extends not only to the form of
the record, but to its effect as an adjudication ; not, however, to
1 Moore v. Spackman, 12 Serg. & R. 287. An admission or evidence that there
was no personal service does not necessarily impugn an appearance. Eldred v. Bank,
17 Wall. 552; and see Whittaker V. Murray, 15 111. 293.
8 For example, by the usual formal recital, " and now at this day come the parties
aforesaid, by their attorneys," <fcc. (Landes v. Brant, 10 How. U. S. 848; and see At.
kins v. Disintegrating Co. 18 Wall. 272); or by the entry of the attorney's name upon
the record of the judgment in the mode usual (Bank of Middletown v. Huntington, 13
Abb.Pr. 402); or by filing a plea (Eldred v. Bank, 17 Wall. 551).
8 Hill v. Mendenhall, 21 Wall. 454; Rogers v. Burns, 27 Penn. St. 535.
4 Maxwell v. Stewart, 22 Wall. 77. For withdrawal of appearance and its effect,
see Creighton v. Kerr, 20 Wall. 13, and cases cited; Eldred v. Bank, 17 Id. 551.
6 Marx v. Fore, 51 Mo. 69, s. c. 11 Am. R. 432, and note; Hill v. Mendenhall, 21
Wall. 454.
6 Phelps v. Brewer, 9 Gush. 390; Boylan v. Whitney, 3 Ind. 140; Eager v.
Stover, 59 Mo. 87. Contra, Marks v. Fordyce, 2 Am. L. Rev. ; Dennison v. Hyde, 6
Conn. 508.
1 Silver Lake Bank v. Harding, 5 Ohio, 545; Tyler's Exr. v. Winslow, 15 Ohio
St. 364; Stockwell v. Coleman, 10 Id. .33; Kuhn v. Miller's Adm., 1 Wright (Ohio),
127; Dragoo v. Graham, 9 Ind. 212.
8 No greater. Public Works v. Columbia College, 17 Wall. 629.
9 U. S. R. S. 905, last clause; Mills v. Duryee, 7 Cranch, 484; any statutes of
the State where it is set up, notwithstanding. Christmas v. Russell, 5 Wall. 302.
10 Thompson v. Whitman, 18 Wall. 468. Contra, Burtners v. Reran, 24 Gratt. 42.
The English rule adopted in some. of the States, that the judgment imports absolute
verity even as to jurisdictional statements, can have no extra territorial force, even
under the full faith and credit clause of the constitution. Id. Contra, Logansport
Gas-light Co. 2 Dill. C. Ct 421. Some authorities concede conclusive effect to an ex-
press adjudication of a jurisdictional fact, or to proof embodied in the record, Avhich
they deny to recitals. See Watson v. New England Bank, 4 Mete. (Mass.) 343 ;
Hall v. Williams, 6 Pick. 232; Aldrich v. Kenney, 4 Conn. 570.
11 Taylor v. Brown, 80 N. II. 78, 97; Kean v/Rice, 12 Serg. & R. 203; Ellsworth
v. Barstow, 7 Watts (Penn.), 314. Compare Gleason v. Dodd, 4 Mete. (Mass.) 333;
Roberts v. Hodges, 16 N. J. Eq. 299.
14 Crapo v. Kelly, 16 Wall. 610.
ACTIONS ON JUDGMENTS. 549
entitle the party to the remedies of enforcement given only by
the law of the State where it was recovered. 1
27. Justice's judgments^] Common law proof may be resorted
to ; 2 and in such case plaintiff should prove the statute under
which the court was held, and that the justice had jurisdiction
of the subject and of defendant's person. 3 A mode of proving
justics's judgments of a sister State, is provided by the statute
in New Y ork 4 and some other States. If there is a record, and
a clerk, or the justice is, by law, clerk, 5 they may be proved with
better effect under the act of Congress.
23. Former adjudication. .] A decision of the court of the
sister State, against the grounds alleged in impeachment of a
judgment, is available as res adjudicata*
29. Appeal pending.'] Proof that an appeal is pending does
not bar the action, without proof that, by the law of the other
State, such appeal stays proceedings. 7 The court may take judi-
cial notice of the law, 8 or it may be proved. 9
30. Limitations.'] The statute of limitations of the State in
whose court the action is brought, applies. 10 But the presump-
tion of payment by the law of the State where the judgment was
recovered, avails."
IY. UNITED STATES COURTS AND THEIR JUDGMENTS.
31. Judgments of those courts proved elsewhere^] The act of
Congress 12 permits, 13 but does not require 14 such a judgment to be
authenticated as there prescribed, it may be received in any
State court, when authenticated in the ordinary method practiced
in the courts of the State within whose limits it was recovered. 15
1 Brengle v. McClellan, 7 Gill & J. 434.
2 McEliatrick v. Taft, 10 Bush (Ky.), 160; Graham v. Grigg, 3 Harr. (Del.) 408;
Bissell v. Edwards, 5 Day (Conn.), 363.
3 Thomas v. Robinson, 3 Wend. 267; Cole v. Stone, Hill & D. Supp. 360; Betts
v. Bagley, 12 Pick. 572.
4 N. Y. Code Civ. Pro. 948, 951. See paragraphs 2, 15, Ac.
6 Hutchins v. Gerrish, 62 N. H. 205, s. c. 13 Am. R. 19; Carpenter v. Pier, 30
Vt. 81.
8 Dobson v.Pearce, 12 N. Y. 156; McLaren v. Kehler, 23 La. Ann. 80, s o 8 Am
R. 591.
' Faber v. Hovey, 117 Mass. 107, s. c. 19 Am. R. 398; Taylor v. Shew, 39 Cal.
536, s. c. 2 Am. R. 478.
8 Paine v. Schenectady, 11 R. I. 411, s. c. 5 Centr. L. J. 517.
9 Holton v. Gleason, 26 N. H. 501.
10 Napier v. Gediere, 1 Speers' Eq. (So. Car.) 2"15; Estes v. Kyle, Meigs (Tenn.),
84; State v. Virgin, 36 Geo. 388; McArthur v. Goddin, 12 Bush, 274; Longland v.
Davidson, 3 Clark I'enn. L. J. R. 377.
11 Baker v. Stonebraker, 36 Mo. 338, 848.
111 Paragraph 15.
13 Helen v. Shackelford, 5 J. J. Marsh. (Ky.) 390 ; Redman v. Gould, 7 Blackt
(Ind.) 361 ; Buford v. llickman, Hemp. 232.
14 Turnbull v. Pnyson, 95 U. S. (5 Otto), 418 .
"Jenkins v. Kinsley, 8 Johns. Cas. 474, s. c. Col. <fe C. Caa. 136; Turnbull v.
Payson (above).
550 ACTIONS ON JUDGMENTS.
By the New York statute, any record or proceeding of a court of
the United States, may be proved by a copy certified by the clerk
or officer in whose custody it is required by law to be. 1 In a State
court, the judgment of a United States court is open to inquiry
in respect to jurisdiction ; but, jurisdiction appearing, is conclu-
sive on the merits. 2
32. The practice in the United States' courts.] The record
or proceeding of any court of the United States may be proved in
any other court of the United States by the certificate of the clerk
of the court where it was recovered, with the seal of the court,
without the certificate of a judge. 8 That of a State court may be
proved under the act of Congress, 4 or (perhaps with less effect)
in any common law mode. If the United States court is a circuit
court sitting in the same State as the court whose judgment is
offered, a certificate of the clerk and seal of the court is a sufii-
cient authentication. 5
V. FOREIGN JUDGMENTS.
33. Mode of proof J\ Proceedings of a court of a foreign
State or province, cannot be proved by a mere certified copy under
seal. 6 They may be proved by sworn copy, 7 by an exemplifica-
tion, 8 or in any mode prescribed by the law of the forum. 9 If in
a foreign language, a translation is competent, 10 if sworn to by a
1 N. Y. Code Civ. Pro. 943. Seal was formerly required.
9 McCauley v. Hargroves, 48 Geo. 50, s. c. 15 Am. R. 660.
s Turnbull v. Payson, 95 U. S. (5 Otto), 424.
4 Paragraph 16.
6 Mewster v. fepalding, 6 McLean, 24 ; Turnbull v. Payson (above).
6 Delafield v. Hand, 3 Johns. 810. Compare Packard v. Hill, 7 Cow. 434 ; Ali-
von v. Fnrnival, 1 C. M. & K. 277 ; Alves v. Banbury, 4 Campb. 28.
7 Lincoln v. Battelle, 6 Wend. 445 ; but not by a copy of a copy. Id.
8 Mahui-in v. Bickford, 6 N. H. 567; Church v. Hubbart, 2 Cranch, 238;
Hutchina v. Gerrish, 52 N. H. 205, s. c. 13 Am. R. 19.
9 By the New York statute (Code Civ. Pro. 952), a copy of a record, or other
judicial proceeding, of a court of a foreign country (or province ; Lazier v. West-
cott, 26 N. Y. 146), is admissible when authenticated: 1. By the attestation of the
clerk of the court, with the seal of the court affixed, or of the officer in whose cus-
tody the record is legally kept, umler the seal of his office: with, (2) a certificate of
the chief judge or presiding magistrate of the court, to the effect that the person so
attesting the record, is the clerk of the Court; or that he is the officer in whose cus-
tody the record is required by law to be kept; and that his signature to the attesta-
tion is genuine: and, (3) the certificate, under the great or principal serl of the
government (colonial or national), under whoso authority the court is held, of the
secretary of State, or other officer having the custody of that seal, to the effect that
the court is duly constituted, specifying generally the nature of its jurisdiction ; and
that the signature of the chief judge or presiding magistrate, to the certificate speci-
fied in the last subdivision, is genuine. A copy attested by the seal of the court, in
which it remains, is also admissible upon due proof: 1. That it has been compared
by the witness with the original, and is an exact transcript of the whole of the orig-
inal ; 2. That the original was, when the copy was made, in the custody of the clerk
of the court, or other officer legally having charge of it ; and 3. That the attestation
is genuine.
10 Hill v. Packard, 5 Wend. 376.
ACTIONS ON JUDGMENTS. 551
witness. 1 The court may take judicial notice as to whether a
foreign court proceeds according to the course of the common
law. 8
34. Effect^\ The admissibility of the document does not de-
termine what effect it has as evidence. 3 The record may be con-
tradicted as to all jurisdictional facts. 4 If jurisdiction depends
on even personal service on a non-resident of the foreign state,
made without its territorial limits, it is not evidence of debt
against him here, 5 even though he gave a personal admission of
service. 6
.' Vandervoort v. Smith, 2 Cai. 165.
s Lazier v. Westcott, 26 N. Y. 146.
3 N. Y. Code Civ. Pro. 954.
4 Hall v. Lanning, 91 U. S. (1 Otto), 165. Including the attorney's authority to
appear. Arnott v. Wtbb, 1 Dill. C. Ct. 362.
* Bischoff v. Wethered, 9 Wall. 814.
6 Scott v. Noble. 72 Penn. St. (22 P. F. Smith), 115, s. o. 13 Am. R. 668.
CHAPTER XXX.
ACTIONS AGAINST BAILEES, AGENTS, <fco.
I. GENERAL PRINCIPLES.
1. Grounds of action.
2. Contract of bailment.
8. Oral evidence to vary writing.
4. Plaintiff 's title.
6. Eviction.
6. Burden of proof as to breach of
duty.
7. Qualified refusal.
8. Value and damage.
II. RULES PECULIAR TO PARTICULAR AOEN-
CIE8 AND BAILMENTS.
9. Gratuitous bailments.
10. Attorneys.
11. Brokers.
12. Collecting Bankers.
13. Factors.
14. Forwarders.
15. Hirers of chattels.
16. Innkeepers.
17. Pledges.
18. Tows.
19. Warehousemen.
20. Wharfingers.
?II. ACTIONS AGAINST COMMON CARRIERS OF
GOODS.
21. Defendant a common carrier.
* 22. Delivery to carrier.
23. Authority of receiving agent.
24. Implied contract.
25. Address ; Instructions ; "C. O. D."
26. Express contract.
27. Authority to make special con-
tracts.
28. Description of goods.
29. Amount.
80. Condition.
81. Instructions; Route; Terminus.
82. Stowage.
83. Time.
III. ACTIONS AGAINST COMMON CARRIERS OF
GOODS continued.
84. Burden of proof as to loss and
cause of loss.
85. Contract of connecting lines.
36. Non-delivery.
87. Negligence.
38. Cause of injury.
89. Theft or robbery.
40. Conversion.
41. Plaintiff's title.
42. Oral evidence to explain or vary
bill or receipt.
43. Usage.
44. Declarations of agents.
45. Defenses ; Generally.
46. Contract for restricted liability.
47. Evidence of shipper's assent;
The New York rule.
48. the Illinois rule.
49. Fraud as to value.
60. Limited liability under the act of
Congress.
61. Carriers' delivery ; Notice to con-
signees.
52. Act of God ; Inevitable accident.
FV. ACTIONS AGAINST COMMON CARRIERS or
PASSENGERS AND BAGGAGE.
53. Plaintiff a passenger.
54. Express contract; Tickets.
55. Authority of agency.
56. Baggage.
67. loss or non-delivery.
58. "Negligence.
69. Authority of servant.
60. Damages.
61. Defenses : Restriction of liabil-
ity; Extrinsic evidence to
vary ticket.
62. Contributory negligence.
I. GENERAL PRINCIPLES.
1. Grounds of action.] The pleadings and evidence involve
one or more of three elements : 1. Breach of express contract.
2. Breach of implied duty. 3. Conversion.
If the action is founded on express contract to deliver, evi-
dence of breach is prima facie enough (though excuse may be
shown by the bailee) ; and evidence of actual negligence, or of
L552J
GENERAL PRINCIPLES. 553
conversion, is competent, so far as involved in proving the actual
breach of contract.
If the action is founded on breach of implied duty, the degree
required of proof of negligence or other cause of loss varies with
the nature of the bailment and the degree of diligence required.
In this class of cases the contract, if any, must be proved in order
to define the duty ; and evidence of conversion is competent for
the same purpose as in cases of express contract.
If the action is founded on conversion, the contract must be
proved, if necessary to define the duty, otherwise it is not essen-
tial ; but the action is not- sustained by proof of mere breach of
contract or implied duty> or of negligence. 1
An uncertainty on the face of the complaint as to which of
these is the gist of the action, is to be determined by the court
with reference to the rules affecting variance. 2
2. Contract of laitment.~] If the action is for a wrongful use
contrary to express contract, proof of the contract is necessary. 8
A written contract may be proved, under a general allegation not
indicating writing. 4 Evidence of the bailee's uniform usage to
give a written receipt expressing terms of bailment, may be
sufficient to require foundation to be laid before admitting oral
evidence of terms. 5 A mere receipt not expressing terms, is not
the exclusive primary evidence of the delivery.
3. Oral evidence to vary writing.'] The general rule already
stated, 6 protects written instructions, 7 and words of contract con-
tained in a receipt, 8 if binding as a contract. A stipulation to re-
turn cannot be varied by oral evidence of contemporaneous agree-
ment as to risk ; 9 but a mere memorandum of length of time and
rate of payment, does not exclude a separate oral agreement as to
risk ; 10 nor does a written power exclude evidence of a separate
and not inconsistent u agreement as to the conditions, in respect
to time, price, &c., on which it might be executed. 13 A receipt ex-
pressed to be for storage, cannot be shown by parol to represent
a sale. 13 A mere receipt without indicating the nature of the
1 These principles I deem sufficiently settled under the new procedure ; although
not hitherto universally recognised. The modes of proving negligence and con-
version respectively, are stated in other chapters.
8 See pp. 273, 285 of this vol. and the chapter on actions for DECEIT.
3 Smith v. Rollins, 1 1 R. I. 464, s. o. 23 Am. R. 609.
* Fiedler v. Smith, 6 Cush. (Mass.) 336, 340.
5 Ashe v. DeRosset, 8 Jones (N. Car.) L. 240.
6 Pages 294, 364, of this vol.
* Richardson v. Churchill, 6 Cush. 426 ; Dunlop v. Monroe, 7 Cranch, 242.
8 Stapleton v. King, 33 Iowa, 28, s. c. 11 Am. R. 109, and cases cited; Wood v.
"Whiting, 21 Barb. 190.
9 Brown v. Hitchcock, 28 Yt. 452.
10 Jeffrey v. Walton, 1 Stark R. 267.
11 Dykers v. Allen, 7 Hill, 497, affi'g, 3 Id. 593; Vail v. Rice, 8 N. Y. 155; Mark-
ham v. Joudon, 41 N. Y. 23-1, rev'g, 49 Barb. 462, s. o. 3 Abb. Pr. N. S. 286.
19 Clarke v. Meigs, 10 Bosw. 337.
13 Wadsworth v. Allcott, 6 N. Y. 64.
554 ACTIONS AGAINST BAILEES, Ac.
transaction may be explained or contradicted. 1 A warehouse re-
ceipt is usually subject to oral explanation unless plaintiff has
made advances or incurred responsibility on the faith of it. 2 If
the terms of the receipt are ambiguous, 3 as for instance "re-
ceived on account of A. [the plaintiff], for B." evidence of usage
is admissible to explain. 4
4. Plaintiff* s title' Bailees estoppel^ The plaintiff's title is
sufficiently proved by the contract. A bailee, or agent, cannot
dispute the original title of the bailor or principal from whom he
received the thing ; 5 even by purchasing an adverse title. 6 But
he may show that his bailor parted with his interest in the prop-
erty subsequent to the bailment. 7
5. Eviction.] Eviction by title paramount or its equivalent,
suffices to terminate the relation of bailee which raises this estop-
pel ; but notice of adverse claim does not. 8 Even where the action
is on a contract, 9 the better opinion is that the bailee is excused by
showing that without his fault, act or connivance, the thing was
seized and taken from his possession, by virtue of regular and valid
legal process, 10 out of a court having jurisdiction, 11 either against
the bailor, 12 or a third person, 13 and that he gave immediate notice
to the bailor. 14 In such case he is not bound to show the merits
of the claim, or correctness of the decision on which the process
was founded, 15 but only its regularity and validity. The process
itself is the primary evidence, and the oral admission of the
plaintiff is not a substitute for it. 16
1 Robinson v. Frost, 14 Barb. 536.
* Second Bank of Toledo v. Walbridge, 19 Ohio St. 419; Bebee v. Moore, 3
McLean, 387. Compare Peck v. Armstrong, 38 Barb. 215; Hoyt v. Baker, 15 Abb.
Pr. N. S. 405; McCombie v. Spader, 1 Hun, 193.
3 Agawam Bank v. Strever, 18 N. Y. 502; Harris v. Rathbun, 2 Abb. Ct. App.
Dec. 326.
4 Bowman v. Horsey, 2 M. <fc Rob. 85.
B Vosburgh v. Huntington, 15 Abb. Pr. 254; Marvin v. Elwood, 11 Paige, 365
or whose title he has recognized by issuing a receipt, Gosling v. Birnie, 7 Bing. 339
and see p. 528 of this vol. The contrary said of a pledge, in Cheesmau v. Exall, 6
Exch. 341.
6 Nudd v. Montanye, 38 Wis. 511, s. c. 20 Am. R. 25. And this estoppel enures
in favor of the bailor's assignee, <fec. Marvin v. Smith, 56 Barb. 600; Dixon v. Ham-
mond, 2 Barnw. <fe A. 310.
7 See Marvin v. Ellwood, 11 Paige, 365; Bates v. Stanton, 1 Duer, 79, s. c. 10 N.
Y. Leg. Obs. 216.
* Biddle v. Bond, 6 Best. & S. 225 ; and see Lund v. Seamen's Bank for Savings,
37 Barb. 129.
9 As distinguished from conversion. Edwards v. White Line Co. 104 Mass. 159,
s. c. 6 Am. R. 213.
10 Ohio & Miss. Rw. Co. v. Yoke, 51 Ind. 181, s. c. 19 Am. R. 727, and cases cited;
4 Southern Law Rev. N. S. 465.
11 Barnard v. Kobbe, 54 N. Y. 516.
Edson v. Weston, 7 Cow. 278 ; Stamford Steamb. Co. v. Gibbons, 9 Wend. 327.
13 Cook v. Holt, 48 N. Y. 275 ; 4 South. Law Rev. N. S. 465.
14 Ohio & Miss. I'w. Co. v. Yoke (above); Cook v. Holt (above).
15 Contra, Mierson v. Hope, 2 Sweeny, 561.
14 Jenner v. JolifFe, 6 Johns. 9. For the mode of proof, see Chapter XXTX. Fur.
ther proof of any proceedings upon it is not necessary. Hirschieldt v. Fanton,
Anth. N. P. S61.
GENERAL PRINCIPLES. 555
If the bailee voluntarily surrenders, or fails to give such no-
tice, he assumes the burden of showing that he was evicted by
legal title paramount to that of the bailor. 1 If he shows actual
delivery on the demand of the true owner, and that the latter
had a right to the immediate possession, paramount to that of
the bailor, neither legal proceedings nor proof of fraud are nec-
essary. 2
An allegation of conversion is not sustained by evidence that
without the bailee's act, fault or connivance, the thing was taken
from his possession by virtue of regular and valid legal process ;
but it is sustained by evidence that while retaining possession he
refused proper demand, on the pretext that it was bound in his
hands by process against a third person. 3
6. Burden of proof as to "breach of duty.~] If the action is
founded solely on an express contract to return, the plaintiff
must prove the contract and the breach or failure to redeliver,
and this is enough ; 4 the burden then rests on defendant to show
due diligence or a loss for which he is not liable. 5 If the action
is founded on negligence or other tort, plaintiff, in addition to
the duty, must prove the tort. Slight proof, however, is sufficient
to sustain an inference of negligence. 6 Whether evidence of the
loss or the non-delivery of the thing throws on a bailee the burden
of proving diligence depends on the degree of his duty. 7 In
case of bailees for hire generally, such as common carriers, for-
warders, 8 warehousemen 9 (including carriers holding possession as
warehousemen 10 ), collecting bankers, 11 and innkeepers, non-deliv-
ery 12 without anything to indicate a cause of loss or injury consist-
ent with due diligence, or return of the thing if in a damaged state
without explanation, 13 is sufficient to go to the jury as evidence of
1 "Welles v. Thornton, 45 Barb. 390.
9 The Idaho, 93 U. S. (3 Otto), 575, 579; 11 Blatchf. 218. Cases to the contrary
may be found in the books. Sen Barnard v. Kobbe, 3 Daly, 35, affi'd on other
grounds in 64 N. T. 516 ; Mierson v. Hope, 2 Sweeny, 661.
8 Rogers v. Weir, 34 N. Y. 463.
4 Merchants' Bank of Mncon v. Rawls, 7 Cfeo. 191.
8 Edw. Bailm. 62 ; \Vhart. on Neg. 422.
8 W barton on Neg. 422.
7 Story on Bailm. 213, 278, 410. The circumstances that the facts were pecu-
liarly within defendant's knowledge, and that such an injury does not usually occur
without negligence, may be controlling. Collins v. Bennett, 46 N. Y. 49').
8 Especially if there is a total failure to account for the property. Bush v. Miller,
13 Barb. 481.
Schwerin v. McKie, 5 Robt. 404 ; Arent v. Squire, 1 Daly, 847 ; Claflin v. Meyer,
43 Super. Ct. (J. <fc S.) 7, and cases cited. Otherwise, if the compensation is only for
place-room, not a reward for cnre and diligence (see Schmidt v. Blood, 9 Wend. 271);
us in the case of a mere wharfinger (Fooie v. Storrs, 2 Barb. 23o ; and sea Searle v.
Laverick, L. R. 9 Q. B. 122). As to Safe Deposit Company, sea 17 Alb. L. J. 198.
10 Fairfax v. N. Y. Central R. R. Co. 67 N. Y. 11 ; Cass v. Boston, <fec. R. R. Co. 14
Allen, 4 18. Ci.mtni, Jackson v. Sacrament >, <fec. R. R. Co. 23 Cal. 26S.
11 Chicopee Bank v. Philadelphia Bank, 8 Wall. 641.
19 Especially if without explanation. Boies v. Ilurtford <fe New Haven R. R. Co.
S7 Conn. 272, 8. c. 9 Am. R. 847.
13 Funlihouser v. Wagner, 62 111. 59 ; Logan v. Mathews, 6 Penn. St. 417 ; Whart.
on Neg. 422.
556 ACTIONS AGAINST BAILEES, Ac.
negligence. 1 Evidence that the thing had disappeared from the
possession of the bailee, without anything to indicate how, is
sufficient. 2 As a general rule, plaintiff need not, in the first in-
stance, prove that the thing was free from latent defects when
delivered to the bailee. 8
If plaintiifs evidence goes further, and traces loss or injury
to a cause consistent with due diligence on defendant's part,
such as fire, 4 or if defendant shows such a cajise, plaintiff must
give evidence of negligence, unless he stands upon a contract
which holds defendant without that. 5 Where the duty is ordinary
care, the happening of an accident of a kind which ordinary care
does not suffice to prevent is no evidence of negligence, even
though the apparatus was within defendant's control.
The presumption that legal duty has been discharged does
not countervail evidence of injury or diminution of the thing in-
trusted to a bailee for hire. 7
Fire, without evidence of its cause, is presumed not " the act
of God " ; 8 but is not presumed to be caused by defendant's neg-
ligence. 9 Theft and robbery, in the absence of further evidence,
are not prima facie proof of negligence. 10 But the bailee's con-
duct in the hue and cry, 11 and his failure to give prompt notice, is
competent. 12 The testimony of the servant in charge of the de-
posit, that he never delivered it to any one, is not sufficient evi-
dence of theft. 13
Evidence of independent acts of negligence not connected
with the loss is incompetent, 14 except as tending to show the man-
ner in which the business of the bailee was conducted at the time. 15
7. Qualified refusalJ] The statements of the defendant,
made at the time of the demand, and excusing and qualifying his
1 The language of many authorities to the effect that it throws on the bailee the
burden of proving due care is liable to mislead. Plaintiff will be entitled to go to
the jury on such evidence, if defendant does not give evidence of the cause of loss
(cases above cited) ; but is not entitled to a ruling, or an instruction to the jury that
this evidence shifts the burden of proof respecting negligence. If the complaint is
founded on tort, however, plaintiff must give some evidence of the tort. Lamb v.
Camden & Amboy.&c. K. R. Co. 49 N. Y. 271, rev'g 2 Daly, 454.
2 Fairfax v. N" Y. Central, <fec. R. R. Co. 67 N. Y. 11, rev'g 40 Super. Ct. (J. & S.)
128, s. c. again 43 Super. Ct. (J. fe fc.) 18, affi'd in 73 N. Y. 167.
3 1 Whart. Ev. 326, 362.
4 Lamb v. Camden & Amboy R. R. Co. 46 N. Y. 271, rev'g 2 Daly, 454.
6 Casa v. Boston & Lowell R. R. Co. 14 Allen, 448.
See French v. Buffalo, <fec. R. R. Co. 2 Abb. Ct. App. Dec. 196.
7 Arent v. Squire, 1 Daly, 347.
8 Miller v. bteam Nav. Oo. 10 N. Y. 431.
9 Lamb v. Camden & Amb. Transp. Co. 4 N. Y. 271, rev'g 2 Daly, 454 ; Edw. on
B. 236.
10 Story on B. 39 ; and see L. R. 9 Exch. 93, s. c. 8 Moak's Eng. 535 ; L. R. 9 Q.
B. 468, 8. c. 10 Moak's Eng. 118.
11 Tompkins v. Saltmar.sh, 14 Serg. <fe R. 275.
1S First National Bank of Carlisle v. Graham, 79 Fenn. St. 106, s. c. 21 Am. R. 49.
13 Fairfax v. N. Y. Central, &c. R. R. Co. 67 N. Y. 11, rev'g 40 Super. Ct. (J. & S.)
128.
14 First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 279.
15 Dearboru v. The Union Nat. Bk. 61 Me. 369 ; and see chapter on NEGLIGENCE.
SPECIAL CLASSES OF BAILEES, &o. 557
refusal to surrender, thus constituting a part of the refusal, may
be proved in his favor as part of the res geatas^ but this does not
justify the admission of statements of independent facts. 3
8. Value and dama f je.~\ The mode of proving value and
damage are the same as in an action on quantum meruit for the
price of goods sold, or the breach of a warranty. 3
II. SPECIAL CLASSES OF BAILEES AND AGENTS.
. 9. Gratuitous bailments.'] A delivery to and acceptance by
a gratuitous bailee 4 cannot be presumed merely from evidence of
the ordinary course of business. Plaintiff must prove a deposit
of the goods with defendant, and that he did not restore them,
and that the non-restoration was produced by a lack of due dili-
gence on his part. This lack of diligence often may be inferred
from the nature of the transaction, 5 but the plaintiff's case must
be sufficient to raise some presumption of defendant's fault. De-
fendant may then show that he was not guilty of gross negli-
gence. 6
The bailee's declarations at and immediately after the loss are
competent in his favor, as part of the res gentm? A presumption
of gross negligence is usually repelled by evidence that the bailee
took the same care as of things of his own ; 8 but recklessness in
care of his own does not excuse. 9 The fact that he was known to
bailor to be a person of incapacity is relevant. 10
10. Attorneys^ A general receipt, given by an attorney, for
an evidence of debt already due, raises a presumption, not con-
clusive, that he received it in his capacity of attorney, for the
purpose of collection ; u and a receipt for collection imports an
undertaking himself to collect, not merely that he received it for
transmission to another for collection, for whose negligence he is
not to be responsible. 13 In an action against an attorney, whether
for breach of contract, or of legal duty, the burden is upon the
plaintiff to prove the breach, and the damages sustained. 13 Igno-
rance of a recent statute u or decision 13 changing the law is some
1 Grade T. Robinson, 14 Ark. 438 ; Bennett v. Burch, 1 Den. 141 ; compare Mahone
v. Reeves, 11 Ala. 346, 351.
8 Walrod V. Ball, 9 Barb. 271.
8 Pages 306-312, 848 of this vol.
4 Samuels v. McDonald, 11 Abb. Pr. N. S. S44, s. o. 42 How. Pr. SCO.
e Doorman v. Jenkins, 2 Adolph. die Ell. 256.
6 Wharton on Neg. 430, 477, citing Perry v. Roberts, 3 Ad. & El. 1 1 S ; Garside
v. Proprietor, 4 T. R. 581, and other cases.
7 McNabb v. Lockhart, 18 Geo. 496, 508 ; Lampley v. Scott, 24 Miss. 628.
8 Story on B. 63, 79; and see 79 Penn. St. 106, s. c. 21 Am. R. 49, 53.
9 Whart on Neg. 4G2.
10 Story on B. 66.
11 Executors of Smedes v. Elmendorf, 3 Johns. 185.
11 Bradatreet v. Everson, 72 Penn. St. 124, B.C. 13 Am. R. 665.
13 Quinn v. Van Pelt. 66 N. Y. 417, rev'g 8C N. Y. Super. Ct. ( I J. <k S.) 279.
14 A. B.'s Estate, 1 Tuck. 247.
15 Leo v. Walker, L. R. 7 C. P. 121, s. c. 1 Moak's Eng. 371.
558 ACTIONS AGAINST BAILEES, feo.
evidence of negligence. To prove a defect in his proceedings of
record, the record is the appropriate evidence. 1 When negligence
has been proved, in consequence of which judgment has gone
against the client, it is not incumbent on the client to show that
but for the negligence he would have succeeded in the action.
Illegality in the transaction whence the money claimed was col
lected is not available to the attorney. 3
11. Brokers!} One employed to buy stock, he to make ad-
vances therefor, has, in the absence of contrary arrangement, im-
plied authority to take title in his own name. 4 A customer is
presumed, but not conclusively, to have known the usages of
brokers generally. 5 Evidence of a conversion by brokers, of
stock actually purchased, is not admissible under an allegation of
fraud in falsely pretending to have purchased. 6 Where the evi-
dence shows that the broker was a pledgee as to the stock, evi-
dence of a usage to sell without notice, contrary to a pledgee's
duty, is not competent. 7 Otherwise if the relation of pledger and
pledgee is not established. 8
12. Collecting Bankers."] The receiving of negotiable paper
for collection implies an agreement on the part of the bankers
with the one from whom they receive it, 9 to present, &c., and to
cause the drawers, indorsers, &c., to be charged ; 10 and negligence
of their notary, 11 or their correspondent, 12 is competent against
them. This liability may be varied by evidence of express con-
tract or general usage, but not by the practice of single banks
adopted for their own convenience. 13
An accidental loss or disappearance, in a bank, of a bill sent
to it for collection, resulting from the bank not taking sufficient
care of letters brought to it from the mail, raises a presumption
of negligence. 14 To recover more than nominal damages for fail-
ure to give due notice of non-payment, there must be evidence
1 Reilly v. Cavanaugh, 29 Ind. 435.
s Rose. N. P. 484 ; Wharton.on Neg. 752, citing Purvis v. Landell, 12 Cl. & Fin.
91; Godefroy v. Jay, 7 Bing. 413. See contra, Barter v. Morris, 18 Ohio St. 491.
3 Fogerty v. Jordan, 2 Robt. 319 ; Merritt v. Millard, 2 Abb. Ct. App. Dee. 391 ;
and eee chapter on actions for MONEY RECEIVED.
4 Horton v. Morgan, 19 N. Y. 170. Compare Merwin v. Hamilton, 6 Duer, 244.
As to grounds of action, whether on contract or for conversion, see Read v. Lambert,
10 Abb. Pr. N. S. 428 ; Stewart v. Drake, 46 N. Y. 449.
8 Whitehouse v. Moore, 13 Abb. Pr. 142. SPO p. 296 of this vol.
6 Salters v. Genin, 7 Abb. Pr. 193, s. c. 3 Bosw. 250.
7 Taylor v. Ketchum, 5 Robt. 507, s. c. 35 How. Pr. 289 Markham v. Jaudon,41
N. Y. 235.
8 Corbett v. Underwood, 83 HI. 324.
9 Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 459.
10 Ayrault v. Pacific Bank, 6 Robt. 337 ; 47 N. Y. 570. But compare State Bank
of Troy v. Bank of the Capitol, 41 Barb. 343, s. c. 17 Abb. Pr. 364; 27 How. Pr. 57.
11 Ayrault v. Pacific Bank, 47 N. Y. 570, aflVg G Robt. 837.
11 Montgomery Bank v. Albany City Bank (above).
13 Ayrnult v. Pacific Bank (above).
14 Chicopee Bank v. Philadelphia Bank, 8 Wall 641.
FACTORS. 559
that if due notice had been given, plaintiff might have collected
the amount, or some part of it. 1 Execution against the maker
unsatisfied is competent to show his insolvency/
13. factors.'] Plaintiffs letters to defendant, written with
the goods consigned, are competent in his favor to show his in-
structions ; 3 and the instructions are strictly binding, if the con-
signment is accepted. 4 If a voluminous correspondence is offered,
the party offering it should point out the parts he relies on as,
relevant. 5 * If the written instructions refer the factor also to
a third person for verbal instructions, the latter may be compe-
tent, although they vary the former. 6 Evidence of a general con-
signment without specific instructions as to sale, and of advances
made or liabilities incurred on the faith of the goods, raises a
legal presumption that the factor has a discretion about selling,
for his own protection, which the principal cannot control by
subsequent instructions. 7 The letters and declarations of the de-
fendant's agent, to him, are not alone competent to prove his
diligence. 8 The factor's agreement may be interpreted by oral
evidence of usage, 9 under principles already stated. 10
Sale by a factor is presumed from lapse of time ; u and a refusal
to account raises a presumption in favor of the strongest con-
struction of the evidence against him as to amount, value, and
price. 12 The presumption that an invoice is sent, upon a consign-
ment of merchandise, suffices to require a foundation for second-
ary evidence of contents. 13 To show intent to defraud, similar
fraudulent acts of defendant, committed at or about the same
time may be shown. 14 If conspiracy is alleged, plaintiff may re-
cover against one, on proof of fraud, but not without. 15 The
mode of proving value has already been stated. 18
1 Lienan v. Dinsmore, 10 Abb. Pr. N. S. 209, s. c. 3 Daly, 865 ; Coghlan v. Dins-
more, 9 Bosw. 453. But compare Allen v. Suydam, 20 Wend. 321, rev'g 17 Id. 368;
Waldrod v. Ball, 9 Barb. 271.
2 Eichelberger v. Pike, 22 La. Ann. 142.
3 Porter v. Ferguson, 4 Fla. 102.
4 Scott v. Rogers, 4 Abb. Ct. App. Dec. 157 ; Loraine v. Cartwright, 3 Wash. C.
Ct. 151 ; Bell v. Cunningham, 3 Pet. 69, 85. Otherwise of instructions on a separate
and subsequent consignment. Milbank v. Dennistown, 10 Bosw. 382.
4 Daineae v. Allen, 14 Abb. Pr. N. S. 363.
' Manella v. Bary, 3 Cranch, 415.
* Feild v. Farrington, 10 Wall. 148.
8 Framin2;hnm v. Barnard, 2 Pick. 532.
8 Beardsley v. Davis, 52 Barb. 159 ; Farmers, Ac. Bank v. Spragne, 62 N.Y. 605.
10 Pages 296, 485 of this vol. Compare Catlin v. Smith, 24 Vt 85; Dwight v.
Whitney, 15 Pick. 179.
11 Me Arthur v. Wilder, 3 Barb. 66.
18 Pope v. Barret, 1 Mas. 117 ; Field v. Moulson, 2 Wash. C. Ct. 155.
13 Turner v. Yates, 16 How. U. S. 14, 26.
14 Cattle v. Bullard, 23 How. U. S. 172; and see Chnpter on DECEIT.
14 Price v. Keves, 62 N. Y. 378, rev'g 1 Hun, 117, s. c. 3 Supm. Ct. (T. A C.), 720.
16 Page 307 of this vol. As to the time to which the evidence should reft-r, see
Scott v. Rogers, 4 Abb. Ct. App. Dec. 157 ; Blot v. Boiceau, 8 N. Y. 78, rev'g 1
Sandf. 111.
560 ACTIONS AGAINST BAILEES, Ao.
Ratification is presumed from evidence that plaintiff, after
full information, made no objection within a reasonable time. 1
Intentional omission to reply raises a presumption of approval of
a past course, even though contrary to instructions. 3
To establish a lien, defendant must show ; either, 1, that he
had made advances specially upon the credit of this shipment ;
or, 2, that he was entitled, by arrangement with the consignor, to
a lien for any balance of advances generally. 8
14. Forwarders, .] An allegation that defendants acted only
as carriers, is a variance. 4 The stipulation to forward, in the re-
ceipt, is a contract, subjecting it to the rule excluding oral evi-
dence to vary. 5
It is enough for defendant to satisfy the jury, by the best evi-
dence in his power, that he performed his duty with care and
fidelity, used all reasonable care and diligence in selecting proper
carriers, and that the loss has not arisen from any default of him-
self or his servants. 6
15. Hirers of chattels.'] The fact that the hirer returned the
thing injured in a manner or from a cause ordinarily liable to oc-
cur in its careful use such as a horse returned to the owner
lame, 7 or galled 8 does not raise a presumption of negligence.
16. Innkeepers?'] The fact that defendant was an innkeeper
may be proved by parol, although the law requires him to have a
license. 1 " It is enough to show that defendant habitually re-
ceived, as guests, all who came to his house (it is not material
that they be only travelers), without agreement as to the dura-
tion of their stay, or terms of their entertainment. 11 Evidence of
slight entertainment is enough to show that plaintiff was a guest. 12
Authority in a servant to receive money or other property on
the credit of the house, may be inferred from the capacity in
which he was acting. 13 Plaintiff may prove the instructions he
1 Cairnes v. Bleecker, 12 Johns. 300; Hazard v. Spears, 2 Abb. Ct. App. Dec.
353.
8 Feild v. Farrington, 10 Wall. 148.
3 Beebe v Mead, 33 N. Y. 687. '
4 Heirpstead v. N. Y. Central R. R. Co. 28 Barb. 485.
6 Niles v. Culver, 8 Barb. 205.
Am. Express Co. v. Second Nat. Bank, 69 Penn. St. 394, s. c. 8 Am. R. 268.
7 Millon v. Salisbury, 13 Johns. 211 ; Harrington v. Snyder, 3 Barb. 380; s. p.
Watson v. Bauer, 4 Abb. Pr. N. S. 273.
8 Newton v. Pope, 1 Cow. 109.
'Cutler v. Bonney, 18 Am. R. 127; ncte, 130; 3 Abb. N. Y. Dig. new ed.
703, Ac.
10 Owings v. Wyant, 3 Harr. <fe McH. 393.
11 Wintermute v. Clarke, 5 Sandf. 242; Taylor v. Monnot, 4 Duer, 116, s. o. 1
Abb. Pr. 325. Although the house was kept on the " European plan." Krohn v.
Sweeny, 2 Daly, 200. Express contract with plaintiff, as to time or terms, does not
necessarily supersede the innkeeper's liability. Hancock v. Rand, 17 Hun, 279. As
to boarding-house keepers, see 17 Alb. L. J. 499.
14 McDonald v. Egerton, 5 Barb. 560; Washburn v. Jones, 14 Id. 193.
13 See liowaer v. Tully, 62 Penn. St. 92, a. o. 1 Am. R. 390 , Svenson v. Pacific
PLEDGEES, TOWS. 5G1
gave affecting the duty of the defendant or his servant. 1 The
declarations of the person discovering the loss, made at the time,
are competent as part of the res gestce, 2 but do not prove any past
fact narrated. Loss is presumptive, 8 but not conclusive evidence
of liability. 4
At common law this presumption can only be repelled by
proof that the loss is attributable to negligence or fraud of the
guest, or to the act of God or the public enemy. 5 A general
denial of negligence will admit evidence of plaintiffs negli-
gence. 6 Reasonable regulations or usages of the particular inn,
of which plaintiff had notice, may be proved, but not the usage
of another inn. 7 The opinions of witnesses, unacquainted with
the facts of the particular case, upon the propriety or safety
of carrying or keeping, are inadmissible. 8
17. Pledgees.'] Evidence that the pledgee wholly failed to
restore the goods, without indicating the cause of loss, is sufficient
to go to the jury on the question of negligence, unless he show
loss under such circumstances as will exculpate him. 9 A usage
to sell, at private sale, contrary to the legal duty of pledgees, is
inadmissible. 10
18. Tows.] Tow-boats are not common carriers. 11 The law
implies an engagement that each party will use proper skill and
diligence; that neither vessel will by neglect or misconduct,
create unnecessary risk to the other, or increase any incidental
risk which may be incurred. 13 Exemption from liability for in-
jury by causes over which human agency has no control such as
the close of navigation is implied. 13 All the surrounding cir-
Mail St. Co. 67 N. V. 108; and see South <fe No. Ala. R. R. Co. v. Henlein, 52 Ala.
606, 8. c. 23 Am. R. 678.
1 Jones v. Hill, 26 Geo. 194.
8 Pope v. Hall, 14 La. Ann. 324. As to the competency of answers on inquiry,
see page 44 of this TO!., and chap, on NEGLIGENCE.
3 Hulett v. Swift, 33 N. Y. 571, affi'g 42 Barb. 230; Rose. N. P. 618 ; Story on
Bailm. 472 ; Murray v. Clarke, 2 Daly, 102.
4 Hulett v. Swift (above^.
s Hulett v. Swift, 33 N. Y. 571, affi'g 42 Barb. 230.
Rose. N. P. 618.
1 Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417.
8 Taylor v. Monnot, 4 Duer, 116, s. c. 1 Abb. Pr. 325.
Edw. on Bailm. 236 ; ('aid well v. Nat. Mohawk Bank, 64 Barb. 333.
10 Wheeler v. Newbould, 16 N. Y. 392, 401, affi'g 5 Duer, 29 ; approved in 5 Wall.
680.
11 Pike v. Nash, 3 Abb. Ct. App. Dec. 610 ; Arctic Fire Ins. Co. v. Austin, 69 N.
Y. 474, rev'g, 3 Hun, 193; Brown v. Clegg, 63 Penn. St. 61, 8. c. 3 Am. R. 622;
Hays v. Millar, 77 Penn. St. 238, a. c. 18 Am. R. 445. Contra, 21 La, Ann. 165, s. c.
13 Am. 120.
18 Smith v. St. Lawrence Tow-boat Co. L. R. 5 P. C. 808, s. o. 8 Moak's Eng. 236,
and cases cited; and see Arctic Fire Ins. Co. v. Austin, 54 Barb. 559; Milton v. Hud-
eon R. Steamboat Co. 37 N. Y. 210; 4 Lans. 76.
13 Worth v. Edmonds, 52 Barb. 40. The construction of the contract is for the
court, not the jury. Arctic Fire Ins. Co. v. Austin, 69 N, Y. 470, 477, rev'g 3 Ilun,
195, s. o. 6 Supm. Ct. (T. fe C.) 63.
36
562 ACTIONS AGAINST BAILEES, <fca
cumstances which may afford any just ground of inference rela-
tive to the question in issue, may be proved ; 1 and the condition
and character of the vessel towed, 2 and her unseaworthiness, 8 if
these are relevant to the casualty. The burden is on the owner
of the injured boat to show that the injury was caused by the
negligence of those in charge of the tow-boat. 4 To recover ex-
penses consequent on being left without any tow, plaintiff must
prove an effort to procure another. 5
19. Warehousemen.'] Plaintiff may show by defendant's ad-
vertisements, receipts and declarations, that the place was to be
fire-proof. 6 The general rules as to estoppel by the receipt in re-
spect to the quantity and condition of the goods, are the same as
in case of carriers. 7 Evidence of the degree of care which other
persons engaged in a similar business in the vicinity were in the
habit of bestowing on property similarly situated, is competent; 8
but it should relate to the calling generally, rather than to a par-
ticular person in it. 9 To charge warehousekeepers with a loss by
negligence of their servants, negligence within the scope of the
employment must be shown ; the test is : are the servants liable
to the employer ? 10
Proof of the general care with which the warehouse and its
contents were guarded is not sufficient to raise a legal presump-
tion of due diligence in this particular instance. 11 Defendant need
not show the precise manner in which loss occurred, any farther
than to show that it was consistent with non-liability. 13
20. Wharfingers: Place-hire.'] To recover of a wharfinger,
or one who does not undertake actual custody, but only to give
place-room, plaintiff must show negligence on the part of de-
fendant and his servants. Mere loss or disappearance, or injury
by accident, is not even prima facie evidence of negligence. 13
1 Steam Navigation Co. v. Dandridge, 8 Gill & J. (Md.) 248, 315.
s Baird v. Daly, 68 N. Y. 547, 550.
3 Id. 551. For the mode of proof, see page 496, of this vol.
4 Hays v. Millar, 77 Penn. St. 238, s. c. 18 Am. R. 445; Pike v. Nash, (above).
6 Worth v. Edmonds, 52 Barb. 40.
6 Hatchett v. Gibson, 13 Ala. 587.
1 Hale v. Milwaukee Dock Co. 29 Wis. 482, s. r. 9 Am. R. 603.
8 Cass v. Boston <fe Lowell R. R. Co. 14 Allen, 448.
See First National Bank v. Graham, 79 Penn. St. 106, s. c. 21 Am. R. 49, 53.
10 Aldrich v. Boston & Worcester R. R. Co. 100 Mass. 31, s. c. 1 Am. R. 76.
11 Fairfax v. N. Y. Central, fcc. R. R. Co. 67 N. Y. 11, rev'g 40 Super. Ct (J. & S )
128.
12 Lichtenhein v. Boston <fe Providence R. R. Co. 11 Cush. (Mass.) 70.
13 Cases in paragraph 6, note 9.
COMMON CARRIERS OF GOODS. 563
III. ACTIONS AGAINST COMMON CARRIERS OF GOODS.
21. Defendant a common carrier^ If plaintiff relies on de-
fendant's common law duty, he must show him to have been a
common carrier. 1 This may be done by testimony of a wit-
ness that defendant had habitually done business as such for all
that called on him; 2 or by producing defendant's advertisements
or hand-bills issued before the transaction ; 8 or any other admis-
sions. Ownership of the vessel or vehicle is not necessarily
enough, if defendant did not act as carrier in taking the goods. 4
Under an express contract, it is not necessary to prove that
defendant had an interest in the vessels or vehicles employed. 5
If defendant was also a warehouseman, forwarder, &c., plaint-
iff should show that he received the thing as carrier. 6 Re-
ceiving it marked to go to an address upon his route, is presump-
tive evidence that he took it as carrier/ A receipt given by him
stating that the thing was received to be forwarded does not
exclude evidence of the agreement to transport under which it
was given. 8
22. Delivery to carrier^] Plaintiff must show that the prop-
erty was actually delivered to defendant by being placed in such
a position that it might be taken care 01 by him or his agent
having charge of the business, and so as to be under his imme-
diate control. 9 Neither notice that the goods are ready, without
putting them in his custody, 10 nor delivery on his premises with-
out notice, 11 is enough. To prove delivery a witness may testify
that the goods were delivered to the defendant, subject of
course to cross-examination as to details ; but where the details
have been stated he cannot be allowed to testify whether they
constituted a delivery. 12 Evidence of the usual course of busi-
ness, is competent, for the purpose of showing whether the fact
1 Edw. 496.
9 Ilaslam v. Adams Express Co. 6 Bosw. (N. Y.) 235.
8 Farmers <fe M. B'k v. Champlain Transportation Co. 23 Vt. 186.
4 Fish v.Clark, 49 N. Y. 122, 'offi'g 2 Laus. 176. Compare Moss v. Bettis, 4
Heisk. (Tenn.) 661, s. o. 13 Am. R. 1.
6 Van Buskirk v. Roberts, 31 N. Y. 661.
6 Stout v. Coffin, 28 Cal. 65. For the conflict of opinion as to the burden of
proof and presumptions in case of carriage of animals, see Crajrin v. N. Y. Cen-
tral, <fec. 51 N. Y. 61, 49 N. Y. 204; Steiger v. Erie Rw. Co. 5 Hun, 345; Kansas
Pacific Railw. Co. v. Nichols, 9 Kan. 235, 8. c. 12 Am. R. 494 ; Lake Shore <fe Mich-
igan Southern R. R. Co. v. Perkins, 25 Mich. 329, s. c. 12 Am. R. 275; Kendall v.
London <fc South-western Rw. Co. L. R. 7 Ex. 373; and see 13 Am. R. 42, 53, note,
and cases cited; 4 South. L. R. N. S. 664.
7 Laduo v. Griffith, 25 N. Y. 364; and seo ./Etna Ins. Co. v. Wheeler, 49 N. Y.
616, 621; affi'g 5 Lnns. 480.
8 Blossom v. Griffin, 13 N. Y. C69 ; and fee Pcovill v. Griffith, 12 N. Y. 509.
Grosvenor v. N. Y. Central R. R. Co. 39 N. Y. S4, s. c. 6 Abb. Pr. N. S. 345.
10 Id.
11 Spade v. Hudson River R. R. Co. 16 Barb. 383; Rose. N. P. 609.
IJ Bowrio v. Baltimore, <fec. R. R. Co. 1 McArthur, 609.
564 ACTIONS AGAINST BAILEES, Ac.
constituted a delivery. 1 Evidence of admission of the fact of
the loss of the goods is competent on the question of delivery. 2
Delivery may also be shown by the bill of lading 8 or receipt
given by defendants ; or by an entry in defendants' books show-
ing that they had had possession of the goods. 4 The handwriting
of the agent need not be proved if the entries appear to have
been made in the same handwriting for a sufficient length of
time for the jury to be satisfied that the person making them
was a recognized agent of the company. 5 The bill of lading or
receipt may be proved by producing it with proof of signature, 6
and of agency of clerk or servant who gave it. 7 The place of
delivery is material where the agent's authority depends on it ; 8
otherwise a variance in it is immaterial. 9
23. Authority of receiving agent.~\ In case of delivery to an
agent or servant, the burden is on the plaintiff to show that the
person was an agent of defendants, and authorized to receive the
property for them, and to contract for its transportation. 10 Very
slight evidence that a person, assuming to act as defendant's
agent, was his agent, suffices to go to the jury. 11 But neither
hearsay, 13 nor the supposition of the witness, 13 is competent. Evi-
dence of a single similar act on the part of the alleged agent,
and of a recognition of it by the defendant, may be enough. 14 But
evidence that the clerk was accustomed to receive goods at the
company's office does not show authority to receive them at other
places. 15 Prima facie, a servant of common carriers, allowed by
1 Vaughan v. Raleigh, Ac. R. R. Co. 63 N. C. 1 1 ; Edw. on B. 288 ; Root v.
Great Western Railw. Co. 1 Supm. Ct. (T. & C.) 10, s. c. 65 Barb. 619, affi'd in 55 N.
Y. 636; Bartee v. Wheeler, 49 N. II. 9, s. o. 6 Am. R. 434.
8 Southern Express Co. v. Thornton, 41 Miss. 216, 222.
3 Notwithstanding it includes other goods not mentioned in the complaint. Wal-
lace v. Vigus, 4 Blatchf. (Ind.) 260.
4 Root v. Great Western R. Co. 1 Supm. Ct. (T. <t C.) 10, B. c. 65 Barb. 619,
affi'd in 55 N. Y. 636.
6 Id.
6 According to rules stated on pp. 891 to 398 of this vol. Armstrong v. Fargo,
8 Hun, 175.
'Id.
8 Cronkite v. "Wells, 32 N. Y. 247. As to delivery " on board," compare Goddard
T. Mallory, 52 Barb. 87 ; Brown v. Powell, <fcc. Co. L. R. 10 C. P. 562, s. c. 14
MoaFs En:r. 420.
9 Newstadt v. Adams, 5 Duer, 43.
10 Thurman v. Wells, 18 Barb. 500.
11 West( rn Transp. Co. v. Hawley, 1 Daly, 327 ; Rogers v. Long Island R. R. Co.
2 Lans. 2fi9; and see Hughes v. N.'Y. <fe N. H. R. R. Co. 36 Super. Ct. (J. <fe S.) 222.
As to evidence of authority to sign bills of lading on ship, see Ward v. Green, 6
Cow. 173; Dows v. Greene, 16 Barb.72 ; The Freeman v. Buckingham, 18 How. 182;
Walter v. Brewer, 11 Mass. 99 ; Reynolds v. Toppan, 15 Mass. 37l> ; Citizens' Bank v.
Nantucket Steamboat Co. 2 Story C. Ct. 16.
14 Spade v. Hudson River R. R. Co. 16 Barb. 383.
13 Butler v. Hudson River R. R. Co. 3 E. D. Smith, 571.
14 "Wilcox v. Chicago, dc. R. R. Co. 6 Reporter, 114; Glasco v. N. Y. Central R.
R. Co. 33 Barb. 657.
15 Croukite v. Wells, 32 N. Y. 247.
COMMON CARRIERS OF GOODS. 565
them to take particular property for carriage, takes it as their
servant ; and the fact that they allowed him to retain the com-
pensation does not rebut this presumption, without evidence that
the credit was given to him by the owner of the goods. 1
24. Implied contract^ Evidence that the goods were deliv-
ered on board is sufficient to charge the carrier without showing
a bill of lading or other express agreement made. 2
25. Address / Instructions ; "C. 0. 7?."] The address maybe
proved by a witness without producing the writing. 3 It is prima
facie evidence of instructions to deliver or forward accordingly. 4
Instructions or remonstrances as to care, communicated to the
defendants or their proper servant, by the plaintiff or his agent, 5
are competent, as charging them with notice of their duty. 6 A
mistake, even in written instructions, drawn up by defendant's
agent, contrary to the previous oral agreement, may be proved
by parol. 7
The mark " C. O. D." may be explained by oral evidence of
usage not inconsistent with it. 8
26. Express contract.'] A contract, if alleged as the founda-
tion of the action, must be proved, and negligence not alleged
may also be proved ; 9 but without proof of contract, negligence
in gratuitous carriage is not enough. 10 Omission to allege special
exemptions in the contract is not material, unless there is evi-
dence to bring the case within an exemption. 11 The bill of lad-
ing or receipt, unless admitted in pleading, must be proved to
have been executed on defendant's part, before it can be put in
evidence. It is proved by evidence of the signature, 12 and of the
authority of the agent if signed by agent. 13 In addition to the
general principles already stated, 14 it should be observed that if
duplicate bills of lading or contracts are given, the one signed by
defendant and delivered to plaintiff is the primary evidence in
1 Farmers, <fec. Bank v. Champlain Transp. Co. 23 Yt. 186, 203. Compare Butler
v. Basing, 2 C. & P. 613.
9 Robinson v. Chittenden, 69 N. Y. 625, 531, rev'g 7 Hun, 133; 8. p. Baylis v.
Lintott, L. R. 8 C. P. 345, s. c. 5 Moak's Eng. 319.
3 Burrell v. North, 2 Car. <fc Kirw. 680 ; s. p. Commonwealth v. Morrcll, 99 Mass.
642.
* Edw. on B. 580.
* SOLS South, <to, Ala. R. R. Co. v. Henlein, 62 Ala. 606, s. c. 23 Am. R. 678.
6 Black v. Camden, <fec. R. R. Co. 45 Barb. 40, 412 ; and see paragraph 16.
' Malpas v. London <fc S\v. Ry. Co. L. R. 1 C. P. 336 ; Rose. N. P. 20.
8 C'ollender v. Dinsmore, 55 N. Y. 200.
9 Bostwick v. Baltimore, <fec. R. R. Co. 45 N. Y. 712, rev'g 65 Barb. 137.
10 Flint, fcc. Rw. Co. v. Weir, N ich. S. Ct. June. 1877; Cent, L. J. 2S5.
11 Newstadt v. Ad ms, 5 I)uer, 43 ; School District in Medfield v. Boston, IL A
Erie R. R. Co. 102 Mass. 652, 655, 8. c. 3 Am. R. 602. Comrmre Edw. on B. 671.
19 For t!>e mode of proving signature, see pp. 891-8 of this voL Armstrong v.
Farg->. 8 Hun, 145; and see The Colombo, 3 Blatchf. 521.
"Paragraph 23.
M Paragraphs 2 and 8, and 2L
566 ACTIONS AGAINST BAILEES, <fcc.
plaintiff's favor, 1 and, if the two differ, is the controlling evi-
dence of the contract as against the carrier, and in favor of the
holder of the bill. 3 A promise of the agent of a second line,
after receiving the goods and without new consideration, to for-
ward them earlier than in usual course, is not evidence from
which the jury may infer a contract to do so. 8 The power of a
railroad company to make an express contract to carry beyond its
own terminus may be presumed. 4
27. Authority to make special contract^ Evidence that the
agent was the head agent of the road, at the station where the
goods were received, and had full charge of receiving and for-
warding there, is sufficient to sustain an inference that he was
authorized to make a special contract in the ordinary course, 8
although he testify that he was not. 6 A single similar act, and
the ratification of it by the defendants, may be enough to justify
inferring authority. 7
28. Description of "goods."] A variance in description which
does not mislead is not usually material. 8 The invoice is not
alone competent to prove contents of packages. 9 Its competency
usually depends on the witness. 10
29. Amount.'] If plaintiff produces no bill of lading, he must
in some other way show the amount delivered to the carrier. n
The returns of a private measurer are not competent against one
who did not assent to his measuring, 12 except as auxiliary to the
testimony of a witness. 13
30. Condition^ It is not an absolute rule that plaintiff must
give direct evidence that the injured goods were in good condition
when shipped ; M but it is enough to show the existence on the
vessel of a probable cause of the injury shown. 15 Goods shipped
in cases are presumed to h?,ve been properly packed and in fit
state for transportation. 16 Evidence that, at the time of delivery,
1 Cleveland & Toledo R. R. Co. v. Perkins, 17 Mich. 296.
9 The Thames, 14 Wall. 105.
3 Railroad Company v. Reeves, 10 Wall. 176.
4 Railway Company v. McCarthy, 96 U. S. (6 Otto), 258, 266 ; and see Simmons
T. Law, 4 Abb. Ct. App. Dec. 241. As to carriage bi-yond the realm, 630 Nugent v.
Smith, L. R. 1 C. P. L)iv. 423, s. c. 17 Moak's Eng. 330, reVg L. R. 1 C. P. Div. 19,
25, s. c. 15 Moak's En^'. 203, 209.
5 Tnff Vale Rw. Co. v. Giles, 22 Eng. L. <fe Eq. 202.
* Deming v. Grand Trunk Rw. Co. 43 N. H. 455, s. c. 2 Am, R. 267.
* Wi'.c<oc v. Chicago, Ac. R. R. Co. 6 Reporter, 114.
* See Zeigler v. "tt ells, 28 Cal. 263, 265.
9 Watson v. Yates, 10 Mart. La. 688.
10 See pp. 319 to 326 of this vol.
11 Manning v. Hoover, Abb. Adm. 188.
14 Bissel v. Campbell, 54 N. Y. 853.
13 Pages 319 to 826 of this vol.
14 Paragraph f, note 8.
15 Moore v. Harris, L. R. 1 Abb. Cas. 318, 326, s. c. 16 Moak's Eng. 4L
" Euglish v. Ocean Steam Nav. Co. 2 Blatchf. 425.
COMMON CARRIERS OF GOODS. 567
the goods wore in good condition, in those respects in which they
were open to inspection, is proved prima facief but not conclu-
sively, bv words in the bill of lading signed by defendants, such
as " in good order," or " well conditioned," 2 and this presumption
is not reduced by the words " weight, contents and value un-
known." 3 This evidence suffices to throw the burden of proof
upon the carrier, to show that the goods were not in good order
when received by him. 4 If defendants were a connecting line,
evidence of delivery to the first company in good order raises
a presumption that the goods came to defendant's hands in good
order. 5
Evidence of bad condition when the drayman employed by
the carrier delivered the goods to plaintiff, is competent against
the carrier from whom the drayman received them. 6 If defend-
ants were the earlier of several connecting lines, and injury in
their possession is shown, it may be presumed, in absence of any-
thing to indicate the contrary, that no further injury occurred
while the goods were in the hands of the succeeding carrier. 7
Evidence as to bad condition is not necessarily confined to the
period when the goods were in the carrier's possession as carrier,
but may include a later time within limits affording just infer-
ences as to the existence, nature and cause of injury in relation
to that period. 8 The declarations and admissions of the carrier's
agent are competent within limits already stated. 9 The letter of
plaintiff's agent, to him, written on receiving the goods, and stat-
ing their condition, is not evidence in favor of plaintiff against
the bailee from whom the agent received them. 10
Plaintiff having given a receipt for the goods as delivered to
him in good condition, may explain it by testimony that they
were not, and that he wished to qualify the receipt, but was not
allowed to do so. 11
31. Instructions: Route: Terminus^ A bill of lading or
receipt does not exclude oral evidence of instructions not incon-
sistent with it. 12
If the receipt or bill expressly allows forwarding by any car-
' Hastings v. Pepper, 11 Pick. 41 ; Nelson v. Woodruff, 1 Black, 156, 160.
s Tarhox v. Eastern Steamboat Co. 60 Me. 339.
* English v. Ocean Steam Nav. Co. 2 Blatchf. 425; and see The Columbo, 3 Id.
621 ; The California, 2 Snwy. 12.
* Trice v. Powell, 3 N. Y. 322; Illinois R. R. Co. v. Cowles, 32 111. 116, 121.
4 Smith v. N. Y. Centnl II. R. Co. 43 Barb. 225 ; Edw. on B. 671 ; Laughlin T.
Chicago. <fcc. R. R. Co. 28 Wis. 204.
B.ircluy v. Clyde, 2 E. D. Smith, 95.
' The Norman, 1 Newb. Adm. 625.
8 Curtis v. Chicago, <fec. R. R. Co. 18 Wis. 312; Holden v. N. Y. Central R. R,
Co. 64 N. Y. 662.
9 Page 44 of this vol. Burnside v. Grand Trunk R. R. Co. 47 N. II. fiM.
10 Owen v. Jones, 14 Ark. 602. Compare Beaver v. Taylor, 1 Wall. 637.
" Tierney v. N. Y. C. & U. R. R. R. Co. 10 HUD, 669.
" Edw. on B. 684.
568 ACTIONS AGAINST BAILEES, Ac.
rier, evidence of oral instructions to forward a particular way is
not competent against the carrier. 1 If only the termini of a voy-
age are mentioned, there is a presumption that a direct voyage was
intended ; but this may be rebutted by evidence of usage, or parol
understanding ; 2 but if it be shown that there were two usual and
customary routes, the carrier has his option, and cannot be charged
by oral evidence of an agreement to take one exclusively. 3
Plaintiff may show an express oral agreement, 4 or an implied
agreement arising from the usage of business and his instruc-
tions, 5 as to what was to be done with the goods after reaching
the terminus specified in the bill of lading, even though it require
further transportation. 6
32. Stowage. .] A clean bill of lading imports that the goods
are to be carried under deck ; and parol evidence of a prior or
contemporaneous agreement of the shipper and carrier, that they
might be carried on deck is not competent ; 7 but evidence of a
usage of the particular trade so to carry is competent. 8 Evidence
of an agreement for particularly careful stowage under deck may
be competent. 9
The actual stowage may be shown by the declarations of the
master, under limits already stated. 10
The question whether goods were properly stowed is a proper
subject for expert testimony ; and a seafaring man accustomed to
stowing and carrying such goods is competent to give an opin-
ion ; u but the question whether the injury could have occured to
the goods had they been stowed as alleged may not be. 12
33. Time: Delay.] A bill of lading making no mention of
time, cannot be varied by evidence of an incidental oral stipula-
tion as to time. 13 But evidence of usage is competent. 14
Since the time of the arrival is peculiarly within the carriers'
knowledge, very slight evidence on plaintiff's part suffices to
I Hincldey v. N. Y. Central R. R. Co. 56 N. Y. 429.
II Lowry v. Russell, 8 Pick. 360. Compare Niles v. Culver, 8 Barb. 205 ; "White
V. Van Kirk, 25 Id. 16.
3 White v. Ashton, 51 N. Y. 280.
4 Baltimore, <fec. Steamboat Co. v. Brown, 54 Penn. St. 77.
6 Hooper v. Chicago & Nev. R. R. Co. 27 Wis. 81, s. c. 9 Am. R. 439.
5 Baltimore, <fec. Steamboat Co. v. Brown (above). Compare Wolfe v. Myers, 3
Sandf. 7.
1 The Delaware, 14 Wall. 579, 692, and cases cited ; Edw. on B. 588 ; and if it
stipulates that a part may be so carried, oral evidence of consent that others be so
carried is incompetent. Sayward v. Stevens, 3 Gray, 97, 102. The owner's knowl-
edge is not a waiver. The Petona, Ware, 2d. ed. 541.
8 Baxter v. Leland, 1 Blatchf. 626. But see p. 296 of this vol.
9 The Star of Hope, 2 Sawy. 15
10 Page 44 of this voL Price v. Powell, 3 N. Y. 322. Compare Mallory v. Per-
kins, 9 Bosw. 572.
11 Price v. Powell, 3 N. Y. 322.
14 New Eng. Glass Co. v. Lowell, 7 Cush. (Mass.) 319.
13 Higgins v. U. S. Mail Steamship Co. 3 Blatchf. 282,
14 Id. Cochran v. Retberg, 3 Esp. 121.
COMMON CARRIERS OF GOODS. 569
throw on them the burden of proof as to time." 1 If injury is
shown to have been caused by delay, plaintiff need not .show the
delay to have been unreasonable ; but the burden is on the car-
riers to excuse it. 2 The cause of delay may be shown by evidence
of declarations forming part of the res gestcw? If the carriers ex-
cuse delay by reason of accumulation of freight, evidence that
other goods subsequently shipped arrived sooner is competent as
tending to prove that plaintiff's goods were not sent in regular
order. 4
34. Burden of proof as to loss, and cause of loss?] The us-
ual course of proof is for plaintiff to produce the bill of lading,
showing the delivery of the property to defendants and their con-
tract to carry, and to prove non-delivery, or arrival in a damaged
state, and the damages sustained. This evidence, if there be
nothing to indicate that the loss was from a cause consistent with
the carriers' exemption from liability, 6 makes a, prima facie case, 7
sufficient to go to the jury in the absence of other evidence. The
presumption is that the injury was occasioned by defendants' act
or default. 8
If defendants rely on an exemption by reason of the nature of
the cause of loss, they must show that it was one of the excepted
perils ; 9 but need not disprove negligence unless the circumstances
are of such a character as to raise a presumption of negligence. 10
Defendants having thus shown that the loss was due to an ex-
cepted peril, the burden is thrown on plaintiff to show defend-
ants' negligence. 11
If plaintiff's case shows a cause of loss presumptively consist-
ent with the carriers' exemption, he must go further and show
Place v. Union Expre<a Co. 2 Hilt. 19.
3 Harris v. Northern Ind. R. R. Co. 20 N. Y. 232, 236.
8 Sisson v. Cleveland, <tc. R. R. Co. 14 Mich. 489, 496.
4 Acheson v. N. Y. Central & II. R R. R. Co. 61 N. Y. 652.
6 The rule here stated is applied by the majority of the best considered cas?s, al-
though there tiro numerous authorities to thj contrary. It is applicable alike in
cases of loss by expressly excepted perils, and of injury by latent causes existing in
tho goods before the issue of the bill of lading. When there is no contract, and the
question is solely on the carrier's common law liability, Wharton says the carrier has
the burden of disproving negligence. Whart on Neg. 593, ^ind see Agnew v.
Steamer, 27 C'nl. 425, 431. Contra, 5 Am. L. Rev. 205, 225.
For the reasons in f:ivr of requiring the carrier to prove the cause of loss, see,
Rixford v. Smith, 62 N. II. 355, s. c. 13 Am. R. 42. For the contrary, see the dis-
senting opinion by BIGELOW, C. J., in Cass v. Boston <t Lowell R. R. Co. 14 Allen, 448.
6 Paragraph 6.
7 Transportation Co. v. Downer, 11 Wall. 133, nnd cases cited ; Fenn v. Timpson,
4 E. D. ^mith. 276; bhaw v. Gardner, 12 Gray, 488. So held of live stock. Louis-
ville, Ac. R. R. Co. v. lle.lgrr, 9 Bush. (Ky.) 645, s. c. 15 Am. R. 740.
8 Nelson v. Woodruff, 1 Muck, 156, 160.
* Id. ; Steamer Ni igura v. Cordes, 21 How. U. S. 7, 29 ; Taylor v. Liverpool &
Gt. Western bteam Co. L. R. 9 Q. B. 546, s. c. 10 Moak's Eng. 172.
10 Transportation C'o. v. Downer, 11 Wall. 133, and cases cited.
11 Downer v. Steam Nav. Co. (above); Railroad Co. v. Reeves, 10 Wall. 176; Pat-
terson v. Clyde, 07 Penn. St. 500 ; Faruham v. R. R. 55 Id. 63.
570 ACTIONS AGAINST BAILEES, <fcc.
negligence. 1 If it shows loss from a cause that would not havo
happened but for the want of care on defendants' part, this is
enough to go to the jury. 2 Proof that defendants carried the
thing in a manner contrary to reasonable instructions on the
package, throws on them the burden of proving that the injury
was not attributable to this. 3
35. Contract of connecting lines.'] The carrier's acceptance
of goods marked for a point beyond his own route, does not
alone imply a contract involving liability as carrier beyond his
route. 4 But such a liability may be established by express con-
tract, 5 or by showing circumstances indicating such an under-
standing, 6 for instance, that the company held itself out as a
carrier for the entire distance, 7 or received freight for the entire
distance, 8 or even agreed on an entire sum to be paid at the other
end ; 9 or that the connecting lines divided through freights in an
agreed manner. 10
36. Non-delivery. ,] If plaintiff alleges non-delivery, the bur-
den is on him to prove it. 11 Slight evidence is sufficient to go to
the jury in the absence of evidence of delivery. 12 Evidence of
the declaration or admission of the agent of the carrier (if com-
petent,) 13 to the effect that the goods were lost, or that he did not
1 Paragraph 6.
s Russell Mfg. Co. v. N. H. Steamboat Co. 50 N. Y. 121, distinguishing Lamb v.
Camden & Amboy R. R. Co. 46 Id. 121. Evidence that the casualty or the inability
to rescue the goods resulted from a defect in the vehicle, is sufficient, without further
proof of negligence, to sustain a verdict against the carrier. Empire Transp. Co. v.
Wamsutta Oil Co. 63 Penn. St. 14, s. c. 8 Am. II. 615. If defendant would reduce
the damage by tlie fact that the injury chiefly caused by his negligence was partly
owing to an excepted peril, he must show to what extent. Speyer v. The Roberts, 2
Sawy. 1.
a Hastings v. Pepper, 11 Pick. 41.
4 This is now recognized as the American rule. R. R. Co. v. Pratt, 22 Wall. 129,
and cases cited; Root v. Great W. R. R. Co. 45 N. Y. 524 ; Gr.iy v. Jackson, 51 N.
H. 9, s. c. 12 Am. R. 1. The English rule, adopted in a few of the States, is the con-
trary. Muschamp v. Lancaster, <fec. R. R. Co. 8 Mees. & W. 421 ; Nashua Lock Co.
v. Worcester & Nashua R. R. Co. 48 N. H. 339, s. c. 2 Am. R. 242, and cases cited ;
Angle v. Mississippi, <tc. R. R. Co. 9 Iowa, 487, 493; 2 Am. Law Rev. 420 ; Gray v.
Jackson, 51 N. H. 9, s. c. 12 Am. R. 1, and esses cited. But the presumption may
be rebutted. Cincinnati, <fec. R. R. Co. v. Pontius, 19 Ohio St. 221, s. c. 2 Am. R. 391.
8 Contra, as to railroad companies in Connecticut, 22 Conn. 502 ; 33 Id. 166.
6 R. R. Co. v. Pratt (above).
* Id. ; Mann v. Birchard, 40 Vt. 326, 337.
8 R. R. Co. v. Pratt (above); St. John v. Express Co. 1 Woods, 612 ; and fee
Nashua Lock Co. v. Worcester & Nashua R. R. Co, 48 N. II. 339, s. c. 2 Am. R. 242.
9 R. R. Co. v. Pratt (above).
10 Barter v. Wheeler, 49 N. H. 9, s. c. 6 Am. R. 434 ; Nashua Lock Co. v. Worcester
& Nashua R. R. Co. 48 N. H. 339, s. c. 2 Am. R. 242, and cases cited.
11 Woodbury v. Frink, 14 111. 279 ; The Falcon, 3 Blatchf. 64. If the contract al-
lows delivery to either of two persons, the evidence must relate to each. The Fal-
con (above).
18 Griffith v. Lee, 1 Carr. <t R. 110; The Falcon (above); Rose. N. P. 610; Pkce
V. Union Express Co. 2 Hilt. 19.
"Paragraph 44.
COMMON CARRIERS OF GOODS. 571
know of their delivery, and believed he must have known if they
had been delivered, is prima facie enough. 1 Non-delivery (or
delivery in bad condition) by the last of the lines connecting with
defendants', by which the goods ought to have been carried after
they left defendants' hands, is prima facie evidence of non-de-
livery (or delivery in bad condition, as the case may be) by de-
fendants. 2
37. Negligence.'] A negligent breach of contract may be
proved, though negligence be not alleged. 3
Non-delivery, or delivery, in bad condition, of goods received
in good condition, is prima facie evidence of negligence. 4 So is
unusual delay in failing to deliver according to the general course
of business. Negligence may be presumed from a loss and
failure to give any account. 6
A demand and refusal to deliver, unexplained, is enough to
go to the jury as evidence of fraud or gross negligence. 7 But
accident unexplained is not sufficient evidence of gross negli-
gence. 8 Where the plaintiff is required, by the terms of the re-
ceipt, to prove negligence, he must also show that it caused or at
least contributed to the injury. 9
38. Cause of injury.'] If a cause, the knowledge of which
involves special experience or skill, is assigned, such as unsea-
worthiness, 10 bad stowage, 11 or chemical action, 12 and the like, the
opinions of witnesses are competent ; but, on inferences from
facts of common observation and experience, they are not. 13
"Weather may be proved by testimony of witnesses, 14 or by the
official record of weather ; and whether its severity was suffi-
cient to freeze the goods, by the opinions of witnesses cognizant
of the mode in which they were protected. 16
1 Edw. on B. 069.
s Laughlin v. Chicago, Ac. Rw. Co. 28 Wis. 204, P. c. 9 Am. R. 493.
8 Bostwick v. Baltimore <fe Ohio R. R. Co. 45 N. Y. 712, rev*g 55 Barb. 137 ; and
see School District in Medfield v. Boston, II. <fe Erie R. R. Co. 102 Mass. 552, s. c. 3
Am. R. 502.
4 Story on B. 629 ; Edw. on B. 671 ; Westcott v. Fargo, G Lans. 310, 326.
So, also, of baggage, 45 N. Y. 184. But it is error to charge that this throws the bur-
den of proof on defendant to show duo care. Cochrau v. Dinsmore, 49 N. Y. 249.
8 Mann v. Birchard, 40 Vt. 326, 337.
6 Am. Express Co. v. Sands, 55 Pcnn. St. 140.
* Newstaclt v. Adams, 5 Duer, 43, and cases cited ; Steers v. Liverpool, <tc. St.
Co. 67 N. Y. 1.
8 French v. Buffalo, N. Y. & Erie R. R. Co. 2 Abb. Ct. App. Dec. 196 ; Bankard
v. Baltimore, <fcc. R. R. Co. 34 Md. 197, 202.
9 Cocluan v. Dinsmore, 49 N. Y. 249.
10 Baird v. Daly, 68 N. Y. 547.
11 Paragraph 32.
" Turner v. The Black Warrior, 1 McAll. 181.
13 Ilayme v. Naylor, 18 Tex. 498, 609 ; and see pp. 310, 387 of this ToL
14 Curtis v. Chicago, <fec. K. R. Co. 18 Wis. 812.
'* Page 499 of this vol.
16 Curtis v. Chicago, <tc. R, R. Co. (above).
572 ACTIONS AGAINST BAILEES, <tc.
39. Theft or rollery.~\ The burden of proof, as to whether
theft or robbery was committed by the carrier's servants or by a
stranger, is on the carrier. 1 It is enough for plaintiff in any case
to show that it is more probable the carrier's servant committed
it, than that a stranger did ; he need not fix the probability on
any particular person. 2 Declarations of the proper officer of de-
fendants' to the police, when causing investigation, are competent
against the defendants. 8
40. Conversion .] An allegation of conversion does not
admit of evidence of mere loss, non-delivery, 4 or delayed de-
livery. 5
41. Plaintiffs title.'] If another than plaintiff is not named
as consignee, plaintiff's evidence that the carrier's contract, ex-
press or implied, was made with himself, is sufficient proof of
his title. 6 If plaintiff is the consignor in a bill of lading or
receipt naming another as consignee, he must give extrinsic
evidence of his ownership, to rebut the presumption that the
consignee is owner, 7 unless he shows a special contract with
himself, not necessarily dependent on title to the goods. 8 If he
is consignee, the bill or receipt naming him, or the fact of con-
signment, is alone presumptive 9 but not conclusive 10 evidence of
his ownership. If plaintiff is not named, evidence of an assign-
ment to him from the consignee, 11 or his possession of the bill of
lading by indorsement from the consignee, 12 or even possession of
an unindorsed bill of lading, with extrinsic evidence that plaintiff
is a bona fide holder for value, by a transfer with intent to pass
title, 13 is enough.
1 Knell v. U. S. & Brazil Steamship Co. 33 Super. Ct. (1 J. <fe S.) 423 ; and see
28 "Wise. 204, s. c. 9 Am. R. 493.
1 Vaughton v. London <fe N. W. Ry. Co. L. R. 9 Ex. 93, s. c. 8 Moak's Eng.
535.
3 Kirkstall Brewery Co. v. Furness Ry. Co. L. R. 9 Q. B. 468, s. c. 10 Moak's
Eng. 118.
4 Tolano v. National Steam Navigation Co. 5 Robt. 318, s. c. 4 Abb. Pr. N. S.
316, 35 How. Pr. 496.
Brings v. N. Y. Central R. R. Co. 28 Barb. 515.
6 Paragraphs 4 and 5. Further proof of title, ii required, may be made as stated
in the chapter on CONVERSION.
7 Sweet v. Barney, 23 N. Y. 335,affi'g 24 Barb. 533 ; Krulder v. Ellison, 47 N. Y.
36.
8 Southern Express Co. v. Craft, 49 Miss. 480, s. c. 19 Am. R. 4; Dunlop v.
Lambert, 6 Cl. <fe P. 600, 8. P. Blanchard v. Page, 8 Gray, 281. Compare Thompson
v. Fargo, 49 N. Y. 188, rev*g 58 barb. 575.
9 Sweet v. Barney (above) ; Ogden v. Coddington, 2 E. D. Smith, 317 : Taplin v.
Packard, 8 Barb. 220. Compare Ela v. Am. Merchants' Union Express Co. 29 Wis.
611, 8. c. 9 Am. R. 619.
10 Price v: Powell, 3 N. Y. 322 ; Shepherd v. Harrison, L. R. 5 H. L. 116.
11 Chandler v. Belden, 18 Johns. 157 ; proved as stated in chapter I.
" The Thames, 14 Wall. 106, and cases cited.
13 Merchants' Bk. v. Union Co. 8 Hun, 249.
COMMON CARRIERS OF GOODS. 573
Oral evidence to show the real part y in interest, is admissible
within limits already stated. 1
42. Oral evidence to explain or vary bill or receipt.} A bill
of lading, or other voucher giving the terms of transportation,
cannot, in the absence of fraud or concurrent mistake, be varied
by parol. 2 The principle does not exclude an antecedent parol
agreement of a different character, and imposing a different but
not inconsistent obligation. 8
43. UsayeJ] Evidence of usage is admissible to explain
either the language of the parties, 4 or the course of business in
view of which they contracted so as to show what acts constitute
a performance ; but not to vary or contradict the written con-
tract, or vary the obligation created by it.
44. Declarations of agentsJ] The principle determining the
competency of agents' declarations has already been stated. 5
45. Defenses : Generally^ Except as against a bona fide
transferee of the bill of lading for value, 6 the carrier may contra-
dict it, as to the delivery to him of the goods, 7 or as to their
description, 8 quantity, 9 or condition. 10
1 Tages 298, 360 and 609 of this vol. Ide v. Sadler, 18 Barb. 32. Compare
Chapin v. Siger, 4 McLean, 378.
a Paragraphs 3 and 25-33 ; Long v. N. Y. Central R. R. Co. 60 N". Y. 76. For a
freer statement of the principle, see Baltimore, <fec. Steamb. Co. v. Brown, 54 Penn.
St. 77.
Thus, if it stipulates for the most direct route, it cannot be varied by evidence of
a previous or contemporaneous oral agreement allowing deviation. Stapleton v.
King, 33 Iowa, 28, 8. c. 11 Am. R. 109. If the vessel is mentioned, it is presumed
to have been selected by the owner with regard to voyage and date of sailing.
Goddard v. Mallory, 52 Barb. 87. If the carriers rely on the fact that the owner
selected the vehicle with knowledge of defects in it, which caused the injuries, they
must show affirmatively that he had notice of such defects. Harris v. Northern
Indiana R. R. Co. 20 N. Y. 232, 236.
1 Blossom v. Griffin, 13 N. Y. 569. For a summary of the law, as to the effect of
bill of lading, SPO 14 Wall. 600.
4 See pp. 296, 485 and 517 of this vol. The Delaware, 14 Wall. "579; The
Schooner Reesule, 2 Sumn. 667 ; Bourne v. Gatliffe, 11 Cl. & F. 45. 71.
6 Page 44 of this vol. Burnside v. Grand Trunk R. R. Co. 47 N. IT. 554; Price
v. Powell, 3 N. Y. 322, 325 ; Fogg v. Child, 13 Barb. 246 ; Virginia & Tenn. R. R.
Co. v. Sayers. 26 Gratt. 323, 351 ; Packet Co. v. Clough, 20 Wall. 528, 540; Gt. W.
Ky. Co. v. Willis, L. J. 34 C. P. 195-, a. c. 18 C. B. N. S. 748.
* Dickerson v. Seelye, 12 Barb. 99. Against such a holder, fraud, Ac. must bo
shown. Backus v. Marengo, 6 McLean, 487. Compare Byrne v. Weeks, 7 Bo3W.
372, 4 Abb. Ct. App. Dec. appendix.
7 Schooner Freemnn v. Buckingham, 18 How. U. S. 192; The Lady Franklin, 8
Wall. 328 ; Sutton v. Kettell, Sprague's Decisions, 307 ; Brown v. Powell Duffryn
Steam Coal Company, L. R. 10 C. P. 562, s. c. 14 Moak's En?. 420. He may show
that the thing for instance, money was such ss by uniform usage was never
received by him as a common carrier, but only by his servants on their own ac-
count (Knox v. Rives, 14 Ala. 249, 257); and that in this instance plaintiff made a
Erivate arrangement with the servant, or gave credit to him ulone (Farmers', <fec.
k. v. Champlain Transp. Co. 23 Vt. 186).
8 See Hale v. Milwaukee Dock Co. 29 Wis. 482, s. c. 9 Am. R. 603.
Wolfe v. Myers, 3 Sandf. 7; Graves v. Harwood, 9 Barb. 477, 481. But th
proof of mistake must be clear. Goodrich v. Norris, Abb. Adm. 196. The method
of ascertaining quantity, which was resorted to, may be shown to be such as to be
frequently inaccurate. Manning v. Hoover, Abb. Adm. 188.
10 Hastings v. Pepper, 11 Pick. 41 ; Nelson v. Woodruff, 1 Black, 156, 160; Tarbox
574 ACTIONS AGAINST BAILEES, Ac.
The perils for which the carrier is answerable, 1 depend on the
express contract, if any, and on settled rules of law ; and evidence,
if not competent to show a usage, not to be liable for a peril thus
imposed. 2
46. Contract for restricted liability.'} The doctrine of the
courts of the United States and those of some of the States is,
that a common carrier for hire cannot stipulate for exemption
from liability for negligence of himself or servants. 8 The doc-
trine of the New York courts, and those of some other States, is
that he may, by express words, but not by a general phrase which
does not express negligence. 4 If the contract was made in one
State, to be performed in another, the parties may be presumed
to have made part of their agreement that law, which is most
favorable to its validity and performance. 5
47. Evidence of shipper* s assent ; The New York rule*] In
the absence of fraud, concealment or improper practice, the legal
presumption is that stipulations limiting their common-law liabili-
ty, contained in a receipt given by the carriers, were known at the
time of their receiving the goods, and assented to by the party
receiving it. 7 The law conclusively presumes, in the absence of
fraud or imposition, that he read or was informed of its contents. 8
Showing the receipt to have been in plaintiff's possession raises a
presumption of due delivery and assent. 9 Delivery several days
v. Eastern Steamship Co. 50 Me. 339 ; Price v. Powell, 3 N. Y. 322 ; Ellis v. Wil-
laril, 9 Id. 629.
1 Tlie carrier is not liable for losses caused either by : 1. The act of God. 2. The
public enemy. 3. The inherent defect, quality, or vice of the thing carried. 4. Its
seizure, in his hand?, under legal process. 6. An act or omission of the owner.
Clear proof, leaving no reasonable doubt that the loss was from an excepted peril,
hns been said to be necessary. The Mohler, 21 Wall. 230; and see The Newark,
1 Blatchf. 203. But compare page 495 of this vol.
4 The Schooner Reeside, 2 Sumn. 567; Garrison v. Memphis Ins. Co. 19 How.
U.S. 812, 316; Boon v. Steamboat Belfast, 40 Ala. 184. So held, even as to a
part of the route passing through a foreign country. Simmons v. Law, 4 Abb. Ct.
App. Dec. 241, affi'g 8 Bosw. 213.
3 R. R. Co. v. Lockwood, 17 Wall. 357 ; Bank of Kentucky v. Adams Express Co.
93 U. S. (3 Otto), 174; Virginia, <kc. R. R. Co. v. Sayers, 26 Gratt. 328, 348, and
cases cited.
4 Magnin v. Dinsmore, 56 N. Y. 168; Farnham v. Camden, <fec. Transp. Co. 55
Penn. St. 53.
6 Talbott v. Merchants' Despatch Transp. Co. 41 Iowa, 247, s. c. 20 Am. R. 589.
6 The question, which of these conflicting rules shall apply, does not depend on the
law of the place of contract, but on the law of the forum. Hoadley v. Northern
Transp. Co. 115 Mass. 304, s. c. 15 Am. R. 106.
7 Belger v. Dinsmore, 61 N. Y. 166; s. p. in case of passenger and baggage,
Steers v. Liverpool, <fec. St. Co. 57 Id. 1 ; Mulligan v. Illinois Central Ry. Co 86
Iowa, 181, s. c. 14 Am. R. 614; Rose. N. P. 594. Otherwise of a mere check or
token, as distinguished from a contract. Blossom v. Dodd, 43 N. Y. 264. To avoid
the effect of a limited liability clause, on the ground that the bill of lading was given
to agents who had no authority to contract for exemption, it must nppear that the
carriers had notice that the shippers were agents when contracting. York Co. v.
Central R. R. Co. 3 Wall. 107. As to connecting lines, see Irwin v. N. Y. Central R.
R. Co. 59 N. Y. 653, affi'g 1 Supm. Ct. (T. <fc C.) 473.
8 Grace v. Adams, 100 Mass. 505, s. c. 1 Am. R. 131.
9 Booman v. Am. Express Co. 21 \Vis. 158. Under the Massachusetts interpre-
tation of the rule, the presumption of assent may be rebutted by showinj that the
COMMON CARRIERS OF GOODS. 575
after receipt of goods is not conclusive evidence of assent, 1 but
may be made so by proving the uniform cause of dealing. 2
48. the Illinois Rulel\ The Illinois rule, on the contrary,
is that there is no legal presumption that such restrictions, al-
though contained in a formal bill of lading, were assented to by
the shipper, even if his usage of accepting similar bills is shown.
The evidence must justify the finding of knowledge and assent. 3
The burden is on the carrier to satisfy the jury of such a con-
tract, 4 and for this purpose all the circumstances attending the
giving the receipt are competent. 5
49. Fraud as to valueJ] The carrier may show a concealment
of the value, and its exceeding the $50 limit. 6 There is no pre-
sumption that the carrier has knowledge of the contents without
evidence of circumstances tending to show it. 7 A direction
marked on the package, 0. O. D. a sum considerably in excess of
the $50 limit, is notice to the carrier that the value exceeded that
limit. 8 The shipper's admission that the packages were disguised
with the intent that no one should suspect they contained any-
thing valuable, is evidence of fraud. 9 Fraudulent concealment
being shown, plaintiif must show gross negligence, sucli as would
be reprehensible had the value been less than the limit. 10
bill or receipt was not accepted by plaintiff. For instance, it may be shown that the
usual course of business between the parties was not to make out a, receipt, and that,
in the transaction in question, the goods were delivered for plaintiff to defendant by
a casual favor of a stranger, who was not authorized to make a contract (Buckland
v. Adams, 97 Mass. 124 ; 8. P. 100 Id. 505 ; compare S'mmet v. Kat'l Express Co. 66
Barb. 284) ; or that the u^ual course of dealing wns not to make a receipt, and that
the receipt in question could not be read intelligibly, by reason of the stamp on it
(Perry v. Thompson, 98 Mass. 249, s. P. 100 Id. 6>io); or that a verbal contract with-
out limit was made, and that tho receipt was afterward given to a clerk who had no
authority to make a contract (Fillebrown v. Grand Trunk 11 w. 55 Me. 462 ; s. p. 100
Mass. 605).
But it has been recently held that he should show that, as soon as he had time to
ascertain its contents, he returned it to the carrier with notice of his non-acceptance.
Louisville, <fec. R. 11. Co. v. Brownlee, 14 Bush, 8. c. 8 Ucp. 144.
1 Bostwiek v. Bait. & O. R. R. Co. 45 N. Y. 712 ; Strohn v. Detroit <fc M. R. Co.
21 Wis. 554. Whether a parol agreement for transportation is merged by the car-
rier's subsequent delivery of the receipt, without assent by the shipper, compare
Germania Fire Ins. Co. v. Memphis, '<fec. R. R. Co. 7 Hun, 233; Hill v. Syracuse, <kc.
R. R. 8 Hun, 296.
3 Shulton v. Merchants' Despatch Co. 59 N. Y. 258, rev'g 36 Super. Ct. (J. <fe S.)
627.
* 8 Cent. L. J. 291 ; Erie <fc Western Tr. Co. v. Dater, Jan. 1S79.
* Adams Express Co. v. Stettaners, 61 111. 184, s. c. 14 Am. R. 67 ; Kin" v. Wood-
bridge, 34 V>, 465.
6 Boscowitz v. Adams Express Co. 5 Cent. L. J. 58, and cases cited.
6 Ma^nin v. Dinsmorc, 42 N. Y. Super. Ct. (J. fe S.) 612; Boscowitz v. Adams
Express Co. 5 Cent. L. J. 68; Little v. Boston <t Me. R. R. Co. 4 Law <fc Eq. R. 13;
Le Beau v. Gen. Steam Nav. Co. L. R. 8 C. P. 96, s. c. 4 Moak's Eng. 350 ; Oppon-
heimer v. U. S. Express Co. 09 111. 62, P. c. 18 Am. R. 596.
1 The Kitro-Glycerine Case, 15 Wall. 536.
8 Van Winkle v. Adams Express Co. 3 Robt. 59.
' Warner v. Wes'ern Transp. Co. 6 Robt. 490. So ia silence. Magnin v. Dins*
more (abovr-). Contra, Little v. Boston <fe Me. R. R. Co. (above).
10 See Redf. on Rw. 273, 133 (10, 11).
576 ACTIONS AGAINST BAILEES, Ac,
50. Limited liability under the act of Congress. 1 ] This is not
available, except in actions in the courts of the United States,
under the statute. To take a case out of the statute, an express
contract should be proved ; local usage is not competent. 2 In-
jury by escape of steam, throws on defendant the burden of dis-
proving negligence. 3
51. Carrier J delivery Notice to consignees.'] The peculiar
terms of the bill of lading are important on the question, what
constitutes delivery. 4 Where a bill of lading requires delivery
at a specified station (the carriers' terminus), but without saying
what is to be done, parol evidence is admissible to show that
plaintiff gave directions as to delivering the goods to the suc-
ceeding carrier, and that he had been accustomed to give, and
the defendant to comply with, similar instructions. 5 "When
defendants are one of the earlier of several connecting lines,
entries in their books showing that the goods reached their ter-
minus where, in the usual course of business, they would have
been forwarded, are not, alone, enough to show delivery. 6 The
receipt, given by the next line to which they delivered the goods,
is not evidence that the delivery was in good condition, 7 but
may be competent as auxiliary to the testimony of a witness con-
nected with it, who examined the goods.
Local usage and custom, if reasonable, and known to the
customer, or so generally known as to be presumably known to
him, 8 may be proved, to show what amounts to a delivery which
terminates the carriers' duty, 9 provided they do not contradict
the instrument. 10
Misdelivery may be excused by evidence of misdirection, 11 or
by evidence that the receiver was authorized to receive, though
his authority was unknown to defendant at the time. 12 The fact
I TJ. S. R. S. 827, 4283-4287 ; 13 Wall. 104; Baird v. Daly, 57 N. Y. 242.
5 Walker v. The Transportation Co. 3 Wall. 150.
8 New World v. King, 16 How. U. S. 469.
* Compare Collins v. Burns, 63 N. Y. 1, affi'g 36 Super. Ct. (J. & S.) 518; The
Santee, 7 Blatchf. 186, affi'g 2 Ben. 518; Gleadell v. Thompson, 56 N. Y. 194, affi'g
85 Super. Ct. (J. & S.) 232.
5 Hooper v. Chicago & Northwestern R. R. Co. 27 "Wis. 81, s. c. 9 Am. R. 439.
Compare Hinckley v. N. Y. Central, Ac. R. R. Co. F,6 N. Y. 429. These faits being
proved, the defendant's liability as carrier must be deemed to contiuue until such
delivery to the succeeding carrier. Id.
6 Root v. Great Western Ry. Co. 55 N. Y. 636, affi'g 65 Barb. 619, s. c. 1
Supm. Ct. (T. A C.) 10. What circumstances amount to evidence of completed
delivery by one company to connecting company, see J'ratt v. Railway Co. 95 U. S.
(5 Otto), 43.
1 Hunt v. Michigan S. A N. Indiana R. R. Co. 37 N. Y. 162, 8. c. 35 How. Pr. 287.
8 McMasters v. Pennsylvania R. R. Co. 69 Penn. St. 374, s. c. 8 Am. R. 264.
9 Edw. on B. 288; Angle v. Miss. Ac. R. R. Co. 9 Iowa, 487, 494. The carrier
may show a local usage that the unloading apparatus shall be furnished by the con-
signee, and that it was so furnished, and the injury was caused by a latent defect in
such apparatus. Loveland v. Burke, 120 Mass. 139, a. c. 21 Am. R. 607.
10 Hinckley v. N. Y. C. A H. R. R. R. Co. 56 N. Y. 429.
II Lake Shore, Ac. R. R. Co. v. Hodoff, Sup. Ct. Penn.
13 Angle T. Mississippi, Ac. R. R. Co. 9 Iowa, 487, 501.
COMMON CARRIERS OF PASSENGERS AND BAGGAGE. 577
that after wrongful delivery, the receiver obtained title, is com-
petent, and reduces the damages to a nominal sum. 1
Evidence that defendants usual course of business was to
send notice, is not sufficient evidence of notice. 2 Evidence of a
usual course of business of both parties dispensing with notice, is
competent. 8
The defendants may prove that the uniform usage and course
of their business, was to leave goods at their usual stopping places
in the towns to which the goods are directed, without notice to
the consignee ; and if such usage be shown of so long continu-
ance, uniformity and notoriety, as to justify a jury to find that it
was known to the plaintiff, compliance with it is a sufficient de-
livery. 4
52. "Act of God": Inevitable accident.] The carrier is
exonerated, if it appear that the loss was caused directly and
exclusively by such a direct, and violent, and sudden, and irre-
sistible, act of nature as he could not, by any reasonable amount
of ability, foresee would happen ; or (if he could foresee that it
would happen), could not, by any reasonable amount of care and
skill, resist so as to prevent its effect. 5 On the question of the
necessity and good faith of a sale of perishing cargo, at an inter-
mediate port, evidence of the advice of competent and disin-
terested men, taken and acted on by the master, is competent.
On the necessity of a jettison, a seaman of experience, who
witnessed the storm, may testify to his opinion. 7
IV. ACTIONS AGAINST COMMON CARRIERS 8 OF PASSENGERS AND
BAGGAGE.
53. Plaintiff a passenger. ~] If the action is on contract to
carry for hire, proof of negligence, without contract, is a vari-
ance, 9 and will prevent a recovery for loss of baggage, at least, 10
unless cured by amendment. It being shown that plaintiff was
a common carrier of passengers, the fact that plaintiff was on his
vehicle or vessel in course of transportation, is prima facie evi-
dence that he was there as a passenger, having paid, or liable to
1 Hiort v. London <fe N. W. Ry. Co. 40 Law Times N. S. 674.
Stephenson v. U. S. Express Co. 21 Wis. 405.
1 Wood v. Milwaukee <fc St. Paul Ry. Co. 27 Wis. 541, 8. c. 9 Am. R. 465.
4 Gibson v. Brown, 17 Wend. 305 ; McMaaters v. Penn. R. R. Co. 69 Penn. St.
874, 8. o. 8 Am. R. 264.
8 See Nugent v. Smith (above), 4 So. Law Rev. N. S. 451, and cases cited. And
Bee Bellv. Reed, 4 Binn. 127.
Butler v. Murray, 80 N. Y. 88.
7 Price v. Hartshorn, 44 N. Y. 94, affi'g 44 Barb. 646.
8 As to private carriers see 12 Wall. 878.
Nolton v. Western R. R. Co. 15 N. Y. 446.
10 Flint, <fcc. R. R. Co. v. Weir, 37 Mich. Ill,
87
578 ACTIONS AGAINST BAILEES, Ac.
pay, fare ; * and this suffices to throw on the carrier the burden
of disproving the contract or undertaking to carry. 2 A witness
may, in the nrst instance, testify directly to the fact that plaintiff
was a passenger, subject, of course, to cross-examination as to
details ; but the details having been stated, the witness cannot
five an opinion as to whether he was a passenger or trespasser,
vidence of any circumstances tending to show the existence of
the contract or undertaking, is competent : such as the payment
of fare, 8 the possession of ticket, or of baggage check ; 4 with evi-
dence of the custom of defendants as to giving such checks ; or
production of the passenger list. 5 Where an authenticated list,
made by defendants pursuant to law, exists, it is not the ex-
clusive evidence, and defendants must produce it if they re-
quire it. 6
The fact that plaintiff was carried on an apparently gratui-
tous pass or permission, may be explained by evidence of the con-
tract* or usage 8 under which it was given.
54. Express contract ; Ticket.'] Possession of an unmutilated
railroad passage-ticket, is presumptive evidence that the holder
has paid the regular price for it, and is entitled to be transported
according to its terms, and that it has not been used. 9 It is pre-
sumed to have been purchased at some time on the day on which
it bears date, but not at any particular hour of the day. 10 A
ticket agent is not presumed to have power to bind the company
by an oral promise that the ticket should be good at a later
date. 11 To sustain such a promise, made after the sale of the
ticket, a consideration must be shown. 12 Plaintiff's omission to
procure a ticket before entering the cars may be explained by ev-
idence that he applied in vain for one ; and the testimony of the
ticket agent is competent for this purpose. 13
If there were several connecting lines, plaintiff, seeking to
charge another than the one whose default caused the breach,
I Buffit v. Troy, Ac. R. R. Co. 36 Barb. 420, 423 ; even though he was in a
freight car. Dunn v. Grand Trunk Ry. Co. 58 Me. 187, s. c. 4 Am. K. 267. But
compare Eaton v. Delaware, Ac. R. R. Co. 67 N. Y. 382.
* Dunn v. Grand Trunk Ry. Co. (above).
3 Muscogee R. R. Co. v. Redd, 64 Georgia, 33.
4 Davis v. Caynga A Susq. R. R. Co. 10 How. Pr. 330.
Merrill v. Grinnell, 30 N. Y. 694.
Id.
' Grand Trunk R. W. v. Stevens, 6 Reporter, 161.
8 The New World v. King, 16 How. U. S. 469.
9 Pier v. Finch, 24 Barb. 614. Compare paragraph, 61. "Where the ticket and
check indicate another route than defendants', evidence that defendants frequently
carried baggage bearing such checks, is not sufficient to charge them. Fairfax v. N.
Y. Central, Ac. Co. 40 Super. Ct. (J. A S ) 128.
10 Id.
II Boice v. Hudson River R. R. Co. 61 Barb. 611 ; especiallv a way agent on a
through route. McClure v. Phila. Ac. R. R. Co. 34 Md. 632, s. c. 6 Am. R. 346.
14 Boice v. Hudson River R. R. Co. (above).
11 St. Louis, Ac, R. R. Co. v. Dalby, 19 DL 353, 363.
COMMON CARRIERS OF PASSENGERS AND BAGGAGE. 579
must show either a contract by the company he seeks to charge,
or that it had some community of interest in, or control over, the
carriage of passengers by the one in default. 1 Proof that the de-
fendants checked his baggage to the terminus of the connecting
line, without evidence that he paid them his fare for passage by
that line, is not alone enough to charge them for a loss on that
line. 2 Although several tickets were given for the separate parts of
the route, an entire contract to carry over the whole route may
be proved by parol. 8 In the absence of all evidence on the subject,
except such as may be inferred from the delivery of coupon
tickets to the passenger, the presumption is that the carrier who
sells the ticket and coupons has purchased of the connecting roads
such coupons or the right to issue them, and that they were delivered
in part performance of a contract of the carrier selling the ticket. 4
55. Authority of agency.'] The fact that the ticket, and the
baggage check obtained of the same agency, were issued by a per-
son liaving authority, may be proved by evidence that the ticket
was presented by the passenger, to the conductor, on the cars of the
company sought to be charged, and recognized by him as valid. 5
56. Baggage.'] On the question what is within the rule as to
baggage, evidence of the circumstances and position in life of the
passenger, of the whole contemplated journey, and of intended
sojourns on the way, is competent. 6 ]?laintin is not precluded
from recovering, because he may not be able to furnish very de-
tailed evidence of every item of contents. 7 Testimony of a wit-
ness, who saw the trunk packed weeks before, may be enough to
go to the jury. 8 The law only requires the best evidence in his
power.
Evidence that it was defendants' custom to check baggage on
the passenger showing his ticket, together with the -production
and identification of the check, is prima facie evidence of a deliv-
ery of the baggage. 9 Notice to the baggage master, that the trunks
contained other than the passenger's oaggage, may be inferred by
the jury from circumstances, such as indication that the passen-
1 Green v. N. Y. Central R. R. Co. 12 Abb. Pr. N. S. 473 ; see paragraphs 21, 28,
85. Compare, Wilde v. Northern R. R. Co. 63 N. Y. 166; Milnorv. N. Y. & New
Haven R. R. Co. 63 N. Y. 363.
9 Id. Kessler v. N. Y. Central R. R. Co. 7 Lans. 62.
* Van Buskirk v. Roberts, 81 N. Y. 661.
4 Kessler v. N. Y. C. R. R. Co. 7 Lans. 62.
5 Chicago <fc Rock Island R. R. Co. v. Fahey, 62 111. 81, 8. c. 4 Am. R. 687. Com-
pare Mills v. Shult, 2 E. D. 8mith, 139; Quimby v. Vanderbilt, 17 N. Y. 306.
See Merrill v. Grinnell, 80 N. Y. 694; Abb. N. Y. Dig. new ed. tit Carrier.
7 Butler v. Busing, 2 C. <fe P. 618, 614.
8 Sugg v. Memphis <fc St. L. Packet Co. 40 Mo. 442, 444.
9 Edw. on B. 674. As to the appropriate evidence in case of baggage not
checked, see Gleason v. Goodrich Transp. Co. 32 Wis. 86, 8. o. 14 Am. R. 716;
Berghum v. Great Eastern Ry. Co. 38 L. T. R. N. S. 160 ; 17 Alb. L. J. 298 ; Welch
v. Pullman Pal. Car Co. 16 Abb. Pr. N. S. 862.
580 ACTIONS AGAINST BAILEES, Ac.
,ger was a traveling salesman, that the trunks were not ordinary
traveling trunks, <KC., and that an extra charge was made. 1
Upon a through ticket and check, an intermediate or ultimate
company may be held liable, if there is evidence that the baggage
came to their hands and was lost by them. 2
57. loss or non-delivery?] Evidence that plaintiffs baggage
was lost on the journey on defendants' route, is sufficient to throw
the burden of proof on the defendants, and dispenses with proof
of a demand and refusal. 4 If there is evidence of negligence on
defendants' part, accounting for the loss, mere evidence of the
course of business, according to which the baggage should have
been duly delivered to the next connecting line, is not enough to
exonerate defendants. 5
58. Negligence.'] The mode of proving negligence is stated
in the chapter on actions for negligence. 6
59. Authority of servant.'] The fact that one assuming to
act as a servant of the company was such, may be inferred from
evidence of his position, conduct, or dress, &c., as such. 7 If he
is shown to have been in charge of a car, his authority to remove
trespassers may be inferred by the jury, although the rules are
silent. 8 If an assault and expulsion by defendants' servants is
proved, the burden of justifying it is on defendants. 9 Abusive
language, not part of the res gestce, is not competent. 10
60. Damages.] In addition to the damages for personal in-
jury, 11 plaintiff may recover for lost time by neglect to transport,
even without specific evidence of the value of his time. 12 Evi-
dence of exposure by the delay, and consequent illness, is compe-
tent. 13 Opinions of witnesses are not generally competent evi-
dence of the value of his time. 14 If he seeks to recover for the
defeating qf a particular errand, he must produce some evidence
that if he had arrived at the appointed time he might have done
his errand and would have promptly returned, and that he could
not, with due effort, accomplish his errand by reason of his delay
in arriving. 15
1 Sloman v. Great Western Ry. Co. 67 N. Y. 208, rev'g 6 Hun, 646.
5 Chicago & Rock Island R. R. Co. v. Fahey, 62 111. 81, s. o. 4 Am. R. 587. Com-
pare paragraphs 35 and 36.
3 See Paragraphs 6 and 36.
4 Garvey v. Camden & Amboy R. R. Co. 1 Hilt. 280, s. c. 4 Abb. Pr. 171.
5 Baltimore, Ac. Co. v. Smith, 23 Md. 402.
6 Page 582 of this voL See, also, paragraphs 6 and 34-39 of this chapter.
7 Page 41, note 3.
8 Bayley v. Manchester, Sheffield, &c. Ry. Co. L. R. 7 C. P. 415, s. c. 3 Moak'a
Eng. 308.
9 St. John v. Eastern R. R. Co. 1 Allen, 544.
10 Hamilton v. N. Y. Central R.JI. Co. 51 N. Y. 100.
11 See chapter oh NEGLIGENCE.
14 Ward v. Vanderbilt, 4 Abb. Ct. App. Dec. 621.
13 Williams v. Vanderbilt, 28 N. Y. 217, affi'g 29 Barb. 491.
14 Hastings v. Uncle Sam, 10 Cal. 341 ; Lincoln v. Saratoga, <fcc. R. R. Co. 23
Wend. 425. Compare p. 368 of this vol.
w Benson v. New Jersey R. R. <fc Transp. Co. 9 Bosw. 412.
COMMON CARRIERS OF PASSENGERS AND BAGGAGE. 581
If there was no express stipulation to carr j* on time, 1 evidence
that defendant did all that was reasonably practicable, is compe-
tent in excuse for delay. 2
61. Defenses : Restrictions of liability j Extrinsic evidence
to vary ticket.'} In determining whether a printed condition on
a ticket, &c., limiting a carrier's liability, was sufficient notice to
the plaintiif, the question is whether the condition was so exhib-
ited as to make its non-notice negligent. 3 Ordinary tickets, which
do not purport to be contracts, are not within the rule excluding
parol evidence to vary a writing. 4 Such evidence is, therefore,
admissible to show the nature of the agreement entered into be-
tween the carrier and the passenger, at the time of issuing them. 5
The reasonable regulations of the company, consistent with the
terms expressed on the ticket, may be proved in its favor ; and
the company is not bound to prove notice of these regulations to
the holder of the ticket. 6 Evidence of a usage of the subordi-
nates, in violation of such a regulation, is not competent against
the company, unless notice of it to the governing officers is shown. 7
If the terms were sufficiently displayed or actually communicated,
the ticket is the evidence of the contract. 8
62. Contributory negligence.'] If it appear that plaintiff was
riding in a place of hazard in the car or train, the burden is upon
him to disprove negligence. 9 This may be done by evidence that
he could get no safer place, but not by evidence that those in
charge suffered him to remain in a place he knew to be danger-
ous. 1 " If defendants object, that plaintiff brought the injury on
himself by leaping from the vehicle, he may prove that others
did so, and also their declarations in the act. 11
I Rose N. P. 615.
8 Gordon v. Manchester, Ac. R. R. Co. 52 N. H. 696, 8. c. 13 Am. R. 97.
3 Wharton on Neg. 587, 2d ed., citing Elmore v. Sands, 64 N. Y. 512 ; Evans-
ville, Ac. R. R. v. Andruscoggin Mills, 22 WalL 694. Compare Rawson v. Pennsyl-
vania R. R. Co. 48 N. Y. 212, affi'g 2 Abb. Pr. N. S. 220; Wilson v. Chesapeake, Ac.
R. R. Co. 21 Gratt. 654. 672; Dietrich v. Pennsylvania, Ac. R. R. Co. 71 Penn. St.
432, s. c. 10 Am. R. 711 ; Henderson v. Stevenson, L. R. 2 Sc. App. 470, s. c. 18
Moato Eng. 141 ; and Stewart v. N. W. Ry. Co. 3 H. A C. 135. Whether the receipt
of a ticket for deposit of luggage is prima facie evidence of assent to the special con-
ditions printed on it, see Harris v. Great Western Ry. Co. 1 Queen's Bench Div. 615,
s. c. 17 Moak's Eng. 156; Parker v. Southeastern Ry. Co. 1 C. P. Div. 618, s. c. 18
Moak's Eng. 238. Special limited receipt delivered sometime after transaction, and
in answer to demand, not deemed contract without evidence of assent. Willner T.
Morrell, 40 Super. Ct. (J. & S.) 222.
Quimby v. Vanderbilt, 17 N. Y. 306.
Id. ; Van Buskirk v. Roberts, 31 Id. 661.
Dietrich v. Pennsylvania R. R. Co. 71 Penn. St. 432, e. c. 10 Am. R. 711; John-
v. Concord, Ac. R. R. Co. 46 N. H. 213, 220.
Id.
Barker v. Coffin, 31 Barb. 656; Boice v. Hudson River R. R. Co. 61 Id. 611.
Ward v. Central Park. Ac. R. R. Co. 11 Abb. Pr. N. S. 411, s. o. 42 How. Pr.
289. There is no presumption that an engineer has authority to allow riding on the
engine, contrary to rule. Robertson v. N. Y. A Erie R. R. Co. 22 Barb. 01.
' Ward v. Central R. R. (above).
II Mobile R. R. v. Ashcroft, 48 Ala. 15, 31.
CHAPTEE XXXI.
ACTIONS FOR NEGLIGENCE.
L GENERAL
1. Burden of proof.
2. The pleading.
8. Elements of direct proof.
4. Degrees of negligence.
6. Privity.
6. The casualty as evidence of neg-
ligence.
7. Other negligences.
8. Time of existence of defect.
9. Other defects.
10. Incompetency.
11. Reputation.
12. Intemperance.
13. Opinions of witnesses.
14. Declarations and admissions gen-
erally.
15. Plaintiff's declarations.
16. Defendant's admissions, declara-
tions, and conduct.
17. Those of agents and servants.
18. of third person injured.
19. of strangers.
20. Violation of statute.
21. of municipal ordinance.
22. of usage.
23. Ownership of the thing injuring.
24. Connection of cause with injury.
25. Notice of defect ; request.
26. The delinquent an agent or serv-
ant of defendant.
27. Contractor or servant.
28. Common employment.
29. Negligent employment of unfit
servant.
SO. Plaintiff's title.
L GENERAL RULES continued.
31. Manner of injury.
82. Condition of person or thing in-
jured.
33. Burden of proof as to contribu-
tory negligence.
84. the United >tates court rule.
85. the Massachusetts rule.
86. the New York rule.
87. Disproving contributory negli-
gence.
88. Contributory negligence of in-
fants.
39. Effect of peril on witnesses.
40. Damages.
41. Loss of earnings.
42. Suffering, and impaired powers.
43. Continuing effect.
44. Testimony ot the party.
45. Expressions ot suffering.
46. Opinions of witnesses.
47. Plaintiff's family and circum-
stances.
48. Defendant's wealth.
49. Exemplary damages.
50. Action for causing death.
II. DEFENSES.
51. Disproof of negligence.
52. Advice.
53. Former acquittal.
54. Plaintiff's contributory negli-
gence.
65. Plaintiff's conduct illegal.
56. Mitigation.
I. GENERAL RULES.
1. Burden of proof *.] The burden of proof, that the injury
resulted from negligence on the part of defendant, is upon the
plaintiff. 1
1 Nitro-Glycerine Case, 15 Wall. 524 ; Holbrook v. Utica <fe Schenectady R. R. Co.
12 N. Y. 236, affi'g 16 Barb. 113; The Marpesia, L. R. 4 P. C. C. 212, s. c. 3 Moak's
Eng. 92 ; The Benmore, L. R. 4 Ad. <fe EC. 132 ; Curran v. Warren Chem. <fc Manui
[582]
GENERAL RULES. 583
2. The pleading^ Under an allegation of negligence, a con-
tract may be proved, together with actionable negligence, to
plaintiffs injury, in the acts constituting a breach; 1 but a mere
breach of contract, without evidence or inference of negligence, is
a variance. 2 Under a general allegation of negligence, the cir-
cumstances constituting it may be proved, 8 even though other
circumstances particularly specified in the complaint are un-
proved. 4
3. Elements of direct proof."] The characteristic elements of
evidence in direct proof of actual negligence are, 1. The relation
of the parties, if any, such as to raise a duty on defendant's part
towards plaintiff ; 2. The casualty ; 3. What ought to have been
done ; 4. What actually was done.
4. Degrees of negligence?^ Whether negligence was gross or
not is not matter of opinion for a witness, but a conclusion to be
drawn by the court or jury. It is to be established by evidence
manifesting the nature and degree of care which defendant owed,
and that which he actually took. But where plaintiff needs to
prove gross negligence, it is best to express his offer of proof
accordingly. 6 Gross negligence may be proved under a general
averment of negligence/
5. Privity I\ If the wrong is founded on breach of contract,
plaintiff must be a party, or privy to the contract. 8 But the fact
that a contract with a third person is proved by plaintiff, does not
necessarily require him to show privity. 9 It is enough if the
defendant's contract with the third person was made for the pur-
pose of accommodating the plaintiff. 10
6. The casualty as evidence of negligence.'] The mere hap-
pening of a casualty is not sufficient evidence of negligence to go
to the jury. But the nature of the accident and the presumptions
Co. 36 N. Y. 153, s. o. 3 Abb. Pr. N. S. 240, 34 How. Pr. 250; Caldwell v. N. J.
Steamboat Co. 47 N. Y. 282, affi'g 56 Barb. 425. So if the negligence is in deliver,
ing a dangerous thing without giving notice, plaintiff must prove defendant's neglect
to give notice. "Williams v. East India Co. 3 East, 192, 198, 199 ; Steph. Ev. 98.
1 See Dean v. McLean, 48 Vt. 412, s. o. 21 Am. R. 130.
8 See Putnam v. Kingsburv, 16 Pick. 371.
8 Oldfield v. N. Y. & Harlem R. R. Co. 14 K Y. 310; Ware v. Gay, 11 Pick.
106 ; Wright v. Hardy. 22 Wis. 348 and see Indianapolis, <fec. R. R. Co. v. Horst,
93 U. S. (3 Otto), 291,*297.
4 Edgerton v. N. Y. <fe Harlem R. R. Co. 89 N". Y. 227, affi'g 35 Barb. 198, 889.
At common law, nn agent's negligence could not be proved under au allegation of the
principal's negligence. Dunlop v. Moore, 7 Cranch, 242, 269, affi'g 1 Cranch C. Ct.
636.
* As to the controversy on the question of degrees, see 6 Am. Law Rev. 88.
' See Grinnell v. Western Union Tel. Co. 113 Mass. 299, s. c. 18 Am. R. 485.
7 Nolton v. Western R. K. Co. 15 N. Y. 444.
8 Clancy v. Byrne, 66 N. Y. l-J'.t. r<-v'g 65 Barb. 344.
9 Baird v. Daly, 67 N. Y. 236. rev'g 4 Lans. 426.
10 See Congbtry v. Globe Woolen Co. 66 N. Y. 124, rev'g 1 Supm. Ct (T. <fc C.)
452; Baird v.' Daly, 67 N. Y. 236, rev'g 4 Lans. 426.
584 ACTIONS FOR NEGLIGENCR
it raises, may suffice. 1 Evidence that the act was such as, if done
with proper care, ordinarily does not produce damage, will gen-
erally sustain an inference that it was negligently done, if there
is no evidence to indicate the manner of it. 2 Otherwise the pre-
sumption is that in the performance of a lawful act, at least ordi-
nary care was used. 8 It is enough for plaintiff to raise a fair pre-
sumption of negligence. Probability is sufficient to go to the jury. 4
Jf defendant had charge or control of the instrument of disaster,
and if it was highly dangerous, or if he owed a special duty of care
of one in the position of plaintiff, the disaster is evidence'of neg-
ligence, sufficient to go to the jury, unless the circumstances indi-
cate some cause consistent with due care on defendant's part. 5
7. Other negligences^ Evidence of other specific instances
of negligence, on the part of defendant or the servant whose mis-
conduct is alleged, independent of the negligence in question, is
not competent, because raising a collateral issue. For the same
reason, if the disaster is attributed to a defect in structure, evi-
dence of other disasters, attributed to the same cause, is not gen-
erally competent ; 7 and when admissible, it is because they tend
to show that the cause was a dangerous thing, 8 or that defendant
1 Wharton on Neg. 421 ; citing Scott v. London, St. Kath. Docks, 3 H. & C,
696 ; Byrne v. Boadle, 2 Id. 722 ; Mullen v. St. John, 67 N. Y. 667, and other cases ;
and see Terry v. N. Y. Central R. R. Co. 22 Barb. 574.
3 Sedg. on Darn. 592.
8 Lansing v. Stone, 37 Barb. 15, B. c. 14 Abb. Pr. 199.
4 Shearm. & Red. 13. Contra, Sheldon v. Hudson R. R. R. Co. 29 Barb. 22<5.
5 In illustration of this principle, compare, as to Being found dead on defendant's
premises, Lehman v. City of Brooklyn, 29 Barb. 234; Curran v. Warren Mfg. Co. 36
N. Y. 153, s. c. 3 Abb. Pr. N. S. 240; 34 How. Pr. 260; or on the crossing of their
road, Lyndsay v. Conn. Ac. R. R. Co. 27 Vt. 643 ; Johnson v. Hudson River R. R. Co.
20 N. Y. 65 ; 6 Duer. 683 ; Waldron v. Rensselaer fe Saratoga R. R. Co. 8 Barb. 390.
Blasting. Ulrich v. McCabe, l*Hilt. 251; Tremain v. Cohoes Co. 2 N. Y. 163. Ex-
plosion. McMahon v. Davidson, 12 Minn. 357, 371; Losee v. Buchanan, 51 N. Y. 476,
rev'g 61 Barb. 86; Marshall v. Welwood, 9 Vroom. N. J. 839, s. c. 20 Am. R. 3S4;
Illinois Cent. R. R. Co. v. Phillips, 49 111. 234, 239. Falling bodies. Muller v. St.
John, 57 N. Y. 567; Welfare v. London A Brighton Ry. Co. L. R. 4 Q. P>. 693;
Kearney v. London, Brighton, Ac. Ry. Co. L. R. 5 Q. B. 411 ; L. R. 6 Q. B. 759;
Clare v. Nat. City Bank, 1 Sweeny, 539; Weitner v. Delaware A Hudson Canal Co. 4
Robt. 234; Kendall Y. City of Boston, 118 Mass. 234, s. c. 19 Am. R.446; Byrne v.
Boadle, 2 II. A C. 722; Scott v. London, St. Kath. Docks Co. 3 Id. 596; Jager v.
Adams, 123 Mass. 26. Pire. Lansing v. Stone, 37 Barb. 15. Gas escaping. Shearm.
& Red. on Neg. 340; Lannen v. Albany Gas L. Co. 44 N. Y. 459, 46 Barb. 264;
Parry v. Smith, 41 L. T. R. N. S. 93.
6 First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 296 ; Warner v.
N. Y. Central R. R. Co. 44 N. Y. 465, rev'g 45 Barb. 299; Robinson v. Fitchburgh,
Ac. R. R. Co. 7 Gray (Mass.), 92, 95. Passenger thrown from horse car by driver's
suddenly stopping. Ma^uire v. Middlesex R. R. Co. 115 Mass. 239; Miss. C. R. R
Co. T. Miller, 40 Miss. 45, 47. But it may be admissible in rebuttal of defendant's
evidence of general care (Detroit, Ac. R. R. Co. v. Van Steinburgh, 17 Mich. 99,
111), or to repel an inference of accident (1 Whart. Ev. 47, 38).
' Sherman v. Kortright, 52 Barb. 267; Jacques v. Bridgeport, Ac. R. R. Co. 41
Conn. 61 ; and see Bailey v. Trumbull, 31 Conn. 681.
8 As, for instance, that it commonly frightened other horses than plaintiff's.
House v. Metcalf, 27 Conn. 631, 636; Hill v. Portland, Ac. R. R. Co. 65 Me. 438,
443; Darling v. Westmoreland, 62 N. H 401. The competency of such evidence has
been much contested. Compare Collins v. Dorchester, 6 Cush. 396. It would cer-
tainly be competent to prove by an expert, that at a time either before or after the
GENERAL RULES. 585
had notice of its existence, 1 or proving a frequency of occurrence
which repels all inference of accident. 2 Evidence of disaster at
another time, or another similar place, if adduced, is not compe-
tent for the purpose of proving dangerousness, unless it shows
that all material conditions were the same. 8
8. Time of existence of defect.'] Evidence of the existence of
the defect to which plaintiff attributes the disaster, is not con-
fined to the very time of the disaster, 4 but the limit of time de-
pends on the nature of the structure and of the defect. 5 If one
party, without objection, gives evidence overstepping these limits,
the other may rebut by similar, but not greater liberty. 6
9. Other defects.'] The mere existence of defects in a struc-
ture at other places than that where the casualty occurred, as,
for instance, a defect in track half a mile away from the scene of
a railway wreck, is not evidence that a similar defect existed at
the place of the casualty, and caused it. 7
10. lncompetency.~] Evidence of negligence having been
given, the incompetency or unskillfulness of the actor may be
proved. 8
11. Reputation^] Evidence of general reputation for negli-
gence is inadmissible to prove negligence upon a particular occa-
sion. 9
12. Intemperance. ,] Intoxication is competent, but not con-
clusive 10 evidence of negligence. 11 Evidence of the intemperate
disaster, when the defect which is alleged to have caused it, was in no worse state
than at the time of the disaster, he examined and experimented with it, and found it
capable of producing the like disaster ; hence there seems no reason for excluding
ordinary experience when offered within the same limits and for the same purpose.
Such evidence is sometimes admissible merely to show what called the attention of
witness to the defect. Tomlinson v. Town of Derby, 43 Conn. 562.
1 Mobile. <fec. 11. R. Co. v. Ashcraft, 48 Ala. N. S. 15 ; 1 Whart. Ev. 60, 41.
3 " There is no better evidence of negligence than the frequency of the accidents."
Mobile, etc. R. R. Co. v. Ashcraft,, 49 Ala. N. S. 305.
See Fillo v. Jones, 2 Abb. Ct. App. Dec. 121; Haynes v. Burlington, 38 Vt.
350, 363. Compare Kent v. Lincoln, 32 Vt. 591, 597.
* Compare Kline v. Queen's Ins. Co. 69 N. Y. 614, affi'g 7 Hun, 267 ; Hutchinson
V. Methuen, 1 Allen, 33.
5 Thus, evidence of ice on the sidewalk must be confined within a brief period,
for its formation and removal are quick ; but evidence of a flaw in a boiler plate may
relate to the original m-ikin^ of the boiler, though at a remote time.
6 For illustrations of this rule, see Walker v. Westfield, 39 Vt. 246 ; Baird v. Daly,
68 N. Y. 547; Jacques v. Bridgeport Horse R. R. Co. 41 Conn. 61.
' It would be otherwise if the defect proved was shown to be the result of a cause
presumably operating at the place of casualty also. Reed v. N. Y. Central R. R. Co.
45 N. Y. 574, overruling 56 Barb. 493. Contra, Murphy v.The Same, 66 Barb. 125;
and see Cox v. Westchester Turnpike Co. 33 Barb. 414.
6 Bigley v. Williams, SOPenn. St. 107, 115 ; Penn. R. R. Co. v. Brooks, 67 Id. 339,
343 ; McKinney v. Neil, 1 McLean. 640.
Jacobs v. Duke, 1 E. 1). Smith, 271 ; Baldwin v. Western Railroad, 4 Gray, 833;
Hays v. Millar, 77 Penn. St. 238. s. c. 18 Am. R/445.
10 Stuart v. Machiasport, 48 Me. 477 ; Baker v. Portland, 68 Id. 199, s. c. 4 Am,
R. 274
41 Wynn v. Allard, 5 Watts <fe S. (Penn.) 524.
586 ACTIONS FOR NEGLIGENCE.
habits of the servant, whose negligence caused the injury, and
that defendants were aware of such habits, is admissible for the
purpose of making a case for exemplary damages. 1
13. Opinions of witnesses.'] On a subject proper for an ex-
pert's testimony, 2 such as a question of navigation or seaman-
ship, 8 or the management of steam, 4 and of railroad trains, 5 the
construction of railroad cars, 6 and tracks, 7 and of bridges, 8 the fast-
ening of vessels, &c. 9 a witness, shown to be an expert, may state
his opinion. It is competent, thus, to prove what would have
been the proper construction 10 and mode of operation ; u the effect
of a particular thing therein ; 12 what is or what is not prudent ; u
whether a person of competent skill .would have done what the
witness testifies was done, or what is hypothetically put ; 14 and
whether the casualty could have been avoided by proper care. 13
It is objectionable to ask whether the person was negligent, 16 or
whether he omitted anything that ought to have been done ; 17 but
if the point is a proper subject of opinion, and the question is
properly framed, it is no objection that it involves the question
to be decided by the jury. 18 An unskilled witness cannot testify
whether anything could have been done to prevent the casualty. 19
In a matter not requiring special skill or experience, such as
the necessity of gate and signals at an open drawbridge, 20 the
management of fire, 21 and the like, opinion evidence is not gen-
erally admissible. In such cases it is not competent to ask a
1 Cleghorn v. N. Y. Central <fe Hudson River R. R. Co. 66 N. Y. 44.
2 See page 310 of this vol.
3 The City of Washingtou, 92 U. S. (2 Otto), 39 ; Transportation Co. v. Hope, 95
Id. 297.
4 The contrary held of the necessity of a spark arrester. Teall v. Barton, 40
Barb. 137.
6 Cincinnati, <fec. R. R. Co. v. Smith, 22 Ohio St 277, s. c. 10 Am. R. 729; Mott
v. Hudson River R. R. Co. 8 Bosw. 845. But compare Keller v. N Y. Central R. R.
Co. 2 Abb. Ct. App. Dec. 480.
6 Baldwin v. Chicago, <fcc. R. R. Co. 8 Cent. L. J. 497. The contrary held of the
construction of cattle bars. Enright v. San Francisco, <fec. R. R. Co. 33 CaL 230, 236.
7 Carpenter v. Central Park, &c R. R. Co. 11 Abb. Pr. N. 8. 416.
8 Conrad v. Village of Ithaca, 16 N. Y. 173.
9 Moore v. Westervelt, 27 N. Y. 234, affi'g 9 Bosw. 558.
10 Conrad v. Village of Ithaca (above) ; Baldwin v. Chicago, <fec. R. R. Co. (above).
11 Baldwin v. Chicago, <kc. R. R. Co. (above).
12 Id.
13 Transportation Co. v. Hope, 95 U. S. (5 Otto), 297 ; Delaware, <frc. Steam Tow-
boat Co. v. Starrs, 69 Penn. St. 36.
14 Malton v. Nesbit, 1 Carr. <fc P. 70.
15 Fenwick v. Bell, 1 Carr. & K. 312; Bellefontaine, <fcc. R. R. Co. v. Bailey, 11
Ohio St. 333.
16 Crofut v. Brooklyn Ferry Co. 36 Barb. 201.
17 Carpenter v. Eastern Transp. Line, N. Y. Ct. App. 17 Alb. L. J. No. 9.
18 Transportation Line v. Hope. 95 U. S. (5 Otto), 297.
19 Haggerty v. Brooklyn, <fec. R.'R. Co. 61 N. Y. 624.
* Nowell v. Wright, 3 Allen, 166, 170.
11 Teall v. Barton, 40 Barb. 137 ; Fraser v. Tupper, 29 Vt. 409.
GENERAL RULES. 587
witness whether the casualty would or would not have occurred
had a specified circumstance been different. 1
Facts discernible by judgment or estimate, but not requiring
special knowledge or skill, are not regarded as matters of opinion
within these rules. Hence any person of ordinary knowledge
and experience may testify to his judgment of the speed of a
train or vehicle, 2 or whether a person looked sick or well, 8 and
the like.
14. Declarations and admissions generally. .] Where evi-
dence of a declaration is admissible, a witness who was present
may be allowed to state what he heard said, leaving it to others
to identify the declarant ; but the fairer course is to require that
identification, if necessary at all, be given first. 4
The rules as to competency of declarations, which are below
stated, are to be taken with this qualification, that declarations
not competent on these grounds are often admissible for other
purposes, such as to charge defendant with notice, 5 if indepen-
dent evidence of the existence of the fact declared has been
given ; 6 or as a circumstance which fixed the fact on the witness's
memory ; 7 and, in some cases, a written statement may be admis-
sible as an original memorandum auxiliary to the testimony of
the writer, or in lieu of it after his death. 8
15. Plaintiff's declarations.'] Declarations made by the in-
jured person, though the plaintiff himself, at the time of his
suffering the disaster, and growing out of it, or out of its imme-
diate causes, and calculated to explain the character, nature or
quality of the facts constituting the occurrence and its effects on
him, are competent, even in his own favor, 9 if part of the res
gestce. A declaration, which is not admissible under this rule, is
not rendered admissible by the circumstance that it was a dying
declaration. 11
16. Defendant's admissions, declarations, and conduct.'] The
admissions and declarations of a defendant are admissible ugainst
himself, 12 and so is the fact that he referred a question of fact to
1 Crane v. Northfield, 83 Vt. 124; Weaver v. Alabama, <tc. Co. 35 Ala. 176, 183 ;
Otis v. Thorn, 23 Id. 469 ; linger v. Forty-second bt. R. H. Co. 6 Robt. 237.
3 Salter v. Utica & Black River R. It. Co. 59 N. Y. 631 ; Detroit, <fcc. R. R. Co.
v. Van Steinburgh, 17 Mich. 99, 105.
3 Higbie v. Guardian Mut. Life Ins. Co. 53 N. Y. 603. 66 Barb. 462.
4 Indianapolis, P. <fe C. 11. Co. v. Anthony, 43 Ind. 183, 191.
* Parker v. Boston, <fec. Steamboat Co. 109 Mass. 449.
' Hadencamp v. Second Ave. R. It. Co. 1 Sweeny, 490.
1 Detroit, <fec. R. R. Co. v. Van Steinburgh, 17 Mich. 99, 107.
See Downs v. N. Y. Central R. R. Co. 47 K Y. 83, and pages 319-322 of this
Tol.
' Frink v. Coe, 4 Greene (lown), 655. In favor of admitting declarations snbse-
quent to the act, see Commonwealth v. M'l'ike, 3 Cush. (Mass) 181; Uarriman v.
Stowe, 67 Mo. 93. Contra, Cleveland, Ac. R. R. Co. v. Mara, 26 Ohio St. 185.
10 Brownell v. Pacific R. R. Co. 47 Mo. 239, 244 ; see paragraph 17.
" Marshall v. C. <fc. G. E. R. R. Co. 48 111. 475.
"Do Benedetti v. Mauchin, 1 Hilt. 213. And. equally, conduct indicating a con-
588 ACTIONS FOR NEGLIGENCE.
a third person, together with such person's answer. 1 But such
evidence is not conclusive against the defendant ; 2 nor is it com-
petent against a co-defendant, 8 except when made so by being
part of the res gestce, or when some connection between the de-
fendants is shown to justify one in speaking for the other. 4
An admission of having been in fault is cogent evidence ; but
an admission of having caused the casualty is not necessarily an
admission of having been in fault. 5
17. Admissions and declarations of servants, dkc.'] The dec-
larations of defendant's servants 6 and equally those of plaintiff's
servants 7 are competent in favor of either party, if part of the res
gestce, or if within the scope of agency for the party against whom
they are offered. The two main rules, allowing and limiting such
evidence on these grounds, have been already stated. 8 In illustra-
tion of the rule of the res gestcs, it will suffice to say that declara-
tions of a railroad engineer or steamboat captain, made while run-
ning recklessly, and characterizing the act, 9 are competent against
the employer, in an action for an injury caused by that reckless-
ness ; but such declarations or admissions, made after the heat
of the emergency had passed, and other acts had intervened, 10 as,
for instance, on arriving at the next station, after the casualty ; u
sciousness of liability. Banfield v. Wbipplo, 10 Allen, 27, 31. The conduct of defend-
ant or his servaut, immediately on the happening of the casualty, in staying or fleeing,
is competent as tending to show animus. Barker v. Savage, 1 Sweeny, 288, 291.
Evidence of subsequent precautions against a recurrence of the disaster is admitted
in Pennsylvania (Penn. R. R. Co. v. Henderson, 61 Pa. St. 315 ; Westchester R. R. v.
McElure, 67 Penn. St. 811 ; McKee v. Bidwell, 74 Penn. St. 218, 225) ; but net in
New York (Dougan v. Champlain Transp. Co. 66 N. Y. 1, affi'g 6 Lans. 430; Salters
v. Delaware & Hudson Canal Co. 3 Hun, 338 ; Payne v. Troy & Boston R. R. Co. 9
Hun, 626. Contra, Wesfall v. Erie Ry. Co. 5 1'un, 75 ; Baldwin v. N. Y. & Harlem
Nav. Co. 4 Daly, 314. And see Bevier V. Delaware & Hudson Canal Co. 13 Hun,
254, 256 ; Baird v. Daly, 68 N. Y. 547). The true principle is that subsequent pre-
cautions may admit inadequacy but not fault. The defendant's private reprimand
and dismissal of the servant at fault, held not competent as an admission of his neg-
ligence. Betts v. Farmers' Loan, &c. Co. 21 Wis. 80, 86.
J Sybray v. White, 1 M. <fc W. 435 ; Rose. N. P. 73.
Id. ; Sutherland v. N. Y. C. & H. R. R. R. Co. 41 Super. Ct. (J. & S.) 17.
8 Daniels v. Potter, 1 M. <fe M. 501.
4 Compare chapter VII of this vol., and Reagan v. Grim, 14 Penn. St. 608.
6 Lansing v. Stone, 87 Barb. 15, B. c. 14 Abb. Pr. 199.
6 See, for instance, Reed v. Dick, 8 Watts (Pa.), 479.
' See, for instance, Toledo, &c. R. R. Co. v. Goddard, 25 Ind. 185, 190.
8 Page 44 of this voL
9 Gerke v. Cal. Steam Nav. Co. 9 Cal. 251, 255 ; R. R. Co. v. Messino, 1 Sneed
(Tenn.), 220, 227.
10 The principle applied by those courts that admit such declarations most freely,
is to receive those which are obviously elicited by the casualty, though not literally
simultaneous with it, if they follow in close connection and before other acts inter-
vene, so as to be apparently the spontaneous expression of the natural consciousness
while still under the heat of the emergency. Compare Ins. Co. v. Mosely, 8 Wall. 397;
approved in 9 Id. 408, and cases cited. The New York courts exclude such declara-
tions, unless it affirmatively appears that they were made at the time of the injury.
Whitaker v. 8th Avenue R. R. Co. 61 N. Y. 295, rev'g Whitaker v. 8th Avenue R. R
Co. 6 Robt. 650 ; Luby v. Hudson R. R. Co. 17 N. Y. 131.
." Sims v. Macon, <fcc. R. R. Co. 28 Geo. 94; Bellefontaine Ry. Co. v Hunter, 33
Ind. 335. s. o. 5 Am. R. 201.
GENERAL RULES. 589
or on a later day though while continuing the voyage ; * or on
being arrested when leaving the spot, 3 are not competent.
Declarations made before or after the casualty may be made
admissible by showing that the declarant was acting in the scope
of his employment at the time, in a matter involved in the duty
or care required of defendant, and default in which caused the
disaster, 3 or aggravated the wrong. 4 If it be shown that the
declarant spoke in response to timely inquiries addressed to him,
and relating to matters under his charge, in respect to which he
was authorized, in the usual course of business, to give informa-
tion, 5 this principle suffices to admit the declaration of the agent,
and hence narratives of past facts are not necessarily excluded,
as they are where only the rule of res gestcs is invoked.
18. of third person injured.'] Where the beneficial as
well as legal right of action is in another than the injured
person, as where a parent sues for injuries to his minor chiid,
the admissions ol the latter are not competent against the
plaintiff, 6 unless as part of the res gestce, or brought home to
plaintiff by independent evidence.
19. Strangers.] The declarations of any persons present,
made in the heat of the emergency, and forming part of the
incident and illustrating the nature, cause or extent of the
wrong, may be proved as part of the res gestce?
20. Violation of Statute.'] Although the fact that an act
required by statute was omitted, or that an act done was a viola-
tion of a statute, does not alone necessarily sustain an action
against the offender for negligence, 8 nor necessarily bar an action
by him for negligence injurious to him while offending ; 9 yet it is
relevant as evidence on the question of negligence in the act ;
and if the statute regulated the manner for purposes of safety,
and the injury resulted from the disregard of such regulations,
1 Packet Co. v. Clough, 20 Wall. 528.
s Whitaker v. Eighth Ave. R. R. Co. (above).
3 Thus declarations of those engaged in construction may be competent if the
cause of disaster was a defect in that construction. Brehm v. Great Western R.
R. Co. 34 Barb. 226 ; Peyton v. Governors of St. Thomas Hospital, 3 M. & Ry.
625 n. ; Matteson v. N. Y. Central R. R. Co. 62 Barb. 864.
4 For instance, the master's refusal to allow the injured passenger assistance, after
the casualty. Hall v. Steamboat Co. 13 Conn. 319, 324. Otherwise if the conduct
of the declarant is not implicated in the fault. Maury v. Talmadge, 2 McLean,
157 ; Mobile & M. R. R. Co. v. Ashcraft, 48 Ala. 15.
6 See page 44 of this vol.
Ohio, <fec. R. R. Co. v. Hammersley, 28 Ind. 871.
7 Norwich Transp. Co. v. Flint, 13 Wall. 8 ; 7 Blatchf. 686. Under these rules a
newspaper account (Downs v. N. Y. Central R. R. Co. 47 N. Y. 83), or a passengers'
card of exoneration (Macon, Ac. R. R. Co. v. Johnson, 38 Geo. 409, 436), are not
competent. As to proving outcries, compare 1 Whart. Ev. 46, 8 36; Messner v.
People, 45 N. Y. 1.
* Smith v. Lockwood, 13 Barb. 209, 217 ; Van Hook v. Whitlock. 2 Ed. Ch. 304.
9 Hoffman v. Union Ferry Co. 68 N. Y. 390 ; Baker v. Portland, 58 Me. 199, s. a
4 Am. R. 274.
590 ACTIONS FOR NEGLIGENCE.
this is sufficient prima facie evidence of negligence. 1 But, on
the other hand, compliance with the statute is not usually con-
clusive evidence of due care. 2
21. of municipal ordinance.] Violation of a municipal
ordinance regulating the manner of the act, is relevant on the
question of negligence. 8
22. Usage.] Plaintiff may show the general course and
usage of the business, so far as necessary for the purpose of
showing what ought to have been done in conducting the
transaction in which defendant is alleged to have been neg-
ligent. 4 Where the measure of defendant's duty is ordinary
care, the manner in which other persons in the same general
business are accustomed to do, is competent. 5 Otherwise where
the duty is not to be thus measured. 6 In neither case is the de-
fendant's own usage competent in his favor. 7
A general usage may be proved by testimony of experts, to
decide a question of duty not governed by law. 8
23. Ownership of the thing causing the injury.'] Ordinarily
evidence that the property, mismanagement 01 which caused the
injury, was owned by and in the control of defendant, is prima
facie evidence that the negligence was imputable to him. 9 To
make a municipal corporation liable for the unsafe condition of
public property, its custody and control of the property must be
shown.
Ownership n and possession w may each be proved by direct
testimony of a witness to the fact, subject of course to cross-ex-
amination. Evidence of acts of ownership, such as applying for
I Cordell y. N. Y. Central R. R. Co. 64 N. Y. 635, rev'g 6 Hun, 461. See also
Wooster v. Canal Bridge Co. 16 Pick. 641, 544; Shearm. & Red. Negl. 484.
s Caldwell v. N. J. Steamb. Co. 47 N. Y. 282, affi'g 66 Barb. 425. Compare
Doward v. Lindsay, L. R. 6 P. C. 338, s. c. 8 Moak's Eng. 261.
3 McGrath v. N. Y. Central <fc H. R. R. R. Co. 63 N. Y. 622; Beisigel v. N. Y.
Central, 14 Abb. Pr. N. S. 29 ; Jetter v. New York <fe Harlem R. R. Co. 2 Abb.
Ct. App. Dec. 468; Phila. <fe Reading R. R: Co. v. Ervin, Supreme Ct. Pa.
March, 1879, Reporter, 153.
4 Brown v. Hitchcock, 28 Vt. 452.
5 Page 673 of this vol.
8 As in case of a city's liability for defective highway (City of Champaign v.
Patterson, 50 111. 61, 65); or bridge (Bliss v. Wilbraham, 8 Allen, 664); or that of a
railroad company to guard against fires from sparks (Grand Trunk. Ry. v. Richard-
son, 91 U. S. [l Otto], 464, 469); or of the keeper of gunpowder (Bradley v.
People, 56 Barb. 72). Compare Bacon v. Boston, 8 Cush. (Mass.) 174, 181.
7 Gahagan v. Boston, <fcc. R. R. Co. 1 Allen, 187 ; Maury v.Talmadge, 2 McLean,
167.
8 Barnard v. Kellogg, 10 Wall. 383 ; The City of Washington, 92 U. S. (2 Otto),
81 ; The Clement, 2 Curt. 363, 369.
9 Shearm. <fe R. on Negl. 71, 72, 195 ; reviewing conflicting authorities. Com-
pare Mullen v. St. John, 67 N. Y. 667 ; English v. Brennan, 60 Id. 609.
10 Shearm. & R. 150 ; Terry v. Mayor, <fec. of New York, 8 Bosw. 504 ; and, ac.
cording to some authorities, that it received profit or advantage from it as property.
Hill v. City of Boston, ] 22 Mass. 344.
II De Wolf v. Williams, 69 N. Y. 622.
Hardenbergh v. Crary, 60 Barb. 32 ; Knapp v. Smith, 27 N. Y. 277.
GENERAL RULES. 591
a license, 1 or receiving proceeds, 2 is competent. A sign-board is
competent, 3 but not necessarily sufficient. Evidence that the
thing was leased to a third person, is competent in defense.*
24. Connection of cause with injury. ,] Plaintiff cannot re-
cover unless he proves that the injury was caused by defendant.
It is not enough to prove that it was possibly, or even probably,
caused by him ; 5 nor that his negligence was the remote cause or
mere occasion. 6 What is the proximate cause is ordinarily a
question for the fury, to be determined upon a view of all the
circumstances. 7 Plaintiff is not bound to show the precise cause.
It is enough if he shows the injury to be attributable to one or
other of several causes, for each of which defendant is respon-
sible. 8
Where the facts suggest several hypotheses, an expert may be
asked, what would have been the indications on one or another
hypothesis without first proving it to be the true one. 9
Evidence of the true source of injury is admissible under a
general denial. 10
25. Notice of defect: Request."} Notice to defendant of the
defect in his premises which caused the injury, may be presumed
from its existence for a sufficient lapse of time previously ; but
such pre-existence will not be presumed without evidence. 11 Ex-
press notice to an agent or servant, whose duty it was to attend
to or to report on the defect, is enough. 12
Under an allegation of request, evidence of excuse for not
making request is not competent. 13
26. The delinquent an agent or servant of defendant.] In ad-
dition to what has been said in the previous chapter, 14 it should be
observed that the fact that the delinquent was, .at the time of the
disaster, in charge of the property of the defendant which caused
1 Commonwealth v. Gorman, 16 Gray, 601.
* Grier v. Sampson, 27 Pa. St. 183, 192.
- Stables v. Ely, 1 Carr A P. 614.
4 Kastor v. Newhouse, 4 E. D. Smith, 20 ; Hart v. New Orleans, Ac. Co. 4 La.
Ann. 261.
6 Sheldon v. Hudson River R. R. Co. 29 Barb. 226; Lehman v. City of Brooklyn,
Id. 234.
6 For illustrations see Card v. City of Elsworth, 65 Me. 647, 8. o. 20 Am. R. 722;
Kellogg v. St. Paul, Ac. R. R. Co. 94 U. 8. (4 Otto), 469 ; Burke v. Louisville, Ac.
R. R. Co. 7 Heisk. (Tenn.) 451, s. o. 19 Am. R. 618; Clark v. Chambers, 38 L. T. R.
N. S. 454. But it is not necessary that the negligence complained of be the sole
cause of the injury. Pollett v. Long, 66 N. Y. 200.
1 Kellogg y. St. Paul, Ac. R. R. Co. (above).
8 See, for instance, Bevier v. Delaware A Hudson Canal Co. 13 Hun, 264, 267.
9 Erickson v. Smith, 2 Abb. Ct. App. Dec. 64.
10 Schaus v. Manhattan Gas-light Co. 14 Abb. Pr. N. S. 371.
11 Sherman v. Western Transp. Co. 62 Barb. 150.
11 Conger v. Chicago, Ac. R. R. 24 Wis. 157, s. c. 1 Am. R. 164; Parker v. Steam-
boat Co. 109 Mass. 449 ; compare Black v. Camden A Amboy R. R. Co. 46 Barb. 40 ;
Swords v. Edgar, 59 N. Y. 28.
13 Lyman v. Eclerton. 29 Vt. 308.
" Pages 41, 480 and 680.
592 ACTIONS FOR NEGLIGENCE.
the injury, is sufficient evidence to go to the jury that he was
defendant's agent or servant, and that the property was in use
for defendant's benefit. 1
If the delinquent was acting within the scope of his employ-
ment, 8 the master is liable ; and is not exempt simply because
the servant acted maliciously. 3
27. Contractor or servant.] In determining whether a person
is a " contractor " or not, the circumstance that he always serves
the same person affords a very strong presumption that he has
no independent occupation ; but this presumption is not conclu-
sive. 4 The fact that a person doing work is subject to dismissal
by his employer at any moment, is a circumstance raising a pre-
sumption that he is a servant and not a contractor, but not con-
clusive. 5
28. Common employment.'] If defendant relies on the fact
that plaintiff was a fellow servant of the delinquent, 6 and plaint-
iff's case only shows an injury received through defendant's negli-
gence, the defendant has the burden of showing that the relation
of master and servant existed between them. 7 If that relation is
shown or admitted, the servant must prove that the risk by which
he was injured was not one of those which he assumed. 8 The
presumption that the servant contracted with a view to peril,
cannot arise where the risk is not within the contract of service,
and the servant had no reason to believe he would have to en-
counter it. 9
If defect of machinery is proved, there must be evidence im-
1 Norris v. Kobler, 41 N. Y. 42, rev'g 1 Sweeny, 39, and see Boniface v Relyea, 5
Abb. Pr. N. S. 259, e. o. 6 Robt. 397 ; Svenson v. Atlantic Mail Steamship Co. 57 N.
Y. 108, affi'g 33 Super. Ct. (1 J. & S.) 277.
a A stevedore's foreman, dissatisfied with acartman's unloading, zealously took the
cartman's place, and, in throwing a package, injured plaintiff. Held evidence to go
to the jury that he was acting for the stevedore. The question was, did he act, per-
haps over-zealously, in his employment, or did he act for a purpose of his own ?
Burns v. Poulson, L. R. 8 C. P. 563, s. c. 6 MoaFs Eng. 261. On the other hand, a
master was held liable for negligent act of clerk when watching for thief (Courtney
v. Baker, 60 N. Y. 1 ; 37 Super. Ct. (5 J. <fe S.) 249); but not liable for malicious act
in shooting a trespasser. Fraser v. Freeman, 43 N. Y. 566, rev'g 56 Barb. 234.
A driver went out with the team on an errand of his own, and returning called
for some of his master's goods on the way, and while carrying them had a collision.
Held, that he was not acting within the scope of his employment. Rayner v. Mitch-
ell, 25 Weekly Ri 633. On the other hand, a driver took a load of coal to the wrong
house, and delivered it to one who had not ordered it but subsequently paid for it ;
and the driver left the coal-hole open. Held, that he was acting within the scope of
his employment. Whitely v. Pepper, 36 L. T. R. N. S. 588.
3 Mott v. Consumers Ice Co. 73 N. Y. 543, and cases cited.
4 Shearm. <t Red. 8 76.
5 Id. 78.
6 For the grounds of this exemption, see 3 Am. R. 146, n ; 3 South. L. Rev. N. S.
735, 2 Id. 108, 5 Id. 200, 380 ; Mullan v. Philadelphia, Ac. Mail Steamship Co. 78
Penn. St. 25, 8. o. 21 Am. R. 2, and cases cited; Mai one v. Ilathaway, 64 N. Y. 6,
12.
1 Wharton on Neg. 226, 243.
8 Beaulieu v. R. R. 48 Me. 291.
Railroad Company v. Fort, 17 Wall. 553.
GENERAL RULES. 593
puting or implying cognizance of it in the master, unless it was a
defect which he was bound to know. 1 The burden of proving
that the plaintiff also knew of the defect which caused the injury,
but continued his service notwithstanding, rests upon the defend-
ant. 3 If defendant proves this, plaintiff may then show that de-
fendant induced him to continue his work by promising to rem-
edy the defect. 3
29. Negligent employment of unfit servant."] Where a servant
in common employment relies on negligence of the employers in
engaging an incompetent fellow servant, the negligence may be
proved by evidence that the latter was an unfit person, and was
known to defendants, or generally known and reputed, to be such. 4
The negligence of the employee, on the occasion of the injury, is
not by itself sufficient evidence to charge the defendants with neg-
ligence in appointing or retaining the employee ; s but the evidence
of his incompetency may show circumstances which raise a fair in-
ference that they were negligent in selecting him, or in omitting
ordinary inquiries as to his qualifications, &c. 6 For the purpose of
charging the defendants with notice of the incompetency, it may
be shown that the servant had been guilty of specific acts of care-
lessness, unskillfulness and incompetency, and that such acts were
known to defendants or their officers prior to his employment, or
that he had been retained in service after notice of such acts. 7
For, when character is the subject of investigation, specific acts
tend to exhibit the peculiar qualities and indicate the adaptation
or unfitness for a particular duty. 8 One single act of negligence
by a servant, does not of itself have any tendency to establish
general incompetency. 9
The declarations of the agent for hiring and discharging ser-
vants, made to the plaintiff, are admissible to show his knowledge
of the unfitness of a servant whom he neglected to discharge, if
part of the res gestce ; 10 otherwise not ; u except for the purpose
1 Wharton on Neg. 243 ; Columbus, Chicago <t Indiana Central Ry. Co. v
Froesch, 68 111. 545, 8. c. 18 Am. R. 578.
2 Shearm. <fe Red. 99. Evidence thnt he knew that some of the cars were not
adequately provided, is enough, although he did not notice the condition of the par-
ticular car which caused the accident. Ladd v. New Bedford Railroad Company, 119
Mass. 412, 8. c. 20 Am. R. 331.
8 Shearm. <fe Red. 99.
* Oilman v. E. R. R. Co. 10 Allen, 233, s. p. 20 Mich. 105, 8. c. 4 Am. R. 864;
Cook v. Parham, 24 Ala. 21, 83.
6 Wharton on Neg. 240; Shearm. fe Red. on Neg. 91.
6 Shearm. <fe Red. on Neg. 891.
1 Pittsburgh, Fort Wayne & Cliicigo Ry. Co. v. Ruby, 33 Ind. 294, 8. o. 10 Am.
R. Ill, and cases cited; 1 Whart. Ev. 68, 56. Compare Frazier v. Penn. R. R. Co.
SSPenn. St. 104, liO.
8 BamVcv. N. Y. <fe Harlem R. R. Co. 69 N. Y. 356, s. c. 48 How. Pr. 899, affi'g,
In effect, 14 Abb. Pr. N. S. 310, s. c. 5 Lans. 436; 62 Barb. 623.
9 Lee v. Detroit Bridge, <tc. 62 Mo. 565 ; Baulec v. N. Y. <fc Harlem R. R. Co. 59
N. Y. 356.
10 Laning v. N. Y. Central R. R. Co. 49 N. Y. 521, affi'g, in effect, 2 Lans. 606.
11 Huntiugton R. R. v. Decker, 3 Week'y Notes, 120.
38
594 ACTIONS FOR NEGLIGENCE.
of charging defendant with notice, for which purpose evidence of
declarations made before the disaster, is competent. 1 If there is
no evidence that the person engaged was unlit before his engage-
ment, he may be presumed by the jury to have become so, if at
all, after his engagement ; and the jury may presume that the em-
ployer made due inquiries. The burden is on the plaintiff to
show the contrary. 2
30. Plaintiffs title.'} Plaintiff must show that he has some
title or interest in the thing injured. 3 A witness may testify
directly, in the first instance, who owned the thing, and who was
in possession, 4 subject, of course, to cross-examination. Defend-
ant's recognition of the thing as plaintiff's, is competent. 5 Slight
evidence is enough, if uncontradicted. As to personal property,
possession i&prima facie enough.
31. Manner of injury. ~\ If negligence alleged is substantially .
proved, a .variance in the manner of resulting injury is not usual-
ly material. 7
32. Condition of person, or thing injured.'] The person in-
jured may be asked, as a witness, to state the effect of the injury
upon him, and may detail the nature and extent of the injury,
stating facts within his knowledge, as distinguished from mat-
ters of opinion requiring professional skill in their just forma-
tion. 8 The injury must be proved by witnesses ; but the thing in-
jured may be produced for the inspection of the jury under such
testimony. 9 A photograph of the place is admissible. 10
33. Burden of proof as to contributory negligence.'] Three
rules contend for control as to whether plaintiff must prove his
own freedom from contributory negligence. 1. That ordinary
care is presumable ; and if plaintiff can prove his case without
showing contributory negligence, the burden is on defendant.
2. That plaintiff's care is not presumed, and the burden is on him
to disprove contributory negligence. 3. That neither care, nor
the want of it, is presumable, in the absence of evidence ; and that,
if the facts show a duty of care, plaintiff must give some evidence
1 Chapman v. Eric Ry. Co. 55 N. Y. 579, rev'jr 1 Supm. Ct. (T. & C.) 526.
5 Davis v. Detroit <fe Milwaukee R. R. Co. 20 Mich. 105, s. c. 4 Am. 11. 364.
8 See Cook v. Champlain Transp. Co. 1 Den. 91; Ohio, <fcc. R. R. Co. v. Jones,
27 111. 41.
4 See De Wolf v. Williams, 69 N.Y. 622 ; Miller v. Long Island R. R. Co. 9 Hun, 194.
5 See Smith v. Causey, 28 Ala. 655. Grand Trunk R. R. Co. v. Richardson, 91
U. S. (1 Otto) 454.
Fish v. Skut, 21 Barb. 333.
7 Pollard T. New Haven R. R. Co. V Bosw. 437 ; and see Antisdel v. Chicago, <fcc.
R. R. Co. 25 Wis. 145.
8 Creed v. Ilartman, 8 Bosw. 123 ; affi'd, on other points, 29 N. Y. 591. The rules
applicable to testimony to the condition of persons and things have been already in-
dicated. Pages 586, 587, 594.
9 Mulhndo v. Brooklyn City R. R. Co. 30 N. Y. 370. Contra, Jacobs v. Davis, 84
Md. 204, 216.
10 Cozzens v. Hoggins, 1 Abb. Ct. App. Dec. 451.
GENERAL RULES. 595
from which the jury may infer that he exercised it ; otherwise,
he need not. .
34. the United States Court rule.] The rule applied by the
Supreme Court of the United States, 1 is, that the plaintiff is not
bound to prove affirmatively that he was himself free from negli-
gence. If lie can prove his case without showing contributory
negligence, it is a defense to be proved by the defendant. 2
35. the Massachusetts rule.'] The rule applied by the Su-
preme Court of Massachusetts 3 is, that the burden is always upon
the plaintiff to establish, either that he himself was in the exer-
cise of due care, or that the injury is in no degree attributable to
any want of proper care on his part ; 4 and while the inference of
such care may be drawn from the absence of all appearance of fault,
either positive or negative, on his part, in complete and affirma-
tive evidence of all the circumstances under which the injury was
received, 5 yet evidence which only partially discloses the facts,
leaving a case consistent alike with negligence and with care on
plaintiff's part, is not enough to sustain a verdict. 6 Plaintiff must
show himself in the right, and defendant in the wrong:
1 Following and extending the doctrine of the New York cases stated in Oldfield
V. N. Y. & Harlem R. R. Co. 14 N. Y 310, affiV 3 E. D. Smith, 103.
2 Railroad Co. v. Gladmon, 15 Wall. 401 ; Indianapolis, tfcc. R. R. Co. v. Hoist,
93 U. S. (3 Otfc>), 291. Contra, Hull v. Richmond, 2 Woodb. & M. 337; Beardsley
v. Swann, 4 McLean, 333.
Applied also in Alabama (Smoot v. Mayor. &c. 24 Ala. 112). California (Gay v.
Winter, 34 Cal. ! 53). Georgia (n. 3, below). Kentucky (P. & M. R. R. Co. v. Hoeh'l, 12
Bush, 41). Mary/and ( Northern Cent. Ry. v. State, 31 Md. 357). Minnesota (Hocum
v. \Yitherick, 22 Minn. 152). Missouri (Thompson v. North Mo. R. R. 51 Mo. 190).
New Hampshire (White v. Concord R. R. Co. 30 N. II. 188, 207; Smith v. Eastern
R. R. Co. 35 Id. 356, 366). New Jersey (Durant v. Palmer, 29 N. J. L. [5 Dutcher],
244 ; N. J. Express Co. v. Nichols, 33 Id. [4 Vroom], 434). Ohio (Cleveland, <fcc.
R. R. Co. v. Crawford, 24 Ohio St. 631, 636). Pennsylvania (Pennsylvania "R. H. Co.
v. We er, 76 Penn. St. 157, s. c. 18 Am. R. 407). Rhode Island (Cassidy v. Anjrell,
Mar. 1879, cited in 20 Alb. L, J. 305). 7'cxas (Texas, &c. R. R. v. Murphy, 4>> Tex.
356; contra, Walker v. Ilerron, 22 Id. 55); and Wisconsin (Hoyt v. Hudson, 41 Wis.
105, s. c. 22 Am. R. 714 ; Prideaux v. City of Mineral Point, 43 Wis. 513).
Wharton approves presuming plaintiff's freedom from negligence, in the absence
of all evidence on the point. Whart. on Negl. 425.
3 Applied also in Georgia (Brannan v. May, 17 Geo. 136; Campbell v. Atlanta
R. R. Co. 53 Id. 488 ; contra, Thompson v. Cent. R. R. 64 Id. 509). Illinois (Dyer v.
Talcott, 16 111. 300; Galena, <fec. R. R. Co. v. Fay, Id. 558). Indiana (Maxtield v.
Cin. <fec. H. R. 41 lad. 269; R. H. Co. v. Dexter, 24 Id. 411; compare Scudder v.
Crossan, 43 Id. 843). Iowa (Greenleaf v. 111. Cent. R. R. Co. 29 Iowa, 14, s. c. 4 Am.
R. 181, arid cas. cit.) Louisiana (Moore v. Shreveport, 3 La. Ann. 645). Maine
(Dickey v. Maine Tel. Co. 43 Me. 492;. Michigan (L. S. & M. S. R. R. v. Miller, 25
Mich. 274; Michigan Cent. R. R. v. Coleman, 28 II. 440, 447). Mississippi (Miss.
Cent. R. R. Co. v. "Mason, 51 Miss. 234). North Carolina (Doggett v. R. & D. R. R.
Co. 78 N. C. 305 ; and see Manly v. Wihnington, Ac. R. R. Co. 74 Id. 655); and
Oregon (Kahn v. Love, 3 Oreg. 206). But in some of these States the rulings are
equally consistent with the New York doctrine. As to Connecticut, see next p.
4 Murphy v. Deane, 101 Mass. 455, s. c. 3 Am. R. 390.
6 Mayo v. Boston & Me. R. R. Co. 104 Mass. 137.
' Crafts v. Boston, 109 Mass. 619. To contrast the Massachusetts rule with the
New York rule, compare this case with Johnson v. Hudson R. R. Co. 20 N. Y. 65,
and Hill v. New Haven, 37 Vt. 601.
596 ACTIONS FOR NEGLIGENCE.
36. the New York rule. 1 } By the New York rule, it de-
pends on the circumstances of each case whether plaintiff must in-
troduce affirmative evidence that he was not chargeable with neg-
ligence. If his own case indicates his presence at the disaster, or
his conduct, or that of his servants, in it or in the occasion of it, 2 it
must appear that lie exercised such care and vigilance to avoid
danger, as prudent persons usually exercise in view of the danger
in question. If this does not affirmatively appear, where the want
of it contributed to the casualty, 8 he must be nonsuited. If there
is any evidence tending to show it was exercised, the question
must be submitted to the jury.
Under this rule, the absence of contributory negligence may
be inferred as well from the circumstances of the case as from
evidence directly establishing the fact. 4 The circumstances may
be considered in connection with the ordinary habits, conduct, and
motives of men, 5 and the fact that when last seen, plaintiff was pro-
ceeding in view of the peril with due care, 6 or was found in a sit-
uation indicating the exercise of such care, 7 will sustain a finding ;
and the jury may consider also the inference of care arising from
the instinct of self -preservation, 8 although this is not alone enough.
On the othei hand, the circumstances of the disaster, 9 or the
character of defendant's delinquency itself, 10 may be such as to
prove, prima facie, the whole issue, without any independent evi-
dence to indicate the conduct of plaintiff or his servants. 11
1 Observing the distinction stated in the text, I understand the New York
rule to be substantially applied in Connecticut (compare Park v. O'Brien, 23 Conn.
839, 3-15 where plaintiff suing for a collision, in driving on the highway, was
held bound to negative contributory negligence with Bell v. Smith, 39 Id. 211
where plaintiff, whose vessel was at anchor, was held to have made a prima facie
case by proving that defendant's vessel in attempting to pass collided, and that the
burden was on defendant to show contributory negligence) ; and in Vermont (com-
pare Trow v. Vt. Central R. R. Co. 24 Vt. 487; Hill v. New Haven, 37 Id. 501 ;
Walker v. Westfield, 39 Id. 246).
2 As, for instance, where the injury was by a railroad train at a highway cross-
ing; or in stepping over skids on which, merchandise was being moved across the
sidewalk ; or a carriage collision when driving on the" highway. See 18 Alb. L. J.
pp. 144, 164, 184, where the New York cases are collected.
3 Haley v. Earle, 30 N. Y. 208. To have this effect, plaintiff's negligence must
have been a proximate, not merely a remote cause of the injury. Austin v. N. J.
Steamboat Co. 43 N. Y. 82. Compare Lewis v. Baltimore & Ohio R. R. Co. 38 Md.
688. s. c. 17 Am. R. 521.
4 Cases above cited. Button v. Hudson River R. R. Co. 18 N. Y. 248; Johnson
V. Hudson R. R. R. Co. 20 Id. 65 ; affi'g, 6 Duer, 633.
6 Johnson v. Hudson R. R. R. Co. (above).
6 Greenleaf v. 111. Cent. R. R. Co. 29 Iowa, 14, s. c. 4 Am. R. 181.
I Johnson v. Hudson R. R. R. Co. (above).
8 Morrison v. N. Y. Central & H. R. R. R. Co. 63 N. Y. 643, affi'g 4 Hun, 424;
and see Greenleaf v. 111. Cent. R. R. Co. 29 Iowa, 14, 8. c. 4 Am. R. 181, 193.
' As, for instance, if the owner of lumber sues a wharfinger for negligently set-
ting it on fire.
10 Johnson v. Hudson R. R. R. Co. 20 N. Y. 65, affi'g 6 Duer, 633.
II In other words, the principle requiring plaintiff to negative contributory negli-
gence, is not characteristic of all actions for negligence as such ; but only of those
where the evidence shows his presence or conduct, or that of his servant or agent,
to have been involved in the disaster or its causes. This principle is recognized even
GENERAL RULES. 597
37. Disproving contributory negligence?^ Evidence of the acts
and declarations of other persons in the same peril, is competent
as part of the res gestm, and also as evidence of what was deemed
prudent by those thus exposed. 1 Neither the fact that the injured
person was a careful and prudent person, nor that he had been
careful on other occasions, is competent. 2 The fact that he was
incapable, by reason of years or of physical or mental infirmity,
of taking the same care as ordinarily prudent persons take, is
competent. 3
The existence, and violation by defendant, of a statute or
municipal ordinance, on which plaintiff' had a right to rely for
safety, is competent as tending to negative contributory evidence.-
Flaintiff may show that notwithstanding his negligence defendant
might by ordinary care have avoided doing the injury. 5
38. Contributory negligence of infants.'] A child of very
tender years, 6 is presumptively incapable of care, and, therefore,
not chargeable with negligence. The opinion of a qualified wit-
ness as to the physical or mental capacity of a child, is admissi-
ble. 7 On the question of a parent's negligence in protecting the
in Massachusetts. Parker T. Lowell, 1 1 Gray, 353, 356. In this class of cases, which
includes nearly all those of personal injuries by negligence, except medical malprac-
tice, the requisite degree of evidence to negative contributory negligence increases
with the duty of care required in view of the peril in question.
1 TwotTiley v. Central Park, <fec. R. R. Co. 69 N. Y. 158; Galena R. R. Co. v. Fay,
10 III. 558, 668 ; Mobile, <fcc. R. R. v. Ashcraft, 48 Ala. N. S. 16.
* Morris v. Town of East Haven, 41 Conn. 254.
8 See Casey v. N. Y. Central R. R. Co. 6 Abb. New Cas. 104 and note, 116;
Curtis v. Avon, 49 Barb. 148.
4 Williams v. O'Keefe, 9 Bosw. 536 ; Lax v. Mayor, <fec. of Darlington, 40 Law
Time3,-N. S. ; Jetter v. N. Y. & Harlem R. It. Co. 2 Abb. Ct. App. Dec. 458; and
see McUrath v. N. Y. Central. <fcc. R. R. Co. 63 N. Y. 522.
5 Kenyon v. N. Y. Central, <fcc. R. R. Co. 6 Hun, 479, and cases cited. The doc-
trine of comparative negligence (that is, allowing plaintiff, to recover if his contribu-
tory negligence is slight as compared wi;h the negligence of defendant), is adopted
in Georgia (124 Mass. 44, 60), and Illinois (Chicago <fc Alton R. R. Co. v. Pondrom,
61 111. 333, s. c. 2 Am. R. 306). Not in Maryland (Pittsburgh & Connellsville R. R.
Co. v. Andrews, 39 Md. 329, s. c. 17 Am. R. 568, 576). Massachusetts (124 Moss. 44,
50).
* In this case, two years. Prenaegast v. N". Y. Central, <fec. R. R. Co. 58 N. Y.
652; and see Ihl v. 42d St. R. R. Co. 45 Id. 317; North Penn. R. R. v. Mahoney, 67
Perm. St. 187. It has generally been considered that the question of degree of in-
capacity is to be determined in each case, upon evidence of the age, maturity and
capacity of the child. Railroad Co. v. Gladman, 15 Wall. 401 ; R. R. Co. v. Stoul, 17
Id. 657. Some recent cases draw lines of presumption at seven and fourteen years re-
spectively, holding tliat evidence of negligence of a child under seven is incompetent
or unavailing; (Government St. R. R. v. Hanlon, 53 Ala. 70;) that as to children
between that age and fourteen, there must be evidence of the degree of capacity ;
and that ns to children over fourteen, there is a presumption of ability to fake full
care of self, which c m only be rebutted by proof of the want of sncli discretion and in-
telligence as ia usual with you hs of fourteen. (Xagle v. Alleirhany Valley R. R. Co.
6 Weekly Notes [Penn.] 610.) For the doctrine that the disability is only relevant
ti fie question of the degree of care which was due from defendant, see Cent. L. J.
103 (1878).
7 Lynch v. Smith, 104 Mass. 62, s. c. 6 Am. R. 188. As to contributory negli-
gence of persons suffering from other incapacities, see Colt v. Sixth Ave. R. R. Co.
33 Super. Ct (J. A S.) 189; Gonzales v. N. Y. <fc Harlem R. R. Co. Id. 67; Daren-
598 ACTIONS FOR NEGLIGENCE.
child, the jury may consider the probability of care resulting
from maternal affection. 1
39. Effect of peril on witnesses.] The law recognizes the tin-
reliableness of the observation 2 and the declarations 3 of a witness
overcome with fear in view of the peril. 4
40. Damages.] The mode of proving value has already been
stated. 5
Where the damage consists in a depreciation of pecuniary
value, in an object which had a market value, a witness, qualified
to testify to the value, may testify to the amount of the damage,
if he first states the facts forming the basis of his opinion, or if
he is an expert, speaking on a point requiring expert testimony.
A witness should not be allowed to testify directly to the amount
of damages recoverable ; but if he is questioned within the limits
of the above rule, it is no objection to his testimony that it gives
the sum for which the jury ought to give a verdict. 6
41. Loss of earnings.'] In the case of personal injuries, evi-
dence of the employment in which he was engaged, its extent
and the rate of his earnings previous to the injury, and the conse-
quent loss arising to him from his inability to prosecute it, is com-
petent. 7 Uncertain profits such as those of a merchant 8 or a ves-
sel 9 are not ; but the question is, what was usually paid for such
services done for others ? Loss of earnings should be specially
alleged. 10 If the business was illegal without license, he must
prove his license, in 'order to recover for loss of income. 11
42. Suffering and impaired powers.] Any physical injury
or physical suffering n may be considered, though not specially
port v. Ruckman, 37 N. Y. 568; affi'g 16 Abb. Pr. N. S. 341, and note in 6 Abb.
NewCas. 116.
1 Fallen v. Central Park, <fcc. R. R. Co. 64 N. Y. 13, 17, affi'g 6 Daly, 8.
2 Tiie Masten, 1 Brown Adm. 463.
3 The Laura, 14 Wall. 343.
4 So the testimony of a witness who was on a moving vessel, ns to the absolute
movements of another vessel, is likely to be deceptive. McNally v. Mayor, 5 Ben.
239; SPC, also, The Ship Marcellus, 1 Black, 414; The Governor, Abb.' A dm. 108;
The Neptunp, Olc. 483; Delaware, die. Tow-boat Co. v. Starrs, 69 Penn. St. 36, 41.
6 Pages 306, 348, of this vol.
6 Miller v. Long Island R. R. Co. 9 Hun, 194 ; 1 Wharf,. Ev. 416, 450 : Wells v.
Cone, 65 Barb. 685 ; nnd see page 848 of this vol. Compare Simons v. Monier, 29
Barb. 419 ; Harger v. Edmonds, 4 Barb. 266 ; Whitmore v. Bowman, 4 Greene (Iowa),
128.
7 Nebraska City v. Campbell, 2 Black, 590; Walker v. Erie Ry. Co. 63 Barb. 260;
Grant v. City of Brooklyn, 41 Barb. 381.
8 Masterton v. Village of Mount "V ;rnon, 58 N. Y. 391. Compare Chandler v.
Allison, 10 Mich. 460; Hanover R. R. Oo. V. Coyle, 55 Penn. St. 396, 402.
The R. L. May bey, 4 Blatchf. 439.
10 Stapenhorst v." Am. Manuf. Co. 15 Abb. Pr. N. S. 355; Baldwin v. Western R.
R. 4 Gray, 333; Chicago v. O'Brennan, 65 111. 160.
11 Kane v. Johnston, 9 Bosw. 154.
12 Ransom v. N. Y. <fc Erie R. R. Co. 15 N. Y. 415 ; Curtis v. Rochester <fc Syra-
cu^e R. R. Co. 18 Id. 534, affi'g 20 Barb. 282. For instance, even aggravation of
suffering in subsequent childbirth. De Forrest v. City of Utica, 69 N. Y. 614.
GENERAL RULES. 599
alleged. 1 Mental suffering, 2 also, as well as mental impairment, 8
may be considered.
43. Continuing effect^ To show the nature and extent of the
injury and suffering, it is competent to give evidence of their
continuing effect up to the time of the trial, 4 and their probable
effect in the future. 5
44. Testimony of the party. ~] The injured person may testify
directly to his physical condition, 6 ability to work, travel, &c., 7
if his testimony is confined to the facts within his knowledge
or consciousness, as distinguished from matters of professional
skill and opinion. The injured member may be exhibited to the
jury. 8
45. Expressions of suffering. ~\ On the question of suffering
at any given time, 9 the declarations, complaints, groans, 10 exclama-
tions, gestures, 11 and demeanor, of the injured person at that time,
being manifestations in the nature of the usual concomitants and
expressions of pain and distress, may be proved in his own favor. 12
1 Curtiss v. Rochester & Syracuse R. R. Co. 20 Barb. 282 ; and though the negli-
fence was not gross, and vindictive damages be not claimed ; Morse v. Auburn &
yracusc R. R. Co. 10 Barb. 621.
2 Matteson v. N. Y. Central, <fcc. R. R. C >. 62 Barb. 364, 379, and cases cited ; 53 Jf.
Y. 28. Contra, Covington St. Ry. Co. v. Packer, 9 Bush (Ky.), 455, s. o. 15 Am. R. 752.
3 T. W. & W. R. R. Co. v. Baddeley, 54 111. 19, s. o. 5 Am. R. 71.
4 Sheehan v. Edgar, 58 N. Y. 681, and cases cited.
6 Caldwell v. Murphy, 1 Duer, 233 ; 11 N. Y. 416 ; T. W. & W. R. R. Co. v. Bad-
deley, 54 111. 19, s. c. 5 Am. R 71. As, for instance, that in the ordinary course of
nature and without extrinsic superinducing cause, they will probably be fatal (T. W.
<fec. R. R. Co. v. Baddeley, 54 111. 19, s. c. 5 Am. R. 71); or permanent (Buell v. N.
Y. Central R. R. Co. 31 N. Y. 314); or affect the general health, or that a disease in-
duced by them will return (Filer v. N. Y. Central R. R. Co. 49 N. Y. 42).
6 Creed v. Hartman. 8 Bosw. 123.
7 See People v. Tubbs, 37 N. Y. 586.
8 Mulhado v. Brooklyn City R. R. Co. 30 N. Y. 370.
9 The competency of this natural evidence of suffering depends upon its simulta-
neousness with the suffering, not upon its simultaneousness with the casualty which
caused the injury. Hence such manifestations observed when examining the per.-:on
for the purpose of learning the phybical condition, are admissible (Matteson T. X. Y.
Central R. R. Co. 85 N. Y. 487, s. p. in a further decision, 62 Barb. 364); even though
after the commencement of the action (Murphy v. N. Y. C. R. R. Co. 66 Barb. 125, 130;
Kent v. Lincoln, 32 Vt. 591, 597; Barber v. Merriam. 11 Allen, :522), but the lapse of
time affects the cogency of the evidence, and suspicion of feigning may render it
worthless. This is a question for the jury. But to reduce the effect, of defend nit's
evidence that plaintiff continued to labor long after the injury, plaintiff cannot prove
his declarations of suffering while laboring. Reed v. N. Y. Central R. R. Co. 45 N.
Y. 674, overruling 56 Barb. 493.
Compare Bacon v. Charlton, 7 Cush. 581, 586, where the line is drawn between
spontaneous manifestations of present pain, and statements drawn forth by question,
or made with a view to communicate information.
The same evidence is, of course, admissible in favor of a parent plaintiff. Kcn-
nard v. Burton, 25 Me. 89, 46.
10 As to mode of proving significance of inarticulate cries, see People v. Messner, 45
N. Y. 1, a doubtful authority on this point. Compare McKee v. .Nelson, 4 Cow. 355.
11 Bacon v. Charlton, 7 Cush. 681, 586.
Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 N. Y. 344; Baker v.
Griffin, 10 Bosw. 140; Phillips v. Kelley, 29 Ala. 628, 634.
Since parties are now competent to testify, such evidence ia to bo received with
caution, if the declarant is living. Reed v. N. Y. Central R. R. Co. 45 N. Y. 674.
600 ACTIONS FOR NEGLIGENCE.
But this rule does not justify receiving statements of past facts, 1
although connected with such complaints or made as the reason
of them ; 2 and when such statements are commingled with the
declarations, and are admitted with them, they are no evidence of
the truth of what was thus stated. 8
Such declarations, if competent, may be proved by any wit-
ness who heard them ; but are of greater weight if made to and
proved by a medical attendant, than if proved by an ordinary
witness. 4
46. Opinions of witnesses."] Any witness of ordinary intelli-
gence and powers of observation, who is conversant with the
facts, may testify whether a person appeared sick or well ; 5 worse
or better at one time than another ; ' able to work ; 7 how far
able to help himself, and at what point requiring assistance to do
what was necessary to be done ; 8 and whether the attendance of
a physician was necessary. 9
An expert may testify to his opinion as to the condition of
the person, the nature, cause, 11 curableness, 13 probable continuance, 13
and probable result 14 of the injury, and the mode and effect of
medical treatment. 15 If the witness speaks from personal exam-
ination, his opinion must be derived from his examination, and
not dependent on what was narrated to him by the attendants, 18
and he should state the facts upon which he bases his opinion. 17
He may state, as a part of the facts on which his opinion is
founded, statements, which the sufferer made, of his own condition
to the witness, for the purpose of receiving his professional ad-
1 Page v. N. T. Central R. R. Co. 6 Duer, 623 ; Indianapolis, &c. R. R. Co. v. An-
thony, 43 Ind. 183. Whether complaining of sleeplessness is a statement >f past fact
within the rule, compare Taylor v. Grand Trunk Ry. 48 N. H. 304; Cleveland v. N.
J. Steamboat Co. 5 Hun, 523, 529.
s See Tilson v. Terwilliger. r>6 N. Y. 273 ; People v. Davis, Id. 96.
3 People v. Williams, 8 Park. Cr. 84, 100.
4 Howe v. Plainfield, 41 N. H. 135 ; Perkins v. Concord, <fec. R. R. 44 Id. 223.
'Paragraph 13.
6 Parker v. Boston, <fec. Co. 109 Mass. 449.
'Id.
8 Sloan v. N. Y. Central R. R. Co. 45 N. Y. 125.
9 Chicago, <fec. R. R. Co. v. George, 19 111. 510, 616.
10 See n>te 10 on p. 116, and following notes.
11 Compare People v. Rector, 19 Wend. 569; People v. Bodine, 1 Den. 281, 311;
Gardiner v. People, 6 Park. Cr. 615 ; Kennedy v. People, 39 N. Y. 245, s. c. f> Abb.
Pr. N. S. 147; Roberts v. Johnson, 58 N. Y. 613, affi'g 37 Super. Ct (5 J. <fc S.) 157.
New Orleans, <tc. Co. v. Albritton, 38 Miss. 242, 273.
12 Matteson v. N. Y. Central K. R. Co. 35 N. Y. 487.
13 Buell v. N. Y. Central li. R. Co. 81 N. Y. 314. Although he does not remember
the particulars of the injury, or of the treatment he first prescribed. Rowell v.
Lowell, 11 Gray, 420.
14 Briant v. trimmer, 47 N. Y. 96 ; T. W. <fe W. R. R. Co. v. Baddeley, 54 111. 19,
e. c. 5 Am. R. 71.
15 Barber v. Merriam, 11 Allen, 322.
16 Page 117 of this vol. note I, an I see Lund v. Tyngsborough, 9 Cash. 36.
17 Wendell v. Mayor, <fcc. of Troy, 39 Barb. 329, affi'd in 3 Abb. Ct App. Dea
MS.
GENERAL RULES. 601
vice ; * but narratives of a past fact are not thns admissible, 2 unless
made in such close connection with the fact as to form part of the
res gestce? If the witness does not speak from personal examina-
tion, the question must be hypothetical, based either upon the
hypothesis of the truth of all the evidence given in the case, or
upon an hypothesis specially framed, of certain facts, within the
limits of the evidence, assumed to be proved. 4
47. Plaintiff's family and circumstances.'] Evidence of the
number of plaintiff's family, his habits, industry and economy, is
inadmissible 5 So of his poverty, 6 except, perhaps, where exem-
plary damages are recoverable. 7
48. Defendant's wealthJ] Evidence of defendant's wealth is
not competent, directly or indirectly. 8
49. Exemplary damages.'] To justify exemplary damages,
there should be evidence of gross negligence amounting to reck-
lessness, or to indifference to the dangers and consequences to
others. 9
50. Action for causing death. ,] The mode of proving the
family relation has been already stated. 10 The burden of proof is
on plaintiff to prove the pecuniary injury which he seeks to re-
cover, and such facts as enable the jury to determine what would
be a fair and just compensation. 11 .Neither evidence that the next
of kin had legal claims on the deceased for support, 12 nor any pos-
itive evidence of actual pecuniary loss is, however, essential, 1 ** even
to sustain a recovery of more than nominal damages, 14 unless the
age or ability of the deceased is such that no pecuniary injury
11 1 i *1K
could result. 5
1 Barber v. Merriam, 11 Allen, 322.
8 Cliapin v. Marlborou-rh, 9 Gray, 244 ; Illinois, <fec. R. R. Co. v. Sutton, 42 HL
438. Compare Looper v. Bell, 1 Head (Tenn.) 373, 377.
3 Hamman v. Stowe. 57 Mo. 93.
< Filer v. N. Y. Central, 49 N. Y. 42 ; Carpenter T. Blake, 2 Lans. 206, rev*d, on
another ground, in 50 N. Y. 696; Hoard v. Peck, 56 Barb. 202, and see p. 117 of
this vol.
5 Penn. R. R. Co. v. Books, 57 Penn. St. 339, 344. Contra, Winters v. Hannibal,
<fcc. R. R. Co. 39 Mo. 468.
6 Sheartn. <fe R. on Neg. 606.
7 Chicago v. O'Brennan. 65 111. 160.
8 Myers v. Malcolm, 6 Hill, 292 ; Moody v. Os^ood, 50 Barb. 628.
Shearm. fe Red on Neg. 600, and see Caldwell v. N. J. Steamboat Co. 47 N.
Y. 282, affi'g 56 Barb. 426; Milwaukee, <fec. R. R. Co. v. Arms, 91 U. S. (1 0,-toX
489, 493; Clegliorn v. N. Y. Central & Hudson Hiver R. R. Co. 66 N. Y. 44.
lu Puije 71 of this vol., and see Pennsylvania R. R. v. Adams, 65 Penn. St. 499.
" Mclntyre v. N. Y. Central R. R. Co. 37 N. Y. 287, s. c. 35 How. Pr. 36, affi'g 47
Burb. 515.
14 Barren v. Illinois Central R. R. Co. 1 Biss. 458.
13 Keller v. The N. Y. Central R. R. Co. 2 Abb. Ct. App. Dec. 480.
14 Dickens v. N. Y. Central II. R. Co. 1 Abb. Ct. App. Dec. 604.
15 As in case of a child of two years. Prcndea;ast v. N. Y. Central, <fec. 58 N. Y.
652. Compare O'Mara v. Hudson River R. R. Co. 88 N. Y. 445; Mitchell v. N. Y.
Central <fe Hudson River R. R. Co. 2 Hun, 535.
602 ACTIONS FOR NEGLIGENCE.
To show pecuniary loss, evidence of the capacity of the de-
ceased to conduct business and make money/ and of what he
usually earned, 2 is proper ; and, in the case of a parent rearing
children, the capacity to bestow such training, instruction, and
education as would be pecuniarily serviceable to the children in
after life. 3
The probable duration of life, and the value of an annuity,
may be shown by the Northhampton tables, 4 or by the testimony
of an expert in life -insurance. 5 The opinion of a qualified wit-
ness is competent, as to how long the deceased would probably
have been useful to his family. 6
II. DEFENSES.
51. Disproof of negligence.'] If the question of negligence
depends on the circumstances of the case, defendant may show
the nature and character of his business, in course of which the
alleged negligence occurred, 7 and any circumstances showing a
reasonable necessity to act as he did, 8 and that a prudent man
would have acted as he did. 9
52. Advice.'] Where willful intent to do injury, or reckless
indifference, is in issue, defendant may prove, in connection with
evidence of his innocence and good faith, that he took the opin-
ion of competent advisers and acted on it. 10
53. former acquittal.'] The record of an acquittal of defend-
ant, on an indictment for the same act, is irrelevant. 11
54. Plaintiff's contributory negligence] A general denial
1 Tilley v. Hudson River R. R. Co. 29 N. Y. 252.
8 Mclntyre v. N. Y. Central R. R. Co. 37 N. Y. 287, s. c. 35 How. Pr. 36, affi'g
47 Barb. 515.
3 Tilley v. Hudson River R. R. Co. (above).
4 Sauter v. N. Y. Central, &c. R. R. Co. 66 N. Y. 50, affi'g 6 Hun, 446. As to
these tables and others equally competent, see note at p. 724 of this vol. It is not
essential, though usual, to show, as introductory, that the person enjoyed health
usual to one of that age. Rowley v. London, <fec. R. R. Co. L. R. 8 Ex. 221, s. c. 6
Moak's Eng. 293. The widow's probable duration of life is relevant, but not the pos-
sibility of her marrying again. Bait. R. R. v. State, 33 Md. 542, 554.
6 Rowley v. London <fe N. W. Ry. Co. (above). It is not essential thnt the witness
be an actuary. It is enough that he testify that he has experience in the business of
life insurance, for instance as an accountant (Id.). A life insurance agent of six
months' experience is not competent. Donalson v. R. R. 18 Iowa, 280, 291.
6 Pennsylvania R. R. Co. v. Henderson, 51 Penn. St. 315, 320.
I Philadelphia & Reading R. R. Co. v. Evin Supreme Ct. Pa. March, 1879, 8 Re-
porter, 153. See paragraph 22.
8 Elliot v. Steamboat James Robb, 12 La. Ann. 12.
9 Burkett v. Bond, 12 111. 87.
10 Sherman v. Kortright, 52 Barb. 267. Perhaps such evidence is proper wherever
it does not affirmatively nppe.ir that plaintiff claims only actual damages. Com-
pare Furth v. Foster, 7 Robt. 484, and Yates v. N. Y. Central, <fcc. R. R. Co. 67 N.
Y. 100.
II 2 Whart. Ev. 776, citing Cottingham v. Weeks, 54 Geo. 275.
18 As to the burden of proof, see paragraphs 33-36.
DEFENSES. 603
admits this defense. 1 Evidence of plaintiffs previous knowledge
of the defect which, caused the injury he might have avoided, is
competent, but not conclusive. 2 Intoxication at the time of ex-
posure to the peril is competent, 3 but not conclusive. 4 Intoxica-
tion at other times, though habitual, is not competent. 5 The in-
toxication may be proved by opinions of eye witnesses, 6 but not
by declarations of a third person, not made as part of the res
gestce? Evidence that plaintiff had admitted that he was in fault;
is not necessarily conclusive against him. 8
Gross negligence in respect of treatment or conduct, which
retarded recovery, is competent on the question of damages. 9
Where there is evidence of negligence in this respect, plaintiff
may show that he acted under the advice of a competent physi-
cian, for the purpose of showing that he acted in good faith, and
used proper care. 10
55. Plaintiff's conduct illegal.'} Defendant cannot set up the
separate or distinct wrongful act of plaintiff, done not to himself
nor to his injury, and not necessarily connected with, or leading
to, or causing or producing the wrongful act complained of. 11 Il-
legality, when amounting to contributory negligence, may be
shown under a general denial. 12
56. Mitigation.] Where plaintiff may enhance the damages
by showing circumstances of aggravation, defendant may mitigate
them by showing circumstances of palliation. 13
The existence of a remedy against a third person, 14 or even the
receipt of insurance against fire, accident or death, cannot be con-
sidered in reduction of damages. 15
1 McDonell v. Buffum, 31 How. Pr. 154; Cunningham v. Lyness, 22 Wis. 245,
250 ; Indianapolis, &c. R. R. Co. v. Rutherford, 29 Ind. 82.
8 Frost v. Inliab. of Waltham, 12 Allen, 85; Shearm. & Red. on Keg. 414;
Reed v. Northfield, 13 Pick. 94.
3 Barker v. Savage, 1 Sweeny, 2S8.
4 Shearm. & Red. on Neg 487.
6 Barker v. Savage (above).
People v. Eastwnod, 14 N. Y. 562, affi'e; 3 Park Cr. 25.
' Chicago, <fec. R. R. Co. v. Bell. 70 111. 102.
8 Zemp v. Wilmington, <fec. R. R. Co. 9 Rich. (S. C.) L. 84.
But see 23 Am. R. 21, note.
10 Lyons v. Erie Ry. Co. 57 N. Y. 489 ; Oilman v. Deerfield, 15 Gray, 577.
11 Sutton v. Town of Wanwatosa, 29 Wis. 21, s. c. 9 Am. R. 534. Thus traveling
on Sunday, in violation of the Sunday law, docs ;iot contribute to a disaster caused
by a defect in the highway or vehicle, Id ; Carroll v. Staten Island K. R. C'o. 58 N.
Y. 126, and see Baker v. Portland, 58 Me. 199, s. c. 4 Am. R. 274 ; Steele v. Bnckhardt,
104 Mass. 59, B. c. 6 Am. R. 191, and cases cited. Contra, Johnson v. Town of Iras-
burijh, 47 Vt. 28, s. c. 19 Am. R. Ill, and see cases cited in 18 Alb. L. J. 84, and see
18 Id. 163.
1J Jones v. Andover, 10 Allen, 18.
18 Millard v. Brown, 85 N. Y. 297.
14 Nims v. Mayor, <fcc. of Troy, 69 N. Y. 500, affi'g 8 Supm. Ct. (T. <fc C.) 5.
15 Lansing v. Stone, 37 Barb. 15, s. c. 14 Abb. Pr. 199.
CHAPTEE XXXII.
ACTIONS AGAINST TELEGRAPH COMPANIES.
1. The undertaking to carry. 3. Damages.
2. Burden of proof as to cause of error.
1. The undertaking to carry.'] The original dispatch delivered
to the operator is the primary evidence and must be produced,
or be accounted for, to let in secondary evidence. 1 Evidence that
plaintiff did not read the conditions at the head of the paper
signed by him is unavailing. 2
2. JSurden of proof as to cause of error. .] In the absence of
special conditions, plaintiff makes a prima facie case by proving
(1.) The undertaking to carry, shown by delivery of the message
to the apparently proper clerk, 3 and payment of charges, if pre
paid ; (2.) A default, apparently due, not to the nature of the
electric telegraph, but to want of ordinary care such as non-
delivery, 4 or misdelivery, 6 and (3.) Damages.
If the error apparently resulted from the risks and contingen-
cies peculiar to the nature of the telegraph, plaintiff may recover
if the evidence will sustain an inference that it resulted from
negligence or other default on part of defendants. 8
N ot withstanding the usual condition, evidence of gross negli-
gence or willful misconduct is competent ; 7 but an offer to prove
" negligence," is not enough. 8
3. Damages.'] To recover damages beyond the price paid
for transmission, there must be evidence, from the face of the
message or otherwise, from which it may be inferred that defend-
ants or their servant had notice that other and further loss might
occur from a breach of the undertaking. 9
1 Western Union, <tc. Co. v. Hopkins, 49 Ind. 224..
2 Grinnell v. Western Union Co. 1 13 Mass. 299, s. c. 1 8 Am. R. 485 ; Breese Y. U. S.
Tel. Co. 48 N. Y. 139, s. c. 8 Am. R. 526 ; and see p. 290 of this vol. But compare
Tyler v. West. Un. Co. 60 111. 421, s. c. 14 Am. R. 38 ; and Dig. to Am. R. pp. 774-7.
3 See pages 40, 275-480 of this vol.
4 W. U. TeL Co. v. Graham, 1 Col. T. 230.
6 Baldwin v. U. S. Tel. Co. 45 N. Y. 751, s. c. 1 Allen's Tel. Cas. 613. Or
stoppage at a way office. U. S. TeL Co. v. Wenger, 55 Pa. St. 262 ; W. U. Tel. Co. v.
Fontaine, 58 Geo. 433.
6 Whether the burden ia on plaintiff to show this, or, in the present state of the
art, on the defendants to explain the cause of error, is disputed. For the former view
see, Baldwin v. U. 8. Tel. Co. (above); Sweetland v. Illinois, <fec. Co. 27 Iowa, 433,
8. c. 1 Am. R. 285. For the latter, see Bartlett v. West. Un. Co. 62 Me. 209, s. c. 16
Am. R. 437 ; Rittenhouse v. Independent Line, 44 N. Y. 263, affi'g 1 Daly, 474 ; Edw.
on B. 489 ; Shearm. fe R. 559 : Turner v. Hawkeye, 41 Iowa, 458, s. c. 20 Am. R.
605 ; Western Union Co. v. Tyler, 74 111. 168, s. c. 24 Am. R. 279.
7 Breese v. U. S. TeL Co. 48 N. Y. 141, and cises cited; s. c. 8 Am. R. 526.
8 Grinnell v. Western Union Co. 113 Mas". 299, s. c. 19 Am. R. 485.
Baldwin v. U. S. Tel. Co. (above) ; McColl v. West Un. Co. 7 Abb. N. C. note.
[604]
CHAPTEE XXXIII.
ACTIONS BY AND AGAINST SHERIFFS, CONSTABLES AND MARSHALS.
1. Official character and acts.
2. Officer's action against receiptor.
S. Officer's action for conversion or
trespass.
4. for price of goods sold.
5. against attorney or party, for
fees.
6. Action against officer, for failure
to serve or collect process.
7. defenses.
8. Action for storage.
9. Action for loss of property from
custoily.
10. for failure to pay over.
11. for taking insufficient secur-
ity, or as bail.
12. for escape.
13. defenses.
14. for failure to return.
15. for false return.
16. Admissions, declarations, and
conduct of deputies, <fec.
1. Official character and acts.'] The general rules have been
already stated. 1
2. Officer's action against receipior.'] The rules governing
the mode of proving the contract are elsewhere stated. 2 Defend-
ant's refusal to deliver is evidence of a conversion. 3
The receiptor is estopped from showing that the property be-
longed to himself 4 or to a third person, 5 or that the property
not accounted for was less than the value fixed upon it by the
receipt, 6 or that the levy was excessive. 7 But he may show
fraud or gross mistake in these respects, 8 or a re-delivery. 9
Otherwise he is discharged only by act of God, or the public
enemy. 10
3. Officer's action for conversion or trespass.] The process,
with plaintiff's return, is evidence of levy ; n and, witli proof of
possession or of the judgment, 12 is sufficient to show his title.
The consent of the officer to the taking of the property is a
bar to an action in his own name. 13
1 Chapter VII, ACTIONS BY AND AGAINST PUBLIC OFFICERS.
* Chapter XXX, ACTIONS AGAINST BAILEES, AGENTS, <fcc.
I)ezell v. Odell, 3 Hill. 215.
4 Cornell v. Dakin, 38 N. Y. 253, and cases cited. (Except, perhaps, in mitigation
of damages in some cases. Bursley v. Hamilton, 15 Pick. 40.)
6 Id.
Id.
I Dczoll v. Odell, 3 Hill, 215.
8 Id.
Clark v. Weaver, 17 Hun, 481.
10 Cornell v. Dakin, 88 N. Y. 253.
II Page 19? ; Williams v. Horndon, 12 B. Mon. 484.
19 Spoor v. Holland, 8 Wend. 445 ; Pryne v. Westfall, 3 Barb. 496.
13 Earl v. Coup, 16 Wend. 562, 570.
[605]
606 ACTIONS BY AND AGAINST SHERIFFS, Ac.
4. for price of goods sold."] The judgment, as well as the
process, should be proved. 1
5. against attorney or party, for fees.'] The judgment on
which process was issued is competent evidence of its own exist-
ence ; 2 but not of the performance of services recited in it, 3 un-
less the record was the act of defendant, as may be the case
with a judgment-roll in a court of record under the new proce-
dure. 4 The liquidation of the fees by legal taxation by the
proper officers, although by a certificate made after the action
was brought, is conclusive evidence as to the amount. 5
6. Action against officer, for failure to serve or collect process. .]
The existence of the judgment should be proved; 6 and, if it
be a justice's judgment, the jurisdiction of the subject-matter
and the person ; 7 its regularity need not. 8
If the process was a summons for commencement of an action,
plaintiff must give prima facie evidence that he had a cause of
action ; and for this purpose such evidence as would be compe-
tent against the debtor, for instance, the debtor's admission,
is competent against the officer. 9
The issuing of the process is shown by proof of the authenti-
cation; and the delivery to the officer may be shown by parol, or
in a case within the statute, 10 by proof of leaving at his office, or
in case of execution, by his memorandum thereon. 11 If the pro-
cess has not been returned, it should be produced, or its absence
accounted for, and secondary evidence given. If returned, it is
proved by a certified copy. 13
Some evidence is necessary tending to show his ability to exe-
cute the process, such as that he knew or ought to have known
that the one proceeded against was within his precinct, or that
goods which he might have seized were owned by or in posses-
sion of the debtor. 13 Some evidence of his neglect is necessary, 14
though very slight evidence suffices for a prima facie case. 15
7. defenses.'] Existence of property being shown by plaint-
1 2 Whart. Ev. 828, citing Gaskell v. Morris, 7 Watts <fe P. 32. For the modo
of proof, see Chapter XXIX. For mode of proving auction sales, p. 327.
4 Reynolds v. Brown, 15 Barb. 24.
3 Id.
4 See p. 644 of this vol., note.
5 Birkbeck v. Stafford, 14 Abb. Pr. 285, s. c., less fully, in 23 How. Pr. 236.
See Chapter XXIX.
1 Westbrook v. Douglass, 21 Barb. 602; Lawton v. Erwin, 9 Wend. 233; Cornell
V. Barnes, 7 Hill, 85.
8 State v. Miller, 48 Mo. 261.
9 Greenl. Ev. 526, 584.
10 2 N. Y. R. S. 285 (3 Id. 6 ed. 447), 56, 57 ; Sherman v. Conner, 16 Abb. Pr.
N. S. 396 ; Manning v. Keenan, 9 Hun, 686.
11 2 N. Y. R. S. 364 (3 Id. 6 ed. 623), 10 ; tf. Y. Code Civ. Pro. 1363 ; 2 N. Y. R.
S. 440, 75 (3 Id. 6 ed. 724); N. Y. Code Civ. Pro. 100; Wardwell v. Patrick, 1
Bosw. 4d9.
12 2 Greenl. Ev. 625, 584.
" 2 Greenl. Ev. 525, 584. See N. Y. Code Civ. Pro. 103.
M Pa<re 198 of this vol.
15 2 Greenl. Ev. 625, 684.
ACTIONS BY AND AGAINST SHERIFFS, <fcc. 607
iff, it is for defendant to Bhow inability to collect by due dili-
gence. 1 General repute that goods in defendant's possession did
not belong to him is not alone competent. 8 The fact of exemp-
tion from execution, if available, 3 must be proved by defendant. 4
Defendant is estopped from showing that his receiptor proved to
be the true owner. When sued for not applying to an execution
goods levied on under a provisional attachment, he is not estopped
by the levy alone from proving that they were not the property
of the debtor. 6 .The value of goods levied on and not sold (if not
stated in the return), may be snown in the usual manner of prov-
ing value. 7 On the question of the sufficiency of a levy, the
amount produced at the sale is ordinarily the best evidence ; and
opinions of witnesses are not competent, 8 unless it may be as
showing good faith in refraining from oppression.
If plaintiff's instructions 9 or assent 10 to neglect or delay are
relied on, they must be shown by clear evidence, though express
assent is not essential. 11 Mere omission to object is not alone
evidence of assent to previous conduct. 12 Ambiguous instructions,
though in writing, may be explained by parol evidence of the
circumstances under which they were given. 13
Insolvency of the debtor is competent in mitigation ; 14 but the
burden is on defendant to show it. 15 The evidence must be di-
rected to the time of his duty. 16 Evidence of the debtor's present
ability is not competent in mitigation. 17
8. for storage.'] A deputy's authority to bind the sheriff
by a contract for storage is presumed ; and the burden is on the
sheriff to charge plaintiff with notice of a limitation of this au-
thority. 18 The sheriff's return stating the claim for storage is
evidence of his admission of its existence, but not of the amount
due. 19 The amount may be proved as in other cases. 20
1 Bank of Rome v. Curtis, 1 Hill, 275.
s Whitsett v. Slater, 23 Ala. 626.
8 Compare Baker v. Brintnall, 52 Barb. 188, s. c. 5 Abb. Pr. N. S. 253; and
People ex rel. Gnston v. Campbell, 40 N. Y. 133.
4 Bonnell V. Bowman, 53 111. 460.
6 People ex rd. Knapp v. Reeder, 25 N. Y. 302 ; Penobscot Boom Corporation v.
Wilkins, 27 Me. 345; and see paragraph 2.
6 Fuller V. Holdcn, 4 Mass. 498 ; Penobscot Boom Corporation v. Wilkins, 27 Me.
345 ; and see West v. Tuttle, 11 Wend. 639.
1 Campbell v. Pope, Hcmpst. 271 ; and see pages 308-311 of this vol.
8 French v. Snyder, 30 111. 339.
9 Tuttle v. Cook, 15 Wend. "275.
10 Moore v. Westervelfc, 1 Bosw. 357.
11 Doty v. Turner, 8 Johns. 20 ; Cornell v. Cook, 7 Cow. 310, 313.
11 Moore v. Westervelt, 2 Duer, 59.
" Ely V. Adams, 19 Johns. 313.
u Dininny v. Fay, 88 Barb. 18.
15 Murphy v. Troutman. 6 Jones N. C. L. 379. And plaintiff may rebut this,
Humphrey v. Hathorn, 24 Barb, 273, 280; and see French v. Snyder, 30 HI. 839.
16 See Bank of Rome v. Curtis, 1 Hill, 275.
" Id.; Tyler v. Ulmer, 12 Mass. 16a
18 Hamsey v. Strot>ach, 52 Ala. 613.
19 Fitchburgh R. R. Co. v. Freeman, 12 Ofrav. 40 I.
80 Id.
608 ACTIONS BY AND AGAINST SHERIFFS, <fca
9. for loss of property from custody.'] The burden
of proof is the same as in an action against a warehouseman. 1
Mere proof of delay to remove the goods is not enough without
showing negligence. 3
10. for failure to pay over.'] The levy, and receiving the
money, may be proved by parol. 3 The dockets and records of the
court to which the officer belonged, are competent evidence
against him to show that money has been received by him and
his sureties or his deputies, upon its process. 4 The return, if
proved, is conclusive on the officer. 5 Jurisdiction of the action be-
ing shown or presumable, 6 the officer cannot object to irregularity
in the judgment or execution.' An appraisement participated in
by the officer, and certified in his return, is competent against
him. 8
11. for taking insufficient security^ The writ, and a sub-
sequent judgment thereon against the debtor, are sufficient prima
facie evidence of the original indebtedness. 9 The officer's return
indorsed, is sufficient evidence of the delivery of the process to
him. 10
The mode of proving insolvency, or pecuniary responsibility
or credit, or repute, is stated in the next chapter. It is enough to
show negligence, without proving willful wrong. 11 The declara-
tions of the bail, are competent against the sheriff to show his in-
sufficiency ; for instance his repeated promises to pay creditors
and his defaults. 12 In the absence of evidence of sufficiency of
the bail, it is not necessary for plaintiff to show proceedings taken
against them. 13 In the absence of evidence as to the responsibility
of the original debtor, the burden is on the sheriff to show that
he had no property, if that is relied on in mitigation. 14 It is
enough for the officer to show that the bail were at the time appar-
ently in good credit, and responsible for the amount. 15 Evidence
of actual inquiry is not essential. 16 Evidence that they stated to
the officer at the time, that they were responsible, is not enough. 17
1 Witowski v. Brennan, 41 Super. Ct. (J. <fe S.) 284.
I Moore v. Westervelt, 21 N. Y. 103, rev'g 1 Bosw. 357.
8 Bryant v. Dana, 8 111. 343.
4 \Villiamsv. United States, 1 How. 290, 8. c. 17 Pet. 144.
6 Sheldon v. Payne, 7 N. Y. 453; Tiffany v. Johnson, 27 Miss. 227; Denton v.
Livingston, 9 Johns. 96.
' Page 544 of this vol.
7 Nutzenholster v. State, 37 Ind. 457; Germon v. Swartwout, 3 Wend. 282; Wai-
den v. Davison, 15 Wend. 575.
8 Sanborn v. Baker, 1 Allen, 526.
9 Young v. Hosmer, 11 Mass. 89.
10 Blatch v. Archer, Cowp. 63.
II Sparhawk v. Bartlet, 2 Mass. 188, 197, 199; Rice v. Hosmer, 12 Id. 129.
12 Gvllim v. Scholey, 6 E?p. 100.
18 Young v. Hosmer, 1 1 Mass. 89.
14 Young v. Hosmer, 11 Mass. 89. Compare People ex re?. Metcalf v. Dikeman, 3
Abb. Ct. App. Dec. 520; Beusel v. Lynch, 44 JS". Y. 162, affi'g 2 Kobt. 448.
1& Hindle v. Blades, 5 Taunt. 225, 227.
"Id.
" 2 Greenl. Ev. 527, 586.
ACTIONS BY AND AGAINST SHERIFFS, Ao. 609
12. for escape. 1 ] In the case of original or mesne process,
issued without judicial ascertainment of the fact and amount of
indebtedness of the original defendant, plaintiff must give some
evidence thereof. 2 Whatever evidence would be competent to
charge the original debtor, is competent against the sheriff. 8 In
the case of final process, the judgment is sufficient evidence of the
indebtedness.
The process should be produced, or its absence be accounted for
to let in secondary evidence. 4 Showing failure to return and re-
fusal to produce on notice, lets in secondary evidence of the writ. 5
The return of arrest is conclusive against the officer. 6 Absence
of a return being accounted for, the arrest may be proven by
parol. 7
Under an allegation of a voluntary escape, plaintiff may prove
a negligent escape. 8 An escape is presumed to be only negligent
in the absence of anything to show that it was voluntary. 9
The escape may be proved by oral evidence that the prisoner
was not in custody. 10 The fact of the prisoner being off the limits,
must be affirmatively and satisfactorily shown by direct and pos-
itive proof. Nothing will be intended or inferred. 11 But evi-
dence that he was seen at large, is sufficient, prima facie If it
be shown that the prisoner was in defendant's custody under the
process, a subsequent return of not found, is evidence of the es-
cape. 13 To prove the debtor beyond the limits, ineffectual search,
and a letter received from him, are competent. 14
The damages are presumptively the amount of the judgment
or bail. 15 Where the judgment is not conclusively the measure of
damages, 16 plaintiff should be prepared with evidence of actual loss.
Declarations by the prisoner, made before escape, tending to show
that he had property, are competent against the sheriff. 17
1 For definition of escape, see N. Y. Code Civ. Pro. 155 ; "Wilckens T. Willet, 4
Abb. Ct. App. Dec. 696.
2 See 2 Greenl. Ev. 629, 689.
3 Sloman v. Herne, 2 Esp. 695, LORD KBOTON. The New York rule is that de-
clarations of the debtor, adduced against the sheriff, must be shown to have been
made before escape. Patterson v. Westervelt, 17 Wend. 643, 549. Contra, Hart v.
Stevenson, 25 Conn. 499, 606, unless part of the res gestce.
4 Van Slyck v. Taylor, 9 Johns. 146.
5 Hinman v. Brees', 13 Johns. 529; Dygert ads. Crane. 1 Wend. 634.
* 2 Greenl. Ev. 629, 589. So is a bond given to the officer's predecessor, re-
citing the process and custody. Tallmadge v. Richmond, 9 Johns. 86.
7 Hinman v. Brees, 13 Johns. 629.
8 Bonufous v. Walker, 2 T. R. 126.
Patterson v. Westervelt, 17 Wend. 543, 546.
10 Fairlie v. Birch, 3 Campb. 397.
11 Visscher v. Gansevoort, 18 Johns. 496.
15 Stewart v. Kip, 7 Johns. 165.
" Bensel v. Lynch, 44 N. Y. 162, affi'g 2 Robt. 448 ; Wheeler V. Hambright, 9
Serg. A Rawle, 390, 396.
*Ptr COWKN, J. Patterson v. Westervelt, 17 Wend. 543, 649.
15 Patterson v. Westervelt, 17 Wend. 543 ; State ex rel. Shirk, 50 Ind. 698 ; Latham
V. Westervilt, 26 Barb. 256 ; but see N. Y. Code Civ. Pro. 158, sub. 1.
16 As in case of final process, etc., under N. Y. Code Civ. Pro. 158, sub. 2,
" Patterson v. Westervelt, 17 Wend. 649.
39
610 ACTIONS BY AND AGAINST SHERIFFS, <feo.
13. defenses."] An error or irregularity in the judgment
>rocess is not material, unless rendering it void. 1 Even re-
13.
or process
versal of the judgment does not necessarily exonerate the officer. 3
A general question as to the manner of escape is irrelevant,
unless counsel states an intention to show facts which would ex-
cuse the officer. 8 A voluntary return is not admissible under a
general denial. 4 In an answer of voluntary return, an allegation
that prisoner continued in custody to time of suit brought, is
immaterial, though put in issue. 5
The sheriff can justify under a discharge by showing that the
court had jurisdiction. The regularity of the proceedings is not
material. 8 If the jurisdictional facts" do not appear by the reci-
tals in the discharge, they may be proved aliunde. 1
As to damages, in the case of negligent escape, 8 or of escape
from mesne process, 9 it is competent to give in evidence the
circumstances of the debtor, in order to limit the recovery to
what the plaintiff has actually lost. 10 Insolvency of the debtor,
though not pleaded, may be proved in mitigation. 11 General
reputation of insolvency is inadmissible. 12
14. Action for failure to return.'] Plaintiff is, prima facie,
entitled to recover the whole amount due on his judgment, upon
proving the judgment, 13 the delivery of the writ to the defendant
to be executed, together with his neglect to return it. 15 The na-
ture of an action against an officer for neglect to return an exe-
cution is sufficient notice to defendant to produce the execution. 16
That the officer had sufficient time to proceed under the writ,
may be inferred from circumstances. 17 It is best to give some
evidence of failure to return. 18 Yery slight evidence is enough
1 Jones v. Cook, 1 Cow. 300; Ross T. Luther, 4 Cow. 158, 163 ; Ontario Bank v.
Hallett, 8 Cow. 192. Compare Carpeutier v. Willet, 1 Abb. Ct. App. Dec. 312.
8 Smith v. Knapp, 30 N. Y. 581.
a Fairchild v. Case, 24 Wend. 381.
4 Rowland v. Squior, 9 Cow. 91.
6 Middle District Bank v. I >eyo, 6 Cow. 732.
6 Cantillon v. Graves, 8 Johns. 472 ; Wiles v. Brown, 3 Barb. 37 ; Bush v. Petti-
bone, 5 Barb. 273.
1 Bullymore v. Cooper, 46 N. Y. 236, modifying 2 Lans. 71.
8 Patterson v. Westervelt, 17 Wend. 546, and cases cited.
Compare N. Y. Code Civ. Pro. 158.
10 Smith v. Knapp, 30 N. Y. 581, 592. As to the mode of proving: insolvency, see
the next chapter. As to the test of pleading, distinguishing between this action and
that on the officer's liability as bail, compare Smith v. Knapp, 30 N. Y. 581 ; Metcalf
v. ^tryker, 31 N. Y. 255; People v. Dikeman, 3 Abb. Ct. App. Dec. 520; Bensel v.
Lynch, 44 N. Y. 162, affi'g 2 Robt. 448.
11 Barnes v. Willett, 35 Barb. 514.
19 Fairchild v. Case, 24 Wend. 381. 384.
13 See, as to the mode, Chapter XXIX; Cornell v. Barnes, 7 Hill, 35.
14 See paragraphs 6 and 15.
15 Pardee v. Robertson, 6 Hill, 550.
16 Story v! Patten, 3 Wend. 486 ; Wilson v. Gale, 4 Id. 623.
11 Wilson v. Gale, 4 Wend. 623.
18 That this is unnecessary was held in State v. Schar, 60 Mo. 893.
ACTIONS BY AND AGAINST SHERIFFS, Ao. 611
to shift the burden of proof. It is not necessary to show the
collection of money, 1 nor the existence of property out of which
it might have been collected ; 2 but this may be proved if alleged. 3
Plaintiff need not show that the debtor had property. 4 Prima
facie the measure of damages is the amount required to be raised
by the execution ; 5 but the officer may show that the debtor had
nothing from which the money could have been made ; 6 or any-
thing which attacks the judgment ; or shows that plaintiff's in-
terest is affected. 7
In rebuttal plaintiff may show that the debtor had property,
though this be not alleged. 8
Tardy return is no defense. 9
15. for false return.] The judgment must be proved ; 10 or,
in fhe case of mesne process, the original cause of action ; u and
the issue, delivery and return of the process. 13 The identity of
the process is sufficiently proved by the officer's indorsement on
it (made under the statute 18 ) and his return, and proof of his acts
intermediate these times, without extrinsic evidence of manual
possession by the officer at the time of acting under it. 14
A return amended by leave of court, though after action
commenced, may be read in evidence with the same effect as if an
original return. 1 ^
JPlaintiff must give some evidence of falsity ; 16 but slight evi-
dence suffices to throw on defendant the burden of proving its
truth. 17 To prove falsity of a return of nulla fiona, the debtor's
possession of property is, prima facie evidence of ownership, until
the officer gives evidence of title, or at least of some adverse
1 Sloan v. Case, 10 Wend. 370.
* Pardee v. Robertson, 6 Hill, 550.
8 Stevens v. Rowe, 3 Den. 327. Compare Ledyard v. Jones, 7 N. Y. 550.
* Pardee v. Robertson (above).
B Ledyard v. Jones, 7 N. Y. 550.
Dunphy v. Whipple, 25 Mich. 10 ; Swezey v. Lott, 21 N. Y. 481. For the mode
of proof, see next chapter.
1 Wehle v. Connor, 69 N. Y. 546, 549, rev'g 41 Super. Ct. (J. <fe S.) 201. As, for
instance, that such interest was levied upon by an attachment, and liable to be ap-
plied otherwise than in payment to the plaintiff, or that plaintiff has less interest
than the face of it, and has no right to demand payment to the full amount, or that
the judgment was fraudulent and void, that it had been paid, assigned, and does not
belong to plaintiff, or that plaintiff has directed the execution not to bo returned, or
that it was stayed by order of court. Id.
8 Pardee v. Robertson, 6 Hill, 550; Ledyard v. Jones (above); Humphrey v. Ha-
thorn, 24 Barb. 278.
Brookfield v. Remsen, 1 Abb. Ct. App. Dec. 210.
10 McDonald v. Bunn, 3 Den. 45. Contra, Blivin v. Bleakley, 23 How. Pr. 126
As to the mode of proof, see Chapter XXIX.
11 Parker v. Fenn, 2 Esp. 477, n. ; 2 Greenl. Ev. 531, 592.
Is See paragraphs 6 and 12.
18 Paragraph 6.
14 Williams v. Lowndes, 1 Hall, 578, 697.
" People v. Ames, 88 N. Y. 484 ; Bradford v. Read, 2 Sandf. Ch. 163.
14 Watson v. Brennan, 66 N. Y. 621, rev'g 39 Super. Ct. (J. A S.) 81.
2 GreenL Ev. 63], 592 ; Holbrook v. Brennan, 6 Daly, 60.
612 ACTIONS BY AND AGAINST SHERIFFS, Ac.
claim. 1 To prove falsity of a return of not found, the fact that
the debtor did not abscond, but continued in the daily exercise
of his usual occupation, appeared publicly as usual, and was visible
to all who came to him on business, is sufficient evidence that he
could have been arrested. 8 To prove a levy, enough must be
shown to make the officer a trespasser but for the process. 8
The judgment rendered ineffectual is prima facie evidence of
the measure of damages / 4 but it may be met by evidence of the
total inability of the debtor ; 5 not, however, by showing that the
amount so directed to be levied was not due upon the judgment. 6
A levy made under the process does not conclude the officer
from showing that the debtor had no title, and that he abandoned
the levy in good faith on that account, 7 even after plaintiff had
indemnified him. 8 An inquisition taken by the sheriff's jury is
conclusive on the right of property, 9 unless it be shown that the
sheriff did not act in good faith, 10 or that there was a sufficient
tender of indemnity. 11
The fact that the process was voidable had the debtor chosen
to object is not relevant. 12 The sheriff's knowledge that the re-
turn was false, does not alone aggravate the damages. 13
16. Admissions, declarations, and conduct of deputies, <&c.~\
Against the sheriff, the admissions and declarations of one who
has given him an indemnity, being the real party in interest, are
admissible. 14 So are those of his under-sheriff 15 or deputy, 16 if the
action is for the default of the declarant, or if they were made
as part of the res gestce of an act properly in evidence, or were
made within the scope of the agency. 17 Proof of a person's being
deputy-sheriff, and of his advertising property for sale under an
execution, as such, is sufficient to authorize evidence of his dec-
larations, without proving the issuing and delivery of an execu-
tion to him. 18 Whether the sheriff recognized the act of his dep-
uty or not need not be shown. 19
1 Magne v. Seymour, 5 Wend. 312.
3 Beckford v. Montague, 2 Esp. 475.
8 Camp v. Chamberlain, 5 Den. 198; and see Bond v. Willett, 1 Abb. Ct.
Dec. 165 ; Elias v. Farley. 2 Id.
4 Weld v. Bartlett, 10 Mass. 472; Bacon v. Cropsey, 7 N. Y. 195.
6 Weld v. Bartlett (above).
6 Bacon v. Cropsey (above).
1 Lummis v. Kasson, 43 Barb. 373.
8 Id. ; but compare Curtis v. Patterson, 8 Cow. 65, 67.
9 Bayley v. Bates, 8 Johns. 139.
10 Id.
11 Van Cleef v. Fleet, 15 Johns. 147.
" Bacon v. Cropsey, 7 N. Y. 195 ; Blivin v. Bleakley, 23 How. Pr. 124.
18 Potter v. Lansing, 1 Johns. 216.
14 Bayley v. Bryant, 24 Pick. 198 ; Rose. N. P. 71.
18 Rose. N. P. 74.
16 Tyler v. Ulman, 12 Mass. 163; 1 Greenl. Ev. 210, 180.
17 Stewart v. Wells, 6 Barb. 79.
18 Stewart v. Wells (above).
" Mclntyre v. Trumbull, 7 Johns. 35.
ACTIONS BY AND AGAINST SHERIFFS, <feo. 613
To prove instructions from the party such as to exonerate
the sheriff from liability for acts of his deputy, it must be shown,
not only that the party directed the deputy to depart from the
line of auty imposed by law, but that the deputy followed, or, at
least, undertook to follow directions given. 1
1 Sheldon v. Payne, 7 N. Y. 453; Walden v. Daviaon, 15 Wend. 578.
CHAPTER XXXIV.
ACTIONS FOR DECEIT OR FRAUD.
1. Frame of tne action. 9. Plaintiffs reliance.
2. The representation. 10. Damages.
8. Liberal rule of evidence : Cogency. 11. Oral evidence to vary writing.
4. Falsity. 12. Testimony of the parties.
6. as to solvency, <fcc. 13. Declarations of conspirators.
6. reason to believe one insolvent, <fec. 14. Defenses.
7. Scienter. 15. former adjudication.
8. Intent to deceive.
1. Frame of the action."] Plaintiff cannot recover on proof
of a mere breach of contract, 1 even coupled with mistake 2 or
conversion. 3 If the complaint contains all the allegations neces-
sary to authorize recovery on a breach of contract, and, also, all
those necessary to sustain a recovery for fraud and deceit, plaint-
iff cannot recover without proving the fraud. 4 The averment of
a contract may be deemed matter of inducement merely. 6 If
the deceit is proved, an allegation of conspiracy unproved does
not necessarily defeat the action. 6
2. The representation?'} The fraudulent representation re-
lied on must be stated in the complaint. 8 Proof of it in substance
and legal effect, is enough. 9 If a sufficient fraudulent repre-
sentation is duly alleged and proved, a representation not specifi-
1 Barnes T. Quigley, 59 N. Y. 265 ; Peck v. Root, 5 Hun, 547.
8 Dudley v. Scranton, 57 N. Y. 424.
3 Sa*ltus v. Genin, 3 Bosw. 250.
4 Ross v. Mather, 51 N. Y. 108, extended by amendment of 549 of N. Y. Code
of Civ. Pro., in 1879, to all cases of an allegation of fraud in contracting the liability,
except, perhaps, promises of marriage. Before that amendment, allegations of fraud,
if incidental, in a complaint, the main scope of which was a breach of contract,
might be disregarded. Graves v. Waite, 59 N. Y. 166. As to amending, see Crosby
v. Watts, 41 Super. Ct. (J. <fe S.) 208 ; Saltus v. Genin, 8 Abb. Pr. 253; Hochstetter
v. Isaacs, 14 Abb. Pr. N. S. 235.
Fraud not alleged may be proved in avoidance of the effect of an agreement
proved by the adverse party. Claflin v. Taussig, 7 Hun, 223.
6 Elwood v. Gardner, 10 Abb. Pr. N. S. 233, s. c. 45 N. Y. 349, affi'g 9 Abb. Pr.
N. S. 99. As to the frame of the action compare pp. 285 and 339 of this vol.
6 Hay ward v. Draper, 3 Allen, 551.
1 For the distinction between actionable false representations, and promissory
representations or opinions, Ac., see Sawyer v. Prickett, 19 Wall. 146; Simar v.
Canaday, 53 N. Y. 298. Compare Ellis v. Andrews, 56 N. Y. 83 ; Foster v. Swasey,
2 Woodb. <fe M. 217.
8 Ellis v. Andrews (above). But deceit may be proved by actions without evi-
dence of express words. Chandelor v. Lopus, 1 Smith's L. Cas. 299, 320, and cases
cited.
Craig v. Ward, 1 Abb. Ct. App. Dec. 454, s. c. 3 Abb. Pr. N. S. 235 ; 3 Keyes,
387, affi'g 36 Barb. 377.
[614]
ACTIONS FOR DECEIT OR FRAUD. 615
cally alleged may also be proved. 1 A variance by proving only
one of several representations alleged, 2 if the one alleged and
proved be sufficient to maintain the action, is not material.
Fraud by defendants' agent, 3 or by one of a firm, defendants, 4
when it will sustain the action, is admissible under an allegation
of fraud by defendants. 5 Against a co-defendant, evidence of his
original knowledge of the scheme, and of acceptance of its bene-
fits, is sufficient to go to the jury, without evidence of direct
representations by him. 8
If representations directly to the plaintiff or his agent are
not shown, there must be evidence that defendant had in mind
the plaintiff, or a class of which he was one. 7
3. Liberal rule of evidence : Cogency.'] Evidence tending to
show the true nature of the transaction is freely received, unless
forbidden by settled rules. 8 Even slight evidence having a
tendency to establish fraud, is competent. 9 Thus, for the purpose
of throwing light on the transaction, evidence of acts, tending to
effect the fraua sued for, done by some of several partners, even
though before the formation of their partnership, may be compe-
tent. 10 Evidence tending to show the impossibility that the
representations should have been true is relevant, as well as evi-
dence directly to their falsehood. 11
Testimony of a single competent witness is sufficient to
sustain a verdict. 12
1 Oliver v. Bennett, 65 N. Y. 559.
2 Yates v. Alden, 41 Barb. 172 ; Updike v. Abel, 60 Barb. 15.
3 Elwell v. Chamberlain, 81 N. Y. 61 1 ; Durst v. Burton, 2 Lans. 137, affi'd in 47
K Y. 167; 8 Am L. Rev. 631; 3 Id, 442, and cases cited. Compare Lansing v.
Coleman, 58 Barb. 611.
s. p. in case of husband acting for wife. "Warner v. Warren, 46 N. Y. 228 ;
Graves v. Spier. 58 Barb. 349. Compare Birdseye v. Flint, 3 Barb. 600 ; Weckler v.
First National Bank of Hagerstown, 42 Md. 581, 3. c. 20 Am. R. 95.
4 Pages 214 and 217 of this vol., and Chainberlin v. Prior, 1 Abb. Ct App. Dec.
333.
5 King v. Fitch, 2 Abb. Ct. App. Dec. 508 ; Mackay Y. Commercial Bank of New
Brunswick, L. R. 5 P. C. 394, 8. c. 9 Moak's Eng. 202.
As to corporate officers, see p. 38, of this vol. 1 Redf. Ry. 592 (14); Arthur
v. Griswold, 55 N. Y. 400; Morgan V. Skiddy, 62 N. Y. 319, affi'g in part and rev's
in part, 36 Super. Ct. (J. & S.) 152; Peck v. Gurney, L. R. 6 Ho. of L. 377, s. o. 8
Moak's Eng. 1.
8 Miller v. Barber, 66 N. Y. 658, affi'g 4 Hun, 802.
1 Swift v. Winterbothara, L. R. 8 Q. B. 244, s. c. 5 Moak's Eng. 202 ; 2 Abb. N.
Y. Dig. new ed. 834, Ac. Compare Paris v. Peck, 10 Abb. Pr. N. S. 55, s. o. 2
Sweeny, 689; Simpson v. Wiggin, 3 Woodb. fe M. 413; Crocker v. Lewis, 3 Snmn.
1 ; Peck v. Gurney, L. R. 6 House of L. 377, 8. o. 8 Moak's Eng. R. 1. See lasigi v.
Brown, 17 How. U. S. 183.
8 See Bigelow on Fr. 476.
8 See Hubbard v. Briggs, 81 N. Y. 618.
10 Chester V. Dickerson, 64 N. Y. 1, s. c. 45 How. Pr. 326, affi'g 52 Barb. 349;
and see Gethy v. Devlin, 24 N. Y. 403.
11 See, for instance, Thorn v. Helmer, 4 Abb. Ct App. Dec. 408.
11 Morgan v. Skidmore, 3 Abb. New Cases, 95. Whether more than a preponder-
ance of evidence can be required, see page 495 of this voL
616 ACTIONS FOR DECEIT OR FRAUD.
4. falsity.'] The burden is on plaintiff to give evidence of
falsity. 1 If the falsity consists in the existence and contents of
documents, such as the fact of incumbrances on real property,
the admissions of defendant are not competent without excuse
for not producing the best evidence. 2 Representations as to thd
amount of property, sales, &c., are proved to be false by show-
ing substantial exaggerations. 8
5. as to solvency, dkc.~\ On the question of solvency or
pecuniary ability, 4 facts which are the usual concomitants or con-
sequences of pecuniary ability, or the contrary, are competent :
thus, a judgment and execution, and its return unsatisfied ; 5 dis-
honor of a check drawn by a merchant upon his banker; 6 the
small amount a merchant had on deposit in bank at the time of
his purchases ; 7 the fact of having absconded and having been
proceeded against as an absconding debtor, without sufficient
assets to pay in full, 8 and the like, are competent ; and such evi-
dence is received more or less freely, according as direct evidence
is wanting or accessible. The taking of the poor debtor's oath, or
a discharge from imprisonment for insolvency, if not in a court
of record, may be proved by parol; 9 and irregularity in the
certificate is immaterial. 10
Ability or inability to pay debts, is a fact which a witness
conversant with the particulars may directly testify to. 11 Such a
witness may be asked " what were the circumstances " of the
person, or " what was his situation as to property ;" 12 " whether
he was responsible for "a given sum, and the like. 13 Solvency
within a reasonable period before the date in question will, in
the absence of evidence of change, support an inference that
the solvency continued. 14 To testify that the person " was con-
sidered good" is hearsay, or evidence of repute only, and not
1 Bigelow on Fr. 493 ; and see Gray v. Lessington, 2 Bosw. 257.
2 Sherman v. People, 13 Hun, 577.
8 Westcott v. Ainsworth, 9 Hun, 63.
* See paragraph 6.
5 Stahl v. Stahl, 2 Lans. 60.
' Brown v. Montgomery, 20 N. Y. 287.
7 Jordan v. Osgood, 109 Mass. 457, 8. c. 12 Am. R. 731. As to the mode of prov-
ing the balance in bank, see Lewis v. Palmer, 28 N. Y. 271 ; Clark v. Dearborn,
6 Duer, 309 ; Sullivan v. Warren, 43 How. Pr. 188; Boston & W. R. R. Co. v. Dana,
1 Gray, 83; Jordan v. Osgoocl, 109 Mass. 457, 8. c. 12 Am. R. 731.
8 Ten Eyck v. Tibbits, 1 Cai. 427. Compare Babcock Y. Middlesex, <fec. Bank, 28
Conn. 302 ; Simpson v. Carleton, 1 Allen, 109.
9 Richardson v. Hitchcock, 28 Vt. 757.
10 Id.
11 Thompson v. Hall, 45 Barb. 214.
19 Caswell v. Howard, 16 Pick. 567.
13 Hard v. Brown, 18 Vt. 87.
14 Walrod v. Ball, 9 Bnrb. 271, 275. Compare French v. Willett, 10 Bosw. 566. So,
on the question of the falsity of representations as to professional income in a given
year, evidence of actual income in the next year, is relevant. Thorn v. Helmer, 4
Abb. Ct. App. Cas. 408. Compare, as to fluctuating profits, Masterton v. Village of
Mt. Vernon, 68 IS". Y. 391.
ACTIONS FOR DECEIT OR FRAUD. 617
competent on the question of actual condition ; 1 but to testify-
that the witness considered him good at the time, is admissible,
in connection with his testimony to the facts. 2
A witness who states the facts on which his opinion is based,
and his means of knowledge s may state his opinion. 4 Without
the facts his opinion is incompetent. 5 To qualify the witness for
this purpose, he must show some knowledge as to the existence
and ownership of property. 6 Mere inference from style of
living, &c., is not competent. 7 It is no objection that the opin-
ion was based partly on what was said by others, acquainted
with the person, at the place 8 and at and before the time. In con-
nection with direct opinions, evidence that the party was indus-
trious and of good habits, is competent. 9
When it is essential to prove actual insolvency it cannot be
proved by general reputation.?
6. reason to btlieve one insolvent, c&c.] Upon the question
whether a party had reasonable cause to believe another insol-
vent, it is competent to show that he was generally reputed at
the place, to be so, 11 or the contrary ; u and to show his business
credit and pecuniary standing among those neighbors, creditors,
etc., having dealings with him ; 13 also his habits affecting credit
and the probability of insolvency, such as attention or inattention
to business, frugality or extravagance in expenditure, habitual
waste of time; 14 and defendant's knowledge of these facts. 15
A qualified witness may state his opinion whether the credit
of the party was good ; 18 whether he was in good reputation for
property ; 17 and the like. The fact that the knowledge of the wit-
ness does not extend to the condition of the party at places other
1 Sheldon v. Root, 16 Pick. 567.
* Commonwealth v. Thompson, 3 Dana (Ky.) 301. Compare note on testimony
to belief, <fec., in 3 Abb. New Cas. 234.
3 Sherman v. Blodgett, 28 Vt. 149.
4 Hard v. Brown, 18 Vt. 87; Crawford v. Andrews, 6 Geo. 244, 251. Compare
Griffin v. Brown, 2 Pick. 304, 309.
6 Andrews v. Jones, 10 Ala. 460, 470.
6 Babcock v. Middlesex Savings Bank, 28 Conn. 302, 306. The head note ia too
broad.
'Id.
8 Hard v. Brown, 18 Vt. 87, 97.
Hard v. Brown, 18 Vt. 87 ; and see paragraph 6.
10 Fairchild v. Case, 24 Wend. 881 ; Molyneaux v. Collier, 13 Geo. 406, 417. So,
of the admissions of plaintiff's attorney. Potter v. Lansing, 1 Johns. 216.
11 Lee v. Kilburn, 3 Gray, 594, 698; Ward v. Herndon, 6 Port. 382; Amsden v.
Manchester, 40 Barb. 158.
13 Bartlett v. Decreet, 4 Id. 113 ; Sheen v. Bumpstead, 2 H, <b C. 193, a. o. 10 Jur.
N. S. 242.
11 Heywood v. Reed, 4 Gray, 674.
14 Simpson v. Carleton, 1 Allen, 109, 117.
1J Id; Sheen v. Bumpstead (above).
18 Hard v. Brown, 18 Vt. 87 ; Iselin v. Peck, 2 Robt. 63L
11 Bartlett v. Decreet, 4 Gray, 113.
618 ACTIONS FOR DECEIT OR FRAUD.
than his chief residence or domicil, does not necessarily render it
incompetent. 1
7. Scienter.~\ If the false representations do not imply personal
knowledge, plaintiff nrust show that the speaker knew them to be
false when he made them, 2 or had good reason to believe that they
were when made, 8 or that he intended them to be understood as
communicating his own actual knowledge, though conscious that
he had not sucn knowledge. 4
The allegation and the proof should correspond on these
points. 5
To show scienter, plaintiff may prove other declarations by
defendant, on matters relevant to the issue, presumably or actu-
ally within his knowledge, and then show their falsity. 6
8. Intent to deceive. ~\ Intent to deceive must be alleged and
proved. 7 Proof of a false representation knowingly made, raises
a presumption of a fraudulent intent. 8 Representations made in
defendant's hearing, and without objection from -him, maybe
proved in connection with evidence of false representations pre-
viously made by him ; as tending to show intent. 9 For the same
purpose, evidence of other similar frauds committed by defend-
ant on other persons, at about the same time, is competent. 11
Where the alleged deceit was by fraudulent suppression of facts,
it is competent to prove that, in the other instances, it was com-
mitted by actual misrepresentation concerning the same facts, if
they were both false and fraudulent. 11 But such other misrepre-
sentations will not alone sustain a recovery, unless the maker in-
tended they should be, and they were, communicated to, and acted
on, by plaintiff. 12 Plaintiff need not prove defendant's motive, 18
1 Stebbins v. Miller, 12 Allen, 591, 694, 597.
* Oberlander v. Spiess, 45 N. Y. 175; Hubbell v. Meigs, 50 N. Y. 480.
3 Or knew facts sufficient to have put him upon inquiry. Craig v. Ward, 1 Abb.
Ct. App. Dec. 454. Otherwise of merely having the means of knowledge. Lefever
v. Lefever, 30 N. Y. 27.
4 Marsh v. Falker, 40 N. Y. 562 ; per Brady, J., in Indianapolis, <fec. R. R. Co. v.
Tyng, 2 Hun, 31 1, 319 ; limiting Bennett v. Judson, 21 N. Y. 238; Cabot v. Christie,
42 Vt. 121, 8. c. 1 Am. R. 313.
8 Marshall v. Fowler, 7 Hun, 237.
6 Coleman v. People, 68 N. Y. 555; affi'g, 1 Hun, 596, s. c. 4 Supm. Ct. (T. <fc C.)
61.
1 Lefler v. Field, 62 N. Y. 621; compare Dudley v. Scranton, 67 Id. 424; Mar-
shall v. Fowler, 7 Hun, 237; contra, Polhil v. Walter, 8 Barn. & Ad. 114; compare
Watson v. Poulson, 15 Jur. 1111.
8 People v. Herrick, 13 Wend. 87; 3 Am. L. Rev. 430, and cases cited.
Hubbard v. Briggs, 31 X. Y. 618, 637.
10 Butler v. Watkins, 13 Wall. 464; Cary v. Houghtaling, 1 Hill, 311 ; Amsden v.
Manchester, 40 Barb. 168; Van Vleeck v. Le Roy (below). Contra, unless such
frauds were parts of one fraudulent scheme, Jordan v. Osgood, 109 Mass. 457, s. c.
12 Am. R. 731 ; Edwards v. Warner. 36 Conn. 517.
11 Hall v. Naylor, 18 N. Y. 58S, reVg 6 Duer, 71.
19 Van Kleek v. Le Roy, 4 Abb. Ct. App. Dec. 431, s. c. 4 Abb. Pr. N. S. 431,
affi'g 37 Barb. 644.
13 Gould v, St. John, 16 Wend. 650, and cases cited.
ACTIONS FOR DECEIT OR FRAUD. 619
nor that a defendant actually guilty, was benefited, or was in col-
lusion with one who was benefited. 1
9. Plaintiff^s reliance on the representations^ Plaintiffs re-
liance must be shown. 2 His conduct in consequence of the deceit
may be proved for this purpose, 8 even though it be not specially
pleaded so as to be considered on the question of damages. 4 His
testimony that' his subsequent acts were in consequence of, or on
the faith of the representation, is competent. 5 And it is not suf-
ficiently met by proving that he also sought, and in part relied on,
information from other sources. 6 To show that the credit given
by plaintiff, was given to the person alleged, the plaintiff's oral de-
clarations 7 and entries in his books, 8 made at the time, are compe-
tent. But the letters and declarations of third persons, 9 even his
agents, 10 are not competent unless as part of the res gcstoB of an act
properly in evidence. 11 If the parties dealt on equal terms, each
may be presumed to have relied upon his own judgment in mat-
ters of value and opinion. 12
10. Damages.] The price plaintiff paid defendant, under the
inducement of false representations 01 value, is competent evi-
dence for the jury, of what the value would have been had the
representations been true. 13 Other rules for proving value and
damage have been already stated. 14
11. Oral evidence to vary ior/ting.~\ Oral evidence of mis-
representations, though not usually admissible to show the mean-
ing of an instrument embodying a contract, 13 is admissible to show
the intent of the parties, 16 and the deceit by which assent was ob-
tained, 17 and to show what would have been covered by the terms
1 Ilubbafd v. Briggs, 31 N. Y. 518.
2 Taylor v. Guest, 68 N". Y. 262. And must be alleged. Goings v. White, 33
Ind. 125 ; Saxton v. Dodge, 67 Barb. 84, 116.
3 Thorn v. Helmer, 4 Abb. Ct. App. Dec. 408.
4 Id ; Dung v. Parker, 3 Daly, 89.
* People v. Sully, 5 Park Cr. 142; Bruce v. Burr, 67 N. Y. 237, nffig 5 Daly,
510; Plardt v. Schulting, 13 Hun, 537; and see pp. 240, 245, 265, of this vol.
e Bruce v. Burr (above).
7 Fellowes v. Williamson, M. <fe M. 306 ; Powell Ev. 146 ; Rose. N. P. 64.
8 Place v. Minster, 65 N. Y. 89, 107. To the contrary, Moore v. Meecham, 10 Id.
207. Compare p. 245 of this vol. note 4.
' Longenecker v. Hyde. 6 Binn. 1.
10 Small v. Gilman ; 48 Me. 606.
11 See pp. 245 and 265, of this vol.
11 Blease v. Garlington, 92 U. S. (2 Otto), 1.
13 Miller v. Barber, 66 N. Y. 658, 568, affi'g 4 Hun, 802.
14 Pages 308, 347, 489 and 598, of this vol. Cl.irk v Baird, 9 N. Y. 183; McDon-
ald v. Christie, 42 Barb. 36 ; Page v. Parker, 40 N. II. 47, 59; Lane v. Wilcox, 65
Barb. 615 ; Rice v. Manley, 66 N. Y. 82, revV 2 Hun, 492, s. c. 6 Supm. Ct. (T. <b
C.) 14.
14 For the limitations of this rule, see p. 294 of this voL Webster v. Hodgkins, 5
Fost. (N. II.) 128, 143.
16 Thomas v. Becbe, 25 N. Y. 244.
17 See Salem India Rubber Co. v. Adams, 23 Pick. (Mass.) 256 ; Benj. on Sales,
621, n. ; Bigelow on Fr. 488 ; Culver v. Avery, 7 Wend. 380, and see cases cited.
620 ACTIONS FOR DECEIT OR FRAUD.
of the instrument if the representations had been true ; * and the
relation of the parties, under which the instrument was made,
may be shown, not to vary its terms, but to show the defendant's
liability in respect of the transaction. 2 The fact that certain false
representations were reduced to writing and delivered, does not
exclude evidence of other oral misrepresentations. 3 Ambiguous
words used for the purpose of deceit, are taken in the sense in
which the defendant intended they should be understood. 4
12. Testimony of the parties.'] If the facts are not conclu-
sive as to fraud, the parties may be examined as to their know-
ledge, 5 ignorance, 6 belief, 7 opinion, 8 and reliance, 9 at the time of the
transaction; and for the purpose of showing reliance, plaintiff
can testify that he would not have acted as he did had the facts
been known to him, 10 but defendant cannot testify that he did
not intend to deceive, 11 nor that he intended only to give an opin-
ion. 12
Defendant is privileged to refuse to answer a question and
equally from producing documents, 13 if the court can see that
his answer, or the documents, may in some way criminate him,
directly or indirectly, in a criminal fraud, either by furnishing
direct evidence of his guilt, or by establishing one of many facts,
which together may constitute a chain of evidence sufficient to
warrant his conviction, although the one answer or document
could not itself produce such result: The witness claiming the
privilege is not obliged to explain how he will be criminated, nor
need the court see that he must be in some way ; it is enough
that the situation is such that he might be. 14 But if the party, in
testifying on his own behalf, has voluntarily opened the subject, he
may be cross-examined so far as necessary to sift his testimony,
notwithstanding the claim of privilege. 15
Where the privilege exists, it is personal to the witness. His
counsel cannot be heard to object to the evidence as such, nor
1 Sharp v. Mayor, <fcc. of N. Y. 40 Barb. 256. 270, 8. c. less fully, 25 How. Pr. 389.
2 Richards v. Millard, 66 N. Y. 574, s. c. below, 1 Supm. Ct. (t. <fe C.) 247.
3 Match v. Hunt, 6 Cent. L. J. 155.
4 Johnson v. Hathorn, 2 Abb. Ct. App. Dec. 465.
6 See Reynolds v. Commerce Fire Ins. Co. 47 N. Y. 697.
6 Id.
1 Smith T. Countryman, 30 N. Y. 655; Watson v. Cheshire, 18 Iowa, 202, 210.
8 Blanchard v. Mann, 1 Allen (Mas?.), 433.
Smith v. Countryman, (above) ; White v. Dodds, 42 Barb. 554, s. o. 18 Abb.Pr.
250, and 28 How. Pr. 197.
Such evidence is necessarily open to suspicion, since it undertakes to prove good
faith by an appeal to the very good faith which is to be proved. 1 Whart. Ev. 45,
35.
10 King v. Fitch, 2 Abb. Ct. App. Dec. 515. Contra, Learned v. Ryder, 61 Barb.
552, s. c. 5 Lans. 539.
11 Bnllard v. Lockwood, 1 Daly, 168. Contra, Pope v. Har^, 35 Barb. 630.
Waugh v. Fielding, 48 N. Y. 681.
13 See Byass v. Sullivan, 21 How. Pr. 60.
14 People v. Mather, 4 Wend. 229. But the question is for the court not the wit-
ness. Fellows v. Wilson, 31 Barb. 162. If inspection of a document is necessary
the court may require to see it. Mitchell's Case, 12 Abb. Pr. 249.
18 People v. Carroll, 3 Park. Cr. 73.
ACTIONS FOR DECEIT OR FRAUD. 621
should the judge refuse to allow the objectionable question to be
put, but only advise the witness of his privilege. The witness
has a right to advise with his counsel in the hearing of the court,
but not privately, but must give his own answer without aid in
writing or otherwise. An exception lies to a refusal to require
an answer, but not to a requirement of an answer. 1 As to a non-
criminal fraud he has no privilege. 2 A knowledge of falsity being
proved is not overcome by oath to belief, or to intent to pay. 8
13. Declarations of conspirators. ~\ Slight evidence of con-
cert or collusion between the parties to an illegal transaction,
admits evidence of the acts and declarations of one against the
others, under the rule already stated. 4 It is in the discretion
of the court to allow evidence of the declarations of one, to be ad-
mitted against the other, in anticipation of evidence to connect. 5
14. Defenses^ On the question of good faith, defendant may
show that he previously made inquiries, and from the result be-
lieved the statement which he thereupon made. 6 If charged with
deceit by suppressing information received from a document, he
may prove its contents to repel the charge. 7
Plaintiff 's knowledge is admissible under a general denial. 8 It
must be clearly shown, to amount to a bar. 9 Defendant may
prove plaintiffs representations, on the same subject, to third
persons, or his use with third persons, of representations made by
others. 10
Evidence of the good character for honesty and fair-dealing
of the defendant, 11 or of the agent who acted for him, 12 is not com-
petent.
15. former adjudication^ The acquittal of the defendant
on a criminal prosecution, is not competent in his favor. 18 A judg-
ment for defendant in a civil action on contract, is not necessarily
a bar. 14 Judgments and judicial proceedings to which the party
was an entire stranger, are not competent against him, to show
the truth of facts alleged or established by them. 15
1 6 Abb. K Y. Dig. 2d ed. 239. Remedy to strike out pleading for refusal to an-
swer. Richards v. Judd, 15 Abb. Pr. N. S. 184.
8 Bigelow on Fr. 498.
3 Westcott v. Ainsworth, 9 Hun, 63.
4 Page 190 of this vol; 2 Whart. Ev. 1205 ; Bigelow on Fr. 434.
6 Miller v. Barber, 66 N. Y. 558, 567, affi'g 4 Hun, 802.
Oberlander v. Spies, 45 N. Y. 175. Compare Ballard v. Lockwood, 1 Daly, 158.
T Bronson v. Wiman, 8 N. Y. 187, 189.
8 Howell v. Biddleton, 62 Barb. 131.
9 Chandelor v. Lopus, 1 Smith's L. Cas. 299, 320, and cases cited.
10 Atkins v. Elwell, 45 N. Y. 753.
11 Gough v. St. John, 16 Wend. 646; Anderson v. Long, 10 Serg. <fe R. 65.
19 Bassett v. Lederer, 1 Hun, 274, s. c. 3 Supm. Ct. (T. A C.) 671. Contra, said,
where the evidence is circumstantial. See Bigelow on Fr. 478.
13 Peek v. Gurney. L. R. 13 Eq. Cases, 70, 112, s. c. 1 Moak*a Eng. 667, 600.
14 N. Y. Code of Civ. Pro. 649 ; 1 Abb. N. Y. Dig. new ed. 630; 3 Id. 465. 473.
Nor competent. Norton v. Huxley, 13 Gray, 285.
< 15 Degraff v. Hovey, 16 Abb. Pr. 120; Lefever v. Lefever, 30 N. Y. 27. Other.
wise of a purchaser pendents life. Craig v. Ward, 1 Abb. Ct. App. Dec, 454.
CHAPTEE XXXV.
ACTIONS FOR CONVERSION.
1. Frame of the complaint. 10. The conversion.
2. The existence and identity of the thing. 11. Demand.
8. Plaintiff 's title. 12. Value.
4. Possession as evidence of title. 13. Declarations of former owner.
5. Mode of proving possession. 14. Title in defense.
6. Mode of proving source of title. 15. Title derived through wrong-doer.
7. Title by mortgage. 16. Illegality.
8. Equitable title : lien. 17. Mitigation of damages.
9. Plaintiff owner, notwithstanding roid
sale.
1. Frame of the Complaint.'] If the complaint alleges a
wrongful conversion as the distinctive ground of the action, it
is not sustained by proof of a mere breach of contract or duty. 1
Otherwise, if a cause of action on contract is sufficiently alleged,
and the allegations of conversion are incidental. 2
Under an allegation of conversion of plaintiff's property, evi-
dence of conversion of the property of another, and a subsequent
assignment of the property, or of the cause of action for conver-
sion, is a variance. 3 The assignment should be alleged ; 4 but its
consideration need not be set forth. 5
2. The existence and identity of the thingJ] Defendant's
representations may be used to estop him from denying that the
alleged property ever existed. 6 Conversion of checks or money
may be proved under allegations of conversion of property. 7
Proving the specific description of the bills or coins converted
is not necessary if the amount is not .doubtful. 8
If the thing converted is a written instrument, the nature of
the action is sufficient notice to produce, to let in secondary evi-
1 Tolano v. National Steam Nav. Co. 5 Robt. 318, 326, s. c. 4 Abb. Pr. N. S. 316 ;
85 How. Pr. 496. Compare Gordon v. Hostetter, 37 N. Y. 99, s. c. 4 Abb. Pr. N. S. 263.
8 Conaughty v. Nichols, 42 N. Y. 83; but see 50 Id. 1; 51 Id. 108. Compare
Austin v. Kawdon, 44 Id. 63.
8 Bowman v. Eaton, 24 Barb. 628; Duell v. Cudlipp, 1 Hilt. 166; Hodges T.
Lathrop, 1 Sandf. 46 ; Whittaker v. Merrill, 30 Barb. 389 ; Sherman v. Elder, 24 N.
Y. 381. Compare Read v. Lambert, 10 Abb. Pr. N. S. 428 ; Corsan v. Oliver, 2 Abb.
New Cas. 352 ; Hicks Y. Cleveland, 48 N. Y. 84.
4 See Chap. I.
8 Vo^el v. Badcock, 1 Abb. Pr. 176.
8 Griswold v. Haven, 25 N. Y. 595 ; Harding v. Carter, Park on Ins. 4 (Lord
MANSFIELD. )
' Knapp v. Roche, 87 Super. Ct. (J. A S.) 395; 62 N. Y. 614.
Gorden v. Hosteller, 37 N. Y. 99, s. c. 4 Abb. Pr. N. S. 263.
[622]
ACTIONS FOR CONVERSION. 623
dence of its contents * and indorsements. 2 If the things convert-
ed were commingled with a larger quantity, without defendant's
fault, the burden is on plaintiff to show the part that he was en-
titled to.* The rules applicable to proving quantity, kind, dates,
etc., by witnesses and memoranda, or entries, have been already
stated.* A qualified witness 5 may testify directly to the identity
of the thing ; but belief or opinion of identity is not competent
without statement of the facts on which it is founded. 6
3. Plaintiff's titled] Under a general averment of title or
ownership, the source of plaintiff's title may be proved. 7 A wit-
ness may testify directly, in the first instance, who owned the
property, 8 if he can do so positively, and not as mere opinion. 9
Absolute title need not be shown. A bailee may sue. 10
4. Possession as evidence of titleJ] The mere facts of lawful
possession -in plaintiff, and wrongful taking by defendant, are
sufficient. 11 Lawful possession is sufficient evidence of title with-
out proving the transfer by which plaintiff acquired title ; u and
possession is presumed lawful unless the contrary appears.
5. Mode of proving possession.] A witness may testify
directly in the first instance to the fact of possession, 13 if he can
do so positively (subject, of course, to cross-examination as to de-
tails) ; but not to inference or opinion. 14
6. Mode of proving source of title.'] If the title was acquired
by bill of sale, or other written instrument, it must be produced,
or accounted for and secondary evidence of its contents given, in
order to prove the transfer. 15 But if title passed by oral sale and
delivery, a receipt or bill of parcels, though given at the time, 16 or
a bill of sale subsequently delivered, 17 need not be produced.
1 Bissel v. Drake, 19 Johns. 66 ; Hays v. Riddle, 1 Sandf. 248.
Howell v. Huyck, 2 Abb. Ct. App/Dec. 423.
1 Wilson v. Wilson, 37 Md. 1.
4 Pages 319-26 of this vol. ; and see Glover v. Hunnewell, 6 Pick. 222; Bartlett
V. Hoyt, 33 N. H. 151.
6 It requires knowledge of the thing. Rich v. Jones, 9 Gush. (Mass.) 329. But not
necessarily an expert. Morrissey v. People, 11 Mich. 327.
8 Goodwin v. Goodwin, 20 Geo. 600.
1 Heine v. Anderson, 2 Duer, 318.
8 De Wolfe v. Williams, 69 N. Y. 621 ; Walsh v. Kelly, 42 Barb. 98, s. c. 27 How.
Pr. 359 ; Nelson v. Iverson, 24 Ala. 9, 18.
Wells v. Ship, 1 Miss. (WalkJ 353 ; Maxwell v. Harrison, 8 Geo. 61, 66.
10 Van Bokkelin v. Ingersol, 5 Wend. 315, confirming 7 Cow. 670 ; Baker v. Hoag,
7 N. Y. 555 ; Faulkner v. Brown, 13 Wend. 63 ; and see Truslow v. Putnam, 4 Abb.
Ct. App. Dec. 425 ; Nesmith v. Dyeing, <fec. Co. 1 Curt. C. Ct. 130, s. c. 1 Am. Law
Reg. 82, and cas. cit.
" Hendricks v. Decker, 85 Barb. 298, and cas. cit. ; Bowen v. Fenner, 40 Id. 383;
Paddon v. Williams, 1 Robt. 840, 8. c. 2 Abb. Pr. N. S. 88.
12 Beach v. Raritan, Ac. R. R. Co. 37 N. Y. 457.
13 Rand v. Freeman, 1 Allen, 617.
14 Perry v. Graham, 18 Ala. 822, 825.
15 Dunn v. Hewitt, 2 Den. 637 ; King v. Racdlett, 38 CaL 818.
" Page 287 of this vol.
Sanders v. Stokes, 30 Ala. 432.
624 ACTIONS FOR CONVERSION.
An invoice is not alone evidence of a sale. 1 A bill of lading
is presumptive evidence of title in the consignee. 2
The registry is not the exclusive evidence of the title to a
vessel. 8
If plaintiffs right to claim possession is by virtue of his pur-
chase at an execution sale, the execution is sufficient evidence of
the judgment, as against the debtor in the execution ; but as
against a third person other than the officer, he must prove the
judgment. 4 If the levy was valid only as to part of the property,
plaintiff must identify the part. 5 A return stating that legal
notice was given is presumptive, but not conclusive evidence of
regularity in the notice. 8 Against one who shows himself a pur-
chaser in good faith, evidence that an execution against the sell-
er's property was in the sheriff's hands very shortly before the
purchase, will not raise a presumption of actual levy made before
the sale. 7
Other rules as to the mode of proving sales have been already
stated. 8
For the purpose of proving ownership of crops, timber, etc.,
the ownership of the soil may be shown by producing the deed to
plaintiff, and possession under it, without showing title in the
grantor. 9 As between the parties to the deed, parol evidence
that things not included in its terms were* intended to pass by it
is incompetent. 10 Declarations of either the owner or the occu-
pant of the land, made in connection with and characterizing the
possession and the dominion over the crops, are competent in
favor of the other on the question of his ownership of the
crops. 11
The main tests,on a question of fixtures are, permanent char-
acter; adaptation to freehold; and intent of parties. 12 On the
question of intent, declarations made by the person in possession
of the soil, who annexed the fixture, and at the time of so doing,
are competent. 13
1 Dows v. Nat. Exchange Bank of Milwaukee, 91 U. S. (I Otto), 618.
* Id.; Halliday v. Hamilton, 11 Wall 660; Rawls v. Deshler, 4 Abb. Ct. App.
Dec. 12.
3 United States v. Jones, 3 "Wash. C. Ct. 209 ; Sutton v. Buck, 2 Taunton, 302.
4 Yates v. St. John, 12 Wend. 74; Dane v. Mallory, 16 Barb. 46.
5 Brown v. Pratt, 4 Wis. 613.
6 Drake v. Mooney, 81 Vt 617.
7 Millspaugh v. Mitchell, 8 Barb. 333 ; but see "Williams v. Shelly, 37 N. T.
376 ; Bond v. Willett, 1 Abb. Ct. App. Dec. 165.
8 Chapter XVI.
9 Grant v. Smith, 26 Mich. 201.
10 Kipley v. Paige, 12 Vt. 853. Compare Flynt v. Conrad, 1 Phil. L. R. (N. C.)
190 ; Simpkins v. Rogers, 15 lit 397.
11 Woods v. Blodgett, 18 N. H. 249 ; "White v. Morton, 22 Vt. 15. Compare
Ekins v. Hamilton, 20 Vt. 627. The declarations of servants removing the products
away from the land, as to what lot they were brought from, are not part of the ret
gestce, nor within the scope of their agency. Woods v. Banks, 14 N. H. 101.
12 Abb. N. Y. Dig. new ed. tit. Fixt. ; Meig*s Appeal, 62 Pa. 28, s. c. 1 Am. R.
872; Seeger v. Pettit, 77 Penn. St. 437, s. o. 18 Am. R. 452 i and see 13 Am. L.
Kev. 45.
" Kelley v. Kelley, 20 Wis. 443.
ACTIONS FOR CONVERSION. 625
7. Title "by mortgage.'] If plaintiff is a mortgagee and relies
on the mortgage as evidence of his title, he must produce it, 1
with the note or other written obligation, if any, to which it is
collateral ; 2 or account for non-production, and prove the contents.
In either case he must prove execution. 8 A clerk's certified copy
of the mortgage is not competent evidence of execution or con-
tents. 4 Unless there is actual change of possession, filing must
be proved, as against judgment creditors, etc., but need not
against wrong-doers. 5 Oral evidence is not competent to vary the
terms of the mortgage. 6 Against a wrong-doer, plaintiff is not
bound to account for other property covered by the mortgage,
but the burden is on defendant to show plaintiff's interest re-
duced thereby. 7 A mortgagee who took possession under the
danger clause, may testify as a witness whether he deemed him-
self unsafe. 8 An agreement to allow the mortgagee to sell and
use proceeds may be proved by extrinsic evidence. 9
8. Equitable title : Lien.~\ Plaintiff may prove an equitable
title to meet a common law defense impeaching the legal title. 10
Under allegations showing a pledge or other lien, the evi-
dence may be confined to the debt alleged and admitted. 11 Evi-
dence that the thing was pledged to defendant or held by him
under a lien, throws on plaintiff the burden of proving an ex-
tinguishment of the lien, 12 or other right of present possession,
unless actual conversion, in violation of the lienor's duty, is
shown. 13 For this purpose, evidence of payment of the debt, and
a demand for a return of the thing pledged, is sufficient.
9. Plaintiff owner, notwithstanding void saleJ] Delivery
on a sale is presumed absolute, and the burden is on the seller
reclaiming the goods, to show the condition or the fraud on
which he relies." Where fraud is not imputed, the buyer's in-
tent not to pay is irrelevant on the question of breach of con-
dition. 15
1 Bissell v. Pearce, 28 N. Y. 252.
1 Flynn v. Hathaway, 65 111. 462.
1 See, for mode of proof, pp. 504-8 of this vol.
4 Bissell v. 1'earce (above) ; Sunderlin v. Wyman, 10 Hun, 493.
6 Porter v. Parmley, 14 Abb. Pr. N. S. 16, 8. c. 52 N.Y. 185, rev'g 34 Super. Ct
(J. A S.) 398, 8. c. 43 How. Pr. 445 ; Moses v. Walker, 2 Hilt. 536.
6 Baltes v. Ripp, 1 Abb. Ct. App. Dec. 78 ; Clark v. Houghton, 12 Gray, 38.
1 Bailey v. Godfrey, 64 111. 507, s. c. 5 Am. R. 157. Compare pp. 444, 445 of
this vol.
8 Hug^ans v. Fryer, 1 Lans. 276.
9 Southard v. Pinckney, 6 Abb. New Cas. 184, and cas. cit.
10 Woodwortli v. Sweet, 51 N. Y. 8, affi'g 44 Barb. 268.
11 Luckey v. Gannon, 6 Abb. Pr. N. S. 209, s. o. 37 How. Pr. 134, 1 Sweeny, 12.
" Bush v Lyon, 9 Cow. 52.
13 Mulliner v. Florence, 38 L. T. R. N. S. 167, and cas. cit; Luckey v. Gannon,
37 How. Pr 134, s. o. 6 Abb. Pr. N. S. 209, and caa. cit.
14 NELSON, J., Furniss v. Hone, 8 Wend. 256.
16 Jessop v. Milk-r, 2 Abb. Ct. App. Dec. 449.
40
626 ACTIONS FOR CONVERSION.
The buyer's undisclosed knowledge that he was insolvent is
competent on the question of fraud, 1 without evidence of direct
representation ; but is not conclusive nor necessarily sufficient. 8
If the buyer gave his notes, it is enough to tender them in re-
turn at the trial. 3 Other similar fraudulent transactions by the
same buyer, at about the same time, are competent on the ques-
tion of scienter and intent. 4
10. The conversion.'] Conversion may be proved under an
allegation that defendant took and carried away. 5 An allegation
of conversion is not sustained by mere proof of a contract and
breach. 6 It is not necessary to show a manual taking of the
thing, nor that defendant has applied it to his own use ; ' but it
must be shown that the defendant either did some positive
wrongful act with the intention to appropriate the property to
himself, or to deprive the rightful owner of it, or destroyed the
property. 8 Evidence that plaintiff was the true owner, and that
the thing was wrongfully taken from his possession by a third
person, and was afterwards in defendant's possession, throws on
defendant the burden of accounting for the possession. 9
A refusal to deliver may be with such circumstances of de-
fiance of plaintiffs title, or of appropriation, as in itself to be a
conversion. Where this is not the case, a demand and refusal, if
unqualified and. unexplained, is usually conclusive evidence of
conversion, 10 if ability to comply is shown ; otherwise, not. 11 If
1 Johnson v. Monell, 2 Abb. Ct. App. Dec. 470.
9 Byrd v. Hal), 1 Abb. Ct. App. Dec. 285 ; Biggs v. Barry, 2 Curt. C. Ct. 259.
For other rules, see Chapter XXXIV, on actions for DECEIT or FEAUD.
3 King v. Fitch, 2 Abb. Ct. App. Dec. 508.
4 Allison v. Matthieu, 3 Johns. 235: Van Kirk v. Wilds, 11 Barb. 520. Compare
Booth v. Powers, 56 N. Y. 22, rev'g Flint v. Craig, 59 Barb. 319. On the question
of a fraudulent combination between several to buy in the name of one for the bene-
fit of another, the declarations of either forming part of the res gestce, and evidence of
the means of the pretended buyer at the time when the confederate represented him
to the seller to be wealthy, are competent. Rea v. Missouri, 17 Wall. 544. Com-
pare Moore v. Meacham, ION. Y. 207.
5 Hutchings v. Castle, 48 Cal. 152. Compare Eldridge v. Adams, 54 Barb. 417;
Van Valkenburgh v. Thayer, 57 Barb. 196; Read v. Lambert. 10 Abb. Pr. N. S.
428.
6 Walter v. Bennett, 16 N. Y. 250; Whitcomb v. Hungerford, 42 Barb. 177.
Compare Frost v. McCargar, 29 Barb. 617, and paragraph 1.
7 Bristol v. Burt, 7 Johns. 254, and cases cited ; Murray v. Burling, 10 Id. 172;
Reynolds v. Shuler, 5 Cow. 323 ; Connah v. Hale, 23 Wend. 462.
8 Spoonerv. Holmes, 102 Mass. 503, s. c. 3 Am. R. 491, and cases cite 1 ; McMorris
v. Simpson, 21 Wend. 610, and cases cited. When the question of conversion de-
pends on the question of assent by plaintiff, the plaintiff cannot be asked on his own
behalf, " did you ever assent T The question is whether his acts manifested assent,
or justified the defendant in believing he assented. Stanton v. Crispell, 9 Hun,
502.
9 Paragraph 15. Edw. on Bailm. 109.
10 Holbrook v. Wight, 24 Wend. 169, 178. Compare Huntington v. Douglas, 1
Robt 204, and cases cited ; Hill v. Govell, 1 N. Y. 522 ; Mount v. Derick, ft Hill,
455 ; storm v. Livingston, 6 Johns. 44; Jackson v. Pixley, 9 Cush. 490; Roberts v.
Berdell, 15 Abb. Pr. N. S. 177.
11 Bowman v. Eaton, 24 Barb. 528, and cases cited.
ACTIONS FOR CONVERSION. 627
accompanied by a reasonable and truthful qualification, it is not
evidence of conversion. 1 Where mere words are relied on as evi-
dence of conversion, the circumstances must show a defiance of
plaintiff's right. Mere refusal to act when plaintiff might take
possession, without act of defendant, is not enough. 8
Proof of intent is not necessary. 8
11. Demand^ Demand before suit if necessary may be
proved, though not alleged. 4 An oral demand, if sufficient in
itself, may be proved without producing a demand in writing
made at the same time. 5
12. Value^\ Plaintiff must give some evidence of value,
though his allegation of value" be not denied. 6 The mode of prov-
ing the value of chattels has been already stated. 7 As to the value
of a thing in action such as a promissory note opinions of
witnesses are not competent. The proper inquiry is as to the
Bolvency of the debtor.^ Evidence of the neglect or refusal of
the debtor, being a business man, to pay it according to its terms,
is competent, as tending to show inability to pay. Defendant
may show the true value, though he has not denied plaintiff's
allegation of value. 10
Where there is ground for presuming fraud, defendant may
be held liable in the highest amount, if he will not produce the
article or disclose its actual value. 11
13. Declarations of former owner.'] The competency of evi-
dence of the declarations and admissions of a former owner of
the property is stated in the chapter on actions by and against
assignees. 13
14. Title in defense.] "When title and right of possession in
plaintiff are in issue, defendant may show them to have been in a
third person. 13 Otherwise, in an action for forcible and wrongful
taking f rom plaintiff's possession. 14 The burden is on defendant
to show such title in the person through whom he claims, as will
1 Holbrook v. Wight (above) ; Hagar v. Randall, 62 Me. 439-.
1 Gillet v. Roberts, BY N. Y. 33.
1 Laverty v. Snethen, 68 N. Y. 622 ; Dudley v. Hawley, 40 Barb. 397, affi'd as
Spraights v. Hawley, 39 N. Y. 441 ; Boyce v. Brockway, 31 N. Y. 490, and cases
cited.
4 Si-riser v. Cowan, 56 Barb. 395 ; and see Fullerton v. Dalton, 58 Barb. 236.
* Smith v. Young, 1 Campb. 439.
6 Connors v. Meir, 2 E. D. Smith, 314.
' Pages 306-12 of this vol.
8 Pottt-r v. Merchants' Bank, 28 N. Y. 641. Compare Outhouse v. Outhouse, 13
Hun, 180, 132.
Booth v. Powers, 56 N. Y. 22,rev'g Flint v. Craig, 59 Barb. 819.
10 Chicago, <fec. R. R. Co. v. Northwestern Union Packet Co. 88 Iowa, 377, 382.
11 Armory v. Dclamire, 1 Sm. L. Cas. 163 ; and see 10 H. L. Cas. 589 ; and Free-
ton v. Leighton, 6 Md. 88.
18 Pa;je 11 of this vol.
13 Davis v. Hopnock, 6 Duer, 254; Jackson v. Pixley, 9 Cush. 490.
14 Kissam v. Roberts, 6 Bosw. 154.
ACTIONS FOR CONVERSION.
sustain his defense. 1 A general denial admits any evidence going
to controvert the facts which plaintiff is bound to establish. 2 A
subsequently derived title, if relied on as a bar, 8 must be specially
pleaded. 4
15. Title derived through wrong-doer.~\ If the true owner, bv
his own act and consent, has given to another the written evi-
dence or indicia 5 of ownership, and the apparent right of disposal
of the property, a bona Jide purchaser from the apparent owner,
or one who advances money, or incurs responsibility on the faith
of the title, will be protected. 6 But if the party dealing with the
apparent owner, had actual notice of the rights of the true owner,
he acquires no better title than the transferor or apparent owner
could lawfully convey. 7 In the case of securities, the word
" trustee " or its equivalent, on the face of the paper, is notice of
the trust. 8 Evidence of oral notice to the defendant, that the
wrong-doer was acting as agent, lets in evidence of his actual au-
thority. 9 When plaintiff's title and an original tortious taking is
shown, the burden is on the purchaser to show that he is free
from fault, and lawfully came to the possession in good faith. 10
16. Illegality, .] Evidence that defendant received possession
from plaintiff under an illegal contract, does not necessarily de-
feat the action, for it is not founded on the contract. 11 Illegality
in the contract set up by defendant as a justification of his de-;
tention, may be proved by plaintiff in rebuttal, though not al-
leged in pleading, 13 unless the contract is pleaded as a counter-
claim.
17. Mitigation of damages.'] A general denial admits any
matter competent in reduction of damages. 13 An agreement giving
defendant a lien, if proved without objection may avail, though
not alleged. 14
1 Brower v. Peabody, 13 N. Y. 121, s. c. 2 Abb. Pr. 211, 11 How. Pr. 492.
* Andrews v. Bond, 16 Barb. 633, 642.
8 Jacobs v. Remsen, 12 Abb. Pr. 890, s. c. 85 Barb. 884.
4 Wehle v. Butler, 12 Abb. Pr. N. S. 139. And see Bryant v. Bryant, 2 Robt. 612.
' Mere possession is not enough. Penfield v. Dunbar, 64 Barb. 239.
6 Bay v. Coddington, 6 Johns. Ch. 64; Porter v. Parks, 49 N. Y. 664, and cas. cit.
7 Porter v. Parks (above).
8 Shaw v. Spencer, 100 Mass. 382 ; 1 Am. R. 115 ; Duncan v. Jaudon, 15 Wall. 175.
One who purchases public stocks from an agent, under a mere general power to do
and transact all manner of business, must prove, as against the principal, that he
bought in good faith and paid a fair consideration. Hodge v. Combs, 1 Black, 192.
Merchants Bank v. Livingston, 74 N. Y. 223.
10 Cormier v. Batty, 41 Super. Ct. (J. <fe S.) 79; except in case of negotiable
paper, 2 Pars, on Pr. N. 264.
" Frost v. Plumb, 40 Conn. Ill, s. o. 16 Am. R. 18; Woodman v. Hubbard, 25 N.
H. 67 ; Hall v. Corcoran, 107 Mass. 251, s. c. 9 Am. R. 30. Contra, Smith v. Rollins,
11 R. I. 464, s. o. 23 Am. R. 609, 610, 615, and cases cited; and 60 Me. 528, s. o. 11
Am. R. 210.
1S Williams v. Tilt, 36 N. Y. 819.
13 Booth v. Powers, 56 N. Y. 22. rev'g Flint v. Craig, 69 Barb. 819.
M Townsend v. Bargy, 67 N. Y. 666.
CHAPTER XXXVI.
ACTIONS FOR TRESPASS TO PERSONAL PROPERTY.
1. Plaintiff's title or possession. 6. Action for wrongful levy.
2. The act of trespass. 7. defendant's sanction.
3. Value and damages. 8. justification.
4. Admissions and declarations. 9. exemption from execution.
8. Character. 10. Justification by tax collector.
1. Plaintiff's title or possession."] If plaintiff shows that he
had actual possession, and defendant's forcible taking, plaintiff
need not prove his title, 1 even though it be in issue. 2 If he does
not prove possession, actual or constructive, he must prove title. 3
If he relies on title under an execution sale, he must give prima
facie evidence of the validity of the sale. 4 The mode of proof of
title or possession is stated in the last chapter.
2. The act of trespass."} Evidence of any unlawful interfer-
ence with plaintiff's personal property, or exercise of dominion
over it, by which plaintiff is damnified such as a wrongful levj^
though without sale or removal, is enough. 5 Evidence of mere
non-feasance does not make a trespasser db initio. There must
be a positive act, such as if done without authority would be a
trespass. 8
3. Value and damages.] The value of the property destroyed
need not be proven in order to sustain the action ; 7 but must be,
to sustain a verdict for substantial damages for the destruction. 8
Defendant may controvert the value although he has not denied
it in pleading.* The mode of proving value and damage has al-
ready been stated. 10
Willful wrong or malice may be shown as a ground for ex-
emplary damages, 11 even though actual damage was nominal. 13
1 Hoyt v. Van Alstyne, 15 Barb. 568 ; Hurd v. West, 7 Cow. 752.
1 Ki^sam v. Roberts, 6 Bosw. 124, and cases cited.
8 Carter v. Simpson, 7 Johns. 535. Compare Bas v. Steele, 3 Wash. C. Ct. 881.
4 Id.
5 Stewart v. "Wells, 6 Barb. 79, and cases cited.
Averell v. Smith, 17 Wall. 82 ; Spencer's Case, 1 Smith's L. Caa. 187, 221.
"Whether a criminal act requires proof beyond a reasonable doubt, is not fully settled.
See p. 495 of this vol., and Thayer v. Boyle, 80 Me. 475 ; Paul v. Currier, 63 Id. 626
(deemed overruled in Ellis v. Buzzell, 60 Id. 209) ; Wells v. Head, 17 111. 204.
1 Brent' v. Kimball, 60 111. 85, s. c. 14 Am. R. 35.
8 Kenny v. Planer, S Daly, 131.
' Dunlap v. Snyder, 17 Barb. 661.
10 Pages 306, 348 and 698 of this vol. ; Nellis v. McCarn, 35 Barb. 116, 118.
11 See Lewis v. Hulkley, 4 Daly, 156.
" Allabach v. Ult, 61 N. Y. 651.
[629J
630 ACTIONS FOR TRESPASS TO PERSONAL PROPERTY".
Express or actual malice may be inferred from a mischievous in-
tent, or inexcusable recklessness. 1 But malicious intent is not
conclusively inferred from the act. 2 It is only a presumption
that one intends the ordinary and probable consequences of his
act, and this presumption may be rebutted by competent evi-
dence. 8 When competent to show malice in an officer's act, a
witness may testify that it was done in an offensive and insulting
manner. 4 Proof or admission that defendant acted without
malice, precludes exemplary damages; and evidence, in the
nature of a justification, is admissible in mitigation. 5
4. Admissions and declarations^] In corroboration of cir-
cumstantial evidence that defendant or his agent did the act, ev-
idence of his previous declarations of intent to do it is competent. 8
A proposal from defendant for settlement is competent, leaving
it to the jury, if ambiguous, to determine whether it was an ad-
mission of trespass, or a proposition to buy peace. 7 The party
against whom an admission is proved may prove, on his part, the
whole of the conversation at that time, so far as it qualifies the
admission, but no further. His declarations at the time, upon
the general merits of the case, cannot be proved in his favor. 8
"Where a combination of design is shown, the acts and declarations
of either of those engaged in it are competent against the others,
within limits already stated. 9
5. Character.'} Though willful injury be alleged, character is
not in issue. 10
6. Action for wrongful levy. 11 ] In an action for a wrongful
levy, the plaintiff proves the act of taking, &c., and the damage,
and rests. Defendant then proves his allegations w that he, or one
of several defendants, was a public officer, 13 and that he acted un-
der process, 14 or under process and judgment. 15 Plaintiff may then
prove whatever new matter he relies on in avoidance such as
exemption although not pleaded. 16
1 Etchberry v. Levielle, 2 Hilt. 40, and cas. cit.; Stater. Hessencamp, 17 Iowa, 25.
Filkins v. People, <frc. of N. Y. 69 N. Y. 106, rev'g 1 Buffalo Super. Ct. (Shel-
don), 504.
8 Id.
4 Raisler v. Springer, 38 Ala. 703. Compare cases cited in note 10 on p. 699 of
this vol.
6 Gelston v. Hoyt, 13 Johns. 561, affi'g Id. 141.
6 See Dodge v. Bache, 57 Penn. St. 421 ; Smith v. Causey, 28 Ala. 655.
1 Prussel v. Knowles, 6 Miss. (4 How.) 90.
8 Garey v. Nicholson, 24 Wend. 350 ; Rouse v. Whited, 25 N. Y. 170.
Page 190 of this vol. ; Colt v. Eves, 12 Conn. 243.
10 Thayer v. Boyle, 30 Me. 475.
11 Justification mast be alleged. Graham v. Hanover, 18 How. Pr. 144 ; Root v.
Chandler, 10 Wend. 110.
11 See, also, page 193 of this vol.
" Page 198.
14 Page 201 ; Werner v. Waters, 55 Barb. 591.
16 Page 535.
14 Dennis v. Snell, 54 Barb. 415.
ACTIONS FOR TRESPASS TO PERSONAL PROPERTY. 631
7. defendants sanction^ For the purpose of charging the
creditor in process against a third person, with trespass by its
wrongful levy on plaintiff's property, there is no presumption
that he authorized such levy, 1 and evidence that his attorney did
so is not alone enough against him. 2 But evidence that he referred
the officer to his attorney for instructions, and the latter sanc-
tioned the levy, to the knowledge of defendant ; 3 or that after the
taking he induced the officer to detain and sell the property ; 4 or
evidence that he received the proceeds, together with evidence
that he admitted he had attached the goods,* or that on learning
the facts he affirmed his claim, 6 or even omitted to repudiate the
trespass, 7 is enough. Evidence that one partner directed a levy
of an execution for a partnership debt, raises a presumption that
the other partners assented. 8 Corporate authority is not pre-
sumed. 9 If defendant's instructions are relied on, and they were
exclusively in writing, they should be produced or accounted for
as the best evidence. 1 "
Defendant's responsibility for the officer's act being thus
shown, the officer's declarations in following the instructions are
competent against him. 11
8. justification.'] Justification is not admissible under a
general denial, 12 except by a public officer, or one acting under
statute, in a case within the Revised Statutes. 13 Justification by
proof of ownership in a third person, cannot be proved unless
the answer not only alleges such property in the third person,
but also connects defendant with such owner by averring that
the taking was by his authority, or by virtue of process or right
against such owner. 14 If defendant acted under authority of a
court, the record appointing him is competent, though made in a
proceeding in which the parties were not the same. 15 The general
rules as to official justification have been already stated. 16 Evi-
1 The law will not presume any one to be a wrong-doer. Averill v. Williams,
1 Den. 501. Contra, Newberry v. Lee, 3 Hill, 523 ; compare Copley v. Rose, 2 N. Y.
115.
a Averill v. Williams, 4 Den. 295. Compare Judson v. Cook, 11 Barb. 642.
* Armstrong v. Duboig, 1 Abb. Ct. App. Dec. 8.
4 Root v. Chandler, 10 Wend. 110.
5 Halliday v. Hamilton, 11 Wall. 560, 566.
8 Hen-man v. Gilbert, 8 Hun, 253.
7 Murray v. Bininger, 3 Abb. Ct. App. Dec. 336.
8 Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341, affi'g Schoonmaker v. Clear-
water, 41 Barb. 200.
Watson v. Bennett, 12 Barb. 196.
10 Stebbins v. Cooper, 4 Den. 191.
11 Raisler v. Springer, 38 Ala. 703.
11 Root v. Chandler, 10 Wend. 110; Butterworth v. Soper, 13 Johns. 443.
13 Page 201 of this vol. For short mode of pleading in action for doing an official
act or an act by statutory authority, see 2 N. Y. R. S. 853 (3 Id. 6th ed. 614), 1,
17.
14 Kissam v. Roberts, 6 Bosw. 154.
16 State v. Hyde. 29 Conn. 664 ; and see Plummer v. Harbut, 5 Iowa, 308.
" Pages 198-202 of this voL
632 ACTIONS FOR TRESPASS TO PERSONAL PROPERTY.
dence that defendant professed at the time of the alleged trespass
to act under warrant, does not raise a presumption of authority. 1
An officer sued for executing regular process is not bound to
prove the judgment, 2 except, perhaps, where it is a judgment of
a justice's court or like inferior jurisdiction, 8 or unless he relies
on facts established by it, as, for instance, to negative a claim of
exemption, 4 or as a foundation for impeaching a transfer as fraud-
ulent? 5 But a party to the process must prove not only the exe-
cution, but also the judgment on which it issued ; 6 and jurisdiction
must affirmatively appear, 7 if not presumable. 8 If the levy was
under attachment, judgment in the attachment suit, though
recovered after the present action had been brought, is conclusive
evidence of the debt. 9
Return of the execution need not be shown ; and the want of
an indorsement on the execution, of the time it was received by
the officer, does not aif ect its competency ; and the time of receiv-
ing it may be shown by parol. 10 The want of a return may be
explained by parol. 11 Formal evidence of absolute vacatur, proves
the party, but not the officer, to be a trespasser ab initio.
Evidence of plaintiff's oral admission of the validity of the
process, &c., is not competent, 13 unless acted on so as to raise an
estoppel. 14
Ii the thing was levied on while in possession of a third per-
son, the burden of proof as to title is upon the officer. 15 The
inquisition of a sheriff's jury against the plaintiff, on his claim to
the property levied on, is not competent evidence in the plaintiff's
favor and against the officer. 16 Even though the levy was under
attachment before judgment, defendant may show that plaintiff's
claim of title was fraudulent as against the attaching creditors ; n
1 Brachett v. Hayden, 15 Me. 347 ; and see pp. 198-202 of this vol.
8 Sheldon v. Van Buskirk, 2 N. Y. 473; Slmw v. Davis, 55 Barb. 389 ; Holmes v.
Nuncaster, 12 Johns. 395. Contra, Underbill v. Reinor, 2 Hilt. 319.
3 Cleveland v. Rogers, 6 Wend. 438.
4 Dennis v. Snell, 54 Barb. 411.
8 Sheldon v. Van Buskirk, 2 N. Y. 473.
6 Newberry v. Lee, 8 Hill, 523, s. p. Simpson v. Watrns, Id. 619 ; Gelhaar v.
ROBS, 1 Hilt. 117.-
1 See Walker v. Mosely, 6 Den. 102.
8 See page 644 of this vol.
9 Rinchey Y. Stryker, 28 N. Y. 45, s. c. 26 How. Pr. 75 ; and less fully, 31 N. Y. 140.
10 Bealls v. Guernsey, 8 Johns. 62.
11 Bealls v. Guernsey, 8 Johns. 62 ; Frost v. Shapleigh, 7 Greenl. 236. Compare
Gault v. Woodbridge, 4 McLean, 329.
18 Kerr v. Mount, 28 N. Y. 659. Compare Newberry v. Lee 3 Hill, 523.
"Bush v. Hewett, 4 N. Y. Leg. Obs. 384; Moore v. Hitchcock, 4 Wend. 292.
Compare Smith v. Hill. 22 Barb. 656.
14 Price v. Harwood, 3 Campb. 108.
15 Merritt v. Lyon, 3 Barb. 110. For the distinction in this respect between pro-
cess against property of a debtor, generally, and that against specific things, sea
Foster v. Peltibone, 20 Barb. 850 ; Buck v. Colbath, 3 Wall. 343.
14 Townsend v. Phillips, 10 Johns. 98 ; Sheldon v. Loomis, 28 Cal. 122
Rinchey v. Stryker, 28 N. Y. 45 ; e. o. 26 How. Pr. 75-; Hall v. Stryker, 27 N.
Y. 696, rev'g 29 Barb. 105, s. c. 9 Abb. Pr. 842; Pierce v. Hill, 35 Mich.'l94.
ACTIONS FOR TRESPASS TO PERSONAL PROPERTY. 633
and this he may show under an issue as to ownership, without
express allegation of fraud. 1
9. exemption from execution J] Plaintiff may prove his prop-
erty exempt from execution, under a general allegation of wrong-
ful taking. 2 One claiming an exemption must show the facts
making it out ; 3 the necessity of the articles ; 4 and the value, in
its relation to the statute limit. 5 The fact of being a householder
cannot be proved by general reputation ; 6 but a witness may tes- .
tify directly to the fact in the first instance, subject to cross-
examination as to details ; but cannot testify to his opinion on
that question ; 7 nor on the necessity of the articles. 8 The evi-
dence of necessity must be directed to the character of the prop-
erty in its relation to the vocation, not to the sufficiency or insuffi-
ciency of plaintiff's other property. 9
10. Justification by tax collector.'] A collector of taxes sued
for a levy has the burden of showing that the tax was exacted
by authority of law ; 10 but proving a warrant and assessment roll
which are regular on their face, is prima, facie enough, 11 without
proving the proceedings by which the tax was laid. 12
1 Deitsch v. Wiggins, 15 Wall. 539; Adler r. Cole, 12 Wis. 188; Chamberlain
v. Stern, 11 Nev. 268. Contra, see Demick v. Chapman, 11 Johns. 132.
8 Stevens v. Somerindyke, 4 E. D. Smith, 418.
3 Griffin v. Sutherland, 14 Barb. 456 ; Carnrick v. Myers, Id. 9 ; Clapp v. Thomas,
6 Allen, 158.
4 Van Sickler v. Jacobs, 14 Johns. 434.
* Chambers v. Halstead, Hill & D. Supp. 384.
6 Eastman v. Caswell, 8 How. Pr. 75.
1 See pages 103-7 of this vol.
8 Whitmarsh v. Angle, 3 Code R. 53, s. c. 3 Mo. Law R. N. S. 595
9 Wilcox v. Hawley, 31 N. Y. 648 ; Smith v. Slade. 57 Barb. 637; Whitmarsh v.
Angle, 3 CoJe R. 53, 8. c. 8 Mo. Law R. N. S. 595. As to what shows professional
vocation, see Sutton v. Facey, 1 Mich. 243, 247.
10 Wilkinson v. Greely, 1 Curt. C. Ct. 439.
11 Johnson v. Learn, 30 Barb. 616.
" Sheldon v. Van Boskirk, 2 N. Y. 473.
CHAPTER XXXVII.
ACTIONS FOR TRESPASS TO REAL PROPERTY.
1. Plaintiff's title. 6. Defense ; Disproof of the trespass.
2. Possession. 7. Justification.
8. Acts of trespass. 8. Defendant's title and possession.
4. The purpose of an act. 9. Easements, ways, <tc.
6. Damages. 10. License.
1. Plaintiff's titleJ] The usual mode of proving plaintiff's
title is to produce and prove the deed * or will, 2 or other instru-
ment under which plaintiff holds (or that under which his ancestor
held, coupled with proof of inheritance), and to give oral evidence
of his possession under it. It is enough for either party to show
title to that part where the trespass was committed. 3 Paper
title is not enough, without any evidence that plaintiff, or those
under whom he derives such title, have ever had possession. 4
Possession in fact, 5 or legal right to immediate possession, 6 must
be shown, or else a right in reversion or remainder, 7 coupled with
injury to the inheritance. 8 A title alleged, which the answer
does not deny, 9 or expressly admits and claims under, 10 plaintiff
need not prove, even though the possession be vacant. 11 Evidence
of usage is competent in aid of the interpretation of a deed, if it
be ambiguous ; ^ but not if it be unambiguous. 13 Bare possession,
if exclusive and peaceable, is enough to show title, 14 if no para-
1 See Chapter XXVII. A breach of condition in plaintiff's deed does not avail
a defendant who is a stranger to the title. Robie v. Sedgwick, 4 Abb. Ct. App. Dec. 73.
* See Chapter V.
3 King v. Dunn, 21 Wend. 253 ; Rich v. Rich, 16 Id. 663.
4 Gardner v. Heartt, 1 N. Y. 528, rev'g 2 Barb. 166.
6 Frost v. Duncan, 19 Barb. 560, and cases cited.
6 Adams v. Farr, 2 Hun, 473, B. c. 5 Supm. Ot. (T. <fe C.) 69; and see Starr y.
Jackson, ) 1 Mass. 674, and cases cited.
1 For this purpose bare possession by the tenant is not enough. "Wickham v.
Freeman, 12 Johns. 183.
8 1 N. Y. R. S. 750, 8 ; Van Deusen v. Young, 29 N. Y. 9 ; 29 Barb. 9 ; Wood
v. City of Williamsburgh, 46 Id. 601.
O'Reilly v. Davies, 4 Sandf. 722.
10 McBurney v. Cutler, 18 Barb. 203.
11 O'Reilly v. Davies (above).
14 Livingston v. Ten Broeck, 16 Johns. 14.
11 Parsons v. Miller, 16 Wend. 561. On this subject, see pp. 294-7 of this vol.
14 1 Sedgw. on Dam. 7th ed. 270; Palmer v. Aldridge, 16 Barb. 131 ; Bogert v.
Haight, 20 Barb. 251 ; and see Jones v. Williams, 2 Mees. <fc W. 326 ; Corporation
of Hastings v. Ivall, L. R. 19 Eq. Cas. 668, s. c. 13 Moak's Eng. R. 601. Proof that
the wife put her husband in possession, and that he built and occupied with her, is
sufficient evidence of possession in him as against a third person. Alexander v.
Hard, 64 N. Y. 228. Compare Chapter VL
[634]
ACTIONS FOR TRESPASS TO REAL PROPERTY. 635
mount possession or other right appears. 1 Even if it appear that
plaintiff holds under a written instrument, such as a lease, the
instrument need not be produced as against a stranger and wrong-
doer. 2 If objected to, a witness should not be allowed to testify
that one person was a tenant of another ; but should state the
facts. 3 Oral evidence is competent to show whether certain parts
are or are not parcel of the premises ambiguously described in
the instrument.*
2. Possession."] Possession may be shown by acts of owner-
ship ; 5 and evidence of these is not ordinarily confined to the pre-
cise spot on which the alleged trespass may have been committed ;
acts done on other parts o? the same holding or inclosure, may
be shown if the common character of locality raises a reasonable
inference that the place in dispute belonged to the plaintiff if the
other parts did. 6 A witness having testified to acts of ownership
on the part of one party, may be asked if the other directed him
to do them. 7 A witness may testify directly to the fact of pos-
session, if he can do so positively and not as matter of opinion or
inference ; but subject, of course, to cross-examination as to de-
tails. 8
If plaintiff does not show title, and relies on a possession
which is constructive as to a part of the premises, he should
prove that he claimed title to the whole lot under a written in-
strument purporting to give him title to the whole, and hence
sufficient to give color of title to the whole, and that he was in
actual possession of a part. 9
3. Acts of trespass.'] The allegation of unlawful entry on the
premises, and of unlawful removal or injury of property there,
are to be distinguished ; and an allegation of one of these facts
only, will not admit evidence of the other. 10 If both are alleged,
taking issue as to one only, admits the other ; u but if both are in
I Kellogg v. Vollentine, 21 How. Pr. 226.
s Walker v. Wilson, 8 Bosw. 580 ; Althouse v. Rice, 4 E. D. Smith, 347. But a
bald allegation that plaintiff, by virtue of a contract with one A., was entitled to the
exclusive possession of the premises, without any facts to support the conclusion, is
not enough. Garner v. McCullough, 48 Mo. 318.
8 Parker v. Haggerty, 1 Ala. 632, 634.
4 Cary v. Thompson, 1 Daly, 85 ; Crawfdfrd v. Morris, 5 Gratt. 90 ; and see
p. 527 of this vol.
6 Such as paying rents. Arden v. Kermit, Anth. N. P. 112; cutting wood, Stan-
ley v. White, 14 East, 832 ; or giving leave to cut wood, Hager v. Hager, 88 Barb. 92.
6 Jones v. Williams, 2 Mees. <fe W. 826 ; 1 Tayl. Ev. 803 ; 1 Whart. Ev. 69, 45.
The making of payments of taxes, rents, and the like, as acts of ownership, may be
proved by parol, without producing or accounting for the payee's receipts. Ilinch-
man v. Whetstone, 23 111. 185, 187 ; Dennett v. Crocker, 8 Me. 239.
7 Houghtaling v. Houghtaling, 56 Barb. 194.
8 HarJenbur^h V. Crury, 50 Barb. 82 ; nnd see p. 623 of this vol. Compare
Jones v. Merrimack River Lumber Co. 31 N. H. 381, 385.
9 Edwards v. Noyes, 65 N. Y. 125. Compare Bynum v. Thompson, 3 Ired. N. C.
(L.) 578, 681.
Kenny v. Planer, 8 Daly, 131 ; Turner v. McCarthy, 4 E. D. Smith, 247.
II Knapp v. Slocomb, 9 Gray, 73.
636 ACTIONS FOR TRESPASS TO REAL PROPERTY.
issne, failure to prove either is a variance, 1 though not necessarily
fatal. 3
Plaintiff is not obliged to prove trespass on the whole of the
close alleged, but he may prove one on anv part. 3 Evidence of
a wrongful intrusion, however slight, is evidence of a trespass.*
Under an allegation of a trespass on a day named, and on
divers other times oetween it and another day, plaintiff may prove
any number of trespasses committed between the times specified ; 5
and he may properly be allowed to prove another act anterior to
the earlier day, if it does not appear that defendant is misled. 6
Against a co-tenant in common, it is necessary to prove a case
of ouster. 7
4. The purpose of an act?\ The purpose of an act, if rele-
vant, may be shown by proving declarations characterizing the
act, 9 if made at the time. 10 A question calling for mere intention
uncommunicated may be objectionable, when a question as to the
act accomplished, the manner, &c., would be proper. 11
5. Damages^] To entitle to nominal damages, it is enough to
prove an unlawful entry. 12 Plaintiff may recover on proving his
right to single damages, although his complaint be framed by ref-
erence to the statute giving treble damages. 13 In an action by
the reversioner or remainder-man, injury to the inheritance sus-
tains the action, although an allegation of disturbance in enjoy-
ment be unproved. 14 Distinct and unconnected acts of some of
several joint defendants are not competent, in aggravation, as
against the others. 15 On questions of value and damage, the opin-
ions of witnesses are competent, within limits already stated. 16 It
is not ordinarily allowable to prove the amount of damage by the
1 Howe v. Willson, 1 Den. 181.
s Colton v. Jones, 7 Robt. 164. As to trespass for forcible disseizin, 2 N. T. R. S.
338(3 Id. 6th ed. 602), | 4; see Willard v. Warren, 17 Wend. 257.
8 Rich v. Rich, 16 Wend. 674 ; Stewart v. Wallis, 30 Barb. 344.
4 Ellis v. Loftus Iron Co. L. R. 10 C. P. 10, 8. c. 11 Moak's Eng. 214. In deter-
mining the question of trespass or no trespass, the court cannot measure the amount of
the alleged trespass; if the defendant place a part of his foot on the plaintiffs land
unlawfully, it is in law as much a trespass as if he had walked half a mile on it. Id.
6 Richardson v. Northrup, 66 Barb. 85.
8 Duboia v. Beaver, 25 N. Y. 123, affi'g Relyea y. Beaver, 34 Barb. 647. Com-
pare United States v. Kennedy, 3 McLean, 175 ; Joralimon v. Pierpont, Anth. N. P. 59.
7 Dubois v. Beaver (above); Jacobs v. Seward, L. R. H. of L. Cases, 464, s. c. 2
Moak's Eng. 496. Compare Wood v. Phillips, 43 N. Y. 152, overruling King v.
Phillips, 1 Lans. 421.
8 See, on this queslion, pages 618, 620 of this vol.
9 Stephens v. McCloy, 36 Iowa, 659 ; Welch v. Louis, 31 III 446 ; Sears v. Hoyt,
87 Conn. 406.
10 See Noyes v. Ward. 19 Conn. 250 ; and pp. 587-9, and 648 of this voL
11 Niles v. Patch, 13 Gray, 254, 258.
18 Dixon v. Clow, 24 Wend. 190 ; 1 Sedgw. on Dam. 7th ed. 266.
18 Starkweather v. Quigley, 7 Hun, 26.
14 Eno v. Del Vecchio, 6 Duer, 17.
15 Higby v. Williams, 16 Johns. 215.
" Honsee v. Hammond, 39 Barb. 89. Pages 306-12 of this voL
ACTIONS FOR TRESPASS TO REAL PROPERTY. 637
direct statement of a witness, for this wonld be to substitute his
conclusion for that of the jury ; x but a qualified witness may state
the value of property before the injury and after it ; and, if he
states the facts, his conclusion as. to the pecuniary injury to a spe-
cific thing having a market value is competent, 2 and is not made
incompetent by the circumstance that, assuming the truth of his
conclusion, it is the sum for which the jury should give a verdict. 3
A qualified witness may state how much the land would have
produced but for the injury, and how much less in consequence
of the injury, and the like ; and the market value of the crops
had they not been injured. 4 So far as his opinion depends on an
ordinary computation which a jury may as well make as the
witness, he cannot substitute the results of his estimate for theirs. 5
6. Defense ; Disproof of trespass.] Under a denial, the de-
fendant's evidence in disproof of trespass need only be directed
to the part of the close to which plaintiffs evidence of trespass
was directed. 6
7. Justification.'] Defendant may prove title to a part of the
alleged close, and show that the alleged trespass was committed
there. He need not disprove trespass on the other part. The
burden, then, is thrown on plaintiff to show that trespass was
committed on the part not covered by the justification. 7 A de-
fendant who relies on necessity as a justification must show it
clearly. 8 Witnesses having no special or peculiar experience or
knowledge of the subject are not ordinarily competent to express
an opinion on the necessity. 9
8. Defendant's title and possession.] Under an allegation of
title in, and license from, a third person, evidence of title in de-
fendant is not admissible. 10 If plaintiff relies on evidence of pos-
session in himself, defendant may, under a denial, prove posses-
sion, even in a stranger with whom defendant shows no connec-
tion. 11
As to the mode of proving defendant's title and possession,
the same rules apply as in proving those of plaintiff. 12 Defendant
1 Richardson v. Northrup, 66 Barb. 85 ; Dolittle Y. Eddy, 7 Barb. 74 ; and see
cases collected iD 3 Abb. N. Y. Dig. new ed. pp. 79, 195.
9 Id.
8 Pages 306-12 of this vol.
4 Armstrong v. Smith, 44 Barb. 120, and cases cited. Compare Sfiamans v. Smith.
46 Id. 320.
6 Hollis v. Wagar, 1 Lans. 4.
Rich v. Rich, 16 Wend. 674.
7 Rich v. Rich, 16 Wend. 674. In other words, the plaintiff must always locate
the trespass, in order to show it wrongful (CowEN, J.). Id.
8 Hicks v. Dorn, 42 N. Y. 47, s. o. 9 Abb. Pr. N. ti. 47, affi'g 1 Lans. 81, & c. 54
Barb. 174.
9 See Mayor, <fec. of N. Y. v. Pentz, 24 "Wend. 668 ; and pages 178, 310 of this voL
10 Coan v. O?good, 15 Barb. 588.
11 Miller v. Decker, 40 Barb. 228, and cases cited.
19 Paragraphs 1 and 2.
638 ACTIONS FOR TRESPASS TO REAL PROPERTY.
may put in evidence deeds, to show possession tinder bona fide
claim of title. 1 A prescriptive right, it relied on, should be plead-
ed to be admissible in evidence. 2 The designation of land taken
by a railway company, filed by the company under the statute, is
conclusive evidence of the land taken, and cannot be controlled
by extrinsic evidence. 3
9. Easements.'] The rules for proving the existence of an
easement in justification, are the same as those stated in the next
chapter for proving it in an action for obstructing its enjoyment.
10. License.'] License must be pleaded ; it is not admissible
under a general denial. 4 An oral license, acted out before revo-
cation, may be proved notwithstanding the statute of frauds, 5 and
notwithstanding a written agreement of the parties requiring a
writing. 6 License by an agent cannot be proved by evidence of
the subsequent admissions of the agent. 7 A license may be in-
ferred from the acts of the parties in connection with the silent
acquiescence of the plaintiff ; and such acquiescence may inure as
a license 8 by estoppel, when the other requisites to create an
estoppel in pais concur. 9 A license to enter plaintiff's premises
is not necessarily implied from the fact that defendant's goods,
to which he had legal right of immediate possession, were there. 10
If a writing is apparently a mere license, the burden is on
defendant to show that it was part of a contract, and, therefore,
not revocable, if he relies on that fact. 11 An intent to exclude
the grantor, though not expressed in the body of a license, may
be implied from the nature and extent of the consideration. 18
I Wood v. Lafayette, 68 N. Y. 181, 190.
8 Sale v. Pratt, 19 Pick. 191 ; and see Cortelyou v. Van Brandt, 2 Johns. 357;
Kent v. Waite, 10 Pick. 138. Existence for sixty years, with nothing to show com-
mencement, is admissible under an allegation of existence from time immemorial.
Odiorne v. Wade, 5 Pick. 421.
8 1 Redf. Hy. 260 (6, 7).
4 Haight v. Badgeley, 15 Barb. 499. Except where the action is not for an ordi-
nary trespass, but for a special wrong such as injury to the highway adjoining
S'aintiff when a highway surveyor's license is admissible under the general issue,
unson v. Mallory, 36 Conn. 165.
5 See Babcock v. Utter, 1 Abb. Ct, App. Dec. 27.
6 Pierrepont v. Barnard, 6 N. Y. 279, rev'g 5 Barb. 364.
7 Hubbard v. Elmer, 7 Wend. 446. 448, s. p. 2 Wheat. 360. For the principle
applicable on this point, see page 44 of this vol.
8 Martin v. Houghton, 1 Abb. Pr. N. S. 339, B. c. 45 Barb. 258, and 31 How. Pr.
82. Compare Babcock v. Utter (above).
9 Walter v. Post, 6 Duer, 363, 8. c. 4 Abb. Pr. 382.
10 McLeod v. Jones, 105 Mass. 403.
II Tillotson v. Preston, 7 Johns. 285.
12 Massot v. Moses, 3 S. C. 168, s. c. 16 Am. R. 697. WILLAED, J., says: The
proper conclusion from the cases would seem to be, that grants of a right to enter
the lands of the grantor, and sever therefrom and appropriate its products or mineral
contents, are subject to a presumption, not applicable to the case of a sale of person-
alty, that the grantor did not intend to exclude his own proprietary right to a con-
current enjoyment with the licensee of the power granted. If this view is correct,
any words evidencing an intent on the part of the grantor to part with his proprie-
ACTIONS FOR TRESPASS TO REAL PROPERTY. 639
Oral evidence to explain a license is competent within general
limits already stated.
tary rights over the subject-matter to which the grant relates, would tend to rebut
such presumption. To words tending to evidence an intent on the part of the
grantor to exclude himself from the enjoyment concurrently with the grantee of the
right conferred, the same force in respect to such presumption should be given that
would be given had the subject-matter been other than realty. The presumption,
indeed, demands some positive evidence of an exclusive intent, but does not influence
the force of the evidence of such intent. Id.
1 Pages 294-8, 483, 508, 524 and 525 of this vol. And see Goodrich v. Long-
ley, 4 Gray, 879, 383. Thus, under a license to defendants to take " all the stone of
whatever description they may require in the enlargement of the Old Compensation
Reservoir " : extrinsic evidence is competent to show what particular scheme of
enlargement was contemplated by the parties at the date of the contract, but not to
limit the quantity which might be taken for that purpose. Chadwick v. Burnley,
12 W. R. 1077.
CHAPTEE XXXVIII.
ACTIONS FOR NUISANCE.
1. Plaintiffs title and possession. 7. Cause and effect.
2. Easements. 8. Notice and request to abate.
8. Highway. 9. Damages.
4. Defendant's title. 10. Former abjudication.
6. The nuisance. 11. Defendant's right or title.
6. The injury. 12. Reasonable care, etc.
1. Plaintiff's title and possession.'] The mode of proving
title and possession of land have been stated in the last chapter. 1
Although possession may be prima facie evidence of title, plaintiff
cannot recover if his own evidence shows the paramount title to
be in another. 2
2. Easements. .] An allegation of prescriptive right is not sus-
tained by proof of a conventional right, 8 but is sustained by proof
of adverse user for sufficient length of time, 4 where there- is no
evidence of a license or agreement. 5
The grant of an easement with real property, or the reserva-
tion of one in real property conveyed, is not implied from its exist-
ence at the time of the conveyance, and the silence of the parties,
unless it is necessary to the enjoyment, so that the grant or reser-
vation may be presumed to have been intended by the parties. 6
To establish an easement by presumption of a grant on the
ground of necessity, the claimant must show that without it, he
will be subjected to an expense excessive and disproportioned to
the value of his estate, or that his estate clearly depends on it for
appropriate enjoyment, or that some conclusive indication of his
grantor's intention exists in the circumstances of his estate. 7
Evidence of user for a sufficient period, 8 if continuous, ad-
verse, and uninterrupted, raises a presumption of a lost grant
from some one authorized to make it. 9 An isolated instance of
'Paragraphs 1, 2, and 8. See also Wilson v. Hinsley, 13 Md. 64; Brown v.
Bowen, 80 N. Y. 519.
8 Morris v. McCarney, 9 Geo. 160.
3 Rudd v. Williams, 43 111. 385. But the word " ancient " is not alone enough to
exclude all but prescriptive right. Ward v. Neal, 35 Ala. 602.
4 Kent v. Waite, 10 Pick. 138.
6 Steffy v. Carpenter, 37 Penn. St. 41.
6 See the conflicting authorities in 4 Am. L. Rev. 40; Keats v. Hugo, 115 Mos&
205, s. o. 15 Am. R. 80; Shipman v. Beers, 2 Abb. New Cas. 435.
1 O'Rorke v. Smith, 11 R. I. 259, s. c. 23 Am. R. 440; Powell v. Sims, 5 W. Va.
1, s. c. 13 Am. R. 629.
8 Varying in different jurisdictions. In New York, twenty years.
9 Tyler v. Wilkinson, 4 Ma=s. 397 ; compare Connor v. Sullivan, 40 Conn. 26, s. a
16 Am. R. 10; Vooght v. Winch, 2 B. & A. 662.
[640J
ACTIONS FOR NUISANCE. 641
an unsuccessful attempt at interruption is not enough to prevent
a finding of such grant. 1 In the absence of other evidence, the
adverse character of the enjoyment, 3 and the fact that it was
under a claim of right, 3 may be inferred from evidence that it was
exclusive and uninterrupted. The acts and declarations of an
occupant or tenant are not competent to affect the title of the
owner ; but on the question whether the right has been lost or
abandoned, the demand of it by plaintiff, and the yielding of it
by the occupant, may be shown. 4 The easement or use must be
shown to have continued substantially the same ; 5 but slight
variation will not defeat it 6 Evidence of a private way does not
support an allegation of a highway. 7
3. niyhway.~] To prove a public way, plaintiff must estab-
lish : a legal dedication, as provided by statute, if any ; or con-
demnation by some public authority competent for the purpose ;
or a dedication implied from acts of the owner, not amounting to
a statutory dedication, but indicating the purpose to make a pub-
lic way ; or, a continuous and adverse possession and user on the
part of the public for a sufficient period. 8 Evidence of the fact
of highway at a given time raises a presumption, that it con-
tinued and still exists. 9 Special damage must be proved ; 10 other-
wise of a private way. 11
4. Defendant's title."] Evidence that defendant was in pos-
session, 12 or that he leased the premises to others, 13 raises a pre-
sumption against him that he was owner.
5. The nuisance.~\ A substantial variance between the evi-
dence and the allegation of the facts constituting the nuisance is
material, and may be fatal. 14 A nuisance is presumed created by
the owner of the premises whence it proceeded. 15 An allegation
that defendant constructed the nuisance, admits evidence that he
1 Connor v. Sullivan (above). Nor is evidence that no such grant was ever made,
if the owner were capable of making such a grant. An^us v. Dalton, 27 Weekly
R. 623 (BRETT, J., dissented). Nor that there was a public way nearer and more con-
venient. Blake v. Everett, I Allen, 248.
2 Hart v. Vose, 19 Wend. 365.
8 Hammond v. Zehner, 23 Barb. 473 ; Polly v. McCall, 37 Ala. 20.
4 Lindeman v. Lindsey, 69 Penn. St. 93, s. c. 8 Am. R. 219.
* Ball v. Hay, L. II. 8~Ch. App. 467, 8. c. 6 Moak's Eng. 435.
8 Harvey v."Walters, L. R. 8 C. P. 162, s. c. 4 Moak's Eng. 392.
7 Salchell v. Doram, 4 Ohio St. 542.
8 Satehell v. Doram, 4 Ohio St. 542. For the details of the mode of proving these
facts, seo Grinnell v. Kirtland, 2 Abb. New Cas. 386, 400 n.
9 Satehell v. Doram, 4 Ohio St. 542.
10 Lansing v. Wiswall, 5 Den. 213 ; Winterbottom v. Lord Derby, Law Rep. 2 Ex.
316.
11 Lansing v. Wiswall (above).
11 Blunt v. Aikin, 15 Wend. 522; and see Waggoner v. Jermaine, 3 Den. 308.
13 Conhocton Stone Road Co. v. Buffalo, N. Y. <fc E. R. U. Co. 3 Hun, 5:23.
14 Hill v. Supervisor, 10 Ohio St. 621 ; Dickinson v. Ciby of Worcaster, 7 Allen,
19 ; Pickett v. Congdon, 18 Md. 412 ; Brown v. Woodworth, 5 Barb. 560.
16 Francis v. Schoellkopf, 53 N. Y. 152.
41
642 ACTIONS FOR NUISANCE.
merely continued it. 1 The determination of a board of health
that a nuisance exists, made without notice, to or hearing of the
person on whose premises it is alleged, is not competent evi-
dence. 2 -Evidence of negligence is not usually necessary. 3 Evi-
dence of malice is not necessary, even if alleged. 4 Malice may be
inferred from acts ; and the law presumes it from acts designed
to injure the plaintiff. 5
6. The injury ^\ The evidence as to the nature of the injury
should substantially correspond with the allegation. 6 But if the
cause is truly alleged, details of the mode may be proved, though
not alleged. 1 * Evidence of like injury to other persons not con-
nected with plaintiff is not competent, 8 unless for the purpose of
showing the relation of cause and effect, under the same condi-
tions ; but for this purpose general similarity of the conditions
is not enough. 9
7. Cause and effect.] If the subject is one not familiar to
men in general, and the jurors cannot be presumed familiar with
it, 10 the fact that the injury complained of resulted from the v con-
duct of defendant, or the condition of his property, may be
shown by the opinions of witnesses shown to be sufficiently skilled
in the subject in question, 11 not by those of others. 12 The mode of
calling for the opinion of skilled witnesses has been already stated. 13
1 Conhocton Stone Road Co. v. Buffalo, N. Y. & E. R. R. Co. 3 Hun, 523 ; com-
pare Lansing v. Smith, 4 Wend. 24.
* Button v. City of Camden, 10 Vroom, 122 (39 N. J.), s. c. 23 Am. R. 203.
* Cahill v. Eastman, 18 Minn. 824, s. o. 10 Am. R. 184.
4 Panton v. Holland, 17 Johns. 92 ; Timm v. Bear, 29 Wis. 254.
6 McCord v. High, 24 Iowa, 336, 347. See, further, page 629 of this volume.
Ellicott v. Latnbourne, 2 Md. 131 ; People v. Townsend, 3 Hill, 479; Wilson v.
Hinsley, 13 Md. 64.
1 Thus, undtT an allegation that the defendant had diverted the water, and pre-
vented it from flowing to the plaintiff's mill, evidence that the trough by which the
defendant conveyed the water from the flume to his mill was leaky, and wasted the
water; and that his water-wheel was out of repair, and required more water than it
would if in order, is admissible. Wier v. Covell, 29 Conn. 197.
So, under an allegation that plaintiff's house, had been rendered unhealthy and
incommodious by defendant's horses constantly standing by his door, evidence of the
bad smells from the staling of the horses is admissible. Benjamin v. Storr, L. R. 9
Com. PI. 400, 8. c. 10 Moak's Ecg. R. 231.
As to mode of proving injury by noise, see Gaunt v. Fynney, L. R. 8 Ch. App. 8,
B. o. 4 Moak's Eng. 718; Wesson v. Washburn Iron Co. 13 Allen, 95: by obstruction
of light, see City of London Brewery Co. v. Tennant, L. R. 9 Ch. App. 212, 8. c. 8
Moak's Eng. 827 ; Aynsley v. Glover, L. R. 18 Eq. Cas. 544, 8. c. 11 Moak's Eng. 521.
Whether the annoyance may be proved by evidence of declarations made by per-
sons when suffering therefrom, compare Kearney v. Farrell, 28 Conn. 317; Wesson
V. Washburn Iron Co. 13 Allen, 95.
8 Emerson v. Lowell Gas-Light Co. 6 Allen, 146; Tyler v. Mather, 9 Gray, 177;
Pettingill v. Porter, 3 Allen, 349, 8. p. Concord R. R. Co. v. Greely, 3 Fost. 237.
9 Hawks v. Inhabitants of Charlemont, 110 Mass. 110.
10 Clinton v. Howard, 42 Conn. 294 ; Concord R. R. Co. v. Greely, 23 N. H. 237;
page 310 of this volume.
11 Clark v. Willett, 35 Cal. 534.
18 Emerson v. Lowell Gas-Li^ht Co. 6 Allen, 146. See, also, on this subject, pages
586, 591 of this volume. Benkard v. Babcock, 2 Robt. 175, s. c. 17 Abb. Pr. 421;
27 How. Pr. 391.
1J P:igell7 of thia volume; Luning v. State, 1 ChandL (Wis.) 178; Hunt 7
Lowell Gas-Light Co. 8 Allen, 169, 172.
ACTIONS FOR NUISANCE. 643
8. Notice and request to abate.'] As against the mere con-
tinner of a private nuisance created by a previous owner before
conveyance to defendant, it must be shown that before the com-
mencement of the action he had notice or knowledge of the
existence of the nuisance ; but a request to abate it need not be
proved. 1 If no question arises on the terms of the notice, oral
evidence is competent to prove notice given in writing, without
producing or accounting for the writing.*
9. Damages.] If unlawful injury to plaintiff's private prop-
erty be shown, special damage need not be shown. 3 Otherwise, if
it be to his enjoyment of a public or common right. In either
case, evidence of special damage not alleged may be excluded. 4
Evidence of rental value is competent under allegations that the
injury interfered with the letting. 5
The rules as to the mode of proving damages have been
already stated. 6
The fact that part of the injury results from the acts of one
not a defendant, is available to defendant on the question of dam-
ages, 7 but not otherwise. 8
10. Former adjudication.] A criminal conviction of nuisance,
founded on the same facts, 9 or a judgment in an action of tres-
pass for attempt to abate the same nuisance, 10 is competent against
the same party if both actions involve the same issues.
11. Defendant's right or title.] If the defendant relies upon
a prescriptive right, he must prove affirmatively its enjoyment
for a sufficient length of time. 11 In justifying under statute
1 Conhocton Stone Road v. B., N. Y. & E. R. R. Co. 5 N. Y. 573, reVg 52 Barb.
890.
2 Polly T. McCall, 37 Ala. 20, s. c. 1 Ala. Sel. Cas. 246.
8 Plumleigh v. Dawson, 6 111. 544 ; Blanchard v. Baker, 8 Me. 253 ; Chatfield v.
Wilson, 27 Vt. 670.
4 So held of private right. McTavish v. Carroll, 13 Md. 429 ; Solms v. Lias, 16
Abb. Pr. 311; Hallock v. Belcher, 42 Barb. 199. So held of public right. See
Wetmore v. Story, 22 Barb. 414, s. c. 3 Abb. Pr. 262.
6 Jutte v. Hughes, 67 N. Y. 267, rev'g 40 Super. Ct. (J, <fc S.) 126 ; and see
Cropsey v. Murphy, 1 Hilt. 126.
* Page 30, of this volume. As to opinions of witnesses, see also Fish v. Dodge, 4
Den. 311, 318; Sinclair v. Rorish, 14 Ind. 450; contra, Rochester fe Syracuse R. R.
Co. v. Budlong, 10 How. Pr. 289, s. o. 12 N. Y. Leg. Obs. 46; Vaudine v. Burpee, 13
Mete. 288 ; Sedgw. on D. 591.
7 Wallace v. Drew, 59 Barb. 413.
8 Wheeler v. City of Worcester, 10 Allen, 591.
* Peck v. Elder, 3 Sandf. 126; compare Queen v. Fairie, 8 E. fc B. 485, s. c. 8
Cox Cr. C. 66.
10 Bowyer v. Schofield, 1 Abb. Ct. App. Dec. 177. For the rules applicable to a
former recovery between the same parties, for nuisance, see Richardson v. City of
Boston, 19 How. U. S. 263; The Same v. The Same, 24 Id. 188; Fowle v. New
Haven A N. Co. 107 Mass. 852 ; Vooght v. Winch, 2 B. <fc A. 662 ; Feversham
v. Emerson, 11 Ex. 391 ; Plate v. N. Y. Central R. R. Co. 37 N. Y. 472; Avon
Manuf. Co. v. Andrews, 30 Conn. 476 ; Connery v. Brooke, 73 Penn. St. 80; Potter
V. Burden, 38 Ala. 651.
11 Neale v. Seeley, 47 Barb. 314.
644 ACTIONS FOB NUISANCE.
authority, the burden is on defendant to show that the statute
power or duty could not reasonably well be executed without
causing the annoyance complained of. 1
12. Reasonable care, etc.'] A nuisance being shown, it is not
competent for defendant, unless exemplary damages are claimed,
to show that the work or structure constituting it was made in
the best and most careful manner, 2 nor that all usual precautions
were taken, 3 nor that others were not injured. 4 "Where reason-
able use is the measure of the right of a party, evidence of the
general usage of the country in similar cases is competent. 5
1 Hull T. Managers of Metrop. Asylnm Dist. 40 Law Times R. N. S. 497.
* 1 Sedgw. on Dam. 7 ed. 284.
* Temperance Hall Ass. v. Giles, 4 Vroom, 200. See, to the contrary, Smith r.
Fletcher, L. R. 9 Ex. 64, s. o. 8 Moak's Eng. 610, re^g 3 Moats Eng. 422.
* Temperance Hall Ass. v. Giles (above;.
1 Duroont v. Kellogg, 29 Mich. 420, s. o. 18 Am. R. 102 ; compare Timm r.
Bear, 29 Wie. 254.
CHAPTER XXXIX.
ACTIONS FOB INJURIES BY ANIMALS.
1. Wild beasts. 2. Dangerous character. 3. Notice to keeper.
1. Wild beasts."] Injury to a person or personal property by a
wild beast of a nature fierce and dangerous, 1 or any injury by any
animal trespassing, 2 is sufficient evidence of negligence.
2. Dangerous character.'] In case of an animal not trespass-
ing, dangerous character, and notice of it to defendant, must be
shown. 3 A single act, though not resulting in injury, 4 and
though not known to defendant, 6 may go to the jury as evidence
of vicious character. If vicious character and notice are proved,
negligence need not be. 6 If negligence is, a vicious act need not. 7
3. Notice.'] An owner is presumed to know the generic na-
ture of the animal ; but to charge him for injury resulting from
peculiar characteristics of a particular domestic animal, some
notice of them must be shown. 8 It is sufficient if he has seen or
heard enough to convince a man of ordinary prudence of its dis-
position to commit injuries substantially like those complained
of. 9 Proof of savage and ferocious nature proves notice. 1 " Evi-
dence that he had chained it and warned persons of it, 11 or pro-
cured or kept it to guard his premises, 12 is competent to show
notice. General bad reputation is not evidence of bad character,
but may be admitted with other circumstances tending to show
notice. 1 * Notice need not be personal. Notice to one to whom
he had delegated the management of his business, or the cace and
control of the animal, and who was for this purpose put in de-
fendant's place, is sufficient. 14 Evidence of notice, even if not
necessary, is competent in aggravation. So is reckless conduct. 15
I Scribner v. Kelly, 38 Barb. 14 ; Spaulding v. Oakes, 42 Yt. 343.
* Shearm. <fe R. 186. This rule is subject to much modification by statute.
8 Van Leuveu v. Lyke, 1 N. Y. 615, affi'g 4 Den. 127. Previous injury to others
need not. Reider v. White, 65 N. Y. 54 ; Worth v. Gilling, L. R. 2 C. P. 1. The
statutes sometimes dispense with notice. 61 N. H. 110; 63 Penn. St. 346; 49 Barb. 41.
4 Cockerham v. Nixon, 11 Ired. L. 270.
8 See Whittier v. Franklin, 46 N. H. 26.
9 Kelly v. Tilton, 2 Abb. Ct. App. Dec. 495. And defendant's care is no bar. Id.
Bat see 38 Wis. 800, s. o. 20 Am. R. 6. Nor is contributory negligence, unless amount-
ing to voluntary bringing the injury upon himself. Lynch v. McNally, 73 N. Y. 347.
7 Dickson v. McCoy, 89 N. Y. 400.
8 Whart. Neg. 922; Shearm. & R. 188, and cases cited.
Shearm. & R. 189, 190, 191. Applebee v. Percy, L. R. 9 Com. PL 647.
10 Muller v. McKesson, 73 N. Y. 195, 199.
II Reider v. White, 65 N. Y. 64; Kittredge v. Elliott, 16 N. H. 80.
19 Worth v. Gilling, L. R. 2 C. P. 1 ; see Blackman v. Simmons, 3 Carr. 4 P. 138.
13 Keenan v. Ilayden, 89 Wis. 658.
14 Applebee v. Percy (above) ; Baldwin v. Casella, L. R. 7 Ex. 325, B. c. 3 Moak, 434,
Swift v. Applebone, 23 Mich. 252.
[645]
A^Uur,
I
CHAPTEB XL.
ACTIONS FOR ASSAULT AND BATTERY.
1. Assault, by whom committed. 9. Requisite cogency of evidence.
2. By servant, Ac. 10. The injury, and damages.
8. Manner and circumstances. 11. Defense: Justification.
4. Plaintiff the aggressor. 12. Plaintiff the aggressor.
6. Intent or motive. 13. Provocation.
6. The res gestce of an assault. 14. Character.
7. Criminal conviction. 15. Previous punishment.
8. Admissions and declarations.
1. Assault, Ity whom committed.'] A -witness may state his
belief as to the identity of a person lie saw, although unable to
speak positively, 1 if -his belief be in the nature of an impression
of the fact, not an inference or opinion. 2 Evidence of declara-
tions made by the plaintiff is competent for the purpose of show-
ing who did the act, if made as part of the res gestce, within the
rule below stated ; 3 otherwise not, 4 even though there ' was no
witness of the act, 5 or though the declarations were dying dec-
larations. 6
2. By servant, <&c.~\ To charge defendants for their servant's
assault, it is enough to show that they gave the servant authority,
or made it his duty, to act in respect to the business he was en-
gaged in when the wrong was committed, and that the act com-
plained of was done in the course of his employment ; 7 and if
this be shown, it is not material that the servant's act was will-
ful. 8 Without such evidence, it is not enough to show approval
by their general agent. 9 If it be shown that it was necessary for
the defendants to have a person at a certain place to act in case
of emergency, for instance, the station-master of a railroad com-
pany, the fact that he was there, acting in a matter which the
company may perform, f or instance, in ordering the arrest of
t .
1 Beverly v. Williams, 4 Dev. <fe B. (N. C.) L. 236.
* 2 Abb. New Cas. 232, note.
8 King v. Foster, 6 Carr. <fe P. 325 ; paragraph 6.
4 Morrissey v. Ingraham, 111 Mass. 63 ; People v. Graham, 21 Cal. 261; Denton
v. State, 1 Swan (Tenn.), 279.
6 State v. Davidson, 30 Vt. 377, 383.
6 Spatz v. Lyons, 65 Barb. 476.
7 Rounds v. Del. Lack. & W. R. R. Co. 64 N. T. 129, 136.
8 Mott v. Consumers' Ice Co. 73 N. Y. 543 ; Rounds y. Del. Lack. & W. R. It. Co.
(above). As to the allegation of malice, see Shea v. Sixth Ave. R. R. Co. 62 N. Y.
180, affi'g 5 Daly, 221.
Vanderbilt v. Richmond Turnpike Co. 2 N. Y. 479 ; 2 GreenL Ev. 13th ed. 56^
68.
[6461
ACTIOKS FOR ASSAULT AND BATTERY. C47
one charged with penal offense against the company, as if he
had authority, is prima facie evidence that he had authority,
and the presumption must be overthrown by the company. 1 But
if the act was one which the company had no power to perform,
such as a charge of what was no offense, the presumption does
not apply. 2
In the absence of direct evidence of authority to interfere,
slight evidence that the authority was exclusively in other serv-
ants is sufficient to repel the inference of authority in the one
who did the act. 3
3. Manner and circumstances.'] If defendant admits the in-
jury to have been inflicted by him, it is presumed to have been
done wrongfully, and the burden is on him to show his justifica-
tion or excuse. 4
If the wrong was the use of excessive force in an act other-
wise lawful, the burden of proof is upon plaintiff to show that
the force was excessive. 5
Witnesses may describe the manner, and testify to the tone of
voice, language, &c. ; 8 but the f eeling or expectation aroused in
the witness is not generally competent on direct examination, un-
less as explanatory of his own conduct testified to by him. 7 Evi-
dence of declarations of the injured person as to the manner in
which, or the means with which, the injury was done, is not com-
petent, unless the declarations were made as part of the res gestm*
It makes no difference that they were made to a medical attend-
ant, 9 or as dying declarations. 10 The opinion of an expert as to
the manner or mode of the assault, or the resulting wounds, is
competent, 11 but only so far as the question requires professional
knowledge or special skill. 12
4. Plaintiff the aggressor.] If defendant has pleaded that
plaintiff was the aggressor, without setting up a counter-claim,
and without requiring a reply, plaintiff may prove a justification
though not alleged. 13 To show who was the aggressor, previous
difficulties and ill will may be proved, in connection with threats. 14
1 Moore v. Metropolitan Ry. Co. L. R. 8 Q. B. 36, s. c. 4 Moak's Eng. 203. Com-
pare Priest v. Hudson River R. R. Co. 65 N. Y. 689.
3 Poulton v. London, <fec. Ry. Co. L. R. 2 Q. B. 534, and cases cited. Compare
p. 44 of this vol.
3 Towanda Coal Co. v. Heeman, 86 Penn. St. 418.
4 Harvey v. Dunlop, Hill & D. Supp. 193.
6 Henry v. Lowell, 16 Barb. 268.
8 Kerner v. State, 18 Geo. 194, 218; but, according to Messner v. People (45 N.
Y. 1), cannot express on opinion of the passions expressed in outcries. See p. 699
of this vol.
1 Keener v. State, 18 Geo. 194, 218.
8 Collins v. Waters, 54 111. 485.
* Collins v. Waters (above).
10 Denton v. State, 1 Swan (Tenn.), 279.
11 Fort v. Brown, 46 Barb. 866; and see pages 694 and 699 of this vol.
11 Cook v. State, 24 N. J. L. ( t Znhr.) 843, 852 ; Cooper v. State, 23 Tex. 331.
13 N. Y. Code Civ. Pro 615, 622, c >mpaml with Brown v. Bennett, 5 Cow. 181 ;
Collier v. Moulton, 7 Johns. 109 ; \Vilmarth v. Babcock, 2 Hill, 194.
'* Murphy v. Dart, 42 How. Pr. 31 ; Jewctt v. Banning, 21 N. Y. 27, affig 23
648 ACTIONS FOR ASSAULT AND BATTERY.
5. Intent or motive.] As a general rule, plaintiff must be
prepared with evidence either that the intention was unlawful, or
that defendant was in fault. 1 But the unlawfulness may have
been unknown to defendant. 8 Declarations by the one who com-
mitted the assault, if forming part of the res gesto&, are competent
for this purpose. 8 So are his previous threats, 4 but subsequent
threats are not competent. 5
6. The res gestce of an assault."] In the case of bodily injury
the res gestce include the statements of the cause of injury made
immediately upon and in view of its occurrence, and the suffer-
er's expressions of feeling made while the consequences were
subsisting and in progress. Jt is not essential that the main fact
to which they relate should be instantly contemporaneous with
the declarations. It is enough that the two were so intimate-
ly connected in point of time and by the circumstances of mental
excitement or bodily suffering, that it cannot be presumed that
the speaker had time to contrive or devise anything for his own
advantage. 6
On the other hand, if there has been lapse of time, 7 or change
of place and of interlocutors, 8 and particularly if some other inci-
dent has intervened, 9 subsequent declarations, though connected
in subject and apparently following as the effect upon its cause,
are not competent, except as against the declarant.
Acts and declarations of bystanders called forth by the prin-
cipal fact in evidence, are competent, upon the same principle and
within the same limits. 10
Barb. 13. As to the competency of evidence of previous exhibitions of strength by
the wrong-doer, see Darling v. Westmoreland, 52 N. H. 401, s. c. 13 Am. R. 65, and
cases cited.
1 BREESE, J., Paxton v. Boyer, 67 HI. 132, s. c. 16 Am. R. 615.
8 See, for instance, Elder v. Morrison, 10 Wend. 128.
8 United States v. Omeara, 1 Cranch C. Ct. 165.
4 See pp. 630, 535 of this vol.
6 Newman v. Goddard, 3 Hun, 70; Handy v. Johnson, 6 Md. 450, 463.
6 As, for instance, what a wife said, immediately after a battery and wounding of
her. Thompson v. Trevanion, Skinner, 402. Or that a man found injured and
groaning in the street, said he had just been run over by a cab which the witness
saw driving rapidly away. King v. Foster, 6 Carr. & P. 325. Or that a man return-
ing to his bed-room at night, said he had fallen down ptairs when alone. Ins. Co. v.
Mosley, 8 Wall. 405. Or that a wife who ran from her room in the night wounded
and bleeding, said, on taking refuge in nnother room, that her husband had stabbed
her. Comm. V. Jl'Pike, 3 Gush. 181 ; hherley v. Billings, 8 Bush, 147, s. c. 8 Am. R.
451 ; Castner v. Siiker, 83 N. J. L. 95. Otherwise of conversation after the combat
was over. Halloway v. Halloway, 1 Monr. 132. For other illustrations, see Stone
v. Segur, 11 Allen, 568; Norwich Transportation Co. v. Flint, 13 Wall. 3, affi'g 7
Blatchf. 536.
7 As where a night has intervened ; Spatz v. Lyons, 65 Barb. 476; or some hours
of the day-time. Rosenbaum v. The State, 33 Ala. 354, 361.
8 Aa where after an assault, and after obtaining a warrant, plaintiff met witness
to whom the declarations were made at a different spot from that of assault, Cberry
T. McCall, 23 Geo. 193. Or where afi.er the assault the witness followed defendant
from the room, and reproached him out of doors, where the declarations were made.
Handy v. Johnson, 5 Md. 450, 463.
9 See pages 538, 589 of this vol.
10 Norwich Transportation Co. v. Flint, 13 WalL** affi'g V Blatchf. 536.
5
**
ACTIONS FOR ASSAULT AND BATTERY. 649
But in admitting declarations nnder the rule of the res gresta,
narratives of past facts are excluded. 1
7. Criminal conviction.'] The conviction of defendant on a
criminal prosecution for the same assault, if founded on a plea of
guilty, is competent to show guilt. 2 So is such a plea, with only
the indictment to which it was pleaded. 3 But a conviction not
founded on such a plea is not competent. 4
8. Admissions and declarations.'] Defendant's silence, when
charged with the wrong, is competent against him. 5 The fact
that declarations were dying declarations is not ground of admit-
ting them in a civil action.
The rule as to admitting the declarations and admissions of one
wrong-doer, as evidence against another, has already been stated. 7
When evidence has been given that a party to the action once
attributed the injury to another cause than that to which he has
testified, it is competent to show, in corroboration of his testi-
mony, that no such other cause ever existed. 8
9. Requisite cogency of evidenced] The weight of American
authority is that plaintiff is not required to prove the charge
beyond a reasonable doubt. 9 A seaman suing his officer must
make out a clear case, by credible and consistent proof. 10
10. The injury and damages.'] The opinions of witnesses as
to the extent of the injury are competent, within limits already
stated. 11 So, also, of the declarations of the plaintiff as to suffer-
ing. 13
If exemplary damages are claimed, all the circumstances im-
mediately connected with the transaction, tending to exhibit or
explain the motive of the defendant, are admissible in evidence. 13
Special damages should be alleged in order to be proved, and
1 This is the New York rule. More latitude is given in some other jurisdictions,
upon the principle that what characterizes the act with motive and purpose, should
not be excluded merely because it states that which is past.
8 2 Whart. Ev. 783 ; Green v. Bedell, 48 N. H. 546.
8 Corwin v. Walton, 18 Mo. 71 ; Birchard v. Booth, 4 Wig. 67.
4 Rose. N. P. 221. It may sometimes be admissible as evidence of reputation.
Id. 221, citing Petrie v. Nuttall, 11 Exch. 669. For the mode of proving the con-
viction, see Chapters XXIX and XL1.
6 Jewett v. Banning, 21 N. Y. 27, affi'g 23 Barb. 13; Kelly v. People, 55 N. Y.
665. Even though it appear that on a previous occasion he denied it. Jewett v.
Banning (above).
' Spatz v. Lyons, 65 Barb. 476.
7 Page 190 of this vol.
' 8 Melhuish v. Collier, 15 Q. B. 878; 8. p. Wrege v. Westcott, 30 N. J. L. 212.
9 Pago 495 of this voL ; Elliott v. Van Buren, 33 Mich. 49, s. c. 20 ADO. R. 668.
Whether, as held in this case, a preponderance of evidence is sufficient, see note on
p. 495 of this vol.
10 Benton v. Whitney, Crabbe, 417.
11 Page 60i> of this vol. ; Anthony y. Smith, 4 Bosw. C03.
" Page 599 of this vol.; Elliott v. Van Buren, 33 Mich. 49; Towle T. Blake, 48
N. II. 92; Earl v. Tupper, 45 Vt. 275 ; Aveson v. Kinnaird, 6 East, 191, approved
in 8 Wall. 406. As to mental suffering, compare Ford v. Jones. 62 Barb. 484.
" Voltz v. Blackmar, 64 N. Y. 440; Sampson v. Henry, 11 Pick. 879.
650 ACTIONS FOR ASSAULT AND BATTERY.
are not admitted by failure to deny. 1 Circumstances of aggra-
vation known to defendant, and indicating malice, such as plaint-
iff's illness at the time, are competent for the purpose of ag-
gravating the damages, though not alleged as special damages. 8
11. Defense: Justification.] Justification must be specially
pleaded. 8 In justifying under a reasonable regulation of a corpo-
ration who employed defendant, it is not necessary for the defend-
ant to give positive proof that the regulation was made by the
directors, or the general superintendent. Proof of the existence
of the regulation is enough in the first instance. 4 The mode of
proving possession of property, 5 and of justifying under legal
process, 6 has already been stated. Plaintiffs threats, while resist-
ing the execution of process, are competent against him. 7
12. Plaintiff the aggressor.'] The fact that plaintiff was the
aggressor must be proved by the defendant if relied on by him. 8
The fact that the assault was committed in defending himself or
his property, or that of others intrusted to him, against plaintiff as
a trespasser seeking forcible possession, is relevant, both -on the
question of intent to do bodily harm, and on the question of the
degree of force justifiable. 9
13. Provocation.'] Defendant may show, in mitigation or bar
of exemplary damages, but not in bar of the action, 10 that the
plaintiff provoked the assault ; u but not unless the provocation
was so recent, or continued to so recent a time, 12 or had so re-
cently come to defendant's knowledge, 18 as to induce the pre-
sumption that the violence was committed under the immediate
influence of the passion thus wrongfully excited. 14 The fact that
plaintiff and defendant fought by agreement, or mutual consent,
is not a bar to the action, but may be proved in mitigation. 15 For
the same purpose defendant may show that he acted under an
honest belief that he was justified in doing the act complained of,
or under the impulse of sudden passion or alarm excited by the
conduct of the plaintiff. 18
1 Molony v. Dows, 15 How. Pr. 261, and cases cited.
* Sampson v. Henry, 11 Pick. 379.
8 Coats v. Darby, 2 N. Y. 617; Poland v. Johnson, 16 Abb. Pr. 235.
4 Vedder v. Fellows, 20 N. Y. 126.
6 Pages 623 and 635 of this vol.
6 Page 631.
7 Fulton v. Staats, 41 N. Y. 498.
8 Stevens v. Lloyd, 1 Cranch C. Ct. 124.
9 Filkins v. People, <fec. of N. Y. 69 N. Y. 101, reVg 1 Buff. Super. Ct. (Sheldon),
605.
10 CusHfaan v. Waddell, Baldw. 58 ; Prentiss v. Shaw, 56 Me. 427.
11 Voltz v. Blackmar, 64 N. Y. 440.
" Stetlar v. Nellis, 60 Barb. 524 ; 42 How. Pr. 163.
18 Willis v. Forrest, 2 Duer, 310. Compare Vedder v. Fellows, 20 N. Y. 126.
14 Corning v. Corning, 6 N. Y. 97.
15 Adams v. Waggoner, 33 Ind. 531, s. c. 5 Am. R. 230.
11 Voltz v. Blackmar, 64 N. Y. 440.
ACTIONS FOR ASSAULT AND BATTERY. 651
14. Character.'] Evidence as to the plaintiff's character is not
admissible either in aggravation 1 or in mitigation 2 of damages,
unless in cases of indecent assault or attempt to ravish. 3
15. Previous punishment.] The criminal conviction and pun-
ishment of defendant cannot be proved to mitigate damages. 4
1 Givens v. Bradley, 3 Bibb, 192, 195.
* Corning v. Corning, 6 N. Y. 97. So of his intemperance, unless that be shown
to have contributed to hia injury. 1 Whart. Ev. 62, 47, citing Drohn v. Brewer,
77 III. 280.
8 Grossman v. Bradley, 53 Barb. 125 : Ford v. Jones, 62 Barb. 484.
4 Cook v. Ellis, 6 Hill, 466 ; Hoadley v. Watson, 45 Vt. 289, s. c. 12 Am. R. 197.
Contra, Smithwick v. Ward, 7 Jonea (N. C.) L. 64.
CHAPTEE XLI.
ACTIONS FOR MALICIOUS PROSECUTION.
1. Grounds of action. 8. Termination of the prosecution.
2. The prosecution. . 9. Damages.
8. Defendant's agency. 10. Defense; Truth of the charge.
4. Several co-defendants. 11. Probable cause.
6. . Plaintiffs innocence. 12. Freedom from malice.
6. Want of probable cause. 13. Advice of counsel.
7. Malice.
1. Grounds of Action. 1 ] The essential facts are that defend-
ant maliciously, 8 and also without reasonable or probable cause, 3
prosecuted or instigated 4 an unfounded 5 proceeding against
plaintiff, to his injury, and which terminated in his favor. 6
2. The prosecution.'] Before malice or want of cause is shown,
plaintiff should prove the prosecution complained of-; and for
this purpose the record, if any, of the proceeding is competent. 7
The mode of proving a record has been already stated. 8 If the
recor^ contain improper matter, it is not to be excluded on that
f round, but defendant may ask the court to instruct the jury to
isregard such matter. 9 Where the parts for which defendant
may be responsible are separable, as in case of a witness sued
for maliciously promoting an unfounded charge, or a complain-
ant who made one of several affidavits before a magistrate, the
other parts of the proceedings are not evidence in favor of de-
fendant. 10 An indictment, if the final record has not been made
up, may be proved by producing the original and calling the
clerk to prove that it is a record of his court. 11 A variance be-
tween the allegation and the proof of the former proceeding is
1 See, generally, Wheeler v. Nesbit, 24 How. U. S. 544. For the distinction, in
pleading and evidence, between an action for illegal arrest or false imprisonment, and
one for malicious prosecution, see Burns v. Erben, 40 N. Y. 463, affi'g 1 Robt. 655.
As to defamation, see Sheldon v. Carpenter, 4 N. Y. 579; Perkins v. Mitchell, 31
Barb. 461.
8 Blunt v. Little, 8 Mas. 102. Equally in the c<ise of a civil as a criminal prose-
cution. Stewart v. Sonneborn, 98 U. S. (8 Otto), 187.
8 See paragraphs 6, 11.
4 See Miller v. Milligan, 48 Barb. 30 ; Thompson v. Lumley, 1 Abb. New Cas. 254.
B Paragraph 6.
* Moulfon v. Beecher, 1 Abb. New Cas. 193, and cases cited. Or, that such ter-
mination was wrongfully prevented by plaintiff. Burt v. Place, 4 Wend. 591.
1 Granger v. Warrington, 8 111. (3 Gilm.) 299.
8 See Chapter on JUDGMENTS.
' Grander v. Warrington (above).
10 See Burt v. Place, 4 Wend. 591 ; Hankinson v. Giles, 17 Abb. Pr, 251, s. o. 29
How. Pr. 478.
11 Watta v. Clegg, 48 Ala. N. S. 561. Compare People v. Poyllon, 2 Cai. 202.
[652]
ACTIONS FOR MALICIOUS PROSECUTION. 653
not to be regarded unless raising a strong probability that the
proceeding is not the same. 1 To show how far the prosecution
was pressed by defendant, plaintiff may prove acts or documents
proceeding from third persons, though wholly unconnected with
defendant, to have been the occasion of its termination, and for
this purpose a writing for instance, a letter to the magistrate
may be proved by parol.
3. Defendants agency.] Slight evidence that defendant was
the instigator is sufficient to go to the jury. 2 If the prosecution
was instituted by defendants' officer or agent, plaintiff should
show that it was an act within the general or special authority of
the agent or officer. A general authority to prosecute may be
inferred from the nature of the employment, and the usual course
of business. 3
4. Several co-defendants.] Separate acts and declarations of
one defendant ought not to be admitted in evidence, to charge
another, not present, unless there is independent proof of a con-
spiracy. 4
5. Plaintiff"' 's innocence.'] There must be other evidence of
the unfounded nature of the charge, than the plaintiff's acquittal. 5
For this purpose a judgment in another civil action between the
parties, determining the very point in issue, such as replevin for
a thing charged to have been stolen, is competent. 6
6. Want of probable cause.] The question of probable cause
depends on evidence of the facts appearing to defendant, 7 or
which he ought to have ascertained, at the time he acted ; and
want of probable cause cannot be shown by facts not appearing
till subsequently. 9 Slighter evidence will suffice to prove want
of probable cause than is necessary to prove an affirmative ; 10 but
it must be substantially shown. 11 It can not be inferred from evi-
dence even of express malice, 12 nor from the mere fact of the un-
successful termination of the proceeding. 13
1 Leidig v. Rawson, 2 111. 2*72 ; and see Mills v. McCoy, 4 Cow. 406.
Miller v. Milligan, 48 Barb. 30.
* Bank of New South Wales v. Owston, 40 L. T. R. N. S. 600; Walker v. East,
era Counties Ry. Co. L. R. 6 C. P. 640 ; pages 44, 647 of this vol.
4 Carpenter v. Shelden, 6 Sandf. 77 ; Snydacker v. Brosse, 61 111. 857. Compare
page 190 of this vol.
4 Skidmore v. Bricker, 77 111. 164. The prosecution complained of being an
arrest for assault, if plaintiff gives evidence that defendant was the aggressor, defend-
ant may show the nature of the difficulty, and plaintiff's threats. Carpenter v. Hal-
gey, 57 N. Y. 657, affi'g, it seems, 60 Barb. 45.
* Ewing v. Sandford, 21 Ala. 157, 165. As to evidence of compounding the fel-
ony prosecuted for, see Pagan v. Knox, 1 Abb New. Cas. 246, e. o. 66 N.Y. 625 ; Van
Vorhes v. Leonard, 1 Supm. Ct. (T. A C.) 148.
7 Stewart v. Sonneborn, 98 U. S. (8 Otto), 187.
8 Grinnell v. Stewart, 32 Barb. 544, B. c. 'l2 Abb. Pr. 220, 20 How. Pr. 478.
9 Stewart v. Sonneborn (above).
10 Haupt v. Pohlmann, 1 Robt. 121, 8. c. 16 Abb. Pr. 301.
11 Gorton v. De Angelis, 6 Wend. 418 ; Murray v. Long, 1 Id. 140.
" Stewart v. Sonneborn, 98 U. S. (8 Otto), 187, and cases cited ; Besson v. South-
rd, 10 N. Y. 236.
IS Stewart v. Sonneborn (above) ; Gordon v. Upham, 4 E. D. Smith, 9 ; Baboo
654: ACTIONS FOR MALICIOUS PROSECUTION.
If the prosecution was a criminal charge, 80 that character
would have been relevant to the issue, plaintiff's good character,
with defendant's knowledge of it, are competent as tending to
show want of probable cause. 1
7. Malice.'} Actual malice must be shown, 2 but it is not nec-
essary to show angry feeling or vindictive motive. 8 It may he
shown by circumstances not alleged. 4 It may be inferred by the
jury, 5 but is not presumed by the law, 6 from want of probable
cause. It cannot be proved by the mere fact of the unsuccessful
termination of the prosecution, 7 nor from mere omission to prose-
cute ; but a voluntary discontinuance is prima facie sufficient
evidence of it. 8 It may be inferred from an intention to use
crimiDal process as a means of extorting payment of a debt. 9
8. Termination of the proceeding.'] A record showing ac-
quittal 10 is sufficient evidence of termination favorable to plaint-
iff. 11 If a formal record has not been made up, the acquittal may
be proved by reading the minute entry, with testimony of the
clerk to its being a record of his court."
It is not enough to show a compromise, 13 nor that the prose-
cuting officer refused to proceed to trial. 14 Evidence that the
jury hesitated by reason of doubt as to guilt is not competent. 15
9. Damages.'] The process and proceedings thereon by which
the injury to plaintiff and his property and repute were done, are
competent for the purpose of showing the damages. 16 The offi-
cer's return, that the process was not levied, is not conclusive
against plaintiff. 17 Special damages cannot be proved unless
Gnnesh Dntt v. Mugneeram Chowdry, 11 Beng. L. R. 321. Compare Palmer v.
Avery, 41 Barb. 290 ; Scott v. Simpson, 1 Sandf. 601 ; Vanderbilt v. Mathis, 5 Duer,
804; Wlritfield v. Westbrook, 40 Miss. 311.
1 Blizzard v. Hays, 46 Ind. 166, s. c. 15 Am. R. 291 ; Israel v. Brooks, 23 111. 575.
2 Bulkeley v. Smith, 2 Duer, 261, s. c. 11 S. Y. Leg. Obs. 300 ; and see Farnam
V. Feeley, 56 N. Y. 451.
3 (BROXSON, J.) Burhans v. Sanford, 19 "Wend. 417.
4 Solis v. Manning, 37 How. Pr. 13.
6 Blunt v. Little, 3 Mas. 102, and cases cited.
6 Stewart v. Sonneborn, 98 U. S. (8 Otto), 187, and cases cited; Jennings v. David-
eon, 13 Hun, 393.
7 Stewart v. Sonneborn, 98 U. S. (8 Otto), 187.
8 Burhans v. Sanford, 19 Wend. 417, and cases cited ; Garrison T. Pearce, 3 E. D.
Smith, 255.
Grinnell v. Stewart, 32 Barb. 544, s. c. 12 Abb. Pr. 220, 20 How. Pr. 478.
Arrest in an action on one side of an account only, by one having knowledge of the
other side, is presumptive evidence of malice. (SHAW, Ch. J.) Briggs v. Richmond,
10 Pick. 391,395.
10 Mills v. McCoy, 4 Cow. 406.
11 That it is conclusive, see Steph. Ev. 48, citing Leggatt v. Tollervey, 14 Ex. 301;
and see Caddy v. Barlow, 1 Man. & Ry. 277.
13 Watts v. Clegg, 48 Ala. N. S. 561.
18 McCormick v. Sisson, 7 Cow. 715.
14 Thomason v. Demotte, 9 Abb. Pr. 242, s. c. 18 How. Pr. 629.
15 Scott v. Sheelor, 28 Gratt. 891.
16 Donnell v. Jones, 13 Ala. 490; IT Id. 689.
" Mott v. Smith, 2 Cranch C. Ct. 33.
ACTIONS FOR MALICIOUS PROSECUTION". 655
alleged. 1 Opinions of witnesses are not competent directly to
the amount of damage to credit or business standing. 2 Evidence
of defendant's wealth is competent to enhance damages. 8
10. Defense; Truth of the charge^ Truth is a justification
without denial of malice. 4
11. Probable cause.] Probable cause may be shown under a
general denial. 5 Belief of probable cause does not alone amount
to probable cause ; reasonable grounds for belief must be shown. 6
The fact that the prosecution terminated in convicting plaintiif,
is conclusive evidence of probable cause, and is only rebutted by
evidence that his conviction was fraudulently procured by de-
fendant by means which prevented plaintiff from setting up his
defense. 7 A decision or order against him pendente lite is com-
petent, 8 but not conclusive. 9 Evidence that defendant acted in
good faith is competent, but not alone enough to show probable
cause. 10 Plaintiff's bad character is not primarily competent as
evidence of probable cause, 11 though it may be shown, if plaintiff
has given evidence to the contrary. 13 It may also be shown in
mitigation of damages. 13
12. Freedom from malice.'] To disprove malice in making a
criminal charge, defendant may be asked, as a witness in his own
behalf, whether, when he made the charge, he believed that
plaintiff had been guilty of the offense. 14 The declarations of the
defendant, made as part of the res ycstts, of an act in the proceed-
ings alleged to be malicious, are competent in his own favor to
negative malice. 15 But the declarations of his agent or attorney,
unless brought home to him, are not. 16
13. Advice of counsel.] The fact that defendant acted under
advice of counsel is relevant, both to show probable cause 17 and
1 Strang v. Whitehead, 12 Wend. 64 ; Vanderslice v. Newton, 4 N. Y. 130. Com-
pare L.iwrence v. Hagerman, 56 111. 68, s. c. 8 Am. R. 674.
4 Donnell v. Jones, 13 Ala. 490. Compare p. 616 of this vol.
3 Whitfield v. Westbrook, 40 Miss. 311.
4 Bank of British North America v. Strong, L. R. 1 App. Cas. 307, 317, s. o. 16
Moak'a Eng. 24, 33.
8 Simpson v. Me Arthur, 16 Abb. PP. 302, note.
6 Whitfield v. Westbrook, 40 Miss. 311.
7 Miller v. Deere, 2 Abb. Pr. 1 ; Burt v. Place. 4 Wend. 591.
8 Zantzinger v. Wei^htman, 2 Cranch C. Ct. 478.
. Haupt v. Pohlmann, 1 Robt. 121, s. o. 16 Abb. Pr. 301.
10 Shafer v. Loucks, 58 Barb. 426.
11 1 Whnrt. Ev. 62, 47 ; and see Hickman v. Jones, 9 "Wall 197.
12 See Paragraph 6.
13 1 Whart. (above).
14 McKown v. Hunter, 30 N. Y. 625. And see Goodman v. Stroheim, 86 Super.
Ct. (4 J. & S.) 216. That he cannot be asked if he acted without malice, see Lawyer
V. Loomis, 3 Supm. Ct. (T. <fe C.) 893. Compare p. 620 of this voL
15 Wood v. Barker, 37 Ala. CO.
"Floyd v. Hamilton, 33 Ala. 238.
11 Hall v. Suydam, 6 Barb. 63.
656 ACTIONS FOR MALICIOUS PROSECUTION.
absence of malice. 1 To render the opinion or advice competent,
it must appear that it was given before defendant proceeded, 2 and
the statement of facts was which was laid before the attorney or
counsel must be shown. 3 Defendant need not show the ability or
learning of the attorney, as this is presumed from evidence that
he was a duly licensed practitioner. 4 If defendant shows a full
and fair statement made by him to a respectable attorney, and
that he acted on his advice, strong evidence that defendant did
not believe there was probable cause is necessary. 5
1 Jackson v. Mather, 7 Cow. 301.
9 Blunt v. Little, 3 Mas. 102.
8 Id. ; and see Laird v. Taylor, 66 Barb. 139.
Home v. Sullivan, 83 111. 32.
Skidmore v. Bricker, 77 I1L 164.
OHAPTEE XLII.
ACTIONS FOR FALSE IMPRISONMENT.
1. General rules. 4. Damages.
2. Grounds of action. 5. Justification.
8. Legal process, Ac.
1. General rules.] The reader should consult the fuller
statement of the rules applicable to the mode of proof, given in
the chapters on ASSAULT AND BATTEET and MALICIOUS FBOSECU-
TION.
2. Grounds of action. 1 ] Evidence of malice is not essential; 2
want of probable cause is. 3
3. Legal process, <&c.~] The appropriate recitals in process
put in evidence by plaintiff as the instrument of his arrest, are
prima facie evidence against him, of the facts recited. 4 If plaint-
iff relies upon the failure of the judgment to support the process
against him, he must show that the process by defendant was
issued on the particular judgment ; also the defect or vacatur re-
lied on. 5 The police records, if not kept pursuant to a require-
ment of law, are not competent as evidence of the injury and
indignity to plaintiff resulting from defendant's charge against
him, unless it be shown that defendant knew that it was the cus-
tom to make such a record.'
4. Damages. ,] Matters of aggravation, 7 as distinguished from
grounds of special damages, may be proved though not pleaded.
5. Justification and mitigation.'] Under a denial of an alle-
gation that the imprisonment was without warrant, defendant
may justify under legal process. 8 A justification which is not in
issue is not admissible in bar under a denial, 9 unless the facts may
1 For the distinction between this action and malicious prosecution, see Chapter
XLI, and Sleight v. Ogle, 4 E. D. Smith, 445 ; Ackroyd v. Ackroyd. 3 Daly, 38 ; Von
Latham v. Libby, 38 Barb. 339, s. o. 17 Abb. Pr. 237 ; Brown v. Chadsey, 89 Barb. 253.
s Platt v. Miles, 1 Edna. 230.
* Id. ; Hawley v. Butler, 64 Barb. 490, disapproving a previous decision in 48
Id. 101 ; and see Carl v. Ayres, 53 N. Y. 14 ; Farnham v. Fceley, 56 N. Y. 451.
4 (WALwoRTH, Chan.) Bradstreet v. Furgeson, 23 Wend. 638, affi'g 17 Id. 181,
and cases cited; Scott v. Ely, 4 Wend. 656.
6 See Brown v. Demont, 9 Cow. 263 ; Barhydt v. Valk, 12 Wend. 145.
6 Garvey v. Wayson, 42 Md. 178, 187 ; 1 Whart. Ev. 639.
* Stanton v. Seymour, 5 McLean, 267.
8 Boynton v. Tidwell, 19 Tex. 118.
9 Brown v. Chadsey, 39 Barb. 263.
43 [657]
658 ACTIONS FOR FALSE IMPRISONMENT.
be available if offered solely in mitigation of damages. In justi
fying under process, a defendant other than the officer who exe-
cuted it need not prove its return. 1 Evidence that a party mean-
ing to influence the other's conduct, made representations or ad-
missions (even as to the nature or contents of a record) having
that effect, will estop him from showing the contrary to the
prejudice of the latter. 2
To show good faith in his conduct defendant may give in evi-
dence any communication actually made to him before he acted,
and which influenced his action ; but not so even of a record which
was not communicated to him, and to which plaintiff was neither
party nor privy. 3
1 Plummer v. Dennett, 6 Greenl. (Me.) 421.
9 Howard v. Hudson, 2 Ell. <fe B. 1; Compare McMasters v. Ins. Co. of N.
55 N. Y. 222, 227.
* Thomas v. Russell, 9 Ex. 764.
CHAPTEE XLIII.
ACTIONS FOR SLANDER OR LIBEL.
1. Order of proof. 14. Malice.
2. Inducement. 16. Action on privileged communication.
8. Plaintiff's vocation, Ac. 16. Slander of title.
4. Good repute. 17. Damages.
6. Slander. 18. Defense. Explaining the words.
6. its utterance. 19. Privileged communication.
V. Publication of libel. 20. Justification.
8. its place and time. 21. Former recovery.
9. contents. 22. Mitigation.
10. Meaning of the words. 23. Plaintiff's character,
11. Their application to the plaintiff. 24. Mode of proving character.
12. Circulation. 25. Rebuttal.
13. Falsity.
1. Order of proof.'] The usual order of proof is : 1. Plaint'
iff s vocation, if involved ; 2. Other extrinsic facts in the induce-
ment, if any are material ; 3. The utterance or publication ; 4.
Facts essential to the colloquium or innuendoes ; 5. Extrinsic
evidence of malice ; 6. Damages.
2. Inducement.'} Matter alleged by way of inducement, if
not material to the cause of action, is not in issue, and is not ad-
mitted by failure to deny, nor need it be proved if denied ; but if
material, it ia admitted or must be proved. 1 Matter of induce-
ment wholly collateral to the issue, may be proved by parol,
without producing existing record evidence. 2
3. Plaintiff's vocation, (fccJ] Plaintiffs vocation or official
character need not be proved, even though alleged, 3 if the words
are actionable apart from that ; but it may be proved, even though
not alleged, if the words directly tend to injure him in it. 4 If the
actionableness of the words depends upon injury in vocation 5
(and the vocation is in issue), plaintiff must prove that he was
in the vocation alleged 8 at the time of the publication ; 7 but evi-
1 Coleman v. Southwick, 9 Johns. 45, s. c. 6 Am. Dec. 253 ; May v. Brown, 3 B.
<t C. 122 ; Folk. Stark. 556, 625 ; Towns. 653, 385 ; Kinney v. Nash, 3 N. Y.
177.
* Pouthwick v. Stevens, 10 Johns. 443,
1 Lewis v. Walter, 3 B. & C. 138.
* Sanderson v. Caldwell, 45 N. Y. 398.
* See Miller v. David, L. R. 9 C. P. 118, s. o. 8 Moak*s Eng. 434; Tobias v. Har-
iand, 4 Wend. 637.
4 Manning v. Clement, 7 Bing. 362.
' Harris v. Burlev, 8 N. H. 216; Forward v. Adams, 7 Wend. 204. Compare
Cramer v. Riggs, 17 Id. 209.
[659]
660 ACTIONS FOR SLANDER OR LIBEL.
dence of appointment just before may be sufficient prima facie
evidence of continuance. 1
The defamatory matter itself, if it admits that defendant had
a particular official character or vocation, is prima facie evidence
for plaintiff on that point. 8 The holding an office which is not
matter of documentary appointment, may be shown by evidence
of acting in it. 3 If documentary, the original appointment should
be proved, or its absence accounted for and secondary evidence
given. 4 If the business is one for which a license is required by
law, plaintiff need not prove a license, 5 unless the imputation of
pursuing it without a license is involved in the defamation. 6
4. Good repute.'] Plaintiff need not, in the first instance, give
any evidence of his good name. 7
5. Slander.'] Although plaintiff's allegation sets forth the
words of the alleged slander (as the rules of pleading now usually
require), he need not prove the utterance of those precise words, 8
nor necessarily all of them, even in substance ; *" but he must
prove the utterance of substantially the words alleged, 10 or of a
sufficient part of them to sustain an action. 11 Substantially differ-
ent words, though imputing the same charge, are not enough; 12
1 Rose. N. P. 86.
1 Yrisarri v. Clement, 3 Bing. 432 ; 2 Whart. Ev. 1153.
8 Cannell v. Curtis, 2 Bing. N. C. 228 ; 2 Stark. Ev. 3 ed. 627 ; and see page 193
of this vol. ; Brown v. Mima, 2 M : ll's Const. (S. C.) 235.
4 Folk. Stark. 552 [41 1], 520. Otherwise, where the office 5s not material to the
cause of action.
6 Fry v. Bennett, 28 N. T. 324, affi'g 3 Bosw, 200. Compare pp. 287, 358 of this TO!.
6 See Pickford v. Gutch, 8 T. R. 305, n. ; Collins v. Carnegie, 1 Ad. & E. 695.
7 Cox v. Thomason, 2 C. <fe J. 861. Whether he may do so before it has been
impugned by defendant's evidence is disputed. For the affirmative, see Williams v.
Greenwade, 3 Dana, 432; Bennett v. Hyde, 6 Conn. 24, 27 ; King v. Waring, 5 Esp.
14. For the negative, see Cornwall v. Richardson, R. & M. 305 ; Inman v. Foster, 8
Wend. 602; Shipman v. Burrows, 1 Hall, 399, and cases cited.
8 Desmond v. Brown, 29 Iowa, 53, s.c. 4 Am. R. 194 ; Hersh v.Ringwalt, 3 Yates
(Pa.), 508. s. c. 2 Am Dec. 392. CWra, Towns. 622, 365. "There is nothing more
difficult than for a witness to recollect the exact language used by another ; and to re-
quire this would be to defeat the recoveries in actions for verbal slander, in almost every
instance." CHURCH, Ch. J., \Villiams v. Miner, 18 Conn. 464, 4*74. If the precise words
are important, and the witness, though con6dent, is not positive in his testimony, the
jury may find the words not proved. Harding v. Brooks, 5 Pick. 244, 249. See 3
Abb. New Cas. 283, n. The rules as to a witness refreshing his memory by memoranda,
have been already stated, page 320 of this vol.
9 Purple v. Ilorton, 13 Wend. 9; Nestle v. Van Slyck, 2 Hill, 282 ; Olmsted v.
Brown, 12 Barb. 657. Even though the words unproved qualify those proved. Folk.
Stark. 461, 429. Contra, Towns. 622, 365.
10 Estes v. Antrobus, 1 Mo. 197, s. c. 13 Am. Dec. 496, and n. cit. ; Bundy v. Hart,
46 Mo. 460, s. c. 2 Am. R. 625. And in the tongue or language alleged. Keenholts
V. Becker, 3 Den. 846 ; Wormouth v. Cramer, 3 Wend. 394. But a variance in this
respect,' as in others, may be cured by amendment. Lettman v. Ritz, 3 Sandf. 734.
" Hume v. Arrasmith, 1 Bibb (Ky.), 165, s. c. 4 Am. Dec. 626.
IS Wheeler v. Robb, 1 Blackf. 330, s. c. 12 Am. Dec. 245. and n. Contra, Williams
v. Miner, 1 8 Conn. 464, 474, and cases cited. The object of this rule is to give notice
to defendant, not merely of the nature of the charge, but the language in which it was
uttered. Doherty v. Brown, 10 Gray, 250.
ACTIONS FOR SLANDER OR LIBEL. 661
but substantially the same words, though varying in form of ex-
pression, are admissible. 1 If the charge alleged was a specific one,
evidence that defendant made a general charge is a variance. 2
Under the new procedure, a variance that has not misled de-
fendant to his prejudice, may be cured by amendment or disre-
garded. 8
If the pleading states only the substance (where this is allowed),
it is enough to prove the substance. 4
Words alleged, though not slanderous, may be proved by
plaintiff,to show the intent with which slanderous words, alleged
in the same count, were spoken. 5
Utterances not included in those alleged, 6 cannot be proved as
a cause of action; but may be proved to show meaning and in-
tent, within limits stated below.
The result of the rules on this point, shortly stated, is that :
Where the allegation and proof vary as to' the words, it is enough
if plaintiff proves that a distinct slanderous charge alleged, which
is separable from any other unproven words alleged, was uttered
in substantially the words alleged, it not appearing to have been
materially qualified by other words not alleged.
6. its utterance."] Utterance of the words denied in one
plea or defense, may be proved by a plea or defense confessing
utterance, 7 but not by one avoiding without confessing. The ut-
terance may be proved by plaintiff's testimony, though other
persons not produced as witnesses were present.
There must be some evidence that the words were heard and
understood by some person other than plaintiff, to whom they
were addressed. 8
1 Smith v. Hollister, 82 Vt 695.
8 Aldrich v. Brown, 11 Wend. 596; Emery v. Miller, 1 Den. 208; Coons v. Rob-
inson, 3 Barb. 625. As a general rale, the evidence substantially varies from the al-
legation, when it proves a charge of an offense not identically the same with that
alleged, though of the same species. Payson v. Macomber, 3 Allen, 69, 72.
8 N. Y. Code Civ. Pro. $ 539 ; Coleman v. Playsted, 36 Barb. 26.
4 Nye v. Otis, 8 Mass. 121, s. c. 5 Am. Dec. 79 ; Whiting r. Smith, 13 Pick. 364.
Or even equivocal or apparently innocuous words, with extrinsic evidence of manner,
circumstances, <fcc., giving them the meaning of the general allegation. Pond v. Hart-
well, 1 7 Tick. 269, 270, SHAW, C. J.
6 Dioyt v. Tanner, 20 Wend. 190.
6 Whether those of defendant (Camfield v. Bird, 3 Carr. <fe K. 66); or those of an-
other person, alleged to have been adopted by defendant (Blessing v. Davis, 24 Wend.
lOu).
* Alderman v. French, 1 Pick. 1, s. c. 11 Am. Dec. 114. Omtra, Wheeler v. Robb,
1 Blaokf. (Ind.), 330, s. c. 12 Am. Dec. 245. Under the new procedure, which allows
the joining of defenses not necessarily inconsistent, the question is, whether the spe-
cial pU'a or answer expressly, or by necessary implication, admits or does not admit
the publication. A justification may or may not. Under proper pleadings, a defend-
ant may show both that he never published the defamatory matter, and that, whoever
may have done so, it was true. Denial of publication, and avcrnipnt of truth, are not
inconsistent ; (Payson v. Mac :mber, 8 Allen, 69, 73 ;) unless pleaded in such a way
as to be inconsistent. Jackson v. Stetson, 15 Mass. 48, 62.
8 Brodt-rick v. James, 3 Daly, 481 ; Haile v. Fuller, 2 Hun, 519. Compare Phil-
662 ACTIONS FOR SLANDER OR LIBEL.
A variance as to the person is not necessarily fatal. 1 The
moral or intellectual character of the hearer is not relevant. 3
The time of utterance must be proved to have been before ac-
tion ; and if the only witness cannot swear to this, his testimony
is irrelevant. 8 But a variance in respect to the time is imma-
terial. 4
7. Publication of libel.'} Publication by defendant should be
proved before reading the contents. 5 An allegation of publica-
tion by defendant admits proof of publication by his authorized
agent or servant. 6 If joint publication is alleged, it must be
proved to have been joint. 7 Under either an allegation of print-
ing or one of writing, the other form of publication may be
proved, unless defendant is misled. 8 The rules for proving hand-
writing have been already stated. 9
Publication may be proved by plaintiff's testimony ; but not
by that of defendant, if he claims his privilege. It may be proved
by evidence of defendant's declarations and admissions out of
court, 10 and if his admission was qualified by suggesting that there
were errors in the printing, the burden is on him to show mate-
rial errors. 11 It may be proved by the one who read it, notwith-
standing he did it under a pledge of secrecy. 12
Proof that a newspaper or periodical came from defendant's of-
fice, and was one copy of an edition of the same date, and alleging
on its face that he is the proprietor, is evidence of publication by
defendant. 13 One proved to have been proprietor of a journal two
or three years previously, may be presumed to have continued pro-
prietor." Evidence of delivery by defendant, whether in way of
circulation among readers, 15 or by way of deposit in a public office, 18
lips v. Barber, 7 Wend. 439. "Words spoken in a foreign language must be proved to
have been spoken in the hearing of one who understood them. Bac. Abr. Slander
(D. 3).
1 Goodrich v. Warner, 21 Conn. 432, 443.
* Sheffill v. Van Deusen, 15 Gray, 485.
3 Scovell v. Kingsley, 7 Conn. 284.
4 Potter v. Thompson, 22 Barb. 87. Even though the evidence is of an utterance
more than two years before suit (Birchett v. Davis, 21 Pick. 404); in which case,
however, defendant should be allowed to amend by pleading the statute of limitations.
Id.
5 Folk. Stark. 656. 8 626.
Folk. Stark. 571 [427], 538.
1 Johnson v. Hudson, 7 Ad. & E. 233, n.
8 Trumbull v. Gibbons, 3 City H. Rec. 97.
9 Pages 392 to 398 of this vol. ; and see Cochrane v. Butterfield, 18 K H. 115.
Compare U. S. v. Chamberlain, 12 Blatchf. 390.
10 Lewis v. Few, 5 Johns. 1, 33 ; Burt v. McBain, 29 Mich. 260. As to allegation
of truth, coupled with admissions, see Rice v. Withers, 9 Wend. 138 ; Rouse v. White,
25 N. Y. 170.
" Rex v. Hall, 1 Str. 416.
18 Towns. 650, 384.
13 Towns. 644, 379.
14 Fry v. Bennett, 28 N. Y. 324, affi'g 3 Bosw. 200.
15 Respublica v. Davis, 3 Yates (Pa.), 128, s. o. 2 Am. Deo, 866.
16 King v.Amphlit, 4 B. <fc C. 35.
ACTIONS FOR SLANDER OR LIBEL. 663
%
is prima facie evidence of publication. Sale by a clerk or agent
in a Bhop, in the usual Sourse of business, is prima facie evidence
of publication by the principal. 1 Evidence of sale of a single
copy, though to plaintiff's agent, shows publication. 2
An open libel, with proof that it is written or signed in the
hand of defendant, is prima facie evidence of publication by
him. 3 Evidence that a manuscript in defendant's handwriting
was printed and published, is evidence from which the jury may
infer printing and publication by direction of defendant. 4 Pub-
lication of a handbill or affiche is prima facie shown by evidence
that it was posted, so that it might have been seen and read, with-
out anything to indicate that it was not. 5
Publication of a letter addressed to a third person is prima
facie shown by the fact that it passed through the mail, in course,
and is produced unsealed on the trial. 6 Publication of a letter
addressed to plaintiff himself may be prima facie shown by evi-
dence that defendant read it to another. 7
8. Place and time of publication.} Designation of a place, in
the date of a libellous writing, is prima facie evidence that it was
written there, as against the writer. Publication by defendant in
a journal, wherever printed, and circulation at a place within the
State, is evidence of publication at the latter place. 8 A variance
in the date of publication is not material, 9 if defendant is not
misled. g
9. contents."] The libellous document must be produced, as
the primary evidence of its contents. If it has been lost or de-
stroyed, without the plaintiffs fault, it may be accounted for, and
secondary evidence of the contents given, 10 unless it was a privi-
leged communication. 11
Publication in a book or newspaper having been brought home
to defendant, any copy of the impression may be read in evidence ;
it is not necessary to produce or account for the identical copy
referred to in the evidence of publication. 18 As against one liable
merely as the writer of an article printed, the original copy must
be produced or accounted for. 13
1 Folk. Stark. 573 [429], 638.
8 Duke of Brunswick v. Harmer, 14 Q. B. 185.
1 Folk. Stark. 559 [417], 530.
Folk. Stark. 560 [418], 531 ; Tarpley v. Blabey, 2 Bing. New Gas. 437.
5 Towns. 639, 872. And see Rice v. Withers, 9 Wend. 138.
Warren v. Warren, 1 Cr., M. & R. 250; Towns. 639. 874. See page 291 of
this vol. ; Shipley v. Todhunter, 7 Carr. <fe P. 680.
7 McCoorabs v. Tuttle, 5 Blackf. (Ind.) 431.
8 Commonwealth v. Blanding, 3 Pick. 304.
Gates v. Bowker, 18 Vt. 23.
10 Gates v. Bowker, 18 Vt. 23, 26 ; Rainy v. Bravo, L. R. 4 P. C. 287, a. c. 8 Moatfa
Eng. 194.
" Dawkina v. Rokeby, L. R. 8 Q. B. 255.
11 See Southwick v. Stevens, 10 Johns. 443 ; Huff v. Bennett, 4 Sandf. 120, afffd
in 6 N. Y. 337 ; Mnimons v. Holster, 13 Minn. 249.
13 Adams v. Kelly, Ry. & M. 157. So of one who published by reading or singing
the particular copy. Johnson v. Hudson, 7 Ad. <t E. 238.
664 ACTIONS FOR SLANDER OR LIBEL.
Secondary evidence must reproduce the words. The witness*
conception of their effect, or the substance of the charge, is not
sufficient. 1 But the witness may state the substance of the words,
as far as he can recollect them. 3 If a copy is produced, evidence
reasonably identifying it as corresponding to the one brought
home to defendant, and published by him, is enough. 3
Plaintiff may, either orally or in writing, abandon at the tria)
part of the libellous matter, provided the part remaining is ac-
tionable ; 4 and may read the part remaining to show the meaning
of the part relied on. 5
Where only part of the libel is alleged, the fact that the part
not alleged materially qualifies that alleged, although as qualified
it is still libellous, is a variance. 8
10. Meaning of ambiguous words."] Unless the court holds
that the words are not capable of bearing the meaning assigned,
extrinsic evidence is competent, and necessary, to show that on the
occasion in question they did bear that meaning. 7 Plaintiff must
satisfy the jury either that, under the circumstances, the words
themselves fairly bore that meaning, or that the speaker intended,
and the hearers understood, that meaning to be conveyed. For
this purpose dictionaries and other such books of authority may be
used; 8 evidence of defendant's known usages of speech'* may be
given ; the sense commonly attached to foreign, or cant, or slang
phrases may be shown by the testimony of witnesses ; 10 papers re-
ferred to in the words proved may be read ; u and, in the case of
slander, all the conversation of the party at the time is admis-
sible. 12
1 Rainy v. Bravo (above).
8 Id. It will be for the jury to say whether his recollection can be trusted. Id. ;
eee paragraph 8. The rules as to refreshing memory have already been stated.
Page 320 of this vol. ; Huff v. Bennett, 6 N. Y, 337.
3 Johnson v. Hudson, 7 Ad. & E. 233 ; and see Southwick v. Stevens, 10 Johns.
443.
4 Genet v. Mitchell, 7 Johns. 120; Gould v. Weed, 12 Wend. 12; Stow v. Con,
verse, 4 Conn. 17, 28. According to some authorities, this cannot be done if the ad-
ditional words change the meaning of those alleged. Towns, 622, 366 ; Rutherford
V, Evans, 6 Bing. 458.
8 Genet v. Mitchell (above).
8 Rainy v. Bravo, L. R. 4 P. C. 287, 8. o. 3 Moat's Eng. 194.
7 Rose. N. P. 829, and cases cited. And see Wolcott v. Goodrich, 5 Cow. 714 ;
Bollock v. Koon, 9 Id. 30 ; Sanderson v. Caldwell, 45 N. Y. 398.
The court is not bound to take notice whether words spoken in a foreign country
are slanderous there. Plaintiff should be prepared to prove the foreign law. Langdon
v. Young, 33 Vt. 136; Bundy v. Hart, 46 Mo. 460, s. c. 2 Am. R. 625.
8 Pow. Ev. 105.
' See, on this subject, page 132 of thia voL
10 Wachter v. Qnenzer, 29 N. Y. 547.
11 Nash v. Benedict, 26 Wend. 645.
Coleman v. Playsted, 36 Barb. 26. See Smith v. Miles, 16 Vt. 245, 249. The
better opinion under the free rules of evidence now followed is, that a witness who
heard the conversation, and whq testifies to all the circumstances, may, in case of
ambiguous words, be permitted to state the impression they made upon his mind at
the time he heard them ; but this impression is not sufficient to determine their mean-
ACTIONS FOR SLANDER OR LIBEL: 665
If plaintiff relies on extrinsic circumstances as putting the
sting of a charge of crime into words not necessarily actionable
in themselves, he must prove sufficient of those circumstances to
raise a fair presumption that the conduct imputed might have
been a criminal offense ; but he need not show that it necessarily
would have been. 1
11. Their application to the plaintiff.'] If the defamatory
matter does not name plaintiff, extrinsic evidence is competent '*
and necessary 3 to supply the designation. For this purpose a
subsequent publication by the defendant, in which the plaintiff's
name is mentioned, may be shown. 4
12. Circulation.'] Production and proof of one copy of a
publication is not necessarily evidence that others were circu-
lated. 5 But plaintiff may prove the circulation 6 or degree of
notoriety given to defendant's print. 7 The fact of circulation of
the report may be proved by producing a writing, or a publication
of it made by a third person, provided there is evidence compe-
tent against defendant to connect him with it ; otherwise not. 8
13. Falsity.] If defendant relies on justification, plaintiff
may show all the circumstances of the transaction charged, rele-
vant to the question of his innocence ; 9 including his own declara-
tions made as part of the res gestce. The record of plaintiff's
acquittal on a criminal prosecution for the same charge is not
competent against defendant, if he was not privy to the prosecu-
tion. 11
ing, unless the iury find that defendant intended them to be so understood. Compare
Towns. 650, 384; note in 3 Ahb. New Gas. 233; Smith v. Mile?, 15 Vt. 245, 249,
REDFIELD, J. Contra, Pow. Ev. 100 ; Duke of Brunswick v. Harmer, 3 Carr. <fe K. 10;
Weed v. Bibbins, 32 Barb. 315, and cases cited.
1 See, fir instance, Wilbur v. Ostrom, 1 Abb. Pr. N. S. 275 ; Case v. Buckley, 15
Wend. 327 : Alexander v. Alexander, 9 Id. 141.
5 Mix v. Woodward, 12 Conn. 262, 287; Parker v. Raymond, 3 Abb. Pr. N. S.
343; N. Y. Code Civ. Pro. 535.
3 Id. ; Miller v. Maxwell, 16 Wend. 9. Whether this may be done by the testi-
mony of those to whose knowledge it came, that they at the time understood defend-
ant to be meant, is disputed. For the negative, see Gibson v. Williams, 4 Wend. 320;
Van Vechten v. Hopkins, 5 Johns. 211, s. c. 4 Am. Dec. 339, and n. ; Maynard v.
Beardsley, 7 Wend. 560. For the affirmative, see Russell v. Kelly, 44 Cal. 641, s. c.
13 Am. K. 109; 2 Whart. Ev. 975. Compare paragraph 10, note. Where tho
publication was a picture proved by secondary evidence, the declarations of specta-
tors made wl.ile looking at it, were held admissible to show whose portrait it was,
Du Bost v. Beresford, 2 Camp. 611.
4 Russell v. Kelly, 44 Cal. 641, e. c. 13 Am. R. 169.
B Watts v. Fraser, 7 Ad. <fe E. 223.
6 Fry v. Bennett, 28 N. Y. 324, affi'g 3 Bosw. 200. And nn article in defendant's
paper stating its average circulation, is competent against him. Fry v. Bennett, 1 Abb.
Pr. 289, s. c. 4 Duer, 247, 661.
1 Rice v. Withers, 9 Wend. 188.
8 Schwartz v. Thomas, 1 Am. Dec. 479, s. c. 2 Wash. 167; Robertson v. Bennett,
JA Super. Ct. (J. <fe S.) 66, 71.
9 JSee Palmer v. Haight, 2 Barb. 210.
10 Gandy v. Humphries. 35 Ala. C17 ; 2 Whart. Ev. 1102.
11 Corbley v. Wilson, 71 111 209, s. c. 22 Am. R. 98.
666 ACTIONS FOR SLANDER OR LIBEL.^
14. Malice^] The difference between what is called express
or actual malice, and implied malice, is only a distinction of evi-
dence. " Express malice " is malice shown by some affirmative
proof beyond that afforded bv the falsity of defamatory words ;
" implied malice " is that which is naturally inferred as a pre-
sumption of fact drawn by the law from the proof of the falsity
of defamatory words uttered without privilege. 1 Where there is
no privilege, this presumption conclusively dispenses with the
necessity of extrinsic evidence of malice to sustain the action. 2
But evidence of express malice is competent, whether the com-
munication be privileged or not. 3 For this purpose any act or
language of the defendant (before suit brought), tending to prove
mance on his part, in respect to the particular publication com-
plained of, as distinguished from general ill will, is competent. 4
The fact that the false charges were published as true of defend-
ant's own knowledge, is evidence of malice. 5 Animosity by or
against a parent or guardian, or next friend, is not alone compe-
tent to show malice by or against the- child or ward. 6
To show malice evidence is competent 7 that defendant repeat-
ed substantially the same charge, to any person 8 and at any time
before suit brought, even though statute barred by the lapse of
time ; 9 but not evidence of actionable words, 10 not statute barred, 11
imputing a substantially different charge w (unless they BO refer
to the charge in suit as to express direct evidence of the meaning
and malice of defendant in making it); 13 nor of any words after
suit brought. 14 A charge proved under this rule is not available
1 Hnson v. Dale, 19 Mich. 17, s. c. 2 Am. R. 66 ; Viele v. Gray, 10 Abb. Pr. 1, 8.
c. 18 How. Pr. 650.
8 King v. Root, 4 "Wend. 113 ; Klinck v. Colby, 46 N. Y. 427, 431 ; White v.
Nichols, 3 How. U. S. 266 ; Fry v. Bennett, 5 Sandf. 54, s. c. 9 N. Y. Leg. Obs. 330.
Malice in publishing a newspaper report of judicial, legislative, or other official pro-
ceedings, is in no case implied from the fact of publication. N. Y. L. 1854, p. 314,
c. 180, 1.
3 Fry v. Bennett, 28 N. Y. 324.
4 Id.; Rose. N. P. 832; Littlejohn v. Greeley, 13 Abb. Pr. 41 ; further decisions,
Id. 311, B. c. 22 How. Pr. 345.
* Rose. N. P. 830.
6 York v. Pease, 2 Gray, 282, 284. So, a city editor's refusal to publish a retrac-
tion is not evidence of malice on' the part of the proprietors. Edsall v. Brooks, 2
Robt. 414, s. c. 33 How. Pr. 191.
1 This I understand to be the present rule in the courts of New York, and one well
sustained by the object of all the rules that have been asserted on this subject, when
wo make due allowance for the new canons of pleading. But the authorities are very
conflicting, the line of decision has constantly wavered, and well considered decisions
may be found to the contrary of almost every clause in the rule ptnted in the text.
8 Root v. Lowndes, 6 Hill, 519 ; Bassell v. Elmore, 48 N. Y. 561 ; affi'g 65 Barb.
627.
9 Titus v. Sumner, 44 N. Y. 266; Distin v. Rose, 69 N. Y. }22, 124.
10 Rundell v. Butler, 7 Barb. 260.
11 Root v. Lowndes (above).
14 Howard v. Sexton, 4 N. Y. 157, 161 ; Titus v. Sumner, 44 Id. 2C6, 270; Distin
V. Rose, 69 Id. 122, 124 ; Taylor v. Kneeland, 1 Dougl. (Mich.) 67, 76.
13 Finnerty v. Tipper, 2 Camp. 72. For instance, a subsequent publication which
identifies plaintiff. Mix v. Woodward, 12 Conn. 262, 287.
14 Frazier v. McCloskey, 60 N. Y. 337, rev'g 2 Supm. Ct. (T. & C.) 266; Distin v.
ACTIONS FOB SLANDER OR LIBEL. 667
as a ground of recovery, any further than, by showing malice, it
enhances exemplary damages for the publication alleged. 1
Insulting acts, preceding or accompanying a defamatory pub-
lication, are competent on the question, and can be put in evidence
of motive. 2 So are subsequent insulting acts relating to the same
charge. 3
A communication of the defamation to a third person, made
by the hearer, if the natural and probably intended consequence-
of defendant's act, is competent to show the injury ; and with it
the damage caused by it may be shown. 4
An answer of justification, though withdrawn, 5 or unsustained
by proof, is not evidence of malice unless bad faith is shown. 6
15. Action on privileged communication. ~\ Where the com-
munication, if made in good faith, is privileged, the burden is on
plaintiff to show express malice, that is, actual wrongful motive.
To carry this question to the jury it is not enougli that the rep-
resentations are consistent with malice ; 7 the evidence must raise
a probability of malice ; and be more consistent with it than with
the non-existence of it. 8 But slight evidence is sufficient. 9 It is
not necessary to prove it by extrinsic evidence. It may be in-
ferred from the relation of the parties, the circumstances attend-
ing the publication, and even from the terms of the publication
itself. 10 It cannot be inferred from its mere falsity, 11 unless there
is evidence that defendant knew it to be false. 12 Nor is it neces-
sarily inferred from severe denunciation in the words ; 13 nor from
circulating to obtain privileged signatures. 14
If the privileged communication was a charge preferred for
official action of a judicial nature, before any municipal, parochial,
Rose, 69 N. Y. 122, 124. Contra, Miller v. Kerr, 2 McCord (S. C.) 285, s. o. 13
Am. Dec. 722; Johnson v. Brown, 67 Barb. 118; 1 Whart. Ev. 44, 32.
1 Williams v. Miner, 18 Conn. 464, 472, and cases cited.
9 1 Whart. Ev. 44, 32; Bond v. Douglas, 7 C. & P. 626 ; Kean v. McLaughlin, 2
S. & R, 469. See C. v. A. B. 2 Weekly Notes, 291.
8 Tate v. Humphrey, 2 Campb. 73 n. ; 1 Whart. Ev. 43, 32.
4 Fowlea v. Bowen, 30 N. Y. 20. And see paragraphs 3 and 17.
8 Wilson v. Robinson, 7 Q. B. (Ad. <fe E. N. S.) 68.
6 Klinck v. Colby, 46 N. Y. 427, 437 ; 69 Id. 127. Otherwise at common law.
7 Hart v. Gumpach, L. R. 4 P. C. 439, 460, s. o. 4 Moak's Eng. 138, 156.
8 Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495, 8. c. 4 Moak's Eng. 162,
174, nnd cases cited.
9 Fowles v. Bowen, 30 N. Y. 20.
10 Gassett v. Gilbert, 6 Gray (Mass.), 94, 98.
11 Lewis v. Chapman, 16 N. Y. 369, rev'g 19 Barb. 252.
15 Fowles v. Bowen, 30 N. Y. 20.
13 Klinck v. Colby, 46 N. Y. 427. Nor from the act of sending a report to a news-
paper of a privileged communication elsewhere delivered, as a public reply made in
pood faith to a public attack. Laughton v. Bishop, <fec. L. R. 4 C. P. 495, 510, s. c. 4
Moak's Eng. 162, 175, and cases cited. If there were other evidence of malice, it
would be proper to submit to the jury the question, whether somlina: the report to
the papers was in good faith or malicious. Id. Nor from defendant's advocate ob-
jecting at the trial to plaintiff proving facts material to him ; nor from endeavoring
to prove plaintiff's misconduct. Id.
f * Vanderzee v. M'Gregor, 12 Wend. 545 ; Streety v. Wood, 15 Barb. 105.
668 ACTIONS FOR SLANDER OR LIBEL.
professional or other public body, 1 having authority to act upon
the application, 8 plaintiff must show want of probable cause as
well as malice. 8
16. Slander of title. ~\ To sustain an action for slander of title,
whether of real 4 or personal 5 property, express malice must be
shown. This is not proved by the falsity of injurious state-
ments ; 6 but there need not be direct proof of intention to injure.
The intention may be inferred by the jury, from false statements,
exceeding the limits of fair and reasonable criticism, and reck-
lessly uttered in disregard of the rights of those who might be
affected by them. 7 If the words were used in the course of assert-
ing defendant's claim of title, it is competent for him to show
advice of counsel, as in case of an action for malicious prosecu-
tion. 8
Special damage must be proved, 9 and must be alleged to be
admissible. 10
17. Damages.'] A witness cannot be asked whether plaintiff
has not sustained a general loss of reputation and suffered mate-
rial injury in credit, in consequence or the words complained of. 11
Injury to feelings is a proper subject of consideration if other
damages have been shown. 1 ^ Alone it will not sustain an action. 13
Actual damage need not be shown to sustain a verdict for ex-
emplary damages. 14
In aggravation of actual damages, plaintiff may give in evi-
dence his own rank and condition in life, if in issue ; 15 and for
actual or exemplary damages, defendant's wealth and standing. 16
An unsuccessful plea of justification is not competent in aggrava-
tion, unless shown to have been made in bad faith ; " nor is an un-
1 Barrows v. Bell, 7 Gray, 301, 313 ; Remington v. Congdon, 2 Pick. 310, s. o. 13
Am. Dec. 431, and note.
* Hosmer v. Lov eland, 19 Barb. 111.
8 Howard v. Thompson, 21 Wend. 319 ; Viele v. Gray, 10 Abb. Pr. 1, 11, s. c. 18
How. Pr. 650 ; Streety v. Wood, 15 Barb. 106.
4 Kendall v. Stone, 5 N. Y. 14.
8 Like v. McKinstry, 3 Abb. Ct. App. Dec. 62, s. c. 4 Keyes, 397, affi'g 41 Barb.
186.
Like v. McKinstry (above).
1 Gott v. Pulsifer, 122 Mass. 235, 8. o. 23 Am. R. 322, 825.
8 See Like v. McKinstry (above) ; Bailey v. Dean, 6 Barb. 297.
9 Kendall v. Stone, 6 N. Y. 14, rev'g 2 Sandf. 269 ; Bailey v. Dean, 6 Barb. 297.
10 Gott v. Pulsifer, 122 Mass. 235, s. c. 23 Am. R. 322.
11 Herrick v. Lapham, 10 Johns. 281. And see p. 655 of this vol.
12 Hamilton v. Eno. 16 Hun, 599, 601.
13 Samuels v. Evening Mail As-ociation, 6 Hun, 5.
14 Fry v. Bennett, 9 Abb. Pr. 45, affi'd in 28 N. Y. 324.
15 Lamed v. Buffinton, 3 Mass. 646, s. c. 3 Am. Dec. 185. And see Eastland v.
Caidwell, 2 Bibb (Ky.), 21, s. c. 4 Am. Dec. 668.
16 Hayner v. Cowden, 27 Ohio St. 292, s. c. 22 Am. R. 303 ; Bennett v. Hyde, 6
Conn. 24, 27; Lewis v. Chapman, 19 Barb. 252, rev'd, on other grounds, in 16 N. Y.
869. Whether i he evidence of wealth, Ac., is to be directed to the time of the wrong
or the time of the trial may, perhaps, depend on whether the true ground of allowing
Buch evidence is punilory, or because of the influence supposed to attach to the utter-
ance. See Bennett v. Hyde, 6 Conn. 24, 28.
11 Distin v. Rose, 69 N. Y. 122, affi'g 7 Hun, 83. Compare Fero v. Ruscoe, 4 N.
Y. 162.
ACTIONS FOR SLANDER OR LIBEL. 669
successful effort to procure testimony in justification, unless
shown to have been done in a manner aggravating the wrong. 1
Special damage should be alleged in order to be proved ; 2 and "
must be proved in case the words are not actionable per se? The
effect of the defamation on the conduct of a third person, maybe
proved by his own testimony, 4 but not by evidence of his declar-
ations of his reason for an act, though made at the time. 5 The
report causing special damage, must be connected with defendant
by other evidence than its mere identity in substance with that
which he published. 6
18. Defense : Explaining the words.'] Defendant is entitled
to have the whole of the alleged conversation or article put in ev-
idence, and any document referred to in it. 7 If the article is in a
newspaper, he is entitled to have read (as part of plaintiff's case)
another part of the same newspaper, referred to in the article. 8
So defendant may show that, after uttering the words, he retract-
ed or explained tnem in the same conversation, so as not to amount
to slander, or that he adopted explanations made by another per-
son, having the same effect. 9 If an apparent slander expressly
refers to circumstances which show that no charge of crime was
intended, defendant may prove those facts as giving the true im-
port of the words as they were or ought to have been understood
by the hearers ; 10 but if the words were unequivocal, and intended
and received as a charge of crime, evidence of facts which deprive
the charge of that character, but which do not appear to have
been known to the hearers, is not competent, 11 A previous arti-
cle of plaintiff's, to which the matter complained of was an an-
1 Ormsby v. Douglass, 37 N. Y. 477.
s Backus v. Richardson, 5 Johns. 476 ; Tobias v. Harland, 4 Wend. 637 ; Rose.
N. P. 832.
8 Brooker v. Coffin, 6 Johns. 188 ; Miller v. David, L. R. 9 C. P. 1 18, 8. c. 43 L. J.
C. P. 84 ; Shipman v. Burrows, 1 Hall, 399 ; Hallock v. Miller, 2 r'arb. 630. And in
that case must be shown to have occurred before suit brought. Keenholts v. Beck-
er, 3 Den. 346.
* Law v. Scott, 5 Harr. A J. (Md.) 438.
Ashley v. Harrison, 1 Esp. 48 ; Tilk v. Parsons, 2 C. <fc P. 201 (BEST, C. J.).
Whether loss of custom may be proved by general evidence of a falling off, without
proof of loss of particular customers, compare Backus v. Richardson, 5 Johns. 476;
Hartley v. Herring, 8 T. R. 130 ; Hallock v. Miller, 2 Barb. 630 ; Riding v. Smith, L.
R. 1 Exch. Div. 91, 95, B. c. 16 Moak's Eng. 647.
6 Sewall v. Catlin, 3 Wend. 291 ; 1 Seclgw. on D. 7th ed. 148. See Miller v.
David, L. R. 9 C. P. 118, 8. o. 43 L. J. C. P. 84.
1 Folk. Stark. 720 [548], 725 ; Morehead v. Jones, 2 B. Monr. 210.
8 Folk. Stark. 720 [648], 725. It is a rule of law essential to the liberty of the
press, that in all actions for libel, every part of the paper must be read in order to
collect its meaning. BEST, C. J., Yrisarri v. Clement, 3 Bing. 432, 440.
Trabue v. Mays, 8 Dana, 138.
i Williams v. Miner, 18 Conn. 464, 473 ; Smith v. Miles, 16 Vt. 245, RTOFUXD, J.
Compare Dorland v. Patterson, 23 Wend. 422. But he must show that the facts could
not have amounted to a crime. It is not enough to show a doubt Laine v. Wells,
7 Wend. 175 ; Case v. Buckley, 16 Id. 327.
" Williams v. Miner (above); Dempsey v. Paige, 4 E. D. Smith, 218; Van Akin
V. Caler, 48 Barb. 58 ; Stone v. Clark, 21 Pick, 61, 64,
670 ACTIONS FOR SLANDER OR LIBEL.
ewer, may be put in evidence as explanatory of the subject, occa.
sion, and intent of defendant's publication, although it be not
legally a provocation or justification. 1
19. Privileged communication.'] The relations between the
parties to the communication may be shown by testimony or by
their written contract, as most appropriate, without calling them
as witnesses. 2 The manner as well as the occasion of the publica-
tion is admissible. 8 Where the privilege depends on the fairness
of a report, 4 or relevancy of the communication to the proceed-
ing, 5 the burden to show these facts is on defendant. If belief is
relevant, defendant may testify to what was his belief at the
time", 6 and to the communication previously made to him, 7 or to
the conduct of plaintiff known to him, 8 which induced belief.
20. Justification.'] Truth is a complete bar, 9 but to be ad-
missible as a bar, it must be pleaded in some form, 10 so that plaint-
iff may have notice of what he has to meet ; if not pleaded, truth
is admissible, if at all, only in mitigation, as repelling the infer-
ence of malice. 11
If plaintiff has proved only a part of the words alleged, de-
fendant may, if he choose, 12 confine his justification to such part, 13
but he may read the part abandoned by plaintiff to show the
meaning of the part relied on. 14
The justification must establish the substance of the charge
justified, 15 though it need not be identical in letter and
1 Hotchkiss v. Lathrop, 1 Johns. 286.
s See Ormeby v. Douglass, 37 N. Y. 477.
Folk. Stark. 684 [522], 686.
4 1 Whart. Ev. 330, 369.
B Marsh v. Ellsworth, 36 How. Pr. 632, s. c. 1 Sweeny, 62. And see Marsh v.
Ellsworth, 50 N. Y. 309, nffi'g 2 Sweeny, 589; Spooner v. Keeler, 61 N. Y. 621
6 See cases on page 620 of this vol.
7 Lawlcr v. Earle, 6 Allen, 22.
8 Bradley v. Heath, 12 Pick. (Mass.) 163.
' George v. Jennings, 4 Hun, 66. Otherwise, at common law, except in case of
Siblic officer or candidate. Commonwealth v. Morris, 1 Va. Cas. 175, s. c. 5 Am.
ec. 515.
10 Huson v. Dale, 19 Mich. 17, s. c. 2 Am. R. 66; N. Y. Code Civ. Pro. 636 ;
Baker v. Wilkins, 3 Barb. 220.
11 Huson v. Dale (above). For the conflicting views on this question, see Treat v.
Browning, 4 Conn. 408, s. c. 10 Am. Dec. 156, and cas. cit. ; Alderman v. French, 1
Pick. 1, s. c. 11 Am. Dec. 114, 127, and n.
1J According to Palmer v. Haight, 2 Barb. 210, he must. If plaintiff has proved
other words not alleged, defendant may justify those. Warne v. Chadwell, 2 Stark.
467.
13 Stow v. Converse, 4 Conn. ] 7, 28.
14 Gould v. We,-d, 12 Wend. 12. See paragraphs 9 and 10.
15 Whether proof beyond a reasonable doubt is required to justify a charge of
crime is disputed : see cases collected on p. 495 of this vol. Also in the affirmative,
Woodbeck v. KeUrr, 6 Cow. 118; Chalmers v. Shackell, 6 Carr. & P. 475; Dwinella
V. Aikin, 2 Ty. Vt. 75 ; MX v. Woodward, 12 Conn. 262, 288 ; Lanter v. M'Ewen,
8 Blackf. find.) 495 ; Tucker v. Call, 45 Ind. 31. The just rule in cases of justifica-
tion of ordinary charges of crime is that thirdly stated on p. 495. Greater cogency
of proof is requisite to justify punishment than to justify accusation, unless the accu-
ACTIONS FOR SLANDER OR LIBEL. 671
form. 1 The justification must be as broad as the charge,
and if a statement of facts of aggravation 2 as distinguished
from matter of opinion, is part of the charge, 3 the justification
must include them. If a slander charged that an act was
done in another jurisdiction, which is not a crime at common
law, defendant should be prepared with evidence of the laws
of the place where it was done.*
The record of plaintiffs conviction for the crime charged,
if not appearing to be based at all on defendant's testimony, is
presumptive evidence in support of a justification, 5 but not con-
clusive. Evidence of plaintiffs declarations tending to show his
disposition to an offense of a particular kind is not competent
to show that a specific offense of that kind was committed.
In justifying a charge of perjury, the proceedings, if matter
of record, must be proved by producing the record. 8 A variance
in the date is not material. 9 The fact that the witness testified is
prima facie evidence that he was sworn. 10 Materiality of the tes-
timony may be presumed where the charge implied it and was so
understood. 11 The allegation of knowledge of falsity is material. 18
To justify a charge merely of bad repute, it is not necessary
to prove the existence of grounds for such repute. 13
21. Former adjudication.'] A judgment in malicious prose-
cution is admissible as a bar to an action for defamation in the
sation was made with actual malice, or was accompanied with a declaration of hav-
ing proof. But, in thos3 courts where proof beyond reasonable doubt is required,
evidence falling short of that will avail in mitigation.
I Andrews v. Vanduzer, 11 Johns. 38 ; Stow v. Converse, 4 Conn. 17, 33. Thus,
under a charge of stealing a thing specified, evidence of stealing an entirely differ-
ent article is not admissible. Eaatland v. Caldwell, 2 Bibb, 21. But a charge of
stealing " hogs" is justified by proof of stealing a hog, for here would be no surprise.
Barr v. Gaines, 3 Dana, 258. Adultery with A. cannot be proved under justifica-
tion alleging adultery with B. (Mathews v. Davis, 4 Bibb, 173); and illicit inter-
course with a lover before marriage cannot be proved tinder justification of charge
of being a "whore." Sheehey v. Cokley, 43 Iowa, 183, s. c. 22 Am. R. 236. So
evidence of an attempt to commit a crime is not competent in proof of justification
alleging the committing of the crime. Chapman v. Ordway, 5 Allen, 593 ; Fero v.
Ruscoe, 4 N. Y. 162.
1 Ilelsham v. Blackwood, 11 C. B. 111.
8 See Baker v. Wi'.kins, 3 Barb. 220.
4 Bundy v. Hart, 46 Mo. 460, s. c. 2 Am. R. 625. Compare Langdon v. Young,
83 Vt. 136 ; Van Anken v. Westfall, 14 Johns. 233.
6 Maybee v. Avery, 18 Johns. 352.
Id.
1 Gillis v. Peck, 20 Conn. 228 ; and see Barthelemy y. People, 2 Hill, 248.
8 Dwinells v. Aiken, 2 Tyler (Vt.), 75. As to the mode of proof, see chapter
XXIX. If before arbitrators, the submission is the best evidence of the jurisdiction
of tho arbitrators. Bullock v. Koon, 9 Cow. 30.
9 Brooks v. Bemiss, 8 Johns. 455.
10 Cass v. Anderson, S3 Vt. 182.
II Butterfield v. Buffum, 9 N. II. 156, 163.
19 Spooncr v. Keelrr, 51 N. Y. 527. As to proof of the corrupt intent, BOO M'Kin-
ly V. Rub, 20 Johns. 851 ; Hopkins v. Smith, 3 Barb. 599.
13 Cooper v. Greeley, 1 Den, 347 ; compare Stone v. Cooper, 2 Id. 293.
672 ACTIONS FOR SLANDER OR LIBEL.
same making of the charge, 1 but not to an action for repeating it
after the termination of the prosecution. 8
22. Mitigation.'] Under the new procedure, defendant may
prove, in mitigation, facts which tend to disprove malice, although
they do tend to prove the truth of the charge, and although he
has not alleged the truth of the charge in his answer. 3 Circum-
stances in mitigation must be pleaded in order to be admissible. 4
Facts and circumstances which induced defendant to suppose the
charge true when he made it, he may prove for the purpose of
showing the absence of actual malice, provided they were actual-
ly known to him when he made the charge, 5 otherwise not. 6 The
terms and conditions on which defendant directed the libellous
matter to be published, are admissible in evidence on his behalf,
as part of the res gestce, showing his motives. 7 But evidence of
confidential publication, though thus admissible, in mitigation,
does not repel the legal presumption of malice. 8
If the defamation only purported to be a publication of
rumors, defendant may show in mitigation that such rumors really
existed. 9 It is competent to show in mitigation, that the article
complained of was copied, and published as copied, from another
1 Sheldon v. Carpenter, 4 N. Y. 579.
8 Rockwell v. Brown, 36 N. Y. 207. See, also, page 652 of this vol.
8 Bush v. Prosser, 11 N. Y. 347, rev'g 13 Barb. 221 ; Bisbey v. Shaw, 12 N. Y.
67. This is the New York Rule. N. Y. Code Civ. Pro. 535. In some other juris-
dictions the rule formerly contended for by part of the authorities is still followed,
viz., that where a defendant does not justify he may mitigate damages in two ways
only ; first, by showing the general bad character of the plaintiff; and, second, by
showing any circumstances which tend to disprove malice, but do not tend to prove
the truth of the charge. Sheahan v. Collins, 20 111. 3^5, 328.
4 Willover v. Hill, 72 N. Y. 36, 38. Compare Hotchkiss v. Porter, 30 Conn. 414,
420.
5 Even though not legal evidence of its truth. Oilman v. Lowell, 8 Wend. 573.
6 King v. Root, 4 Wend. 113, affi'g 7 Cow. 613. Notoriety can raise a presump-
tion that he knew them. Per LEARNED, P. J. Hatfield v. Lasher, 17 Hun, 23, 27.
1 Taylor v. Church, 8 N. Y. (4 Seld.) 452. So of his declarations to bystanders
accompanying an act of defamation. Mezzara's Case, 2 City H. Rec. 113.
8 Mason v. Mason, 4 N. H. 110.
Skinner ads. Powers, 1 "Wend. 451 ; Richards v. Richards, 2 M. <fr Rob. 657.
But this does not repel the legal presumption of malice. Mason v. Mason, 4 N. H.
110.
For a convenient clue to the conflicting authorities on the admissibility of evi-
dence of the previous existence of common report to the same effect as oral slander,
see, in the Negative, Mapes v. Weeks, 4 Wend. 659; Graham v. Stone, 6 How. Pr.
15 ; Brown v. Orvis, Id. 376; Anthony v. Stephens, 1 Mo. 254, s. c. 13 Am. Dec. 497,
and see note ; Pease v. Shippen, 80 Penn. St. 513, s. c. 21 Am. R. 1 16, and cas. cit. ;
Affirmative, Case v. Marks, 20 Conn. 248, 251 ; Cook v. Barkley, 1 Pennington (N. J.),
169, s. c. 2 Am. Dec. 343; Calloway v. Middleton, 2 A. K. Marsh (Ky.), 372.
The admissibility of such evidence under these rulings, will often depend on
whether it is offered to repel the legal implication of malice, or to rebut plaintiffs
evidence of actual malice ; whether it is offered in connection with other evidence
tending to show that defendant in good faith published that which, upon reasonable
grounds, he believed to be true; or whether it is offered on the issue of character;
and whether the fact was specially pleaded, or the evidence offered under the general
issue. In any case the evidence should show that this circulation was before de-
fendant commenced the wrong. See Bailey v. Hyde, 3 Conn. 463, 466; Thompson v.
Nye, 16 Q. B. 176.
ACTIONS FOR SLANDER OR LIBEL. 673
paper, 1 or that defendant, before publication, had seen substantial-
ly the same matter in other newspapers, he believing it to be true ; *
but not another publication which did not influence his, 8 nor
that plaintiff had recovered against another. 4
Plaintiff's general character in the respect in which it was im-
pugned by the charge, may be sjiown in mitigation of damages. 5
But if the words are actionable per se, and there is no attempt to
prove special damage, it is not competent to show that plaintiff's
reputation was not injured. 6
When good faith is material, defendant may testify in his own
behalf, to his knowledge or belief at the time, 7 and his intent in
making the communication. 8
The fact that slanderous words were spoken in the heat of
passion, which was provoked by plaintiff, may be shown in mitiga-
tion, 9 but not in bar. 10 Neither the fact of defendant's enmity to
plaintiff, 11 nor words and acts between one party and the father
or guardian of the other, are alone competent evidence of provo-
cation. 12
A retraction, as distinguished from an attempt merely to con-
strue in a different sense irom that fairly imputable, is admissible
in mitigation. 13
23. Plaintiff's character^ Defendant (although he may have
pleaded 14 and given evidence in 15 justification) may show in miti-
gation, 16 that at and before the time of the defamation, 17 plaintiffs*
1 McDonaM v. Woodruff, 2 Dill. C. Ct. 244 ; and the other paper will be admis-
sible. Mullett v. Ilulton, 4 Esp. 248.
4 Hewett v. Pioneer-Press Company, 23 Minn. 178, s. c. 23 Am. R. 680. Compare
Coloman v. ^outhwick, 9 Johns. 45, s. c. 6 Am. Dec. 253.
* Saundurs v. M.lls, 6 Bing. 213. Compare Talbutt v. Clark, 2 M. <fc Rob. 312.
4 Creevy v. Carr, 7. Carr. cfe P. 64.
5 Anthony v. Stephens, 1 Mo. 254, 8. c. 13 Am. Dec. 497, and n.
Titus v. Sumner, 44 N. Y. 266.
1 Goodman v. Stroheim, 36 Super. Ct. (4 J. <fc S.) 216, s. P. 30 N. Y. 625. Contra,
Lawyer v. Loomis, 3 Supra, Ct. (T. <fe C.) 393 ; (see 3 Id. 412).
8 Compare pages 618, 620, 655 of this vol.
9 Jauch v. Jauch, CO Ind. 135, s. c. 19 Am. R. 699; Sheffill v. Van Deusen, 15
Gray, 485. For which see page 650 of this vol. For provocation of libel, see Child
T. Homer, 13 Pick. 503; Laughton v. Bishop of Sodor, <fec. L. R. 4 P. C. 495, a c.
4 Moak's En?. 162; Finnerty v. Tipper, 2 Camp. 72; Maynard v. Beardsley, 7
Wend. 560, affi'g 4 Id. 336.
10 Mouskr v. Harding, 33 Ind. 176, s. c. 5 Am. R. 195. The limits of evidence of
provocation are the same as in case of assault.
11 Craig v. Catlet, 5 Dana, 323.
11 Underbill v. Taylor, 2 Barb. 348.
18 Ilotchkiss v. Oliphant, 2 mil, 510.
14 N. Y. Code Civ. Pro. 535.
15 Id. ; Hamer v. McFarlin, 4 Den. 509.
16 Whether this may be done unless bad character is pleaded, see negative, 1
Whart. Ev. 67, 63 ; Willover v. Hill, 72 N. Y. 36, 38 ; affirmative, Anon. 8 How.
Pr. 434; Parkhurst v. Ketchum, 6 Allen, 406.
The value, with the jury, of evidence of plaintiff's bad character is generally in
its tending (with evidence indicating defendant's good faith), to show the absence of
malice, rather than in tending to show that plaintiff has not been injured.
11 Hamer v. McFarlin (above).
43
674 ACTIONS FOR SLANDER OR LIBEL.
character was generally bad, 1 or was bad in respect to the general
nature and subject-matter of the offense charged. 2
24. Mode of proving character.] The legal meaning of
"character," as used in the law of defamation, is reputation. It
is proved by a witness, who testifies (1) to a residence in the com-
munity or neighborhood of plaintiff, such as to satisfy the court
that he has reasonable means of knowing plaintiffs character;
(2) that ho knows the general character 01 the plaintiff, 3 or that he
knows his character in respect to the subject-matter involved;
and (3) that such character is bad.
For this purpose neither particular reports, 4 nor the particu-
lars giving rise to bad reputation, such as a specific offense, 6 or
consorting with criminals, 6 are admissible except as brought out
by cross-examination as showing foundation of bad character. 7
Bad character, subsequent to the defamation, is inadmissible. 8
Character many years 9 before the time in question is not irrel-
evant, for shown once to exist it is presumed to continue ; 10 but
where the period is very remote, it is in the discretion of the
court to require some connection to be shown between the pres-
ent and former character. 11 The mode of proving business credit
has already been stated. 12
25. Rebuttal.] If defendant has given evidence of plaintiff's
bad character, 13 plaintiff may rebut with contrary evidence. 14 Evi-
I Hamer v. McFarlin, 4 Den. 509; Paddock v. Salisbury, 2 Cow. 811; Eastland
v. Caldwell, 2 Bibb (Ky.). 21.
* Treat v. Browning. 4 Conn. 408, s. c. 10 Am. Dec. 156, and cas. ctt,. ; Clark v.
Brown, 116 Mass. 504; REDFIELD, J. in 1 Am. L. Reg. N. S. 171, note. Contra, Hat-
field v. Lasher, N. Y. Ct. of App. June, 1880. It is not necessary to show reputation
of having committed the precise legal offense. Bridgman v. Hopkins, 34 Vt. 532. s.
o. 1 Am. L. Reg. N. S. 168.
8 See People v. Mather, 4 Wen'd. 229. The omission of this preliminary question
is not fatal if objection is not made. Senter v. Carr, 15 X. H. 351. It is character
in the neighborhood where the person resides. Conkey v. People, 1 Abb. Ct. App.
Dec. 418.
4 Wolcott v. Hall, 6 .Mass. 514, s. c. 4 Am. Dec. 173.
8 A party must defend his reputation in general, but not in detail ; he cannot be
expected to try particular facts not in issue. Peterson T. Morgan, 116 Mass. 350.
6 Lamos T. Snell, 6 N. H. 413.
7 Sawyer v. Eifert, 2 Nott & McCord (S. C.), 511, 8. c. 10 Am. Dec. 633.
8 Even though it could not have been caused by a belief of the charge made by de-
fendant. Douglass v. Tousey, 2 Wend. 352.
* So held of tha lapse of ten years. Parkhurst v. Ketchum, 6 Allen, 406. So
held of twelve years. Tompkins v. Wadley, 3 Supm. Ct. (T. & C.) 424, 428.
10 See Graham v. Chrystal, 2 Abb. Ct. App. Dec. 263.
II Tompkins v. Wadley (above) ; Lake v. People, 1 Park. Cr. 495.
12 P. 6 17 of this vol.
13 Inman v. Foster, 8 Wend. 602.
14 According tj some authorities he may do this when defendant, without giving
evidence as to character, has given evidence of the truth of a charge of a criminal
offense whether in mitigation, or in justification (Charlton v. Walton, 6 Carr. <fe P.
385; Harding v. Brooks, 5 Pick. 244; UEDFIELD, J. in 1 Am. L. Reg. N. S. 171);
at least if the evidence of truth has been only presumptive (Sheehey v. Ookley,
43 Iowa, 183, s. c. 22 Am. R. 236).
Contra, Houghtaling v. Kilderhouse, 1 N. Y. 630; Sbipman v. Burrows, 1 Hall,
ACTIONS FOR SLANDER OR LIBEL. 675
dence of bad character in rebuttal of evidence of good character
is equally confined to reputation. 1 An attack by proof of specific
acts, does not let in evidence of general good character.'
899 ; Matthews v. Huntley, 9 N. H. 146. Compare Sprague v. Craig, 51 111. 288,
294 ; Lecky v. Bloser, 24 Penn. 401, 407.
1 Reg. V. Rowton, 11 Jur. N. S. 325.
3 Ziter v. Merkel, 24 Penn. St. 408 ; Bamfield v. Massey, 1 Campb. 460; Pratt v.
Andrews, 4 N. Y. 493.
CHAPTEE XLIY.
ACTIONS FOR BREACH OF PROMISE OF MARRIA.GR.
1. Mutual promises. 6. Damages.
2. Letters. 6. Defense.
8. Affection. 7. justification of breach.
4. Breach. 8. nritigatiou.
1 . Mutual Promises.'] Plaintiff must show mutual promises, 1
but no particular form of words nor even any express promise is
necessary. 2 A common intent, mutually accepted is enough ; and
this may be inferred from declarations and accepted attentions
such as usually characterize an engagement of marriage. 8 Neither
evidence of courtship 4 nor evidence of mutual attachment 5 is
alone enough to prove mutual promise ; but these facts are rele-
vant, and, in connection with other evidence, may be enough. 6
The promise on the part of the woman may be inferred from
slighter circumstances than would suffice to show that on the
part of the man. 7
The parties' conversations on the subject of marriage, though
some time prior to the alleged promise, are admissible as tending
to show their relation at the time of the promise. 8 So, defend-
ant's declarations to plaintiff that he would make a good home
for her, are admissible. 9
Plaintiff's declarations to a third person, in the absence of de-
fendant, that defendant had made a promise of marriage, are not
competent in her favor 10 to prove defendant's promise, but they
may be competent as tending to prove plaintiff's. 11 Plaintiff's
I Kelly v. Riley, 106 Mass. 339, s. c. 8 Am. R. 336.
9 Homan v. Earle, 63 N. Y. 267; affi'g 13 Abb. Pr. N. S. 402, and cases cited;
"Whightman v. Coates, 15 Mass. 1.
3 Id. ; Id. ; Rose. N. P. 468.
4 Walmsley v. Robinson, 63 111. 41, s. o. 14 Am. R. Ill ; and see Gates v. McKin-
ney, 48 Incl 662, 567.
8 Lecky v. Bloser, 24 Penn. St. 401.
Southard v. Rexford, 6 Cow. 254 ; Hubbard v. Bonesteel, 16 Barb. 360; Ilotch-
kiss v. Hodge, 38 Barb. 117, and cases cited.
7 Such, for instance, as her making no objections at the time of the offer, and
from her receiving defendant's visits as a suitor. Wells v. Padgett, 8 Barb; 323, and
cases cited ; Rose. N. P. 468.
8 Hook v. Georee, 108 Mass. 324, 331.
9 Button v. McCauley, 1 Abb. Ct. App. Dec. 282, s. c. 5 Abb. Pr. N. S. 29, rev'g
38 Barb. 413.
10 Walmsley v. Robinson, 63 111. 41, s. o. 14 Am. R. 111. Nor is that of her par-
. ent. Lawrence v. Cooke, 86 Me. 187, 195.
II See Cates v. McKinney, 48 Ind. 662, 666, s. o. 17 Am. R. 768.
L676]
ACTIONS FOR BREACH OF PROMISE OF MARRIAGE. 677
acts of preparation for the wedding, 1 and her declarations made
as part of the res gestoa of such acts, and showing the matrimonial
intent, are competent in her favor. a Such declarations are com-
potent evidence of a promise in her favor, although made in de-
fendant's absence. 8
The time of the promise is not material ; 4 but the time fixed
by the promise, if any, for its performance, is material. 5 A. con-
dition or contingency expressed is material ; 6 unless it be such as
is implied by law. 7
2. Letters^ The fact of correspondence is competent with-
out producing the letters. 8 To prove the contents the originals
must be produced, or be accounted for to let in secondary evi-
dence. Destruction may be explained. 9 Plaintiff's putting in
evidence one or more of defendant's letters does not require her
to put in others ; 10 and putting in evidence his letters does not re-
quire her to put in hers, nor raise a presumption that they con-*
tain evidence against her. 11 The other side may read the con-
nected parts of the correspondence. But one who has put in evi-
dence, properly, a letter of the other, which shows that it was
written in answer to a previous letter, may also put in the pre-
vious one as tending to explain the answer. 12 A letter written by
plaintiff's parent with her knowledge and without dissent, is com-
petent against her, though she would not be answerable for par-
ticular expressions in it. 13
The rules, for proving handwriting have already been stated. 14
3. Affection.'] Witnesses who are shown to have had suf-
ficient opportunities of observation, 15 may testify whether or not
in their opinion, one party was sincerely attached to the other. 16
The engagement having been proved, plaintiff's declarations of
present emotion of affection and happiness, as distinguished from
I Wilcox v. Green, 23 Barb. 639.
9 Id. ; unless made after rupture. "Wetmore T. Mell, 1 Ohio St. 26.
8 Lccky v. Blosor, 24 Penn. St. 401, 406.
4 Fowler v. Martin, 1 Supm. Ct. (T. & C.) 877. A promise to marry generally is,
in law, a promise to marry within a reasonable time; and although an admission of a
special promise to marry at a particular time should be proved in eviduuce, it may
be left to a jury to infer from the circumstances, a more general promise. Potter v.
Deboos, 1 Stark. 82 ; Phillips v. Crutchley, 1 Moore t P. 239; Rose. N. P. 468.
8 Martin v. Patton, 1 Litt. (Ky.) 233.
6 Conrad v. Williams, 6 Hill, 444; Rose. N. P. 469.
7 Waters v. Bristol, 26 Conn. 398, 403.
8 Conaway v. Shelton, 3 Ind. 334.
9 Fowler v. Martin, 1 Supm. Ct. (T. A C ) 377 ; and see p. 390 of this vol. note 2.
10 GRAY, J., Stone v. Sanborn. 104 Mass. 319, s. c. 6 Am. R. 288.
II Law v. Woodruff, 48 111. 399.
Trischet v. Hamilton Ins. Co. 14 Gray, 456 ; Strong v. Strong, 1 Abb. Pr. N.
S. 233.
13 Rose. N. P. 470.
14 P. 393, <fec. of thia vol. Hoitt v. Moulton, 21 N. H. (1 Fost.) 586.
16 This is essential. Tompkins v. Wadley, 8 Supm. Ct. (T. & C.) 424.
16 M'Kee v. Nelson, 4 Cow. 355; Sprague v. Craig, 51 11L 28&
C78 ACTIONS FOR BREACH OF PROMISE OF MARRIAGE.
narratives of the past ; and, its breach having been proved, her
similar declarations of pain and distress ; are competent in her
favor upon principles already stated. 1
4. Breach.] Breach may be proved, either by evidence of
another marriage by defendant, making performance impossible ; 2
or by an express breaking off of the engagement ; 8 or by circum-
stantial evidence. 4 Evidence of defendant's declarations, that he
never intended to marry the plaintiff, is admissible. 8 Plaintiff
need not prove a tender of marriage on her part. 6 Slight evidence
of a request is sufficient, 7 when any is necessary. 8
5. Damages.'} In enhancement of damages, the pecuniary
circumstances of the defendant, 9 the announcement of engage-
ment, and the advanced preparations for wedding at the time of
breach, are competent ; 10 and an unsuccessful attempt by defend-
ant, either in pleading n or in evidence, 13 to rest his defense in
whole or in part on charges of bad character or improper conduct
on the part of plaintiff, is competent in aggravation. 13
Seduction under the promise, if pleaded, 14 is competent in ag-
gravation of damages. 15 Loss of health is special damage, not
admissible unless alleged. 16
6. Defense?*] To invoke the statute of frauds, 18 it must ap-
pear that the terms of the promise were to the effect that the
1 P. 599 of this vol. ; SWAYNE, J., in 9 Wall. 405.
2 Sheahan v. Barry, 27 Mich. 217, 223; Rose. N. P. 469; Frost v. Knight, L. R.
7 Ex. Ill, rev'gL. R. 5 Ex. 322.
3 Cherry v. Thompson, L. R. 7 Q. B. 573.
4 Hubbard v. Bcnesteel, 16 Barb. 360.
1 Green v. Spencer, 3 Mo. 225, 227.
6 Johnson v. Caulkins, 1 Johns. Cas. 116 ; Willard v. Stone, 7 Cow. 22.
7 Kniffen v. McConnell, 30 N. Y. 285 ; Green v. Spencer, 3 Mo. 225, 228.
8 Martin v. Patton, 1 Lilt. (Ky.) 233.
9 Lawrence v. Cooke, 56 Me. 187, 193 ; as distinguished from those of his family.
Miller v. Rosier, 31 Mich. 475, 478.
10 Reed v. Clark, 47 Cal. 194, 199.
11 Thorn v. Knapp, 42 N. Y. 474.
12 Kniffen v. McConnell, 30 N. Y. 285.
13 To the contrary, unless bad faith is shown, are Powers v. Wheatley, 45 Cal. 113 ;
Reed v. Clark, 47 CaL 194, 203. And this is the rule now recognized in libel
Page 667 of this vol.
'* Otherwise not admissible if the statute gives an action for seduction alone.
Catcs v McKinney, 48 Ind. 562, s. c. 17 Am. R. 768.
15 Kniffen v. McConnell, SO N. Y. 285 ; Kelley v. Riley, 106 Mass. 339 ; Shrahan
V. Barry, 27 Mich. 217; Green v. Spencer, 3 Mo. 225 ; Sauer v. Schulenberg, 33 Md.
288, s. c. 3 Am. R. 174, disapproving decisions in Pennsylvania and Kentucky; see
Johnson v. Smith, 3 Pitts. 184.
16 Bedell v. Powell, 13 Barb. 183.
" Infancy of defendant a defense. Fiebel v. Obersky, 13 Abb. Pr. N. S. 402, n.
Precontract of plaintiff no defense. Roscoe N. P. 470; Roper v. Clay, 18 Mo. 383.
As to previous marriage of either party, see Paddock v. Robinson, 63 111. 99, s. c. 14
Am. R. 112 ; Cover v. Davenport, 1 Heisk. 368, B. o. 2 Am. R. 706; Kelley v. Eiley,
106 Mass. 339, 342.
18 2 N. Y. R. 8. 135, 2; Nichols v. Weaver, 7 Kans. 873, 377.
ACTIONS FOR BREACH OF PROMISE OF MARRIAGE. 679
marriage was not to bo performed within one year. 1 A release or
exoneration of defendant from his promise may be implied from
the conduct and demeanor of the parties. 2
7. j unification of breach.] The presumption is that be-
fore engagement the parties satisfied themselves as to each other's
character, and that all objection to previous loose conduct was
waived. 8 Subsequent unchastity on plaintiffs part, 4 or previous
unchastity affirmatively shown to have been unknown to plaintiff
at the time of the engagement, 5 is competent. Otherwise of
mere rumors or repute of unchastity. 6
8. mitigation."*] Any misconduct of plaintiff after breach,
showing that she would be an unfit companion in married life, is
competent in mitigation. 8 The burden is on plaintiff to show de-
fendant's connivance in such misconduct, if it be relied on. 9 To
show defendant's good faith, he may prove the objection of parents
as a ground of breach. 10 If plaintiff has given evidence of defend-
ant's wealth, defendant may show that property imputed to him
he had lost before the breach, or had lost by involuntary transfer
after breach, upon contracts made before the breach. 11 Evidence
of poverty at the time of trial is irrelevant. 12 If plaintiff has
proved a reason assigned by defendant for breach, defendant may
prove its truth if it tends to mitigate damages. 13 Declarations of
plaintiff disavowing affection and all other than mercenary mo-
tives, are admissible, if made 'before the commencement of the
action, though after breach, 14 but not if made after commencement
of action. 15
Plaintiff's general character (that is, reputation) as to virtue
and sobriety, is relevant on the question of damages ; 18 but evi-
1 Lawrence v. Cooke, 66 Me. 187, 193.
8 Roscoe N. P. 470.
3 S.jrague v. Craig, 61 HI. 288, 296.
4 Id. Ui.less seduction by defendant has been shown, and breach without nssij^i-
ing just grounds, in which case other iucontinence discovered after breach goea only
in mitigation and not in bar. Sheahan v. Barry, 27 Mich. 217, 222. Bad character
of a relative is no bar. Sherman v. Rawson, 102 Mass. 395, 400.
6 Irving v. Greenwood, 1 Carr. <fe Payne, 350.
6 Boies v. McAllister, 12 Me. (3 Fairf.) 308.
7 According to Button v. McCaul(-y, 1 Abb. Ct. App. Dec. 282, s. c. 6 Abb. Pr. N.
S. 29, rev'g 88 Barb. 413, and Tompkins v. Wadley, 3 Supm. Ct. (T. & C.) 4. '4, 430,
mitigating circumstances may be proved without being pleaded. But compare the
rule in slander and libel ; p. 672 of this vol.
8 Butt >n v. McCuuley, 1 Abb. Ct. App. Pec. 282, s. c. 2 Abb. Pr. N. S. 29, rev'g
38 Barb. 413 ; Palmer v. Andrews, 7 Wend. 142.
9 Id. ; Kniffen v. McConncll, 30 N. Y. 235.
10 Irving v. Greenwood, 1 l'ar;\ <fe Payne, 350 ; Johnson v. Jenkins, 24 N. Y. 252.
11 Spraguo v. Craig, 61 111. 288, 291.
Id.
13 Johnson v. Jenkins (above).
14 MilliT v. Rosier, 81 Mich. 475, 477.
15 Miller v. Hayes, 84 Iowa, 496, s. c. 11 Am. R. 154.
" Johnson v. (. aulkins, 1 Johns. CUB. 110 ;. Will.ird v. Stone, 7 Cow. 22; Palmer
V. Andrews, 7 Wend. 142. These cases allow evidence of bad repute after the
680 ACTIONS FOB BREACH OF PROMISE OF MARRIAGE.
denco of bad character relied on in bar must show charges well
founded, 1 and unknown to plaintiff when he made the engage-
ment.
The mode of proving character has been already stated. 8
"Where chastity and not mere reputation is in issue, specific
acts of unchastity may be proved. 8
breach, but it is certainly otherwise in case of seduction. Boynton v. Kellogg, 3
Mass. 189, 192. Compare the rule in slander and libel, p. 674 of this vol.
1 Roscoe N. P. 470.
* See p. 674 of this vol.
8 Ford v. Jones, 62 Barb. 484.
CHAPTEE XLV.
ACTIONS FOR SEDUCTION OR ENTICING AWAY.
1. Husband's action for enticing. 5. Loss of service.
2. Master's action. 6. Good faith.
8. Parent's action. 7. Character.
4. Seduction. 8. Defense.
1. Husband's action. .] In a husband's action for enticing
away, as distinguished from an action for criminal conversation, 1
direct proof of formal marriage is not necessary. Evidence of
cohabitation and repute, and of defendant's admissions that
plaintiff and his alleged wife were married, is sufficient. 2 If it
appear that defendant aided her to leave, at her request, upon her
complaint of ill-usage, the burden of proof is upon plaintiff to
prove an unlawful motive or design on defendant's part. 3 If de-
fendant is the father of the wife, the presumption is that he
acted from paternal affection rather than from improper motives. 4
2. Master's action.'] To recover for enticing from service, it
must appear that the servant was at the time in plaintiffs actual
service, and that defendant's inducement was the moving cause
of desertion. 5 There must be some evidence of defendant's
knowledge of the relation. 6
3. Parent's action."] The rules as to proving parentage are
elsewhere stated. 7 ' Proof of the slightest degree of service is
sufficient, 8 provided it included the time of the wrong, 9 or some
part of it. 10 Where there is no evidence of actual service, evi-
dence that the parent's marriage was void is competent, to rebut
1 See next chapter.
4 Scherpf v. Szadeczky, 1 Abb. Pr. 366, s. c. 4 E. D. Smith, 110 ; see page 79 of
this vol.
3 Barnes v. Allen, 1 Abb. Ct. App. Dec. Ill, s. o. 1 Keyes, 390, rev'g 30 Barb.
668 ; see, also, Bennett v. Smith, 21 Barb. 439 ; Schuneman v. Palmer, 4 Barb. 225.
4 Ilutcheson v. Peck, 5 Johns. 196.
6 Caughey v. Smith, 47 N. Y. 244 ; and see Bixby v. Dunlap, 56 N. H. 466, s. c.
22 Am. R. 475, and note.
6 Id. ; and see Stuart v. Simpson, 1 "Wend. 377.
* Pages 382 and 87 to 89 of this vol.
8 Moran v. Dawes, 4 Cow. 412 ; Badgley v. Decker, 44 Barb. 577, and cases cited.
Compare Blanchard v. Ilslev, 120 Mass. 487, s. c. 21 Am. R. 535 ; Kennedy v. Shea,
110 Mass. 147, 8. o. 14 Am. R. 584.
9 Hedges v. Tagg. L. R. 7 Ex. 283, s. c. 2 Moats Eng. 679.
10 See Evans v. Walton, L. R. 2 C. P. 615.
[G31]
682 ACTIONS FOR SEDUCTION OR ENTICING AWAY/
a presumption of actual service by showing that the plaintiff was
not legally entitled to her services ; and in mitigation of dam-
ages. 1 *
4. Seduction.'] The circumstances under which the female
was seduced, and the means used for effecting it, and corrupting
her mind, may be shown. 8 But promise of marriage cannot be
proven, 3 unless, perhaps, when offered for a special purpose, as,
for instance, to rebut evidence of a father's negligent exposure of
his daughter. 4
5. Loss of service.'] There must be some evidence from which
loss of service may be inferred. 5 In the case of seduction, either
pregnancy, 6 or impairment of health, 7 is enough. Procuring an
abortion is competent in aggravation. 8
6. Good faith.~] Defendant, to show good faith, want of
knowledge; &c., may prove declarations made by the wife or
servant at the time the defendant received him or her, 9 or at the
time of alleged ill treatment, 10 stating apparent good cause for
leaving plaintiff. The fact that he did not inquire of plaintiff as
to the truth of the reports of cruelty on which he acted is only
a circumstance for the jury. 11
1. Character.'] The character of the parent, 13 and that of the
house in which the child, being a minor, resided with her parent, 13
are irrelevant.
Evidence of the girl's previous good character for chastity is
not competent in the first instance as part of plaintiff's case, 14
except as it may legitimately bear on the value of services. 15
Defendant, in mitigation of damages, may show the girl's
previous bad character for chastity, 18 and specific instances of pre-
vious lascivious conduct on her part ; 17 but neither, subsequent to
1 Howland v. Howland, 114 Mass. 617, s. c. 19 Am. R. 381.
s Bracy v. Kibbe, 31 Barb. 273 ; Kennedy v. Shea, 1 10 Mass. 147, s. o. 14 Am. R.
684.
3 Clark v. Fitch, 2 "Wend. 459; Gillet v. Mead, 7 Id. 193; Brownell v. McEwen,
6 Den. 307. Contra, White v. Campbell, 13 Gratt. 673 ; Mudd v. Clements, 3 Cranch
C. Ct. 3 ; and see Rose. N. P. 676.
4 Whitney v. Elmer, 60 Barb. 250.
5 Ilewit v. Prime, 21 "Wend. 79, and cases cited.
6 Id. ; In^crson v. Miller, 47 Barb. 47.
7 Abrahams v. Kidney, 104 Mass. 222, B. c. 6 Am. R. 220; "White v. Nellis, 31
N. Y. 405.
8 White v. Murtland, 71 111. 250, a c. 22 Am. R. 100.
Caughey v. Smith, 47 N. Y. 244.
10 Barnes v. Allen, 1 Abb. Ct. App. Dec. Ill, s. c. 1 Kcyes, 390, reVg 30 Barb.
663.
11 Smith v. Lyke, 13 Hun. 204.
" Dain v. "Wyckoff, 18 N. Y. 45.
13 Kenyon v. People, 26 N. Y. 203, affi'g People v. Kenycn, 5 Park Cr. 264.
14 Bracy v. Kibbc, 31 Barb. 273 ; 1 Whart. Ev. 65, 60.
>B 1 Whart. Ev. 65, 51.
le 1 Whnrt. Ev. G5, 51.
" Bracy v. Kibbe, 31 Barb. 273; Dodd v. Norris, 3 Campb. 519.
ACTIONS FOR SEDUCTION OR ENTICING AWAY. 683
his seduction of her. Defendant is not bound by her answers as
to such matters on cross-examination. 1 If defendant gives general
evidence of bad character for chastity, before the alleged wrong,
plaintiff may rebut it by general evidence of good character. 2
8. Defense."] Plaintiff's consent or connivance is not admis-
sible as a bar, unless pleaded. 3 An offer of marriage is not ad-
missible in mitigation. 4
1 Hogan v. Cregan, 6 Robt. 138.
8 Pratt v. Andrews, 4 N. Y. 493, 495, and cases cited.
8 Travis v. Barger, 24 Barb. 614; but see Chapter on GRIM. CON.
* Ingersoll v. Jones, 5 Barb. 661, especially if made after suit brought. White v.
Murtland, 71 111. 250, s. c. 22 Am. R. 100.
CHAPTER XLYI.
ACTIONS FOR CRIMINAL CONVERSATION.
1. Competency of witnesses. 6. Loss of consortsbip : Damages.
2. Marriage. 6. Defenses,
8. Affection and domestic happiness. 7. Character.
4. Criminal intercourse.
1. Competency of witnesses.'] Plaintiff is a competent wit-
ness for either party, 1 subject to the restrictions as to disclosing
confidential communications already stated. 2 His wife is not a
competent witness for him, 3 but is now competent for defendant,
with somewhat similar restrictions. 4
Defendant is a competent witness for plaintiff, subject to his
privilege from criminating himself 5 in those jurisdictions where
adultery is a crime. He is competent as a witness on his own be-
half ; but, if called, it is usually with the effect of waiving his
privilege on cross-examination. 6
2. Marriage.'] Marriage must be proved by direct evidence. 1 '
Permanent separation by a valid agreement, so that the husband
1 He was incompetent at common law, on grounds of public policy independent
of his incompetency as a party. Rex v. Luffe, 8 East, 1 93 ; Dennison v. Page, 29
Penn. St. 420, 423 ; Ratcliff v. Wales, 1 Hill, 63. And in those States where the
statute only removes the incompetency of parties, it is the better view that the hus-
band is still incompetent in his own favor in this class of actions. Manchester v.
Manchester, 24 Vt. 649 ; Dwelly v. Dwelly, 46 Me. 377 ; Hasbrouclc v. Vandervoort,
9 N. Y. 153; p. 166 of this vol. note. On the injustice of admitting the one when
the other cannot be admitted, see Baylis v. Baylis, L. R. 1 Pr. & D. 395 ; Conradi v.
Conradi, Id. 514; Harding v. Harding, 4 Sw. & Tr. 145, 149 ; Blackborne v. Black-
borne, L. R. 1 Pr. <fc D. 563; Mordaunt v. Mordaunt, L. R. 2 Pr. & D. 109, 124.
4 Page 165 of this vol.
3 Page 165 of this vol. ; Hicks v. Bradner, 2 Abb. Ct. App. Dec. 362 ; Rea v.
Tucker, 51 111. 110. Unless after divorce. Ratcliffe v. Wales, 1 Hill, 63 ; Dicker-
man v. Graves, 60 Mass. (6 Cush.) 308.
4 Page 165 of this vol.
The rule as to the competency of declarations of the wife is stated at p. 166 of
this vol.
5 For the general rule as to the privilege, see p. 620 of this vol.
6 See Boardman v. Boardman, L. R. 1 Pr. <fe 1). 233 ; Tappan v. Butler, 7 Bosw.
480.
7 The mode of proof is that stated at pp. 79 and 80 of this vol. Hutchins v.
Kimmell, 31 Mich. 126, s. c. 18 Am. R. 164; Birt v. Barlow. 1 Dougl. 171 ; Hem-
mings v. Smith, 4 Id. 33 ; Nixon v. Brown, 4 Blackf. 157. Contra, as to husband's
competency, Dann v. Kingdom, 1 Supm. Ct. (T. & C.) 492; but see N. Y. Code Civ.
Pro. g 829-31, removing incornpetency. Where ceremonies of marriage in a for-
eign conntry, with cohabitation following it, are shown by official certificates duly
authenticated, it is presumptively a valid marriage, and it is not necessary to prove
the foreign law of marriage. Hutchins v. Kimmell (above).
[684]
ACTIONS FOR CRIMINAL CONVERSATION. 685
had no right to the society and assistance of his wife at the time
of the alleged intercourse, is a bar. 1 Unless the separation is
legal and permanent, it goes in mitigation only. 2
3. Affection and domestic happiness. .] To show the affection
and domestic happiness of the husband and wife, it is competent
to prove expressions of affection and regard used by either in the
presence of the other, 3 and the wife's manner of speaking and
writing of her husband even when absent from him ; 4 their let-
ters to each other. 5 The opinions of witnesses, who are shown to
have had sufficient means of observation, as to the affection of
the wife for her husband, 6 the happiness of the marriage, 7 &c.,
are competent within the same limits that evidence of decla-
rations would be. 8 Evidence of the declarations, letters, &c.,
or manner of the husband, should be confined to the period
before his first suspicions of his wife. Evidence of those of the
wife should be confined to the period before her intimacy with
the defendant. 9 The date of a letter is not, for this purpose,
sufficient pri ma facie evidence of the time when it was written. 10
4. Criminal intercourse. ] Though the gist of the action is
the loss of consortship, 11 criminal intercourse, being alleged, must
be proved. 13 Under an allegation general as to time, illicit inter-
course at any time within the period is admissible, but in case of
surprise an adjournment may be allowed. 13
Kales as to the mode of proving adulterous intercourse, and the
admissibility of the evidence under the issue, and the limits of
time, are the same as in actions for divorce, subject to the quali-
fications stated in this chapter. Neither a judgment of divorce
against the wife, nor the confessions of the wife are competent
against plaintiff, except in the cases stated at p. 166 of this vol.
5. Loss of consortship : 14 Damages.] Evidence of defendant's
1 Weedon v. Timbrell, 5 T. R. 357, as explained in Chambers v. Caulfield, 6 East,
244 ; Graham v. Wigley, 2 Bright'* H. & W. 352 ; and reiterated in Harvey v. Wat-
son, 7 Mann. & G. 644; and see Fry v. Derstler, 2 Yeates (Penn.), 278.
2 Buller N. P. 27 ; 1 Selw. N. P. 10.
* Edwards v. Crock, 4 Esp. 39 ; Preston v. Bowers, 13 Ohio St. 1.
4 Jones v. Thompson, 6 Carr. & P. 415 ; Willis v. Bernard, 8 Bing. 376, s. c. 5
Carr. & P. 342.
8 Trelawney v. Coleraan, 1-Barnew. & Aid. 90 ; Edwards v. Crock (above).
6 Trelawney v. Coleman, 2 Stark. 191.
1 Bell v. Bell, 1 Sw. & Tr. 565.
8 Bowie v. Maddox, 29 Geo. 285.
9 Cases in notes above ; Wilton v. Webster, 7 Carr. <fe P. 198.
10 Houliston v. Smyth, 2 Carr. <fe P. 22 ; Trelawney v. Coleman, 1 Barnew. <t Aid.
90; Edwards v. Crock (above); s. P. p. 13 of this vol.
11 Weedon v. Timbrell, 5 T. R. 357.
12 Winsmore v. Greenbank, Willes, 577, 581 ; Wood v. Matthews, 47 Iowa, 409,
s. o. 8 Reporter, 143.
18 Coddington v. Coddington, 4 Sw. <fe Tr. 63.
14 As to causes of separation, see p. 179 of this voL
686 ACTIONS FOR CRIMINAL CONVERSATION.
wealth is not competent. 1 The pecuniary circumstances of plaint-
iff are not relevant. 3
The means used by defendant to obtain an intimacy 3 and cor-
rupt the mind 4 of the wife, are competent, and the situation of
plaintiff's children who were dependent on the wife's care. 5
6. Defenses.'] Under the general issue may be proved any-
thing which goes to show that plaintiff never had a cause of ac-
tion, by negativing any matter of fact alleged or necessary to be
proved (as distinguished from avoiding conclusions of law), e. <?.,
that he was never married, that the intercourse alleged was by
his license or connivance, that his delay to sue or disavowals of a
cause of action throw suspicion on his case ; as well as all matters
merely in mitigation, such as evidence of his or his wife's bad
character, of his unhappy domestic life, of the degree of suffer-
ing, &c. And, on the other hand, any matter which confesses
and avoids the cause of action, e. <?., condonation, release, a for-
mer recovery for the same cause, &c., must be pleaded in order
to be admissible. 6 Plaintiffs consent to the adultery at the time
may be proved in bar. In mitigation may be proved, the hus-
band's gross negligence or inattention to the conduct of his wife
with respect to the defendant ; 7 any circumstances tending to con-
trovert the affection and domestic happiness of the husband and
wife before the alleged wrong ; 8 or that he had put away his wife
and charged her with misconduct before the alleged intercourse. 9
Condonation with the wife is a mitigation, and throws great
doubt on any testimony of the husband to guilt, 10 if not a bar. u
1 James v. Biddington, 6 Carr. <fc P. 589, followed in Kniffen v. McConnell, 30 N. T.
285, 289 ; Bell v. Bell, 1 Sw. & Tr. 569; Wilson v. Leonard, 5 Ir. Jur. O. S. 101. Ex-
cept in those jurisdictions were punitory damages are allowed to be enhanced accord-
ing to the means of the wrong-doer. Peters v. Lake, 66 111. '206, s. c. 16 Am. R. 593.
2 Norton v. Warner, 9 Conn. 172. Contra, Thompson v. Glenderminp:, 1 Head
(Tenn.), 297 ; Massey v. Headford, Phila. P. Byrne, 1804 ; Rea v. Tucker, 51 111. 110.
3 Massey v. Heaciford (above).
4 Campbell v. Hook, Major Hook's Defense, Lond. J. Murray, 1793.
5 See Bedford v. McKowl, 8 Esp. 1 19.
6 This is the common law rule, and in harmony with the general principles of
pleading under the Code established in McKyring v. Bull, 16 N. Y. 297. To the
same effect, in part, Travis v. Barger, 24 Barb. 614. Compare the rulings in Slan-
der and Libel (p. 659 of this vol.) and in Breach of Promise (p. 676 of this vol.).
1 Duberley v. Gunning, 4 T. R. 657, approved and followed in Bunnell v. Great-
head, 49 Barb. 106. To the same effect is the unreported case of Trevannion v.
Danbuz, mentioned in 1 Steph. N. P. 7 ; Lowe v. Massey, 62 111. (Freem.) 47 ; Smith
v. Masten, 15 Wend. 270.
8 Smith v. Masten, 15 Wend. 270; Palmer v. Crook, 7 Gray, 418 ; Coleman v.
White. 43 Ind. 429. And, for this purpose, may show specific acts of cruelly. Isarra-
cott v. Narracott, 3 Sw. <fe Tr. 408. The wife's declarations are competent for this
purpose within limits already stated. Paragraph 3, and page 179 of this vol.
9 Winter v. Henn, 4 Carr. <fe P. 494.
10 State v. Marvin, 35 N. H. 22.
11 On this question, see, in the affirmative, Aiken v. Macree, 2 Shaw's Dig. 842, Pi
706; Norris v. Nonis, 30 L. J. Mat. Cas. Ill ; Adams v. Adams, L. R. 1 Pr. & D.
833 ; negative, Foley v. Lord Peterborough, 4 Dougl. 294 ; Sauboru v. Neilson, 4 N.
H.501.
ACTIONS FOR CRIMINAL CONVERSATION. C87
7. Character.'] Defendant's character is not in issue in this
action ;* hence evidence of his good character is not admissible, 2
in the absence of evidence directly attacking it. 3
Plaintiffs character and moral principles are in issue 4 for
purposes of mitigation ; hence his adulteries at any time after
marriage and before trial, 5 and equally his gross immoralities, 6
and his avowals of profligate principles, 7 are competent in miti-
gation. 8
Evidence impeaching the chastity of the woman previous to
the alleged offense, is admissible in mitigation. 9 Evidence of the
general good character, that is reputation, of the wife, prior to
the alleged familiarities of defendant, is not admissible if no evi-
dence impeaching her character has been given. 10
1 Cox v. Pratt, 25 Ind. 90; Trial of Swensden, 14 How. St. Tr. (17^2), 589, 590.
8 Ziter v. Merkel, 24 Peiin. St. 408 ; Magninay v. Saudek, 5 Sneed (Tenn.), 14C.
8 Cox v. Pruitt (above). The expression "putting character in issue," does not
mean that a man's reputation is imperiled by the result of the action, but that the
character is of particular importance in determining the issue or the measure of darn-
ages. Ford v. Jones, 62 Barb. 484; Porter v. Seller, 23 Penn. St. 424; see, also,
p. 673-5 of this vol.
4 Smith v. Hasten, 15 Wend. 270 ; Foot v. Tracy, 1 Johns. 46, 61.
6 Id. ; Shattuck v. Hammond, 46 Vt. 466, s. c. 14 Am. R. 631 ; Sanborn v. Neil-
son, 4 N. H. 501 ; Rea v. Tucker, 51 111. 110.
6 Bennett v. Smith, 21 Barb. 439. Contra, Norton v. Warner, 9 Conn. 171. .
7 See Robinson v. Burton, 5 Harr. (Del.) 335.
8 Bromley v. Wallace, 4 Esp. 237 ; Harrison v. Price, 22 Ind. 165.
9 Gregson v. MTaggart, 1 Campb 415; Elsam v. Faucett, 2 Esp. o62 ; Ilarter V.
Crill, 33 Barb. 283; Smith v. Milburn, 17 Iowa, 30; Rea v. Tucker (above); Motty.
Goddard, 1 Root, 472; Davenport v. llussell, 5 Day, 145 ; Torre v. Summers, 2 N.
& M. 267; Verry v. Watkins, 7 Carr. <fe P. 308; Hogan v. Cregan, 6 Robt. 138;
Thompson v. Glendenning, 1 Head (Tenn.), 296 ; Camp v. The State, 3 Geo. (Kelly),
417 ; Conway v. Nicol, 34 Iowa, 533.
10 Pratt v. Andrews, 4 N. Y. 493.
CHAPTER XLVII
ACTIONS TO RECOVER POSSESSION OF SPECIFIC PERSONAL
PROPERTY (REPLEVIN).
1. Existence and identity of the thing. 6. Damages.
2. Plaintiff's ownership. 7. Declarations and admissions of for-
8. Defendant's taking and possession. mer possessor.
4. Fraud. 8. Defense.
5. Demand.
1. Existence and identity of the thing, ,] As the action is to
recover a specific thing, plaintiff's evidence must sustain an infer-
ence that it existed, as such * at the time of commencing the ac-
tion ; 2 and show its identity sufficiently to enable the court to give
judgment for what is to be delivered. 3 Declarations made by or
in presence of a party and constituting a part of the res gestcB of
his possession, are competent on the question of identity/
2. Plaintiff's ownership^ Plaintiff must prove that he 5 had
a legal 6 or equitable 7 right to immediate possession 8 at the com-
mencement of the action, 9 and this is enough. Right to the pos-
session and dominion of the goods for the time is all that is essen-
tial. 10 Ownership may be proved under a general allegation, desig-
nating the things as the " goods of the plaintiff." n
I Sager v. Blain, 44 N. Y. 445. A recovery as for money had and received can
not be maintained.
3 Under the new procedure this is usually the time of service. N. Y. Code Civ.
Pro. 416 ; \Viggin v. Orser, 5 Duer, 118 ; Tracy v. N. Y. & Harlem R. R. Co. 9
Bosw. 396. In those jurisdictions where the issue of the writ is the commencement,
the hour may be proved by extrinsic evidence (Knowlton v. Culver, 1 Chand. [Wis.]
214), and the date of the writ is not conclusive. Welles Replev. 425, 792.
3 Graves v. Dudley, 20 N. Y. 76. The identification must be the more complete
if it appears thst defendant has several of the same kind. Id. For the mode of
proof in other respects, see pp. 632 and 633 of this vol. Undertaking and affidavit
in claim and delivery, held not evidence of identity. Talcott v. Beldino-, 36 Super.
Ct. (4 J. AS.) 84.
4 Crowtlier v. Gibson, 19 Mo. 365 ; Yarbrough v. Arnold, 20 Ark. 592, 597.
6 Rogers v. Arnold, 12 Wend oO.
6 M'Curdy v. Brown, 1 Duer, 101 ; Dodworth v. Jones, 4 Duer, 201 ; Rockwell v.
Saunders, 19 Barb. 473.
1 Frost v. Mott, 34 N. Y. 253.
8 A right by virtue of a lien is enough. Baker v. Hoasr, 7 F. Y. 555 (overruling
3 Barb. 203); Baker v. Hoag, 7 Barb. 113 ; Fitzhugh v. Wiman, 9 N. Y. 559. For
the mode of proof in an action by an officer, see pp. 197 and 605.
9 See note 2 to paragraph 1.
10 Johnson v. Carnley, 10 N. Y. 570.
II Simmons v. Lyons, 55 N. Y. 671, affi'g 35 N. Y. Super. Ct. (3 J. A S.) 554.
Under an allegation of absolute ownership, proof of a lien only is a variance, but
usually amendable. Rucker v. Donovan, 13 Kans. 251, s. c. 19 Am. R. 84.
[688]
ACTIONS TO REPLEVIN SPECIFIC PERSONAL PROPERTY. 689
If title is expressly alleged and put in issue, the burden is on
plaintiff to prove title, even though defendant lias affirmatively
alleged an adverse title as his defense. 1 The quiet and peaceable
possession by plaintiff of the property, at the time of seizure, is
prima facie evidence of his title, and throws the burden on de-
fendant of proving the contrary ; 2 but possession is not sufficient
evidence of title as against direct evidence of title in defendant,
or even evidence of prior possession in him under claim of title. 8
If plaintiff proves ownership and right to immediate posses-
sion, he need not prove that he ever had possession. 4
Subject to the qualification that plaintiff must prove imme-
diate right of possession of a thing in existence at the commence-
ment ol the action, his right is proved as in case of conversion. 5
Evidence can not be received for the purpose of litigating the
title of land under the form of an action for replevin ; 6 but, for
the purpose of determining the ownership of products of the
land, plaintiff may prove a title 7 or right of possession 8 in the
land, such as to give that ownership, if defendant was a trespasser,
or had not paramount title or a ripe adverse possession. 9 It is no
objection that title to the land is not alleged in the pleading. 10
3. Defendant's taking and possession.'] Evidence of actual,
forcible dispossession of plaintiff is not necessary ; any unlawful
interference with another's property or exercise of dominion
over it, by which the owner is damnified, is sufficient. 11 If de-
fendant is shown to have had possession, and either wrongfully
parted with it, 12 or was privy to a demand and refusal, 13 his lack of
possession at the commencement of the action is not material.
A conversion need not be proved merely because alleged. 14
An undertaking or bond on which defendant obtained the re-
turn of the property under the statute is competent in disproof
of his denial that he had detained it. 15
1 Reynolds v. McCormick, 62 111. 412 ; Morgner v. Biggs, 46 Mo. 65 ; Chandler v.
Lincoln, 62 111. 74.
2 Schulenberg v. Harriman, 21 Wall. 44, 59 Robertson v. Brown, 1 N. Y. Leg.
Obs. 297.
3 Wells Replev. 67-9, 109-16.
4 Clark v. Skinner, 20 Johns. 465; Dunham v. Wyckoff, 3 Wend. 280; Neffv.
Thompson, 8 Barb. 213.
8 Fagfs 623 and 624 of this vol.
8 Wells Replev. 60-4, 79-89.
7 Hart v. Vinsnnt, 6 Heisk. (Tenn.) 616.
8 Halleck v. Mixer, 16 Cal. 574, for the mode.
' For the mode of proof, see p. 634 of this vol., and Chap. XLVTII.
10 Grewell v. Walden, 23 Cal. 165, 169.
11 Allen v. Crary, 10 Wend. 349; Fonda v. Van Home, 15 Id. 631 ; Hymann v.
Cook, 1 How. App. Cas. 419; Knapp v. Smith, 27 N. Y. 277; Latimer v. Whoeler
(below). Compare Bent v. Bent, 44 Vt. 633. For the mode of proof in an action
against an officer, see pp. 198-202, 606-12. 631.
14 Nichols v. Michai-1, 23 N. Y. 264 ; Dunham v. Troy Union R. R. Co. 1 Abb. (X
App. Dec. 566.
13 Latimer v. Wheeler, 8 Abb. Ct. App. Dec. 35, affi'g 30 Barb. 485.
14 Vogel v. Badcock, 1 Abb. Pr. 176. For the mode of proof, see p. 626 of this vol.
15 Black v. Foster, 7 Abb. Pr. 406, s. c. 28 Barb. 387 ; but does not admit cause of
action. Church v. Frost, 3 Supm. Ct. (T. fc C.) 31&
44
690 ACTIONS TO REPLEVIN SPECIFIC PERSONAL PROPERTY.
4. Fraud] A fraud by which defendant obtained the goods
from plaintiff may be proved though not alleged. 1
5. Demand] Demand may be proved though not alleged. 3
Proof of a wrongful taking by defendant dispenses with the ne-
cessity of evidence of demand to sustain the action against him. 8
G. Damages] Damages which are the natural result of the
circumstances of the talking may be proved in connection with
those circumstances, although those circumstances are not alleged ; 4
and so may depreciation in value, from naturally expected cause,
during detention ; 5 but special damages must be specially alleged.
Appraisement under the statute is not conclusive evidence of
value. 6
7. Declarations and admissions of former possessor] The
rules as to the acts and declarations of one under whom a party
claims have been already stated. 7 Declarations claiming 8 or dis-
avowing ownership 9 are not conclusive against the declarant, un-
less other facts raising an estoppel are shown.
8; Defenses] Defendant may recover on plaintiff's failure to
prove title and right of possession. 10 A denial of plaintiff's al-
legation of property and right of possession admits evidence of
title and right of possession, either in defendant or any other per-
son ; n and defendant may show such property in a third person
without connecting himself with it. 12 The mode of proving jus-
tification under process has been already stated.
1 Hunter v. Hudson River Iron &, Machine Co. 20 Berb. 493 ; Bliss v. Cottle, 32
Id. 322. For the mode of proving fraud or deceit, see p. 626 of this vol., and the
chapters on actions for deceit or fraud, and on fraud as a defense.
8 Wells Replev. 370, 681, and see p. 627 of this vol.
8 Id. 199, 348. But not for the purposes of damages. Id.
Wells Replev. 311, 571.
8 Id.; Young v. Willet, 8 Bosw. 486.
6 Wells Replev. 311, 570. For the mode of proving value and damages, see
pp. 806-12. 348, 598 and 627 of this vol. As to value of use, see Yandle v.'lvings-
bury, 17 Kans. 195, s. c. 22 Am. R. 282 ; Allen v. Fox, 51 N. Y. 562, overruling 4
Lan's. 263.
7 Pp. 11-14 and 155 of this vol; Whittaker v. Brown, 8 Wend. 490; Bristol v.
Dann, 12 Id. 142, Worrall v. Parmelee, 1 N. Y. 519; Taylor v. Marshal, 14 Johns.
204 ; De Wolf v. NVilliams, 69 N.Y. 621. Under the New York rule, continued posses-
sion of a chattel is no+ alone such an act as renders the possessor's declarations com-
petent under the rule of res gestce. Tilson v. Terwilliger, 56 N. Y. 273.
8 Heaton v. Findlay, 12 Penn. St. 304.
9 Hunt v. Moultrie, 1 Bosw. 531.
10 McCurdy v. Brown, 1 Duer, 101.
11 Schulenberg v. Harrimann, 21 Wall. 44, 59 ; Sparks v. Heritage, 45 Ind. 66 ; Timp
v. Dockharn, 32 Wis. 146 ; Caldwell v. Bruggerman, 4 Minn. 270, 276. And see
Morey v. Safe Deposit Co. 7 Abb. Pr. N. 8. 199, s. c. 39 How. Pr. 124. Compare
Ontario Bank v. N. J. Steamboat Co. 5D N. Y. 510, affi'g 5 Daly, 117.
18 Rockwell v, Suunders, 19 Barb. 473, and cases cited.
CHAPTEE XL VIII.
ACTIONS TO AFFECT THE TITLE OR POSSESSION OF REAL
PROPERTY.
I. ACTIONS TO RECOVER THE POSSESSION OF I. ACTIONS TO RECOVER, drc. continued.
REAL PROPERTY. (EJECTMENT.) 29. Impeaching deed on equitable
1 . Plaintiff's title. grounds.
2. Title of State. 30. Admissions and declarations.
8. Possession as evidence of title. 81. Recitals.
4. Title by deed. 82. Estoppels.
5. delivery, and date. 33. Former adjudications.
6. parties. 84. Defendant's possession : Ouster.
7. alterations. 85. Mesne profits.
8. connected instruments. 86. Defenses.
9. consideration. 37. adverse possession.
10. oral evidence to vary or ex- 83. bona fide purchaser.
plain.
11. boundaries. II. ACTIONS TO DETERMINE CONFLICTING
12. deed under legal or judicial CLAIMS.
authority. 39. Mode of proof.
13. on execution sale.
14. on surrogate's sale. m ACTIONS TO REMOVE CLOUD ON TITLE.
15. on tax sale. 40. Mode of proof.
16. Grantor's title.
17 State grunt. T -, r ,
18. Landlord and tenant. IV ' A , CTI NS , F FOREC ?> SUR f ,
19. Mortgagor and mortgagee. JJ" orec o;ure J veud . or 8 hen '
20. Vendor and purchaser *?' * l f. ^?. r .^-
21 Entry Defendants liability: demand
22! Title by descent or devise. n * nd default '
23. Dower. 44 ' ^/""^
24. Curtesy.
25. Title under ancient instrument. V. ACTIONS TO REDEEM.
26. Lost instrument, and secondary 4 5. Mode of proof.
evidence.
27. Presumed grant. VI. ACTIONS OF PARTITION.
28. Deed void For adverse possession. 46. Mode of proof.
I. ACTIONS TO RECOVER THE POSSESSION OF REAL PROPERTY.
(EJECTMENT.)
1. Plaintiffs title.] Plaintiff can only recover on the
strength of his own title. Proof of a cloud on title is not
enough. 1 The failure of defendant to show title can not avail. 2
Under the new procedure plaintiff may recover on an equitable
title. 3 He may prove two titles, although either, if established,
1 Pixley v. Rockwell, 1 Sheld. Buff. Super. Ct. 267.
9 Brady v. Hennion, 8 Bosw. 528 ; Tyl. Ej. 72 ; "Watts v. Lindsey, 7 Wheat.
158.
8 Phillips v. Gorham, 17 N. Y. 270; Lattin v. McCarty, 41 N. Y. 107, rev'g 8
Abb. Pr. 225, 8. c. 17 How. Pr. 239; Sheehan v. Hamilton, 4 Abb. Ct. App. Dec. 211.
Otherwise at common law. Fenn v. Holme, 21 How. U. S. 481.
[691]
692 ACTIONS AFFECTING EEAL PROPERTY.
would be enough. 1 A variance in alleging the nature of the title,'
or the proportion of plaintiff's interest, is not fatal. 3
2. Title of State. In ejectment by the State, evidence that
the premises were vacant and wholly unoccupied at a time within
forty years before action brought, and that defendant was in pos-
session when the action was brought, is prima facie sufficient, 4 if
it does not appear that the title of the State was ever di-
vested. 5
3. \Possession as evidence of title.'] Mere general possession of
land, unexplained, is prima, jade evidence of ownership, 8 in the
absence of any other evidence as to title ; especially if coupled
with actual improvement. 7 But to raise a presumption of any
particular kind of title or degree of interest, the evidence of pos-
session must be coupled with evidence of a claim of title. 8 A wit-
ness may be allowed in the first instance to testify directly to the
fact of possession, 9 if he can do so positively not as a matter of
opinion, subject, of course to cross-examination on the details.
Evidence that a place was generally known by the name of a man
is competent in aid of other evidence of his possession. 10 "When
no legal title is shown, the party showing the prior possession
is held to have the better right. 11 Mere possession may be
rebutted by parol evidence of abandonment, 1 * but the evidence
should be clear. 13
When legal title to unoccupied land is shown, possession is
presumed to be in him who is shown to have the title. 14 This is
constructive possession, and does not avail where actual posses-
sion must be shown. 15
I Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31, rev'g 52 Barb. 222.
9 Chapman v. Delaware, <fec. R. R. Co. 3 Lans. 261. Contra, Patterson v. Kev-
Btone, &c. Co. 30 Cal. 360, 364. Compare Cruger v. McLaury, 41 N. Y. 219, affii'g
51 Barb. 642.
3 Lewis v. McFarland, 9 Cranch, 161 ; Hinman v. Booth, 21 Wend. 266, 267 ; Ryerss
V. Wheeler, 22 Id. 148. Contra, Gilletv. Stanley. 1 Hill, 121; Cole v. Irvine, 6 Id. 634.
4 Wendell v. Jackson, 8 Wend. 183, affi'g 5 Id. 142.
5 See People v. Snyder, 61 Barb. 689, affi'd in 41 N. Y. 397.
6 COWEN, J. Northrop v. Wright, 24 Wend. 221, rev'd on other grounds in 7 Hill,
476 ; Hill v. Draper, 10 Barb. 454. Contra, Delancey v. McKeen, 1 Wash. C. Ct. 354.
But as against a naked trespasser, it is agreed that possession, is enough. Burt v.
Panjaud, U. S. Supreme Ct. 99 U. S. (9 Otto), ] 80.
1 Sherry v. Frecking, 4 Duer, 452 ; Payment of taxes and survey, <fcc. not evi-
dence of possession. Thompson v. Burhans, 61 N. Y. 52, rev'g 61 Barb. 260. Contra,
Hodgdon v. Shannon, 44 N. H. 672.
Unsuccessful attempt to interrupt possession strengthens the presumption.
Sargent v. Seagrave, 2 Curt. C. Ct. 563.
8 Ricard v. Williams, 7 Wheat. 59, 105.
9 Where a witness tes'ifies on the direct-examination that a party had possession
of real estate at a specified time, the evidence is admissible ; the facts constituting
possession may be obtained from him on cross-examination. Parsons v. Brown, 15
Barb. N. Y. 590. Contra, Thistle v. Frostbnrg Coal Co. 10 Md. 129.
10 Russell v. Jackson, 22 Wend. 276, affi'g 4 Id. 643.
II Tyl. Ej. 72, 204.
" Onderdonk v. Lord, Hill <fe D. Supp. 129.
13 Corning v. Troy Iron <fe Nail Factory, 39 Barb. 311, affi'd in 40 N. Y. 191.
14 Florence v. Hopkins, 46 N. Y. 182.
15 Paragraph 38. Constructive possession not applicable to large tracts not
EJECTMENT. 693
4. Title by deed.~\ To prove title by deed, plaintiff must show a
deed which satisfies the requirements of the law of the State
where the land lies. 1 The deed may be proved by producing
either the original, 2 or the record, or a certified copy from the
record. 3 A certificate which appears, on its face, to be in con-
formity with the statute, is presumptive proof of its own genuine-
ness ; and where it describes the proper officer acting in the
proper place, it is taken as proof both of his character and local
jurisdiction. 4 A record or certified copy, which by reason of de-
fect is not competent as such, may, nevertheless, be available as
secondary evidence on proof of the loss of the original. 5 A sub-
stantial compliance of the certificate with the statute is suffi-
cient. 9
In aid of a certificate of acknowledgment, reference may be
had to any part of the instrument itself. 7 An error in venue may
manageable according to the custom and business of the country. Thompson v.
Burhans, 61 N. Y. 52, rev'g 61 Barb. 260.
1 Compliance with the stamp act need not be proved in a State court. See p. 453
of this vol.
8 For mode of proof of handwriting, see pp. 392 to 398 of this voL, and of execu-
tion in other respects, pp. 503 to 507.
3 Chamberlain v. Bradley, 101 Mass. 188, 8. c. 3 Am. R. 331.
The mode of proof by the record or certified copy varies according to the local
statutes, which should be consulted. Under the New York statutes and many othera
the following rules apply. The deed must be either acknowledged or witnessed.
Roggen v. Avery, 63 Barb. 65. Compare Fryer v. Rockfeller, 63 N. Y. 268.
If the oriyhial ia offered in evidence, a certificate of acknowledgment, or of proof
by living subscribing witness (even though made after action brought, p. 6 of this
vol.) is primary evidence (see Clark v. Nixon, 5 Hill, 36), but not conclusive (1 N. Y.
R. S. 759 [2 Id. 6 ed. 1146], 17; 8. P. 8 Abb. N. Y. Dig. new ed. 155, pi. '2295.
Contra, in some States, see p. 175 of this vol.); but a county clerk's certificate is
necessary to read the original in evidence in any other county than that in which
the officer taking the acknowle Igment, <fcc., resided (1 N. Y. R. S. 759 [2 Id. 6 ed. 1146J,
18 ; Wood v. \Veiant, 1 N. Y. 77). If a certificate of proof by a subscribing witness is
relied on, it will be nullified by evidence that the witness was interested or incompe-
tent (1 N. Y. R. S. 759 [2 Id. 6 ed. 1146], 17).
A transcript or certified copy of the record if produced, duly certified by the re-
cording officer under seal (1 R. S.760 [2 Id. 6 ed. 1147], 26), ia equally competent aa
the original instrument, provided the acknowledgment or proof was sufficient to en-
title to re-cord ; otherwise, not (Carpenter v. Dexter, 8 Wall. 513). If the proof was
by evidence of handwriting after death of the subscribing witnesses, the original id
the only primary evidence, and must be produced and duly proved at the trial, or
accounted for, and secondary evidence given (1 N. Y. R. S. 761 [2 Id. 6 ed. 1150],
3<'-33.
The manner in which the record may be produced is defined by N. Y. Code Ciy.
Pro. 866. Tho omission, from the record, of the memorandum of alterations before
execution is relevant to the question of alteration after execution (Hager v. Ilager,
88 Barb. 92, 98).
Where the acknowledgment and date of registry of a deed nro in dispute, proving
it by a certified copy without producing or accounting for the original, is a circum-
stance of suspicion which is a proper subject of comment (5 Wall. 85).
4 Thurman v. Cameron, 24 Wend. 87, and cas. cit.
5 Jackson v. Rice, 3 Wend. 180, 182.
* Raverty v. Fridge, 3 McLean, 245, and cas. cit. ; Carpenter v. Dexter, 8 Wall.
613.
1 Carpenter v. Dexter, 8 Wall. 513 ; s. r. 12 Serg. & 11. 48. For instance, a
defect in the venue of the cer.ificate may bo supplied by a presumption drawn
694: ACTIONS AFFECTING REAL PROPERTY.
be cured by oral evidence. 1 Evidence of the official character of
the certifying officer need not be added to his certificate, unless
required by the statute. 3
5. delivery and dateJ] Under a denial, the burden is on
plaintiff to prove delivery ; 3 but an admission of execution with-
out more usually admits delivery. 4 In addition to what has al-
ready been said, 5 possession by the grantee, 6 and the fact of record, 7
are each competent and sufficient prim a facie evidence of deliv-
ery, as against the grantor. 8 Subsequent conduct of the parties to
the action recognizing the title as transferred, are competent to
show ratification of a delivery shown only by record. 9 The stat-
utory acknowledgment or proof and the recording of a deed are
not conclusive evidence of delivery or acceptance. Nor are they
sufficient alone against the absolute testimony of the supposed
grantee denying delivery and acceptance. 10
The rule excluding oral evidence to contradict a writing does
not exclude oral evidence of delivery or non-delivery of the
writing ; u but it does exclude oral evidence that delivery to the
party himself u was on an oral condition nullifying the delivery. 13
The time of delivery is the time at which the deed takes effect
(unless the court, on equitable grounds, give it relation back to
from a statement of the place of execution in the title or testificnndum clause,
of the deed. Carpenter v. Dexter (above); Brooks v. Chaplin, 3 Vt. 281. And
the omission to certify that the person making the acknowledgment was known to
the officer to be the one who executed the deed, by reference to the fact that
the officer's name (without addition) appears as subscribing witness under a clause
stating that the deed was " signed," <fec., in his presence. Carpenter v. Dexter
(above); and see Luffborough v. Parker, 12 Serg. <fe R. 48.
1 Angier v. Schieffelin, 72 Penn St. 106, s. c. 13 Am. R. 659.
8 Secrist v. Green, 3 Wall. 744, 760 ; Carpenter v. Dexter (above).
8 Burkholder v. Casad, 47 Ind. 418.
4 See Robert v. Good, 36 N. Y. 408, affi'g 2 Daly, 64.
8 Pages 607 and 608 of this vol.
' Flagg v. Mann, 2 Sumn. 486, 609 ; Buckley v. Carlton, 6 McLean, 125.
7 Chamberlain v. Bradley, 101 Mass. 188, s. c. 3 Am. R. 331; Kille v. Ege, 79
Penn. St. 15 ; Younge T. Guilbeau, 3 >Vall. 636. Even though at the grantor's re-
quest. Bulkley v. Bnffington, 5 McLean, 457.
8 See Parmelee v. Simpson, 5 Wall. 81, 85.
Gould v. Day, 94 U. S. (4 Otto), 405. As to the declarations of a former owner,
see paragraph 30, and p. 405 of this vol.
10 Jackson v. Perkins, 2 Wend. 308 ; Younge v. Guilbeau, 3 Wall. 636, 641. For
other cases on presumption of delivery, eee Rogers v. Carey, 47 Mo. 232, s. c. 4 Aui.
R. 322.
11 Roberts ads. Jackson, 1 Wend. 478, 480 ; Stephens v. Buffalo <t N. Y. City R. R.
Co. 20 Barb. 332. To disprove acceptance of a deed of trust, an unsealed declaration
by the intended trustee (a stranger to the action) that immediately on receiving notice
of it he did refuse to accept and had never acted (the paper being proved and re-
corded), is competent as a verbal act tending to show non-acceptance. Armstrong v.
Merrill, 14 Wall. 120,139. This was held, although the declaration bore date 11 years
after tho date of the deed of trust, and was proved nearly 50 and recorded more than
60 years after the date of tho deed of trust.
14 See as to delivery t~> attorney or agent, Ford v. James, 2 Abb. Ct. App. Dec.
169; Watkins v. Nash, L. R. 20 Eq. Cas. 262, s. c. 13 Moak Eng. R. 781.
18 Worrall v. Munn, 5 N. Y. 229, and caa. cit.
EJECTMENT. 695
an earlier date *) ; and, in the absence of other evidence, the date
written in 2 an attested or acknowledged instrument 3 is presump-
tively the date of delivery, 4 notwithstanding its acknowledgment, 8
or its record 6 is of later date.
If the deed is shown to have been antedated (and the fact that
it remained in the grantor's hands after the day of its date is suf-
ficient evidence of this 7 ), the presumption is removed, and the
burden is on the party claiming under it to show the date of
delivery, if the validity or effect of the deed depends on that. 8
Slight evidence drawn from the transaction itself may be suffi-
cient for this purpose. 9
6. parties. 10 ] In addition to what has been said as to the
proof of identity, 11 it should be added here, that if there are two
persons, father and son, of the same name, the use of the name
without addition means presumptively, in absence of other evi-
dence, the father; 13 but this presumption may be rebutted by
showing that the parties intended the son by the name in the
deed. 13 A difference in surname, too great to be disregarded as
involving no substantial difference in sound, cannot be cured by
parol evidence, 14 unless the evidence is sufficient for relief in
equity. 15 Omission of middle name is not material. 16
1 County of Calhoun v. American Emigrant Co. 93 U. S. (3 Otto), 124, 127.
1 Or a later date inscribed by the grantor upon the stamp for cancellation. Y^n
Rensselaer v. Vickery, 3 Lans. 57.
s Otherwise of a deed in fee, unattested and unacknowledged. Center v. Morrison,
31 Barb. 155.
4 Robinson v. Wheeler, 25 N. Y. 262, and cases cited ; People v. Snyder, 41 N. Y.
897, affi'g 51 Barb. 689.
8 People v. Snyder (ab'ove).
* Robinson v. Wheeler (above).
7 Harris v. Norton, 16 Barb. 264.
* Costigan v. Gould, 6 Den. 290.
9 McOowan v. Smith, 44 Barb. 232 ; Jackson v. Schoonmaker, 2 Johns. 230.
Whether the date in a deed by an entire stranger to the parties is sufficient when
the competency of the instrument in evidence depends on the time of tho delivery,
compare with these cases, pp. 13 and 14 of this vol.
"> Whether showing that the grantee's name was not inserted in the blank until
after attestation and acknowledgment and parting with possession by the grantor,
affects the validity of the deed, aee, for the affirmative, Upton v. Archer, 41 Cal. 85, s. c.
10 Am. R. 266 ; Moore v Bickham, 4 Binn. (Pa.) 1 ; U. S. v. Nelson, 2 Brock. 6 ; Coit
v. Starkweather, 8 Conn. 289: Davenport v. Sleight, 2 Dev. <fe B. (N. C.) L. 381 ;
Chase v. Palmer, 29 111. 306 ; Burns V. Lynde, 6 Allen (Mass.), 805 ; Basford v. Pc.ir-
Bon, 9 Id. 887 ; Drury v. Foster, 2 Wall. 24 ; 2 Parsons on Cont. citing Hibblcwhite
v. McMorono, 6 M. <fc W, 200 ; Douthitt v. Stinson, 63 Mo. 208 ; and for the nfyati>,
Vnn Etta v. Evenson, 28 Wis. 33. s. c. 9 Am. R. 486; Owen v. Perry, 25 Iowa, 412;
Pence v. Arbuckle, 22 Minn. 417; McNab v. Young, 81 111. 11; Heminenwuy v.
Unlock, 50 How. Pr. 88 ; Vanderbilt v. Vanderbi t, 54 Id. 250; nnd see Field. v.
Stagir, 62 Mo. 634, s. c. 14 Am. R. 435 ; Preston v. Hull, 23 Graft. (Va.) 600.
Page 101 of this vol.
12 Padgett v. Lawrence, 10 Paige, 170 ; Stevens v. West, 6 Jones (N. C.) L. 49.
13 Padgett v. Lawrence (above).
14 Jackson v. Hart, 12 Johns. 77; and see Jackson v. Boneham, 15 Id. 226; Bab-
cock v. Pettibonc, 12 Blatchf. 354.
15 Sec p. 512, and Chapter on REFORMATION for MISTAKES, AQ
16 Games v. Dunn, 14 Pet. 322.
C96 ACTIONS AFFECTING REAL PROPERTY.
Oral evidence is competent to show which was intended,
where two persons answer the same name ; l or where two names,
having sufficient resemblance, appear, and it does not appear that
there were two persons corresponding ; but if it appear that there
were two such persons, oral evidence is not competent to show
that one was intended by the name of the other. 3
To admit a deed purporting to be executed by the attorney
of the party to be bound, there must be some evidence of his
authority, 3 but it may be presumed from a recital, in the deed, of
a power of attorney and from long possession under the deed. 4
Where a deed is executed under a power, and so far as appears
from the two instruments was executed agreeably to it, the
burden is upon him assailing the deed to show that conditions
specified in the power were not performed. 5
7. alterations.'] An unexplained alteration appearing on the
face of an instrument does not render the deed incompetent as evi-
dence of a transfer of title. It is not error to let the instrument go
to the jury. 6 In so far as a deed operates as a present transfer of title,
an alteration, though fraudulently made by the grantee subsequent
to delivery, cannot operate as a re-conveyance to divest the title
once vested ; but, if at all, by way of estoppel, or as having de-
stroyed the evidence necessary to manifest the transfer. On the
other hand, so far as the deed is executory, as for instance in
case of a covenant of warranty relied on to pass, by way of estop-
pel, an after acquired title, a material alteration fraudulently
made by the grantee, annuls the covenant itself thereafter. 7
Oral evidence is competent alike to prove or to explain an
alteration in a deed ; and, notwithstanding the statute of frauds
to prove oral assent to an alteration ; 8 and, for these purposes,
another than the subscribing witness is competent. 9
1 Jackson v. Goes, 13 Johns. 618.
* Jackson v. Hart, 12 Johns. 77.
3 Denn v. Reid, 10 Pet. 624.
4 Doe v. Phelps, 9 Johns. 169 ; Doe v. Campbell, 10 Id. 475 ; and see Forman v.
Crutcher, 2 A. K. Marsh (Ky.) 69. Possession is essential. McKinnon v. Bliss, 21
N. Y. 206.
6 Clements v. Machebceuf, 2 U. S. 92 (Otto), 418. and cas. cit. Compare Morrill
V. Cone, 22 How. U. S. 75.
6 Little v. Herndon, 10 Wall. 26, 31 (in this case cancellation of one number
and interlineation of another in the description of premises in a deed), NELSO.V, J. ;
and see page 406 of this vol. After great conflict of opinion, the weight of
recent authority is in harmony with sound general principles; and, without
denying that an alteration may be so suspicious as to require the exclusion of
the instrument if offered without explanation, ordinarily submits the instrument
to the jury with whatever explanation may be afforded by the contents and
appearance of the instrument itself, and by the extrinsic evidence, if any, ad-
duced, leaving it for the jury to say whether the explanation is satisfactory. See
Maybee v. Sniffen, 2 E. D. Smith, 1, s. c. 10 N. Y. Leg. Obs. 13; Herrick v. Malin,
22 Wend. 387, 393; Waring v. Smyth, 2 Barb. Ch. 119, 133; Smith v. McGowan, 8
Barb. 404, 407; Jackson v. Osbotn, 2 Wend. 555. 559, 1 Whart. Ev. 629.
7 See opinion of CLIFFORD, J., in Smith v. U. S. 2 Wall. 219, 231, and cas. cit,.
and 9 Cent. L. J. 173, note.
8 Speake v. United States, 9 Cranch, 28,
9 Penny v. Corwithe, 18 Johns. 499.
EJECTMENT. 697
8. connected instruments.'] Documents referred to in the
deed, and material to the title 1 should be produced, or their
absence accounted for and secondary evidence given. 3 In case
of loss, long possession, or even the terms, 3 or character, may
enable the court to presume the contents and effect of the lost
instrument. 4 A document made, by reference, part of a deed
under which both parties claim, is admissible on proof of identi-
ty, without further proof of its execution. 5 A map referred to as
recorded may be resorted to, to identify the premises, although
the record was illegal. 6 If more than one map answering the
reference exists, oral evidence to show what was intended, is
competent. 7 A reference to premises as those previously con-
veyed to the grantor by another person, does not exclude oral
evidence to identify the land, but does riot allow of oral evidence
of the parties' intention. 8
9. consideration.'] The consideration clause is not within
the rule by which written evidence excludes oral ; 9 but the non-
payment of the consideration stated, or its nominal character, is
not relevant against the party claiming under the deed, 10 unless
in connection with evidence showing equitable grounds for avoid-
ing the transfer, for without such proof the grantor or those
claiming under him cannot contradict the recital of consideration. 11
Hence the party claiming under a deed acknowledging a con-
sideration need not, in the first instance, give any evidence of con-
sideration 12 unless he claims to be protected as bonafide purchaser
for value ; w and even then the acknowledgment in the deed of the
receipt of the purchase money is sufficient prima facie evidence
of its payment to bring him within the protection of the record-
ing act, 14 though not to enable him to hold under a fraud com-
1 Otherwise of an instrument merely directing the future disposition of the prop,
erty. Duke of Cumberland v. Graves, 9 Barb. 6U5.
2 Jackson v. Parkhurst, 4 Wend. 369 ; s. P. in the case of the bond recited in the
mortgage. See paragraph 41, on Foreclosure.
3 Jackson v. Lamb, 7 Cow. 431.
4 McBurney v. Cutler, 18 Barb. 203.
8 See Crawford v. Loper, 25 Barb. 449 ; Smith v. If. Y. Cent. R. R. Co. 4 Abb.
Ct. App. Dec. 262.
Koonanv. Lee, 2 Black, 499, 504. Compare Cal dwell v. Center, 30Cal. 639.
As to whether the recorded plat referred to is conclusive against proving the original
plat and a mistake in the record, see Jones v. Johnston, 18 How. U. S. 150.
1 Slosson v. Hall, 17 Minn. 95.
8 Jackson v. Parkhurst (above); and see Reed v. McCourt, 41 If. Y. 435.
9 Adams v. Hull, 2 Don. 306.
10 Meaking* v. Cromwell, 2 Samlf. 512; Meriam v. Ilarsen, 2 Barb. Ch. 232,
affi'g 4 K.iw. Ch. 70; Childs v. Baruum, 11 Barb. 14, affi'g 1 Sandf. 58; 8. p. Wood v.
Chapin. 13 N. Y. 509.
11 Grout v. Townsend, 2 Den. 336, affi'g 2 Hill, 554.
18 Clarke v. Davenport, 1 Bosw. 95.
13 See paragraph 37.
14 Wood v. Chapin, in N. Y. 509; Bolton v. Jacks, 6 Robt. 166, 234. Compare
Ring v. Steele. 4 Abb. Ct. App. Dec. 68 ; Wood v. McClughiin, 4 Supm. Ct. (T. fe
C.) 420, s. c. 2 Hun, 150.
C98 ACTIONS AFFECTING REAL PROPERTY.
mitted by his grantor. 1 Extrinsic evidence of consideration 8 is
competent in support of a deed ; 3 and for this purpose the actual
consideration, whether pecuniary, 4 or of blood, 5 or marriage, 6 may
be proved by extrinsic evidence, although the deed express a
different consideration, 7 or a nominal consideration, 8 or none. 9
10. oral evidence to vary or explain writings.'] Tn applica-
tion of general principles already stated, it is to be observed that
a conveyance of real property is not merely the voluntarily
chosen expression of the intention of the parties, and therefore,
as between them and those claiming under them, presumably the
final definition of their intention, 10 but that it is also by statute
the only sufficient means of a voluntary transfer ; u and therefore
an intent to transfer real property cannot be imported into the
deed by oral evidence ; but oral evidence can only be used as a
light to enable the court to read what is in the deed. 12 Hence, to
enable the court to understand what was intended, but not to
contradict what is unambiguously expressed, 13 oral evidence is
competent to identify, 14 locate 15 and apply the description. 16 The
long continued and uniform acts of the parties, in case of am-
biguity (but not otherwise 17 ) may show that a deed was intended
I Bolton v. Jacks (above); Lloyd v. Lynch, 28 Penn. St. 419.
s See other cases in Chapter LI.
* See paragraph 37.
4 Hinde v. Longworth, 11 Wheat. 199 ; Jenkins v. Pve, 12 Pet. 241.
6 Goodell v. Pierce, 2 Hill, 659; and see Loeschigk v. Hatfield, 61 N. T. 660,
affi'g 5 Robt. 26, s. c. 4 Abb. Pr. N. S. 210.
* Sec Roberts v. Roberts, 22 Wend. 140.
7 Bank of the United States v. Housman, 6 Paige, 626 ; Hinde v. Longworth
(above).
8 Jenkins v. Pye (above).
Goodell v. Pierce, 2 Hill, 659.
10 For the limits and application of this principle see pp. 608, 294, Ac. and 483, <fec.
of this vol.
II 1 N. Y. R. S. 73*. 137; 2 Id. 134 6-9.
1J Drew v. Swift, 46 N. Y. 204 ; Tymason v. Bates, 14 Wend. 671, rev'g 13 Id.
800; Bartlett v. Judd, 21 N. Y. 200, affi'g 23 Barb. 262; Stanley v. Green, 12 Cal.
148, 162; Purkiss v. Benson, 28 Mich. 538; Mott v. Richtmyer, 67 N. Y. 49. For
fuller discussion of this principle see p. 129, <fec. of this vol.
13 Drew v. Swift, 46 N. Y. 204, and cas. cit. Thus oral evidence, that the word
" degree " should be read " perches," is not admissible. Clarke v. Lancaster, 36
Md. 196, s. c. 11 Am. R. 486.
14 See paragraph 8 ; Parks v. Moore, 13 Vt 183 ; and compare Doe d. Freeland v.
Bart, 1 T. R. 701, with Doe d. Norton v. Webster, 12 A. & E. 442, 450.
15 McNitt v. Turner, 16 Wall. 852, 364. The deed is not admissible if the description
of premises is incapable of affording the clue to their identification, but if there be a
reference to extrinsic documents or acts for the identification, the deed is admissible,
subject to the subsequent production of the necessary evidence (Deery v. Cray, 10
Wall. 263); and the production of the documents or evidence of the acts referred to
in the deed is not always essential, but an actual boundary long acquiesced in, the
deed being ancient may be enough. Ib.
16 Blake v. Doherty, 5 Wheat. 859.
11 Unless for a length of time sufficient to give title by adverse possession, or un-
less there is an estoppel. Emerick v Kohler, 29 Barb. 165. Title cannot be divested
by estoppel in pais. Babcock v. Utter, 1 Abb. Ct. App. Dec. 27. Whether an es-
toppel arises from matter of description, doubted : it does not from uncertain matter.
Edmonstou v. Edmonston, 13 Hun, 133, 136.
EJECTMENT. 699
as a conveyance, * and the boundaries intended. 2 ^Vithin these
limits, the rule excluding oral evidence, applies alike to prior con-
temporaneous arid subsequent declarations.
Historical works, books of science or art, and published maps
or charts, when made by persons indifferent between the parties,
are primary evidence of facts of general notoriety and interest ;
but they weigh only as hearsay, against testimony of witnesses to
facts within their memory. 3 Maps and diagrams necessary or use-
ful for the understanding of testimony may be put in evidence on
proof of their correctness, although prepared for the purpose of
the trial. 4
11. boundaries.'] A variance in the boundaries proved
from those alleged, if it has not misled, should be cured by amend-
ment. 5 The rule that fixed and known monuments and bounda-
ries control other designations, is only a natural presumption or-
dinarily arising from the terms of the whole description. Official
surveys, properly authenticated, 7 are prima facie evidence of
their own correctness. 8 Evidence of the surveyor's declarations,
contradicting his official return, are not evidence while he is liv-
ing. 9 The notes of the official surveyor are competent evidence as
to those objects which, in the discharge of his duty, he ought to
have ascertained such as the lines and monuments and received
as a part of the res gestce; but not of anything el'se for instance,
possession. 10 Declarations of a surveyor employed to run a bound-
ary, if made in connection with his work, and in reference to it, are
admissible in evidence after his death, against the party who em-
ployed him. 11 A surveyor, as an expert may testify to nis opinion
as to matters of fact requiring special knowledge, 12 but not as to
the construction or effect of the deed. 13 Practical acquiescence
1 Steinback v. Stewart, 11 "Wall. 666, 676.
* Cavazos v. Trevino, 6 Wall. 773.
3 Missouri v. Kentucky, 11 Wall. 395, 410.
4 Curtiss v. Ayraulfc, 8 Hun, 487, 490, and cas. cit.
B Russell v. Conn. 20 N. Y. 81.
Baldwin v. Brown, 16 N. Y. 359, 361. See, also, pages 669, 671, and 726, of
this vol.
I People v. Denison, 17 Wend. 312.
8 Conoid v. McClelland, 16 Wall. 331 ; and, after the lapse of twenty-one years,
there arises a conclusive presumption of law that such survey was regularly made-
and marked upon the land as returned. Ormsby v. Ihmsen, 34 Penn. St. 462.
9 Barclay v. Howell's Lessee, 6 Pet. 498 ; compare Birmingham v. Anderson, 70
Penn. St. 606.
10 Ellicott v. Pearl, 1 McLean, 206, affi'd in 10 Pet. 412. Compare Ormsby v.
Ihmsen (above). The rules as to memoranda, refreshing memory, hive been already
stated. Chapter XVI.
II McCormick v. Barnum, 10 Wend. 104; Barclay v. Howell's Lessee (above).
" For instance as to whether certain marks on trees and piles of stones, wer
intended aa monuments of boundaries. Davis v. Mason, 4 Pick. 156. Compare Bar-
ron v. Coblfigh, 11 N. H. 667.
13 For instance, whether certain land is included in n written description. Wood-
burn v. Farmers. <fcc. Bank, 5 \ValK and S. -117 ; Schultz v. Lindell, 30 Mo. 810, ^-jl.
One who has examined surveys and maps including tie premises, and plotted the
700 ACTIONS AFFECTING REAL PROPERTY.
(by the owners 1 who are separated by the boundary in question)
in the location of a boundary for more than twenty years, 2 is
conclusive; but acquiescence for a few years is not enough, 8
unless on the ground of estoppel. 4 The declarations of ancient
persons, made while in possession of land owned by them, point-
ing out their boundaries on the land itself, and who are deceased
at the time of the trial, are admissible ; where nothing appears to
show that they were interested to misrepresent in thus pointing
out their boundaries, and it need not appear affirmatively that
the declarations were made in restriction of, or against, their own
rights. 5 To identify a monument represented on a plat or sur-
vey as marking a corner, it is not competent to prove reputation
of the neighborhood as to it, at the present day, unless such
reputation was traditionary in its character; having passed down
from those who were acquainted with the reputation of the mark
from an early day to the present time, or unless the information
as to such reputation was derived from ancient sources or from
persons who had peculiar means of knowing what tho reputation
of the mark was at an early day. But it is competent to prove
that the occupants of the tracts adjoining the corner each claimed
the mark as the true corner of their tracts. 6
12. title under judicial or statutory authority, ,] A deed
made pursuant to the requirement of a judicial decree 7 or order, 8
if it be made by the person in whom title was vested, 9 may be
same out according to the surveys, and followed, with his eye, the different lines as
given in the deed under which a party claims, may be allowed to testify as to the loca-
tion of the party's occupancy. Van Rensselaer v. Yickery, 3 Lans. 57. It is com-
petent to prove by a surveyor, that the courses nnd distances in a deed are incongru-
ous, and that all the lines differ in length from the deed, llatcliffe v. Gary, 4 Abb.
Ct. App. Dec. 4.
1 Terry v. Chandler, 16 N. Y. 354, 357.
9 Baldwin v. Brown, 16 N. Y. 359; McCormick v. Barnum, 10 Wend. 104, 109;
Jones v. Smith, 64 N. Y. 180. A universal rule. Tyl. Ej. 575. .
3 Id. Reed v. McCourt; 41 N. Y. 435.
4 Smith v. McNamara, 4 Lans. 169 ; and see Vosburgh v. Teator, 82 N. Y. 561, 568.
An oral agreement and short possession are not alone enough to chnnge boundary,
nor can an acquiescence for twenty years be disregarded on evidence that it was
suffered under mistake (Baldwin v. Brown, above); or intended as temporary.
Pierson v. Mosher, 30 Barb. 81. On the question of practical location it ia compe-
tent to ask a witness whose residence and relation to the parties has been such that
had there been difference between the adjoining proprietors in respect to the line, he
would have been likely to know it, whether he ever heard of more than one line;
and his answer, that he had not, is some evidence of acquiescence in that line.
Ratcliffe v. Cary, 4 Abb. Ct. App. Dec. 4.
6 Daggett v. Shaw, 5 Mete. (Mass.) 223, 226. Compare "Wendell v. Abbott, 45
N. H. 349; Bartlett v. Emerson, 7 Gray (Mass.), 174.
6 Shutte v. Thompson, 15 Wall. 151.
7 Games v. Dunn, 14 Pet. 332, affi'g 1 McLean, 821.
, 8 Hanrick v. Neely, 10 Wall. 364, 366. Contra, Platt v. Picton, 3 Robt. 64.
9 As for instance by the debtor himself (Rockwell v. Brown, 54 N". Y. 210, rev'g 33
K Y. Super. Ct. U. & S., s. c. 11 Abb. Pr. N. S. 400 ; 42 How. Pr. 226), or by an as-
signee or receiver to whom the debtor is shown to have conveyed (compare Dawley
V. Brown, 65 Barb. 107; The Chatauqua Co. Bank v. White, 6 N. Y. 236; Same v.
Risley, 19 N. Y. 369; Van Wyck v. Baker, 10 Hun, 39; Cole v. Tyler, 65 N. Y.
73). If the debtor's title was vested in the receiver by law without assignment, the
EJECTMENT. 701
I
given in evidence (against a stranger, 1 equally as against a party)
witliQut producing the decree or order, 2 though it be recited in the
deed. 8 But the decree or order may be put in evidence, either to
support the deed, 4 or to show that it was unauthorized, 5 or to
qualify its apparent effect, 6 or to show that the proceeding was
without jurisdiction. 7 The purchaser is presumed to have known
the legal effect of the decree. 8 If jurisdiction appears, errors or
mistakes cannot be shown, to impeach the title, in a collateral pro-
ceeding. 9 If "the want of jurisdiction appears, or if the statute
expressly makes the sale void for an irregularity, the title will
not avail in ejectment, 10 except as against the party who obtained
it and effected the sale under it, and those claiming under his
title, 11 or as color of title under which adverse possession is
shown ; but a decree is admissible even against one not served, if
it may be a link in plaintiff's title, in connection with other evi-
dence. 13
To show title by foreclosure, by advertisement under the
statute, 13 regular foreclosure must be shown. 14 The evidence
which the statute declares to be equivalent to a deed, cannot
be added to, varied, or contradicted by parol by a person claiming
under it ; w but any other person may thus controvert it. 18 The
affidavits of publication, posting, and affixing in county clerk's
books, being only prima facie evidence of the acts declared to
stand as the conveyance, defects therein may be supplied by
parol. 17
In the case of special statutory proceedings, the record is the
decree effecting this should be produced. See Koontz v. Northern Bank, 16 Wall
196.
I Barr v. Gratz, 4 Wheat. 213 ; Gregg v. Forsyth, 24 How. U. S. 179.
3 Except when the statute forbids sale unless such order is made. Gallatian v.
Cunningham, 8 Cow. 361.
8 Games v. Dunn, 14 Pet. 322.
4 Fuller v. Van Geesen, 4 Hill, 171, affi'd in How. App. Cas. 240; Dirst v.'
Morris, 14 Wall. 484, 490. And in case of decree in foreclosure the mortgage need
not be produced (Sinclair v. Jackson, 8 Cow. 543), and cannot be impeached (Jackson
v. Jackson, 5 Cow. 173), except on grounds adequate to impeach the judgment
itself (Mancleville v. Reynolds, 68 N. Y. 528, 542, affi'g 5 Hun, 338).
6 See Gray v. Brignardello, 1 Wall. 627.
6 Bigelow v. Forrest, 9 Wall. 339, 351.
7 Rockwell v. McGovern, 69 N. Y. 294, affi'g 40 Super. Ct. (J. <fe S.) 118.
8 Bigelow v. Forrest (above).
Rorer on Jud. 8. 202, 480; 203, 482.
10 Id. 204, 486 ; and see Gregg v. Forsyth, 24 How. U. S. 180; Secrist v. Green,
8 Wall. 744, 751.
II Brobst v. Brock, 10 Wall. 619, 533, and cas. cit.
11 Dirst v. Morris, 14 Wall. 484, 490. For the mode of proving the decree see
Chapter XXIX.
18 2 N. Y. R, S. 647 ; L. 1838, p. 261, c. 266.
14 Layman v. Whiting, 20 Barb. 559.
15 Mowry v. Sanborn, 68 N. Y. 153, rev'g 7 Hun. 880. Otherwise before the
statute had this effect. Hawley v. Bennett, 5 Paige, 104.
16 Sherman v. Willett, 42 N. Y. 146, 149.
" Mowry v. San born, 72 N.Y. 534; and see Mann v. Best, 62 Mo. 491. As to delay
in making and recording the affidavit, compnre Tnthill v. Tracy, 31 N. Y. 157;
Prink v. Thompson, 4 Lana. 489; Chapman v. Delaware, tc. R. K. Co. 3 Lans. 261.
702 ACTIONS AFFECTING REAL PROPERTY.
primary evidence, 1 and is prima facie, but not conclusive, evi-
dence of the jurisdictional facts recited in it. 8
13. on execution sale?] Title is to be proved by the sheriffs
certificate and deed, 4 the judgment or decree, 5 or a duly authenti-
cated copy, 6 or, in case of a justice's judgment docketed, the
transcript with proof of its entry, 7 and the execution. 8 Contents
of a lost execution may be proved by secondary evidence, and for
this purpose the deceased attorney's register is competent, after
issue to the sheriff has been shown. 9 These documents are prima
facie sufficient as against the debtor, if he is also shown to have
been in possession. 10 But as against others in possession, plaintiff
must show that some title or interest was in the judgment debtor. 11
Authority of a general deputy to execute a deed in the sheriff's
name is presumed. 12 A sheriffs deed is supported by a presump-
tion that the officer performed his duty, 13 and that the acts recited,
though stated very generally, were done in a manner conformable
to the statute ; 14 and the granting part is not to be varied, 15 except
by evidence legitimate by way of explanation, or making a case
for equitable reformation. 16 The sheriff's certificate of sale, or a
1 See Jackson v. Daley, 6 Wend. 526. The book of a school commissioner (since
deceased) preserved in the county archives, and containing a record of his proceed-
ings in selling lands reserved for school purposes, and a list of such lands made by
one (since deceased) acting under his direction, is competent, both as a public record
and as entries of a deceased person in course of official duty, to prove what lands were
reserved for school purposes, and therefore could be conveyed by the State. Hed-
rick v. llughes, 15 Wall. 123, 127. The secondary evidence of the contents of a record
need not be a strict copy. A memorandum or selection of extracts, if embodying
correctly what is material, is competent, especially where it was contemporaneous
with the record. Id.
8 Adams v. Saratoga <fe Washington R. R. Co. 10 N. Y. 328, reVg 11 Barb. 414.
As to the presumptions indulged in support of the record in other respects, see Denning
v. Smith, 3 Johns. Ch. 832; Wood v. Chapin, 13 N. Y. 609; Cleveland v. Boerum, 27
Barb. 252, affi'g 23 Id. 201, 3 Abb. Pr. 294, and pp. 544-8 of this vol.
3 These rules are much varied by the statutes in some of the States.
4 Clute v. Emmerick, 12 Hun, 504. Recitals in the deed to an assignee of the
certificate are sufficient evidence of the assignment. Rorer Jud. S. 402, 1077.
6 Wilson v. Conine, 2 Johns. 280; Ins. Co. v. Halleck, 6 Wall. 556.
6 Jackson v. Hasbrouck, 12 Johns. 213 ; Townshend v. Wesson, 4 Duer. 342.
See p. 535 of this vol.
7 WAL WORTH, Ch., Tuttle v. Jackson, 6 Wend. 213, 222; Arnold v. Gorr, 1 Rawle,
223 ; Dickinson v. Smith, 25 Barb. 102.
8 Labntiie v. Baggs, 55 Ga. 572. Lack of seal (Ins. Co. v. Halleck, 6 Wall. 656,
658) may be cured by amendment. McGoon v. Scales, 9 Wall. 23,81.
Leland v. Cameron, 31 N. Y. 1 16.
10 Kellogg v. Kellogg, 6 Barb. 116; Tuttle v. Jackson, 6 Wend. 213, 223. And
in some cases conclusive, Dickinson v. Smith, 25 Barb. 102, and cases cited.
11 Tyl. Ej. 177. 530.
12 Jackson v. Davis, 18 Johns. 7.
13 Wood v. Morehouse, 45 N. Y. 368, affi'g 1 Lans. 406; Jackscn v. Shaffer, 11
Johns. 513.
14 Leland v. Cameron, 31 N. Y. 115; McGoon v. Scales, 9 Wall. 23, 30. Com-
pare, to the contrary, Walker v. Moore, 2 Dill. C. Ct. 256.
16 Jackson v. Roberts, 11 Wend. 422. As to the recitals, compare Phillips v.
Shiffer, 14 Abb. Pr. N. S. 101.
" Bartlett v. Judd, 21 N. Y. 200, affi'g 23 Barb. 262.
EJECTMENT. 703
certified copy, is by the statute 1 presumptive evidence of the facts
required to be stated therein, 2 and plaintiff should be prepared to
prove such a certificate. 3 Return of the execution sale is not
necessary unless made so by statute. 4
The deed may be defeated by oral evidence that the judg-
ment had been paid ; 5 but the declarations of the sheriff, though
he be deceased, are not competent for this purpose, 6 unless part
of the res gestcs. A certificate of redemption duly made iaprima
facie evidence. 7
14. on surrogate's sale.'] By the recent statute in New
York, 8 as well as by the weight of opinion in modern decisions,
independent of such special statutes, if jurisdiction appear (and
this is, prima facie, shown by recitals in the record according to
principles already stated), 9 the burden now lies on the party
claiming in opposition to a sale under a surrogate's order, to show a .
defect in the proceedings, such as would impeach the judgment
of a court of general jurisdiction. The lapse of sufficient time
(twenty or thirty years) raises a conclusive presumption that the
proceedings to sustain the order for sale and the deed, were regu-
lar. 10
15. on tax sale.'] Unless otherwise provided by statute, the
claimant must prove strictly every substantial requisite to a valid
tax and sale under it. 11 He must show affirmatively step by step
that every thing has been done which the statute made essential p
unless he had actual possession, and is suing a mere trespasser, 13 or
is relying on the title only as a claim characterizing his adverse pos-
session. 14 The recitals in a tax deed are not, against the owner, even
prima facie evidence. 15 Lapse of time, however, excuses inability
1 2 N. Y. R. S. p. 370, 43, 44; 1 L. 1857, p. 93, c. 60, 2.
* Anderson v. James, 4 Robt. 35.
1 Clute v. Emmerick, 12 Hun, 604. Contra, Tyl. Ej. 629.
4 Wheaton v. Sexton, 4 Wheat. 503. Compare Willcox v. Emerson, 10 R. I. 270,
s. c. 14 Am. R. 683.
5 Jackson v. Cadwell, 1 Cow. 622; Stafford v. Williams, 12 Barb. 240.
6 Woodgate v. Fleet, 11 Abb. Pr. N. S. 41, s. c. 44 N. Y. 1.
1 People ex rel. Chase v. Rathbun, 15 N. Y. 628, affi'g Griffin v. Chase, 23 Barb.
278; and see Livingston v. Arnoux, 66 N. Y. 507, affi'g 15 Abb. Pr. N. S. 158; Rice
v. Davis. 7 Lans. 393.
8 N. Y. L. 1850, p. 117, c. 82; L. 1869, p. 475, c. 260; L. 1872, p. 229, c. 92; L.
1878, p. 139, c. 129 ; Forbes v. Halsey, 26 N. Y. 53.
P. 644, Ac. of this vol. Comatock v. Crawford, 3 Wall. 396. A petition con-
forming to the statute is sufficient (Florentine v. Barton, 2 Wall. 210, 216), with proof
of publication, where publication is required (McNitt v. Turner, 16 Wall. 352, 365).
Where the statute does not require notice, the record need not show that notice was
given (Florentine v. Barton [above]). Neither the evidence nor the finding of
necessary facts need appear, if the statute does not require it (Co^nett v. Williams,
20 Id. 226, 260).
10 1 Greenl. Ev. 13th ed. 26, 20; Florentine v. Barton (above).
11 Williams v. Peyton, 4 Wheat. 77 ; Little v. Herndon, 10 Wall. 26, 81.
" Blackw. 75.
13 Thompson v. Burhans, 61 N. Y. 59, rev*g 61 Darb. 260.
14 Id. ; Pillow v. Roberts, 13 How. U. S. 472.
" Blackw. 73 ; Tyl. Ej. 536.
704 ACTIONS AFFECTING REAL PROPERTY.
to produce full evidence of minute details ; * but a presumption of
regularity cannot serve in lieu of producing the record if it can
be produced, nor serve to show that there was a proper record
where it appears that none can be found. 2 The official assess-
ment made and kept pursuant to law is admissible, on production,
with evidence that it comes from the proper official custody,
and the oath of the maker or custodian is not necessary. 3 The
final assessment roll is equally competent. 4 If the designation of
land is sufficient under the statute, the testimony of the assessor
is competent to identify the property. 5 If the statute 6 makes the
deed prima facie evidence, it merely shifts the burden of proof ; 7
and whether it declare the deed to \>eprima facie or conclusive 8
evidence, the courts do not give it this effect any further than
expressly required, and will not extend the presumption to pre-
vious 9 or subsequent 10 proceedings. If the statute does not de-
clare that the deed shall be prima facie evidence, the burden is
on one claiming under the deed to prove compliance with the
law ; and the general presumption of official regularity cannot
avail to supply the want of such evidence, as to matters which
should be of record, even after the lapse of more than thirty
years. 11 Steps which the law makes prerequisites of sale, if not
recited in the deed, should be proved aliunde in order to sustain
the deed, although the law does not require them to be recited. 13
"Where the statute is prohibitory in respect to conditions of power
to act, recitals showing a departure from the statute cannot be
helped by the presumption of regularity. 13 The presumption is
indulged to supply the place of that which is not apparent, not to
give a new character to that which is seen to be defective.
Payment of the tax may be proved by oral evidence as well
J Stead v. Course. 4 Cranch, 403 ; Hilton v. Bender, 69 N. T. 76, 82.
9 Blackw. 533 ; Hilton v. Bender (above).
3 1 Whart. Ev. 639. Or a certified copy. Wing v. Hall, 47 Vt. 182. The pro-
duction of what purport to be assessment rolls, without proof of their authenticity or
the genuineness of the assessors' signatures, is not sufficient evidence that the taxes
therein mentioned were duly imposed. Stevens v. Palmer, 10 Bosw. 60.
4 Ronkendorf v. Taylor's Lessee, 4 Pet. 349.
* Russel v. Werntz, 24 Penn. St. 337, 346.
6 The statutory presumption may depend on the statute in force at the time of the
trial. Hickox v. Tallman, 38 Barb. 608.
1 Williams v. Kirtland, 13 Wall. 306; Johnson v. Elwood, 53 N. Y. 431; modi-
fied on another point, in 56 Id. 614.
8 Whether a statute declaring it conclusive is constitutional, see McCready v.
Sexton, 29 Iowa, 355, 8. o. 4 Am. R. 214; Blackw. 80, and cas. cit.
9 Beekman v. Bigham, 5 N. Y. 366; Whitney v. Thomas, 23 N. Y. 281 ; Rath-
bone v. Hooney. 58 N. Y. 463.
10 Westbrook v. Willey, 47 N. Y. 457 ; McCready v. Sexton, 29 Iowa, 356, s. o. 4
Am. R. 214.
11 Hilton v. Bender, 69 N. Y. 75,77, rev'g 2 Hun, 1, s. c. 4 Supm. Ct. (T. <fe C.) 270.
12 Brown v. Goodwin, 1 Abb. New Cas. 452.
13 French v. Edwards, 13 Wall. 506, 514; and compare Walker v. Moore, 2 Dill. C.
Ct. 266; Leland v. Cameron, 31 N. Y. 115.
EJECTMENT. 705
as by the receipt or books of the collector. 1 The word "paid "
on a collector's book, opposite a tax upon land, is not evidence
that the taxes were paid by the person in whose name the land
is assessed. 3
16. Grantor's titleJ] Plaintiff, relying on a conveyance to
him from a grantor other than the State, must show that his
grantor had either title, or possession claiming title. 3 If the
conveyance was from one in peaceable possession claiming title
at the time it was executed, this is sufficient. If from one out of
possession, as in case of wild lands, plaintiff must show a
grant from the original source of title, and a regular deduction
therefrom. 4 Length of possession is not essential, unless it is
relied on as adverse possession, and in that case, if sufficiently
long continued, the validity of the deed is not essential. 5 The
capacity of the grantor to acquire 6 and convey, 7 may be pre-
sumed in the absence of evidence tending to the contrary. In the
absence of evidence to the contrary, there is a presumption that
the grantee took according to the true title of the grantor, and with
knowledge of it. 8 Title shown once to have existed, is presumed
to continue, 9 and he who relies upon a disseizin must prove it. 10
Every presumption is in favor of possession in subordination to
the title of the true owner. 11 In proving an exchange, possession
of the~ parcel given in exchange is relevant. 12
17. State grant.'] A patent can be proved by a constat^ or an
exemplification of record, 13 without producing the patent itself. 14
A patent is presumptive evidence of its own regularity and valid-
ity, 15 and at common law conclusive, except as against evidence
showing it to be absolutely void. Evidence, oral or written, which
shows a want of power in officers who issue a patent, is admis-
sible, even in an action at law, to defeat a title set up under it. 18
1 Adams v. Beale, 19 Iowa, 61.
5 Irwin v. Miller, 23 111. 401.
3 Dominy v. Miller, 33 Barb. 386 ; s. P. Stevens v. Hauser, 39 N. Y. 302 ; and
Bee Smith v. Lawrence, 12 Mich. 431. Centra, Chamberlain v. Bradley, 101 Mass.
188, s. c. 8 Am. R. 331 ; Bolster v. Cushman, 34 Me. 428 ; and see McNitt v. Turner,
16 Wall. 852.
4 Tyl. Ej. 541.
8 Stark v. Starr, 1 Sawy. 15.
Yntes v. Van De Bogert, 56 N. Y. 826.
7 Battin v. Bigelow, Pet. C. Ct. 462.
8 Smith v. Townsend, 25 N. Y. 479.
* Thomas v. Hatch, 3 Samn. 170.
10 Stevens v. Hauscr, 39 N. Y. 302, rov'g 1 Robt. 50.
11 Jackson v. Sharp, 9 Johns. 163; Jackson v. Waters, 12 Id. 365; Jackson .
Thomas, 16 Id. 293.
14 Moss v. Culver, 64 Penn. St. 414, s. c. 3 Am. R. 601.
13 McKineron v. Bliss. 31 Barb. 180, affi'd, on other grounds, as McKinnon v. Bliss,
21 N. Y. 206; and see McGarrahan v. Mining Company, 96 U. S. (6 Otto), 316.
14 Pat' era >n v. Winn, 5 Pet. 233.
18 Jackson v. Marsh, 6 Cow. 281 ; People v. Mauran, 5 Den. 389; United States v.
Stone, 2 Wall. 525, 535.
14 Sherman v. Buick, 93 U. S. (3 Otto), 209.
45
706 ACTIONS AFFECTING REAL PROPERTY.
The due performance of official acts may be presumed in support
of its validity. 1 The rules usual for presuming a lost grant do
not avail to the same extent, to prove a grant by the government. 3
18. Landlord and tenant -.] In ejectment between landlord
and tenant, the lease should be proved, 3 and it is sufficient evi-
dence of plaintiff's title. 4 The landlord's execution of the lease,
even where he sues to rescind it as void, is competent in evidence
as an act of ownership, and is prima facie evidence of title, even
though defendants are only connected with it by evidence that
they are in possession of the demised premises. 5 It is for them to
show that their possession is referable to some other title. 6 Notice
to quit is not necessary under a demise for a term to expire at a
time certain. 7
Where a tenancy expired by notice to quit, the service of
the notice may be proved by the testimony of the person making
it, or of any eye witness, 8 or by memorandum or entry made
contemporaneously in the ordinary course of duty by the person
who made the service, he being since deceased. 9 The authority
of an agent giving the notice may be proved as in other cases of
agency, except that a subsequent ratification will not enure to
bind the tenant by a notice not authorized when given. 10 The
contents of the notice may be proved by producing a duplicate
original, 11 or if that cannot be done, by oral evidence, without
having given defendant notice to produce the original. 12 The fact
that the period contemplated by the notice had expired when the
action was brought, may be shown presumptively by the admis-
sion of the tenant ; and this is conclusive if express and acted on. 18
The refusal of the tenant to admit the tenancy may be proved in
lieu of a notice to quit. 14
1 Jackson v. Cole. 4 Cow. 587 ; Cofield v. McClelland, 1C Wall. 331, 335 ; Carpen-
ter v. Rannels, 19 Id. 138, 146; but compare U. S. v. Jonas, 19 Wall. 598, 604.
* Oaksmitl.'s Lessee v. Johnston, 92 U. S. (2 Otto), 343, 345.
8 Presumptions arising from the lapse of time will aid defects in the proof of the
lease. Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Carver v. Jackson. 4 Pet. 1. If
the demise was oral, it may be proved by any person present at the making of it, or
by circumstances, such as the payment of rent. Tyl. Ej. 65i\ An agreement for a
lease is not enough without proof of renj; paid, if the tenant claims to hold adversely.
Jackson v. Cooly, 2 Johns. Cas. 223.
4 Stott v. Rutherford, 92 U. S. (2 Otto). 107. See p. 523, Ac. of this voL
s Magdalen Hospital v. Knotts, 36 Weekly R. 640.
6 Id. Contra, Caldwell v. Center, 30 CaL 639.
7 Tyl. Ej. 207 ; Gregg v. Von Phul, 1 Wall. 274. See, also, Lamed v. Hudson,
60 N. Y. 102 ; Smith v. Littlefield, 51 N. Y. 539 ; People ex rel. Aldhouse v. Goelet,
14 Abb. Pr. N. S. 130, s.c. 64 Barb. 476.
8 Tyl. Ej. 551.
* Doe 4- Patteshall v. Turford, 1 1 Mees. <fe W. 773 ; and see Leland v. Cameron,
81 N. Y. 115.
10 See Tyl. Ej. 552.
11 Tory v. Orchard, 2 Bos. A P. 41.
15 Falkner v. Beers, 2 Dong. (Mich.) 117.
13 Tyl. Ej. 552, and cases cited ; p. 527 of this vol. For mode of proving com-
mencement of action, see p. 688 of this vol.
14 Tyl. Ej. 553.
EJECTMENT. 707
19. Mortgagor and mortgagee?] The mortgage is sufficient
evidence of title as against the mortgagee. If overdue, default
and forfeiture may be presumed. As against third persons,
plaintiff must also show their tenancy, and either that it has been
determined or that it is subject to the mortgage. 2
20. Vendor and purchaser^ A vendor suing for possession,
after default on the part of the purchaser, should prove the con-
tract, 3 and default, and that defendant was in possession at the
commencement of the action. This is sufficient. 4 The contract
is conclusive evidence of plaintiffs title. 5 Notice to quit is not
necessary if defendant is put in the wrong by evidence of breach,
making his possession tortious. 6
21. Entry, .] The New York statute 7 dispenses with proof of
actual entry in all cases. 8
22. Title J)ij descent or devise.] The modes of proof have
already been stated. 9 More strict proof of death is required, to
establish title in ejectment, than where the question arises inci-
dentally and collaterally. 10
23. Dower.~\ In those States where dower may be recovered
by ejectment, the ordinary rules of the action apply. 11 The mar-
riage may be proved by indirect evidence. Evidence of the hus-
band's seizin, which would be sufficient to authorize a recovery by
the heir, is enough. 12 Proof of actual possession in the husband or
his tenant is presumptive evidence of seizin. 13 A purchaser
from the husband is not estopped from denying that he had an
1 By statute, in New York, the mortgagee cnnnot bring ejectment (2 N. Y. R. 8.
312, 57), and his remedy against the mortgagor is by action to redeem, llubbell
V. Moulson, 53 N. Y. 225.
5 Tyl. Ej. 543-9.
3 See p. 604, <fec. of this vol.
4 Tyl. Ej. 558 ; Friable Price, 27 CaL 253.
5 Jackson v. Ayres, 14 Johns. 224 ; Jackson v. Britton, 4 Wend. 507. Upon prin-
ciples already stated respecting tenant's estoppel. See p. 528 of this vol.
6 Gregg v. Von Plml, 1 Wall. 274 ; Tyl. Ej. 558.
7 2 N. Y. R. S. 306, 25.
8 Lawrence v. Williams, 1 Duer, 585. So, also, in England. Dumpor's Case, 1
Smith's L. Cas. 9.3, 108. To prove a legal entry in avoidance of an estate, tttere
must be nn intent to enter for the purpose of taking actual or constructive possession,
not merely to make a demand or for other purpose. If the lessor making the entry
declares that he comes for a different purpose, he cannot subsequently sustain it by
E roving a purpose to take possession for the forfeiture. Dumpor's Case, 1 Smith's
. Cas. 93, 107. Where a party has a legal right to enter in one character, or under
one title, the law presumes that his entry was in that character, and under that title,
and not as a trespasser. Benson v. Bolles, 8 Wend. 175.
9 Chapter V of this vol.
10 Carroll v. Carroll, 60 N. Y. 121, 125, rev'g 2 Hun, G09; 6 Supru. a. (T. A C.)
294; 16 Abb. Pr. N. S. 239.
"Tyl. Ej. 172.
/ Jackson v. Waltermire. 5 Cow. 299 ; Carpenter v. Weeks, 2 Hill, 341. A deed
and mortgage, differently dated, may be shown by parol to have been simultaneously
delivere<l, so as to disprove continuing seizin. Maybcrry v. Brien, 15 Pet. 21.
13 Carpenter v. Weeks, 2 Hill, 341.
708 ACTIONS AFFECTING REAL PROPERTY.
absolute estate. 1 Evidence of the husband's declarations and ad-
missions are competent against the widow, equally as against the
heir. 2
A variance in respect to the extent of the premises, 8 or the
character of the tenure, 4 may be cured by amendment. Ad-
measurement shown by a regular record is presumed, in the ab-
sence of evidence, to have been made on the widow's application
and with her assent. 5 It is conclusive as to the location and ex-
tent, 6 but is not evidence of title. 7
24. Curtesy.~\ In general, evidence of actual seizin is neces-
sary. 8 Under the married women's act,- curtesy may be defeated
by evidence that the wife devised or conveyed. 9 A tenant by
the curtesy, holding possession, is presumed to hold as such tenant,
and not adversely, though he have a void deed of the fee. 10
25. Title under ancient instrument.'] An ancient deed or
will, or other instrument of title, 11 may be admitted in evidence
without direct proof of execution, 12 when shown to have come from
proper custody, and appearing to be of the age of at least thirty
years, 13 if either a corresponding possession under it 14 for at least
thirty years 15 is shown, or if such account of it be given as may
reasonably be expected under all the circumstances of the case,
and as affords a presumption that it is genuine.
There must always be possession or other corroborating proofs. 16
1 Cooper v. "Whitney, 3 Hill, 96 ; Foster v. Dwinel, 1 Am. L. Reg. N. S. 604, and
note of REDFIELD, J. Unless, perhaps, when he derives all his title by that deed.
McLeery v. McLeery, 6 Me. 172, s. c. 20 Am. R. 683, 686, and cases cited.
* Van Duyne v. Thayre, 14 Wend. 233; Keator v. Dimmick, 46 Barb. 158.
Contra, Derush v. Brown, 8 Ohio, 413.
3 Bear v. Snyder, 11 Wend. 592.
4 Borst v. Griffin, 9 Wend. 307.
6 Tilson v. Thompson, 10 Pick. 359.
6 Jackson v. Hixon, 17 Johns. 123; Jackson v. Churchill, 7 Cow. 287.
7 Jackson v. Randall, 6 Cow. 168; Jackson v. De Witt, 6 Id. 316. At least not
conclusive. Parks v. Hardey, 4 Bradf. 15; Wood v. Seely, 32 N.Y. 105. As to
computing a gross bum in lieu, compare the statute, 2 N. Y. L. 1870, p. 1722, c. 717,
6 (2 R. S. 6 ed. 1124), with note to paragraph 45.
8 Ferguson v. Tweedy, 43 N. Y. 543, affi'g 56 Barb. 168 ; or at least evidence ex-
cluding the idea of actual seizin in a stranger. 2 Abb. N. Y. Dig. new ed. 493.
Compare Young v. Langbein, 7 Hun, 151.
9 Lansing v. Gulick, 26 How. Pr. 250, and cases cited ; Matter of Winne, 2 Lans.
21, rev'g 1 Lans. 508.
10 Corwin v. Corwin, 6 N. Y. S42, rev'g 9 Barb. 219.
11 Otherwise of an ancient account adduced in support of title, though found with
the title deeds. Jackson v. Murray, Anth. N. P. 143. Compare Roe v. Rawlings, 7
East, 279.
15 For the general rule, see Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31.
13 The handwriting of signatures to unauthorized indorsements or certificates may
be proved, for the purpose of showing the antiquity. Jackson v. Laroway, 3 Johns.
Cas. 283.
14 Crowder v. Hopkins, 10 Paige, 183.
15 Staring v. Bowen, 6 Barb. 109. Less is not enough (Jackson v. Blanshan, 3
Johns. 292), unless there be the aid of some evidence of execution. Jackson v. Lu-
quere, 6 Cow. 221.
16 Wilson v. Betts, 4 Den. 201 ; s. P. Clark v. Owens, 18 N. Y. 434 ; Ridgeley v.
Johnson, 11 Barb. 527.
EJECTMENT. 709
Where these are shown; the fact that an attesting witness is liv-
ing, within the jurisdiction, does not make it essential to produce
him. 1 The presumption may be rebutted. 2
Evidence of handwriting is admissible in aid of the presump-
tion ; and, in qualification of the general rule already- stated, 3 it is
to be observed that where, from the antiquity of the writing, it
is impossible for any living witness to swear that he ever saw the
party write, comparison is allowed, from necessity, with documents
known to be in his handwriting, though not otherwise in evi-
dence. 4
26. Lost instrument, and secondary evidence.'] Notice to a
party to the action to produce an instrument, is regular though
the instrument be in possession of his grantor ; and plaintiff need
not call such grantor as a witness. 5 A deed produced, by a party
to it and to the action, pursuant to notice to produce, may be
read in evidence without proof of its execution, unless there is
evidence impeaching it. 6 Secondary evidence may be given of a
document, lost or destroyed without the fault 'of the party offer-
ing it, although such document be one which, by reason of age,
proved itself without ordinary proof of execution. In such a
case the same principle of necessity which admits secondary evi-
dence of its contents, allows proof, by testimony, of its general
appearance and of its marks of antiquity. 7 Parol evidence of the
contents of a lost deed should show substantially all the contents.
A small portion is not enough ; 8 but evidence is sufficient which
enables the court to approximate to the date, and to determine
the character, the parties, and the premises conveyed. 9
27. Presumed grant.'] The cases in which a grant is pre-
sumed are chiefly of three classes.
1. Where one has been in possession under claim of right for
a great lapse of time (the period fixed by the statute of limita-
tions is usually followed 10 ), sufficient to justify an inference of
rightful enjoyment, a grant may be presumed for the sake of
quieting his title and possession, unless the circumstances are
equally consistent with the idea that he had none. 11 This pre-
1 Jackson v. Christman, 4 Wend. 277.
3 Wilson v. Belts (above); Meegan v. Boyle, 19 How. U. S. 130.
* Pp. 393-8 of this vol.
4 Strotlier v. Lucas, 6 Pet. 763 ; Jackson v. Brooks, 8 W e nd. 426 ; West v. State,
22 N. J. L. (2 Zab.) 212, 241 ; Swreigart v. Richards, 8 Penn. St. 436.
6 Jackson v. Livinsrston, 7 Wend. 136; Corbin v. Jackson, 14 Id. 619.
Betts v. Badger, 12 Johns. 223 ; McGregor v. Wait, 10 Gray (Mass.), 72.
7 Endcrs v. Stern bergh, 2 Abb. Ct. A pp. Dec. 31, rev'g 52 Barb. 222.
8 So held in trespass. Edwards v. Noyes, 65 N. Y. 125; and see Metcalf v. Van
Benthuysen, 3 N. Y. 424.
Kent v. Harcourt, 83 Barb. 491.
10 Ricard v. Williams, 7 Wheat. 69; Flora v. Carbean, 38 N. Y. 111. Compare
Barcl iy V. Howell, 6 Pet. 498; Mitchel v. United States, 9 Pet. 711, 760.
11 R'icard v. Williams, 7 Wheat. 59, 109; Schauber v. Jackaon, 2 Wend. 14;
Flora v. Carbean, 88 N. Y. 111.
710 ACTIONS AFFECTING REAL PROPERTY.
sumption is aided by evidence that he had a right to a grant.
To raise this presumption, some evidence must be given tending
to show title good in substance (though wanting some essential
matter to make it formally complete), and a possession consistent
with the grant to be presumed. 1 But very slight circumstances
will authorize the inference after a great lapse of time. 2
2. Where those claiming title show themselves to have been
entitled to a conveyance from trustees in conformity to the trust,
or from others in pursuance of a contract, a grant may be con-
clusively presumed against a person in possession without right. 8
3. Where defendant not claiming title but only possession,
gives evidence tending to raise an inference that plaintiff, or
those under whom he claims had divested themselves of title by
a conveyance to some third person, the jury may infer a grant ; 4
but the law does not presume it. 5
28. Deed void for adverse possession."] Showing possession in
a third person is not enough ; it must be shown to be adverse, 6
and under the claim of some specific title 7 asserted in good faith. 8
The adverse possession must be clearly and positively proved. 9
If the deed is shown to have been made by the true owner, every
presumption is in favor of a possession in subordination to his
title. 10
29. Impeaching on equitable grounds.'] Under the new pro-
cedure a deed, or other muniment of title, may be impeached on
equitable grounds. 11 A party who has read the instrument in
evidence, for the purpose of showing the nature of his adversary's
claim, is not thereby precluded from impeaching the instrument. 12
30. Admissions and declarations.'] A party cannot prove or
disprove title to land by his adversary's parol admission of title
or of the want of it. 13 But in support of other legal evidence of
title, evidence of a general admission, or even an indirect recogni-
tion, is competent," and is sufficient against a mere intruder. 15
1 Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31, reVg 52 Barb. 222.
* Kussell v. Jackson, 22 Wend. 276, 282, affi'g 4 Id. 543.
8 Schauber v. Jackson, 2 Wend. 14, 32, per WALWORTH, Ch., dissenting; French v.
Edwards, 21 Wall. 147, and a further decision in 5 Sawy. 266.
* Schauber v. Jackson, 2 Wend. 14, 63. Contra, Doe v. Butler, 3 Wend. 149.
6 Schauber v. Jackson (above).
6 Stevens v. Hauser, 39 N. Y. 302, reVg 1 Robt. 50.
7 Crary v. Goodman, 22 N. Y. 170.
8 Livingston v. Peru Iron Co. 9 Wend. 511, rev'g 2 Paige, 890.
9 Wickham v. Conklin, 8 Johns. 220; Jackson v. Sharp, 9 Id. 163; Jackson v.
Waters, 12 Id. 365 ; Howard v. Howard, 17 Barb. 663 ; but compare La Frombois v.
Jackson, 8 Cow. 589.
10 Jackson v. Sharp, 9 Johns. 163 ; Jackson v. Waters, 12 Id. 365.
11 Despard v. "Walbridge, 15 N. Y. 374. See paragraphs 1 and 36.
14 Remington v. Linthirum, 14 Pet. 84.
13 Walker v. Dnnspaugh, 20 N. Y. 170 ; Jackson v. Miller, 6 Cow. 751, 755 ; Jack-
on v. Cary, 16 Johns. 802, 306; McPhaul v. Gilchrist, 7 I red. (N. C.) L. 169, 173.
14 Jackson v. Dobbin, 3 Johns. 223; Jackson v. Croy, 12 Johns. 427.
15 Sykes v. llayes, 5 Biss. 629.
EJECTMENT. 711
Wherever the declaration of one having or claiming title to
real estate would be competent against him, it is competent
against persons subsequently deriving title through or from him,
provided that it was made while he held all the title which they
obtained or can claim; 1 but it is not competent for the purpose of
impeaching or destroying a record title. 2 Declarations made after
he contracted to convey, but before conveying, are competent, 3 but
those made after he conveyed (even though while he continued
in the occupation by sufferance 4 ), are not competent against those
claiming under him. 5
1 Chadwick v. Former, 69 N. Y. 407, And cas. cit., rev*g, on other grounds, 6 Hnn,
643. The declarations need not have been made on the land. Abeel v. Van Gelder,
86 N. Y. 613, 616 ; Smith v. McNamara, 4 Lans. 169. Actual or constructive posses-
sion is enough. Id. Id.
2 Gibney v. Marchay, 34 N. Y. 304.
3 Chadwick v. Fonner (above) ; Corbin v. Jackson, 14 Wend. 619.
4 Vrooman v. King, 36 N. Y. 477, 483; 2 Whart. Ev. 1165 and ca3. cit.
Contra, Adams v. Davidson, 10 N. Y. 309.
8 The cases on this subject are innumerable, and to a considerable extent irrecon-
cilable. The following rules I deem safe guides in the application of the principle
etated in the text, agreeably to the present general canons of evidence:
1. If it is a question whether a person was in possession at a given time, his acts
of ownership at that time, and his declarations and admissions made in connection
with such acts, and. characterizing them, are competent. Perkins v. Blood, 36 Vt.
273, 282 ; Young v. Adams, 14 B. Monr. (Ky.) 127, 132 ; Andrews v. Fleming, 2 Dall.
93; St. Clair v. Shale, 9 Penn. St. 252; West v. Price, 2 J. J. Marsh (Ky.), 380;
Comma v. Comins, 21 Conn. 413.
2. If a party, or one under whom a party claims, is shown to have been in posses-
sion (Ellis v. Janes, 10 Cal. 456; Reed v. Dickey, 1 Watts [Penn.], 152), and it is a
question whether ho held under claim of title, and if so what claim, his declarations
and admissions (including entries and memoranda; Hodgdon v. Shannon, 44 N. H.
672 ; Rand v. Dodge, 17 N. H. 343, 366) made while in possession, and characterizing
his claim of title, are competent. Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31,
rev'g 52 Barb. 222 ; Sample v. Robb, 16 Penn. St. 305, 319 ; Jackson v. Bard, 4 Johns.
230 ; Fellows v. Fellows, 37 N. H. 75, 84.
3. If it is a question what were the boundaries of his possession, his acts done upon
the land (and equally his declarations, made while in possession), and defining his
then actual boundary, are competent evidence of the location of the line ; but not of
the title (Bower v. Earl, 18 Mich. 367, 376; Van Blarcom v. Kip, 26 N. J. L. [2
Dutch.] 351, 860; Gratz v. Beates, 45 Penn. St. 495; Dawson v. Mills, 32 Penn. St.
802), except in the cases where actual location affects title (paragraph 11).
4. In all these cases the declarations are received as in the nature of a part of the
re.i gestce of the continuous and pervading fact of possession or claim, and hence are
admissible not only against, but equally in favor of, the declarant and those claiming
under him. Sh 'alter v. Eakeman, 56 Penn. St. 144; page 158 of tliis v>L
5. If possession with or without apparent paper title has been shown to have
been in a person under whom either party claims, evidence of his declarations and
admissions, against his interest, of facts such as oral evidence is competent to show,
and which directly disparage his title or the extent or the effect of his possession, is
admissible against those claiming under him, if clearly shown to have been made
while he held the possession and the title, if anj. P. 158 of this vol ; Outcalt v. Lud-
loW, 32 N. J. L. 239 ; Carpenter v. Carpenter, 8 Buah (Ky.), 2S:i ; Kckford v. DeKiy,
8 Paige 89; Keator v. Dimpiick. 46 Barb. 158; Graham v. Busby. -34 Miss. 272,
274; Jackson v. Livingston, 7 Wend. 136; Corbin v. Jackson. 14 Id. 619. State-
ments of merely incidental facts (such as the amount due on a mortgage, <tc. ; Cook
v. Swan, 5 Conn. 14"; Foote v. Beecher, 7 Abb. New Cas.), cs well as any declara-
tions made before acquiring (Wallace v. Miner, 6 Ohio, 366) or afi<;r patting witli
(Vrcoman v. 'King, 36 N. Y. 483) the possession or title, are inadmissible, unless as
part of the rcsgestas of A specific fact already properly in evidence (Moore v. Harail.
712 ACTIONS AFFECTING REAL PROPERTY.
Admissions as to title are dangerous evidence. 1
31. Recitals] A recital in a deed 2 is evidence of the fact of
instrument recited, as against the parties to the deed, and those
who claim under them by matters subsequent, whether by privity
in blood, estate or law; 3 but not against others, 4 unless accom-
panied with other evidence of the ancient existence of the deed and
of possession in accordance with it, 5 in which case it is admissible
even against strangers. 6 A deed, containing a recital, is compe-
tent, although it does not directly affect the title. 7 A general
recital, as distinguished from a direct affirmation of fact, is not a
conclusive estoppel; 8 and one which would otherwise be con-
clusive may be explained by mistake, 9 &c., unless acted on, so as
to create an equitable estoppel.
ton, 44 N. Y. 666 ; Kent v. Harcourt, 33 Barb. 491 ; Rigg y. Cook, 9 111. [4 Gilm.]
336, 350; Bell v. Woodward, 46 N. H. 315, 335; Brush v. Blanchard, 19 111. 31;
McDowell v. Goldsmith, 6 Md. 319, 338; Dinkle v. Marshall, 3 Binn. [Penn.]587;
Carroll v. Granite Manuf. Co. 11 Md. 399, 407; Johnson v. Elliot, 26 N. H. [6 Fost.]
67, 76; Cheswell y. Eastham, 16 N. H. 296), or brought home to the party against
whom they are adduced.
6. If one under whom neither party claims is shown to have been in possession,
with or without apparent title, and it is a question whether he held under a claim of
title and if so what claim, his declarations and admissions made while in possession,
and characterizing his claim of title, are competent after his decease, but not before.
2 Whart. Ev. 1156.
7. la none of these cases are admissions and declarations competent as a substi-
tute for (.Maslin v. Thomas, 8 Gill. [Md.] 18, 29), or in contradiction of, a paper title.
Gibney v. Marchay, 34 N. Y. 301, 304 ; Jackson v. Cole, 4 Cow. 587 ; Oakea v. Marcy,
10 Pick. (Mass.) 195.
8. Declarations, not admissible under these rules, are not rendered admissible
by the fact that they are offered to rebut other contrary declarations already in
evidence. Waring v. Warren, 1 Johns. 340; s. p. Henton v. Findlay, 12 Penn. St. 304.
Nor even though made as dying declarations. Jackson v. Vredenburgh, 1 Johns. 159.
For the application of these rules, on a question of fraud as against creditors, see
Chapter LI.
For declarations as to advancements, see p. 155 of this vt>l.
1 Jackson v. Shearman, 6 Johns. 19; Jackson v. Cary, 16 Id. 302; Jackson v.
Miller, 6 Cow. 751, affi'd in 6 Wend, 228.
Evidem e that possession was characterized by declarations claiming it under a
writing, does not necessarily require production of the writing. Patterson v. Flana-
gan, 37 Ala. 513, 522 ; p. 635 of this vol. n. 2.
2 A recital in a deed given under a decree, may be limited by the decree. McCall
T. Carpenter, 18 How. U. S. 297.
3 Carver v. Astor, 4 Pet. 1, and cas. cit. ; Crane v. Morris, 6 Id. 598, 611, STORY,
J. ; Torrey v. Bank of Orleans, 9 Paige, 649, and cas. cit.
4 Hill v. Draper, 10 Barb. 454 ; Hardenburgh v. Lakin, 47 N. Y. 109.
8 Sehermerhorn v. Negus, 2 Hill, 335; McKinnon v. Bliss, 21 N. Y. 206, affi'g
McKineron v. BHss, 31 Barb. 180.
6 Deery v. Cray, 5 Wall. 795, 805.
7 Jackson v. Harrington, 9 Cow. 86. But, in such a case, since the claim of
the party is not founded on the deed, the deed is not an estoppel (Champlain,
<fcc. R. R. Co. v. Valentine, 19 Barb. 484), and the recital must be one which is
competent as an admission of a predecessor in title or possession, under the rules
already stated (page 712), and if the instrument containing it was not executed by
him there must be evidence of his acceptance or of possession of it on the part of him
or of them against whom it is adduced. Jackson v. Brooks, 8 Wend. 420. For this
purpose their production of it is prima facie enough. Jackson v. Harrington (above).
8 Huntington v. Havens, 5 Johns. Ch. 23; Dempsey v. Tylee, 8 L'uer,. 73.
Stoughton v. Lynch, 2 Johns. Ch. 209.
EJECTMENT. 713
32. Estoppels] A conveyance, which, expressly or by neces-
sary implication, affirms that the grantor is seized of and conveys a
fee simple, estops the grantor, and those claiming under him, from
denying that he had that estate and passed it by the deed. 1 But
a quitclaim, or a deed which does not, on its face, define the estate
or interest conveyed or intended to be conveyed in the prem-
ises, does not estop either party from showing, in opposition to it,
that no title passed, or from claiming under after-acquired title. 2
An estoppel against estoppel sets the matter at large. 3
Evidence of an equitable estoppel is admissible under a denial,
or by amendment, if the party is not misled. 4 Estoppel in pais
cannot work a transfer of title to land ; 5 but it may cut off a lien, 6
conclude a question of boundary, 7 or even preclude the true
owner and those claiming under him from impeaching an adverse
conveyance when taken on the faith of his disavowals. 8
33. Former adjudication^ A former judgment in eject-
ment, recovered under the new procedure, is evidence (and con-
clusive, except where the statute gives a new trial of course),
against the parties, as in personal actions. 9 And against strangers
who entered into possession after the former action was com-
menced, but not others. 10 The grouy Is of former judgment, if
they do not fully appear from the record, may be shown by
parol, provided that the matters alleged to have been passed upon
are such as could legally have been given in evidence upon the
trial, and that the verdict and judgment show that they must
necessarily have been considered by the court and jury. 11 Judg-
ment in summary proceedings, 12 or in a proceeding or action to
determine conflicting claims, 13 is competent. Acquittal in forcible
entry and detainer, is not. 14
1 Van Rcnsselacr y. Kearney, 11 How. U. S. 297; Heath v. Crealock, L. R. 10
Chan. App. 22, s. c. 11 Mo:ik's Eng. 416, and cas. cit. ; and see House v. McCormick,
67 K Y. 310; Gallup v. Albany Rev. 7 Lans. 471.
4 Sparrow v. Kingmnn, 1 N. Y. 242, 247; Kingman v. Sparrow, 12 Barb. 201 ;
Bigelow v. Finch, 1 1 Barb. 498. The estoppel which passes an after-acquired title,
under a prior one. cannot be prejudiced by the admission of the party setting it up,
that the grantor had no title when he conveyed. McCusker v. McEvey, 9 R. I. 528,
B. c. 11 Am. R. 295.
3 Branson v. Wirth, 17 Wall. 3:2.
4 Rowan v. Kebey, 4 Abb. Ct. App. Dec. 125.
6 Babcock v. Utter, 1 Abb. Ct. App. Doc. 27 ; Hayes v. Livingston, 34 Mich.
384, s. c. 22 Am. R. 533.
6 Markham v. O'Connor, 52 Geo. 183, s. c. 21 Am. R. 249.
7 Corkhill v. Landers, 44 Barb. 218.
8 Mattoon v. Young, 45 N. Y. 696, again, 2 Hun, 559. For the three propositions
on equitable estopnel, see 12 Moak'a Eng. 373, and cases collected; Id. 375 n.
9 Sturdy v. Juckaway, 4 Wall. 174; Miles v. Caldwell, 2 Id. 35.
10 Thompson v. Clark, 4 Hun, 165. Compare Sheridan v. Andrews, 49 N. Y. 479.
11 Wood v. Jackson, 8 Wend. 9, rev'g 3 Id. 27, reviewing conflicting case?. Followed
by NELSON, J., Lawrence v. Hunt, 10 Id. 81 ; s. p. Stednian v. Patcbin, 84 Barb. 21S;
Miles v. raid well, 2 Wall. 35.
13 Terrett v. Cowc-nhoven, 11 Ilun. 320.
18 Lessee of 1'arrish v. Ferris, 2 Black, 606.
14 Peyton v. stith, 5 1'et. 485.
714: ACTIONS AFFECTING REAL PROPERTY.
To prove a judgment as an adjudication upon the title, or a
link in its chain, the judgment roll must be produced. 1
34. Defendants possession : Ouster.'] The fact that defend-
ant was in possession at the commencement of the action must be
shown. 2 It may be proved by direct testimony ; 3 or by declara-
tions of the defendant; 4 -or by his acts of dominion; 5 or by the
fact that he procured himself to be made a party, in order to de-
fend the title. 6 A variance as to his claim of title, 7 or the rela-
tive possession of several defendants, 8 is not fatal.
Proof of lease or entry is no longer required, 9 nor of ouster un-
less it is shown that defendant is a tenant in common or joint
tenant with plaintiff, or holds under such a co-tenant of plaintiff. 10
In that case actual ouster is generally necessary. 11 It may be
proved by showing that the defendant held adversely, or that he
denied the title of the other co-tenants, or claimed the whole of
the premises for himself, or denied possession to the other ; or had
the sole and undisturbed possession for a long course of years
without payment of rent, and without any claim of any part of
the profits by the other co-tenants during the whole of the time. 12
Presumption of ouster does not arise where the right exercised
by the tenant in possession is consistent with the rights of his co-
tenant. 13
35. Mesne profits.~\ Rents and profits cannot be recovered
unless claimed in the complaint. 14 The claim is open to every
equitable defense. 15
36. Defenses.~\ Defendant need not show title in himself, out
may rest on showing title out of plaintiff, and even a mere pos-
sessor, without claim of title, may give evidence tending to raise
1 Harper v. Rowe, Cal. 1878, 7 Reporter, 174; and see Chapter XXIX. All the
necessary or proper documents used in summary proceedings in a matter pending
before a court of record, although not proceeding according to the course of the com-
mon law in that particular matter, unless otherwise declared by law, are competent
and material to sustain the adjudication. Embury v. Conner, 3 N. Y. 611, rev'g 2
Sandf. 98.
8 Abbey Homestead Ass. T. Willard, 48 CaL 614.
8 Van Rensselaer v. Vickery, 3 Lans. 67.
4 See paragraph 81.
8 Such as residence on the premises, or receipt of rents, or cutting down trees,
and the like, or refusal of a demand for possession. Tyl. Ej. 473.
6 Jackson v. Harrow, 11 Johns. 434 ; Den dem. Mordecai v. Oliver, 5 Hawks (N.
C.), 479.
7 Rose v. Bell, 38 Barb. 25.
8 Fosgate v. Herkimer Mfg. <fc Hydraulic Co. 12 N. Y. 580, affi'g 12 Barb. 352.
9 2 N. Y. R. S. 306, 26, 27.
10 Gillet v. Stanley, 1 Hill, 121 ; Sharp T. Ingraham, 4 Id. 116.
11 Sharp v. Ingraham (above); Tyl. Ej. 199.
18 Tyl. Ej. 476.
13 Butler v. 1'helps, 17 Wend. 642. Compare Gregg v. Sayrc, 8 Pet. 244; Clason
v. Rankin, 1 Duer, 337.
14 Lamed v. Hudson, 57 N. Y. 151. As to damages, see Vandevoort v. Gould, 36
N. Y. 639.
15 Jackson v. Loomis, 4 Cow. 168.
EJECTMENT. 715
a presumption that the title under which the plaintiff claims is
extinct. 1 If plaintiff has only shown a possessory title, it is
enough for defendant to show a prior possession within the
period fixed by the statutes of limitations. Under the new pro-
cedure, an equitable defense may be proved. 2 Under a general
denial, defendant may controvert any fact which plaintiff is
bound to establish to make out title and right of possession at
the commencement of the action ; but he cannot prove a dis-
charge of a cause of action then existing in plaintiff against
him.
37. adverse possession.'] Adverse possession must be
shown to have been based on a claim, of title. Oral claim with-
out written foundation is not enough, except as to land of which
actual occupation is shown. 4 The possession must be shown to
have been open, visible, notorious, exclusive, and adverse to
plaintiff's title. It must be such that owner may be presumed
to know that there is possession adverse to his title; though actual
knowledge is not necessary. 5 It is not made out by inference,
but by clear and positive proof. Every presumption is in favor
of possession in subordination to title of true owner. 6
Ripe adverse possession, being shown, is not rebutted by a
subsequent admission of not having title ; 7 but oral admissions,
though to a stranger, are competent to show an agreement to
hold under the true owner. 8 Evidence of the manner of occupa-
tion and of the conduct of others, tending to negative the idea
of a subordinate possession, is competent. 9
38. Bona fide purchaser.'] The facts giving the right to pro-
tection must be proved ; and must be alleged, to be admissible in
evidence. 10 Subject to qualifications below stated, applicable
where protection depends on the recording act, a party relying on
the plea that he is a bona fide purchaser, entitled to hold notwith-
standing fraud, must prove apparently perfect title to a vested
estate, by a regular conveyance. 11 The statement of consideration
I Tyl. Ej. 664. Compare Greenleaf v. Birth, 6 Pet. 302 ; Foster v. Joice, 3 Wash.
C. Ct. 498.
8 Crary v. Goodman, 12 N. T. 266.
3 Raynor v. Timerson, 46 Barb. 618. But compare Ford v. Sampson, 8 Abb. Pr.
332, s. c. 30 Barb. 183, 17 How. Pr. 447.
4 The requisites of the claim and of the possession are prescribed by statute. See
1 Abb. N. Y. Dig. new ed. 39 ; Tyl. Ej. 859, Ac.
4 2 Greenl. Ev. 430.
8 Id. 894, note 5.
II Stuyvesant v. Tompkins, 9 Johns. 61, nffi'd in 11 Id. 569.
8 Read v. Thompson, 5 Penn. St. 327 ; Moore v. Small, 9 Id. 194.
9 Fellows v. Fellows, 37 N. H. 76, 86.
IO Boone v. Chiles, 10 Pet. 177, 211. And see Frost v. Beekman, 1 Johns. Ch.
288.
11 Boone v. Chiles, (above); Life Ins. A TrnstCo. v. Cutler, 3 Sandf. Ch. 176. But
color of title with adverse possession in the grantor is competent. Tompkins v. An-
thon, 4 Sandf. Ch. 97. In case of purchase under a decree, regularity hi the decree
need not be shown. Gallatian v. Cunningham, 8 Cow. 361.
716 ACTIONS AFFECTING REAL PROPERTY.
contained in the deed is not sufficient ; l but actual payment before
notice must be shown. 2 An erroneous statement of consideration
in the deed does not preclude evidence of the true consideration. 8
The valuable consideration requisite to be proved is of the same
character as required in the case of negotiable paper. 4 If pro-
tection is claimed under a conveyance by way of security for a
past indebtedness, an agreement for forbearance will not be pre-
sumed in support of the claim, but must be proved. 5 A release
or quitclaim, if available at all for the purpose, 6 especially re-
quires extrinsic evidence of consideration/ Want of notice
must be proved, and must be alleged, or is not admissible. 8 Under
an allegation relating to the principal, notice to his agent may be
proved. 9 Allegation of want of notice on the part of one owner
does not admit evidence of want of notice on the part of an-
other. 10 Unless otherwise provided by statute, actual knowledge
of an existing instrument is, in legal effect, the equivalent to
notice by its record. 11 A purchaser who had knowledge of a fact
sufficient to put him to inquiry, is presumed to have made in-
quiry, and is chargeable with notice of whatever it appears he
could have ascertained by the inquiry upon which the circum-
stances should have put him. 12 This presumption may be rebutted
by evidence that he made due inquiry, and failed to ascertain the
fact. 13
For the purpose of proving the grantee a ~bona fide purchaser
within the meaning of the recording acts, the acknowledgment
in the deed is prima, facie evidence that the consideration,
acknowledged to be paid, was paid. 14
As between one claiming record title, and one claiming under
a prior equity or unrecorded instrument, the burden is on the
latter to show actual notice to the subsequent purchaser of his
1 Bolton v. Jacks, 6 Robt. 166, 284 ; Jackson v. Cadwell, 1 Cow. 622 ; Lloyd v.
Lynch, 28 Penn. St. 419; Seymour v. Wilson, 19 N. Y. 417.
2 Jewett v. Palmer, 7 Johns. Ch. 65.
3 Paragraph 9, and cases cited.
4 See Pickett v. Barren, 29 Barb. 505, and cases cited ; De Lancey v. Stearns, 66
N.Y. 157.
6 Cary v. White, 52 N. Y. 138.
6 May v. Le Claire, 11 Wall. 217.
1 Boone v. Chiles, 10 Pet. 177, 212.
8 Atty.-Gen. v. Biphosphated Guano Co. 27 Weekly R. 621 ; Gallatian v. Cun-
ningham, 8 Cow. 361; Balcom v. N. Y. Life Ins. & Trust Co. 11 Paige, 454; Boone
v. Chiles (above).
9 Griffith v. Griffith, Hoff. Ch. 153.
10 Atty.-Gen. v. Biphosphated Guano Co. (above).
11 Patterson v. De La Ronde, 8 Wall. 292 ; Crane v. Turner, 67 N. Y. 437, affi'g 7
Hun, 857.
12 Reed v. Gannon, BO N.Y. 345, rev'g 3 Daly, 414 ; Cordova v. Hood, 17 Wall. 1.
And see M:ixfieli v. Burton, L. R. 17 Eq. 15, s. c. 7 Moak's Eng. 642. But compare
Wilson v. Wall, 6 Wall. 83, 91 ; Acer v. Westcott, 46 N. Y. 384, rev'g 1 Lans. 193.
13 Reed v. Gannon (above).
14 See paragraph 9.
DETERMINATION OF CONFLICTING CLAIMS. 717
rights, or prove circumstances such as would put a prudent man
upon his guard and from which actual notice may be inferred. 1
Actual, open and visible possession, inconsistent with the title of
the apparent owner by the record, is evidence of notice ; 2 not so
of occupation which is equivocal, occasional, or for a special or
temporary purpose. Constructive possession will not suffice. 3
Conveyance taken for value and without notice may be pre-
sumed to have been taken in good faith, in the absence of other
evidence. 4
Record of an instrument within the purview of the statute, 5
and duly authenticated so as to be entitled to record, is, as the re-
cording acts are usually framed, effectual notice, irrespective of
omissions in spreading it upon the record, 6 or its omission from
the index, 7 or the subsequent destruction of the record ; 8 and is
conclusive evidence of notice of the instrument from the time of
such record, but is not necessarily notice of collateral facts stated
in the instrument. 9 Evidence that a party actually saw, or had
information of an instrument upon the record, is notice of it to
him, although it was not legally entitled to record. 10
The pendency of an action (without notice of Us pendens filed
under the statute), is notice only during its pendency, 11 and of the
right established by the decree finally made ; not of collateral
matters stated in the proceedings. 13
II. ACTIONS TO DETERMINE CONFLICTING CLAIMS.
39. Mode of proof.'] Plaintiff must show, by direct evi-
dence, 13 an actual possession 14 existing for the statute period, 15
and continuing up to the time of commencing the action, 16 under
1 Brown v. "Volkening, 64 N..T. 78.
s Raynor v. Timerson 64 N. Y. 639.
3 Brown v. Volkening, 64 N. Y. 76.
4 See Franklin v. Osgood, 14 Johns. 527; New Orleans Canal and Banking Co.
v. Montgomery, 95 U. S. (5 Otto), 16.
6 Otherwise of instruments not authorized to be recorded. Boyd v. Schlesinger,
69 N. Y. 301 ; Washburne v. Burnham, 63 N. Y. 132.
6 Riggs v. Boylan, 4 Biss. 445.
1 Mutual Life Ins. Co. v. Dake, 1 Abb. New. C&a. 381.
8 Shannon v. Hall, 72 111. 354, 8. o. 22 Am. R 146.
9 Murray v. Ballon, 1 Johns. Cb. 566 ; Crofut v. Wood, 3 Hnn, 671 ; Mills v.
Smith, 8 Wall. 27.
10 Cramer v. Lepper, 26 Ohio St. 59, a. c. 20 Am. R. 756.
11 Leitch v. Wells, 48 N. Y. 585.
12 Paige v. Waring, 8 Abb. New Cas.
13 The presumption that possession existing at an earlier time continued, is not
sufficient. Cleveland v. Crawford, 7 Hun, 616.
14 Churchill v. Onderdonk, 69 N. Y. 134. The constructive possession which fol-
lows seizin in law, is not enough. Id.
15 Three years, by 2 N. Y. K. S. 812 ; 3 Id. 6 ed. 679, 1.
16 Boylston v. Wheeler, 61 N. Y. 621 ; Haynes v. Onderdonk, 2 Hun, 619, 8. c. 5
Supm. Ct. (T. <fc C.) 176; Brooks v. Calderwood, 34 CaL 663.
718 ACTIONS AFFECTING REAL PROPERTY.
a claim of title, 1 such as is specified by the statute ; 3 and this
makes a prima facie case, and compels defendants to show their
title, 3 unless their answer disavows claim, 4 in which case plaintiff
must prove the fact of their claim. 5
If plaintiffs 'possession is under an unfounded claim, it is
enough for defendant to show a prior possession. 6
Title, claim of title and possession may be proved in the same
manner as in ejectment.
III. ACTIONS TO REMOVE CLOUD ON TITLE.
40. Mode of proof. ~\ Plaintiffs title, if in issue, must be
proved. 7
As to defendant's claim, evidence which would be appropriate
to sustain ejectment, 8 or an action for the determination of con-
flicting claims, 9 is not enough. Plaintiff must show that the claim
or lien 10 which he seeks to remove, 11 purports to affect injuriously 12
his real estate, 13 and appears on its face to be valid, and that the
defect in it, on which he relies u to show its invalidity, can be
made to appear only by extrinsic evidence, 15 and will not neces-
1 Mere possession is not enough. Stark T. Starrs, 6 "Wall. 402. But possession
trader a void deed is. Ford v. Belmont, 69 N. Y. 567, 570, affi'g 35 Super. Ct. (J.
<fe S.) 135 ; Schroeder v. Gurney, 10 Hun, 413.
2 2 N. Y. R. S. (above), and N. Y. L. 1860, p. 295, c. 173.
3 Ford v. Belmont (above).
4 Boylston v. Wheeler, 5 Supm. Ct. (T. <fe C.) 179, s. o. 2 Hun, 622.
5 Davis v. Read, 65 N. Y. 666.
6 Ford v. Helmont (above).
7 Wing v. Slierrer, 77 111. 200. For the mode of proof, see the previous para-
graphs of this chapter.
8 Bockesv. Lansina:, 13 Hun, 38, affi'd Id. iv.
Bailey v. BriggC56 N. Y. 407.
10 It is not essential however, that the claim or lien be wholly of record. Fonda
71 Sage, 48 N. Y. 173.
11 Or to prevent. Crook v. Andrews, 40 N. Y. 547, 651 ; N. Y. A H. R. R. Co. v.
Trustees of Morrisania, 7 Hun, 652. If the action is to prevent the creating of cloud,
he must show that there is a determination on defendant's part to create it. Danger
that it may be created is not enough. Sanders v. Village of Yonkers, 63 N.Y. 489, 492.
12 Hartman v. Reed, 50 Cal. 485.
13 Smith v. Mayor, Ac. of N. Y. 68 N. Y. 552. As to leasehold, see Hebrew Free
School Ass. v. Mayor, <tc. of N. Y. 4 Hun, 446.
14 If a ground of invalidity which would not appear in the record of the claim or
lien is proved, the relief may be granted although another ground o'f invalidity ex-
ists which would appear by the record. Boyle v. City of Brooklyn, 71 N. Y. l,rev'g
8 Hun, 32.
15 To illustrate: Absence of evidence of authority of an attorney to convey is an
obvious defect, and a claim thus imperfect is not a cloud. Washburne v. Burnham,
63 N. Y. 132. And compare p. C96 of this vol. But the fact that a deed under which
the claim is made was forged, but has nevertheless been proved and recorded, is a
defect which must be shown by extrinsic evidence, because the certificates are pre-
sumptive evidence of genuineness; and therefore the deed is a cloud. Remington
Paper ('o. v. O'Dongheity, 16 Hun, 594. So of the fact that one claiming to be a
bona fide purchaser took with notice of a lost deed under which plaintiff claims.
Findlay v. Hinde, 1 Pet. 241. If the entire evidence is on record as a part of the title,
the relief may be refused. Schroeder v. Gurney, 73 N. Y. 430, affi'g 10 Hun, 413.
FORECLOSURE. 719
sarily appear in proceedings by the claimant to enforce it. 1 If
the objection appears on the face of the instrument or record, 2 or
the claimant would necessarily develop it by the proof which he
would be obliged to produce, 3 the action is not sustained, unless
either the common law or a statutory presumption of the regu-
larity of official acts would avail to make the claim presumptively
valid. 4 When the necessary extrinsic evidence is wholly oral, the
ground of relief becomes the stronger. 5
IY. ACTIONS OF FORECLOSURE.
41. Forclosure of vendor's lien.'] The law implies the lien
against the purchaser, and against subsequent purchasers and in-
cumbrancers, if they had notice, or if they took without considera-
tion or assumption of liability. A recital in the deed, of a considera-
tion to be paid at a future day, is enough to charge with notice. 6
The burden is on the purchaser to prove a waiver of the lien. 7
Any act which manifests the intent of the vendor, in conveying
or in subsequently dealing with the claim, to waive or abandon
the lien, is competent. Taking a personal obligation, payable to
the vendor made by the purchaser alone, is no evidence of waiver. 8
Taking other security is not conclusive evidence of waiver, but
throws the burden on the vendor to prove clearly that there was
no intention to waive. 9 Plaintiff suing to foreclose his lien before
conveyance, need not prove tender of a deed. 10
42. Foreclosure of mortgage^ The bonci. or note, if any,
must be produced and proved, or be accounted for and secondary
evidence given, 11 for this is the primary evidence of the debt. 12
The recital in the mortgage of the existence of the bond or note, is
1 The leading recent expositions of the general rule are : Marsh v. City of Brook-
lyn, 59 N. Y. 230, rev'g 2 Hun, 142, s. o. 4 Supm. Ct. (J. & C.) 413 ; and Guest v.
City of Brooklyn, 69 N. Y. 606, affi'g 8 Hun, 97.
4 Hannewinkle v. Georgetown, 15 Wall. 547.
3 Guest v. City of Brooklyn (above) ; Howell v. City of Buffalo, 2 Abb. Ct. App.
Dec. 412.
4 Mayor, <fec. of N. Y. v. North Shore, <fcc. Ferry Co. 9 Hun, 620.
6 Marsh v. City of Brooklyn (above).
Cordova v. Hood, 17 Wall. 1, 5.
7 Garson v. Green, 1 Johns. Ch. 308.
8 6 Abb N. Y. Dig. new ed. 110; Cordova v. Hood, 17 "Wall. 1, 6, and cases cited.
Auburn v. Settle, 3 Supm. Ct. (T & C ) 258 ; 42 Miss. 792, s. c. 2 Am. R. CM}.
10 Frccson v. Bissell, 63 N. Y. 108. Otherwise if neither party holds the legal
titlo. Thomson v. Smith, 63 N. Y. 301.
11 Chewning v. Procter, 2 M'Cord, 11. Tho mode of proving execution hns been
already stated. Pages 693, 504-8, of this vol. As to mortgage by religious corpora-
tion, seo Moore v. Rector, <fec. of St. Thomas' Ch. 4 Abb. .T^ew Cas. 61, and cases
cited. As to assent of stockholders when required on a corporate mortgnge, see Green-
point Sugar Co. v. Whitin, 69 N. Y. 328, affi'g 7 Hun, 44. Plaintiff may prove that
a deed, absolute in terms, was in fact a mortgage. Hughes v. Edwards, 9 Wheat.
489, 494, and .ee pp. 721, 722 of this vol. The burden is on him to show that tho
deed was taken for his benefit and as security. Fullerton v. McCurdy, 65 N. Y. 687.
18 Jackson v. Blodgett, 6 Cow. 202, 206, and see Langdon v. Buel/ Wend. 80, 83.
720 ACTIONS AFFECTING REAL PROPERTY.
secondary evidence of that fact, 1 but not conclusive. 3 A variance
in the date 8 or in the allegation of the obligation or covenant, 4 is
not fatal if defendant has not been misled. The bond and mort-
gage are presumptive evidence of consideration. 5 The law of the
place where the contract was made, although without the State,
may be proved on a question of usury. 6
In those jurisdictions where a mortgage collateral to negotia-
ble paper has the advantages resulting from negotiability in the
hands of a bona fide transferee, such a mortgage 7 or deed of
trust, 8 held by an assignee before maturity, is presumed to have
been taken for value and in good faith. 9
43. Defendant's liability, demand and default.] A grantee
of the premises taking merely subject to the mortgage, as distin-
guished from one taking subject to the payment of the mortgage,
cannot be presumed to have assumed to pay the mortgage. 10 One
who has effectually assumed payment in favor of plaintiff, 11 is
estopped from questioning the validity of the mortgage, 12 but not
from proving payment. 13 If two persons incumber their several
lands by one mortgage, the debt is presumed that of both equally. 14
Default in payment is sufficiently proved by production and
proof of the bond and mortgage, if apparently overdue, even by
default under the usual interest clause. 15 Payment of taxes and
assessments may be proved by the official receipt. Payment of
insurance should be proved by a witness and the receipts for
premiums will then be competent but not essential.
On a question of priority of lien, 16 the relative dates of the
instruments, and their acknowledgment are relevant but not con-
clusive. 17 The rule that acceptance of a beneficial instrument will
1 See Cooper v. Newland, 17 Abb. Pr. 343.
9 Gaylord v. Knapp, 15 Hun, 87. Compare Burger v. Hughes, 5 Hun, 180
3 Ontario Bank v. Schermerhorn, 10 Paige, 109.
4 Hadley v. Chapin, 11 Paige, 245.
5 Russell v. Kinney, 1 Sandf. Ch. 34, s. c. 2 N. Y. Leg. Obs. 233, affi'd 2 Sand
Ch. 81, note. As to estoppel by certificates or representations, see Lee v. Monroe, 7
Cranch, 366 ; and the defense of USUBY.
6 Lewis v. Ingersoll, 3 Abb. Ct. App Dec. 55, s. c. 1 Keyes, 347 ; and see, as to law
of place, Dickinson v. Edwards, 7 Abb. New. Cas. 65, rev'g 2 Abb. New. Cas. 300.
1 Carpenter v. Longan, 16 Wall. 271, 273.
8 New Orleans Canal and Banking Co. v. Montgomery, 95 U. S. (5 Otto), 16.
' See chapter on NEGOTIABLE PAPER.
10 Tillotson v. Boyd, 4 Sandf. 516; Binsse v. Paige, 1 Abb. Ct. App. Dec. 138;
Collins v. Rowe, 1 Abb. New. Cas. 97; Cashman v. Henry, 2 Abb. New. Cas. 230, s.
c. 75 N. Y. 103. For the presumption as to price, in conveyance subject to mort-
gage, see Johnspn v. Zink, 51 N. Y. 333, affi'g 22 Barb. 396.
11 The Pennsylvania doctrine requires extrinsic evidence, that a grantee merely
"subject to the payment" assumed liability. Thomas v. Wiltbank, 8 Reporter, 442.
12 Hartley v. Harrison, 24 N. Y. 170; Smith v. Cross, 16 Hun, 487.
13 Hartley v. Tatham, 2 Abb. Ct. App. Dec. 333.
14 Hoyt v. Doughty, 4 Sandf. 462.
15 Sowarby v. Russell, 4 Abb. Pr. N. S. 238, s. c. 6 Robt. 322.
16 As to what claims are within the usual allegation, see Knick. Life Ins. Co. v.
Nelson, 7 Abb. New. Cas. 170, and cases cited, affi'g 13 Hun, 321.
17 Wyekoff v. Remaen, 11 Paige, 664.
FORECLOSURE. 721
be presumed, does not avail to give it priority, in the absence of
evidence that the claimant had notice of its existence, with evi-
dence of such additional circumstances as will afford a reasonable
presumption of his acceptance of it. 1 A junior mortgagee who
has foreclosed and bought in, is presumed to have bid to the value
of the equity of redemption only ; and will be deemed to hold
subject to the senior mortgage. 8
44. Defenses.} A material fraudulent alteration of the bond
or mortgage by the party is a bar. 3 Failure of title without evic-
tion or disturbance of possession in case of a purchase money
mortgage is not a defense, 4 unless fraud or misrepresentation is
proved, and to be admissible these must be alleged. 5
A contemporaneous oral agreement as to time of payment,
contradictory to the terms of the mortgage, is not competent." A
collateral agreement for the application of a cross indebtedness
may be proved, 7 but not so as to vary the contract by parol. 8 Where
plaintiff is an assignee, the debtor may prove, in support of an
allegation of payment, that he himself furnished the money with
which the assignment was procured. 9 Intent to merge may be
presumed from the act of the owner of the equity of redemption
in taking an assignment of the mortgage ; 10 but even his declara-
tion that he is absolute owner is not conclusive. 11 The presump-
tion of payment resulting from lapse of time, 12 may be repelled
by evidence of part payment, or written acknowledgment, made
by the debtor within twenty years, even though made after he
had parted with his interest in the property. 13 Where the statute
does not thus require particular evidence, 14 the presumption may
be repelled by circumstances, even against a mortgagee or his
assigns in possession. 19
1 Bell v. Farmers' Bank of Kentucky, 11 Bush, 34, s. c. 21 Am. R. 205; Parmelee
V. Simpson 5 Wall. 81, 85.
Mathews v. Aiken, 1 N. T. 595.
8 Waring v. Smyth, 2 Barb. Ch. 119, 135, and see paragraph 1.
4 Noonan v. Lee, 2 Black. 499 ; Farnham v. Hotchkiss, 2 Abb. Ct. App. Dec. 93.
* Noonan v. Lee (above).
* Hunt v. Bloomer, 5 Duer, 202. As to oral agreement to vary the consideration
or condition, compare Townsend v. Empire Stone Dressing Co. 6 Duer, 208 ; Kim-
ball v. Meyers, 21 Mich. 276, 8. c. 4 Am. R. 487. As to effect of diversion of the
proceeds, see Graver v. Wilson, 14 Abb. Pr. N. S. 374.
1 Peck v. Minot, 3 Abb. Ct. App. Dec. 465 ; Hartley v. Tatham, 2 Abb. Ct App.
Dec. 833.
8 Forsythe v. Kimball, 91 U. S. (1 Otto), 291.
McLemore v. Pinkston, 31 Ala 266 ; and see pp. 4 and 8 of this vol. The rules
as to proving payment are more fully stated in connection with PAYMENT as a defense.
'* Gardner v. Astor, 3 Johns. Ch. 53; Starr v. Ellis, 6 Id. 393.
11 James v. Morey, 2 Cow. 246, 285, 807, 313.
13 A legal presumption independent of the Statute (see PAYMEJTT as a defense), and
fixed by statute nt twenty years (2 N. Y. R. S. 301, 48), even in case of a mortgage
to secure an unsealed note (Heyer v. Pruyn, 7 Paige, 465).
13 New York Life Ins. <fe Trust Co. v. Covert, 3 Abb. Ct. App. Dec. 850.
14 Hughes v. Edwards, 9 Wheat. 489, 497.
10 Brobst v. Brock, 10 Wall. 519, and cas. cit.
40
722 ACTIONS AFFECTING REAL PROPERTY.
i
Unconditional 1 tender by the debtor 2 of the whole debt 8 at a
time when the creditor was bound to receive it 4 discharges the
lien. 5 The twenty years limitation of the mortg.ige is not
shortened by the fact that it was to secure a note, unsealed and
barred in six years, 6 but a discharge 7 or release 8 of the bond or
note discharges the mortgage.
Defendants, who do not set up any equities as against plaint-
iff, should not be allowed to delay his judgment by litigating
issues between themselves, as to their priorities, or their equities
as to the order of sale. 9
Y. ACTIONS TO REDEEM.
45. Mode of proof, i] Oral evidence is admissible, to show
that a deed absolute on its face l was intended by the parties as a
mere security, even though there were no agreement to repay. 11
Proof of the continued existence of the debt is influential evi-
dence of a mortgage, but not essential. 12 So is the circumstance
of continued possession by the ' claimant after apparent convey-
ance to the defendant. 13 Proof of fraud or mistake is not neces-
sary. 14 The agreement of defeasance, if oral, must be shown to
have been contemporaneous. 15 Loose, oral declarations of inten-
tion or understanding are not necessarily enough. 16 Evidence that
the grantee was accustomed to lend on such absolute securities, is
not relevant without anything to bring it home to the knowledge
of the alleged borrower. 17 Evidence showing only a right to
specific performance of a contract is a variance. 18
A contemporaneous oral agreement, is no evidence of a waiver
of the right of redemption inhering in a mortgage. 19 A subse-
1 Storey v. Krewaon, 55 Ind. 397, s. c. 23 Am. R. 668.
s Harris v. Jex, 66 Barb. 232.
3 Graham v. Linden, 50 N. Y. 547.
4 Hartley v. Tatham, 2 Abb. Ct. App. Dec. 333.
6 Kortright v. Cady, 21 N. Y. 343, reVg 23 Barb. 490; s. c. 5 Abb: Pr. 358, affi'g
12 How. Pr. 424; Ketcham v. Crippen, 37 Cal. 223.
6 Sparka v. Pico, 1 McAll. 497 ; Heyer v. Pruyn, 7 Paige, 465. Compare Jackson
v. Sackett, 7 Wend. 94; explained in Belknap v. Gleason, 11 Conn. 160.
1 Driggs v. Simpson, 3 Supm. Ct. (T. fe C.) 786, affi'd in 60 N. Y. 641.
8 Blodget v. Wadhams, Hill & D. Supp. 65.
9 Smart v. Bement, 4 Abb. Ct. App. Dec. 253; N. Y. Code Civ. Pro. 521 ; New-
man v. Dickson, 1 Abb. New Cas. 307.
10 Despard v. Walbridge, 15 N. Y. 374. Or a conditional sale for an agreed price.
Rnssell v. Southard, 12 How. U. S. 139.
11 Horn v. Keteltas, 46 N. Y. 605, s. o. 42 How. Pr. 138 ; compare Fullerton T.
McCurdy, 55 N. Y. 637.
14 Campbell v. Dearborn, 109 Mass. 130, s. o. 12 Am. R. 671, and cas. cit.
"Id.
14 Strong v. Stewart, 4 Johns. Ch. 167; Hodges v. Tenn. <fcc. Ins. Co. 8 N. Y. 416.
15 Barrett v. Carter, 3 Lans. 68.
" 1 Greenl. Ev. 13 ed. 331.
17 Sugart v. Mays, 54 Geo. 554.
18 Fullerton v. McCurdy, 55 N. Y. 637.
w Peugh v. Dayis, 96 U. S. (6 Otto) 332. Or in an absolute deed and contemporane-
REDEMPTION. PARTITION. 723
qnent release cannot be inferred from equivocal circumstances
and loose expressions, but must appear by express writing or by
such facts as estop. 1 And it must be for an adequate considera-
tion. 2 On this question the value of the property and the fact of
possession and enjoyment are relevant. 3 The making of a pay-
ment is evidence against the payer, of his obligation, but is slight
if any evidence, against the receiver, of the payer's title. 4
VI. ACTIONS OF PARTITION.
46. Mode of proof ^\ Title may be proved as in ejectment. 5
This, with evidence of possession, actual or constructive, 6 (and
possession may be proved under the general allegation of seizin *)
\% primob facie enough. 8 Proof of legal title, in the absence of
any adverse possession, raises a sufficient presumption of posses-
sion. 9 A variance in stating the parties' interest, 10 or describing
the premises, 11 is not fatal. In an action to test the validity of
an alleged devise under the statute, 12 the burden is on plaintiff
claiming against it to establish its invalidity. 13
An ouster or adverse possession, relied on by a defendant,
should be pleaded, 14 unless it appears in the complaint. 15 But the
burden is still on plaintiff to prove seizin in common, if relied on. 1 *
The relative claims and liens of defendants may be tried and
settled under proper allegations. 17 A tenant in common claiming
an allowance against his co-tenants for improvements made by
ous written defeasance. Palmer v. Gurnsey, 7 "Wend. 248. Contra, Cooper v. Whit-
ney, 8 Hill, 95 ; Baker v. Thrasher, 4 Den. 493.
1 Peugh v. Davis (above).
2 Id.
3 Id.
4 James v. Biou, 2 Sim. <fc Stn. 600, 606.
5 And in case of default this is enough. Griggs v. Peckham, 3 Wend. 486.
Whether title may be litigated, compare Ilosford v. Merwin, 5 Barb. 51 ; Sterricker
v. Dickinson, 9 Id. 516 ; Van Schuyver v. Mulford, 59 N. Y. 426.
6 This is necessary. O'Dougherty v. Aldrich, 5 Den. 385 ; Sullivan v. Sullivan,
66 N. Y. 37, reVg 4 Hun, 198, s. c. 5 Supm. Ct. (T. fe C.) 433. Unless, perhaps, where
the parties are all mere remaindermen, constructive possession is enough. Beebe v-
Griffing, 14 N. Y. 235.
7 Jenkins v. Van Schaack, 3 Paige, 242.
8 Clapp v. Bromaghan, 9 Cow. 530, 550, rev'g 6 Id. 296.
9 Brownell v. Brownell, 19 Wend. 367.
10 See Ferris v. Smith, 17 Johns. 221; Thompson v. Wheeler, 16 "Wend. 840;
Clnpp v. Bromaghan, 9 Cow. 530, 666 ; Noble v. Cromwell, 3 Abb. Ct App. Dec.
882, s. c. 27 How. Pr. 289, affi'g 26 Barb. 475, s. c. 6 Abb. Pr. 69.
11 See Corwithe v. Griffing, 21 Barb. 9.
14 N. Y. L. 1879, p. 400, c. 816; am'd'g L. 1853, p. 626, c. 238, 2; Voessing T.
Voessinir, 12 Hun, 678.
13 Id.
14 Jenkins v. Van Schaack, 3 Paige 242; Sterricker Y. Dickinson, 9 Barb. 616, 621.
15 Burhnns v. Burhans, 2 Barb. Ch. 398, 410.
14 Clnpp v. Bromaghan, 9 Cow. 530.
11 Bogardus v. Parker, 7 How. Pr. 305, N. Y. Code Civ. Pro. 521. For the rule
where there ore mortgages of one tenant's interest, see Green v. Arnold, 11 R. L 864,
B. o. 23 Am. R. 466.
724 ACTIONS AFFECTING REAL PROPERTY.
him, need not show a request or promise ; * otherwise of a stranger
or sub-tenant who improved at his own risk. 2
The mode of ascertaining present value of life estates is in
some cases regulated by a statute or rule of court. 3 Where it is
not, or if the statute or rule merely refers to the principles gov-
erning annuities, &c., any standard table, recognized by the court,
or shown to be such by the testimony of a qualified witness, is com-
petent ; 4 and evidence that the condition of health and strength is
substantially different from that usually enjoyed by persons of
the same age is competent for the purpose of varying the conclu-
sion drawn from the table; 5 in the absence of such evidence the
tables will prevail. 6 The opinion of witnesses as to the cash
value of a life estate is not admissible. 7
1 Green v. Putnam, 1 Barb. 500.
s Scott v. Guernsey, 48 N. Y. 106, 123, affi'g 60 Barb. 163.
8 See N. Y. L. 1840, p. 128, c. 177 (3 R. S. 6 ed. 692), N. Y. Rule of Court No. 76,
of 1878 (formerly No. 85).
4 The court may take judicial notice that the tables produced are approved
standards. See McHenry v. Yokum, 27 HI. 160; Donaldson v. R. R. Co. 18 Iowa,
280, 291 ; Wager v. Schuyler, 1 Wend. 553. American tables and experts in insur-
ance testify to a probability of longer life than indicated in the Northampton Tables,
and somewhat longer than indicated in the Carlisle.
The following tables have been recognized by the courts : American Experience Table
(contained in the Michigan Insurance Company act. Comp. Laws, 997). Brown v.
Bronson, 35 Mich. 415. Also contained in 2 N. Y. R. S. 6 ed. 678. Wigglesworth's
(cited from 2 Am. Ac. of A. & S. 131). Estabrook v. Hapgood, 10 Mass. 813,
815 ; Mills v. Catlin, 22 Yt. 98, 106 ; also cited from Oliver's Conveyancer, in Mills
v. Catlin, 22 Vt. 98, 106 ; reprinted in 3 Bush (Ky.), xii-xv; Alexander v. Bradley,
Id. 667. The Carlisle Tables. Greer v. Mayor, <fec. 1 Abb. Pr. N. S. 206, s. c. 4 Rob't.
675; Donaldson v. R. R. Co. 18 Iowa, 180, 291 ; New Jersey Rule of Court, Nix. Dig.
1106, 1111. Also in 3 Bush (Ky.), xi. The original is in Milne on Annuities. The
Northampton Tables. See cases on p. 602 of this vol. note, and N. Y. Rule of Court of
1878, No. 76; Geo. R. R. Co. v. Oaks, 52 Geo. 410. The original is in 2 Price on
Reversionary Payments. The extract from the Northampton Tables, printed in the
N. Y. Supreme Court rules (and copied in Gary's Probate Law, xl), is erroneous in
stating the valuation opposite the years 6, and 73 to 80 inclusive. The first error
is in substituting the terminal 6 for 0. The errors in the later period, consist in sub-
stituting the value appropriate for 7 per cent, in place of that for 6 per cent.
McKane's P. L. Tables. JJendry's Ann. T. Jackson v. Edwards, 7 Paige, 386, 408.
For a notice of the origin of such tables, see William's Case, 8 Bland. Ch. 186,
221, 233, 238. "Where the court do not take judicial notice of the work offered as
containing the table, it should be admitted on the testimony of a witness that he has
experience in the business of life insurance, and knows the volume produced to be
the work containing the original tables, or a standard work recognized in a reputable
life insurance office as containing a true copy of the tables.
8 Alexander v. Bradley, 3 Bush (Ky.), 667; and see McLaughlin v. McLaughlin,
20 N. J. Eq. (5 C. E. Green), 190; Abercrombie v. Riddle, 3 Md. Ch. 320, 825 ; and
is not necessarily incompetent even under a rule of court which makes a given table
the guide. The rule is used merely as a means of approximation, and the circum-
stances and condition of the life in each case are relevant. Haulenbeck v. Cronk-
right, 23 N. J. Eq. 407, affi'd in 25 N. J. Eq. 159.
6 Alexander v. Bradley, 8 Bush (Ky.), 667; Brown v. Bronson, 35 Mich. 415,
421. Contra, Shippen's Appeal, 80 Penn. St. 391, s. c. 2 Weekly N. 468. Extrinsic
evidence is also proper as to the contingencies upon which an inchoate right may
ripen (see Benedict v. Seymour, 11 How. Pr. 176), except that so far as it depends
on survivorship among two or more joint; lives the rules above stated apply. See
Jackson v. Edwards, 7 Paige, 386, 408, affi'd in 22 Wend. 498. Possibility and
likelihood of issue, when relevant, are subjects for expert testimony.
1 Alexander v. Bradley, 3 Bush (Ky.), 667.
CHAPTER XLIX.
ACTIONS BETWEEN VENDOR AND PURCHASER.
1. The contract. 8. Actions to recover back purchase-
2. Oral evidence to explain. money.
3. Implied covenants: time. 9. Fraud or misrepresentation.
4. Title. 10. Specific performance : the contract
6. Plaintiff 'a performance : breach, 11. oral contract partly performed.
6. Value. 12. plaintiff's title and performance.
7. Contract merged by deed.
1. The contract^ The general rules as to the proof of execu-
tion and oral evidence to vary, have been already stated. 1 A
variance in stating the contract in a respect which does not vary
1he resulting liability, is not material. 2
Jf the contract is denied, plaintiffs evidence must satisfy the
statute of frauds, or show that the case is not within the statute. 8
If defendant answers, and does not deny the contract, nor indi-
cate that he relies on the statute, the statute does not avail to ex-
clude oral evidence of the contract thus admitted. 4 An oral
agreement may be proved, notwithstanding the statute of frauds,
where plaintiff has parted with value on the faith of it, placing
himselt in a situation in which he would be defrauded by refusal
to enforce the contract. 5
1 Order of proof , p. 504 ; execution proved by certificate of acknowledgment or
proof, p. 693, n. ; proof by subscribing witness, p. 605 ; proof of handwriting, pp. 392-8 ;
seal, pp. 392 and 506 ; execution by corporation and corporate seal, pp. 82-5 ; by
religious corporation (Bowen v. Irish Presb. Cong. 6 Bosw. 245; Moore v. St.
Thomas' Ch. 4 Abb. New Cas. 61, and cas.); authority of agent, p. 506 of this voL
(Savery v. Sypher, 6 Wall. 157); dale, pp. 409 and 508 of this vol. ; contract by let-
ter, p. 289 (Nfsham v. Selby, L. R. 13 Eq. Cas. 191, s. c. 1 Moak's Eng. 640; Cross-
ley v. Maycock, L. R. 18 Eq. Cas. 180, s. c. 9 Moak's Eng. R. 727); contract by tel-
egram, p. 290 (Godwin v. Francis, L. 11. 6 C. P. 295 ; 89 L. J. C. P. 121); contract
by auction, p. 827 (Klfe v. Gaclsden, 2 Rich. (S. C.) 873; Torrance v. Bolton, L. R.
8 Ch. App. 118, s. c. 4 Moak's Eng. 800 ; Vandever v. baker, 18 Penn. St. I'll, 127 ;
Phillips v. Ili^fjins, 7 Lans. 314, affi'd in 65 N. Y. 663); execution in duplicate or
counterpart, p. 523; subsequent modification, p. 610 (Benedict v. Lynch, 1 Johns. Ch.
870; Bradford v. Union Bank of Tennessee, 13 How. U. S. 57).
4 Lobdell v. Lobdell, 36 N. Y. 327; 4 Abb. Pr. N. S. 56; 33 How. Pr. 347, s. c.
82 How. Pr. 1 ; Crary V. Smith, 2 N. Y. 60. As to variance, see, also, p. 522 of thia
vol.
8 P. 622 of this voL; Reynolds v. Dunkirk & State Line R. R. Co. 17 Barb. 613 ;
Coquillard v. Suydam, 8 Blnckf. (Ind.) 24, 30. Even if the answer seta up a differ-
ent contract. Morrill v. Cooper, 65 Barb. 612, 616.
* Whiting V. Gould, 2 Wis. 652, 694.
8 Dodgo v. W oilman, 1 Abb. Ct. App. Dec. 612; Sandford v. Norris, 4 Abb. Ct
App. Dec. 144. Levy v. Brush, 45 N. Y. 689, is distinguished in Traphagen v. Hurt.
67 N. Y. 80, as a cnso where plaintiff had taken nothing and parted with nothing.
And see Baker v. Wainwright, 36 Md. 336, B. c. 11 Am. R. 495.
[725]
726 ACTIONS BETWEEN VENDOR AND PURCHASER.
Where the parties make their contract in writing, delivery of
the instrument is material. 1
2. Oral evidence to explain.'] If the instrument, expressly or
by description, shows who the parties are (an agent being consid-
ered as equivalent to a party, where the agreement purports to be
made by him), extrinsic evidence is admissible to explain the situa-
tion and relations of these parties, their business, and the circum-
stances surrounding the transaction. 3 In application of what has
been already said, 8 oral evidence is competent (it may, however, be
wholly insufficient by reason of the statute of frauds 4 ) to explain
an ambiguity in reference to the premises described, 5 the cove-
nants and stipulations, 6 the proportionate interest of purchasers,'
and the like. 8
1 Deitz v. Farish, 44 Super. Ct. (J. & S.) 190 ; see, also, p. SOY of this vol. Where
they make an oral contract, a note or memorandum, relied on merely as evidence uuder
the statute of frauds, may be sufficient without delivery to the other pnrty. Parrill
v. McKipley, 9 Gratt. 1,7; Bowles v. Woodson, 6 Id. 78. Thus n letter written by
one of the parties to a third person, may be a sufficient memorandum. Pomeroy Sp.
Perf. 122, 84; Rose. N. P. 318.
2 Pomeroy Sp. Perf. 127, 88. Even for the purpose of making it appear which
is the vendor and which is the purchaser. Id. As to oral evidence to show the
true party, see, also, Briggs v. Partridge, 64 N. Y. 357, 364 ; Beardsley v. Duntley,
69 N. Y. 577, 681 ; Lynde v. Staats, 1 N. Y. Leg. Obs. 89, and cas. cit ; and see p.
609 of this vol.
3 See pp. 295, 508 and 524 of this vol.
4 Whelan v. Sullivan, 102 Mass. 204 ; 2 Whart. 871 ; Wright v. Weeks, 25 N. Y. 153.
5 Phillips v. Higgins, 7 Lans. 314, affi'd 55 N. Y. 663 ; Brinkerhoff v. Olp, 36 Barb.
27; 8. P. Pettit v. Shepard, 32 N. Y. 97; Mead v. Parker, 115 Mass. 413, s. c. 15 Am.
Rep. 110; Magee v. Lavell, L. R. 9 C. P. 107, s. c. 8 Moak's Eng. 423; Beaumont v.
Field, 1 B. & Aid. 247; Rose. N. P. 32, 35, 318. And so as to fixtures. Martin v.
Cope, 3 Abb. Ct. App. Dec. 182.
When lands are bounded in such phrases as " by," or " upon," or " along," a high-
way or stream not navigable, unless by the terms of the grant or by necessary impli-
cation the highway or the bed of the stream are excluded, the intent to grant a title
to the center of the highway or stream will be presumed. This depends upon the
intent of the parties, to be gathered from the description of the premises read in
connection with the other parts of the deed, and by reference to the s tuation of the
lands and the condition and relation of the parties to those and other lands in the
yicinity. An intent to exclude the highway or bed of the stream will not be pre-
sumed, but must appear from the terms of the deed as interpreted and illustrated by
surrounding circumstances. Mott v. Mott, 68 N. Y. 246, 253.
6 Page v. McDonnell, 55 N. Y. 299, affi'g 46 How. Pr. 62.
7 Brothers v. Porter, 6 B. Monr. (Ky.) 106.
8 Upon principles already stated (pp. 128, 698 of this vol.), the oral evidence can-
not stand in the place of a writing to satisfy the statute of frauds, but the writing must
be such that after receiving the extrinsic evidence the court can see with sufficient
certainty that the writing itself means and expresses the contract alleged. For
instance, a contract to sell a tract of land not identified except as being near the junc-
tion of two roads, is not alone sufficient to call for specific performance as to any
particular tract. Dobson v. Litton, 5 Coldw. 616. But a contract to convey a lot sit-
uated on a street named, together with extrinsic evidence consistent with the writing
that the vendor had one, and only one lot on that street, is enough. Harley v. Brown,
98 Mass. 545. On the other hand, a contract only designating the land as being the
same conveyed by government to C. and D. and by C. and D. to A., cannot be varied
by evidence that it was only intended to apply to land derived through C. alone or
through D. alone. Marshall v. Haney, 4 Md. 498, 506.
ACTIONS BETWEEN VENDOR AND PURCHASER. 727
3. Implied covenants : time.'] An executory contract for the
sale of real estate implies (unless what is expressed indicates the
contrary) a covenant for title, which continues till merged by
conveyance. 1 Jf the language of the contract does not deter-
mine whether time is material, extrinsic evidence of surrounding
circumstances is relevant. A subsequent agreement, extending
time, will sustain an inference that it was material. 2
4. Title.'] If plaintiffs title is in issue in an action on his
executory contract to convey, the burden of proof is on him to
show good title affirmatively, 3 or that the purchaser agreed to
accept such title as he had. 4 A conveyance to him, with pos-
session under it, is not enough under a direct issue on title.
The relation between vendor and purchaser does not estop the
latter from disputing the former's title, 5 unless he gained and is re-
taining possession under the agreement. 6 On the question of
plaintiffs title, his own declarations are competent in his favor,
when part of the res gestce of an act affecting the title, already
properly in evidence/ An abstract of title furnished by the seller
to the buyer to aid in his search is competent against the seller, as
showing his claim of title, for the purpose of proving defects in
such title. 8 The opinions of witnesses are not competent. 9
5. Plaintiff" s performance : breach.] An allegation of per-
formance of a condition, 10 does not admit evidence of a waiver or
other excuse for non-performance. 11 But an allegation of tender,
where it is not part of the contract, but an act inpais, does
admit evidence of a waiver. 12 Tender to and refusal by joint-
purchasers is proved by tender to and refusal by one. Omission
to deny due allegation of a request and refusal, dispenses with
I Burwell v. Jackson, 9 N. Y. 635; and see Thomas v. Bartow, 48 Id. 193 ; Leg-
gett v. Mut. L. Ins. Co. of N. Y. 63 N. Y. 394, 398. So of a contract for sale of a
leasehold interest, unless a tax lease. Boyd v. Schlesinger, 59 N. Y. 301, 307.
- Wiswall v. McGown, 2 Barb. 270, affi'd sub. nom. Price v. McGown, 10 N. Y. 465.
3 Wilson v. Holden, 16 Abb. Pr. 133, 136.
4 Negley v. Lindsay. 67 Penn. St. 217, s. c. 5 Am. R. 427; Wilson v. Holden
(above). As to evidence of incumbrance, see Anonymous, 2 Abb. New Cas. 66 ;
Riggs v. Pursell, 66 N. Y. 193 ; Reeder v. Scheider, 1 Huq, 121. As to offer to die-
charge. Rinaldo v.'Housmann, 1 Abb. New Cas. 812.
5 Blight v. Rochester, 7 Wheat. 535.
6 See page 707 of this vol. Compare Coray v. Matthewson, 7 Lans. 80.
7 Devling v. Little, 26 Penn. St. 502, 506. The rule as to admissions and declara-
tions of predecessors in the title (stated at pp. 710, 711 of this vol.) applies. See
Pearce v. Nix, 34 Ala. 183, 185; Vint v. King, 2 Am. Law Reg. 712.
8 Hartley v. James, 50 N. Y. 38.
Winter v. Stock, 29 Cal. 407, 412.
10 As to the cases in which performance or tender must be proved, Bee Hartley v
Games, 60 N. Y. 38, 42; Doyle v. Harris, 11 R. I. 639; Delavan v. Duncan, 49 N. Y.
485; Burling v. King, 66 Barb. 633, 642, B. c. 2 Suprn. Ct. (T. <fc C.) 645; McCottei
v. Lawrence, 4 Hun, 107, s. c. 6 Supm. Ct. (T. <fc C.) 392 ; Hoag v. Parr, 13 Hun, 95,
100.
II Baldwin v. Munn, 2 Wend. 399; Oakley v. Morton, 11 N. Y. 25.
14 Holmes v. Holmes, 9 N. Y. 625, affi'g 12 Barb. 137; Curmau v. Fultz, 21 N. Y
647. Compare pp. 337, 338 of this voL
728 ACTIONS BETWEEN VENDOR AND PURCHASER.
necessity of proving demand. 1 Evidence of the second demand,
sometimes required, is admissible without being alleged. 3
In general, proof of absolute refusal before the expiration of
the time fixed for performance is not enough, 8 unless the party
refusing had put it out of his power to perform, 4 or the refusal
was communicated and was intended to, and did, influence the
conduct of the other party, to his damage. 5
6. Value.] Upon principles already stated, 6 a witness, who
is shown, to the satisfaction of the court, to have such conver-
sance with the values of real property in the place as to enable
him to form a reliable opinion, may testify to the value of the
property, and to the effect on it of conditions' involved in the lit-
igation.' If the premises have a market value, a witness, conver-
sant with market value, may give his opinion without having
examined the premises. 8 If the qualification of a witness is
conversance with value for certain purposes only, as, for in-
stance, a farmer in the vicinity who is deemed qualified to express
an opinion of value for farming purposes, he may express an
opinion as to value for such purposes; but not an unqualified
opinion if the property may be valuable for other purposes. 9 A
witness, having properly testified to his opinion, may state the
reasons of it. Evidence of the price brought by similar lands in
the same vicinity is competent, 10 unless it involves such differences
as to require evidence of the cost or condition of improvements
for the purpose of computing the greater or less value of the
premises in question. The evidence of value should relate to the
time in question with reasonable proximity. 11
7. Contract merged by deed.] Acceptance of a deed under
the contract, although it varies from it, \sprimafacie evidence
of extinguishment of the vendor's obligations as to title, extent
of possession, quantity and emblements. 12 In these respects, it is
' Fagen v. Davison, 2 Duer, 153, 169.
1 Pearsoll v. Frazer, 14 Barb. 664.
3 Daniels v. Newton, 114 Mass. 530, s. c. 19 Am. R. 384.
4 Sears v. Conover, 4 ^bb. Ct. App. Dec. 179. This fact, if relied on, should be
pleaded. Van Rensselaer v. Miller, Hill & D. Supp. 237.
6 This seems to be the sound principle and goes far toward reconciling the cases,
which, failing to express it, are often in apparently hopeless conflict. See pp. 338,
and 384 of this vol. ; Skinner v. Tinker, 34 Barb. 333 ; Thomas v. Wickman, 1
Daly, 58.
' See pp. 306, 348, 698 of this vol.
' Tucker v. Mass. Cent. R. R. Co. 118 Mass. 547.
8 Lawrence v. City of Boston, 119 Mass. 126.
9 Brown v. Prov. & Springf. R. R. Co. 8 Reporter, 376 ; Hawkins v. City of Fall
River, 119 Mass. 94.
10 Mains v. Haight, 14 Barb. 76.
11 Sanford-v. SheparJ, 14 Kans. 228.
13 Hunt v. Amidon, 4 Hill, 345 ; Smith v. Price, 39 111. 28 ; Lloyd v. Farrell, 48
Penn. St. 73, 78; 6 Abb. N. Y. Di<?. new ed. 104, &c. It seems that the fact that a
substituted covenant or conveyance was accepted in consummation of the covenant,
may be proved by parol. Thomas v. Bartow, 48 N. Y. 193, 197.
ACTIONS BETWEEN VENDOR AND PURCHASER. 729
presumed that the deed contains the final agreement of the
parties, 1 and that the grantee intended to give up the benefit of
covenants of which the conveyance is not a performance or satis-
faction ; 3 but the presumption may be rebutted by proof of the
express agreement of the parties. 3
8. Actions to recover back purchase-money.] To recover back
purchase-money, on the ground of failure of title, 4 the burden is
on plaintiff 5 to prove the failure of title, or fraud alleged, 6 as well
as the payments made. 7 In an action to recover back for a defi-
ciency in the land, evidence as to what was said and done prior to
the execution of the written contract and the deed is competent,
not to contradict what is expressed, but to show intent and mis-
take. 8 Deficiency, if great, may sustain an inference of fraud,
but is not conclusive. 9
9. fraud or misrepresentation.'] Under a denial of title,
fraudulent misrepresentation involved in proof of a breach, is com-
petent. 10 The test of materiality in a variance in dimensions is,
had the falsity been known, would the contract have been entered
into? u False representations alleged as a ground of relief,
should be proved as in an action for deceit. 12 W illful suppression
of material evidence has peculiar significance, in an action for
specific performance. 1 ?
10. Specific performance : the conti { act.~\ The proof must be
clear, definite and conclusive, and must show a contract, leaving
1 Murdock v. Gilchrist, 52 N. Y. 242, 246.
s Morris v. Whitcher, 20 N. Y. 41.
8 Murdock v. Giichrist, 52 N. Y. 242, 247. The purchaser is not necessarily pre-
sumed to know whether the deed accepted embraced all the land contracted for; and
fraud in inducing the acceptance of a deed conveying only a part may be proved.
Beardsley v. Duntley, 69 N. Y. 577, 581. So of mistake, where the grantor was in-
trusted to prepare the deed and untruly described the premises. Wilson v. Van Pelt,
2 Supm. Ct. (T. & C.)414, and cas. cit. That both parties were ignorautof an incum-
brance is not relevant, if both had equal and adequate means of information. Whitte-
more v. Farrington, 12 Hun, 349.
4 As to the necessary facts, see Page v. McDonnell, 55 N. Y. 299, affi'g 46 How.
Pr. 52; Thomas v. Barton, 48 N. Y. 193; Friedman v. Dewes, 33 Super. Ct. (1 J. <fe
S.) 450; Wheeler v. Mather, 5(i 111. 241, s. c. 8 Am. Rep. 683.
5 Treat v. Orono, 26 Me. (13 Shep.) 217.
6 Fraud cannot be proved unless alleged. Noonan v. Lee, 2 Blackf. 499, 508, and
cas. cit.
1 O'Brien v. Cheney, 5 Cush. (Mass.) 148.
8 Wilson v. Randall, 67 N. Y. 338, affi'g 7 Hun, ] 5 ; and see King v. Knapp, 59
N. Y. 462. The acceptance of the deed may be explained by parol evidence of an
agreement to fix the amount of the purchase-money by a subsequent survey. Mur-
dock v. Gilchrist, 52 N. Y. 242, 246.
9 Kreiter v. Homberger, 82Penn.St. 59, s.c.22 Am. R.750, 2 Weekly Notes, 685,687.
10 Rose. N. P. 328.
11 Stokes v. Johnson, 67 N. Y. 673.
12 Chapter XXXIV; Casey v. Allen, 1 A. K. Marsh, 465; see, also, Chapter L. In-
adequacy of price may raise an inference of fraud, or an inference that the parties al-
lowed for a defect, and thus disprove an allegation of fraud. Waldron v. Zollikoffer,
8 Iowa, 108.
18 Jenkins v. Eldredge, 3 Story, 181 ; Vint v. King, 2 Am. Law Reg. 712.
730 ACTIONS BETWEEN VENDOR AND PURCHASER.
no jus deliberandi, or locus pcenitenticB. It cannot be made out
by mere hearsay, or evidence of declarations made to strangers. 1
Inadequacy of consideration is not now regarded as conclusive evi-
dence of fraud, but raises a question of fact. 3 Whether the con-
tract is executory or executed, the plaintiif may introduce parol
evidence to show a mistake or fraud whereby the written contract
fails to express the actual agreement, and to prove the actual
modification necessary to be made therein, whether such varia-
tion consists in limiting the scope of the writing, or in enlarging
it so as to embrace land which had been omitted through the mis-
take or fraud, and he may then obtain a specific enforcement of
the contract thus varied ; and such relief may be granted, although
the contract is one which is required by the statute to be in writ-
ing. 3 Inadequacy of consideration is relevant, on the question of
fraud ; and may be so great as to be, alone, satisfactory evidence
of fraud. 4 A plaintiif, who fails to establish the contract he has
alleged, cannot rely on that alleged in the answer, without adopt-
ing it as constituting his case. 5 An optional contract may be
proved, but if the time for the exercise of the option is limited,
its exercise within that time must be shown, 6 And if personal,
it must be exercised by the person entitled thereto. 7
Plaintiff may prove a claim for damages, if he fails to show
a right to specific performance. 8
11. oral contract partly performed.'} It is proper to prove
the part performance first, as a foundation for letting in the oral
contract. 9 The acts relied on for part performance must be such as
to show that some contract existed, that they would not have been
done but for the contract, and are not inconsistent with that al-
leged ; and then additional oral evidence of its terms is compe-
tent, if the circumstances shown are such that to exclude it would
be a fraud upon the plaintiff. 10 Payment of price is not, alone,
enough. 11 w Change of possession is usually enough, 12 except in case
I Parcell v. Miner, 4 Wall. 513, 61 7.
s Pomeroy Sp Perf. 274, 194.
3 Pomeroy Sp. Perf. 34*7, 264 ; and see Bearclsley v. Duntley, 69 N. Y. 577,
683 ; Wilson v. Van Pelt, 2 Supm. Ct. (T. <fe. C.) 414, and cas. cit. ; Glass v. Hulbert,
102 Mass. 24.
4 Pomeroy Sp. Perf. 270, 193.
6 Boardman v. Davidson, 7 Abb. Pr. N. S. 439.
6 Codding v. Warmsly, 4 Supm. Ct. (T. <fe C.) 49, s. o. 1 Hun, 585, affl'd in 60 N.
Y. 644.
7 Mendenhall v. Klinck, El N. Y. 246.
8 Beck v. Allison, 66 N. Y. 366, 373, reVg 4 Daly, 421 ; s. p. Margraf v. Muir, 57
N. Y. 155, 159, and cas. cit. As to when may action be retained, to givo damages,
see Sternberger v. McGovern, 56 N. Y. 12, s. c. 15 Abb. Pr. N. S. 257, rev'g 4 Daly,
456. On prayer for performance as to pact and deduction of price as to residue, per-
formance as to whole cannot be decreed. Boyd v. Schlesinger, 59 N. Y. 301.
Pomeroy Sp Perf. 151, 107.
10 Miller v. Ball, 64 N. Y. 286.
II Pomeroy Sp. Perf. p. 159-63, 112-14. Contra. Morrill v. Cooper, 65 Barb.
612, and cas. cit.
"Poneroy Sp. Perf. 164-78, 115-25; and see Beardsley v. Duntley, 69 N.
Y. C77. Contra, Purcell v. Miner (4 Wall. 513, 617), requiring also possession.
ACTIONS BETWEEN VENDOR AND PURCHASER. 731
of a gift. The making of improvements is also enough. 1 In
case of a gift both together are enough. 2
To establish part performance, proof to a reasonable certainty
is sufficient. 3
12. plaintiff's title, and performance.'] Plaintiff must show
clearly that the purchaser will receive such a title as he contracted
for. 4 A title which requires oral evidence to support it may be
enough, 5 unless the purchaser stipulated for record title. 6 If the
contract was by a trustee, plaintiff must show that it was such as
he might properly have made, and as the court would have ap-
proved and authorized, had its authority been asked. 7 Good title
at the time of trial is sufficient ; but defects at the commence-
ment of the action are relevant on the question of interest 8 and
costs. Either party may show, by evidence which would be ap-
plicable in ejectment, that the vendor has a defective title, or
none. It is enough for the purchaser, when sued by the vendor,
that there is a reasonable doubt concerning the title, other than a
pure question of law, which the court ought to determine.
Strict fulfillment in point of time on the part of the plaintiff, is
not in general essential. 9 Unexcused long delay is a bar. 10 A change
of circumstances, detrimental to defendant, will not be presumed
from the mere fact of delay, but must be proved if relied on. 11
The statutory presumption of payment 13 of a sealed instrument,
arising from the lapse of twenty years, is not sufficient evidence
of payment. 13
1 Pomeroy Sp. Perf. 178-86, 126-32.
s Lobclell v. Lobdell, 36 N. Y. 327; 4 Abb. Pr. N. S. 66; 33 How. Pr. 347, rev*g
82 How. Pr. 1 ; Neale v. Neales, 9 Wall. 1.
3 Neale v. Neales, 9 Wall. 1. Contra, it must be " indubitable." GRIKR, J., in
Purcell v. Miner, 4 Wall. 513, 517. But see p. 495 of this vol.
4 Hinckley v. Smith, 51 N. Y. 21, 25.
6 Murray v. Harway, 56 N. Y. 337, 344. Compare Thorn v. Sheil, 15 Abb. Pr.
N. S. 81. '
6 Coray v. Matthewson, 7 Lans. 80.
' Sherman v. Wright, 49 N. Y. 227.
8 Jenkins v. Fahey, 73 N. Y. 355, rev*g 11 Hun, 351.
9 Davidson v. Jersey Company, 71 N. Y. 333, 334, affi'g 6 Hun, 470.
10 Finch v. Parker, 49 N. Y. 1 ; Merchants' Bank v. Thomson, 55 N. Y. 7, 12.
11 Merchants' Bankv. Thomson (above).
11 2 N. Y. R. S. 201, 48.
13 Morey v. Farmers' Loan <fe Trust Co. 14 N. Y. 302. The limitation applicable
'$ not that of actions on sealed contracts. Petera v. Delaplaine, 49 N. Y. 362, 372.
OHAPTEE L.
ACTIONS FOR REFORMATION OR CANCELLATION OF INSTRUMENT.
1. Nature of the action. 3. Grounds of impeachment.
2. The instrument impeached.
1. Nature of the action.'] A ground of action substantially of
the nature alleged, must be proved. 1 Thus an action to cancel for
fraud is not sustained by evidence of a right to redeem. 2 It is
enough that material allegations of fraud are proved, although
other allegations of fraud remain unproved ; 3 or although there is
also a breach of warranty or other wrong on which plaintiff might
recover damages. 4
2. The instrument impeached^ Plaintiff may prove the in-
strument in the usual way, 5 and then proceed to impeach it. 6 Sev-
eral contracts having together the effect alleged, may be proved
under an allegation of one contract. 7
3. Grounds of impeachment^} To avoid a contract, it must at
least be shown that the minds of the parties never met. To re-
form the instrument, it must be shown that they did meet on other
terms than those embodied in the writing, and that the intention
of both was by mistake misrepresented in the writing. 8
Fraud cannot be presumed or inferred without proof, in an
equitable action, any more than in a common law action. 9 It is
1 Eyre v. Potter, 15 How. U. S. 42.
s Patterson v. Patterson, 1 Robt. 184, s. c. 1 Abb. Pr. N. S. 262. Nor an action
to cancel, by proof of a right to specific performance. Fullerton v. McCurdy, 55
N. Y. 637.
8 Moxon v. Payne, L. R. 8 Ch. App. 881, s. c. 7 Moak's Eng. 442.
4 Smith v. Babcock, 2 Woodb. & M. 246, and cases cited ; Boyce v. Grundy, 3
Pet. 210, 219.
6 See Chapters I, XXVI I and XLVIII.
Bunce v. Gallagher, 5 Blatchf. 481 ; 7 Am. L. Reg. N. S. 32.
7 Pierce v. Wilson, 34 Ala. 596, 607. And under a denial of a contract alleged,
defendant may prove other contemporaneous and qualifying contracts. Marsh v.
Dodge, 66 N. Y. 533 ; 4 Hun, 278 ; 6 Supra. Ct. (T. & C.) 568.
8 The rules of proof for reformation have been already stated. P. 512 of this vol.
See, also, Jackson v. Andrews, 59 N. Y. 244 ; Mead v. Westchester F. Ins. Co. 64 Id.
455; Bush v. Hicks, 60 Id. 298, 302, s. c. 2 Supm. Ct. (T. &C.)85;6; Hoag v.
Owen, 57 Id. 644, affi'g 60 Barb. 34 ; Boardman v. Davidson, 7 Abb. Pr. N. S. 439;
Gillespie v. Moon, 2 Johns. Ch. 685, 597; Bryce v. Lorillard F. Ins. Co. 55 N. Y.
240, s. c. 46 How. Pr. 498, affi'g 35 Super. Ct. (3 J. & S.) 394. As to cogency of proof,
eee, also, Fishell v. Bell, Clarke, 37 ; Phoenix F. Ins. Co. v. Gurnee, 1 Paige, 278 ; Bryce
v. Lorillard F. Ins. Co. 85 Super. Ct. (3 J. & S.) 394 ; Pomeroy Sp. Perf. 345, 261. As
to oral evidence that the terms of a trust were fixed under a misapprehension, or failed
to express the settlor's intent, see Muloch v Muloch, 9 Reporter, 350, and cases cited.-
9 Haaer v. Thomson, 1 Black, 80 ; Warner v. Daniels, 1 Woodb. & M. 90, s. c.
9 Law Rep. 160, and cases cited. Compare Gallatian v. Cunningham. 8 Cow. 361.
Courts of equity have repeatedly refused to sustain actions to set aside deeds for
[732]
ACTIONS FOR CANCELLATION OF INSTRUMENT. 733
enough to prove the suppression or misrepresentation of a mate-
rial fact, though there were no intent to defraud. 1 If the parties
to a written agreement stood on equal footing, dealing at arm's
length, oral evidence is inadmissible to show that one represented
to the other that the agreement would give to him something
which by its terms it denied him, unless the latter shows that
some part of the contract was omitted by fraud or mistake, which
he supposed to have been included at the time of its execution. 2
Knowledge possessed s by the attorney or counsel employed by
the party, 4 in a particular transaction for his client, is notice to his
client, if the client take and profit by the fniits of the transac-
tion. 5 Evidence of diligence in discovering the fraud is not re-
quired. 6 Evidence of cnligence in rescinding after discovery is
required. 7
To rescind an executed contract 8 of an insane person who was
apparently of sound mind when the contract was made, if the
consideration has been enjoyed and cannot be restored (even
though compensation might be awarded), the plaintiff must show
fraud, undue advantage or imposition on the part of defendant, 9
fraud, unless there was proof beyond reasonable doubt. Gould v. Gould, 3 Story C.
Ct. 616 ; Phettiplace v. Sayles, 4 Mas. 312 ; Garrow v. Davis, 10 N". Y. Leg. Obs. 225,
and cases cited in note 3 on page 731 ; but see, on this subject, pp. 495 and 670 of
this vol.
For the rules as to the mode of proving fraud and good faith respectively, see
Chapters XVI, XXXIV and LI.
1 Hammond v. Pennock, 61 N. Y. 145, 152, affi'g 5 Lans. 358 ; Smith v. Richards,
13 Pet. 26.
2 Jarvis v. Palmer, 11 Paige, 650, 658. Compare, for a freer rule, where one had
some right to rely on the other, Beardsley v. Duntley, 69 N. Y. 577.
3 If previous knowledge is relied on, it should be shown to be within a time rea-
sonable for presuming recollection.
4 Otherwise of knowledge on the part of one employed by the agent or corre-
spondent of the party. Hoover v. Wise, 91 U. S. (1 Otto), 308, rev'g Hoover v.
Greenbaum, 61 N. Y. 305; 62 Barb. 138.
6 May v. Le Claire, 11 Wall. 217.
6 Baker v. Lever, 67 N. Y. 304, affi'g 5 Hun, 114.
7 According to Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, s. c. 8 Moak*s
Eng. 180, if defendant alleges laches in the other party, he must show when the lat-
ter acquired knowledge of the truth, and that he knowingly delayed asserting his
right.
8 So, also, according to the best considered recent authorities, of an executory
simple contract. Lancaster Co. Bank v. Moore, 78 Penn. St. 407, s. c. 21 Am. R. 24
(approved in 78 Penn. St. 414). Compare Musselman v. Cravens, 47 Incl. 1. The
contrary held of a power of attorney and conveyance thereunder. Dexter v. Hall,
15 Wall. 9, affi'g Hall v. Unger, 2 Abb. U. S. 502. See, also, Van Deusen v. Sweet,
61 N. Y. 378. In this case, however, the later English caes, applying the modern
equitable rule, are not reviewed. See cases above cited, and \Viliard Eq. J. Chap,
on Fraud ; Ordronaux Jud. Aspects of Insan. pp. 300, 306, 809.
Lunacy is a shield, not a sword. Allen v. Berryhill, 27 low, 634, s. o. 1 Am. R.
809. Imbecility is not of itself sufficient, but is material in connection with fraud or
undue influence or advantage. Johnson v. Harmon, 94 U. S. (4 Otto), 871, 879.
Young v. Stevens, 48 N. H. 133, s. c. 2 Am. R. 202; Molton v. Camroux. 2
Exch. 487, s. o. 4 Exch. 17, 18 Law Jour. Exch. 356; Elliott v. Ince, 7 De G., M.
A G. 475-87 ; Behrens v. McKenzie, 23 Iowa, 833, 343 ; Scanlan v. Cobb, 85 111. 296 ;
see 1 Story on Contr. 74 ; 1 Chitty on Contr. 191 ; Addison on Contr. 140; and see
Allore v. Jewell, 94 U. S. (4 Otto), 506 ; Johnson v. Harmon, Id. 371.
734 ACTIONS FOR CANCELLATION OF INSTRUMENT.
or those under whom he claims. The burden is on plaintiff to
show the insanity. 1 An inquisition had, at the time of or prior
to the transaction, is prima facie evidence for this purpose. An
inquisition, had on due notice to the subject, 3 and finding that
lunacy existed at a certain time or for a specified period, 8 is pre-
sumptive evidence of incapacity to contract during that period, 4
and competent against all the world, 5 but is not conclusive evi-
dence of lunacy prior to the day of the finding, against persons
not parties to the proceedings, although they had actual notice of
their pendency. 6 As to the time after the day of appointment of
guardian or committee, it is conclusive. 7 A decree made by a
probate court or on appeal from that court, adjudicating the insan-
ity of a testator, is not competent evidence, even between the same
parties, on a question of the validity of an act inter vivos*
A general or habitual insanity 9 shown to have existed within
a reasonable time before the act it is sought to annul, is presumed
to have continued. Proof of insanity (other than idiocy) at a
given time does not raise a presumption, and is not alone compe-
tent evidence, that the person was insane at a prior date. 10 A
party who would take advantage of a lucid interval, must prove
the interval. 11 But he is not bound to prove as perfect a state of
mind as existed before the insanity. 12 It is enough to show a dis-
posing mind. 18 The existence of a lucid interval may be inferred
from the beneficial and advantageous character of the contract. 14
A witness, whether professional or not, may state the opinion
formed by him, upon his own knowledge of facts, as to such
1 Even in cnse of a deed set up by defendant. Howe v. Howe, 99 Mass. 88, 98.
1 "Without such notice it is absolutely void. Hathaway v. Clark, 6 Pick. 490.
3 Although admitting lucid intervals not specified. Goodell v. Harrington, 3
Supm. Ct. (T. & C.) 345. As to the jurisdiction, and the period, see the statute.
4 And even at a time subsequent thereto. Hoyt v. Adee, 3 Lans. 173. Contra,
Titcomb v. Vantyle, 84 111. 371, 373.
6 Hoyt v. Adee (above); Goodell v. Harrington (above); 2 Whart. Ev. 1254;
Hart v. Deamer, 6 Wend. 497.
6 Banker v. Banker, 63 N. Y. 409 ; affi'g 4 Hun, 259.
7 See Gibson v. Soper, 6 Gray, 279, 286.
8 Gray v. Thomas, 20 Miss. (12 Smed. & M.) Ill ; Den v. Ayres, 13 N. J. L.
(1 Green), 152, 155 ; Bogardus v. Clarke, 4 Paige, 623, affi'g 1 Edw. Ch. 266. Unless
the statutes have the effect to make it so.
9 People v. Francis, 38 Cal. 183 : Carpenter v. Carpenter, 8 Bush (Ky.), 283. So,
also, of monomania. Thornton v. Appleton, 29 Me. 298. Otherwise of iusanity of a
temporary character, or shown to result from a transient cause. Stewart v. Redditt,
3 Md. 67, 81. A general request for an instruction that insanity (unqualified) is pre-
sumed to continue, should be refused. Stewart v. Redditt, 3 Md. 67, 81.
10 Terry v. Buffington, 11 Geo. 342, cited in Swell's Cases, 718. The competency
of the state of mind after the transaction, depends on remoteness, and is somewhat in
the discretion of the judge. White v. Graves, 107 Mass. 325, s. c. 9 Am. R. 38.
And when it has been received from one side may be received from the other within
reasonably similar limits. Walker v. Clay, 21 Ala. 797, 806.
11 Cartwright v. Cartwright, 1 Phillimore, 90, 100 ; and see Swell's Cases, 716, and
cases cited.
18 Dicktn v. Johnson, 7 Geo. 488, and cases cited.
13 Exp. Holyland, 11 Ves. 10; Atty.-Gen. v. Parnther, 3 Brown's Ch. 441, 8. a
Ewell's Cases, 691 ; and see Lilly v. Waggoner, 27 IU. 395, 399.
14 Addison on Contr. 140,
ACTIONS FOR CANCELLATION OF INSTRUMENT. 735
grantor's state of mind ; provided the opinion relate to matters of
fact, and not of law, and he state the facts which he observed, in
connection with his opinion. 1
To rescind for intoxication, plaintiff must show that, as matter
of fact, the intoxication, however produced, was such as to sus-
pend or destroy the power of intelligent assent ; 8 and that the
consideration has been restored. 8
To rescind on the ground of infancy, the burden is on plaintiff
to prove his age; 4 and, in case of an executed transfer, the proper
acts of disaffirmance on his part. 5 Confirmation may be proved
by slighter evidence than disaffirmance. 8 Mere acquiescence is
not of itself sufficient evidence of confirmation, but evidence
showing clearly and unequivocally an intent to affirm is enough.
"Where & fiduciary relation"* is shown, the burden is on the
trustee or other person owing the duty, to repel the presumption
of fraud. 8 A witness cannot be allowed to testify directly to the
question, whether defendant had undue influence. 9
1 Thus, be may testify that "he thought" the grantor was growing childish, or.
as " lie took it," was a little light-headed. De Witt v. Early, 17 N. Y. 340 ; limiting
a previous decision in 9 Id. 371; Pelamourges v. Clark, 9 Iowa, 14. And see, to
same effect, Stuckey v. Bellah, 41 Ala. 700, 707; Walker v. Walker, 14 Geo. 242;
Doe v. Reagan, 5 Blackf. 217; Stewart v. Speddon, 5 Md. 433,446; Dickenson v.
Barber, 9 Mass. 225; McDougald v. McLean, 1 Winst. 120; .Aiman v. Stout, 42
Penn. St. 114 ; Morse v. Crawford, 17 Vt. 499. The rule as to the testimony of ex-
perts is stated at p. 1 16 of this vol Upon principles already stated (p. 115) declara-
tions of the grantor are competent to show his state of mind (Howe v. Howe, 99
Mass. 88 ; Howell v. Howell, 47 Geo. 492), except declarations made after the act
and offered to impeach it, for this might sanction fraud. Stewart v. Redditt, 3 Md. 67.
As to allowing personal inspection by the court or jury, see Beaubien v. Cicotte, 12
Mich. 459.
9 Johnson v. Harmon, 94 U. S. (4 Otto), 371, 380 ; 1 MacA. 139 ; and see Johns v.
Fritchey, 39 Md. 258 ; Murray v. Carlin, 67 111. 286. As to the mode of proving in-
toxication, see Chapter LVI.
3 Joest v. Williams, 42 Ind. 566.
4 Compare Roof v. Stafford, 7 Cow. 179, 183 ; Gray v. Lessington, 2 Bosw. 257;
Irvine v. Irvine, 5 Minn. 61. For mode of proof of age, see Chapter V.
6 Voorhies v. Voorhies, 24 Barb. 150. Compare Miles v. Lingerman, 24 Ind. 386.
6 Irvine v. Irvine, 9 Wall. 617, affi'g 5 Minn. 61. See Infancy, as a defense.
7 Such as attorney and client (Bowen v. Bulkley, 14 N. J. Eq. 451, 458 ; Mason
v. Ring, 3 Abb. Ct. App. Dec. 210; Widgery v. Tepper, 38 L. T. R. N. S. 436);
principal and agent (Brooks v. Martin, 2 Wall. 70, 85 ; Eldridge v. Jenkins, 3 Story,
181); trustee and cestui que trust (Da vouev. Fanning, 2 Johns. Ch. 252, 2CO ; Michoudv.
Girod, 4 How. U. S. 544, 663 ; Gilman, Ac. R. R. Co. v. Kelly, 77 111. 42f>); corpora-
tion and officer (Cumberland Coal Co. v. Sherman, 80 Barb. 653 ; The Same v. Par-
rish, 42 Md. 598) ; and the same rule is applied to some extent in the case of a con-
veyance by a child just of age to a parent (compare Turner v. Collins, L. R. 7 Chan.
App. 329, s. c. 2 Moats Eng. 290, with Taylor v. Taylor, 8 How. U. S. 183; Jenkins
v. 1'ye, 12 Pet. 241); or a conveyance by an aged parent to one of several children
(Lansing v. Russell, 3 Barb. Ch. 325 ; Siemon v. Wilson, 3 Edw. Ch. 86); and to those
who deal with expectant heirs and reversiouers (Earl of Aylesford v. Morris, L. R. 8
Ch. App. 484, B. c. 6 Moak's Eng. 443; compare Parmalce v. Cameron, 41 N. Y. 392).
8 See Lewin on Trusts, 615, 858. Declarations of the grantee that he took the
grant for the grantor's benefit, are admissible, not as proving a trust by parol, but as
proving the pretended and the real intent. Platt v. Platt, 68 N. Y. 646, affi'g 2 Supm.
Ct. (T. & C.) 25.
9 Denn v. Fuller, 40 Penn. St. 474, 478. For the rule as to proof of undue influ-
ence, and of weakness of mind, see pp. 119-22 of this voL
CHAPTEE LI.
ACTIONS BY JUDGMENT CREDITORS.
1. Judgment. 7. Voluntary settlement.
2. Execution. 8. Intention of the debtor.
8. Indebtedness to plaintiff. 9. of his grantee.
4. Fraud. 10. Admissions and declarations.
6. The consideration. 11. Defense.
6. Indebtedness to other creditors. 12. evidence of consideration.
1. Judgment.] The mode of proving fhe judgment has been
already stated. 1 Docketing need not be shown, 2 unless execution
or a lien is to be proved, or the judgment was in a justice's or dis-
trict court.
2. Execution.] The execution, with the sheriff's return and
the date of filing endorsed thereon, is the primary evidence of its
issue and return, 3 and, together with testimony of a witness that
he had seen it on file in the clerk's office, is sufficient. 4 The resi-
dence of the debtor in the county where execution was issued
may be inferred from circumstances. 5 Return before the expira-
tion of sixty days, though made on plaintiff's request, is prima
facie sufficient. 6
3. Indebtedness to plaintiff^ The plaintiff's judgment, un-
less recovered by confession, 7 is, both as against the judgment
debtor and as against his grantees (even grantees by conveyances
prior to the judgment), conclusive evidence of the existence and
the amount of the indebtedness established thereby, 8 unless fraud
1 Chapter XXIX. Judgment on attachment without personal service (Thomas v.
Merchants' Bank, 9 Paige, 216; compare Clarke, 234, 286), or an interlocutory de-
cree not finally determining the question of liability (Public Works v. Columbia Coll.
17 Wall. 621, 530), is not enough.
8 Youngs v. Morrison, 10 Paige, 326.
3 Jones v. Green, 1 Wall. 330 ; Stahl v. Stahl, 2 Lans. 60 ; McElwain v. Willis, 9
Wend. 648, affi'g 3 Paige, 505. Lost execution may be proved by an alias, endorsed
and filed pursuant to leave of court, Bradford v. Read, 2 Sandf. Ch. 163.
4 Meyer v. Mohr, 1 Robt. 333, s. c. 19 Abb. Pr. 299.
5 Such as the facts that the other parties resided there, and that the contract was
made, for a long time performed, and finally sued on, in that county. Fox v. Moyer,
54N.Y. 125.
6 Forbes v. Waller, 25 N. Y. 430, s. c. as Forbes v. Walter, 25 How. Pr. 166. afS'g
Forbes v. Logan, 4 Bosw. 476 ; Renaud v. O'Brien, 35 N. Y. 99, rev'g 25 How. Pr. 67.
But, where return is necessary, it must have been made before the commencement of
the present action. McCullough v. Colby, 5 Bosw. 477; compare 4 Id. 603.
1 Botts v. Cozine, Hoff. Ch. 79. But see Magniac v. Thompson, 1 Baldw. 344,
affi'd in 7 Pet. 348.
8 Candee v. Lord, 2 N. Y. 269 ; Burgess v. Simonaon, 45 N. Y. 225 ; Ludington's
Petition, 6 Abb. New Cas. 307, and caaes cited.
[736]
ACTIONS BY JUDGMENT CREDITORS. 737
or collusion appears. It is not conclusive, except as to matters
which appear to hare been litigated and intelligently determined,
or established by a default, in a court of competent jurisdiction ;
and even then may be impeached for fraud or collusion. 1
If the indebtedness is not established by judgment, its nature
and existence must be shown by other evidence. 2
4. Fraud^\ The burden is on the plaintiff to show fraud, 8
clearly. 4 For this purpose circumstantial evidence is freely re-
ceived, 5 and is sufficient to sustain a finding. 6 Evidence which is
not altogether irrelevant, but can throw light upon the transac-
tion, is competent, unless, taken with all otner evidence offered,
it could only raise a suspicion insufficient to sustain a verdict.
Character is not in issue. 7
A secret trust for the debtor may be proved by any kind of
evidence by which fraud may be proved, notwithstanding the
statute of frauds, which usually requires written evidence to
establish a trust. 8
The retention of the possession of personal property after con-
veyance is prima facie evidence of intent to defraud existing
creditors of the transferor; 9 and this presumption is sufficient
against both parties to the transfer ; but it may be rebutted by
evidence of good faith, and any circumstances tending to show
good faith are competent to go to the jury. 10 Retention of the
possession of real property does not raise a presumption of fraud in
a conveyance for value, but may go to the jury with other evidence.
If the terms of even a recorded chattel mortgage allow the mort-
gagor to sell and substitute other goods, instead of applying pro-
1 Same cases. The competency of a judgment against the debtor's personal rep-
resentative is stated in Chapter V.
2 Elwell v. Johnson, 3 Jinn, 558.
3 Loesohigk v. Hatfield, 5 Robt. 26, s. o. as Loeschigk V. Addison, 4 Abb. Pr. N.
S. 210, affi'd in 51 N. Y. 660. A mere right of priority, without evidence of fraud, is
not enough. Skinner v. Stuart, 15 Abb. Pr. 391, s. c. 39 Barb. 206, 24 How. Pr. 489,
rev'g 13 Abb. Pr. 442. Compare Shaw v. Dwight, 27 N. Y. 244.
4 Townsend v. Stearns, 32 N. Y. 209. The weight of opinion is, that it need not
be shown beyond reasonable doubt, but the presumption of innocence should be
weighed with the testimony. See p. 495 of this vol. and cases cited at pp. 731.733.
The only available grounds of relief are those substantially stated in the pleadings.
Rome Exchange Bank v. Eames, 4 Abb. Ct. of App. Dec. 83, s. c. 1 Keyes, 688.
8 "In every transaction where fraud is imputed, it must be conceded to be of es-
sential importance that the jury should be put in possession of every fact and circum-
stance tending to elucidate the question." GOLDTHWAITE, J., Goodgame v. Cole, 12
Ala. 80. The evidence of it is almost always circumstantial. Nevertheless, though
circumstantial, it produces conviction in the mind often of more force than direct tes-
timony. GRIKR, J., Kempner v. Churchill, 8 Wall. 362.
6 Hildreth v. Sands, 2 Johns. Ch. 35, affi'd in 14 Johns. 493 ; Booth v. Bunce, 83
N.Y. 139.
1 See Johnson v. Camley, 10 N. Y. 570.
8 Bump Fraud. Conv. 542.
For recent authorities, see 21 Alb. L. J. 10 ; 5 South. L. Rev. N. S. 617.
10 Proof of good faith is sufficient, without proof of excuse, for not transferring
possession. Mitchell v. West, 55 N. Y. 107.
47
738 ACTIONS BY JUDGMENT CREDITORS.
ceeds in payment of the mortgage, it is conclusively presumed
void, and good faith is irrelevant. 1 In the absence of such pro-
visions in the mortgage, extrinsic evidence of intent is com-
petent. 2
5. The consideration.'} The recital of payment of a considera-
tion, though inadequate or not even valuable, is not conclusive
on defendant ; 3 and plaintiff should be prepared with evidence,
if he desires either to contradict the recital, or to support it
against defendant's contradiction. Inadequacy may be shown by
value proven by opinions of witnesses. 4
6. Indebtedness to other creditors.] The grantor's indebted-
ness to other creditors may be proved by parol, without producing
the written obligations. 5 Judgments against him are competent
in evidence for this purpose, without anything to connect the
grantee with them.?
7. Voluntary settlement.] A voluntary conveyance is not pre-
sumed fraudulent from the mere fact that the grantor was in-
debted. 7 Prior creditors make a prirha facie case by showing
that, at the timp of the transfer, ne was indebted to such an
extent that, having regard to his property, the effect might be to
delay, hinder and defraud the creditors. 8 A settlement made
when insolvent is fraudulent. 9 This presumption may be ex-
plained and rebutted ; for the fraud is always a question of fact
with reference to the intention of the grantor. 10
Where there are no prior creditors, a subsequent creditor (es-
pecially if impeaching a settlement on the children) must show that
it was intended to defraud those who might become creditors. 11
Evidence that it was made just before entering a hazardous enter-
1 Robinson v. Elliott, 22 Wall. 613 ; Peiser v. Peticolas, 8 Reporter, 408.
1 Southard v. Pinckney, 5 Abb. XewCas. 184 ; Peiser v. Peticolas (above).
3 See paragraph 12. " Too commonly a fair debt is used as a little spark of hon-
esty to animate a mass of collusion-and falsehood." COWEN, J., Waterbury v. Sturtc-
vent, 18 Wend. 853.
4 Pages 636 and 637 of this vol. and notes ; Dailey v. Grimes, 27 Md. 440, 448.
5 Snodgrass v. Branch Bank of Decatur, 25 Ala. 161, 173.
6 Hinde v. Longworth, 11 Wheat. 199. An expert cannot be asked whether the
debtor's books showed that he was insolvent (Persse & Brooks Paper Works v. Wil-
lett, 1 Robt. 131, 8. c. 19 Abb. Pr. 416), without producing the books or a statement
drawn from them by the witness. Other rules as to proving insolvency have been
already stated. Page 616.
7 Dygert v. Remerschneider, 32 N. Y. 629, affi'g 39 Barb. 417.
8 Schouler's Dotn. Rel. 278. Embarrassed circumstances at the time cannot be
inferred from the mere fact of insolvency at a later period. Sexton v. Wheaton, 8
Wheat. 229. As to conveyance by husband to wife, in fraud of his creditors, sco
p. 172, <fec. of this vol.
Cole v. Tyler, 65 N. Y. 73.
10 Lloyd v. Fulton, 91 U. S. (1 Otto), 479,485 ; 1 Bish. Marr. W. 743 ; Dunlap v.
Hawkins, 59 N. Y. 342, affi'g 2 Supra. Ct. (T. <fe C.) 292.
11 Sexton v. Wheaton (above); Smith v. Vodges, 92 U. S. (2 Otto), 183 ; Zimmer-
man v. Schoenfeldt, 3 Hun, 692, s. c. 6 Supm. Ct. (T. <fe C.) 142. Contra, Redfield v.
Buck, 35 Conn. 328.
ACTIONS BY JUDGMENT CREDITORS. 739
prise, imposes upon the grantor the burden of proving that he
was solvent and in a position to make it. 1
8. Intention of the deltorJ] Where the facts in evidence do not
raise a legal presumption of fraud, the debtor may be asked, as a
witness, whether he intended to defraud, 2 and he may state the
particular reasons which induced the act, and that he communi-
cated those reasons to his creditors before the act. 8 His testi-
mony, that he did not intend to defraud, is not conclusive. 4
' Subject to the qualifications below stated, in reference to the
admissibility of the admissions and declarations of an assignor,
other fraudulent transfers made by the same debtor, at about the
same time, may be proved, for the purpose of showing his intent
in the transfer in question, though there be no evidence that
the grantee knew of them. 5 Such other frauds are only evidence
for the jury, and do not raise a presumption of law. 6
9. of his grantee.~\ To impeach a conveyance for valuable
consideration, 7 or a mortgage for value, 8 or an assignment by way
of lawful security, 9 or an ante-nuptial settlement, 1 ' 1 it is necessary
to show fraudulent intent on the part of the grantee, 11 or that he
took with notice of the grantor's intent. 12 To establish notice to
1 Mackay v. Douglass, L. R. 14 Eq. C. 106, s. c. 8 Moak's Eng. 659.
s Seymour v. Wilson, 14 N.Y. 667, s. c. 15 How. Pr. 355 ; Pope T. Hart, 35 Barb.
630, s. c. 23 How. Pr. 215.
8 Persse & Brooks Paper Works v. Willett, 1 Robt. 131, s. c. 19 Abb. Pr. 416.
The belief of the debtor that his debt waa paid at the time of his making conveyance
is admissible. Stacy v. Deshaw, 7 Hun, 449.
4 Newman v. Cordell, 43 Barb. 448 ; Bruce v. Kelly, 39 Super. Ct. (7 J. <fc S.) 27 ;
Kimball v. Thompson, 58 Mass. (4 Cush.) 441.
8 Foster v. Hall, 12 Pick. b9. 99 ; Cathcart v. Robinson, 5 Pet. 264 ; Van Kirk v.
Wilds, 1 1 Barb. 520 ; Fuller v. Acker, 1 Hill, 473 ; Taylor v. Robinson, 2 Allrn (Mass.),
662 ; and compare Reed v. Stryker, 4 Abb. Ct. App. Dec. 26. See Bump Fraud. Con.
644. According to some authorities, it should appear that all were a part of the same
general plan. Angrave v. Stone, 45 Barb. 85, affi'g 25 How. Pr. 167; Lynde v. Me-
Gregor, 13 Allen, 172. See the same distinction at p. 618 of this vol., n. 10. Under
the free rules of evidence now applied, it is consonant with general principles to
allow evidence of any fraudulent transaction which indicates fraudulent intent on the
part of the grantor in making the transfer in question; for proving fraud in one party
is one step toward proving it in both. But it is only one step; and where it is nec-
essary to prove fraud in the grantee, other fraudulent transfers in no wise connected
do not avail oa evidence against him, and there must be further proof not only
of intent on his part, but proof competent against him of intent on the part of hia
grantor. In other words, plaintiff need not prove a common or communicated intent ;
and even where he must prove concurring intentions, he may prove each by independ.
ent evidence; and evidence which proves the intent of one party, is not inadmissible
merely because it is no evidence of the intention of the other. A similar question as
to the resgestce of a payment remains somewhat unsettled. P. 246 of this vol.
' Liver more v. North rup, 44 N. Y. 107.
7 Waterbury v. Sturtevant, 18 Wend. 353.
8 Carpenter r. Muren, 42 Barb. 800.
9 Griffin v. Cranston, 1 Bosw. 281.
10 Mngniac v. Thompson, 7 Pet. 348, affi'g 1 Baldw. 344. But not other conveyances
in consideration of love and affection only, even if impeached by subsequent creditors
only. Savage v. Murphy, 34 N. Y. 508. Contra, Holmes v. Clark, 48 Barb. 237.
" Jackson v. Mather, 7 Cow. 301.
19 So a creditor of a testator, who impeaches the validity of tho mortgage or sale
740 ACTIONS BY JUDGMENT CREDITORS.
a grantee, even for value, it is enough to show such circumstances
as ought reasonably to have excited his suspicions and put him on
inquiry ; but proof of such circumstances is not conclusive ; the
grantee may show that lie exercised due diligence, and failed to
discover the prior right. 1 Evidence that the grantee had reason-
able cause to believe the grantor insolvent is competent, 2 but not
conclusive. 8 The grantee, like the grantor, may be examined as
to his own intent. 4
10. Admissions and declarations."] In applying the general
rules elsewhere stated, which exclude admissions and declarations
made by an owner, when offered to affect his successor's title to
real, 5 but not to personal property or things in action, 6 it should
be observed that, in a creditor's suit, both grantor and grantee
being parties (as is usually the case), the declarations of the grantor
are usually admissible for the purpose of charging him, 7 whether
they relate to realty or personalty ; for what a party has said
about his own case is always admissible -against him. But it is
not enough that there is such evidence of fraud on the part of the
grantor, made competent against him. There must also be evi-
dence of it, competent against the grantee. 8
The doctrine of the Kew York courts is, that acts, admissions
and declarations of the grantor, after he has parted with title,*
by an executor for purposes of a misapplication, has the burden of proving that the
mortgagee of the purchaser had notice of the true state of the facts. Corser v. Cart-
wright, L. R. 7 Ho. of L. 731, s. c. 14 Moaks' Eng. 115. Compare p. 716 of this vol.
1 Williamson v. Brown, 15 N. Y. 354, 362; Herlich v. Brennan, 11 Hun, 194; and
see Reed v. Cannon, 50 N. Y. 345.
8 Lee v. Kilburn, 8 Gray, 694, 598. See p. 617 of this vol.
8 Waterbury v. Sturtevant, 18 Wend. 353. Whether notice to an agent or attor-
ney is competent and sufficient, see Weiss v. Brennan, 41 Super. Ct. (J. & S.) 177 ;
Hoover v. Greenbaum, 62 Barb. 188, affi'd 61 N. Y. 305, affi'd sub nom. Hoover v.
Wise, 91 U. S. (1 Otto), 808 ; May v. Le Claire, 11 Wall. 217 ; Foster v. Hall, 12 Pick.
89, 98 ; Lynde v. McGregor, 13 Allen, 172. As to competency of attorney as wit-
ness, see N. Y. Code Civ. Pro. $ 835.
4 Bedell v. Chase, 34 N. Y. 386.
6 Page 711 of this vol. ; Jackson v. Myers, 11 Wend. 533 ; Norton v. Pettibone, 7
Conn. 319.
6 Page 11.
7 Gamble v. Johnson, 9 Mo. 697, 615 ; Venable v. Bank of the U. S. 2 Pet. 107, 119.
8 Even in case of an assignment for benefit of creditors, fraud on the part of the
grantor must be established by evidence competent against the assignee. Evidence
of the assignee's declarations such as are competent against him alone, or even against
him and an assignee who has been removed, is not enough to sustain the action against
the assignee. Cuyler v. McCartney, 40 N. Y. 221, rev'g 33 Barb. 165. And even
where it is only necessary to prove fraud in the grantor, and his subsequent admis-
sions are satisfactory evidence against himself, there must be evidence competent
against the grantee ; otherwise a grantor, having made a fair conveyance, could annul
it by subsequent transactions or even admissions.
' This rule, while it admits declarations made after the executory contract to sell,
excludes those made after the inception of the transfer. Vrooman v. King, 36 N. Y.
477, 483, and cases cited. Compare, for the distinction in various cases of incomplete
execution or delivery, Wyckoff v. Carr, 8 Mich. 44 ; Bunker v. Green, 48 111. 243 ;
McLanathan v. Patten, 39 Me. 142; McClellan v. Cornwall, 2 Coldw. (Tenn.) 298,
305 ; Goodgame v. Cole, 12 Ala. 77, 82.
ACTIONS BY JUDGMENT CREDITORS. 741
are not competent against the grantee, unless there be independent
evidence of fraud to connect the two, and bring them within the
rule as to confederates. But for this purpose independent evi-
dence that the grantor, after selling, continued in a possession
which is presumptively fraudulent, is enough to let in declarations
made during its continuance. 1 The declarations cannot aid the
proof of combination. If there be not independent evidence of
combination, the assignor should be offered as a witness, instead
of resorting to proof of his declarations. 2
If there is independent evidence connecting the grantor and
grantee in an attempt to defraud, the acts, admissions and
declarations of either are admissible against the other, within the
limits already stated ; 3 and it need not be shown that the latter
had any knowledge of them. 4
But the acts*, admissions and declarations of grantor or grantee,
though made while holding title and possession, are not evidence
in his favor, or in favor of those claiming under him, to disprove
fraud, unless part of the res yestce? or where the making of the
declaration, and not its truth, is the relevant fact. 6
11. Defense.] Defendant may show any ground of equitable
impeachment of the judgment. 7 But mere irregularity in it, or
in the execution, 8 is no defense, nor is the fact that the execution
was returned in less than sixty days, unless shown to have 'been
done in bad faith. 9 Neither a second execution, levied after com-
mencement of action, nor a second judgment, is necessarily a bar;
it depends on whether the circumstances will sustain an inference
of satisfaction. 10
The grantee may prove the circumstances and the advice on
which he took the transfer, for the purpose of showing good faith. 11
12. evidence of consideration paid.] The recital, in a con-
veyance sought to be impeached, of payment of a valuable con-
sideration, is presumptive evidence 01 its payment. 12 Its inade-
1 Lee v. Huntoon, Hoffm. 447, 453; Adams v. Davidson, ION. Y. 309; Newlinv.
Lyon,49 Id. 661. A possession resumed, after delivery once made and continued,
is not enough. Tilson v. Terwilliger, 56 N. Y. 273.
8 Cuyler v. McCartney, 40 N. Y. 221, 226.
8 Page 190 of this vol. ; Cuyler v. McCartney, 40 N. Y. 221 ; Newlin v. Lyon, 49
N.Y. 661.
4 Nudd v. Burrows, 91 U. S. (1 Otto), 421, 438. Declarations made before the
combination are not made competent. Legg v. Olney, 1 Den. 202.
4 Ward v. Sounders, 6 Ired. (N. C.) L. 382, 387 ; Badger v. Story, 16 N. H. 168 ;
Hale v. Stone, 14 Ala. 803, 806; Tevis v. Hicks, 41 Cal. 123.
IMace v. Gould, 123 Mass. 847, and cases cited.
T Smith v. Crocheron, 2 Edw. Ch. 501 ; nnd see Mandeville v. Reynolds, 68 N.Y. 528,
6 Hun, 338 ; Teed v. Valentine, 65 N. Y. 47 1. Contra, Mattingly v. Nye, 8 Wall. 370.
8 2 Abb. N. Y. Dig. new ed. 478, 482,483.
2 Id. 487, 490.
10 2 Abb. N. Y. Dig. new ed. 477.
11 Norton v. Mallory, 63 N. Y. 434, affi'g 1 Hun, 499, B. o. 8 Supm. Ct (T. A C.)
640; Goodgame v. Cole, 12 Aln. 77, 80; Fisher v. True, 38 Me. 536.
14 Thallhimer v. Brinckerhoff, 6 Cow. 90; Jackson v. McChesney, 7 Id. SCO; Car*
74:2 ACTIONS BY JUDGMENT CREDITORS.
quacy is material only on the question of fraudulent intent. 1 In
case of a mortgage, the bond 2 or note 8 to which it is collateral,
if produced and proved, 4 and shown to be connected with the
mortgage, 5 is presumptive evidence of a just debt. After plaint-
iff has given evidence of fraud, defendant should give extrinsic
evidence of consideration, if he relies on that. A conveyance
purporting to have been voluntary, can not be contradicted by ev-
idence that it was for value. 6 But the indebtedness to the grantee
may be shown as evidence rebutting extrinsic evidence of fraud
in fact. 7 If plaintiff has disproved the pecuniary consideration re-
cited, defendant may prove the actual pecuniary consideration in
support of the instrument. 8 Payment since commencement of the
action is inadmissible. 9 The payment may be proved by a witness,
without accounting for receipts shown to have been taken ; 10 or
by the previous transactions between the parties to the instru-
ment, 11 and the state of their accounts. 12 The existence of an in-
debtedness having been shown, the debtor may testify directly
that he was indebted to the grantee. 13
penter v. Freeland, Hill & D. Supp. 37 ; Foster v. Hall, 12 Pick. 89, 92. Contra,
Kimball v. Fenner, 12 N. H. 248.
1 Jackson v. Peek, 4 Wend. 300 ; Twyne's Case, 1 Smith's L. Cas. 33, 47.
a Dunham v. Gates, 3 Barb. Ch. 196.
8 Dunham v. Whitehead, 3 Abb. Pr. 207.
4 As to mode of proof, see pp. 392-8 and 504-7 of this vol.
6 Baskins v. Shannon, 3 N. Y. 310.
Potter v. Gracie, 58 Ala. 303, s. c. 29 Am. R. 748; Bump Fraud. Conv. 555, 658.
7 Hinde v. Longworth, 11 Wheat. 199.
8 McKinster v. Babcock, 26 N. Y. 378, reVg 37 Barb. 265.
9 Angrave v. Stone, 45 Barb. 35, affi'g 25 How. Pr, 167.
10 Johnson v. Cunningham, 1 Ala. 249, 257; Planters' Bank v. Borland, 5 Id. 531,
543.
11 Jaycox v. Caldwell, 51 N. Y. 395, affi'g 37 How. Pr. 240. So, also, in rebuttal
Treat v. Barber, 7 Conn. 274.
18 De Forest v. Bacon, 2 Conn. 633. Compare Isham v. Schafer, 60 Barb. 317.
18 Jaycox v. Caldwell (above).
CHAPTER LTI.
ACTIONS JFOR DIVORCE.
1. Marriage. 9. and as to paramour.
2. Fraud. 10. delay.
8. Impotence. 11. character.
4. Adulti-ry. 12. Cruelty.
6. circumstantial evidence. 13. Witnesses.
6. cogency of proof. 14. Confessions and admissions.
7. opinions of witnesses. 15. Condonation.
8. limits of the issue of adultery
in respect to time and place.
1. Marriage.'] -There must be evidence of actual marriage.
Cohabitation and repute is relevant, but not alone enough. 1
2. Fraud.~]^ The fraud proved must be that alleged. 2 Ex-
press representation of chastity need not be proved to substan-
tiate an allegation that the woman fraudulently induced plaintiff
to believe her chaste. 8 Admissions, especially if tacit, are not
alone sufficient to establish fraud as a ground of divorce. 4
3. Impotence.'] The burden of proving impotence as a ground
of action is on plaintiff, and increases with the lapse of time from
the date of marriage to the bringing of the action. 5
4. Adultery.'] Actual marriage and cohabitation with a
second spouse, is conclusive evidence of sexual intercourse. 6
Residence of man and woman in the same house, 7 holding each
other out as man and wife, is not necessarily prima facie evi-
dence of it. 8
Birth of a child, or pregnancy, is not evidence of adultery
without clear proof of the husband's non-access, 9 by witnesses who
have means of knowledge. 10
1 2 Bish. Marr. <fe Div. 266, <fec. ; p. 79, <fcc. of this vol. The mode of proving the
material facts es-sential to the jurisdiction has already been stated. See chap. V.
2 Klein v. Wolfsohn, 1 Abb. N. C. 134.
8 Donovan v. Donovan, 9 Allen, 140.
4 Montgomery v. Montgomery, 3 Barb. Ch. 132.
* M. T. C., L.'R. 2 P. <fc D. 414, s. c. 4. Moak's Eng. 650. Continuance must be
shown. As to surgical examination, see Devanbagh v. Devanbagh, 5 Paige. 554 ;
6 Id. 176; Newell- v. Newell, 9 Id. 25. Where the only evidence is the conflicting
testimony of the parties, the lapse of time is a very strong circumstance against the
case. Cuno v. Cuno, L. R. 2 S. <fc D. App. 300, s. o. 6 Moats Eng. 73.
' Clapp v. Clapp, 97 Mass. 531.
T Pollock v. Pollock, 71 N. Y. 137.
8 Hart v. Hart, 2 Edw. 207. But see Hoffm. on Ref. 115. Aa to presumption of
death from absence, see p. 73 of this vol.
8 Van Aernam v. Van Aernam, 1 Barb. Ch. 875. See pp. 88 and 89 of this vol.
10 See Turney v. Turney. 4 Edw. 666, and p. 89 of this vol. By N. Y. Rule 82,
legitimacy, if not questioned in pleading, cannot be questioned on the trial.
[743]
744 ACTIONS FOR DIVORCE.
A husband's consorting with prostitutes is competent as evi-
dence of his adultery. 1 A woman's visiting a house of prostitution
with a man other than her husband is competent evidence of her
adultery. Continuation of an intercourse- formerly adulterous,
without anything to indicate a change, will sustain an inference
of continued adultery. 2 A husband's having the venereal disease,
long after marriage, is prima, facie evidence of his adultery. 8
Defendant's physician is not competent as to facts derived from
him in professional confidence. 4 The wife's disease is not evi-
dence of the husband's infidelity. 5
5. circumstantial evidence.'] To establish adultery by cir-
cumstantial evidence, the circumstances are to be taken together
and when combined must tend to establish the following three
facts : 1. The lustful disposition of the party charged, towards
the alleged paramour ; 2. A like disposition on the part of the
latter ; 3. The opportunity to commit the act. 6
These three facts must be reasonably approximate in point of
time. 7 The proof must sustain an inference of actual connexion
but it is not essential that it identify time and place, 8 unless these
have been made part of the issue by the pleadings.
Circumstances susceptible of a reasonable interpretation con-
sistent with innocence, and which do not lead to guilt by a fair
inference as a necessary conclusion, are insufficient."
1 But whether sufficient, depends on evidence of disposition and opportunity. See
Ciocci v. Ciocci, 26 Eng. Law & Eq. R. 604 ; Platfc v. Platt, 5 Daly, 295 ; Van Eppa
V. Van Epps, 6 Barb. 320 ; Hoffm. on Ref. 155.
8 Smith v. Smith, 4 Paige, 432 ; Van Epps v. Van Eppa, 6 Barb. 320.
3 Johnson v. Johnson, 14 Wend. 637, rev'g 4 Paige, 460. Compare Ferguson v.
Ferguson, Seld. Notes, 249 (No. 6, p. 77), modifying effect of 1 Barb. Ch. 604 ; 3 Sandf,
307.
4 N. T. Code Civ. Pro. 834; Hunn v. Hunn, 1 Supm. Ct. (T. <fc. C.) 499; and see
p. 501 of this voL
6 Homburger v. Homburger, 46 How. Pr. 346.
6 Westmeath v. Westmeath, 4 Eng. Ecc. 438 ; followed in Juskeep v. Inskeep, 5
Clarke (Iowa), 204, and Freeman v. Freeman, 81 Wis. 535.
1 Thayer v. Thayer, 101 Mass. 111. Opportunity must be proved by evidence
that the parties were in some place together where adultery might probably have
been committed. Otherwise guilty intention might be mistaken for actual guilt.
Caton v. Caton, 7 Notes Ecc. & Mat. Cas. 16.
8 Hamerton v. Hamerton, 2 Hagg. Ecc. 8; Grant v. Grant, 2 Curt. Ecc. Ct. 16.
9 Moser v. Moser, 29 Ala. 313 ; Inskeep v. Inskeep (above); Ferguson v. Ferguson,
8 Sandf. 307. The following cases illustrate the application of this principle, by in-
dicating, not rules of law, but situations which the courts have held would sustain a
finding of fact. Great intimacy and opportunity; not proof. Faussett v. Faussett, 7
Notes Ecc. <fe Mat. Cas. 88. Kissing, letters and opportunity ; not proof. Hamerton v.
Hamerton, 2 Hagg. Ecc. 8. Intimacy, indecorous freedom, without indecent familiar-
ities, but with opportunity ; not proof. Caton v. Caton, 7 Notes Ecc. <fe Mat. Cas. 1 6.
Willing receipt of letters of solicitation, suspicious intimacy and opportunity ; not
proof. Haraerton v. Hamerton (above), approved in Caton v. Caton, 7 Notes Ecc. A
Mat. Cas. 16. Criminal disposition and attempt to gain opportunity; not proof. Ca-
ton v. Caton (above). Opportunity alone; not proof. Hamerton v. Hamerton
(above). Opportunity must be connected with design. Mayer v. Mayer, 21 N. J. Eq.
(6 C. E. Green), 246. Indecent familiarities, clandestine interviews, love letters ex-
pressing desire, followed by opportunity ; held to be proof. Grant v. Grant, 2 Curt.
Ecc. Ct. 16, 71 ; and see Lockyer v. Lockyer, 1 Edm. beL Cas. 107.
ACTIONS FOR DIVORCE.
The social habits of the parties and of the community of which
they were a part, 1 and any circumstances giving an innocent char-
acter to the intimacy, 2 are relevant.
6. cogency of proof J] Nothing is to be taken in favor of
plaintiff by presumption or intendment, even in the case of a de-
fault. 3 The evidence must be such as would lead the guarded dis-
cretion of a reasonable and just man to the conclusion of guilt, for
it is not to lead a rash and intemperate judgment, moving upon
appearances that are equally capable of two interpretations,
neither is it to be a matter of artificial reasoning, judging upon
such things differently from what would strike the careful and
cautious consideration of a discreet man. 4 It must be a conclusion
so far inevitable as that the supposition of innocence cannot by
any just course of reasoning be reconciled with it. 5
7. opinions of witnesses.'] The opinions of witnesses as to
guilt or guilty intent are not competent. 6 But the impression or
belief produced in the mind of the witness at the time of what he
saw, may be called for by the court, 7 or on cross-examination. 8
8. limits of the issue of adultery in respect to time and
place.] In connection with proof of at least improper familiarities
within the time alleged, evidence of acts of adultery, with the same
paramour, previous to the time alleged, is admissible to give sig-
nificance to those familiarities. 9 Evidence of adulterous acts sub-
sequent to- the time alleged, is not admissible because it raises no
presumption that the prior familiarities were accompanied with an
adulterous act within the period alleged. 10 If presumptive evi-
dence of an act of adultery, within the period alleged, has been
given, evidence of an act, with the same paramour, subsequent to the
period but reasonably proximate in time, may be proved in corrob-
1 Inskeep v. Inskeep, 5 Clarke (Iowa), 204 ; Gethin v. Gethin, 2 Sw. <fe Tr. 560-3.
8 Dunlap v. Robinson, 2 Ala. N. S. 100; Berckmans v. Berckmans, 17 N. J. Eq.
(2 C. E. Green), 453, affi'g 16 Id. 122 ; King v. King, 4 Scotch Sess. Cas. 2d series,
583.
3 Linden v. Linden, 36 Barb. 61. .
4 Lovedon v. Lovedon, 2 Hagg. Cons. 3; Ferguson v. Ferguson, 3 Sandf. 807;
Freeman v. Freeman, 31 Wis. 235 ; Mosser v. Mosser, 29 Ala. N. S. 313; Day v.
Day, 3 H. W. Green Ch. (N. J.) 444.
6 Anon., 17 Abb. Pr. 48, and cas. cit. Proof beyond reasonable doubt is required
in Berckmans r. Berckmans, 17 N. J. Eq. (2 C. E. Green), 453, affi'g 16 Id. 222;
Freeman v. Freeman (above). Compare p. 495 of this vol. For various forms of
stating the rule requiring proof beyond a mere preponderance of probability, see Mil-
ler v. Miller, 4 Sw. & Tr. 427; Clare v. Clare, 19 N. J. Eq. (4 C. E. Green), 37;
Cooper v. Cooper, 10 La. O. S. 249; Edmond's Appeal, 57 Penn. St. 232; Catonv.
Cuton, 7 Notes Ecc. <fe Mat. Cas. 16 ; Day v. Day, 3 Green Ch. (N. J.) 444; Purcell
v. Purcell, 4 Ilenn fe M. 511 ; Meble v. Lapeyrollerie, 16 La. Ann. 4.
See Cox v. Whitfield, 18 Ala. 738, 741.
7 Crewe v. Crewe, 3 Hagg. Ecc. 129, cited in Macq. on Marr. <fc D. 213.
8 See 3 Abb. New Cas. 234, note.
9 Lockyer v. Lockyer, 1 Edm. Sel. Cas. 107.
10 Freeman v. Freeman, 31 Wis. 235. There should be leave to amend or file
supplemental pleading.
746 ACTIONS FOR DIVORCE.
oration. 1 Upon the same principles, prima facie proof of com-
mission of adultery at the place alleged, may be corroborated by
evidence of other acts of adultery at other places not alleged ; 2
but such evidence is not competent as an independent charge. 3
9. and as to paramour.] An allegation of adultery with
a person named, is not sustained by proof of adultery with another
person, 4 or with a person unknown ; 5 but, under an allegation of
adultery with a person unknown, or of adultery with a person
named and others unknown (with proper allegations of inability
to state name), adultery with a person not named, whether known
or unknown, may be proved. 6
10. delay. ~\ The husband's delay to proceed after having
what he claims as proof, is strong evidence in the wife's favor?
The wife's delay is not equally strong evidence. 8 Aversion to
publicity or to involving children, does not excuse the husband's
delay, as it does the wife's. 9 Explanations of delay are admis-
sible. 10
11. character^ The defendant's character is not in issue. 11
But unquestionably good character appearing incidentally from
otherwise competent evidence, may be considered as a circum-
stance in defendant's favor, aiding the presumption of innocence. 12
The unchaste character of a servant employed for household pur-
poses, is not alone competent. 13
12. Cruelty.'] The mode of proving facts such as consti-
tute cruelty and their effects, has been stated in other chapters. 14
Defendant's conviction on a plea of guilty, 15 or his plea of guilty 18
to an indictment for cruelty, is competent against him j but a con-
viction on a plea of not guilty is. not. 17 A defendant offering to
prove, in his justification, plaintiff's ill-conduct, is restricted to
what preceded or was contemporaneous with his own cruelty or
misconduct. 18
1 See reasoning in Law?on v. The State, 20 Ala. N. S. 66.
3 Thayer v. Thayer, 101 Mass. 111.
3 Green v. Green, 26 Mich. 437.
4 See cases cited and limited in Mitchell v. Mitchell, 61 N. Y. 398.
5 Bokel v. Bokel, 3 Edw. 376.
6 Mitchell v. Mitchell, 61 N. Y. 398.
7 Berckmans v. Berckmans, 16 N. J. Eq. (1 C. E. Green), 122, affi'd in 17 Id. 435.
8 Newman v. Newman, L. R. 2 Pr. & D. 157.
9 Cummins v. Cummins, 15 N. J. Eq. (2 McCarter), 138.
10 Leary v. Leary, 18 Geo. G96.
11 Humphrey v. Humphrey, 7 Conn. 116 ; Washburn v. "Washburn, 5 N. H. 195;
Lockyer v. Lockyer, 1 Edm. Sel. Cas. 107.
12 Alexander v. Alexander, 2 Sw. & Tr. 95.
13 Carter v. Carter, 62 111. 439.
14 Pages 179, 599, 648, 682, 685 of this vol.
15 1 Greenl. Ev. (13 ed.) 570, 527a,note.
"Page 649 of this vol.
"Id.
18 Bihin v. Bihin, 17 Abb. Pr. 19.
ACTIONS FOR DIVORCE. 747
13. Witnesses."] The competency of the parties has been
stated. 1 Plaintiff 's testimony alone may, in the discretion of the
court, in a perfectly clear case, be sufficient if other evidence does
not exist or cannot be obtained. 2 A child, if of a competent age
and intelligence to be a witness, may testify against its parent. 8
Testimony of a prostitute, 4 or an alleged paramour, 5 or the keeper
or a servant of a house of prostitution, 6 is not sufficient to prove
adultery. That of a witness employed to watch and detect is not
incompetent, but is to be received with great caution and scrupu-
lously scrutinized. 7 At least two witnesses are generally required.
Satisfactory testimony of the defendant and the alleged para-
mour, to their innocence, though of little weight against clear
proof, should prevail against merely circumstantial evidence or
unsatisfactory testimony making a doubtful case. 8
14. Confessions and Admissions.] A confession, not con-
nected with other proof, is not competent. 9 However explicit,
it will not alone justify a decree ; 10 but may, in the discretion of
the court, be sufficient when clearly proved, if accompanied with
evidence effectually repelling all suspicion of collusion, 11 or cor-
roborated by other evidence of guilt, 12 and free from any appear-
1 Pages 165 and 166 of this vol. If. Y. Rules 78-80 provide for their examina-
tion in certain cases.
4 Robbins v. Robbins, 100 Mass. 150 ; Kaiser v. Kaiser, 16 Hun, 602, 605. The N.
Y. courts usually require further evidence. Compare U. v. J., L. 11. 1 Pr. <fe M. 460.
3 Lockwood v. Lockwood, 2 Curteis, 281. The omission to call a child of tender
years is approved in Kneale v. Kneale, 28 Mich. 344, COOLET, J. ; s. p. Tobey v.
Leonards, 2 Wall. 423, WAYNE, J.
4 Turney v. Turney, 4 Edw. Ch. 566. Compare Ciocci v. Ciocci, 26 Eng. L. & Eq.
604, 9. o. 18 Jur. 194.
5 Ginger v. Ginger, L. R. 1 Pr. & D. 87, and see Simons v. Simons, 13 Tex. 558.
8 Platt v. Platt, 5 Daly, 2.95, 297.
7 Anon. 17 Abb. Pr. 48.
8 Mayer v. Mayer, 21 N. J. Eq. 240; Larrison v. Larrison, 20 Id. 100.
9 Doe v. Roe, 1 Johns. Gas. 25; Betts v. Betts, 1 Johns. Ch. 197; Miller v. Mil-
ler, 1 H. W. Green Ch. (N. J.) 139; Searle v. Price, 2 Hagg. Cons. 189 ; Macqueen's
Pr. in H. of L. 606 ; 1 Tayl. Ev. 673 ; and see White v. White, 45 N. H. 121. Contra,
Sheffield v. Sheffield, 3 Tex. 79; Williams v. Williams, 35 L. J. Mat. C., s. c. 8
L. K. 1 Pr. & D. 29 , 13 L. T. R. N. S. 610; Robinson v. Robinson, 1 Sw. & Tr. 562;
Vance v. Vance, 8 Greeul. (Me.) 132.
10 Lyon v. Lyon, 62 Barb. 138, and cases above cited. By the N. Y. Statute "no
sentence of nullity of niarriage shall be pronounced solely on the detlarntions or con-
fessions of the parties; but the court shall in all cases require other satisfactory evi-
dence of the existence of the facts on which the allegation of nullity is founded." 2
N. Y. R. 8. p. 144, S 36 ; 3 Id. (6th ed.) 155. But the rule is not dependent on the
statute, but ia one of public policy. True v. True, 6 Minn. 458. On the infirmity of
evidence of confessions, see Lench v. Lench, 18 Ves. 611 ; Smith v. Burnham, 3
Sumn; 435; 1 Greenl. on Ev. (Redf. ed.) 229, 200; State v. Fields, Peck (Tenn.),
141 ; Malin v. Malin, 1 Wend. 625, 652; Getman v. Getman, 1 Barb. Ch. 499, 504;
Law v. Merrills, 6 Wend. 268, rev'g 9 Cow. 65; Garrison v. Aiken, 2 Barb. 25, 27;
Rex v. Simons, 6 C. C. <fe P. 641 ; Rex v. Coleman, Remarkable Trials, 1 162, cited in
Joy on Confessions, 108.
11 Billings v. Billings, 11 Pick. 461 ; Fullerton v. Fullerton, 11 Scotch Ct. of Sess.
Cas. 3d series, 720 ; Armstrong v. Armstrong, 32 Miss. 279.
19 Cases above; Clutch v. Clutch, 1 Saxt. N. J. 474; Lyon v. Lyon, 62 Barb. 138;
74:8 ACTIONS FOR DIVORCE.
ance of collusion. 1 A confession in ambiguous language sug-
gestive of guilt, but consistent with there having been no actual
adultery, is not enough ; 8 but is competent, and may be sufficient,
in connection with other proof. 8
Confessions or declarations by the alleged paramour are no
evidence against the defendant, 4 unless brought to the knowledge
of defendant and proved as a foundation for showing defendant's
tacit or express confession. 5 Admissions or declarations of a third
person, though made when acting for the defendant, are not com-
petent as a confession unless shown to have emanated from the
defendant. 6
If the confession or admission received, is contained in a writ-
ing, the party against whom a part is read has a right to have the
whole put in evidence. 7
15. Condonation.'] Condonation may be proved by the vol-
untary cohabitation of the parties, with the knowledge of the
fact of adultery. 8 Condonation may be conditional. Cohabita-
tion is not conclusive proof of condonation of cruelty. 9
Sawyer v. Sawyer, Walk. Ch. 52 ; Baxter v. Baxter, 1 Mass. 346 ; Matchin v.
Matchin, 6 Penn. St. 332.
1 Doe v. Hoe, 1 Johns.. Cas. 25 ; Hoffm. on Ref. 161..
2 Winscome v. Winscome, 3 Sw. & Tr. 380 : Williams v. Williams, 1 Hagg. Cons.
302; Caton v. Caton, 1 Notes of Ecc. & Mat. Cas. 16.
3 Faussett v. Faussett, 1 Notes of Ecc. & Mat. Gas. 88 ; Grant v. Grant, 2 Curt.
Ecc. 16.
4 Montgomery v. Montgomery, 3 Barb. Ch. 132 ; Leary v. Leary. 18 Geo. 696 ;
Hobby v. Hobby, 64 Barb. 277.
5 Burgess v. Burgess, 2 Hagg. Cons. 223 ; Croft v. Croft, 3 Hagg. Ecc. 310.
6 Faussett v. Faussett, 1 Notes Ecc. efc Mat. Cas. 88.
7 Forrest v. Forrest, 6 Duer, 102, 132, affi'd in 25 N. Y. 501. As to correspon-
dence, see p. 677 of this vol.
8 2 N. Y. R. S. p. 145, 42 ; 3 Id. (6th ed.) 156. And this is conclusive. See Sew-
all v. Sewall, 122 Mass. 156, s, c. 23 Am. R. 299 ; Reynolds v. Reynolds, 4 Abb. Ct
App. Dec. 35.
9 Reynolds v. Reynolds (above) ; and see Perkins v. Perkins, 6 Mass. 69.
CHAPTER LIII.
ACTIONS OF QUO WARRANTO.
1. Office. 2. Corporations.
1. Office.'} The claimant to office must show a good title,
not a colorable one, nor one resting upon his own neglect. 1 Jf he
claims by appointment, the title of the appointing power must
be shown. 2 Preliminary explanation is not required of an altera-
tion in a public document produced from the custody of the
proper officer. 3
The election return of the local canvassers is competent evi-
dence of the number of votes cast. 4 But no canvasser's certificate
is conclusive ; it may be disproved, for instance, by proof that
votes were improperly registered or received at the election. 5
And for this purpose oral evidence is competent. 6 He who im-
peaches the certificate must show that the votes were untruly
canvassed, or that some facts exist which show that the certificate
does not truly state the result of the popular will. It is not
enough to show irregularities in the constitution of the board of
inspectors, or the mode of receiving votes, &c., if no illegal votes
were received, and no legal ones were excluded. 7 This burden is
on him, even though it require proving a negative. 8 The certifi-
cate may be contradicted by producing the ballots, if it appear
that they have been preserved in the manner and by the officers
prescribed in the statute, and that, while in such custody, they
nave not been so exposed to the reach of unauthorized persons as
to afford a reasonable probability of their having been changed or
1 People ex rel. Ganno v. Bartlett, 6 "Wend. 422.
9 People ex rel. Steinert v. Anthony, 6 Hun, 142. For the mode and effect of
resignation and of revocation of it, see State v. Ferguson, 31 N. J. L. 107; State v.
Hauss, 43 Ind. 105; State v. Fitts, 49 Ala. 402 ; also 3 Nev. 666 ; 1 Cranch, 137 ; 6
Cal. 26.
3 People ex rel. Stone v. Minck, 21 N. Y. 539 ; Devoy v. Mayor, <fec. of N. Y. 35
Barb. 264, s. c. 22 How. Pr. 226.
4 Upon general principles, even though there be no express statute. People ex rel.
Stone v. Minck, 21 N. Y. 539. Otherwise of a town clerk's certificate. People v. Cook,
14 Barb. 259, affi'd in 8 N. Y. 67.
5 People v. Cook (above); People v. Van Slyck, 4 Cow. 297 ; People v. Vail, 20
Wend. 12. Otherwise of minutes of town meeting, kept by the town clerk pursuant
to requirement of law. If erroneous, thev must be corrected by a direct proceeding.
People v. Zeyst, 28 N. Y. 140, and cases cited; 1 Dill. M. C. 850. 286. As to the
power of the clerk or board to amend the records, see 1 Dill. M. C. 346, 233, 234.
People ex rel. Stemmler v. McGuire, 2 Hun, 269, 274, 277, s. c. 4 Supm. Ct. (T.
fc C.) 658. affi'd in 60 N. Y. 640.
7 People v. Cook, 8 N. Y. 67, affi'g 14 Barb. 259.
8 People ex rel. Smith v. Pease, 27 N. Y. 46, a. c. 25 How. Pr. 495, affi'g 80 Barb. 58a
[749]
750 ACTIONS OF QUO WARRANTO.
tampered with. 1 Writing, on the ballot, controls print.* To show
that one voted, the poll list is admissible, though not authenti-
cated nor filed. 3 A voter may testify, as a witness, how he voted. 4
If he refuses to disclose, or fails to remember, for whom he voted,
circumstantial evidence is competent to raise a presumption as to
that fact. 5 The declarations of a voter, although hearsay, are re-
ceived on the question of his qualification, for the purpose of sus-
taining or annulling his vote, but not to set aside the election on
other grounds. 8 One, alien born, who voted, must be presumed to
have been naturalized, in absence of evidence to the contrary ; 7
but if there is prima facie evidence that he was never naturalized,
the burden is shifted. 8
Defendant cannot have judgment for the office by showing
possession in himself, even though the relator fail to prove title. 9
2. Corporations.'] If the proceeding, founded on alleged
usurpation of power, is by the State, not on the relation of a
private person, the burden of proof is on the defendant to dis-
claim or to justify, and the State is not bound to make affirmative
proof. 10 If the corporation is shown once to have existed, its con-
tinuance is presumed, until the contrary is shown,, 11 An official
certificate, sanctioning the construction of defendants' works, and
allowing them to exercise their franchise, is not conclusive against
the people. 13 Where it is discretionary with the court to declare
a forfeiture or not, there should be some evidence of existing
danger or inconvenience to the community, requiring it. 13 Where
the action depends on the breach of a condition subsequent, a
failure to comply with it literally, is not enough. 14 A substan-
tial performance will prevent forfeiture. 15
I Hudson T. Solomon, 19 Kans. 177, s. c. 16 Alb. L. J. 349.
s People v. Saxton, 22 N. Y. 309. As to pasters, see People ez rel. Gregory v.
Love, 63 Barb. 535.
3 People ex rel. Smith v. Pease, 27 N. Y. 45, s. c. 25 How. Pr. 495, affi'g 30 Barb.
688.
4 People ex rel. Judson v. Thacher, 55 N. Y. 625 ; reported below in 7 Lans. 274,
8. c. 1 Supra. Ct. (T. & C.) 158. But his intention is to be learned, not from his tes-
timony to the mental purpose, but by a reasonable construction of his acts. People
v. Saxton, 22 N. Y. 309.
6 People ex rel. Smith v. Pease (above).
6 Id.
* Id. Parol evidence is not admissible to impeach the record of naturalization
by showing that the preliminary steps were not taken. People ex rel. Brackett v.
M^Gowan, 77 111. 644, s. c. 20 Am. R. 254.
8 People ex rel. Smith v. Pease (above).
9 People ex rel. Judson v. Thacher, 55 N. Y. 525.
10 Ang. & N A. on C. 756 ; People v. Ulica Ins. Co. 15 Johns. 358 ; High on Ex. R.
652.
II Ang. & A. on C. 757; People v. Manhattan Co. 9 Wend. 351, 378.
14 People v. Fishkill <fe Beekman Plankroad Co. 27 Barb. 44J>.
13 Ang. <fe A. on C. 775 ; State v. Essex Bank, 8 Vt. 489.
14 Thompson v. People, 23 Wend. 637, 686, rev'g 21 Id. 235 ; People v. Williams*
bureh Turnpike Co. 47 N. Y. 586, 692.
"Id.
CHAPTER LIY.
ACTIONS FOR INFRINGEMENT OF TRADE MARKS.
1. Plaintiff's title. 4. Damages.
2. Resemblance of defendant's mark. 6. "Witnesses.
3. Intent. 6. Defenses.
1. Plaintiff's title."] Title may be shown by evidence of in-
vention or composition (by plaintiff or his servants/ or grantors), 3
and an appropriation and adoption 8 in a general use antedating de-
fendant's use. The fact that an article was known in a trade in a
certain way, is one to which qualified witnesses may testify di-
rectly ; 4 and even negative evidence from such witnesses is com-
petent. 5 In an action in a State court, registration under the act
of Congress 6 is not a ground of right or relief. 7 In an action in
the United States courts, a certification of registration is not con-
clusive evidence that the mark is a proper trade mark, or that
plaintiff has prior right. 8 Unsustained claim of copyright is not
relevant. 9
2. Resemblance of defendant's mark.'] It is not necessary to
prove the use of a mark in all respects like the original. It is suffi-
cient if the resemblance is such as to show an intention to deceive, 10
or a degree of imitation so resembling the mark of the plaint-
iff, as that ordinary purchasers, buying with ordinary caution, are
likely to be misled. 11 Variations that a comparison with the orig-
inal would instantly disclose, do not protect defendant, if it ap-
pears that the ordinary mass of purchasers, paying that attention
which such persons usually do in buying the article, would prob-
1 Caswell v. Davis, 68 N. T. 223.
I Cong. <fe Ernp. Spring Co. v. High Rock Cong. Spring Co. 10 Abb.Pr. N. S. 348,
8. c. 45 N. Y. 291, rev'g 57 Barb. 526; Fulton v. Sellers, 4 Brewst. (Penn.) 72.
8 As to how far proof of association of the plaintiff's article, and his only, with
the word adopted by him, will serve to show origin and ownership, see Smith v. Rey-
nolds, 10 Blatchf. 100 ; Morrison v. Case, 9 Id. 548 ; Meriden Britannia Co. v. Parker,
39 Conn. 450; Canal Co. v. Clark, 13 Wall 311; same cases, Codd. Dig. L. of
Tradem. 261, 694, 716, 759, 1010.
4 Pollen v. Le Roy, 80 N. Y. 649.
6 Wilkinson v. Greely, 1 Curt. C. Ct. 439.
U. S. R. S. 4937.
7 Pophatn v. W ilcox, 14 Abb. Pr. N. S. 206. Though it may be a relevant fact on
the question of adoption and priority of claim.
8 Moorman v. Hoge, 2 Sawyer, 78.
9 Wolfe v. Barnett, 24 La. Ann. 97, 8. o. 13 Am. R. 111.
10 Wotherspoon v. Currie, L. R. 6 II. of L. 608, s. c. 8 Moak's Eng. 29.
II McLean v. Fleming, 96 U. S. (6 Otto), 245, 251.
[731]
752 ACTIONS FOR INFRINGEMENT OF TRADE MARK&
ably be deceived. 1 Evidence that any one has been actually de-
ceived, or has bought goods with the defendant's mark, under the
belief that they were manufactured by the plaintiff, is not neces-
sary, provided the resemblance is such as would be likely 2 to cause
the one mark to be mistaken for the other. 3 Probability of de-
ception is generally shown by resemblance and by the opinions of
experts. Kesemblance as shown by inspection is, however, the
primary test and criterion, and proof by experts is seldom re-
sorted to.
3. Intent."] Evidence that defendant intentionally, either
uses or closely imitates plaintiff's trade mark, raises a legal, but
not conclusive, presumption of a fraudulent purpose of deceiving
the public ; and in such case, even at law, nominal damages will be
given, though no specific injury be proved. 4 To obtain an injunc-
tion, fraud need not be proved. An infringement inadvertently
commenced may be enjoined. 5 Intent is generally immaterial in
equity cases, except upon the question of damages. 6 Presump-
tion of fraudulent intent, arising from resemblance, is very strong
where it is shown that the defendant himself places the mark
upon the articles ; but in suits against a dealer who buys and sells
them with the marks already affixed, knowledge must be clearly
proved to make him liable to account.
1 Meriden Britannia Co. v. Parker, 39 Conn. 450 ; Partridge v. Menck, 1 How.
App. Cas. 548, affi'g 2 Sandf. Ch. 622, 2 Barb. Ch. 101 ; Davis v. Kendall, 2 R. I.
666 ; Fetridge v. W.ells, 4 Abb. Pr. 144, s. c. 13 How. Pr. 385 ; Braham v. Bnstard, 9
L. T. R. N. S. 199, s. c. 1 H. & M. 447 3 11 \V. R. 1061, 2 New. 572; Swift v.
Dey,4 Robt. 611 ; Seixo v. Provezende, L. R. 1 Ch. 192, s. c. 12 Jurist (N. S.), 215,
14 W. R. 357, 14 L. T. R. N. S. 314 ; Gillott v. Esterbrook, 48 N. Y. 374, affi'g 47 Barb.
455 ; Blackwell v. Crabb, 86 L. J. Ch. N. S. 504; Rowley y. Hougliton, 2 Brews. 303,
8. o. 7 Phil. 39 ; Filley v. Fassett, 44 Mo. 168; McCartney v. Garnhart, 45 Id. 593;
Hostetter v. Vowinkle, 1 Dill. 329 ; Blackwell v. Armistead, 5 Am. L. T. 85 ; Burke
v. Cassin, 45 Cal. 467 ; Bradley v. Norton, 33 Conn. 157 ; Amoskeag Mfg. Co. v. Gar-
ner, 4 Am. L. T. N. S. 176 ; Leather Cloth Co. <tc. v. American Leather Cloth Co. <tc.
11 H. of L. Cas. 623, 85 L. J. Ch. N. S. 53, 13 W. R. 873, 12 L. T. R. N. S. 742, 6 New.
209, 11 Jur. N. S. 81 ; Bnss v. Dawber, 19 L. T. R. N. S. 626 ; same cases, Codd. Dig.
L. of Tradem. 289, 839-401
8 In many of the cases even the possibility of misleading the public is held suffi-
cient. See Amoskeag Mfg. Co. v. Garner, 4 Am. L. T. N. S. 176; Cope v. Evans, L.
R. 18 Eq. 138, s. c. 30 L. T. R. N. S. 292, 22 W. R. 453; Meriden Britannia Co. v.
Parker (above).
8 Abbott v. Bakers, (fee. Ass'n, 1872, "Weekly Notes, 31 ; Braham v. Bustard
(above); Partridge v. Menck (above) ; Shrimpton v. Laight, 18 Beav. 164; Filley v.
Fassett (above) ; same cases, Codd. Dig. L. of Tradem. 286, 349, 360, 377, 389 ; but
Bee, also, 288, 296, 327, 352, 361, 395.
* Browne on Tradem. 601. Otherwise of an ignorant violation. Weed v. Peter-
eon, 12 Abb. Pr. N. S. 178. On the other hand, mnlicious use of same name, if it be
not a trade mark, is not actionable. See Glendon Iron Co. v. Uhler, 75 Penn. St. 467.
6 Singer Manufacturing Co. v. Wilson, 26 Weekly R. 664, 667 ; McLean v. Flem-
ing, 96 U. S. (6 Otto), 245.
6 Millington v. Fox, 3 Mylne <fc Cr. 338 ; Coats v. Holbrook, 2 Sandf. Ch. 586, s. o.
sub worn. Cuftta v. Shepard, 3 N. Y. Leg. Obs. 404 ; Taylor v. Carpenter, 1 1 Paige, 292,
s. c. 2 Sandf. Cb. 603 ; Coffeen v. Brunton, 4 McLean, 616 ; Amoskeag Mfg. Co. v.
Spear, 2 Sandt Ch. 599; and other cases in Codd. Dig. L. of Tradem. 450-84.
ACTIONS FOR INFRINGEMENT OP TRADE MARKa 753
4. Damages.] In an action for an injunction, it is not neces-
sary to prove damage, if the evidence satisfies the court that the
thing done has a tendency to enable defendants to deceive by sell-
ing, as and for the plaintiff's, their own goods. 1 In an action for
damages, evidence of actual damage is not necessary in order to
entitle plaintiff to recover nominal damages. 2 Evidence that
plaintiff's sales fell off is received. 3 In equity, the proof of dam-
ages should be directed to ascertaining the profits which the
plaintiff would have realized, if he had sold of his own goods the
same quantity which the defendant sold with the spurious marks
thereon. 4 It is immaterial what the defendant made or lost. 5
Vindictive damages are not allowed, 8 nor the expense of procur-
ing an injunction. 7 The relative quality of the plaintiff's and the
defendant's goods is immaterial. 8
5. Witnesses.] A party claiming a trade mark may be com-
pelled to testify as to the process of his manufacture, so far as
relevant ; 9 and the alleged infringer may be compelled to testify, 10
and to produce his books, shown to have a tendency to prove the
infringement, 11 subject to his privilege against being required to
criminate himself 12 in reference to a criminal offense not statute
barred. 13 Defendant may be compelled to disclose the names of
all persons to whom he has sold the goods. 14
6. Defenses] Neither alienage of the person whose trade
marks are simulated, nor the fact that he resides in a foreign
I Braham v. Beachim, 26 "Weekly R. 654, 656.
5 Blofield v. Payne, 1 N. & M. 353, s. c. 4 B. <fc A. 410, 8 L. J. N. S. 68 ; Reeves
V. Denicke, 12 Abb. Pr. N. S. 92; Singer Mfg. Co. v. Kimball. 10 Scottish L. R. 173,
8. c. 45 Scottish Jurist, 201 ; Thompson v. Winchester, 19 Pick. 214; Rodgers v. No-
mil, 11 Jurist. 1037, s. c. 6 C. B. 109, 17 L. J. N. S. C. P. 62; same cases, Codd.
Dig. L. of Tradem. 235, 432, 435, 928, 929.
8 Hostetter v. Vowinkle, 1 Dill. C. Ct. 329.
4 Hostetter v. Vowinkle (above); Burnett v. Phalon, 11 Abb. Pr. 157, B. c. 19 How.
Pr. 630; Faber v. Hovey, Codd. Dig. L. of Tradem. 249. And see Marsh v. Bill-
ings, 7 Cush. 322; Leather Cloth Co. <tc. v. Hirschfield, 13 L. T. R. N. S. 427, B. c. L. R.
1 Eq. 299; eame cases, Codd. Dig. L. of Tradem. 239, 244, 247.
4 Feltz v. Eichele, 62 Mo. 171 ; but see Howe v. McKernan, 30 Beav. 547. The
above rules seem to govern the proper mode of assessing the damages ; although, in
some of the cases, the profit realized by the defendant from the sales of the spurious
articles under the simulated trademark, has been held to be the measure. Taylor v.
Carpenter, 2 Woodb. <fe M. 1 ; Edelsten. v. Edelsten, 10 L. T. R. N. S. 780 ; Graham T.
Plate, 40 Cal. 693.
6 Taylor v. Carpenter, 2 Woodb. A M. 1.
7 Uurnett v. Phalon, 12 Abb. Pr. 186, s. c. 21 How. Pr. 100.
8 Blofield v. Payne (above); Taylor v. Carpenter (above).
Byrne v. Judd, 11 Abb. Pr. N. S. 390; Burnett v. Phalon, 11 Abb. Pr. 187,
B.C. 19 How. Pr. 530; Burnett v. Phalon, 12 Abb. Pr. 186, s. c. 21 liow. Pr. 100.
10 Byass v. Sullivan, 21 How. Pr. 60; s. P. Byasa v. Smith, 4 Bosw. 679.
II Byasa v. Sullivan (above).
14 P. 620 of this voL ; Byass v. Sullivan (above) ; B. p. Byass v. Smith (above).
13 Wolf v. Goulard, 16 Abb. Pr. 836.
14 Howe v. M'Kernan, 80 Beav. 547 ; Orr v. Diaper, 46 L. J. Ch. N. S. 41 ; and see
Carver V. Pinto Leite, 20 W. R. 134, a. o. 41 L. J. Ch. N. S. 92, L. 11. 7 Ch. 90,
20 L. T.R. N. S. 722; same cases, Codd. Dig. L. of Tradem. 270, 271, 272, 274.
48
754 ACTIONS FOR INFRINGEMENT OF TRADE MA.RKS.
country, nor the fact that the goods were manufactured or the
mark affixed abroad, constitute a defense. 1 It is wholly imma-
terial, whether the simulated article is or is not of equal goodness
or value with the genuine article. 2 The want of intent to de-
ceive or defraud is not a defense, 3 nor is it any answer that the
maker of the spurious goods, or the jobber who sells Jhem to the
retailers, informs those who purchase that the article is spurious
or an imitation. 4 The weight of authority is that acquiescence by
the plaintiff, in an infringement of his mark, is no more than a
revocable license, and that, to constitute a defense, the evidence
must be strong enough to show either an abandonment or a dedi-
cation to the public. Knowledge of the piratical use of the mark
must, in all cases, be brought home to the owner, where this de-
fense is taken. 5 Proof of a custom abroad to violate plaintiff's
trade mark is not alone admissible for defendant. 6 The fact that
plaintiff's hands are not clean, and his trade mark is used to de-
ceive or impose upon the public, or is used upon a spurious,
worthless or deleterious compound, is competent, although the
defendants' conduct be also fraudulent and their goods spurious,
and although they deceive the public. 7
1 Taylor v. Carpenter, 3 Story, 458; Taylor v. Carpenter, 2 Sandf. Ch. 603, affi'g
11 Paige, 292 ; Taylor v. Carpenter, 2 Woodb. & M. 1 ; Collins Co. T. Brown, 3 Kay
<fe J. 423, 8. c. 3 Jurist N. S. 929 ; Collins Co. v. Cowen, 3 Kay & J. 4 -28, s. c. 3 Jurist,
929 ; Collins Co. v. Reeves, 28 L. J. Ch. 66 ; same cases, Codd. Dig. L. of Tradem.
111-15,458.
8 Blofield v. Payne 1 N. <fc M. 353, s. c. 4 B. & A. 410, 3 L. J. N. S. 68 ; Taylor v.
Carpenter, 11 Paige, 292, s. c. 2 Sandf. Ch. 603.
3 See the cases cited under Intent (above).
4 Chappell v. Davidson, 2 Kay & J. 123, s. c. 8 De G., M. <fe G. 1 ; Edelsten v.
Edelsten, 9 Jurist N. 8. 479, s. c. 1 De G., J. <fc S. 185, 11 W. R. 328, 1 New.
300, 7 L. T. R. N. S. 768; Shrimpton v. Laight (above); Clark v. Clark, 25 Barb.
76 ; Sykes v. Sykes, 3 B. <fe C. 541, s. c. 5 Dowl. & R. 292 ; same cases, Codd. Dig. L.
of Tradem. 255, 256, 280, 349, 356, 360.
6 This defense is discussed in the following cases : Motley v. Downman, 3 Myl. <fe
Cr. 1, s. c. 6 L. J. Ch. N. S. 808 ; Taylor v. Carpenter, 3 Story, 458 ; Taylor v. Carpen-
ter, 2 Woodb. & M. 1 ; Flavell v. Harrison, 10 Hare, 467, s. c. 19 Eng. L. <fe Eq. 15,
17 Jurist, 368; McCardel v. Peck, 28 How. Pr. 120; Gillott v. Esterbrook, 47
Barb. 455, affi'd in 48 N. Y. 374; Filley v. Fassett, 44 Mo. 168 ; Amoskea^ Mfg. Co. v.
Garner, 55 Barb. 161, s. c. 6 Abb. Pr. N. 8. 265 ; but see s. c. 4 Am. Law T. N. S 176;
Delaware and Hudson Canal Co. v. Clark, 7 Blatchf. 112; Hovcnden v. Lloyd, 18 W.
R. 1132; Isaacson v. Thompson, 20 W. R. 196; Rodgers v. Rodgers, 31 L. T. II. N. S.
285, s. c. 22 W. R. 887; Browne v. Freeman, 12 W. R. 305, 8. c. 4 New, 476 ; same
cases, Codd. Dig. L. of Tradem. 65-76.
Taylor v. Carpenter. 2 Woodb. <fe M. 1.
1 Pidding v, How, 8 Sim. 477 ; and see Codd. Dig, L. of Tradem. 630-43.
CHAPTER LV.
ACTIONS FOB INFRINGEMENTS OF PATENTS AND COPYRIGHTS.
t. PATENTS. I. PATENTS continued.
1. Burden of proof: General evidence 15 ^\ e . ]i ce nse.
of validity. 1 6 ' _ defendant's patent.
2. Novelty of invention. 17 the statute
3. Utility. 1 8> _ fraud .
4. Patentee the original and first in- i 9> _ description in printed public*
ventor. t i on
8. Specifications : Construction: Ex- 20. prior knowledge or use.
tent of claim. 21. public use or sale before appli-
6. Title. cation ; abandonment.
7. Extension: Renewal: Reissue. 22. requisites of the statutory notice
8. State of the art. or answer.
9. Infringement. 23. plaintiff's failure to mark.
10. Witnesses: Models.
11. Admissions and declarations. TT /-,
12. Certified copies.
18. Damages. 24. Plaintiff's rights.
14. Defenses. General issue: Burden 25. Infringmehts.
of proof.
I. PATENTS.
1. Burden of proof: General evidence of validity.'] The
burden is on plaintiff to prove that he, or the patentee under
whom he claims, was the original inventor, within the statute j 1
but the production of the patent, 2 if in due form, affords prima
facie evidence of its correctness, which, in the absence of oppos-
ing proof, is sufficient. 3 A renewal or reissue adds to the pre-
sumption of validity. 4 As will be seen below, this presumption
is not conclusive in respect to any question depending on the
patentable character of the device, or the right of the patentee as
inventor. 5 Accepting and acting under a license from the patentee
1 Plaintiff cannot abandon at the trial a part of a combination claimed in the
pleading, and rely on the other parts. Vance v. Campbell, 1 Black. 427, 429.
* Including the specification and drawings. Cahoon v. Ring, 1 Fish. Pat. Cas.
897, 403, CLIFFORD, J. And whether the patent be original or reissued. Sewell v.
Collins, 1 Fish. Pat. Cas. 289, 291. And though not containing any recitals. Gear
v. Grosvenor, 6 Id. 814.
8 Philadelphia, <fcc. R. R. Co. v. Stimpson, 14 Pet. 458 ; Mitchell v. Tilghman, 19
Wall. 287. If plaintiff rests on this presumption, in support of a matter on which
the patent is not impeached, he cannot in rebuttal give other evidence in support of
the same. But evidence on another ground, in respect to which the patent has been
impeached, is not to be excluded merely because it bears indirectly on the former
ground. Judson v. Cope, 1 Fish. Pat. Cas. 615, 619, 620.
4 Ransom v. The Mayor, Ac. of New York, 1 Fish. Pat. Cas. 252, 259.
1 Union Sugar Refinery v. Matthiessen, 2 Fish. Pat. Cas. 600, 607. How far it is
conclusive in respect to the formalities required by the law, has been the subject of
[755]
756 ACTIONS FOR INFRINGEMENTS OF PATENTS.
estops from questioning the validity of the patent as against him. 1
The patentee s disclaimer, in his description, of what is found in
another patent, is an admission of the validity of the latter. 2
2. Novelty of invention.'] The patent is itself sufficient
prima facie evidence of novelty, 8 but is not conclusive. 4 Exten-
sion, without modification, enhances the presumption of novelty. 5
Negative evidence by calling witnesses who might have known of
the thing, had it pre-existed, is competent ; 6 so is the testimony of
experts , and in case of serious doubt, proof of the actual perform-
ance of the thing itself is competent to go to the jury on the ques-
tion of novelty. Parol evidence is not admissible to show at
what time the patent was applied for. 9
3. Utility.'] The patent is sufficient prima facie evidence of
utility, 10 but not conclusive. 11 Utility may be shown by direct
testimony of witnesses. 12 Producing old results, substantially bet-
ter, faster or cheaper, is sufficient evidence of utility. 18 For the
purpose of proving utility, it is competent to show defendant's
use of the invention ; 14 a former license 15 or contract 16 between the
plaintiff and the defendant, allowing the latter to use it ; the
fact that defendant had advertised and sold it as useful ; 17 or that
plaintiff had carried on a large and long continued manufacture; 18
had received large orders, 19 and had given licenses. 20 The fact that
some difference of opinion, and is not perhaps fully settled, unless it may be in refer-
ence to reissues. " It has come to be regarded as the better opinion," says CLIFFORD,
J., " that all matters of fact involved in the hearing of an application to reissue a
patent, and in granting it, are conclusively settled by the decision of the commis-
sioner granting the application. Seymour v. Osborne, 11 Wall. 616, 545 ; and see p.
759, n. 5.
1 Kinsman v. Parkhurst, 18 How. TJ. S. 289, affi'g 1 Blatchf. 488.
8 "Waterbury Brass Co. v. N. Y. & Brooklyn Brass Co. 3 Fish. Pat. Cas. 43, 48.
3 Corning v. Burden, 15 How. U. S. 252, 270. So, also, of the novelty of a com-
bination (Waterbury Brass Co. v. N. Y. & Brooklyn Brass Co. 8 Fish. Pat. Cas. 43,
48) ; and that the device required invention. Potter v. Holland, 1 Fish. Pat. Cas.
382, 387.
4 Reckendorfer v. Faber, 92 U. S. (2 Otto), 347.
5 Whitney v. Mo wry, 3 Fish. Pat. Cas. 157, 162. In such case evidence of want
of novelty must be strong and conclusive. Id. 161. Cook v. Ernest, 5 Fish. Pat.
Cas. 396.
6 Curt, on Pat. 625, 473.
* See, for instance, Rubber-Coated, <fec. Co. v. Welling, 97 U. S. (7 Otto), 7, 8.
8 Judson v. Cope, 1 Fish. Pat. Cas. 615, 624.
9 Wayne v. Winter, 6 McLean, 344.
10 Corning v. Burden, 15 How. U. S. 252, 270.
11 Reckendorfer v. Faber, 92 U. S. (2 Otto), 347.
12 Curt, on Pat 629, 477.
13 Murray v. Clayton, L. R. 7 Ch. App. 570, s. o. 3 Moak's Eng. 615 ; Wilbur v,
Beecher, 2 Blatchf. 132.
14 Simpson v. Mad River R. R. Co. 6 McLean, 603.
18 Lee v. Blandy, 1 Bond, 361, s. c. 2 Fish. Pat. Cas. 89.
"Id.
11 Stanely v. Whipple, 2 McLean, 35, 39.
18 Whitney v. Mowry, 3 Fish. Pat. Cas. 157, 162.
19 Curt, on Pat. 629, 477.
"Id.
ACTIONS FOR INFRINGEMENTS OF PATENTS. 757
both parties claim the right to manufacture is sufficient evidence
of utility. 1
4. Patentee the original and first inventor.'] The patent is
sufficient prima facie evidence that the patentee was the original
and first inventor, 2 but is not conclusive.** This presumption, in
the absence of the application for the patent, extends back onlj
to the date of the patent. 4 If the applica ion is produced, the
presumption extends back to the time when the application was
filed, and no further. 5 To show that the invention was prior to
the filing of his original application, he must prove, by competent
and sufficient evidence, both that he made the invention at the
time suggested, and that he reduced it to practice as an operative
machine." The plaintiff may prove his own conversations and
declarations made during the progress of his invention, to show
its date and character, these being regarded as part of the res
gestm of the process, and an assertion of claim, which he may
prove in his own favor. 7
5. Specifications: Construction: Extent of claim. ~\ The pat-
ent is prima facie? if not conclusive, evidence that the specifica-
tion, when delivered, was accompanied with such drawings and
written references thereto as were required by the statute, 9 and
that the specification contained a description, in such full, clear
and. exact terms as will enable any one skilled in the art to which
it appertains, to put it in practice from the description contained
in the specification. 10 A certified copy of the drawings deposited,
and references thereon, is, with the patent, prima facie evidence
of the particulars of the invention patented. 11 The models and
drawings accompanying the application for a patent, and referred
to in the specification, constitute a part of it, and may be resorted
to to aid the description, and to distinguish the thing patented. 18
1 Middletown Tool Co. v. Judd, 3 Fish. Pat. Cas. 141, 144.
* Seymour v. Osborne, 11 Wall. 616, 538; Smith y. Goodyear Dental Vulcanite
Company, 93 U. S. (3 Otto), 486.
8 Union Suffar Refinery v. Matthiessen, 2 Fish. Pat. Cas. 600, 607.
* Wing v. Richardson, 2 Fi?h. Pat. Cas. 635, 637.
6 Id. ; White v. Allen, 2 Fish. Pat. Cas. 440, 444.
6 Johnson v. Root, 2 Cliff. 116, s. c. 2 Fish. Pat. Cas. 291, 297; Jones v. Sewall, 6
Fish. Pat. Cas. 343, 368.
1 Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. 448, 462. Compare Pen-
nock v. Dialogue, 4 Wash. C. Ct. 538; Evans v. Hettich, 3 Wash. 408, affi'd in 7
Wheat. 453.
8 Winaus v. N. Y. <fe Erie R. R. Co. 1 Fish. Pat. Cas. 213, 214.
9 See pp. 755, n. 6, and 769, n. 5.
10 Poppenhusen v. N. Y. Gutta Percha Co, 2 Id. 62, 67.
11 Winans v. N. Y. <fc Erie R. R. Co. 1 Id. 213, 214.
" 1 Abb. U. S. Pr. 809. Curtis says, that where the invention is (it all compli-
cated, or terms of art or science are made use of, requiring the exercise of technical
knowledge to determine whether the specification is sufficient, it is at least advisable,
if not necessary, for the plaintiff, in opening his case, to give some evidence that his
specification can be applied by tlioee to whom the law supposes it to be addressed.
Slight evidence of sufficiency is nil that is necessary to be offered at first in order to
make it incumbent on the defendant to falsify the specification. Curt, on Pat. 630.
758 ACTIONS FOR INFRINGEMENTS OF PATENTS.
Inadequacy of specification cannot be proved unless alleged. 1 The
correspondence between the office and the patentee is sometimes
referred to for the purposes of construction ; 8 but neither such
correspondence, nor the proceedings in the patent office, are ad-
missible to enlarge, diminish or vary the language of the claim. 3
The testimony of qualified witnesses, 4 and inspection of the old
and new machine, and the models, 5 are competent on the question
of sufficiency of the specification. The state of the art is com-
petent evidence in the construction of an ambiguous claim. 6 But
evidence introduced for this purpose can have no bearing on a
question not in issue. 7 The opinions of scientific witnesses, that
a particular means which might be used to carry out the general
directions of a specification, would succeed, are competent with-
out showing that that means had actually been tried and had suc-
ceeded. 8 The question which should be propounded to them, in
cases where there is a recognized class of practical workmen who
would be called upon to apply the directions of the specification,
is whether a person of that class, of ordinary skill, could practice
the invention from, those directions. 9
6. Title.'] A certified copy of an assignment is prima fade
evidence of the genuineness of the original, 10 without accounting
for the original, or proving execution." A patent on its face,
issued to an assignee, is sufficient evidence 01 the assignee's title.
7. Extension: Renewal: Reissue.] Extension, 1 ? renewal, 13 and
reissue, 14 are each prima fade or conclusive evidence of its own
validity. In an action for the infringement of a reissued patent,
plaintiff is not bound to produce the original, 15 and if he does not,
defendant must put it in evidence if he desires to object that the
reissue was not for the same invention. 16 The presumption aris-
1 Rubber Co. v. Goodyear, 9 Wall. 788, 793.
2 Pike v. Potter, 3 Fish. Pat. Cas. 55 ; Decker v. Grote, 6 Id. 143, 150 ; Pettibone
v. Derringer, 4 Wash. C. Ct. 215. Contra, Westlake v. Cartter, 6 Fish, Pat. Cas.
619, 521.
3 CUFFOBD, J., Goodyear Dental Vulcanite Co. v. Gardner, 5 Fish. Pat. Caa. 224,
227.
4 Washburn v. Gould, 8 Story C. Ct 122, 138. As a general rule, the proper wit-
nesses to determine on the sufficiency of a specification are practical workmen of or-
dinary skill in the particular branch of industry to which the patent relates, because
it is to them that the specification is supposed to be addressed. Curt, on Pat. 631.
6 1 Abb. U. S. Pr. 809.
6 Rubber-Coated, <fcc. Co. v. Welling, 97 U. S. (7 Otto), 7, 8.
7 Middletown Tool Co. v. Judd, 3 Fish. Pat. Cas. 141, 144.
8 Curt, on Pat. 642, 481.
Id. 636, 481.
10 Lee v. Blandy, 1 Bond, 861, s. c. 2 Fish. Pat. Cas. 89.
11 Id. ; Brooks v. Jenkins, 3 McLean, 432, 436.
12 Clum v. Brewer, 2 Curt. C. Ct. 506.
13 Allen v. Blunt, 2 Woodb. <fc M. 121, 138; Stimpson v. "Westchester R. R. Co. 4
How. U. S. 880.
14 Seymour v. Osborne, 11 Wall. 516, 641.
15 Id. 646.
"Id,
ACTIONS FOR INFRINGEMENTS OF PATENTS. 759
ing from the decision of the commissioner of patents, granting
the reissue of letters patent, that they are for the same invention
which was described in the specification of the original patent, is
not conclusive, but can only be overcome by clearly showing,
from a comparison of the original specification with that of the
reissue, that the former does not substantially describe \vhat is
described and claimed in the latter ; * and on this question the
testimony of experts is competent. 2 Nor is it conclusive on the
question of fraud. 3 It is prima facie evidence that there had
been no abandonment. 4 The reissue is also prima facie 5 evi-
dence that everything necessary to justify the commissioner in
granting the reissue had been produced before the grant was
made. 6 A recital that the necessary oaths were taken by the ap-
plicants is conclusive. 7 A recital that an assignment had been
made to the one receiving the reissue, is prima facie evidence of
the right of the assignee. 8
8. State of the art."] Evidence of the state of the art is ad-
missible in actions at law, under the general issue, without a special
notice, and in equity cases, without any averment in the answer
touching the subject. It consists of proof of what was old and
in general use at the time of the alleged invention. It is received
for three purposes, and none other, to show what was then old ;
to distinguish what was new ; and to aid the court in the con-
struction of the patent. 9 The court can take judicial notice of a
device in common knowledge arid use of people throughout the
country, such as the ice-cream freezer, and give it the same
effect as if it had been alleged and proved. 10
9. Infringement.'] The burden of proving infringement is on
the plaintiff." The declarations and conduct of a workman made
while manufacturing the infringing article, in the course of his
employment, ar*e competent against the employer to show in-
1 Smith v. Goodyear Dental Vulcanite Co. 93 U. S. (3 Otto), 486. If this appear
it is void, for excess of authority. Russell v. Dodge, 93 U. S. (3 Otto), 460.
1 Seymour v. Osborne, 1 1 Wall. 516.
3 Goodyear v. Berry, 3 Fish. Pat. Cas. 439, 447 ; Swift v. Whisen, 3 Id. 343, 851.
4 Hoffheins v. Brandt, 3 Fish. Pat. Cas. 218, 239.
B If not conclusive. FIELD, J., in Russell v. Dodge (above! See p. 755, n. 6.
6 Hoffheins v. Brandt, 3 Fish. Pat. Cas. 218, 219. According to Blake v. Staf-
ford, 3 Fish. Pat. Cas. 294, 300, and House v. Young, Id. 335, 338, the reissue of a
patent is at law conclusive evidence of its own validity, except as against fraud and
collusion ; irregularity or excess of authority, apparent on the face of the patent ;
and clear repugnance.
1 Seymour v. Osborne, 11 Wall. 516, 541.
8 Hofflieins v. Brandt, 3 Fish. Pat. Cas. 218, 241 ; Middletown Tool Co. v. Judd,
8 Fish. Pat. Cas. 141.
9 Brown v. Piper, 91 U. S. (1 Otto), 37, 41 ; Vance v. Campbell, 1 Black, 427, 430.
But a prior pp.tent, introduced without notice, to show the state of the art, cannot
avail as evidence to anticipate the patented invention. Am. Saddle Co. v. Hogg, 5
Fish. Pat. Cas. 353.
10 Brown v. Piper (above).
11 Hudson v. Draper, 5 Fish. Pat. Caa. 256, 259.
760 ACTIONS FOR INFRINGEMENTS OF PATENTS.
fringement. 1 Similarity of the articles produced, without other
evidence of similarity of process, is not alone sufficient evidence
of infringement of process. 2 If the alleged infringement is of a
combination only, and use of a part only is shown, evidence that
the other part claimed is immaterial, is not competent. 8
Testimony of experts is not competent directly to the question
whether there has been an infringement. On this question their
testimony is admissible for two purposes : 1. To point out and
explain the points of actual resemblance or difference ; 2. To
state, as matter of opinion, whether those resemblances or differ-
ences are material ; whether they are important or unimportant ;
whether the changes introduced are merely the substitution of
one mechanical or chemical equivalent for another, or whether
they constitute a real change of structure or composition, affect-
ing the substance of the invention. 4
10. Witnesses : Models.'] The competency of witnesses de-
pends on the laws of the State in which the court is held. 5
The testimony of experts is competent to show the state of
the art at a given time, 6 to explain the meaning of terms of art, 7
to explain the drawings, models and machines exhibited, and their
operation, and to point out the identity, resemblance or difference
of the mechanical device involved, 8 but not to tell what the patent
is for, nor whether it has been violated. 9 The machines them-
selves, or the models showing them, are the most cogent kind of
evidence. 10
11. Admissions and declarations.] Admissions and declara-
tions by the assignor of a patent made after transfer, are not
competent against those claiming under him. 11
12. Certified copies.'] Written or printed copies of any rec-
ords, books, papers, or drawings belonging to the Patent Office,
and of letters patent, authenticated by the seal and certified by
the commissioner or acting* commissioner, are evidence in all
cases wherein the originals could be evidence. 12 Copies of the
1 Aiken v. Bemis, 3 Woodb. <fe M. 348.
* Curt, on Pat. 414, 313. But see Waterbury Brass Co. v. N. Y. <fc Brooklyn
Brass Co. 3 Fis'i. Pat. Cas. 43, 50.
3 Coolidge v. McCone, 2 Sawy. 571.
4 Curt on Pat. 648, 489.
6 U. S. R. S. 858. Except that there can be no exclusion for color, and that
the incompetency to testify, against executors, <fec., is specially regulated by the
statute quoted at p. 70 of this vol.
6 Paragraph 8.
7 See pp. 484, 485 of this vol.
8 Corning v. Burden. 12 How. U. S. 252; Hudson v. Draper, 5 Fish. Pat. Cas.
266, 259 ; and see paragraphs 2, 5, 7 and 9.
9 Waterbury Brass Co. v. N. "
Y. <t Brooklyn Brass Co. 3 Fish. Pat. Cas. 43, 54.
10 Morris v. Barrett, 1 Fish. Pat. Cas. 461, 463.
11 Wilson v. Simpson, 9 How. U. S. 109 ; Many v. Jagger, 1 Blatchf. 372 ; Page
11 of this voL
18 R. S. U. S. 892.
ACTIONS FOR INFRINGEMENTS OP PATENTS. 761
specifications and drawings of foreign letters patent, certified as
above, are prima, facie evidence of the fact of the granting
thereof, and of the date and contents. 1 The printed copies of
specifications and drawings of patents, which the commissioner
of patents is authorized to print for gratuitous distribution, and
to deposit in the capitals of the States and Territories, and in the
clerk's ofiices of the District Courts, are, when certified by him
and authenticated by the seal of his office, competent evidence of
all matters therein contained. 2 As to- the genuineness of the
original, the certified copy is presumptive evidence. 3 As to the
accuracy of the copy, it is conclusive. 4 subject to correction by
producing another certified copy, 5 with corroborative proof of
its superior correctness. The court will take judicial notice as to
who was commissioner, 6 or acting commissioner. 7
13. Damages."] A plaintiff seeking to recover more than
nominal damages must show his damages by evidence. 8 The law
does not presume that sales made by the infringer would other-
wise have been made by the patentee.
14. Defenses: General issue: Burden of proof ^\ The enu-
meration of defenses in the statute does not exclude evidence of
other defenses not mentioned, such as that defendant has a prior
patent ; 10 or a license from the patentee ; u or that he never did
the acts charged j 12 or that there is a substantial difference in their
devices ; 13 or that the patentee is an alien. 14 These may be given
in evidence 'at common law under the general issue.
Plaintiff's patent, title, &c., having been proved, the burden
is on a defendant setting up insufficient specification; 15 or prior
description in a printed publication; 16 or prior use or sale; 17 or
abandonment, 18 to establish it affirmatively.
1 R. S. U. S. 893.
I Id. 894.
3 Parker v. Haworth, 4 McLean, 370.
Md.
5 Brooks v. Jenkins, 3 McLean, 432, 434 ; and see Woodworth v. Hall, 1 Woodb.
<fc M. 248, 260 ; Emerson v. Hogg, 2 Blatchf. 1, 12.
6 York & Maryland R. R. Co. v. Winans. 17 How. U. S. 30.
' Woodworth v. Hall, 1 Woodb. fe M. 248, 389.
8 Phi'.p v. Nock, 17 Wall. 460, 462 ; Blake v. Robertson, 94 U. S. (4 Otto), 728.
Seymour v. McCormick, 16 How. IT. S. 480, rev'g 2 Blatchf. 240. As to the
measure of damages, see Burdell v. Denig, 92 U. S. (2 Otto), 716, and cases cited;
Birdsall v. Coolid^e, 93 Id. 64, and cases cited ; Cawood Patent, 94 Id. 695, and cases
cited ; Am. Law Review, vol. xiii. No. 1, p. 1.
10 Gray v. James, Pet. C. Ct. 394, 400; Corning v. Burden, 15 How. U. S. 252.
II Whittemore v. Cotter, 1 Gall. 429, 435.
18 Id.
13 Evans v. Hettich, 7 "Wheat. 453, 469.
u Id. ; Kneass v. Schuylkill Bank, 4 Wash. C. Ct. 9 In case of this defense the
bnrden is on defendant to show the neglect or refusal to sell Tatham v. Lowber, 2
Blatchf. 49.
15 Brooks v. Jenkins, 3 McLean, 432, 445, 447.
l Cohn v. U. S. Corset Co. 12 Blatchf. 225, 231.
11 Am. Hide & Leather, Ac. Co. v. Am. Tool <fe Machine Co. 5 Fish. Pat Cas. 284.
18 id. ; Johusen v. Fassman, 1 Wood, 138.
762 ACTIONS FOR INFRINGEMENTS OF PATENTS.
15. title / license.'] One who relies on an equitable title
against the legal title, has the burden of alleging and proving it. 1
In the absence of anything to indicate the contrary, a license is
presumed to relate only to the existing right. 2 Admissions of
the owner to defendant, that a third person granting defendant a
license had the right to do so, will estop the owner as to subse-
quent acts done in reliance on these admissions and before notice
of withdrawal. 3 If the only issues are on the validity of plaintiff's
patent and on infringement, the fact that the defendant is the
licensee of the owner of another patent, and that his machine is
constructed in accordance with that patent, is irrelevant. 4
16. defendant's patent.] If defendant has a patent for the
alleged infringement, he may put it in evidence ; and it raises the
general presumptions in its own favor, already stated in treat-
ing of plaintiff's evidence; 5 but if later than plaintiff's, the pat-
ent does not overcome the presumption of novelty, originality
and priority, raised by the earlier. 6
On a question of interference, the subsequent patent granted
by the same official experts, is prima facie evidence that the lat-
ter does not interfere with the former. 7 A comparison of the
things or machines, 8 and the testimony of experts, 9 are competent ;
and the question is one of evidence lor the jury. 10 Evidence of
the relative superiority of defendant's invention is not competent
except for the purpose of showing a substantial difference. 11
17. the statute. 1 *] " In any action for infringement, the de-
fendant may plead the general issue, and, having given notice in
writing 13 to the plaintiff or his attorney, thirty days before, 14 may
prove on trial any one or more of the following special matters :
" First. That for the purpose of deceiving the public, the de-
scription and specification filed by the patentee in the Patent
Office was made to contain less than the whole truth relative to
his invention or discovery, or more than is necessary to produce
the desired effect ; or,
I Curt, on Pat. 625, 472 ; Gibson T. Cook, 2 Blatchf. 144, 151. If he relics on
plaintiffs contract he must prove performance of conditions precedent. Brooks v.
Stolley, 2 McLean, 623.
* Gibson v. Cook, 2 Blatchf. 144.
8 Gear v. Grosvenor, 6 Fish. Pat. Gas. 314, 323.
4 Blanchard v. Putnam, 8 Wall. 420, 426. Otherwise on motion for injunction.
8 Corning v. Burden, 15 How. U. S. 252, 271.
6 Goodyear Dental Vulc. Co. v. Gardner, 5 Fish. Pat. Cas. 224, 229.
7 Westlake v. Cartter, 6 Fish. Pat. Cas. 519, 526, 527.
8 Evans v. Hettich, 1 Wheat. 453, 469.
9 Kischoff v. Wethered, 9 Wall. 812, 814, and authorities cited.
10 Id.
II Alden v. Dewey, 1 Story C. Ct. 336. s. c. 3 Law Rep. 383. As to what is a sub-
stantial difference, see Seymour v. Osborne, 11 Wall. 516, 556.
18 U. S. R. S. p. 952, 4920.
13 The burden is on defendant to show that the required notice was given. Blanch-
ard v. Putnam, 8 Wall. 420 ; Phila. <fc Trenton Railroad Co. v. Stimpson, 14 Pet. 448.
14 In the eighth circuit, the first day of term is regarded as the day of trial within
this rula. Westlake v. Cartter, 6 Fish. Pat. Cas. 519, 521.
ACTIONS FOR INFRINGEMENTS OF PATENTS. 763
"Second. That he had surreptitiously or unjustly obtained
the patent for that which was in fact invented by another, who
was using reasonable diligence in adapting and perfecting the
same; or,
" Third. That it had been patented or described in some
printed publication prior to his supposed invention or discovery
thereof; or,
" fourth. That he was not the original or first inventor or
discoverer of any material and substantial part of the thing pat-
ented ; or,
" Fifth. That it had been in public use or on sale in this coun-
try for more than two years before his application for a patent,
or had been abandoned to the public.
" And in notices as to proof of previous invention, knowledge,
or use of the thing patented, the defendant shall state the names
of patentees and the dates of their patents, and when granted,
and the names and residences of the persons alleged to have in-
vented, or to have had the prior knowledge of the thing patented,
and where and by whom it had been used ; and if any one or
more of the special matters alleged shall be found for the defend-
ant, judgment shall be rendered for him, with costs.
"And the like defenses may be pleaded in any suit in equity
for relief against an alleged infringement; and proofs o the
same may be given upon like notice in the answer of the defend-
ant, and with the like effect."
18. fraud.~\ Fraud in obtaining the patent is not admissi-
ble in a collateral proceeding, except in a case within U. S. R. S.
4920, 1 or in equity in a case within 49 18. 2
19. description in printed publication.'] The publication
may be proved orally or by the production of the book. 3 But
the work is evidence only of the fact of description contained in
it. Its statements are not evidence, for instance, of continuous
use. 4 If the publication describes the thing sufficiently to show
its structure, the existence of the thing as described need not be
proved. 5
20. prior knowledge or use.] The claim of original inven-
1 Paragraph 17; and see Rubber Co. v. Goodyear, 9 Wall. 788, 797; Gear v. Gros-
venor, 6 Fish. Pat. Cas. 314, 316.
8 Rubber Co. v. Goodyear (above); Gear v. Grosrenor (above).
8 Allen v. Hunter, 6 McLean, 303, 314. As to the sufficiency of a description in
a prior printed publication for this purpose, compare Seymour v. Osborne, 1 1 Wall.
616, 555 ; Colm v. U. S. Corset Co. 93 U. S. (3 Otto), 866, 377.
4 Seymour v. McCormick, 19 How. U. S. 96. And evidence that it was in use at a
later period will not alone sustain a finding that it had been in continuous use since
the time of the description. Id. As to what is evidence of publication, for this purpose,
see Plimpton v. Malcolmson, 3 Chan. Div. 631, 8. C. 18 Monk's Eng. 649; Brooks v.
Norcross, 2 Fish. Pat. Cas. 661. As to notice of publication. Silsby v. Foote, 14
How. U. S. 218, affi'g 1 Blatchf. 445.
8 Cohn v. U. S. Corset Co. 12 Blatchf. 226, 234.
764 ACTIONS FOR INFRINGEMENTS OF PATENTS.
tion is not defeated by showing the construction of the improve-
ment before the patent issued ; but it must be shown that the
construction preceded the invention of the patentee ; that is, was
before the conception of the improvement was applied in prac-
tice. 1 Evidence that the thing existed is not enough, without
evidence to show that it was not of plaintiffs invention. 8 Evi-
dence of prior existence by the invention of some one other than
the patentee, is enough without evidence that the thing was ever
used. 8 Prior knowledge and use, though by but a single indi-
vidual, is enough. 4 A prior patent, describing the thing, is com-
petent without explanation of the cancellation. 5 The omission
to produce the alleged prior device corroborates a denial of its
existence. 6 Evidence that plaintiff had admitted the prior exist-
ence of a device of the same general nature is not sufficient, un-
less the admission excluded any field of invention within which
his patent can be sustained. 7 Every reasonable doubt should be
resolved against an infringer setting up that the patentee was not
the original and first inventor. 8 One witness is enough to sustain
a finding of priority. 9 The court ought to be fully convinced
by a clear preponderance of evidence. 10
21. public use or sale before application ; abandonment.']
Public use, &c., if relied on must be alleged. Defendant must
show that the invention, as finally perfected, was on sale and in
public use more than two years before application. 11
Abandonment if relied on must be alleged. Distinct evi-
dence of it is necessary ; the presumption being that an inventor of
a machine would not give it to the world. The inventor is not
estopped by licensing a few persons to use his invention, to ascer
tain its utility, or by any such acts of peculiar indulgence and
use, as may fairly consist with the clear intention to hold the
privilege ; ^ but, if clear acts of abandonment are shown, the men-
1 Brodie v. Ophir Silver Mining Co. 5 Sawy. 608, s. c. 4 Fish. Pat Gas. 137.
8 Treadwell v. Bladen, 4 Wash. C. Ct. 703.
3 Parker v. Ferguson, 1 Blatchf. 407. But failure to prove general use corrobo-
rates a denial Sayles v. Chic. & N. W. R. R. Co. 5 Fish. Pat. Cns. 584.
4 Coffin v. Ogden, 18 Wall. 124, and cases cited. So held under Act of 1838.
6 Delano v. Scott, Gi!p. 489..
6 Chase v. Wesson, 6 Fish. Pat. Cas. 517 ; Blake v. Eagle Works Mfg. Co. 5 Id. 591.
7 Turrill v. Mich. So., <fcc. R. R. Co. 1 Wall. 491, 501. Defendant's circulars, an-
nouncing the device as new, rcay countervail oral testimony to earlier use. Masury
Y. Tiemann, 5 Fish. Pat. Cas. 524.
8 Coffin v. Ogden, 18 Wall. 124 ; Washburn v. Gould, 3 Story C. Ct 122, 142.
Whitney v. Emmett, Baldw. 303, 310.
10 Gear v. Grosvenor, 6 Fish. Pat. Cas. 314.
11 Agawam Co. v. Jordan, 7 Wall. 583, 609.
12 1 Abb. U. S. Pr. 324 [537] ; Hovey v. Henry, 3 West. Law J. 155 ; Pitts v.
Hall, 2 Blatchf. 229. Evidence that the inventor of a pavement frequently visited
and examined an experimental block, laid to test its durability, and inquired how
people liked it, and stated that this was his first experiment with it ; that the place
where it was laid was well calculated to give it a thorough a.ld severe trial ; and that
it was laid at hia own expense, is, when corroborated, sufficient to show that it was
ACTIONS FOR INFRINGEMENTS OF PATENTS. 765
tal intent is not material. 1 Mere delay, which does not amount
to gross laches, is not sufficient. 8
Abandonment of an invention never patented, may be proved
by showing that the inventor, after constructing it and before
reducing it to practice, broke it up as something requiring more
thought and experiment, and laid the parts aside as incomplete,
provided it appeafs that those acts were done without any defi-
nite intention of resuming his experiments and of restoring the
machine, with a view to apply for letters patent. 3 Oral declara-
tions by the owner of a patent, of intention to abandon or dedi-
cate to the public, are competent, but not alone sufficient evidence
of abandonment. 4
Abandonment, whether before 5 or after 8 the issue of patent,
should be pleaded if relied on.
22. requisites of the statutory notice or answer. ~] Substan-
tial compliance with the requirement of notice is enforced. 7 A
notice that fairly puts an adversary in the way that he may ascer-
tain all that is necessary to his defense or answer, is enough to
admit the evidence. 8
23. plaintiff's failure to mark.'] If failure to mark is re-
lied on, it must appear that the plaintiffs have made or sold arti-
cles under the patent, and have failed to mark them as required.
This would throw on the plaintiffs, in an action at law for dam-
ages, the burden of showing that before suit was brought, the de-
fendants were duly notified that they were infringing the patents,
intended as an experiment to test its usefulness and durability merely, and not an
abandonment to public use. Elizabeth v. Pavement Co. 97 U. S. (7 Otto), 126, 134,
135.
1 1 Abb. U. S. Pr. 324 [537]. Testimony on tbe trial, that he never did intend to
abandon it, is entitled to very little consideration, in view of undisputed acts which
were very cogent evidence of abandonment. Bevin v. East Hampton Bell Co. 5 Fish.
Pat. Cas. 23, 29.
3 Johnsen v. Fassman, 1 Wood, 138.
3 Seymour v. Osborne, 11 Wall. 616, 552; Parkhurst v. Kinsman, 1 Blatchf. 488,
494; affirmed on "other points, 18 How. U. S. 289.
* Pitts v. Hall, 2 Blatchf. 229.
8 Agawam Co.v. Jordun 7 Wall. 609; Union Paper Bag Co. T. Newell,! 1 Blatchf.549.
4 Wyeth v. Stone, 1 Story C. Ct. 273, 8. c. 4 Law Rep. 64.
7 Thus evidence that the thing was first invented by another person, admitted
under an unsuccessful averment of fraud upon such person, cannot avail as proof that
the complainant waa not the original and first inventor under a general denial of the*
allegation that he was, and without notice. Agawam Co. v. Jordan, 7 Well. 683, 696.
b Wise v. Allis, 9 Wall. 737, 740; Smith v. Frazer, 6 Fish. Pat. Cas. 643, 647.
As to requisite notice of the names, <fec., of witnesses, see Treadwell v. Bladen, 4 Wash.
C. Ct. 7"3; Many v. Jagger. 1 Blatchf. 372; Evans v. Kremer, Pet. C. Ct 215;
Blanchard v. Putnam, 8 Wall. 420; Decker v. Grote, 6 Fish. Pat. Cas. 143, 14 1;
Jmlson v. Cope, 1 Id. 615, 617; Union Paper Bag Co. v. Newvll, 11 Blatchf. 649;
Collendor v. Griffith, 11 Id. 212 ; Am. Hide <fe Leather Spl. <fe Dr. Mach. Co. v. Am.
Tool <fe Mach. Co. 5 Fish. Pat. Cas. 284, 305 ; Wilton v. R.iilroads, 1 Wall. Jr. C. Ct
192. As to places of use, see Evans v. Eaton, 3 Wheat. 454; Dixon v. Moyer, 4
Wash. C. Ct. 68. Patents may be given in evidence to show the state of the art,
without notice, but printed publications cannot. Westlake v. Cartter, 6 Fish. Pat.
Cas. 619.
766 ACTIONS FOR INFRINGEMENTS OF COPYRIGHTS.
and that they continued, after such notice, to make or vend the
article patented. 1
II. COPYBIGHTS.
. 24. Plaintiff's right.'] The burden is on plaintiff to prove
both his copyright 2 and the infringement. 8 A -duly authenticated
certificate of the deposit of title, is prima facie evidence of de-
posit in due form. 4 Sale of a book \& prima facie evidence of pub-
lication. 5 Assignment of the right to copy a picture may be
proved by oral evidence. 6
25. Infringement.'] A general allegation of infringement ad-
mits evidence of the parts which are piratical. 7 Substantial
identity or striking resemblance will sustain a presumption of
unlawful copying. 8 Occurrence of the same inaccuracies in the
two works is evidence of copying; 9 and if such passages are
numerous, they will sustain the further inference that other pas-
sages which are the same with passages in the original book, were
likewise copied. 10 Resemblances striking enough to warrant the
inference of piracy, may cast the burden on defendant to show
that they were not the result of copying. 11 Defendant's evidence
that the passages in question are to be found in other works than
the plaintiff's, is not enough, without showing that he actually
got the matter from the common source, 12 unless the other works
were prior to plaintiff's ; nor even then if the method and course
of selection in defendant's work resembles that of plaintiffs. If
a clear infringement is shown, innocent intent is not material. 13
Where the defense is delay or acquiescence, the burden of
showing plaintiffs knowledge of the piratical publication is on
defendant. 14 So, where the defense is that the common law right
to a dramatic composition has been lost by publication, the bur-
den of showing that the publication was authorized, is on the
defendants. 15
1 Goodyear v. Allyn, 3 Fish. Pat. Cas. 374, 376.
9 Jollie v. Jaques, 1 Blatchf. 627 ; Drone on Copyr. 498, and cases cited. Under
a completed entry. Keene v. Wheatley, 9 Am. Law Reg. 45.
8 Drone on Copyr. 478.
4 Roberts v. Meyers, 13 Law Rep. N. S. 396. As to certified copies, see para-
graph 12.
6 Raker v. Taylor, 2 Blatchf. 82.
Parton v. Prang, 3 Cliff. 537, s. c. 5 Am. L. T. R. 105.
7 Drone on Copvr. 512, 513.
8 Id. 400, and cases cited.
9 Curt, on Copyr. 254, 255, citing Longman v. Winchester, 16 Ves. 269; see, also,
Drone on Copyr. 428.
10 Curt, on Copyr. 255.
11 Drone on Copyr. 430.
12 Id. 431.
13 2 Abb. Nat. Dig. 6 ; Webb v. Powers, 2 Woodb. <feM. 512, 524 ; Millett v. Snow-
den, 1 West. L. J. 240 ; Drone on Copyr. 401-3. Mode of proof of infringement of
drama. Boucicault v. Fox, 6 Blatchf. 87.
14 Drone on Copyr. 505 ; Cfiappell v. Sheard, 1 Jur. N. S. 997.
16 Drone on Copyr. 578, 579 ; Boucicault v. Wood, 2 Biss. 34.
CHAPTER LYI.
ACTIONS FOR VARIOUS CAUSES CREATED OR DEFINED BY STATUTE.
I. MECHANIC'S LIEN.
1. Mode of proof.
II. INDIVIDUAL LIABILITY OF STOCKHOLDERS
AND TRUSTEES OF CORPORATIONS AND
JOINT STOCK COMPANIES.
2. Incorporation : Bankruptcy.
3. Defendant a stockholder.
4. a director or trustee.
III. PENALTIES.
6. Statute.
6. Municipal ordinance.
7. Violation.
8. Excepted cases.
9. Knowledge of the law.
10. of facts.
11. Knowing or intentional violation.
12. Admissions and declarations.
13. Character.
14. Cogency of proof.
15. Obstructing highways.
16. Selling liquors.
IV. ACTIONS (UNDER CIVIL DAMAGE LAW)
FOR CAUSING INTOXICATION.
17. Ground of action.
18. Order of proof.
19. Relation of plaintiff to the drunk-
ard.
20. Sale or gift of liquor.
21. Liability of salesman.
IV. ACTIONS FOR CAUSING INTOXICATIOB
continued.
22. of principal.
23. Connecting defendant with sales-
man.
24. with business.
25. Connecting sale with intoxication.
26. Character of liquor.
27. Knowledge and intent of seller.
28. Fact of intoxication.
29. Liability of owner or lessor.
80. Contributory negligence.
31. Actual damages.
82. to the person.
83. to property.
84. to means of support.
85. Exemplary damages.
36. Defenses; limitations.
87. sale for medicine.
38. other sellers contributing to In-
jury.-
39. plaintiff's connivance or negli-
gence.
40. former adjudication: satisfaction.
V. PROCEEDINGS IN REM FOR FORFEITURE.
41. Burden of proof.
42. Knowledge and notice.
43. Admissions and declarations.
44. Cogency of proof.
VL ACTIONS ON RECOGNIZANCES.
45. Mode of proof.
I. MECHANIC'S LIEN.
1. Mode of proof ^\ The essential facts, and the burden of
proof, depend upon the statute. 1 The notice of lien is not proved
by the county clerk's certified copy ; 2 but his certificate proves
the filing. Mortgagees and others acquiring interest in property
against which the lien is claimed, have a right to call for strict
proof of all that is essential to the creation of the lien ; and this
1 For the mode of proving a right of action for goods or services, see Chapters
XVI, XIX.
* Unless the statute so provides. Sampson v. Buffalo, N. Y. & Phila. R. R. Co. 4
Supm. Ct. (T. & C.) 600.
[707]
768 ACTIONS FOR CAUSES DEFINED BY STATUTE.
includes proof of the commencement of the work, of its character
and of its completion. 1
II. INDIVIDUAL LIABILITY OF STOCKHOLDERS AND TRUSTEES OF CORPO-
RATIONS AND JOINT STOCK COMPANIES.
2. Incorporation : Bankruptcy^ The incorporation may he
proved in the manner stated in Chapter III. Proof of a certifi-
cate of organization in which defendant joined, duly verified and
filed, and of user under it by acts in which he joined, is conclusive
evidence of incorporation as against the defendant. 2 A general
averment of dissolution admits evidence of the grounds of dis-
solution. 8
Proof of 'bankruptcy r , or the appointment of and transfer of
all assets to a receiver, and inadequacy of assets, 4 dispenses with
A statutory requirement of prior action against the company. 5
3. Defendant a stockholder.] A charter duly proved is prima
facie evidence of the membership of one named therein as a mem-
ber at the commencement of the corporate existence. The stock
subscription paper, 6 shown to have been signed by defendant, 7 or
the book containing a list of stockholders, kept under the statute, 8
is competent. In the absence of such a statute, the corporation
books are not, alone, competent evidence against a stranger to
prove him a stockholder. 9 Active participation as a stockholder
in corporate meetings and transactions is presumptive evidence
that lie was a stockholder at that time. 10 Evidence that defendant
was a trustee is presumptive evidence that he was a stockholder. 11
One who has purchased stock, and suffered his name to appear
on the books of the association, is estopped from impeaching his
own title. 12 Defendant may show an apparently absolute assign-
ment of stock to have been made and taken as collateral only. 13
The burden is on plaintiff to show that the debt was contracted
by the corporation. 14 Judgment against the company is not even
prima facie evidence of the indebtedness as against the stock-
1 Davia v. Alvord, 94 U. S. (4 Otto), 645, 647.
s Priest v. Essex Hat Mf<r. Co. 115 Mass. 380.
8 Thomps. Liab. of St. 379, 312.
4 Id. 388, 321-3.
4 Id. 384, 318. For the mode of proving exhaustion of remedy, see p. 736 of
this vol.
8 Partridge v. Badger, 25 Barb. 146, 171.
1 Corse v. Sanfonl^ 14 Iowa, 235, 239.
8 Johnson v. Underbill, 52 N. Y. 203 ; Shellington v. Howland, 53 N. Y. 371.
8 Thomps. Liab. of St. 430, 8 370.
10 Id. 197, 165.
11 Butterfield v. Radde, 38 Super. Ct. (J. <fc S.) 44, s. o. 47 How. Pr. 535.
1S Thomps. Liab. of St. 194, 162 ; 202, 171.
13 McMahon v. Macy, 51 N. Y. 155.
14 Dabney v. Stevens, 10 Abb. Pr. N. S. 39; Strong v. Wheaton, 38 Barb. 616.
INDIVIDUAL LIABILITY OF STOCKHOLDERS, Ac. 769
holder. 1 For this purpose, the transactions between the corpora-
tion and their creditor are competent ; 2 and the usual presump-
tion supporting the validity of corporate contracts applies. 3
To recover against the members of a joint stock company,
after recovery and execution unsatisfied against the president or
treasurer under the statute, 4 plaintiff must prove his original cause
of action, 5 and also the judgment; and the issue and return of
execution unsatisfied. 6 Those proceedings, although against a
person named as president or treasurer under the statute, are
competent, if it appears from the whole record that it was the
association who was the party. 7 The judgment against the asso-
ciation does not preclude the defendants from contesting the
original liability. 8
4. defendant a director or trustee^ Production of the cer-
tificate or incorporation, duly filed and certified, naming defend-
ants as trustees, with evidence that the company acted under the
corporate name ; that they became indebted to plaintiff ; and that
no statement was filed as required by the act, makes out a priina
facie case. 9 It is enough to show that defendant was a trustee
de facto, under color of title to an otherwise vacant office. 10
Election to office is not enough, even though it be re-election,
after having acted as director in the previous year. Assent must
be shown by some positive act. 11 To charge with holding over,
evidence of an act as director, after expiration of term, is neces-
sary. 12 [Resignation may be proved by parol, without proof of
1 This is the New York rule. McMahon v. Macy, 51 N. Y. 155, questioned in
Thomps. Liab. of St. 394, 330. Contra, Thayer v. New England Lithog. Co. 1 08 Mass.
523. In those jurisdictions where the judgment is competent, extrinsic evidence is
admissible, and may be necessary, to ascertain whether the cause of action was one
for which a stockholder is liable.
* Partridge v. Badger, 25 Barb. 146. As to the corporate books, see p. 46 of this
vol., and Hager v. Cleveland, 36 Md. 476.
3 Belmont v. Coleman, 21 N. Y. 96, affi'g 1 Bosw. 188. See p. 33 of this vol.
* N. Y. L. 1849, c. 258, 1 and 4 as amended by L. 1863, c. 153.
4 Witherhead v. Allen. 4 Abb. Ct. App. Dec. 628, reVg 28 Barb. 661. As to the
mode of proof, see Chapter II of this vol. A different ground of liability from that
alleged is a fatal variance. Allen v. Clark, 65 Barb. 563, 567.
8 As to execution, see p. 736 of this vol.
1 National Bk. of Schuylerville v. Lasher, 1 Supm. Ct. (T. A C.) 313.
8 Allen v. Clark (above).
9 Squires v. Brown, 22 How. Pr. 35, 42.
10 As where, after the term expired, there was no new election, and be did some
act as trustee thereafter. Deming v. Puleston, 55 N. Y. 655, affi'g 35 Super. Ct. ( J. A
S.) 309; Reed v. Keese, 60 N. Y. 616, affi'g 37 Super. Ct. (J. <fe S.) 269. Otherwise,
where there was legally no vacancy. Craw v. Easterly, 54 N. Y. 679, affi'g 4 Lans.
513.
11 Osborne, Ac. Co. v. Croome, 14 Hun, 164. Contra, Nimmons v. Tappan, 2
Sweeny, 652.
14 Reed v. Keese, 87 Super. Ct. (5 J. A S.) 269, affi'd in 60 N. Y. 616; Deming v.
Puleston, 35 Super. Ct. (J. A S.) 309, affi'd in 65 N. Y. 655. Evidence that defendant
was present and took part at a meeting of the board, is not enough, unless it appear
that he did so as a director. Deming v. Puleston, 83 Super. Ct. (J. A S.) 231, 238;
85 Id. 309 ; 65 N. Y. 655.
49
7/TO ACTIONS FOR CAUSES DEFINED BY STATUTE.
i
acceptance, unless the statute or by-laws are to the contrary. 1 On
the question whether the defendant was a director, testimony of
witnesses though without record, or the record, or the inspector's
certificate made at the time of election, are each competent. 2 A
judgment against the corporation is not competent. 8
Neglect to tile report in one year does not raise presumption
of neglect in subsequent years. 4
III. PENALTIES.
5. Statute."] The officially printed volume is presumptively
correct ; the original act, conclusive. 6
6. Municipal ordinance.'] Corporation ordinances must be
pleaded to be admissible, 6 and must be proved. 7 At common
law, the originals, or the books in which they are registered, are
the primary evidence. 8 By the New York statute, 9 " any act, or-
dinance, resolution, by-law, rule or proceeding of the common
council of a city, or of the board of trustees of an incorporated
village, or of a board of supervisors of any county within this
State, and any recital of occurrences taking place at the sessions
of any thereof, may be read in evidence on any trial, examination
or proceeding, whether civil or criminal, either from a copy
thereof certified by the clerk of the city, village, common council
or board of supervisors, or from a volume printed by authority of
the common council of the city, or board of supervisors of the
county, or of the board of trustees of any incorporated village."
Copies of papers duly filed, and of records in the office of the
clerk of a board of supervisors, certified by such clerk, with the
1 Chandler v. Hoag, 2 Hun, 613, s. c. 5 Supm. Ct. (T.' <fc C.) 197, affi'd in 12 Alb. L.
J. 351. Express resignation and abandonment of incorporation rebuts the presump-
tion of holding over, which perhaps might arise from failure to hold new election.
Wade v. Baker, 14 Hun, 616.
2 Partridge v. Badger, 25 Barb. 146, 172.
* Miller v. White, 50 N. Y. 137, rev'g 59 Barb. 434, s. c. 10 Abb. Pr. N. S. 385 ;
67 Barb. 504 ; 8 Abb. Pr. N. S. 46. Except, perhaps, where it is made so by connect-
ing defendant personally with its recovery.
4 Whitney Arms Co. v. Barlow, 41 Super. Ct. (J. & S.) 220, affi'd in 68 N. Y. 34.
8 Purdy v. Com. of Highways, 54 N. Y. 276 ; p. 21 of this vol.; State v. Swift,
10 Nev. 176, s. o. 21 Am. R. 721. Contra, that it is conclusive only against oral evi-
dence, Berry v. Baltimore A Drum Point R. R. Co. 41 Md. 446, s. o. 20 Am. R. 69.
See the conflicting cases on this question in 3 Abb. New Cas. 372, note. The date, if
stated, is conclusive (Lapeyre v. United States, 17 Wall. 191), and if not, may be
proved by extrinsic evidence. Gardner v. The Collector, 6 Wall. 499, 511.
' Barker v. Mayor, <fec. of N. Y. 17 Wend. 199. But the existence of the condi-
tions under which the corporation were authorized by statute to pass the ordinance
need not be. Stuyvesant v. Mayor, <frc. of N. Y. 7 Cow. 588 ; Rector, <fcc. of Trinity
V. Higgins, 4 Robt. J, and cases cited.
1 Except that a court of the same municipality may judiciall v notice them. 1 Whart.
Ev. 269, 293.
8 1 Dill. M. C. 443, 355. And these, together with proof of the mayor's ap-
proval or other complete adoption, are sufficient, even in an action between third
persons. Kennedy v. Newman, 1 Sandf. 187.
9 N, Y. L. 1878, p. 273, c. 219; amended L. 1879, p. 290, c. 211, 1.
PENALTIES. 771
seal of the office, are evidence like the originals. 1 Promulgation
of the ordinance need not be proved, unless specially required. 3
Posting of copies, when required, may be proved by parol, with-
out producing the copies. 3 In the absence of anything to indi-
cate the contrary, the court may presume an ordinance to have
been regularly passed. 4 If the plaintiff's authority to sue depends
upon the making or filing of a resolution or other document of a
municipal body, the document itself, or a certified copy, with
proof of execution and filing, is the primary evidence. 5 In
prosecutions to enforce ordinances, the ordinary rules ^)f evidence
apply, except so far as specially modified by statute ; and it is not
competent for a municipal corporation, without express authority,
to make or alter the rules of evidence or of law. 6
7. Violation.'] Plaintiff must show facts bringing the case
clearly within the terms of the statute or ordinance, 7 fairly and
reasonably construed. 8 The conditions upon which the penalty
attaches must be affirmatively shown to have existed. 9 If the
penalty is imposed for conduct or neglect in a particular capacity,
for instance, on a toll gatherer exacting tolls wrongfully, evi-
dence that defendant was acting in that capacity is prima facie
sufficient. 10 Under an allegation that defendant did the act, evi-
dence that he caused or procured it to be done is competent. 11
8. Excepted cases.'] Where the language of the enacting
clause prohibits the act, except under specified circumstances, the
burden is on plaintiff to negative those circumstances, 12 unless
they are peculiarly within defendant's knowledge. 13 Thus, the
burden of showing that he had a license is on defendant. 14 Where
the excepted cases are not actually incorporated into the enacting
I N. Y. L. 1855, p. 384, c. 249, 2.
* City Council v. Chur, 2 Bailey (S. C.), 164.
8 Teft v. Size, 6 Gilm. (111.) 432.
4 Buffalo Railroad v. Buffalo, 5 Hill, 209, 211. Contra, Bee Eldred v. Lehay, 81
Wis. 546.
* Thompson v. Smith, 2 Den. 177.
* 1 Dill. M. C. 440, 350.
* In illustration of this principal, see Allen v. Stevens, 29 TS. J. L. (5 Dutch.) 509;
Mayor, <fec. of N. Y. v. Walker, 4 E. D. Smith, 258.
' 8 Verona Cent'l Cheese Factory v. Murtaugh, 50 N. Y. 314, 317, rev'g 4 Lans. 17.
* Commissioners of Pilots v. Vanderbilt, 31 N. Y. 265.
10 Trowbriclge v. Baker, 1 Cow. 251, 8. P. People v. Gilbert, Anth. N. P. 261. So
evidence that defendant was- master of a boat during the season, and on the day in
question, is sufficient to go to the jury, in the absence of evidence to the contrary, to
charge him with a penalty for racing. People v. Roe, 1 Hill, 470.
II Gaffney v. Colvill, 6 Hill, 567, 576, 680.
" Copley v. Burton, L. R. 5 C. P. 489, explained in Roberts v. Humphreys, L. R.
8 Q. B. 483, 8. c. 7 Moak's Eng. 93.
13 Compare Blann v. Beal, 6 Ala. 857; Medlock v. Brown, '4 Mo. 379 ; Conyera v.
The State, 50 Geo. 103, 8. o. 15 Am. R. 686. As to the effect of evidence that the de-
fendant held himself out generally, without regard to the exception, see The Suns-
wick, 9 Ben. 1 1 2.
14 Potter v. Deyo, 19 Wend. 361 ; Mayor, Ac. of N. Y. V. Mason, 4 E. D. Smith,
142, B. c. I Abb. Pr. 344.
772 ACTIONS FOR CAUSES DEFINED BY STATUTE.
clause giving the action, but in a proviso or subsequent exemp-
tion, whether in the same * or subsequent sections, the burden is
on defendant to bring himself within the exception.
9. Knowledge of the law.'] Knowledge of the law is not pre-
sumed as a matter of fact ; 2 but ignorance of it is irrelevant/
10. Knowledge of facts.'] Whether it is necessary to prove
that defendant knew the facts relevant to liability, depends on
the language of the statute, 4 in connection with its general intent,
and the nature of the fact. 5
If a notice be required by the statute as preliminary to a pen-
alty, it must be strictly proved ; but if it is not the foundation of
the action, and merely relates to some collateral fact, its contents
may be proven by parol. 8
11. Snowing or intentional violation.'] If the statute forbids
the doing of the act knowingly, or with intent, or for the pur-
pose, &c., or the like, there must be some evidence tending to
show knowledge or intent. 7 Where the penalty is in the nature
of an indemnity for a fraud, knowledge of one partner, or an
agent or servant, may be proved against the other, or the princi-
pal, 8 if he retains the fruit of the transaction. 9 If there is evi-
dence of habitual or repeated acts, knowledge in the particular
one is not essential. 10 It is sufficient to prove knowledge that his
servants or agents violated the act ; and a general authority to do
acts in violation is enough, but not conclusive. 11 The person who
1 Teel v. Fonda, 4 Johns. 304 ; People ex rel. Cook v. Board of Police, 16 Abb. Pr.
837 ; and the rule is the same, though the enacting clause contain a reference to the
subsequent exception. Hart v. Cleis, 8 Johns. 41.
9 Black v. Ward, 27 Mich. 191, s. c. 16 Am. B. 162.
3 Hyde v. Melvin, 11 Johns. 521. Misapprehension of it is equally irrelevant.
Sherman v. Spencer, 1 N. Y. Leg. Obs. 172. Hence even the opinion of a public
officer, expressed at the time of the act, that it was not a violation, is incompetent.
Fire Department v. Buhler, 85 N. Y. 177, s..c. 33 How. Pr. 373, rev'g 1 Daly, 391.
Sd of the command of a superior officer. Hyde v. Melvin, 11 Johns. 521.
4 Verona Cent'l Cheese Fact. v. Murtaugh, 50 N. Y. 314; Bayard v. Smith, IV
Wend. 88, 90; Gaffney v.. Colvill, 6 Hill, 567, 576 ; Nichols v. Hall, L. R. 8 C. P.
322, 8. o. 5 Moak's Eng. 300; Fitzpatrick v. Kelly, L. R. 8 Q. B. 337, s. c. 6 Moak'a
Eng. 94 ; Roberta v. Humphreys, L. R. 8 Q. B. 483, s. o. 7 Moak's Eng. 93.
6 Hassenfrats v. Kelly, 13 Johns. 466, 468; Etheridge v. Cromwell, 8 Wend. 629.
6 McFadden v. Kingsbury, 11 Wend. 667. Thus, in an action for disobeying a
subpoena, the writ, if in plaintiff's possession, is the primary evidence, and cannot
be proved by defendant's admissions. Hasbrouck v. Baker, 10 Johns. 248. But hia
non attendance may be proved by paroL Cogswell v. Meech, 12 Wend. 147.
If the law requires a notice the terms of which must be judicially fixed by a
board of officers, evidence of a notice by their president merely, is not enough, though
they referred it to him to give notice. Comm'rs of Pilots v. Vanderbilt, 31 N. Y.
266, affi'g 2 Robt. 367.
7 Verona Cent'l Cheese Fact. v. Murtaugh (below) ; and see Davies v. Harvey, L.
B. 9 Q. B. 433, 8. c. 9 Moak, 367. Compare Chesley v. Brown, 11 Me. (2 Fairf.) 143.
8 Davies v. Harvey (above).
Stockwellv. U. S. 13 Wall. 631. In other penal actions such imputation of
knowledge is not generally allowable. Id. 563.
10 Verona Cent'l Cheese Fact. v. Murtaugh, 50 N. Y. 3*4. 816, 318, reVg 4 Lans. 11.
11 Id., and cases cited.
PENALTIES. 773
did the act may, as a witness, testify to his intent. 1 lie may be
asked whether he did the act in good faith, 2 or whether he sup-
posed he was violating the statute. 8
Other similar violations he committed during the same period,
especially if in the same business and premises, are competent, and,
in the absence of other evidence, are prima facie evidence of in-
tent. 4 Acts in a different season and circumstances, not affording
reasonable presumption of similar result, are not competent. 5
12. Admissions and declarations.] The admissions or decla-
rations of the defendant's agent or servant are not competent
against defendant. 6 In the case of several defendants, the admis-
sions and declarations of one are competent against himself, but
not necessarily against the other. 7 Where several offenses are
charged, a general admission of having committed offenses, not
showing what offense, and to what penalty the defendant intends
the admission to apply, is not enough. 8
13. Character.'} Character is not in issue. 9
14. Cogency of proof.] A private action for penalty does not
require proof beyond reasonable doubt; 10 otherwise of an action
by the government for a penalty. 11
15. Obstructing highways] To entitle plaintiff to a verdict,
it is sufficient to prove a highway de facto, by evidence that the
obstruction complained of was placed in a road which had been
traveled by the public as a highway more than six years before
the time of the trial, and more than a year before it was fenced
up ; ia and that, while it was being so used, it was obstructed by
defendant. This entitles him to a verdict. 13
Under plea of title, defendant may give in evidence his
title deeds, or show himself in possession of the adjacent land,
and then rest. 14
The burden is then thrown on plaintiff to prove that the al-
leged highway has been duly laid out by the commissioner, or
I Supt. of Cortland v. Supt. of Herkimer, 44 N. Y. 22.
8 Id. ; see, also, pp. 618, 620 of this vol.
* Stearns v. Ingraham, 1 Supra. Ct. (T. <fc C.) 218 ; see, also, Chapter LTX.
4 Lilienthal'3 Tobacco v. U. 8. 97 U. S. (7 Otto), 237, 267.
6 Stearns v. Ingraham (above).
6 Clay v. Swett, 4 Bibb (Ky.), 255. Unless part of the ret gestce, or made within
the scope of authority. See p. 44 of this vol.
7 Compare rules stated on pp. 11 and 711 of this vol., and Aiken v. Peck, 22 Vt.
255 ; Nichols v. Hotchkiss, 2 Day (Conn.), 121.
8 Mayor, <tc. of N. Y. v. Walker. 4 E. D. Smith, 258.
1 \Vhart. ET. 63, 47, citing Att'y-Gen. v. Bowmnn, 2 B. <t P. 53, n. a.
10 Hitchcock v. Hunger, 15 N. H. 97. Contra, White v. Comstock, 6 Vt. 405.
11 Chaffee v. U. S. 18 Wall. 516, 545. Compare paragraph 44, and p. 495 of thisvoL
II Little v. Denn, 34 N. Y. 452. But in applying this rule, the statutes in force at
the time should be consulted. See, also, as to dedication, cases collected in 2 Abb,
New Cas. 400, note.
13 Little v. Denn (above).
"Id.
774: ACTIONS FOR CAUSES DEFINED BY STATUTE.
that it is a highway by dedication or twenty years' use. 1 If he
produces the record of the establishment of the road as a public
highway, and proves that it was opened and used, he need not
prove all the proceedings preliminary to the laying out of the
road. 2 It is for defendant to show them irregular. 3
16. Selling liquors.'] The overseers of the poor suing for a
penalty under the liquor laws, may prove their character by gen-
eral reputation. 4 Plaintiff may make a prim a facie case of sale,
by circumstantial evidence. 5 Evidence of keeping as for sale is
competent on the question of sale. 6 So is the fact of keeping a
bar with bottles in it, 7 and the fact that it was a place of resort,
and that persons went in sober and came out drunk. 8 The pres-
ence of indicia of the business t-decanters, glasses, pitchers, beer-
pump, &c., is competent evidence, 9 and the names of liquors
marked on the-vessels may be proved without producing the ves-
sels or labels. 10 The fact that defendant kept tavern and displayed
an innkeeper's sign, is not alone relevant on the question of sale, 11
but there being other evidence of sale, the existence of and in-
scription on his sign is competent to show his business and iden-
tity. 13 So is his business card, 13 and cards attached to jugs, &c., on
his premises. 14 Evidence of the moving of liquor casks, 15 and of
having empty vessels which recently contained intoxicating
liquors, 16 is competent.
An ordinary witness may testify directly that a liquor was
gin, brandy, or other. It does not require an expert. 17 The name
by which a beverage was called for or served, is also competent
evidence. 18
Sale of liquor by a servant is prima facie eviden.ce of sale by the
1 Little v. Denn, 34 N. Y. 452. In a justice's court, defendant cannot show that
he is owner of the fee, not having actual possession of the locus in quo.
* Sage v. Barnes, 9 Johns. 365.
8 Chapman v. Gates. 46 Barb. 313, 820.
4 Blatchley v. Moser, 15 Wend. 215, 218.
6 People v. Hulbert, 4 Den. 133, 137; State v. O'Conner, 49 Me. 594; State v.
Hynes, 66 Me. 114 ; Commonw. v. Cotter, 97 Mass. 336.
6 State v. Wentworth, 65 Me. 234.
7 People v. Hulbert, 4 Den. 133, 137 ; Vallance v. Everts, 3 Barb. 653 ; Com-
monw. v. Jennings, 107 Mass. 488.
8 Commonw. v. Stone, 97 Mass. 548 ; Commonw. T. Keanedy, Id, 224.
' Commonw. v. Lamere, 11 Gray, 319.
10 Commonw. v. Blood, 11 Gray, 74.
11 Commonw. v. Madden, 1 Gray, 486.
11 State v. Wilson, 6 R. I. 291.
13 Commonw. v. Twombly, 119 Mass. 104.
14 Commonw. v. Dearborn, 109 Mass. 368.
14 Commonw. v. Davenport, 2 Allen, 299.
15 Commonw. v. Timothy, 8 Gray, 480.
11 Commonw. v. Timothy (above).
w Testimony that in a business house one of a party called for whiskey, and that
some liquid in a bottle was set out to them by the proprietor, of which they drank,
is sufficient to go to the jury as evidence of a sale of whiskey. State V. Jarrett, 86
Mo. 357.
ACTIONS FOR CAUSING INTOXICATION. Y75
master. 1 Evidence of the precise day of committing the offense
is not essential. 3 Sales, and seizures, made a short time prior to
the day pleaded, are competent evidence tending to prove that
the keeping on the day named was with intent to sell, &c. 8
IV. ACTIONS (UNDER CIVIL DAMAGE LAW) FOB CAUSING
INTOXICATION. 4
IT. Ground of action.'] The action is given by statute ; 5 and
a case clearly within the terms of the statute must be shown.'
But this rule does not require any peculiar cogency of proof, but
only that every element implied in the statute must be supported
by preponderance of evidence. 7 The " cause of action" is not the
tort committed by the intoxicated person : it is the furnishing of
intoxicating liquor 8 to a person capable of its abuse and actually
abusing it to the damage of the plaintiff in person, property, or
means of support. The tort, if any, committed by the intoxi-
cated person is referred to for the purpose of establishing the
fact of damages and proving their amount. Injuries of all the
three kinds constitute but one cause of action. 9
18. Order of proof ^ The order of proof is, as usual, in the
discretion of the judge. 10
19. Relation of plaintiff to the drunkard^ The modes of
1 State v. Wentworth, 65 Me. 234.
* Tiffany v. Driggs, 1 3 Johns. 253. But the place may be essential. Andrews y.
Harrington, 19 Barb. 343, 346.
a Commonw. v. Stoehr, 109 Mass. 365.
4 Connecticut, Gcnl. btats. Rev. 1875, p. 269, 9; Illinois, Rev. Stats. 1874, p. 439,
8, 9 ; Indiana, Laws 1875, ch. 264, 20 ; lova, Code 1873, p. 289, 1657 ; Kansas,
Comp. Laws 1879 (Dassler's ed.), p. 388, 2159 ; Maine, Rev. Stats. 1861, p. 804,
ch. 27, 82, amended in Laws 1872, ch. 63, 4; Massachusetts, Laws 1879, ch. 297;
Michigan, Laws 1875, p. 283, cb. 231, 3, amended in Laws 1877, p. 212, ch. 193 ;
Montana, Laws 1873, p. 69; Nebraska, Genl. Stats. 1873, p. 853, ch. 58, 576-9;
New Hampshire, Genl. Laws 1878, p. 270, ch. 109, 28 ; New York, Laws 1873, p.
1016, ch. 646; North Carolina, Laws 1873-4, p. 94, ch. 68; Ohio, Laws 1875, p. 86,
amending Act May 1, 1854, as amended April 18, 1870; Pennsylvania, Laws 1875,
p. 41, ch. 47, 7; Rhode Island, Genl. Stats. Stipt. A. (1876), p. 268, ch. 508, g 32,
84; South Carolina, Laws 1873-4, p. 799, ch. 646, 7; Vermont, Laws 1874, p. 62,
ch. 27, amending Laws 1869, p. 9, ch. 4; West Virginia, Laws 1877, p. 144, ch. 107,
16; Wisconsin, Rev. Stats, p. 470, ch. 66, 1560.
6 Compare Hoard v. Peck, 56 Barb. 202.
6 Brannan v. Adams, 76 111. 321.
1 Hall v. Barnes, 82 111. 228; Mead v. Stratton, 8 Hun, 148; and see Bodge v.
Hughes, 53 N. H. 61 i.
Jn Ohio it has been held that the sale, being there a criminal offense, must be
proved beyond a reasonable doubt. Mason v. Shay, 3 Am. L. Rec. 435, affi'g 1 Id.
653. Compare p. 495 of this vol.
8 Volans v. Owen, 74 N. Y. 626, 629 ; Mulford v. Clewell, 21 Ohio St. 191 ; s. p.
Emory v. Addis, 71 111. 273; Hackett v. Smelsley, 77 Id. 109. Contra, Jackson v.
Brookins, 5 Hun, 630.
Schneider v. Hosier, 21 Ohio St. 98.
w See Woolheather v. Risley, 88 Iowa, 486; Hall v. Barnes, 82 111. 228.
776 ACTIONS FOR CAUSES DEFINED BY STATUTE.
proving marriage, 1 or the right to service of children, 2 have al-
ready been stated. An employer need not prove a permanent
relation, such as apprenticeship. Intoxication of ordinary hired
laborers, with damage by the stoppage of their work, is enough. 8
20. Sale or gift of liquor^\ Where the statute applies to sales
and gifts, either a sale or a gift may be proved under an allega-
tion tnat defendant sold and gave. 4 Under a statute which refers
only to sales, proof of a gift will not sustain the action. 5 But the
allegation of a sale in such case may be proven by evidence of a
sale on credit, 6 or in exchange for services, 7 or furnishing as stakes
of a game with the seller. 8 So giving away to promote custom, 9
or selling a cigar and throwing in a drink, 10 may be found by the
jury to amount to a sale. But proof that the drinker wrongfully
took the liquor, and the defendant, on discovering the tort, com-
pelled him to pay for it, does not establish a sale. 11 The fact that
the liquor was paid for by another person than the one to whom
it was furnished, and who became intoxicated, is not material. 13
Proof that defendant refused to sell to the drinker on one occa-
sion, is not evidence that he did not sell at another. 13
21. Liability of 'salesman.'] The mere salesman is liable, with-
out proof that he had any interest in the liquor or the business. 14
22. Liability of principal.'] Under an allegation that the
1 P. 79 of this vol. Defendant may disprove the marriage by evidence of the ex-
istence of a prior husband or wife (Emerson v. Shaw, 56 N. H. 418, s. c. 1 Law <fc
Eq. R. 635), and in such case the plaintiff can only recover for such injury to person
or property as a stranger could, and not for loss of means of support. Kearney v.
Fitzeerald, 43 Iowa, 580, s. c. 10 West. Jur. 553.
* P. 382 of this vol.
8 Duroy v. Blinn, 11 Ohio St. 381.
4 See State v. Brown, 36 Vt. 560; State v. Irvine, 3 Heisk. (Tenn.) 155;
State v. Finan, 10 Iowa, 19. The terms of the act, it was noticed in Dubois v. Mil-
ler, 5 Hun, 335, apply as well to him who sells a barrel as to him who sells a glass.
But query ? unless known to be bought for consumption of buyer. See paragraphs
25 and 27 below.
6 Brannan v. Adams, 76 111. 331. But where the statute refers to "furnishing,"
proof of a gift is enough. State v. Freeman, 27 Vt. 520. The defendant's declara-
tion, a day or two after the drinking, that he had not charged and would not take
pay, is not competent. State v. Greenleaf, 31 Me. 517.
6 See Horn v. Smith, 77 111. 381; Riley v. State, 43 Miss. 397; Emerson v.
Noble, 32 Me. 380.
7 See Horn v. Smith (above) ; State v. Bescher, 32 Ind. 480.
8 Commonw. v. Hogan, 97 Mass. 120.
9 Kober v. State, 10 Ohio St. 444.
10 State v. Decker, 10 West. L. J. 328. The administering of spirits by a physician
to a patient is not a sale. Shaffner v. State, 8 Ohio St. 642.
11 Kreiter v. Nichols, 28 Mich. 496.
18 Volans v. Owen, 9 Hun, 558; Commonw. v. Very, 12 Gray, 124; and see State
v. Munson, 25 Ohio St. 381 ; but compare Boyd v. Watt. 27 Ohio St. 259.
11 Commonw. v. Barlow, 97 Ma=s. 597.
14 Worley v. Spurgeon, 38 Iowa, 465 ; Barnaby v. Wood, 50 Ind. 405 ; s. p. in
penal action, Roberts v. O'Conor, 33 Me. 496 ; and in criminal prosecutions, State
v. Finan, 10 Iowa, 19; and see 4 Allen (Mas.), 587 As to liquor furnished at a
club, see Marmont v. State, 48 Ind. 21, and cas. cit. ; State v. Mercer, 32 Iowa, 405.
ACTIONS FOR CAUSING INTOXICATION. 777
defendant Bold, &c., it is competent to prove a sale by his subor-
dinate ; x and if there be evidence that the subordinate acted by
his authority, defendant is liable ; 2 and his liability in actual dam-
ages is not removed by evidence that the *sale in this case was
without his knowledge and contrary to his express instructions. 8
Evidence that the salesman was in tne place and garb of a clerk or
servant, 4 or was the son, or husband, or wife of the defendant, is
competent, but not alone sufficient, 5 to show his agency.
23. Connecting defendant with salesman.'] The fact that the
salesman was defendant's authorized subordinate, may be proved,
like any other agency, or by proving other sales of liquor made
by him or her, to other persons, in the presence of defendant, 6 or
of defendant's partner or authorized agent in the business.
24. Connecting defendant with business.] On the question
whether defendant had any interest in the business, it is compe-
tent to prove circumstances shown or presumable to be within his
knowledge, indicating the manner in which the business was con-
ducted, and under what name and style. 7 Upon, this principle,
the inscription of defendant's name on a sign-board on or in the
bar room, 8 may be proved by a witness ; and the license or the ap-
plication for it, and the labels bearing defendant's name on the
jugs, &c., in the place, 9 are competent.
25. Connecting sale with intoxication^ It must appear that
the defendant's furnishing of liquor was to the person thereby in-
toxicated. 10 Evidence that he entered the saloon sober, and was
found there, or came out, intoxicated, would be competent, at
least in the absence of direct testimony, but not alone sufficient
proof of the furnishing of liquor causing intoxication. 11 An alle-
I See Parker v. State, 4 Ohio St. 563; State v. Stewart, 31 Me. 615; State y.
Brown, Id. 620.
3 Peterson v. Knoble, 85 Wis. 80 ; s. P. Comm'rs of Excise v. Dougherty, 55
Barb. 332. Permitting, not enough. Ditton v. Morgan, 56 Ind. 60.
3 Kreiterv. Nichols, 28 Mich. 498; Smith v. Reynolds, 8 Hun, 128; Keedy v.
Howe, 72 111. 133.
4 See 60 N. Y. 214; 66 Barb. 338; 36 Super. Ct. (4 J. <fe S.) 222.
B The contrary has been held even in a criminal prosecution. State v. Brown,
81 Me. 520. I consider the rule in Parker v. State, 4 Ohio St. 565, sound. That the
fact that the salesman was the defendant's son, is not enough without evidence of au-
thority. But where the sale was by defendant's wife, the fact that they lived togeth-
er, the place being his, and there being no evidence that she carried on a separate
trade, was held sufficient evidence of her agency to sustain a verdict against him.
Commonwealth v. Coughlin, 14 Gray (Mass.),"889. Such evidence, conversely, might
not prove the husband to be the agent of his wife. Mead v. Stratton, 8 Hun, 148.
6 Hall v. McKecknie, 22 Barb. 244 ; s. p. State v. Roberts, 65 N. H. 483, 485, and
cas. cit.
7 REDFIELD, J., Blanchard v. Manahan, 44 Vt. 251.
8 State v. Wilson, 5 R. I. 291.
' Commonwealth v. Dearborn, 109 Mass. 868, and see p. 591 of this vol. The
sign-board or jugs need not be produced. I'. 774.
10 Bush v. Murray, 66 Me. 472.
II Kearney v. Fitzgerald, 43 Iowa, 680, s. c. 10 West. Jur. 555; Commonw. v. Ken-
778 ACTIONS FOR CAUSES DEFINED BY STATUTE.
gation of causing intoxication, admits evidence of causing it in
part. 1
If the drinker or any other witness testifies to a sale at de*
f endant's saloon, it is* competent to prove by cross-examination
or otherwise that the witness previously drank elsewhere, not for
the purpose of contradicting him, 2 nor, if his own intoxication did
the injury, to reduce the damages ; but to impair his credit.
26. Character of liquor.'} A witness may testify directly to
the intoxicating quality of a beverage, 8 or the court may take
judicial notice of it ; 4 and where they do not do so, there must be
some evidence on the point, 5 and the question is for the jury.
27. Knowledge and intent of seller.] It is not necessary to
prove that the seller had in fact any mischievous intent, or antici-
pated causing intoxication, 6 or even that he knew the liquor to
be intoxicating, 7 unless the act makes knowledge material.
If the act requires proof of known intemperate habits, evi-
dence of general reputation is not enough, 8 at least without such
circumstances of proximity, 9 or of long continued sales by defend-
ant, 10 as to raise a presumption that he had notice of the habit.
Intemperate habit is a question of fact, and a witness may be al-
lowed to state that the drinker was of such habit, 11 subject, of
course, to cross-examination as to the grounds of this statement. 12
Where the liability sought to be enforced is affixed by the act
to a sale to a minor, and the act makes knowledge of minority
material, evidence of the fact of minority, and of circumstances
sufficient to put the seller on inquiry, is prima facie sufficient ;
and it is not a sufficient answer to show merely that the buyer
had a beard, and represented that he was of age. 13
nedy, 97 Mass. 224. Declarations of intent to go to defendant's saloon, may be com-
petent. Rafferty v. Buckman, 46 Iowa, 195.
1 Roth v. Eppy, 80 111. 283.
8 Commonwealth v. Fitzgerald, 2 Allen, 297.
8 Page 774 of this vol.
4 So held of gin. Commonw. v. Peckham, 2 Gray, 514. So held of whiskey. Car-
man v. State, 18 Ind. 450. As to beer, see Markle v. Akron, 14 Ohio, 586 ; Klare
v. State, 43 Ind. 483. As to wine, see Worley v. Spurgeon, 38 Iowa, 465. The
* court will not take judicial notice, whether one would recover from intoxication in
five or six hours. Brannan v. Adams, 76 111. 331.
s See Schlosser v. The State, 55 Ind. 82.
6 Barnaby v. Wood, 50 Ind. 405.
7 The contrary was held in a criminal prosecution in State v. Chambers, 4 "West.
L. Monthly, 275 ; but see paragraphs 13 (above) aud 37 (below).
8 Stanley v. State, 26 Ala. 26, GOLDTHWAITE, J.
Adams v. State, 25 Ohio St. 586, and see Smith v. State, 19 Conn. 493.
10 Wickwire v. State, 19 Conn. 477.
11 Stanley v. State (above).
See Chapter V.
13 Goetz v. State, 41 Ind. 162. There is difference of opinion whether knowledge
of the minority or the habit is material unless made so by the act. In Jamison v.
Burton, 43 Iowa, 282, s. o. 10 West. Jur. 505, it was held not material, and this is the
better opinion. In Massachusetts it is not material, even in a criminal prosecution.
ACTIONS FOR CAUSING INTOXICATION. - 779
28. Fact of Intoxicationl\ Any witness, though, he be not
an expert, who saw the alleged drinker, may be asked whether or
not he was, in the witness' judgment, intoxicated ; or drunk ; or
under the influence of liquor. It does not render the evidence
incompetent that the witness is unable to state all the constituent
facts which amount to drunkenness. 1
29. Liability of owner and lessor.'] Proof of a lease of the
premises made by a person sought to be charged as owner, raises
a presumption of ownership. 2 Knowledge of the use of the prem-
ises for sale of liquor is not necessarily inferred, even from
joint occupation. 3 Without some evidence tending to show knowl-
edge, the owner cannot be held merely as owner. 4 Evidence of
common notoriety is not alone competent evidence of his knowl-
30. Contributory negligence.] It has been held that if the
intoxication was produced in part by plaintiff's procurement, 6 or
would have been wholly prevented by reasonable care which
plaintiff might have exerted without danger, 7 there can be no re-
covery ; but, on the other hand, if plaintiff was in nowise charge-
able with responsibility for the intoxication, he is not precluded
from recovery by reason of having intrusted the property, in re-
spect to which he sues, to one known to him. to be in the habit of
getting intoxicated. 8 On neither point is plaintiff usually required,
in the first instance, to prove his own freedom from negligence,
until there is something in evidence to suggest such negligence. 9
31. Damages."] It is essential to prove actual damage of a
kind mentioned in the statute. 10 All three kinds of injury, viz. :
See paragraph 37 (below). In Indiana it is material, but is presumed, and may be
rebutted i)y satisfactory proof of reasonable belief, entertained in good faith, that the
buyer was a minor, <fec. Farrell v. State, 45 Ind. 371, and cas. cit. See, on the gen-
eral principle that ignorance of a constituent fact docs not necessarily take away
criminality, Halstead T. State, 10 Cent. L. J. 290; and p. 772 of this vol ; Reg. v.
Prince, L. R. 2 C. Cas. R. 154, s. c. 13 Eng. R. 385.
1 People v. Eastwood, 14 N. Y. 562, affi'g, 3 Park Cr. 25 ; s. p. McKee v. Nelson,
4 Cow. 355. " State whether or not your husband was intoxicated," <fec, held not
improper as leading. Woolheather v. Risley, 38 Iowa, 486. On the question
whether one was intoxicated several hours after drinking, evidence as to how long it
usually takes for a person to get sober, was held competent in Brannon v. Adams, 76
III. 331.
2 See pp. 591 and 641 of this vol.
3 Mead v. Stratton, 8 Hun, 148; Cobleigh v. McBride, 46 Iowa, 116.
4 Barnoby v. Wood, 50 Ind. 405. Letting after the statute took effect, with knowl-
edge of the lessee's purpose, ia evidence of permission. See Granger v. Knipper, 2
Cinn. 480, and see State v. Shanahan, 54 N. H. 437 ; State v. Ballingall, 42 Iowa, 87,
s. c. 10 West. Jur. 24.
6 Cobleigh v. McBride (above) ; and see paragraph 27. Compare Adams v. The
State, 25 Ohio St. 586.
See Jewett v. Wanshura, 43 Iowa, 574, *. c. 10 West. Jur. 559 ; Engleken v. Hil.
ger, 43 Iowa, 563, s. c. 10 West. Jur. 553.
' Reget v. Bell, 77 111. 593.
8 Bertholf v. O'Reilly, 8 Hun, 16.
9 See, also, p. 597 of this vol.
10 Schneider v. Hosier, 21 Ohio St. 98; Freese V. Tripp, 70 III 496; Graham T.
Fulford, 73 111. 596.
780 ACTIONS FOR CAUSES DEFINED BY STATUTE.
to person, to property, and to means of support, pertain to but
one cause of action, but the evidence may be restricted to those
kinds which the complaint indicates had been sustained. 1
32. to the person.'] Mental suffering and indignity, are not
alone sufficient to sustain the action. 2 But if evidence is given of
physical injury and suffering such as that caused by an assault, or
by any act which would, if committed by a stranger, be a tres-
pass, for instance, turning out of the house then the injury to
feelings and the indignity, become part of the actual damages. 8
33. to property. ,] In general, the same rules apply to proof
of injuries to property in these actions, as would be applied in
actions against the intoxicated person. Thus, in a wife's action,
she need not give such evidence of her title to the property in-
jured or taken, as might be necessary as against her husband's
creditors. It is enough if she proves that she always claimed and
treated it as hers, and that her husband conceded it to be hers. 4
Under this or the following head of damage, plaintiff may also
recover the expenses necessarily imposed on him or her, by the
sickness of the intoxicated person, such as medical attendance,
nursing, &c. 5
34. to means of support.] To establish this ground of re-
covery, dependence for support, in some degree at least, must be
shown. 6 To prove loss of support, plaintiff, having shown a legal
right to support from a husband or parent, may show that the
ability of the latter, for supporting, were impaired by the intoxica-
tion, or by consequent sickness or other incapacity ; 7 that the in-
toxication prevented his obtaining employment, 8 or that his death
was caused either by his intoxication or by another intoxicated
person whose intoxication was caused by defendant. 9 " Means of
1 See Mulford v. Clewell, 21 Ohio. St. 191; Hackett v. Smelsley, 77 111. 109;
Mason v. Shay, 1 Am. L. Rec. 553, affi'd in 3 Id. 435.
4 Peterson v. Knoble, 35 Wi3. 80, DIXON, C. J. ; and see Wightman v. Devere. 33
Id. 570 ; s. P. in libel, 6 Hun, 5. And it seems that a wife's loss of the society of her
husband is not enough. Dunlavey v. Watson, 38 Iowa, 398. Compare 56 Barb. 204.
As to loss of services, see Hunt v. Town of Wmfield, 36 Wis. 154, and cases cited.
3 DIXON, C. J., Peterson v. Knoble (above). Contra, McCann v. Roach, 81 111.
213 ; and see, against damages for mental distress, Brantigam v. "White, 73 111. 561.
Calloway v. Layton, 47 Iowa, 456, s, c. 17 Alb. L. J. 314. It may depend on the
language of the act. See Friend v. Dunks, 37 Mich. 25.
4 Woolheather v. Rialey, 38 Iowa, 486. Nor is it necessary for her to show that
ehe pursued an independent remedy against a third person to whom the intoxicated
husband transferred the property. Mulford v. Clewell, 21 Ohio St. 191.
8 Wightman v. Devere, 33 Wis. 570.
Volansv. Owen, 74 N. Y. 526, rev*g 9 Hun, 558.
7 Mulford v. Clewell (above). According to the Illinois cases the effect mast have
been to substantially impair necessary and proper support. 73 111. 187, 561 ; 81 Id.
213.
8 Roth v. Eppy, 80 HI. 283.
9 Jackson v. Brookins, 5 Hun, 630; Smith v. Reynolds, 8 Id. 128 ; Qua5n v. Rus-
sell, Id. 319; Emory v. Addis, 71 111. 273 ; Hackett v. Smelsley, 77 Id. 109. Contra
Hayes v. Phelan, 4 Hun, 733 ; 5 Id. 335, note; Collier v. Early, 54 Ind. 559 ; Davis
V. Justice, 31 Ohio St. 359.
ACTIONS FOR CAUSING INTOXICATION. 781
support " in the statute includes the wages or produce of labor,
and, hence, the husband's capacity for labor, 1 as well as moneys
and goods in his hands for that support, and which were necessary
and proper for it, with due regard to the circumstances and con-
dition in life 2 of the couple. Upon this point the plaintiff may
five evidence of the age, condition and circumstances of the hus-
and or parent, and his habits of sobriety and industry, and
capacity to earn or produce. 3 The evidence need not be clear,
positive and specific as to the time, place, manner, and each item
of loss. The injury may be proved like any other fact, by cir-
cumstances. 4 It is not necessary to show that plaintiff was ex-
clusively dependent on such means ; 5 nor is the recovery confined
to past and present losses ; but may include the loss of future
means. 6 It is enough to show that the means of support have
been diminished below what is reasonable and competent for the
plaintiff's station in life, and below what they would otherwise
have been. 7 If, however, others, also dependent, were also in-
jured in means of support, the plaintiff's recovery should be lim-
ited to a proper share. 8
35. Exemplary damages.] To recover exemplary damages,
(which may be had against the owner as well as the seller 9 ) there
must be evidence not only of actual damage, 10 but of conduct will-
ful, wanton, reckless, or otherwise deserving of condemnation be-
yond the mere actual damage. 11 Evidence that the sale was made
against the plaintiff's remonstrance, 12 or, after her notice not to
sell, or was an attempt to hinder the reform of the drinker, is
enough. 13
1 Schneider v. Hosier, 21 Ohio St. 98; Wightman v. Devere, 33 "Wis. 570.
s Hackett v. Smelsley, 77 111. 109.
* Dunlavey v. Watson, 38 Iowa, 398.
4 Home v. Smith, 77 111. 881. '
6 Hackett v. Smelsley (above).
6 Mulford v. Clewell, 21 Ohio St. 191 ; Mason v. Shay, 3 West. L. Rec. 463, affi'g
1 Id. 653.
'Id.
8 Franklin v. Schermerhorn, 8 Hun, 112.
9 Hackett v. Smelsley, 77 HI. 109.
10 Ganssly v. Perkins, 30 Mich. 492.
11 COOLEY, J., Kreiter v. Nichols, 28 Mich. 600; s. P. Bates v. Davis, Y6 HI. 222;
Franklin v. Schermerhorn, 8 Hun, 112. But a breach of the peace is not essential.
Goodenough v. McGrew, 44 Iowa, 670. According to Ganssly v. Perkins (above), the
willfulness must be one which contemplated injuring the plaintiff specially. Accord-
ing to Mason v. Shay, 1 Am. L. Rec. 553 ; affi'd in 3 Id. 435, exemplary damages are
allowable wherever the sale was criminal, s. p. Schneider v. Hosier, 21 Ohio St.
98. Whether nets which are punishable criminally, are ground of exemplary dam-
ages, see, in the affirmative, Brannon v. Silvernail, 81 111. 434 ; in the negative, Koerner
v. Oberly, 66 Ind. 284.
12 Ganssly v. Perkins (above).
13 Hackett v. Smelsley, 77 111. 109 ; Meidel v. Anthis, 71 Id. 241. So, perhaps, of
clandestine sales. Hoard v. Peck, 66 Barb. 202. And of sales under sham pretext
of a medical prescription. People v. Safford, 6 Den. 112. Previous habits of in-
toxication are not matter of aggravation, unless shown to have been known to de-
fendant. Goodenough v. McGrew (above).
782 ACTIONS FOR CAUSES DEFINED BY STATUTE.
36. Defenses ; Limitations.'] The limitation applicable to a
tort or injury to the person, applies, as of the time of the sale,
not the time of damage sustained. 1
37 sah as medicine.'] According to some authorities, gen-
eral provisions of statute in restraint 01 sales of liquor, with no
reference to sales for medical use, are to be construed with an
implied exception of sales, made in good faith, of medicines, bitters
and tinctures, 2 as well as of liquors sold on a physician's prescrip-
tion. 8 Assuming this to be the rule applicable under this act, the
question whether the sale was such, or was only a disguise for a
sale of a beverage, is one of fact for the jury ; and it is competent
to prove the circumstances, such as the composition and character
of the alleged medicine or bitters, the proportion of alcohol in
it, and whether it does readily or with difficulty produce intoxica-
tion, whether it is agreeable or nauseous to the taste, whether it
is useful or not as a medicine, and whether it is frequently re-
sorted to and used as a beverage. 4 But mere ignorance of the
intoxicating character of a beverage, is not competent, 5 except on
the question of exemplary damages.
38. other sellers contributing to injury '.] Evidence that
sales by persons not parties to the action, contributed to cause the
intoxication, is not competent, even in mitigation, for the statute
imposes liability in respect of sales causing intoxication in whole
or in part. 6 But evidence that previous intoxication, caused by
others' sales, impaired the means of support, is competent in mit-
igation. 7
39. plaintiff's connivance or negligence.'] Evidence that
plaintiff requested the sale, 8 or purchased liquor, as such, for her
husband, 9 is competent in bar ; but in the former case she may
prove in rebuttal that defendant knew she made the request by
her husband's constraint. Evidence that he drank with her con-
sent is not competent in bar, but is in mitigation, 10 and so evi-
1 Emmert v. Gill. 39 Iowa, 692 ; but see paragraph 19.
8 Russell v. Sloan, 33 Vt. 656. Contra, Commonw. v. Hallett, 103 Mass. 452.
Compare Kearney v. Fitzgerald, 43 Iowa, 580, 8. c. 10 West. Jur. 555 ; State v. Wall,
34 Me. 165.
3 Ball v. State, 50 Ind. 595; State v. Larrcmore, 19 Mo. 391 ; and see Williams
v. State, 48 lud. 306, 309 ; People v. Safford, 5 Den. 112 ; Shaffner v. State, 8 Ohio
St. 642.
4 Russell v. Sloan (above).
5 Commonw. v. Boynton, 2 Allen, 160. See, also, paragraphs 13, 27 (above). HOAB,
J., says that a man is held to know the law, and the hardship is no greater to ascer-
tain the fact. s. P. 103 Mass. 452. As to ignorance as to the person by whom the
liquor was sent for, see Bates v. Davis, 76 111. 222: Miller v. State. 5 Ohio St. 275.
6 Fountain v. Draper, 49 Ind. 441, 445; Hackett v. Smelsley, 77 111. 109 ; Emory
V. Addis, 71 Id. 273 ; s. p. Woolheather v. Risley, 38 Iowa, 486.
7 Woolheather v. Risley (above). See, also, Ganssly v. Perkins, 30 Mich. 492;
s. P. Cleveland, &c. R. R. Co. v. Sutherland, 19 Ohio St. 151.
8 Jewettv. Wanshura, 43 Iowa, 574, s. c. 10 West. Jur. 559.
9 Kearney v. Fitzgerald, 43 Iowa, 580, 8. c. 10 West. Jur. 555 ; Engelken v. Hil
ger, 43 Iowa, 563, s. c. 10 West. Jur. 653.
10 Roth v. Eppy, 80 111. 283.
PROCEEDINGS IN REM FOR FORFEITURE. 783
dence that she accompanied him and consorted with him in the
defendant's saloon, when he drank there, is competent in mitiga-
tion ; but she may prove in rebuttal that she did not do so freely,
but was compelled by him. 1 So evidence that they habitually
drank together is competent in mitigation. 2 On the other hand,
it has been held that where she might, without danger, have pre-
vented his drinking on the only occasion proven, and did not do
so, she could not recover. 8
40. former adjudication satisfaction.] The fact that de-
fendant has suffered a criminal conviction for the same sale, is
not material ; 4 nor is it a bar that plaintiff has settled a claim
against another seller, 5 if the intoxications were separate and dis-
tinct. 6
Y. PROCEEDINGS IN REM FOR FORFEITURE.
41. Burden of proof I\ Under the statutes, proof of probable
cause for seizure and prosecution may throw on the claimant the
burden of proving innocence. 7 Defendant's refusal to produce
his books and papers, raises a presumption that if produced,
they would give a complexion to the case, at least unfavorable, if
not directly adverse, to the interest of the party. 8
42. ITnovdedge and notice.'] Defendant is bound by knowl-
edge or notice which had at any time been communicated to him
personally. 9 Also by that of which his agent was cognizant at the
time of the transaction of the agent, not only if the knowledge
was derived in the particular transaction, but equally if it was
previously acquired, within a limit reasonable to presume recol-
lection, and was such that the agent was at liberty to communi-
cate it to his principal. 10
1 Hackett v. Smelsley, 77 HI. 109.
8 Id. Compare Engelken v. Hilger, 43 Iowa, 563, s. o. 10 "West. Jur. 563.
8 Regel v. Bell, 77 111. 593.
4 Bedore v. Newton, 54 N. H. 117 ; Cook v. Ellis, 6 Hill, 466.
6 Jewett v. Wanshura, 43 Iowa, 574, s. c. 10 West. Jar. 569.
Miller v. Patterson, 31 Ohio St. 419.
i Wood v. United States, 16 Pet. 342 ; Taylor v. United States, 3 How. U. S. 197:
The Short Staple, 1 Gall. 103. And see Lilienthal's Tobacco v. U. S. 97 U. S. (7
Otto), 237. As to evidence of fraudulent intent, see Buckley v. U. S. 4 How. U. S.
251; Taylor v. U. S. 3 Id. 197; Alfonso v. U. S. 2 Story C. Ct. 421; Wood v. U. S.
16 Pet. 342; Bottomley v. U. S. 1 Story C. Ct. 135. As to competent evidence of
value or coat, see Wood v. U. S. 16 Pet. 842; Buckley v. U. S. 4 How. U. S. 2r>l ;
Alfonso v. U. S. 2 Story C. Ct. 421; Taylor v. U. S. 8 How. U. S. 197; and pages
806-11 of thisvoL
8 Clifton v. U. S. 4 How. U. S. 242, 247 ; The Luminary, 8 Wheat. 407. Compare
Chaff 'C v. U. S. 18 Wall. 645.
9 The Distilled Spirits, 11 Wall. 356, 366.
10 Id. This is the English rule (17 C. B. N. S. 466), adopted in the U. S. Sup.
Ct.; and see 33 Vt. 252.
784 ACTIONS FOR CAUSES DEFINED BY STATUTE.
43. Admissions and declarations.'] Where, as in the case of
proceedings to enforce forfeiture of a ship, 1 or against a distillery, 8
the forfeiture and the proceedings are in rem, and the knowledge
of the owner is not material, the admissions and declarations of
the master or lessee, made during his holding that character, are
competent. 8 So are memoranda and books containing relevant
entries, found upon the premises. 4
44. Cogency of proof ^\ A proceeding in rem for forfeiture,
is a civil and not a criminal proceeding within the rule as to proof
beyond reasonable doubt. 5 But the jurors ought to be clearly
satisfied. 6
VI. ACTIONS ON RECOGNIZANCES.
45. Mode of proof '.] The authority of the magistrate who
took the recognizance may be shown by parol evidence of his acts
in that capacity, without producing his commission. 7 If the
record to be proved is that of the court trying the case, the regu-
lar course is to produce and inspect the record. 8 Evidence is not
admissible to contradict the record. 9
1 U. S. v. Little Charles, 1 Brock. Marsh. 347.
8 Dobbin's Distillery v. U. S. 96 U. S. (6 Otto), 398, 399.
3 Id. 403.
4 Id.
8 Lilienthal'8 Tobacco v. U. S. 97 U. S. (1 Otto), 237, 267, 271; The Robort Ed.
wards, 6 Wheat. 187.
6 Lilienthal's Tobacco v. U. S. (above).
* Webster v. Davis, 5 Allen. 393, 396.
8 Longley v. Vose, 27 Me. 179, 184.
Id.; People v. Hurlbutt, 44 Barb. 126.
CHAPTER LVII.
PROCEEDINGS IN ADMIRALTY.
1. Mode of proof.
1. Mode of proof :] The strict rules of the common law in
respect to the admission of evidence, are not fully applied. 1 The
mode of proof is subject to rules prescribed by the Supreme
Court. 3 Ihe competency of witnesses depends on the laws of the
State in which the court is held. 3 The proofs must substantially
conform to and sustain the pleadings; and although the strict
rules of the common law in respect to variance are not followed,
yet, in general, the court will not permit a party to be surprised by
the exhibition of proof materially variant from the case stated in
the pleadings. But, unless the variance is calculated to mislead,
the court may proceed to a decree. 4
1 Elwell v. Martin, Ware, 63 ; The J. F. Spencer, 3 Ben. 337. In admiralty, the
admissions of the master, though made subsequently to the disaster, are competent
against the owner, on the ground that when the transaction occurred, the master rep-
resented the owner, and was his agent in navigating the vessel. This sort of evi-
dence is confined to the confessions of the master, and cannot be extended to any
other person in the employment of the boat, for in no proper sense has the owner in*
trusted his authority to any one but the master. The Potomac, 8 Wall. 690.
* U. S. U. S. g 862; Blease V. Garlington, 92 U. S. (2 Otto), 1. Regulations as
to proof in particular classes of actions, will be found in U. S. Rev. Stat.
3 U. S. R. S. 858. Except that there can be no exclusion for color, and that
the incompetency to testify against executors, dec., is specially regulated by the stat>
ute quoted at p. 70 of this vol.
4 2 Abb. U. S. Pr. 80; Rules for Court of Admiralty, No. 24, 61.
80 [785]
CHAPTER LVIII.
DEFENSES IN ABATEMENT.
1. Parties. 2. Another action pending.
1. Parties.~\ The mode of proving the facts necessary to
establish the incapacity of a party, or the interest of a person not
made a party, has already been discussed in the chapters on ac-
tions by and against particular classes of persons. The sworn
schedules in bankruptcy or insolvency made by plaintiff, and con-
taining no mention of the claim he sues on, are competent, 1 but
not conclusive, 2 Against him. The like schedules of the third
person, alleged to be the real party in interest, are not competent, 8
without evidence to connect plaintiff with them. Correspond-
ence between the plaintiff and the third person is competent,
if part of the res gestce*
2. Another action pending. 5 ] The pendency of another ac-
tion, to be admissible, must be pleaded, 6 unless it appears on the
face of the complaint. 7 Under an allegation of another action pend-
ing, a judgment recovered since commencement of the present
action is evidence unless offered as a bar. 8 The record, or at least
the docket entry, is the primary evidence. 9 Oral evidence of
the pendency of the action is secondary. 10 Oral evidence as to
the questions involved is admissible, within the limits stated in
respect to former adjudications. 11 Proof of the pendency of the
former action within reasonable limits of time, raises a presump-
tion of its continued pendency, which throws on plaintiff the bur-
den of showing the contrary. 12
I Springer v. Drosch, 32 Tnd. 486, s. c. 2 Am. R. 356.
8 See Cram v. Union Bank, 1 Abb. Ct. App. Dec. 461, affi'g 44 Barb. 426. A sworn
statement in a pleading is not a conclusive admission.
3 Turner v. See, 67 N. Y. 667.
4 May v. Brownell, 3 Vt. 463.
6 For the facts to be established, see Watson v. Jones, 13 Wall. 679.
8 White v. Talmage, 35 Super. Ct. (J. <fc S.) 223; Estes T. Farnham, 11 Minn. 423.
7 Moak's Van Santv. PI. 744. But see N. Y. Code Civ. Pro. 499.
8 Krekeler v. Kilter, 62 N. Y. 372. There should be a supplemental answer,
to make such judgment conclusive.
9 Philadelphia, <fec. R. R. Co. v. Howard, 13 How. U. S. 307.
10 Wright v. Maseras, 56 Barb. 521.
II See Chapter LXI ; s. p. Nichols v. Smith, 42 Barb. 381.
12 Fowler v. Byrd, Hempst. 213.
[786]
CHAPTER LIX.
DEFENSES DENTING OR IMPEACHING THE CONTRACT SUED ON.
I. DENIAL OF ASSENT. IL ILLEGALITY OF CONTRACT continued.
1. Fraud or deceit. 12 - estoppel by certificate.
2. Mistake. 13 - ora \ evidence.
8. Duress. 14 - variance.
4. Want of consideration. 15 - intent.
6. Statute of frauds. 16. covers for usury.
6. Forgery. W- ac * f a gent or co-trustee.
7. Alterations. I 8 - inception.
19. declarations and admissions.
IL ILLEGALITY OF CONTRACT. III. INCAPACITY OF CONTRACTING PARTY.
8. General rules. 20. Infancy.
9. Compounding felony. 21. new promise: admissions and
10. Sunday laws. declarations.
11. Usury: pleading; burden of proof. 22. Insanity.
I. DENIAL OF ASSENT.
1. Fraud or deceit.'] Fraud by defendant, 1 or his agent, 2 in
procuring the execution of even a sealed instrument sued on,
may always be proved, if alleged. 3 The burden is on the party
who relies on it to allege and prove it, 4 unless a fiduciary, re-
lation is shown. 44 A mere allegation of false representation
does not admit evidence of intent to deceive. 5 An allegation of
fraud does not admit of evidence of rescission, 6 nor of an omission
not shown to be fraudulent. 7
Inadequacy of consideration may be so gross as to be compe-
tent under an issue of fraud. 8 Evidence having a tendency to
establish fraud is not incompetent, by reason of the tendency be-
ing slight. 9 So of evidence slightly tending to show good faith. 10
Evidence of the general habits of the party alleged to be de-
1 Otherwise of that of a principal debtor in inducing sureties to sign, unless there
ia evidence that the creditor was privy to it. Coleinan v. Bean, 1 Abb. Ct. App.
Dec. 894.
" The representations of the agent being shown to have been made as part of the
resffestce. Sandford v. Handy, 23 Wenc). 20 ( >.
3 At common law as well as in equity. Hartshorn v. Day, 19 How. U. S. 211, 222.
4 Beatty v. Fishel, 100 Mass. 448 ; Vint v. King, 2 Am. Law Keg. 712. For a
summary of the material facts, under the new procedure, see Freuzel v. Miller, 37
Ind. 1, s. c. 10 Am. R. 62, and 17 Alb. L. J. 607. 4 Seo pp. 735, 236.
8 Lefler v. Field, 52 N. Y. 621 ; Dubois v. llermance, 56 N. Y/673, affi'g 1 Supreme
Ct. (T. & C.) 203.
' Fox v. Griffin, 2 Allen, 1, 7.
7 Dudley v. Scranton. 67 N. Y. 424.
8 Eyro v. Totter, 15 How. U. S. 42; Vint v. King (above).
' llubbard v. Briggs, 31 N. Y. 618.
10 See Gray v. Lessiugton, 2 Bosw. 257.
[787]
788 DEFENSES IMPEACHING THE CONTRACT SUED ON.
frauded, showing him peculiarly susceptible to be imposed on, is
competent. 1 The neglect to produce evidence in the power of the
party charged with fraud is especially significant on this issue. 2
Preponderance of evidence is enough. 8
The fact of having restored, or offered to restore, must be
alleged, to be admissible. 4
2. Mistake.'] The presumption is that a grantor, who was of
competent capacity to do business, knew the contents of a deed
signed and delivered by him. 5 His mistake must be clearly and
strongly proved before the court can relieve against it. 8 Evidence
of mental reservations, or of subsequent oral declarations, is not
enough, even where the deed remained in his possession. 7
3. Duress.']- Actual violence need not be proved. 8 The act
must be shown to have been induced by the coercion ; this is not
necessarily presumed. 9
4. Want of consideration.'] Original want of consideration
may be proved, when consideration is in issue. 10 Inadequacy of
consideration is not a defense ; u unless so gross as to sustain an
inference of fraud. 13 Subsequent failure of consideration, to be
admissible, even where it consists in the fact that the contract
was made in consideration of an executory agreement, which was
afterward broken, 18 must be pleaded.
1 Kauffman T. Swar, 5 Penn. St. (6 Barr.) 230.
* Cheney v. Gleason, 117 Mass. 557.
8 Jones v. Greaves, 26 Ohio St. 2, 9. c. 20 Am. R. 752. Compare p. 495 of this vol.
4 Devendorf v. Beardsley, 23 Barb. 656. An offer to allow judgment may be
enough. Harris v. Equit. L. Ass. S<>c. 64 N. Y. 196.
B Souverbye v. Arden, 1 Johns. Ch. 240. As to who has the burden of proof if
the signer is shown to have been illiterate, compare Add. on Contr. 7 ed. 226 ; King
T. Languor, 1 Nev. <fc M. 576; School Com. v. Kesler, 67 N. C. 443 ; Selden v. Myers,
20 How. U. S. 606 ; Stacy v. Ross, 27 Tex. 3; Sims v. Bice, 67 III. 88 ; Dorsheimer
v. Rorbach, 8 C. E. Green (N. J.), 46.
Id. T Id.
8 See United States v. Huckabee, 16 Wall. 414, and p. 270 of this vol. For con-
flicting definitions of duress, see 7 Wall. 214; 14 Id. 332; 49 Ind. 573, s. c. 19 Am.
R. 695 ; 70 N. Y. 497, and cases cited.
9 Feller v. Green, 26 Mich. 70. But compare Tilley v. Damon, 11 Cush. 247.
10 Payment of consideration expressed, though acknowledged under seal, may be
disproved, if material. Baker v. Cornell, 1 Daly, 469 (and see pp. 697, 738, 741, of
this vol.). But disproving it does not make the contract void aa against the con-
tractor for want of consideration. Id.
11 Earle v. Peck, 64 N. Y. 596, and cases cited.
12 Greer v. Tweed, 13 Abb. Pr. N. S. 427. Or except where, as in contracts in
restraint of trade, or between parties in a fiduciary relation (and, to some extent, in
specific performance), the court refuse to enforce without adequate consideration.
13 Batterman v. Pierce, 3 Hill, 171 ; Wilson v. Wilson, 87 Md. 1, B.C. 11 Am. R.
618. But compare Walker v. Millard, 29 N. Y. 375. To illustrate the distinction in
another way, if a note is given in consideration of the assignment of a patent, the
invalidity of the patent is an original want of consideration ; but if the patent be valid,
its worthlessnesa is only a failure of consideration ; and even this is not conceded to
be a defense, for the court may decline to inquire into the adequacy of the considera-
tion where there was no fraud or mistake. Miller v. Finley, 26 Mich. 249, s. c. 12
Am. R. 306 ; Eldridge v. Mather, 2 N. Y. 157 ; Nash v. Lull, 102 Mass. 60. s. c. 3
Am. R. 435, and cases cited. Compare Clough v. Patrick, 37 Vt. 421.
ILLEGALITY OF CONTRACT. 780
5. Statute of frauds.'] The rule of pleading, 1 and the princi-
pal rules as to the mode of proof, 8 have been already stated.
The burden is on defendant to show affirmatively that the
value was in excess of the statute limit, 3 or that the stipulation
precluded performance within one year, &c. 4 The statute of an-
other State, if relied on, should be proved as a fact. 5
6. Forgery.] The mode of proving handwriting has been
stated. 8 It is not competent to show that the person suspected
of the forgery lias forged the defendant's name in other instances, 7
nor that he has been already convicted of forging the paper in
suit. 8 Proof beyond reasonable doubt is not required. 9
In rebuttal of the defense of forgery of defendant's name to
an ordinary obligation to pay money, plaintiff may show that, at
about its date, defendant was trying to borrow. 10
7. Alterations.'] The rule has already been stated. 11
II. ILLEGALITY OF CONTRACT.
8. General rules."] Illegality must be pleaded, to be admis-
sible ; 12 and if the special ground is stated, other grounds not stated
are inadmissible. 13 It cannot be presumed except upon clear evi-
dence. 14 To bring a case within a statutory prohibition, defendant
should produce satisfactory evidence that the facts are such as to
make the statute applicable, and not leave to mere inference what
should be established by proof. 15
The usual test whether a demand connected with an illegal
I Pp. 374, 471, 622, 725 of this vol.
9 Requisite memorandum, pp. 292, 863 ; Auction sales, p. 327 ; Extension or modi-
fication, pp. 314, 870; Requisite delivery, p. 818 ; Part payment, p. 319; Part per-
formance, p. 731 ; Guaranty, p. 471
3 Crookshank v. Burrell, 18 Johns. 58.
4 Walker v. Johnson, 96 U. S. (6 Otto), 424.
5 Wilcox Silver Plate Co. v. Green, 9 Hun, 347, affi'd 72 N. Y. 17 ; Ellis v. Maxson,
19 Mich. 186, a. c. 2 Am. R. 81.
Pp. S91-6 of this voL
7 Rose. N. P. 93, citing Balcetti v. Serani, Peake Cas. 142 ; Griffiths v. Payne, A. A
E. 131. But compare Corser v. Paul, 41 N. H. 24 ; Stratton v. Farwell, 10 Allen, 31, n.
8 Castrique v. Imrie, L. R. 4 H. L. 414, 434, per BLACKBURN, J.
* Page 496 of this vol. ; .N. Y. Indemnity Co. v. Gleason, 7 Abb. New Caa. 834 ;
Blaeser v. Milwaukee, <fec. Ins. Co. 37 Wis. 31, 8. c. 19 Am. R. 747.
10 Stevenson v. Stewart, 11 Penn. St. 807. Compare p. 248 of this voL
II Pages 897, 406, 695 and 696 of this vol.
" Goss v. Austin, 11 Allen, 625; Rose. N. P. 846. Otherwise if it appear by
plaintiff's case. Russell v. Barton, 66 Barb. 539.
13 Dingeldein v. Third Avenue 11. R. Co. 9 Bosw. 79, rev'd, on another ground, in
87 N. Y. 575. This rule does not bind the court to enforce an unlawful contract.
14 Nelson v. Eaton, 26 N. Y. 410, s. c. 16 Abb. Pr. 113, reVg 7 Abb. Pr. 305, and
affi'g 15 How. Pr. 805. If the contract could be legally performed, an intention to do
that which is a violation of tho law must be shown. Waugh v. Morris, L. R. 8 Q. B.
202, 8. c. 5 Monk's Eng. 197.
16 Miller v. Roessler, 4 E. D. Smith, 234.
790 DEFENSES IMPEACHING THE CONTRACT SUED ON.
transaction is capable of being enforced by law is, whether the
plaintiff requires the aid of the illegal transaction to establish his
case. 1
Mere knowledge of the other party's illegal intent is not
usually enough, 8 but knowledge and giving aid is. 3 Common re-
port is not usually competent to charge plaintiff with knowledge. 4
Oral evidence is admissible to show an illegal intent, though
it contradict the terms of a written instrument; 5 but not neces-
sarily to show innocent intent contrary to a writing expressing
illegal intent. 6 The acts and declarations of each party, both be-
fore and after, as well as at the time of making the contract, are
competent against himself on the question of intent, 7 and they
may be examined as witnesses, 8 within limits already -stated. 9
The presumption that the law is known extends even to
foreigners, making abroad a contract to be performed within this
State ; 10 but not to persons, not citizens of this State, and making,
without the State, a contract to be performed without it. 11 For-
eign law is matter of fact to be alleged and proved. 12
9. Compounding felony. ,] It should appear, 1. That there was
an agreement to compound a felony ; 2. That the contract was the
result of that agreement ; and, 3. That the plaintiff knew of the
illegal consideration at the time of making the contract. 13 The
opinion of the public prosecutor, that all the evidence which the
government could produce would not be sufficient to sustain the
charge, is not relevant. 14
10. Sunday laws.~\ It is not enough to prove that the nego-
tiation of the contract was made, and its terms agreed on, on
Sunday, if the contract was completed and perfected on a secular
day ; nor even that the instrument was executed on Sunday if it
1 Holt v. Green, 73 Penn. St. 1 98, s. c. 13 Am. R. 737, and cases cited ; Gregory v.
Wilson, 36 N. J. (7 Vroom), 315, s. c. 13 Am. R. 448 ; Alvord v. Latham, 31 Barb. 294.
Compare HOWE, J., Pereuilhet v. Hautho, 23 La. Ann. 294, s. c. 8 Am. R. 695.
* Tracy v. Talmage, 14 N. Y. 162 ; Michael T. Bacon, 49 Mo. 474, s. c. 8 Am. R.
138 ; TALIAFERRO, J., Hubbard v. Moore, 24 La. Ann. 591, s. c. 13 Am. R. 128 ; Ma-
hood v. Tealza, 26 La. Ann. 108, s. c. 21 Am. R. 546.
8 Hull v. Ruggles, 56 N. Y. 424, affi'g 1 Supra. Ct. (T. <fe C.) 18, s. c. 65 Barb. 432.
4 Hedges v. Wallace, 2 Bush (Ky.), 442. Knowledge of agent held not imputable
to principal. Stanley v. Chamberlain, 39 N. J. L. 565. Compare p. 783 of this vol.
5 Cassard v. Hinman, 1 Bosw. 207, affi'g 1 4 How. Pr. 84 ; again, 6 Bosw. 8 ; Sher-
man v. Wilder, 106 Mass. 537.
6 Porter v. Havens, 37 Barb. 343. Compare paragraph 13.
7 Brown v. Brown, 34 Barb. 533 ; Sherman v. Wilder (above).
8 See pp. 336, 620 and 793 of this vol.
9 Pp. 620 and 793 of this vol.
10 Dewitt v. Brisbane, 16 N. Y. 508. Compare Smeltzer v. White, 92 U. S. (2 Otto),
390, 393.
11 Merchants' Bank v. Spalding, 9 N. Y. 53, 62, affi'g 12 Barb. 302.
See Thatcher v. Morris, 11 N. Y. 437.
13 Earl v. Clute, 2 Abb. Ct. App. Dec. 1.
14 Bigelow v. Woodward, 15 Gray, 560 ; and see Davies v. London, <fec. Marine Ins.
Co. 38 L. T. R. N. S. 478. Record of acquittal not conclusive of innocence. People
v. Buckland, 13 Wend. 592; see, also, pp. 655 and 671 of this vol.
ILLEGALITY OF CONTRACT. 791
was delivered on a secular day. 1 A subsequent ratification on a
secular day may be proved, even by acts, without express prom-
ise. 8 To prove a work of "necessity or charity ," honest belief
that a case of necessity, &c., existed, is not alone sufficient; 3 but
the object of the act done being proved, belief is relevant, and
may go to the jury even though the ground of belief or means
of knowledge have not been shown. 4
11. Usury : Pleading and Burden of Proof. ~] To be ad-
missible, usury must be pleaded; 5 and a general allegation, with-
out stating the facts relied on as constituting usury, is not enough
to admit evidence of essential facts not alleged. 6 The facts alleged
for this purpose must be proved as laid, or the defense fails. 7
If foreign law is relied on, both the law 8 and the facts neces-
sary to bring the contract under foreign law 9 must be alleged,
and proved. There is no presumption that the usury laws of this
State prevail in another State or country. 10 An obligation made
without the State, and not designating a place of payment, is not
presumed usurious, though the rate exceeds our limit. 11 On a
contract made here between persons resident here, and which
would be usurious by our law, but which is to be performed in a
State where it would not be usurious, intent to evade may be pre-
sumed in the absence of explanation. 13
The affirmative of the issue is upon the defendant 13 to prove
not merely an usurious intent, but facts from which usurious in-
tent is to be deduced. 14 Evidence supporting allegations that the
1 Lovejoy v. Wbipple, 18 Yt. 379 ; Strainer v. Jones, 24 Id. 317, 321. So of salea
and services on a secular day pursuant to a contract on Sunday. Cranson v. Goss,
107 Mass. 439, s. c. 9 Am. R. 45.
2 Sumner v. Jones (above).
z Johnson v. Town of Irasburgh, 47 Vt. 28, s. o. 19 Am. R. 111.
4 Doyle v. Lynn & Boston R. R. Co. 118 Mass. 195, s. o. 19 Am. R. 431.
8 Fay v. Grimsteed, 10 Barb. 321 ; Mechanics' Bank of Williamsburgh v. Foster,
44 Barb. 87, s. c. 19 Abb. Pr. 47, 29 How. Pr. 408 ; Frank v. Morris, 67 111. 138, s. c.
11 Am. R. 4.
6 Watson v. Bailey, 2 Duer, 609 ; Fay v. Grimsteed (above) ; Smalley v. Doughty,
6 Bosw. 66 ; Manning v. Tyler, 21 N. Y. 667. Compare Dagal v. Simmons, 23 Id. 491.
I Griggsv. Howe, 2 Abb. Ct. App. Dec. 291, affi'g 31 Barb. 100.
8 Cutler v. Wright, 22 N. Y. 472.
9 Dolman v. Cook, 14 N. J. Eq. 56 ; and see pp. 229, 335 of this vol. For a con-
venient clue to the conflicting authorities on the law of place, see Dickinson v. Ed-
wards, 7 Abb. New Cas. 65, and cas. cit., and p. 411 of this vol. ; Merchants' Bk. of Can-
ada v. Griswold, 72 N. Y. 472, affi's* 9 Hun, 561 ; Cope v. Wheeler, 41 N. Y. 303, affi'g
Cope v. Alden, 63 Barb. 350, s. c. 37 How. Pr. 181. The apparent conflict in the cases
is reduced when it is considered that the courts lean toward sustaining a contract mado
without corrupt intent, if it can be sustained by the law of either place. General
expressions in the opinions aa to what law applies, often mean what law the court
may apply in support of the contract, not what law it must apply in prohibition of it.
r Davis v. Garr, 6 N. Y. 124 ; Cutler v. Wright, 22 N. Y. 472.
II Davis v. Garr (above).
19 Berrien v. Wright, 26 Barb. 208.
13 Haughwout v. Garrison, 69 N. Y. 839, affi'g 40 Super. Ct. (J. A S.) 550.
14 Valentine v. Conner, 40 N. Y. 248 ; Eldridge v. Reed, 2 Sweeny, 155.
702 DEFENSES IMPEACHING THE CONTRACT SUED ON.
security sued on was given in substitution for a prior security of
the same or less amount, and that the prior security was usurious,
throws on plaintiff the burden of giving evidence to purge the
new security of the presumption of usury. 1
12. estoppel by certificate, &c.~] Plaintiff may exclude
evidence of usury by proving that, without any notice of the facts
constituting usury, he took the securities and advanced the money
on the faith of defendant's affidavit or certificate that there was
no defense, and that he would not have taken them had he had
any notice of usury. 2 It is essential to show that the purchase
was in reliance 3 on a certificate or affidavit which had already
been made. 4 A certificate may be rebutted by evidence that it
was fraudulently obtained ; but not by evidence of negligently
signing while ignorant. 5 Oral representations are equally compe-
tent. 6 Representations by the maker do not estop the payee. 7
Representations by the payee do not estop the maker. 8 A guar-
anty of payment does not estop ; 9 nor does accepting a convey-
ance of the equity of redemption; 10 but assuming payment on re-
ceiving a conveyance does. 11
13. oral evidence.'] The fact that the contract is in writing
does not exclude oral evidence to show that though apparently-
innocent it was usurious; 13 or, though apparently usurious, it was
innocent. 13
14. variance.] A substantial variance as to the rate ex-
acted, 14 or as to the ground or pretext on which it was exacted, 15 is
material and fatal, if plaintiff was misled to his prejudice ; other-
wise not. 16
15. intent.'] The intent which is essential, is not intent to
1 Stanley v. Whitney, 47 Barb. 586.
s Mason v. Anthony, 3 Abb. Ct. App. Dec. 207 ; Smith v. Lombardo, 15 Hun,
415, 417 ; Dinkelspiel v. Franklin, 7 Hun, 339, 840.
3 Wilcox v. Howell, 44 N. Y. 398, affi'g 44 Barb. 396.
4 Payne v. Burnham, 62 N. Y. 69, rev*g 2 Hun, 143, s. c. 4 Supm. Ct. (T. <fc C.) 678.
6 Dinkelspiel v. Franklin, 7 Hun, 339, affi'g 72 N. Y. 108 ; see, also, p. 443 of this
vol. and cases cited.
6 Am. L. Ins. <fe Trust Co. v. Bayard, 5 N. Y. Leg. Obs. 13 ; Ferguson v. Hamil-
ton, 35 Barb. 427 ; and see Ahern v. Goodspeed, 9 Hun, 263 ; Benedict v. Caffe, 5
Duer, 226 ; Robbins v. Richardson, 2 Bosw. 248 ; Adams v. Blancan, 6 Robt. 334.
7 Hackley v. Sprague. 10 Wend. 114.
8 Dowe v. Schutt, 2 Den. 621.
9 Tiedemann v. Ackerman, 16 Hun, SOY.
10 Brooks v. Avery, 4 N. Y. 225.
11 Murray v. Barney, 34 Barb. 336. Compare Berdan v. Sedgwick, 44 N. Y. 626,
affi'g 40 Barb. 359.
" Rohan v. Hanson, 11 Cush. 44.
13 Hollenbeck v. Shutts, 1 Gray, 431 ; 2 Whart. Ev. 1044 ; Shoop v. Clark, 4
Abb. Ct. App. Dec. 235.
14 Griggs v. Howe. 2 Abb. Ct. App. Dec. 291, affi'g 81 Barb. 100; Frank v. Mor-
ris. 57 111. 138, B. c. 11 Am. R. 4,
15 Gasper v. Adams, 28 Barb. 441 ; Brown v. Champlin, 66 N. Y. 214, 219.
18 Catlin v. Gunter, 11 N. Y. 368, s. o. 10 How. Pr. 315, rev'g 1 Duer, 253 ; Duel
v. Spence, 1 Abb. Ct. App. Dec. 659.
ILLEGALITY OF CONTRACT. 793
violate the statute, 1 but intent to take more than the rate fixed, and
this is to be deduced from the facts. 2 The evidence must sustain
an inference that both parties were cognizant of the facts essential
to usury, 3 and that there was intent, both on the part of the lend-
er 4 and of the borrower. 5 But it need not be shown that the intent
was communicated. 6 Each party may be compelled to testify to
his intent, 7 except in those jurisdictions where, as in New York,
usury is indictable, and there the privilege 8 is a protection, not
onlyto a party 9 but to an agent 10 in the usurious transaction.
Where the facts are such that the question of legality depends
upon intent, a party may be allowed to testify, even in his own
favor, whether he intended to take or pay usury, 11 but not whether
it was his understanding that the other intended to take usury, for
this is only an inference. 12 If the facts proved constitute usury,
testimony to innocent intent cannot sustain a finding that there
was no usury; 13 and if the facts do not constitute usury, intent is
not material. 14
Reservation of interest in excess of the legal limit is presump-
tive, but not conclusive, 15 evidence of usury. Slight excess may
be explained by evidence of mistake or inadvertence. 16 The mere
fact that the lender reserved part of the consideration, 17 or that
the security reserved interest for a term anterior to its date, 18 are
not sufficient to establish usury.
A subsequent payment of a bonus, in addition to legal interest,
will, without direct evidence of agreement, sustain a finding of
original agreement to pay it. 19
1 And ignorance of the statute is not material. Bank of Salina v. Alvord, 31
N. Y. 473.
* Fiedler v. Darrin, 60 N. Y. 437, rev'g 59 Barb. 651 ; and see 68 N. Y. 308.
8 Powell v. Jones, 44 Barb. 521.
4 Woodruff v. Hurson, 32 Barb. 557.
5 Keyes v. Moultrie, 3 Bosw. 1.
Ayrault v. Chnmberlain, 83 Barb. 229.
7 See, as to proving intent, pp. 336, 618, 620, of this vol.
8 For the rule as to privilege, see p. 620 of this vol.
9 Fellows v. Wilson, 81 Barb. 162. But the court may require a party sworn in
his own behalf on an issue of usury, to answer whether he is not under indictment
for usury. Southworth v. Bennett, 68 N. Y. 659.
10 Curtis v. Knox, 2 Den. 341 ; Henry v. Salina Bank, 1 N. Y. 83, affi'g 2 Den. 155;
Vilas v. Jones, 1 N. Y. 274.
11 Black v. Ryder, 6 Daly, 304.
" Central Bank v. St. John, 17 Wis. 157; Hogg v. Ruffner, 1 Black, 115. Com-
pare Burt v. Gwinn, 4 Har. <fe J. (Md.) 607, 617.
13 Austin v. Walker, 45 Iowa, 627.
14 Smith v. Paton, 81 N. Y. 66, affi'g 6 Bosw. 145.
16 Archibald v. Thomas, 3 Cow. 284.
16 Marvine v. Hymers, 12 N. Y. 223. Compare Utica Ins. Co. v. Tilman, 1 "Wend.
655.
11 Booth v. Swezey, 8 N. Y. 276. The fact that the borrower gave temporary
credit without interest, for part of the loan, does not necessarily prove usury, but
may be explained. Brown v. Champlin, 66 N. Y. 214, 219.
ls Marvin v. Feeter, 8 Wend. 632. U^ess it is shown affirmatively that the lender
did not provide the money on the day of date, and hold it in readiness. Dowdall v
Lenox, 2 Edw. 267.
" Catlin v. Gunter, 11 N. Y. 368, s. c. 10 How. Pr. 315, rev'g 1 Duer, 253.
794 DEFENSES IMPEACHING THE CONTRACT SUED Off.
Evidence of nsury in former dealings of the parties is not
enough; 1 but a general arrangement for usurious accommoda-
tions, under which the loan in question was made, is; 2 and a series
of loans, each followed by the voluntary payment of a usurious
bonus, is competent on the question of intent. 8
16. cowers for usury. .] If a contract is not necessarily usu-
rious the burden is on defendant to prove the guilty intent, and
that the contract was a cover for usury and for the loan of money
upon usury, 4 and that the parties had knowledge of the facts con-
stituting the usury. 5 On these questions circumstantial evidence,
is freely received.
Evidence of usage cannot be received to justify a transaction
otherwise usurious. 7 Profitableness of selling exchange cannot
be assumed without proof ; 8 but if profitableness is shown, evi-
dence that buying exchange was exacted as a condition of the
loan, proves usury. 9 If the bank was entitled to reserve for ex-
change, defendant must prove the current rate of exchange in
order to show the excess of legal interest. 10
To show that commissions charged for advances in the course
of business were usury, the burden is on defendant to give
some evidence showing them to be unusually high. 11 The court
cannot take judicial notice of the usual rate, nor determine it by
reference to adjudications in reported cases between strangers. 13
Where the lender made a charge for expenses, the facts of neces-
sary labor and inconvenience, and the state of health affected there-
by, and the fact that the money was previously safely invested, if
shown to have been communicated to the borrower as the lender's
reasons for the charge, are competent in the lender's behalf ; and
so is the testimony of the lender that the reservation was intended
as compensation for trouble and expense, and not for the loan. 18
17. act of agent or co-trustee.'] If the principal did not
take usury nor know of its being taken, evidence that his agent,
without sanction from him, exacted a bonus upon the pretense
1 Brinckerhoof v. Foote, Hoffm. 291 ; Ross v. Ackerman, 46 N. Y. 210 ; Jackson
v. Smith, 7 Cow. 717.
9 Keutgen v. Parks, 2 Sandf. 60.
3 Storer v. Coe, 2 Bosw. 661.
4 Matthews v. Coe, 70 N. Y. 239, 242.
5 Thomas v. Murray, 32 N. Y. 605, rev*g 34 Barb. 157 ; Valentine V. Conner, 40
N. Y. 248.
6 See Quackenbos v. Sayer, 62 N. Y. 344, affi'g 4 Supm. Ct. (T. <fe C.) 424, s. o. 2
Hun, 157 ; Knick. L. Ins. Co. v. Nelson, 7 Abb. New Cas. 170, affi'g 13 Hun, 321.
1 Dunham v. Gould, 16 Johns. 367, affi'g, as Dunham v. Dey, 13 Id. 40; Bank of
Utica v. Wager, 2 Cow. 712 ; Pratt v. Adams, 7 Paige, 615.
8 Murray v. Barney, 34 Barb. 330.
Marvine v. Hymers, 12 N. Y. 223 ; Internat. Bk. v. Bradley, 19 N. Y. 245.
10 Wheeler v. National Bank, 96 U. S. (6 Otto), 268.
11 Seymour v. Marvin, 11 Barb. 80, 87.
"Id.
Thurston T. Cornell, 38 N. Y. 281, s. c. 1 Transc. App. 258.
ILLEGALITY OF CONTRACT. 795
that it was for the principal, does not prove usury, 1 even though
the borrower believed the agent was dealing with him as a prin-
cipal. 2 The burden is upon defendant to establish that the cred-
itor was a party to the agreement for the bonus, or accepted the
benefit of it. 3 If he accepted it, direct evidence that he knew
that it came from the borrower is not essential. 4
Where one of several trustees is shown to have exacted a
bonus, the burden is on defendant to show sanction by the others. 5
Election to ratify usury will not generally be presumed with-
out evidence. 8
18. inception.'] "Where original want of consideration and
usurious transfer in inception is alleged, the question whether the
obligation had inception before its transfer depends on whether
the transferor could have sued on it. 7 Evidence that there had
been no intent to deliver and no delivery in fact, is enough on
this point. 8 One who takes a note at its inception at a greater
discount than the legal rate, must be conclusively presumed to
have intended to loan, as the transaction can have no other char-
acter. His want of knowledge that the note takes its inception
in his hands, is immaterial. 9
19. declarations and admissions.'] Oral evidence is admis-
sible to show that one security was given and accepted in pay-
ment of or substitution for another, 10 and for this purpose it is
not essential to produce the other, 11 unless some question arises on
its contents. Declarations and admissions of the party are admis-
sible in favor of the declarant or his principal, if part of the res
gestcB. The rules as to accounts, memoranda and entries in the
course of business, have been already stated. 13
1 Estevez v. Purdy, 66 N. Y. 446, rev'g 6 Hun, 46. See conflicting cases in 29
Am. 11. 70, note.
4 Lee v. Chadsey, 3 Abb. Ct. App. Dec. 43.
8 Guardian Mut. L. Ins. Co. v. Kashaw, 66 N. Y. 644, 647, rev'g 3 Hun, 616.
4 Earle v. Hammond, 2 Abb. N. C. 368.
8 Van Wyck v. Walters, 16 Hun, 209; Stoat v. Rider, 12 Hun, 574.
6 Brackett v. Barney, 28 N. Y. 333.
7 Eastman v. bhaw, 65 N. Y. 522, 527.
8 Id. 529.
Id. 530.
10 Gilbert v. Duncan, 29 N. J. L. (5 Dutch.) 133 ; Duncan v. Gilbert, Id. 521.
11 Id.
111 Ripley v. Mason, Hill & D. Supp. 66. Declarations to a stranger after the bar-
gain was concluded, and on the evening of the same day, no part of the res gettet,
Smith v. Webb, 1 Barb. 230.
13 P. 819,'<fec. of this vol. For instances of their application, see Bank of Utica v.
Hillard, 5 Cow. 153; see, also. Id. 419 ; Churchman v. Lewis, 34 N. Y. 444; East
River Bank v. Hoyt, 32 N. Y. 119, rev'g 41 Barb. 441 ; Bank of Monroe v. Culver,
2 Hill, 531.
796 DEFENSES IMPEACHING THE CONTRACT SUED ON.
III. INCAPACITY OF CONTRACTING PARTY.
20. Infancy."] Infancy, to be admissible, must be pleaded. 1
It may be proved in the modes stated in Chapter Y. A com-
plaint on contract does not admit a recovery for damages on evi-
dence of defendant's fraud in falsely representing that he was of
age. 2 The burden is on a defendant pleading infancy by a foreign
law, to allege and prove the foreign law; 3 but the court may pre-
sume that the law of a sister State is the same as the common
law. 4
21. new promise : Admissions and declarations.'] A new
promise is admissible in rebuttal, though not alleged. 5 Other-
wise of a promise to pay something else by way of compromise. 6
If the issue is upon a new promise after defendant came of age,
an express promise must be established, unless the demand is for
necessaries.' An explicit acknowledgment may be such as to
sustain a finding of an express promise. 8 The ratification should
be a promise to a party in interest or his agent, or an explicit ad-
mission of an existing liability from which a promise may be im-
plied. It must be equivalent to a new contract; 9 and it will sus-
tain the action, although the original demand has been barred by
the statute. 10 In the absence of evidence to the contrary, an
adult, 11 making such a promise, may be presumed to have known
the law and the facts necessary to establish his exemption from
legal liability. 12
If the demand is for necessaries, 13 the burden is on the defend-
ant to show that during minority he was properly supplied by
parent or guardian, if he rely on that. 14
For the purpose of showing what the original transaction was,
1 Moak's Van Santv. PI. 363. Contra, at common law. Wailing v. Toll, 9 Johns.
141. Infancy at time of suit, as ground of abatement, is not matter for evidence at
the trial. The remedy is by preliminary motion. Treadwell v. Bruder, 3 E. D.
Smith, 596.
' J Studwell v. Shapter, 64 N. Y. 249. Nor does an allegation of the false repre-
sentation in the reply. Brown v. McCune, 6 Sandf. 224.
3 Thompson v. Ketcham, 8 Johns. 189.
4 Holmes v. Mallett, 1 Morris, 82.
8 Esselstyn v. Weeks, 12 N. Y. 635; Dusenbury v. Hoyt, 53 Id. 621.
6 Bliss v. Ferryman, 2 111. (1 Scam.) 484.
i Gay v. Ballou, 4 Wend. 403; Millard v. Hewlett, 19 Wend. 301.
8 Bank of Silver Creek v. Browning, 16 Abb. Pr. 272.
9 Goodsell v. Myers, 3 Wend. 479.
10 Halsey v. Reid, 4 Hun, 777. ,
11 When to a plea of infancy plaintiff replied and proved a new promise; Held,
that the burden was on the defendant to prove he was still an infant, when he mado
it. Bigelow v. Grannis, 4 Hill, 206 ; Bay v. Gunn, 1 Den. 108 ; and see Hartley v.
Wharton, 11 Adol & E. 934.
18 Taft v. Sergeant, 18 Barb. 320. Contra, Swell's Cas. 29. See, also, Rawley V,
Rawley, 17 Moak's Eng. 121, .; Ring v. Jamison, 2 Mo. App. 684.
13 See page 178 of this vol.
" Parsons v Keys, 43 Tex. 557.
ILLEGALITY OF CONTRACT. 797
the acts, declarations, and admissions of defendant, though made
before he came of age, are competent against him. 1 Those of his
parent or guardian, as to his liability, are not. 3
22. Insanity. .] A denial of the making or delivering of the
contract does not admit evidence of defendant's unsoundness of
mind in making and delivering. 3 An allegation of nnsoundness,
coupled with a denial of having authorized any person to make
the contract, and of the making of such a contract, only puts
sanity in issue. 4 The burden to establish insanity is on the defend-
ant. The presumptions and modes of proof are the same as in
an action to rescind. 5
1 Haile v. lillie, 3 Hill, 149; Ackerman v. Runyon, 3 Abb. Pr. Ill, s. o. 1 Hilt.
169.
s Whart. Ev. 1208.
8 Dearmond v. Dearmond, 12 Ind. 455.
4 Byrd v. Nunn, 26 Weekly R.
6 See page 733 of this vol. For the mode of proving what are necessaries, see page
178 of this vol.
CHAPTER LX.
PAYMENT OB OTHER DISCHARGE.
I. PAYMENT.
1. Pleading; and burden of proof.
2. Oral evidence; res yestce.
8. Authority to pay.
4. Agent's authority to receive.
6. presumed from agency in sale.
6. from possession of security, Ac.
7. Payment to assignor.
8. to executors, trustees, <fec.
9. to sheriff.
10. Payment by mail.
11. by check or draft.
12. by note, <fcc., of debtor or third
person.
13. by obligation of joint debtor, <fcc.
14. by delivery of property.
15. Payment of collateral.
16. Receipts.
17. Part payment, in full.
18. Admissions; entries and memo-
randa.
19. Possession of instrument ; indorse-
ments.
20. Presumption of payment from sub-
sequent transactions.
21. Circumstantial and corroborative
evidence.
22. Application by the debtor.
23. by the creditor.
24. by the court.
I. PAYMENT continued.
25. Presumption of payment from lapse
of time.
II. ACCORD AND SATISFACTION.
26. Mode of proof, and effect.
III. ACCOUNT STATED.
27. Mode of proof, and effect.
IV. COMPROMISE AND COMPOSITION.
28. Mode of proof, and effect.
V. TENDER.
29. Necessity, and mode of proof.
VI. RELEASE.
30. Mode of proof, and effect.
31. Oral evidence.
3^. Impeaching.
VII. SURETYSHIP AND MODIFICATION OF
CONTRACT.
33. Defendant a surety.
34. Modification.
VI H. DISCHARGE.
35. In bankruptcy.
36. impeaching.
37. In insolvency.
38. New promise.
I. PAYMENT.
Pleading" and burden of 'proof. .] Payment 1 is not admissi-
ble in evidence unless pleaded. 2 A defendant pleading payment,
or tender and readiness to pay, has the burden of proof. 3 And if
1 Even though after the commencement of the action. Hawes v. Woolcock, 30
Wis. 213.
4 Greenl. Ev. 473, 516 ; Baker v. Kistler, 13 Ind. 63. Except, perhaps, where the
complaint is a mere general allegation of indebtedness. Marley v. Smith, 4 Kans.
183. Even part payment is not admissible in mitigation, unless pleaded (McKyring v.
Bull, 16 N. Y. 297), and may not be available though p.-oved by plaintiff (Seward v.
Torrence, 5 Supm. Ct. [T. & C.] 323), unless the existence of some payment is con-
ceded by the complaint. Quin v. Lloyd, 41 N. Y. 349, rev'g 1 Sweeny, 253.
But a specific denial of a specific allegation of non-payment, may be equivalent to
an allegation of payment. Van GiesftQ v. Van Giesen, 10 N. Y. 316, affi'g 12 Barb.
620.
3 North Pennsylvania R. R. Co. v. Adams, 54 Penn. St. 94 ; Gernon v. McCan,
23 La. Ann. 84.
[798]
PAYMENT. ' 799
the payments pleaded are specified, evidence of other payments
is not admissible 1 without amendment.
A general allegation of payment admits evidence of payment
in cash or in any other mode/ and by any agency, 8 which in law
amounts to satisfaction by the transfer of an equivalent ; but
not. other modes of avoidance, 4 such as taking other security and
releasing it again, to defendant's prejudice ; 5 nor a set-off. 6
Under an allegation of payment a guarantor or surety may
show any specific payment or even an appropriation by the prin-
cipal of property accepted in payment by the creditor, but not a
set-off or counter-claim in favor of the principal, except under
circumstances appealing to the equitable consideration of the
court. 7
2. Oral evidence Res gestce.'} Payment 8 in money may be
proved by an eye-witness, without producing or accounting for a
receipt passed, 9 but the receipt is then competent as part of the
res gestce. 10 A receipt for other property in payment, if such as
to embody a contract, should be produced or accounted for. u
Delivery of money, without more, is presumed to be in payment
of some debt. The rule as to declarations and admissions of
agents has been already stated. 12
In applying the rule of the res gestce declarations and entries
made at the time and place of paying and before the transaction
is fully closed and other scenes intervene as, for instance, a re-
quest for and refusal of a receipt with the reason given, 14 are
competent ; but previous declarations to a third person, of intent
to obtain money for the purpose of paying, 15 or declarations to a
third person after sending money, of having sent a certain
1 Hoddy v. Osborn, 9 Iowa, 517.
* Farmers' <fe Citizens' Bank v. Sherman, 33 N. Y. 69, affi'g 6 Bosw. 181 ;
Moorehouse v. Northrop, 33 Conn. 380. .
8 Wolcott v. Smith, 15 Gray, 537. Thus the fact of the delivery of property on
an agreement to sell and apply the proceeds to payment, ifec. is admissible. Haggles
v. Gatton, 50 111. 412. So is an account stated between plaintiff and defendant and
payment of the balance. Rose. N. P. 655, citing Callander v. Howard, 10 C. B. 290 ;
L. J. 19 C. P. 312.
4 Walters v. Washington Ins. Co. 1 Iowa, 404, 409.
5 Ilarley v. Kirlin, 45 Penn. St. 49, 58.
Green v. Storm, 3 Sand. Ch. 305.
1 Coe v. Cassidy, 6 Daly, 242, and cases cited.
8 Even of a judgment (Vidiclir v. Cousin, 6 La. Ann. 489), or a mortgage (Mauzey
v. Bowen, 8 Ind. 198).
Keene v. Meade, 3 Pet. 1, 7, affi'g Meade v. Keane, 3 Crnnch C. Ct. 51. Except,
perhaps, in the case of payments to public officers required by law to give receipts.
See pp. 260, 261 of this vol.
10 Van Keuren v. Corkina, 66 N. Y. 77.
11 See Townsond v. Atwater ; 5 Day, 298.
18 Pages 44, 241 . 276 and 48') of this vol. Jenks v. Burr, 56 111. 450.
13 See pp. 44, 245, 2fi4 of this vol. and Strange v. Donohue, 4 Ind. 327.
14 Fifield v. Richardson, 34 Vt. 410, 418.
18 Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475, and eee Wilson v. Pope, 37 Barb,
821.
80Q PAYMENT OR OTHER DISCHARGE.
amount, 1 are not. The rule of the res gestce admits declarations
and entries not brought to the knowledge of the party against
whom they are offered, if offered, not to show the fact of pay-
ment, but the party's intention or application of a payment, the
fact of payment and mutuality of intent being otherwise proved. 3
3. Authority to pay.] Authority of the person paying need
not be proved. 3
4. Agents authority to receive.*] In respect to a debt, due in
the ordinary course of business, evidence of payment made dur-
ing business hours to one found in plaintiff's counting-room, ap-
parently intrusted with the conduct of business there, is sufficient, 5
and is ordinarily conclusive. 6
An agent's authority to receive, even payments expressly
stipulated to be paid to the principal, may be shown by evidence
of recognition by the principal. 7 But special authority in each
case is not evidence of general authority. 8 Evidence of the
principal's admission that the money was properly paid to the
alleged agent is primary and sufficient evidence of the agent's
authority. 9 Recognition of the payment by receiving the money
from one assuming to be an agent without authority, is not recog-
nition of his authority to give a receipt in full, or an admission
that no more was due than was paid. 10 In an action against an
individual, evidence that he had a partner interested in the con-
tract sued on, lets in a receipt proven to have been signed by
the partner in the firm name." Payment to one of several joint
creditors may be proved if he was the agent of the others. 13 Off-
setting the debt against an agent's indebtedness is not payment, 18
even though good faith appear. 14
5. presumed from agency in sale."] An agent selling for
an unknown principal is presumed to have authority to receive
payment of the price. 15
1 Young v. Commonwealth, 28 Penn. St. 601, 604.
2 This I deem the sound rule, though some authorities seem adverse. See pp.
245, n. 4, and 264, n. 2, of this vol.
3 Sanford v. McLean, 3 Paige, 117; and see Tacey v. Irwin, 18 "Wall. 549, 551 ; 9
Id. 326 ; Gernon v. McCan, 23 La. Ann. 84. Otherwise, if he did not pay in satisfac-
tion, or the payment was revoked. Rose. N. P. 658, 659.
4 For other rules as to evidence of authority to receive payment, see pages 241,
252, 275, 279, 480, <Jrc. of this voL
6 Barrett v. Deere, M. fe M. 200, Ld. TENTERDEN, C. J.
Barrett v. Deere (above); Rose. N. P. 657.
T Bronson's Exr. v. Chappell, 12 Wall. 681, 683.
8 Smith v. Kidd, 68 N. Y. 130, 138.
Doyle v. St. James Church, 7 Wend. 178.
10 Sewanee Mining Co. v. Best, 3 Head (Tenn.), 701.
11 Shepard r. Ward, 8 Wend. 542.
14 Wright v. Ware, 68 Geo. 150; and see pp. 188, <fec. of this vol. and as to part,
ners, 218-22, and Homer v. Wood. 11 Cush. 62.
13 Henry v. Marvin, 3 E. D. Smith 71 ; Pearson v. Scott, 38 L. T. R. N. S. 747.
14 Underwood v. Nicholls, 17 C. B. 239.
ls Henry v. Marvin (above).
PAYMENT. 801
One selling for a known principal is not presumed, from that
fact alone, to nave authority to receive payment x unless he is
permitted and able to deliver the thing sold, in which case his
authority must be presumed, in the absence of evidence to the
contrary. 2 Such authority cannot be presumed for the purpose
of a payment before due/ A local usage, allowing mere selling
brokers to receive -payment, is not admissible for the purpose of
showing authority in the broker to receive such payment.*
6. from possession of security, <&c.~] Possession of a nego-
tiable security drawn or indorsed so as to be in effect payable to
bearer is presumptive evidence of authority to receive payment.
Mere possession of a negotiable security so expressed or in-
dorsed as to be payable to another than the possessor, 5 or of a non-
negotiable security, such as a bond and mortgage, 6 is not alone
sufficient to authorize an inference of authority. Possession,
together with the fact that the one in possession originally took
the security for the owner, or negotiated and made the loan for
which the security was taken, and was thereafter intrusted by
the owner with its possession, is sufficient. 7 In such cases it is
incumbent upon the debtor who makes payments to the agent, to
show that the securities were in his possession on each occasion
when the payments relied on were made. 8
The presumption of authority terminates upon the principal's
death. 9 Without the custody of the obligation, neither the fact
that the assumed agent was the one through whom the loan was
made or the security taken, nor the fact that he had usually been
employed in the receipt of money for the creditor, is sufficient
evidence of authority. 10 Possession, with authority to receive in-
terest, does not imply authority to receive principal. 11 Authority
to receive payment does not authorize the agent to receive it be-
fore it is due. 12 Authority to examine title does not imply au-
thority to receive money to pay off liens. 13 Authority to foreclose
does not imply authority to receive part payment nor to receive
and collect notes on time. 14
1 Higgins v. Moore, 84 N. Y. 417, rev'g 6 Bosw. 344.
* Wbiton v. Spring, 74 N. Y. 169.
> Id. Contra, Rose. N. P. 657.
4 Biggins v. Moore (above) ; Pearson v. Scott, 38 L. T. R. N. S. 747.
Doubleclay v. Kress, 50 N. Y. 410, rev'g 60 Barb. 181. Contra, eee 2 GreenL
Ev. (13th ed.)52.
Id; Smith v. Kidd, 68 N. Y. 130, 187.
7 Doubleday v. Kress (above).
8 Smith v. Kidd, 68 N. Y. 130, 137.
9 Megary v. Funtis, 6 Snndf. 376.
10 Id. 139 ; Rose. N. P. 667.
11 Doubleday v. Kress, 50 N. Y. 410, rev'g 60 Barb. 181.
Smith v. Kidd, 68 N. Y. 130. 141.
13 Josephthal v. llcyman, 2 Abb. N. C. 22.
14 Heyman v. Beringer, 1 Abb. N. C. 315. According to some authorities the
implied powers of an attorney for a non-resident and absent creditor, are more ex-
51
802 PAYMENT OR OTHER DISCHARGE.
7. Payment to assignor.'] If an assignment of a mortgage
remain unrecorded, a payment on account meanwhile to the
assignor may be proved ; and the fact that the payment was in
advance, or that the debtor did not call for production of the
securities, is not evidence of bad faith. 1 In case of a final satis-
faction, the omission to call for the securities is a suspicious cir-
cumstance which requires evidence that the payment was made
under misrepresentation, or other evidence of good faith. 2
8. to executors, trustees, <&c.~\ Evidence of a payment to
one of several co-executors or co-administrators, and a release,
receipt, satisfaction piece or the like executed by one, are com-
petent against the estate. 3 Otherwise of co-trustees. 4
In case of payment to an executor, administrator or other
trustee, evidence that it was made actually and in good faith, and
that the trustee was authorized to receive it, is sufficient without
evidence as to the application of the moneys. 5 In case of pay-
ment on a written security, it is not necessary to show that the
trustee indorsed the payment on the bond, or paid the money
to the cestui que trust. 6
9. to sheriff.'] A debtor who has paid the debt to the
sheriff, upon an execution against his creditor, cannot, when the
creditor sues him, prove the payment merely by the sheriff's re-
ceipt and the execution. He must prove the judgment by the
record; the transcript from, the office of the clerk of a county in
which the judgment-roll was not filed, is not sufficient. 7 The
mere issue and delivery of an execution, is not, prima facie, evi-
dence of the payment of the judgment on which it is issued. 8 A
levy on land raises no presumption of satisfaction of the judg-
ment. A levy on chattels, is presumptive evidence of satisfac-
tion only when the execution has been so used as to change the
title of the goods, or in some way to deprive the debtor of his
property. 9 The seizure by the sheriff, upon attachment, of goods
sufficient to pay the judgment is not, alone, presumed to be satis-
faction. The burden is on the debtor to show the application of
the goods to the judgment. 10
tensive than those implied in other cases. See Glass v. Thompson, 9 B. Monr. (Ky.)
235; Hopkins v. Willard, 14 Vt. 474; Kimball v. Perry, 15 Id. 414; Heyman v.
Beringer, 1 Abb. N. C. 315, 316, note.
1 Van Keuren v. Corkins, 66 N. Y. 77.
8 Brown v. Blydenburgh, 7 N. Y. 141, and see Purdy v. Huntington, 42 Id. 334 ;
Faster v. Beals, 21 Id. 247 ; Kellogg v. Smith, 26 Id. 18, and page 11 of this voL
8 3 Abb. N. Y. Dig. new ed. 345.
4 As to payments to and receipts by other trustees, see pp. 235, 817 of this vol.
1 N. Y. R. S. 730 (2 Id. 6th ed. 1, 110), 66 ; Champlin v. Haight, 10 Paige, 274.
6 Hadley v. Chapin, 11 Paige, 245.
' Handly v. Greene, 15 Barb. 601. Compare Code Pro. 293. As to payment
on attachment at suit of a third person, compare Ross v. Pitts, 39 Ala. N. S. 606,
and Flanagan v. Mechanics' Bank. 54 Penn. St. 398.
Runyan v. Weir, 8 N. J. L. (3 Hals.) 286.
United States v. Dashiel, 3 Wall. 688, and cas. cit.
" Maxwell v. Stewart, 22 Wall. 77.
PAYMENT. 803
10. Payment ~by mail.'] The burden of proof of payment of
a debt, is not sustained by proof that a letter, even though reg-
istered, 1 containing the requisite amount, directed to the creditor,
was duly deposited in the post office. 2 The debtor must also
either show that the creditor authorized this mode of remittance,
by express assent or direction, or a usage and course of dealing
from which such assent or direction may be fairly inferred in
which case due mailing is conclusive 8 or he must give evidence
of circumstances tending to show receipt by the creditor, in
which case the question may go to the jury. 4 Evidence that in a
previous instance money was sent by mail without objection, is
not enough to show authority, nor is a mere letter by mail re-
questing a remittance. 5 The post master's entries are competent
as tending to show the receipt of a registered letter, 6 but are not
conclusive, 7 even as to date. 8
11. T)y check or draff] A check or draft drawn by defend-
ant, 9 payable to the order of the plaintiff, and shown to have been
paid by the bank or drawee to the plaintiff ; or indorsed by him
and shown to have been paid, without other evidence that it was
paid to him ; is presumptive evidence of payment of the amount
by defendant to plaintiff, without evidence that plaintiff re-
ceived the paper from defendant. 10 If the paper was payable
to bearer, it must be shown that it was delivered to plaintiff,
or that he received the money or value on it. 11 Payment of
money being thus shown, it is presumed to have been in satis-
faction of an existing debt j 12 and in the absence of other proof
may be presumed to apply to a debt of the same amount, in
suit. 13
Mere delivery of a check, 14 does not operate as payment of a
previous debt, and a receipt given on such delivery, acknowledg-
1 First Nat. Bank of Bellefonte v. McManigle, 69 Penn. St. 166. s. c. 8 Am. R.
286.
s Gurney v. Howe, 9 Gray, 404, 407; Crane v. Pratt, 12 Gray (Mass.), 348.
3 Gurney v. Howe (above).
4 First Nat. Bank of Bellefonte v. McManigle, 69 Penn. St. 156, e. o. 8 Am. R.
236 ; Waydell v. Velie, 1 Bradf. 277.
6 Burr v. Sickles, 17 Ark. 428; Morton v. Morris, 31 Geo. 878. But see Town-
Bend v. Henry, 9 Rich. (S. C.) 818.
6 Gurney v. Howe (above).
7 Punlop v. Munroe, 7 Cranch, 242, 270, affi'g 1 Cranch C. Ct. 636.
8 Gurney v. Howe (above).
9 So of a check made by his wife and indorsed by him. Murphy v. Brick, 33
Penn. St. 236.
10 Mountford v. Harper, 16 M. & W. 825 ; Egg v. Barnett, 3 Esp. 196. Contra,
Bunting v. Allen, 18 N. J. L. 299, unsound because payment without more is pre-
sumed to be in satisfaction of debt.
11 Lowe v. McClery, 9 Cranch C. Ct. 254 ; p. 245 of this vol.
18 Masser v. Bowen, 29 Penn. St. 128.
13 Murphy v. Brick, 33 Id. 235.
14 Unless drawn upon the creditors themselves. Pratt v. Foote, 9 N. Y. 468 ;
Comm'l Bk. of Penna. v. Union Bk. of N. Y. 11 N. Y. 203.
804 PAYMENT OR OTHER DISCHARGE.
ing the receipt of money, if given by mere agents for collection,
adds nothing to the effect 01 such delivery, and is open to parol
evidence as to its real import. 1 If defendant relies upon laches of
his creditor in demanding payment or giving notice of dishonor of
a check given by the debtor in payment, the burden of proof is
on the defendant to show such laches. 8 In the absence of express
agreement, a check though drawn by the debtor in lieu of money
at the request of the creditor and delivered in exchange for a re-
ceipt of payment, does not amount to payment, unless the check
is actually paid or clearly would have been paid if duly presented.
If remaining unpaid it is not enough for the debtor to show that
it might probably have been collected. 3 If the draft or check of
the debtor, drawn on a third person, is expressly received in full
payment, the burden is on the plaintiff to show diligence in ob-
taining payment, and if not paid, notice of non-payment ; or he
must excuse the non-presentment and produce the bill on the trial
to be cancelled. 4
Other rules as to proving payment of negotiable paper, 5 or b
the delivery and acceptance of negotiable paper, 6 have been
ready, stated.
12. T)y note, &c., of debtor, or third person.] Defendant,
in proving the debt to have been paid by the transfer of securi-
ties need not produce the securities, 7 unless he desires to show
their contents or tenor.
Negotiable paper of the debtor, 8 or of his agent, 9 or of either of
several joint-debtors, 10 or the negotiable paper of any other person, 11
or a draft or order of the debtor on a third person, 12 taken for an
antecedent debt, 13 is presumed not to have been accepted in pay-
ment, but only as conditional payment, suspending the right of
action.
The burden is on defendant to show that it was given and re-
1 Bradford v. Fox, 38 N. Y. 289, reVg 16 Abb. Pr. 61, s. c. 39 Barb. 203; B. P.
Taylor v. Wilson, 11 Mete. (Mass.) 44.
8 Id.
3 Syracuse, <fec. R. R. Co. v. Collins, 1 Abb. New Cas. 47.
Dayton v. Trull, 23 Wend. 345.
B Page 446 of this vol.
Page 331 of this vol.
7 Daniel v. Johnson, 29 Geo. 207: Morrison v. Myers, 11 Iowa, 638.
8 The Kimball, 3 Wall. 37. Acceptance of the debtor's non-negotiable promise does
not even suspend the remedy unless it is founded upon a new consideration. Geller
T. Seixas, 4 Abb. Pr. 103.
9 P. 331, note 11.
10 Nightingale v. Chafee, 11 R. I. 609, s. c. 23 Am. R. 631.
Vail v. Foster, 4 N. Y. 812.
" Haines v. Pearce, 41 Md. 221, 231.
13 Gibson v. Tobey, 46 N. Y. 637. For the rule as to presumption on taking note
of a debtor for price of goods sold, see p. 331. In those jurisdictions Avhere the pre-
sumption is the other way, the presumption is not conclusive, and may be repelled
by the circumstances of the transaction, even without extrinsic evidence. 3 Wall. 37,
46, citing Butts v. Dean, 2 Mete. (Mass.) 76. .
PAYMENT. 805
ceived as payment, 1 though it is otherwise of an obligation of a
third person transferred at the time of the creation of the debt. 2
Even when an express agreement is proved, if the paper be that
of the debtor, it does not merge or extinguish the demand. 3 Ac-
ceptance of the negotiable promise of a third person, 4 or of the
debtor and a third person jointly 5 on an agreement that it is to
be satisfaction, extinguishes the original debt. 6 On the question
whether a security transferred was accepted as absolute payment
or only as a security, the value of the security compared with the
debt is relevant. 7
Securities shown to have been received in either way must be
produced, or accounted for by plaintiff, in order to enable him to
recover. The presumption is that they were duly paid, or would
have been by use of due diligence. 8 In case of the note of the
debtor, or such of several notes as remain unpaid, 9 it is enough to
produce them at the trial for cancellation. 10 Where negotiable
paper does not amount to payment within these rules, it may be
shown to be at least conditional payment, by evidence that the
creditor transferred it and that it is outstanding in the hands of
others. 11
Bank notes or other negotiable paper although paid in good
faith, supposing them to be genuine, 1 ^ or supposing the maker to
have been solvent, may be shown to have been worthless or un-
current, if the receiver was ignorant of the fact at the time of
taking them, 13 and has not been guilty of laches in returning
them. 14 The creditor cannot avoid the effect of payment by new
security, by evidence that the security was illegal by reason of
usury taken by him, although he might take advantage of usury
proved by the debtor. 15
1 Nightingale v. Chafee, 11 R. I. 609, s. c. 23 Am. R. 631 ; Noel v. Murray, 13
N. Y. 167; Smith v. Applegate, 1 Daly, 91 ; Crane v. McDonald, 45 Barb. 354.
s Youngs v. Stahelin, 34 N. Y. 258.
8 Cole v. Sackett, 1 Hill, 516; 1843, Waydell v. Luer, 5 Id. 448; and see Hill v.
Beebe, 13 N. Y. 556.
4 Booth v. Smith, 3 Wend. C6; Kellogg v. Richards, 14 Wend. 116.
8 N. Y. State Bank v. Fletcher, 5 Wend. 85.
6 But evidence of canceling the new security, is competent to show reviver of the
original debt. Westcott v. Keeler, 4 Bosw. 564.
1 Wallis v. Randall, 16 Hun, 33.
8 Dayton v. Trull. 23 Wend. 845.
9 Lyman v. Bank of United States, 12 How. U. S. 225, affi'g I Blatchf. 297; 20
Vt. 666.
10 Armstrong v. Cushney,43 Barb. 340; Central City Bank v. Dana, 32 Barb. 296',
Armstrong v. Tuffts, 6 Barb. 432; Johnston v. Jones, 4 Barb. 369. Otherwise,
where a transferee has recovered judgment on the note. Teaz v. Chrystie, 2 E. D.
Smith, 621, s. c. 2 Abb. Pr. 109. Whether, in case of a note of a third person, it is
neces-ary to prove an offer to return made before action, compare with these cases,
Hoopes v. Strasburger, 37 Md. 890, s. c. 11 Am. R. 638.
11 See Battle v. Coit, 26 N. Y. 404, 406, and cas. cit
19 Markle v. Hatfield, 2 Johns. 455.
13 Ontario Bank v. Lightbody, 13 Wend. 101.
14 Kenny v. First Nat. Bk. of Albany, 50 Barb. 112.
" La Farge v. Herter, 9 N. Y. 241.
806 PAYMENT OR OTHER DISCHARGE.
13. by obligation of joint debtor, &c.~\ The individual note
of one of two joint debtors or partners will not operate as pay-
ment of the joint debt, unless expressly received as such. 1 Evi-
dence that it was receipted for as cash, 2 or that it was accompa-
nied by a sealed security, 8 or that judgment was subsequently
recovered on it, 4 is not enough. Evidence that a security
given by one partner or joint debtor, was expressly accepted as
payment, is competent to show exoneration of the others.^
"14. by delivery of property. .] The 'delivery of property,
other than money, by the debtor to the creditor, is not presumed
as payment rather than as security. 6
15. Payment of collateral.'] Payment of a collateral is pre-
sumptive evidence of a payment on the principal. 7
Payment of the principal security is presumptive evidence of
the release of the collateral, unless equity requires its survival. 8
Evidence that plaintiff transferred collaterals held by him,
without evidence of the terms of transfer, raises a legal presump-
tion in the debtor's favor that he transferred them absolutely and
without recourse, and received the full amount due on their face,
or elected to take them at that sum in satisfaction. 9
16. J2eceipts.~\ If the contents or mode of signature of a re-
ceipt are to be proved, it must be produced or accounted for, BO
as to let in secondary evidence. 10 A receipt remaining in the cred-
itor's possession (if separate from the instrument) is not, without
explanation, evidence that the payment acknowledged in it was
made. 11 The suppression of some of a series of receipts admitted
to be in possession of the party who produces the others, is evi-
dence that the receipts withheld afford inferences unfavorable to
that party who withholds them. 13 Neither a simple unsealed re-
1 Claflin v. Ostrom, 54 N. Y. 581 ; King v. Lowry, 20 Barb. 632. Even though
the note was that of the continuing parties given on the retiring of the defendant,
who relies on it as payment. Nightingale v. Chafee, 11 R. I. 609, s. c. 23 Am. R.
531. Evidence that it was taken in payment with knowledge of an agreement be-
tween the partners that the maker assumed the debt, discharges the others. Mil-
lerd v. Thorn, 15 Abb. Pr. N. S. 371, s. c. 56 N. Y. 402.
2 Muldon v. W-hitlock, 1 Cow. 290, 306; Vernam v. Harris, 1 Hun, 451, s. c. 8
Supm. Ct. (T. <fe C.) 483. Contra, Palmer v. Priest, 1 Sprague, 512. A higher secu-
rity taken from one partner individually, is presumed taken as collateral. Nicholson
v. Leavitt, 4 Sandf. 252. Compare Hoskinson v. Elliot, 62 Penn. St. 393.
3 Rose. N. P. 390, cit. Ansell v. Baker, 15 Q. B. 20.
4 Claflin v. Ostrom (above). Compare paragraph.
8 Macklin v. t'rutcben, 6 Bush, 401.
6 Perit v. Pittfield, 5 Rawle, 166, and see Dudgeon v. Haggart, 17 Mich. 278.
7 Prouty v. Eaton, 41 Barb. 409 ; Hunt v. Nevers, 15 Pick.- 500, 504.
8 McGiven v. Wheelock, 7 Barb. 22.
9 Hawks v. Hinchcliff, 17 Barb. 492.
10 Romayne v. Duane, 3 Wash. C. Ct. 246.
11 Nelson v. Boland, 37 Mo. 432.
15 James v. Biou, 2 Sim & Stu. 600, 607. Or, perhaps more strictly, should be said
to support the most unfavorable construction that other evidence, actually adduced,
will properly bear.
PAYMENT. 807
ceipt, 1 even though official, 8 nor the usual receipt for payment of
purchase money contained in a sealed conveyance, 8 is conclusive
evidence of the payment acknowledged in it. And it may be im-
peached or avoided, although plaintiff has not alleged the facts he
offers in evidence for the purpose. 4 Where a contract is embo-
died with the receipt, in one paper, the part constituting the re-
ceipt is open to explanation. 5
The language of the instrument, so far as it relates to the fact of
delivery, the thing delivered, 6 and the question whether the words
" received payment," or their equivalent, represented an agree-
ment to accept in satisfaction, may be contradicted or varied by
parol. But the contradiction to which a receipt is subject is of
some fact which is stated in it. 8
Words in the receipt stating that the payment, or a security
transferred, was received " as a compromise" 9 or " without re-
course," 10 constitute a contract within the rule excluding oral evi-
dence to vary the terms of the instrument ; and to avoid the
effect of a receipt of money in full of an unliquidated claim, oral
evidence is not admissible to show that it was given upon a con-
dition not expressed in it. 11
He who seeks to recover, notwithstanding his receipt, must
prove his case clearly and show how he came to give such a re-
ceipt. 13
But a receipt, unexplained or uncontradicted, is conclusive. 13
A letter which accompanied the receipt is, if relevant, competent
as part of the res ffestce. u
17. Part payment, in full.'] Part payment accepted in full,
may be proved as a bar, either by a sealed release; 15 or on proof
that it was made by way of compromise, and accepted on release
of the balance ; 18 or, if the claim paid arose on a written obli-
1 Battle T. Rochester City Bank, 3 N. Y. 88 ; Wadsworth v. Allcott, 6 N. Y. 64.
3 Johnson v. United States, 5 Mas. 425.
* Brown v. Cabalin, 3 Oreg. 45, and see pp. 697, 698 of this voL
4 Van Nest v. Talmage, 17 Abb. (N. Y.) Pr. 99, 105.
8 Smith v. Holland, 61 N. Y. 635.
Tobey v. Barber, 5 Johns. 68.
' Buswell v. Pioneer, 87 N. Y. 312, s. c. 4 Abb. Pr. N. S. 244, 35 How. Pr. 447;
Richard v. Wellington, 66 N. Y. 308. Otherwise where the note was stated to be
received in "full payment." Howard v. Norton, 65 Barb. 161. A receipt for a note
with a stipulation that, if discounted, a certain sum is to be applied to a specific in-
debtedness, held not capable of being varied as to the stipulation by parol. Staple-
ton v. King, 33 Iowa, 28, s. c. 11 Am. R. 109, and cas. cit.
8 Green v. Rochester, <tc. Co. 1 Supm. Ct. (T. <fe C.) 5.
9 Kellogg v. Richards, 14 Wend. 116, NELSON, J
10 Graves v. Friend, 5 Sandf. 668.
11 Coon v. Knap, 8 N. Y. 402.
13 Chapman v. Railroad Co. 7 Phil. (Penn.) 204.
13 Lambert v. Sc-ely, 17 How. Pr. 432. For the rule as to explaining alterations,
see pp. 406, 696 of this volume, applied to a receipt in Printup v. Mitchell, 17 Geo.
658. Compare Thrasher v. Anderson, 45 Geo. 639.
14 Foster v. Newbrough, 66 Barb. 645, revM in 58 N. Y. 481, for lack of founda-
tion for secondary evidence.
16 See paragraphs 80-2.
"Blair v. Wait, 69 N. Y. 113, affi'g 6 Hun, 477. Where a claim for an u
808 PAYMENT OR OTHER DISCHARGE.
gation, by evidence that the obligation was surrendered to be
canceled, on payment of the part with an agreement to accept it
in full. 1
In other cases, payment and acceptance of a sum of money (as
distinguished from merchandise or other property in gross), less
than a liquidated debt, is only payment pro tanto. Payment of
a less sum, or a promise to pay it, though reinforced by additional
security of the debtor's own means, is not satisfaction ; but an ac-
ceptance of an obligation or collateral security of a third person
on his property, is. 2
A receipt for payment in full may be rebutted, 3 except so far
as it is conclusive under the preceding rules. Evidence of decla-
rations of the creditor, made at the time of the payment, to the
effect that more was due him, is competent in his own favor. 4
A receipt expressed to be in full of all accounts, will sus-
tain a finding of a settlement of accounts on both sides. 5
A receipt in full of all demands against one person is not,
alone, evidence of payment of a joint demand against him and
another. 6
18. Admissions' Entries and memoranda.'] Evidence of an
admission by the creditor, or by his agent, made within the scope
of his authority, 7 that he had received payment, 8 is competent; but
is not conclusive, 9 unless acted on so as to raise an estoppel. An
admission of payment in full, is competent, although the specific
certain amount is made, and the auditing officers of the government state it at a re-
duced sum, the creditor's acceptance of a draft for the amount and collection of it without
objection, is an acceptance in full satisfaction of the claim. Baird v. United States,
96 U. S. (6 Otto), 430. Where, on a loss of several things insured, the value of one, aa
to which there is no dispute, is paid on condition that the insured waives his claim
as to the others, this is no consideration, and without a technical release such other
claims are not discharged. Redfield v. Holland Purchase Ins. Co. 56 N. Y. 354.
1 Ellsworth v. Fogg & Harvey, 35 Vt. 355 ; Draper v. Hilt, 43 Vt. 439, 8. c. 5
Am. R. 292 ; McKenty v. Universal Life Ins. Co. 3 Dill. C. Ct. 448. To establish
the settlement of a large and unquestionable claim, by payment of a small sum, the
evidence should be clear and satisfactory. Home Ins. Co. v. Western Transp. Co. 51
N. Y. 93, affi'g 4 Rob. 257, s. c. 33 How. Pr. 102. Whether the solvency or insolv-
ency of the debtor is competent, as tending to show whether acceptance of part in
full was probable or improbable, compare Keeler v. Salisbury, 33 N. Y. 656 ; Molyn-
eaux v. Collier, 13 Geo. 406
2 Keeler v. Salisbury, S3 N. Y. 648, 653, affi'g 27 Barb. 485.
3 For instance, by evidence of compulsion. Thomas v. McDaniel, 14 Johns. 185 ;
Rourke v. Story, 4 E. D. Smith, 64. So, evidence that there was another account
between the parties, and that the partner who gave the receipt was not accustomed
or able to attend to the business, is sufficient to go to the jury. Lvm-h ads. Welch,
6 N. Y. Leg. Obs. 20. Compare Berrian v. Mayor, <fec. of N. Y. 4 Rob. 538.
4 Dillard v. Scraggs, 36 Ala. 670.
6 Alvord v. Baker, 9 Wend. 323.
Walker v. Leighton, 1 1 Mass. 140.
7 McRea v. Insurance Bank of Columbus, 16 Ala. 755.
8 Otherwise, of an admission of having settled, which may merely mean adjust-
ment. Fort v. Gooding, 9 Barb. 371. Otherwise, also, of mere declarations of intent
never to collect. McGuire v. Adams, 8 Penn. St. 286.
Ray v. Bell, 24 111. 444.
PAYMENT. 809
payments of which there is other evidence, are less than the
amount of the whole debt. 1
The payer's entry in his account is not evidence in his own
favor, 2 of the fact of payment, unless shown to have been brought
to the knowledge of the creditor, 3 or unless the entry is admis-
sible on some ground applicable to other memoranda. 4
19. Possession of instrument ; Indorsements.'} In a conflict
of evidence on a question of payment of a written security, pos-
session of the security by the creditor will usually sustain a find-
ing of non-payment. 5 Possession by the debtor, or obligor, even
though only a surety, raises a presumption of payment, 6 but is
not conclusive. 7
A notice to produce an instrument, for any purpose, is suffi-
cient to admit parol proof of indorsements upon it, of pay-
ments. 8
20. Presumption of payment from subsequent transactions. ~\
Defendant may show that after the time when the debt sued for
is alleged to have become due and payable, plaintiff gave him a
promissory note, 9 or other obligation, 10 or security, 11 for the pay-
ment of money ; and, in the absence of anything to show what
was the consideration of the later obligation, there is a legal pre-
sumption that no previous indebtedness from defendant to plaintiff
existed. 13 Defendant may prove the later obligation by parol, with-
out producing or accounting for the writing. 13 This throws the
burden on plaintiff to show that the demand in suit was not set-
tled ; but slight evidence may be sufficient for this purpose. 14
Evidence of the payment of one instalment of rent, in the ab-
sence of other evidence, raises a legal presumption that prior in-
stalments were paid ; 15 and, upon the same principle, evidence of
the payment of one of a series of instalments accruing under any
contract, or one of a series of obligations taken upon the same
transaction, is competent as tending to show payment of those
preceding. 16
1 Henderson v. Moore, 5 Cranch, 11.
s Brannin v. Force, 12 B. Mon. (Ky.) 506 ; Whitehouse v. Bank of Cooperstown, 48
N. Y. 239.
3 Meyer v. Reichardt, 112 Mass. 108.
4 The Queen v. Exeter, L. R. 4 Q. B. 341 ; pp. 319-26 of this vol.
6 Breinbridge v. Osborne, 1 Stark. 874. ,
8 Carroll v. Bowie, 7 Gill (Md. ), 33, 41. So, also, of possession of a mortgage and
the bond, by a grantee of the land. Br;iman v. Bingham, 26 N. Y. 483.
1 Graves v. \Vood, 3 B. Mon. (Ky.) 34.
llowell v. Huyck, 2 Abb. Ct. A pp. Dec. 423.
' De Freest v. Bloomingdale, 5 Den. 304 ; Duguid v. Ogilvie, 3 E. D. Smith, 527,
B. o. 1 Abb. Pr. 145.
10 Callaway v. Hearn, 1 Ilonst. (Del ) 607.
11 Chewnin? v. Proctor, 2 M'Cord, II, 15.
JJ De Freest v. Bloomingdale (above) ; Duguid Y. Ogilvie (above).
13 Mead v. Brooks, 8 Ala. 840.
14 Chewning v. Proctor (above).
15 Patterson v. O'llara, 2 E. D. Smith, 58 ; Decker v. Livingston, 15 Johns. 479.
18 But the value of such evidence in casea other than those of rent, where dispos-
810 PAYMENT OR OTHER DISCHARGE.
Where by the contract, 1 or the law, 3 payment was a condition
precedent to the performance of another act, evidence that such
act was performed, is competent to sustain an inference that pay-
ment had been made.
21. Circumstantial and corroborative evidence.'] On the
mere question of payment it is not competent to show, for the
purpose of raising a presumption of payment that it was the
debtor's habit to pay his debts promptly, nor that in enumerat-
ing them he made no mention of the debt in suit ; 4 nor that he
was responsible and at hand, and that the creditor was pressed
for money, yet made no claim. 5 But such evidence may be com-
petent on the question whether the debt ever existed, especially
where it is a stale claim. 6 The solvency or wealth of the defend-
ant at the time of the alleged payment is not competent ; 7 nor is
the fact that he borrowed money ostensibly for the purpose of
paying. 8
Evidence that a person authorized to receive, but who is since
deceased, went to defendants' place of business for the purpose of
settling with them, and that he had no money before he went in,
and that within he saw defendants, and that he was seen to come
out with money which he said he got of defendants, is sufficient
to sustain a finding of payment. 9 Evidence that a witness showed
the money directly after the interview in which he testifies it was
paid to him, is competent as having a tendency to confirm his
testimony. 10
22. Application by the debtor.'] If a payment is voluntarily
made by the debtor, its application by him to one of several debts
or accounts may be inferred from his conduct, 11 or even from cir-
cumstances alone, 12 or from his interest, under circumstances not
session so commonly follows default, depends upon the circumstances of the case.
Compare Matthews v. Light, 40 Me. 894; Bougher v. Kimball, 30 Mo. 193; Sennett
V. Johnson, 9 Penn. St. 335.
I Reynolds v. Richards, 14 Penn. St. 205.
8 Terry v. N. Y. Central R. R. Co. 22 Barb. 574.
8 Abercrombie v. Sheldon, 8 Allen (Mass.), 532. Contra, Orr v. Jackson, 1 IIL
App. 439. 4 Id.
6 Beach v. Allen, 7 Hun, 441. Contra, Orr v. Jackson (above).
6 Church v. Fagan, 43 Mo. 123; Fisher v. Plimpton, 97 Mass. 441; Marshall r.
Marshall's Admr. 12 B. MOD. (Ky.)459; Nicholls v. Van Valkenburgh, 15 Hun, 230;
Thorp v. Goewey, 5 Rep. 619 ; and see pp. 247, 282 of this vol.
7 Veazie v. Hosmer, 11 Gray, 396; Church v. Fagin, 43 Mo. 123; 1 Dan. Neg. I,
1 229. It may have been the motive for plaintiffs confidence in not collecting.
Hilton v. Scarborough, 6 Gray, 422.
8 Reed v. Pearson, 3 N. J. L. (2 Penn.) 681. Compare Burlew v. Hubbell, 1
Supm. Ct. (T. <fe C.) 235.
9 'Whisler v. Drake, 85 Iowa, 103. Whether evidence of simultaneous payment
of other like claim, such as laborers on a pay-roll, is competent, compare Filer v.
Peebles, 8 N. H. 226, and p. 375 of this vol.
10 Chester v. Dickerson, 54 N. Y. 1, affi'g 52 Barb. 349.
II Peters v. Anderson, 5 Taunt. 596 ; and see 22 Wend. 554.
* Stone v. Seymour, 15 Wend. 19, 24; Howland v. Rench, 7 Blackf. (Ind.) 236.
PAYMENT. 811
manifesting any other intention. 1 But for this purpose a declara-
tion, or circumstances not known to the creditor at the time, are
not competent to defeat an exercise of the right of application by
the creditor. 2 To show the debtor's application, his letter, or that
of his general agent, to the creditor, at the time, 3 or the declarations
of the bearer of the money, made at the time of delivering it to
the creditor, 4 are competent in the debtor's favor. Where there
is such evidence, the creditor's prior letter of demand is not com-
petent to show a different application. 5 In the absence of other
evidence, application expressed in a receipt will control; 6 but ap-
plication wrongfully made, although indicated by a receipt sent
to the payer, does not bind him. If he had previously communi-
cated his dissent to such application, his silence on receiving the re-
ceipt will not conclude him. 7 Evidence of a request from the
debtors to the creditor, to pay himself out of their property in his
hands, is not evidence of payment without something to indicate
compliance with the request. 8
23. ~by the creditor.'] In the absence of evidence of an ap-
plication by the debtor, an application by the creditor may be
proved. If the creditor claims application to a debt other than
that in suit, it is for him to prove the existence of the obligation, 9
and, if written, he must produce it or account for it, before giving
oral evidence of it. 10 For the purpose of proving the applica-
tion, the like indirect evidence of intention is competent, as in
case of application by the debtor; 11 and moreover the entries made
by the creditor in his own books of account at the time of the
payment, are competent evidence in his behalf, 12 but are not con-
clusive. Crediting on an open account implies intent to apply to
the earlier items, notwithstanding the creditor holds security for
those only. 13 But crediting on a private account is not conclusive,
unless communicated to the debtor. 14
24. by the court.'] When application devolves upon the
1 Such as the fact that the payment was precisely the amount of one debt and not
that of another. Robert v. Garnie, 3 Cai. 14 ; Seymour v. Van Slyck, 8 Wend. 403 ;
Davis v. Fargo, Clarke, 470.
1 Munger on A p. 28.
2 Mitchell v. Dall, 2 Har. <fe G. (Md.) 159.
4 Gay v. Gay, 6 Allen (Mass.), 157.
B Mitchell v. Dall (above).
Stewart v. Keith, 12 Penn. St. 238.
1 Per BKONSON, J., Starkweather v. Kittle, 17 "Wend. 20.
8 King v. Bush, 86 111. 142.
9 Mann v. Major, 6 Rob. (La.) 475.
10 Trundle v. Williams, 4 Gill (Md.), 313.
11 Truscott v. King, 6 N. Y. 147.
18 Van Rensselaer v. Roberts, 5 Den. 470.
13 Id. B. P. Crampton v. Pratt, 105 Mass. 255. So, also, notwithstanding those
items had been barred. Hill v. Robbins, 22 Mich. 475. Compare Mills v. Fowkes, 5
Bing. N. C. 455.
'^Allen v. Culver, 3 Den. 284 ; Seymour v. Marvin, 1 1 Barb. 80. Nor even then
always conclusive evidence of intention. Dulles v. De Forest, 19 Conn. 190.
812 PAYMENT OR OTHER DISCHARGE.
court because of no application by the parties being shown, evi-
dence of the existence of the other debts is admissible. 1
25. Presumption of payment from lapse of iime^\ Under an
allegation of payment, the legal presumption of payment is
available 8 which arises from the mere lapse of twenty years from
the time a payment is due. This presumption is usually defined
with important qualifications in the statutes ; which should be
consulted. At common law, and in equity, 8 great lapse of time
without part payment or other recognition, is a circumstance
which, with others, may tend to show payment; 4 and if extend-
ing for twenty years 5 from the time the obligation was due and
payable, 6 and before the commencement of the proceeding on it, 7
raises (except against the government) 8 a legal, but not conclu-
sive 9 presumption that payment has been made, which throws on
the creditor the burden of proving non-payment. 10
The presumption applies to any obligation that can be extin-
guished by an act of payment, such as a judgment, 11 or a sealed
obligation, 13 or an assessment, 13 as distinguished from a covenant
which must be released by deed. 14 This presumption is not, like
the statute of limitations, a mere bar to the remedy ; but is a
1 Robinson v. Allison, 36 Ala. 525, 631.
8 New York Life Ins. & Trust Co. v. Covert, 3 Abb. Ct. App. Dec. 350 ; 29 Barb.
435, 441 ; Malloy v. Vanderbilt, 4 Abb. New Cas. 127, 132; and see Livingston v.
Livingston, 4 Johns Ch. 287.
8 Giles v. Baremore, 5 Johns. Ch. 545.
4 Where the time is less than the statxite period, any accompanying circum-
stances tending to explain or repel the presumption, are evidence lor the jury.
Jackson v. Sackett, 7 Wend. 94. The facts that defendant had been solvent and
accessible (Husky v. Maples, 2 Coldw. [Tenn.] 25), and that plaintiff had been
pressed for money (Levers v. Van Buskirk, 4 Penn. St. 309, 314), have been re-
ceived in aid of the presumption. Contra, Daby v. Ericsson, 45 N. Y. 786, and see
paragraph 21.
8 Exclusive of disabilities. Dunlop v. Ball, 2 Cranch, 180; Higginson v. Mein,
4 Id. 415.
6 Thus in case of rent, or a bond payable by instalments, the presumption arises
as to each instalment, at the expiration of the period from the time it became due.
Lyon v. Odell, 65 N. Y. 28 ; Slate T. Lobb, 3 Harr. (Del.) 421, 423.
7 Driggs v. Williams, 15 Abb. Pr. 477.
8 United States v. Williams, 4 McLean, 567 ; 5 Id. 133.
9 Arden v. Arden. 1 Johns. Ch. 318; Bailey v. Jackson, 16 Johns. 210; Jack-
Bon v. Hotchkiss, 6 Cow. 401 ; McLellan v. Crofton, 6 Greenl. 307, 334 ; Farmers'
Bank v. Leonard, 4 Harr. (Del.) 536. Contra, Dedlake v. Robb, 1 Woods, 680.
10 2 Whart. Ev. 1360. Whether the presumption could always be rebutted by
evidence of non-payment, eee Giles v. Baremore, 5 Johns. Ch. 545 ; Fox v. Pbelps,
20 Wend. 437, affi'g 17 Id. 393.
11 Boardman v. De Forrest, 6 Conn. 1 ; Miller v. Smith, 16 Wend. 425, reVg 14
Id. 188. And a justice's judgment, before the short limitation of the present statute.
Fairbanks v. Wood, 17 Wend. 329 ; Johnson v. Burrell, 2 Hill, 238.
12 For instance, a bond. Hi<rginson v. Mein, 4 Cranch, 415. But not administra-
tion bonds. 2 Whart. Ev. 1360. A mortgage. Jackson' v. Pierce, 10 Johns. 414.
A sealed award. Smith v. Loctwood, 7 Wend. 241. Rent accrued on a covenant,
but not the covenant itself. Central Bank v. Heydon, 48 N. Y. 260.
13 Mayor, Ac. of N. Y. v. Colgate, 12 N. Y. 140.
14 Lyon v. Adde, 63 Barb. 89 ; Central Bank v. Heydon, 48 N. Y. 260.
PAYMENT. 813
prima facie extinguishment of the debt; 1 not however available
to support an allegation of payment as a ground of affirmative
relief/
The statute 3 declaring that the presumption arises from the
lapse of twenty years, by implication forbids a presumption of
payment from mere lapse of time, short of twenty years. 4 But
it may be presumed from other circumstances in connexion with
the lapse of less time. 5 The statute presumption is not that pay-
ment was made at the expiration of the limit, but at some prior
indefinite time, or when the obligation became due. 6
The common law presumption may be repelled, not only by
evidence of acknowledgment or part payment, but by other cir-
cumstances for instance, proceedings of enforcement, such as a
statute foreclosure of a mortgage ;"* or, in case of a judgment, 8
return of an execution unsatisfied within the twenty years ; or
by evidence of the debtor's insolvency, 9 for which purpose other
judgments, recovered by third persons, within the limit, and re-
maining unsatisfied, may be put in evidence. 10 And in aid of
evidence of insolvency, evidence of absence, 11 or distant resi-
dence, 12 is competent. The statute, on the other hand, excludes
every species of evidence to rebut the presumption, except that
of part payment or a written acknowledgment. 1 ^ Proof of actual
non-payment is not available. 14
1 Reed v. Reed, 46 Penn. St. 239. The fact that a note is statute barred, is not
conclusive evidence that it has been paid. Pratt v. Huggins, 29 Barb. 277.
* Lawrence v. Ball, 14 N. Y. 477; Brady v. Begun, 36 Barb. 633.
* For the successive N. Y. statutes which leave the rule a very complex one,
compare 2 R. S. 301 (3 Id. 6th ed. 570), 46-48 ; Code Pro. 90 (3 R. S. 6th ed.
477) ; Code Civ. Pro. 376 (as am'd 1877), 881, 395. But by N. Y. Code Civ. Pro.
the presumption avails under an allegation that the action was not commenced, or
the proceeding not taken, within the time limited by the statute ( 378).
Mngraham v. Baldwin, 9 N. Y. 45 ; and see Daby v. Ericsson, 45 N. Y. 786.
6 Flagg v. Ruden, 1 Bradf. 192 ; Bander v. Snyder, 5 Barb. 63.
Martin v. Gage, 9 N. Y. 898.
7 Jackson v. Slater, 5 Wend. 295 ; and see Levers v. Van Buskirk, 7 Watts &
S. 70.
8 Henderson v. Cairns, 14 Barb. 15 ; compare Code Civ. Pro. 877.
9 Waddell v. Elmendorf, 10 N. Y. 170, affi'g 12 Barb. 585 ; Farmers' Bank v.
Leonard, 4 Harr. (Del.) 536.
10 Waddell v. Elmendorf (above). And even judspnents which have been satis-
fied may be cpmpetent for the consideration of the jury. Levers v. Van Buskirk, 4
Penn. St 309,' 314.
11 Boardman v. De Forrest, 6 Conn. 1.
1J M'Kender v. Littlejohn, 4 Ired. N. 0. L. 198. Whether absence and insol-
vency are alone sufficient to rebut the presumption, compare Kline v. Kline, 20
Penn. St. 503, 508 ; Roberts v. Judd,.5 Vt. 236 ; and McLellen v. Crofton, 6 Greenl.
807, 334.
13 Morey v. Farmers' Loan <fe Trust Co. 14 N. Y. 802 ; Malloy v. Vanderbilt, 4
Abb. New Cas. 127, 132.
14 Fisher v. The Mayor, <fec. 67 N. Y. 73, 80, reversing 6 Hun, 64; 5 Id. 648.
PAYMENT OR OTHER DISCHARGE.
II. ACCORD AND SATISFACTION.
26. Mode of proof , and effect.'] This defense ought to be
pleaded ; but may be inserted by amendment, at the trial. 1 Under
this answer, evidence of payment may avail if plaintiff is not
misled. 2 The burden is on the defendant to show that the
accord and satisfaction was accepted by the plaintiff. An accord,
executory, with tender of performance, is not a bar. 8 Tender is
not enough, even as to costs. 4
In respect to a liquidated and undisputed debt, payment of
part in full is not enough, 8 even if the less sum came from a
third person ; 6 but evidence that it was loaned by him in good
faith for the purpose of obtaining the satisfaction agreed on is
enough to establish satisfaction. 7 The payment of a less sum if
accompanied with anything given by the debtor to the creditor
which the law can consider a benefit such as a release of cross
demands and accepted as a satisfaction of the whole, is a good
accord and satisfaction. 8
In respect to a debt uncertain in amount, 9 or the existence of
which is disputed, 10 a less sum accepted in full constitutes an
accord and satisfaction.
Acceptance in satisfaction having been shown, the relative
value of the thing accepted and the debt is immaterial. 11 Upon
showing that the creditor received an obligation of a third per-
son, to be satisfaction if paid at maturity, the burden is on
defendant to show that it was so paid. 12
A substituted executory agreement is not an accord and satis-
faction unless it gives a cause of action. 13
The plaintiff cannot rebut the evidence of an accord and
satisfaction by showing a new promise, 14 or that the security he
accepted was void for his own usury. 15
1 Brett v. First Univ. Soc. 63 Barb. 610, 613.
s Prouty v. Eaton, 41 Barb. 409. It is not the appropriate allegation to admit
evidence of compromise. Williams v. Irving, 47 How. Pr. 440, 442.
3 1 Abb. N. Y. Dig. 15 ; Kromer v. Heim, 44 Super. Ct. (J. <fe S.) 237, 246.
4 Noe v. Christie, 51 N. Y. 270, 273.
5 Ryan v. Ward, 48 N. Y. 204.
6 Bunge v. Koop, 48 K Y. 225.
7 Grocers' Bank v. Fitch, 1 Supm, Ct. (T. <fe C.) 651, affi'd in 58 N. Y. 623.
8 Pardee v. Wood, 8 Hun, 684.
Brett v. First Univ. Soc. of Brooklyn, 63 Barb. 610, 617.
10 Howard v. Norton, 65 Barb. 161. As to "jump settlements," see Calkins v.
Griswold, 11 Hun, 208 ; Hamilton, <fec. Co. v. Goodrich, 6 Allen, 191, 199.
11 Grocers' Bank of N. Y. v. Fitch, 1 Supm. Ct. (T. <fc C.) 651, affi'd on Genl.
Term opinion, 58 N. Y. 623.
18 Dolsen v. Arnold, 10 How. Pr. 528.
13 Kromer v. Heim, 44 Super. Ct. (J. <fc S.) 237, 246; Billings v. Vanderbeck, 23
Barb. 546.
14 Stafford v. Bacon, 1 Hill, 532.
15 La Farge v. Herter, 9 N. Y. 241, affi'g 11 Barb. 159 ; 4 Id. 346.
COMPROMISE AND COMPOSITION. 815
III. ACCOUNT STATED.
27. Mode of proof , and effect^ This defense, if available,
must be pleaded. 1 It may be proved by evidence of the
reading over of the items (even though they were all on one
side), and agreeing upon the balance or amount due. 8 An ac-
count stated is presumed to include all previous transactions 8
prior to the day on which it was had, including previous accounts
stated. 4
"Where a statement of account is alleged by defendant as a
defense, not as a counterclaim, the new procedure does not
require plaintiff to controvert it in pleading, unless a reply be
ordered by the court. 5
The statement of the account having been proved, between
parties who stood on equal terms, the burden is on plaintiff to
show the fraud, concealment or mistake on which he relies as
ground for opening it. 6 It is a general rule, applicable with due
regard to the circumstances of each case, that where the accounts
have been shown to be erroneous to a considerable extent, both in
amount and in the number of the items, or where fiduciary rela-
tions exist, and a less considerable number of errors are shown,
or where fiduciary relations exist and one or more fraudulent
omissions or insertions in the account are shown, the court opens
the account, and does not merely surcharge and falsify. 7
An account expressly stated by both parties, being shown, and
unimpeached, plaintiff cannot always recover on the original cause
of action' 8 but if there is a failure to prove the stating of the
account, defendant may fall back on the accounts and prove that
there is, in fact, a balance due him, unless his pleading is
so framed as to show that he relies solely on the account stated. 9
IY. COMPROMISE AND COMPOSITION.
28. Mode of proof , and effect^ It is enough to prove that
a substantial controversy upon a claim made or resisted, in good
faith, by the defendant, and a compromise made by him on the
1 Kock T. Bonitz, 4 Daly, 117, 120. Without allegation of payment or satisfac-
tion at common law it is not pleadable (Bump v. Phoenix, 6 Hill, 808); nor under
the new procedure, except in peculiar cases resting on equitable grounds. (Sec other
cases cited on this page.)
s Id. Or in other modes stated at p. 469 of this vol. An account is not usually
conclusive on the party rendering it. Schettler v. Smith, 34 Supar. Ct. (J. fe. S.) 17.
1 Dutcher v. Porter, 63 Barb. 15.
Dorsey v. Kollock, 1 N. J. L. 85.
* Welsh v. German American Bank, 42 Super. Ct. (J. dt S.) 462, affi'd in 73 N.
T. 424 ; Code Civ. Pro. 514, 516. In an action to recover a single item alleged to
have been fraudulently omitted, a reopening of the account generally would be a
departure from the pleadings. McMichael v. Kilmer, 76 N. Y. 36, rev'g 12 Hun, 336.
Brown T. Van Dyke, 8 N. J. Eq. (4 Halst.) 795, 803.
' Williamson v. Barbour, L. R. 9 Cb, Div. 629, s. c. 37 L. T. R. N. S. 698, 699.
8 White v. Whiting, 8 Daly, 23, 27. Compare Milward v. Ingram, 2 Mod. 43.
with Bump v. Phoenix, above cited ; Volkening v. De Graaf, 81 N. Y. 268 Youni?
V. Hill, 67 N. Y. 174, 175, s. c. 23 Am. 11. 99.
9 Goings v. Patten, 1 Daly, 168, s. c. 17 Abb. Pr. 839.
816 PAYMENT OR OTHER DISCHARGE.
X
settlement of it. 1 In the absence of evidence of fraud, misrepre-
sentation or undue advantage taken, the non-beneficial character
of the compromise is not relevant." A compromise having been
shown, mistake of law is immaterial unless caused by the advice
of the other party. 8 Evidence of fraud or oppression may be
met by showing ratification after knowledge of it. 4
A composition with creditors, including plaintiff, must be
alleged (under the new procedure), in order to be admissible as a
bar.* The facts necessary to make it binding should be proved, 6
including delivery of the new notes or other securities, or at least,
tender of them, made and kept good (and in that case the securi-
ties must be brought into court for delivery), unless there is
evidence that plaintiff waived or dispensed with tender. To
avoid the composition the debtor's fraud on the creditor by giv-
ing others a secret advantage may be proved. 7
Y. TENDER.
29. Necessity, and mode of proof I\ Tender cannot be proved,
where keeping the tender good and pavinginto court are neces-
sary, unless those acts are also alleged. Where the party mak-
ing tender omits to produce the money in consequence of the
other party's refusal to act, it is not enough to prove his declara-
tion that he had the money ready, but he must at least give
sufficient evidence that at the time of demand of performance
he had such means of procuring the money as to entitle him to
go to the jury on the question of his being then able to make
the payment. 9 A tender of the check of the party for money,
if not objected to, is sufficient. 10 In case of the tender of a
written instrument, an absolute refusal to accept any such instru-
ment excuses the omission actually to execute it before tender. 11
Where goods to be tendered are ponderous and bulky, it is
enough if they are placed in the power of the party to whom
they are tendered. 12 If warehouse receipts are tendered, with an
I See 3 Abb. N. T. Dig. new ed. 83, 178 ; Dixon v. Evans, L. R. 5 H. L. 606.
Id.
3 Taplin v. Wilson, 4 Hun, 244.
Stebbins v. Niles, 25 Miss. 267; Adams v. Sage, 28 N. T. 103.
* Smith v. Owens, 21 Cal. 1 1.
Warburg v. Wilcox, 7 Abb. Pr. 336, and cas. cit. ; Bump on Composition, 72.
' Beach v. Ollendorf, 1 Hilt. 41.
8 Becker v. Boon, 61 N. Y. 317 (D WIGHT C. dissented) ; Kortright v. Cady, 6
Abb. Pr. 358, s. c. less fully, 23 Barb. 490; but see reversal, 21 N. Y. 843.
Goodrich v. Sweeny, 36 Super. Ct. (J. & S.) 320, 325.
i Mitchell v. Vermont Copper Mining Co. 67 N. Y. 280, affi'g 40 Super. Ct. (J. &
S.)406; 47 How. Pr. 218.
II Blewett v. Baker, 58 N. Y. 611, affi'g 87 N. Y. Super. Ct (J. <fc S.) 23; and see
Rinaldo v. Housmann, 1 Abb. New Cas. 312.
u Hayden v. Demcts, 53 N. Y. 426, affi'g 34 Super Ct. (.T. <t S.) 344. A seller's
tender of goods, to which he has not good title, is not enough. Croninger v.
Crocker, 62 N. Y. 151, 157.
RELEASE. 817
order for payment of the charges and delivery of the goods
themselves if required, a refusal on account of inability to pay,
with no objection as to the sufficiency of the tender, is a waiver
of any objection to it. 1 But a tender of bulky articles must be
seasonably made, to give opportunity for examination before the
close of the day. 2 An anticipatory declaration of refusal to per-
form, without withdrawing the declaration before the time of
performance arrives, excuses the party to whom it is made from
performing or offering to perform. 3 Where the party's absence
from the State, or being beyond reach, or intentional evasion, is
relied on, evidence that he was temporarily absent from his resi-
dence is not sufficient. 4
The authority of the person making the tender may be in-
ferred from slight evidence. 5
VI. RELEASE.
30. Mode of proof, and effect^ A release under seal is con-
clusive evidence of its own consideration. To make it admissi-
ble in evidence with this effect, it should be pleaded. 6 An
allegation of a release will admit evidence of an unsealed instru-
ment purporting to release, together with acts creating an equi-
table estoppel to the same effect. 7 A release given by one of two
joint creditors may be proved in the same cases as where his
admissions and declarations might be. 8 A release by one of two
co-trustees may be aided by evidence of conduct of the other
implying recognition and ratification. 9 Delivery may be pre-
sumed of a partial release, indorsed on the original obligation
continuing in the possession of the obligee. 10 A trustee who
sets up a release from a cestui que trust, must either show actual
and adequate consideration, or that it was based upon a settle-
ment at arms length, or that he gave the cestui que trust full
information and a fair statement 01 the trust. 11
An unqualified sealed release of one of several joint wrong-
doers, 12 or joint, or joint and several debtors, 13 at common law re-
Hayden v. Demets, 53 N. Y. 426, affi'g 34 Super. Ct. (J <fe S.) 844.
Croninger v. Crocker, 62 N. Y. 151, 158.
Shaw v. Republic Life Ins. Co. 69 N. Y. 286, modifying 67 Barb. 586. Where
the party absolutely refuses to perform, the law does not require the useless act of a
tender of performance as a condition precedent. Pettitt v. Turner, 2 Supm. Ot.
(T. & C.) 608.
4 Hoag v. Parr, 13 Hun, 95.
6 Tacey v. Irwin, 18 Wall. 549, 551.
6 Rose. N. P. 663 ; Hitchcock v. Carpenter, 9 Johns. 844.
' Cornell v. Hasten, 35 Barb. 157.
Pnge 188 of this vol.
Van Rcnsselaer v. Akin, 22 Wend. 649.
10 Fitch v. Forman, 14 Johns. 172.
11 Bolton v. Gardner, 3 Paige, 273. Compare p. 735 of this vol.
Gunther v. Lee, 45 Md. 60.
18 Nicholson v. Revill, 4 Ad. A E. 675.
53
818 PAYMENT OR OTHER DISCHARGE.
leases all ; but an unsealed release does not. 1 By tlie statute, a note
or memorandum in writing given by a creditor to a partner after
dissolution, 2 or to one of several joint debtors, 8 may be given in
evidence in bar of the creditor's action against the releasee, but
without prejudice to his right to recover against the other debtors,
and to their right of set-off. 4 A release of one of several joint
debtors, if not produced, will not be presumed to have been ab-
solute, without proof. 5
31. Oral evidence."] Oral evidence is competent for the
purpose of showing the obligations to which it applies; 6 but
not to contradict its terms by excluding one to which they appar-
ently apply. 7 An unsealed release may be supported by evi-
dence that it was given on a sufficient consideration ; and this
may be shown by parol, though the writing be silent 8 or express
a nominal or different consideration. 9 Parol evidence that
plaintiff signed on conditions not expressed, is not competent for
the purpose of exonerating him from its effect. 10
32. Impeaching.'] A sealed release u cannot be impeached for
want of consideration. 12 The burden of proving fraud or mis-
take is on plaintiff if he rely on it to avoid his release. 18 A
promise to pay the debt, in consideration of the release, cannot be
proved. 14
YI1. SURETYSHIP AND MODIFICATION OF CONTRACT.
33. Defendant a surety."] Under the new procedure (as for-
merly in equity, and in some courts of law), oral evidence that
defendant was a surety is admissible, in an action between the
obligors in a written instrument, and equally against other parties
I Irvine v. Millbank, 15 Abb. Pr. N. S. 378, affi'g 14 Id. 408, s. o. 36 Super. Ct.
(J. & S.) 264; Morgan v. Smith, 70 N. Y. 537, 543.
9 L. 1838, p. 242, c. 257, 2, as am'd by L. 1845, p. 410, c. 348 (same stat. 2 R. S.
6ed. ll r -7, 27).
3 Id. 5.
4 Id. 2, 3.
5 ;>olaiid v. Crosby, 49 N. Y. 183. The burden seems to be put by the statute
on the debtors, to show that the release was intended to discharge all. 3, last
clause.
6 Howe v. Thompson, 15 Abb. Pr. 377 ; Strong v. Dean, 55 Barb. 337 ; Hewlett
v. Hewlett, 56 Barb. 467.
1 For instance, to show that a release of " all demands " was not intended to re-
lease a particular debt. Pierson v. Hooker, 3 Johns. 68.
8 Fryik v. Green, 5 Barb. 455.
See pp. 738, 741 of this vol.
10 Van Bokkelen v. Taylor, 62 N. Y. 105, rev'g 2 Hun, 138, 8. c. 4 Supm. Ct. (T.
i C.) 422; Acker v. Phoenix, 4 Paige, 305 ; and see p. 507 of this vol.
II As distinguished from a composition deed. Russell v. Rogers, 15 Wend. 351.
18 Gray v. Barton, 55 N. Y. 68 ; Terry v. Black, 58 Id. 185.
13 Crossley v. The St. Louis, 4 Ben. 510 ; Schmidt v. Herforth, 5 Robt. 124.
14 Stearnes v. Tappin, 5 Duer, 294. As to new promise compare p. 821 of this
voi, and Stearns v. Tappin (above).
DISCHARGE. 819
to or holders of it, if they dealt with it with actual notice of the
fact of suretyship. 1 Actual notice to the creditor, of the fact
of suretyship, at or before the time of the act complained of,
must be shown ; hut for this purpose it is enough if the fact ap-
pear on the face of the security. 2
34. Modification.'] An extension or modification of the con-
tract may be proved by evidence which would be competent
in favor of the principal.
VIII. DlSCHABGE.
35. In bankruptcy.'] A discharge, even though granted pend-
ing the action, 8 is not admissible in evidence unless pleaded. 4
In case of a discharge under the Bankrupt Act of 1867, or the
United States Revised Statutes, a general allegation that on a day
named it was duly granted to the bankrupt (setting forth a copy)
is enough to admit the evidence. 5 Defendant has the burden of
proving his discharge. 6 The certificate is admissible without the
record of proceedings; 7 and is conclusive evidence of the fact
and regularity of the discharge. 8
Plaintiff has the burden of proving that his demand is one of
a class excepted by the statute from the operation of the dis-
charge, for example, that it is for money received in a fiduciary
capacity. 9
In case of & foreign bankruptcy, the burden is on defendant
to show affirmatively that the contract or the parties to it were
1 Hubbard v. Gnrney, 64 N. T. 457; and cas. cit. in 11 MoaFs Eng. R. 41, n.
183; 17 Id. 183; Artcher v. Douglass, 6 Den. 509; Garrett v. Ferguson, 9 Mo. 125;
B: P. 1 Greenl. Ev. 281, n. 2, and cas. cit. ; H>,rne v. Bod well, 5 Gray, 457.
* Gahn v. Nieracewicz, 11 Wend. 812, affi'g 3 Paige, 614.
* Rudge v. Rundle, 1 Supm. Ct, (T. & C.) 649 ; Lump on Bkcy. (7 ed.) 748.
4 Horner v. 8pe!man, 7S 111. 206 ; Bump on Bkcy. 743.
8 U. S. R. S. 5119 ; Hays v. Ford, 55 Ind. 52 ; N. Y. Code Civ. Pro. 532.
6 Cooper v. Cooper, 9 N/J. Eq. (1 Stockt.) 566, 569.
7 Morse v. Cloyes, 11 Barb. 100, 104, rev'd on other grounds in Seld. Notes, No.
5, p. 12 ; Bump on Bkcy. 752.
8 U. 8. R. 8. 5120; Dusenbury v. Hoyt, 14 Abb. Pr. N. S. 132, a. c. 36 N. Y.
Super. Ct. (J. <fe S.) 98, rev" d on another ground in 53 N. Y. 521 ; Stern v. Nussbaum,
5 Daly, 382, s. c. 47 How. Pr. 489. The presumption that tho necessary final oath
was taken is not overcome by the mere fact that it is not found on file. Youn<; v.
Ridenbaugh, 3 Dill. C. Ct. 289. The rules of pleading and evidence as to discharges
under prior acts are more strict. See Morse v. Cloyes, 11 Barb. 100, rev'd on other
grounds in Seld. Notes, No. 6, p. 12; and cases cited in Bump on Bkcy. 749; and
cises below cited; Schermerhorn v. Talman, 14 N. Y. 93; Sherwood v. Mitchell, 4
Den. 435.
But even in respect to those discharges, there is a legal presumption in favor of
the regularity of the proceedings. McCormick v. Pickering, 4 N. Y. 276.
9 Snerwood v. Mitchell, 4 Den. 435 ; Harrison v. Lourie, 49 How. Pr. 124, 127.
Contra, Clement v. Hay den, 4 Penn. St. 138.
820 PAYMENT OR OTHER DISCHARGE.
such that the foreign law could discharge the liability, 1 and that
the requirements of the law were complied with. 2
36. impeachingJ] Unless a reply was required, the facts
relied on to avoid a discharge may be proved in rebuttal, though
not alleged. 3
A discharge of the United States, under the act of 1867 or
the Revised Statutes, cannot be impeached in a State court for
any cause which would have prevented the granting of the dis-
charge under the bankrupt act, or which would have been suffi-
cient ground for annulling the discharge in the United States court
under the act, 4 nor even on the ground that it was fraudulently
obtained. 5 It is impeachable for entire want of jurisdiction.
37. Insolvency.'] The discharge, even though granted pend-
ing the action, is not admissible unless pleaded. 6 A general
allegation that it was duly given or made will admit it; 7 but if
the allegation is put in issue, defendant must show jurisdiction. 8
The certificate of discharge, if it recite the jurisdictional facts,
is admissible in evidence without the record of the proceedings; 9
and is prima facie sufficient 10 (though not conclusive 11 ) evidence
of jurisdictional facts. Its recitals are conclusive evidence of the
existence and regularity of the non-jurisdictional matters re-
cited. 12 Extrinsic evidence of regularity is competent. 18 Defend-
ant is bound to show that the contract or parties to it were such
that the State discharge could be operative upon it; 14 but it is for
plaintiff to show that his debt was not provable.
1 Green v. Sarmiento, 3 Wash. C. Ct. 17, s. 0. Pet. C. Ct. 74 ; and see Munroe v.
Guilleaume, 3 Abb. Ct. App. Dec. 334.
2 Fielmann v. Hrunner, 2 Hun, 354, s. o. 4 Supm. Ct. (T. <fc C.) 556.
8 Ruckman v. Co well, 1 N. Y. 505, s. c. 7 N. Y. Leg. Obs. 7.
4 Corey v. Ripley, 57 Maine, 69, s. c. 2 Am. R. 19.
8 Ocean National Bank v. Olcott, 46 N. Y. 12 ; Poillon v. Lawrence, 43 Super. Ct.
(J. <fe S.) 385. Contra, Batchelder T. Low, 43 Vt. 662, s. c. 5 Am. R. 311. Com-
pare Payne v. Able, 7 Bush, 344, s. o. 3 Am. R. 316 ; Hennessee v. Mills, 57 Tenn. 38.
6 Cornell v. Dakin, 38 N. Y. 253 ; Spencer v. Beebe, 17 Wend. 557.
' N. Y. Code Civ. Pro. 532.
8 Id.
9 O'Connell v. Sutherland, 16 Abb. Pr. 460, note.
10 Barber v. Winslow, 12 Wend. 103, and cas. cit ; Jay v. Slack, 4 N. J. L. (1
South.) 77.
11 Morrow v. Freeman, 61 N. Y. 615.
12 Stanton v. Ellis, 12 N. Y. 575. Or at least prima facie. Blanchard v. Young,
11 Cush. 341. Aa to effect if omission to file papers under the two-thirds act see
Barnes v. Gill, 13 Abb. Pr. N. S. 169.
13 Bullymore v. Cooper, 46 N. Y. 236, affi'g 2 Lans. 71. What presumptions arise
from defects in the record, see Soule v. Chase, 1 Robt. 222, s. c. 1 Abb. Pr. N. 9.
48, rev'd, on another point, in 89 N. Y. 342; People ex rel. Pacific Mutual Ins. Co.
v. Machndo, 16 Abb. Pr. 460; Salters v. Tobias, 3 Paige, 338; Ayres v. Scribner,
17 Wend. 407.
14 Smith v. Bennett, 17 Wend. 479 ; s. p. Green v. Sarmiento, 8 Wash. C. Ct. 17,
8. c. Pet. C. Ct. 74. For the mode of proving domicil and citizenship, see Chapter V.
For the effect of a State insolvent discharge, in respect to citizens affected, see
Baldwin v. Hale, 1 Wall. 223, and cases there cited ; Matter of Coates, 3 Abb, Ct.
App. Dec. 231.
DISCHARGE. 821
38. New promise.] Plaintiff may prove in rebuttal, a new
promise 1 if made after discharge. 2 Acknowledgment or mere
expression of intention is not enough. 3 The promise must be
clear, distinct and unequivocal. 4 If conditional, the occurrence of
the condition must be shown. 5
1 Dusenbury v. Hoyt, 53 N. Y. 521, rev'g 36 Super. Ct. (J. & S.) 94 ; 14 Abb.
Pr. N. S. 132.
8 Promise before discharge is irrelevant. Reed v. Frederich, 8 Gray, 230. The
date of a written promise may be supplied by oral evidence. See Lobb v. Stanley,
5 Q. B. 574.
8 Allen <fc Co. v. Ferguson, 18 "Wall. 1, citing Hill on Bkcy. 264-6, and cases
tbere collected.
4 Id. ; Stern v. Nussbaum, 5 Daly, 382, s. o. 47 How. Pr. 489.
* Allen v. Ferguson (above); Scouton v. Eislord, 7 Johns. 36; Etlar v. Galbraith,
16 Am. L. Reg. N. S. 78.
CHAPTER LXI.
LIMITATIONS.
1. Pleading. 6. Acknowledgment.
2. Burden of proof. 6. Part payment.
8. New promise. 7. Indorsement of payments.
4. Conditional new promise.
1. Pleading.'] Even though plaintiff shows a case to which
the statute appears to be a bar, the statute is not available to de-
fendant unless he has pleaded the facts necessary to give it
application. 1 If pleaded, the burden is on plaintiff to show any
suspension of the statute on which he relies. 2
2. Burden of proof ,~\ Under a plea of the statute, the bur-
den is on plaintiff to show the commencement of action within
the statute period. 3 Under the new procedure, service, or the
time of delivery to the sheriff for the purpose of service, is
usually the time. 4 At common law the date of the. process is
prima, fade evidence of the time when it was sued out, 5 but
does not exclude extrinsic evidence. 6 An indorsement by the
deputy sheriff of its delivery at the office, is not evidence of the
date of its delivery, for the statute does not require him to make
such indorsement. 7 It is not necessary to show that the process
was actually returned, nor (at common law 8 ) even that it was
actually delivered to the sheriff ; but it must be proved that it
was sent to him, or his deputy, with an absolute and uncon-
ditional intention to have it served. 9 Oral declarations of trust,
though incompetent evidence to establish the trust, are compe-
tent to show that at the time they were made the alleged trustee
1 N. Y. Code Civ. Pro. 413. The rule is satisfied by pleading the facts without
mentioning the statute. Harpending v. Reformed Dutch Ch. 16 Pet. 455. This
rule may be applied to special statutory limitations such as that of divorce. Kaiser
v. Kaiser, 16 Hun, 602. Otherwise of delay, and stateness of claim in equity. Sul-
livan v. Portland, Ac. R. R. Co. 94 U. S. (4 Otto), 806. Plaintiff may rely on the
statute, though not pleaded, to bar any demand proved by defendant which did not
call for a reply. Mann v. Palmer, 8 Abb. Ct. App. Dec. 162.
J Baldwin v. Martin, 14 Abb. Pr. N. S. 9, 8. c. 35 Super. Ct. (J. <fe S.) 85, and
caa. cit.; Graham v. Schmidt, 1 Sandf. 74.
3 2 Greenl. Ev. 431 ; Taylor v. Spears, 1 Eng. (6 Ark.) 381.
4 N. Y. Code Civ. Pro. 399.
2 Greenl. Ev. 431.
Id. ; Porter v. Kimball, 8 Lans. 830.
1 Wardwell v. Patrick, 1 Bosw. 406. Compare N. Y. Code Civ. Pro. 100.
* See N. Y. Code Civ. Pro. 399.
' Bnrdick v. Green, 18 Johns. 14.
[822]
LIMITATIONS. 823
had not begun to claim adversely, and thus show that the statute
had not then attached. 1
The burden is on plaintiff to show the existence of facts
which he relies on to create an exception from the general rule
of the statute. 8 Where it is incumbent on plaintiff to prove
that he was under a disability, he must show that it was a con-
tinuing disability from the hrst. 8 Where fraud is available to
suspend the running of the statute the presumption is, that if the
party affected might with ordinary care and attention have sea-
sonably detected it, he seasonably had actual knowledge of it. 4
The burden is on the debtor, whose absence has been shown and
who relies on his return to the State, to prove the facts requisite
to render his return effectual as the origin of the statute bar. 5
3. New promise^ A new promise is admissible in rebuttal
though not alleged. 6 Otherwise of a promise varying the con-
tract. 7 The evidence must show an express promise to pay,
absolute or conditional, or an acknowledgment of the debt as
subsisting, made under such circumstances that such a promise
may be implied. 8 The promise must be made to the creditor, or
some one acting for him, or if made to a third person must be
calculated and intended to influence the action of the creditor. 9
Under the present statute an acknowledgment or new promise,
relied on to take the case out of the limitation, must be in
writing, signed by the party sought to be charged. 10 This statute
1 Barker v. White, 58 N. Y. 204.
2 Ford v. Babcock, 7 N. Y. Leg. Obs. 270, B. o. 2 Sandf. 518 ; Somerville v. Ham-
ilton, 4 Wheat. 230, 234.
3 Ang. on Lira. 204, S 196.
4 Ang. on Lira. 193, 187.
5 Cole v. Jessup, 2 Barb. 309, 314; Ford v. Babcock, 7 N. Y. Leg. Obs. 270, 280,
8. o. 2 Sandf. 618. If the contract was made without the State the burden is on de-
fendant to show residence within it for the statute period. Mayer v. Friedman, 7
Hun, 218. affi'd 69 N. Y. 608.
' Esseltyn v. Weeks, 12 N. Y. 635, s. o. 2 Abb. Pr. 272 ; Dusenbury v. Hoyt, 63
Id. 621 ; Yaw v. Kerr, 47 Penn. St. 333.
1 Lonsdale v. Brown, 3 Wash. 404.
8 Wakeman v. Sherman, 9 N. Y. 85; Meyerhoff v. Froelich, 27 Weekly R. 258.
If there was more than one debt, a general acknowledgment of indebtedness is not
sufficient alone as evidence of a new promise to pay either one. Stafford v. Bryan,
3 Wend. 632, 536; and see 1 Pet. 351.
Wakeman v. Sherman (above); Sibert v. "Wilder, 16 Kan. 176, s. c. 22 Am. R.
28n.
10 N. Y. Code Civ. Pro. 395 ; Esselstyn v. Weeks, 2 Abb. Pr. 272, s. c. 12 N. Y.
635 ; and see Adger v. Alston, 15 Wall. 555, 561. And an account stated, not signed,
cannot be regarded as a new contract to sustain an action when action on the original
indebtedness is barred by tie statute. Cliace v. Trafford, 116 Mass. 529, s c. 17
Am. R. 171. The debtor's specifying the demand in nn assignment for benefit of
creditors, may be enouirh as a new promise (Pickett v. King, 34 Barb. 193), but a
part payment by his assignee does not revive the debt again as of the date of the
payment. Roosevelt v. Mark, 6 Johns. Ch. 266. As to promises of joint debtors,
partners after dissolution, <fec., see p. 1 84 of this vol. and Beardsley v. Hall, 36
Conn. 270, s. c. 4 Am. R. 74. In those jurisdictions where the statute does not re-
quire a new promise to be in writing, the statute i>f frauds does not require it, if the
original contract was in writing. Brandt on Suretyship & G. 85, 65.
824 LIMITATIONS.
does not .alter the requisite acknowledgment or new promise, but
only requires it to be in writing, signed ; l and the date of the
writing may be shown by oral evidence, 2 even for the purpose of
correcting an erroneous date. 3 And oral evidence is competent
to connect the new promise with the original debt. 4
4. Conditional new promised] If the new promise was con-
ditional, plaintiff must at least give evidence from which the jury
may infer fulfillment of the condition, as expressed. 5 If the
promise was to pay in specific articles, plaintiff must show that
he was ready and offered to accept them. Promise to pay when
able, is insufficient without evidence of the ability to pay. 6
Direct evidence of ability is not necessary ; it may be inferred
from circumstances. 7 To show continuing inability, defendant
may prove his indebtedness to third persons without producing
or accounting for written securities. 8
5. Acknowledgment.] Evidence of an acknowledgment is
not enough unless it suffices to sustain an inference of promise ; 9
but an acknowledgment without words importing intent to pay
may suffice. 10 The production of the instrument sued on, with
an indorsement in the handwriting of the debtor, of his name
and the date of the indorsement, is a sufficient acknowledgment
in a writing signed by the party chargeable, within the meaning
of the statute.
6. Part payment^] The statute requiring a new promise to
be in writing does not prescribe any new rule of evidence as to
the fact or effect of payment ; and part payment may be proved
by oral admissions of the debtor. 12 Where a part payment relied
on was made by an agent, the evidence must sustain an inference
that the agent had authority to make a new promise, or to per-
form for the party the very act which is relied on as evidence of
a new promise. 13 The authority of the agent may be proved by
parolX If defendant or his authorized agent made the payment,
it is immaterial whose money was used. 15
1 Kincaid v. Archibald, 73 N. Y. 189, 192, affi'g 10 Hun, 9.
* Edmonds v. Downs, 2 C. <fc M. 459.
3 Kincaid v. Archibald, 73 N. Y. 189, 193, and cases cited.
4 Ilsley v. Jewett, 2 Mete. 168, 173.
6 Cartledge v. West, 2 Den. 377 ; Wakeman Y. Sherman, 9 N. Y. 85 ; Bush v.
Barnard, 8 Johns. 407. .
6 Id.; Tompkins v. Brown, 1 Den. 247; Chandler v. Glover, 32 Penn. St. 509.
I Thus the fact that he was in business and kept open store is enough to go to the
jury. Lonsdale v. Brown, 4 Wash. C. Ct. 86. The mere fact of his having a sign
of business over his door is not enough. Everson v. Carpenter, 17 Wend. 419, 422.
8 Duffie v. Phillips, 31 Ala. 571.
9 Van Keuren v. Parmelee, 2 N. Y. 523.
10 Cowan v. Magauran, Wall., Jr. 66, and cas. cit.
II Bourdin v. Greenwood, L. R. 13 Eq. Cas. 281, s. c. 1 Moak's Eng. 677.
1S First National Bank of Utica v. Ballou, 49 N. Y. 155; 2 Lans. 120.
13 Smith v. Ryan, 66 N. Y. 352, 356, affi'g 39 Super. Ct. (J. <k S.) 489.
14 First Nat. Bank of Utica v. Ballou, 49 N. Y. 156.
"Id.
LIMITATIONS. 825
The part payment must be an actual transfer of something of
value, not a mere indorsement or deduction ; 1 and it must be
shown to have been made under circumstances which will war-
rant a finding, as a question of fact, that the debtor intended to
recognize the debt as subsisting, and that he was willing to pay
it ; 2 but its effect is not impaired by evidence that he supposed
the part payment would extinguish the whole. 8
Evidence of mere payment of money is not enough without
something to connect it with the debt in suit. 4
The effect of a part payment, as against the statute, may be
repelled by evidence that the debtor, at the time of making it, ex-
pressly disputed the balance or the item now contested. 5
7. Indorsement of payment^ An indorsement on the instru-
ment sued on, acknowledging a part payment, and dated, is com-
petent, and sufficient to go to the jury, if in the handwriting of
the defendant ; or, when in Jhe handwriting of the creditor who
is shown to have since deceased, 6 if there is extrinsic evidence of
the date. 7 In other cases an indorsement on the security, made
by the creditor without the privity of the debtor, is not evidence
of the payment for this purpose, unless it appear that it was
made at a time when its operation would be against the interest
of the person making it. With such evidence it is sufficient to
go to the jury. 8
1 Blanchard v. Blanchard, 122 Mass. 558, s. o. 23 Am. R. 397.
J Pickett v. King, 34 Barb. 193. Hence compulsory payment is not enough.
Morgan v. Rowlands, L. R. 7 Q. B. 493, s. c. 2 Moak's Eng. 611, and cas. cit. In
application of the same principle, the delivery of a bill or note of a third person as
collateral security or as provisional or conditional part payment, is competent evi-
dence within the rule allowing evidence of payment, and whether the security re-
sulted in part payment or not is immaterial. Smith v. Ryan, 66 N. Y. 352, 355, affi'g
39 Super. Ct. (J. <fe S.) 489. But on the other hand, a part payment derived from a
collateral security, without the assent of the debtor to it as a payment; is not
alone sufficient as a new promise. Harper v. Fairley, 53 N. Y. 442.
3 Carrington v. Crocker, 87 N. Y. 336, s. o. 4 Abb. Pr. N. S. 335.
* Livermore v. Rand, 26 N. II. (6 Post.) 85.
B Peck v. N. Y. and Liverpool S. S. Co. 5 Bosw. 226, 237.
Risley v. Wightman, 13 Hun, 163, 165 ; 1 Greenl. Ev. 13th ed. 155.
7 Whether this is necessary compare Risley v. Wightman (above); Knight v.
Clements (above); 1 Greenl. Ev. 154, 121, l'J2; Miller v. Dawsou, 26 Iowa, 186.
6 lloeeboom v. Billington, 17 Johns. 182.
CHAPTEE LXTI.
FORMER ADJUDICATION.
1. General Rules. 10. Joint defendants.
2. Former recovery as merging the 11. Form of the adjudication.
cause of action. 12. Record to be produced.
8. Splitting cause of action. 13. "What questions were determined
4. Former adjudication as an es- by it.
toppel. 14. Oral evidence to explain record.
6. What questions are concluded. 15. Set-off.
6. Construction of instrument. 16. Rebuttal: Want of Jurisdiction.
7. Courts and tribunals. 1 1. fraud.
8. Exclusive jurisdiction. 18. appeal ; reversal.
9. Parties. 19. new title.
1. General fiules.] The general rules are : 1. The judgment
of a court of concurrent jurisdiction directly upon the point is, as a
plea, a bar, or, as evidence, conclusive between the same parties,
on the same matter directly in question in another court ; 2. The
judgment of a court of exclusive jurisdiction directly upon the
point is, in like manner, conclusive upon the same matter between
the same parties, coming incidentally in question in another court
for another purpose ; 3. But neither the judgment of a concur-
rent or exclusive jurisdiction is evidence of any matter incident-
ally cognizable, nor of any matter to be inferred by argument
froift the judgment. 1
1 Duchess of Kingston's Case, 20 How. St. Tr. 538, s. c. 2 Smith's L. Cas. 609 ;
Caujolle v. Ferric, 13 Wall. 465, 469. The conclusive effect is lost if opportunity to
plead has been had and neglected. Page 828, n. 1. The reader will be assisted in
harmonizing the otherwise irreconcilable conflict which apparently exists, even among
well considered decisions, if he bears in mind the distinctions between the following
important classes of cases, which are all comprehended under the general designation
of " former adjudication." 1. Where, to prevent plaintiff from maintaining 1 any ac-
tion, defendant insists that he has already had his action on the same cause and it
haa been determined against him. Here the judgment is a bar. 2. Where defendant
adduces a judgment between himself and plaintiff, as evidence of the truth of de-
fendant's allegation of fact or denial Here if the action was for the same cau?e, the
judgment is conclusive on every question that might have been litigated; if on an-
other claim or demand, it Ls conclusive as to those questions which actually were liti-
gated and determined. 3. Where he adduces it as determining the construc;ion of a
contract between them, or of a statute on which their controversy turns. 4. Where,
to prevent plaintiff from maintaining any action, defendant insists that he has already
had his action and recovered judgment on facts now alleged. Here, although the
judgment may be evidence of the truth of the allegations of the complaint, it merges
the cause of action, and though the allegations be true the court will not give plaintiff
a second judgment. See, for the limits of this rule, 4 Abb. N. Y. Dig. new ed. 86 ;
8 Id. 452-74 ; 1 Id. 268. 6. Where he alleges that plaintiff has sued for and recov-
ered a part of an entire claim which cannot be split. Here the court, upon the same
principle, will not entertain a second action, although it be clear that something re-
mained due and unrecovered, which ought to have been recovered in the first action.
[826]
FORMER ADJUDICATION. 827
2. Former recovery as merging the cause of action^} A
former recovery in favor of plaintiff, relied on, not as furnishing
evidence in support of defendant's present. allegations, but as merg-
ing the cause ol action and constituting a bar to a new action, is
not admissible if not pleaded. 1
3. Splitting cause of action. ,] A judgment in a former action
brought only for a part of the same cause of action, is admissible
(if pleaded) to bar recovery for the residue ; and all the items of
a running account constitute a single cause of action within this
rule, 2 and so do all sums due on a single covenant, at the time of
commencement of action. 3
4. Former adjudication as an estoppel.'] "Where a former ad-
judication is pleaded as an estoppel, it is a conclusive bar. Where
See 1 Id. 627 ; Jex v. Jacob, 7 Abb. New. Cns. 453 ; Perry v. Dickenson, Id. 466.
6. Where" he alleges that in a former action by himself against the plaintiff, the latter
ought to have set-off what he now alleges, and by failing to do BO is concluded, bee
Blair v. Bartlett, 75 N. Y. 150.
Independent of the rules stated in the text, judicial proceedings may be given in
evidence, like anything else, as circumstances from which to infer a g ven conse-
quence, without that concurrence as to identity of parties and subject-matter which
works a technical bar. Van Rensselaer v. Akin, 22 Wend. n49. The pleading of a
party in a former proceeding, is competent against him (without reference to identity
of subject or parties), if shown to have been made with his knowledge or sanction.
Cook v. Barr, 44 N. Y. 156. But is not conclusive unless there ia some ground for
treating it as raising an estoppel. Id.
When used for other objects than as a bar or estoppel, as for instance in deraign-
ing a title or to show a confession, or an act done, the reason of the rule restricting
the evidence to a case between the same parties ceases. A mere stranger to a verdict
and judgment, for instance, who claims laud in virtue of a purchase upon execution,
may give the record in evidence. A plea of guilty to an indictment for an assault
and battery, may be received as evidence against the defendant in a civil action at the
suit of the prosecutor; an answer in chancery in one suit, is admissible in another
between different parties. Walsh v. Ostrander, 22 Wend. 177, COWEX, J; Ban* v.
Gratz, 4 Wheat. 213. And, where reputation is relevant, a judgment between dif-
ferent parties establishing the fact, is competent evidence of reputation. Reed v.
Jackson, 1 East, 355. Where pleadings and a judgment or decree are put in evidence
for such a purpose to prove a fact which appears on the face of those documents to
have been in issue, the party producing them is not bound also to put in the deposi-
tions as part of his own case. Laybourn v. Crisp, 4 M. <fe \V. 320; Rose. N. P. 128.
1 Morris v. Amos, 15 Ind. 865. Otherwise at common law. Mason v. Eldred, 6
Wall. 231, 234. Nor is it available when not pleaded by defendant, even if proved
by plaintiff. Brazill v. Isham, 12 N. Y. 9, affi'g 1 E. D. Smith, 437. But admission
without objection is not ground of reversal. N". Y. Cent. Ins. Co. v. Nat. Prot. Ins.
Co. 14 N. Y. 85; Draper v. Stouvenel, 38 Id. 219, 222.
2 Secor v. Sturgis, 16 N. Y. 548.
8 Ji-x v. Jacob. 7 Abb. New Cas. 453. The true distinction seems to be that if
the claims constituted a single cause of action, though arising on different transac-
tions or periods, as for instance, a running account, or successive instalments of rent
actually accrued, a judgment for part bars a new action for the rest ; but if they are
such that although they might have been joined, they must have been separately
stated as separate causes of action even though they arose at the same time or on
the same contract, such ns claims on distinct covenants, or claims on a principal and
on a collateral security, etc., a judgment on one does not bar a new action on the
other, unless by establishing some matter fatal to both. Compare Jex v. Jacob, 7
Abb. New Cas. 453 ; and Perry v. Dickenson, Id. 460, and cases cited, where con-
flicting cases are collected.
828 FORMER ADJUDICATION.
the party could and did not plead it, but denied the fact to con*
elude which it is offered, he consents to try the fact, and the adju-
dication is only prima facie evidence. Where from the form of
the proceeding he could not plead it, it is admissible and conclusive. 1
5. What questions are concluded.'] An adjudication when used
as an estoppel in another action between the same parties upon
the same claim or demand, is conclusive, not only as to every
matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which
might have been offered for that purpose. 2 When used as an
estoppel in an action on another claim or demand, it is conclusive
on any material fact, common to both, 8 which was actually con-
troverted, litigated and determined in the former action, and on
those only. 4 In all cases therefore, where it is sought to apply
the estoppel of a judgment rendered upon one cause of action to
matters arising in a suit upon a different cause of action, the in-
quiry must always be as to the point or question actually litigated
or determined in the original action, not what might have been
thus litigated and determined. 5
In cases of either class it is conclusive, although the facts nec-
essary to show that the same question was determined are shown
by parol, 6 under rules below stated.
One who pleads and proves a judgment as a former adjudica-
tion, in respects favorable to him, is concluded by it in respects in
which it is unfavorable to him, although it might not otherwise
be conclusive in such respects. 7
6. Construction of instrument.] The construction of a con-
tract determined in an action between the parties, is conclusive
on them in another action on subsequently accruing claims on the
same clauses. 8 Where a former adjudication on the construction,
even of a statute, is relied on, the party need not prove again the
facts which led the court to give such construction to the statute. 9
1 Wood v. Jackson, 8 Wend. 9, rev'g 3 Id. 27 (SEWARD) ; Lawrence v. Hunt, 10 Id.
81, 85 (s. P. NELSON, J.) ; Rose. N. P. 205 ; modifying the rule of CH. J. DE GREY, in
Duchess of Kingston's Case, 20 How. St. Tr. 538, s. c. 2 Sm. L. Cas. 609 ; Krekeler
v. Ritter, 62 N. Y. 372 ; Wright v. Butler, 6 Wend. 284, 283 ; Jackson v. Lodge, 36
Cal. 28. Contra, Bigelow on Est. 520, who is of opinion that it ought to be conclusive
whenever it is admissible. Reasonable certainty is all that is required in the allega-
tion. Gould v. Evansville, Ac. R. R. Co. 91 U. S. (I Otto), 526, 531.
8 Cromwell v. County of Sac, 94 U. S. (4 Otto), 351, 352.
1 Thus, a judgment defeating an action on one of two instruments given as one
transaction, upon the ground of want of authority, or of fraud, or discharge, com-
mon to both, is a bar to an action between the name parties, upon the other instru-
ment. Aurora City v. West, 7 Wall. 82, 96 ; Bouchaud v. Dias, 3 Den. 243 ; Gardner
v. Buckbee, 3 Cow. 120.
* Cromwell v. County of Sac, 94 U. S. (4 Otto), 351, 353 ; Davis v. Brown, Id. 423.
* Id. ; Id.
6 Walker v. Chase, 63 Me. 268. Compare Russell v. Place, 94 U. S. (4 Otto), 606.
T United Society of Shakers v. Underwood, 11 Bush. 265, s. o. 21 Am. R. 214, 219.
8 Tioga R. R. Co. v. Blossburg, <fec. R. R. Co. 20 Wall. 137, 143, and cases cited.
Wood y. Mayor, dec. of N. Y. 73 N. Y. 656.
FORMER ADJUDICATION. 829
7. Courts and tribunals.'] Tho rale that a former adjudica-
tion is an estoppel, is applied not only to the adjudications of
domestic courts, inferior x or superior, but, with due qualification
as to jurisdictional questions, to the adjudications of competent
tribunals in foreign countries, to sentences of courts of admiralty,
to those of ecclesiastical tribunals, and, in short, of every court
which has proper cognizance of the subject-matter, 2 if the adju-
dication is conclusive by the law of the foreign jurisdiction ; and
in a qualified degree, to decisions of other bodies than those
which are strictly .judicial. 8
It is a general rule that where a particular authority is con-
fided to a public officer to be exercised by him in his discretion,
upon an examination of facts, of which he is made the appro-
priate judge, his decision upon these facts is, in the absence of
any controlling provisions, absolutely conclusive as to the exist-
ence of those facts. 4
An award is in the nature of a former adjudication under these
rules. 5
8. Exclusive jurisdiction.'] An adjudication by a court of ex-
clusive jurisdiction is necessarily conclusive on all other courts,
no matter in what controversy adduced, 8 subject however to im-
peachment for fraud or want of jurisdiction. When adduced in
the same court, it only binds the subject-matter as between par-
ties and privies. 7
9. Parties."] The term "parties," in these rules, includes not
only the actual parties to the particular litigation but also all per-
sons who claim under them as privies, 8 and all who have a direct
1 Routledge v. Hislop, 2 Ellis <fe E. 649.
* HopUns v. Lee, 6 Wheat. 109; Smith v. Kernochan, 7 How. (U. S.) 198.
8 See Big. on Est. 14. As to the conclusive effect of decisions of church judi-
oatories, see Connitt v. Reformed Protestant Dutch Church of New Prospect, 54 S.
Y. 551; 4 Lans. 339, and cas. cit.
4 Allen v. Blunt, 3 Story, 745. For the discussion of this principle, and the dis-
tinction bteween revising the decision of the officer, and applying to equity for the
benefit of it for another than the one in whose favor it was made, sec? Martin v. Mott,
12 Wheat. 19; Gould v. Hammond, 1 McAll. 233; Lindsey v. Hawes, 2 Black. 554,
and cases cited; State of Minnesota v. Bachelder, 1 Wall. 109; Stark v. Starrs, 6
Id. 402; Silver v. Ladd, 7 Id. 219; U. S. v. Wright, 11 Id. 648; Johnson v. Tows-
ley, 13 Id. 72.
6 Brazill v. Isham, 12 N. Y. 9. affi'g 1 E. D. Smith, 437. See Chapter XXIV.
'Gelston v. Hoyt, 3 Wheat. 246; Case of Broderick's Will, 21 Wall. 603.
'The Marv, 9 Cranch, 126.
8 Big. on Est. 75. For instance, a different person succeeding to the same trust.
Verplanck v. Van Buren, 76 N. Y. 247, 256, rev'g 11 Hun, 328; but not the same
person appearing individually in the earlier case, and as trustee in the later. Rath-
bone v. Hooney, 68 N. Y. 463; and see p. 159 of this vol. Assignor and assignee of
a chose in action. Chew v. Brumagen, 13 Wall. 497. Compare p. 1 1 , <tc. of this vol.
Persons purchasing pendente lite. Craig v. Warp, 1 Abb. Ct. App. Dec. 454. A cor-
poration in which a previous corporation had become merged. Pnila. <kc. R. R. Co.
v. Howard, 13 How. (U. S.) 307. Creditors may be concluded by ft judgment, to
which an assignee in trust for them was a party. Kerrison v. Stewart, 93 U. S. (3
830 FORMER ADJUDICATION.
interest in the subject-matter of the suit, or have a right to make
a defense, or control the proceedings, 1 to adduce and cross-ex-
amine witnesses, and to appeal; 2 or who have assumed to do so.*
The rule does not make an adjudication evidence against a
stranger, 4 nor against new parties not in privity, nor in favor of
new parties not in privity, against whom the judgment had it
been adverse would not have been available. 5
If the parties are not nominally the same, extrinsic evidence is
competent 8 and necessary 7 to show the identity.
The fact that there were other parties in the former suit who
are also estopped, does not render the former decision any less con-
clusive against him who is a party to both. 8
10. Joint defendants.] Where the contract is joint and not
joint and several, a judgment against one debtor merges the en-
tire cause of action, even without proof of satisfaction, and bars
an action. 9 Otherwise, under the special statutes as to joint
debtors. 10 In actions for wrongs whether to person or property, a
previous recovery against a joint wrong-doer, on account of the
same wrong, is not a bar unless satisfaction is proved. 11
11. Form of the adjudication^ The rule is applicable to ad-
judications at law or in equity, 12 unless the adjudication was upon
the ground that the party had mistaken his remedy. It extends
not only to ordinary judgments at law, and decrees in equity, 13 but
also to a judgment by default ; M and to a judgment by confession,
Otto), 155, 160. Persons not parties to proceedings in a court of equity for distribu-
tion of a common fund among the claimants, are not concluded by the decree (if no-
tice was not given and they were not guilty of neglect), from proceeding on their
own behalf, if they intervene before distribution. Matter of Howard, 9 Wall. 175,
186, and cas cit. Compare Kerr T. Blodgett, 48 N. Y. 62; 16 Abb. Pr. 137, s. c. 25
How. Pr. 803.
1 Bates v. Stanton, 1 Duer, 79.
8 1 Greenl. Ev. 535.
3 Big on Est. 47.
4 Hurst v. McNeil, 1 "Wash. C. Ct. 70; Matthews v. Mened^er, 2 McLean, 145;
Booth v. Powers, 56 N. Y. 22, rev*g Flint v. Craig, 69 Barb. 319. " In truth there
is no possible ground on which a reported case can be made evidence of the facts
stated therein, ngainst a stranger." GEIDLET, J., Seymour v. Marvin. 11 Barb. 80, 86;
but see page 827, note.
6 Baring v. Fanning, 1 Paine, 549.
6 Stevelie v. Read, 2 Wash. C. Ct. 274; Evans v. Patterson, 4 Wall. 224, 231.
7 Greely v. Smith, 3 Woodb. <fc M. 236.
*Dows T. McMichael, 6 Paige, 139; Thompson v. Roberts, 24 How. (U. S.)
233.
9 Mason T. Eldred, 6 "Wall. 231, 238, reviewing cases.
10 Id.
11 Lnveioy v. Murray, 3 Wall. 1, citing the conflicting cases. The contrary is
held in Virginia and Rhode Island.
14 Bank of U. S. v. Beverly, 17 Pet. 127.
13 Smith v. Kernochen, 7 How. (U. S.) 198. As to interlocutory decree, compare
Rnmford Chem. Works v. Hecker, 10 Pat. Off. Gaz. 289 ; btovall T. Banks, 10 Wall
683, 687.
u l>ickson T. Wilkinson, 3 How. (U. S.) 57.
FORMER ADJUDICATION. 831
on facts appearing on the record, 1 and to adjudications on adverse
rights as between co-defendants. 3
A nonsuit at law, 8 or what, is equivalent, a dismissal of com-
plaint in an action of a legal nature under the new procedure, for
reasons which would be cause of nonsuit at common law, 4 is not a
bar, unless it affirmatively appears that it was granted upon a de-
termination of the merits of the same controversy. 6 A demurrer,
followed by judgment on the merits against the demurrant, is a
bar ; 8 but the bar rests rather on the judgment than on the de-
murrer. A report of a referee or similar finding in a court hav-
ing power to arrest judgment and grant a new trial, 7 or a verdict,
without judgment thereon, 8 or on which the judgment has been
reversed, 9 is not an adjudication and is not admissible in a subse-
quent action.
An order, made on motion, is not conclusive in the same sense as
a judgment ; and to prove it the motion papers and evidence should
be produced. 10 A reversal, remanding the cause for new trial, is
not a bar unless it directly affirms or denies some point in issue. u
12. Record to be produced.] The record, or a copy properly
authenticated, 13 must be produced, 13 or accounted for, so as to let
in secondary evidence. If the record be lost, the regularity of the
proceedings and the sufficiency of the evidence given on the for-
mer trial are presumed. 14 Unless a foundation is laid for second-
1 Big. on Eat. 18, 20.
s Corcoran v. Chesapeake, <fec. Canal Co. 94 U. S. (4 Otto), 741 ; Craig v. Ward,
1 Abb. Ct. App. Dec. 454.
3 Holton v. Gleason, 26 N. H. (6 Post.) 501 ; Greely r. Smith, 1 Woodb. & M.
181; 8 Id. 236; Homer v. Brown, 16 How. (U. S.) 354; Mich. Ins. Bk. v. Eldred, 6
Bias. 870.
4 Wheeler v. Ruckman, 61 N. Y. 391. And by N. Y. Code Civ. Pro. 1209, a
judgment of dismissal in any action thereafter commenced, does not bar a new action
for the same c mse of action, unless it expressly declares, or it appears by the ju,l<j-
ment-roll, that it is rendered upon the merits. Whether an absolute dismissal of a
bill in equity is a bar, compare Wheeler v. Ruckman (above) ; Durant v. Es-*ex Co.
7 Wall. 107, 109; United States v. Lane, 8 Id. 185, 201 ; Allen v. Blunt, 5 Woodb.
<t M. 121 ; Lessee of Wright v. Deklyne, 1 Pet. C. Ct. 199.
* Smith v. Ferris, 1 Daly, 18. The general entry of the dismissal of a suit by
agreement is evidence of an intention not to abandon the claim on which it is
founded, but to preserve the right to brirr* a new suit thereon, if it becomes neces-
sary. Haldeman v. United States, 91 U. S. (1 Otto), 584, 586.
6 Aurora City v. West, 7 Wall. 82, 98 ; Clearwater v. Meredith, 1 Wall. 25, 43 ;
Gould v. Evansville, (fee. R. R. Co. 91 U. S. (1 Otto), 526, 633.
7 Leonard v. Barker, 5 Den. 220.
8 Keed v. Proprietors of Locks, 8 How. (U. S.) 274, 291 ; Allen v. Blunt, 3 Story
C. Ct. 742, 746.
Smith v. McCool, 16 Wall. 560.
10 Alkus v. Rodh, 4 Daly, 397.
11 Harvey v. Richards, 2 GalL 216; Aurora City v. West, 7 Wall. 82, 106.
19 See page 857 of this vol.
13 Davisson v. Gardner, 10 N. J. L. (5 Halst. 289) ; Thelluson v. Sheldon, 2 New
R. 228; Mackay v. Easton, 19 Wall. 619, 632. Failure to produce or account for it
id a circumstance construed against the party. Clark v. O ikley, 4 Ark. 236.
u Trepngnier v. Butler, 12 Mart. (La.) 534. See the rules' on this subject more
fully stated in Chapter XIX.
832 FORMER ADJUDICATION.
ary evidence, oral evidence is not competent to show the con-
tents of parts of the record not produced. 1 The reported decision
of the court is not primary evidence of the adjudication, though
it can be referred to as an exposition of the law. 2 The record, or
a copy, is not rendered incompetent by the fact that the record
was not made up until after the commencement of the present
action. 8
13. What questions were determined ~by it.~\ The burden is on
the party adducing the former adjudication, to show that the sub-
ject of the present suit was directly in issue in the former one, 4
and that the former decision necessarily involved a determination
of the rights of the parties in respect to the question. 5 The fact
that the writs or forms of action were different is not decisive,
but the causes of action are regarded as the same, if the same
evidence would support both. 8 Identity in the description of the
cause of action stated in the two cases, with the fact that the
names of parties and amount claimed are the same, is enough to
throw on the other party the burden of showing that the causes
of action were not the same. 7
The presumption, in the absence of evidence to the contrary,
is, that the decision was upon the merits. 8 If the record shows
that the verdict or other adjudication could not have been had
without deciding the particular matter now questioned, it will be
considered as having finally determined it. 9 A record presenting
fairly two points, on either of which the decision might turn, is
conclusive on both, if the court fully considered and determined
both, and the decision might as well have been put upon one as
the other. 10 Where the parties and the cause of action are the
same, the prima facie presumption is, that the questions pre-
sented for idecision were the same, unless it appears that the mer-
its of the controversy were not involved in the issue. 11 If the rec-
1 Lessee of James v. Stookey, 1 Wash. C. Ct. 330 ; Davisson v. Gardner, 10 N. J.
L. (5 Halst.) 289. Where a bill, answer and decree are put in evidence to prove a
fact which appears on the face of those documents to have been in issue, the party
producing them is not bound also to put in the depositions as part of his own case.
Rose. N. P. 129, citing Laybourn v. Crisp, 4 M. <fc W. 320.
2 Mackay v. Easton, 19 Wall. 619, 632.
8 Krekeler v. Ritter, 62 N. Y. 372; Rinchey v. Striker, 28 Id. 45, s. o. 26 How.
Pr. 83.
4 Lonsdale v. Brown, 4 "Wash. C. Ct. 86.
6 Id.; Lawrence v. Hunt, 10 Wend. 81.
6 Hitchin v. Campbell, 2 Blacks. 827 ; Kitchen v. Campbell, 3 Wils. 304.
7 Lonsdale v. Brown (above); Agate v. Richards, 6 Bosw. 456.
8 Stearns v. Stearns, 32 Vt. 678.
Packet Co. v. Sickles, 5 Wall. 593.
10 Hawes v. Contra Costa Water Co. 6 Sawy. 287. Where a bill in equity seeks to
adjudicate the entire right of the parties before the court, the decree may be deemed
conclusive, not only against grounds of claim which were set forth in the bill as false
and pretended, but also against all other grounds. In re Chiles, 22 Wall. 157, 166 ;
and see Aurora City v. West, 7 Id. 82.
Gould v. Evansville, <fec. R, R. Co. 91 U. S. (1 Otto), 526, 532.
FORMER ADJUDICATION. 833
ord produced does not disclose what was at issue and determined,
extrinsic evidence is necessary. 1
14. Oral evidence to explain record.'] For the purpose of
enowing what was determined, oral evidence th&t a question not
involved in the pleadings was litigated, is not competent, 2 except
in case of a justice's judgment. 8 Oral evidence, not inconsistent
with the record, is admissible to show what was litigated and the
ground of the decision, 4 for instance, to show the precise day of
adjudication ; 5 that the present cause of action had not accrued
when the former judgment was rendered ; 6 to connect a bill of
particulars with the record; 7 to show the evidence given on the
issue ; 8 that the party supported his allegation by estoppel ; 9 and
that the finding or verdict was upon one rather than another of sev-
eral issues. 10 And evidence that the judgment was upon a written
instrument may be given without producing the instrument. 11
If the record is silent as to whether the causes of action are
the same, extrinsic evidence as to the ground of the verdict IB
competent. 12 But the extrinsic evidence should be confined to the
points in controversy on the former trial, to the testimony given
by the parties, and to the questions submitted to the jury for
their consideration ; and then the record furnishes the only proper
proof of the verdict. 13 Evidence of the secret deliberations of the
jury, or the grounds of their proceedings in making up their ver-
dict, is not competent. 14 The reasons given by the court upon
the delivery of their judgment are competent to show the ground
of it. 15 Oral evidence is not competent to contradict the record, 18
nor to show mistake in it. 17 Where the actual grounds of the
1 Davis v. Brown, 94 U. S. (4 Otto), 423.
8 Campbell v. Butts, 3 N. Y. 173 ; Davis v. Tallcot, 12 N. Y. 184, rev'g 14 Barb. 611.
Id. ; Doty v. Brown, 4 N. Y. 71.
4 Packet Co. v. Sickles, 5 Wall. 592; Miles v. Caldwell, 2 Id. 43 ; "White v. Madi-
son, 26 N. Y. 117, 8. c. 26 How. Pr. 481 ; Kerr v. Hays, 35 N. Y. 331 ; Lawrence v.
Cabot, 41 Super. Ct. (J. <fe S.) 122.
6 Wh'taker v. Wisbey, 12 C. B. 52; 12 L. J. C. P. 116. And a variance from
the day stated in the record, if that be fixed by legal fiction, is not deemed a contra-
diction of the record. Id.
6 Marcellus v. Countryman, 65 Barb. 201.
7 Marsh v. Pier, 4 Rawle, 273.
8 State v. Thompson, 19 Iowa, 299. And a jnror's testimony is competent
Whether the fact that the party offered no evidence at all, affects the conclusive
character of the adjudication, compare Colwell v. Bleakley, 1 Abb. Ct. App. Dec.
iOO; Ramsey Y. Herndon, 1 McLean, 450.
Rider v. Union Ind. Rub. Co. 4 Bosw. 169.
10 Rako v. Pope, 7 Ala. K S. 161 ; Washington, Ac. Steam P. Co. v. Sickles, 24
How. (U. 8.) 333.
11 Artcher v. McDuffie, 5 Parb. 147.
" Perkins v. Walker, 19 Vt. 144; Rig. on Est. S4.
13 I'ncket Co. v. Sickles, 6 Wall. 603, and ciises cited (VKLSON, J.).
14 Id. Compare Mnrcellus v. Countryman, 65 Barb. 201.
5 Birckhend v. Brown, 6 Sandf. 134.
16 Hrintnall v. Foster, 7 Wend. 103. Nor even a justice's docket. Id.
" McPherson v. Cunliff, 1 1 Serg. A R. 422 ; Reed v. Jackson, 1 East, 355.
53
834 . FORMER ADJUDICATION.
judgment can be clearly discovered from the judgment itself, it is
conclusive respecting the grounds, as well as respecting the act-
ual matter decided. 1
15. Set-off. ~\ A claim which, might have been interposed as a
set-off, but was not, is not barred, 2 unless it is so involved in the
facts out of which the former action arose, that to submit to re-
covery on those facts, without interposing the set-off, amounts
to an admission that there was no ground for such a set-off'. 8
"Where it appears that the plaintiff presented, as a set-off in the
former action, the claim now sued on and that it was disallowed,
the burden is on him to show affirmatively that it could not
legally have been allowed, to relieve himself from the effect of
the former decision as a bar. 4 If the record shows that a set-off
was interposed, parol evidence that it was withdrawn is not com-
petent. 5
16. Rebuttal: Want of 'jurisdiction .] Want of jurisdiction
is fatal. 6
1-7. fraud.'] A plaintiff against whom a former judgment
is interposed as a defense, not as a counterclaim, may without
replying prove that it was a fictitious suit. 7 So he may prove
fraud in the recovery ; 8 but for this purpose he must prove act-
ual fraud known and intended by the defendant, and unknown
at the time to the plaintiff. 9
18. appeal : reversal.'] Pendency of appeal does not neces-
sarily impair the effect of the adjudication. 10 Reversal may be
proved, though not alleged, 11 unless reply was required in the or-
dinary course of pleading. 12
19. new title.'] Plaintiff may, notwithstanding the adjudi-
cation, set up a new title acquired since then. 13
1 Alison's Case, L. R. 9 Ch. App. 26 ; Sturtevant v. Randall, 53 Me. 149 ; Walker
v. Chase, Id. 258.
2 Moal^s Van Santv. PI. 636.
3 Thus, suffering judgment at suit of a physician for the value of services is a bar
to a subsequent action against him for malpractice in those services. Blair v. Bart-
lett. 75 N. Y. 150, and cases cited; questioned in 2 Whart. Ev. 79", and Big. on Est.
104, 108. Compare Davis v. Hedges, L. R. 6 Q. B. 687 ; Do Wolf v. Crandall, 34
Super. Ct. (J. & S.) 14; Davenport v. Hubbard, 46 Vt. 200, s. c. 14 Am. R. 62u.
4 McGuinty V. Herrick, 5 Wend. 240; Hatch v. Benton, 6 Barb. 28.
B Davis v. Tallcott, 12 N. Y. 184. Centra, see Burnham v. Webster, 1 Woodb. &
M. 172.
6 Gage v. Hill, 43 Barb. 44. For the rules of proof, see Chap. XIX.
1 See Gaines v. Relf, 12 How. (U. S.) 472, 637.
8 Mandeville v. Reynolds, 68 N. Y. 528, 643, affi'g 5 Hun, 338 ; Yerplanck v. Van
Em-en, 76 N. Y. 247, 258, rev'g 11 Hun, 328. Contra, Krekeler v. Ritter, 62 N. Y.
372, 875.
9 Verplanck v. Van Burcn (above).
10 Paine v. Schenectady Ins. Co. 11 R. I. 411 ; and see p. 549 of this vol.
11 Briggs v. Bowen, 60 N. Y. 454.
18 Carpenter v. Goodwin, 4 Daly, 88.
13 Barrows v. Kindred, 4 Wall. 402 ; Noonan v. Bradley, 9 Id. 394 ; Merryman v
Bourne, Id. 599.
CHAPTEE LXIIT.
COUNTERCLAIMS.
1. Pleading. 2. Mode of proof; admission.
1. Pleading.'] Facts proven do not avail as a counterclaim,
unless pleaded. 1 In order to bring a counterclaim within the
rule that its allegations are admitted by a failure to reply, it
should be alleged in such form as to give plaintiff notice that
defendant asks an affirmative judgment against him. 2 That
which the answer only calls a defense is not admitted by failure
Jb reply. 3 When the facts alleged in an answer might consti-
tute a ground of counterclaim, but are such as always constituted
a flat bar at law to the plaintiff's right to recover by showing, if
.true, that he sever had any cause of action, they should be
deemed to be set up as a defense merely, unless the answer ex-
pressly shows that they are set up by way of counterclaim. 4 But
neither the word "counterclaim," nor any. particular form is in-
dispensable. 5 If the facts constituting a counterclaim are al-
leged, they may be proved ; and if proved, the pleader's use of
the term "recoupment," or "set-off does not prevent the court
from giving affirmative judgment. 6
2. Mode of proof ; admission."] The mode of proof of the
cause of action is the same as if stated in a complaint ; and the
1 Star Fire Ins. Co. v. Palmer, 41 Super. Ct. (J. & S.) 267, 271.
4 Bates v. Eosekrans, 37 N. Y. 409, s. c. 4 Abb. Pr. N. S. 276; N. Y. Code Civ.
Pro. 609.
* Bates v. Rosekrans (above); Simmons v. Kayser, 43 Super. Ct. (J. & S.) 131,
137.
4 Eqnit. L. Ass. Soc. v. Cuyler, 12 Han, 247, 251, affi'd in 75 N. Y. 511. But
facts showing that the equities are with defendant will avail to defeat a recovery,
though not pleaded as a counterclaim. Kingston Bank v. Eltinge, 66 N. Y. 623, affi g
5 II un, 653 ; Day v. Hammond, 57 N. Y. 479, 484. In an answer not purporting to
be a counterclaim, demand for cancellation of the instrument sued on is onty a de-
fense, not a counterclaim. Eq. Life Ass. Soc. v. Cuyler, 75 N. Y. 511, affi'g 12 Hun,
247, 251 ; Barthet v. Elias, 2 Abb. New Caa. 364. But a claim to have further relief
from another instrument is a counterclaim, and the allegations are admitted by fail-
ure to reply. Bernheimcr v. Willis, 11 Hun, 16.
6 Bates v. Rosekrans (above).
\\ild.r v. Boynton, 63 Barb. 647, 549. But see Shnte v. Hamilton, 3 Daly,
462, 475; Am. Dock, <fcc. Co. v. Staley, 40 Super. Ct. (J. & S.) 539. And to entitle
defendant to rely on a failure of consideration or a recoupment of damages, it is
enough that the facts are alleged, without stating which result he claims. ISprinjrer v.
Dwyer, 50 N. Y. 19, reVg 68 Barb. 189 ; Kelly v. Bernheimer, 3 Supm. Ct, (T. A C.)
140, s. c. 47 How. Pr. 62. Compare Dudley v. Scranton, 57 N. Y. 424, 4i>7.
[835]
836 COUNTERCLAIMS.
same rules as to allegation l and proof 3 of damages apply. The
facts alleged, if they constitute a counterclaim as distinguished
from a defense, 3 and are properly alleged, are admitted by a fail-
ure to reply, 4 if the benefit of this admission is clainjed at the
trial. 5 But it is only the facts alleged, not the conclusions of law,
that are admitted. 6 Replying to a counterclaim is not a waiver
of the objection that the claim is not the proper subject of coun-
tered m under the statute. 7
1 Parsons v. Sutton, 66 N. Y. 92, 97, affi'g 39 Super. Ct. (J. <fc S.) 644.
8 Ishara v. Davidson, 52 N. Y. 23V.
8 Rogers v. King, 66 Barb. 495.
4 Isham v. Davidson, 52 N. Y. 237, 241.
6 Jordan v. Nat. Shoe & L. Bank, 74 N. Y. 467, 471.
6 Id.
' Smith v. Hall, 67 N. Y. 48, 51.
GENERAL INDEX.
ABANDONMENT, by parent or husband, 178, 179.
of easement, 641.
of patent. 761.
of invention, 764.
of trade mark, 754.
ABATEMENT, defenses in, 786.
infancy as ground of, 796 n.
partner necessary co-plaintiff, 205.
partner necessary co-defendant, 213, 221.
coverture, 180.
pendency of another action, 717, 786.
of nuisance, 643.
ABDUCTION, 681.
ABSENCE, as evidence of loss at sea, 499.
raising presumption of death, 73-76.
incase of husband and wife, 83.
rebutting this presumption, 76.
slight evidence sufficient to account for, 76 n.
domicile of one absent under constraint, 105.
at school or college, 106.
in service as soldier or sailor, 106.
of witness who made memorandum in course
of business, 322 n.
repelling presumption of payment, 813.
excusing tender, 817.
of debtor suspending statute of limitations, 823.
ABSENT DEFENDANTS, evidence against, 187.
ABSTRACT OF TITLE, evidence of defect, 727.
ACCEPTANCE, of assignment, 6.
of lease transferred by general assignment, 532.
of charter, 24.
of corporate powers granted after charter, 31.
of terms of sale by buyer, 288.
by buyer, when unnecessary, 314.
to satisfy statute of frauds, 318.
of symbolical delivery, 318.
acts of ownership by buyer to show, 319.
of negotiable paper, 419.
how proved. !..
without fund."; and promise to reimburse, 257.
of delivery of sealed instrument, 507.
ACCESS, neither parent competent witness as
to, 89.
sexual intercourse, when presumed from, 88,
743.
rebuttal of presumption, 89.
means of knowledge, 743.
ACCIDENT, as evidence of negligence, 569, 571,
583.
circumstances to disprove, 496.
carrier exonerated by inevitable, 577.
ACCIDENT INSURANCE, 503.
ACCORD AMD SATISFACTION, mode of proof
and effect, 814.
mere words of agreement, 319.
statute of frauds as to, 319.
ACCOMMODATION paper, 401.
defenses to. 1 1-'.
evidence as to consideration, 406.
accommodation indorsement, 413.
ACCOUNTING, effect of proof of, in action to
charge lu'ir, 162.
account rendered, when bar to action for, 230,
815.
ACCOUNTS, as memoranda refreshing memory.
321.
as foundation of knowledge of market value, 311.
entry in account, to show intent as to advance-
ment, 151, 154.
of money paid between husband and wife, 172.
competency of separate account on question ol
joint account, 188 n.
admission by partner after dissolution, 219 n.
of partnership, as to real estate, 229.
partnership accounts as evidence, 229.
plaintiff's charges in account for money lent, 245.
as evidence of money paid by plaintiff, 259.
of newspaper printer, 376.
entries in payer's, to show payment, 808.
in creditor's, to show application of payment,
811.
in plaintiff's handwriting competent as to
amount, 266.
when to be produced in action for money re-
ceived, 276.
of a party offered in his own favor, 322, 372.
primariness of, 325.
when using part of, admits the rest, 326.
admissions of correctness of an, 327.
between defendant and agent of plaintiff, when
admissible to show set-off, 333.
admissibility after proving correctness of items,
401.
production of, in trade mark case, 753.
peculiarities in mode in keeping, 516.
abbreviated entries interpreted by expert, 429.
of books of corporations, 46, 52.
in action by receiver, 232.
of principal, adduced against surety, 513.
ACCOUNTS RENDERED by agent to principal
as proof of advances, 253.
an admission, 461.
not a limit, 368.
ACCOUNTS STATED, actions on, 458.
' financial agent " not empowered to state, 43.
due bill competent. 2H.
when not new promise, 823 n.
effect, as a defense, 815.
ACKNOWLEDGMENT, by testator to witnesses
to will, 111.
of value of advancement, 156.
by one to whom performance is agreed to be
made, 261 n.
of receipt of money, 275. (And fee RECKIPT.)
of an indebtedness when presumed to be of the
one in suit, 327.
of debt to repel presumption of payment, 813.
to rebut statute of limitations, 823.
to rebut defense of infam >
insufficient to rebut discharge, 8-J1.
ACKNOWLEDGMENT AND PliOOP of deed,
693.
of other instruments, 6, 505.
by married woman, 174, 175.
ACQUIESCENT K, in acts of officers or agents,
infrnvd. li, 299.
as ratification by corporation, 43.
of persons in business to show partnership, 237.
838
GENERAL INDEX.
ACQUIESCENCE- Continued.
presumption as to wife's, 164 n.
of cesttii utit truat, in trustee's dealings, 230.
office held by, 193.
in account, by drawing balance in pass-book,
278.
in terms of sale by possession of goods, 288.
In quality, 343.
iu infringement of trade mark, 754.
of copyright, 705.
of patent, 765.
ACQUITTAL, not conclusive of innocence, 790 n.
(And see 653, 654.)
ACT, allegation of doing, admits evidence of
causing, 771.
or of agency. (See AGENT.)
ACT OF CONGRESS, as to "full faith and
credit," 541, etc.
as to competency of witnesses, 70, 785.
as to defense in patent suit, <'ti-.
as to certified copies in, 760.
ACT OP LEGISLATURE, how proved, 21, 770.
"ACT OF GOD," exonerating carrier, 577.
ACTION PENDING, as a defense, 717, 786.
ACTION QUI TAM, 770. etc.
ACTUAL NOTICE, as distinguished from knowl-
edge and from notice from stranger, 430, 716, 717.
ACTUAL MALICE, 666.
ADDRESS of package delivered to carrier, 565.
of notice mailed, 433.
error in. explained, 431.
ADEMPTION, 148.
ADJUDICATION. (See JUDGMENT and FORMER
ADJUDICATION.)
ADJUSTMENT, "hit or miss," mistake in, 269,
814 w.10.
in insurance, 491.
ADMEASUREMENT of dower, 708.
ADMINISTRATION, decree granting, when may
be proved. 56.
extrinsic evidence to aid in executing will, 146.
ADMINISTRATION BONDS, action on, 514.
ADMISSIONS, distinguished from accounts stat-
ed, 458.
implied from objection to other item, 460.
of an assignment, by silence, 2.
bankrupt's schedule as, of debt, 10.
what sufficient, of de facto corporation, 23, 24.
of incorporation, 28.
to rebut presumption of authority to affix seal, 35.
of authority of public officer by making con-
tract, 195.
of title, by dealing with public officer, 197 n.
return of officer, an, 200.
of existence of process, of judgment or decree,
when incompetent, 202.
of partnership, 204.
denials and explanations of, 220.
of partnership by contract or conveyance in
firm name, 208 n.
in pleading, to show trust, 233 n.
that one is surety, competency of, 255.
to show payment by chi;ck, 259.
of sale of goods as proof of receipt of proceeds,
276.
as proof of ordinary sale by delivery, 287.
of indebtedness, as evidence of amount of price,
306.
of value, cost of article as, 307.
by buyer to prove delivery, 314.
contrary to fact provable, under allegation con-
trary to the fact, 423.
by principal of proper payment to agent, prim-
ary, 800.
to show payment, 808.
to show part payment, 824.
of guilt, 773.
of counter-claim by failure to reply, 835.
ADMISSIONS AND DECLARATIONS, how far
whole conversation to bo admitted, 266, 461,
492, 748.
as narratives of past events, 265 n. (And see
RES GEST^E).
of assignor of personal property, competency of,
for and against assignee, 11, etc., 286, 740.
of patent, 700.
ADMISSIONS AND DECLAR \TIONS- Confd,
during progress of invention, 757.
of former pOBMWor of chattels, etc., 488, 690.
of predecessor, in title or occupancy of real
property, 710, 740.
of occupant or tenant, as against owner, 641.
of principal, against guarantor, 474.
or surety, 513.
of real party in interest, 444.
of currier's agent, 567.
of stranger in same casualty, 581.
in case of assault, P48.
or nuisance, 642 h.
of officers or agents insufficient to show au-
thority, 43.
of officers and agents authorized to speak, 44,
4!2.
when part of res gestce, 44.
of president of bank as to its business, 44 n.
of officers and agents of insurance co., 4y.
of party to life insurance, 502.
of employees, adduced against master, 361.
of child against parent, 379.
of deputies as against sheriff, 612.
of inaemniior, 612.
of incorporators before incorporation, 45.
of previous, against consolidated corporation, 4S.
of members, adduced for or against corporation.
43.
in report of committee, when incompetent,
against corporation, 38.
of officers and agents, to prove notice, 45.
of executors and administrators, against estate,
58.
of decedent's insolvency, 161.
incompetent, against whom, 159.
of decedent, for or against executors and admi. -
istrators, 59, 60.
of deceased to witness, 68.
of representative or heir, raising presumption
of payment to ancestor, 69.
of heir, no prejudice to executor or adminis-
trator. 159.
of one of several joint legatees or devisees, to
show fraud or undue influence, 159, 160.
by grantor, rebutted by evidence relating to
transactions with deceased, 70 n,
certificate of marriage as declaration, 80, 99.
as evidence of marriage, 82, etc.
of last person seized, to sustain escheat, 86.
statement of birth in baptismal registry, 87.
of parent, etc., as to legitimacy, 89, 90.
as hearsay as to facts of pedigree, 90, etc.
primariness of oral declarations as to facts of
family history, 96.
as to domicile, 107.
of third persons as to possession of lands, un-
der ancient will, 128.
of testator as to contents of lost will, 127.
no part of testamentary acts, 129.
admissibility in aid of interpretation, 129, etc.
as to alterations in will, 134.
to rebut extrinsic evidence as to genuineness
of will, 136.
to identify person named in will, 137, etc.
to explain latent ambiguity, 140.
or misdescriptions, 148 A.
to ideniify property, 144.
as to boundaries, 145 n.
of decedent and beiu-ttciary, to show intent as
to advancement, 151, etc.
of ancestor, as to title, 157.
of husband or wife, 165, etc.
as to agency of one for the other, 167.
as to her title, 169.
as to services and payment of wife, 176, 177.
as to causes of separation, 179, 085, 679.
as to charge on separate estate, 184.
of husband competent, against widow in dow.
er, 708.
of joint parties or joint defendants, 187, etc.
of subordinate, when admissible against supt/
rior, 199.
of conspirators, 190, 621.
to show partnership, 207, 209.
of partners, 205, 218.
GENERAL INDEX.
839
ADMISSIONS AND DECLARATIONS ConCd.
as to authority or scope of business, 214.
after dissolution, ~1S.
of dec<-;i.-ed ami surviving partner, 225.
of cestul que tnut, 'Mti.
of trustees, 238.
in relation to pale, 320.
of one buving us ayent, that he was principal
debtor! .T;I.
of agent, t > show transaction for benefit of
principal, 299.
of seller or his agent, to show warranty, 348.
as to use and occupation, liiO.
as to hire of chattels, 35ii.
of intention to compensate services, 359.
or liability for, 360.
as to amount of purchase money, 383.
as to negotiable paper, 417.
of genuineness of signature, 392.
Affecting title, 405.
as to time of indorsement, 413.
of drawee adduced against drawer, 421.
as evidence of notice of protest, 430, etc.
to prove demand and notice, 434.
as to incumbrance, MO.
as to meaning of instrument, 526.
in case of negligence, 587.
as evidence to whom credit was given, 619.
as evidence of title to crops, 024.
respecting trespass, 630.
of validity of process, 032.
in actions for assault, 649.
in ejectment, 710.
as to title to lands, 710.
competency and effect of, in creditors' actions,
710.
in divorce, 743, 747.
in patent cases, 760.
in penal actions, 773.
in cases of forfeiture, 784.
in admiralty cases, 785.
of infant, to enow original transaction, 796.
of party, to show usury, 795.
ADULTERY, how proved, 743-748.
husband or wife as witnesses, 165, 747.
ADVANCEMENTS, 150-156.
ADVERSE ENJOYMENT, of easement, 640.
ADVERSE POSSESSION, of negotiable paper
sued on, 389, 444.
as a defense in ejectment, 715.
under judicial sale, 701.
avoiding deed, 710.
ADVERSE PROCESS, against bailee or bailor,554.
ADVERSE TITLE, in actions on lease, 530.
ADVERTISEMENT, action for compensation for,
876.
forbidding trust, to rebut marriage, 84 n.
to sustain escheat, 86.
designation in, to show usage as to name, 143.
by partners as proof of partnership, 208.
or of dissolution, 233.
description of goods in, as a warranty, 341, 345.
offering reward, 383.
of loss of negotiable paper, 450.
libelous, 663.
foreclosure by, 701.
of utility of invention, 756.
ADVICE, as evidence of good faith, 602, 655, 741.
AFFECTION of husband and wife in crim. con.,
685.
of parties to marriage promise, 677.
AFFIDAVIT of denial of receipt of notice of
protest, 427.
AFFIRMATIVE RELIEF demanded in answer,
886.
AGE, direct testimony to, 87.
hearsay as to relative age, 91.
declarations as to. 92 n.
assumption of suffrage or submission to taxa-
tion, 96.
entry in Bible, 96 n.
decree of probate, indicating, 110.
presumptive limit of, 73.
raises no presumption of survivorship, 79.
nor of marriage, 79.
nor of imposition on testator, 119n.
AGE Continued.
presumption that possiOility of Issue is extinct,
86, 724 n.
aids evidence of identity, 102.
not a testamentary disqualification, 115.
infant's age, 7:15.
age of document, 128 n, 397, 709.
AGENCY, inferred, from joint business, or courso
of business, 189, 1!H).
not presumed from paying debt, 252.
proof of, in action for money received, 279.
not proved by reputation, Sou.
how proved against wife, 358.
ratification as proof of, 566.
presumed to continue, 482.
of partners, ended by dissolution, 219.
to request advance of money, 250.
to sign or indorse, 399, 403.
to fill blanks in note, etc., 408.
to accept bill or refuse, 421.
to demand payment, 424.
indorsement for purposes of, 414.
as to accommodation paper, 442.
as to insurance, 476, etc.
as to account stated, 460.
to arbitrate, 465.
to sign sealed contract, 509.
charter party, 517.
to sell passage ticket, 579.
in malicious"prosectition, 653.
of delinquent in case of negligence, 591.
to sustain notice to one of two joint obligors. 100.
foundation for admitting declarations of parties
having joint interest or liability. 188.
or confederates or conspirators, 191.
or trustee, 236.
defendant only an agent, 2S2, 208, 334, 360, 386.
denial of agency to buy goods, 333.
necessity of disclosure, 860.
notice of defective authority, 451.
fraud by agent, 615. (And see AGEXT.>
AGENT, act of, proved under general allegation,
287.
authority proved under general allegation, 32.
fraud of, under general allegation. 3S.
ratification under allegation of authority, 32.
appointment of corporate, 40.
delegation by corporation, 32.
authority of corporate, 40.
clerk found behind desk, 41 n.
dress indicating brakeman, 41 n.
authority, when presumed. 34.
,
proved by ratification, 37.
by parol, 37.
by his own testimony, 43.
bv corporate minutes, 48.
to buy, when presumed to have power to re-
scind, 335.
authority of, to receive payment, 800.
presumed from agency in sale, 800.
authority of carrier's receiving agent, 564.
authority of, by corporate note or resolution, 41.
implied scope of authority, 41.
authority, to dissei/e, 43 rt.
to negotiate a loan, 43.
to warrant, 841.
to use sample. 344.
to receive payment, 447i.
sealed authority, 506.
death of principal ends authority, 801.
presumption as to husband's acts for wife, 174,
182, 184.
as to wife's act for husband, 177.
to purchase nect'.-sario. K*, 179.
fraud committed by husband, 185.
presumptions as to conduct of corporate, 33.
corporation liable for wrong by, 38.
wilful and malicious act of, 38.
request by, for loan. 241.
a 'i ion by, for money paid. 252.
for advances and charges, 252 n.
for money received. -'; t.
limit of recovery for money paid, 264.
parol to show principal in contract, 298.
Sroof of purchase by. 298.
able as undisclosed principal, 300.
840
GENERAL INDEX.
AGENT Continued.
liable for price of gooda, 801.
discretion of, as to " more or less," 805.
broker, when agent of both, 329.
understanding nf mutual agent, 330.
presumptions as to payment by negotiable pa-
per <if. :1.
eet off of price against, 333, 800.
receipt on delivery of check, 804.
receipt of usury by, 794.
part payment by, 824.
acts in course of business, 32.
parol contract by corporate, 34.
words of agency in signature, 37.
eigning for corporation personally liable, 87.
accounts and entries by, 52.
in firm books, 218.
minutes of, when not conclusive on corpora-
tion, 52.
estoppel of married women by acts of, 167.
admissions and declarations of, 44, 327.
of government agent, 195.
of partnership agent, 218 n.
of husband or wife as, 166, 167.
for husband or wife, 167.
confession by, 748.
price named by, evidence of value, 307.
price current issued by, 309.
to show warranty, 348.
preliminary question to admit declarations, 191.
knowledge of, evidence against principal, 772.
notice to, of dissolution of partnership, 224.
notice to, binding corporation, 45.
municipal corporation, 45 n.
letters of, as part of res gesta, 265.
competent, though an interested witness, 63.
interview with, since deceased, not excluded, 67.
actions by principal, against, 552, etc.
against collecting bankers, 558.
eviction of, 654.
evidence to charge personally, 400.
by-laws, when competent against, 48 n.
participation in profits by, 211. n, 212.
when made constructive trustee, 238.
receipt of money by, 276.
action against, for money received, 279.
for consideration of conveyance, 275.
refusal to account for goods, evidence of
gale, 280.
opinion of, as to necessity of act, 281.
defendant contracted as agent, 282, 298, 334, 360,
386.
parol to exonerate, 334. (And fee AGENCY.)
AGGRESSOR, in assault, 647, 650.
ALIENAGE, 86, 102.
presumption of naturalization. 750.
ALTERATION, how pleaded, 407.
in will, 133.
in account of party, 325.
in entries, 322 n.
in negotiable paper, 406, 407, 420, 441.
to correct error in protest, 427.
of numberin coupon bond, 453.
in deed, 696.
in bond or mortgage, 721.
noting, in attestation clause, 505.
in record of judgment, 538.
in public document, 749.
AMBIGUITY, as to identity in letters of admin-
istration, 56.
in words of gift causa mortis, 60.
in designation of lease, 527.
latent, in name, 140.
explained by parol, 129 n., 137, 140, 484, 485.
by declarations of testator, 143 re., 146.
as to which of two parcels, 145.
In memorandum of sale, 293 n.
in notice of protest? 432.
what is in contract, 484.
ambiguous clanse how construed, 526.
practical construction, 509, 526.
in libel, 664.
between vendor and purchaser, 726.
AMERICAN EXPERIENCE TABLES, 724 note.
ANCESTOR, title and declarations of. 156, 157.
admissions and declarations as to title to land. ; 10.
ANCESTOR Continued.
judgment against, when competent against heir,
160.
action to charge heir, next of kin, etc., 161.
ANCIENT DOCUMENT, mode of proof, 708.
title under, 708.
ANIMALS, actions for injuries by, 645.
opinions of witnesses as to diseases of, 347.
ANNUITIES, participation in profits by annui-
tants, 211 n, 212 n.
value of, 602.
ANOTHER ACTION PENDING, 717, 786.
ANSWER, defense and counter-claim, 835.
APPEAL, effect on judgment, 549.
on former adjudication, 834.
APPEARANCE, and accounting by executors
and administrators. 55 n.
in judgment of sister State, 548.
APPLICATION, for insurance policy, 477, etc.
APPLICATION OF PAVMKNTS, 810, 811.
APPROPRIATION OF PAYMENTS, 810, 811.
APPOINTMENT, of officers and agents of corpo-
ration, 40, 61.
production of, how compelled, 51.
of executor and administrator, 55, 57.
color of, to constitute color of office, 193 n.
co lor of, by officer, de facto, 201 n.
to public office, 749.
by parol, 194, 201.
of deputy or subordinate, 198.
evidence of in action for refusing to serve, 200.
record of, when conclusive, 201.
of receiver, 231.
of ship's husband, 252 n.
APPORTIONMENT, of rent in actions on lease,
533
ARBITRATION, collusiveness of, on question
of breach of warranty, 346. (And see
AWARD.)
ARBITRATOR, competency to impeach award,
468, 470.
ARCHITECT, certificate of, 371.
action by for services, 377.
ARSON, proving beyond reasonable doubt, 495.
ART, state of the, 759, 765 u.
ARTIST, action for painting, 376.
ASSAULT AND BATTERY, actions for, 646, etc.
injury and damages, 649.
provocation, 650.
ASSENT to agreement made by letter or tele-
gram, 289.
silence as, 272.
of creditor to assignment for his benefit, 10.
presumed from solemnization of marriage, 80.
of wife, 166.
of husband to wife's conveyance, 174 n.
by officer to acts of deputy or subordinate, 198.
to act of partner. 217, 222, 228.
to payment of money to defendant's use, 249.
to payment of tax, 254 n.
to suretyship, 255.
in action for non-delivery. 337.
by shipper, to limited liability of carrier, 574.
to payment by mail, 803.
denial of, as a defense, 787.
ASSESSMENT, payment by mistake for, 260 n.
request to pay, 266.
on insurance notes, 455.
presumption of payment of, from lapse of time,
812.
ASSESSMENT ROLL to support tax title, 704.
ASSESSOR, competent to identify property, 704.
ASSETS, title of executors and administrators to,
54.
a jnrisdictional fact forissuing letters, 57.
declarations of decedent as to amount of, 60.
return of execution against executor, etc., un-
satisfied to show want of, 161.
disposal of, by partner, after dissolution, 218.
charging member of partnership with, 229.
ASSIGNEES, actions by and against, 1.
equities against, 8.
notice to charge, 8.
impeachment of title of, 8.
title derived from, 9.
not to testify to personal transactions with de-
ceased, etc., 10, 65 n, 69 re.
GENERAL INDEX.
841
ASSIGNEES- Continued.
how affected by admissions and declarations of
assignor, 11, 503, 740.
incompetency of declarations of temporary,
11 n.
of receiver, suit by, 231 n.
part payment by, no revival of debt, 823 n.
in bankruptcy, proof of title of, 9.
in insolvency, proof of authority to sne, 9.
for benefit o'f creditors, proof or title of, 10.
liability for rent, 532.
evidence of frund, 740.
ASSIGNMENT, allegation of, material, 1.
and re-assignment Before action, 1,419.
after suit brought, insufficient, 1.
requisite proof of, 2.
implied, 2.
distinguished from " taking up," 2, 449.
presumptive evidence of, 3.
when within Statute of Frauds, 3
date, 2.
consideration, 4.
seal, 3.
schedules, 6.
object of, when material, 5.
for purpose of suit, 5, 8.
for purpose of collateral security, 9.
primarfness of, 6, 5.
proof of execution of, 6.
delivery and acceptance, 6.
by corporation, 6, 85, 47.
oral evidence to vary, 7,
to show relation of principal and agent be-
tween parties to, 280.
equities against assignee, 8.
l/ona fide purchaser protected, 8, 697, etc.,
of subject of order from one who gave it, 302.
of order for goods, recovery by, for non-deliv-
ery by holder, 338.
of lease or leasehold, 531.
of patent, 758.
of copyright, 766.
shown to have been made as collateral, 768.
intent as to tacit transfers between husband and
wife, 173.
of judgment, damages on breach of warranty
on, 349.
fraudulent intent of assignee, to impeach, 789.
person deriving title by or through, when not to
testify, 62, 64.
admissions and declarations. (See ASSIGNEE
and ASSIGNOR.)
ASSIGNMENT FOR BENEFIT OF CREDI-
TORS, proof of creditors' assent, 10.
fraud in, 740.
specifying demand in, as new promise, 823 n.
(See also ASSIGNEE.)
ASSIGNOR, cause accruing to, when inadmissi-
ble, 1.
bias of, 10.
sufficiency of uncorroborated testimony, 10.
not to testify to personal transactions with de-
ceased, etc., 10, 62, 64.
admissions and declarations of, 11, 503, 740.
in case of conspiracy, 14.
as to patents, 760.
offer to prove acts and declarations, 18.
payment to, 802.
receipt given by before transfer, 14.
must be subpoenaed to produce paper, 14.
ASSOCIATIONS, actions by and against, 15, etc.
between members of, 16.
individual liability of members, 768. (See also
CORPORATION?, PARTNERSHIP and JOINT
STOCK CostPAMi
ASSUMPTION of debt of third person, 386.
of mortirairr, 7'J).
ATTAt il.MKXT. jurisdiction, 547.
when not presumed satisfaction of judgment,
802
ATTACHMENT, of parties to breach of promise,
ATTESTATION, of record, 537, etc.
under Act of Congress, 54<2.
ATTESTATION CLAUSE, in will, 112.
referring to seal, 3UA.
ATTESTATION CLAUSE- Continued.
noting alterations, 505.
ATTORNEY, incompetent to prove services to
deceased, against representative, 69.
privileged communications, 226 n, 501.
for corporation, notice to produce books,
etc., 51.
register of, 702.
liability of married woman for fees of, 184 n.
presumption as to receipt by, 280.
action for services, 877.
unauthorized appearance by, 548.
actions against, 557, 606.
advice of, 656.
deed executed by, 696.
implied authority to receive payment, 801.
knowledge of, when notice to client, 733.
ATTORNMENT, by tenant, 530.
AUCTION, sale at, 3~>7.
by-bidding, 334.
AUCTIONEER, suing in his own name, 327.
declarations to vary terms of sale, 323.
parol to show buyer, 334.
AUTHENTICATION of record, 537, %tc., 542.
of deed, 693.
of certified copy of patent, etc., 760.
of books of corporation, 49.
of document after action brought, 427, 505.
AUTHOR, action for compensation, 377.
AUTHORITY, shown under general allegations,
32.
shown by testimony of officer or agent, 43.
not by their declarations, 43.
by general reputation, 40.
by ratification, 37.
under general allegation, 32.
allegation of express parol, 43.
implied in title of office, 42.
implied scope of, 41.
of executors and administrators to sue, 64.
of husband or wife as agent for the other, 167.
of husband to apply wife's funds, 174.
of wife to buy, etc., for husband, 177.
of husband to contract as agent of wife, 182.
of husband showing coercion of wife, 185.
of one engaged in joint business, 190.
of one joint owner to borrow money for all, 242.
of members of corporation, 40.
of corporate officer or agent, 40, 48.
to make parol contract, 34.
to execute deed, proved by parol, 36.
to seal deed, 35, 36.
to assign, 35.
to draw bills, 41 n.
to make sale out of course of business, 35.
burden of disproving, 40.
of servants of corporation, 41.
by vote or resolution without seal, 41.
of partner, 205, 209, 214, 216, 218.
knowledge of partner's want of, 222.
of partner after dissolution. 21!).
of officer, production of how compelled, 61.
of officer deiure, 41.
of public officer, to contract, 194, 195.
to cue, 197.
of officer or agent, 7.
to request loan, 241.
to make request or promise, for money paid, 250.
of broker to sell. :
to warrant, 341, ail.
to use sample. :'. 1 1.
to receive- price, SOI.
to purchase goods, 333.
to hiirn or indorse. 3!i!>.
to recover oil lease, 525.
to pay, 800.
to make part payment, 824.
to muke payment by mail, 603.
to receive mooer,S78.
to make tender, 817.
to disseize so as U> acquire adverse possession,
42 n.
scope of, in sale of goods, 298.
notice of limits of, 41 n.
liability of assumed ai;ent, 801.
to violate law, 772. (Aiul set AUKNCT and AOBXT.)
842
GENERAL INDEX.
AUTHORSHIP, not proved by opinion, 377.
AU'AKI), action on, 405, etc.
admissible under allegation of account stated,
4.MI.
admissible to prove damages, 511.
as a former adjudication, ,s:*i.
BAD CHAItACTKK. (See CHARACTER.)
BAIL, sheriff's failure to take, 608. (See also
BONDS.)
BAILMENT, actions on contract of, etc., 653.
purol to show, an advancement, 154.
to explain Instrument Importing, 289, 553.
BAILEES, action* against, 552, etc.
for money received, 274 n..
oral to vary writing, 154, 289, 553.
estoppel of, 554.
eviction, 554.
BALLOTS, T49.
BANK, corporate existence of national bank, 22.
organization of national, 232.
false description in will, 145 n.
action by for overdraft, 279.
custom to collect disclosing agency, 282 n.
action by Depositor for money received, 277.
action against on check, 454.
admission by crediting payment in pas8-book,13.
balancing and returning pass-book, 278, 459.
competency of admissions of president, 44 n.
appointment of receiver of national, 231. (And
see following words.)
BANK BOOK, as an account stated, 245, 278, 459.
primarinetfs of, in action for money lent, 245.
incompetence, to show money lent, 244 n.
when not competent against stockholder, 48.
BANK CHECKS, actions on, 453.
BANKERS, actions against as collecting agents.
558.
when deposit with, recoverable as a loan, 243.
check drawn on, evidence of payment not of
loan, 244.
conversion by, 558.
BANK NOTES, payment by, 277, 805.
as evidence in action for money received, 277.
BANK OFFICER, memoranda of, 429.
BANKRUPTCY, admissibility of copies of pa-
pers in, 9.
proof of assignee's title, 9.
primariness of assignee's assignment, 9.
schedule as admission of debt, 10.
as showing true owner of claim, 786.
inadmissibility against assignee in, of declara-
tions before appointment, 11 n.
dissolves partnership, without notice, 222.
of corporations, etc., 768.
discharge in, 819.
BAPTISM, registry of, as proof of birth, 86, 98.
identity of person mentioned, 101.
BAR, evidence of keeping, 774.
BARRATRY, 500.
BEER, intoxicating, 778.
BEER PUMP, as evidence of liquor business, 774.
BATTERY, actions for assault and, 646, etc.
BELIEF of donor, in construction of trust, 234.
proved by testimony of party, 620.
as to works of " necessity or charity," 791,
of witness, when competent, 395, 745.
BIAS of assignor, how shown, 10.
of declarant, as to facts of family history, 95 n.
BIBLE, " family record " in, SO n., 93, 96 n.
BIGAMY, presumption of deaeh after seven years'
absence, 75.
exceptions from statute of, 83.
cogency of evidence, 495.
BILL pP LADING, how proved, 564, 565, etc.
as evidence of title to goods, 318, 487.
in married woman, 180.
as evidence of delivery, 564.
mere admission or declaration of consignor,288 n.
mailing of, on delivery through carrier, 815.
terms as to delivery, 576.
explanation of, 566, 567.
eflectof warning consignee, etc., 572.
usage of seller's duty in taking and forwarding,
316.
BILL OP SALE, distinction between, and bill of
parcels, as best evidence, 6.
BILL OF SALE Continued.
ruiminu; to married woman individually, 170.
as evidence of ownership, 488, 623.
parol to idi-ntify thiiii,', 303.
to vary consideration, 280.
BILL RENDERED, as aa account stated, 459.
not a limit, 368.
BILLS, NOTES AND CHECKS, authority to
make for corporation, 35, 41 n.
of husband to sign for wife, 182 n.
power of trading company to make, 42.
deemed signed at tinie of delivery. 219 n.
child's note for an advancement, 154.
husband's notes for goods bought by wife, 176.
note given by wife rebuts her agency for hus-
band, 178.
to married woman, prima fade of her title, 180.
intent to charge separate estate, 183. *
sealed note of firm for debt, 216.
receipt by holder to indorser, showing payment
as against maker, 261 n.
admissions and declarations of maker and in-
dorser. 186 n.
of president of bank, 44 n.
presumption that drawees know signature of
others, 270.
presumption that depositor had funds in bank,
279.
discharge of Indorsersby neglect, 246.
action between parties for money paid, 257.
for proceeds of negotiable paper wrongfully
received, 274 n.
loan presumed from usurious discount at incep-
tion, 795.
when evidence of money lent, 239, 243 n., 244.
entries in check book, in action for money lent,
245 n., 241.
draft as a demand of payment, 331.
promise to pay draft as proof of delivery of
goods, 315.
joint note as proof of partnership, 221.
change in printed checks, notice of change of
partners, 224 n.
payment by check or draft, 803.
check presumptive payment of debt, not a loan,
245..
evidence of "money paid," 259, 260, 263, 268.
payment by note, etc., of debtor or third person,
331, 804.
usage to give notes, on question of payment for
goods, 313.
creditor giving note to debtor to show payment,
809.
payment by bank on forged checks, 278.
tender by check, 816.
delivery or tender of new notes in composition
with creditors, 816.
warranty of negotiable paper, 340.
BIKTH of children not presumed, but slight
proof sufficient, 85.
registry of, and baptism, 86, 97.
entries of, in family record, 93.
proved by hearsay, 91.
physician's testimony, or account, 87.
testimony of parents to date of, 89.
not a " transaction " between mother and child,
68 n.
date of, in registry, 98.
hearsay as to place of, 91 n.
to be proved by one claiming title by collateral
descent, 85.
before marriage, renders child illegitimate, 88 n.
as proof of citizenship and alienage, 103. 1
of issue, constructive revocation of will by, 125.
BLANK FORM, competent secondary evidence,
428, 478.
BLANKS, in nezotiable paper, 408, 419, 441 n.
in date of sealed instrument, 508.
for name of grantee in deed, 695 n.
in case of married woman's deed, 175 n.
in will, effect of, 133 n.
not filled by extrinsic evidence, 129.
BOARD AND LODGING, action for compensa-
tion, 379.
BOARD OF HEALTH, determination of, 642.
BOARD OF SUPERVISORS, ordinance of, 770,
GENERAL INDEX.
843
"BO ATS, "what arc, 485.
BODILY FEELINGS, etc., 502, 598.
BONA FIDE assignee, 8.
holder of negotiable paper, 389, 430, 445-448,
etc.
purchaser of land, 697.
burden and mode of proof, 715.
BONUS, action on, 504, etc., 513.
muuicipHl or coupon, 451.
primary aud secondary evidence in foreclosure,
71!).
alterations, 721. (And see ALTERATION.)
of executor and administrator, 57, 514.
of assignee for benefit of creditors, 10.
corporate acceptance of, 37.
authority of officer to contract to sell, 35.
parol assignment, 2.
receiver's, as proof of appointment, 231.
when giving, is evidence of "money paid,"
258 n.
competency of public officers not having given,
197.
admissions and declarations of parties liable on
a, 18(5 n. (And see BOTTOMKY.)
BOOKS of foreign law, 22.
of history, science or art, 699.
entries of births, deaths and marriages in, 93.
libel in, 063.
ancient, 49.
BOOKS AND PAPERS, refusal to produce, 783.
production of tending to criminate, 753.
how to be used on question of mental capacity
of testator, 119.
of corporation, 46, etc.
of foreign corporations, copies of, 50.
foundation for secondary evidence of contents,
51.
notice to corporation to produce, 51.
entries in against defendant in action by receiv-
er, 232.
of bank as evidence against it for "money re-
ceived," 278.
as evidence in action for over-draft, 279.
of firm as evidence in favor of firm, 205.
against partners, 218.
between partners, 229.
to prove partnership. 226.
found on premise! illegally used, 784. (And see
below.)
BOOKS OF ACCOUNT, of party admissible in
his favor, 245, 823, etc., 336, 373.
party competent to identify, 69 n.
to show to whom credit given, 302.
when using part, admits rest, 326. (And see
BOOKS AND PAPERS.)
BOTTOMRY BOND, 615.
BOUGHT AND SOLD NOTES, delivered by
broker, 329.
description in as warranty, 341.
parol to vary, 343, 345.
BOUNDARIES, in deed, 699, etc.
"by," "upon" or "along," highway or stream,
726 .
declarations of predecessor as to, when incom-
petent, 145.,700, 711 n.
BREACH of contract of employment, 584.
of performance of contract, 610.
of condition of bond, 514.
of covenant to repair, 532.
of duty by bailee, 555.
of promise of marriage, 676, etc.
"BRICK BUILDINGS,'* what are, 485.
BROKER, nales through, 328, 329.
parol to show buyer to be, 334.
authority of, to warrant 341.
participation in profits by, 212 n.
action for compensation ", 379.
actiom !itr:iiii!-t, 558.
BROTHER AM) SISTER, sen-ices between, 359.
BURDEN OF PROOF, remains throughout on
plaintiff, 404.
BURIAL, m:istry as proof of death. 72, 97. 98.
BUSINESS, place of, when proof of user, 28.
ownership of. 777.
knowledge of usages by one engaged In. 296.
memoranda made in usual course of, 322.
BUSINESS Continued.
wife's separate, 175, 180, etc.
inferring agency from joint, 189.
scope of partnership, 209, 214, 217, etc.
of limited partnership, 221.
presumption of private dealing by partner, 222.
continuance of, after expiration of articles,
227.
agreement to devote attention to, 228.
carried on in name of another, 298.
BUSINESS CARD, 774.
BUSINESS MEN, competent as to hand-writing,
398.
"BUNDLE OP RODS," explained by parol, 485.
BY-LAWS, of corporation, 38.
when to be pleaded, 40.
not judicially noticed, 40.
proof of, 40.
by statutory record, 39 n., 46, 770.
adoption proved by parol or inferred, 39.
when competent against agent or servant, 48 n,
notice of limits of authority, 41 n.
CANCELLATION of will. 123, 125.
revival of former by, 125.
of entry in account to release advancement, 154.
marks of, on negotiable paper, 408.
of security as showing payment. 805.
of lease, 533.
action for cancellation of instrument, 732.
CANVASSERS' RETURNS of election, 749.
CARD of business, 774.
CARGO, parol to explain meaning of, in contract,
305, 485.
CARLISLE TABLES, 724 note.
CARRIERS, actions agaiust common, 564, etc.
delivery through, 315.
delivery to, to satisfy statute of frauds, 318.
bailee's estoppel, 554.
CASHIER, oral evidence that he acted for bank,
402. (And see %)>.)
authority to certify, 455.
presumptions as to authority, 401.
competent as to handwriting, 398.
CASKS, evidence of liquor traffic. 774.
CASUALTIES, resistor of. 501. 5s:;.
CAUSE AND EFFECT, connection of, 591.
in case of nuisance, 612.
of intoxication, 777.
CERTIFICATE of officer, when competent for
himself, 197.
not conclusive in quo warranto, 749, 750.
by architect, etc., of performance, 371.
of deposit, evidence to explain, 402 n.
of demand, protest, etc., 424, etc.
by consuls, 500.
of acknowledgment or proof, 505, 693.
of sale by sheriff, 702.
relating to judgment, 535. etc.
under act of Congress, 542.
of election, 749.
of registration of trade mark, 751.
of copyright. Vliti.
of discharge in bankruptcy, conclusive of regu-
larity, 819.
of discharge in insolvency, 820.
CERTIFIED COPIES of bankruptcy proceed-
ings, 9.
of statute of sister state, 22.
of sealed instrument of corporation, 35.
primariness of. of resolution authorizing execu-
tion of corporate deed. 36.
of by-laws or ordinances, 40.
0? Corporate record, 50.
of vote of corporation, when competent, 60 n.
of letters of administration, primariness of, 58.
of copies of registries authorized by law, 97.
of marriage in foreign state. H
of record of public nut tire, when competent, 99.
of judgment of divorce, 101.
of record of naturalization, admisstbility of, 103.
of appointment of public ollicerto dispense with
authenticity of original, 1!)4.
of oath of public officer, when competent. 194.
of judgment. 535.
of ship's register, 4!V>.
of chattel mortgage, 025.
GENERAL INDEX.
CERTIFIED COPIES Continued.
of mechanic's lien, 7(57.
of patents, etc., 757, 758, 760.
of record of former adjudication, 831.
CHARTERS or corporations, 21-30.
judicial notice of, 21.
of corporation of sister state, 23.
of foreign corporation, how proved, 23.
acceptance of, how pToved, 24.
how disproved, 25.
effect, 24.
of new powers granted after, 31.
proof of acceptance of, by municipal copora-
tion, 25 n.
user, without formal acceptance, 27.
oral admission proof of acceptance, 28.
minutes to prove acceptance, 48.
CHARACTER of party, as affecting credit of ac-
count kept by him, 325.
not in issue on the question of money lost at
play, 283 n.
In action for price of croods, 336.
pa question of marriage, 84.
in (hvorce, 746.
In actions by judgment creditors, 737.
in penal action, 773.
on charge of criminal conduct, 496.
in trespass, 630.
in action for assault, 651.
for defamation, 673.
in breach of promise, 679.
in action for seduction, 683.
in crim. con., 687.
of a deceased subscribing witness to a will, 112.
of animals, 645.
national character, 102.
CHARGE OF CRIME requisite cogency of evi-
dence, 494.
CHARITY, extrinsic evidence in case of gifts to,
141.
CHARTER PARTY actions on, 518.
CHARTS and m-ips, 690.
CHATTEL MORTGAGE as evidence of title, 625.
when presumed void, 737.
CHATTELS, actions for possession, 688, etc.
continued possession as badge of fraud, 737.
for injuries to (see NEGLIGENCE aiid TRESPASS).
CHECKS, actions on, 453.
check for bag<ragfl, 578.
CHILDREN, birth of, not presumed, but slight
proof sufficient, 85.
failure of issue, 86.
legitimacy of, 88.
meaning of, in will, 137.
ademption of legacy td7148.
presumption as to advancements to, 150, 152.
as witnesses, 747.
CHURCH, judicial notice of usage to keep record,
89/i.
registry of marriage, baptism, burial, etc., 80,
97-99.
examined copy of record of, 98.
contribution shows testator's intent in charity,
143.
CIPHER, interpretation of will written in, 132.
CIRCULAR, as evidence of terms contained in,
364.
of insurance company, 484.
CIRCULATION of newspaper or book, 665.
CIRCUMSTANTIAL EVIDENCE of intent, 773.
of adultery, 744.
as to votes, 750.
as to payment, 810.
CIRCUMSTANCES surrounding contracting par-
ties admissible in interpretation, of contract,
864, 484, 509.
of irregular indorsement, 440.
of guaranty, 473.
of sealed instrument, 509.
of delivery of sealed instrument, 507.
to show what is an incumbrance, 520.
to interpret bailee's contract, 5t>l.
CITY ORDINANCES. 770.
CIVIL DAMAGE LAW, 775, etc.
CLERGYMAN, solemnization of marriage proved
by eye witness, 60.
CLERGYMAN- Continued.
registry of marriage kept by, 80, 98.
privileged communications to, 501.
CLERK behind desk presumed to bo agent, 41 n-
480,800.
acting as officer, powers of, 43.
declarations of bank clerk as to accounts, 279.
testimony as to account being overdrawn, 244 n.
memoranda of, 429.
production of, who made entries, 245.
entry or indorsement by notary's clerk, 426.
presumption as to delivery of letters, 433.
attestation by, ofjudgment of sister state, 543.
CLOUD ON TITLE, action to remove, 718.
does not sustain ejectment, 691.
COAST GUARD, registry of, 499.
COERCION of wife by husband, 185.
COGENCY OP EVIDENCE of negligence, 884.
of demand, etc.. of negotiable paper, 423.
of waiver of demand, 435.
of diversion of negotiable paper, 442.
of charge of crime, 495, 671.
of corruption or partiality of arbitrator, 470.
of mistake, 513.
of deceit or fraud, 479, 615.
of assault, 649.
of adultery, 745.
in penal action, 773.
in proceedings for forfeiture, 784.
COHABITATION, as evidence of marriage, 79,
83, 164. 743.
alone insufficient to prove marriage, 81.
following contract per verba futuro, insuffi-
cient, 80.
not necessary, if there is solemnization, 80.
prolongation strengthens presumption of mar-
riage, 79.
begun as meretricious, no proof of marriage, 82.
termination of, to rebut marriage, 84.
illicit as evidence on legitimacy, 88.
as evidence in question of undue influence,
122.
presumption as to property kept in husband's
house during, 172.
and repute, as indirect evidence of marriage, 81,
473.
when presumption of marriage not overcome
by denial, 85 n.
degree of proof of, to be increased when one
of parties still living, 81 n.
as evidence of sexual connexion, 743.
and holding put, as proof of marriage, 178.
and declarations, as proof of marriage, 82.
"C. O. D.," 565.
COLLATERAL AGREEMENT, proved by parol,
335, 524.
COLLATERAL FACT, notice of, 772.
recital as evidence of, 712.
former adjudication as evidence of, 826, 828.
COLLATERAL PROMISE to pay debt to third
person, 386.
COLLATERAL SECURITY, assignment of, pre-
sumed from that of principal delegation, &.
agreement to apply before demanding payment,
412.
negotiable paper, as, 444.
when acceptance of payment, 808.
payment of, 806.
burden of proof as to payment, 9, 445.
COLLUSION in confession of adultery, 747.
COLLECTING BANKERS, actions against, 558.
COLLECTOR, duress in payment to, 271. '
COLOR OF TITLE under judicial sale, 701.
COINCIDENCES, evidence of copying, 766.
COMMISSIONS, receiving or charging, evidence
of agency, 279, 834.
broker's action for, 379.
COMMERCIAL PAPER, actions on, 387, 486.
(And fee BILLS, NOTES and CHECKS.)
COMMON CARRIERS, actions against, 5U3, etc.
delivery through, 315.
to satisfy statute of frauds, 318.
bailee's estoppel, 554.
COMMON EMPLOYMENT, actions for negli-
gence, 592.
COMMUNICATION with deceased, exclusion of,
62. 64. G(i. 6U.
GENERAL INDEX.
845
COMMUNICATION- Continued.
privileged, In libel and slander, 670.
to professional witness. (See WITNESS.)
COMMON COUNCIL, ordinance of, how proved,
770.
COMPARISON OF HANDS, general rule, 396.
in case of will, 113.
ancient document, 709.
COMPANIES, actions against telegraph, C04.
liability of stockholders, etc., in joint stock, 768.
(See also CORPORATIONS.)
COMPLAINTS of suffering, 599.
COMPOUN 1) 1 NTEREST, 459.
COMPROMISE, mode of proof and effect, 815.
receipt "as a compromise," 807.
by trustees, 235.
admission pending negotiation, 461.
COMPOSITION with creditors, 815.
CONCEALMENT of thing, evidence against con-
cealer, 371.
of evidence, 783.
in action for specific performance, 729.
of contents of instrument from illiterate party,
512.
of value of thing converted, 627.
in case of insurance, 478, 493.
in account stated, 815.
of value from carrier, 575.
CONDONATION, how proved. 748.
CONDITION of goods packed, 506.
of person or tiling injured, 594.
of contract, ehown by parol, 294, 404.
of delivery of contract, 404, 477-8, 607.
of delivery of lease, 524.
of release. 818.
in sale of goods, when performance or waiver
of, necessary. 313.
of new promise, fulfillment of, 824.
precedent, to written instrument, shown by
parol to establish, 294.
must be alleged, 361.
performance of, before passing of title, 317.
CONDITIONAL DELIVERY of contracts, how
proved, 404, 477-8, 507, 524.
CONDONATION in crim. con., 683.
in divorce.
CONDUCT of testator as part of res gesla, 112.
as evidence of mental condition, 115, 122.
of testamentary intent, 141.
to show modification of contract of sale. 314.
on receipt of goods as part of rex yesta 1 , 319.
CONFESSIONS during cohabitation as proof of
marriage, 82.
of adultery, when competent as to illegitimacy,
89.
as to cause of separation, 179.
competency of, in divorce, 747.
CONFEDERATES, acts, declaration, etc., of, 14,
190,621. 71ii.
CONFESSION OF JUDGMENT, presumption as
to legality, 5l(i.
as a former adjudication, P30.
CONFIDENTIAL COMMUNICATIONS, disclos-
ure of, 165.
between husband and wife, 165.
third person may testify to, 166.
(And see WITNESS.)
CONFLICTING CLAIMS, determination of, 717.
CONNIVANCE at seduction, 683.
in crim. con., 686.
in sales of Honor, 782.
CONSENT, <>f husband, what insufficient to wife's
conveyance, 174.
of C(#tui que trust to trustee's dealings with es-
tate, 236.
parol to show recission of contract as to re-
ceipt, 2M.
of principal to agent retaining for his own use,
HI
of insurance company. 481.
CONSIDERATION, distinguished from motive,
441 //.
enforcing illegal contract and assert ini.' title to
money ariMiig from it. distinguished, 282.
for assignment, when to be proved, 4, 34U.
for negotiable paper, 389, 404. .
CONSIDERATION Contlnved.
with irregular indorsement. 437.
for indorsement, 413.
for irregular indorsement, 439.
for check, presumed, 464.
for guaranty, 472.
for account stated, 463.
for non-negotiable paper, 457.
to sustain subsequent promise to reimburse, 251,
for deed, 697.
of contract in action against married women,
181 n.
in actions by judgment creditors, 738.
in action for specific performance, 730.
to establish resulting trust, 238.
parol, to show, in deed, 741.
in release, 818.
that consideration of deed to husband came
from wife, 171.
statement of contents, of evidence of debt, or
of conveyance, to prove, 306.
how far explainable in deed, 741.
parol to vary written, 294 n., 295, 280.
variance in, when immaterial in action for non-
delivery, 338.
seal as evidence of, 50S, 817.
completion by buyer of, before passing of title,
817.
when warranty to be sustained by new, 341.
inadequacy of, 405.
inadequacy, irrelevant, 473.
to show fraud, 787.
amount on discount when material, 449, 793.
non-payment of, irrelevant, 473.
want or failure of, in negotiable paper, 441, 448.
in sealed instrument, 512.
to impeach contract, 788.
denial of, when does not admit defense of want
of partner's authority, 222.
action to recover money paid on failure of, 268,
272.
amount of, not evidence of bias of assignor, 10.
" love and affection," or " good-will," presump-
tive of advancement, 152.
of conveyance to child, paid by parent, presump-
tive of an advancement, 153.
as evidence of value of an advancement, 156.
for estate conveyed to wife, paid by husband,
170.
charging separate estate of married women by
application of, 184.
for partnership contracts, 205, 214.
with or from lirm, when a variance, in action by
survivor, 225.
as ratification of act of partner, 216, 217.
application of, in question of to whom credit
was given, 216.
as evidence against agent, of money received,
275.
illegal, as defense in action for money received,
282.
competency of lack of means, to disprove pay-
ment, 170, 810, 813.
"CONSIGNED," implies agency, 488.
CONSIGNEES, delivery to, by notice from com-
mon carrier, 576. (And .< liit.i. OF LADING.)
CONSPIRACY, admissions and declarations of
confederates. 1 1. ism, C.21, 740, etc.
acts and declarations of, 190.
preliminary question as to connection of parties,
191. '
public officer presumed innocent of, 199.
proof of fraud of one only. .~>.'>:i.
CONSTABLES, actions by and a^inst, 605. etc,
justifying levy, 631. (.4m/ nee OlTlOUB.)
CONST AT, to prove state grants, 705.
CONSTRUCTION of writings by oral evidence.
(AfcORAL. EVIDBNCK.)
CONSTRUCTIVE SERVICE of process, 547.
CONSUL, certificates of, 500.
" CONTENTS UNKNOWN." in bill of lading, 498.
CONTINUANCE OF FACT. (&x PBBSUMP-
CONT T INTJmG GUARANTY, 473, 474.
CONTRACT, what is within rules of evidence,
362,523.
846
GENERAL INDEX.
CONTRACT- Continued.
circular may be, 364.
passage tickets are not, 581.
account stated iis,458.
in duplicate or in counterpart, 5?3.
printed and written forms, 407.
memorandum on the margin, 409.
oral insurance, 476.
of lease, how proved, B23.
of bailment, actions on, 553.
actions on sealed, 504, etc.
allegation of, implies lawful contract, 401.
written, when admissible under general allega-
tion, 361, 471, 522.
oral, admissible under allegation of written,
when admissible nnder allegation of specialty,
522.
will not sustain allegation of fraud, 614.
breach of does not sustain allegation of negli-
gence, 583.
for compensation of corporate officers, when
must be in writing, 381.
void by statute, evidence of quantum meruit,
352, 367.
technically defective, admissible to show yuan-
turn meruit, 355.
for services, under statute of frauds, 363.
between strangers, admissible, 354.
carrier's receipt presumed to have been read,
574.
consideration provable without actual produc-
tion, 405.
Statement of consideration in past tense not
conclusive, 473.
description of, character of, contracting parties
explained, 402.
oral evidence to vary. (See ORAL EVIDENCE.)
as to manner of contemplated performances,
376.
written submission not varied by parole, 466.
practical construction of, 509, 526.
words intended in different senses, 509.
referred te in a deed, 697.
subsequent modification, 413.
between vendor and purchaser, merged by deed,
728..
(See also titles of various classes of CON-
TRACTS.)
CONTRACTOR, who is, 361.
in cases of negligence, 592.
CONTRIBUTION, among joint obligors, 254.
to tax, by joint owners of land, 254 n.
agreement to make, 359.
parol agreement by indorsers, 257.
by co-sureties, 256.
implied promise of, 255.
proof of suretyship for purposes of, 255.
demand of pnyment. 265.
CONTRIBUTORY NEGLIGENCE, 6C2.
of passenger, 581.
burden of proof in actions for negligence, 594.
under Civil Damage Act, 779, 782.
admissible under denial. 561.
CONVERSATION, to show intent or mistake on
sale of land, 729.
as part of res gestce to show receipt of money,
209.
-or application, 265.
with bearer of letter, when competent, 266.
how far whole statement in, to be admitted,
266.
actions for crim. con., 684, etc.
CONVERSION, actions for, 622, etc.
by bailee, 552, etc.
by broker, 558.
by attorney. 557.
by carrier, 572.
in replevin, 689.
sheriff's action for, 605.
allegation of, in action for money received, 273.
by agent, when it does not defeat his action for
money paid, 252 n.
CONVEYANCE, when presumed, 709.
by trustee, 237.
evidence of wife's, 174.
CONVEYANCE- Continued.
parol to show relation of principal and agent
in, 280.
to vary consideration, 280, 385, 738, 74..
to show resulting trust by, 238.
to show it was /or benefit of firm, 228.
by trustee of express trust, 235.
voluntary, of insolvent debtor, 738.
fraudulent intent of grantee, to impeach, 739.
by a, when presumptive of an advancement,152.
declarations of donor, as part of res fffstce, 154.
by husband and wife jointly, presumption from
as to title, 169.
in firm name, as proof of partnership. 208 n.
consideration named in, as evidence against
agent, of money received, 275.
to disprove joint interest or liability, 188 n.
(See also DEED.)
CONVICTION, on plea of guilty, 746.
competent in action for reward, 383.
of assault, 649.
COPY of papers in bankruptcy, admissibility
of, 9.
of statute of sister state, 22.
of foreign corporation, 23.
of record of corporate proceedings, primariness
of, 48.
signature of officer to corporate minutes, not
official, 49.
of corporate records, competency of, 50.
of public record, authenticated by officer, 50 n
of vote of corporation, 50 n.
of books of foreign corporations, 50.
of family record, when admissible, 96.
of registries authorized by law, 97.
of marriage in foreign state, 97 n.
of record of a church, admissibility of, 98.
photographic, of a signature, when not admis-
sible to aid expert, 113, 398.
of foreign probate of will, 128.
of entries in bank-bonk or pass-book, 245.
of entry, when used as memorandum refreshing
memory, 320.
of account kept by party when admissible in his
favor, 325.
of notice of protest, 427.
sworn, of judgment, 536.
of book or other publication, 664.
in patent cases, 761.
of mechanic's lien, 767.
COPYRIGHT, action for infringement, 766.
relevancy of in trade-mark case, 751.
CORPORATIONS, actions by and against, 17.
pleading as to corporate existence, 18.
necessity of proof of corporate existence, 18.
proof of, though not pleaded, 18.
general principle as to proof of incorporation,
30.
de facto corporate existence sufficient, 18.
when de facto, 19.
modes of proving, 23.
strict proof, when required, 18, 19.
what proof necessary to take by will, 19.
extrinsic evidence in case of corporate designa-
tion in will, 138.
presumption as to inexact designation of, 140.
three elements of strict proof, 19.
proof when incorporation is incidentally in is-
sue, 20.
legislative sanction necessary, 20.
shown by charter or statute, 20.
legislative recognition of existence, 20.
judicial notice of special charters of munici-
pal, 21.
proof of charter of domestic, 21.
of sister state, 22.
of foreign, 23.
acceptance of charter, how proved, 24.
how disproved, 25.
necessity of acceptance of municipal charter,
25 n.
organization of, under general law. 25.
competency of minutes to show, 48.
duplicate certificates of incorporation. 25.
incorporation under general (statute of a sister
state, 26.
GENERAL INDEX.
847
CORPORATIONS Continued.
official permission to do corporate business, 28.
disregard of statute conditions, 26.
color of organization and user, when sufficient,
27.
compliance with charter conditions presumed,
27.
effect of proof of user, 27.
mode of proving user, 27.
certificate of comptroller of currency as to or-
gani/.aiioii of national bank, 232.
admission of incorporation, 28.
estoppel against, 28.
against those dealing with, 29.
estoppel against members and subscribers of,
29.
estoppel liberally applied for and against, 30.
date of incorporation, 30, 31.
misnomer of, goes only in abatement, 31.
-in will, 138, 140.
fraud, forfeiture or non-user, as to corporate ex-
istence of, 31.
quo warranto as to, 750.
corporate powers in general, 31.
acceptance of new powers, 81.
original and delegated powers, 32.
acts of officers or agents of, in course of busi-
ness, 32.
authority proved under general allegations, 32.
ratification proved under allegation of authori-
ty, 32.
delegation of power to officer or agent, 32.
allegation that contract was made by president
and directors, 32 n.
impeachment of power of officer, resting on
consideration, 32.
validity of acts of, sustained by equitable estop-
pel, 33.
power of, to acquire a patent, when inferred,
33 n.
validity of loan by, when presumed, 33 n.
acts presupposing other acts, 33.
acta not presumed illegal, 33.
general presumptions as to corporate acts, 33.
of validity of acquiring, etc., real estate, 33 n.
impeachment of acts of, presupposing other
acts, 34.
presumed authority of officer or agent, 34.
contracts by, 34.
implied promises by, 34
presumed authorization or ratification by di-
rectors, 34.
simple contracts in writing, when valid, 34.
unsealed contract, not varied by parol, 34.
primariness of, 34.
negotiable paper made by, 401.
authority of person executing it, 35.
assignment by, 6.
authority of person executing assignment, 7, 85.
oral evidence that officers signed for company,
402.
of officer to make sale out of course of busi-
ness, :>.").
authority to president of, to execute power of
attorney, 5.
seal of, how proved, 35. .
sealed instruments of, when admissible without
further proof. 35.
corporate acceptance of bond or deed, 37.
contract of, ambiguous as to party, 37.
effect of imprint of corporate title on paper, 37.
torts by, 37.
false representations by meeting, 37.
acceptance of false communication of officer or
servant, 38.
vote "accepting" report of committee, 38.
fraud of directors or managing agent under gen-
eral allegation, 38.
liability for wropgs by officers or agents, 38.
assault by servant, 646.
regulation* justifying assault, 650.
Hireling and by-laws, 38.
entrv in books of, to show regularity of meet-
ing., 38.
necessity of due notice of meetings, 38 n
when presumed, 39 .
CORPORATIONS Continued.
proof of act of corporate board or committee,
39.
acts when proved by parol, 39.
in absence of books, clear proof of, necessary,
S9n.
by-laws of private, not judicially noticed, 40.
proof of by-laws, 40.
authority of officers, agents and members, 40.
parol proof of who are stockholders. 40 n., 768.
authority of agent by unsealed vote, 41.
notice to one dealing, of limits of authority in
by-laws, 41 n.
implied scope of authority of officer or agent,
41.
implied power of trading company to make
bills and notes, 42.
authority implied in title of office, 42.
authority of agent to disseize, 42 n.
testimony of officers or agents 10 show author-
ity, 43.
allegation of express parol authority, how dis-
proved, 43.
ratification by, how proved, 43.
evidence of authority of officer from usage,
402.
charter and by-laws, competent as to agency,
491.
evidence of cashier's authority, 455.
authority of insurance agents, 480.
authority of servant of carrier, 580.
regulations of carrier, 581 .
admissions and declarations of members of,
when incompetent, 43.
admissions and declarations of officers author-
ized to speak, 44, 492.
when part of res (/esta, 44.
of incorporators before incorporation, 45.
of previous, when competent against consoli-
dated corporation, 45.
notice to, how proved, 45.
books and papers of, 46, 768.
primariness of statutory record of, 46.
competency of corporate record, for or against,
40.
against whom corporate acts competent, 48.
primariness of minutes or records of, 48.
authentication of corporate books when pro-
duced, 49.
rough minutes, when competent and primary, 50.
competency of copies, 50.
official reports to, when competent against, 51.
copy of entries in books of foreign, 21"> ".
notice to produce books and papers of, 51.
foundation for secondary evidence of, 51.
parol evidence to vary corporate minutes. 51.
minutes of agents of, when conclusive on, 51.
competency of accounts and business entries
of, 52.
obligation to compensate officers and promo-
ters, 380.
transactions of defendant in action by receiver
of, 232.
liability of stockholders, etc., 768.
liability of trustees. 769.
CORRESPONDENCE, presumption as to deliv-
ery, 434.
contracts made by, 292.
parol to chow terms of contract made by, 292.
of married woman with her business agent, as
showing her title. 170.
between principal and factor, 559.
in breach of marriage, promise, tit".
of husband and wife as evidence in crim. con.,
685.
of testator to show mental condition, 115.
designation of society in, to Miow usage. 143.
ion of as presumptive of death. ?l.7ii.
COSTS, judgment paid us proof of, in actiou for
money paid, -.'"-'
notice of t-uitto make judgment conclusive aa
to, 205.
action to recover, 378.
COURSE OP BUSINESS, acts of officers 01
agents in, 32.
to perform act done in, 42.
84S
GENERAL INDEX.
COURSE OF BUSINESS Continued.
presumption of validity of dealings of corpora-
tion, 32.
authority of officer making sale out of, 35.
of officers and agents to show authority, 41.
power of corporate officers, 42, 43, 44.
writings in, w foundation for opinion of wit-
iii-ss as to signatures, 113.
charging separate estate of married woman by
contracts in, 184.
inference of agency from, 190.
deceit or fraud by one partner competent against
others, 217.
entries by deceased partner in, 225 n.
to rebut presumption against, partner from en-
tries in partnership books, 230.
charges in, to show payments, not loans, 246.
In accepting bills to explain factor's possession
of them, 259 n.
as to daily returns and payments by agent with-
out passing vouchers, 282.
as to copying and mailing letters, 289.
declarations in, to show foreign market value,
309.
price current issued in, as proof of value, 309.
knowledge of witness to value based ou letters,
etc., received in, 310.
to show intent as to passing of title to goods
sold, 318.
memoranda made by a third person in the
usual, 322.
admissibility of party's books kept in, 323.
commissions in, as usury, 794.
payment to agent in, 800.
COURT of sister state, actions on judgments
of, 541.
of record, what is, 541.
of general and special jurisdiction, 545, etc.
COUPON BONDS, actions on, 451.
COUNSEL, action for services, 377.
privileged communications to, 501.
advice of, 655.
COUNTERCLAIMS, pleading and proof of, 835.
COUNTERPARTS, proof of contract in, 523.
of negotiable paper, 421.
COVENANT, binding though not signed, 385.
implied in sale of realty, 727.
in lease, 526.
actions on, 504, etc.
covenants for title, 519-
to repair, 532.
parol to explain, 726.
alterations in, 696.
COVERTURE, alleging, in action by married
woman, 180.
in action against her, 181.
decree of probate, how far conclusive as to tes-
tator's, 110.
evidence of. (See MARRIAGE.)
CREDIT, in account, to release advancement,
154.
in contract of public officer, 195.
to married woman for necessaries, to charge sep-
arate estate, 185.
what necessary, to show ratification by married
woman, 185.
in account with a third person, for money re-
ceived, 277.
circumstantial evidence to determine to which
of several it was given, 240, 265, 302, 360,
374, 438.
in actions against partners. 215.
on purchase of goods by agent, 333.
when presumed given to principal and not the
agent, 300.
to agent of undisclosed principal, 300.
given exclusively to agent to render him liable,
301.
to factor for foreign disclosed principal, 302.
usage of giving notes, competent to show, 313.
deceit in obtaining, 246, 273.
decree of enjoyed, how proved, 617.
CREDITOR, assent of, to assignment for his bene-
fit, 10.
when not assignee, within rule excluding inter-
ested witness, 65 n.
CREDITOR Continued
books as proof of organization of corporation in
favor of, 47.
competency of resolution of corporation in fa-
vor of, 48.
extrinsic evidence as to bequest to, 147.
avoiding purchase by parent in name of child,
153.
presumptions as to transfers of property to wife
in fraud of, 164 n.
silence of wife, when not estoppel in favor of
husband's. 167.
proceeds of wife's estate hers against husband's
creditors, 168.
wife's means, in question of consideration
against, 170.
when deed to wife raises a resulting trust for
husband's, 171.
burden of proof to show fraudulent possession
of wife, 171.
ignorance of separate estate of married woman,
183 n.
participation in profits by, 212 n.
knowledge by, of stipulation that one partici-
pating in profits should not be liable to,
211 n.
notice of dissolution of partnership to, 224.
proof, in accounting between partners, of plain-
tiff's being, 226.
application of payment by, 811.
composition with, 816.
CREDITORS' ACTIONS, 736, etc.
against executors and administrators, 54.
against member of joint stock company, 769.
CRIES, 599 n.
CRIME, cogency of evidence to prove charge of,
494.
CRIMINAL CONVERSATION, actions for, 684,
CROSS-EXAMINATION, testing knowledge of
witness, 390.
as to personal knowledge of death. 72.
as to general repute of marriage, 81.
notwithstanding privilege, 620.
when waiver of motion to strike out testimony,
66.
CROP, parol, to explain meaning of, in contract,
305.
replevin for, 624.
CRUELTY, as ground for divorce, 746.
CURABLENESS of injury, 6oO.
CURTESY, title by, 708.
ancestor's seizin in fact necessary to establish,
157.
CUSTOM, or usage, to explain lease, 525.
DAMAGES, admissions and declarations of de-
faulted joint defendant in tort, on measure
of, 187.
judgment, when evidence of amount of, 257,
282.
object of contract as affecting, 338.
in action for officers' breach of duty, 198.
recoupment in action on sale, 335.
for injury to wife when, belong to husband, 181.
in counter-claim, 835. (See also the various AC-
DANGEROUS CHARACTER of animals, 645.
DATE of assignment, how proved, 2.
of receipt by assignor, not presumptive of time
it was given, 14.
of statute, when not appearing in certificate, 21.
of incorporation, materiality and proof of, 30,
31.
entries in corporate records, when presumptive-
ly made on their, 49.
presumptions of date of death, 73, 77.
from loss of vessel never heard from, 77 n.
of death or burial l>y registries, 97, 98.
of death engraved on ring, 93.
of birth, shown by registry of baptism, 86.
by registry of birth, 97, 98.
by physician's testimony or account, 87.
by testimony of parents. 89.
of marriage shown by registry, 80, 97, 98.
declaration when incompetent as hearsay as to
facts of pedigree, 91.
GENERAL INDEX.
849
DATE Continued.
of burial shown by registries, 98.
of ancient will, competency of, as to its age,
128 n.
affixed to alteration in will, prior to that of will,
184.
extrinsic evidence to correct in will, 135.
evidence in respect to, in order to charge part-
ner, 212.
of payment shown by letters of agent and en-
tries in account!*, 2fi5.
by indorsements, 825.
of order for goods, when presumptive of time
it was written, 291.
of negotiable paper, how proved, 409.
of indorsement of negotiable paper, 445.
presumption as to date of indorsement, 413, 416.
of irregular indorsement, 439.
of items in account stated, 459.
of award, 467.
of guaranty not conclusive, 472.
of sealed instrument, 508.
of deed, 694.
of passage ticket, 578.
of lease, 527.
of delivery of lease, how proved, 527.
of judgment, 538.
of process, to show commencement of action
within statute period, 822.
of writings more than thirty years old, when
presumed correct, 95.
of written instrument, parol to show erroneous,
295.
memoranda refreshing memory as to, 321.
account kept by party, as evidence of, 326.
as showing place for directing protest, 431.
DAY, fraction* of, 538 note.
DAY'S WORK, what is, and how proved, 365.
" DAYS," meaning of, 519.
DEAF AND DUMB PERSON, testamentary ca-
pacity of, 115.
DEATH, a jurisdictional fact for issuing letters,
57.
prima facie evidence of, when sufficient, 64.
direct testimony to, 72.
proved by registry of, or of burial, 72, 97.
date of, in unauthorized registry not incompe-
tent, 98.
presumptions-of, and of time of, 73.
from voyage and special peril, 74.
from seven years' absence, 75.
what inquiry necessary, 75.
rebutting presumption of, from absence, 76.
time of, presumed, 77.
survivorship in common casualty, 78.
of husb-tnd or wife, presumption of, 83.
without issue, when to be proved, 85.
what deaths to be proved by one claiming- title
by collateral descent, 85.
under age, not presumptive of no issue, 85.
slight proof of, w ithout issue, 86 n.
proved by hearsay, 91.
except as to place of, 91 n.
entries of, in family record. 93.
proof by general reputation, 94.
repute among acquaintance, newspaper notice,
etc., 95, 96.
competency of letters of administration to
prove, 100.
notice unnecessary, of dissolution of partner-
ship caused by, 222.
of partner, proof of, in action by survivor, 224.
against survivor, 225.
of person having made memoranda, in usual
course of business, 322.
terminal ing authority of agent to receive pay-
ment, (-'OK
fa case of life insurance, 501.
action for causing. 601.
by intoxication, 780.
iJKBT. .issiL'iniii'iit, of, not presumed from that of
collateral. :i.
revival by admissions and declarations of one of
several co-representatives, 59.
oy payment by same, 59 n.
bequest of, to creditor, 147.
54
DEBT Continued.
of child to parent, as an advancement, 151.
declarations of donor to show advancement a.
Uift.
of ancestor, action to charge heir, next of kin,
etc., 161.
admissions, of wife as to ante-nuptial, 177.
liability of married woman's separate estate, 183.
assumption of, by incoming partner, 213.
by promise of third person, 385. 386.
collection of by partner after dissolution, 218.
barred by statute, and afterward acknowledged,
823.
by partner after dissolution, 219 n.
implied promise to pay, 272.
statement of contents of evidence of, to prove
consideration of contract of sale, 30ti.
payment of, by note, etc., of debtor or third
person, 804.
payment shown by circumstantial and corrob-
orative evidence, 810.
by surrender of evidence of, 260.
extinguishment from lapse of time, 812.
accord and satisfaction of, 814.
account stated, 815.
compromise and composition of, 815.
new promise or acknowledgment of, 824.
DECANTERS, evidence of liquor traffic, 774.
DECEIT or fraud, actions for, 614, etc.
for false warranty, 339.
by one partner competent against others, 217.
by testator as to his will, 131.
in procuring execution of contract, 787.
in obtaining credit, allegation of, in action for
money received, 273.
as defense in action on sale, 336.
judgment in action for, as bar to action on war-
ranty, a=>o.
DECLARATIONS distinguished from transac-
tions, 13.
entry of individual in diary a mere, 47 n.
of assignor of non-negotiable security, 8.
for and against assignee, 11,12.
temporary assignee incompetent, 11 n.
of assignor, offer to give, now made, 13.
admissibility determined by judge, 13.
of assignor and assignee in case of conspiracy,
14.
of officer as to meaning of vote, 52.
as to pedigree, 92.
of custodian of a will, 113.
of testator before and after execution of will
to show capacity, 115.
of testators, to show susceptibility to fraud and
undue influence, 122.
to show revocation of will, 124.
as to lost or destroyed will, 127.
when incompetent in absence of ambiguity,
146.
to show intent, 146 n.
explaining ambiguity as to which of two par-
cels, 146.
admissible to rebut resumption of satisfaction
of debt by bequest, 148.
as to cumulative gifts, when incompetent, 148.
as to ademption of legacy, 149.
time of, bearing on intention, 150.
of intent to constitute au advancement, 153 n.
of ancestor, heir, etc., 156.
of successors, representatives and beneficiaries,
use.
election to accept beneficial devise in absence of,
157.
of third persons to show possession of land
under a will, 159.
to prove marriage, 164.
of husband on delivery of wife's property, 170.
on giving money to wife, or receiving securi-
ties for her, 172.
to establish trust in favor of wife. 174.
to show receipt of payment by wife for use of
separate estate, 184 n.
of wife that purchase or credit was for herself,
178.
of married woman on executing written con*
tract, 188 n.
850
GENERAL INDEX.
DECLARATIONS Continued.
preliminary question &a to connection of par-
tics to admit, 191.
of one joint debtor against others, 187.
of partners to prove partnership, 204, 206, 226.
to show to whom credit was given, 215.
of secret or dormant partner, 211.
to show one a partner, 21.
clerk, not partner, 220 n.
denying partnership, when not disproof of
liability, 209.
that they " bought it in partnership," insuffi-
cient proof of partnership, 210 n.
of intent to make request iu action for money
lent, 241.
to prove a trust, 233, 234 n.
of agent to prove agency, 276.
to show agency and scope of authority, 299.
to request loan, 241.
to show embezzlement, 281
of officer or clerk of a bank as to accounts, 279.
to show payment under duress, 271.
against interest, deceased, payee's receipt as,
260.
to prove tender, 816.
of inability as to receiving, paying or delivery,
to dispense with tender, 316.
of ownership by one in possession, in question
of title, 286.
to show foreign market valne, 309.
of auctioneer, not to vary terms of sale, 328.
of party to explain warranty, 345 n.
of feelings, 502.
of suffering, 599.
of emotions, 677.
characterizing purpose, 636.
characterizing possession, 710.
of husband and wife iu crim. cou., 685.
of surveyors, 699.
of ancient persons, 700.
as to title of vendor, 727.
in actions for assault, 649.
of workman, infringing patent, 759.
as to contract in action for specific performance,
730.
of assignor of patents, 760.
of grantor to show mistake in deed, 788.
of parties to show intent to make illegal con-
tract, i'90.
of creditor as to part payment, 808.
to show application of payment by debtor, 811.
of trust to show statute of limitations had not
attached, 822.
of conspirators or confederates, 190.
of officer or agent, when government not bound
by, 195.
as part of res gestce, 326.
as to past act, 45.
of testator at execution of will, 112.
as to check being for a payment or loan, 245 n.
as to suretyship, 255.
as to fund from which payment was made,
264.
as to payment by depositor or payer of money,
275.
of depositor at time of deposit, 278.
as to whom credit was given, 303.
as to intent in passing of title, 318.
as to title of married woman, 185.
as to receipt of goods, 319.
entries of dayment, 799.
DECREE, foreign, against executor or adminis-
trator, effect on ancillary representative, bO.
against a married woman, effect of, 168.
to prove appointment of receiver, 231.
proof of satisfaction of, 260 n.
and deed pursuant to it, 701.
DEED, when presumed, 709.
how proved, 693.
title of grantor, 705.
presumption of grantor's knowledge of contents
of { 788.
of assignment, primariness of, 9.
as proof of assignee's authority to sue, 9.
of corporation, when presumed duly executed,
DEED Continued.
when seal sufficient proof of delivery of corpor-
ate, 36.
misnomtT of corporation in, 31.
parol to prove presentation to and approval by
corporate board, 37.
authority of agent of corporation to execute, 36.
corporate acceptance of, 87.
when heir not excluded from being witness in
action to set aside. 63.
as hearsay of facts of family history, 93-95.
description in, to show intent of residence, 108.
of real property, advancement by, 152.
consideration of, to show value of an advance-
ment, 156.
title by, requires assent of successor in interest,
157.
declarations to show time or character of deliv-
ery of, 158.
between third persons of adjoining land to show
title, 159 n.
to married woman, parol to explain, 169.
to wife of property paid for by husband, effect
of, 171.
to husband improperly obtained with wife's
means, 171.
of wife, authority of husband to deliver, 182 n.
impeachment of married woman's acknowledg-
ment of, 175 n.
nnder private seal of officer, when presumptive-
ly in official capacity, 195.
of partner in firm name, effect of, 216.
parol to explain, 217.
agreement to execute, as constituting partner-
ship, 227 n.
void for adverse possession, 710.
DEFAULT, foreclosure of mortgage, 720.
DEFEASANCE, oral defeasance of written agree-
ment, 412,722.
DEFECT, notice of, in actions for negligence, 591.
DEFENCES and counterclaims distinguished, 835.
generally, 786, etc.
against holders of commercial paper, 440.
DEGREE, books of college to prove professional,
47.
DELA V, actions for, against common carrier, 568.
excuses for, in divorce, 74(5.
DELIVERY, assignment of uncanceled nego-
tiable paper by, 3.
of assignment, 6.
of contract between vendor and purchaser, 726.
when corporate seal sufficient proof of, 36.
of gift causa mortis, declarations of decedent as
to, 60.
to husband and wife, intent as to which, 170.
of money, inaction for money lent, 239.
presumed payment of an obligation, not aloan,
243, 799.
of chattels, as an advancement, 154.
of checks to show payment, 803.
of property, payment by, 80(5.
of new notes iu composition with creditors,
816.
of release, when presumed, 817.
of sealed instrument, 507.
of lease, 524,527.
of deed, 694.
parol declarations to show time or character
of, 158.
of wife's deed by husband, authority for, 182 n.
failure to prove, in action for price of goods, 286.
ordinary sale by, 237.
delivery to satisfy the statute of frauds, 292, 318.
of memorandum of sale, 293.
of written instrument, parol to show want of
due, 294 n.
of a bill of the goods, effect of, as to price, 306,
and payment, when presumed concurrent, 313.
or offer o I goods, when and how shown, 314.
and acceptance of labels for liquor bottles, when
evidence of acceptance of all, 319.
account kept by party as evidence of, 326.
of goods, time and place of, 312.
under special contract different from one al-
leged, 332.
on bo,rd ship, 498.
GENERAL INDEX.
851
DELIVERY Continued.
plaintiff's readiness for, in action for non-ac-
ceptance, 337.
action against seller for non-delivery, 337.
readiness of buyer to perform, in action for non-
delivery, 338
destruction ol thing sold, to excuse, 339.
of negotiable paper, 404, 449.
of notice, presumed from ordinary course, 433.
of policy, 477, 478, etc.
to common carrier, 563.
by carrier, 576.
to drayman, 567.
of instrument after performance of contract,
575.
DEMAND, excuse for omitting must be pleaded,
435.
on public officer, 196.
on or by firm, 219.
on partner after dissolution, 220.
before suit against trustee, 234.
retaining money obtained by agent after, 242.
on non-payment, in action for money paid, 258;
of check. 244.
of negotiable paper, 419, 422.
to sustain action for money paid, 265.
before action for money received, 278, 281.
and refusal, when necessary before action on
sale, 330.
for interest on sale from time of, draft equiva-
lent to, 331.
by buyer, when unnecessary in action for non-
delivery, 338.
of rent in action on lease, 532.
in case of bailment, 556.
as evidence of negligence, 571.
as evidence of conversion, 626.
in action of replevin, 690.
and default on foreclosure of mortgage, 720.
of performance between vendor ana purchaser,
728.
oral or in writing, 627.
DEMEANOR of injured person, 599.
DEMURRAGE, actions for, 518.
DEPOSIT, certificate of, in action against bank
for money received, 277.
DEPOSITIONS to prove books of foreign corpo-
ration, 50.
to take testimony of interested witness, 63 n.
of decedent, effect of reading, 70 re.
when not competent, as hearsay of facts of
family history, 94, 96 n.
DESCENT, title by, 707.
DESCRIPTION in will, of person, 138, 139.
fitting one, coupled with name fitting another,
141.
applicable in part to different pieces of prop-
erty, 143.
of property, extrinsic evidence to reject false,
144, 145 n.
explanation of ambiguity as to which of two
parcels, 145, 146.
usage as to boundaries, when incompetent,
146 n.
of lands in a deed, 697, 699, etc.
of goods, extrinsic evidence to show, 303.
DESIGNATION, ambiguous ill lease, 527.
of invention, 763.
DESTRUCTION of will, when presumed, 124,
127.
of articles of copartnership by partner, 226 n.
of thing sold, to excuse delivery, 339.
of negotiable paper sued on, 390.
presumed from absence, 499.
of leased premises, 532.
DETECTIVES as witness, 747.
DETERMINATION of contlicting claims, 717.
DEVISE, title by, 707.
prenuaptton of acceptance of beneficial, 157.
DIAGRAMS and maps, 699.
DILIGENCE in demand of negotiable paper, 425.
in charging indorwr, etc., 425-432, etc.
in mailing notice, 433.
of agent, now proved, 559.
in discovering fraud, 733.
DIPLOMA, how proved by physician, 382.
DIRECTORS, management of business by, when
proof of user, 28.
how proved to be, 769.
compensation of, 381.
Dill I ;< T( i It V, not evidence of address, 432.
DISAPPEARANCE, presumption of death by, 74.
DISCHARGE of advancement by cancellation of
entry in account or credit, 154.
of private debt of partner by firm obligation or
funds, 222.
before maturity to bar action on bill or note,
257.
of indorsers by neglect, 246.
of pre-existing liability, payment in, 200.
of plaintiff, when admissible in action for
wages, 358.
of contract by cancellation of instrument, 408.
of surety, by extending time, 445.
in bankruptcy. 819.
impeachment of, 820.
in insolvency, 820.
new promise to rebut, 821.
DISCLAIMER of beneficial devise, 157.
of title, parol declarations to show, 158.
DISEASE, in life insurance, 501.
evidence of adultery, 744.
DISSENT by partner from entries in partnership
books after dissolution, 230.
DISTANCE to rebut presumption against partner
from entries in partnership books, 230.
forfeiture of, 784.
DISTRESS of person, how proved, 599.
DISTRICT COURT OF N. Y. CITY, proving
judgment of, 541.
DIVERSION of negotiable paper must be alleged,
442.
of accommodation paper, 443.
DIVORCE, actions for, 743. etc.
competency of judgment for, 101.
primariness of decree of, 179.
pleading statute of limitations as to, 822 n.
DOCKET of justices' judgment, 540.
DOCKETING, in actions on judgment, 539.
DOCUMENTS, issuing, receiving, or acting upon,
when evidence of user. 28.
testimony to appearance of for purpose of em-
bodying description in record, 397.
DOGS, injuries by, 045.
DOMICILE, nature of the question of, 103.
national character and, 102.
presumptions and material facts, 103.
rebuttal of evidence of residence to show, 103.
change of, 105.
naturalization, to show change of, 106.
effect of intent in determining, 106.
evidence of residence and of intent, 107.
as to title and transactions of husband and wife,
164.
effect of, on jurisdiction for issuing letters of
administration, 57.
DOWER, ancestor's seizin in law, sufficient to es-
tablish, 157.
provision in will in lieu of, 157.
ejectment for, 707.
DRAFT, of contract, when admissible, 362.
admissible under allegation of note, 418.
DRUNKENNESS, to affect testamentary ca-
pacity, 115.
how proved, 779.
action for causing, 775, etc.
DUE BILL, admissible under allegation of note,
418.
actions on. 454.
DUPLICATE contract of sale, 288.
on face of instrument, explained, 421.
of negotiable paper, 1,1.
apparent duplicate notes in notice of protest,
432.
proof of contract in, 528.
DURATION of life, 602.
DURESS to impeach contract, 788.
- conveyance by wife. K.Y
in obtaining consideration of deed to husband
from wife's separate property, 171.
actions to recover back money paid under, 268,
270.
852
GENERAL INDEX.
DURESS- Continued.
in written instrument, parol to show, 294 n.
in negotiable paper, 4-4:).
DYING DECLARATIONS, 587, 712.
as to legitimacy, DO n.
EARNEST, when giving of, docs not pass title,
817.
EASEMENT, as an incumbrance, 530.
in actions for nuisance, 640.
EJECTMENT, actions of, 691.
ELECTION, returns of, 749.
color of, to constitute color of office, 193 n.
to constitute officer de facto, 201 n.
to office in corporation, 769.
certificate of, presumptive of title to office, 194.
of officers, books of municipal corporation as
to, 47.
of one of two residences for domicile, when
insufficient, 107.
EMBEZZLEMENT by agent, in action for money
received, 280, 281.
EMOTIONS, 077.
in crim. con., 685.
EMPLOYER, which of several was real employer,
360.
EMPLOYMENT, negligence in, 592.
of unfit servant, 593.
ENACTING CLAUSE, 771.
ENDORSEMENTS, secondary evidence of, 390.
as evidence of title, 403.
as a transfer of title, 415.
of negotiable paper, 413.
legal objects of, 414.
extrinsic evidence of date, 416, 808, 825.
of payment as admission, 416, 808, 825.
ENJOYMENT, actions on covenants for, 520.
ENTICING AWAY, actions for, 681, etc.
good faith in, 682.
ENTRIES in course of business, date presumed
correct, 14 n.
copy of, 50.
in corporation books, 52.
in corporate records, presumptively made on
their date, 49.
^erasures in, 49.
in corporate accounts, 52.
against defendant in action by receiver, 232.
when unnecessary to produce officer who made,
53.
mistake or neglect of secretary in not making,
52.
by physician, in register of births, 87.
of births, deaths and marriages in family Bible
or other book, 93.
in register of fact of family history, how proved,
97.
impeachment of, 99.
primariness of book or paper to prove absence
of, 99.
in hotel register, as to intent of residence, 108.
of testator in accounts, to identify property,
144.
to show intent as to an advancement, 151.
referred to in will, as showing advancement, 156.
by donor in account, to show advancement, 154.
in partnership books, not conclusive of firm
transactions, 205.
when presumptive against partner, 229.
competent against all partners, 218.
to prove partnership, in actions between part-
ners, 226.
of attorney in accounts, when competent in ac-
tions between partners, 226 n.
by deceased partner, when presumptive proof,
225 n.
supplementary oath of partner to, 205.
as showing to whom credit was given, 619.
in creditor's book as to whom credit was given,
241, 245 n.
to show to whom credit was given, 302.
by creditor, to show application of payment,
811.
in payer's accounts, to show payment, 808.
in bank-book or pass-book, 245.
in check-book, 241, 259 n.
for incidental purpose, not primary of loan, 243.
ENTRIES- Continued.
intentional character of false, to explain mo-
tive and intent, 281.
of copy of letter in letter book, ?90.
in shop books, 373.
when prima facie of price and value, 306.
as auxiliary to oral testimony, 319.
as memorandum to refresh memory, 320.
made on information received from third per-
son, 322 n.
made by party from memoranda of servant, 324.
by plaintiff in his books, as admission of de.
fendant, 327.
of sale by broker, authority to make necessary,
in broker's book as constituting the contract,
329.
of acts in protesting, etc., 429.
admissibihty after proving correctness of items,
461.
by principal adduced against surety, 513.
in record of judgment, 536.
as evidence of delivery, 564.
mode of proof against carrier, 564.
characterizing possession, 711.
as part of res gestce, 265, 326.
of payment, 245, 799.
to show payments instead of loans, 245 n.
to show credit to wife, 182.
in ejectment, 707.
EQUITABLE ESTOPPEL, need not be pleaded,
affecting title to land, 713.
EQUITIES as to commercial paper, 447.
ERASURE in entries in corporate records, 49.
as affecting credit of account kept by party, 325.
testimony as to, 397.
in negotiable paper, 406.
(And see ALTERATIONS.)
ERROR in telegraphic dispatch, 604.
ESCAPE, action for, 609.
ESCHEAT, proof to sustain, 86.
ESCROW, wrongful delivery, 448.
sealed instrument delivered in, 507.
ESTOPPEL in dispensing with proof of corporate
existence, 19.
in place of proof of incorporation, 20, 30.
by admission of incorporation, 28.
to sustain validity of corporate acts, 33.
against corporations, 28.
against those dealing with corporations, 29.
against members and subscribers of corpora-
tion, 29.
liberally applied for and against corporations,
of stockholder from denying his title, 768.
of directors of corporation from denying au-
thority of agent, 34.
conclusiveness of minutes of corporate agents
by, 52.
as proof of official character of executors and
administrators, 56.
parol declarations of disclaimer of title consti-
tuting, 158.
by silence or acquiescing, admissions of wife,
166, 167.
wife joining in deed, when not estopped from
showing intent, 171.
of wife denying her acknowledgment, 175 n.
by admission of one joint proniissor, 189 .
when officer not estopped by return contrary to
fact, 197 n.
as to ownership of property, 200.
of officer as to official character, 198.
by former judgment, 196.
by representation of partnership, 220.
of trustee by receipt for money, 235.
by judgments, 237.
of borrower of money by an agent, 242 n.
of defendant denying receipt of money, 275.
waiver of stipulation as to time in contract of
sale, as, 314.
as to genuineness of signature, 392.
as to authority to sign or indorse, 400.
of bank by cashier's answer to inquiry, 402.
in respect to indorser's address, 431.
GENERAL INDEX.
853
ESTOPPEL Continued.
account stated, is not, 458.
by oral submission to arbitration, 466.
from relying on false recitals, 479.
by preliminary proofs, 490.
founded on iQence, 510.
by recital in bond, 513.
of tenant, 528.
in case of attornment, 530.
of bailee, 554.
as license, 638.
in case of dower, 707.
by deed. 713.
by certificate of no usury In loan, 792.
l>y former adjudication, 827, 829.
by judgment rendered upon one of several
causes of action, 828.
of licensee of patent, 756.
as to title of patent, 762.
between vendor and purchaser, as to title, 727.
EVICTION, 520.
of tenant, 530.
from lease, 534.
of agents or bailees, 554.
as proof of breach of warranty of title, 347.
EXACTION of tolls, 771.
EXCEPTION in statute, 772.
EXCISE LAW, actions for violation of, 774.
EXCLAMATIONS. 599.
EXCUSE, what allegation admits, 372.
not admissible under allegation of act, 435.
for omission of demand, etc., not admissible
under allegation of demand, etc., 423.
for non-performance must be pleaded, 511.
for breach of contract for services, 370.
for non-presentment of commercial paper, 421.
EXECUTION, primariness of, to show issue and
return, 736.
return of in creditor's suit, 741.
in actions against executor or administrator,
161.
to show insolvency of surviving partner, 226.
payment of, by third person to sustain promise
to repay, 251 n.
not evidence of payment of judgment, 539.
return of, to repel presumption of payment of
judgment, 813.
exemption from, 607, 633.
action for failure to serve or collect, 606.
sale of land, 702.
as evidence of title, 624.
wrongful levy of, 630.
of assignment, proof of, 6.
of written instrument, parol to show want of
due, 294 n.
of will, formalities of, 111.
when presumptive of testator's knowledge of
contents, 135.
clandestine, to show undue influence, 120.
presumption of alterations before, 133.
proof of alteration before, 134.
of lost or destroyed will, secondary evidence of,
126.
proof that a sheet was not in will at time of,
135.
of negotiable paper does not include validity,
Six).
EXECUTORS AND ADMINISTRATORS, ac-
tions by and against, 54.
nature of official character and title, 54.
evidence of character as such. 403.
distinction between individual and official capa-
city of, 55 and n.
necessity of proof of title under pleadings, 55.
sufficiency or suing or being sued " as," 55.
appropriate mode of proof of official character
of, 56.
effect of letters as evidence, 56.
impeaching letters of, 57.
best and secondary evidence of authority of, 58.
will without the probate, when not competent
of right of, to sne, 110.
extrinsic evidence to show identity of executor
named. Kill.
declarations and admissions of, against estate,
53.
EXECUTORS AND ADMINISTRATORS Cont.
decedent's declarations and admissions, for or
against, 59, 60.
admissions and acts of, against whom incom-
petent, 159.
admissions of, as to insolvency in actions to
charge heir, 161.
not prejudiced by admissions of heir, l."9.
bound by judgments against predecessors or de-
cedent, 60.
judgment against, effect of on heirs and devi-
sees, 160.
testimony of, when to be taken as a whole. 60.
preliminary question of competency of witness
against, 66.
testimony of interested persons against estate,
60,63.
New York rule as to, 62.
who excluded from testifying in actions by or
against, 62.
assignor or source of title, when excluded, 64.
who protected by exclusion of interested party
or witness, 64.
objecting to testimony of witness against, 65.
striking out incompetent part of testimony for
or against, 66.
what is personal transaction or communication
with deceased, f>7.
assignor and assignee excluded from testifying
to personal transactions with testator, 10.
proof of interview with deceased, 67.
witness not to testify negatively as to interviews
with deceased, 67.
what indirect evidence of personal transactions
with deceased excluded, 68.
effect of exclusion of transaction with deceased,
69.
effect of objecting party testifying to transaction
with deceased, 69.
form of offer of testimony in rebuttal of trans-
action with deceased, 70.
rule in United States Courts as to exclusion of
transactions with deceased. 70.
when chargeable with interest from time of pre-
sumed death, 78.
of deceased partner, actions against, 225.
admissions and declarations of deceased partner
as to title competent against his adminis-
trator, 225 n.
tax collector's receipt as proof of payment of
taxes by administrator, 201 .
payment to, 802.
service of protest on, 430.
bond of, action on, 514.
sale by surrogate's order, 703.
EXEMPLARY damages for criminal acts, 781 n.
EXEMPLIFICATION of judgment, 536.
of state grant, 705.
EXEMPTION from execution, 633.
EXPERTS, examination as to qualifications, 369.
cross-examination as to qualifications, 394.
testimony of. when controll'mi:. -1!M.
ground of opiniou called for ou direct examina*
tion, 3!)7.
examined by hypothetical questions, 591.
in handwriting, 397.
qualification as to handwriting, 397.
as to signatures, 501.
opinion as to seal, 506.
as to genuineness of sismatures to will, 113.
as to cause of injury, 571.
in case of negligence, "i^ii.
as to injured person. COO.
as to quality and value. 310. 311.
mode of testifying to mental capacity of testatoi
by, 116.
'in language or writing, to explain will. 180 n.
testimony of, as to alteration in will. 134.
designating a particular tiling as "like" the
thing in controversy. 311.
as to quality of article in action on breach of
warranty, 317.
adjustment in insurance. 492.
to abbreviated entrii
nautical. 500.
testimony as to damages, 511.
854
GENERAL INDEX.
EXPERTS Con fin utd.
to prove usage, 590.
testimony of, as to indebtedness of judgment
creditor, 738 n.
as to liquor, 774.
as to patents, 760.
~as to trade mark, 752.
EXPRESS COMPANIES, action against, as com-
mon carrier*, 563. etc.
EXPRESSED malice, 666.
EXTENSION of patent, 758.
of time, discharging surety, 445.
for award, 467.
EXTINGUISHMENT of negotiable paper by re-
newal, 446, 447.
of earlier demand by settlement of later, 464.
of rent by taking sealed security, 534.
EXTRA work, how proved, 362.
FACTORS, actions against, 559.
participation in profits by 212 n.
does not make partner, 211 n. s
course of business in accepting bills to explain
their possossion by, 259 n.
demand noi presumed merely from lapse of time
against foreign, 281.
of foreign principals, when personally liable, 302.
FAILURE OF CONSIDERATION, 441.
of negotiable paper, 448.
in sealed instrument, 511.
FAILURE to mark patented article, 765.
to serve or collect process. 606.
to return process, action for, 610.
FALSE IMPRISONMENT, actions for, 657, etc.
justification and'initisration, 657.
FALSE REPRESENTATIONS, of corporation
by meeting, 37.
in correspondence of officers or agents, 38.
by agent in sale to his principal, 334.
burden of showing, 330.
in insurance, 492.
in negotiation, 525.
as ground of action, 614, etc.
in actions between vendor and purchaser, 729.
FALSE RETURN,, action for, 610.
conclusiveness of return. 200 n.
FALSE WARRANTY, in insurance, 492.
FALSITY, of libel, 665.
FAMILY, consorting as a, to show relation of
parent and child, 87.
domicile in place of establishment of, 104.
presumption of removal of, on intent of resi-
dence, 108.
constructive revocation of will by change in
testator's, 126.
number of testator's, to show intent, 136.
of testator, state of, when to be shown, 138.
what connection with, sufficient to admit decla-
rations as to pedigree, 92.
FAMILY HISTORY, hearsay as to facts of, 90, 91.
relationship by marriage, dissolved by death, no
effect on declarations as to, 91 n.
competency of records of, 92.
declarations made in view of controversy, 95.
general repute beyond family, 95.
best and secondary evidence of, 96.
registry of facts of, 97.
not authorized by law, 98.
primariness of, 99.
impeachment of, 99.
judicial records showing facts of, 100.
judgments and verdicts to show facts of, 100.
(&> alto PEDIGREE.)
FEAR, of legal process, not sufficient for duress,
270.
FEELINGS, how proved, 502.
FEES, liquidated by taxation, 606.
FELONY, compounding, 790.
FICTITIOUS PERSON, in commercial paper, 399.
in bank check, 453.
evidence of misspelling of name, 422 n.
FILES, papers not necessarily part of record, 538,
539 n.
FTLlA'ci, notice of mechanic's lien, 767.
FIRE, a* excuse for bailee, 556.
FISHERIES, domicile of fisherman, 105 n.
FIXTURES, how proved, 624.
FIXTURES Continued.
parol to explain, in contract between vendor
and purchaser, 726.
FOOD, implied warranty of provisions for, 343.
FOOT, in measurement. 365.
FORECLOSURE, of mortgage, 719.
demand and default, 720.
vendor's lien, 719.
by advertisement, 701.
to repel presumption of payment, 813.
authority for, none to rec.-ive part payment, 801.
FOREIGN BILLS, and notes, protest of, 425.
FOREIGN CORPORATION. (See CORPORA-
TION.)
FOREIGNER, presumption as to knowledge of
law, 790.
FOREIGN JUDGMENTS, actions on, 550.
as an estoppel. 829.
FOREIGN LANGUAGE, interpretation of will
written in, 132.
FOREIGN LAW, to be alleged and proved, 790.
how proved, 22.
of marriage, 85.
to prove a limited partnership, 220.
as to license, 358.
as to medium of payment, 410.
as to rate of interest, 411.
as to negotiable paper, 411 n., 418.
application of the rule against varying writing,
by parol, 415.
as to protest, 427.
as to usury, 791.
as to infancy, burden of proving, 796.
FOREIGN LICENSE, presumption as to, 358.
FORFEITURE of corporate existence, by mis-
user or non-user, 31.
of franchise, 750.
of lease, how waived, 530.
proceedings in rern., for, 783.
FORGERY, evidence as to handwriting, 397, 789.
of negotiable paper, 441.
FORMER ACQUITTAL on charge of negligence,
602.
FORMER ADJUDICATION, general rules as to,
826.
form of, 830.
record to be produced, 831.
parol to explain record of, 833.
what questions were determined by, 832.
what parties affected by, 829.
in action for breach of warranty, 350.
as bar to action for wages, 375.
under covenants fur title, 519, etc.
in an action under Civil Damage Act, 783.
in libel, 671 .
in actions for nuisance, 643.
impeaching judgment, 549.
when admissible in action for deceit, 621.
of assault, 649.
as evidence of title to land, 713.
former recovery as merging the cause of action,
827. *
as nu estoppel, 827.
splitting caiif-e of action, 827.
what questions are concluded by, 828.
construction of instrument by, 828.
of what courts and tribunals an estoppel, 829.
by court of exclusive jurisdiction, 829.
against one of joint defendants, 830.
set-off, when not barred by, 834.
rebuttal, want of jurisdiction, 834.
fraud, 834.
appeal, or reversal, 834.
new title, 834.
FORWARDERS, actions against, 560.
FRANCHISES, action to annul, 750.
exercise of, as proof of de facto corporation. 123.
FRAUD, cause of action lor, when presumptively
assigned, 3.
actions for damages by, 614, etc.
an assignment, when immaterial, 5.
in obtaining charter, 31.
of directors or managing agent, under allegation
of fraud of corporation, 38.
in obtaining letters of administration, when
ground for impeachment, 58.
GENERAL INDEX.
855
FRAUD Continued.
declarations of testator, when not received as
statement of facts of, 115.
in producing undue influence, 120.
declaration and conduct of testator to show
susceptibility to, 122.
in obtaining will, 1S3.
in destruction of will, 127.
by deceit of testator as to his will, 131.
in bavin" words inserted in a will, 135.
effect of insertion of one name for another by,
147.
in making advancement, declarations of donor
as part of res c/estee, 154 n.
declarations of one of several joint legatees or
devisees to show, 159, ItiO.
presumptions of, in transfers of property to
wife, 164 n.
of wife by silence, necessary to estoppel in favor
of husband or his creditors, 167.
to rebut presumption of intent of husband to
make provision for wife, 171.
consideratiou of deed to husband from wife's
separate property obtained by, 171.
declarations of husband making gift, when not
competent to establish, 172.
to impeach conveyance by wife, 175.
action against married woman for, 185.
to render inadmissible admissions and declara-
tions of one in joint business or liability,
190.
presumption of innocence of public officer
charged with, 199.
in purpose of forming a firm, 211.
by one partner, competent against others, 217.
in inducing new partner to assume debts, 230 n.
by trustee in compromising claim, when burden
of showing on ct-slvi que trust, 236.
parol to show constructive trust in case of, 237.
ill obtaining credit, when proved as part of res
gestce, S46.
action to recover money paid under, 268, 271.
allegation of, in action for money received, 274.
in sale of goods, effect of failure to prove, 285.
in written instrument, parol to show, 294.
in entry in book as to whom credit was intended
to be given, 303.
in obtaining signature of negotiable paper, 441.
credit for goods, effect of time of payment, 313.
in respect to negotiable paper, 443.
burden of proving, in by-bidding, 331.
warranty as means of, 880.
in inducing acquiescence in quality, 343.
shown l>y inadequacy of consideration, 405.
between principal and guarantor, 475.
in sealed instrument, 511.
a< ground for reformation, 512.
by factor, 559.
proof of, by demand and refusal, 571.
misrepresentation admissible under allegation
of mistake, 485.
against common carrier as to value, 575.
proof in replevin, 690.
in procuring execution of contract, 787.
in account stated, 815.
in composition and compromise of debt, 816.
to avoid release, 818.
to suspend statute of limitations, 823.
to rebut former adjudication, 834.
in infringement of trade mark, 752, 754.
nsa ground 'o divorce, 743.
in actions of replevin, 690.
evidence of, to let in grantor's declarations, 740.
tona.fl'te purchaser, 715.
inaction between vendor and purchaser, 729.
to impeach instrument, 732.
in voluntary settlement of insolvent debtor, 738.
deficiency of land to (sustain inference of, 729.
cancellation of instrument for, 732.
in obtaining patent, Tti.'i
in action by judgment creditor, 737. (See also
ST \TTTK OP.)
FRAUDULENT INTKNT in forfeiture case, 783.
FRAUnn.KNT REPRESS STATIONS M to or-
ganization or condition, primariness of
corporate record, 48 n.
FREEZING. 571.
FREIGHT, declarations or admissions of railroad
officers as to, 44.
payment of, to show delivery through carrier,
816.
usage as to paying for freight of goods sold, 316.
proof of interest in, 496.
FULL FAITH AND CREDIT of judgments of
other states, 541.
GAMING CONTRACT, optional contract for fu-
ture sale, not presumed to be, 314.
GENERAL DENIAL, what admitted by, 686.
in action for services, 373.
GENERAL REPUTATION, to prove authority of
officer or agent, 40.
of existence of partnership, 210.
GESTURES, 599.
GIFT distinguished from sale, 776.
adequate proof of, 4.
causa mortis, subsequent declarations of de-
ceased as to delivery of, 60.
in will, mistake in making, 135.
rules for deciding between claimants of same,
140.
claims of legatee on testator to show intent as
to, ambiffuous, 136.
extrinsic evidence in case of, to charities, 141.
to change nature of, 146.
as to administrative character of, 147.
as to presumptively cumulative, 148.
to child, when not an advancement, 151.
of real property, when presumptive of an ad-
vancement, 152.
parol to show an advancement, 154.
delivery of money or chattels to child by parent
presumptively, 154.
declarations of donor as to, when competent,
155.
by husband to wife, or vice versa, 169, 172, 173,
174.
to married woman, intent as to, 170.
circumstances under which made, to explain,
234.
specific performance in case of, 731.
GLASSES, evidence of liquor business, 774.
" Glassware in casks," what is, 485.
GOOD FAITH, 621.
in transfer of negotiable paper, 449, 450.
in false imprisonment, 658.
in act contrary to statute, 773.
seduction, etc., 682.
shown by advice of counsel, 655.
by taking advice, 602, 741.
GOODS, grounds of action for price of, 285.
payment under duress to recover possession of,
271.
requisite memorandum of sale of, 292.
performance by seller before passing of title, 317.
title proved by bill of lading, 487, 572.
tender of, 816.
GOVERNMENT, when not bound by declarations
of officer or agent, 195.
GRANT, a will not, during testator's lifetime, 131.
when pn-siiincd, 709.
GRANTOR'S admissions and declarations as to
title to land, 710,740.
GROANS, 599.
GROSS NEGLIGENCE, admissible under general
allegation, 583.
GRATUITOUS service, how proved, 359.
bailment, 557.
GUARANTY by indorsement of non-negotiable
paper, 438, 4r>7.
action on, 471, etc.
GUARDIAN ad lltem, on ground of insanity, to
show incapacity of witness, r,;,.
rule in U. S. Courts us to testimony of transac-
tions with ward, 70.
change of domicile of ward. 103.
declaration of, that payment was with ward's
money, 2t>4 n.
implied promise of. 379.
<;i I I/I'. < itrcncy of evidence to prove, 494.
HAND-BILLS, offering reward. :is.-j.
advertising loss of negotiable paper, 450.
libelous, 663.
856
GENERAL INDEX.
HANDWRITING, qualification of witness as to,
398.
modes of proof, 393, etc.
of recording officer, as authenticating corporate
record, 49.
of deceased writer of corporate minutes, 49 n.
in family Bible, 93.
of letters relating to facts of family history, 94.
of entry in renter authorized by law, 97.
not authorized by law, 98.
of deceased officer who made entry in record of
public nature, 99.
of testator, 112.
of subscribing witness, 112, 506.
of ancient document, 709.
of ancient will, inability to prove, 128.
. entries in, of deceased partner, 235 n.
of clerk in bank-book, or pass-book, 245.
in order for goods, 291.
comparison of, 307 n, 396.
of memoranda by third person in course of busi-
ness, verification of. 322.
HEALTH, incase of life insurance, 501, 502.
HEALTH BOARD, determination of, 642.
HEARSAY, insufficient proof of corporate seal,
35.
testimony as to death as, 72.
as to place of birth or death, 51 n.
certificate of marriage as, 80, 99.
as to one's being an " heir," 91 n.
of defect of heirs, etc., insufficient to sustain
escheat, 86.
as to pedigree, 87.
as to facts incidental to pedigree, 89.
grounds of receiving and weight, 90.
by whom proved, 91.
as to facts of family history, 90.
family records as, 92.
general family repute, 94.
repute beyond family, 95.
declarations made in view of controversy, 95.
judgments and verdicts, 101, 827 n.
of general repute in family, 94.
to render entry in record competent, 97 n.
letters of administration as, 100.
exclusion of, in interpretation of wills, 131.
declarations of testator as, 115.
expert's opinion of mental capacity of testator
from, 117.
testimony of third person to confidential com-
munications, 166.
of one party having common interest or liabil-
ity inadmissible against other, 188.
as to partnership, insufficient, 204.
in actions against partners, 210.
as to boundaries, 700.
as to contract, in action for specific perform-
ance, 730.
HEIRS, actions by and against, 71.
exclusion of, as interested party or witness,
64 n., 65 n.
admissions of, raising presumption of payment
to ancestor, 69.
death of intermediate, without issue, 85.
presumption of, from persons dying intestate,
85.
presumption that every one leaves an, 86.
hearsay of defect of, in escheat, 86.
hearsay as to one's being, 91 n.
construing rights of tinder a will, 131.
presumptions and burden of proof as to intesta-
cy of ancestor, 109.
extrinsic evidence as to bequest to, in advance,
148.
title and declarations of, 156.
declarations of ancestor as to title against, 157.
admissions and nets of executor and adminis-
trator against, 159.
admissions of, against executor, 159.
effect of judgment against, on devisees or exec-
utors or administrators, 160.
action to charge, with ancestor's debts, 161.
HIGHWAYS, action for obstructing, 773.
nuisance, 641.
HIRE of personal property. 356.
HIRERS of chattels, actions against, 356, 560.
HOLDING OUT of agent, as authorized, 41, 400,
HOLDING OVER, raising estoppel, 529.
of corporate office, 769.
HOLIDAYS, 519.
under contract for service, 365.
HOURS, in a day's work, 366.
HUSBAND AND WIFE, actions by or against,
163.
burden of proof and presumptions of marriage,
79.
public recognition of relation of, 81.
presumptions from the marital relation, 164 n.
husband when treated as next of kin to wife,
65 n.
domicile of wife that of husband, 105.
change of domicile by wife after divorce, 106.
husband's title. 168.
wife's title, 169.
transfer by one to the other, 172.
tacit transfers, 173.
transfers between, the old rule, 173.
the new rule, 174.
foreign law applicable to title and transactions
of, 164.
estoppel of married women, 167.
application of wife's funds, 174.
of wife's conveyance, 174.
impeachment of, 175.
wife's separate business, 175.
agency of one for the other, or of third person
for either, 167.
wife presumed husband's agent, 777 n.
judgments against married woman, effect of 168.
deed by, as hearsay of facts of family history, 94.
debt by husband, when not advancement to
wife, 155 n.
as witnesses, 164.
marital relation affects weight, but not compe-
tency of, 163 n.
or interested party or witness, when not to
testify, 62 .
exclusion of wife as witness to transaction of
husband with deceased, 68 n.
admissions and declarations of, 165, 241.
business transactions between, not confiden-
tial communications, 165.
actions by husband, 176.
founded on marital right, 176.
for enticing away wife, 681.
for crim. con., 684.
defenses to actions by husband, 176.
actions against husband founded on marital
obligation, 1<7.
on wife's agency, 177.
defenses to, 177.
for necessaries, 178.
causes of separation, 179.
actions by married woman, 180.
evidence of contract, 180.
for tort, 181.
actions against married woman, 181.
pleading in, on contract, Isl.
for necessaries, 185.
for fraud, 185.
elements in proof of contract of married
woman, 181.
making of contract by married woman, 182.
charging separate estate, Eugiisli rule, 182.
New York rule, 183.
direct benefit to separate estate of wife, 184.
husband's coercion of wife, 185.
request to advance money to wife to sustain
action for money lent, 240.
funeral expenses of wife when recoverable
from him as money paid. 24!).
HYPOTHETICAL questions to expert (in negli-
gence), 591.
nm~~
IDENTITY, necessity of proof of, 101.
of corporation named in will, 138.
of society in case of charitable gift, 111.
of property mentioned in memorandum of auc-
tion sale, 32S.
of names in commercial paper, 398.
in due bill, 244.
of maker or drawee of commercial paper, 424.
of person served with notice of protest, 430.
GENERAL INDEX.
857
IDENTITY Continued
of parties to judgment, 538
to former adjudication, 830.
in description of can son of action to show
former adjudication, :!->.
of the tiling, in actions for conversion, 622.
-in replevin, (588.
of premises in action on lease, 527.
of thing mentioned in 11 will, 130 n.
of person, mode of proof, 102.
when presumed, from identity of name, 505.
named in will, 130 ., 136, 13'J.
designated inexactly in will, 1 10.
to whom tender of goods was made, 316.
named in letters of administration, 56.
committing assault, 640. (See also MISNOMER
and NAME.)
IDIOCY, 734.
of testator subsequent to execution of will, 114.
IGNORANCE of whereabouts of corporate
books, 51.
of testator in case of uncertainty as to charit-
able society, 141.
to explain misnomer in will, 142.
of one being a dormant partner, 210.
of partnership, in question of to whom credit
was given, 216.
of others, of torts of ono partner, 217.
in question of mistake, 209.
of usage, 296.
not material if assent is proved, 362.
of the law, by attorney, 557.
proved by testimony of party, 620.
ILLEGALITY of assignment, 5.
of written instrument, 294 n., 789.
of wagering sale, 336.
of negotiable paper, 441.
of conduct of plaintiff, suit for negligence, 603.
of contract respecting thing converted, 628.
to impeach contract, 789.
ILLEGITIMACY removes presumption of one
leaving an heir, 86.
statement of, in registry of baptism, 87 n.
of child born before marriage, 88 it.
parents 1 testimony and declarations as to, 89.
proved by hearsay, 91.
decree of probate court to prove, 100.
ILLICIT intercourse, 685.
ILLITERATE PARTY, execution by, 443, 512, 788.
IMBECILITY, test in case of, 114 n.
declarations of testator to show, 115 n.
testimony of witness to show, 118.
IMPAIRED POWERS, by injury by negligence,
598.
IMPEACHMENT of title of assignee, 8.
of power of officer resting on consideration, 82.
of corporate acts presupposing other acts, 34.
of second marriage, 8.'!.
of registry of facts of family history. 99.
of record of judgment of naturalization, 102.
of decree of probate of will, and of surrogate's
jurisdiction, 111.
of letters testamentary or of administration, 57.
of validity of testamentary act, 132.
of part of will, 135.
of subscribing witness to a will, 112.
of acknowledgment by married woman, 175 n.
of process for want of jurisdiction, 1U7.
of one testifying, being partner, by schedule in
insolvency, 221 n.
of writing by parol, 294.
of seller who has testilied to sale, 332.
of contract, 787.
by incapacity of contracting party, 796.
on ground of insanity, 797.
in actions for reformation or cancellation,
732.
of receipts, 807.
of release, HIS.
of discharge in bankruptcy, 820.
of instrument, in action for reformation or can-
cellation, 732.
of convi yanco, mortgage', assignment or ante-
nuptial settlement, 7W.
JMPEKKKrT UECOKDS, in actions on judg-
ment, DUG.
IMPLIED promise to pay for use and occnpa
tion, 351.
for hire of chattels, 356.
for services, 358.
covenants in lease, 526.
malice, 666.
IMPOTENCE, as a ground for divorce, 743.
IMPRESSION of witness hearing slander, 664,
as to adultery, 745.
IMPRISONMENT, actions for false, 657, etc
INCAPACITY of party should bo alleged, 440.
not presumed, 705.
illiteracy, 443, 512, 578.
of contracting party, 462.
INCENDIARY, circumstantial evidence of, 496.
1NCUMBRANCES, actions ou covenants against,
520.
INDEMNITY, parol, to prove promise of, 255.
by surety, 255.
implied promise of, for moneypaid, 256.
relation of, and Judgment paid, to show amount
due in action for money paid, 202.
failure to prove allegation of, 286.
for lost negotiable paper, 390.
INDIVIDUAL LIABILITY of stockholders, etc.,
768.
INDORSEMENT of bill, when insufficient proof
of payment, 258 n.
of memoranda of protest, 429.
before payee's indorsement, 436.
restrictive, 444.
to show payment, 809.
of payment on negotiable instrument, 446.
whether before or after maturity, 443.
of guaranty on instrument, 472.
of bill of lading, 488.
iti handwriting of debtor as an acknowledgment
of debt, 824.
acknowledge g part payment, 825.
INDUCEMENT, In actions for slander, etc., 659.
INEVITABLE accident exonerates common car-
rier, 577.
INFANCY, inspection to decide question of, 87.
proof of !>y physician's testimony or account, 87.
to impeach contract, 796.
new promise, admissions and declarations, 796.
rescinding contract on ground of, 735.
INFANT, services by, 35!.
contract for services, 382.
contributory negligence of, 597.
selling liquor to, 778.
INFORMATION of facts of family history,
source of. when to be given, 91.
INFRINGEMENT of trade marks, 751.
of patent, 759.
INHABITANTS, knowledge of. not binding ou
municipal corporation, 45 n.
INITIALS, use of, by testator in bequest, 133
and n.
INJURY by negligence, manner of, 594.
by animals, actions for, 045.
by assault, opinions of witnesses. filO.
INK, opinions of witness respecting, 307, 407.
INNKEEPERS, actions against, 560.
sign of, 774, 777.
INNOCENCE, presumption of, in civil cases, 495,
670 n.
in aidofcircumstanc.es showing death, 73.
in favor of party to marriage. 7'J.
insufficient to sustain marrri.i
of public officer charged with fraud or con-
spiracy, 199.
of others of torts of one partner, 217.
presumption of legitimacy, additional to that
of, 88.
of compounding felony, acquittal not conclu-
sive of, 7!W ii .
INQUIRY, as to absence for seven years. 75.
for children, to show failure of issue, 86.
to sustain escheat, 86.
as to infancy, 87.
partner's discharge of private debt with firm
funds, to charge debtor with, 222.
in trade as foundation of knowledge of
value, 311.
858
GENERAL INDEX.
INQUISITION, taken by sheriff's jury, 612.
in lunacy, effect of, 119, 7.J4.
jjrlmafaeie of incapacity of witness, 65.
as evidence of testamentary capacity, 119.
INSANITY incapacitating witness, 65.
domicile of nan. compos, 106 n.
lucid interval, 114.
sudden change in habits, and suicide, 115.
hereditary, of testator, 119.
to excuse production of maker of memoranda
in, 322 w., 823 n.
in case of life insurance, 501.
to impeach contract, 797.
to rescind contract, 733.
value of services in question of, 379.
INSCRIPTION on signs or labels, 591, 774, 777.
INSOLVENCY, assignee in, authority to sue, 9.
schedules in, to impeach witness testifying to
being a partner, 221 n.
of agent, in proof of embezzlement, 281.
to show to whom cred_it was given, 303, 360.
of buyer to show rescission of sale, 335.
warranty against, 340.
not relevant to charge of alteration of commer-
cial paper, 408. .
bankruptcy conclusive of, 474.
ehown by execution, 559.
of debtor in execution, 607.
false representations as to, 616.
mode of proof, 616, etc.
of buyer and fraud, 625.
in creditor's action, 740.
to repel presumption of payment, 813.
discharge in, 820.
INSPECTION, sufficient criterion to decide ques-
tion of infancy, 87.
of goods sold, proof and conclnsiveness of, 315.
by judge, of account kept by party, 325.
of injured limb, 599.
INSPECTORS of election, 749.
INSTRUCTIONS of factor, how proved, 559.
to carrier, 565, 567.
to sheriff or marshal, 607.
such as to exonerate sheriff, 613.
INSULTING acts, 667.
INSURABLE interest, 486.
INSURANCE, actions on, 476.
varying policy by parol, 7, 483.
estoppel of member from questioning corporate
character, 29.
of vessel, payment of, as proof of death, 74, 96.
stock and premium notes of company. 455.
moneys for, do not mitigate damages, 603.
INTEMPERANCE of workmen, 368.
as evidence of negligence, 585.
how proved, 735, 779.
INTEMPERATE HABIT, how proved, 778.
INTENT, in implied assignment, 2.
of attorney in buying, 5 n.
to ratify acts of officers or agents, 43.
as to gift causa mortis, declarations to show,
60.
in making transfer to deceased. 69 n.
in deciding domicile, 104, 105, 106.
to change domicile for purposes of education,
106 n.
as to residence, how proved, 107.
of testator in will, 131.
direct evidence of, 143.
ascertained by language of will, 132.
to devise real estate, what incompetent to
show, 146 n.
to give different estate from that expressed, 146.
to make apparent beneficiary trustee, 146.
as to ademption of legacy, 149.
rebutting evidence as to, 132.
declarations of testator as to, in rebuttal, 136.
time of, bearing on, 150.
in explanation of ambiguity as to parcels, 146.
execution of will presumptive that it conforms
to, 135.
as to revocation of will, 123.
from its disappearance, 124.
declarations of testator as bearing npon, 124.
effect of, on constructive revocation, 126.
to defraud Dy destruction of will, 127.
INTENT row (in ued.
extrinsic evidence to aid in showing, 129 130,
andn., 131.
as to bequest to heirs or next of kin in ad-
vance, 148.
situation and circumstances of testator to show,
136.
as to corporation namod in a will, 138.
extrinsic evidence to show in latent ambiguity,
140.
of testator as to claimant under will, 141.
as to donee, circumstantial cvid'-nce of, 141.
as to giving property, extrinsic aid to, 143.
legal consequences of expressed, not to be
varied, 147.
as to same sum given twice to same legatee, 148.
as to execution of power, how shown. 150.
of donor in making an advancement. 151.
to make an advancement, extrinsic evidence
of, 156.
as to advancement by deed of real property, 152.
of parent in purchase in name of child, 153.
shown by entries in account, 154.
declarations of donor to show, 155.
of deed to a married woman, extrinsic evidence
of, 169.
as to gift to married woman, 170.
of husband in conveyance to wife paid for by
him, 170, 171.
to make gift to wife, when sufficient, 172.
declarations of husband to show, as to wife's
property, 173.
in tacit transfers between husband and wife,
173.
of husband to reduce wife's choses in action to
possession, 176.
of married woman to charge separate estate,
181 n., 183, 185.
of contract of officer, 105.
as to partnership in actions between partners,
not to form partnership. 211 n.
of others to ratify act of one partner, 217.
to disprove partnership, 220.
as to real estate being partnership property, 229.
to create trust, parol to show, 238.
to explain to whom credit was given, 216.
of payment, to show to which of several credit
was given, 241.
books of party to show as to whom credit was
given, 302.
declarations of, to make request, in action for
money lent, 241.
as to application of payment, 265, 811.
of party in making written contract, 269 n.
to waive tort and rest on implied promise, 274.
similar transactions to explain, 279.
false entries to explain, 281.
to make invoice relevant, 289.
to ratify act of agent. 299.
to give credit to agent instead of principal,
%01.
to make factor for foreign principals liable,
302.
illegal, in optional contract for future sale, 314.
of person delivering or accepting goods, 315.
as to passing of title on sale of goods, 317.
by delivery of bill of lading, 318.
secret, in abbreviations and symbols in account,
325.
in sale by agent to his principal, 334.
to mislead through by-bidding, 334.
as to giving warranty, 341.
to warrant on executed sale, 342.
effect of, on implied warranty on sale, 343.
as to sale by sample, 343.
to commit waste, 534.
to deceive, 618.
may be proved by testimony of party, 618|
620.
in procuring execution of contract, 787.
in making illegal contract, 790.
to evade usury laws, 791.
to take usury, 792, 793.
conversation on sale of land to show, 723.
to affirm contract by infant, 735.
GENERAL INDEX.
859
INTENT Continued.
to defraud, from possession of chattels after
conveyance, 737.
of debtor, in actions by judgment creditors,
739.
of grantee, 739.
in violating statute or ordinance, 772.
in actions for assault, 648.
proved by other offences, 775.
of seller of liquor, 778.
in infringement of trade mark, 752, 754.
INTERES 1', actions affecting parties in a Joint or
common, 186.
admissions and declarations by real party in,
186.
admissions and declarations of parties having
common or several, 188.
of parties having joint, 188.
test of distinction between joint and common,
188 n.
declarations of assignor of part, 11 n.
three rules as to acts and declarations of as-
signor against, 12.
in profits, when insufficient to prove one a
partner, 206.
of partners presumed equal, 229.
when allowed on sales. 330.
oral evidence as to rate agreed, 411.
reservation of, presumptive of usury, 793.
INTERFERENCE in patent case, 763.
INTERLINEATION in will without authority,
135."
of words to complete sense, 134 n.
in negotiable paper, 407.
in record of judgment, 538.
INTIMIDATION of wife by husband, 185.
INTOXICATION, how proved, 603, 779.
to rescind contract, 735.
to show incapacity to make will, 116.
as evidence of negligence, (303.
action for causing, 775, etc.
INVKNTION, novelty of, 756.
prior knowledge of, 703.
abandonment of, 764.
INVENTOR, patentee the original, 757.
INVOICE presumptive against agent, of amount
of NUe, 280.
relevancy of, in action for price of goods, 289.
witness' knowledge of value based on. 310.
as foundation of knowledge of market value,
311.
description of goods in, as a warranty, 341.
not precluding oral warranty, 345.
presumed to exist, 559.
as proof of contents, 566.
as evidence of title, 624.
IRREGULAR indorsement of negotiable paper,
436.
ISSUE, burden of proof of, 85.
presumptions a* to failure of, 85.
possibility of, 724 .
extinct'. Ni.
consorting as a family as proof of, 87.
proved by hearsay us to fuc.ts of pedigree, 91.
by general reputation, 94.
constructive revocation of will by birth of, 125.
JUDGE'S certificate, to judgment of sister state,
f. 13.
JUDGMENT, nature of, nnder new procedure,
.-,11 ,/.
date of. 538.
certified copy of, 535.
exemplification of. 53ii.
hWurn copies of. .Vili.
imperfect record of. 536.
of sister state, appearance, 548.
clerk's attestation, 543.
seal, 543.
judge's certificate. 543.
presumption in favor of jurisdiction, 541.
limitations, 54i(.
actions on. 535, etc.
mode of proof, 195.
lost, 538.
docketing, 539.
reversal of, 53y.
JUDGMENT Continued.
satisfaction of, 539.
of N. Y. Courts, 540.
of justice in New York, 540.
of U. S. Courts, 549.
foreign, 550.
and deed pursuant to it, 701.
how proved, to affect title, 714.
primuriness of record to prove, 802.
parol assignment of, 2.
warranty on assignment of, 341 n.
against decedent binding on executors and ad-
ministrators. 60.
to remove disqualification of party to testify,
63 n.
exclusion of witness liable to be affected by, 63.
a< to facts of family history, 100.
identity of pen-on named in, 101.
of naturalization, to show national character
and domicile, 102.
fixing character and amount of an advancement,
155.
against ancestor, heirs, devisees, or representa-
tives, 160.
against executor or administrator, 161.
against married women, effect of, 168.
against one joint party, effect of, 186.
effect of former, on public officer, 196.
proof of by officer suing on process, 197.
void for want of jurisdiction, 199.
production of, as foundation of process, 202.
against partners as proof of partnership, 208 n.,
221.
against trustees, as an estoppel, 237.
for negligence, against two, 257.
when evidence of notice of non-payment, 258.
as proof in action for money paid, 261.
notice of suit to make, conclusive as to amount
and costs, 265.
when evidence of duress, 271.
of eviction in action for breach of warranty, 347.
damages on breach of warranty on assignment
of, 349.
roll as evidence of costs, 378.
conclusive as to amount even against third per-
son, 386.
competent to show diligence, 425.
against principal debtor admissible against guar-
antor, 475.
the competency of, under covenants for title,
519. etc.
of district court, city of N. Y., 541.
presumption of payment of, from lapse of time,
ol2.
return of execution to repel, 813.
general rules as to effect of former, 826.
by default or confession former adjudication,
830.
reasons of court to show ground of, 833.
fraud to rebut former, b34.
how proved in actions bv judgment creditors,
736.
against joint stock company, 769.
impeached in creditor's suit, 741.
JUDGMENT CREDITORS, actions by, 736.
proof of execution, 736.
proof of fraud. 737.
indebtedness to plaintiff, 736.
the consideration, 738.
voluntary se [lenient. 738.
indebtedness to other creditors, 738.
intention of debtor. 739.
fraudulent intent of trrantee. 739.
JUDICIAL NOTICE of corporate existence, 19.
of charters of public corporations, 21.
of special charters of municipal corporations,
21.
of seal of municipal corporation, 35.
or
770 n.
of ordinances of municipal corporations, 40,
of by-law? of private corporations, 40.
of facts affecting pedigree, SH>.
of law of ansbaua ami wife in other states, 164
of law of sister state. 5 Hi.
of foreign rate of inteiest. 411.
of value of foreign currency, 411.
860
GENERAL INDEX.
JUDICIAL NOTICE Continued. .
of day a of grace, holiday s, etc., 433.
of notarial certificate, 428.
course of mail*, 430, 433, 462.
of course of insurance business, 480.
of rate of commissions oil advances, 794.
of usage of trade, 486.
of cliurch to keep a record, 30 n.
of character of beverage, 778.
JUDICIAL SALE, 700.
JOINDER of members of voluntary associations,
15.
of joint contractors, etc., 136.
JOINT ACCOUNT evidence that parties acted
on. 3ir>.
JOINT DEBTORS, proof of joint liability of,
187.
request, to sustain action for money lent, 242.
promise by, against others to revive barred
claim, 252.
demand on, before payment, 265.
effect of release of one, 817.
payment by obligation of, 806.
former adjudication against one, 8^0.
JOINT LIABILITY, actions affecting parties in
a, 186.
proof of, where some defendants are absent or
have defaulted, 187.
preliminary question as to connection to admit
declarations, 191.
admissions and declarations of persons not
parties to action on, 187.
of parties having, 183.
of joint promisees. 190.
notice to one of two joint obligors, 190.
declarations of conspirators or confederates,
190.
on face of contract dispensing with allegation
or proof of partnership, 20(i.
for loan, 241 n.
receipt of payment of, in action for money paid,
261.
on commercial paper, 399.
of successive indorsers, 415.
variance as to, 504, etc.
JOINT MAKER, irregular indorser presumed to
be, 439 n.
want of consideration for, 442.
JOINT OBLIGORS, admissions and declarations
of, 188.
JOINT O \VNER, power of one to borrow for
all, 242.
JOINT PARTIES, authority to indorse for each
other, 415.
JOINT PROMISEES, admissions and declara-
tions of, 11)0.
JOINT STOCK COMPANY defined, 16.
liability of stockholders, etc., 768.
foreign, a corporation, not partnership, 16.
when rules applicable to partnership and those
to corporations, apply to, 16.
JOINT TENANTS, agency to render effectual
notice to one of two, 190.
JOINTLY seized, acts of persons, 353.
JURISDICTION, general principles as to, 544 n.
by recitals in letters of administration, 57.
impeachment of letters of administration for
want of, 57.
of discharge in bankruptcy for want of, 830.
of discharge in insolvency, 820.
object of inquiry as to domicile, to ascertain,
103.
impeachment of surrogate's, 111.
want of, to Impeach process, 197.
judgment void for want of, 199.
acts of public officer within his, 199.
process as evidence of, 202.
want of, in judgment, 539.
of justices, how proved, 540.
judgment of sister state presumption in favor
of, 544.
former adjudication of court of exclusive, 829.
want of, in rebuttal of former adjudication. 834.
JUSTICES' JUDGMENTS, 540.
in New York, 540.
of sister states, 549.
JUSTIFICATION, public officer to plead strictly
801.
proof of official character in, 201
of levy, C31.
by tax collector, 633.
of trespass to real property, 038.
of assault, 650.
of libel and slander, 670.
of false imprisonment. K>7.
KKY, Mirtviuler of, to show delivery, 819.
KINDNESS of testator to donee to show intent,
141.
KNOWLEDGE, incomplete, to rebut ratifica-
tion, 43.
of officers, agents, inhabitants or voters of mu-
nicipal corporation, 45 n.
declarations and admissions of executor and
administrator, to prove, 59.
of death of person, cross-examination to ascer-
tain, 72.
of family to sustain escheat, 86.
to admit declarations as to pedieree. 92.
of general reputation in family, '.!.
of contents of will, when presumed from due
execution, 113.
of testator of description of a person, 141 n.
to identify charitable society, 111.
of admissions, etc., of one in joint business by
the others, to show authority, 190.
by public officer of acts of deputy or subordi-
nate, 198.
of married woman of application of materials
or work to her separate estate, 184.
to show ratification, 185.
of statement as to partnership, to render hear-
say admissible, 210.
of one being dormant partner, 210.
of others to show ratification of act of one part-
ner, 217.
of one dealing with one partner after dissolution,
of power of liquidation in another, 218.
by partner of matter within scope of business,
as notice, 219.
of want of partner's authority to act, 222.
of misapplication of firm funds to discharge
private debts of partner, 222.
of dissolution of partnership, 224.
want of, by partner to rebut presumption from
entries, 230.
of trust in cesttii qve trust, 233.
of trustee to dispense with notice and demand,
234.
in question of mistake, 289.
of witness as to value, 310.
as to market value, 310, 312.
to waive discrepancy in size and weights of
packages, 315.
presumption of as to articles and quality, 344.
of purpose for which thing was ordered, 345.
by buyer, of defect, 349.
of another person, how proved, 360.
of signature, 393.
presumed from similar transactions, 399.
burden of proof in case of waiver, 435, 436.
of facts in insurance application, 479.
of agent, when not chargeable to principal, 481.
of attorney, when notice to client, 733.
how far pfesumed, 493.
circumstances, evidence of, 493.
of carriers' usase, 577.
proved by testimony of party, 620.
of state of title presumed, 705.
or putting on inquiry, 716.
prior, of invention. 763.
of violation of ordinance, 772.
of facts constituting statute liability, 772.
of the law, how presumed, 772. 790.
of yiolatior-.fi of statute, 778, 782.
of infancy, 778.
of seller of liquor, 778.
of intoxicating quality of medicine, 782.
of use of premises, 779.
of illegality of contract, 790.
burden as to facts peculiarly within, 771.
presumed to continue, 783.
of cause for fo. feiture, 783.
GENERAL INDEX.
861
LABELS, Inscription on, 774, 777.
LABOR, action for compensation, 357.
LACHES in omitting demand or notice, '^35.
in presenting bank check, 454.
LOCUS in quo., 036.
LAND, presumption of death from absence, 75.
bequest of land to pass a mortgage. 140.
when husband entitled to rents and profits of
wife's, 176.
parol, to prove agency for purchase of, 252 n.
contribution for payment of tax, 254.
deficiency of, to sustain fraud, 729.
ejectment for, 691.
LANDLORD, right to draw profits doeg not
make partner of, 211 n.
LANDLORD AND TENANT, action on lease,
525, etc,.
for use and occupation, 351.
ejectment between, 706.
LANGUAGE, interpretation of, in will, 132.
of testator to show usages of speech, 150.
of instrument, parol to show, 294.
usage of, in a trade, 297.
parol, to show usages of, 297.
testimony of experts as to technical language,
757.
LAW of other state or nation, how proved. 22, 85.
"LAY DAYS," 518.
LEASES, actions on, 522, etc.
allegation of, 523.
conditional delivery of, how proved, 584.
how varied by parol, 355, 524.
in action for use and occupation, 351.
in case of tenant in common, 353.
implied covenants in, 519, 526.
covenants for repairs in, 532.
authority of parties to recover on, 525.
usage or custom to explain, 525.
how construed when silent or ambiguous, 526.
ambiguous designation in, 527.
date and term of, how proved, 527.
amount of rent, how proved, 527.
possession not essential, 528.
estoppel of tenant, 528.
adverse title, 530.
forfeiture of, how waived, 530.
demand of rent, 530.
assignment of, how proved, 631.
surrender of, 532.
destruction of premises, 532.
apportionment of rent, 533.
payment of rent, 533, 809.
eviction, 534.
waste, how proved, 534.
raises presumption of ownership, 779.
LEGACY.
extrinsic evidence as to bequest of stock, 147.
as to ademption of, 148.
as to chargine, 149.
LEGAL PROCESS against bailee, 554.
false imprisonment, 657.
in action by or against officer, 605-613.
date of, 6RS., 8J.
LEGATEES and devisees, actions by and against,
71.
erasure of name of, and substitution of another,
134.
extrinsic aid in identifying, 136.
claims of, on testator to show intent, 136.
when a trustee, 146.
same sumgiven twice to same, 148.
declarations and admissions of, showing fraud
or undue influence, 159, 160.
collusiveness of judgment in suit by, 160.
judgment agninst executor, etc., in action to
charge, N>I.
LEGISLATURE, recognition of corporate exist-
ence by, 20.
journal of, to prove voto for statute, 21.
LEGITIMACY of offspring, strengthening pre-
sumption of marriage. 79.
second marriage before death of former part-
ner, 83.
burden of proof, and presumptions as to, 88.
rebuttal of presumption of, 88.
Adulterous intercourse of mother, 89.
LEGITIMACY Continued.
parents, testimony and declarations as to, 89.
dying declarations as to, 90 n.
proved by hearsay as to facts of pedigree, 91.
decree of probate court as to, 100
LETTERS to deceased, testimony explaining,70/i.
to testator to show mental soundness, 115.
of testator to identify charitable society, 141.
as hearsay of facts of family history, 94.
received within seven years, production of, 78 .
to rebut presumption of death, 7I>.
to relatives of absentee when insufficient in.
quiry, 76.
expressing intent never to return, 107 n.
of wife to show causes of separation. 179.
mailing of, to public officer as notice, 196.
to sustain inference of receipt, 291.
presumed delivered in ordinary course, 433.
(ButfffSOS.)
stating writer is interested in firm and asking
credit, 209 n.
by partner in his own name, 218 n.
notice of dissolution of partnership by, 224.
as res gestcK to show payments instead of loans.
245 n.
of agent to sub-agent, 253.
accompanying receipt. 807.
containing demand on joint debtor, primariness
of, 265.
letter-press copies, 266, 290.
duplicate originals, 266.
to show title to fund, 275.
agreement of sale made by, 289.
part of connected correspondence, 291, 677.
as evidence of market value, 309.
knowledge of witness as to value based on. 310.
of negotiation of sale, to show warranty, 345.
enclosing contract, part of res gel<je, 404.
of the agents of a party to him, 499.
payment by, 803.
of debtor to show application of payment, 811.
breach of promise, ti77.
LETTERS OF CREDIT. (See GUARANTY.)
LETTERS TESTAMENTARY AND OF AD-
MINISTRATION, 56.
to prove official character of executors and
administrators, 56.
notice to produce, 58.
when sufficient proof of death, 64.
impeachment of. 57.
to charge heir with ancestor's debt, 161.
of another state, 55.
showing facts of family history, 100.
LEVY, how to prove against sheriff, 608.
presumption as to time, 024.
action for wrongful, 630.
return as admission, 200.
presumption of partner's authority to direct
214 n.
liability for partner's directing tortious, 217.
to sue on administration bond, 515.
as evidence of payment, 539.
precumption of satisfaction of judgment, 802.
LEX LOCI, as to title and transactions of husband
and wife. 164.
LIABILITY of stockholders, etc., 768.
1,1 I! EL, actions for, 65!(, etc.
LICENSE, joint application for, as proof of part-
nership, 208 i>.
to sell, presumption as to, 287.
of physician, attorney or other person rendering
services, 358.
in case of trespass, 638.
of innkeeper, 560.
evidence of business. 777.
evidence of ownership, 591.
from patentee, 7'i- 1 .
estoppel from denying validity of patent, 756.
T.K 'KNSK LAW, actions for violation of, 774.
LIEN of bailee, 660.
on thing con verted, 625.
incclianic'ti, actions on, 767.
vendor's, foreclosure, 719.
LIFE, presumption of, 73, 75, 77.
English rule as to, 77.
grounds for, 77 n.
8G2
GENERAL INDEX.
LIFE Continued.
American rule as to, 77.
grounds for, 78 n.
probable duration, 734.
LIGHT, obstruction of, 642.
L1KKNKSS, how proved, 377.
not evidence of identity, 895.
LIMB, exhibiting to jury, 599.
LIMITATIONS, statute of, distinguished from
presumption from lapse of time, 812.
pleading, 8'^.
burden of proof, 822.
conditional new promise, 824.
acknowledgment of debt, 824.
part payment, 824.
indorsement of payments, 825.
revival of .debt by admissions and declarations
of co-representative. 59.
by payment by co-representative, 59 n.
as to payment in action for money paid, 267.
as bar to action for wages, 375.
on insurance note?, 456.
of account, on account stated, 464.
judgment of sister state, 549.
of action under Civil Damage Law, 782.
LIQUIDATED damage* or penalty, 511.
LIUUOKS, action for selling, 774.
LIS MOTA, declarations made in view of con-
troversy, 95.
LIS PENDENS, as notice, 717.
LOAN, by corporation, when presumed valid, 33 n.
power of " financial agent ' to negotiate, 43.
property given an advancement on, 152.
delivery of money or chattels by parent, 154.
parol to show, an advancement, 154.
from wife to husband, 173.
proof of, in accounting between partners, 226.
to sustain action for money lent, 239.
delivery of money to show, 240, 243.
when presumed payment, not, 243.
direct testimony of, 240.
to third person to sustain action for money
lent, 240.
to which of several, credit was given, 240.
request to characterize transactions as, 241.
authority of agent to make request for, 241.
due bills competent, of, 244.
check evidence of payment, not of, 243, 245.
receipt in action for money lent, to show, 244.
plaintiff's accounts, to show, 245.
when recovered without regard to special agree-
ment, 246.
effect of holding collateral security for, 246.
joint adventure under allegation of, 279 n.
reservation on, as compensation, not usury, 794.
when presumed from discounting note, 795.
LOG-BOOK, competency of, in insurance, 500.
LOSS of corporate books, 51.
of will, secondary evidence of, 126.
to firm from partner's neglect, 228.
of paper by bankers, 558.
as ground of assessing insurance notes, 455.
insured against, 488, etc.
presumed from ship's absence, unheard from,
499.
by carrier, 569.
of thing bailed, 556.
of profits in infringement of trade-mark case,
753.
of service, by seduction, 682.
LOST INSTRUMENT, action on, 510.
title deed and secondary evidence, 709.
judgment, 538.
negotiable paper, 389, 390.
certificate of notary, 428.
execution, 702.
LUNACY, inquisition of, 119, 734.
LUNATIC, testimony against committee of, 62,
transaction with, by objecting party, 69.
impeaching contract, 119, 734.
MAGISTRATE, proof of marriage before, by eye
witness, 80.
de facto and with color of title.'process by, 202.
authority shown by parol ; 784.
MAIL, ordinary course of, m case of an account
stated, 462.
MAIL Continued.
payment, by, 803.
MAILING letter, 291.
notice of protest, 433.
presumed from ordinary course, 433.
MALICIOUS PROSECUTION, actions for, 652,
etc.
MALICE, by public officer, 199.
in trespass, 630.
in cage of nuisance, 642.
in case of libel, 666.
of agent in committing tort, 38.
in malicious prosecution, 654, 655.
MANUFACTURE, distinguished from sale, 357.
statute of frauds, as to agree'ments for, 292 n.
designated by a particular brand, 804.
MANUFACTURER, implied warranty of. 342.
MAPS and charts, 699.
admissibility of, 321.
referred to in a deed, 697.
MARGINE, figures on commercial paper, 410.
memorandum on notice of protest, 426 n.
MARK, signature by, 398.
on patented article, omitted, 765.
MARINE insurance, 496. etc.
MARINER'S protest, 500.
MARKET VALUE, of goods, how proved, 307.
between vendor and purchaser, 728.
price current as proof of, 309.
MARRIAGE, burden of proof and presumptions
of, 79.
how proved in civil actions, 163.
action for necessaries, 178.
in action for enticing away, 681.
in crim. con., 684.
in divorce, 743.
direct evidence of, 79.
testimony of parents to, 89.
husband or wife as witnesses to prove, 165.
proof by certificate or registry, 80.
indirect evidence of, 81 .
cohabitation and repute, 81.
cohabitation and declarations, 82.
after meretricious intercourse, 82.
second, during absence, 83.
presumption of death to sustain second, 73.
rebutting evidence of, 84.
foreign law of, how proved, 85.
in question of title by collateral descent, 85.
presumption of legitimacy, additional to that
of, 88.
illegitimacy of child born before, 88 n.
entries of, in family Bible or other book, 93.
proved by general reputation, 94.
by hearsay as to facts of pedigree, 91.
competency of certificate, 99.
by registries of, authorized by law, 97.
registries of, not authorized by law. 98.
identity of oerson named in register of, 101.
foreign certificate of, 97 n.
decree of probate court as to, 100 n.
to render declarations admissible as hearsay, 91.
of alien woman, 102.
constructive revocation of will by, 125.
declarations of husband as to property of wife,
173.
actions for breach of promise of, 676, etc.
MARRIED WOMAN, liability of to equitable es-
toppel, 167.
effect of judgments against, 168.
evidence of title of, 169.
declarations as to title of, 170.
title to property obtained in business by, 171.
evidence of conveyance by, 174.
acknowledgment by, 174.
Eowers of attorney by, 174 n.
npeaching conveyance of, 175.
evidence of separate business of, 175.
actions by, 180.
evidence of contract in actions by, 180, 182.
two elements in proof of contract of, 181.
action of, for tort, 181.
actions against, 181.
pleading m action against, 181 .
separate estate, English rule as to charging, 182.
New York rule as to charging, 183.
GENERAL INDEX.
863
MAKTIIEI) WOMAN- Continued.
direct benefit to, 184.
action for necessaries against, 185.
action for fraud against, 185.
action on negotiable paper by, 399.
sen-ices on the property of, 358.
presumption of husband's agency, 399.
MARSHALS, action by and against, 605, etc.
against receiptor, 605.
for conversion, 605.
for trespass, 605.
justifying levy, 631.
MASTER AND SERVANT, actions for wrongful
dismissal or refusal to receive, 384.
liability of warehouse-keeper, 562.
admissions and declarations of servants admis-
sible against masters, 588.
liability of master to servant, 593.
authority to assault, 646.
assault by servant. 646.
action by, for enticing away servant, 681.
sale by servant, 777.
sales of liquor, 774.
MATERIALS proved, under complaint for ser-
vices, 357.
value of, 3(>s.
MEANING of libelous words, 664.
]\1 KAN'S of support, knowledge of, 780.
MEASUREM ENT of work done, 365.
MEASURER'S return, 566.
MEASURES, usage to show peculiar, 304.
MECHANIC'S LIEN, actions on, 767.
foreclosure of, as defense to action for price of
goods, K36.
MEDICAL treatment, the effect of, 600.
MEDICINE, action for selling intoxicating bever-
MELANCHO'LIA, 502 n.
MEMBERSHIP of voluntary associations, 15.
of corporation, 768.
MEMORANDUM, distinction between corporate
minutes and individual diary, 47 n.
accounts and entries of corporation as, 52.
indicating death in official record, 72 n.
of physician to prove date of birth, 87.
entries of births, deaths and marriages in, 93.
of facts of family history, 96.
of clergyman, 98.
of testator, 146 n.
indicating a gift to be an advancement, 154.
referred to in will as showing an advancement,
156.
of "sworn before me," when not proof of oath
of public officer, 194.
check given as, 244, 454.
of payment, when used in testifying, 258.
of terms of sale, when not primary, 288.
of sale under statute of frauds, 292.
of sale, parol to explain, 293.
unsigned, 862-375.
indicatin" sale, parol to explain, 313.
entries to snow to whom credit was given, 302.
use to refresh memory of witness, 523.
as auxiliary to oral testimony, 319.
admissible as part of res gestce, 319, 326.
by a third person in course of business, 322.
of deceased person in course of duty, 429.
refreshing memory, 320, 322.
shop-books and other accounts of party as, 322.
of defendant's admission made by plaintiff or
his agent, 327.
of auction sale, 327.
of sale by broker, authority to make, 328.
of contract for services, 363.
of person who made demand, etc., of negotiable
paper, 425.
in margin of notice of protest, 426 n.
to refresh memory as to protest, 429.
of statement of account. 461.
of contract not signed, 523.
as evidence in case of negligence, 587.
diagrams, maps, etc., 699.
characterixiiii,' possession of land, 711.
found on premised illegally need, 784.
of payer to show payment, 808.
of contract between vendor and purchaser, 726.
MEMORY, memoranda refreshing, 320.
MENTAL feelings, 502.
suffering, 599.
impairment by negligence, 599.
MERCHANT, letters of, as evidence of market
value, 309.
price current issued by, as proof of market
value, 309.
MERGER of cause of action in former recovery.
827.
by judgment against one joint debtor, 830.
of contract between vendor and purchaser, 728.
of rent in sealed instrument, 534.
MESNE profits, ejectment, 714.
MESSENGER, memoranda of, 429.
MIND, effect of probate, as to testator's sound-
ness of, 110.
MINISTERS, privileged communications to, 501.
MINUTE-BOOK of corporation when competent,
46,
when may be resorted to, 47.
for and against whom, competent, 48.
primariness of, 48.
of one since deceased, how proved, 49 n.
MISCONDUCT of receiver to render him per-
sonally liable, 232.
MISDESCRIPTION, declarations of testator to
explain, 143 n.
in catalogue a,t -auction, 328.
MISNOMER of corporation in abatement, 31.
in appointment of public officer, 194.
in will, 142.
in deed, 695.
MISREPRESENTATIONS of testator as to his
will, 131.
to rebut presumption of intent of husband to
make provision for wife, 171.
as ground of action, 6)4, etc.
in action between vendor and purchaser, 729.
MISTAKE, assignment of, cause of action for,
3.
to rebut ratification, 43.
of secretary of corporation in not making en-
try, 52.
of draftsman of will, as to name, 141 n.
in description of property, 143
of scrivener in drawing will, 113.
in writing name in will, 139 and n.
in omitting provision of will, 129.
in wills, correction of. 134 and n., 135 .
when not to be shown, or corrected, 135, 136.
of testator as to existence of a fund, explained,
147.
In statement of an advance, 149.
consideration of deed obtained by, 171.
to impeach conveyance by wife, 175.
in joining husband with wife, 182 n.
securities surrendered by, 243 n.
payment for assessment or taxes by, 260 n.
in paying neighbor's tax, as consideration for
promise to repay, 251 n.
in law, by agent to prevent recovery of princi-
pal, 253 n.
in compromise and composition of debt, 816.
in paying money for another, reimbursement,
254 ,i.
recovering back money paid under, 268.
promise to repay money paid uuder mistake,
270.
in paying money on forged or counterfeit pa-
per, 270.
insufficient to sustain allegation of fraud, 272.
demand in case of, ~si n.
in written instrument, parol to show, 294 n.,
295.
in entry as to whom credit was intended to be
given, 303.
in MdrMdBg goods sold, 316.
in name of buyer at minion sale, 328.
in date of contract, 409. 41i'.
iu commercial paper, must be pleaded, 410.
in footing up account, 463.
of law, in award, 469.
does not dispense with statute of frauds, 472.
in insurance polie\
as a ground fur reformation, 512.
864
GENERAL INDEX.
MISTAKE ConfimrtfJ.
in counterpart or duplicates, 524.
of grantor in executing deed, 788.
in Hiking usury, 7SM.
iiiacfoimr slated. Sl.">.
to avoid release, 818.
conversation on sale of land to show, 729.
MODELS in patent case*, 757, 760.
MODIFICATION of contract for services, 370.
of sale, 314.
subsequent to written contract, 413.
of sealed agreement, 510.
of a:rreement as to negotiable paper, 447.
MONEY, allegation of collection of, on process,
198.
burden on plaintiff suing to recover value of
bad, 270.
referred to in will as showing advancement,
156.
delivery of, presumed in payment of debt, 799.
possession of, by creditor or agent, to show
payment, 810.
MONEY GIVEN to a eon to purchase a farm,
when an advancement, 153.
to married woman, as showing her title, 170.
by husband to wife, declarations in reference
to, 172.
MONEY LENT, grounds of action for, 239.
delivery of, 239.
direct testimony to loan, 240.
delivery to third person, 240.
to which of several credit was given, 240.
request, characterizing transaction as loan, 241.
authority of agent to make request for loan,
241.
parties to joint adventure, 242.
request of joint debtor, 242.
written evidence in actions for, 243.
delivery of, without writing, presumed payment
of obligation, 213.
due bills as proof. 243.
defendant's check in favor of plaintiff, 244.
defendant's checks on plaintiff, 244.
defendant's receipt to show loan, 244.
plaintiff's check, 244.
plaintiff's account book, 245.
character in which parties dealt,- 246.
connected und collateral agreements, 246.
MONEY PAID, grounds of action for, 249.
debt under seal or by judgment, 3.
to defendant's use, 249.
previous request, or previous promise to reim-
burse, 250.
subsequent promise to reimburse, 251.
parol to vary the writing, 251.
agent's action against principal, 252.
obligation to pay what defendant ought to have
paid, 253.
surety's action against principal or co-surety,
254.
implied promise to indemnify, 256.
action between parties to negotiable paper for,
2o7.
proof of payment by oral evidence, 258.
by producing defendant's order in favor of
third person, 259.
by plaintiff's check or accounts, 259.
by payee's receipt or surrender of evidence of
debt, 260.
judgment against plaintiff, 261.
medium of payment, 263.
amount, 2i>4.
source of the fund paid, 264.
object and application of the payment, 265.
demand and notice, 265.
defenses to action for, 266.
under mistake, etc., payment in actions for, 268.
subsequent promise to repay, 270.
forged or counterfeit paper, 270.
under duress, 270.
under fraud, 271.
where consideration fails, 272.
MONEY RECEIVED, grounds of action, 273.
pleadings in action for, 273.
by defendant to plaintiff's use, 273.
plaintiff's title to the fund, 274.
MONEY RECEIVED Cfmtinued.
the receipt of the money by defendant, 275.
' by agent of defendant, 978.
the medium and amount of payment, 277.
action by depositor a'_'aiii-t Mok, 277.
bank's action for overdraft. 279.
action by principal against his agent, 279.
demand and notice in action for, 281.
defendant's evidence, 281.
by sheriff, 60S.
MONTH, meaning of, 366.
MOM'MKNTS, bounding lands, 700.
MORTGAGE, parol assignment of, 2.
admissions of assignor against assignee, 14
payment to assignor, 802.
authority of officer to cancel, 35.
when bequest of land will pass. 146.
to disprove joint interest or liability, 188 n.
in name of one partner, 222 n.
title by chattel mortgage, 625.
deed proved a, by parol, 722.
foreclosure of, 719.
alteration of, 721.
evidence of consideration, 742.
fraudulent intent of mortgagee, to impeach, 739.
MORTGAGOR AND MORTGAGEE, ejectment
between, 707.
MOTIVE of contract distinguished from consid-
eration, 441 n.
in actions for assault. 648.
MUNICIPAL CORPORATIONS, illegality of, in
proceedings to enforce ordinances, 20.
acceptance of charter by, 25.
judicial notice of charters, 21.
of seal, 35.
of ordinances, 40.
ordinance, how proved, 40, 770.
ordinances violation of, as evidence of negli-
gence, 590.
adoption of by-law of, 39 n.
usage and coursu of business of officer or agent,
42.
notice to officers or agents of, 45 n.
knowledge of officers, agents, inhabitants, or
voters of, 45 n.
competency of books of, 47.
primariness of corporate record or copy, 48 n.
parol to vary minutes of, 51.
recovery of money wrongfully borrowed of
officer, 274 n.
municipal bonds, actions on, 451.
liability for unsafe condition of property, 590.
cannot alter rules of evidence, 7V1.
MUTUAL ACCOUNT in case of account stated,
459.
MUTUAL PROMISE of marriage, actions for
' breach of, 676.
MUTILATED record, 536. (And see ALTERA-
TIONS.)
NAME of incorporation, suing by, as evidence of
user, 27.
when identity presumed from, 56.
proved by hearsay as pedigree, 91.
by general reputation, 94.
identity of person with, 101.
in will, explanation of use of, by testator, 133.
erasure of and substitution of another, 134.
of relationship, 137.
of corporation, 138.
when not controlling, 139.
identity of person designated inexactly in will,
139, 140.
latent ambiguity in, 140.
fraudulent insertion of, when it creates a trust,
147.
of child, purchase in, 152.
of members of firm, proof of, 207.
nominal partner receiving only compensation
for, 208.
partnership as authority for business done in
firm, 214.
credit to partnership from transaction being in
firm, ill5.
signing contract self " & Co.," 215.
charging firm, on contract in partner's individ-
ual, 2*6.
GENERAL INDEX.
8G5
NAME Continued.
private dealing by partner In, not within scope
of business, 222.
change of firm, ns notice of dissolution, 223, 224.
on negotiable paper, reimbursement in inverse
order of, 257.
liability of one permitting nse of his, 300.
of buyer nt auction sale, correction of, 328.
on sign board, card, etc., 5!)1, 774, 777.
NATIONAL BANK. (See BANK.)
NATIONALITY, national character and domi-
cile, 102.
naturalization, 102.
NATURAL manifestations of pains, 599.
NATURALIZATION, to show national character
and domicile, 102.
as evidence of change of domicile, 106.
NECESSARIES, purchased by wife., 177.
action against husband for, 178.
how proved, 178.
defenses to action for, 178.
action against married woman for, 185.
against infant, 796.
NK< NATIVE evidence, 756.
NEGLIGENCE, actions for, 582, etc.
witnesses' opinions, 586.
notice of defect, 591.
request, 591.
who is contractor, 592.
who is servant, 592.
employment of unfit servant, 593.
common employment, 592.
condition of person or thing injured in actions
for, 594.
Buffering in actions for, 598.
impaired powers, 598.
opinions of witnesses, 600.
/ burden of proof as to contributory, 594.
of corporation books to show precautions, 47.
of secretary of corporation in not making entry,
52.
in filing report of corporation, 770.
of husband as to wife's property, 169.
to charge partner with assets, 229.
impliea promise to indemnify for money paid
for, 258.
in making mistaken payment, 269.
in discovering forgery of check, 278.
in taking transfer of negotiable paper, 451.
in defense of action for services, 373.
of attorney, 378.
not proved by ill success, 378.
gross negligence, how proved, 557.
special contract to exempt, 574.
in signing contract, 443.
of bailee, 353, 555, 556.
of clerk in bank, 558.
of carrier, 571.
of passenger carrier, 576.
of telegraph company, 604.
of sheriff, 606.
NEGOTIABLE PAPER, actions on, 3S7-186.
NEGOTIATIONS adniissable in interpretation of
contract, 364.
evidence varying terms of writing, 525.
NEW PROM IsK lifter infant becomes of age, 796.
to rebut accord and satisfaction, S14.
to robot dfocturge, 821.
to rebut statute of limitations, 823.
conditional, S2I.
NEWSPAPERS, notice of, as to facts of family
history, id. %.
publication of notice of dissolution of partner-
ship in, 22 J.
publication, how proved. 376.
presumption that subscriber read advertisement,
450.
slip submitted with preliminary proofs, 490 n.
competent of raising inference of knowledge,
m.
price current in, as proof of market value, 309.
libel in, 663.
NOISE as a nuisance, f>12.
NON-ACCESS, knowledge of witness, 743.
NO N - 1 ) K 1. 1 V !: I ; V by carrier, 570.
of package, 580.
55
NON-NEGOTIABLE NOTES, action on, 457.
NON-PAYMENT, when to be alleged and proved,
331.
proved by possession of note, 416.
of mortgage, 720.
NON-USER, when incompetent as to corporate
existence, 31.
NORTHAMPTON TABLES, 602, 724 n.
NOTARIAL CERTIFICATE, 424, etc.
NOTARY, diligence of, and inquiry, 432.
presumption in favor of certificate and official
acts, 425.
NOTE. (See BILLS, NOTES and CHECKS.)
NOTE OF PROTEST, 425, etc.
NOTICE, or.-il and written, 706.
under statute, 772.
to charge purchaser of lands, 716.
to charge purchaser of chose in action, 8.
to show knowledge of assignor, 11.
to produce paper in hands of assignor, 14.
of withdrawal of member from association, 16.
of meetings of corporation, 24, 38 n., 39 n.
of limits of officers' authority in by laws, 41 n.
to corporation, how proved, 45.
to officers and agents, 45.
to public officer, 196.
authentication of corporate record produced on,
49 n.
for proof of copies of books of foreign corpora-
tion, 50.
of contents of official report received and " ac-
cepted," 51.
to produce books, etc., of corporation, 51.
to executors and administrators, 55 n.
to parties in interest in probate proceedings, 57.
to produce letters of administration or probate
of will, 58.
of will, to widow, 157.
to husband or wife, to bind the other, 167.
not to sell to wife, effect of, 178.
admission of service of, by one of two owners,
187 n.
to one of two joint obligors, 190.
of dissolution of firm, 207.
burden of proving. 222.
mode of proving, 223.
evidence under general issne, without, 201.
of lack of authority to do business for firm, 214.
of dissent of partner, 217.
of matter wittoin scope of partnership business,
219.
to partner after dissolution, 220.
of scope of limited partnership business, 221.
of title of firm to premises mortgaged in name
of one partner, 222 n.
of withdrawal of dormant partner, 222, 223.
to trustee before bringing suit, 234.
by trustee to ceatul one trust for leave to com-
promise claim, 235.
of infirmity of negotiable paper. 449.
to transferee of negotiable paper, 450.
to charge indorscr, etc. ,430.
of non-payment of check, 244. 804.
to produce negotiable paper, 390.
of not being answerable for work on ship. 2!52 n.
of non-payment, in action for money paid. -j.x.
of bringing of suit, to one primarily liable, 2f>2 ;'.
before payment, to sustain action for money
paid, 2"65.
in action for money received, 281.
by telegram, primariness of company's tran-
script to show, 291.
to agent, evidence against principal, 783.
by principal, of repudiation of aueut's act, 263.
of termination of atrency. 300. 333.
on bill-head restricting claims for deficiencies,
805.
option in contract, exercised by parol, 314.
to terminate contract, 384.
to produce, when action is, 377.
to produce, to admit parol of indorsements of
payment*. 809.
excuse f..r omission, not provable under aliegar
lion of notice. 12:5. ! 5.
may be denied generally by witness, 431.
in writing, proved by parol, 432, 706.
866
GENERAL INDEX.
NOTICE Continued.
extrinsic evidence to supply imperfection, 432.
it mil necessary, Uccd not be proved, though
alleged. 467.
to insurance agent, 480, etc.
of loss in insurance, 4!H).
to quit, under lease, 627, 706.
pf action, without service, 547.
to restrict currier's contract, 574.
of carrier's delivery, 577.
to carrier, from appearance of articles, 579.
of defect, in actions for negligence, 5^1.
of dangerous character of animals, 645.
of trust, in securiiies, 628.
of suretyship, to creditor, 819.
to abate nuisance. <>I3.
for cause for forfeiture, 783.
of defence in patent case, 762-765.
NOTORIETY, as evidence oi intemperate habit,
778.
as evidence of liquor trade, 779.
NOVELTY of invention, 756.
NUISANCE, actions for, 640, etc.
former adjudication, 643.
damages in actions for, 643.
notice and request to abate, 643.
notice to municipal officer, 45 n.
"NULTIEL CORPORATION," proof of corpo-
rate existence under, 18.
OATH as condition of holding lands, 103.
of public oflicer, how proved, 194.
competency of public officer's uot having taken,
197.
euppletory, of books of firm, 205.
and bond of receiver, when presumed, 231 n.
of arbitrator, 466.
OBJECTION to testimony against executor or
administrator, when to be made, 65. (See
also OFFEB and TRIAL.)
OBSTRUCTION of highways, 773.
OCCUPATION of real property, action for, 351.
In action for use and occupation, 353.
declarations as to, 711.
OFFER of evidence, how made, 13.
against executor or administrator, what to
show, 66 n.
of reward, 383.
to perform, 313.
to deliver goods, 314.
in action for non-acceptance, 337.
of buyer to pay, when excused, 338. (See also
TRIAL.)
OFFICE, title to In quo warranto, 749.
OFFICERS, delegated powers of, 32.
appointment of, 51.
ratification of acts of, under allegation of au-
thority, 32.
ratification by, how proved, 43.
acts of, in course of business, 32.
allegation of contract made by president and
directors, 32 n.
impeachment of power of, 82.
presumption of authority or ratification of parol
contract of, 34.
testimony of, to show authority, 43.
authority of, when not presumed, 34.
implied In title of, 48.
implied scope of, 41.
to make sale out of course of business, 35.
to cancel mortgage, without consideration, 35.
of minutes to show, 48.
when called for by subpoena duces tecurn, 51.
when by notice to produce, 51.
of corporation, appointment of, 40.
general presumptions as to conduct, 83.
authority of, 40.
to execute power of attorney, 35.
to draw bills, 41 n.
power to direct suit brought, 43, 43.
to convey, 42.
action for compensation, 880.
when corporation liable for wrongs by, 88.
knowledge of, not binding on municipal cor-
poration, 45 n.
books of municipal corporations as to election
OFFICERS Continued.
notice to, when to corporation, 45.
corporate record, for or against, 4<i.
entries by, in discharge of duty, 53.
authentication of corporate record by, 49.
copy of corporate record, certified by, 50.
signature Of. to corporate minutes, 49.
certificate of, to vote of corporation, 50 n.
to corporation, when competent against latter,
51.
when need not be called before secondary evi-
dence against corporation, 51.
questioned as to iiou-record of assent of cor-
poration, 52.
sense of vote as understood by, 52.
declarations of, as to meaning of vote, 52.
signature of, to contract, 35.
signing deed, though to " attest," when not
subscribing witness, 36.
want of authority of, to sign and seal deed, 86.
false representations in correspondence of, 38.
of what, fact that one is acting, is prima facie,
41 n.
de jure, necessity of ouster by state, 41.
de facto, proof of, 193, 196.
solemnization of marriage before, 80 n.
notice of limits of authority in by-laws, 41 n.
admissions and declarations of, 44.
when part of res gestae, 44.
accounts and entries by, 52, 53.
of bank, declarations of, as to accounts, 279.
actions by and against public, 193.
municipality to recover money wrongfully
borrowed of, 274 n.
against for advertising, 376.
liability for services, 361.
recovery by, for money paid on process, 249 n.
action by and against sheriffs, constables and
marshals, 605.
justifying levy, 631.
competency to testify to handwriting, 395.
decision of public, as a former adjudication, 829.
executor and administrator, not public officer,
55.
of society, testimony of, as to its common desig-
nation, 143.
of charitable society, one's having been, to show
intent as to charitable gift, 142. (See also
PUBLIC OFFICEU.)
OFFICIAL ACTS, presumption in support of, 543,
702, 704. etc.
as to regularity, 546.
in case of notary, 425.
bonds, 513, 516.
character, three grades of proof of, 193.
under general allegation that one is an officer,
196.
parol to show, notwithstanding record, 198.
6y proof of general reputation, 201 n.
of certifying officer. 536 544.
certificate, not conclusive in quo warranto, 749,
750.
certificate of acknowledgment or proof, 175, 694.
registry of weather, 4!M.
seal to notarial certificate, 428.
surveyors', 699.
OFF-SET of debt against agent's indebtedness,
not payment, 800.
"ON ARRIVAL," 518.
OPINION, processes by which witness arrives at,
307.
not equivalent to warranty, 340.
proved by testimony of party, 620.
of experts, when controlling, 494.
of non-expert, elements in weight of, 118 n.
as to existence of partnership. 210.
as to parties being partners, 204.
as to character of parties rendering meretricious
connection improbable, 84.
when incompetent to show loan, 240.
as to which of several credit was given, 241.
as to language amounting to duress, incompe-
tent, 271.
of agent, as to necessity of exercise of a dis-
cretion, 281.
as to sale, 287.
GENERAL INDEX.
867
OPINION Continued.
as to usage, not as to law, 486.
as to usage of trade, 2i>~.
as to quality of article, 304, 310, 347.
as to value, 310, 598.
of life estate, 7:M.
of attorney's services, 378.
of uervices of broker. 380.
in actions between vendor and purchaser, 728.
as to hire of chattels, 3.">(>. '
to construction of contract as to performance,
371.
on value of advertising, 376.
as to likeness, 377.
as to compensation of writer, 377.
as to profit of voyage, 384.
as to competency of crew, 496.
as to seaworthiness, 498.
as to rating of ship, 498.
as to handwriting, 393, 396, etc.
in signature, 501.
to will, 113.
as to seal, 506.
as to damages, 511.
as to waiver, 4!H.
in insurance case, 493.
in actions for negligence, 586, 600.
as to waste, 534.
as to care and diligence, 561.
as to injury, 594.
as to cause of injnry, 571.
as to injury to passenger, 580.
as to solvency, 617.
as to title, 727.
as to sanity, 734.
as to mental soundness of testator, 116.
by expert, 116.
to prove inadequate consideration, 738.
of public officer as to violation of law, 772 n.
as to injury by assault, 649.
as to adultery, 745.
respecting age of person, 87.
not proof of necessaries, 178.
OPPORTUNITY, circumstantial evidence of adul-
tery, 744.
ORAL admissions of assignor, 12.
of incorporation, 28.
of payee, 258.
of debtor to show part payment, 824.
of married woman, 182.
to convey, parol declarations to show, 158.
varying mortgage, 721.
agreement on matter as to which writing is si-
lent, 205.
for accounting and settlement by partners,
230.
appointment of public officer, 194.
assurance to buyer as a warranty, 341.
authority of officer or agent of corporation, 43.
consent of husband to wife's conveyance, 174.
contracts by agents of corporation, 34. (See also
STATUTE OP FRAUDS.)
declarations not amounting to estoppel, 13.
of deceased rebutted by counter written decla-
rations, 70 .
as hearsay as to facts of pedigree, 90.
of facts of family history, primariuess of, 96.
of declarations of family, 93.
no part of testamentary acts, 129.
of ancestor as to title, 158, 711.
defeasance of debt, 722.
demand, when competent, 266.
evidence as to mode of payment, 9 n.
of title of assignee in bankruptcy, 9.
to impeach assignee's title, 8.
to vary assignments, 7.
to vary schedules in assignment, 6.
not to vary unsealed contract of corporation,
84.
of authority of agent of corporation to execute
deed. :i
of presentation to and approval by corporate
board of bond or deed, 37.
where corporate contract is ambiguous as to
party, 3?.
of acts of private corporations, 39.
ORAL Continued.
of existence and membership of voluntary as-
sociations, 15.
of filing of certificate of incorporation, 25,
of special contract completed, ;>.
to vary written contract for services, 364-368.
as to purchase money, 385.
of promise to pay incnmbrances, 385,
to explain promise to third person to pay plain-
tiff, 38K.
to show whether name was signature or not,
391.
to vary proof of contents of lost instrument,
391. '
to show real party to negotiable paper, 402.
as to consideration of negotiable paper, 441.
as varying negotiable paper, 409.
to vary indorsement, 414.
to explain irregular indorsement, 437.
to explain acceptance, 419.
to vary place of demand, 424.
to qualify certificate of protest, 426.
to vary bank check, 453.
to explain non-negotiable paper, 457.
to explain insurance notes, 456.
to explain preliminary agreement for insur-
ance, 477.
to explain application or policy, 479, etc.
to explain policy, 499, etc.
to vary policy, 483.
to show real party in interest in insurance
policy, 487.
to enow consideration for writing, 405.
to explain consideration, 741.
of notice given in writing, 432.
to explain written wniver, 436.
to show alteration, 407.
to show intended medium of payment, 410.
to show place of payment in written contract,
411.
to explain submission and award, 466-170.
to vary award, 468.
of guaranty, 471.
to show consideration of guaranty, 473.
to vary'guaranty, 473. etc.
to eke out contract under Statute of Frauds,
471.
that others should sign, 507.
to vary sealed instrument, 508.
to show mistake of fraud, 512.
to vary charter party, 517.
to vary lease, 524, etc.
to explain ambiguous designation in lease,
527.
to prove date and term of lease, 527.
to explain writing competent against stranger,
484.
to vary writing in actions against bailees,
etc., 553.
to vary writing in actions against agents, etc.,
553.
to explain instructions to carrier, 565.
to vary bill of lading or receipt, 573.
money receipt, 807.
to vary passage ticket, 581.
of misrepresentation, collateral to a writing,
619.
to explain deed, 6%, etc.
to vary deed, 691, etc.
of lost deed, 709.
to vary land patent, 705.
to explain record of former adjudication. S.H3.
to connect new promise with original debt.
824.
as to release, 818.
to vary mortgage. fii">.
of contract between vendor and purchaser,
725.
to explain contract between vendor and pur-
cuaser. 7','ti.
not admissible to contradict recognizances,
784.
in respect to ballot. 749.
to qualify patent, etc., 756, etc.
of plaintiff's title in action for specific per-
formance, 731.
868
GENERAL INDEX.
ORAL Continued.
partly performed, specific performance of, 730.
of contract in action for s peciflc performance,
730. (See also) PUIMARINESS.
representations us an estoppel from proving
usury, 702.
ORDEK, in favor of third person, as proof of
payment, 259.
assumption of, originally given by a third per-
son, 802.
when proof of agreement of sale. 291.
for delivery of goods, when evidence of deliv-
ery, 315.
for goods in action for non-delivery, 337.
of court, and dfl pursuant to it, 701.
as former adjudication. 831.
ORDINANCE, illegality of, in proceedings , to
enforce, 20.
violation of, as evidence of negligence, 590.
of municipal corporations, how proved, 770.
ORIGINAL INVENTOR, patentee the, 757.
OUSTER in ejectment, 714.
OVERSEERS of poor, 774.
OVERVALUATION in insurance, 494.
OWNER, executors and administrators, not, 54.
declarations of former. (See ADMISSIONS AND
DECLARATIONS.)
OWNERSHIP, how proved, 590.
general repute as to, in proof of title, 159 n.
proved by leasing, 779.
when joint, equivalent to partnership, 210.
presumptive evidence of possession, 425.
of thing insured, 487.
acts of, by buyer, to show delivery, 819.
of thing causing injury, 590.
of thing injured by negligence, 594.
of thing converted, 623.
of real property in trespass, 634.
of plaintiff in replevin, 688.
of wife's property, 780.
of patent, 762.
PACKAGE, what is, 579.
actions for loss of, 577, etc.
PAIN, how proved, 599, 678.
PARAMOUNT title, 521.
PARAMOUR as a witness, 747. ,
PARENT AND CHILD, emancipation of child,
64 n.
living together as, proof of issue, 87.
declaration of one against the other, 589.
testimony and declarations of parents as to
legitimacy of child, 89.
citizenship of parent, 102.
domicile of parent, that of minor child, 105.
as to ademption of legacy to child, 148.
presumption as to advancement to child, 150.
deed from parent to child, as an advancement,
152.
purchase by parent in name of child, to show
an advancement, 152.
money given to son to purchase a farm, when
an advancement, 153.
implied promise to pay for maintenance, 379.
services between, 359.
action for wages, 382.
action for enticing away child from service, 681.
PART PAYMENT, as an admission of demand
and notice, 434.
in full, 807.
to suspend statute of limitations, 824.
PARTIAL FAILURE admissible under allega-
tion of total, 442,
PARTIES, contract of corporation ambiguous as
to, 37.
interested, against estate of deceased, 61.
excluded, against executors and administrators,
62.
when " party " includes one in interest, 63 n.
what persons protected by exclusion of inter-
ested, 64.
to personal transaction or communication, 68.
to identify shop books, 69 n.
objecting to transaction with deceased or
lunatic, 69.
contradiction by, of transactions with 'deceased,
70 n.
PARTIES Continued.
rule in U. 8. Courts as to exclusion of transac-
tions with deceased, 70.
a witness of marriage, fcO.
right to rebut evidence of other, 132.
in joint or common interest or liability, 186.
joint liability, 187.
admissions a'nd declarations of, 188.
declarations of conspirators, 191,
non-joinder of co-partners as plaint iff c, 205.
non-joinder of partners as, in abatement, 221.
to joint adventure, power of one to borrow for
all, 242.
admissibility of account books of, 245.
parol to show suretyship, 254, 818.
to explain relation of, 263.
to show relation of principal and agent be-
tween, 280.
to show true party, 509.
to show real party to contract, 274.
to show real party in interest, 295.
shop books and other accounts of, 322.
may testify to opinion in his own behalf, 369,
8?7.
incapacity of, must be alleged, 440.
plaintiff, not real holder or owner, 443, 786.
real party in interest in insurance policy, 487.
to show real parties in a lease, 353, 525.
authority of to recover on lease, 525.
identjty of, in actions on judgment, 538, 539.
identity of, in deed, 695.
may testify to himself, 599.
may be examined as to fraud and deceit, 620.
as to infringing trade mark, 753.
incapacity of, in abatement, 786.
who affected by former adjudication, 829.
testimony of, in divorce, 747.
PARTITION, actions of, 723.
PARTNERS, actions by, 203.
allegation of partnership, 203.
proof of partnership, 204.
parol evidence to vary contract, 204.
Buppletory oath of, to entries in firm books,
205.
declaration by one thnt he is, 187.
declarations of, in favor of firm, 205.
defendant's evidence, 205.
matter in abatement, 205.
actions against, 206.
allegation of partnership, 206.
best and secondary evidence, 207.
signing his name " & Co.," to contract, 207 n,
holding out to the public as, 208.
representations to particular creditor as, 209.
admissions and declarations to show, 209.
dormant and secret, 210.
evidence in respect to date of charge, 212.
assumption of debts by incoming, 213.
variance as to number of, 213.
presumption of, authority of, 214.
ratification of act of, 217.
deceit or fraud by one, 217.
books by, within scope of business, 217.
admissions and declarations of, 218.
rules peculiar to surviving partners, 224.
actions between, 226.
on account stated, 460.
order of profs, 227.
books, &c., of partnership as evidence, 229.
voluntary settlement by, 230.
promise by, after dissolution insufficient against
others, 252.
payment by. presumed with firm money, 264.
accounting for money received after withdrawal
of one, 280.
entries made by, how proved, 324, 325.
receipt of payment by one, 800.
payment by obligation of, 806.
note to, by creditor after dissolution, 818.
knowledge of one, evidence against another,
772.
each other's agents for purpose of admissions,
189 n. (See also PARTNERSHIP.)
PARTNERSHIP, partner as witness, 64 n.
action by partners, allegation of, 203.
proof of, 204.
GENERAL INDEX.
869
PARTNERSHIP- Continued.
parol to vary contract sued on, 204.
firu books as evidence in favor of firm, 205.
declarations of partners, 205.
defendant's evidence, 205.
matter in abatement, 20">.
actions against partners, 206.
allegation of, in, 2UG.
proof of, 206.
best and secondary evidence, 207.
pai'ol to prove existence of, before articles of,
20?.
indirect evidence of, 207.
holding out to the public as evidence of, 208.
admissions and declarations to prove, 209.
hearsay, 210.
defendants' evidence to disprove, 220.
matter in abatement, 221.
actions by survivor, 224.
actions against survivor, 225.
actions against representatives of deceased part-
ner, 225.
actions between partners, 226.
allegation andooiden of proof of, 226.
order of proof in, 227.
firm or individual transactions, 228.
joint purchase or ownership when equivalent
to, 210.
dormant and secret partners, 210.
community of profits ; the common law rule,
211. "
the English rule, 212.
cases in which participation in profits no proof
of, 211 ;t, 212 n.
evidence in respect to date, 212.
assumption of debts by incoming partner, 213.
variance as to number of partners, 213.
presumption of partner's authority, 214.
express authority, 214.
scope of business, 214.
question to whom credit was given, 215.
parol to charge flrm on individual signature, 216.
when bound by scaled instrument as a simple
contract, 216.
ratification of act of partner, 217.
deceit or fraud by one partner, 217.
torts by one partner within scope of business,
217.
admissions and declarations of partners, 218.
acts, admissions, etc., after dissolution, 218.
notice, tender and demand, 219.
proving limited, 220.
known want of authority, 222.
transactions in the interest of one partner, 222.
burden of proving dissolution and notice, 222.
mode of proving dissolution, 223.
rules peculiar to surviving partners, 224
title to real property, 228.
charging member with assets. 229.
evidence to credit member with payments or
share, 229.
books, etc., as evidence, 229.
voluntary settlement by partners, 230.
when to be shown in action for money received,
275.
signature, how proved, 400.
presumptions as to consideration of negotiable
paper, 400.
proved by production of flrm contract, 401.
fraud by, 615. (See also PAUTNEUS.)
PASS for passenger, 578.
PASS BOOK, competency of, 326.
us an account, stated. 459.
PASSENGER, action for injury to, 577, etc.
list, 5TH.
PATENT, power of corporation to acquire, 33 n.
actions foi- infringement, 755, etc.
for lan.1,705.
PAYMENT distinguished from " taking up," 449,
430.
E leading, 446, 798.
urden i>f proof, 446, 798.
in case of collateral security, 9.
oral evidence to prove, 258.
as to agreed mode of, 9 n.
res gcthE, 799.
PAYMENT- Continued.
by crediting in pass-book, 13.
by one co-representative to revive debt, 59 n.
to or by deceased, 67 /.
to ancestor, 69.
of insurance of ship, to prove death, 74.
of legacy during testator's life, 14!i.
acknowledgment of, in deed, not an advance
ment, 152.
by parent for conveyance to child, to show an
advancement, 153.
by delivery of money or chattels to child by
parent, 154.
by husband to wife, 172.
wife's admissions of, for her services, 176.
to charge separate estaie of wife, 184.
partner not agent to remove statute of limita-
tions, 189 n.
evidence to credit partner with, 229.
to establish resulting trust, 238.
by delivery of money, 239, 243, 799.
of money to use of defendant, 249.
intent of, to show to whom credit was givem,
241.
by check, 244, 259, 803.
by note, etc., of debtor or third person, 804.
by obligation of joint debtor, 806.
by delivery of property, 264, 806.
account books to show, 245.
to sustain action for money paid, 250.
to sustain promise to reimburse, 251.
of another's debt, 252.
by mistake, reimbursement for, 254 n.
by surety under fixed legal liability, 256.
in action for money paid, 258.
order in favor of third person, 259.
receipt or surrender of evidence of debt to show,
260, 800, etc.
medium of, 263, 277, 799.
in commercial paper, 410,803, etc.
source of the fund paid, 264.
object and application of, 265, 811.
illegality of, 266.
by mistake, what to be proved, 268.
under duress, 270.
as evidence of receipt of money, 275.
to agent, 276, 800.
to avoid statute of frauds, 292.
memorandum of sale as to rnteof, 293.
different from that acknowledged, 295.
on account, eflect of as to price of goods, 806.
time for, 312.
how proved, 409.
place of intended payment for commercial pa-
per, 4!1.
and delivery, when presumed concurrent, 313.
stipulation for " cash on bill f lading," 317 n.
to satisfy statute of frauds, 319.
draft as demand of, 331.
as to receipt of negotiable pnper in, 331.
of counterclaims proved from defendant's book,
336.
readiness to make, 338.
by aji-nt to principal, 339.
of negotiable paper, warranty of no knowledge
of, 310.
of compensation for services, 375.
of child's wages to child, 3M2.
in part, evidence of assent, to alteration. 408.
of part as an accord and satisfaction, si i.
to take debt out of statute of limiiations, 824.
indorsement acknowledging part, 825.
indorsement for purposes of, 414.
as evidences of, 415.
possession of instrument and indorsements to
show, 809.
presumptions arising from possession of secur-
ity, 416 n., 801.
by new note, 44(i, b04,
of postage, 4.'fci.
production of instrument. 446
of insurance prrinhini. isi.
of rent in actions on ItNisr, .Vd.
of previous installments of rent presumed, 533,
809.
of judgment proved by parol, 539.
870
GENERAL INDEX.
PAYMENT - Continued.
of taxes, 704.
&a evidence of obligation or title, 723.
of consideration, disproof of, 7KS n.
guaranty of, no estoppel from proving usury, 792.
assuming, as estoppel from proving usury, 792.
of bonus, to show usury, 793.
autliority to pay, 800.
to rece'ive, from possession of security ,&c., 801.
of agtnt to receive, 800.
to assignor, 802.
to executors, trustees, &c., 802.
to sheriff, 802.
by mail, 803.
of collateral, 806.
part as payment in full, 807.
presumption of, from subsequent transactions,
809.
from lapse of time, 731, 812.
circumstantial and corroborative evidence of,
810.
application by debtor, 810.
by creditor, 811.
by the court, 811.
receipt to show, 806.
may be proved without producing receipt, 742.
of price in action for specific performance, 730.
admissions, entries and memoranda to show,
808.
PEDIGREE, declarations as to facts of, 87.
direct testimony to age, when a fact of, 87.
relationship by marriage, dissolved by death,
91 n.
testimony competent within rule as to, 89.
hearsay as to facts of, 90.
grounds of receiving and weight of, 90.
what within rule of, 90.
relationship dissolved by death, 91 n.
what connection with family to admit declara-
tions as to, 92.
registry of facts of, 97.
judicial records showing facts of, 100.
competency of judgments, and verdicts as to
facts of, 100. (See also FAMILY HISTOBT:)
PENALTY or liquidated damages, 511.
actions for, 770.
PENDENCY OF ACTION as notice, 717.
as a defense, 786.
PERFORM ANCE of contract for services, 370.
non-performance and excuse, noi admissible,
511.
of charter party, actions for, 518.
PERIL, insured againsi, 488, eic.
in case of carrier's loss, 5b9.
affecting testimony of witness, 598.
PERJURY, need not be proved beyond a reason-
able doubt, 495, 671.
PERSON, identity of, when presumed, 398.
injured, condition of, 594. (And see IDENTITY. 1
PERSONAL PROPERTY, actions for trespass
to, 629. etc.
to recover possession of, 688, etc.
PHOTOGRAPHER, as witness to handwriting,
398.
PHOTOGRAPHS, as evidence of identity of per-
son, 102.
of signatures to will, to aid experts, 113.
as evidence of handwriting, 3y8.
PHYSICAL injury, 598.
PHYSICIAN incompetent to prove services to
deceased, 69.
testimony or account of, as evidence of birth, 87.
when competent as to mental capacity of testa-
tor, 117 n.
to show causes of separation, 179.
action for compensation, 358, 382.
privileged communications to, 501, 744.
testimony to injuries, 600.
PLACE in determining market value, 308.
of publication of libel, 663.
of directing notice of protest, 431.
PLACE-HIKE, 562.
PLEA of guilty, 746.
PLEADING, particular allegation does not nullify
general allegation, 374.
performance of condition precedent, 423.
PLEADING Continued.
recital, a sufficient allegation, 514.
uncertainty as to ground of action, 559.
counterclaim, 835.
PLEDGE of negotiable paper, 444, 448 noti
held by broker, 558.
action against pledgee, 561.
POLICY of insurance, action on. 478, etc.
POLL LIST, 750.
POSSESSION, how proved, 590, 623.
of evidence of debt, 5.
under ancient will, 128.
by parent of property purchased in name of
child, 153 n.
by donee of money referred to in will, 160.
of ancestor, 156, 157.
declarations of ancestor in possession, 157, 711.
under a will, 159.
joint interest in, 159.
by husband or wife, 168. 169, 172.
change of, between husband and wife. 172.
husband's intent to reduce wife's biooerty to,
173, 176.
by husband of instrument executed by wife, 182.
declaration when admissible from joint, 189.
of mortgaged premises by line, 222 n.
action for, by surviving partner, Ji25.
by receiver without title, fe31.
of money by trustees, 235.
by buyer as showing acceptance of terms cr
sale, 288.
proved by acts and declarations, 355.
of evidence in action for work on the property,
360.
taking possession not admission of perform-
ance, 371.
of negotiable paper, 389.
as proof of delivery, 404.
by defendant, of the instrument sued on, 419.
presumptive evidence of control, 425.
as evidence of payment, 446.
title, presumptive! evidence of, 425.
as evidence of title, 623, 692.
of notice of title, 717.
of title to ship, 4S7.
of sealed instrument, evidence of delivery, 507.
actions on covenants for quiet, 520.
not essential in actions on lease, 528.
of personal properly in case of trespass, 629.
when badge of fraud, 737.
of specific personal property, actions to recover,
688, etc.
of real property, actions to recover, 691.
in actions tor trespass, 635.
as evidence of title in replevin, 689.
characterized by admissions and declarations,
711.
by defendant in ejectment, 714.
of security to show authority to receive pay-
ment, 801.
change of, in action for specific performance,
730.
deed void for adverse, 710.
adverse, in ejectment, 715.
continued, evidence of fraud, 741.
of plaintiff, in cases of nuisance, 640.
POSSIBILITY of issue extinct, 724 n.
POSTAGE, presumed paid. 433.
POSTING foreclosure advertisements, 701.
of ordinance, 771.
of libel, 663.
POSTMAN, presumption as to delivery of letters,
POSTMARK, of what prima facie evidence, 94,
291.
POST OFFICE, placing letter in, as evidence of
its receipt. 291.
PORTSMOUTH TABLES, 724 n.
POWER, evidence as to execution of, 150.
of agent by vote or resolution, 41.
authority of president of corporation to exe>
cute, 35.
by married woman, 174 n.
to execute deed, 696.
not necessary to produce, 478 n.
of clerk acting as officer, 43.
GENERAL INDEX.
871
POWER Continued.
of executor and administrator, how derived, 54.
of " financial agent," 43.
of husband as agent of wife, 182.
of married woman to make contract, 181.
to till blank in deed, unacknowledged, 175 n.
of municipality to issue bonds, 452.
of officers to direct suit brought, 42, 43.
impeachment of, 32.
of partner to acknowledge debt barred by the
statute, 219 n.
of president, secretary and cashier to convey, 42.
of public officer to sustain private action, 199.
tort by partner in exercise of implied, 217. (And
nee AUTHORITY.)
PRACTICAL CONSTRUCTION of contract, 509.
or lease, 526.
PREGNANCY, preceding marriage, P9.
PRELIMINARY agreement for insurance, 476.
proofs in insurance, 489, etc.
PREMISES, how identified in actions on lease,
527.
in deed, 697-009.
destruction of leased, 532.
PREMIUM notes to insurance company, 455.
PREPONDERANCE of evidence, rule of, in civil
cases, 495, 071.
PRESCRIPTIVE right must be pleaded, 638.
as against nuisance, 643.
PRESENTMENT, proved by acceptance, 420.
PRESIDENT, of corporation, compensation of,
381.
PRESUMPTION, that occupation continued, 353.
of continuation of occupation, 353.
of continuance of agency, 482.
of probable continuance of injury, 600.
of continuance of character, 674.
of contjnuance of pendency of action, 786.
of continuation of adultery, 744.
of continuance of corporation, 750.
of identity of person, 398.
relative to commercial paper, 398, etc.
in aid of official acts of notary, 425.
of innocence in civil cases, 495, 671.
of payment of previous installments, 533.
in favor of jurisdiction on judgment of sister
state, 544.
of discharge of legal duty, 556.
of grant of easement. 640.
of regularity of official acts, 702.
of regularity in tax title, 7(>4.
of payment from lapse of time, 812.
as to account srated, 815.
(See more fully the particular subjects of pre-
sumption.)
PRIMARINESS, of assignment in writing, 6.
in bankruptcy, 9.
to purchaser from assignee in bankruptcy, 9.
for benefit of creditors, 10.
of record of organization of bank, 22.
of original Certificate incorporation, 25.
of unsealed contract of corporation, 34.
of certified copy of resolution authorizing exe-
cution of corporate deed, 3(i.
of evidence of keeper of record as to non-record
of fact. 39.
of original book or paper containing by-laws, 40.
of statutory record of corporation, 46.
of record of corporate proceedings, 47 n., 48, 50.
of letters testamentary and of administration,
56.
of decree of probate or certified copy of let-
ters, 58.
of probate of domestic wills. 109.
of will a* to lauds and probate as to person-
alty, 109 n.
of foreign will in question of title, 128.
of ancient will, 128.
of cohabitation and repute, as evidence of mar-
riage, si.
of registers as to facts of family history, 99.
of officer's certificate of acknowledgment by
married woniim, 174.
of written appointment of public officer, 194.
of decree of divorce, 179.
of record of legal proceedings, 558.
| PRIMARINESS Continued.
of record to prove judgment, 802.
of process and record of judgment or decree,
202.
of legal process, 554, 606.
of execution to show issue and return, 736.
of record of former adjudication. 831.
of letter containing demand on joint, debtor, 265.
of duplicate original letter, 2!;ii.
of account of a party offered in his own favor,
322.
of book of original entries in party's accounts,
323.
of account kept by a party, in his own favor, 325.
of copy of notary's certificate, 428.
of memorandum of account, 461.
of publication, 664.
of special statutory proceedings, 701.
of receipts, 806.
of receipt for property in payment, 799.
of writing referred to in agreement to pay, 243.
of written agreement to pay money loane'd, 243.
of principal's admission that money was prop-
erly paid, 800.
of bank-book or pass-book, 245.
of receipt given by payee, for payment, 261 n.
of written contract, 272, 287.
of correspondence embodying contract, 292.
of letters or telegrams containing agreement of
sale. 290.
of original message delivered to telegraph
company, 290.
of company's transcript of telegram to show no-
tice to receiver, 291.
of municipal ordinance, 770.
of passenger list, 578.
of articles of partnership, 207, 226. (See also
ORAL EVIDKNCE.)
primary evidence of tenancy, 352.
of negotiable paper, 390.
of signature, 393.
of pendency of action, 786.
PRINCIPAL AND AGENT, actions against
agents, 557. etc.
(And see AGENT and AGENCY.)
PRINCIPAL AND SURETY, defendant a surety,
445, 813.
declarations and admissions, 513.
PRINT on ballot controlled by writing, 750.
PRINTED description of invention, 763.
PRIOR knowledge of invention, 703.
PRIVILEGE. (See WITNESS.)
PRIVILEGED COMMUNICATION, when attor-
ney who drew articles of copartnership,
privileged, 226 n.
in libel. 667, 670.
PRIVITY between deceased and disqualified wit-
ness, 68.
of contract, in action for money received, 275.
in case of negligence, r>s:!.
in action for use and occupation, 351.
effect of former adjudication on parties in, 830.
PROBABLE CAUSE in malicious prosecution,
653,655.
for seizure and forfeiture, 783.
PROBABLE DURATION of life. 002.
PROBATE decree, an adjudication, 58 ri.
how far conclusive, 110.
domestic will proved by producing, 109.
to prove foreign will, 128.
letters as source of power, 54.
of will, when to be produced, 56.
notice to produce. :.s.
paper imperfectly showing, when competent,
58 n.
weight of admission of oxecntor before, 59 n.
proceeding, exclusion of interested witness or
party, lit ;/.
of ancient instrument, 94.
decree of, when proof of facts of family his-
tory. 100.
PROCESS as cause of action by public officer,
197.
allegation of collection of money on, 198.
neglect of officer to execute, 199.
as a protection to a public officer, 201.
872
GENERAL INDEX.
PROCESS Contin ued.
primary evidence. .Vil.
11 n lawful levy of, (530.
in fNe imprisonment, 657.
PRODUCTION of special contract In action for
services, 862.
of negotiable paper sued on, 389.
of negotiable instrument on making demand,
4-25.
of account stated, 460.
PROFITS, participation in, as proof of partner-
ship, 210. ail. ail n., 212 n.
community of, the common law rule, 211, 211 n.,
212 n.
the English rule, 212.
showing partnership, 220.
loan with share in, 2~M.
apportioning in final accounts between partners,
of continuous partnership enterprise, 229.
recovered as money received, 280.
mesne, in ejectment, 714.
probable profits of voyage, 884.
proved without producing account, 384.
PROMISE to marry mistress, 82.
partner not agent to take out of statute by
189 n.
to pay indefinite share, not competent of part-
nership, 211 r>.
by partu* r after dissolution, 219.
to repay money lent, 239.
to pay, parol to vary written, 243.
to reimburse, 249, 250, 251.
to repay what defendant ought rather to have
paid, 253.
money paid nnder mistake, 270.
to indemnif y, parol to prove, 255.
implied to indemnify, 25(1.
parol, not contradicting legal effect of writing,
251.
to pay price of goods, allegation of, 285.
to pay current market rates, or fair value, 306.
to pay draft as proof of delivery of goods, 315.
" to settle," when equivalent to promise to pay,
327.
to pay in a contingency, 327.
to cure defect, in action for breach of warranty,
346.
to a third person to pay plaintiff, 386.
of the plaintiff to pay third person, 386.
to accept negotiable paper, 420.
to pay account stated, 459.
(And see NEW PROMISE.)
PROMISSORY NOTE, parol assignment of, 2.
(See BILLS, NOTES and CHECKS.)
PROMOTER of corporation, action for compen-
sation, 380.
PROMULGATION of ordinance, 771.
PROOF, or acknowledgment of deed, etc., 175. 694.
PROSKCUT1ON, actions for malicious, 652, etc.
how proved, 652.
PROSPECTUS of insurance co., 484.
PROSTITUTES as witnesses, 747.
.PROPERTY, evidence of user, 27.
revocation of will by change in testator's, 126.
different kinds of, to show intent of testator, 136.
intended in will, 143, 144.
ambiguity as to which of two parcels, 145.
of testator, condition of, 146 n.
situation of, 149.
condition of, to show intent, 150.
transfers of, between husband and wife, 164 n.
evidence of husband's title to, 108.
management of, by wife, 176.
of married woman, direct benefit to charge, 184.
given in payment of debt of another, value of,
264.
delivery of,1n action for money received, 277.
lack of, as proof to whom credit was given, 303.
value of, to show price agreed, 305.
actions for trespass to personal, 629, etc.
actions for trespass to real, 634, etc.
payment by delivery of, 806.
PROTEST against payment to show duress, 271.
statement of drawees' declarations inserted in,
421 n.
PROTEST Continued.
as evidence, 425.
of mariner, 500.
PROVISO in statute. 771.
PROVOCATION, actions for assault, 650.
in libel, 673.
PUBLIC OFFICER, actions by and againsL, 193
proof of title of, 193, 196.
legal title of, 194.
contract of, in official capacity, 194.
charging personally, 195.
acts oy part of board or body, 195.
demand and notice, 196.
effect of former judgments on, 196.
pleading by suing as, 196.
as defendant, 201.
cause of action against, 198.
de facto, proof of, 201.
three rules as to proof by, of being officer de
facto, 201 n.
process as supporting a cause of action, 197.
defendant, process as a protection to, 201.
return adduced in his own action, 197.
return as evidence against, 199.
action by, lor emoluments, 197.
actions against, 19ti.
plaintiff's pleading in actions against, 198.
plaintiff's proof of the otncial character, 198.
proof of official character in justification by.
201.
presumption of performance of duty by, 198.
public action for refusing to serve, 200.
liability for services, 361.
competent to testify to handwriting, 395.
decision of, as former adjudication, 829. (See
o&oOppicER; and SHKBIFFS.)
PUBLICATION in copyright case, 766.
. in foreclosure advertisement, 701.
of award, 467.
of libel, 662. 6C.3.
of notice, knowledge of witness, 376.
of summons, etc., 547.
proved by sale, 766.
PUBLIC USE of invention before patent, 764.
PURCHASE by married woman, in question of
title, 170.
by wife, when evidence of title in husband, 168.
liability of husband for, 177.
joint, when evidence of partnership, 210.
PURCHASE M< >NEY, action to recover, 385, 72.
PURCHASER, bona fltte, of land, 715.
PURPOSE of an act of trespass, 636.
QUALITY, extrinsic evidence to show, 303.
element in proof of value, 307.
opinions of witness as to, 310.
defects in, as defense in action on sale, 335.
warranty as to, 343.
what assertion of, sufficient for warranty, 340.
implied warranty as to, 343.
in action for breach of warranty, 346.
presumption of knowledge as to, 344.
QUANTITY, parol tcrexplain, 304.
of property offered in a lot at auction, 328.
memoranda refreshing memory as to, 321.
defects in, as defense in action on sale, 335.
warranty as to, 343.
of land. (See VENDOR and PURCHASER.)
QUANTUM MERUIT, for use and occupation,
354.
for hire of chattels, how proved, 356.
for service, how proved, 367.
QUIET POSSESSION, actions on covenants for,
520.
QUI TAM action, 770, etc.
QUO WARRANTO, actions of, 749
RAILROAD COMPANIES, action against, as
common carriers, 563, etc.
for negligence. (See NEGLIGENCE.)
designation of land, 638.
dress as indicating a brakeman, 41 n.
admissions of conductor, baggage master or
station agent, 44.
RATIFICATION of acts of officers or agents Tin-
der allegation of authority, 32.
effect of to show authority, 41.
when inferred, 42.
GENERAL INDEX.
873
RATIFICATION Continued.
of parol contracts of officers or agents of cor-
porations, 31.
of agent's acts, 560.
as proof of authority, 87.
when presumed, U!i!i.
by corporation or its officers, how proved, 43.
of contract by executors and administrators,
55 n.
by married/ woman, to charge separate estate.
185.
of concession by one partner, to bind another,
207, 208.
of unauthorized act done for firm, 214.
to render deed of partner good against firm, 216.
by partners after dissolution. 219.
by cesttd gue trust, of trustee's dealings with es-
tate, 236.
of previous transactions as proof of agent's au-
thority, x.'1-i.
to show authority of one joint owner to borrow
for all, 212.
of act of broker, 329.
of signature by admission, 392.
of alteration, uot proved by demand, 408.
of award, 467.
as to bailments, 560.
of contract made on Sunday, 791.
of usury, not presumed, 794.
to prove new promise after infant becomes of
age, 79H.
of compromise and composition of debt, 816.
of release by co-trustee, 817.
RATING of ship. 4U8.
KEADY AND WILLING, in contract of sale,
337.
In action for non-delivery, 338.
REAL PARTY IN INTEREST, 1, etc., 786.
iucoin potency of declarations of assignor, when
not, 12.
proof of incorporation of, 20.
parol to show, 295.
oral evidence to show in sealed instrument, 509.
plaintiff, though not so named in the contract,
298.
in insurance policy, 487.
in charter party, 517.
in lease. r,-j:>.
REAL PROPERTY, presumption of death from
absence, 75.
primariuess of probate of domestic will as to,
109.
presumptions as to intestacy, 109.
primariness of will as to, 10!) //.
decree of probate, how far conclusive as to, 110.
charging legacies on, 149.
condition of, on question of execution of power,
150.
advancement by deed of, 152.
transactions of husband and wife affecting, 164.
conveyed by husband and wife jointly. Kill.
management of, by wife, when separate busi-
ness, 176.
pirtnership in, 211 n.
parol to prove partnership in transactions in,
207.
title of partnership to, 228.
resulting trust in, 238.
agency for purchase of, 252 n.
implied covenants in contract for sale of, 727.
actions for trespass to. 634, eic.
possession of in actions for trespass, C35.
license to another, 638.
not questioned in replevin. 689.
actions to recover possession of, 691.
REASONABLE delay, 499.
doubt, rule of, in civil cases, 495, 671.
time, how proved, 8114, 371.
for presentment of commercial paper, 421.
nscnnd fare, 614.
RECEIPTOR, action against, 605.
RECEIPT by assignor before tiansfer. 1 1.
of third persons, to show separation of wife
with allowance, 179.
of husband for wife's property, 180.
by ageut of new flrui, io n.
RECEIPT Continued.
of trustees of an express trust, 235.
to show loan, 244.
primariness of, 258, 806.
endors d on order for payment by third person,
259 n.
of payee in action for money paid, 260.
order for pa\ muut of moiiey, when prirna facie,
272.
in action for money received, of the money by
defendant. 275.
of money by a<ent, 276.
of foreign money, 277.
oral evidence to explain or van-, 279, 289, 553,
807.
for price of goods, 288.
to show delivery, 315, 564.
acts of ownership by buyer to show, 319.
indorsed upon instrument sued on, 447.
carrier's receipt, 563.
by carrier, how proved, 564, 565, etc.
explanation by carrier's, 5G7.
as evidence of title, ('':!.
on delivery of check to show payment, 803.
"as a compromise," or "without recourse,"
807.
in full, 808.
To show application of payment by debtor, 811.
RECEIVER, resolution of corporation in favor
of, 48.
actions by and against, 231.
allegation of appointment, and right of action,
231.
proof of appointment of, 231.
leave to sue, 232.
transactions of defendant in actions by, 232.
when uot liable personally, ~':i-J.
action on assessments of insurance notes, 456.
RESCISSION of contract, parol to show, s.'!)5.
agreement for, on breach of warranty, 3-16.
for fraud, diligence in, 733.
cancellation of instrument, 408.
of sale on breach of warranty, 341.
inadmissible under allegation of fraud, 787.
RECITALS in letters of administration, 57.
in award, 469.
in application for insurance, 479.
etoppel by, 513.
in sheriffs deed, 702.
in tax deed, 703.
in deed as evidence, 712.
in patents, 759.
in municipal ordinance. 770.
RECOGNIZANCES, actions on. 784.
RECORD, what is court of, 541.
RECORDING ACTS, who is tona JlOe pur-
chaser, 716.
RECORDING deed when noticed, 717.
RECORDS admissible ashearsav of pedigree, 90.
copy of public, authenticated by officer, 5J n.
copies of corporate. 50.
copy of record of sealed instrument of corpora-
tion. 35.
erasures in entries in corporate, 49.
family, 9-,>.
copy of, 96.
"family rtcord" in Bible, authentication of
90 n.
identity of person named In. 101.
imperfect, in actions on judgment, 536.
in bankruptcy. 9.
juuicial notice of usage of church to keep a,
3!) .
of filing of certificate of incorporation, i"i.
of acts of directors, 41.
of corporation, three classes of. 46.
of election of corporate officers, ',",<<.
of action of corporation, -iti.
of corporate proceedings, primariness of, 48.
of corporation, authentication oi. (< //.
of private corporation, lacking official signature,
50.
rough corporate minutes, 50.
of |>robate proceedings, 5>8.
of ancient instrument, as hearsay of family his-
tory, 94.
874
GENERAL INDEX.
RECORDS Continued.
of judgment of naturalization, 102.
of probate of will, as proof of will, 109.
of judgment against executor or administrator,
161.
of appointment of public officer, when conclu-
sive, 201.
of order or decree appointing receiver, 232.
of United States courts, 549, 550.
of former adjudication, primariness of, 831.
oral evidence to explain, 833.
of deed, 693.
of highway, 774.
of recognizances, 784.
of supervisors, 770.
of marriage, statutory provision for, 80.
parol to show official character, notwithstand-
ing, 198.
to vary corporate, 51.
peculiarity in competency of statutory, 47 n.
primariness of evidence of keeper of, 39.
to prove judgment of divorce, 101.
RECOUPMENT in action on sale, 335.
by counterclaim, 835.
RECOVERY, former, as merging cause of action,
827.
REDEMPTION, certificate of, 703.
of real property, 722.
RE-ENTRY on leased premises, 532.
REFEREE, report of, not former adjudication,
881.
REFORMATION, actions for, 732.
grounds of impeachment, 732.
of mistake, when necessary, in action on con-
tract, 485.
of sealed instrument, suit on, 5'2.
REFRESHING memory as to handwriting, 395.
use of memoranda by witness, 320.
REFUSAL, dispensing with tender, 316.
to receive, 336, 337.
of seller to deliver, 338.
to perform in anticipation of the time, 384.
to produce evidence, 478.
to produce books and papers, 783.
of bailee to deliver, 557.
as evidence of conversion, 627.
to perform contract between vendor and pur-
chaser, 728.
REGISTER of shareholders, as statutory record,
46.
proof of death, by hospital, 73.
of b irial, as to time of death, 73.
of marriage, kept pursuant to statute, 80.
of births, entry in, by physician, as to time of
birth, 87.
transcript of parish, as proof of family history,
93.
of facts of family history authorized by law, 97.
not authorized by law, 98.
primariness of, as to facts of family history, 99.
authorized by sister state or foreign nation, 97.
when compliance with formalities presumed,
98.
of facts of family history, impeachment of, 99.
of baptism, marriage, etc., identity of person,
101.
of birth and baptism as proof of birth, 86.
of hotel, as to intent of residence, 108.
of deaths, 501.
of vessel, 487, 496.
as evidence of title, 624.
of deed, 693, 71 1.
of weather. 499.
REGISTRATION of trade mark, 751, 760.
REGULARITY, presumption of, in proceedings
of executors and administrators, 55.
of issue of municipal, etc., bonds, 452.
in proceedings affecting title to land, 700-704.
of discharge in bankruptcy, 619.
in insolvency, 820.
REISSUE of patent. 758.
RELATION to testator, to show undue influence,
120.
of testator to claimant as evidence of intent,
143.
of indorsement back, to agreement, 440.
RELATION- Continued.
of deed back. (i!M.
RELATIONSHIP proved by hearsay as to fact*
of peilL'ivp, <n.
to render declarations of deceased competent aa
hearsay, 91.
proved by general reputation, 94.
names of, in will, 137.
RELEASE, mode of proof and effect,817.
oral evidence as to, 818.
impeachment of, 818.
by assignor before transfer, 14.
as restoring competency of interested witness,
63.
not removing disqualification of party to testify,
63., 64.
of interest by partner, when not removing dis-
qualification as witness, 64 n.
of interest in estate upon receiving advance-
ment, 156.
of securities by will as proof of advancement,
156.
by husband, when bar to wife, 176.
of trust, when parol to show, incompetent, 234.
before maturity to bar action on bill or note,
257.
of precedent debt under allegation of money
paid under fraud, 272 .
RELIANCE on representation proved by testi-
mony of partv, 620.
RELIGIOUS BELIEF of testator to show intent
as to charitable g ft, 142.
REM, proceedings in, 783.
RENEWAL of negotiable paper, 447.
of patent, 758.
RENT, profits in lieu of, no proof of partnership,
212 n.
indebtedness for, how proved, 351, etc.
rate of, how proved, 354.
action on lease, 522, etc.
reserved in lease, amount how proved, 527.
demand of, in actions on lease, 530.
apportionment of, in actions on lease, 533.
payment of, in actions on lease, 533.
ejectment for non-payment, 706.
presumption from payment of installment of,
809.
REPAIRS covenants for in lease, 532.
REPLEVIN, actions of, 6S8, etc.
as bar to action for price of goods, 336.
REPLY to counter-claim, 835.
REPORT, annual, of corporation, as statutory
record, 46.
of officer to corporation, 51.
merely received and "accepted," for whatad-
misil>]e, 51.
REPRESENTATIONS of testator as to his will,
131.
of partnership by partners, 209.
of agent for benefit of principal, 299.
to show warranty on written sale, 344.
in insurance, 483. etc.
provable under allegation of mistake. 485.
as an estoppel from proving usury, 792.
REPUTATION to pro\e marriage, 164, 178.
of marriage, \vlien sufficient. 81.
and cohabitation, 81 ., 83, 85 n.
effect of concealment to prevent, 82.
originating afier cessation of cohabitation,
82.
with meretricious cohabitation. 82.
of deati.. before expiration of presumptive time,
to sustain second marriage, 83.
of marriage, facts negativing piesumptionfrom,
84.
of alienage or illegitimacy to sustain escheat,
86.
facts of family history by general, 94.
beyond family as hearsay of family history,
95.
competency of judgment, decree or verdict, as
to fact that might be determined by general,
101, 827 /).
as to ownership to show title, 159 n.
of separation of wife, with an allowance, In ac-
tion for necessaries, 179.
GENERAL INDEX.
875
REPUTATION Continued.
official character by proof of general, 201 n.
as to residence of indorser, 432.
for negligence, 585.
as to solvency, 617.
of dangerous animals, 645.
disiinguished from character, 674.
as evidence of knowledge, 778, 779.
of intemperance, 778.
as to mental capacity of testator, 119.
REQUEST of payment for money to one's uae,
249.
to sustain action for money paid, 250.
not contradicting legal effect of writing. 251.
not presumed from mere payment of debt of
another, 252.
to pay what defendant ought rather to have
paid, 253.
of principal, for surety, 255.
to pay demand not legally due, 266.
as ground of action for price of goods, 285.
to render services, 358.
in actions for negligence, 591.
to abate nuisance, 643.
RESEMBLANCE of trade mark, 751. (And see
LIKENESS HANDWRITING, etc.)
RES GEST.E, 404.
admissions and declarations of assignor, 2, 11.
of act of officers and agents, 44.
of party to show usury, 7!)5.
as narrative of past act, 45.
of decedent, 60.
and conduct of testator at execution of will,
112.
as to acts of others, 122.
to show revocation of will, 124.
as to title, 159
of donor as to advancement, 154.
of ancestor in favor of his title, 158.
-'-as to title, 727.
made during progress of invention, 757.
of husband or wife, 166.
of wife in course of her service 1 , 177.
of wife as to causes of separation, 179.
at time of execution and attestation of will,
129 n.
directions given by physician of testator, on
question of undue influence, 121 n.
at time of transfer of property to show intent
as to an advancement, 151.
repute, cohabitation and declarations, of mar-
riage, 82.
marriage certificate, 80, 99.
of parties jointly liable, 187 n.
of subordinate, 199.
of joint possessor, 189.
of conspirators, 191.
of partners, 205.
of partner as to scope of business, 214.
of drawer of check as to its being for a pay-
ment or loan, 2-15 n.
as to suretyship, 255.
of payee, 259.
of person paying money, as to fund from
which made, 264.
of depositor or payer. 275.
of depositor at time of deposit, 278.
to show intent as to passing title, 318.
of employee of seller to remedy defects, 348.
and entries of payment as part of, 799.
conduct and acts of buyer on receipt of goods,
319.
in tracing source of married woman's title, 170.
entries tu show credit to wife, 182.
entries in check-book, 241.
entries of payments in accounts as, 245.
fraud in obtaining credit, 246.
information and advice upon which agent acted,
letters of agent to sub-agent, 253.
letters of agent and entries in accounts, 265.
conversation on payment, to show its applica-
tion, 265.
to show receipt of money. 269.
to show necessity of exercise of discretion by
agent, 281.
RES GEST^E Continued.
receipt of payment, 799.
letter accompanying receipt, 807.
of payment to agent to show good faith, 282.
books as, to show to whom credit was given,
302.
memoranda as part of, 3, 326.
of employment, 360, 375.
of hiring servant, 593.
discharge of a servant, 384.
as to negotiable paper, 417.
of the making of negotiable paper, 402.
and delivery of negotiable paper, 404.
of the indorsement of negotiable paper, 413.
of demand of negotiable paper, 424.
of demand and refusal, 557.
contemporaneous agreements, 412.
as to statement of account, 461.
in case of guaranty, 474.
in case of insurance, 492.
of an accident, 588.
of injury, 597.
in case of personal suffering, 502, 600.
of medical examination, 601.
of loss of thing bailed, 557, 561.
of delay and loss by carrier, 569, etc.
the continuing fact of possession, 711.
calling for liquor, 774.
in actions for assault, 648.
RESIDENCE, how proved, 107.
when proved by hearsay as pedigree, 91.
how proved on questio'u of national character,
102.
in question of domicile, 103.
long continued as proof of domicile, 104.
in new locality necessary to change domicile,
105.
at college, when does not change domicile, 106.
payment of taxes as showing intent, 108.
absence from, to raise presumption of death, 76.
of judgment debtor, 736.
RESIGNATION of corporate office, 769.
RES INTER ALIOS ACTA, 354.
in respect to services, 360.
RES POND EAT SUPERIOR, 592.
RETAINER, how proved, 377.
by partner, 548.
RETURN in action by public officer, 197.
as evidence against officer, 199.
of article, in breach of warranty, 348.
of process how proved, 600.
of execution as evidence, li-24.
in action by judgment creditor, 736.
REVERSAL of judgment in actions on, 539.
(Awl see FORMER ADJUDICATION.)
REVERSIONER, presumption of death from
absence, in life estates. 75.
REVOCATION of will, modes of, 123.
disappearance as evidence of, 124.
declarations of testator to show, 124.
by subsequent will, 125.
constructive, 125.
of agency, 333.
of promise to third person to pay plaintiff , 386.
REWARDS, action for, 383.
RIGHT TO CONVEY, actions on covenants of,
520.
RISK, insured against. 488, etc.
" ROOTS " what are, 485.
ROBBERY bv servant, 572.
ROUTE of carrier. 507.
RULE OK COURT as to value of life estates, 724.
RUMOR of existence of partnenhlp, 210.
SAILOR, presumption of death by absence of, 74.
domicile of, 105, 106.
SALE, by officer not in course of business, 85.
bill of parcels showing joint. 188 n.
in action for money received, 2~,(\.
of personal property, actions arising on, 884.
license to sell. _>:.
ordinary sa e by delivery, 287.
ezproec agreement, 287.
made by letter or telegram, 289.
memorandum under statute of frauds, 292.
explaining wriiing by parol, 291.
proof of usage, 290.
876
GENERAL INDEX.
SALE Continued.
real party in interest, 298.
purchase by defendant's agent, 398.
defendant liable as andltcloaea principal, 300.
parol to show undisclosed principal, 8iU.
defendant liable though acting as agent, 301.
assumption of order given by third person, 302.
to whom credit was given, Mti.
identifying the tiling agreed for, 303.
quality ;uid description, 30).
"with all fault*," 304.
varieties or grades included in generic term,
304.
parol to show quantity, 304.
parol to show meaning of " barrels," 804.
meaning of " more or less " 305.
price agreed, 305.
value of goods sold, 306.
market value, 307.
prices" current. 309.
opinions of witnesses as to quality and value,
310.
time for performance or payment, 312.
question as to, being entire, 312.
conditions and warranties, 313.
of goods, options in, 313.
subsequent modifications in contracts of, 314.
delivery or offer, 314.
delivery through carrier, 315.
tender of goods, 816.
paying for packing and freight, 316.
passing of title, 31K 317.
delivery to satisfy the statute of frauds, 318.
part payment to satisfy statute of frauds, 319.
rules admitting documents otherwise incompe-
tent, 319.
contemporaneous memoranda, 319.
memoranda refreshing memory, 320.
made by a third person in the usual course of
business, 322.
as part of res qeslae, 326.
shop books and other accounts of a party in
his own favor, 322.
of defendant, 336.
when using parl of an account admits rest, 326.
admissions and promises to pay, 326.
at auction, 327, 334.
through a broker, 328, 329.
when demand necessary before suit, 830.
interest, when allowed, 330.
non-payment when to be alleged and proved,
331.
denial of contract, 332.
set-off against plaintiff's agent, 333.
denial of agency binding defendant, 333.
laintiff an agent for defendant, 333.
efendant not the buyer, but agent for another,
334.
rescission of, 334.
recoupment, 335.
defects in title, quantity or quality, 335.
deceit as defense in action on, 336.
inconsistent remedies, 336.
action against buyer, for not accepting, 336.
readiness to perform, 337.
action against seller 'or non-delivery, 337.
orders and acceptance in action for non-delivery,
337.
readiness of buyer to perform, 338.
object of buying as affecting damages, 338.
defendant only an agent, 339.
intermediate destruction of thing sold to, ex-
cuse delivery, 339.
actions and defenses arising on breach of war-
ranty, 339.
pleading warranty, 339.
warranty of things in action, 340.
warranty of title, 340.
express warranty on sale of goods, 340.
agent's authority to warrant, 341.
implied warranty on, executed, 342.
implied warranty on, partly or wholly execu-
tory. 343.
by sample, 343.
presumption of knowledge as to articles and
quality, 344.
pl
d
SALE Continued,
parol evidence of warranty on written, 8-14.
parol to explain warranty, 315.
variances in the contract and breach, 345.
breach of warranty, 346.
opinions of witness as to qnality of article, 347.
admissions and declarations of seller, to show
warranty, 348.
omission to return the article, on breach of
warranty, 348.
damages for breach of warranty, 348.
disproof of implied warranty, 349.
buyer's knowledge of defect, 34'J.
seller's good faith, 349.
former adjudication in action for breach of
warranty, 350.
contemporaneous agreement for abatement
from price, note, 412.
of negotiable paper by indorsement without
liability, 414.
action for process on execution saks, 606.
void as against seller, 625.
of lands on execution, 702.
of lands on surrogate's order, 703.
of land for taxes, 703.
of book, evidence of publication, 766.
of liquor contrary to law, 774.
proved under Civil Damage Law, 776.
SAMPLE, sale by, 343.
SANITY of testator, 114.
SATISFACTION of debt by bequest to creditor,
148.
of legacy to child by gift during life, 148.
of judgment in actions on, 5-7J.
SATISFACTION PIECE, evidence of payment,
539.
SCIENTER in action on breach of warranty, 339,
346.
in action for deceit, 618.
proved by other frauds. 626.
proved by repetition, 772.
proved by other offences, 775.
SCRIVENER, mistake of, in omitting disposition
of property in will, 113.
testimony of, to mistake in insertion of provi-
sion in will, 135 rt.
mistake of, in writing name in will;- 139.
SCHEDULES of assigned property, 6.
in bankruptcy, as admission of debt, 10.
to show true owner of claim. 786.
SCOPE OF BUSINESS, torts by partner, with-
in, 217. (And see AGENT.)
SCROLL, as a seal, 428.
SEAL, how proved, 506.
presumption and proof of affixing, 392.
when assignment need not be under, 3.
common, when evidence of user, 27.
presumption as to corporate, 35.
presumption of authority to affix, how rebut-
ted, 35.
of municipal corporation, judicially noticed.
35.
of corporation, how proved, 35.
affixing corporate, when void, 35.
corporate, prima facie, that deed is that of cor-
poration, 36.
of corporation, as proof of delivery of deed,
36.
affixed by printer of corporate bonds, 36 n.
authority of agent, without, 41.
of surrogate affixed pending trial, 56 n.
contract of public officer under private, 195.
authority for partnership business done with-
out, 214.
power of partner to bind firm by, 216.
rejected as surplusage, 216.
on notary's certificate, 428.
as evidence of consideration, 515.
imports consideration in guaranty, 472.
in release, 817.
on lost instrument, 510.
of judgment of sister state, 543.
SEALED instrument admissible without allega-
tion of seal, 391.
Instrument admitting account stated, 460.
instruments, actions oil, 504, etc.
GENERAL INDEX.
877
SEAMAN, participation in profits in lieu of wa-
ges, 212 n.
domicilof, 105.
SB ARC II for relatives of absentee, 76.
for lost will, what necessary, 127.
for lost instrument, 510.
SEAWORTHINESS, 486.
SECTION of statute, and proviso, 771.
SECURITY not to pass by will under "mo-
neys," 144.
purchased by parent in name of child, 152.
taken by parent for funds furnished to son, 153.
an advancement by provision in will, 155 n.
release of, by will as an advancement, 150.
making of, lo married woman, 180.
surrendered by mistake, 243 n.
proof of wortlilessness, 243 n.
promise to give, void by Statute of Frauds,
246.
effect of holding collateral npon lender's rem-
edy, 246.
parol to show a transfer was given for, 295.
payment by transfer of, 804. 805, 806, 809.
possession of, by debtor to show payment, 809.
void, to rebut accord and satisfaction, 814.
delivery or tender of, in composition with
creditors, 816.
SEDUCTION, actions for, 681, etc.
loss of service, 682.
good faith, 682.
character, 682.
SEIZIN, ancestor's, when necessary, 156.
actions on covenants of, 520.
SERVANTS of corporation, authority of, 41.
labor as
by-laws, when competent against, 48 n.
exemption of proceeds of husband's
wife's, 168.
participation in profits by, 211 n., 212 n.
notice to, of dissolution of partnership, 224.
of carrier, delivery of goods, 315.
authority of, to sell, not to warrant, 341.
thority of innkeeper's. 560.
aracter of, inferred from appearance, 580.
negligent person, a, 591.
who is, in actions for negligence, 592.
employment of unfit, 593.
intemperance, how proved, 779.
knowledge of, evidence against master, 772.
actions for assault by, 646.
in house of prostitution as witness, 747.
SERVICES of wife, admission as to husband's
consent, 176, 177.
actions for compensation, 357.
of process to sustain judgment, 546.
to show commencement of action, 822.
loss of by seduction, (W2.
SET-OFF, mistake as to, 269.
against plaintiff's agent, 333.
agreement to set-off against note, 412.
dutingaished from omission from account, 463.
under general allegation of payment, 799.
when not barred by former adjudication, 834.
counter-claim as to, 835.
SETTLEMENT, voluntary, of insolvent debtor,
788.
SEVERAL LIABILITY on commercial paper,
809.
on contracts or for tort, 186.
SEXUAL INTERCOURSE, how proved, 743-748.
SHERIFF, return of, 197, 200, 200 n,
receipt of, in action for money paid, 261 n.
action against for advertising, 376.
actions by and against, 605.
action against receiptor of, 605.
action for conversion, 605.
action of, for trespass, 605.
justifying levy, 031.
deed, etc., of, 7<W.
presumption of deputy's authority, 702.
payment to, 802.
delivery of process to, as commencement of ac-
tion, 822.
SIIIP, payment of insurance of, to prove death,
74.
admissions and declarations of part owner of,
190ft.
SHIP Continued.
ownership of, 4S7, 496.
evidence for forfeiture of, 784.
SHI I'M KNT of goods, how proved, 498.
SHIP'S HUSBAND, acting as, prima facie of ap-
pointment, -.':>.' n.
SHIP'S REGISTER as evidence of title, 624.
"SHIPYARD/' what is, 484.
SHOP BOOKS, pany competent to identify, 69 n.
to show to whom credit was given, 302.
entry in, when prima facie of price and value,
306.
of a party offered in his own favor, 322.
of defendant, 336.
of mechanics, tradesmen and physicians, 372.
of newspaper printer, 376.
SHORT-HAND, interpretation of will written in,
132.
SIGNAL SERVICE, registry, 499.
SIGNATURE, rules as to proof of, 391, etc.
effect of words of agency attached to, 37.
of oflicer to corporate minutes, 49.
corporate minutes, lacking official, 50.
of officer certifying marriage certificate, 98 n.
of subscribing witness to a will, 112.
of wife for husband, 175.
of contract by partner, self " & Co.," 215.
parol, to charge firm on individual, 21fi.
for incidental purpose, not primary, of loan, 243.
as evidence of suretyship, i"iJ.
of drawer proved by acceptance. 420.
drawee's knowledge of drawer's payee's and in-
dorser's, 270.
to memoranda made in usual course, 322.
of account stated, not conclusive, 463.
of policy, 477.
misplaced, 504.
by parties not named, 507.
of record, 537.
SIGNBOARDS, 774, 777.
evidence of ownership, 591.
SILENCE, as election to accept devise, 157.
of wife, caused by husband's influence, 106.
of wife, when not an estoppel, 167.
of husband to_ show title in wife. 169.
of those in joint business to show authority for
statements of one, I'.'O.
as ratification of act of one partner, 217.
as admission of payment by check., 259.
as assent to conditions on which money is de-
livered, 272.
as ratification of agent's act, 299.
when not to imply warranty, 342.
an admission of correctness, 461.
not necessarily assent, 477.
not necessarily a waiver, 490.
may amount to waiver, 510.
SISTER STATES, actions on judgments of, 541.
"SKINS," what are, 485.
SLANDER, actions for, 059, etc.
of title, 668.
SLIP, insurance slip, 478.
SOLDIER, domicile of, 105, 106.
SOLVENCY, mode of proof. 616, etc.
of corporation, accounts, and business entries
in issue as to, 52.
or wealth of debtor, as to payment, 810.
Sol'NDNKss OK MIND. ..TT.)
SPECIAL contract, \\hen must be proved in ac-
tion for services. 361.
damages, alii u r ing and admitting, 649, 669.
SPECIAI.TIKS. actions on, BOi, .
SPECIKICATIONS for patents. 757.
SPECIFIC PERFORMANCE of oral contract
partly performed, 730.
contract to sustain action f.
suppression of evidence- in action for. 729.
plaintiff's title and performance in action for,
731.
SPOLIATION of subsequent will by party claim.
ing under i-arlu r.
STATE, title o!. t,> land-.
of the art in patent case, 759, 765.
ST\TK<;KANT. ;<>.-..
STATUTE, evidence of, 770.
authenticity and validity of, 21.
873
GENERAL INDEX.
STATUTE Con/tint, ,!.
of sister Staff, how proved, 22.
former adjudication on construction of, 828.
aiilhorily to maintain nnisanrc, 644.
statutory conditions of contract, 506.
violation of, us evidence of negligence, 589.
wills compared to, as to admission of parol to
explain. 131 n.
STATUTE ACTION, cogency of proof, 7T5.
STATUTE OF FRAUDS, unsealed contracts of
corporations under. 31.
trust manifested and proved by writing, 233.
promise to give security for loan void by, Ss46.
promise to indemnify not within, 255.
parol to show real party to contract, 274 n.
real party in interest, when to recover, notwith-
standing, 298.
requisite memorandum of sale nnder, 292.
not applicable to agreements for production or
manufacture, 292 .
not satisfied by oral evidence, 295.
undisclosed principal in contract required to be
in writing by, 301.
contract void under, good as proposition of
price, 305.
modification of contract within, 314.
delivery to satisfy. 318.
part payment to satisfy, 319.
compliance with, in auction sales, 327.
effect of, on rescission of sale, 335.
in action for use and occupation, 352.
application in action for wages, etc., 363.
when available under a general denial, 374.
as to agreement for board and lodging, 379.
over writing guaranty above indorsement, 440 n.
as to guaranties, etc., 471, etc.
rule as to pleading, 522.
in case of breach of promise, 678.
as to oral evidence of transfer of title, 698.
to impeach contract, 789.
contract between vendor and purchaser, 725.
(See also FRAUD.)
STATUTE OP LIMITATIONS distinguished
from presumption of payment from, lapse
of time, 812.
pleading, 822.
burden of proof, 822.
new promise to rebut, 823.
conditiona' new promise, 824.
acknowledgment of debt, 824.
as to payment, 267.
part payment, 824.
indorsement of payments, 825.
decedent's declarations as to debt barred by, 155
n.
partner not agent to remove, 189 n.
power of partner after dissolution to make new
contract and to acknowledge debt barred
by, 219.
STATUTORY TITLE, ejectment, 700.
STEP PARENT and step child, services between,
359.
STOCK, strict proof of incorporation, on, 19.
action on a subscription for, as proof of cor-
porate existence, 27 n.
owner of, when estopped from questioning
corporate character, 29.
subscription books for, as statutory records, 46.
rejecting false description of, in will, 145.
bequest of, specific, 147.
husband's collection of interest or dividends on
wife's, 176.
burden on one appearing on stock-book as
holder of, 232.
proof in stock-broker's suit for deficiency on re-
sale, 252 n.
notes to insurance company, 455.
STOCKHOLDER, how proved, 768.
liability of. 7<iS.
STORAGE receipt, 553.
action against sheriff for, 607.
STORM, causing loss, 600.
STOWAGE, actions against common carrier, 668.
STRANGER'S declarations inres gestce, 589.
STYLE of writing, 3^7.
SUBMISSION to arbitration, 465,
SUBSCRIBING WITNESS, roles ae to proof by.
B91.
proof in case of, 505.
sriil'iKNA. clisobeving.TOn.
SUBSCKII'TION of policy, 477.
SUCCESSION", claiming perpetual, when evt
dence of user, 27.
SUFFERING, 899, 678.
St K'lDE, circum-tances, evidenceof, 502 n.
presumption against, 503.
in case of life insurance, 501.
SUNDAY, negotiable paper made on, 409.
Impeachment of contract made on, 790.,
SUPERINTENDENT'S certificate, 371.
SUPERVISOR'S ordinance, 770.
SUPPORT, loss of, 602.
injury to, means of, 780.
SURCHARGING and falsifying account stated,
4(i:i, 815.
SURETY, action of, against principal or co-surety,
254.
for drawer of bill, 257 n.
'receipt of payee of payment by surety, 261.
to recover only amount paid to settle debt, 264.
indorsement as between, 414.
fraudulent concealment practiced on, 512.
insiifliciency of, taken by sheriff, 608.
oral evidence to show, 818.
SURETYSHIP, admissions and declarations of
one jointly liable, 1'jO.
and judgment paid, aa evidence of the amount
duer-Jtii.
and dealing with principal, 445.
and modification of contract, 818.
SURPLUSAGE, unnecessary seal rejected as, 21.
SURRENDER, to show symbolical delivery, 318.
of lease. 532.
by bailee, 555.
SURROGATE, seal of, affixed pending trial, 56 n.
non-compliance of, with conditions precedent of
his action, 58.
competency of minutes of, 58.
decree of, when proof of facts of family history,
100.
original record of, as to probate of will, 109.
decree of, admissible in action on administra-
tion bond, 514.
sale of real property, 703.
SURVEY, competency of, in insurance, 500.
SURVEYOR'S notes, 699.
SURVIVORSHIPS common casualty, 78.
STAMP on bank check, 453.
of cancellation. 408.
SWORN COPIES of judgment, 536.
SYMBOLICAL DELIVERY, to satisfy statute of
frauds, 318.
TACIT assent to account rendered, 461.
" TAKING UP " negotiable paper, 4, 449.
TAVERN sign, 774, 777.
TAXES, payment of, to show intent as to domi-
cile, 108. (
sale of lands for, 703.
collector's book, 705.
justification by, 633.
mistake in paying neighbor's tax, 251 n.
contribution among joint owntrs for payment a
of, 254 n.
assent of owner to payment of, by tax collector,
254 n.
money paid for taxes to defendant's use, 260.
tax collector's receipts as proof of payment by
administrator. 261 n.
TECHNICAL WORDS in will, explanation of, 133.
explanation of to aid in identifying property in
will, 144 n.
in insurance law, 484.
opinions of witness as to, 757.
TELEGRAM, agreement of sale made by, 289.
primariness of original message, 290, 604.
part of connected correspondence, 291.
TELEGRAPH COMPANIES, actions against, 604.
TENANCY, how proved. 351, 523.
in common, in ejectment, 714.
in common in case of partition, 724.
in common admissions and declarations of one
co-tenant agaiust another, 188.